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 The issue for determination is whether Petitioner's expulsion of Respondent from school is appropriate pursuant to provisions of Union County School Board Rule 5.37 and Section 230.23(6), Florida Statutes.
Findings Of Fact Respondent is R.S.V. He was a senior year student at Union County High School in October, 1994. Donald Leech was the principal of Union County High School in October, 1994, when he was apprised that there was a possibility of sale and possession of marijuana at the school. Leech contacted the school resource officer, Union County Sheriff's Deputy Charles Townsend, Jr., and an investigation was launched. Efforts of Townsend and Leech failed to yield any evidence of contraband substances on the school campus that could be linked to any individual or tested for purposes of subsequent prosecution. They had, however, obtained information about an event involving the alleged use of marijuana which had occurred on the school campus and allegedly involved Respondent. As a result, their investigation focused on Respondent. Townsend was apprised by his superior at the sheriff's department that a criminal prosecution could not be maintained due to the lack of admissible evidence or a "corpus delicti." Still, Leech and Townsend determined to question Respondent. On October 11, 1994, Leech and Townsend interrogated Respondent regarding his participation in the possession of a marijuana "joint" on school property on October 6, 1994. Townsend first apprised Respondent of his right against self- incrimination through the reading to Respondent of "Miranda" warnings regarding incriminating statements. The questioning then began. In response to questions, Respondent denied any knowledge of the October 6, 1994, incident. Leech failed to gain an admission from Respondent even though Leech advised Respondent that suspension for 10 days for being in an improper area (the school parking lot) was the only likely penalty. Leech then left the room. Respondent asked to telephone his mother. Townsend agreed. Respondent called his mother and explained the situation to her. She asked to speak with Townsend. Townsend told her that sufficient evidence existed to criminally prosecute Respondent. Respondent's mother told Townsend to cease questioning her son until Respondent's father arrived. Townsend complied and left Respondent alone in the room. Respondent's father soon arrived. He did not speak with Respondent. He, likewise, was informed by Townsend that sufficient evidence for prosecution existed, but that co- operation by Respondent would go a long way with authorities and have an impact on the likelihood of prosecution. Then, with the assent of Leech and Townsend, Respondent's father spoke privately with two other youths who were alleged to be involved in the incident. As a result of his conversation with the two youths, Respondent's father learned that his son had been present at a incident on school property where an alleged marijuana cigarette had been smoked but that his son had refused to participate in smoking the "joint." Respondent's father then spoke with Leech and Townsend. In addition to the earlier advice by Townsend of leniency if his son co-operated with the investigation, Respondent's father was now informed by Leech that only a 10 day suspension from school was contemplated because of Respondent's presence during the incident which had occurred in the school parking lot, an "improper area." Without any discussion with his son or legal counsel and solely in reliance upon the representations made to him by Leech and Townsend, Respondent's father then confronted his son and told Respondent to provide a written statement to Leech and Townsend. Respondent's statement reads as follows: On October 6, 1994. Myself, people 1 and people 2 walked out to the parking lot. People 1 lit up a marijuana joint and smoked it then passed it to people 2. After that, people 2 passed it to me. The 2 peoples walked off and I put it out and left it in the parking lot. After school I picked it up and kept it. Respondent later admitted to his father that he subsequently destroyed the remains of the cigarette after leaving school property. While Respondent's written statement references a "marijuana joint", no evidence was presented at the final hearing which is dispositive of whether the substance was, in actuality, cannabis. On the basis of Respondent's written statement, Leech instituted an immediate 10 day suspension of Respondent. On October 13, 1994, two days later, Leech formally recommended to the Union County School Superintendent, Eugene Dukes, that Respondent be expelled for the remainder of the school year. At final hearing, Leech rationalized that his expulsion recommendation was based upon Respondent's actual possession of the alleged contraband, as opposed to merely being present at the incident. By notice dated October 12, 1994, one day before the formal notification to him from Leech, Respondent's mother was informed by Superintendent Dukes that he would recommend the expulsion of Respondent for the remainder of the school year. The notice set forth no specific factual basis for the expulsion recommendation, but recited that the action was taken on the basis of misconduct charges set forth in Section 230.33 and Section 232.26, Florida Statutes, as well as Union County School Board Rules Section 5.37. Dukes also recommended the expulsion of the other students who admitted to actually smoking the alleged marijuana cigarette in question. The proposed expulsion of Respondent prevented his return to Union County High School and resulted in his completion of his senior year of high school in the school district of Columbia County, Florida.
Recommendation Based on the foregoing, it is hereby RECOMMENDED that a Final Order be entered by the Union County School Board imposing a 10 day suspension upon Respondent for violation of school restrictions regarding his presence in an improper location. FURTHER RECOMMENDED that such final order direct the destruction or sealing of school records that document the expulsion of Respondent for possession of a controlled substance due to the absence of credible evidence to sustain such charge. DONE and ENTERED this 8th day of May, 1996, in Tallahassee, Leon County, Florida. DON W. DAVIS 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 8th day of May, 1996. APPENDIX The following constitutes my ruling pursuant to Section 120.59, Florida Statutes, on proposed findings of fact submitted by the parties. Petitioner's Proposed Findings 1. Accepted. 2.-11. Rejected, subordinate to HO findings. 12.-13. Rejected, legal conclusions, relevancy. 14. Rejected as to first preparatory phrase of the paragraph as unsupported by weight of the evidence. Remainder rejected as unnecessary to result reached. 15.-16. Rejected, subordinate to HO findings. 17.-18. Incorporated by reference. 19.-20. Rejected, subordinate. 21. Rejected, legal conclusion. Respondent's Proposed Findings 1.-10. Accepted, but not verbatim. Incorporated by reference. Accepted. COPIES FURNISHED: Ronald G. Meyer, Esquire Robert J. Sniffen, Esquire Meyer and Brooks Post Office Box 1547 Tallahassee, Florida 32302 Stephen N. Bernstein, Esquire Post Office Box 1642 Gainesville, Florida 32602 Eugene Dukes, Superintendent Union County School Board 55 West Sixth Street Lake Butler, Florida 32054 Frank T. Brogan, Commissioner Department of Education The Capitol Tallahassee, Florida 32399-0400
The Issue The issues in this case concern the question of whether Respondent is subject to the payment of a $2,078 fine for violation of Section 316.545, Florida Statutes. That statutory provision relates to operation of a commercial vehicle in Florida without appropriate registration.
Findings Of Fact On April 9, 1990, a commercial vehicle operated by Respondent, as carrier, was stopped and inspected by Petitioner's inspector Deborah Charlene Andrews. This inspection took place in Jackson County, Florida. The commercial vehicle operated by Bobby Charles Alphin was weighed. It was determined that the gross vehicle weight was 76,560 pounds. Before entering Florida the commercial vehicle in question had been issued a fuel use trip permit effective April 8, 1990 through April 18, 1990. By contrast the commercial vehicle did not have either an apportioned, 10-day or single-trip vehicle registration which would allow it to operate in Florida on April 9, 1990. A copy of the fuel use emergency trip permit referred to before is found as Petitioner's Exhibit No. 1, admitted into evidence. A copy of the apportioned vehicle registration and identification cab card for the vehicle may be found as Petitioner's Exhibit No. 2, admitted into evidence. It does not reflect registration in Florida in the apportionment. Florida records do not reveal that a 10-day temporary International Registration Plan (I.R.P.) trip registration had been issued or a single trip permit issued registering the commercial vehicle in question. In the absence of such a registration allowing the trip in Florida, the inspector issued a trip permit registration upon the payment of a $30.00 fee as referred to in Petitioner's Exhibit No. 4, admitted into evidence. This exhibit is a copy of the I.R.P. trip permit. The trip permit that was issued allowed operation in Florida for 10 days. A copy of the load report and field receipt executed by the inspector may be found as Petitioner's Exhibit No. 3, admitted into evidence, which reflects the gross vehicle weight and the fact that this exceeded the legal weight of 35,000 pounds and the assessment a $.05 per pound fine for the weight above the legal weight. That fine is $2,078 for being overweight in the amount of 41,560 pounds. Again that overweight amount is derived in subtracting the allowed weight of 35,000 pounds from the gross vehicle weight of 76,560 pounds.
Recommendation Based upon the consideration of the facts found and in view of the conclusions of law reached, it is, RECOMMENDED: That a Final Order be entered which fines the Respondent in the amount of $2,078 for violation of Section 316.545, Florida Statutes. DONE and ENTERED this 12th day of March, 1991, in Tallahassee, Florida. CHARLES C. ADAMS, 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 12th day of March, 1991. APPENDIX The facts as proposed by the Petitioner are subordinate to fact found. COPIES FURNISHED: Vernon L. Whittier, Jr., Esquire Department of Transportation Haydon Burns Building, M.S.-58 605 Suwannee Street Tallahassee, FL 32399-0458 Philip R. Polachek, General Manager Little Donkey Enterprises, Inc. Post Office Box 822 Estacada, OR 97023 Ben G. Watts, Secretary Department of Transportation Haydon Burns Building, M.S.-58 605 Suwannee Street Tallahassee, FL 32399-0458
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.
Conclusions This matter came before the Department for entry of a Final Order upon submission of an Order Relinquishing Jurisdiction and Closing File by William F. Quattlebaum, an Administrative Law Judge of the Division of Administrative Hearings, entered October 7, 2011. The Department hereby adopts the Order Closing File as its Final Order in this matter. Said Order Closing File was predicated upon Petitioner’s notice of dismissal without prejudice of the Amended Complaint contesting the intended denial of Respondent’s application for licensure. Accordingly, it is hereby ORDERED AND ADJUDGED that Petitioner’s application for licensure as a DUI Program in the 13" Judicial Circuit is denied. — DONE AND ORDERED this | [ a day of October, 2011, in Tallahassee, Leon County, Florida. Sou _-“ SANDRA C, LAMBERT, Direct Division of Motorist Services Department of Highway Safety and Motor Vehicles Neil Kirkman Building 2900 Apalachee Parkway Tallahassee, Florida 32399 Filed with the Clerk of the Division of Motorist Services this { pte day of October, 2011. NOTICE OF APPEAL RIGHTS Judicial review of this order may be had pursuant to section 120.68, Florida Statutes, in the District Court of Appeal! for the First District, State of Florida, or in any other district court of appeal of this state in an appellate district where a party resides. In order to initiate such review, one copy of the notice of appeal must be filed with the Department and the other copy of the notice of appeal, together with the filing fee, must be filed with the court within thirty days of the filing date of this order as set out above, pursuant to Rules of Appellate Procedure. Copies furnished: Lilja Dandelake, Esquire Judson M. Chapman, Esquire Assistant General Counsels Department of Highway Safety and Motor Vehicles Donna Blanton, Esquire Bert Combs, Esquire Attorneys for Intervenor Radey Thomas Yon & Clark, P.A. 301 S. Bronough Street, Suite 200 2900 Apalachee Parkway, Rm. A-432 Tallahassee, Florida 32399-0504 Scott Boardman, Esquire David Scott Boardman, P.A. Attorney for Petitioner 1710 E. Seventh Ave. Tampa, Florida 33605 Tallahassee, FL 32301 William F. Quattlebaum Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, FL 32399
Findings Of Fact The Bid The Department, through an Invitation to Bid (ITB), sought to secure a contract for the management of the Dade County Public Health Unit parking lot located at 1340 N.W. 14th Street, Miami, Florida. By April 1, 1986, the bid opening date, bids had been filed with the Department on behalf of Kinney, Floyd, and LaSalle Parking, Inc. (LaSalle). The Department's selection team reviewed the bids and recommended that the contract be awarded to Kinney. Consistent with the selection team's recommendation, by letter of April 2, 1986, the Department advised the unsuccessful bidders that the contract had been awarded to Kinney and advised them of their right to protest the award. Floyd filed a timely protest of the award and alleged, inter alia, that Mr. Shera, the Department's Business Manager, had outlined the criteria to be used in evaluating the bids as including a consideration of the bidder's ability to: Provide parking services to . . . employees and clients for the lowest monthly rate. 3/ Upon receipt of Floyd's protest, the Department reevaluated the bids and the ITB specifications, and concluded that the ITB specifications contained an ambiguity which had resulted in a lack of uniform bid response. Therefore, the Department rejected all bids and rebid the contract. 4/ Pertinent to this case the bid specifications provided. SPACES AVAILABLE: 13 Uncovered Reserved, present rate $10.50/ month. 22 Covered Reserved, present rate $10.50/ month. 115 Reserved for Health Department Employees, present rate $7.35/month. 3 Handicapped 45 Daily rental 45 Daily rental 198 TOTAL CURRENT RATE: Reserved Parking $10.50/month. Health Department Employees $7.35/month Health Department Clients 50 percent discount on daily rates. Daily rates: 1st hour $1.00 Additional 1/2 hour $.50 All day $2.50 3:00 P.M. 7:00 P.M. $1.50. MANAGERIAL RESPONSIBILITIES: 3. That in consideration for such services, the OWNER will allow the MANAGER the exclusive right to charge, collect the established fees for all those wishing to have their cars parked upon the parking premises. All fees must be approved by the owner. And, the mandated Bid Sheet required a response to three proposals: PROPOSAL FOR OPERATING THE LOT: PROPOSED RATES: PROPOSED NET INCOME DISTRIBUTION: Kinney's response to the ITB proposed to retain the current rates and offered a net income distribution of 25% to Kinney and 75% to the Department. Floyd's response to the ITB proposed rates of: RESERVED PARKING : $9.35/MONTH HEALTH DEPARTMENT EMPLOYEES: $6.24/MONTH HEALTH DEPARTMENT CLIENTS : 50% DISCOUNT ON DAILY RATES DAILY RATES : 1ST HOUR $1.00 EACH ADDITIONAL 1/2 HR. $.50 : MAXIMUM ALL DAY $2.50 : 3PM - 7PM $1.50 and a net income distribution of 30% to Floyd and 70% to the Department. While it was the Department's intent to maintain the current rates and to evaluate the bids primarily on a net income distribution basis, the bid specifications were ambiguous and subject to an interpretation which would permit a bid based on different parking rates, as well as a variable distribution basis. Accordingly, because of the ambiguity in the bid specifications, all bids submitted in response to the initial letting should be rejected. The Rebid On rebid, the Department amended its bid specifications to clarify its intent that the current rates would remain in effect, and delineated the "determining factors for bid award. Specifically, the rebid specifications provided: SPACES AVAILABLE: 13 Uncovered Reserved, present rate $10.50/ month. 22 Covered Reserved, present rate $10.50/ month. 115 Reserved for Health Department Employees, present rate $7.35/ month. 3 Handicapped. 45 Daily rental CURRENT RATES: Reserved Parking $10.50/month Health Department Employees $7.35/month Health Department Clients 50% discount on daily rates. Daily rates: 1st hour $1.00 Additional 1/2 hour $.50. All day $2.50 3:00 P.M. - 7:00 P.M. $1.50 The rates will remain the same. The owner will have full jurisdiction in raising or lowering said rate any time during the contract period. * * * Determining Factors for Bid Award: Unarmed parking attendant (outline measures to be taken to secure vehicles in lot). Experience (outline number of years in parking business as parking lot management firm.) Proposed net income distribution (percent split). Provide bilingual parking attendant (Spanish and English, French desirable but not mandatory). By May 14, 1986, the rebid opening date, Kinney, Floyd and LaSalle were the only bidders to respond to the ITB. The Department's selection team reviewed the bids and again recommended that the contract be awarded to Kinney. Accordingly, by letter of June 6, 1986, the Department advised the unsuccessful bidders of its decision to award the contract to Kinney and of their right to protest the award. Floyd filed a timely notice of protest and formal written protest of the proposed award. Floyd's formal protest, filed June 6, 1986, asserted that: Floyd & Associates Protection Corp. submitted the lowest responsive, responsible bid, and should be awarded this contract - Bid No. DCPHU 4/86. We protest the recommendation of the Parking Lot Management Bid Selection Team that Kinney Systems, Inc. be awarded this contract. The bidding process is supposed to protect small companies from the powers of a large company. At all times, the purchasing officers should operate with integrity and fairness to all suppliers. Floyd & Associates has a proven track record and should not be looked upon as inferior because we haven't been in business as long as Kinney. However, if you judge us on an equal and unbiased basis, Floyd should be awarded this contract. We have enclosed exhibit A as a true comparison as to the merits of both companies. 5/ Floyd & Associates should be awarded this contract; we deserve a piece of the American Dream. The Reevaluation Floyd's charge of racial discrimination, planted by Floyd's first protest and tacitly reasserted by it's second protest, was not lost on the Department. Notwithstanding the unsubstantiated nature of Floyd's charge, the Department, without notice to Kinney, purportedly reevaluated the bids. By letter of July 2, 1986, the Department advised Kinney, without explanation, that based on the "selection team's" recommendation the contract had been awarded to Floyd. 6. Kinney filed a timely notice and formal protest of the Department's action. The Department contends that Section 120.53(5)(d), Florida Statutes, authorized its reevaluation of the bid to amicably resolve the protest. The Department's reliance on section 120.53(5)(d), as permitting its unilateral decision to vitiate its prior award of the contract to Kinney, is misplaced. Section 120.53(5), Florida Statutes, establishes a statutory framework for resolution of protests arising from the contract bidding process. Pertinent to this case, section 120.53(5) provides: Upon receipt of a notice of protest which has been timely filed, the agency shall stop the bid solicitation process or the contract award process until the subject of the protest is resolved by final agency action, unless the agency head sets forth in writing particular facts and circumstances which require the continuance of the bid solicitation process or the contract award process without delay in order to avoid an immediate and serious danger to the public health, safety and welfare. The agency, on its own initiative or upon the request of a protestor, shall provide an opportunity to resolve the protest by mutual agreement between the parties within 7 days, excluding Saturdays, Sundays, and legal holidays, of receipt of a formal written protest. If the subject of a protest is not resolved by mutual agreement within 7 days, excluding Saturdays, Sundays and legal holidays, of receipt of the formal written protest and if there is no disputed issue of material fact, an informal proceeding shall be conducted pursuant to s.120.57(2) and applicable agency rules before a person whose qualifications have been prescribed by rules of the agency. If the subject of a protest is not resolved by mutual agreement within 7 days, excluding Saturdays, Sundays, and legal holidays, of receipt of the formal written protest and if there is a disputed issue of material fact, the agency shall refer the protest to the division for proceedings under s. 120.57(1). Under the provisions of section 120.53(5)(c), the Department was bound, absent circumstances not present here, to stop the bid solicitation process pending resolution of Floyd's protest by final agency action. Under the framework of 120.53(5)(d), final agency action could only occur through mutual agreement of the parties; an informal proceeding pursuant to Section 120.57(2) Florida Statutes, or a formal proceeding pursuant to Section 120.57(1), Florida Statutes. See: Cianbro Corp. v. Jacksonville Transportation Authority, 473 So.2d 209 (Fla. 1st DCA 1985). The provisions of section 120.53(5)(d), which provide an opportunity to resolve a protest by "mutual agreement between the parties," is not an invitation to the Department to unilaterally reevaluate its decision. Such resolution can only occur "between the parties"; which must include, at a minimum, the successful bidder, the protestant, and the Department. Since Kinney did not participate or concur in the Department's action, and there existed disputed issues of material fact, Floyd's protest could only be resolved by a formal 120.57(1) proceeding. Accordingly, the Department's subsequent decision to award the contract to Floyd was improper. 7/ The Bidders Kinney, which has operated the subject parking lot under contract with the Department for the past 6 years, is one of the world's largest parking companies, with over 50 years of experience in parking lot operations. Kinney presently parks approximately 20,000,000 automobiles annually in facilities it owns, leases or operates under contract. These facilities range in size from fewer than 50 spaces to those with thousands of spaces. Currently, Kinney operates 20 lots in south Florida, which contain 16-17,000 spaces and generate in excess of $20,000,000 in annual receipts. The proof establishes that Kinney has the requisite experience to operate the subject facility, properly supervise its operations, and accurately account for the proceeds generated by the parking operation. Kinney's rebid proposed to operate the subject parking facility predicated on a net income distribution of 25% to Kinney and 75% to the Department. The protestant, Floyd, was established in August 1982 and, until approximately November 1985, had been exclusively involved in providing security services. In November 1985, Floyd received a contract from the Immigration and Naturalization Service (INS) to manage its parking garage in Miami, Florida; which accounts for Floyd's total experience in parking lot management. Under Floyd's agreement with INS, it still operates as basically an unarmed security service. Since the majority of patrons utilizing the INS garage are clients of INS, no fees are collected. In the unusual event that the patron's ticket is not validated by INS and a fee is due, Floyd's simply collects the money and immediately gives it to an INS official. Floyd offered no evidence that it has any experience operating an in-and-out lot similar to the subject parking lot, or that it has any established or proposed methods of management, supervision and accounting controls necessary to service the Department's parking lot. Floyd proposed, however, to operate the subject parking lot based on a net income distribution of 20 percent to Kinney and 80 percent to the Department. 8/ The Department's selection team evaluated the responses of Kinney and Floyd, and recommended that the contract rebid be awarded to Kinney even though the net income differential proposed by Floyd would facially generate more income for the Department. The selection team's recommendation was premised on its conclusion that given the experience of Kinney, juxtaposed with the inexperience of Floyd, it could expect a greater return from Kinney even with the lower net income differential. Of the 198 spaces in the Department's parking lot, only 45 are reserved for daily rental. The balance of the spaces are reserved on a fixed monthly rate for Department and other employees. Accordingly, the ability to maximize revenue in the lot is directly dependent upon the operator's supervision and control of the 45 daily spaces. Kinney has demonstrated its ability to insure that those spaces remain open for their intended purpose, to collect and accurately account for all funds collected, and to maximize revenues. Floyd on the other hand has no such experience and offered no evidence that it had any inkling of what was required to operate such a parking lot or any plans to acquire such expertise. The selection team's recommendation was therefore reasonable, and the Department's decision to award the contract to Kinney was premised on an honest exercise of its discretion. At hearing, Floyd chose not to participate and, accordingly, offered no evidence discrediting the Department's award to Kinney or supporting its entitlement. The Department did offer evidence, however, to support its decision to "re-award" the contract to Floyd and thereby vitiate its initial decision. The thrust of the Department's evidence was two fold: a claim of mismanagement by Kinney of the subject parking lot and a claim that the selection team incorrectly assumed Floyd was not properly licensed. The Department's assertions lack substance and conviction. The Department's claims of mismanagement are founded on losses occasioned in the operation of the parking lot from June through November 1985, the theft of a car from the parking lot, and alleged damages to four cars caused by the mechanical arm which controls ingress to the lot. The losses in revenue were not, however, the fault of Kinney. These losses resulted from Kinney's inability to use the 45 daily spaces because the Department had issued over 250 gate cards for its employees. Despite Kinney's protests, it was not until December 1985 that the Department cooperated in solving this problem by limiting the number of gate cards, and the severe over crowding in the lot was eliminated. The only other factor bearing on lost revenue was some theft by a Kinney gate guard; however, Kinney, consistent with its routine practice, used "shoppers" to police the integrity of its employee, and the employee was caught and discharged. Rather than reflect unfavorably on Kinney, its discovery of the theft is evidenced of its good supervision. The Department's remaining claims of mismanagement are equally without merit. The one car stolen from the lot during Kinney's tenure was that of a Department employee who had left her keys in the car. The damage, if any (none was shown), to four cars by the mechanical arm, was occasioned by one car following another car too closely into the lot. The mechanical arm was not shown to function improperly. The foregoing facts, together with the assurances of Mr. Shera, the Department's local manager, that Kinney and the Department have enjoyed a very favorable working relationship over the past six years, renders the Department's assertions of mismanagement not credible. The Department's final basis to vitiate its award to Kinney is predicated on its assertion that its selection team incorrectly concluded that Floyd did not hold an occupational license to operate a parking lot. Again, the Department's assertion is not credible. The proof is that Floyd's licensure was not the motivating factor in the selection team's award of the contract to Kinney. The team's decision was premised on Kinney's superior qualifications and perceived ability to generate more revenue for the Department, compared with the team's well founded concerns of Floyd's ability to perform. As importantly, Kinney advised Mr. Shera by letter of May 15, 1986, of its protest to Floyd's qualifications because of Floyd's purported failure to have an occupational license at the time of bid submittal. Mr. Shera, on behalf of the Department, awarded the contract to Kinney by letter of June 5, 1986, and did not disqualify Floyd. Accordingly, the evidence supports the conclusion that the Department did not incorrectly exclude Floyd because of any licensure requirement. The totality of the evidence, including the demeanor of the witnesses, compels the conclusion that the Department's decision to support Floyd's bid was occasioned by its desire to avoid any appearance of discrimination, as opposed to a fair exercise of its discretion. Such conduct is arbitrary and capricious. Accordingly, the evidence supports the award of the subject contract to Kinney.
Findings Of Fact A McDonald's sign visible to automobile traffic on the I-75 is located .08 miles north of CR-54 along the I-75, 934 feet into the interchange between the I-75 and CR-54 in Pasco County, Florida. The I-75 at this location is part of the federal interstate highway system and is outside an incorporated town or city. The sign has no permit tags attached and no permit tags have ever been approved for the site. The property on which this sign is erected is approximately 77' by 52' with the southeast corner cut off owned by McDonald's Corporation. The site is connected to the restaurant site by a 15 foot strip of land which intersects a proposed road 275 feet north of the restaurant site. The sign is 1122 feet from the restaurant as measured along the paved surface between the sign and restaurant. Between this sign and the restaurant along CR-54 is a Standard station, an Amoco station, a Circle K shop and a Days Inn. The closest businesses to the sign are Abe Chevron station and the Days Inn Motel. Respondent presented proposed plans evidencing an intent to construct a McDonald's playland on the property on which the sign is located, presumably as an integral part of the restaurant. However, at the time of the hearing the property served only as a site for the sign. McDonald's playlands have been developed as a selling tool for families traveling over interstate highways and are generally located adjacent to the restaurant so children occupying the playland can be monitored by the parents from inside the restaurant. Respondent's witnesses were aware of no McDonald's playland located other than immediately adjacent to the restaurant building. Construction of the playland at the site of the existing sign has never-been started due to construction, drainage and sewage disposal problems at the restaurant site.
The Issue Whether Respondent violated Sections 112.3143(3)(a), 112.3143(4), and 112.313(7)(a), Florida Statutes (1993), by committing the acts alleged in the Order Finding Probable Cause and, if so, what penalty is appropriate.
Findings Of Fact All times pertinent to this proceeding, Respondent served as a member of the Mexico Beach Planning and Zoning Board (Zoning Board). Respondent began his service on the Board in mid-April, 1994. In that public position, Respondent was subject to the requirements of Part III, Chapter 112, Florida Statutes, the Code of Ethics for Public Officers and Employees. In late 1993, Respondent contracted with the owners of Toucans Restaurant (Toucans) to build an additional story on the existing building. Toucans is a bar/restaurant located on Highway 98 in Mexico Beach, Florida. The Zoning Board is empowered to make decisions relative to zoning and rezoning matters, including the granting of parking variances. In furtherance of his work for Toucans, Respondent sought a parking variance from the Zoning Board. To this end, Respondent appeared before the Zoning Board on three separate occasions. The last time Respondent appeared before the Zoning Board regarding the parking variance for Toucans was April 19, 1994, shortly after his appointment to the Zoning Board. At that meeting, Respondent was representing Toucans before the Zoning Board and attempting to secure a parking variance for Toucans. At the April 19, 1994 meeting, when Respondent presented the Toucans parking variance issue before the Zoning Board, he participated in the Zoning Board's discussion of the matter. Prior to his participating in the Zoning Board's discussion of the Toucans matter on April 19, 1994, Respondent failed to formally announce his interest in the Toucan project. Respondent failed to file a written memorandum disclosing his interest in the matter prior to the April 19, 1994 meeting. Respondent failed to orally disclose the nature of his interest in the Toucans project at the April 19, 1994 Zoning Board meeting. At its April 19, 1994 meeting, the Zoning Board voted on the Toucans project. Respondent abstained from voting on the Toucans parking variance request at that meeting, but did not file a written memorandum disclosing his interest in the project within fifteen days of the vote. Respondent filed a Memorandum of Voting Conflict with respect to the Toucans parking variance request on May 27, 1994.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Final Order and Public Report be entered by the Florida Commission on Ethics finding that Respondent, Jim McCoullough, violated Sections 112.3143(3)(a), 112.3143(4) and 112.313(7)(a), Florida Statutes (1993), and imposing a civil penalty of $300.00. DONE and ENTERED this 30th day of April 1997, in Tallahassee, Florida. CAROLYN S. HOLIFIELD Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (904) 488-9675 SUMCOM 278-9675 Fax Filing (904) 921-6847 Filed with the Clerk of the Division of Administrative Hearings this 30th day of April 1997. COPIES FURNISHED: Eric Scott, Esquire Department of Legal Affairs The Capitol PL-01 Tallahassee, Florida 32399-1050 Kerrie Stillman Complaint Coordinator Florida Commission on Ethics Post Office Drawer 15709 Tallahassee, Florida 32317-5709 Mr. James Naus 115 Fifth Street Mexico Beach, Florida 32410 Bonnie Williams Executive Director Florida Commission on Ethics Post Office Drawer 15709 Tallahassee, Florida 32317-5709 Phil Claypool General Counsel Florida Commission on Ethics Post Office Drawer 15709 Tallahassee, Florida 32317-5709
The Issue Whether Petitioner is entitled to a refund for sales taxes paid by Petitioner to Respondent on valet parking transactions for the period May 1, 1997 through April 30, 2002.
Findings Of Fact The Department is the agency of the State of Florida charged with implementing the state tax statutes. The Sheraton operates a full service hotel, the Sheraton Bal Harbour, located at 9701 Collins Avenue, Bal Harbour, Florida. The Sheraton is licensed as a hotel under the provisions of Chapter 509, Florida Statutes (2004). The Sheraton’s principal business is providing lodging, food, and other services to the guests of its hotel. The Sheraton provides valet parking to its hotel guests and visitors. Upon arrival at the Sheraton, a guest or visitor arriving by motor vehicle provides his or her vehicle and the vehicle keys to the parking attendant. The parking staff provides the guest or visitor with a valet parking ticket. The parking attendant collects the valet parking fee upon departure or charges it to the guest room. The Sheraton’s parking is located in a building on the Sheraton’s grounds that is secure. No hotel guests, visitors, or members of the general public are allowed in the parking building. No guest or visitor to the Sheraton can park his or her vehicle on the Sheraton’s grounds without using the valet parking. There are no self-parking spaces on the Sheraton’s grounds. No member of the valet parking staff and no member of the hotel staff is authorized to use a guest’s or visitor’s vehicle for any activity other than to park and return the vehicle to the guest or visitor at his or her request. There is no time when the vehicle would not be delivered to the guest or visitor upon request. The Sheraton’s guest or visitor may request his or her automobile at any time and it is delivered.1 The Sheraton’s guest may go in and out and request the vehicle several times a day or night without a separate charge. (This may not apply to a visitor to the Sheraton.) There are not very many public overnight parking spots near the Sheraton. The Bal Harbour Shops2 are located across the street from the Sheraton. The Bal Harbour Shops has its own paid self- parking and valet parking services available. The Sheraton, on a regular basis, utilizes the Bal Harbour Shops’ parking spaces for its valet parking when there is overflow from the parking available on its premises. The Sheraton pays a per space charge to the Bal Harbour Shops for these parking spaces, and sales tax is included in this charge. The Sheraton’s fee for valet parking services is a flat fee and does not identify a separate charge for valet services, for a parking space, or for sales tax. The Sheraton advises its guests and visitors that it is not responsible for damages to the vehicle parked by the valet parking except through its staff’s negligence. The Sheraton does pay on a regular basis for fixing cars that are damaged while in its possession. The Sheraton’s valet parking ticket and signs posted at its entrance contain terms and conditions for the valet parking, which include the following: Vehicle is accepted for parking only. We (Sheraton) assume no liability for fire, theft, vandalism, flood, or damage in any case except through our own negligence. We are not bailees and are not responsible for loss or damage of any article left in vehicle including but not limited to radar detectors, cellular phones, money, etc. The owner of the vehicle acknowledges that he is in constructive possession and control thereof at all times. [3] No notification was made by the Sheraton to its guests or visitors regarding any sales tax on valet parking during the period at issue in this proceeding. Through internal accounting records, the Sheraton allocated a portion of the parking fees collected to sales tax and remitted that amount to the Department. Sales tax was not stated on any invoice nor did the Sheraton’s valet parking signs posted at the hotel’s entrance mention sales tax. During the period from May 1, 1997 through April 30, 2002, the valet parking charges ranged from $12.00 to $18.00 per day for overnight valet parking. On a monthly basis, during the refund period from May 1, 1997 through April 30, 2002, the Sheraton paid to the Department sales taxes on valet parking in the total amount of $329,497.20. On or about July 9, 2002,4 the Sheraton applied to the Department for a refund in the amount of $329,497.20 for the sales taxes it paid during the refund period. On June 11, 2003, the Department denied the refund request. On August 4, 2003, the Sheraton filed a protest with the Department. On April 27, 2004, the Department issued a Notice of Decision sustaining the denial of the refund. The Sheraton thereafter timely filed the Petition for Administrative Hearing which initiated this proceeding.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department enter a final order denying the subject application for a refund. DONE AND ENTERED this 4th day of October, 2004, in Tallahassee, Leon County, Florida. S CLAUDE B. ARRINGTON Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 4th day of October, 2004.
