The Issue The issues are whether Respondent engaged in a discriminatory housing practice, in violation of the Florida Fair Housing Act, Sections 760.20 through 760.37, Florida Statutes (2007),1 by refusing to grant an accommodation which would have allowed Ms. Rose Marie Owens to keep a comfort cat in her condominium, and, if so, the amount of damages suffered by Ms. Owens.
Findings Of Fact Ms. Owens was a resident owner of a condominium in Longboat Harbour Condominiums (Longboat Harbour) during the alleged unlawful housing practice. Ms. Owens was a seasonal resident of the condominium from sometime in July 1987 through March 2007. Ms. Owens still owns the condominium at Longboat Harbour with Mr. Hank Airth, her husband. However, Ms. Owens and Mr. Airth purchased a second condominium after the alleged unlawful housing practice, and Ms. Owens and Mr. Airth no longer reside in the Longboat Harbour condominium. Longboat Harbour is a covered, multifamily dwelling unit within the meaning of Subsection 760.22(2). The Longboat Harbour condominium owned by Ms. Owens and Mr. Airth was a dwelling defined in Subsection 760.22(4) at the time of the alleged unlawful housing practice. Respondent is the entity responsible for implementing the rules and regulations of the Longboat Harbour condominium association. Relevant rules and regulations prohibit residents from keeping cats in their condominiums. Sometime in May 2006, Ms. Owens requested Respondent to permit her to keep a comfort cat, identified in the record as “KPooh,” as an accommodation for an alleged handicap. Respondent refused the requested accommodation, and this proceeding ensued. In order to prevail in this proceeding, Petitioner must first show that Ms. Owens is handicapped. Neither Petitioner nor Ms. Owens made a prima facie showing that Ms. Owens is handicapped within the meaning of Subsection 760.22(7). Cross-examination of Ms. Owens showed that Ms. Owens suffers from a cardiovascular ailment, osteoarthritis, and a trigeminal nerve condition. Surgery performed sometime in the 1990s improved the nerve condition. After the surgery, all of the medical conditions of Ms. Owens have been successfully treated with various medications, with no significant modification of the medications before and after Ms. Owens acquired KPooh in 2000. The testimony of Ms. Owens during cross-examination shows that Ms. Owens has never been diagnosed as suffering from depression. Nor does that testimony show that Ms. Owens has ever been diagnosed with panic disorders or panic attacks. Finally, the testimony of Ms. Owens during cross-examination shows that Ms. Owens has never been diagnosed with an emotional or psychiatric condition. A preponderance of the evidence does not show that any of the health problems suffered by Ms. Owens substantially limits one or more major life activities. Nor does Respondent regard Ms. Owens as having a physical or mental impairment. Ms. Owens and others testified concerning the medical conditions of Ms. Owens. None of that testimony showed that the medical conditions substantially limit one or more major life activities for Ms. Owens. Mr. Airth drives the vehicle for Ms. Owens most of the time and prepares most of the meals at home. However, Mr. Airth performs both life activities because he wishes to perform them. Neither Mr. Airth nor Ms. Owens testified that Ms. Owens is unable to perform either life activity. Part of the therapy medically prescribed for Ms. Owens is a special bicycle for exercises that will improve some of the medical conditions of Ms. Owens. However, as Ms. Owens testified, “I have not submitted to that . . . [because] I hate exercise.” Ms. Owens admits that exercise therapy would improve some of her medical conditions. Ms. Owens first took possession of KPooh in 2000. KPooh was a stray cat that showed up at the primary residence of Ms. Owens and Mr. Airth in Maryland. KPooh was hungry. Ms. Owens gave KPooh food and adopted KPooh. Petitioner attempts to evidence the alleged handicap of Ms. Owens, in relevant part, with two letters from the primary care physician for Ms. Owens. Each letter was admitted into evidence without objection as Petitioner’s Exhibits 3 and 4. The first letter, identified in the record as Petitioner’s Exhibit 3, is dated May 4, 2006. The text of the letter states in its entirety: Mrs. Owens has been a patient of mine since 1990. I know her very well. It is my opinion that she would suffer severe emotional distress if she were forced to get rid of her cat. I request an exception to the “No Pet” rule in her particular case. I understand that the cat is confined to her home, and that it is not allowed outside to disturb other residents. Petitioner’s Exhibit 3 (P-3). The first letter contains no diagnosis of an existing physical or mental impairment. Nor does the first letter evidence a limitation of a major life activity that is caused by a physical or mental impairment. The first letter opines that Ms. Owens, like many pet owners, would suffer severe emotional distress if she were required to get rid of her pet. However, the letter contains no evidence that the potential for severe emotional distress, if it were to occur, would substantially limit one or more major life activities for Ms. Owens. The second letter, identified in the record as Petitioner’s Exhibit 4, is dated January 2, 2007. The text of the letter consists of the following three paragraphs: Mrs. Rose Marie Owens is my patient. She has been under my care since 1990. I am very familiar with her history and with her functional limitations imposed by her medical conditions. She meets the definition of disability under the various Acts passed by the Congress of the United States since 1973. Mrs. Owens has certain limitations related to stress and anxiety. In order to help alleviate these limitations, and to enhance her ability to live independently, and to use and enjoy fully the unit she owns at Longboat Harbour Condominium, I have prescribed her cat, K-Pooh, as an emotional support animal. This should assist Mrs. Owens to cope with her disability. I am familiar with the literature about the therapeutic benefits of assistance animals for people with disabilities. Should you have questions concerning my recommendation for an emotional support animal for Mrs. Owens, please contact me in writing. P-4. The second letter does not identify a specific physical or mental impairment. The letter does not disclose what health conditions comprise Ms. Owens “medical conditions.” The letter does not describe the “functional limitations” that the doctor concludes, as a matter of law, satisfy the legal definition of a disability. Nor does the letter specify what major life activities are limited by the patient’s medical conditions. The second letter opines that KPooh will enhance the ability of Ms. Owens to live independently. The letter does not opine that KPooh is necessary for Ms. Owens to live independently. There is no evidence that KPooh is trained as a service animal. The two letters from the primary care physician of Ms. Owens are conclusory and invade the province of the trier- of-fact. The two letters do not provide specific and precise factual accounts of the medical conditions of Ms. Owens and the limitations that those conditions impose on major life activities. The two letters deprive the fact-finder of the opportunity to review and evaluate the specific and precise facts underlying the medical and legal opinions reached by the doctor. The two letters deprive the ALJ of the opportunity to independently decide the legal significance of any medical findings, which are not disclosed in either of the letters.2 Petitioner called as one of its witnesses a member of the Board of Directors (Board) for Respondent who had recommended that the Board approve the accommodation requested by Ms. Owens. Petitioner presumably called the witness, in relevant part, to bolster the two letters from the treating physician for Ms. Owens. The witness testified that his recommendation placed great weight on the fact that the doctor who authored the two letters is a psychiatrist. The undisputed fact is that the doctor specializes in internal medicine, not psychiatry. Petitioner attempted to show that Respondent’s stated reasons for denial of the accommodation were a pretext. Petitioner relied on evidence that arguably showed Respondent did not adequately investigate the alleged handicap of Ms. Owens before denying her request for an accommodation. Respondent made adequate inquiry into the alleged handicap when Ms. Owens requested an accommodation. Respondent requested a letter from the treating physician, which resulted in the letter that became Petitioner’s Exhibit 3. Finding that letter less than instructive, Respondent requested a second letter that became Petitioner’s Exhibit 4. Respondent properly determined that letter to be inadequate. In any event, this proceeding is not an appellate review of the past conduct of Respondent. This proceeding is a de novo proceeding. Counsel for Respondent fully investigated the medical conditions and alleged handicap of Ms. Owens prior to the final hearing. The investigation included pre-hearing discovery through interrogatories and requests for medical records.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Commission enter a final order dismissing the Petition for Relief. DONE AND ENTERED this 26th day of June, 2009, in Tallahassee, Leon County, Florida. S DANIEL MANRY 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 26th day of June, 2009.
The Issue Did the action of Respondent, in denying Petitioner the use of an emotional support dog in her condominium unit for her son, violate a legal duty to reasonably accommodate the needs of her son, A.C.?
Findings Of Fact The undersigned makes the following findings of relevant and material facts: Facts From Pre-hearing Stipulation Filed June 20, 2016 Petitioner was aware that the Association had a "no pet" policy and signed a document acknowledging same. Petitioner was sent a letter on February 24, 2014, from the Association's then property manager advising Petitioner that the Association had been advised that a dog was being kept in their unit, and reminding Petitioner of the Association's no pet policy. A Fines Committee hearing was scheduled for March 10, 2014, in regard to Petitioner's violation of the no pet policy. Petitioner was not issued a fine for violating the pet policy. Prior to the Fines Committee hearing, Petitioner made her first claim that her son had a disability and required an emotional support animal. Prior to the Fines Committee hearing, Petitioner made her first request to the Association for a reasonable accommodation. The Association's Board of Directors scheduled an interview with Petitioner on April 30, 2014, wherein Petitioner would be able to explain her request for a reasonable accommodation, the need for the emotional support animal, and her son's disability. The Association advised Petitioner, prior to the scheduled interview, that Petitioner may provide the Association with any documents Petitioner believes support her position. An interview and/or meeting occurred on April 30, 2014, between Petitioner, her husband, Yovani Cabreriza, Petitioner's attorney, and certain members of the Board of Directors, along with the Association's attorney, to discuss Petitioner's request for an accommodation. The Association determined that Petitioner was not in need of a reasonable accommodation and requested that the dog be removed via written correspondence dated May 19, 2014. The Association again requested that the subject dog be removed via written correspondence dated May 22, 2015, and advised Petitioner that an arbitration action would follow if the dog was not removed. A Petition for Arbitration was filed on June 4, 2015. Petitioner's response to the arbitration petition was filed on September 14, 2015. The arbitrator issued an order striking the complainants' defense and requiring proof of filing a Fair Housing Complaint. Petitioner filed her housing complaint with FCHR and Housing and Urban Development on November 2, 2015. On March 8, 2016, the FCHR housing investigator issued a "Notice of Determination of No Cause," concluding that reasonable cause does not exist to believe that a discriminatory housing practice has occurred. On April 8, 2016, FCHR received a Petition for Relief from an Unlawful Housing Practice from Petitioner. Findings of Fact From the Hearing This case involves a family who lives at Respondent's condominium complex, Arlen House Condominium, located at 300 Bayview Drive, Sunny Isles Beach, Florida 33160. Petitioner owns condominium unit PH05. Petitioner resides at this location with her husband and minor son, A.C. Petitioner's son was 11 years old in 2014. Her son has suffered from an anxiety disorder since he was a young boy. A.C.'s anxiety disorder problem became worse in 2012. He cried every morning and did not want to go to school. Apparently, he had difficulty breathing during anxiety or panic attacks. His mother described him as being "completely withdrawn" at school.1/ To help her son cope with his anxiety problem, Petitioner bought him a small dog, Jake, in the latter part of 2012. When she bought the dog, she knew that the condominium had a "no pet policy," but failed to alert the condominium or request permission to keep the dog.2/ In early 2014, the Association discovered that the dog was being kept in violation of the Association's rules and regulations. It notified Petitioner in writing on February 24, 2014, and told her to remove the animal. Resp. Ex. 2(e). March 10, 2014, Meeting Petitioner met with the Association's Fine Committee on March 10, 2014. During the meeting, Petitioner presented, for the first time, a letter or letters from the child's doctor, Rasciel Socarras, M.D.3/ Resp. Ex. 2(f). After the meeting before the Fine Committee, counsel for the Association sent Petitioner's counsel a letter dated March 21, 2014. Resp. Ex. 2(g). Essentially, the letter reiterated the "no pet policy" and concluded that Petitioner had failed to demonstrate to the Fine Committee that her son had a disability that substantially limited a major life activity or that an accommodation was necessary to afford him an equal opportunity to use and enjoy their condominium unit. The letter also requested a meeting to help the Association "conduct a meaningful review of your client's request for an accommodation."4/ Prior to the next meeting between the parties on April 30, 2014, counsel for the Association sent a letter to Petitioner's counsel dated April 18, 2014. In that letter, counsel requested copies of any and all documents that may support the boy's disability and need for an accommodation, including but not limited to the medical records that demonstrate his disability.5/ April 30, 2014, Meeting As arranged, Petitioner and her husband, along with their legal counsel, met with the Board of Directors on April 30, 2014. At the meeting, Petitioner explained her son's anxiety problem.6/ Although the record was not clear on this point, based on the evidence and the reasonable inferences drawn from the evidence, the undersigned concludes that the two (2) letters (dated and undated) from Dr. Socarras were reviewed and discussed during the April 30, 2014, meeting with Petitioner.7/ The board members asked Petitioner several questions about her son's condition. Petitioner informed the Board of Directors that her son was not on any medication to treat his anxiety, nor was he receiving any mental health counseling or therapy. Petitioner told the Board of Directors that she had diagnosed the child as having problems with anxiety. The Board of Directors also asked her how her son was performing in school and learned that he was enrolled in the gifted learning program at his school.8/ As a result of the meeting, the Board of Directors concluded: (1) that it did not have enough information to determine whether the child was limited in his ability to live in the unit; (2) that he had a disability; or (3) that the pet was medically necessary for him. As a follow-up to that meeting, on May 19, 2014, the Association's counsel sent a letter to Petitioner. The letter outlined the Board of Directors' position and speaks for itself. See Resp. Ex. 2(i). The letter stated in relevant part: At this time, the Board of Directors can neither approve your request for an accommodation nor can it provide an exception to its "no pet" policy. You have been unable to provide information that supports that your son suffers from a physical or mental impairment that substantially limits one or more of his daily activities. There has been no documentation to support that your son has been diagnosed or treated for a disability. More importantly, you have not provided relevant information that your son has a disability or that the dog helps alleviate any identified symptoms. The letter concluded by demanding that the dog, Jake, be removed from the condominium unit no later than Monday, June 2, 2014.9/ Nearly a year of "radio silence" passed with no activity by either party. The Association did not check on the removal of the pet, and Petitioner did not remove the dog despite the demand by the Association. A year later, on May 15, 2015, the Association acted and sent another letter to Petitioner demanding that she remove the pet. Again, Petitioner did not remove the pet. On June 4, 2015, the Association filed a petition for mandatory non-binding arbitration with the Florida Department of Business and Professional Regulation. Ultimately, the arbitrator entered an order on November 19, 2015, staying the arbitration case until the resolution of the discrimination complaint filed by Petitioner with FCHR. Based on the evidence presented, the undersigned concludes that during the meeting on April 30, 2014, with the Board of Directors, that other than the letter(s) from Dr. Socarras, and an identification certificate for their pet dog Jake, there was no other medical information or documentation provided by Petitioner to assist Respondent in reviewing and evaluating her request for the accommodation to keep Jake in the unit.10/ As a related topic, the Board of Directors had previously approved service animals for at least two (2) other residents.11/ One resident had suffered a stroke and needed assistance to walk. Another resident had a serious medical condition and was allowed to keep a service animal which was trained to detect the onset of the person's medical condition. In both instances, the Board of Directors followed the same process followed in Petitioner's case. Letters were sent and meetings were held. However, in the cases where a service animal was approved, the Board of Directors requested and was provided medical records which it relied upon to conclude that a service animal was needed as a reasonable accommodation. Prior to this hearing before DOAH, the Board of Directors had not been informed, and no claim was made, that "learning" was a major life activity that was substantially impaired by A.C.'s anxiety.
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 dismissing Petitioner's complaint for discrimination. DONE AND ENTERED this 31st day of August, 2016, in Tallahassee, Leon County, Florida. S ROBERT L. KILBRIDE Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 31st day of August, 2016.
The Issue The issue to be resolved in this proceeding is whether Petitioner should be awarded attorney's fees and costs pursuant to section 57.111, Florida Statutes(2011).1/
Findings Of Fact On August 11, 2010, Judith Amadiz ("Amadiz") filed a complaint of housing discrimination with the United States Department of Housing and Urban Development ("HUD") alleging disability discrimination. The Commission conducted an investigation of the complaint. During the investigation, the investigator obtained statements and documents from both parties. The investigator's final investigative report ("Determination") (Petitioner's Composite Exhibit numbered 2) detailed numerous materials submitted by the parties for review during the investigation. Some of the materials referenced included a Medical Certification Form submitted on September 3, 2010, from Carlos Sesin, M.D.; a copy of Complainant's Lease Application dated December 8, 2009; and six letters including a copy of correspondence from Complainant dated April 27, 2010, requesting steam cleaning, and a copy of correspondence from Complainant dated May 17, 2010, requesting steam cleaning. The Determination dated October 20, 2010, concluded that there was reasonable cause to believe that a discriminatory housing practice occurred. The Commission forwarded the Determination to a staff attorney to review for legal sufficiency. The Commission's staff attorney reviewed the report and, on November 15, 2010, issued a Legal Concurrence: Cause citing both statutory and case law supporting the Determination. The Legal Concurrence concluded that there is reasonable cause to believe that Respondent discriminated against Complainant. On or about November 17, 2010, the Commission issued a Notice of Determination (Cause), charging Respondent with engaging in discriminatory housing practices in violation of the Fair Housing Act, reflecting the October 20, 2010, findings of the Determination. On or about March 2, 2011, the Commission filed a Notice of Failure of Conciliation after a conciliation agreement had not been entered into with Sunbeach, and the complaint had not been withdrawn. On or about January 26, 2011, Amadiz elected to have the Commission represent her and seek relief in the proceeding and resolve the charge in an administrative proceeding before DOAH. On or about March 3, 2011, the Commission filed the Petition for Relief before DOAH on Amadiz's behalf. On December 12, 2011, the Commission moved to withdraw from the underlying proceeding, citing "significant and irreconcilable differences." On December 13, 2011, after a hearing on the motion, the undersigned entered an Order allowing the Commission's withdrawal. The Order also cancelled the final hearing scheduled for December 14, 2011, and provided Amadiz until January 23, 2012, to obtain new counsel to represent her in the matter. Amadiz subsequently notified DOAH of her intent to proceed pro se. Amadiz proceeded to hearing without counsel. The final hearing was held before the undersigned on May 9, 2012. The undersigned entered a Recommended Order on August 16, 2012, recommending the dismissal of Amadiz's Petition for Relief in its entirety. On October 9, 2012, Sunbeach filed a Motion for Award of Attorneys' Fees and Costs against the Commission. On October 30, 2012, the Commission entered a Final Order Dismissing Petition for Relief from Discriminatory Housing Practice, adopting the undersigned's Recommended Order and dismissing the action of Amadiz. Sunbeach was represented by counsel, a 30-year AV-rated lawyer, who defended the underlying action for a period of over two years. Sunbeach's counsel billed 75.8 hours of service at $150.00 per hour. The amount of attorney's fees claimed in this matter is $10,460.00 and costs of $2,277.47 for a total of $12,737.47, which is being sought in the matter.
The Issue Whether Petitioner was discriminated against based upon race?
Findings Of Fact Respondent, Deland Housing Authority (the Authority), provides subsidized housing to low-income families in Deland, Florida. Linda McDonnell has been the Executive Director of the Authority since approximately 1990. Petitioner, Marjorie R. Ross, a black female, was employed by the Authority as a Project Management Aide, beginning on or about June 14, 1993. At the time of Petitioner's hire, Greg Norton, the Public Housing Manager, was her immediate supervisor. Petitioner's job duties included, among others, maintaining residents' records and files, computing and inputting utility charges, preparing and issuing monthly rent statements to residents, and preparing 14-day notices (late rent notices). Petitioner's performance evaluation, for the period August 21 to December 21, 1993, rated her overall performance as "needs improvement." In comments attached to the evaluation, it was noted that Petitioner "tried to do too many things at once," causing decreases in her productivity. The comments also stated Petitioner "needs to make an effort to straighten her office each day" and that her "greatest shortfall as an employee is the manner in which she relates to the other employees." From the date of this evaluation, tension existed between Petitioner and McDonnell. For example, McDonnell cautioned Petitioner about speaking to persons outside the organization without permission. On September 26, 1994, McDonnell approached Petitioner to introduce a visiting HUD representative to Petitioner. Petitioner did not speak with the representative, despite McDonnell's repeated requests, because of McDonnell's previous instructions not to speak without permission. Petitioner received a written reprimand for her conduct. On July 25, 1995, McDonnell gave Petitioner a memo that documented Petitioner's habit of promising to create certain projects and failing to complete them. At the end of July 1995, Norton resigned from the Authority. On July 31, 1995, McDonnell conducted a staff meeting relating to Norton's resignation. During the meeting, McDonnell instructed Petitioner to only write receipts for rent checks, but to refrain from entering the receipts into the computer. Despite this instruction, Petitioner subsequently removed rent receipts from McDonnell's secretary's desk and entered them into the computer. As a result, Petitioner received a reprimand and was given a day off without pay. Petitioner received another written reprimand on September 27, 1995, for failing to follow established Authority policy regarding reporting absences. Authority policy required employees to complete an absentee report upon returning to work from an unscheduled absence. Petitioner failed to complete an absentee report upon returning from an unscheduled absence on September 25, 1995, and was not given pay for the absence. Petitioner applied for the position vacated by Norton as Public Housing Manager. The Authority hired Connie Grobstein, a white female, in September 1995. The stated reason for hiring Grobstein was her experience in grant writing; McDonnell stated that writing grants was an important part of the job. Grobstein had little if any experience with public housing. Grobstein became Petitioner's direct supervisor and Petitioner was asked to teach her the day-to-day operations of the office. During September 1995, Grobstein wrote several memos to McDonnell regarding Petitioner's work performance and attitude. On December 21, 1995, Petitioner received a written reprimand from Grobstein for, among other infractions, failing to timely issue 14-day notices. The reprimand stated, "any additional violations of Authority procedures will lead to further disciplinary actions up to and including termination." On February 6, 1996, Grobstein and Petitioner had a confrontation in front of a tenant regarding the start date of a lease. Even though her office was several doors away, McDonnell could hear Grobstein and Petitioner arguing about the lease. As a result of the incident, McDonnell terminated Grobstein.1/ Petitioner was suspended for one day as a result of the argument with Grobstein. While Petitioner was absent, McDonnell discovered that several resident files, which Petitioner was responsible for maintaining, were missing necessary documentation. McDonnell contacted the Authority's attorney, who advised McDonnell that she had no choice but to terminate Petitioner's employment. On February 12, 1996, Petitioner's employment was terminated. The stated reasons for her termination were: consistent problems with her work performance; the incident with Grobstein on February 6, 1996; refusing to follow instructions; giving out rent credits/reductions without approval; attempting to undermine McDonnell and the Authority; demonstrating a poor attitude and an unwillingness to cooperate with others; and failing to complete her work in a timely manner. Respondent maintains a disciplinary policy for Authority employees. Pursuant to this policy, employees may be discharged for, among other reasons, insolence or insubordination; failure to obey legitimate orders from a supervisor; mistreatment (verbal, psychological or physical) of a client or fellow employee; and neglect or willful disregard of the responsibilities, duties and work rules of a position.
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 dismissing Petitioner's Petition for Relief. DONE AND ENTERED this 17th day of October, 2003, in Tallahassee, Leon County, Florida. S STEPHEN F. DEAN 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 17th day of October, 2003.
The Issue Whether Respondents Adams Group Home, Inc., and Joyce Adams' ("Respondents") group home licensure renewal applications should be denied.
Findings Of Fact Parties and Background APD is the state agency charged with regulating the licensing and operation of foster care facilities, group home facilities, and residential centers, pursuant to sections 20.197 and 393.067, Florida Statutes. Under section 393.063(19), a group home facility means a residential facility "which provides a family living environment including supervision and care necessary to meet the physical, emotional, and social needs of its residents." The capacity of such a facility must be at least four but not more than 15 residents. Respondents are licensees of two group home facilities, known as Adams Group Home #1, located at 2400 Oleander Drive, Miramar, Florida 33023, and Adams Group Home #2, located at 7131 Southwest 16th Street, Pembroke Pines, Florida 33023. Respondents' group homes provide a family living environment within a residential, single-family structure with a combined total of not more than 12 adult residents with developmental disabilities. Joyce Adams is Adams Group Homes' corporate officer. Ms. Adams has been licensed through APD to provide group home services for 18 years. Group homes licensed by APD are required to apply for a renewal license every year. The renewal process involves a review of the applications to make sure they are accurate and complete and an observation by a licensing specialist at the facilities to ensure the facilities are in compliance with the applicable statutes and administrative rules. Every year prior to 2018, including 2014 through 2017, Respondents' group home licensure renewal applications for Adams Group Home #1 and Adams Group Home #2 were approved by APD. No evidence was presented at hearing demonstrating that Respondents have ever been the subject of any corrective action plan or proposed disciplinary agency action in the form of an administrative fine, suspension or revocation of a license, or moratorium on admissions, prior to APD's March 13, 2018, denial letter. The March 13, 2018, Denial Letter Against this backdrop, on December 20, 2017, Respondents submitted applications to APD for renewal of the licenses of Adams Group Home #1 and Adams Group Home #2, which were set to expire in March 2018. By letter dated March 13, 2018, APD notified Respondents of the denial of their group home licensure renewal applications. APD's grounds for the denial of the license applications are set forth in the denial letter in four counts. In Counts I and II, APD alleges the Department of Children and Families ("DCF") commenced investigations which resulted in DCF's verified findings of abuse, neglect or exploitation against Ms. Adams in February 2014 and December 2015, respectively. APD further alleges that based on section 393.0673(2), it "may" deny an application for licensure based solely on DCF's verified findings. In Count III, APD alleges Respondents used video cameras in the common areas in 2016 and 2017 without written consents for the common areas in violation of Florida Administrative Code Rule 65G-2.009(7), which constitutes a Class II violation. In "Count IIII," APD alleges that after Hurricane Irma struck south Florida on September 10, 2017, Respondents had "no power at the group home," Respondents utilized a "makeshift grill" less than ten feet from the structure, and failed to care for its residents. APD specifically alleges that on September 19, 2017, a resident of Adams Group Home #2 "was taken to the emergency room at Memorial Regional Hospital for confusion and fever." APD further alleges that Respondents' conduct described in "Count IIII" constitutes Class I violations, and that the conduct violates rule 65G-2.009(1)(d) with regard to the minimum standards of facilities to ensure the health and safety of the residents and address the provision of appropriate physical care and supervision; adhering to and protecting resident rights and freedoms in accordance with the Bill of Rights of Persons with Developmental Disabilities, as provided in section 393.13; and section 393.13(3)(a) and (g), relating to humane care, abuse, neglect, or exploitation. Count I The parties stipulated that on December 29, 2013, DCF commenced an investigation of Respondents' group homes, and that on February 25, 2014, DCF closed its investigation with verified findings of abuse, neglect, or exploitation on the part of Ms. Adams. APD was aware of DCF's verified findings upon completion of DCF's investigation. At hearing, APD provided no witnesses with first-hand knowledge of the specific facts involved in the violation. Instead, APD presented unsigned DCF investigative reports and a DCF supervisor's testimony regarding the general investigative process. At hearing, Ms. Adams explained the facts and circumstances surrounding the violation. Ms. Adams testified the incident involved M.K., a 41-year-old female resident of Respondents' group home since 2006, who is developmentally disabled. According to Ms. Adams, on Sunday, December 29, 2013, M.K. was taken by personal car to the emergency room at Memorial Hospital, Pembroke Pines, where she was admitted. Ms. Adams testified that M.K. had been coughing for a few days, and she had consulted with a nurse practitioner about M.K.'s condition on Thursday, December 26, 2013. However, M.K.'s condition had not improved by Sunday, she looked weak, and Ms. Adams did not want to wait until Monday for M.K. to be seen by a doctor. M.K. was transported to the hospital on Sunday, December 29, 2013, by a facility employee. Emergency (911) had been called for M.K. on approximately eight occasions prior to December 29, 2013. Ms. Adams persuasively and credibly testified she would not have hesitated to call 911 for M.K. if she felt it was necessary. On Monday, December 30, 2013, the next business day, Ms. Adams provided an incident report to APD. Ms. Adams also immediately notified M.K.'s waiver support coordinator. M.K. returned to Respondents' group home after her release from the hospital where she has continued to reside since then. Count II The parties stipulated that on November 4, 2015, DCF commenced an investigation of Respondents' group homes, and that on December 12, 2015, DCF closed its investigation with verified findings of abuse, neglect, or exploitation on the part of Ms. Adams. APD was aware of DCF's verified findings upon completion of DCF's investigation. At hearing, Ashley Cole, regional program supervisor for the southeast region of APD, testified about the facts and circumstances surrounding the violation. The violation involved the use of residents' funds to request a new support coordinator.1/ Specifically, in November 2015, Ms. Cole conducted a review of client files at one of Respondents' group homes, including a review of financial ledgers, and saw disbursements of money from three residents to an attorney, totaling $1,300.00. When asked about this by Ms. Cole, Ms. Adams explained that the funds were used to pay an attorney to write letters on behalf of the three residents requesting new support coordinators. The funds were used to benefit the three residents and the letters were written by Respondents' attorney on behalf of the three residents. At hearing, Ms. Cole testified that it is typical for an APD client or the client's guardian to request a new support coordinator, not the group home owner, and that it is not required that a request for a new support coordinator be in writing. Although it may not be typical for the group home owner to request a new support coordinator in writing on behalf of the residents, it is not prohibited by law. None of the three residents had guardians or family members to assist in the handling of their affairs. Ms. Adams testified that she had attempted to obtain assistance from the current support coordinator to act on the residents' behalf, but to no avail. Two of the residents still resided at Respondents' group home as of the beginning of 2018; the other resident died about a year after the incident for reasons unrelated to the written requests for a new support coordinator. Count III Delmarva Foundation, n/k/a Qlarant, has contracted with the State of Florida to evaluate the performance of group home providers such as those operated by Respondents. On May 31, 2016, Delmarva Foundation Quality Assurance Reviewer Martina Pocaterra performed an unannounced observation visit at one of Respondents' group homes. Ms. Pocaterra observed video cameras in the common areas of the group home. The next morning, Respondents provided consent forms from residents for use of cameras in the bedrooms, but not for use in the common areas of the group home. Because there were no consent forms signed by residents allowing the use of video cameras in the common areas, an alert notification form was submitted to APD. On October 3, 2017, Delmarva Foundation Quality Assurance Reviewer Michelle Ceville performed a provider discovery review at one of Respondents' group homes. On this occasion, Ms. Ceville observed video cameras in the common areas of the group home. Respondents again provided consent forms from residents for use of cameras in the bedrooms, but not for use in the common areas. Because there were no consent forms signed by residents allowing the use of video cameras in the common areas, an alert notification form was submitted to APD. The clear and convincing evidence adduced at hearing demonstrates that Respondents violated rule 65G-2.009(7)(a) and (b) by failing to obtain written consent of residents for the use of video monitoring equipment in the common areas. "Count IIII" On September 10, 2017, Hurricane Irma struck Florida. After the hurricane, APD contacted group homes to ensure that the homes had electricity, lights, and air conditioning, and that the homes were safe. On September 15, 2017, Adams Group Home, Inc., informed APD that Adams Group Home #2 had electricity and running water, and that Adams Group Home #2 residents had not been evacuated. On September 19, 2017, Kimberly Robinson, an APD human services program analyst, conducted a wellness check at one of Respondents' group homes. It is unclear from Ms. Robinson's testimony which group home she actually visited. However, Ms. Robinson observed that the home had air conditioning, and that "everything in the home was fine." On September 19, 2017, Pembroke Pines Assistant Fire Marshal Shawn Hallich visited Adams Group Home #2 and conducted an inspection. He testified that he "did a walk around real quick," and that on the enclosed outdoor patio on the back porch of the home, he noticed "a pot on two blocks with two pieces of wood and an open flame with charcoal, and something . . . being cooked on it." According to Mr. Hallich, the cooking device was located on the back patio "approximately, probably 10 feet from the sliding glass door, maybe a little bit less than that." Mr. Hallich did not use any device to measure the distance of the cooking device from the structure of the home. Mr. Hallich testified that the cooking device was a safety hazard because there was an open flame and there was nothing to prevent the cooking device from being tipped over or falling over on its own. During his inspection, Mr. Hallich also observed that there was no air conditioning inside the home. There was some electricity inside the home, but not enough voltage necessary for the air conditioning system to operate. However, there were fans located and operating in every room of the home, and the windows were open. Mr. Hallich testified it was hot, but he did not use any device to measure the temperature inside the home. Mr. Hallich also acknowledged that if the fans were on inside the home, the circulation would have made it feel cooler inside the home. On September 19, 2017, Mr. Hallich issued a Notice of Violation, stating the nature of the violation as: "No air conditioning and unsafe cooking practices being conducted." Mr. Hallich recommended the following action be taken: (1) "Must relocate all residence [sic] until all power has been restored[; (2)] All cooking must be conducted at least 10 feet away from the structure using a commercial cooking appliance." As to the violation found by Mr. Hallich with respect to the outside cooking device, Ms. Adams asked Mr. Hallich whether she could use it outside, and he told her that "it had to be 10 feet away from the structure for cooking." In issuing the Notice of Violation with respect to the cooking device, Mr. Hallich specifically relied on section 10.10.6.1 of the Florida Fire Prevention Code which provides as follows: For other than one- and two-family dwellings, no hibachi, grill, or other similar devices used for cooking, heating, or any other purpose shall be used or kindled on any Balcony, under any overhanging portion, or within 10 ft (3 m) of any structure. Mr. Hallich's reliance on section 10.10.6.1 of the Florida Fire Prevention Code is misplaced because Adams Group Home #2 is a single-family dwelling. As a single- family dwelling, Respondents' group home is exempt from section 10.10.6.1. In any event, APD failed to present clear and convincing evidence that the cooking device was located within ten feet of the single-family dwelling. In addition, APD failed to present clear and convincing evidence that any residents of the group home were taken to the hospital or were not properly cared for by Respondents because of the lack of air conditioning. In sum, APD failed to present clear and convincing evidence at hearing to demonstrate a violation of rule 65G- 2.009(1)(d) and section 393.13.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that that the Agency for Persons with Disability enter a final order granting Respondents' applications for licensure renewal.3/ DONE AND ENTERED this 22nd day of August, 2018, in Tallahassee, Leon County, Florida. S DARREN A. SCHWARTZ 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 22nd day of August, 2018.
Findings Of Fact Respondent is a registered residential contractor having been issued license number RR 0008633, and is the qualifier for Merkle Custom Homes Inc. Respondent's last known address is 877 SW 124th Street, Miami, Florida 33176. Sunshine Ready Mix Concrete Company ("Sunshine") provided Respondent with the materials to be used on construction jobs located at 9600 SW 103rd Street and 8715 SW 129th Terrace, both in Miami, Florida. Respondent did not pay in full for such materials. Sunshine sued Merkle Custom Homes and obtained a judgment against that Florida corporation in the amount of $4,379.24 for money owed by the corporation on various jobs, to include the two projects referred to in paragraph 2 of this order. Said judgment has not been satisfied. One of the subject construction projects was undertaken for Dr. Robert Boyett and-his wife. This project was at 8715 SW 129th Terrace, and was the Boyett home. The other project at 9600 SW 103rd Street was an investment for Henry Arman and Errol Eisinger, a general partnership known as Ski Investors. This project was known as the "Ski Job." The contract between Boyett and Respondent was a standard contract, and the contractor would be responsible to make disbursements to subcontractors and materialmen. After the commencement of construction on the Boyett job, a disagreement arose between Boyett and Respondent. Boyett had the checks from the lending institution cut to him and Respondent, and did not pass all of the draw to Respondent. Boyett assumed responsibility for paying the subcontractors and materialmen. Prior to the Boyett and Ski Job projects, the Respondent applied for and established an open account for Merkle Custom Homes with Sunshine. The concrete for the Boyett job was charged to the Merkle Custom Homes account. Respondent's uncontroverted testimony was that he phoned Mr. Iglesias of Sunshine and advised him that Boyett was responsible for the concrete. The situation between Boyett and the Respondent worsened, and they eventually severed their contract. Boyett owed Respondent substantial sums of money at that time from draws paid to Boyett by the lender. In settlement of their dispute, Respondent waived any claims on the money Boyett held in return for Boyett's promise to assume all financial responsibility to the subcontractors and materialmen. Boyett did pay some $1500 to Sunshine on this debt but refused to pay all of the Sunshine bills, even though Respondent urged Boyett to honor his commitment. As a result, the Respondent received a partial satisfaction of judgment. Boyett and the contractor who took over from Respondent and assumed responsibility for the project both executed documents indicating that all materialmen had been paid. Sunshine failed to file and perfect a materialman's lien on the Boyett job. On the Ski Job, Respondent never had any control over the distribution of funds. Although the first checks were made out to the partners and the Respondent, control over payments to subcontractors and materialmen was exercised by the financial institution and Arman and Eisinger, the two individuals in the partnership for whom the project was done. The money was controlled by the partnership, who paid subcontractors directly. Respondent told Mr. Iglesias by phone that the partners were responsible for payment of the materialmen. Sunshine delivered to the Ski Job and billed to Merkle Custom Homes 40 yards of concrete at $27.75 per yard, for a total (including tax) of $1,154.40. Sunshine was paid for this concrete, and Respondent obtained a release from Sunshine for this amount. Sunshine delivered an additional 39 yards of concrete to the Ski Job after the date of the release at $34 per yard for a total (including tax) of $1,409.04. There is no evidence that the partners ever received a bill for the remainder of the concrete from Sunshine or the Respondent. No request for payment was made to the savings and loan for money to pay Sunshine for concrete. Merkle Custom Homes was replaced as the contractor, on this project, and the new contractor and owners agreed to assume responsibility for money owed to any subcontractors or materialmen. Sunshine did not file or perfect a materialman's lien on the Ski Job.
Recommendation Having found Respondent not guilty of violating Section 489.129(1)(d), Florida Statutes, it is recommended that the Amended Administrative Complaint filed against Respondent be dismissed. DONE and RECOMMENDED this 24th day of February, 1983, in Tallahassee, Leon County, Florida. STEPHEN F. DEAN, Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 24th day of February, 1983. COPIES FURNISHED: Michael J. Cohen, Esquire Kristin Building, Suite 101 2715 East Oakland Park Boulevard Fort Lauderdale, Florida 33306 Robert C. Eber, Esquire 9595 North Kendall Drive, Suite 102 Miami, Florida 33176 Frederick Roche, Secretary Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32301 J. K. Linnan, Executive Director Construction Industry Licensing Board Post Office Box 2 Jacksonville, Florida 32201
The Issue Whether respondent should refund sales tax petitioners paid on account of their purchase of a manufactured home?
Findings Of Fact On September 12, 1984, petitioners made a $160 down payment on a 75 x 150 foot lot in High Ridge Estates in Bay bounty by a check drawn in favor of Ed Franklin. They wanted the lot in order to put a manufactured home on it. After acquiescing to a request by personnel of the Bay County building department that they pay $21.00 for a mobile home permit, the Baileys improved the property in anticipation of placing a manufactured home on it. They put in a septic tank and poured a concrete pad. On November 21, 1984, the Baileys signed a form "FHMA SALES CONTRACT" as buyers. Petitioners' Exhibit No. 2. Jack Lee signed as seller on behalf of "DD&L Joint Venture." Id. Petitioners gave Lee a down payment of $13,400; DD&L undertook to procure from Fleetwood Homes of Georgia, Inc., a manufactured home to be placed on the High Ridge Estates lot. The form contract, which purported to obligate the Baileys for $53,000, describes the lot, but makes no mention of the manufactured home. In December of 1984, the manufactured home arrived at High Ridge Estates, borne by temporary axles and wheels, which were unbolted after its arrival, and left with the truck that had brought it. Statewide of Florida, Inc., placed it on its new foundation. With an exterior of wood siding and an asphalt-shingled roof, the 25.7 by 54 foot structure met VA and FHA materials requirements for standard housing. Carpet was laid over plywood subflooring. Wall joists stand 24 inches apart. The Baileys added a carport, a driveway, three decks and a separate storage shed. On March 13, 1985, Mr. and Mrs. Bailey borrowed money from Peoples First Financial Savings and Loan Association of Panama City (Peoples) to pay the balances they owed for the lot and home. Of the loan proceeds, $6,100.00 went to "C. Ed Franklin and wife, Frances P. Franklin," Hearing Officer's Exhibit No. 1, to pay for the lot on which the manufactured home stood; and $23,328.80 went to "ITT Comm. Finance." Id. To secure repayment of its loan to the Baileys, Peoples took a mortgage from the Baileys encumbering the lot and the manufactured home affixed to it. Petitioners' Exhibit No. 1. Apparently the payment to "ITT Comm. Finance" retired indebtedness the Baileys incurred in acquiring their 1985 Fleetwood Chadwick 3523D. Mrs. Bailey executed a retail buyer's order for their manufactured home in December of 1986, although the form, which showed Best Home Center, Inc., as the "DEALER," was dated March 22, 1985. Hearing Officer's Exhibit No. 2. The form reflects a total price for the manufactured home of $29,045.87, the sum on which sales tax was computed at $1,452.53. The Baileys paid tax in this amount to Best Home Center, Inc., "upon the sales (sic) of tangible personal property." Hearing Officer's Exhibit No. 2. Best Home Center, Inc., forwarded the taxes they collected from the Baileys, along with other taxes collected in March of 1985, to the Florida Department of Revenue. Hearing Officer's Exhibit No. 2. At the time the Baileys purchased the manufactured home it had no license tag. It never had a license tag and, at the time they purchased it, had never been assessed as real property. Best Home Center, Inc., made a written assignment to the Baileys of its rights, if any, to recover the sales tax the Baileys paid.
Recommendation It is, accordingly, RECOMMENDED: That respondent deny petitioners' application for refund. DONE and ENTERED this 5th day of October, 1987, at Tallahassee, Florida. ROBERT T. BENTON, II Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 5th day of October, 1987. APPENDIX The second sentence of respondent's proposed finding of fact No. 1 and respondent's proposed findings of fact Nos. 3, 4, 6, 8, 9 and 10 have been adopted, in substance, insofar as material. With respect to the first sentence of respondent's proposed finding of fact No. 1, it is not entirely clear who sold the Baileys the manufactured home. The documentation reflected a sale by Best Home Center, Inc., for $29,045. With respect to respondent's proposed finding of fact No. 2, Ed Franklin and his wife conveyed the lot. The down payment was $160 and a $6,100 balance was paid in March. With respect to respondent's proposed finding of fact No. 5, the Peoples Mortgage originated in March, with indebtedness secured by lot and home. With respect to respondent's proposed finding of fact No. 7, the Bay County Building Department required them to purchase a permit on September 20, 1984. COPIES FURNISHED: The Honorable Gerald Lewis Comptroller, State of Florida The Capitol Tallahassee, Florida 32399-0305 Charles Stutts, Esquire General Counsel Office of the Comptroller The Capitol, Suite 1302 Tallahassee, Florida 32399-0305 Mr. and Mrs. Bailey 22012 High Ridge Drive Lot 24 Panama City Beach, Florida 32407 D. Alan Burns, Esquire Assistant Attorney General Department of Legal Affairs Tax Section, Capitol Building Tallahassee, Florida 32399-1050
The Issue Whether Respondents discriminated against Petitioner, Sudhir Kotecha, in violation of the Florida Fair Housing Act (FHA), chapter 760, part II, Florida Statutes, and, if so, the appropriate penalty; and whether Petitioner Sudhir Kotecha participated in the instant proceeding for an improper purpose, and, if so, whether the undersigned should recommend an award of attorney’s fees and costs to Respondents pursuant to section 120.595.
Findings Of Fact Respondent Westminster Services, Inc., owns and operates several retirement communities across Florida. The Westminster property in this matter is Respondent, Westminster Asbury/Asbury Arms, which is located in Cocoa, Florida. Mr. Downs is the administrator for Westminster’s Cocoa site, and manages its facilities. Mr. Kotecha is currently, and during the time period relevant to this matter was, a resident of Asbury Arms North, a residential complex within the Westminster Asbury/Asbury Arms residential community. Within the Asbury Arms North residential complex is a resident-operated thrift store, which Respondents do not operate or control, and a Florida Room, which is a common area with a table, vending machines, and other items. Mr. Kotecha entered into a Lease Agreement with Asbury Arms, Inc., d/b/a Westminster Asbury South, on June 6, 2016. The Lease Agreement was for a term of one year, and allowed for successive terms of one year “unless automatically terminated as permitted by paragraph 23 of this Agreement.” Paragraph 23 of the Lease Agreement provides for “Termination of Tenancy.” Mr. Kotecha was born in India, has brown skin, and immigrated from India to the United States. He became a United States Citizen in 2010. 2018 Rocking Chair Incident In July 2018, a maelstrom arose after Mr. Kotecha took a rocking chair from the Florida Room of Asbury Arms North to his apartment, and then returned it to the Florida Room the next day. According to Mr. Kotecha, residents leave various items in the Florida Room that are “free” for other residents to take. He also testified that the thrift store sometimes places items that are too large for its sales room in the Florida Room with price tags, but that if a price tag is not on the item, it is considered to be “free” as well. Mr. Kotecha testified that he noticed the rocking chair in the Florida Room in July 2018, with no price tag, and decided to take it. After deciding that it did not fit well in his apartment, he returned it the next day. Mr. Downs testified that he was on vacation in nearby Indialantic during the time that Mr. Kotecha took the rocking chair. He stated that he received a call from the Cocoa Police Department requesting video of an unrelated purse snatching in a parking lot connected to the Westminster Asbury/Arbury Arms residential community, so he returned to his office to do so. The evidence presented at the final hearing showed that Respondents operate numerous cameras throughout the common areas of the Westminster Asbury/Asbury Arms residential community. While locating the purse snatching video to provide to the Cocoa Police Department, Mr. Downs also noticed a post-it note that asked him to determine who took the rocking chair, and when. Mr. Downs testified that he “burned” videos of the purse snatching and the taking of the rocking chair, to compact discs, left the compact discs at the front desk for the Cocoa Police Department, and returned to his vacation. Mr. Downs testified that he later learned that Denise Miles, who runs the resident-operated thrift store, had initially asked for video of who took the rocking chair, and that she had indicated that the Cocoa Police Department requested a copy of the video. The undersigned has viewed the video of Mr. Kotecha taking the rocking chair from the Florida Room in July 2018. The video shows Mr. Kotecha, by himself, in the Florida Room, sitting on his walker, opposite from the rocking chair. He takes several minutes to move over to the rocking chair, sits and rocks in it, and then decides to place it on top of his walker. He waits to exit the Florida Room, via an external exit to the parking lot, until one or two individuals (whose legs can be viewed through a row of windows, from the camera angle of the video) walk by the exit. He then wheels the rocking chair through the parking lot (as opposed to the interior entrance/exit), and, presumably, through another entrance to the building, and through a hall to the elevator. He parks the walker/rocking chair around the corner from an elevator, and then proceeds to summon the elevator. Once the doors open, he retrieves the walker/rocking chair from around the corner, places it on the elevator, and, ultimately, takes it to his apartment on an upper floor. Mr. Kotecha appears to take an overly-cautious, and circuitous, route to transport the rocking chair from the Florida Room to the hallway next to the elevator, and ensures that the rocking chair is not visible from the elevator (or anyone entering or exiting it) before he places it on the elevator. In August 2018, the Brevard County Sheriff’s office arrested Mr. Kotecha and charged him with burglary of a structure, and petit theft, related to the taking of the rocking chair. Mr. Downs testified that neither he, nor any agent of Respondents, filed a criminal complaint concerning Mr. Kotecha. However, when law enforcement initially arrived at Asbury Arms North to arrest Mr. Kotecha and, being unable to locate him, left, Mr. Downs subsequently called them back to inform them that Mr. Kotecha was at his apartment, which eventually led to his arrest. After Mr. Kotecha’s arrest, Mr. Downs testified that he sent staff members to his apartment to “make sure there’s no running water, make sure that the air conditioner’s set to the right temperature. And we do that for precautionary measures to protect our property and our … residents.” The staff members took numerous photographs of Mr. Kotecha’s apartment, which Mr. Downs described as “deplorable.” The undersigned has reviewed the photographs taken of Mr. Kotecha’s apartment. The photographs depict: a kitchen that has items piled up on every empty counter space, a refrigerator/freezer that appears over packed with various food items that would make it difficult for the door to close, a sink full of various food containers and at least one piece of fruit, and an oven with newspaper inside of it; a cluttered living room with items and trash, piled considerably; a bedroom with items piled on the bed and every available surface; various areas with extension cords and power strips that have multiple items plugged into them; a bathroom with trash piled up, and multiple partially-filled buckets near the toilet and inside the shower stall. Based on these photographs, the apartment appeared unsanitary, difficult to navigate, and, at least based on the paper in the oven, a fire hazard. Soon after Mr. Kotecha’s arrest, Mr. Downs contacted Mr. Kotecha’s sister, Ms. Thakkar, who he provided as an emergency contact to Respondents, to inform her of the arrest. Ms. Thakkar testified that Mr. Downs made numerous threatening and insensitive remarks related to Mr. Kotecha’s ethnicity and immigration status during this telephone call; Mr. Downs credibly denied making such remarks. Ms. Thakkar assisted with paying bond for Mr. Kotecha’s release from jail. Mr. Kotecha returned to his residence at Asbury Arms North after his arrest. He subsequently pleaded guilty to a lesser (misdemeanor) crime, paid a fine, and his adjudication was withheld. Notice of Termination of Lease Agreement and Complaint On October 9, 2018, Respondents delivered—by hand and regular mail—a letter, signed by Mr. Downs, that served as a 30-day notice to Mr. Kotecha that Respondents were terminating Mr. Kotecha’s lease, and that he needed to vacate his apartment by November 9, 2018. The October 9, 2018, letter further stated: Your Lease Agreement is being terminated pursuant to paragraph 8(b)(2) of the Lease Agreement. Paragraph 8(b)(2) allows Asbury Arms Inc. to terminate the Lease Agreement for your material noncompliance with the Lease Agreement. By signing the Lease Agreement you agreed to be bound by the Rental Lease Agreement and House Rules that are incorporated into the lease as well as the terms of the lease. Unsanitary health conditions of your apartment after being given multiple warnings that dates back to October 3, 2016 Storage of bicycles in apartment after numerous warnings not to do so Law enforcement activity including his arrest for burglary and theft Theft of personal property owned by someone other than himself Fire safety concerns by placing papers in oven Your actions, as outlined above, constitute continued lease violations. As such, Asbury Arms Inc. dba Westminster Asbury is forced to terminate your Lease Agreement. If you remain in the unit after the specified termination date of November 9, 2018, Asbury Arms Inc., dba Westminster Asbury may seek to enforce the termination of the Lease Agreement in court. You have ten (10) days in which to discuss the termination of your Lease Agreement with Westminster Asbury which begins the earlier of 1) the date the notice was hand delivered to the unit or 2) the day after this notice was mailed. Moreover, if a judicial proceeding for eviction is instituted you may present defenses, if any, therein. In November 2018, Asbury Arms, Inc., filed a Complaint for eviction in the County Court of Brevard County, Florida. In December 2018, Asbury Arms, Inc., filed an Amended Complaint for eviction. Based on the testimony and evidence presented at the final hearing, this amended complaint remains pending. Mr. Kotecha’s Account of the 2018 Rocking Chair Incident and Termination of Lease Agreement Mr. Kotecha testified that he saw the rocking chair in the Florida Room in July 2018, and as there was no price tag on it, he took it to his apartment. The next day, he decided that he did not have enough room in his apartment, and returned it to the Florida Room. He testified that within this 24-hour period, Denise Miles became worried that the rocking chair was missing, determined that Mr. Kotecha had taken it, called the police, and filed a criminal complaint. On cross-examination, when asked how he knew the rocking chair was free for the taking, Mr. Kotecha answered: Because it was lying in Florida room without any price tag of thrift store. And even if it is thrift store price or anything, thrift store is totally illegally so the ownership of Dee Miles is illegal, so the complaint is totally illegal. Everything is illegal. And I was put to jail also totally illegally. Despite a seeming acknowledgment that Denise Miles, and not Respondents, filed the criminal complaint that led to his 2018 arrest for the taking of the rocking chair, Mr. Kotecha later testified: Joseph Downs is mastermind. He is Supreme Boss. And because of that, every staff member is afraid of him and whatever he says – Joseph Down says, the staff has to do that. Even if he or she doesn’t like to do that. Joseph Downs inspired, not only inspired, but encouraged Dee Miles to write this – to call the police and write a complaint about the stealing of that chair. Q. How do you know that? * * * There is no authentic proof of it, but I believe strongly that. In support of Mr. Kotecha’s testimony, Mr. Kotecha presented the testimony of fellow resident Ms. Lynar, who offered numerous photographs that she took of the Florida Room which showed various items that were “for sale” with price tags. She also testified that it’s not always clear whether something is free, or whether it belongs to the thrift store, as it depends on whether “Dee and Don Miles [who operate the thrift store] want to take possession of it.” She testified that the rocking chair originally had a price tag of $35, but at some point, the price tag had been removed, which she believed meant that the rocking chair was free.3 In describing the day he was arrested, Mr. Kotecha again laid the blame with Mr. Downs, claiming he concocted the following story to lure him from to Asbury Arms North so that the Cocoa Police Department could arrest him: I got up in the morning and then I started to work to zone clean my apartment and then suddenly I remembered, oh I had to go to People’s Church for prayer and lunch. So I – I left the room – the apartment halfway of zoning, take shower and shave my face and went to Peoples Church for prayer and lunch. And then, when I went there, Joseph Downs totally, illegally lied to me that there are eight peoples – residents who will be given last one year’s rent back reimbursed and you will get – now, come 3 The undersigned notes that Ms. Lynar has filed previous housing discrimination complaints against Respondents, one of which was heard by the undersigned last year. First, she filed a charge of discrimination against Respondents in 2014, which was assigned DOAH Case No. 15-2796, which ultimately resolved between the parties. Then, in 2018, ALJ Bruce Culpepper conducted a two-day final evidentiary hearing in DOAH Case No. 18-1314, and issued a Recommended Order that concluded that Ms. Lynar failed to meet her burden of proving that Respondents committed a discriminatory housing practice in violation of the FHA, and recommended that FCHR dismiss Ms. Lynar’s Petition for Relief. On October 1, 2019, FCHR entered a Final Order that adopted ALJ Culpepper’s Findings of Fact and Conclusions of Law, and dismissed Ms. Lynar’s Petition for Relief. See Lynar v. Westminster Ret. Communities Foundation, Inc., et al., Case No. 18-1314 (Fla. DOAH July 10, 2019; FCHR Oct. 1, 2019). Then, in 2019, Ms. Lynar filed yet another charge of housing discrimination (retaliation), and the undersigned conducted a two-day final evidentiary hearing in DOAH Case No. 20-1080. The undersigned issued a Recommended Order that concluded that Ms. Lynar failed to meet her burden of proving that Respondents committed a discriminatory housing practice in violation of the FHA, and recommended that FCHR dismiss Ms. Lynar’s Petition for Relief. On March 31, 2021, FCHR entered a Final Order that adopted the undersigned ALJ’s Findings of Fact and Conclusions of Law, and dismissed Ms. Lynar’s Petition for Relief. See Lynar v. Westminster Communities, Inc., et al., Case No. 20-1080 (Fla. DOAH Jan. 4, 2021; FCHR Mar. 31, 2021). At the time of the most recent Lynar final hearing, Ms. Lynar was also the subject of an eviction action by Respondents. The undersigned has considered Ms. Lynar’s adverse position to Respondents in these previous matters, as well as her lack of success in such matters, in assessing her credibility as a witness in this proceeding. in here, you will get – you will be getting free food every day or money for the food every day. It was totally made story by Joe Downs. Totally lying and the – by telling me this thing, he wanted me to wait in the reception area. He told me, can you wait here. I’m preparing your paper. You are the last eight – eight men – eight residents. And then he – he never prepared any paper, never took my sign and there was no benefits like this and – and he called BCSO. Brevard County Sheriff’s Office. And they came and they handcuffed me and take me to jail. And even I didn’t know why I – I have been taken to jail. On the way, I asked them – the police – the sheriff why I am taken to jail. Then he told me that, you entered in a prohibited area and you steal some – some furniture. That’s why. Mr. Kotecha testified that the morning of his arrest, he had started cleaning his apartment, but was interrupted by attending a religious service and, ultimately, his arrest. He explained that the multiple buckets in his bathroom (one of which contained a floating comb) were full of hot water for cleaning. He explained that the reason for newspaper in his oven was because he had no room at this dining table to eat that day; instead, he used the door to the oven as a makeshift tabletop, placing the paper underneath his food. As he was in a hurry to leave, he testified that he did not have time to remove the paper from the oven. He stated that the multiple items in the sink were actually soaking with water, which would make them easier to clean later on. Other Incidents Mentioned in Termination The October 9, 2018, letter that served as a 30-day notice of termination of Mr. Kotecha’s lease agreement referenced two additional reasons for the termination: (a) unsanitary health conditions of your apartment after being given multiple warnings that dates back to October 3, 2016; and (b) storage of bicycles in apartment after numerous warnings not to do so. With respect to the multiple warnings of unsanitary health conditions, Respondents introduced: (a) an October 3, 2016, Ten Day Notice of Non- Compliance with an Opportunity to Cure, which stated that Mr. Kotecha violated his Lease Agreement for “Health and safety violations. Specifically unsanitary health conditions and clutter which poses health and safety concerns….”; (b) a March 9, 2017, Ten Day Notice of Non-Compliance with an Opportunity to Cure, which stated Mr. Kotecha had violated his Lease Agreement for the same reasons stated in the October 3, 2016, Ten Day Notice; (c) a January 26, 2018, letter entitled “Hallway Carpet & Lease Violations,” which stated that the carpet in the hallway outside of his apartment will be cleaned by staff, as it is the property of Westminster Asbury, and stated that “Mr. Kotecha was placed on probation for any further material and or non-material violations of his rental lease agreement.”; and (d) a February 19, 2018, Ten Day Notice of Non-Compliance with an Opportunity to Cure, which stated that Mr. Kotecha had violated the “House Rules,” which are part of the Lease Agreement and which forbade the storage of bicycles in apartments, but in the designated bicycle parking area, and which further stated that Mr. Kotecha continued to store/chain his bicycles to stop signs or bus stop signs, as well as poles within the residential area. Mr. Downs stated that Respondents had issued multiple previous warnings to Mr. Kotecha concerning unsanitary health conditions in his apartment. Mr. Downs testified that Mr. Kotecha had damaged the carpet outside of his apartment and tried to clean it, which resulted in more damage, and for which Respondents charged Mr. Kotecha a $75 cleaning fee. Mr. Kotecha testified that Mr. Downs was “already biased against” him when Respondents issued the various notices of violation because Mr. Downs had warned Mr. Kotecha to stop taking multiple “free” loaves of bread that were occasionally left in the Florida Room for residents by some other organization, and generally denied that his apartment ever met the definition of being unsanitary. With respect to the carpet cleaning outside of his apartment, Mr. Kotecha testified that he was in the process of cleaning it, and questioned why Respondents charged him $75 to clean it if “it’s the job of Westminster Asbury.” With respect to the storage of bicycles, Mr. Downs stated that it involved an “issue of his chaining bicycles to light poles and different things around our property here[,]” which he considered a “final warning.” Mr. Kotecha testified that he locked his bikes to these poles because they were closer to the apartment building, and it was difficult for him to walk between the designated bicycle area and the apartment building. Mr. Kotecha testified that Mr. Downs accommodated Mr. Kotecha and allowed him to lock his bike on nearby poles; Mr. Downs denied doing such an accommodation, but admitted that Mr. Kotecha continues to lock his bike on nearby poles. Evidence of Other Residents Taking Property from Florida Room Mr. Kotecha attempted to introduce evidence of residents taking property that did not belong to them, and who did not receive termination notices from Respondents, to show that Mr. Kotecha was treated differently. Much of this type of evidence concerned residents taking other residents’ walkers. However, the recollection of these witnesses was less than clear. Ms. Furman (white female), a fellow resident of Asbury Arms North, could offer no recollection of walkers being taken from the Florida Room on August 24, 2019, even after being shown video purporting to establish this point. Similarly, fellow resident Mr. Miles (the husband of the thrift store operator Denise Miles, and a white male), testified, when shown a video from August 26, 2019, that he took a vacant walker from the Florida Room. Mr. Miles also testified that the thrift shop “loans out” walkers regularly, and places them for sale in the Florida Room, with price tags. Ms. Jeter (white female), another fellow resident, testified that, in August 2020, she asked Mr. Miles if she could purchase a walker from the thrift store, which was placed in the Florida Room along with another walker. Mr. Miles agreed, but also agreed that Ms. Jeter could take it with her and pay the thrift store later. Later that day, Ms. Jeter received a call from the front desk asking her to return the walker, as it belonged to someone else and was not for sale, which she did. Ms. Jeter was not arrested or prosecuted for stealing the walker, and Respondents did not terminate Ms. Jeter’s lease agreement because she mistakenly took a walker that she believed she could purchase from the thrift store. Ms. Butler (African American female) testified that in August 2020, she left her walker in the Florida Room, and when she returned, it was missing. She testified that she reported this to the front desk, and after checking the security camera in the Florida Room, determined who it was (Ms. Jeter), and returned it to Ms. Butler that same day. Ms. Butler did not report this incident to the police. Ms. Lynar (white female) testified that she kept a walker in the Florida Room, where it was “folded up” and placed next to the soda machine. She testified that in August 2019, it went missing, and that she testified that Denise Miles, Mr. Miles, and Ms. Furman took it. She testified that the walker was returned, but that Respondents’ maintenance staff subsequently took it, and it has not been returned. Mr. Tarasavage, a maintenance worker for Respondents, testified that he had no recollection of taking Ms. Lynar’s walker from the Florida Room and disposing of it. Mr. Tarasavage testified that he received no complaints, and was not arrested, for removing a walker from the Florida Room. Theft of Mr. Kotecha’s bike On September 26, 2020, another resident, Barbara Shillings (white female), allegedly took one of Mr. Kotecha’s bikes from the area where he normally parks his bike. Mr. Downs believed that Ms. Shillings was being “mischievous” in doing so. However, Mr. Kotecha complained about this incident to police officers, who were at Asbury Arms North to deal with a resident experiencing dementia issues. The police officers subsequently reviewed video of this incident, provided by Mr. Downs. Mr. Downs testified that in late January 2021, Ms. Shillings was charged criminally for the taking of Mr. Kotecha’s bicycle. Mr. Downs testified that this incident differed from Mr. Kotecha’s in that Ms. Shillings was not arrested and taken out of the building by police, and because her apartment was never in an unsanitary condition (although it had failed an annual inspection). Mr. Downs further testified that because he learned of the criminal charges some 75 days after the incident, he was unable to issue a notice of termination, as the 45-day window for initiating an eviction had expired. Mr. Downs also stated that Respondents are “waiting to see what the court’s going to do[]” in Ms. Shillings’s criminal case. Ultimate Finding of Fact Mr. Kotecha failed to provide any credible evidence that Respondents’ decision to issue the Notice of Termination, and subsequently commence eviction proceedings in county court, was discriminatory, in violation of the FHA. The undersigned has considered the testimony and credibility of Mr. Kotecha, who claimed that “everything is illegal” when asked about his taking of the rocking chair, that Mr. Downs is a “mastermind” and “supreme boss” who orchestrated his arrest, while admitting he had no proof, that he was “zone cleaning” an apartment that appeared to the undersigned to be unsanitary at the time of his arrest, and that Mr. Downs concocted a story of free rent to lure Mr. Kotecha out of his apartment and to a common area in Asbury Arms North to be arrested, as well as the supporting testimony of Ms. Lynar, who has brought numerous unsuccessful claims against Respondents under the FHA, in arriving at this finding. The undersigned has also considered Mr. Kotecha’s behavior in the video of him taking the rocking chair—in which he takes a route through the external parking area (but waits for people in the parking lot to leave before doing so), through a different entrance/exit to the elevator, where he leaves the rocking chair in an area of the hall so that individuals entering or exiting the elevator cannot see it. The undersigned has also considered the testimony and credibility of those witnesses who testified regarding Mr. Kotecha’s allegation that other similarly-situated tenants of other nationalities took items from the Florida Room or other areas that did not belong to them, and suffered no consequences from Respondents. However, two witnesses—Ms. Furman and Mr. Miles—had no recollection of an unlawful taking of a walker happening, even when shown videos of alleged incidents. The testimony of Ms. Jeter and Ms. Butler reveal a misunderstanding of whether a walker that belonged to Ms. Butler was actually the property of the thrift store. Additionally, the undersigned finds that walkers are commonplace in a retirement community such as Asbury Arms North, and as much of the testimony demonstrated that the walkers used in this community looked similar, if not identical, it is understandable that person in a community of senior citizens might mistakenly take another person’s walker. With respect to the late-introduced evidence concerning Ms. Shilling’s taking of Mr. Kotecha’s bike, the undersigned finds that much of the testimony offered on this subject is hearsay, which was not supported by any other documentary evidence, but was addressed by Mr. Downs. Mr. Downs testified that Ms. Shillings was not arrested and led out in handcuffs at Asbury Arms North, did not receive prior notices of termination for unsanitary conditions in her apartment (although she had been cited during annual inspections, which she corrected), and that her notice of criminal charges (which had not been resolved at the time of this hearing) came after Mr. Downs had the legal opportunity to commence eviction proceedings. Mr. Downs also testified that Respondents intended to await the outcome of her criminal matter before deciding any further action. Thus, Ms. Shillings is not a fair comparator. The undersigned also finds that, while Mr. Kotecha’s testimonial claims stretch the bounds of credulity, there was no evidence presented to demonstrate that his participation in this proceeding was primarily to harass, or to cause unnecessary delay, or for a frivolous purpose, or to needlessly increase the cost of litigation.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, the undersigned hereby RECOMMENDS that: (a) the Florida Commission on Human Relations issue a final order dismissing Sudhir Kotecha’s Petition for Relief; and (b) deny Respondents’ Motion for Attorney’s Fees, filed February 5, 2021, pursuant to section 120.595, Florida Statutes. DONE AND ENTERED this 3rd day of May, 2021, in Tallahassee, Leon County, Florida. S ROBERT J. TELFER III Administrative Law Judge 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 www.doah.state.fl.us COPIES FURNISHED: Filed with the Clerk of the Division of Administrative Hearings this 3rd day of May, 2021. Tammy S. Barton, Agency Clerk Florida Commission on Human Relations 4075 Esplanade Way, Room 110 Tallahassee, Florida 32399-7020 Henry Keith Presbyterian Retirement Communities, Inc. d/b/a Westminster Towers 80 West Lucerne Circle Orlando, Florida 32801 Stephen G. Henderson, Esquire Henderson Legal Group 5419 Village Drive Viera, Florida 32955 Denise Miles 1200 Clearlake Road Cocoa, Florida 32922 Maria Vaeth Henderson, Esquire Henderson Legal Group 5419 Village Drive Viera, Florida 32955 Nicholas A. Vidoni, Esquire Vidoni Law PLLC 959 North Cocoa Boulevard, Unit 5 Cocoa, Florida 32922 Joseph Down 1430 Dixon Boulevard Cocoa, Florida 32922 Cheyanne Costilla, General Counsel Florida Commission on Human Relations 4075 Esplanade Way, Room 110 Tallahassee, Florida 32399-7020
