The Issue The issue in this case is whether Respondent’s intended award of a lease for office space to a bidder other than Petitioner was clearly erroneous, contrary to competition, arbitrary, or capricious.
Findings Of Fact Respondent, on or about May 18, 1998, advertised and released RFP for Lease No. 800:0184 in order to procure approximately 5,000 square feet of office space in Lake City, Florida. Three timely filed proposals were submitted in response to the RFP. One of the submissions was determined to be nonresponsive and rejected. The two other proposals submitted by Petitioner and William and Willene Giles (Giles) were deemed responsive and evaluated by Respondent personnel. Site visits were made to each of the proposed sites. The sites were then evaluated using a numerical scoring system. Respondent’s initial posting of bid results on August 4, 1998, indicated a tentative award of the lease to Giles. Giles received a total score of 88.5 points. Petitioner received the maximum points with respect to cost, but was given only a total of 75.7 points. The RFP clearly requires that a bidder must provide a site layout drawn to scale which indicates the facility location and dimensions of each parking space. Also, the number of parking spaces assigned to other tenants must be identified. A bidder must agree to provide 25 parking spaces on site for use by Respondent. The site plan submitted with the Giles proposal shows five of the required parking spaces are located on property abutting the Giles property. Those five parking spaces do not currently exist on that property. No ingress or egress is shown on the site plan, although such is required by the RFP. The Giles bid should demonstrate requisite control over the adjacent property utilized in that bid. Such is not the case. Documents submitted to indicate control of the property by Giles are deficient. In addition to holders of life estates in the property, fee owners of the property must also agree to use of the property in conjunction with the lease between Giles and Respondent. The evidence does not establish that the fee owners have provided their consent. Testimony of Mary Goodman, an expert witness on behalf of Petitioner, establishes that the Giles’ bid did not demonstrate the requisite control of the property, specifically the parking area, required by the RFP at the time of bid opening. The Giles bid was not responsive. Petitioner’s bid identifies and offers for lease space in the Lake City Professional Plaza. The drawing submitted with the bid mistakenly identifies the area of the proposed lease space as “Grant Plaza.” Additionally, Petitioner’s bid did not contain a Public Entity Crime Addendum as required by the RFP. Failure to meet this requirement, by terms of the RFP, “will result in immediate disqualification of your proposal.” Other errors in Petitioner’s bid include the drawing submitted in the bid response which depicts parking. The drawing indicates that there are “new” parking spaces which are to be 10 feet wide by 19 feet deep. Under local land use regulations, new regular parking spaces must be 10 feet by 21 feet with a requirement that handicapped spaces measure 12 feet by 20 feet. Petitioner’s bid fails to comport with applicable local land use regulations. On page 2 of the RFP, Respondent reserves the right to reject any and all proposals which are not responsive. Neither the Giles’ bid nor the Petitioner’s is found to be responsive.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is recommended that a Final Order be entered finding none of the bids to be responsive and making such other disposition as may be deemed appropriate. DONE AND ENTERED this 7th day of December, 1998, in Tallahassee, Leon County, Florida. 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 Filed with the Clerk of the Division of Administrative Hearings this 7th day of December, 1998. COPIES FURNISHED: Joseph M. Helton, Jr., Esquire Scott C. Wright, Esquire Department of Juvenile Justice 2737 Centerview Drive Tallahassee, Florida 32399-3100 Robert A. Sweetapple, Esquire Sweetapple, Broeker and Varkas 465 East Palmetto Park Road Boca Raton, Florida 33432 Calvin Ross, Secretary Department of Juvenile Justice 2737 Centerview Drive Tallahassee, Florida 32399-3100 Janet Ferris, Esquire Department of Juvenile Justice 2737 Centerview Drive Tallahassee, Florida 32399-3100
The Issue The issue is whether Department of Lottery Rule 53ER88-16, entitled Handicap Accessibility, is an invalid exercise of delegated legislative authority because it does not require handicap parking spaces at the location of lottery ticket vendors.
Findings Of Fact Dr. Steven Krisher was trained and practiced as a dentist until he developed the disability of multiple entrapment neuropathy, which now has progressed to the point that he can no longer engage in gainful employment, drive an automobile, exercise, or engage in sports. In order to be mobile outside his home he uses a wheelchair. He holds a permit for disabled parking from the Department of Highway Safety and Motor Vehicles. The Department of Lottery promulgated Rule 53ER88-16, Florida Administrative Code, to replace its prior rule on handicap accessibility. The text of the current rule, which is the subject of this challenge, is as follows: Retailers shall be required to provide accessibility for disabled persons on habitable grade levels according to the following minimum specifications: A ramp 44 inches wide for changes in level in excess of 1/2 inch at doorways. The grade shall be not more than 1 inch vertically in 12 inches horizontally. A platform at the top of the ramp which is five feet by five feet if the door opens onto the platform, or three feet deep and five feet wide if the door does not open onto the platform. Aisles or pathways from the entrance door to the counter at which lottery tickets are sold shall be 44 inches in width. A clear turn-around space of at least five feet square in front of the counter at which lottery tickets are sold. An entrance door meeting one of the following specifications: Single leaf walk-through swinging door, 32 inches; One leaf of manually operated multiple- leaf swinging door, 32 inches; Any other walk-through opening, 29 inches. The Department shall not enter into a retailer contract with any retailer whose application is received by the Department after the date of adoption of this rule until the retailer is in compliance with the requirements of paragraphs 1 through 5 above. All retailers whose applications were received by the Department prior to the effective date of this rule shall, not later than 90 days after contracting with the Department, provide the Department with a certificate under oath, affirming that the retailer is in full compliance with the handicap accessibility requirements set forth above. This section does not apply to a retail location which has an entrance door threshold more than 12 inches above ground level.
Findings Of Fact Lawrence Morehouse is employed as a full time faculty member by the University of South Florida (USF). At all times material to this case, parking of vehicles on the campus is regulated by USF authorities. USF parking regulations are enforced by personnel of the USF Division of Parking Services from 8:00 a.m. to 8:30 p.m. on Monday through Thursday, and from 8:00 a.m. to 5:00 p.m. on Friday. At all other times, USF parking regulations are enforced by campus police. A campus parking regulation violation is documented by a handheld electronic ticketing device which records the information and prints a notice of the violation. The printed notice is left at the vehicle for the driver to discover. A driver who believes a citation to be unfair may immediately bring the ticket to the counter clerk at the offices of the USF Division of Parking Services. The clerk is authorized to waive the fine if the individual circumstances of the case warrant waiver. The clerk records the waiver in the Division of Parking Services database. A written notice of the waiver is provided by the clerk upon the driver's request. In addition to appeal via the counter clerk, an aggrieved driver may also meet with a University Parking Appeals Mediator to discuss the matter. The driver may also file a written appeal of the ticket. If a driver remains unsatisfied after the matter is adjudicated by the mediator or by the committee which reviews written appeals, the driver may appeal the ticket to the USF Final Appeals Committee. The committee is made up of students, faculty and staff. A late fee of $13 is added to each fine imposed if the ticket remains unpaid more than ten days after adjudication is final. On June 14, 1993, Mr. Morehouse received a ticket for parking facing the direction of the traffic, a violation of campus parking restrictions. The fine for this violation is $10. Mr. Morehouse asserts that he immediately spoke to the counter clerk about the June 14 ticket and the fine was waived. There is no documentation to support his assertion. The testimony is not persuasive. On June 20, 1993, October 6, 1993, December 8, 1993, June 2, 1994 and June 7, 1994, notices of violation were provided to Mr. Morehouse for parking without a current university tag on his car. Mr. Morehouse testified that on one of these occasions, he filed a written notice of appeal. Although a hearing was convened, Mr. Morehouse did not attend the hearing because of a scheduling conflict. He did not inform appeals committee members of the conflict or advised them that he would not attend the hearing. There is no evidence that Mr. Morehouse made any attempt to appeal the four other tickets he received for parking without a current USF tag. The six tickets remain unpaid. An additional $13 late fee has been imposed on each ticket. Delinquency notices on all the tickets were sent to Mr. Morehouse. He made no apparent effort to respond to the notices. Toward the end of 1994, the matter was referred by USF Parking Services division to the USF Division of Finance and Accounting collections manager. The collections office issued monthly bills for the sum of the fines to Mr. Morehouse for approximately six months. There is no evidence that Mr. Morehouse responded to the billing. At the close of the six month billing period, a certified letter was sent to Mr. Morehouse, stating that the amount could be deducted from his paycheck and advising of his right to a hearing. Mr. Morehouse requested a hearing.
Recommendation Based on the foregoing, it is hereby RECOMMENDED that the University of South Florida enter a Final Order deducting the lump sum of $188 from the next salary warrant issued to Lawrence Morehouse. DONE and RECOMMENDED this 26th day of September, 1995 in Tallahassee, Florida. WILLIAM F. QUATTLEBAUM 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 26th day of September, 1995. APPENDIX TO RECOMMENDED ORDER, CASE NO. 95-2718 To comply with the requirements of Section 120.59(2), Florida Statutes, the following constitute rulings on proposed findings of facts submitted by the parties. Petitioner The Petitioner's proposed findings of fact are accepted as modified and incorporated in the Recommended Order. Respondent The Respondent did not file a Proposed Recommended Order. COPIES FURNISHED: Betty Castor, President Office of the President University of South Florida 4202 East Fowler Avenue, ADM 241 Tampa, Florida 33620 Noreen Segrest, Esquire Acting General Counsel University of South Florida 4202 East Fowler Avenue, ADM 250 Tampa, Florida 33620 Debra A. King, Esquire University of South Florida 4202 East Fowler Avenue, ADM 250 Tampa, Florida 33620 Lawrence Morehouse 2610 Drumwood Place Valrico, Florida 33594
The Issue Whether the construction activity was begun within the 45 day period within which the issuance of the permit by the city could have been challenged and was not in compliance with local codes and ordinances.
Findings Of Fact The Department of Community Affairs is the state land planning agency empowered to enforce the provisions of Chapter 380, Florida Statutes, and the rules promulgated thereunder. (Section 380.031-.032, F.S.). Billy Marlar owns and operates the Rainbow Motel, located at 123 Water Street, Apalachicola, Florida. (R. 9) Petitioner Marlar is the record title holder of wharf lots 13 and 14 in the City of Apalachicola according to the map or plat commonly used. Lots 13 and 14 are held in the name of Rainbow Motel and Marina. Lots 13 and 14 are located within the Riverfront District, as identified in the Land Development Code of the City of Apalachicola. (R. 57) Old plats reflect that the dimensions of wharf lots 13 and 14 are 206.54 feet wide and approximately 70 feet deep, or 14,250.75 square feet. Over the years, sand has accreted to the eastern boundary of these wharf lots and for the past 35 years there have been improved structures on the eastern boundary of the property. Although the Franklin County tax rolls reflect wharf lots 13 and 14 as being approximately 200 feet wide by 180 feet deep, the Rainbow Hotel is built on pilings over water or land which is tidal. Inspection of the property reveals that the water line of the Apalachicola Bay lies approximately at the western edge of the main portion of the hotel. On May 13, 1988, Billy Marlar applied for a permit to construct a concrete parking lot on wharf lots 13 and 14 in the City of Apalachicola. (Rainbow Exhibit 2) On May 16, 1988, the Apalachicola Planning and Zoning Commission considered Mr. Marlar's application at a special meeting, and granted the permit application. (Rainbow Exhibit 9). On May 25, 1988, Permit No. 1172 was forwarded to the Department of Community Affairs for consideration as a development order. (Rainbow Exhibit 2). Prior to the permit being forwarded to DCA, construction of the parking lot commenced. A portion of the parking lot was poured on May 23, 1988, and the remainder of the parking lot was completed within 2 - 3 weeks of that date. (R. 50-51, 53). The Land Development Code provides that lot coverage within the Riverfront District shall contain a minimum of 50 percent pervious surface. The term "pervious surface" means that water will percolate through that surface that covers the earth. (R. 59). The concrete parking lot constructed by Billy Marlar on wharf lots 13 and 14 is not a pervious surface. (R. 70). The dimensions of the portion of the parking lot on lots 13 and 14 are 78 feet along the northern boundary, 205 feet along the eastern boundary, 78 feet along the southern boundary and 205 along western boundary. There is a planter in the southwestern corner which has approximately 704 square feet. The proposed finding submitted by the Department states that the parking lot contains 12,589.87 square feet, which will be the area used. (DCA Exhibit 1 and R. 71). The dimensions of the pervious surface of the property are based upon the area of the non-tidal portion of the two lots. The dimensions of the non- tidal area of the two lots are determined from resolution of the conflicts in the testimony and evidence presented and an examination of the property. The western boundary is 215 feet; northern boundary is 112 feet; eastern boundary is 215 feet; and southern boundary is 122.5 feet. The total non-tidal area of the two lots based upon these dimensions is 25,208 square feet. (Rainbow Exhibit 3). Although the records of the Franklin County Property Appraiser's Officer indicated the dimensions of wharf lots 13 and 14 were 200 feet wide by 180 feet deep, a substantial portion of the eastern boundary of that area is submerged. (Rainbow Exhibit 3 and 5, R. 32). Conflicting evidence was presented as to the dimensions of the non-tidal property from the street frontage to the mean high water line. The drawings show a meander line along the mean high water line; however, observation revealed water under the majority of the hotel, particularly on the northeast corner. Based upon those observations, the eastern boundary on non-tidal land is computed as a straight line parallel to the western edge of the longest portion of the hotel and five (5) feet to the east of longest portion of the hotel running from southern boundary to the northern boundary. See pencil additions to Rainbow Exhibit 3 made by fact finder after observation of the property pursuant to motion. A portion of the Rainbow Motel and the Pot Restaurant extend over the water. (R. 32 and Rainbow Exhibit 3). A portion of the hotel approximately 21.9 feet by 17.3 feet and 5 feet by 136.32 feet is located on the pervious surface of lots 13 and 14. Approximately 33% of the restaurant, the dimensions of which are 47 by 46 feet, is located on the pervious surface of lot 13. The buildings cover a total of 1,781 square feet. The total impervious surface on lots 14 and 13 is 14,371 square feet. The total non-tidal area of the two lots is 25,209 square feet. The impervious surface must be reduced by 1767 square feet. (R. 76).
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED: That a Final Order be entered requiring Billy Marlar and Rainbow Hotel to bring the project into compliance within 30 days by removal of 1767 square feet of impervious surface from the non-tidal portions of lots 13 and 14. DONE and ENTERED in Tallahassee, Leon County, Florida, this 18th day of August, 1989. STEPHEN F. DEAN Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, FL 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 18th day of August, 1989. ANNEX A Consideration of Proposed Findings of Fact The proposed findings of the Department of Community Affairs were read and considered as follows: Paragraphs 1-10 Adopted. Paragraph 11 The proposed dimensions are rejected as being contrary to the best evidence of the dimensions of the non-tidal area of the two lots. Paragraphs 12 & 13 Adopted. The proposed findings of Marlar and Rainbow Hotel were read and considered as follows: Paragraphs 1 & 2 Adopted. Paragraph 3 The existence of non-tidal land to a depth of 180 feet is rejected as contrary to the best evidence. Paragraph 4 & 5 Substantially adopted. Paragraphs 6 & 7 Rejected as a finding, although included as portions of the conclusions of law or statement of case. Paragraph 8 Some land has accreted; however, that the accretion is all pervious surface is rejected as contrary to best evidence. Paragraph 9 The stormwater management plan is irrelevant to how much of the pervious area of the two lots is covered with impervious structures. Paragraph 10 The city map is rejected as the best evidence of the area of the non-tidal area of the two lots. COPIES FURNISHED: L. Kathryn Funchess, Esquire David L. Jordan, Esquire C. Laurence Keesey, Esquire Department of Community Affairs 2740 Centerview Drive Tallahassee, Florida 32399-2100 Thomas G. Pelham, Secretary Department of Community Affairs 2740 Centerview Drive Tallahassee, Florida 32399-2100 Deborah Hardin-Wagner, Esquire Governor's Legal Office The Capitol, Room 209 Tallahassee, Florida 32399-0001 J. Ben Watkins, Esquire 41 Commerce Street Apalachicola, Florida 32 320 J. Patrick Floyd, Esquire 408 Long Avenue Post Office Drawer 950 Port St. Joe, Florida 32456 Honorable Jimmy Nichols Mayor, City of Apalachicola Post Office Box 10 Apalachicola, Florida 32320 Apalachicola Planning and Zoning Commission Post Office Box 10 Apalachicola, Florida 32320
The Issue The issue in this case is whether Respondent discriminated against Petitioner because of her disability in violation of the Florida Fair Housing Act.
Findings Of Fact Petitioner, Bernice Buchanan, an 81-year-old female, lives in a condominium at 700 Seabrook Court, Unit 103, Altamonte Springs, Florida. The condominium unit was purchased by Petitioner and is within the Key West Condominiums complex. Respondent, Key West Condominium Association, Inc. ("Key West Association"), a not-for-profit corporation, is responsible for the operation of Key West Condominiums, which consists of 60 units. Petitioner has a meniscus tear in her right knee, arthritis in her right knee and right shoulder, and degenerative discs in her lumbar and cervical spine. As a result of the degenerative discs, there are no ligaments between Petitioner's bones in the affected area, thereby causing the degenerated discs to push on her muscles and nerves. Moreover, because there are no ligaments in the affected areas, Petitioner has a problem with balance and must walk very slowly. Finally, because of Petitioner's degenerative disc condition, Petitioner has severe pain when she walks, sits, or lies down. Petitioner's physician, John F. Ryan, M.D., submitted documentation which stated that Petitioner is not allowed to lift more than 15 pounds due to her degenerative discs and severe knee pain. Also, Dr. Ryan indicated that because of the severe pain in Petitioner's right knee, she is limited in walking, even moderate distances. Petitioner's degenerative disc condition and knee pain are permanent disabilities. Petitioner anticipates having surgery that may reduce or alleviate the pain caused by the degenerative discs. She is also contemplating having knee replacement surgery which should help the right knee. However, unless and until Petitioner has the surgeries, it is impossible to know if those procedures will alleviate her pain and/or otherwise improve her impaired mobility issues. While surgery may possibly improve some of Petitioner's medical conditions, that is not an option with regard to her arthritis. Petitioner is not aware of any surgery or other medical procedure that will improve and/or alleviate the pain she is experiencing due to the arthritis in her knee and shoulder. Furthermore, there is no evidence that any of her physicians have recommended any such procedure. Although Petitioner's ability to walk is impaired, she does not presently use any walking devices such as a cane or walker. Petitioner's ability to drive is not impacted by her medical conditions and associated physical impairments. In fact, Petitioner regularly drives to places such as the grocery store, church, and to visit family. The Key West Condominium complex has three types of parking spaces: (1) assigned garage spaces1; (2) unassigned uncovered non-handicap parking spaces ("regular parking spaces"); and (3) unassigned uncovered handicap parking spaces ("handicapped parking spaces"). Petitioner has an assigned garage space which is located in a bank of four garages. That assigned parking space is about ten feet wide. The regular parking spaces are not assigned and may be used by homeowners, residents and visitors on a "first come, first serve basis." The handicap parking spaces are not assigned and may be used by the homeowners and residents of Key West Condominiums and their visitors who have appropriate handicap decals. There is one handicap parking space located to the left of the bank of garages where Petitioner's garage space is located. Also, there are several regular parking spaces to the right of that garage bank. Because Petitioner's assigned garage is only ten feet wide, it is difficult for her to enter and exit her small Toyota sedan when it is parked in the garage. Nonetheless, provided Petitioner does not have groceries or packages to remove from her car, the garage space is "adequate." Due to the width of Petitioner's assigned garage, when Petitioner parks her car in that space, the car doors cannot be opened wide enough to allow her to remove groceries or packages from her vehicle. Thus, when Petitioner has groceries or packages to unload from her vehicle, in order to unload them, she must park in a space other than her assigned garage space. When Petitioner has groceries and/or other packages to unload and carry into her unit, she usually parks in a regular parking space in front of and close to her condominium unit. When Petitioner parks in the regular parking spaces, it is easier for her to unload the groceries from her car and carry them to her unit. If all of the regular parking spaces in front of her building are occupied by other vehicles, Petitioner has sometimes double-parked behind those vehicles. In those instances, Petitioner would unload the groceries or packages from her car, take them into her condominium unit, and then return to her car and park it in her assigned garage. Petitioner no longer double parks behind vehicles parked in the regular parking spaces when she has groceries and/or packages to unload from her car and take to her condominium. The reason is that Petitioner found that double parking and walking behind parked vehicles to unload her groceries was dangerous. When Petitioner has groceries or packages to take into her condominium and no regular parking spaces are available, she must park across the street and wait until a space becomes available. In such instances, Petitioner reported that she sometimes had to wait for up to 25 minutes for an available space. Petitioner's decreased mobility and impaired ability to walk, even moderate distances, and her lifting restrictions significantly impair her ability to retrieve groceries and packages from her car and carry them into her unit. Petitioner's assigned garage is 47 feet and nine inches from the front door of her unit. The handicap space to the left of the garage bank is 90 feet from the front door of Petitioner's unit. The regular parking space to the right of the garage bank, which Petitioner sometimes uses, is 38 feet from Petitioner's front door. In a letter dated May 15, 2007, Petitioner requested that the Key West Association provide her with a parking space close to her unit marked "Handicapped Parking" and designated only for her. Petitioner noted that she did not need space for a wheelchair. Finally, Petitioner advised Key West Association that the request was based on medical reasons. At the time Petitioner wrote the May 15, 2007, letter, there was a handicap parking space with the painted markings of a handicap parking space. However, that handicap parking space did not have a "handicap parking" sign designating that space as such. In her May 15, 2007, letter, Petitioner advised the Key West Association that the handicap parking space referenced in paragraph 29 would not meet her needs because it was too far for her to carry her groceries. In June 2007, the Key West Association Board of Directors ("Board"), denied Petitioner's request for the regular parking space closest to her unit to be designated as a "handicap parking" space reserved for her use only.2 Instead, the Board directed Petitioner to use the handicap parking space to the left of the garage bank. The Board also notified Petitioner that it would reinstall the "Handicapped Parking" sign"3 at the above-referenced handicap parking space. The Board did not designate the handicap parking space for Petitioner's exclusive use. Therefore, it could be used by any Key West Condominium homeowner or resident or their visitors with a handicap decal. The handicap parking space that the Board made available for use by Petitioner is located between two garage banks so that the handicap space is bordered on each side by a wall of the abutting garage bank. As noted above, the handicap parking space that the Board told Petitioner to use is 90 feet from the front door of Petitioner's condominium; this is 52 feet farther than the regular parking space in front of Petitioner's building. The Board's June 2007, denial letter expressed concern about the cost of constructing the handicap parking space. Additionally, the Board noted that construction of a new handicap parking space would result in the loss of two non-handicap parking spaces. (This was because two non-handicap parking spaces were needed to construct one handicap parking space.) By letter dated September 12, 2007, Petitioner advised the Key West Association that she was still having problems with parking. Petitioner reiterated that the handicap parking space, which the Board had opened for use (by re-installing the handicap parking sign), was too far for her to carry her groceries and other items (90 feet from the front door of her unit). Petitioner also noted that she had the following problems with the handicap parking space: (1) The handicap parking space was often occupied by a vehicle with no handicap decal; (2) Petitioner was required to exit her vehicle on the side of the parking space next to the wall of the garage bank; and (3) After exiting the handicap space, she could only access the sidewalk to her unit by stepping over a curb into the grass or walking around her car to the other side.4 Based on the problems enunciated in her September 12, 2007, letter, Petitioner again requested a "handicapped parking space closest to [her] building without having to walk in between cars." Petitioner wanted the requested handicap parking space to be for her exclusive use. Along with Petitioner's letter was a note from her physician, Dr. John Ryan, which supported her request for a handicap parking space. Dr. Ryan's note stated, "[d]ue to her [Petitioner's] medical condition, I request that [Petitioner] be assigned a parking area closest to her building. She requires a handicap space." There is no evidence that the Key West Association ever responded in writing to Petitioner's September 12, 2007, request or asked for additional information about her medical condition. Reggie Caruso, the deputy building official, is the principal plan reviewer for new and large construction projects, including condominium complexes, for the City of Altamonte Springs, Florida. Mr. Caruso is familiar with the parking requirements for condominium complexes, and his office enforces the laws and regulations applicable thereto. Unless otherwise exempt, condominium complexes are required to have a certain number of handicap parking spaces. However, except for the public areas, the Key West Association has the discretion to place the handicap parking spaces wherever it chooses and/or where such spaces are needed. Section 553.5041, Florida Statutes (2008),5 regulates parking spaces for persons with disabilities (i.e., handicap parking spaces) and applies to Key West Condominiums. Subsection 553.5041(5)(c)1., Florida Statutes, provides that: (1) handicap parking spaces be no less than 12 feet wide; (2) the parking access aisle be no less than five feet wide and be placed adjacent to the handicap parking space; and (3) the access aisle be part of an accessible route to the building or facility entrance. Also see Sections 11-4.6.2(1) and 11-4.6.3, Florida Building Code.6 Subsection 553.5041(4), Florida Statutes, provides that the number of "accessible parking spaces" (handicap parking spaces) must comply with the parking requirements in Section 4.1.2(5)(a) of the Americans With Disabilities Act ("ADA") Accessibility Guidelines. These requirements have been adopted and are in Section 11-4.1.2(5)(a) of the Florida Building Code. The number of handicap parking spaces in the Key West Condominium complex complies with applicable law, if the handicap parking space discussed below that does not meet minimum legal requirements, is counted. Subsection 553.5041(4)(c), Florida Statutes, provides that "[t]he number of parking spaces for persons who have disabilities must be increased on the basis of demonstrated and documented need." In or about mid-November 2008, Mr. Caruso inspected the handicap parking space that the Board advised Petitioner to use. That inspection revealed two areas in which that handicap space and the adjacent access aisle were not in compliance with Subsection 553.5041(5)(c)1., Florida Statutes, and the Florida Building Code.7 The first area of non-compliance involves the width of the handicap parking space and adjacent access aisle. Here, the handicap parking space, including the adjacent access aisle, is tapered and has a width that ranges from 16 feet to 18 feet. Accordingly, at certain points, the handicap parking space, including the adjacent access aisle, is only 16 feet wide, not 17 feet, the prescribed minimum width. During the inspection, Mr. Caruso observed that a "fixed" building (a bank of garages) was on each side of the handicap parking space, including access aisle. Thus, Mr. Caruso determined that there is no reasonable way to change the space so that the minimum width of the handicap parking space and adjacent access aisle is 17 feet at all points as prescribed in Subsection 553.5041(5)(c)1., Florida Statutes.8 The second area of non-compliance concerns the requirement that the access aisle be connected to an accessible route. During his inspection of the handicap parking space, Mr. Caruso observed that there is no direct route from the handicap parking space's adjacent access aisle to a sidewalk. Instead, there is a five-inch high curb which obstructs the accessible route. Consequently, the access aisle is not connected to the access route (sidewalk) to the building in which is located Petitioner's unit or any other building in the complex. Mr. Caruso testified credibly that to establish an accessible route from the access aisle (adjacent to the handicap parking space), part of the five-inch high curb would have to be removed and the concrete would have to be extended from the access aisle to the sidewalk. The removal of the curb would result in compliance with the requirement in Subsection 553.5041(5)(c)1., Florida Statutes, that the access aisle connect with and is "part of an accessible route to the building." Also, the removal of the curb would make the space safe because persons using the space would no longer have to step over the five-inch high curb to get to the accessible route. Even if the curb is removed, the parking space, including access aisles, would still not be in compliance with law because the space does not meet the minimum width requirement of 17 feet prescribed in Subsection 553.5041(5)(c)1., Florida Statutes. Moreover, as noted above, because the handicap parking space is bordered on each side of a "fixed" building, it cannot reasonably be brought into compliance. Marty Boble is a planning and development review specialist for the City of Altamonte Springs. In that position, he determines compliance as it relates to the number of parking spaces on-site. In November 2008, Mr. Boble went to the Key West Condominium complex and inspected the property, including the above-referenced handicap parking space. He also reviewed the Key West Condominium plans, which showed the buildings and parking spaces in the complex. The Florida Building Code requires the Key West Condominium complex to have two parking spaces per dwelling. Key West Condominium, which counts its garage spaces as parking spaces, not only meets the requirement as to number of spaces per unit, but exceeds it by 20 spaces. To construct a new handicap parking space that complies with the legally prescribed width requires that two non-handicap parking spaces be used. Thus, the result of constructing a new handicap parking space would result in the loss of two existing regular parking spaces. Nonetheless, Key West Association would still be in compliance with the Code requirement of two parking spaces per unit because it currently has 20 more spaces than required.9 Petitioner's request for a handicap parking space near her condominium unit is reasonable. In light of her impaired ability to walk, even moderate distances, and her lifting restrictions, Petitioner is unable to retrieve groceries and other packages from her vehicle and take them to her unit. Without an accommodation for her handicap, Petitioner cannot have an equal opportunity to use and enjoy her condominium unit. In this case, Petitioner has a disability which significantly impairs her ability to walk. Thus, Respondent is required to provide her with a reasonable accommodation. As of the date of this proceeding, Respondent has not provided any accommodation to Petitioner. The reasonable accommodation that Respondent should provide is to convert non-handicap or regular parking spaces into a handicap parking space. This remedy is required due to the non-compliance issue of the handicap space which cannot be corrected.10 By converting two non-handicap or regular parking spaces to one handicap parking space, Respondent will be able to construct and provide a handicap parking space that complies with applicable law and regulations. The accommodation offered by the Key West Association and its Board is not a reasonable one. As noted above, the handicap parking space offered to Petitioner did not comply with the provisions of Subsection 553.5041(5)(c)1., Florida Statutes. Moreover, the Key West Association failed to take steps to bring that parking space into partial compliance and to make it safe for Petitioner's use, although it had more than a year to do so. Finally, even though it was clearly established that Petitioner needed a space closer to her unit, the Key West Association and its Board offered her a space that was not only unsafe and non-compliant with law, but was further away from her unit. The Declaration of Condominium for Key West provides that material alterations of common elements, such as regular parking spaces, require approval of two-thirds of the owners at a properly noticed meeting. Despite the Key West Association's position, use of two regular parking spaces to construct a handicap space is a material alteration, it never called a meeting for that purpose.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Florida Commission on Human Relations enter a final order: Finding that Respondent, Key West Condominium Association, Inc., discriminated against Petitioner, Bernice Buchanan, under the FFHA by refusing to make a reasonable accommodation for her handicap; Ordering Respondent to cease the discriminatory practice; and Ordering Respondent to provide a handicap parking space close to Petitioner's condominium unit. DONE AND ENTERED this 29th day of May, 2009, in Tallahassee, Leon County, Florida. S CAROLYN S. HOLIFIELD Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 29th day of May, 2009.
Findings Of Fact In March, 1992, the Department of Labor and Employment Security ("Department") issued a Request for Proposal and Bid Submittal ("RFP") seeking to lease approximately 21,033 square feet of office space in Pinellas Park, Florida. The RFP specifies that "approximately" 130 off-street no charge parking spaces were required for the exclusive use of the employees and clients of the Respondent. The RFP states that "[p]arking space must be under the control of the bidder and be suitably paved, lined, and bumper pads installed." The Department received two bids in response to the RFP; one submitted by Hart-Land Ext., Inc., ("Petitioner") and the other submitted by Resolving, Inc. Both bids were signed by James Hartley, as Vice President of the respective corporations. The Department initially determined that, on the basis of the representations contained in the bids, both bids were responsive. An evaluation committee determined that the bid submitted by the Petitioner was the lowest and best bid. On the basis of the evaluation, the Department awarded the bid to the Petitioner by letter dated May 13, 1992. Subsequent to the bid award, the Petitioner submitted several differing site plans to the Department. The site plans indicated various amendments to the configuration of parking spaces available. None of the plans indicated that there would be less than 130 parking spaces available for use by Department personnel. The Department suggests that the revisions of site plans raised doubts as to whether the property was under the control of the Petitioner, that such information was requested of the Petitioner and that appropriate responses were not forthcoming. Nothing in the site plans would suggest that the property was not under the Petitioner's control. The evidence establishes that sufficient information was provided by the Petitioner in response to Department inquiries related to property ownership. By letter dated August 24, 1992, the Department rescinded its award to the Petitioner. The stated reason for recission was that the Petitioner did not have control over 130 paved and lined parking spaces as the time of the bid opening. At the time the Petitioner submitted the proposal, it had the right, pursuant to an executed Contract for Sale and Purchase, to purchase the property which was identified in the proposal as the site upon which the office space was located. The contract was valid at all times material to this case. The Department accepts the existence of a valid Contract for Sale and Purchase as sufficient evidence of a bidder having control over the property proposed for use. The evidence establishes that at all times material to this case, the Petitioner controlled the property proposed for use in his response to the RFP. As to the parking requirements, the Department offered testimony asserting that the language in the RFP requires that such spaces be paved, lined, and bumper-pads installed, at the time the bid is submitted. The RFP includes no requirement, either express of implied, that the parking area proposed must be paved, lined, and bumpered at the time of bid submission. The Petitioner's response to the RFP met the parking requirements set forth therein. The Department asserts that because the parking spaces were not lined, it was unable to determine the number of spaces available in each area proposed for parking. The Department had ample opportunity to inspect the property proposed in the Petitioner's bid, and in fact, such inspections did occur. The Department reviewed site plans, floor plans, physically inspected the structure and had full access to the property. The fact that the parking spaces were not lined or bumper-padded at the time of bid submittal would have been obvious. Further, the RFP seeks to have "approximately" 130 spaces available. Of the 130 spaces the Petitioner said would be available, 118 spaces were paved at all times material to this case. The remaining 22 parking spaces were located in an unpaved area which would have been paved prior to the date upon which the Respondent would have occupied the building, at which time all 130 spaces would have been lined and bumper-padded also. Therefore, even if the agency's position that the RFP required paved spaces at time of bid submission were supported by evidence, the Petitioner's proposal would meet the requirement. Subsequent to the award of the project, the Petitioner closed the contract for sale in escrow and placed $150,000 in trust to close the sale. The Petitioner employed a general contractor, obtained completed floor plans, mechanical plans, electrical and plumbing plans for the structure, performed roof repairs and purchased new air conditioning equipment. At the request of Department's representatives, the Petitioner also made arrangements for additional parking spaces beyond the 130 spaces previously proposed, with the additional spaces being located off-site and across the street from the office space. The total cost of these actions is approximately $179,600. The purchase of the property and incurrence of related costs was done in good faith and in reliance upon the award of the project.
Recommendation Based on the foregoing, it is hereby RECOMMENDED that the Department of Labor and Employment Security enter a Final Order awarding proposed lease 540:0921 to Hart-Land, Ext., Inc. DONE and RECOMMENDED this 24th day of March, 1993, in Tallahassee, Florida. WILLIAM F. QUATTLEBAUM 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 24th day of March, 1993. APPENDIX TO CASE NO. 92-5748BID The following constitute rulings on proposed findings of facts submitted by the parties. Petitioner The Petitioner's proposed findings of fact are accepted as modified and incorporated in the Recommended Order. Respondent The Respondent's proposed findings of fact are accepted as modified and incorporated in the Recommended Order except as follows: Rejected, unnecessary. Rejected as to reference of difficulty in determining availability of parking spaces, not supported by greater weight of evidence. Measurement would have established whether space was adequate. There is no evidence that it was not. 6-9. Rejected as to inference that submission of amended site plans was inappropriate, not supported by greater weight of evidence. There is no evidence that the agency rejected the proposal based on the amendment of site plans, irrelevant. As to the amendment of site plans being indicative of a lack of 130 paved spaces, rejected immaterial. 11. Rejected as to determination that such spaces were not available on property controlled by the Petitioner, not supported by credible and persuasive evidence. COPIES FURNISHED: Shirley Gooding, Acting Secretary Suite 303, Hartman Building 2012 Capital Circle S.E. Tallahassee, Florida 32399-2152 Cecilia Renn Chief Legal Counsel Suite 307, Hartman Building 2012 Capital Circle, S.E. Tallahassee, Florida 32399-2152 William H. Walker, Esquire NCNB Bank Building, Suite 403 501 First Avenue North St. Petersburg, Florida 33701 Edward Dion, Esquire Assistant General Counsel Suite 307, Hartman Building 2012 Capital Circle S.E. Tallahassee, Florida 32399-2189
The Issue Should the Department of Transportation (Department) grant Petitioner Ronnie Forrest's connection application number C-13-021-93 for a permit to construct a driveway and acceleration/deceleration lanes, to provide access to U S 19 (S R 45 and 55) for Petitioner's proposed development of parcel identified in plans as Site B? Should the Department grant Petitioner's connection application number C-13.022-93 for a permit to construct two driveways to provide separate ingress and egress to U S 19 (S R 45 and 55) and U S 41 (S R 55) for Petitioner's proposed development of parcel identified in the plans as Site A?
Findings Of Fact Upon consideration of the oral and documentary evidence adduced at the hearing, the following relevant findings of fact are made: At all times pertinent to this proceeding, the Department was the state agency responsible for regulating vehicular access and connections to or from the State Highway System in accordance with Sections 335.18 through 335.188, Florida Statutes, known as the State Highway System Access Management Act. Petitioner proposes to develop two parcels of land located in the functional area of the interchange of S R 45 and 55 (U S 19/41/301) in Manatee County, Florida. The parcels of land are designated on the site plans as Site A and Site B. The functional area of the interchange is the area within which a driver is expected to react to and make decisions concerning traffic. Site A comprises approximately seven acres. Petitioner proposes to construct a four thousand square foot convenience store, restaurant with gas pumps, truck diesel pumps, a car wash and accompanying parking for cars and trucks. Petitioner's Connection Application for permit number C-13-022-93 seeks authorization from the Department to construct two driveways for Site A which are to serve as separate ingress and egress points for vehicles entering and leaving Petitioner's proposed development. The ingress to Site A is proposed to be located on the east side of the parcel where northbound U S 19 diverges from northbound U S 41. The egress from Site A is proposed to be located on the west side of the parcel where southbound U S 19 and U S 41 merge. Site B comprises approximately four acres. Petitioner proposes to construct a six thousand square foot convenience store, restaurant, gas station, truck fuel pumps, car wash and accompanying parking for cars and trucks. Petitioner's Connection Application for permit number C-13-021-93 seeks authorization from the Department to construct one driveway and acceleration/deceleration lanes for ingress/egress for Site B. The proposed driveway location is at southbound U S 19 approximately across from 43rd Street Boulevard, West. There is at least one motel within close proximity of the proposed developments for Site A and B which presently offers room accommodations and parking for truckers. The proposed developments for Site A and B are neither as large as, nor offer as many amenities as, the traditional truck stop. However, the proposed developments for Sites A and B provide amenities such as restaurants, truck diesel fueling and truck parking areas. Therefore, due to the available amenities, the traffic composition - which includes large truck traffic - on U S 19, 41 and 301 and the motel accommodations, large trucks will be attracted to, and will use, the facilities proposed for Sites A and B. The proposed location of Site A's ingress or entrance driveway is limited by: (a) the existence of a limited access right of way line south of the existing driveway; (b) the existence of separate property to the north; and (c) grade separation of approximately 20 feet which occurs to the north at the departure of U S 41 into U S 19 overpass. The proposed location of Site A's egress or exiting driveway is limited by: (a) the existence of limited access right of way line approximately 30 feet to the south; (b) wetlands encroachment to the north; and (c) less available sight distance further north of the proposed egress location. The reason for less available sight distance at this location is due to: (a) the curvature of Site A; (a) the speed limit; and (c) the merger of U S 41 and U S 19 southbound traffic. Given the current configuration and traffic geometry, the proposed ingress and egress to parcel A are located in the most desirable positions possible from a traffic operational standpoint. The proposed location of Site B's ingress/egress is a driveway approximately across from 43rd Street Boulevard, West, on southbound U S 19 before it merges with southbound U S 41. A left in, left out driveway is proposed at this location. The operation of the two sites as proposed, individually or combined, will result in the generation of increased automobile traffic and large heavy truck traffic. The increased automobile and large heavy truck traffic entering and exiting the sites will create traffic hazards within the functional area of the interchange. Through traffic in the travel lanes within the functional area of the interchange travels at speeds of 55 to 60 miles per hour. Automobile and truck traffic accelerating and decelerating to enter or exit the sites will create significant speed differentials within the functional area of the interchange. For example, large heavy trucks will not have sufficient acceleration lane distance as they exit Site A or Site B to achieve the same speed as the through traffic which will create high speed differentials within the functional area of the interchange. The speed differentials in the functional area of the interchange will increase the accident rate within the functional area of the interchange, particularly truck/through traffic accidents. Traffic will be required to enter and exit the sites at points along the roadways within the functional area of the interchange where traffic is already required to execute a significant amount of weaving. As proposed, the sites will increase the area and number of conflicts within the functional area of the interchange. This in turn, will increase traffic weaving. Increase in the conflict points within the functional area of the interchange degrade the safe operation of the interchange. The sites as proposed, will increase U-turn volume at the median opening south of Site A. Large heavy trucks attempting this U-turn maneuver will encroach into the northbound travel lanes of U S 41. Additionally, since this U-turn maneuver requires a significant gap in through traffic, trucks will delay btheir U-turn maneuver causing queuing in the southbound left turn lane south of Site A. This U-turn maneuver will significantly reduce the available weave/merge/acceleration/deceleration distance between Site A and the U-turn location increasing the potential for truck/through traffic accidents. Operation of Site B as proposed has the potential to increase U-turns at the first median opening north of Site B on northbound US 19. Since the median width at this location is insufficient to accommodate large trucks, queuing will occur in the left turn lane at this location and present a potential safety and operational problem on the roadway. Sight distance at the Site A proposed egress is insufficient. Without sufficient sight distance, a driver's expectancy on the roadway is adversely affected in that there is insufficient time for the driver to react to another driver's intentions. The existing geometry of the interchange, the existing traffic flow, traffic volume and vehicle classifications on the roadways comprising the interchange, require certain levels of driver expectancy regarding operation of the functional area of the interchange. Since the safety hazards and operational problems described above occur within the functional area of the interchange, driver expectancy will be violated in the interchange by operation of the sites as proposed, adversely impacting the safety and operational characteristics of the roadways that comprise the interchange. The access connections for the sites as proposed would jeopardize the safety of the public, and would have a negative impact upon the operational characteristics of the highways comprising this interchange. There was insufficient evidence to show that there were other reasonable access connections available for the sites as proposed that would not jeopardize the safety of the public or would not have a negative impact upon the operational characteristics of the highways comprising this interchange.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is recommended that the Department of Transportation enter a Final Order denying Petitioner's Connection Application for permit numbers C-13-021-93 and C-13-022- 93. RECOMMENDED this 16th day of August, 1996, at Tallahassee, Florida. WILLIAM R. CAVE, 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 16th day of August, 1996. APPENDIX TO RECOMMENDED ORDER, CASE NO. 94-4356 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 in this case. Petitioner's Proposed Findings of Fact. 1. Proposed findings of fact 1 through 1 are adopted in substance as modified in Findings of Fact 1 through 25. Department's Proposed Findings of Fact. 1. Proposed finding of fact 1 through 21 are adopted in substance as modified in Findings of Fact 1 through 25. COPIES FURNISHED: Charles F. Johnson, Esquire Blalock, Landers, Walters, and Vogler, P.A. Post Office Box 469 Bradenton, Florida 34206 Francine M. Ffolkes, Esquire Department of Transportation 605 Suwannee Street, Mail Station 58 Tallahassee, Florida 32399-0458 Ben G. Watts, Secretary Haydon Burns Building 605 Suwannee Street, Mail Station 58 Tallahassee, Florida 32399-0450 Thornton J. Williams General Counsel Haydon Burns Building 605 Suwannee Street, Mail Station 58 Tallahassee, Florida 32399-0450
The Issue The central issues in this case are whether Petitioner knowingly submitted an application with false or misleading information for the purpose of securing sign permits and, if so, whether the sign permits should be revoked.
Findings Of Fact Petitioner owns a parcel located in Brevard County, Florida, upon which it desires to construct a sign with two sides (one facing north, one facing south). The parcel is located at 4121 Norfolk Parkway, West Melbourne, Florida, and is adjacent to Interstate 95 (I-95). Respondent is the state agency charged with the responsibility of regulating outdoor advertising located within 660 feet of the state highway system, interstate, or federal-aid primary highway system. It is undisputed the parcel owned by Petitioner together with the proposed two-sided sign falls within Respondent’s jurisdiction and is adjacent to I-95. The application process for sign permits follows a specified course to assure the applicant submits all requisite information and the parcel meets the statutory guidelines. In this case, Petitioner submitted not fewer than three applications for the desired permits. Each side of the proposed sign required a permit and each permit required an application. Each of the first applications was rejected and returned to Petitioner for reasons specified by FDOT. Among the reasons Petitioner’s applications were rejected were: the applicant did not answer all questions on the applications completely; the forms were not notarized; the applications did not have a signed statement from the local government official indicating the land use designation of the parcel; and the parcel identification numbers did not match on all documents. On December 17, 2012, Petitioner completed and had notarized one or two applications for the sign permits. Only one application for each side (dated December 17, 2012) was received by Respondent. Those applications indicated the zoning for Petitioner’s parcel as commercial parkway district, an acceptable zoning for the approval of a sign permit. In truth, however, Petitioner’s parcel is zoned residential. Respondent considered the applications dated December 17, 2012, complete but they contained an error other than the incorrect zoning that needed to be corrected. Based upon that error, FDOT issued a Notice of Denial and returned the paperwork to Petitioner to have the correction initialed. Once the applications were initialed, Respondent approved the applications and issued permit numbers 56284 and 56285. The applications submitted by Petitioner did not have the correct parcel identification number. Based upon the parcel identification number on the approved applications, the sign would be constructed on a parcel not owned by Petitioner. At all times material to this case, Petitioner represented it owned the parcel upon which the sign would be constructed. The parcel identified on the approved applications is correctly zoned for an outdoor advertising sign, but Petitioner’s parcel may not be. Petitioner has never intended to construct a sign on the parcel identified by its applications. Petitioner knew on December 17, 2012, that it had submitted applications with an incorrect parcel identification number. Petitioner knew on December 17, 2012, that the zoning for its parcel was residential not commercial. When Petitioner received the documents subsequent to the Notice of Denial (identified in paragraph 6), it did not correct the parcel number or advise FDOT that the parcel number was incorrect. Although the parcel numbers now matched for each section of the applications, the number related to a parcel owned by West Melbourne Holdings, II, LLC. Petitioner has no interest in West Melbourne Holdings, II, LLC. As a result, Petitioner did not accurately represent the zoning for the parcel it owns and upon which it sought to construct its sign. FDOT relies on the information submitted by applicants to determine whether a parcel is eligible for a sign permit. If an applicant submits false information, Respondent takes action to revoke a permit that was based on false information. In this case, Petitioner began to construct a sign on its property and another sign company (Petitioner’s competitor) notified FDOT that Petitioner was constructing a sign in an inappropriate location. Upon receipt of the complaint, FDOT began a review of Petitioner’s applications and discovered the applicant did not own the parcel that was approved for the sign. Although Petitioner had submitted an accurate street address, the parcel for which the sign permits were issued was not owned by Petitioner. Additionally, FDOT discovered a zoning discrepancy that would not allow approval of permits for Petitioner’s parcel. Had Petitioner submitted the correct zoning information for its parcel, the applications may not have been approved. Petitioner maintains that inaccuracies on its applications were inadvertent and unintentional. Petitioner argues it never knowingly submitted incorrect or misleading information. Having weighed the credible evidence submitted in this cause, such argument has been rejected. To the contrary, Petitioner knew the parcel number submitted on the applications dated December 17, 2012, was false. Petitioner knew the zoning for its parcel was residential. Petitioner did nothing to correct the errors after they were known and before the permits were issued. An applicant has an affirmative duty to submit truthful, accurate information.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Transportation enter a final order revoking the permits for the subject sign. DONE AND ENTERED this 2nd day of October, 2013, in Tallahassee, Leon County, Florida. S J. D. PARRISH Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 2nd day of October, 2013. COPIES FURNISHED: Gary B. Frese, Esquire Frese, Hansen, Anderson, Anderson, Heuston and Whitehead, P.A. Suite 301 2200 Front Street Melbourne, Florida 32901 Kimberly Clark Menchion, Esquire Department of Transportation Mail Station 58 605 Suwannee Street Tallahassee, Florida 32399 Trish Parsons, Clerk of Agency Proceedings Florida Department of Transportation Haydon Burns Building 605 Suwannee Street, Mail Stop 58 Tallahassee, Florida 32399-0450 Ananth Prasad, Secretary Florida Department of Transportation Haydon Burns Building 605 Suwannee Street, Mail Stop 57 Tallahassee, Florida 32399-0450 Gerald B. Curington, General Counsel Florida Department of Transportation Haydon Burns Building 605 Suwannee Street, Mail Stop 58 Tallahassee, Florida 32399-0450
The Issue The issues are whether the Department of Children and Family Services should impose an administrative fine on Petitioner because children at Petitioner’s child care facility were playing in an area that did not comply with the Department’s rule governing outdoor play areas, and if so, how much should the fine be.
Findings Of Fact Petitioner operates a licensed child care facility located in Lake Wales. The facility’s license number is C14PO0223. Petitioner’s facility, which is owned by James and Vivian Loydd, has a licensed capacity of 25 children. The facility only serves “school age” children, ages five through The Loydds own another child care facility in Lake Wales that serves younger children. Petitioner’s facility is operated on the grounds of a church located on the northeast corner of Scenic Highway and Sessoms Avenue. Scenic Highway is a busy two-lane commercial road that is used as a “cut-through” to get to a main highway. The posted speed limit on Scenic Highway is 35 miles per hour. Sessoms Avenue is a residential street. It is not heavily-traveled. The church grounds include a fellowship hall, classrooms, and an office in one building and a worship auditorium in another building.2 The church also includes a fenced playground area adjacent to the office.3 The worship auditorium building and the fellowship hall/classroom/office building are separated by a paved parking area, which is approximately 50 feet wide and 160 feet long. The parking area includes approximately six handicapped parking spaces.4 Access to the handicapped parking area is provided by a narrow, one-way driveway off of Sessoms Avenue. The driveway runs through a covered breezeway between the church office and the worship auditorium.5 The main parking area for the church is located adjacent to Scenic Highway.6 That parking area can be accessed from either Scenic Highway or Sessoms Avenue. The Sessoms Avenue entrance to the main parking area is not the same driveway that is used to access the handicapped parking area. There are no barriers between the handicapped parking area and the main parking area or Scenic Highway; however, the handicapped parking area is more than 90 feet from Scenic Highway. On March 11, 2004, the Department conducted a routine investigation of Petitioner’s facility. The inspection was conducted by Glynnis Green. Ms. Green arrived at Petitioner’s facility at approximately 3:00 p.m. She turned into the church grounds by way of the driveway off Sessoms Avenue. Ms. Green was driving very slowly along the driveway through the breezeway because she was unfamiliar with the layout of the facility. As Ms. Green was driving through the breezeway, she saw a child chasing after a ball that had rolled across the path of her car. Ms. Green stopped her car and the child ran in front of her car, retrieved the ball, and then ran back in front of her car to the handicapped parking area where he was playing with other children.7 Ms. Green was only driving three to five miles per hour at the time she first saw the child, and she was able to stop her car in plenty of time to avoid hitting the child. The child crossed approximately ten to 15 feet in front of Ms. Green’s car. The child who crossed in front of Ms. Green’s car was playing ball with seven other children in the handicapped parking area.8 Another three children were sitting on the step outside of the classroom building with Stephanie Pride, the teacher who was supervising the children at the time.9 A total of 11 children were at Petitioner’s facility on the day of Ms. Green’s investigation. All of the children were “school age,” and all of the children were outside with Ms. Pride. Ms. Pride was the only teacher at the facility at the time. The other teacher, “Miss Tina,” left approximately 10 minutes before Ms. Green arrived. The facility’s director was on maternity leave, and the Loydds were at their other child care facility. Ms. Pride and the Loydds acknowledged at the hearing that it was inappropriate for the children to be playing outside in an unfenced area with only one supervisor. They acknowledged their unfamiliarity with the Department’s rule requiring two supervisors under such circumstances, and they accepted responsibility for their lack of familiarity. After Ms. Green parked her car, she directed Ms. Pride to take the children inside. Ms. Pride did so, and Ms. Green commenced her inspection of Petitioner’s facility. After completing her inspection, Ms. Green filled out the Department’s standard inspection checklist form. On the form, Ms. Green cited Petitioner’s facility for six violations,10 including a violation of Florida Administrative Code Rule 65C- 22.002(4)(e) for the children playing in the unfenced handicapped parking area. Ms. Green described that violation on the checklist as follows: The center did not have fencing for the outdoor play area that was safe from traffic. They were allowing the children to play in the parking lot and a child was witnessed running after a ball into the path of a car entering the parking lot. The center did not have an additional staff member present in the unfenced outdoor play area used for school-age children. The center did not have written authorization from the department to operate without a fence. All of the violations cited by Ms. Green were corrected at the time of the inspection or within the time set by Ms. Green for her follow-up inspection. The violation related to the children playing in the handicapped parking area was corrected at the time of the inspection by Ms. Pride taking the children inside. Ms. Green explained the results of her inspection to Ms. Pride and the Loydds, who had come to the facility at some point during Ms. Green’s inspection. She did not indicate what action the Department might take based upon the cited violations, because she did not know. Mr. Loydd asked Ms. Green what could be done to remedy the violation related to the outdoor play area. Ms. Green suggested that the facility could erect barricades around the handicapped parking area while the children were playing in that area in order to keep the children in and the cars out. On March 12, 2004, the day after Ms. Green’s inspection, Mr. Loydd purchased $272.63 of materials to implement Ms. Green’s suggestion. The materials included four orange traffic cones, four orange posts with reflectors on top, and two rolls of four-foot high orange plastic fencing.11 Mr. Loydd planned to place two cones on the driveway in front of the breezeway and two cones at the end of the handicapped parking area. He also planned to place two posts at each end of the handicapped parking area and then run fencing between each set of posts in order to enclose the handicapped parking area.12 The cones, posts, and fencing will be set out when the children are playing in the handicapped parking area, and will be removed when the children are playing inside. After Ms. Green returned to her office, she provided the completed inspection checklist to her supervisor, Patricia Hamilton, for further action. After reviewing the checklist and discussing the matter with Ms. Green, Ms. Hamilton determined that a fine should be levied against Petitioner based upon the children's playing in the unfenced handicapped parking area. Ms. Hamilton considered the violation to be serious because the children could have been seriously injured if they were struck by a car while playing in the unfenced parking area. Ms. Hamilton determined that a $250.00 fine would be appropriate under the circumstances. She testified that the “objective” of the fine was to impress upon Petitioner the seriousness of the violation so as to ensure that it would not happen again. The proposed $250.00 fine was based solely on the violation related to the children playing in the handicapped parking area. Ms. Green and Ms. Hamilton each testified that the other violations had been promptly resolved to the Department’s satisfaction and that the proposed fine was not based upon those violations.13 A certified letter was sent to Petitioner on April 9, 2004, under Ms. Hamilton’s signature advising Petitioner of the Department’s intent to impose a $250.00 fine. The letter advised Petitioner of its right to request a hearing on the Department’s intended action. The Loydds responded to the Department’s letter through a letter dated April 28, 2004. In that letter, the Loydds requested a hearing, and also stated that they had “purchased cones and barrier protection at the cost of $275.00 to keep traffic out of the drive thru so we are requesting the department to rescind the fine and to grant the use of the drive through as part of the play area.” Ms. Hamilton did not take any action on the Loydds' request that they be allowed to use the handicapped parking area as an outdoor play area. She did not recall seeing the Loydds’ letter, and because the letter requested a hearing on the proposed fine, it is likely that Ms. Hamilton’s assistant sent it directly to Tallahassee for processing. The Loydds did not follow up with Ms. Hamilton regarding their request for approval of their use of the handicapped parking area as an outdoor play area. Mr. Loydd spoke to another Department inspector, Vicki Richmond, about using the cones and fencing to enclose the handicapped parking area, but Ms. Richmond told him that she did not think that the Department would approve that plan. The Department and the Loydds are equally at fault for the Department’s failure to take prompt action on the request for approval of Mr. Loydd’s proposal to use the handicapped parking area as an outdoor play area. The Department is at fault because, as it acknowledged in its PRO (at pages 7-8), it did not closely review the April 28, 2004, letter from the Loydds that clearly requested approval of that area as an outdoor play area, and the Loydds are at fault for not formally following up with Ms. Hamilton after she failed to respond to the letter and/or after Mr. Loydd received conflicting information from Ms. Green and Ms. Richmond regarding the viability of his proposal. The decision to approve an unfenced outdoor play area is made by Ms. Hamilton and a “team” of inspectors and supervisors. It typically takes approximately one week for such a decision to be made once a formal request is received.14 Petitioner has not used the handicapped parking area as an outdoor play area since Ms. Green’s inspection. No children have been observed playing in that area during the Department’s follow-up inspections. None of the violations cited by Ms. Green were repeat violations. Petitioner has not been cited for any previous violations by the Department relating to the safety of children at its facility.
Recommendation Based upon the foregoing findings of fact and conclusions of law, it is RECOMMENDED that the Department issue a final order imposing an administrative fine on Petitioner in the amount of $100.00. DONE AND ENTERED this 16th day of August, 2004, in Tallahassee, Leon County, Florida. S T. KENT WETHERELL, II Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 16th day of August, 2004.
The Issue Whether an application for an outdoor advertising permit for a sign in Santa Rosa County should be granted or denied.
Findings Of Fact The Department of Transportation is the state agency responsible for the regulation of outdoor advertising signs that are located on all federal-aid primary highways. U.S. Highway 90 (U.S. 90) is a federal-aid primary highway. A permit is required prior to erecting an outdoor advertising sign on all federal-aid primary highways. Southeast- SD, LLC (Southeast) filed an application for an outdoor advertising permit, application # 57549/57550 (the application) on June 29, 2009. Southeast's proposed sign structure meets the size and height requirements of section 479.07. The parcel was commercially zoned in accordance with the provisions of section 479.11, Florida Statutes. Southeast's application site is located on U.S. 90 at milepost 3.118, approximately 550 feet east of the centerline of Woodbine Road. The Department denied Southeast's application and issued a Notice of Denied Outdoor Application (initial denial) on July 29, 2009. The reason stated in the initial denial was: Sign does not meet spacing requirements (1500' for interstates, 1000' for FAP). [s. 479.07(9)(a),1.,& 2. F.S.] In conflict with permitted sign(s), tag#(s): CC479. Held by: Bill Salter Advertising, Inc. Bill Salter Advertising, Inc. (Salter's) sign with tag CC479 was located on U.S. 90 less than 500 feet from the application site. Permit CC479 was the subject of a Department revocation proceeding.2/ On March 8, 2010, the Department issued a Clerk's Order of Dismissal on the challenge to the revocation of CC479. Thus, the revocation of the conflicting sign, CC479, was final on March 8, 2010. On August 16, 2010, the Department issued an Amended Notice of Denied Application (Amended Notice). In the Amended Notice, the Department gave a different reason for the denial. The reason given in the Amended Denial concerned a different Salter tag: Sign does not meet spacing requirements (1500' for interstates, 1000' for EAP). [s. 470.07(9)(a),1., & 2. FS] In conflict with permitted sign(s): CF793. Held by: Bill Salter Advertising, Inc." CF793 was originally permitted in 1978. At that time, an application for a sign permit was reviewed and notated by the Department, and became the actual permit. The application for CF793 contains information that is type-written on the application form, presumably by the applicant, Salter. In the portion of the application form stating "DOT DESCRIPTION OF SIGN LOCATION (DOT USE ONLY)" the following is hand-written: "Sect. 59 W- 39.95 Miles W-SR 85." Most of the application/permit was filled out by the applicant, and part of it was filled out by the Department. In 1996, the Florida Legislature amended section 479.02, directing the Department to inventory and determine the location of all signs on the state, interstate, and federal-aid primary highway systems. The Department conducted the inventory and, upon completion, sent the database information to each sign owner, giving each owner an opportunity to challenge the accuracy of the results. Salter did not file such a challenge regarding CF793. As of July 30, 2009 (the date of the initial denial), tag CF793 was shown at milepost 13.205 on U.S. 90, in a location approximately 13 miles away from the application site in the Department's database created pursuant to section 479.02(8). Tag CF793 was physically located 13 miles away from its originally permitted location. The Department acknowledges that tag CF793 was not valid in its location 13 miles away from its current location, where it was located from at least 1998 to 2010. The database reflected milepost 13.205 as the location for CF793 from 1998 until 2010. In 2004, the Department sent Salter a Notice of Non- Compliance demanding that Salter post tag CF793 at milepost 13.205. In October 2009, the Department received a letter from Salter regarding moving CF793 to the location specified in the 1978 permit. At this point, the Department investigated the original application and discovered a "huge discrepancy" between the database location and the permit location in the Department's files. The Department has no documentation regarding how tag CF793 came to be located at milepost 13.205 since the 1998 inventory. The Department decided that its database was incorrect and that it needed to be corrected. On February 1, 2010, the Department changed its database to reflect the location for CF793 as milepost 2.993 on U.S. 90. Salter posted the tag for CF793 at its current location sometime after March 22, 2010 and prior to May 3, 2010. Once Salter placed the tag for CF793, the database was changed again to reflect the physical tag location at milepost 2.950 on U.S. 90, the "current location." The Department hired Cardno TBE, an engineering firm, to conduct field work. An inspector performed field measurements on May 3, 2010, using the wheel and laser methods for field measurement. The inspector identified the stake that was in the ground on Southeast's proposed sign site. He measured along the edge of the pavement on U.S. 90 from the location marked by Southeast to the new location of Salter's CF793 tag. The inspector determined that the distance between the proposed site and the nearest permitted sign, CF793, is 890 feet. Based upon these findings, the Department then determined that Southeast's proposed sign did not meet the 1000- foot spacing requirement. By letter dated May 27, 2010, the Department notified Salter that the location of CF793 was "nonconforming" and that pursuant to Florida Administrative Code Rule 14-10.007, a completed sign must be erected within 270 days or the permit would be revoked. No sign has been built, and the permit has not been revoked. Moreover, it appears that a sign will never be built, as the Department is in possession of correspondence from Santa Rosa County to Salter indicating that a sign cannot be constructed at the current location of tag CF793 due to conflict with several local ordinances. Also on May 27, 2010, the Department sent a letter to Southeast stating that CF793 "now presents a spacing conflict" with Southeast's application location. The letter further states that the Department had advised Salter that a completed sign must be erected within 270 days and that if no sign is erected within that time frame, the permit would be revoked. On August 16, 2010, three months later, the Department amended its denial as set forth above in paragraph 8. Just prior to the hearing, the Department again sent the inspector to conduct another field measurement. This time, the inspector relied upon information regarding the location of the sign from the original application/permit that was provided by the applicant (Salter) in 1978. That is, the inspector measured from a location described by the applicant in the original permit application, then measured the distance from the location to Southeast's proposed site, and determined the distance to be 884 feet. In making these measurements, the inspector assumed that the nearest intersection in 1978 was in the same location as today, that the original measurer started the measurement from the centerline of that intersection, and that the distance from the nearest intersection indicated by Salter on the original application/permit was measured with the same accuracy as a hand-wheel or laser.3/
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law set forth herein, it is RECOMMENDED: That the Department of Transportation enter a final order approving Southeast's sign permit application. DONE AND ENTERED this 21st day of February, 2011, in Tallahassee, Leon County, Florida. S Barbara J. Staros Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 21st day of February, 2011.
