Conclusions This matter came before the Department for entry of a Final Order upon submission of a Recommended Order of Dismissal by Lawrence P. Stevenson, Administrative Law Judge of the Division of Administrative Hearings. The Department hereby adopts the Recommended Order of Dismissal as its Final Order in this matter. Accordingly, it is hereby ORDERED that this case is CLOSED and a license may be issued to Wild Hogs Scooters and Motorsports, LLC to sell motorcycles manufactured by Kaitong Motorcycle Manufacture Co. Ltd. (KAIT) at 3311 West Lake Mary Boulevard, Lake Mary (Seminole County), Florida 32746, upon compliance with all applicable requirements of Section 320.27, Florida Statutes, and all applicable Department rules. Filed September 30, 2009 3:29 PM Division of Administrative Hearings. DONE AND ORDERED this of September, 2009, in Tallahassee, Leon County, Florida. Division of Motor Vehicles Department of Highway Safety and Motor Vehicles Neil Kirkman Building Tallahassee, Florida 32399 Filed with the Clerk of the Division of Motor Vehicles ""-.r.• u this 9Pfh day of September, 2009. Naiini .Dulllr71cenie Admlnlltrator 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. CAF/vlg Copies furnished: Leo Su Galaxy Powersports, LLC d/b/a JCL International, LLC 2667 Northhaven Road Dallas, Texas 75229 2 Jason Rupp Wild Hogs Scooters and Motorsports, LLC 8181 Via Bonita Street Sanford, Florida 32771 David Cattafi David Cattafi d/b/a Direct Capital Motors 4107 South Orlando Drive, Suite C Sanford, Florida 32773 Michael J. Alderman, Esquire Department of Highway Safety and Motor Vehicles Neil Kirkman Building 2900 Apalachee Parkway, Room A432 Tallahassee, Florida 32399 Lawrence P. Stevenson Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 Nalini Vinayak Dealer License Administrator Florida Administrative Law Reports Post Office Box 385 Gainesville, Florida 32602 3
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Professional Regulation, Florida Real Estate Commission, enter a Final Order and therein: Dismiss Counts III-XIX of the Administrative Complaint. Suspend the license of Keith Allen Miller for 90 days and impose a fine of $2,000 based upon Counts I and XX of the Administrative Complaint. Suspend the license of Keith Miller Realty Company for 90 days and impose a fine of $2,000 based upon Counts II and XXI of the Administrative Complaint. DONE and ENTERED this 18th day of December, 1986, in Tallahassee, Florida. DIANE K. KIESLING 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 18th day of December, 1986. COPIES FURNISHED: Howard Hadley, Esquire 827 Deltona Boulevard Deltona, Florida 32725 James H. Gillis, Esquire Department of Professional Regulation, Division of Real Estate 400 West Robinson Street Orlando, Florida 32802 Harold Huff, Executive Director Department of Professional Regulation Florida Real Estate Commission 400 West Robinson Street Orlando, Florida 32802 Fred Roche, Esquire 130 North Monroe Street Tallahassee, Florida 32301 =================================================================
Findings Of Fact Petitioner, Grove Isle, Ltd. is the developer of a 510 unit three-tower condominium project on an island now known as Grove Isle in Biscayne Bay. As part of the project Grove Isle plans to construct a ninety slip pleasure boat marina on the west side of the island. Since its inception, the project has been in litigation between the parties to this Proceeding. See Bayshore Homeowners Association, Inc., et al v. DER, DOAH Case No. 79-2186, 79-2324 and 79-2354; State ex rel. Gardner v. Sailboat Key, Inc., 295 So.2d 658 (Fla. 3rd D.C.A. 1974); Doheny vs. Sailboat Key, Inc., 306 So.2d 616 (Fla. 3rd D.C.A. 1974); Bayshore Homeowners Association, Inc. v. Ferre, Case No. 80-101-AP (Circuit Court, Appellate Division, Dade County, September 16, 1980). Petitioners Doheny and Filer have their residences near the site of the proposed marina. In the past they have used the waters in and around this site for fishing, boating and swimming. If the marina is constructed their use of the waters in the immediate area of the marina could be limited somewhat. While Petitioner Jaffer does not live in the immediate area of the marina, he also uses the waters of Biscayne Bay around Grove Isle for recreation. The project could have some minimal impact on his use of those waters. The protesting organizations: Bayshore Homeowners Association, Inc., Coconut Grove Civil Club, Tigertail Association, and the Tropical Audubon Society, Inc. all have members who use the waters of Biscayne Bay in the area of the project for nature study or recreation. The use of these waters by their members could be diminished in some degree if the marina is constructed. That portion of Grove Isle from which the marina will project is owned by Grove Isle Club, Inc., an entity created to operate the recreational facilities appurtenant to the Grove Isle Condominium. The Club is an integral part of the Grove Isle condominium project. Membership in the Club is mandatory for unit owners. It is the plan of Grove Isle, Ltd. that after the marina is constructed the individual wet-slips will be sold to only condominium owners. Grove Isle, Ltd. expects to realize a onetime profit from the sale of each slip. The slips would therefore not produce a periodic or reoccurring income to the developer. In the recent past, DNR has interpreted its rules relating to submerged land leases not to require a lease for the construction of a marina over submerged state lands if the marina will not generate a regular income. Evidence of this practice dates back to June 8, 1978. On March 29, 1979, Grove Isle applied to DNR for a state lease of the submerged lands over which the proposed marina would be constructed. By a letter of April 4, 1979, from Daniel S. Meisen, Administrator, Operations Section, Bureau of State Lands, the Department informed Grove Isle that a lease would not be required. The full text of the letter follows: April 4, 1979 Ms. Pat Bourguin Post, Buckley, Schub and Jernigan, Inc. 7500 Northwest 52nd Street Miami, Florida 33166 Dear Ms. Bourguin: Martin Margulies A review of the above referenced application has aided us in determining that a lease will not be required although the submerged bottom lands are state-owned. Submerged land leases are not re- quired for private docks or non-income producing facilities. Your $150.00 refund is being processed and will be forwarded to you within the next two months. If we can be of further assistance in this matter, please contact Laura Lewallen of this office. Sincerely, Daniel S. Meisen Administrator Operations Section Bureau of State Lands DSM/11m cc: DER West Palm Beach Health Department The State of Florida owns the submerged lands to the west of Grove Isle over which the marina would be constructed. Beginning in the fall of 1979 and continuing through the spring of 1980, there was a string of correspondence between DNR, Mr. Doheny and Grove Isle. This was its basic pattern. Mr. Doheny would write to DNR with some information indicating in his opinion that the proposed marina would not be private in nature, that is, persons other than condominium owners might be able to use the wet-slips. In response to Mr. Doheny's letter DNR would then query Grove Isle requesting assurances that the marina would be private. At least three of these inquiries, April 26, 1979; October 26, 1979; and February 12, 1980, appear in the record. Grove Isle then responded with letters indicating in various ways that the marina would not be income producing. It is apparent from some of the correspondence that there were also oral communications among the parties. The contents of these communications do not appear in the record. Finally on March 13, 1980, Mr. Doheny wrote to DNR on behalf of the Homeowner Petitioners to express his disagreement with the Department's position previously expressed in correspondence dating back to April 4, 1979, that if the proposed marina is limited to only condominium owners and does not produce direct income then it does not require a lease. Mr. Dean on behalf of Dr. Gissendaner replied to Mr. Doheny on March 24, 1980, by reiterating the Department's consistent position on this project. The text of the letter fellow's: March 24, 1980 David A. Doheny, Esquire 1111 South Bayshore Drive Miami, Florida 33131 Re: Grove Isle Marina Dear David: Dr. Gissendanner asked that I respond to your letter dated March 13, 1980 regarding Grove Isle Marina. Attached his a copy of the affidavit executed by Grove Isle, Ltd. and the subsequent letter to Grove Isle, Ltd. from the Department of Natural Resources. It is the position of the Department of Natural Resources that where a condominium marina will derive no income from the rental or lease of boat slips and furthermore, where all slips will be used exclusively by the condominium unit purchasers that the marina is not a commercial/industrial docking facility requiring a lease from the Trustees pursuant to Rule 16C-12.14, F.A.C. and Chapter 253.03, F.S. (1979). This position is based on the proposition that riparian rights attached to a single condominium unit purchaser as do riparian rights for a single family lot owner who likewise is exempt from a submerged land lease. Sincerely, Henry Dean Assistant Department Attorney Division of State Lands HD/le Enclosures cc: Elton J. Gissendanner Richard P. Ludington On May 3, 1979, the Board of Trustees of the Internal Improvement Trust Fund passed a resolution which states in pertinent part that: Where the Trustees have title, by either deed of conveyance or sovereignty pursuant to 1 and/or 2 above, and where any person has requested an environmental or other permit and where the Trustees neither by statute nor rule must give permission for the use involved in the permit, the Execu- tive Director is authorized to indicate, by letter or otherwise, said circumstances and that no action by the Trustees is necessary for the said use; . . . Subsequently Mr. Jaffer, the Homeowners and Mr. Filer filed their petitions for administrative hearings on April 2, 1980, 4/ April 9, 1980, and April 21, 1980, respectively. DNR's position concerning a lease requirement was well known to all of the Petitioners by at least January 2 and 3, 1980, the date of the final hearing on the related DER cases for the instant project. 5/
Recommendation For the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED: That the Department of Natural Resources issue a final order dismissing the petitions in Case Nos. 80-670, 80-768, and 80-815. DONE and RECOMMENDED this 11th day of December, 1980, in Tallahassee, Florida. MICHAEL PEARCE DODSON Hearing Officer Division of Administrative Hearings Room 101, Collins Building Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 11th day of December, 1980.
The Issue The issue presented is whether Petitioner's application for site approval and licensure of a private seaplane base near Manatee Springs on the Suwannee River should be approved.
Findings Of Fact By application dated July 18, 1990, Petitioner applied to the Department of Transportation for site approval and licensure for a private seaplane base to be known as Manatee Springs Seabase on the Suwannee River in Dixie County, Florida, seven miles south of Old Town. On the application, Petitioner agreed that the private seaplane base would be for his personal use, that it would not be used for commercial operations, that flight activities from the proposed site would be conducted only during the day, and that operations would only occur in VFR weather conditions. Petitioner owns 362 acres of land with approximately 2,400 feet of that land being riverfront property. Petitioner's property is on the west shore of the Suwannee River. Approximately across from the southern boundary of Petitioner's property is the Spring Run in Manatee Springs State Park. The Park extends a considerable distance to both the north and the south, far beyond the boundaries of Petitioner's property. Approximately 100 feet south of the entrance to Spring Run is the dock of Manatee Springs State Park. Numerous manatee have been sighted around the Park's dock, at the entrance to the Spring Run, in the Spring Run, and in the middle of the River across from the dock. The Suwannee River between Petitioner's property on the west bank and the Park's property on the east bank is between 600 and 700 feet wide. In that area, the Suwannee River is open to all kinds of boat traffic, some of which travels as fast or faster than a seaplane taking off and landing. That area of the River is used by fishing boats, ski boats, airboats, jet skis, houseboats, and canoes. There is a tour boat which travels through the area in question, and canoes can be rented at the Park from a concessionaire. Personnel at the commercial canoe rental business advise renters to stay within 50 to 100 feet from the east shore line, along the Park. However, some renters ignore the instructions and cross the River. Due to the heavier manatee and boat activity at the Spring Run and Park docking area across from the southern portion of Petitioner's property, Petitioner proposes that his landing and take-off area be located just to the north of the northern boundary of his property, away from the entrance to Manatee Springs State Park, in the middle of the River, and in a section of the River which is straighter, which would increase his visibility of boat traffic in the area. Petitioner will place no structures of any kind in the River. Under Petitioner's proposal, he will store his seaplane in an area in the northern portion of his property. No structures will be constructed in this storage area. Petitioner would taxi out from the seaplane's storage area to his take-off and landing area which starts approximately 300 feet north of his storage site. The take-off and landing area would extend approximately 2,600 feet up the River and would be 100 feet wide. Petitioner proposes to use either a two-passenger or four-passenger seaplane. Such seaplanes utilize 100 h.p. and 150 h.p. engines, respectively. Such seaplanes taxi at 3-5 knots per hour, which speed would create the same wake as a canoe. When a seaplane is idling, it creates no wake. When a seaplane takes off, it rotates onto the pontoon step within 15 to 20 seconds and completes take-off within an additional 10 to 15 seconds. The total take-off time is approximately 30-35 seconds, and the seaplane during take-off will achieve a speed of 40-45 m.p.h., less the head wind. The total take-off distance is approximately 1,000 feet. Accordingly, Petitioner would be on the River for approximately 5 minutes of taxiing and 30 seconds of take-off, at which point the seaplane is off the River. The amount of wake created during take-off is 2-3 inches. The distance betwen the entrance to the Spring Run into Manatee Springs State Park and the southern end of Petitioner's proposed landing and take-off area is 3,000 feet. Thus, Petitioner's proposed landing and take-off area is located a safe distance from where boaters and manatee congregate around the Springs. Further, although some of Petitioner's neighbors on the west shore of the Suwannee River tie their boats to trees along the shore, there are no docks extending into the River in or near the area proposed for the landing and take- off strip. There are a public boat ramp at Clay Landing approximately 2 miles above the proposed seaplane landing area, a public boat ramp somewhere south of the Park, and a third public boat ramp somewhere in the Park. The boat ramps are not close enough to Petitioner's proposed landing and take-off strip to pose any threat to their users from Petitioner's proposed use of his seaplane. Petitioner is a licensed pilot, who possesses all appropriate ratings and has passed the required physical examinations. He learned to fly in 1940 and operated a seaplane base in Fort Walton during the 1940s and 1950s. He was then employed as a pilot for Eastern Airlines for 33 years. He has 18,000 hours of flying time, which includes 1,000 hours of flying seaplanes. He will carry liability insurance on his seaplane of at least $100,000. Petitioner understands that when his seaplane is on the water, it is subject to the rules and regulations governing boats and other watercraft. Accordingly, when "no wake" restrictions are in effect on the Suwannee River when the River is high, Petitioner cannot use his seaplane base. The Department's aviation specialist assigned to process Petitioner's application for site approval visited Petitioner's property on five separate occasions, observing boat traffic on the River during his visits. On one occasion, he spent the day counting the boat traffic and estimating intervals of traffic relative to landing and take-off times. Although the River was high on that occasion, it was during a weekend when boat traffic would be heavier than during the week. He determined that the proposed location of Petitioner's seaplane base was a safe location and that Petitioner's activity would not constitute a hazard to boating traffic. The Department issued its Notice of Intent to approve Petitioner's seaplane base, subject to several conditions: All operations are conducted during daylight hours and during VFR weather conditions only. Operations are prohibited on long holiday weekends that generate a high volume of river traffic (Memorial Day, 4th of July, Labor Day). A non standard traffic pattern be used, all traffic patterns will be to the west of the extended runway center line to prevent over flight of Manatee Springs State Park. Pursuant to the Department's regulations, Petitioner was required to provide notice of his application to all property owners within 1,000 feet from any boundary of the airport operational area, and the Department's Notice of Intent was published notifying interested persons that a public meeting would be conducted, if requested, on Petitioner's application. A number of persons attended the public meeting, some of whom supported Petitioner's application, but the majority of whom opposed Petitioner's application. After the public meeting, the Department issued a letter denying Petitioner's application, citing the concerns voiced at the public meeting. Additionally, the denial letter advised Petitioner that the Trustees of the Internal Improvement Fund have state sovereignty jurisdiction of the River area where the proposed seaplane base would be located and that Petitioner would, therefore, need appropriate authorization from the Trustees through the Department of Natural Resources to use the sovereign submerged land. That letter further advised Petitioner that the Trustees' jurisdiction is subject to the navigation servitude of the federal government and that Petitioner, therefore, would need a permit from the Army Corps of Engineers to use the proposed site on the Suwannee River as a seaplane base. Although the statutes and rules regulating the Department's site approval and licensure of airports and seaplane bases do not contain a requirement for authorization from the Trustees or the requirement of a permit from the Army Corps of Engineers, Petitioner contacted those agencies. By letter dated June 28, 1991, the Florida Department of Natural Resources advised Petitioner as follows: Please be advised that you do not need authorization for the use of state-owned submerged lands if you are not storing your sea plane waterward of the Ordinary High Water Line of the Suwannee River, constructing structures waterward of the Ordinary High Water Line, or impacting state-owned submerged lands and resources when removing your seaplane from the Suwannee River. Petitioner's proposal does not contain any of those characteristics. By letter dated September 6, 1991, the Department of the Army, Jacksonville District Corps of Engineers, advised Petitioner that no authorization or permit was required for his proposed seaplane base. Petitioner can safely take-off and land in his proposed strip without presenting a danger to boaters and swimmers any greater than the risk presented by other fast moving vessels currently permitted to utilize the Suwannee River in the area under question. The height of a seaplane propeller poses no danger to swimmers or manatee. One must be fully licensed and trained to operate a seaplane, while one needs no training or licensure to operate a speed boat. The height of a seaplane presents a better view of obstacles in the River than the view of someone in a boat or in the River. A seaplane offers the ability to stop quickly or "pull up" in a split second to avoid something coming quickly into the path of the seaplane. Although the Florida Department of Natural Resources advised Petitioner that he did not need authorization to use the state-owned submerged lands of the Suwannee River, employees of the Division of Recreation and Parks of the Department of Natural Resources testified at the final hearing in opposition to Petitioner's application. Those employees believe that Petitioner's proposed landing and take-off area is within the jurisdiction of the Division of Recreation and Parks pursuant to a Management Agreement entered into between the Division and the Board of Trustees of the Internal Improvement Trust Fund of the State of Florida. That Management Agreement entered into on November 24, 1986, and amended on January 19, 1988, does grant management responsibilities to the Division over: All those sovereign submerged lands lying within 400 feet of the Mean High Water or Ordinary High Water Line, or in the case where the shoreline is vegetated with. . .wetland vegetation, within 400 feet of the emergent edge of the vegetation, and within the riparian area of any state park. . .administered by the Division of Recreation and Parks . . . . Petitioner's proposed landing and take-off strip is within 400 feet of the emergent edge of the vegetation of Manatee Springs State Park. That Management Agreement, however, also provides that the Board of Trustees of the Internal Improvement Trust Fund of the State of Florida retained the right to also engage in management activities over those sovereign submerged lands and further provides that the Management Agreement is not to be construed in any way to interfere with the traditional riparian rights of private landowners. Lastly, that Management Agreement required the Division of Recreation and Parks to submit to the Board for its approval a management plan for those submerged lands and prohibited the Division from engaging in activities not provided for in the required plan without the advance written approval of the Board. There was no evidence indicating that the Division had adopted any management plan for the area under consideration in this cause. Further, no explanation was offered as to how the Division of Recreation and Parks could impose requirements not imposed by the Department of Natural Resources.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a Final Order be entered granting Petitioner's airport site approval and license application, with the conditions set forth in paragraph numbered 13 of this Recommended Order. DONE and ENTERED this 26th day of November, 1991, at Tallahassee, Florida. LINDA M. RIGOT 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 November, 1991. APPENDIX TO RECOMMENDED ORDER DOAH CASE NO. 91-4391 Respondent's proposed findings of fact numbered 1-4 have been adopted in substance in this Recommended Order. Respondent's proposed finding of fact numbered 5 has been rejected as not constituting a finding of fact. Respondent's proposed finding of fact numbered 6 has been rejected as being subordinate to the issues involved herein. Copies furnished: Ben G. Watts, Secretary Department of Transportation Haydon Burns Building Attn: Eleanor F. Turner 605 Suwannee Street Tallahassee, Florida 32399-0458 Vernon L. Whittier, Jr., Esquire Department of Transportation 605 Suwannee Street, MS-58 Tallahassee, Florida 32399-0458 Henry C. Fucik, 8290 S.W. 58th Street Miami, Florida 33143
The Issue Whether Petitioner's request for an interim rate should have been granted with an effective date of May 23, 2005, rather than the September 12, 2005, effective date established by the Agency for Health Care Administration (AHCA).
Findings Of Fact Lanier Manor is a nursing home that participates in the Florida Medicaid Program. AHCA is the single state agency charged with administering Florida's Medicaid Program. On May 23, 2005, Lanier Manor opened a new ventilator unit at its nursing home facility. The operation of the new ventilator unit caused Lanier Manor's allowable Medicaid costs to increase to a level in which it was eligible for an interim rate. An interim rate is a rate increase that takes place during a period between AHCA's semi- annual rate settings. A letter requesting same is called an "interim rate request" (IRR). On June 2, 2005, Stanley W. Swindling, a shareholder in the certified public accounting firm of Moore Stephens, Lovelace, P.A., authored a letter requesting an interim rate for the Lanier Manor ventilator costs. Attached to this letter was the accounting information necessary for AHCA to approve the request contained in the letter. Prior to his association with Moore Stephens, Lovelace, P.A., Mr. Swindling was a Medicaid auditor for Respondent's predecessor agency for nine years. Mr. Swindling has been a member of Moore Stephens, Lovelace, P.A., for more than 20 years. During the last 29 years, and having personally submitted approximately 100-250 IRRs or similar applications to AHCA within the last 20 years, Mr. Swindling has never had a problem with having an IRR sent to the Agency by regular mail not being timely received by the Agency. His June 2, 2005, letter was addressed to J. Ross Nobles, Acting Medicaid Planning Administrator for Florida Medicaid. Messrs. Swindling and Nobles are acquainted through Mr. Swindling's consulting for various nursing homes. Mr. Nobles is the appropriate person within AHCA to whom IRRs are to be submitted. His Agency unit sets per diem rates for qualified nursing homes. IRRs are directed to, and routed through, his office. The address on the June 2, 2005, letter is Mr. Nobles' correct address. At hearing, Gloria Adams, who has been in charge of production for Mr. Swindling for 17 years, testified credibly that it is the firm's and Mr. Swindling's standard business practice to have Ms. Adams or a secretary type each letter he authors. Ms. Adams then takes the typed letter to Mr. Swindling to approve by signing. Once Mr. Swindling's signature is on the letter, regardless of who typed it, Ms. Adams personally makes all necessary copies, addresses all the envelopes, places the necessary postage on every envelope, and places the completed series of envelopes on the receptionist's desk. Moore Stephens, Lovelace, P.A.'s standard business practice then is for the receptionist to gather all completed envelopes from her desk and exit the building at approximately 5:30 p.m. each work day. Upon reaching the street, the receptionist either hands the completed envelopes to the mailman, if he is waiting on the corner outside, or places them in the permanent mailbox on the corner, if the mailman has not yet arrived. As to June 2, 2005, Ms. Adams had no specific recollection of personally typing the IRR in question or of seeing the receptionist deposit it with the United States Postal Service's mailbox or mailman. However, on almost every work day afternoon, Ms. Adams has, in fact, watched through her window and seen the mailman arrive on the corner between 5:20 p.m. and 5:35 p.m. Frequently, she has observed the receptionist, named "Yadi," hand to the mailman the firm's outgoing mail for the day, or has observed Yadi drop the firm's mail for the day in the mailbox if the mailman has not yet arrived. Yadi was pregnant on June 2, 2005, but she did not leave the firm on maternity leave until July 2005. There was stipulated in evidence a copy of Mr. Swindling's June 2, 2005, letter bearing the date "6/4/05" and the initials M.G., indicating that his copy of the IRR had been received by Lanier Manor's chief financial officer, Mike Greenwald, on June 4, 2005. Mr. Swindling usually sends IRRs to AHCA via regular mail because there is a 60-day window for retroactive approval provided by Part IV.J.1. of the Title XIX Medicaid Long Term Reimbursement Plan (the Medicaid Plan), which has been adopted, pursuant to Florida Administrative Code Rule 59G-6.010, as AHCA's "Payment Methodology for Nursing Homes Services." For Lanier Manor, the June 2, 2005, IRR only requested that AHCA make approval retroactive by seven days to May 23, 2005. Mr. Swindling usually sends cost reports and other date-specific materials to AHCA via Federal Express, which has a tracking system and which can provide a return receipt if necessary. Messrs. Nobles and Swindling interacted by phone and correspondence on other matters between June 2, 2005, and November 11, 2005. At no time during that period Mr. Swindling bring up the Lanier Manor IRR, which had not yet been acted upon by AHCA. Mr. Swindling did not bring up the Lanier Manor IRR in his June to November 2005, phone calls or correspondence with Mr. Nobles because he assumed Agency approval had been mailed directly to the nursing home or its chief financial officer, Mike Greenwald. However, on November 11, 2005, Lanier Manor contacted AHCA to inquire concerning the status of its June 2, 2005, IRR and was informed that the Agency did not have that IRR. That same day, Mr. Swindling faxed a copy of his June 2, 2005, letter and its attached IRR figures to Mr. Nobles. Mr. Nobles received the fax transmission on November 11, 2005. On November 11, 2005, Mr. Nobles sent an e-mail to Mr. Swindling, requesting proof from Mr. Swindling that he had submitted the IRR in June. AHCA was willing, upon receipt of verifiable proof of a June submission to back-date the IRR request to June 2, 2005. On November 16, 2005, Mr. Nobles e-mailed nine employees in his office at AHCA to determine if they had received the IRR before November 11, 2005. Three employees did not even indicate "read" by computer to Mr. Nobles' inquiry, and two did not reply; one did. A total of five negative replies were returned within 15 minutes of Mr. Nobles' inquiry. Some of these replies were returned in four to six minutes, hardly time for a thorough search for the IRR. No other units within AHCA were polled. No other parts of Mr. Nobles' building were polled. Mr. Nobles determined that AHCA could not identify the receipt of the June 2, 2005, letter until it received a copy of the letter sent by Mr. Swindling via facsimile transmission on November 11, 2005. Mr. Nobles, himself, made the determination of the official date of receipt of the June 2, 2005, letter on behalf of the Agency. Mr. Nobles determined that the IRR was not received prior to that date because neither he, nor any of the analysts in his office, could find a copy of the June 2, 2005, letter on November 16, 2005. Mr. Nobles testified that his search was the sole deciding factor as to whether the Agency received the June 2, 2005, letter prior to November 11, 2005. On December 13, 2005, in a letter addressed to Mr. Swindling, the Agency granted the interim rate with an effective date of September 12, 2005. September 12, 2005, is 60 days prior to the November 11, 2005, receipt by AHCA of the fax transmission of the IRR. The parties have stipulated that the rate increase in the IRR was correct and appropriate. Mr. Nobles testified that the September 12, 2005, effective date was the earliest the interim rate could be effective given his determination that the IRR was not received by AHCA until November 11, 2005. He relied on the Medicaid Plan, which is applicable in this case. (See Finding of Fact 15.) The parties have stipulated that if it had been determined that Lanier Manor's IRR had been received on or about June 2, 2005, the interim rate would have been effective on May 23, 2005, as requested in Mr. Swindling's letter. As it is, the provider, Lanier Manor, has suffered a loss of approximately $22.54 per bed, per day, for three and a half months, which is a substantial loss.
Recommendation Based on the foregoing Findings of Facts and Conclusions of Law, it is RECOMMENDED that the Agency for Health Care Administration enter a final order establishing the effective date of the interim rate increase as May 23, 2005. DONE AND ENTERED this 4th day of August, 2006, in Tallahassee, Leon County, Florida. S ELLA JANE P. DAVIS Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 4th day of August, 2006. COPIES FURNISHED: Peter A. Lewis, Esquire Goldsmith, Grout & Lewis, P.A. 307 West Park Avenue, Suite 200 Tallahassee, Florida 32308 L. William Porter, II, Esquire Neverson-Anyjah Heatley, III, Esquire Agency for Health Care Administration 2727 Mahan Drive, Building 3 Tallahassee, Florida 32308-5403 Richard Shoop, Agency Clerk Agency for Health Care Administration Fort Knox Building 2727 Mahan Drive, Mail Station 3 Tallahassee, Florida 32308 William Roberts, General Counsel Agency for Health Care Administration Fort Knox Building, Suite 3431 2727 Mahan Drive, Mail Stop 3 Tallahassee, Florida 32308 Christa Calamas, Secretary Agency for Health Care Administration Fort Knox Building 2727 Mahan Drive, Suite 3116 Tallahassee, Florida 32308
Findings Of Fact At all times relevant hereto Michael J. Gaylord was licensed as a real estate salesman or broker in Florida end Suzanne L. Gaylord was licensed as a real estate salesman in Florida. Both were affiliated with Out Island Properties. Michael Gaylord was employed as a salesman by Out Island Properties effective April 19, 1984 and was licensed as a real estate broker effective April 30, 1986. (exhibit 1). Suzanne Gaylord was licensed as a real estate salesman in February 1984, and effective April 19, 1984 was associated with Out Island Properties, Inc. as a real estate salesman (exhibit 2), She served as bookkeeper and office manager in the Out Island Properties office. At all times relevant hereto Out Island Properties Inc. was a licensed corporate real estate broker, Out Island Properties Inc. is owned by Arnold Brilhart Jr. and Michael Rehr equally. Both Brilhart and Rehr are licensed real estate salesmen. From exhibit 23, the deposition of Michael Gaylord, it is clear that, at one time, it was intended that he, Rehr and Brilhart would each own a one-third interest in Out Island Properties. This conclusion is reached from the establishing of the land trust agreement with Gaylord as trustee for the benefit of Gaylord, Rehr and Brilhart; that two of these three peoples signatures were required on a check drawn on an Out Island Properties bank account; and from Rehr's testimony. (Tr. p. 38). Michael Gaylord was never the qualifying broker at Out Island Properties Inc. but, along with Rehr and Brilhart, he was an authorized signatory on checks written on an Out Island Properties bank account. There were four of these accounts. A real estate escrow account, a real estate operating account, a rental escrow account and a rental operating account. Checks drawn on any of these accounts required the signature of two of the three authorized signers. In addition Michael Gaylord had a trustee account for the sale of lands for which he was trustee for land beneficially owned by Rehr, Brilhart and himself. Out Island Properties entered into a purchase agreement to purchase certain land for immediate resale to several purchasers with all transactions to close at one time. Title from the original owner was to go to the Gaylord trust and from there to the ultimate purchaser. They agreed to sell two of these lots to Gaylord and in July 1985 those sales closed. Other sales were pending. On July 22, 1985 a check was written on Out Island Properties escrow account in the amount of $11,500 payable to the closing agent for the purchase of two or more lots shown on exhibit 16. This check purports to bear the signature of Gaylord and Brilhart. Brilhart's signature was forged on this check. Of this $11,500 removed from the escrow account $500 had never been deposited in the escrow account by the person to whose purchase the $500 was attributed at the closing. On July 23, 1985 Gaylord exchanged a check drawn on Out Island Properties escrow account payable to Sun Bank in the amount of $20,784 for a cashier's check in the same amount payable to the closing agent's escrow account. This check was used in the closing of two of the lots on exhibit 16. The check was Purportedly signed by Gaylord and Brilhart but the later's Signature was forged. This money taken from the escrow account had not been deposited with funds received from these purchasers. In her deposition (exhibit 22) Suzanne Gaylord acknowledge signing Brilhart's name on those three checks (exhibit 12) but insisted that she had Brilhart's telephonic authority to sign his name. Sometimes she was told by Michael Gaylord that Brilhart had authorized her to sign his name to checks. Brilhart denies ever authorizing either respondent to sign his name to any check. So far as the checks drawn on the escrow account (exhibit 12) is concerned, Brilharts testimony is deemed more credible. On May 22, 1985 a check Purportedly signed by Gaylord and Rehr (exhibit 17) was drawn on Out Island Properties escrow account payable to guardian title in the amount of $1000. On June 18, 1985 the check was drawn on Out Island Properties operating account, (exhibit 17) purportedly signed by Gaylord and Rehr in the amount of $280.48 payable to United Telephone of Florida. Although Rehr appears to be one of the signers of this check it was not his signature thereon. Respondents testified in their depositions (exhibits 22 and 23) that Suzanne Gaylord signed Brilharts name on several checks from the operating account and from the escrow account, but only after receiving verbal authorization from him to place his name on a check requiring his signature No such testimony was Presented that Rehr had likewise given verbal authorization for either of the Gaylords to sign his name on a check. Both respondents testified that Brilharts often signed checks in blank to be later signed by Gaylord to pay expenses of the office. Brilhart made no reference to this practice in his live testimony. After Brilhart and Rehr became suspicious of the transactions involving the accounts over which Michael Gaylord had signature authority, the books and records of the office were obtained and turned over to an accountant for an audit. This audit revealed numerous purchases from the operating accounts had been made for personal expenses for the Gaylords and disclosed the shortage of approximately $10,000 in the Out Island Properties escrow account. Demand was made to Gaylord to refund the shortfall in the escrow account but no remittance was received. Brilhart and Rehr replaced the shortage of funds in the escrow account and filed a complaint in the circuit court of Lee County against the Gaylords (exhibit 5). That case was ultimately resolved in a settlement agreement (exhibit 15). After receiving his broker's license Michael Gaylord applied for and was granted a license by Petitioner to open an office at the Pineland Marina #5. No real estate office was ever opened at that address by Respondent. In the purchase of lot 4 block F, a contract to purchase the lot had been executed by Katherine Haynes who had qualified for the mortgage to cover the balance of the purchase price. However, no entry on exhibit 20, recapping the escrow account for the period involved, shows any downpayment was ever received from Haynes. Shortly before the closing Haynes told Gaylord she wouldn't go through with the purchase. He suggested she proceed with the purchase for which he would put up the money and she would quit claim the property to him. To clear this transaction Gaylord withdrew $4000 from the escrow account on check No. 123 (exhibit 12) on which Brilharts name had been forged, added $3013 of his own funds and obtained a cashier's check from Sun Bank in the amount of $7013 (exhibit 12) which was used to close this transaction and the property was deeded to Michael and Suzanne Gaylord. Respondent considers the money withdrawn from the escrow account to be a draw against his profit on the transactions rather than a removal of funds from an escrow account for a purpose other than that for which the funds were escrowed. Similarly Respondent used escrowed funds withdrawn from Out Island Properties escrow account without the knowledge or approval of either Rehr or Brilhart to purchase other real properties through Gaylord as trustee with title to Michael and Susan Gaylord. Such withdrawal of funds for a purpose for which the funds had never been deposited in the escrow account caused the shortage in the escrow account which was replaced by Brilhart and Rehr.
The Issue The issues in this case are whether Respondent, Lakeview of Largo Condominium Association, Inc., et al. (Lakeview or Respondent), violated chapter 70, Pinellas County Code of Ordinances, as alleged in the discrimination complaint (Complaint) filed by Francis Dandrea (Mr. Dandrea or Petitioner); and, if so, what relief should be granted.
Findings Of Fact The following Findings of Fact are based on the relevant stipulated facts and the oral and documentary evidence adduced at the final hearing. The parties agree that the Federal Act (42 U.S.C. 3601 et seq.), the Florida Fair Housing Act (sections 760.20 through 760.37, Florida Statutes, (2019)),2 and “the Pinellas County Code mirror one another, so the same legal arguments apply to all counts of the Complaint.”(*) The Lakeview campus consists of 12 to 14 acres of land and six residential buildings with approximately 60 condominiums in each building, for a total of 312 units. There are laundry facilities (a washer/dryer unit) on each floor for residents to use. Residents are not allowed to use laundry facilities found on the different floors of each building, but must use the facilities on their floor. If the laundry facilities on their floor are in use, 1 At the hearing, the parties jointly offered an additional exhibit, Exhibit Q, which was admitted into evidence. 2 Unless stated otherwise, all Florida statutory citations will be to the 2019 version of the Florida Statutes. No legislative changes have been made to sections 760.20 through 760.37 since 2013. residents must wait until the laundry facilities are available. In 2004, Petitioner was 71 years old, and his wife, Dolores Dandrea, was 70 years old when they purchased Lakeview Condominium No. 6113. On April 13, 2004, Petitioner and Mrs. Dandrea executed the following statement: I have read the frequently asked questions and answer sheet and understand my responsibilities as an owner.3 Lakeview’s Rules and Regulations (the “Rules”), Section VIII, paragraph three provides: “No new washer or dryer installations will be permitted within the units as of January 1, 1994 Upon the sale of the unit, washers and/or dryers within the unit must be removed.”(*) The Rules do not provide who (buyer or seller) is to remove the washer and dryer upon sale of a condominium unit. (*) Petitioner and Mrs. Dandrea resided in Condominium No. 6113 for nine years. In those nine years, Petitioner testified he had never thought about the Rules, specifically about the washer/dryer unit, as they were “very close” or “right next door” to the first floor laundry facility. In 2013, Condominium No. 6110 was listed for sale. Petitioner either knew or became aware that there was a washer/dryer unit in that condominium, a main purchasing point for Petitioner. On March 29, 2013, Petitioner executed an “AS IS” residential contract for the sale and purchase of Condominium No. 6110. The contract clearly listed additional personal property included in the sale: refrigerator(s); microwave oven; washer; dryer; and blinds. It is undisputed that the washer/dryer unit was installed prior to the Dandrea’s purchase of Condominium No. 6110. (*) An “Estoppel Letter”4 requested by the title company provided there were no violations against Condominium No. 6110 at the time of the sale. 3 As part of Lakeview’s screening process, all new residents have to acknowledge a “55+ Community Frequently Asked Questions and Answer Sheet DBR Form 33-032.” 4 The “Estoppel Letter” provides that the buyers are “Francis and Dolores D’Andrea”. Petitioner and Mrs. Dandrea moved from Condominium No. 6113 into Condominium No. 6110 in late April or early May 2013. A washer/dryer unit was in Condominium No. 6110, as specified in the purchase agreement. Petitioner’s current unit (Condominium No. 6110) is a dwelling within the meaning of the Act, 42 U.S.C.§ 3602(b), because it is within a multi-unit building occupied as a residence by several families. (*) On October 24, 2018, Lakeview’s community association manager, Frank Fundora, notified Petitioner and Mrs. Dandrea of their non-compliance with the Rules regarding the presence of the washer/dryer unit in Condominium No. 6110. (*) On January 22, 2019, Mr. Fundora, on behalf of Lakeview, sent the Dandreas a letter that “required” them to attend a Lakeview Compliance Committee hearing to explain their position as it related to the washer/dryer unit in their condominium. The hearing was held on February 6, 2019.5 On February 21, 2019, Mr. Fundora, on behalf of Lakeview, advised the Dandreas that they were found in non-compliance of the Rules by the Compliance Committee. (*) That violation was reported to the Lakeview Board of Directors (Board), who requested the washer/dryer unit be removed from Condominium No. 6110 within 14 days of the letter. Additionally, the Dandreas were notified that the non-compliance (the failure to remove the washer/dryer unit) would lead to a monetary fine of up to $100 per day to a maximum of $1,000. (*) The Dandreas did not remove the washer/dryer unit from Condominium No. 6110. On March 14, 2019, Mr. Fundora, on behalf of Lakeview, notified the Dandreas of the fine assessment of $100 per day for the violation of the 5 The January 22, 2019, letter provided the hearing would be on February 5, 2019, however the February 21, 2019, Lakeview letter to the Dandreas provided the hearing took place on February 6, 2019. Rules, up to a maximum of $1,000 fine, consistent with chapter 718, Florida Statutes. The fine was placed on Petitioner's account in an amount of $1,000 on March 22, 2019. (*) Petitioner, via letter to the Board dated April 19, 2019,6 requested a reasonable accommodation from the Rules pursuant to the Act. (*) The letter provides7: Dear Sirs, I respectfully request a conversation with you asap [sic] about reasonable accommodations at our condo complex…[sic] I am enclosing letters from our doctors stating that we should not get rid [of] our washer/dryer due to our medical complications and conditions. Respectfully, Francis Dandrea Along with the April 19, 2019, reasonable accommodation request, Petitioner submitted supporting documentation from medical professionals setting forth the medical conditions of both Petitioner and Mrs. Dandrea as the basis for the reasonable accommodation request. (*) The parties stipulated that the medical documentation below was provided in Petitioner’s request for a reasonable accommodation. That documentation provided: 11/06/2018 To whom it may concern, Francis Dandrea suffers from generalized arthritis in addition to medical diagnoses of emphysema and intermittent atrial fibrillation. His wife is limited functionally by polymyalgia rheumatic. Removing the washer/dryer from their condo would creat [sic] a physical hardship and is not recommended. 6 The certified letter was “signed for” by Mr. Fundora on April 22, 2019. 7 This letter was written in all capital letters. The text is provided in sentence format. Please share this communication with the patient. Signed by: /es/ JOHN H HULL, MD GERIATRICS & EXTENDED CARE 11/07/2018 05:41 Analog Pager: [Omitted] Digital Pager: [Omitted] And: 12/12/2018 To Whom It May Concern: Mrs. Dolores D’Andrea is under my medical care for 5 years. She asked me to write this letter. She has multiple medical conditions. It came to my attention that recently washer and dryer was [sic] required to be removed from her unit. Patient has urinary incontinence. It is absolutely important for her to have washer and dryer nearby, so she can wash her clothes because of frequent accidents. Also she has polymyalgia rheumatica, and it is very difficult for her to walk down the hall to a washer and dryer units that located down the hall in apartment area. [sic] It would be medically necessary for her to have washer and dryer in her apartment. If any questions, please feel free to call my office 727-584-7706. Sincerely, Helen Brvenik, M.D. Petitioner testified to his multiple infirmities: osteoarthritis; atrial fibrillation; and a bulging disc. Petitioner also provided that he had had surgery on both knees (“not replacements”), and he had to give up golf three years ago. Petitioner also testified that his wife has neurological problems, including double vision for which she had surgery, and anxiety issues. On April 24, 2019, two days after receipt of Petitioner’s request for a reasonable accommodation, Mr. Fundora, on behalf of the Lakeview Board, informed the Dandreas that Lakeview had denied the requested accommodation. Further, the Board voted to give the Dandreas until May 8, 2019, to comply with the Rules by removing the washer/dryer unit. If the Dandreas refused to do so, their right to use the common recreational facilities would be suspended. (*) Petitioner did not remove the washer/dryer unit, and on May 8, 2019, Lakeview suspended Petitioner's rights to the common recreational facilities. (*) Petitioner filed the Complaint against Lakeview with the PCOHR on May 13, 2019. (*) On September 8, 2019, the PCOHR issued a Determination of Reasonable Cause and Charge of Discrimination. (*) Those individuals who testified at the hearing either are friends of Petitioner, serve (or have served) on Lakeview’s Board, or are employed by Lakeview. However, none of them are health care professionals, and their observations are just that, observations without any medical training or knowledge of Petitioner’s health issues. Mr. Fundora testified that Lakeview did not have a process in place for the type of reasonable accommodation requested by Petitioner. However, Lakeview had, in the past, received reasonable accommodation requests for emotional support animals, large vehicles, and motorcycles. Those requests have been handled on a case-by-case basis.8 A request for additional medical information to support or discredit the requested accommodation for Petitioner (or Mrs. Dandrea) was never sought. There is no dispute that Lakeview objected to the Dandreas retaining the washer/dryer unit. Lakeview’s denial of the request for a reasonable accommodation within two days of the request appears to be solely based on observations made by non-medically trained residents or Board members who 8 At least one request for an emotional support animal was approved, while another was denied when the supporting documentation was found to be fabricated. had seen Petitioner (and Mrs. Dandrea) walking around the Lakeview complex at some time. These witnesses attempted to give opinions from their observations, yet they were not qualified to do so as they did not know if the requested accommodation was medically necessary. Lakeview has not articulated a legitimate, non-discriminatory reason for withholding the reasonable accommodation request. The preponderance of the evidence demonstrates that having the washer/dryer unit within Petitioner’s condominium is a reasonable accommodation; and necessary to afford Petitioner (and Mrs. Dandrea) the opportunity to the use and enjoy their home.
Findings Of Fact Based upon the evidence adduced at the evidentiary hearing on the Department's Motion, and the record as a whole, the following Findings of Fact are made: In October of 1995, Petitioners, who desired to construct a single-family, concrete dock in the Hillsboro Canal (in Broward County, Florida) for their 171-foot yacht and to perform dredging adjacent to the dock (Project), filed with the Department a Joint Application for Environmental Resource Permit/Authorization to Use State Owned Submerged Lands/Federal Dredge and Fill Permit (Application). In the Application, Petitioners indicated that their mailing address was: c/o Flynn Enterprises 676 N. Michigan Ave., Suite 4000 Chicago, IL 60611 Flynn Enterprises, Inc., is a business owned by Petitioner Donald Flynn. The Application listed "Jeff Adair, Project Manager" of "Keith and Schnars, P.A., 6500 N. Andrews Avenue, Ft. Lauderdale, FL 33309," as the "agent authorized to secure permit" for Petitioners. The application form that Petitioners used to submit their Application contained the following signature page: By signing this application form, I am applying, or I am applying on behalf of the applicant, for the permit and any proprietary authorizations identified above, according to the supporting data and other incidental information filed with this application. I am familiar with the information contained in this application and represent that such information is true, complete and accurate. I understand this is an application and not a permit, and that work prior to approval is a violation. I understand that this application and any permit issued or proprietary authorization issued pursuant thereto, does not relieve me of any obligation for obtaining any other required federal, state, water management district or local permit prior to commencement of construction. I agree, or I agree on behalf of my corporation, to operate and maintain the permitted system unless the permitting agency authorizes transfer of the permit to a responsible operation entity. I understand that knowingly making any false statement or representation in this application is a violation of Section 373.430, F.S. and 18 U.S.C. Section 1001. Typed/Printed Name of Applicant (if no Agent is used) or Agent (if one is so authorized below) Signature of Applicant/Agent Date (Corporate Title if applicable) AN AGENT MAY SIGN ABOVE ONLY IF THE APPLICANT COMPLETES THE FOLLOWING: I hereby designate and authorize the agent listed above to act on my behalf, or on behalf of my corporation, as the agent in the processing of this application for the permit and/or proprietary authorization indicated above; and to furnish, on request, supple- mental information in support of the appli- cation. In addition, I authorize the above- listed agent to bind me, or my corporation, to perform any requirement which may be necessary to procure the permit or authorization indicated above. I understand that knowingly making any false statement or representation in this application is a violation of Section 373.430. F.S. and 18 U.S.C. Section 1001. Typed/Printed Name of Applicant Signature of Applicant Date (Corporate Title if applicable) Please note: The applicant's original signature (not a copy) is required above. PERSON AUTHORIZING ACCESS TO THE PROPERTY MUST COMPLETE THE FOLLOWING: I either own the property described in this application or I have legal authority to allow access to the property, and I consent, after receiving prior notification, to any site visit on the property by agents or personnel from the Department of Environ- mental Protection, the Water Management District and the U.S. Army Corps of Engineers necessary for the review and inspection of the proposed project specified in this application. I authorize these agents or personnel to enter the property as many times as may be necessary to make such review and inspection. Further , I agree to provide entry to the project site for such agents or personnel to monitor permitted work if a permit is granted. Typed/Printed Name Signature Date (Corporate Title if applicable) The name "Jeff Adair" appears on the "Name of Applicant (if no Agent is used) or Agent (if one is so authorized below)" line under the first paragraph on the signature page of Petitioners' Application; however, neither Adair's signature, nor any other signature, appears on the signature line under this paragraph. Petitioner Donald Flynn's signature appears on the signature lines under the second (agent designation and authorization) and third (access to property) paragraphs on the page. By letter dated November 17, 1995, the Department informed Petitioners of the following: Preliminary evaluation of your project leads staff to the conclusion that the project as proposed cannot be recommended for approval. While this is not final agency action or notice of intent, it does represent the staff review of your application based on consider- able experience in permitting matters. We are sending you this letter at this stage of the processing to allow you to assess fully the further commitment of financial resources for design dependent on permit issuance. . . . In summary, please revise plans to: (1) reduce the amount of dredging; (2) reduce impacts to natural resources; (3) reduce the size of the dock; (4) reduce encroachment on navigational channel; (5) reduce encroachment on adjacent properties; and (6) after minimization, offer mitigation plans that would address the loss of seagrass in the vicinity (watershed or basin) of the project site. Your application is currently "incomplete" and Final Agency Action will not occur until a reasonable amount of time is allowed for the submittal of a revised plan. A completeness summary has been sent under separate cover, addressing the items that are still outstanding. Staff will continue to process your application in the normal manner; however, I suggest you contact Tim Rach of this office . . . to discuss these possible alternatives regarding your project. The Department's November 17, 1995, letter was addressed to Petitioners "c/o Jeff Adair, Project Manager, Keith and Schnars, P.A., 6500 North Andrews Avenue, Fort Lauderdale, FL 33309-2132," as were subsequent requests for additional information made by the Department and other correspondence from the Department concerning the Project. Adair responded to the Department's requests for additional information and otherwise corresponded and communicated with the Department on behalf of Petitioners. In July of 1996, Adair participated in a telephone conference call during which the Department advised him that, if the Application was not withdrawn, it would be denied. On August 13, 1996, Adair sent the following letter to the Department concerning the Project: Pursuant to our recent discussions pertaining to the proposed mitigation plan and final review and processing of the Flynn Dock application, we have been advised via Mr. Flynn's attorney not to withdraw the application. Therefore, we await the Department's final decision relative to the permittability of this project. As you have indicated, we are anticipating the Depart- ment's response toward the end of this month. In making your decision, we strongly urge you to consider the merits or our innovative and "no risk" mitigation plan. We believe our mitigation plan more than compensates for proposed impacts and provides substantial net benefits to the environment and the research community. In particular, information obtained from our proposed research effort would not only benefit our project, but would also facilitate scientific analysis and review of similar applications and issues. As always, please do not hesitate to call should you have any questions or concerns. On August 19, 1996, the Department sent the following letter to Petitioners "c/o Flynn Enterprises, 676 N. Michigan Ave., Suite 4000, Chicago, IL 60611," the address that Petitioners had indicated in the Application was their mailing address: We have reviewed the information received on May 31, 1996 for an Environmental Resource Permit and authorization to use sovereign submerged lands. The Department has deemed the application complete as of this date. Final action on your application for an Environmental Resource Permit and sovereign[] submerged lands authorization will be taken within 90 days of receipt of your last item of information unless you choose to waive this timeclock. If you have any questions, please contact me at . . . . A copy of this August 19, 1996, letter was sent by the Department to Adair. On August 27, 1996, the Department issued a Consolidated Notice of Denial (Notice) in which it announced its preliminary decision to deny Petitioners' Application. The Notice contained the following advisement: A person whose substantial interests are affected by the Department's action may petition for an administrative proceeding (Hearing) in accordance with Section 120.57, Florida Statutes. Petitions filed by the permittee and the parties listed below must be filed within 14 days of receipt of this letter. Third party Petitioners shall mail a copy of the petition to the permittee at the address indicated above at the time of filing. Failure to file a petition within this time period shall constitute a waiver of any right such person may have to request an administrative determination (hearing) under Section 120.57, F.S. The Petition must contain the information set forth below and must be filed (received) in the Office of General Counsel of the Department at 3900 Commonwealth Boulevard, Mail Station 35, Tallahassee, Florida 32399-3000: The name, address, and telephone number of each petitioner, the permittee's name and address, the Department Permit File Number and county in which the project is proposed; A statement of how and when each petitioner received notice of the Depart- ment's action or proposed action; A statement of how each petitioner's substantial interests are affected by the Department's action or proposed action; A statement of the material facts disputed by petitioner, if any; A statement of facts which petitioner contends warrant reversal or modification of the Department's action or proposed action; A statement of which rules or statutes petitioner contends warrant reversal or modification of the Department's action or proposed action; and A statement of the relief sought by petitioner, stating precisely the action petitioner wants the Department to take with respect to the Department's action or proposed action. If a petition is filed, the administrative hearing process will constitute a renewed determination of the Department's decision on the application. Accordingly, the Department's final action may be different from the position taken by it in this letter. Persons whose substantial interests will be affected by any decision of the Department with regard to the permit have the right to petition to become a party to the proceeding. The petition must conform to the requirements specified above and be filed (received) within 14 days of receipt of this notice in the Office of General Counsel at the above address of the Department. Failure to petition within the allowed time frame constitutes a waiver of any right such person has to request a hearing under Section 120.57, F.S., and to participate as a party to this proceeding. Any subsequent intervention will only be at the approval of the presiding officer upon motion filed pursuant to Rule 28-5.207, and 60Q-2.010, F.A.C. This Notice constitutes final agency action unless a petition is filed in accordance with the above paragraphs or unless a request for extension of time in which to file a petition is filed within the time specified for filing a petition and conforms to Rule 62-103.070, F.A.C. Upon timely filing of a petition or a request for an extension of time this Notice will not be effective until further Order of the Department. . . . The Notice was mailed (by certified mail, return receipt requested) to Petitioners "c/o Flynn Enterprises, 676 N. Michigan Ave., Suite 4000, Chicago, IL 60611." Although the Notice's certificate of service reflected that a copy of the Notice had been mailed to Adair "before the close of business on AUG 27 1996," in fact, as a result of inadvertence on the part of Department staff, a copy of the Notice had not been mailed to Adair. On September 3, 1996, the Notice sent to Petitioners was received by a Flynn Enterprises, Inc., employee at the address to which it was mailed. The employee executed a return receipt upon receiving the Notice. The Notice was referred to Victor Casini, Esquire, the general counsel of Flynn Enterprises, Inc., on September 4, 1996. Casini set the document aside for filing. He did not believe that there was any immediate action that he or anyone else in the Flynn Enterprises, Inc., office in Chicago needed to take in response to the Notice. Casini noted that Adair's name was listed in the Notice as among those who purportedly had been furnished copies of the Notice. He knew that Adair was handling all matters relating to the permitting of the Project for Petitioners. He therefore assumed that any action that needed to be taken in response to the Notice would be taken by Adair on behalf of Petitioners. Inasmuch as it appeared (from his review of the Notice) that the Department had already furnished Adair with a copy of the Notice, he saw no reason to contact Adair to apprise him of the issuance of the Notice. In taking no action in response to the Notice other than setting it aside for filing, Casini acted reasonably under the circumstances. Adair first learned of the issuance of the Notice during a telephone conversation he had on September 9, 1996, with an employee of Broward County, who mentioned to him, in passing, that the Department had denied Petitioners' Application. 2/ Adair thereupon immediately telephoned the Department to confirm that the Application had been denied. The Department representative to whom he spoke confirmed that the Notice had issued, apologized for the Department's failure to have sent him a copy of the Notice, and promised to rectify the error by sending him a copy of the Notice as soon as possible. Keith Skibicki, the vice president of Flynn Enterprises, Inc., in charge of its day-to-day operations, served as the liaison between Adair and Petitioners. On September 12, 1996, Adair telephoned Skibicki to inquire (for the first time) if Petitioners had received a copy of the Notice. Skibicki, who previously had neither seen nor heard about the Notice, asked around the office and learned that the Notice had been received and was in Casini's files. Skibicki related this information to Adair. Later that same day, September 12, 1996, Adair received the copy of the Notice that the Department had sent him. He then faxed a copy of the Notice to Harry Stewart, Esquire, the Florida attorney who had been retained by Petitioners to assist them in their efforts to obtain favorable action on their Application. Shortly thereafter Adair telephoned Stewart to discuss what they should do in response to the Notice. During their conversation, Stewart expressed the opinion that the 14-day period for filing a petition for an administrative proceeding began to run only upon Adair's receipt of the Notice and that therefore Petitioners had until September 26, 1996, to file their petition. During the two-week period that followed their telephone conversation, Adair and Stewart worked together to prepare such a petition. The petition was filed with the Department on September 26, 1996 (which was 23 days after the Notice had been delivered to the Chicago office of Flynn Enterprises, Inc., but only 14 days after Adair, Petitioners' designated agent in their dealings with the Department, had received a copy of the Notice). The actions taken on behalf of Petitioners in response to the Notice were intended to preserve Petitioners' right to challenge the proposed denial of their Application. At no time was there any knowing and intentional relinquishment of that right.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is hereby RECOMMENDED that the Department enter an order finding that Petitioners' petition challenging the proposed denial of their Application is not time-barred and remanding the matter to the Division of Administrative Hearings for a Section 120.57(1) hearing on the merits of Petitioners' challenge. DONE AND ENTERED in Tallahassee, Leon County, Florida, this 6th day of February, 1997. STUART M. LERNER Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 SUNCOM 278-9675 Fax Filing (904) 921-6847 Filed with the Clerk of the Division of Administrative Hearings this 6th day of February, 1997.
Findings Of Fact Based upon my observation of the witnesses and their demeanor while testifying, the documentary evidence received and the entire record compiled herein, I hereby make the following findings of fact: Respondent is and was at all times material hereto a registered real estate salesman in the State of Florida having been issued license no. 0390547. In March of 1985, the Respondent's real estate salesman's license was placed with Raymond Joseph Deangelis Investments (RDI) in Naples, Florida. Since March of 1985, Respondent has had a couple of transactions that have actually closed with Mr. Deangelis. Prior to being placed with RDI, the Respondent's registration certificate was placed with EVI Properties, Inc., in Naples, Florida. EVI was a registered corporation. On March 31, 1984, the corporate registration of EVI Properties, Inc was canceled due to non-renewal. Some confusion exists in the Florida Real Estate Commission's records as to when the licenses of the associates of EVI were cancelled. By letter dated January 4, 1985, to EVI Properties, Inc., the Records Section stated: "In reviewing the Division's Records, I find that registration held by your corporation/ partnership expired on 3/31/84 and no renewal has been processed as of the above date. For your convenience, I am enclosing proper form 400.3 on which to request renewal of your corporation/partnership. I suggest that same be filed within 20 days from the date of this letter, otherwise we have no alternative than to cancel the licenses of all associates with your corporation/ partnership. . ." (Emphasis Added) Further, the Respondent was issued a salesman's license effective November 17, 1984, expiration date 3/31/86, registered with EVI Properties, Inc. Although that license was apparently issued in error, the Respondent received no further communication regarding it from the Record's Section. Nevertheless, the Respondent was aware that he did not possess a valid current registration certificate as a salesman during the times material to this complaint. The Respondent enrolled in and completed a 12 hour Bert Rodgers Schools of Real Estate course and re-applied for a current registration certificate. The new registration certificate was issued effective March 18, 1985. During the time that Respondent's registration certificate with EVI Properties was cancelled, he was also employed as vice-president of American Home Funding, a large New York based mortgage firm. As vice-president with American Home Funding, the Respondent was in charge of their Florida organization as a mortgage broker. The Respondent has been licensed as a mortgage broker in Florida since 1981. While the Respondent was associated with EVI Properties no transactions transpired and he inadvertently failed to maintain a valid and current registration certificate as a real estate salesman. From April 1, 1984 through March 17, 1985, Respondent did not possess a valid and current registration as a real estate salesman. In June 1984, the Respondent met Mr. James D. Peterson. Mr. Peterson is the owner of several nursing home facilities located in Rhinelander, Wisconsin, Florida, and Illinois. The Respondent attempted to arrange permanent financing for Mr. Peterson for Some property known as Buena Vida, in Naples. However, the transaction was never consummated. The Respondent, in reviewing Mr. Peterson's financial statements while attempting to arrange financing for him, became aware of a nursing home facility owned by Peterson in Rhinelander, Wisconsin. At the time, the Rhinelander nursing facility was not for sale. In October 1984, the Respondent met Deborah M. Maclean, a real estate sales person at a cocktail party. The party was attended by the Respondent, Mr. Corcelli an attorney and CPA, Mr. Corcelli's partner, Joseph Moore, an, attorney and the owner of Naples Title Company and Ms. Debra Maclean. The Respondent had arranged a S1.8 million dollar construction loan for Mr. Corcelli and Mr. Moore to build a facility on Vanderbilt Beach. As a result of obtaining that mortgage loan commitment, and following the closing, the Respondent invited Mr. Corcelli and Mr. Moore and his wife to his home for cocktails. As his guest, Mr. Corcelli brought Deborah Maclean. During the course of the evening at the dinner party, Respondent and Mr. Corcelli were discussing the real estate industry and Respondent mentioned Mr. Peterson. The following day, Ms. Maclean called Respondent and informed him that she was aware of a company which had a strong interest in purchasing nursing home facilities anywhere in the United States. The firm was called Canadian International Health Services' Inc. Ms. Maclean related to the Respondent that she had all cash buyers". Ms. Maclean contacted the Respondent several times requesting that she be introduced to Mr. Peterson, but Respondent refused. Apparently, Respondent was concerned that he might lose an anticipated mortgage brokerage commission because Ms. Maclean had "all cash" buyers. At some point, Ms. Maclean went to the Rhinelander facility and told one of Mr. Peterson's key employees that she had a buyer for any, end all of their facilities, and in particular the Rhinelander facility. Mr. Peterson decided to sell the Rhinelander nursing home facility, but preferred to deal with Respondent rather than Ms. Maclean. Mr. Peterson, therefore, employed Respondent to serve as a shield between he, Mr. Peterson, and Ms. Maclean during negotiations for the sale of the nursing home facility. If a sale had resulted, Respondent expected to be compensated by the sellers at the rate of 4% of the selling price of $13,000,000 less the value of the inventory. The Respondent agreed to share his commission 50/50 with Deborah Maclean. In December of 1984 and May of 1985, a meeting was held between Ms. Maclean, her attorney George P. Langford, and Respondent to further discuss the sale of the facility and any fee arrangements. Respondent informed Mr. Langford that he did not have a current license, but Respondent stated that he felt that the transaction primarily involved a business and not real property. Respondent did not state to any of the persons involved that he had the "listing" for the Rhinelander property. However, Mr. Peterson informed Ms. Maclean that there was a detailed listing for the property. Respondent's employing broker, Raymond J. Deangelis, did not discover that Respondent was attempting to obtain a purchaser for the Wisconsin property through sales negotiations with Deborah Maclean until May, 1985. None of the negotiations or documents involved in the attempted sale of the Rhinelander property were routed through Respondent's broker.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that The Florida Real Estate Commission suspend the real estate salesman's license of Respondent Ronald Gilbert Rice for a period of 6 months and that an administrative fine of $500 be assessed. DONE and ORDERED this 8th day of January, 1986 in Tallahassee, Leon County, Florida. W. MATTHEW STEVENSON, Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32399 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 8th day of January, 1986. COPIES FURNISHED: James H. Gillis Esquire Department of Professional Regulation Division of Real Estate/Legal 400 West Robinson Street Post Office Box 1900 Orlando, Florida 32802 J. Stephen Crawford, Esquire 12751 Cleveland Avenue Suite 207 Ft. Myers, Florida 33907 Fred Roche Secretary 130 North Monroe Street Tallahassee, Florida 32301 Salvatore A. Carpino, Esquire General Counsel 130 North Monroe Street Tallahassee, Florida 32301 Harold Huff Executive Director Department of Professional Regulation Division of Real Estate 400 West Robinson Street P. O. Box 1900 Orlando, Florida 32802
The Issue The issue is whether Respondent engaged in a discriminatory housing practice, within the meaning of and in violation of the Florida Fair Housing Act, Sections 760.20 through 760.37, Florida Statutes (2005), by requiring Petitioners to submit a second application for the approval of a condominium purchase.
Findings Of Fact It is undisputed that Petitioner, Allan Kangas, has no handicap and is not a disabled person. At the conclusion of Petitioners' case-in-chief, Mr. Kangas testified that he has no handicap. The undersigned, sua sponte, entered an ore tenus order on the record dismissing the case brought by Mr. Kangas. Petitioner, Anna Kangas, is an elderly female and the mother of Mr. Allan Kangas and Mr. Sheldon Kangas, the latter being the representative in this proceeding for the named Petitioners. It is undisputed that Mr. Sheldon Kangas is not handicapped, but that Mrs. Kangas is handicapped, within the meaning of Section 760.22(7), Florida Statutes (2005), because of Alzheimer's disease. Respondent is a condominium association lawfully incorporated as a Florida corporation (Association). Respondent must operate in accordance with the Articles of Incorporation, By-Laws, and Declaration of Condominium (condominium documents). The condominium documents require the Association to approve each purchase of a condominium. On December 8, 2005, Mr. Sheldon Kangas and Mrs. Anna Kangas contracted with Ms. Mary Cox to purchase condominium unit 15, located at 23 Hatchett Creek Road. Ms. Cox is a real estate agent and a co-owner of unit 15. Ms. Cox notified Ms. Pat Williamson, Association Secretary, of the prospective purchase. For the reasons stated herein, Respondent did not discriminate against the prospective purchasers, but approved the purchase of condominium unit 18 in a timely manner after the purchasers changed their purchase contract from unit 15 to unit 18. The prospective purchasers completed an application for approval of the purchase of unit 15 sometime between December 8 and 10, 2005. The Association conducted a meeting to approve the proposed purchase on December 10, 2005. During the meeting on December 10, 2005, the purchasers informed the Association that they wished to purchase unit 18, located at 29 Hatchett Creek Road, rather than unit 15. Unit 18 was owned by Mr. Brian Isaac. Ms. Cox did not object to releasing the purchasers from the contract for the purchase of unit 15. The Association informed the purchasers that a new application for unit 18 would be required. The purchasers completed a new application under protest. At a meeting conducted on January 3, 2006, the Association approved the application for the purchase of unit 18. The purchase of unit 18 closed on January 25, 2006. The purchasers seek reimbursement of living expenses incurred for hotel rooms and meals during the delay caused by the requirement for a second application. The purchasers are not entitled to reimbursement. The purchase of unit 18 was the first time the Association had required a second application. However, it was also the first time a purchaser had changed his or her choice of units after submitting an application. The Association did not discriminate against Mrs. Kangas because of her handicap. The record evidence contains no justifiable issue of law or fact to support the alleged discrimination.
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 2nd day of January 2007, 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 SUNCOM 278-9675 Fax Filing (850) 921-6847 Filed with the Clerk of the Division of Administrative Hearings this 2nd day of January 2007. COPIES FURNISHED: Cecil Howard, General Counsel Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301 Denise Crawford, Agency Clerk Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301 David G. Muller, Esquire Becker & Poliakoff, P.A. 630 South Orange Avenue, Third Floor Sarasota, Florida 34236 Shelden Kangas Allan Kangas 4578 Manor Drive Sarasota, Florida 34233
