The Issue The issue in this case is whether Respondent, Zion's Hope, Inc., d/b/a Holy Land Experience (hereinafter "HLE"), discriminated against Petitioners, James Gantz and Bette Gantz, by refusing Petitioners entry into HLE due to the Gantzes's disability, i.e., being hard of hearing and requiring the service of hearing ear dogs.
Findings Of Fact Zion's Hope, Inc., is a Florida not-for-profit corporation formed in 1989. It is a religious entity with a Section 501(c)3 designation under the U.S. Tax Code as a bona fide charitable organization. HLE is a privately-owned religious theme park operated by Zion's Hope. Religious services are conducted at HLE seven days a week. HLE is located at 4655 Vineland Road, Orlando, Florida. The public, upon payment of an admission fee, is invited into HLE on a daily basis. James and Bette Gantz are an elderly married couple who reside for part of each year in North Port, Florida. Both James and Bette are hard of hearing and have suffered from this affliction for many years. James and Bette each have a certified hearing ear dog which accompanies them almost everywhere they go. The dogs were present at the final hearing. On March 19, 2010, James and Bette accompanied by their service dogs and Bette's sister, Lois Wilcox, decided to visit HLE. Upon arrival, they were told that the HLE parking lot was full, but that additional parking was available across the street. James dropped off Bette, the dogs, and Lois in front of the HLE entrance, then went to park the car across the street. When Bette, Lois, and the dogs approached the ticket window to purchase admission into HLE, they talked to one of the employees about the service dogs to make sure the dogs could accompany them inside. The employee opted to call her superior, Jane Wilcox (no relation to Lois), to make a determination about the dogs. Jane Wilcox testified that she approached Bette and Lois in the lobby area, i.e., an enclosed area akin to a hotel lobby, which housed the ticket windows. Bette and Lois said they were never inside a building at HLE; rather, the discussions that occurred happened outside on the sidewalk area. It seems most likely from the evidence that the conversation commenced inside the lobby and then continued outside. Jane Wilcox did a cursory examination of the dogs and decided they did not appear to be service dogs. She also determined that the dogs appeared to be "frisky" in nature and were not like other service dogs she had seen. It was her practice to make a determination as to whether an animal was a service animal or not by asking reasonable questions. This is the way she handles each of the 100 or so cases a year in which guests show up with animals. Jane Wilcox has not had any formal training from the Commission or other regulatory entity regarding service dogs. She was given on-the-job training by her predecessor and has studied written materials on the subject. Her experience in this area is somewhat extensive during her three and a-half year tenure at HLE. After Jane Wilcox made an initial visual determination that the dogs appeared to be pets, Bette attempted to advise her that the dogs were certified and had certification documents on the capes they were wearing. Bette and James had taken the dogs into numerous other businesses and had been asked many times for proof of the dogs' certification. Thus, they kept the certification documents on the dogs at all times. Jane Wilcox refused to look at the certification documents because she has been provided bogus certification documents on occasion. That being the case, she did not put any stock in documents that were presented to her by guests. Rather, it was her normal practice to ask questions of the owners and to visually examine the animals. Based on the answers and her observation, Jane Wilcox would come to a conclusion about the animal in question. The discussion between Jane Wilcox and Bette became somewhat heated once Jane Wilcox made her initial determination about the dogs. Bette was talking loudly, but she is prone to do that because of her hearing impairment. Jane Wilcox viewed Bette as being very excited and possibly offended by the refusal to admit the dogs into HLE. After a few moments, Jane Wilcox determined that communication with Bette had broken down to the point that further conversation was useless. At that point, she called for security assistance.1/ It appears that the matter could have been resolved to everyone's satisfaction had the conversation not degenerated into a contentious debate between the parties. However, it is impossible to ascertain from the facts submitted whether one party or the other was more responsible for the verbal melee. Therefore, no finding can be made as to that point. The security officer who arrived took Bette and Lois to his small security building, where they were joined by James. The security officer said that Jane Wilcox was within her rights to refuse their admission into HLE with the service dogs. He advised them that there was a facility nearby that would care for the dogs while the guests were at HLE. The security officer allegedly told the Gantzes that HLE was a private facility and not subject to federal or state law regarding disabled persons. He also supposedly said that HLE considers dogs like those belonging to the Gantzes as pets, rather than service animals. According to Bette, this "colored" security officer would not listen to her or allow her to talk. A Caucasian guard, however, allegedly told Bette that maybe the dogs should be allowed into HLE, but he was overruled by the first guard. The Gantzes then asked the security officer to call the local (Orlando) police, which he did. When the police officer arrived, he advised the Gantzes that he could not force HLE to admit the dogs, but that he would write up a report. The report written by the police officer indicates that "security officer Santis" called in the request for assistance. It is not clear from the evidence at final hearing which of the two aforementioned security officers was Santis. The incident narrative in the police report simply states: Contact was made with all parties. 'Gantz' were acc[ompanied] by certified service dogs for hearing along with proper documentation. Upon Mngt request to leave, did so without incident. The Gantzes and Lois Wilcox opted not to board the dogs at the nearby facility. Rather, they left HLE and, ultimately, filed a complaint against Zion's Hope with the Commission. HLE does have a policy of admitting service animals inside the attraction. However, as a private religious facility, it does not believe that it has to do so, i.e., it does not believe it is governed by the Americans with Disabilities Act. Of the 100 or so service animals appearing for admission each year, about 70 percent of them are admitted. The others are boarded or the owners opt not to enter HLE. HLE does have a strict policy disallowing pets from admission to the park. Inasmuch as Jane Wilcox found the animals with the Gantzes to be pets, they were denied admission on that basis.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a final order be entered by the Florida Commission on Human Relations dismissing the Petitions for Relief filed by James Gantz and Bette Gantz in their entirety. DONE AND ENTERED this 31st day of March, 2011, in Tallahassee, Leon County, Florida. S R. BRUCE MCKIBBEN 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 31st day of March, 2011.
Findings Of Fact At all times pertinent to this proceeding, Arthur Peloso held a Division of Hotels and Restaurants license, number 58- 0365ZR, issued for the premises known as Regency Pizza Plus (Regency), located at 1920 Central Parkway, Orlando, Orange County, Florida. Ansel Matthew (Orange County Environmental Health Specialist A, (Matthews) began inspecting the Regency premises on August 30, 1984 and cited Respondent for a minor violation under Item-35, ineffective vermin control, among others, and instructed Respondent to "repair screening in rear door or keep solid door closed" and warned Respondent that such violation had to be corrected by the next routine inspection. The next routine inspection by Matthews on the Regency premises occurred October 15, 1984 and Respondent was again cite for violation of Item-35 and instructed to "repair screening rear door" but with no instruction as to when the violation had to be corrected. The record reflects that Matthews did not inspect the Regency premises again until July 11, 1985. The record is void of any evidence to show if the Regency premises was inspected during the interim between October 15, 1984 and July 11, 1985 or if the violation was corrected by repairing the screening on the rear door or by keeping the solid door closed as instructed on August 30, 1984. On July 11, 1985, Matthews inspected the licensed premises of Regency. Matthews noted, among others, a minor violation of Item No. 35, effective vermin control, on his Food Service Inspection Report filed as a result of this inspection and in the comments/instructions section of this report instructed Respondent to "keep rear door closed to prevent entry of insects and rodents." Matthews discussed the report in person with the cook, an employee of Regency whose signature on the report is illegible and over the phone with Respondent's son, Arthur Peloso, Jr., the manager of Regency. Although Matthews testified that while making the inspection on July 11, 1985 he observed both the outer rear wooden door and the inside rear screen door as being in disrepair and that neither door would have prevented entry of vermin into the Regency, the instructions given by Matthews in the report reflects that Respondent could correct this violation by keeping the rear door closed even though Matthews may have found the outer rear wooden door and inside screen door in disrepair. The violation of Item 35 is not one of the violations noted in the Warning Section of the July 11, 1985 report which required correction by July 15, 1985. In addition to Matthews's testimony that the violation of Item 35 he observed on July 11, 1985 was a repeat violation, the instructions in the report in reference to Item 35 indicates a repeat violation, however, the evidence is insufficient to prove that the violation observed by Matthews on July 11, 1985 was a repeat of the same type violation previously cited and corrected or a repeat of the same violation previously cited but not corrected, i.e., a continuing violation. On July 22, 1985, Matthews performed a call-back inspection on the Regency premises in reference to the July 11, 1985 inspection and upon completion of the inspection filed a Call-Back/Re-Inspection Report which as discussed with the Respondent or his son, Arthur Peloso, Jr. but Matthews was not sure which one. Although Matthews testified that he observed an Item 35 violation on July 22, 1985, neither Matthews' testimony nor the report sufficiently show that the Respondent clearly understood that the extended date of July 26, 1985 applied to violations 31, 37, 39 referred to in the warning section of the report filed on July 11, 1985 or to all violations observed on July 11, 1985. On July 26, 1985, Matthews made his second call-back inspection and noted on the report that only 3 out of 18 previously cited violations had been corrected. This report was discussed in person with M. Smith, an employee of Respondent and either in person or by telephone with the Respondent or Arthur Peloso, Jr., Matthews was not sure which one. Matthews did not extend date for compliance because he wanted to speak with Dorothy Freeman, his supervisor. On August 9, 1986, Matthews made his third call-back inspection and was accompanied by Dorothy Freeman (Freeman), his supervisor, who also observed the back door area and found it lacking in effective vermin control. This report was discussed with Arthur Peloso, Jr. in the presence of Dorothy Freeman. The report makes it clear that Respondent must either seal the bottom of rear outside door or repair screen on the inside rear screen door along with correction of violations in Item 31 and 47 by the extended date of August 9, 1985. On August 16, 1985, Matthews made his fourth call-back inspection and observed that- all violations cited on July 11, 1985 had been corrected with the exception of Item 35. The outer rear wooden door and inside rear screen door were open and neither had been repaired. On August 26, 1985, Matthews made his fifth call-back inspection and observed that neither the outside rear wooden door nor the inside rear screen door had been repaired to prevent entry of insects and that the outside rear wooden door remained Open. On September 23, 1985, Bill Toth, Jr. (Toth), Senior Program Analysis, Orange County Health Department, visited the Regency premises at the request of Matthews to take photographs of the rear door area (rear wooden door and inside rear screen door) of the Regency premises. While taking the photographs, Toth observed that the screen on the inside rear screen door had been repaired as reflected in photographs 4 and 6 of Petitioner's Composite Exhibit 12 containing 9 photographs of the rear door area of the Regency premises but that a gap existed between the door and door jam as reflected in photograph 6. With the exception of the screen door repair, the photographs accurately reflect the rear door area observed by Matthews during his numerous inspections and as observed by Freeman on August 9, 1985. The outer rear wooden door opened outward and although Respondent was instructed by Matthews on several rat-proofed and rat-free condition. All openings to the outer air, including windows, doors, skylights, transoms and intake and exhaust ducts shall be effectively protected against the entrance of flies and other flying insects by self closing doors which open outward, closed windows, screening, controlled air currents or other effective means. Screening material shall not be less than sixteen (16) mesh to the inch or equivalent and screens for windows, doors, skylights, transoms and other openings to the outer air shall be tight fitting and free of breaks.
Recommendation Based upon the findings of facts and conclusions of law recited herein, it is RECOMMENDED that the Respondent be found guilty of failing to provide effective vermin control in the rear door area of the Regency premises in violation of Rule 10D-13.27(8), Florida Administrative Code. For such violation, considering the mitigating circumstances surrounding the violation, it is RECOMMENDED that the Division suspend the Respondent's restaurant license, for a period of three (3) months, stay the suspension provided the Respondent pay an administrative fine of $500.00 and repair the rear door area of the Regency to prevent entry of vermin in accordance with the Division's direction within thirty (30) days of the date of the final order. It is further RECOMMENDED that should Respondent fail to pay the administrative fine and to repair the rear door area to prevent entry of vermin as instructed within thirty (30) days then the three (3) months suspension shall be reinstated. Respectfully submitted and entered this 19th day of March, 1986, in Tallahassee, Leon County, Florida. WILLIAM R. CAVE Hearing Officer Division of Administrative Hearings 2009 Apalachee Parkway Tallahassee, Florida 32309 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 19th day of March 1986. COPIES FURNISHED: Lynne A. Quimby, Staff Attorney Department of Business Regulation The Johns Building 725 South Bronough Street Tallahassee, FL 32301 Arthur Pelosa Regency Pizza Plus 1960 SE 19th Street Pompano Beach, FL 33062 Glenn Hartley, District Supervisor Division of Hotels and Restaurants 5600 Diplomat Circle, Suite 116 Orlando, FL 32810 Richard B. Burroughs, Jr. Secretary Department of Business Regulation The Johns Building 725 South Bronough Street Tallahassee, FL 32301 R. Hugh Snow, Director Division of Hotels and Restaurants Department of Business Regulation The Johns Building 725 South Bronough Street Tallahassee, FL 32301 APPENDIX The following constitutes my specific rulings pursuant to Section 120.59(2), Florida Statutes, on all of the Proposed Findings of Fact submitted by the parties to this case. Rulings on Proposed Findings of Fact Submitted by the Petitioner: Adopted in Finding of Fact No. 1. Adopted in Findings of Fact No. 3 and 4 with the exception of the language "continuing violation" which is rejected as not supported by substantial competent evidence as explained in Finding of Fact Adopted in Finding of Fact 8 except that the record shows that Matthews was not sure if he talked to Respondent or his son and whether it was made clear to Respondent that the violation in question had to be corrected by the extended date. Adopted in Finding of Fact 9. Adopted in Finding of Fact 10. Adopted in Finding of Fact 10 except that Arthur Peloso, Jr. was present rather than Respondent. Adopted in Finding of Fact 11. Adopted in Finding of Fact 12. Adopted in Finding of Fact 13. Adopted in Finding of Fact 2 as clarified. Rulings On Proposed Findings of Fact Submitted by the Respondent No Findings of Fact was submitted by the Respondent. Adopted in Finding of Fact 11. Adopted in Finding of Fact 12. Adopted in Finding of Fact 13. Adopted in Finding of Fact 2 as clarified. Rulings On Proposed Findings of Fact Submitted by the Respondent No Findings of Fact was submitted by the Respondent.
The Issue The issue is whether Respondent has engaged in an unlawful housing practice in violation of the Fair Housing Act (Act), Sections 760.20-760.37, Florida Statutes, through discrimination against a former tenant, Petitioner, on the basis of Petitioner’s handicap.
Findings Of Fact Petitioner moved to Respondent’s rental house trailer on August 27, 2004, where he and his wife resided until September 1, 2005. The house trailer was located in Respondent’s trailer park in Istachatta, Florida. Petitioner has suffered bouts of mental illness since his youth. He was hospitalized in the 1980’s for depression. Additionally, Petitioner entered into a rehabilitation program for alcohol and drug addiction during the period of 1989 to 1990. Petitioner served in the United States Naval forces during “Desert Storm” when military action was initiated against Iraq in the 1991. Upon his return, Petitioner was incarcerated and evaluated in 1992 for depression in Norfolk, Virginia, as a result of his striking a superior officer without reason. Petitioner was subsequently discharged from the United States military forces with an “OTH” (other than honorable) discharge. Petitioner is considered 100 percent disabled by the Social Security Administration and (as of January 26, 2004) receives approximately $897 per month from that agency. Additionally, all of his medications for seizures, depression and a back ailment are provided to him free in the form of Medicaid benefits. Respondent was informed by Petitioner of Petitioner’s health status and income at the time of Petitioner’s entry into Respondent’s trailer park in 2004. As a result of his special needs, Petitioner keeps and feeds five cats. Three of the cats are “outside cats” and basically come up to be fed. When Petitioner tried to cage the three cats, they dug their way out of the pen in which he placed them. Two of the cats are permitted into Petitioner’s living quarters; a solid black cat and a Siamese cat. The cats help sooth Petitioner’s “nerves.” Respondent refused to provide adequate maintenance of the trailer rented to Petitioner, although Petitioner requested such maintenance. Floors rotted to the point that Petitioner’s wife fell through the bathroom floor at one point, requiring that paramedics be summoned to rescue her. Photographs submitted into evidence at the final hearing also corroborate Petitioner’s testimony with regard to the sad state of the disrepair of the dwelling rented to Petitioner. It is Respondent’s practice to repair trailers only when they are vacant. Petitioner requested that Respondent provide him with information regarding Respondent’s insurer after Petitioner’s wife fell through the bathroom floor. Respondent refused to provide the requested information. Contrary to allegations of Petitioner’s Petition for Relief, dated February 22, 2006, in which Petitioner alleged he was forced to move out as a result of Respondent’s failure to make accommodations for Petitioner’s handicap, Petitioner failed to pay required rent on the premises and Respondent proceeded to file for eviction of Petitioner from the premises promptly after Petitioner’s inquiry seeking information regarding Respondent’s insurer. By Petitioner’s own admission, Respondent’s request for eviction of Petitioner was granted by the local courts. Petitioner and his wife vacated the premises on September 1, 2005.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED: That FCHR enter a final order dismissing the Petition for Relief. DONE AND ENTERED this 16th day of June, 2006, in Tallahassee, Leon County, Florida. S DON W. DAVIS Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 16th day of June, 2006. COPIES FURNISHED: Denise Crawford, Agency Clerk Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301 Cecil Howard, General Counsel Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301 George P. Rance Post Office Box 11 Istachatta, Florida 34636 James W. Travis Post Office Box 95 Istachatta, Florida 34636-0095
Findings Of Fact Petitioners, L. Noel Jones and Ann Jones, are the owners of Lot 4, Block 3, Beckett Lake Estates, located at 2122 Beckett Lake Drive, Clearwater, Florida. The property is currently zoned RS-60 (Single-Family Residence District) and was created primarily for low-density single-family residential development. Petitioners' lot lies between Sunset Point Road on the north, and Montclair Road on the south. It is located within Beckett Lakes Subdivision, an exclusive single-family subdivision approved for development by the City in April, 1978. The lot is one of only six within the subdivision that has frontage on both Sunset Point and Montclair Roads. These lots are numbered Lots 1-6 in Block 3. There are approximately 62 other lots within the subdivision. Under an agreement with the City, the developer of the subdivision erected a four-foot open wood ranch-style fence on Montclair Road. The fence sits approximately one and one-half feet from the right-of-way line and runs the length of Lots 1-6. The developer also agreed to landscape the area adjacent to the fence to comply with a fence and landscaping plan approved by the City. Petitioners applied for a building permit to construct a fence on Montclair Road and were verbally advised by a City Building Department official that it would be granted. Based on this representation, Mr. Jones removed the existing four foot fence and replaced it with a six foot fence at a cost of $325. He was later cited for violating the zoning code because he had failed to obtain a variance to construct the fence. The citation precipitated the instant case. Existing zoning regulations require that the height of the fence on Petitioners' property be no more than four feet. Therefore, in order to erect a six foot fence, a variance from the City is required. Petitioners desire to retain their new fence in order to provide more privacy from a public sidewalk and street which run adjacent to their rear property line. Further, their home has been broken into on two occasions within the last year, and they believe a fence would provide more security. They also point out that the owner of Lot 6 recently obtained approval from the City to construct an identical fence on his property. Finally, Petitioners contend that the City initially approved their application, and it is unfair to now require them to tear down their fence. They have agreed to provide appropriate landscaping in conjunction with the fence. The City opposes the application on the ground the new fence is not in conformity with the style and height of the other fence erected on Montclair Road, and would lead to multiple types of fences on the street. It also fears that if this application is approved, it will trigger similar applications from Petitioners' neighbors, and will destroy the neighborhood's aesthetic appeal and character.
Findings Of Fact Petitioner is developing a tract of land bordering on Landmark Drive in the Countryside area of Clearwater by erecting condominiums thereon. The area along Landmark Drive is predominantly single family residential, zoned RS-50, and Petitioner's property is zoned RM-16 (medium density multi-family). There are no commercial developments along Landmark Drive in this vicinity except for a maintenance area associated with the golf course. Since Petitioner's property fronts on Landmark Drive, the zoning provisions limit the height of a fence that can be erected in the setback area to 30 inches (2.5 feet). Petitioner is here requesting a variance to erect a six-foot high wall. On other property along Landmark Drive it is considered the side of the property (instead of the front) faces Landmark Drive. For property siding on Landmark Drive (as opposed to fronting) the code allows a four-foot high fence. Petitioner's property is located along a curve of Landmark Drive and headlights of cars entering this curve could shine into two of the eight condominiums proposed. Landmark Drive is currently heavily traveled and more traffic is expected on this road in the future. The purpose of the fence zoning regulation is to keep the spaces open. At present only two fences exceeding code requirements exist on Landmark Drive in this area. One is at the maintenance area of the golf course and the other resulted from a variance granted on an after-the-fact application. The board found hardship would have resulted had the variance been denied. The fence for which that variance was granted was only a few feet into the setback area and the location of a swimming pool made it impracticable to relocate the fence. The previous practice of granting most applications for fence height variances alongside heavily travelled roads has been changed.
The Issue At issue in these consolidated proceedings is whether certain development orders (permits) issued by Monroe County to the respondents, as owners and Your Local Fence, Inc., as contractor, for the construction of fences in the Big Pine Key Area of Critical County Concern are consistent with the Monroe County comprehensive plan and land development regulations.
Findings Of Fact The parties Respondents, Charles and Kathleen Moorman (Moorman), Nicholas and Jean Hornbacher (Hornbacher), James and Kathryn Daniels (Daniels), and Raymond and Rosemarie McRae (McRae), are the owners of certain real property, described more full infra, that is located within the Big Pine Key Area of Critical County Concern and the Florida Keys Area of Critical State Concern, and upon which they have received development orders (permits) from Monroe County to erect fences. Respondent, Your Local Fence, Inc. (Your Local Fence), is a business owned by Mr. Moorman and is the contractor that applied for the permits on behalf of the Moormans, Hornbachers and Daniels. The McRaes applied for their own permit, and proposed to install the fence themselves. Respondent, Monroe County, is a local government within the Florida Keys Area of Critical State Concern designated by Section 380.0552, Florida Statutes, and is responsible for the implementation of, and the issuance of development orders that are consistent with, the Monroe County comprehensive plan and land development regulations, as approved and adopted in Chapters 9J-14 and 28-20, Florida Administrative Code. Petitioner, Department of Community Affairs (Department), is the state land planning agency charged with the responsibility of administering and enforcing the provisions of Chapter 380, Florida Statutes, and all rules promulgated thereunder. Section 380.031(18) and 380.032(1), Florida Statutes. Here, the Department has filed a timely appeal to the issuance of the subject permits, and contends that construction of the fences authorized by such permits is inconsistent with the Monroe County comprehensive plan and land development regulations. The Moorman permit The Moormans are the owners of Lots 15, 16 and half of Lot 17, Block D, Pine Heights Subdivision, Big Pine Key, Monroe County, Florida. Such property is located within, and surrounded by, native pine lands; natural habitat for the Key Deer. On March 20, 1991, Monroe County issued to the Moormans, as owners, and Your Local Fence, as contractor, building permit No. 9110002231 to construct a fence on the foregoing property. As permitted, the fence would be constructed of wood to a height of 6 feet and, except for a front setback of 25 feet, would completely enclose the Moormans' property. So constructed, the fence would measure 125 feet along the front and rear of the property and 75 feet along the side property lines for a total of 400 linear feet. The Hornbacher permit The Hornbachers are the owners of Lot 23, Block 3, Eden Pine Colony Subdivision, Big Pine Key, Monroe County, Florida. Such property is located on a cul-de-sac, at the terminus of a dead end street, and is bordered on the north and west by a canal and on the east by a neighbor's fence. On May 20, 1991, Monroe County issued to the Hornbachers, as owners, and your Local Fence, as contractor, building permit No. 9110002807 to construct a fence along the south side of their property. As permitted, the fence would be chainlink construction, 4 feet high, and would extend from their neighbor's fence on the east, around that portion of their property that abuts the cul-de- sac, and then along their southern boundary to the canal. So constructed, the fence would run a total of 90 linear feet. The Daniels permit The Daniels are the owners of Lots 1 and 2, Block 72, Port Pine Heights Subdivision, Big Pine Key, Monroe County, Florida. Such property, when acquired by the Daniels, was bounded on three sides by a 4-foot high chainlink fence and along the rear by a canal. On July 17, 1991, Monroe County issued to the Daniels, as owners, and Your Local Fence, as contractor, building permit No. 9110003165 to construct a fence along the rear portion of their property that abuts the canal. As permitted, the fence would be of chainlink construction, 4 feet high, and run a total of 158 linear feet. The McRae permit The McRaes are the owners of Lot 6, Block 17, Port Pine Heights Subdivision, Big Pine Key, Monroe County, Florida. Such property is bordered on the north and south by vacant lots, and on the west by a canal. On June 12, 1991, Monroe County issued to the McRaes, as owners and contractors, building permit No. 9110002853 to construct a fence along the front, as well as the north and south sides of their property. As permitted, the fence would be of chainlink construction, 4 feet high, and, except for a set back of 29.5 feet, would enclose the front and side property lines of the property. So constructed, the fence would run a total of 157 linear feet. Consistency of the permits with the Monroe County comprehensive plan and land development regulations Big Pine Key is the primary habitat of the Key Deer, an endangered species, and Monroe County has designated most of Big Pine Key, including the properties at issue in these proceedings, as an area of critical county concern. Pertinent to this case, Section 9.5-479, Monroe County Land Development Regulations (MCLDR), provides: Purpose: he purpose of the Big Pine Key Area of Critical County Concern is to establish a focal point planning effort directed at reconciling the conflict between reasonable investment backed expectations and the habitat needs of the Florida Key Deer which is listed as endangered under the Federal Endangered Species Act. Focal Point Planning Program: Monroe County shall initiate a focal point planning program for the Big Pine Key Area of Critical County Concern that considers the following: The reasonable investment backed expectations of the owners of land within the Big Pine Key Area of Critical Concern; The habitat needs of the Florida Key Deer; The conflicts between human habita-tion and the survival of the Florida Key Deer; The role and importance of fresh-water wetlands in the survival of the Florida Key Deer; Management approaches to reconciling the conflict between development and the survival of the Florida Key Deer; and Specific implementation programs for the Big Pine Key Area of Critical County Concern. The focal point planning program shall be carried out by the director of plan-ning, in cooperation with the officer in charge of the National Key Deer Refuge. The planning program shall include a public participation element, and shall provide for notice by publi-cation of all public workshops or hearings to the owners of land within the Big Pine Key Area of Critical County Concern The focal point planning program for the Big Pine Key Area of Critical County Concern shall be completed with-in twelve (12) months of the adoption of this chapter, and the director of planning shall submit a report together with recommended amendments to the Monroe County Comprehensive Plan and this chapter within thirty (30) days after the completion of the focal point planning program for the Big Pine Key Area of Critical County Concern Interim Regulations: Notwithstanding any other provisions of this chapter, no development shall be carried out on the Big Pine Key Area of Critical County Concern prior to the completion of the focal point planning program required by subsection C of this section and the adoption of amendments to the Monroe County Comprehensive Plan and this chapter except in accordance with the following No development shall be carried out in the Big Pine Key Area of Critical County Concern except for single-family detached dwellings on lots in the Improved Subdivision District or on lots having an area of one (1) acre of more. And, Section 9.5-309, MCLDR, provides: It is the purpose of this section to regulate fences and freestanding walls in order to protect the public health, safety and welfare * * Big Pine Key Area of Critical County Concern: No fences shall be erected here until such time as this chapter is created to provide for the regulation of fences within this ACCC. The foregoing land development regulations were adopted by Monroe County to further and implement the standards, objectives and policies of the Monroe County comprehensive plan. Here, such regulations further the plan's "Generic Designations and Management Policies," contained within the plan's "Criteria for Designating Areas of Particular Concern," to maintain the functional integrity of habitat and, more particularly, the requirement that: Development within areas identified as Key Deer habitat shall insure that the continuity of habitat is maintained to allow deer to roam freely without impediment from fences or other development. Rule 28-20.020(8), Generic Designations, subparagraph 4, Florida Administrative Code. Over the course of the past five years, Monroe County has discussed design criteria for fences on Big Pine Key but has not yet adopted a regulation that would provide for fences within the Big Pine Key Area of Critical County Concern, as mandated by Section 9.5-309, MCLDR, nor has Monroe County amended Section 9.5-479, MCLDR, to permit, pertinent to this case, any development except single-family detached dwellings on lots in the Big Pine Key Area of Critical County Concern. Under such circumstances, it must be concluded that the subject permits issued by Monroe County for the construction of fences in the Big Pine Key Area of Critical County Concern are not consistent with the Monroe County comprehensive plan and land development regulations. Extra legal action and the applicants voiced rationale for fencing their properties Notwithstanding express knowledge by the Moormans, Hornbachers, Daniels and Your Local Fence, that the subject permits were not effective until expiration of the time within the Department was authorized to appeal their issuance, the Moorman, Hornbacher and Daniels fences were erected by Your Local Fence. However, the McRaes, likewise knowledgeable about the time delay in the effectiveness of their permits, abided by existent law, and deferred erecting their fence pending resolution of this dispute. At hearing, proof was offered by the applicants to explain why they desired to fence their property. Proof was also offered to explain why the Hornbachers and Daniels felt a sense of exigency to erect their fences, and why they prevailed on Your Local Fence to erect such fences in the face of express notice from Mr. Moorman (the principal of Your Local Fence) that the permits were not effective and subject to appeal by the Department. According to the Hornbachers, the purpose for their fence was to keep stray dogs and their "leavings" from the yard, to keep the Key Deer that populate the area from eating their vegetation, and to keep uninvited persons and vehicles from entering their property. The later reason was of particular import to the Hornbachers since they were about to leave for their annual vacation in Michigan, and strangers had entered onto their property during their prior absences. Therefore, to provide their residence with a degree of security, they insisted the fence be installed before they left, and before their permit was effective. According to the Daniels, the purpose for their fence was primarily to provide a secure environment for their children.2 In this regard, the proof demonstrates that the Daniels are both police officers with the City of Key West and work the same shift; that they have three children, ages, 7, 4, and 2, that reside at the home and are cared for by an elderly woman in their absence; and that the canal that abuts their backyard, as well as an existent boatramp, represents a potential hazard to the children's safety. Cognizant of such hazard, which was magnified by one child having already slipped down the boat ramp, the Daniels insisted that the fence be installed, and Your Local Fence acquiesced, before their permit was effective. The Moormans offered no compelling reason for having erected their fence prior to the effective date of their permit, but did espouse its purpose. According to Mr. Moorman, the purpose for their fence was to keep the neighbors' two children from playing under his house where he had installed a hot tub, and to keep the Key Deer that populate the area from entering his property and eating any vegetation he might choose to cultivate. According to the McRaes, who have not yet erected their fence, they desire a fence to prevent neighbors' dogs from leaving "droppings" in their yard, and to keep the Key Deer from eating their plants. While each of the applicants have articulated logical reasons to fence their yards, such reasons are not relevant where, as here, the permits were issued as of right. Rather, with regard to the Big Pine Key Area of Critical County Concern, the erection of fences is strictly prohibited until such time as the plan and regulations are amended to allow such use.3 Other considerations At hearing, Mr. Moorman offered proof that the Department had failed to appeal every fence permit issued by Monroe County in the Big Pine Key Area of Critical County Concern, and contended, as a consequence of such failure, that the Department should be precluded from contesting the issuance of the subject permits. Mr. Moorman's contention is not, however, persuasive. Here, the proof demonstrates that the Department's Key West Field Office, to which Monroe County renders its permits, was established in 1983, and that from January 1, 1984 to September 15, 1986, the Monroe County land development regulations did not regulate fences on Big Pine Key and the Big Pine Key Area of Critical County Concern (BPKACCC) did not exist. Effective September 15, 1986, the Monroe County land development regulations were adopted in their current form and, among other things, created the BPKACCC and prohibited fencing within such area. Accordingly, prior to September 15, 1986, there was no prohibition against erecting fences in the BPKACCC, and no reason for the Department to question the propriety of such develop-ments.4 Since the effective date of the current regulations, the Department has, as contended by Mr. Moorman, failed to appeal some permits for fencing in the BPKACCC. Such failure was, however, persuasively shown to have occurred as a consequence of severe understaffing, which inhibited the Department's ability to review all permits issued by Monroe County in a timely fashion (i.e., before the appeal period expired), and the breach of a memorandum of understanding entered into between the Department and Monroe County, and not as a consequence of any position adopted by the Department that fencing in the BPKACCC was permissible. Accordingly, the Department's appeal of the subject permits is not inconsistent with any position it has previously taken with regard to the propriety of fencing in such area.5 Moreover, neither the applicants nor Your Local Fence made any inquiry of the Department as to why some permits were appealed and others were not, or requested that the Department waive its appeal period, prior to erecting their fences. Under such circumstances, it cannot be reasonably concluded that the Department misled any applicant so as to bar it from contesting the propriety of the subject permits, and those who chose to erect their fences knowing their permits were not yet effective acted at their peril.6
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that the Florida Land and Water Adjudicatory Commission enter a final order reversing Monroe County's decision to issue building permit Nos. 9110002231, 9110002807, 9110002853, and 9110003165, and deny the applications of the Moormans, Hornbachers, McRaes, and Daniels, as owners, as well as your Local Fence, as contractor, where pertinent, for such permits. It is further recommended that such final order specify that there are no changes in the subject proposals that would make them eligible to receive the permits as requested. DONE AND ENTERED in Tallahassee, Leon County, Florida, this 30th day of April 1992. WILLIAM J. KENDRICK Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of Division of Administrative Hearings this 30 day of April 1992.
Findings Of Fact On or about April 5, 1988, Petitioner filed an application for a variance to replace an existing four foot fence extending to the seawall on his property at 643 Harbor Island, Lot 12 Island Estates, Clearwater, Florida. The subject property is zoned RS-6. Petitioner had already replaced his previous fencing prior to the filing of this application with wooden fencing which extends on the north and south side of his property through the setback to the seawall. The Development Code Adjustment Board considered Petitioner's application at its meeting on May 12, 1988, and based upon the Petitioner's explanation that the variance was sought simply to replace an existing fence that had termite damage, the Board approved his application on a 3 to 2 vote. The variance approval was conditioned upon the Petitioner obtaining a building permit within one month of the approval. Petitioner failed to obtain the required building permit, and no excuse was offered for this failure. Therefore, he had to reapply for the variance. On or about July 21, 1988, Petitioner filed his variance reapplication. The Development Code Adjustment Board considered this reapplication on August 25, 1988, at which time Petitioner again stated that he was simply replacing an existing fence. Due to a tie vote, consideration of the reapplication was continued to the Board's meeting of September 8, 1988. At the meeting on September 8, he explained for the first time that while the fencing on the south side of his property was simply the replacement of a previous fence which had extended to the seawall, the fencing on the north side was not. The previous fence on the north side of his property had stopped prior to the fifteen foot setback. With this clarification, the Board approved his variance reapplication for the south side of his property, but denied the variance for the north side. Petitioner has timely appealed the denial of his variance reapplication as it relates to the north side of his property. Petitioner testified at hearing that prior to the construction of his current wooden fence, he had a wood fence all the way to the seawall on the south side of his property. Since he had to replace that fencing due to termite damage, he took the opportunity to also replace and extend the wooden fencing on the northern side of his property through the setback. This action was not based on any hardship, but simply because he and his family felt it would look better if he had the same fencing on both sides of his property. It is clear and undisputed that Petitioner constructed a new fence on the north side of his property through the setback without obtaining a variance or permit. He did this simply for aesthetic reasons, and not due to any hardship. He failed to disclose this in his applications, or when the Board met on May 12 and August 25, 1988 to consider this matter.
Conclusions An Administrative Law Judge of the Division of Administrative Hearings has entered an Order Closing File in this proceeding. A copy of the Order is attached to this Final Order as Exhibit A. |
Other Judicial Opinions REVIEW OF THIS FINAL ORDER PURSUANT TO SECTION 120.68, FLORIDA STATUTES, AND FLORIDA RULES OF APPELLATE PROCEDURE 9.030 (b) (1) (C) AND 9.110. TO INITIATE AN APPEAL OF THIS ORDER, A NOTICE OF APPEAL MUST BE FILED WITH THE DEPARTMENT’S AGENCY CLERK, 2555 SHUMARD OAK BOULEVARD, TALLAHASSEE, FLORIDA 32399-2100, WITHIN 30 DAYS OF THE DAY THIS ORDER IS FILED WITH THE AGENCY CLERK. THE NOTICE OF APPEAL MUST BE SUBSTANTIALLY IN THE FORM PRESCRIBED BY FLORIDA RULE OF APPELLATE PROCEDURE 9.900(a).. A COPY OF THE NOTICE OF APPEAL MUST BE FILED WITH THE APPROPRIATE DISTRICT COURT OF APPEAL AND MUST BE ACCOMPANIED BY THE FILING FEE SPECIFIED IN SECTION 35.22(3), FLORIDA STATUTES. YOU WAIVE YOUR RIGHT TO JUDICIAL REVIEW IF. THE NOTICE OF APPEAL IS NOT TIMELY FILED WITH THE AGENCY CLERK AND THE APPROPRIATE DISTRICT COURT OF APPEAL. MEDIATION UNDER SECTION 120.573, FLA. STAT., IS NOT AVAILABLE WITH RESPECT TO THE ISSUES RESOLVED BY THIS ORDER. FINAL ORDER NO. DCA 10-GM-024 CERTIFICATE OF FILING AND SERVICE I HEREBY CERTIFY that the original of the foregoing has been filed with the undersigned Agency Clerk of the Department of Community Affairs, and that true and correct copies have been furnished by U.S. Mail to each of the persons listed below on this day of _ , 2010. Paula Ford Agency Clerk By U.S. Mail The Honorable J. Lawrence Johnston Administrative Law Judge Division of Administrative Hearings The Desoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 Brian Haas, Esq. Bradley Johnson Law Firm, P.A. P.O. Box .1260 Lake Wales, Florida 33859-1260 Michael T. Gallaher, Esq. Patterson & Myers, P.A. P.O. Box 1079 _Lake Wales, Florida 33859-1079 Linda Loomis Shelley, Esq. Fowler White Boggs Banker P.A. 101 North Monroe Street, Suite 1090 Tallahassee, Florida 32301 By Hand Delivery Lynette Norr Assistant General Counsel Department of Community Affairs
