The Issue The central issue in this case is whether Sunrise is entitled to the permit for the construction of the proposed marina.
Findings Of Fact Based upon the testimony of the witnesses and the documentary evidence received at the hearing, I make the following findings of fact: On or about February 3, 1988, Sunrise submitted an application to the Department for permission to construct a 33 slip marina to be located at 2701 D. Sunrise Boulevard, Fort Lauderdale, Florida. The dock facilities to be built include four sections designed to accommodate yachts 70 feet or longer in length. The proposed marina would be located in a body of water known as Coral Bay. The bay opens onto the Intracoastal Waterway at the Sunrise Boulevard bridge. This marina is subject to the Department's permitting requirements under Chapter 403, Florida Statutes, and Chapter 17-12, Florida Administrative Code. The proposed marina does not require dredging. The only filling would be incidental to the placement of the pilings (supporting the dock system) and the rip rap (recommended by the Department to enhance fish habitation). Coral Bay is a Class III water which currently meets water quality standards for such classification. The water body east of the proposed marina is classified as an Outstanding Florida Water. On or about October 12, 1988, the Department issued an Intent to Issue the permit requested by Sunrise. The notice of the Intent to Issue was published on October 24, 1988. Thereafter, petitioners timely filed challenges to the proposed project. As specific conditions of the permit, the Department required the following provisions which are pertinent to the Kaye challenge: The required 300 cubic yards of natural limestone 1-3' diameter rip rap shall be placed at the toe of the bulkhead before the construction of the marginal pier. No sewage shall be discharged into the marina basin or other waters of the State. Sewage pump out facilities shall be provided, used and at all times maintained and operable. A permit is required from Broward County and shall be acquired to validate this permit. An effective means of turbidity control, such as, but not limited to, turbidity curtains shall be employed during all operations that may create turbidity so that it shall not exceed 29 Nephelometric Turbidity Units above natural background value. Turbidity control devices shall remain in place until all turbidity has subsided. * * * 8. Manatee Construction Conditions (copy enclosed) shall be implemented and in effect and Manatee Caution Signs and Educational Displays, per enclosed directive, shall be implemented. The proposed marina will occupy the southern half of Coral Bay. The Kaye property is north of the proposed site. Further north are a cooperative of townhome units and a yacht club. Access to the bay and to the Intracoastal Waterway is afforded these properties via a channel 75 feet in width which divides the bay waters. The proposed marina would not intrude into the access channel. There is an existing concrete seawall which extends vertically along the shoreline of the subject property. The parking and structures to be built incidental to the marina have been designed to require run off or drainage landward and not into Coral Bay. The water depth in the proposed marina is approximately 8 to 9 feet except along the shoreline where the depth is approximately 5 feet. It is not anticipated that the operation of the yachts will cause a significant disturbance of the marina basin floor. 10 The tidal flushing in Coral Bay is sufficient to remove incidental levels of pollutants which may be discharged. Therefore, the proposed marina will not have a significant impact on water quality. The incidental pollutants which may be expected are such items as paint leaching or minor fuel spills. Since the marina will not have fueling facilities and since sewage pump out facilities are mandated, it is not anticipated that these forms of waste will be significant to this project. The proposed marina will not have an adverse effect on the flow of water in the basin nor should it cause erosion or sedimentation. Further, it is not anticipated that the marina will adversely affect the water quality in the Outstanding Florida Water near the site. Although no water testing was performed at this site, the biota appears healthy. A number of fishes actively forage in the waters and algae can be observed down to a depth of 6 feet. Consequently, the water is clear enough to support growth to that depth. A number of birds feed and rest in the subject area. The docks are likely to displace the birds' direct access to feeding areas but it is anticipated that the rip rap will increase the surface areas available for organism development and thereby enhance the environment for fishes. While the docks will result in an estimated 16,700 square feet of shadowing of open water, given the benefits of the required rip rap, the overall impact should not be negative. Construction began on the Sunrise Boulevard bridge approximately three years ago. Manatees have not been observed at the proposed site since the work began. However, because it is known that manatees frequented this area before the construction and may again, manatee construction conditions and manatee signage provisions have been required by this permit. The construction provisions will require Sunrise to cease all construction upon the sighting of a manatee until such time as the animal vacates the area. Further, the signage provisions will require Sunrise to display warnings and to inform all marina users of the possibility of manatees in the area. Immediate notification to the appropriate authorities is required in the event a manatee is injured. It is anticipated that the proposed marina will displace transient use of Coral Bay. This loss when weighed against the benefits of having a docking facility available to yachts (with the amenities of power and fresh water) does not establish a negative recreational impact on the proposed site. The 75 foot channel is sufficient for safe passage to and from the Intracoastal Waterway and the properties owned by Sunrise and the Kayes. The proposed marina will not adversely affect recreational use of the properties. The project is intended to be of a permanent nature. The project will have no effect on significant historical and archaeological resources. There are no outstanding permits which, when reviewed in connection with this project, would establish that the water quality will be adversely affected by the proposed marina. It is not anticipated that the proposed marina, subject to the general and specific conditions of the permit, will adversely affect the public health, safety, or welfare. The negative affect to the property of others is minimal given the overall enhancement to the recreational and biological environments.
Recommendation Based on the foregoing, it is RECOMMENDED: That the Department of Environmental Regulation enter a final order approving the permit for Sunrise Bay Harbour, Inc. DONE and RECOMMENDED this 11th day of May, 1989, in Tallahassee, Leon County, Florida. JOYOUS D. PARRISH Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32301 (904)488-9675 Filed with the Clerk of the Division of Administrative Hearings this 11th day of May, 1989. APPENDIX RULINGS ON THE PROPOSED FINDINGS OF FACT SUBMITTED BY PETITIONER KAYE: To the extent that paragraph 1 concludes the Department did not consider the Canrael permit in evaluating the Sunrise permit, such fact is accepted. However, under the facts of this case, the Department was not required to consider such permit since it was not contemplated that both projects could or would be built. The Canrael permit had expired prior to October 26, 1988, and Canrael formally abandoned its interest, if any, in the permit at the hearing in this cause. Paragraph 2 is rejected as argument, irrelevant or immaterial to the issues of this case. Paragraph 3 is rejected as contrary to the weight of the credible evidence. Paragraph 4 is accepted. Paragraph 5 is rejected as contrary to the weight of the credible evidence. The first two sentences of paragraph 6 are accepted but are irrelevant. The last sentence is rejected as contrary to the weight of the evidence or argument. Paragraph 7 is accepted. Paragraph 8 is rejected as argument or contrary to the weight of the evidence presented. Paragraph 9 is rejected as argument and is either contrary to the weight of the evidence presented or unsupported by evidence in this cause. RULINGS ON THE PROPOSED FINDINGS OF FACT SUBMITTED BY THE DEPARTMENT: Paragraphs 1 through 23 are accepted. With the deletion of the phrase "both lawful and unlawful," paragraph 24 is accepted. Paragraphs 25 through 29 are accepted. Paragraph 30 is rejected as irrelevant, immaterial or unnecessary to the resolution of the issues in this case. RULINGS ON THE PROPOSED FINDINGS OF FACT SUBMITTED BY SUNRISE: Paragraph 1 is accepted. Paragraph 2 is accepted as stipulated by the parties at the outset of this case. Paragraph 3 is accepted. The parties did not oppose the tender of Mr. Nero in the categories listed. Paragraphs 4 through 7 are accepted. To the extent that paragraph 8 states this proposed project is within Class III waters, such paragraph is accepted. However, to the east of Coral Bay is a body listed as Outstanding Florida Water. Consequently any suggestion otherwise is rejected as contrary to the facts of this case. Paragraphs 9 through 22 are accepted. Paragraph 23 is accepted. Paragraph 24 is rejected as not supported by the evidence presented in this cause. Paragraph 25 is accepted but is unnecessary irrelevant or immaterial. Paragraph 26 is accepted. Paragraph 27 is rejected as irrelevant, immaterial, or unnecessary to the resolution of issues in this case. Paragraph 28 is accepted but is irrelevant immaterial, or unnecessary to the resolution of issues in this case. Paragraph 29 is rejected as contrary to the weigh of the evidence. Manatees have not been seen since the bridge construction began approximately three years ago. Exactly when, prior to that, a manatee was within Coral Bay is not disclosed by this record. Paragraph 30 is rejected as irrelevant. Paragraph 31 is rejected as irrelevant. Paragraphs 32 and 33 are rejected as irrelevant. COPIES FURNISHED: For Petitioner Canrael: Mary F. Smallwood Ruden, Barnett, McClosy, Smith, Schuster & Russell, P.A. 101 North Monroe Street Monroe-Park Tower, Suite 1010 Tallahassee, Florida 32301 For Petitioners Kaye: Brion L. Blackwelder JACOBSON AND FINKEL 3363 Sheridan Street, Suite 204 Hollywood, Florida 33021 Jack and Harriet Kaye 1100-1120 Seminole Drive Fort Lauderdale, Florida 33304 For Sunrise Bay: William Robert Leonard Leonard & Morrison P.O. Box 11025 Fort Lauderdale, Florida 33339 For DER: Wayne L. Schiefelbein Assistant General Counsel Department of Environmental Regulation Twin Tower Office Building 2600 Blair Stone Road Tallahassee, Florida 32399-2400 Dale H. Twachtmann, Secretary Department of Environmental Regulation Twin Towers Office Building 2600 Blair Stone Road Tallahassee, FL 32399-2400 Daniel H. Thompson General Counsel 2600 Blair Stone Road Tallahassee, FL 32399-2400
The Issue Whether Respondent, Paradise One Realty, discriminated against Petitioner, Yanira Santoni, in violation of the Florida Fair Housing Act; and, if so, the relief to which Petitioner is entitled.
Findings Of Fact On May 1, 2014, Petitioner rented an apartment in Kissimmee, Florida, for a one-year term. The apartment Petitioner rented is owned by James and Marcela Stanislau (the “Owners”). Paradise One served as the management company for the property and was in charge of leasing the unit. Paradise One is owned by Beverly Simmons-Henry (“Ms. Simmons”), who is a licensed real estate agent. Ms. Simmons handled the rental transaction for the apartment Petitioner rented. Petitioner first approached Ms. Simmons seeking to rent an apartment in April 2014. At that time, Paradise One was attempting to sell the Owner’s apartment. Paradise One had not been successful in attracting a buyer. Therefore, the Owners were amenable to allowing Paradise One rent the apartment until a buyer could be found. Petitioner rented the apartment through HUD’s Section 8 program. Under Section 8, HUD assists qualified participants pay for housing. See 42 U.S.C. § 1437f. To rent a dwelling using Section 8 funds in Kissimmee, Florida, the participant applies through the Osceola County Human Services office (the “Housing Authority”). Using Section 8 funds, the Housing Authority pays most of the monthly rent on a leased unit directly to the landlord. The program participant pays the balance of the rent. Lizette Pagan works as a Section 8 Program Coordinator for the Housing Authority. Ms. Pagan assisted Petitioner secure a housing voucher from Section 8 to rent the apartment from Paradise One. Ms. Pagan testified that the maximum housing allowance Petitioner could receive through the Section 8 program in 2014 was $729 a month. If the property owner/landlord agreed to rent to the participant, they must accept the housing allowance calculated by Section 8 and no more. The property owner/landlord’s agreement to rent to a Section 8 participant is completely voluntary. In 2014, Paradise One had listed the rental price for the apartment at $775 a month. However, Ms. Simmons agreed to lease the apartment to Petitioner through Section 8 for the reduced rate of $729 a month. Of the $729 rental amount, Section 8 paid $559. Petitioner paid the balance of $170.00. Per Section 8 policy, Petitioner could only enter a one-year lease for the apartment. Petitioner conceded that she could not have rented the apartment without the assistance of the Section 8 program. Ms. Pagan further explained that if a landlord desired to renew the lease at a higher rental amount following the first lease term, Section 8 would conduct a reasonableness study to ensure that the new lease amount was reasonable within the market area. Ms. Pagan stated that the payment standard for a one- bedroom apartment in Osceola County in 2015 would have been approximately $794.00, including utilities. If, however, Section 8 found the new rental amount unreasonable, Section 8 would reject the lease, and the landlord would be free to either renew the lease at the “reasonable” amount or not participate in the Section 8 program. Ms. Pagan was not aware of any legal obligation for a property owner/landlord to renew a Section 8 lease beyond the first year.2/ Ms. Simmons testified that the Owners were not pleased to learn that Paradise One had rented their property through the Section 8 program because they had had problems with Section 8 leases in the past. Therefore, the Owners instructed Ms. Simmons to keep their apartment unit on the market for sale. The apartment remained for sale during the year Petitioner rented the property. Before signing the lease agreement, Petitioner expressed to Ms. Simmons that she desired a two-year lease. Ms. Simmons informed Petitioner that the Owners would only rent the apartment for one year because they still desired to sell the unit. Therefore, Petitioner signed a one-year lease that ran from May 1, 2014, through April 30, 2015. However, Petitioner testified that Ms. Simmons told her that if she complied with all the rules and regulations of her housing assistance program, she could stay in the apartment for two years. Petitioner practices Santeria. Petitioner described the Santeria religion as similar to Catholicism, but presented in “an African way.” Petitioner expressed that she believes in the same God and Jesus as the Catholic Church. As described in Church of Lukumi Babalu Aye v. City of Hialeah, 508 U.S. 520, 524, 113 S. Ct. 2217, 2222 (1993): [T]he Santeria religion . . . originated in the 19th century. When hundreds of thousands of members of the Yoruba people were brought as slaves from western Africa to Cuba, their traditional African religion absorbed significant elements of Roman Catholicism. The resulting syncretion, or fusion, is Santeria, "the way of the saints." [Those who practice Santeria] express their devotion to spirits, called orishas, through the iconography of Catholic saints, Catholic symbols are often present at Santeria rites, and Santeria devotees attend the Catholic sacraments. * * * The Santeria faith teaches that every individual has a destiny from God, a destiny fulfilled with the aid and energy of the orishas. The basis of the Santeria religion is the nurture of a personal relation with the orishas . . . . Petitioner stated that her religion was passed down to her from her mother and grandmother. Santeria encourages its adherents to maintain certain religious objects throughout their homes. These items assist one in prayers to God and the orishas (saints), as well as cleanse the house from evil spirits. True to her faith, shortly after moving into the apartment, Petitioner arranged a number of religious artifacts throughout her dwelling. Next to her front door, she placed a coconut. The coconut represents “Eleggua,” the most important “saint” who opens doors to conduct one to the right spot in their journey through life. Eleggua allows good to pass into a home and keeps harm out. Petitioner also located a pot in her living room that she used to pray to Eleggua. In addition, Petitioner displayed an Indian (Native American) figure on a table in her living room. Petitioner also propped machetes on either side of her front door, in all the corners of her front room, and in the form of crosses on her walls. The machetes served to cut negative energy from coming inside her home. Petitioner sat a rag doll in a rocking chair and leaned a stick against a wall to represent her guardian angels. Petitioner set out dozens of cups of water throughout the apartment. The water served to refresh angels who visited her home, as well as to absorb negative energy. Petitioner also lit candles to the Santos (saints) as part of her prayers. The specific discriminatory act about which Petitioner complains is that Paradise One (through Ms. Simmons) refused to renew her lease to the apartment beyond the first year. Despite Petitioner’s belief that Ms. Simmons promised that she could rent the apartment for two years, in a conversation before her lease term ended, Ms. Simmons announced to Petitioner that Paradise One was not going to rent the apartment to her any longer. During this conversation, Petitioner heard Ms. Simmons make several questionable comments about her religious practices. Petitioner concluded that Ms. Simmons’ denial of her request to renew her lease was based on her religion. Petitioner testified that she did not tell Paradise One or anyone else at the apartment complex that she practiced Santeria. Therefore, Petitioner surmised that the only way Ms. Simmons knew about her religion was if someone had disclosed this fact to Paradise One, or if they had seen the inside of her apartment and observed her religious objects. At the final hearing, Petitioner described an event that occurred in June 2014, when a maintenance man entered her apartment to perform repairs. During his visit, the maintenance man became nervous upon seeing all of her religious artifacts. Following this visit, Petitioner expressed that Ms. Simmons’ attitude towards her completely changed. Although she did not know for sure, Petitioner believes that the maintenance man reported what he saw to Ms. Simmons.3/ Following this incident, Petitioner believes that Ms. Simmons reached unfounded and unjustified conclusions regarding her religious beliefs. Petitioner believes that when Ms. Simmons learned that she practiced Santeria, Ms. Simmons decided not to allow her to remain on the property or to renew the lease to the apartment. Petitioner asserts that Ms. Simmons did not appreciate or understand Santeria and believed that she worships the devil and practices witchcraft. At the final hearing, both parties described a notable encounter between Petitioner and Ms. Simmons involving mustard seeds. In March or April 2015, Petitioner and a male companion visited the Paradise One office hoping to talk to Ms. Simmons. Petitioner intended to ask Ms. Simmons if she could renew her lease for the apartment. Ms. Simmons was not present in the office at that time. Therefore, Petitioner left shortly thereafter. Upon returning to her office, Ms. Simmons detected small seeds scattered across the lobby floor. Ms. Simmons later viewed a video recording of the lobby which appeared to show that Petitioner’s companion, while sitting in the lobby, reached into his pocket, pulled out a handful of some substance (the seeds), and tossed it discreetly onto the floor. After examining the seeds, Ms. Simmons believed they were mustard seeds. Ms. Simmons called Petitioner to discuss the incident. During this phone call, Ms. Simmons informed Petitioner that she would not be offered the opportunity to renew her lease for a second year. Ms. Simmons told Petitioner that the Owners were selling the property. Petitioner testified that during their conversation, Ms. Simmons called her a “witch.” Petitioner further claimed that Ms. Simmons accused her of practicing voodoo and that she had evil artifacts and demonic saints displayed throughout her apartment. Ms. Pagan of the Housing Authority recalls a similar conversation with Ms. Simmons in March 2015. Ms. Pagan had called Ms. Simmons after Petitioner complained that Paradise One had wrongfully retained a portion of her security deposit.4/ Ms. Pagan testified that Ms. Simmons told her that Petitioner was practicing witchcraft in her unit and that such activity violated her apartment lease. Ms. Pagan also relayed that Ms. Simmons told her that a pregnant employee of Paradise One, who was supposed to perform a move-out inspection of Petitioner's unit, was afraid to go into the apartment for fear of the safety of her unborn child. Ms. Simmons recalled talking to both Petitioner and Ms. Pagan about the mustard seed incident. However, she denied making any statements to them about Petitioner’s religion. Ms. Simmons testified that the only thing she discussed with Ms. Pagan was the return of Petitioner's security deposit. Despite the comments she alleges Ms. Simmons made, Petitioner stated that no one from Paradise One prevented her from practicing Santeria while she rented the apartment. Neither was she instructed to remove her religious items from the property. At the final hearing, Ms. Simmons denied refusing to renew Petitioner’s lease agreement based on her religion. Ms. Simmons stated that she had never been inside Petitioner's apartment to see her religious objects. Ms. Simmons denied ever discussing Santeria with Petitioner. Ms. Simmons testified that she had no knowledge of Petitioner's religious beliefs until around April 2015. Ms. Simmons further denied ever agreeing to allow Petitioner to remain in the property for two years. Ms. Simmons explained that Paradise One did not offer Petitioner the opportunity to renew her lease because the Owners desired to sell the apartment. Ms. Simmons relayed that the Owners had purchased the property as an investment. The Section 8 rental price, however, adversely affected their ability to sell or lease the property. The reduced rental price made it difficult for the Owners to justify their desired sale price or a higher lease amount. It did not make financial sense to potential buyers to purchase the property if the prospective return on the investment was only the Section 8 rental amount. Ms. Simmons asserted that the Owners, not she, made the ultimate decision not to renew the lease with Petitioner for a second year. Ms. Simmons expressed that she notified Petitioner in January 2015 that the Owners did not intend to re-rent the apartment to Petitioner. Petitioner acknowledged the Owners’ decision in a letter she wrote to the Housing Authority, dated February 2, 2015. However, Petitioner explained that when she authored the letter, she was under the impression that the Owners had already sold the property. On February 20, 2015, Ms. Simmons prepared a letter officially notifying Petitioner that her lease would not be renewed. Ms. Simmons represented that she delivered the letter to Petitioner. Petitioner denied receiving this letter. After leaving the apartment at the end of April 2015, Petitioner continued in the Section 8 program in another county and located another apartment to rent. On May 1, 2015, Paradise One re-rented the apartment for $800.00 to a non-Section 8 renter. The same tenant renewed the lease in 2016 for $825.00. As of the date of the final hearing, despite Ms. Simmons’ representation to Petitioner that the Owners were selling the apartment, the unit remains unsold and is, in fact, being advertised for rental. Based on the evidence and testimony presented at the final hearing, Petitioner did not demonstrate, by a preponderance of the evidence that Paradise One discriminated against her based on her religion in violation of the Florida Fair Housing Act.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Florida Commission on Human Relations issue a final order finding that Respondent, Paradise One, did not commit a discriminatory housing practice against Petitioner, Yanira Santoni, and dismiss her Petition for Relief. DONE AND ENTERED this 25th day of January, 2017, 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 25th day of January, 2017.
The Issue Whether Respondent violated Sections 475.25(1)(b) and (d)1, Florida Statutes, and, if so, what penalty should be imposed.
Findings Of Fact Petitioner, Florida Department of Business and Professional Regulation, Division of Real Estate (Department), is a state government agency charged with the responsibility and duty to prosecute administrative complaints pursuant to the laws of the State of Florida, in particular Section 20.165, Florida Statutes, and Chapters 120, 455, and 475, Florida Statutes, and the rules promulgated thereto. Respondent, Brooks A. Strawser (Strawser), is now and was at all times material hereto a licensed real estate broker in the State of Florida having been issued license number 0412070 in accordance with Chapter 475, Florida Statutes. The last license issued to Strawser was as a broker with a mailing address of 600 Biltmore Way, Suite 519, Coral Gables, Florida 33134-7530. In January, 1992, Bernard Moskowitz (Moskowitz) entered into two property management agreements by which Strawser was to rent, lease, operate and manage properties owned by Moskowitz and his wife. The properties were the Sabrian Apartments at 45 Antilla Avenue and 42 Phoentia Avenue in Coral Gables and the Sunset Garden Apartments at 7101 Southwest 89th Court in Miami. Strawser began performing services pursuant to the agreements in February, 1992. His responsibilities included collecting rent and security deposits from the tenants, issuing receipts for the monies received and disbursed in connection with the management of the properties, negotiating leases, and rendering itemized statements of receipts, expense charges and accruals to Moskowitz. Strawser used the operating and the security accounts which Moskowitz maintained for each of the apartments for the deposit of rents and security deposits. Moskowitz was the only authorized signatory for the accounts. Although the agreements called for Strawser to collect the rents and security deposits from the tenants, in practice the on-site building managers, who were paid by Moskowitz, performed those services. Strawser would receive the checks and money orders from the on-site managers and deposit them in the appropriate account. Deposit slips were made out in triplicate. Strawser would either mail or give Moskowitz the deposit slips and would give Moskowitz a monthly summary report. The bank would send Moskowitz the deposit slips and monthly statements. By letter dated February 22, 1993, Strawser advised Moskowitz that he planned to withdraw from managing the apartments, effective March 31, 1993, or sooner if Moskowitz so desired. Strawser advised that by March 15 his firm would prepare all papers, letters, files, etc., to be handed over to the new management. He also advised that on or before March 31 he would present Moskowitz with all bank books, check books, etc., and conclude his fiscal responsibility upon payment of all professional fees due him. After the agreements terminated, a dispute arose between Strawser and Moskowitz. Strawser claimed that Moskowitz owed him management fees pursuant to the Sunset Gardens Apartments Property Management Agreement for the month of February 1993, totalling approximately $1,000. Moskowitz claimed that Strawser miscalculated the amount and that the actual amount was less. Moskowitz also claimed setoffs exceeding $1,000 due to other matters. On January 7, 1994, Strawser filed a county court claim against Moskowitz, seeking $1,006.93 as the amount of the unpaid property management fees. At the time of the hearing, Moskowitz had not yet paid the fees. Strawser waited to file the county court claim because he hoped to collect the fees without having to file a lawsuit. Moskowitz hired Pacific Real Estate Management to succeed Strawser as property manager of the Sunset Gardens Apartments, beginning March 1, 1993. Strawser gave Lorna Lopez, office manager of Pacific Real Estate Management, the checkbook, estimates for repairs for hurricane damage and a folder on the manager for Sunset Gardens Apartments. Later, Ms. Lopez requested Strawser to give her any leases he had for Sunset Gardens Apartments. Strawser said he would give the leases to her in time after he had settled with Moskowitz. Ms. Lopez advised Moskowitz of her conversation with Strawser and Moskowitz called Strawser, who told Moskowitz that he would not turn over the records until he had been paid. Later, Ms. Lopez again requested the leases and Strawser advised her that he did not have any leases. Moskowitz put the apartments located at 42 Phoentia Avenue up for sale. In May 1993, Moskowitz's attorney, Ira M. Witlin, contacted Strawser and requested that he release the records for the 42 Phoentia Avenue property. Strawser advised Mr. Witlin that Moskowitz owed him $1000 for management of the Sunset Gardens Apartments. He further told Mr. Witlin that he was not sure exactly what records he had, but if he were paid the money relating to his fees on the Sunset Gardens Apartments he would cooperate and look to see what records he had on the 42 Phoentia Avenue apartments. Mr. Witlin sent a letter dated June 2, 1993, to Strawser setting forth his recollection of their conversation. A few days after Mr. Witlin sent the letter, Strawser called Mr. Witlin advising that he had received the letter and requesting Mr. Witlin to call his attorney. In February, 1993, Strawser received an insurance settlement check for hurricane damage to Sunset Gardens Apartments. He turned the check over to Moskowitz. In July, Strawser called Moskowitz and told him that he had received a check from the insurance company for hurricane damage to Sabrian Apartments. Strawser told Moskowitz that he would give him the insurance settlement check and the other documents if Moskowitz would give him the $1,000 which Strawser claimed he was owed. Moskowitz called the insurance company and requested that the insurance check be reissued. The insurance company reissued a check and sent it directly to Moskowitz.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a Final Order be entered finding that Brooks Strawser violated Sections 475.25(1)(b) and (d)1, Florida Statutes and imposing the following discipline: Reprimand. Administrative fine of $2,000. One year probation, during which time Respondent must provide to the Florida Department of Business and Professional Regulation, Division of Real Estate, Legal Section, Hurston Building, North Tower, Suite N-308, 400 West Robinson Street, Orlando, Florida 32801-1772, satisfactory evidence of having completed a 30-hour postlicensure broker management course. DONE AND ENTERED this 27th day of June, 1994, in Tallahassee, Leon County, Florida. SUSAN B. KIRKLAND 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 27th day of June, 1994. APPENDIX TO RECOMMENDED ORDER, CASE NO. 94-779 To comply with the requirements of Section 120.59(2), Florida Statutes (1993), the following rulings are made on the parties' proposed findings of fact: Petitioner's Proposed Findings of Fact. Paragraphs 1-4: Accepted. Paragraph 5: The first two sentences are accepted. The last three sentences are rejected as unnecessary detail. Paragraphs 6-8: Accepted. Paragraph 9: The first four sentences are accepted. The remainder of the paragraph is rejected as subordinate to the facts actually found. Paragraph 10: Accepted in substance. Paragraph 11: The first, second, third, and sixth sentences are accepted in substance. The remainder of the paragraph is rejected as subordinate to the facts actually found. Respondent's Proposed Findings of Fact. Paragraphs 1-4: Accepted. Paragraph 5: The first two sentences are accepted. The last three sentences are rejected as unnecessary detail. Paragraphs 6-8: Accepted. Paragraphs 9-10: Accepted in substance. Paragraph 11: The first sentence is rejected as not supported by the greater weight of the evidence. The second sentence is accepted. Paragraphs 12-13: Accepted in substance. Paragraph 14: Rejected as not supported by the greater weight of the evidence. Paragraphs 15-17: Rejected as constituting argument. COPIES FURNISHED: Theodore R. Gay, Esquire Department of Business and Professional Regulation 401 Northwest 2nd Avenue, Suite N-607 Miami, Florida 33128 Sheldon R. Rosenthal, Esquire Suite 1040 City National Bank Building 25 West Flagler Street Miami, Florida 33130 Jack McRay Acting General Counsel Department of Business Regulation Northwood Centre 1940 North Monroe Street Tallahassee, Florida 32399 Darlene F. Keller Division Director Division of Real Estate 400 West Robinson Street Post Office Box 1900 Orlando, Florida 32802-1900
Findings Of Fact At all times here involved Bernadine Geary was registered with FREC as a broker and Active Firm Member of Florida Real Estate Enterprises, Inc., a corporate broker, and William J. Geary was registered as a real estate salesman working for the corporate broker, Florida Real Estate Enterprises, Inc. Florida Real Estate Enterprises, Inc. entered into a contract to sell Bird Bay Village Condominiums by providing a salesman, William J. Geary, at the site developed by Valencia Development Corp. Although the exact relationship between Bird Bay Village and Valencia Development Corporation was not clearly established it appears that the former handled the sales of the condominiums built by the latter and Bird Bay Village was a subsidiary of Valencia Development Corporation or they had common ownership. During the latter part of 1974 meetings were held by representatives of Valencia Development Corporation and Atlantic Equities, Inc. to reach an agreement whereby the latter would refer its clients owning an interest in undeveloped Florida land to Valencia Development Corporation who would negotiate with these people to exchange their interest in land for condominiums in Bird Bay Village. The understanding reached between the negotiators was memorialized in Exhibit 1, a letter from Valencia Development Corporation to Atlantic Equities dated October 18, 1974. Therein Atlantic Equities agreed to refer their clients to Valencia Development and if they purchased a condominium Valencia Development would pay Atlantic Equities a commission. William J. Geary attended two meetings which resulted in the agreement described in Exhibit 1. On November 22, 1974, Folmer and Rita Reich entered into a contract to transfer their equity in undeveloped land in Florida as down payment on a condominium at Bird Bay Village (Exhibit 5). William J. Geary negotiated the sale of the condominium to the Reichs. No evidence was presented that any misrepresentations were made to induce this sale or that the Reichs were advised in any manner regarding continuation of payments on their contracts for deed representing their equity in the land exchange. They did exchange, or purport to exchange, an equity in real property for other real property or an equity therein.
The Issue Whether Respondent, IMT-LB Central Florida Portfolio, LLC (Respondent), committed a discriminatory practice in violation of Chapter 760, Florida Statutes (2009).1
Findings Of Fact Respondent owns and/or operates a residential rental property located at 4400 Martin’s Way, Orlando, Florida. The property, identified in this record as Village Park Apartments (Village Park), consisted of a two-story, multi-building, multi- apartment complex. Sometime in late October 2009, Petitioner leased an apartment at Village Park. Petitioner’s apartment was on the second floor and no other apartments were above his. Petitioner’s lease agreement required that Petitioner obtain and provide public utilities for his apartment. Although Petitioner claims he did not timely receive a copy of his lease in order to be on notice of this provision, the record is clear that after Petitioner became aware of the provision, he did not obtain public utilities for the apartment. Shortly after Petitioner received a bill for utility service for his apartment from Respondent in December 2009, Petitioner complained to governmental authorities about conditions at the apartment complex. With regard to the conditions of his living unit, Petitioner maintained there was a roof leak, a vanity pipe leak, and a non-working toilet. Ms. Johnson, an inspector for the City, came out to Village Park and inspected the unit. She found that the toilet and vanity required repair. She further determined that Respondent would need to get a certified roofing person to verify the condition of the roof, and to certify to the City that the roof was water tight. It was Ms. Johnson’s position that water damage was evident on the ceiling in Petitioner’s unit, and that Respondent would need to get a certified roofing person to verify the condition of the roof, as well as someone to restore the interior of Petitioner’s unit by repairing and/or painting the ceiling. An inspector from the Orange County Health Department also visited Village Park concerning a complaint about rats at the dumpster. Respondent timely addressed the rodent issue and the property is under contract with an extermination company that provides appropriate rodent deterrence. Respondent timely repaired the vanity leak and the toilet issue in Petitioner’s apartment. The roof issue, however, was not quickly resolved. Initially, Petitioner refused to allow Respondent into the unit to repair the ceiling. Ms. Johnson advised Petitioner that he would have to allow Respondent entry in order for them to be able to fix the ceiling and restore it to an appropriate condition. According to Ms. Johnson, the ceiling in Petitioner’s unit did not collapse as alleged by Petitioner. Ms. Johnson also noted that there was debris around the dumpster at Village Park. She was favorably impressed with the speed with which the maintenance crew cleaned up the mess at the dumpster site. Despite some delays in getting the roof inspection completed to Ms. Johnson’s satisfaction, all issues with Petitioner’s unit were resolved to the City’s satisfaction. Concurrent with the repair timeline to Petitioner’s unit, Respondent filed an eviction proceeding against Petitioner. That action progressed through the court, through mediation, and resulted in a stipulated settlement agreement. The Landlord/Tenant Stipulation was executed on January 27, 2010, and provided, in pertinent part: Defendant [Petitioner] agrees to place utilities in his own name at OUC no later than Feb. 3, 2010. * * * Defendant agrees to allow Plaintiff [Respondent] to enter his apartment for repairs on Feb. 1, 2010 between 9:00 a.m. and 5:00 p.m. Petitioner failed to abide by the terms of the stipulation. Ultimately the court issued a Final Judgment for Possession and Writ of Possession for Petitioner’s unit. Petitioner's claim that the eviction process was retaliation for the complaints made to the county and city authorities, belies the fact that Petitioner failed to honor the terms of the lease, and the stipulation reached in the eviction proceeding. Petitioner’s race was not directly or indirectly involved in any manner. Nor was Petitioner treated less favorably than a similarly situated party not of Petitioner’s race.
