The Issue The issue for consideration in this case is whether the Respondents, individually and jointly, on March 24, 1999, established, maintained, or operated migrant housing on their properties located on Rosebud Lane in Arcadia, Florida, without first obtaining permits from the Department of Health.
Findings Of Fact At all times pertinent to the issues herein, the State of Florida's Department of Health, and the DeSoto County Public Health Unit were the agencies in DeSoto County, Florida, responsible for the management and permitting of migrant labor camps and residential migrant housing within that county. Jack L. Sikes has been an environmental specialist II with the DeSoto County Health Unit for 18 years. His duties comprise the management of the migrant housing program within the county, including permitting and inspection of migrant residential housing units and camps. Migrant housing is defined within the Health Department as any structure housing five or more workers engaged in seasonal work, and who have changed their residence during the preceding year. Inspection standards applied to migrant housing relate to health and safety issues, such as cleanliness, refrigeration, hot and cold water, lights, bedding, and structural problems of the facility which impact safety. For the 1998-1999 growing year, permits were issued for 108 migrant worker camps in the county. In the 1997-1998 year there were only 16-17 permits issued for camps. The increase is due to state emphasis on increased safety for migrant housing. By far the greatest percentage of migrant workers are of Hispanic origin. The migrant population increases significantly in DeSoto County during the citrus harvest period which extends from November through June. On March 23, 1999, Mr. Sikes and a co-worker, as a part of a continuing search for un-permitted migrant housing, conducted a drive-through inspection of several mobile homes situated on Southwest Rosebud Lane in Arcadia, Florida. Eight of the lots on Rosebud Lane have mobile homes on them while the other lots are vacant. On this visit, Mr. Sikes did not see any of the indications normally present when a structure is used for a family home such as toys in the yard, laundry drying, etc. As a result, he suspected the homes, some of which were obviously occupied, were being used as migrant housing. The next day, March 24, 1999, at approximately 5:00 p.m., Mr. Sikes and a Spanish-speaking inspector, Robert Schultz, returned to the area and went to the structure located at 1408 Southwest Rosebud Lane, where in response to the inspectors' knock, the door was opened by an Hispanic individual who identified himself as Mario Hernandez. Through the interpretation services of Mr. Schultz, Mr. Hernandez indicated that he lived at that house with his five cousins, all of whose names were recorded on the "Documentation of Hand Laborer" form on which the answers to the interview questions were written. As recounted by Mr. Sikes, Mr. Hernandez spoke for the group as his cousins were not present when the interview began. Mr. Hernandez indicated that he and his cousins arrived in DeSoto County from another location to pick oranges during the first week of November 1998 and took up residence at 1408 Southwest Rosebud Lane. The mobile home they were occupying was large enough to be permitted for six residents. Mr. Hernandez also indicated he and his cousins were renting the mobile home but did not know from whom. Though this statement is hearsay, it is corroborated by an examination of the electricity billing records and other independent evidence of record. A four-fold November increase in electric usage over the mid-October 1998 electric bill indicates the structure was most likely unoccupied before November 1998 but was occupied for several months thereafter. In fact, just after the inspectors left the home, a bus discharged several other men who appeared to be migrant workers and four of them went in the direction of 1408. When Mr. Sikes and Mr. Schultz went to 1375 Southwest Rosebud Lane they found several Hispanic men getting out of a utility van and going into the mobile home. The inspectors went to the house and were invited in. Mr. Schultz translated. During the course of the conversation, the men indicated they had just returned from the fields where they worked picking oranges. They said they all lived in the mobile home with a sixth man who was not present at the time. They also indicated they had come to DeSoto County from Mexico around the first of the year to pick oranges, and had rented the mobile home from someone whose name they did not know. When the picking season was completed in DeSoto County, they intended to move on to other farm work elsewhere. The inspectors spoke with the driver of the bus who identified himself as a crew leader for Turner Foods for whom the migrant laborers also worked. The driver attempted to interfere with the inspectors' questioning of the workers who got off the bus, and as a result, the inspectors requested that he leave the area. Within five minutes of the driver's departure, Respondent Gary L. Frierson drove up and asked Mr. Sikes what was going on. Mr. Sikes advised Mr. Frierson that he and Mr. Schultz were conducting a housing investigation and that based on what information they had gathered, Mr. Frierson needed to obtain a residential migrant housing permit for the properties. Mr. Frierson did not deny he owned the property, but, by the same token, did not admit to owning it either. Mr. Frierson said he was trying to sell the property, but, due to tax considerations, was restricted to selling a limited number of parcels per year. Taken together, the evidence of record is abundantly clear that the occupants of both 1375 and 1408 Southwest Rosebud Lane on March 24, 1999, were migrant farm workers, and the properties were being used as residential migrant housing without being permitted as such. The question remains, however, as to who owned the property and was utilizing it in the fashion described. The public records of DeSoto County reflect that Alice H. Frierson is the owner of record of the property located at 1408 Southwest Rosebud Lane, and Gary L. and Alice H. Frierson, jointly, are the owners of record of the property located at 1375 Southwest Rosebud Lane. Respondents presented several documents in an effort to establish they did not own the properties in question. As to Lot 14 and Lot 22, Bokara Acres, unrecorded Agreements for Deed dated December 31, 1998, between both Mr. and Mrs. Frierson and Wayne Radloff as to Lot 14, and Ricardo Sanchez as to Lot 22, provide for a future transfer of title to each buyer, providing the buyer pays all amounts due on the purchase price. Identical Agreements for Deed were also issued the same date to Mr. Radloff for four other properties in the subdivision. As to Lot 14, a second Agreement for Deed, dated January 1, 1999, purports to transfer a future interest in the same property to Fernando Gomez, and on that same date, Mr. Radloff executed an Assignment of Agreement for Deed to Fernando Gomez. On January 9, 1999, Mr. Radloff also executed a Quit-Claim Deed for Lots 13 and 14 to Gary L. and Alice H. Frierson. As to Lot 22, on March 28, 1999, Mr. Gomez executed a Rescission of Agreement for Deed and Mutual Release to the Friersons in which the December 31, 1998, transfer of the property to Gomez was rescinded, thereby restoring title to Mr. and Mrs. Frierson. This is four days after the visit on March 24, 1999 by the inspectors, Mr. Sikes and Mr. Schultz. By none of the documents, however, did legal title transfer from Mr. and Mrs. Frierson to Mr. Radloff, Mr. Gomez, or Mr. Sanchez. In fact, Mr. Frierson admitted that he collected the rent from the occupants of both parcels weekly from January through March 24, 1999, though he indicated he had no idea which individuals occupied which property. All Mr. Frierson could recall was that a Hispanic man would come out to the truck each time Mr. Frierson went there and beeped his horn, and would give him the money due. He could not identify the man or even say if it was the same man each time. While the Department contends that the unrecorded Agreements for Deed are a sham designed to isolate Respondents from their legal responsibility to obtain permits for the property which they operate as residential migrant housing, Respondent vehemently denied this and produced a series of witnesses who, over several years past, have purchased real estate from them through the same process. None of these individuals experienced any difficulty in obtaining title to the property when they completed payment in full. It should be noted, however, that while these individuals have had no difficulty with the transactions, they are permanent residents of the area, and the situation regarding the parcels in question differs considerably. On none of the transfer documents in issue are the name and address of the person who prepared the document legible, and other technical deficiencies make the agreements un-recordable. When those factors are considered in conjunction with the coincidental concurrence of the documents with the arrival of the migrant workers, and the fact that all interest in the property reverted to Mr. and Mrs. Frierson immediately after the date of the Department inspection, the inescapable conclusion is that the transfers to Mr. Radloff/Mr. Gomez and Mr. Sanchez were not bona fide transfers of an interest in property, but were an effort to obscure the actual ownership of the property to avoid the responsibilities which go with the ownership of residential migrant housing. Other evidence of record supports that conclusion. For example, Respondents presented no documentary evidence to indicate they had ever received any of the weekly payments called for under the Agreements for Deed as to either property but claim that they received a down payment, and that Mr. Frierson collected "rent" each week. For the five properties sold to Mr. Radloff/Mr. Gomez for a total consideration of $63,000, the total down payment was $300. For the property sold to Sanchez for $20,000, the down payment was $100. Respondent admits he has no records to show the down payment or the monthly rental payments he received on either property. Respondents paid the electricity for both properties during the entire time the properties were under the Agreements for Deed through their account with the utility company and were not reimbursed. They provided water to 1375 Southwest Rosebud Lane free of charge from a well on adjacent property they owned. They paid property, casualty, flood, and hurricane insurance for both properties throughout the entire period and were not reimbursed. They did not advise the county property tax office that they had transferred interest in the property to someone else. Though Respondent gave a key to each property to the respective "purchaser," he never saw either at the property. All but one of the properties in which an interest was transferred to Mr. Radloff, Mr. Gomez, or Mr. Sanchez, are vacant and the location of the "buyers" is unknown. Mr. Frierson indicated that he frequently sells property by unrecorded Agreement for Deed. This is standard procedure for him. He claims he paid the electric bills on the properties when they were previously used as rental properties, and he did not cancel the service -- a thing he has done in the past when the buyer is short of cash or cannot pay the power company deposit. In one case under consideration here, he claims, the tenant paid more than was called for, so he used the accrued overpayment to pay the electric bill. As for insurance, he continued his coverage because he wasn't sure the buyer could get coverage. Respondent asserts he does not want to operate migrant housing and has told this to Mr. Sams of the Health Department. He wants single families, and the family which occupied one of the properties in issue on June 7, 1999, went in after the rescission of the Agreement for Deed. Mr. Frierson claims the family's rental business is far less formal than a normal rental operation. Many renters who terminate usually do so by leaving without notice. Many of the renters are Hispanics, whom he describes as quite naïve about paper work. When Mr. Sanchez advised him he wanted out of their agreement, Respondent prepared a Rescission and Release and a Quit-Claim Deed, though he admits the use of both is probably overkill. As to the transactions with Mr. Radloff, Respondent claims he entered into it on the basis of advice from his tax accountant to avoid a higher tax obligation. When he found that he didn’t have the tax problem after all, he bought the lots back and transferred them to Mr. Gomez, which, he contends was his original intention. Mr. Frierson contends that the money paid to him by Mr. Radloff actually came from Mr. Gomez, which, to Respondent, explains the concurrent transfers. He also contends that shortly after the transfer, Mr. Gomez came to him and wanted out of the deal, as had Mr. Sanchez, and he, Mr. Frierson, agreed. Respondent claims, however, that he had no idea of how the properties were used when Mr. Gomez and Mr. Sanchez had control of them. He overlooks the fact that he collected the rents weekly during that period.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is recommended that the Department of Health enter a final order in this matter imposing administrative fines of $500.00 on Gary L. and Alice H. Frierson for the proven violation at 1375 Southwest Rosebud Lane, and an additional $500 fine on Alice H. Frierson for the proven violation at 1408 Southwest Rosebud Lane, both in Arcadia, Florida. DONE AND ENTERED this 30th day of September, 1999, in Tallahassee, Leon County, Florida. ARNOLD H. POLLOCK 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) 921-6947 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 30th day of September, 1999. COPIES FURNISHED: Susan Mastin Scott, Esquire Department of Health Post Office Box 9309 Ft. Myers, Florida 33902-0309 James M. Beesting, Esquire 207 East Magnolia Street Suite B Arcadia, Florida 34266 Angela T. Hall, Agency Clerk Department of Health 2020 Capital Circle, Southeast Bin A02 Tallahassee, Florida 32399-1701 Pete Peterson, General counsel Department of Health 2020 Capital Circle, Southeast Bin A02 Tallahassee, Florida 32399-1701
The Issue Did Respondents discriminate against Mr. Sama because of his handicap? Did Respondents discriminate against Ms. Duran on account of her national origin?
Findings Of Fact Based on the testimony and other evidence presented at the final hearing and on the entire record of this proceeding, the following findings of fact are made: Mr. Sama is blind and has other physical limitations that require him to have the 24-hour assistance of an aide. Ms. Duran is the live-in aide who provides the assistance Mr. Sama needs. Although Mr. Sama refers to Ms. Duran as his daughter, she is not his daughter. Ms. Duran is of Columbian descent, and a United States Citizen. The Miami-Dade County Public Housing Agency (Housing Agency) is an agency of the county. Royal American manages housing for the Housing Authority, including Singer Plaza. Miami-Dade and Royal American agree that Mr. Sama has a handicap and requires the 24-hour assistance of Ms. Duran. Mr. Sama applied to the Housing Agency for housing. He sought to have Ms. Duran housed with him as a reasonable accommodation for his blindness and other handicaps. The Housing Authority began processing his request for accommodation and his housing request. October 1, 2009, the Housing Authority notified Mr. Sama that he was approved for a one-bedroom unit at Singer Plaza. Mr. Sama accepted the offer on October 5, 2009. He moved in on December 3, 2009, and Ms. Duran moved in with him. Guidelines governing the Housing Authority provide that two people cannot live in a one-bedroom unit without specifically agreeing to a one-bedroom unit. The reason for the policy is not in the record. Ms. Capote of the Miami-Dade Housing Authority explained this requirement to Mr. Sama and Ms. Duran. Ms. Capote asked Mr. Sama to sign a document agreeing to accept a one-bedroom unit until a two-bedroom unit became available. Mr. Sama and Ms. Duran became upset because they thought that accepting the one-bedroom unit meant abandoning their request for a two-bedroom unit. It did not. Ms. Capote was not asking Mr. Sama to give up his place on the waiting list for a two-bedroom unit. The Housing Authority approved Mr. Sama for the one-bedroom unit to share with Ms. Duran and put him on the waiting list for a two-bedroom unit. The Housing Authority conducted its standard background check of Ms. Duran as a proposed resident of Singer Plaza. It performs the same background check for all residents. She was reviewed the same way that all residents are reviewed. The process includes verifying the resident's identity. Ms. Duran submitted identification that included her Certificate of Naturalization, her Social Security card, and a Florida driver's license. Ms. Duran's Florida license number bore the name Leandra Duran Palma. Her Social Security card bore the name Leandra Duran. Her Certificate of Naturalization bore the name Leandra Duran. Because of the name differences, the Housing Authority requested additional identification. This is the Housing Authority's routine practice and was a reasonable request. Ms. Duran provided her Columbian Identification Card and Passport. They bear the name Leandra Margarita De Las Nieves Duran Palma. After reviewing all the documents and discussing the name differences on the documents with Ms. Duran, the Housing Authority accepted Ms. Duran as a resident serving Mr. Sama as a live-in aide. Mr. Sama and Ms. Duran began living in a one-bedroom unit at Singer Plaza while awaiting a two-bedroom unit. They wanted to remain in Singer Plaza and told Miami-Dade and Royal American so. Miami-Dade and Royal American agree that a two-bedroom living unit is a reasonable accommodation. On November 2, 2009, the Housing Authority advised Mr. Sama that his request for a two-bedroom unit with a live-in aide as a reasonable accommodation was approved. No two-bedroom units were available in Singer Plaza at the time. The property had a limited number of two-bedroom units. The Housing Authority and Royal American put Mr. Sama on the waiting list for a two-bedroom unit. Ms. Cantu of Royal American worked to make a two- bedroom unit available for Mr. Sama. She identified a two- bedroom unit occupied by one person. She then worked to locate a one-bedroom unit to move that person into. This took some time. In March, 2010, Ms. Cantu succeeded in relocating the resident of the two-bedroom unit to make it available to Mr. Sama. Cleaning and repairing the unit to prepare it for Mr. Sama and Ms. Duran took several weeks. Since May 26, 2010, Miami-Dade and Royal American have provided Mr. Sama and Ms. Duran a two-bedroom apartment, as they requested, as an accommodation for Mr. Sama. Ms. Duran does not lease the apartment, but is authorized to live in it in her role as Mr. Sama's aide. Mr. Sama and Ms. Duran were not living in the apartment as of the day of the hearing. They view it as dangerous because of other residents. They also think it is in unacceptably poor condition.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Florida Commission on Human Relations deny the Petitions of Julio Sama and Leandra Duran. DONE AND ENTERED this 18th day of October, 2010, in Tallahassee, Leon County, Florida. S JOHN D. C. NEWTON, II Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 18th day of October, 2010. COPIES FURNISHED: Denise Crawford, Agency Clerk Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301 Larry Kranert, General Counsel Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301 Terrence A. Smith, Esquire Miami-Dade County Attorney's Office 111 Northwest First Street, Suite 2810 Miami, Florida 33128 Julio Sama 1310 Northwest 16th Street, No. 319 Miami, Florida 33125 Leandra Duran c/o Julio Sama 1310 Northwest 16th Street, No. 201 Miami, Florida 33125 Jamie B. Dokovna, Esquire Becker and Poliakoff, P.A. 121 Alhambra Plaza, 10th Floor Coral Gables, Florida 33134 Shannon D. Summerset, Esquire 111 Northwest First Street, Suite 2810 Miami, Florida 33128-1993
The Issue Whether the Planning Commission deviated from essential requirements of law in denying Appellant's application for a special use permit to operate a car rental agency at 2576 Harn Boulevard, Clearwater, Florida.
Findings Of Fact Manual Kastrenakes, d/b/a Pinellas Rent-A-Car, Appellant, purchased the property which is the subject of this appeal in 1989. Prior to this purchase, the property was the site of a Farm Store, which has been vacated. Appellant also owns a filling station in the vicinity of this property which is legally operated and is in compliance with all zoning requirements. The property is zoned CH (highway commercial). Within Highway Commercial Districts, outdoor retail sales, displays and/or storage are permitted as conditional uses. Section 135.129(11), City of Clearwater Land Development Code. Objections to the granting of this conditional use permit come from residents of multifamily residential buildings adjacent to and west of the property in issue. Many of those residents are retired and/or infirm and contend they will be disturbed by the operation of a rental car business "in their back yard." To counter some of these objections, Appellant agreed to conditions being imposed on this permit limiting hours of operation, lighting, paving, buffer zones, and parking. Protestants also contend that operating the business would depreciate the value of their property, but no credible evidence was presented to support this position. Appellant has further agreed that disabled or wrecked vehicles will not be stored on this property, and only fully operable rental automobiles will be stored and/or displayed on this property.
The Issue The issues in this permit enforcement proceeding are whether Respondent violated the conditions of a general use permit, authorizing use of a designated portion of the Department of Transportation's right-of-way property, and, if so, what remedy is appropriate and authorized?
Findings Of Fact Ronald Puleo owns property that fronts on U.S. Highway 41, South Tamiami Trail, in Sarasota, Florida. He purchased the property in 1989 and has used the property to operate a business called Sarasota Auto Rentals. A commercial building on Mr. Puleo's property faces east, toward Tamiami Trail. The building houses not only Mr. Puleo's auto rental business, but also several other commercial tenants who operate businesses that serve the public. According to signs in front of the building, these tenants have included a window-tinting business and Scoot, Inc., apparently involving the sale and/or rental of motor scooters. Pictures in evidence of Mr. Puleo's property and the vicinity, taken during the relevant time of this controversy,3/ portray a fairly busy, established commercial area, as witnesses confirmed. The property to the south of Mr. Puleo's property is occupied by Enterprise, another rental car business. Further south, there is a solid line of establishment after establishment, a mixture of buildings, signs, and parking areas as far as the eye can see. To the north of Mr. Puleo's property, there is a large car dealership with visible logos for Volkswagen and Audi. Tamiami Trail is a major north-south roadway through Sarasota. In front of Mr. Puleo's property, the road is six-laned, with three lanes in each direction separated by a median. Outside of the solid white lines marking the road's outer edge, the area adjacent to the roadway is finished with concrete gutters with intermittent drainage grills, raised curbs, and then a sidewalk flanked on either side by grass. At the interspersed access connections that allow ingress and egress to and from the various business properties, the curb and sidewalk flatten to street level, and there is pavement instead of grass. Standing on the grassy strip on the interior side (i.e., the side farther from the street), there is a row of intermittent tall poles with street lights. After the interior grassy strip (moving away from the street), there appears to be mostly asphalt paving in front of the businesses. On Mr. Puleo's property, in particular, there is one access connection near the north end of the property. To the north of the access connection, a single street light pole stands on the interior grassy patch to the west of the sidewalk. On the south side of the access connection, there is a small grassy strip to the right of the sidewalk. The rest of the space in front of Mr. Puleo's property is paved with asphalt. Directly in front of Mr. Puleo's building, the asphalt is painted with white stripes, designating parking spots perpendicular to the building. The parking spots have concrete parking bumpers at the front edges, which are very close to the front of the building itself; perhaps there is enough room for a person to walk in front of a parked vehicle to go into the building, but no more than that. In addition to the designated parking spots, other parts of the asphalt pavement in front of Mr. Puleo's building are used, and historically have been used, for parking vehicles. Running east to west along the north property line, from the edge of the interior grassy patch, Mr. Puleo uses the pavement to park a row of rental cars. These cars are backed in either due south- to-north, or diagonally southeast-to-northwest, so that the car fronts face south (towards the asphalt in front of Mr. Puleo's property) or southeast (angled towards Tamiami Trail). These parked cars along the north property edge often have small "Rent Me" signs in the front windows. In addition, historically, Mr. Puleo, his customers, his tenants, his tenants' customers, and sometimes customers or visitors of nearby businesses have parked vehicles along the east edge of the asphalt pavement in front of Mr. Puleo's building and along the south edge of the paved area in front of the building. Historically, Mr. Puleo and others also have parked vehicles on an area to the south of Mr. Puleo's southern property line, in front of what is now the Enterprise rental car business, where there used to be asphalt pavement to the west of the sidewalk and interior grassy strip. Lance Grace has been the operations engineer for the Department's Sarasota Operations Center since 2003. Mr. Grace first became familiar with Mr. Puleo's property and the property to the south in 2004, when Mr. Puleo's neighbor to the south was an exotic car dealer. According to Mr. Grace, there was competition between the two neighboring businesses to park on the asphalt-paved area that was to the south of Mr. Puleo's property line, and Mr. Grace was asked to get involved. Mr. Grace did not identify by whom he was asked to get involved, but the impression given was that it may have been the exotic car dealer. Mr. Grace testified that the exotic car dealer did not like Mr. Puleo parking on the asphalt to the south of his property line, because it blocked the view to the exotic car dealer's property. At that time, the Department asserted the right to all of the Tamiami Trail frontage as its right-of-way westward from the roadway, past the sidewalk and grassy strips, all the way to a line that runs north-south, very close to Mr. Puleo's building--so close that the line actually bisects the designated parking spaces in front of Mr. Puleo's building so that half of the parking spaces are within the right-of-way. This right-of- way line is 40 feet to the west of the interior grassy strip. Therefore, the asphalt-paved area in front of the exotic car dealer's business was included in the Department's right-of-way. Mr. Grace said that when he was asked to get involved in 2004, he tried to let the property owners work it out among themselves, although he did tell them that "all this parking within the right-of-way is illegal" and that if they continued to have issues, then he would have to get involved to "deal with it from a statutory point of view." At the hearing, Mr. Grace explained: "There is a Section 337 [in the Florida Statutes] that deals with unauthorized use within the right-of-way, and it is specifically written to prevent the parking and display of items within the right-of-way for safety and efficient use of the roadway." Mr. Grace testified that it was, and is, the Department's position based on the statute to which he alluded that parking is not allowed on its right-of-way. Nonetheless, the parking continued on the paved area to the south of Mr. Puleo's property in front of the neighboring business. Mr. Grace testified that at some point, when there continued to be issues with parking there, the decision was made to have the asphalt removed and replaced with grass to discourage parking in that portion of the right-of-way. Mr. Grace's recollection was that a portion of that asphalt "may have" been removed by the Department, but that at least part of the asphalt on the right-of-way was removed by Mr. Puleo's neighbor, who did not like the parked vehicles blocking the view of his business. The pictures in evidence show the rectangular area south of Mr. Puleo's property where grass was placed to discourage parking in response to the dispute between Mr. Puleo and his neighbor to the south. However, in front of Mr. Puleo's property and elsewhere on both sides of Tamiami Trail, areas claimed as Department right-of-way remain paved between the interior grassy strips and the fronts of buildings. Mr. Puleo credibly testified that historically, as long as he has owned the property, persons working at or visiting other establishments in the vicinity on both sides of Tamiami Trail have used the right-of-way similarly by parking vehicles on the area between the interior grassy strips next to the sidewalks and their buildings. Mr. Puleo's testimony was further corroborated by the pictures in evidence. For example, the Department offered in evidence an aerial picture with the legend "Sarasota County Property Look- Up," on which tan lines are superimposed to demonstrate the Department's right-of-way boundary. This aerial picture (Petitioner's Exhibit 2) shows the lineup of cars parked along the northern boundary of Mr. Puleo's property described above. The same aerial view also shows that other businesses in the vicinity use Department right-of-way property for parking. The property in the bottom left corner of the picture, on the other side of Tamiami Trail and a little to the south of Mr. Puleo's property, illustrates this usage. Just inside of the sidewalk and interior grassy strip, two cars are diagonally parked on a paved area facing Tamiami Trail. According to the tan right-of- way line, these two cars and the asphalt paving on which they are parked are wholly on right-of-way property. On the same parcel, the right-of-way line bisects a number of vehicles parked on paved areas that appear to be designated parking spaces, much like the right-of-way line in front of Mr. Puleo's building bisects his parking spaces. The aerial photo also shows that on the property two parcels to the south of Mr. Puleo's property, several vehicles are parked perpendicular to the roadway with the front bumpers very near the sidewalk; one of the cars is so close that the edge of its front bumper might even protrude a bit over the edge of the sidewalk. These cars are wholly within the right-of-way. Other pictures in evidence present similar images, such as the color photos that are part of the 2009 permit, which were taken by Mr. Rosenstein. Mr. Grace acknowledged that Mr. Puleo's historic use of the right-of-way was not unique to his property, but rather, was fairly common in the general area, as shown in the pictures. According to Mr. Grace, "the first real major effort" to try to prevent parking within the right-of-way in this vicinity occurred in 2005. This "major effort" involved him sending "several letters" to Mr. Puleo and several other businesses in the vicinity advising that "selling of items and parking in the right-of-way" was illegal. Mr. Grace noted that Mr. Puleo has not ever stopped parking vehicles in the right-of-way in front of his property, despite the 2005 letter described by Mr. Grace. The pictures in evidence (bearing dates in and after 2009) show that others in the vicinity similarly continued parking vehicles in the right-of-way after 2005. Mr. Grace was asked what enforcement authority he has with regard to the problem he has perceived of parking and advertising items for sale in the right-of-way. He candidly admitted that he does not have law enforcement authority; he said that he can only inform property owners that there is a statute that applies to this situation and it is illegal. Mr. Grace testified that, if necessary, he can request assistance from law enforcement and that when he sent letters to property owners in 2005, he sent copies to the Florida Highway Patrol. Throughout Mr. Grace's involvement in right-of-way matters with Mr. Puleo, dating back to 2004, no citations have been issued by the Florida Highway Patrol or any other law enforcement authority for what Mr. Grace testified was Mr. Puleo's illegal use of the right-of-way. When asked whether he has asked for enforcement assistance in Mr. Puleo's case, Mr. Grace said that he did so once. As Mr. Grace described the occasion, the Department was poised with a crew in place to remove asphalt from the right-of- way in front of Mr. Puleo's business. Apparently, Mr. Grace sought approval from the Florida Highway Patrol to authorize the crew to proceed. From what Mr. Grace recalls, Mr. Puleo may have gotten an attorney involved, because the Florida Highway Patrol "backed down at that point," telling Mr. Grace that they were "not sure about this whole right-of-way issue." Mr. Grace did not say when this incident occurred, except to note that it was before "the lawsuit." In 2007, the Department filed a complaint in circuit court for ejectment against Mr. Puleo and his business, seeking to eject them from the Department's right-of-way. Michael Hope is the Department attorney who prepared the ejectment complaint. Both Mr. Hope and Mr. Grace acknowledged that the purpose of this lawsuit was to stop Mr. Puleo from parking and advertising on Department right-of-way. Mr. Puleo and his business counterclaimed. A twist in the controversy arose when title work revealed that the 90 feet of Tamiami Trail frontage in front of Mr. Puleo's property, from the roadway to a line bisecting the parking spaces in front of Mr. Puleo's building, did not all belong to the Department as right-of-way, as believed. Instead, more than half of the frontage--50 feet--actually was owned entirely by Mr. Puleo in fee simple. This twist changed the dynamics of the dispute between the parties. The Department was put into the position of having to secure permission from Mr. Puleo to use his property for drainage and underground utilities traversing 50 feet of Mr. Puleo's property. And in an ironic twist, it was suddenly the Department having to make amends for its prior unauthorized use of Mr. Puleo's property. Meanwhile, although Mr. Puleo's bargaining position certainly had changed, his objective remained unchanged; he wanted to continue his admitted historic use of the paved portion of the other 40 feet of Tamiami Trail frontage, which was Department right-of-way up to the line bisecting the parking spaces in front of Mr. Puleo's building. In addition, Mr. Puleo wanted an asphalt strip restored on the right-of-way south of Mr. Puleo's property line, where it had been removed and planted with grass to discourage his historic use of that right-of-way. Protracted negotiations ensued, and the parties ultimately reached a settlement agreement in July 2009. The settlement agreement is set forth in a pleading that bears the caption of the circuit court case, entitled "Stipulation for Dismissal of All Claims and Counterclaims," signed by both parties on July 10, 2009. Although the settlement agreement in evidence does not indicate approval by the circuit court, the parties acknowledge that it was, in fact, approved by the court. As suggested by the title, the settlement agreement resulted in the dismissal of all claims and counterclaims (subject to the right reserved in paragraph 12 of the settlement agreement to reopen the case for the purpose of enforcing the agreement). Both parties agree that two paragraphs of the settlement agreement provide background germane to this administrative enforcement action, as follows: [The Florida Department of Transportation, FDOT] acknowledges that the 40 foot portion of Parcel 106 that is proximate to the PULEO frontage is PULEO's historic driveway, for driveway usage for the PULEO property and that such driveway shall not be changed, except as provided herein, or in accordance with FDOT Access Management standards and procedures, with PULEO retaining rights to procedural redress under Chapter 120 of the Florida Statutes. FDOT has issued a permit (permit #2009- K-194-36), Exhibit C, and thus agrees that PULEO may construct a 15 foot deep asphalt "turn out" for driveway usage for PULEO's property; such driveway "turn out" shall not be changed except in accordance with FDOT Access Management standards and procedures, with PULEO retaining rights to procedural redress under Chapter 120 of the Florida Statutes. Paragraph 7 of the settlement agreement addresses Mr. Puleo's use of the Department's right-of-way on the 40-foot portion of the Tamiami Trail frontage that is not owned outright by Mr. Puleo. As confirmed by both parties' witnesses, this right-of-way area is shown on Respondent's Exhibit 1 as the square outlined in pink. On Petitioner's Exhibit 2 (the aerial picture), it is the square area immediately north of the green-yellow- highlighted rectangle designated right-of-way parcel 196, east of the tan line bisecting five parking spots in front of Mr. Puleo's building and south of the tan line protrusion that extends eastward to the roadway, then north to Mr. Puleo's northern property boundary. The tan line protrusion marks the 50-foot frontage owned by Mr. Puleo; this area is shown on Respondent's Exhibit 2 as the larger blue rectangle next to the pink square. Paragraph 8 of the settlement agreement addresses Mr. Puleo's use of the right-of-way to the south of Mr. Puleo's property, which previously had been paved and used by Mr. Puleo. The Department issued the 2009 permit identified in paragraph 8 on July 9, 2009, the day before the settlement agreement was executed. The 2009 permit is part of the settlement agreement, as Exhibit C thereto.4/ Issuance of the 2009 permit allowed Mr. Puleo to repave (at Department expense) and use a designated portion of the right-of-way to the south of Mr. Puleo's property. Department attorney Michael Hope reviewed and signed the settlement agreement, with the 2009 permit attached. Before the settlement agreement was signed, Mr. Hope gave the instructions to Mr. Rosenstein to prepare the permit. Mr. Rosenstein has primary responsibility within the Sarasota Operations Center for issuing permits, although occasionally Mr. Grace, to whom Mr. Rosenstein reports, gets involved in issuing permits. When the matter of preparing a permit for Mr. Puleo arose, Mr. Grace was on vacation. The issuance of the 2009 permit to Mr. Puleo was unusual for several reasons. First, it was issued as part of a settlement agreement, instead of by the normal procedure of an application being filed by someone requesting a permit. Second, Mr. Rosenstein was asked by Mr. Hope to prepare and issue the permit and deliver it to Mr. Puleo, all in a single day, which is highly unusual. Mr. Rosenstein had to drop everything and immediately go to Mr. Puleo's property to take pictures from several angles of the adjacent right-of-way to the south. He marked the pictures to describe and outline the area of right-of- way that Mr. Puleo would be allowed to pave and use. Mr. Rosenstein then had to fill out the permit, cross-referencing the marked pictures. He had to add the appropriate form pages containing the Department's standards for the paving activity adjacent to Tamiami Trail, addressing such matters as requirements for signs alerting traffic to the work and procedures for lane closures, if necessary. Mr. Rosenstein then had the completed permit reviewed and approved by the permits coordinator who signed the permit along with Mr. Rosenstein. He then delivered the completed permit to Mr. Puleo.5/ Mr. Rosenstein testified that the 2009 permit is a "general use permit." According to Mr. Rosenstein, a general use permit is considered a residual category to allow an activity on right-of-way that does not fall within any other permit category. He identified the other permit categories as drainage permits, utility permits, landscape permits, and access connection permits to make a connection to access a state road. The 2009 permit is not an access connection permit, as the asphalt pad authorized by the 2009 permit stops at the inside end of the interior grassy strip and does not extend to the roadway; a vehicle cannot drive directly from the asphalt pad onto Tamiami Trail. The 2009 permit, as completed by Mr. Rosenstein, states that the permittee, Mr. Puleo, requests permission from the Department "to construct, operate and maintain: INSTALL ASPHALT PAD AS SHOW [sic] IN PICTURE." Mr. Rosenstein attached two pages with pictures of the site. The first page has a single picture on which Mr. Rosenstein put the following description: "Extend Parking Area with Asphalt 15 x 40 feet." He marked the outline of the designated rectangle in red. As designated, the area extended the pavement that was in front of Mr. Puleo's property to the south, adding 15 feet of Tamiami Trail frontage to the south. The 40-foot length of the rectangle extended from the edge of the interior grassy strip west of the sidewalk to the end of the Department's right-of-way. This means that the west end of the new asphalt pad would be even with the midpoint of the parking spaces in front of Mr. Puleo's building, where they are bisected by the Department's right-of-way line. Mr. Rosenstein acknowledged that he did not add any special conditions to the permit to specify or restrict the usage of the approved asphalt pad. There was no evidence to suggest that Mr. Rosenstein was given instructions to include special permit conditions to specify or restrict the usage of the asphalt. In the space on the permit form for special conditions, the only condition put on the 2009 permit required Mr. Puleo to "sod all areas of disturbed right-of-way." Mr. Rosenstein gave conflicting testimony regarding his understanding of the 2009 permit that he was instructed to prepare. At first, he testified that he had no information at the time regarding the purpose of the asphalt pad or its intended use. However, he stated later that he understood at the time that the purpose of the asphalt pad was to allow cars to turn around. According to Mr. Hope, he instructed Mr. Rosenstein to prepare a permit "for a turn-out area for driveway purposes over a portion of the right-of-way." Mr. Hope testified that the asphalt pad was intended to be used only as a "turn out," in which cars pulling out of the parking spaces in front of Mr. Puleo's building could back into the newly paved area and then drive forward to exit onto Tamiami Trail at the access connection. Mr. Hope said that the "turn- out" area was needed primarily for cars parking in the two southernmost parking spaces in front of Mr. Puleo's building. Although this turn-out use might explain one of the reasons for the asphalt pad authorized by the 2009 permit, that use alone would not explain authorizing a 40-foot-long asphalt pad that extends parallel to the parking spaces. Cars would not back out of parking spaces and then back up while turning 180 degrees before pulling forward to exit Mr. Puleo's business. Mr. Rosenstein did not recount the instructions he received from Mr. Hope for preparing the permit. Neither Mr. Rosenstein nor Mr. Hope explained why the authorized asphalt pad extend for 40 feet, all the way from the interior grassy strip to the west end of the Department's right-of-way. Mr. Rosenstein did not explain how he knew to mark the pictures to designate the site for the asphalt pad or where the dimensions came from. Mr. Rosenstein claimed that he was focused on giving instructions to the contractor that would be installing the asphalt pad, not on the use of the new paved area after construction. Nonetheless, he admitted that general use permits are intended to address not only construction, but also the subsequent operation or use of what is constructed. Mr. Rosenstein conceded that since the 2009 permit did not address the ultimate usage, then the ultimate usage would be determined by the permittee. Actually, the 2009 permit does address the usage of the new paved area by the description "extend parking area." The 2009 permit, thus, identifies the paved right-of-way on Mr. Puleo's property as a "parking area" and authorizes asphalt paving to "extend" that "parking area" to add another 15 feet of Tamiami Trail frontage for the entire length of the right-of-way. Based on the credible evidence of record, the reasonable meaning of the description "extend parking area," placed by Mr. Rosenstein on the picture that became part of the 2009 permit, is to indicate that the paved area in front of Mr. Puleo's building was, in fact, used as a parking area and that the new asphalt was being authorized as an extension of that area and of that use. Neither Mr. Rosenstein nor any other witness offered a different credible interpretation of the "extend parking area" description in the 2009 permit. Mr. Hope testified that he discussed the subject of parking and the other historic uses with Mr. Puleo in a single face-to-face settlement negotiation meeting with Mr. Puleo and his attorneys. According to Mr. Hope, at that meeting, Mr. Puleo asked Mr. Hope whether he would be allowed to park vehicles or put signs on the new paved area; Mr. Hope said that he told Mr. Puleo no, that the new paved area was a turn-out area to be used for driveway purposes only, by which he meant for moving vehicles from one area to another. Mr. Hope conceded that this single face-to-face settlement meeting occurred many months before the settlement agreement was reached. Mr. Puleo testified that the meeting he attended with Mr. Hope took place nine months before the 2009 permit was prepared and the settlement agreement was finalized. Mr. Puleo testified that he did not ask Mr. Hope at that meeting whether parking would be allowed on the right-of-way and does not recall Mr. Hope addressing that subject, either. However, Mr. Puleo did recall subsequent protracted negotiations in which he understood that the Department did not want to give Mr. Puleo the right to use the new asphalt pad for parking. Mr. Puleo credibly testified that since this was important to him, he refused to agree on those terms. Mr. Puleo testified that the Department ultimately agreed to settle on his terms by issuing the 2009 permit that authorized him to "extend [his] parking area" and by making that permit a part of the settlement agreement. Mr. Hope's recollection of what was said at a settlement conference nine months before the 2009 permit was prepared and incorporated into the settlement agreement is inconsistent with the description expressed in the 2009 permit. Even if a conversation took place that was anything like his recollection, the credible evidence established that the Department's preliminary position changed between then and the issuance of the 2009 permit. Mr. Hope testified that he reviewed the final settlement agreement document, including the exhibits, before he signed it. He acknowledged reviewing the 2009 permit after it was issued and before he signed the settlement agreement, because the 2009 permit was an exhibit to the settlement agreement. Given that the sole purpose of the ejectment lawsuit he prepared was to stop Mr. Puleo from parking and advertising on Department right-of-way, it is not credible that Mr. Hope would not have insisted on express prohibitions in the 2009 permit against parking and advertising, had he believed that those prohibitions would have been permissible as part of the settlement agreement, of which the 2009 permit was a critical part. It is not credible that Mr. Hope would have agreed to the 2009 permit authorizing Mr. Puleo to "extend parking area" as part of the settlement agreement, unless, as Mr. Puleo testified, that is what was bargained for and what Mr. Puleo required to enter into the settlement agreement. Mr. Puleo's testimony in this regard is accepted as more credible than Mr. Hope's testimony. When Mr. Grace came back from vacation, he was made aware of the permit and the settlement agreement. He testified that "despite the original purpose of the lawsuit, there was parking and advertising continuing to occur within the right-of- way." He conducted surveillance and had pictures taken of the property after the asphalt pad was installed. Pictures were taken of Mr. Puleo's property and the extended parking area on July 27 and 30, 2009, to document that the new asphalt pad was being used for parking. Mr. Grace testified that he called Mr. Puleo to report that he observed parking on the new asphalt. Mr. Puleo told Mr. Grace that he was allowed to park on the new asphalt because his permit authorized him to "extend parking area." Mr. Grace claimed that he had not looked at the permit until then. At that point, Mr. Grace "started discussing the matter with Mike Hope," and they decided that it was time to revoke the 2009 permit and issue a new permit "that would clarify and still support the original intent of the settlement agreement, but clarify the intent." Inexplicably, the Department took no action until May 13, 2010, when Mr. Grace sent a letter by certified mail to Mr. Puleo. The entire text of the letter was as follows: Re: Permit Number 2009-K-194-36 Dear Mr. Puleo: As part of the stipulation agreed to between the [Department] and you the above referenced permit was issued on July 9, 2009. The permit was issued to comply with stipulation number 8 which states "PULEO may construct a 15 foot deep asphalt "turn out" for driveway usage for PULEO's property." The stipulation clearly states that the asphalt turn out is for driveway usage. However, it has been observed on numerous occasions that the asphalt area is routinely being used as a parking area which does not comply with the intent of the agreement. When this issue was previously brought to your attention you referenced a picture which was included with the permit depicting the area for asphalt placement. The picture included verbiage that included "Extend Parking Area". This reference was made in error by a staff member who was not completely familiar with the terms of the stipulation. This permit will be voided and replaced with a new permit to comply with the terms of the stipulation which included the use of the right of way as a driveway and not for parking. The permit referenced above will be voided effective May 21, 2010. A replacement permit will be issued concurrently with the voiding of this permit. Please contact me if you have any questions. Thank you for your cooperation in these matters. (emphasis added). Mr. Grace's statement--that the 2009 permit's authorization to "extend parking area" was made in error by the Department representative--is an admission that the 2009 permit does indeed authorize Mr. Puleo to park on the new asphalt. However, contrary to Mr. Grace's characterization, the 2009 permit cannot be said to have been issued in "error" or not in compliance with the terms of the settlement agreement, because the 2009 permit itself was made part of the settlement agreement. Mr. Grace's description implies that the settlement agreement came first, followed by the 2009 permit, which did not match up to the requirements of the settlement agreement; in fact, the reverse is true--the 2009 permit was issued first and the 2009 permit, as prepared and issued (including the "extend parking area" description), was incorporated into the settlement agreement as an exhibit and an express component of paragraph 8. The only explanation given for revoking the 2009 permit was its purported inconsistency with the settlement agreement. For example, there were no allegations of substantial changes in the use of the right-of-way that would trigger new and different safety concerns. Instead, Mr. Grace's May 13, 2010, letter acknowledged that Mr. Puleo had only continued his historic use of the right-of-way in front of his property, extending that use to the new asphalt extension of his parking area. The May 13, 2010, letter did not inform Mr. Puleo that he had a right to an administrative hearing to contest the Department's intended action to revoke his 2009 permit. Instead of offering Mr. Puleo a window of time in which to request an administrative hearing, only eight days after the May 13, 2010, letter was mailed to Mr. Puleo, Mr. Grace sent a second certified letter to Mr. Puleo. The entire text of this May 21, 2010, letter was as follows: Re: Permit Number 2010-K-194-30 Dear Mr. Puleo: As stated in my May 13, 2010, letter to you permit number 2009-K-194-36 is void and no longer valid. A replacement permit number 2010-K-194-30 is enclosed for your use and meets the terms of the stipulation referenced in my previous letter. Please contact me if you have any questions. Thank you for your cooperation in these matters. The 2010 permit is a general use permit, just as the 2009 permit was. Despite the fact that the asphalt pad that was authorized by the 2009 permit to "extend parking area" had already been installed, the 2010 permit authorized Mr. Puleo to "Install Asphalt Pad as shown in attached photo's [sic]." The 2010 permit in evidence is incomplete, in that no photos are attached. Presumably, the missing photos are different from those included with the 2009 permit. Whereas the 2009 permit had a single "special condition" requiring the replacement of all sod disturbed during the installation of the asphalt pad, the 2010 permit added the following as new special conditions: The asphalt placed in the Department's right-of-way is for the limited use of vehicles as a driveway only. This is limited to maneuvering of a vehicle for ingress and egress only. No other permissions are granted herein. The Department's right-of-way shall not be used for parking, storage of equipment, placement of signs, or any other use not expressly stated within the terms of this permit. Mr. Grace testified that he drafted the special conditions in the 2010 permit. He explained why he believed it was necessary to draft these conditions: In the case of Mr. Puleo, it's been a situation that I have been trying to resolve since 2004, and I felt like it was necessary to clearly state that the permit, while it allows the use of the right-of-way for placement of the asphalt, and it's allowed, per the stipulation, for ingress and egress, I said that, in order for this to be clear to Mr. Puleo, I had to state that parking and display of items for sale were not permitted. Mr. Grace's testimony--that it was necessary to specifically prohibit parking and advertising as conditions in the permit itself because of the history with Mr. Puleo--is an admission that the 2009 permit cannot be interpreted to prohibit those historic uses, because it lacks the necessary express conditions. Mr. Grace has driven by Mr. Puleo's property 100 times between 2004 and the day of the hearing, observing the same kind of parking and advertising activity that Mr. Grace has been trying to stop since 2004. The pictures in Petitioner's Composite Exhibit 10 were described as representative of the alleged violations. As these pictures demonstrate, the advertising activity referred to is the placement of small "Rent Me" signs in the windows of vehicles parked on the pavement in front of Mr. Puleo's property on the right-of-way. Therefore, as Mr. Grace clarified, the advertising on the right-of-way is not a separate activity from the parking on the right-of-way; he considers the parking and advertising to be a single violation. Mr. Grace acknowledged that the special conditions in the 2010 permit, which he found necessary to make clear that Mr. Puleo had to stop the parking and advertising that he has been doing on the right-of-way since 2004, could have been put in the 2009 permit. As found above, the credible evidence establishes that the Department would have expressly prohibited parking and advertising on the new asphalt pad authorized by the 2009 permit, if the Department had been in a bargaining position to insist on those terms, but the Department was not. The Department presented no credible evidence that Mr. Puleo's parking and advertising in the right-of-way ever has endangered the health, safety, and general welfare of the public by causing distractions to motorists, unsafe pedestrian movement, dangerous traffic movement, increased vehicular accidents, motorist injuries, or fatalities. There was no evidence of any safety-related problems of any kind actually caused by Mr. Puleo's historic use of the right-of-way in front of his property or to the south of his property line where the asphalt was installed to extend his parking area. No evidence was offered to prove that allowing Mr. Puleo to use the new asphalt pad for the same parking and advertising activity he has conducted historically would interfere with safety, operation, aesthetics, or maintenance of the State Highway System, utilities, or right-of-way. Instead, the evidence established that Mr. Puleo's historic parking and advertising on the right-of-way have not given rise to any traffic-related or pedestrian-related problems. Mr. Puleo's use of the right-of-way is no more intrusive or distracting than the similar uses of right-of-way evident from the pictures in evidence. Moreover, Mr. Puleo's historic use of the right-of-way is no more intrusive or distracting than Mr. Puleo's lineup of rental cars with "Rent Me" signs in the windows along his northern property line, which Mr. Puleo has every right to do, because he owns that property in fee simple. While in a different case, the Department certainly could have legitimate safety concerns with certain parking on its right-of-way, such as if vehicles parked on the grassy strips on either side of the sidewalk, or straddled the sidewalk itself, or if parked vehicles blocked access connections or interfered with motorist visibility. However, not all right-of-way areas present the same safety concerns. Parking on the right-of-way might, but would not necessarily, impede pedestrian traffic on sidewalks or interfere with ingress and egress or motorist visibility at access connections, depending on where the right-of-way is and how far it extends in from the roadway. These sorts of safety concerns are matters to be proven, and there was no such proof offered by the Department in this case.6/ The Department sought to justify the issuance of the 2010 permit, with its new special conditions, on the grounds that the 2010 permit is more consistent with the terms of the settlement agreement. The Department points to the terms "turn out" and "driveway usage" in paragraph 8, which the Department argues should give rise to a permit restricting usage of the new asphalt to moving traffic only. Mr. Puleo contends that "driveway usage" in both paragraphs 7 and 8 refer to the ordinary meaning of that term, which includes parking. As the parties acknowledged at the outset of the hearing and as the undersigned reiterated throughout the hearing, the nature of this proceeding is a permit enforcement proceeding. Interpretation and enforcement of the settlement agreement are matters for the circuit court. Moreover, as noted above, the settlement agreement incorporates the 2009 permit as one of the settlement agreement's terms, not the other way around. Therefore, while one might want to consider what the 2009 permit says, if one were interpreting the settlement agreement (because the 2009 permit is part of the settlement agreement), the reverse is not true. The 2009 permit stands on its own terms, because it was issued before the settlement agreement was executed. The 2009 permit uses the description "extend parking area" and neither incorporates the settlement agreement by reference, nor uses the terms "turn out" or "driveway usage" that appear in the settlement agreement. Even if the 2009 permit provided that the newly installed asphalt was for "driveway usage" as paragraph 8 of the settlement agreement does, absent a specific definition of that phrase, one would resort to the common, ordinary meaning from dictionaries. The word "driveway" alone is commonly defined as "a private way or road for cars, leading from a street or road to a garage, house, or other building." See, e.g., Webster's New World Collegiate Dictionary (2010); American Heritage Dictionary of the English Language, 4th Ed. (2010) (both available online at yourdictionary.com). The same online source provides examples of usage of the word "driveway" in sentences and phrases, as follows: Driveway parking. A paved driveway in the property provides ample parking. The property is approached via a block-paved driveway with parking for approximately four vehicles. These examples illustrate that driveway usage includes parking, based on the common, ordinary meaning of the term. The Department offered a specialized meaning of "turn out" and "driveway" from its design standards for access connections that are permitted on right-of-way property. Those standards provide that access connections are to be designed with driveways of sufficient length to allow all vehicular parking and maneuvering to take place beyond the right-of-way, so that driveways and turn outs within the right-of-way are used only for "moving vehicles entering or leaving the highway." That specialized definition makes sense in the context of designing access connections that are permitted uses of a right-of-way. If vehicles are parked or are maneuvering to turn around within the right-of-way that is being used as an access connection, that use would interfere with the movement of vehicles entering or leaving the highway, as the design standard itself makes clear. Here, however, the asphalt extension of Mr. Puleo's parking area does not connect to the roadway and is not proximate to the access connection point on Mr. Puleo's property. Thus, the design standard's specialized usage of the terms driveway and turn out to restrict use of the right-of-way to "moving vehicles entering or leaving the highway" has no application to the facts here. The Department's witnesses established that neither the 2009 permit, nor the 2010 permit at issue in this case, is an access connection permit. Perhaps the clearest indicator that the 2009 permit means what it says and was intended that way is by reference to Mr. Puleo's historic use of the right-of-way in front of his building. The settlement agreement addresses this right-of-way in paragraph 7, stating that the Department acknowledges that Mr. Puleo has used this right-of-way as "his historic driveway." The Department also acknowledges that there are parking spaces on the right-of-way that is Mr. Puleo's historic driveway; part of every vehicle parked in a designated space in front of Mr. Puleo's building is on the right-of-way that is described in the settlement agreement as Mr. Puleo's "historic driveway." Vehicles historically have also parked on other parts of the pavement in front of Mr. Puleo's building, besides the designated parking spaces, on Department right-of-way, also known as Mr. Puleo's historic driveway. Another apt name for Mr. Puleo's historic driveway was suggested by Mr. Rosenstein's 2009 permit description--parking area. The evidence establishes that the two phrases are one and the same for purposes of describing Mr. Puleo's historic usage of the right-of-way in front of his building; he has used his historic driveway as a parking area. The corollary is that the 2009 permit authorized Mr. Puleo to extend the parking area and, thereby, extend his historic use of his driveway as a parking area to the extended driveway/parking area. Nonetheless, after the Department unilaterally revoked the 2009 permit and replaced it with the 2010 permit, the Department issued its Complaint. The Complaint alleged that by parking vehicles and advertising on the new asphalt pad, Mr. Puleo violated the new special conditions of the 2010 permit. Sections 335.181 and 337.406, Florida Statutes, were cited as the statutes under which Mr. Puleo's alleged violations were charged. This time, the Complaint acknowledged that the Department's charges were only intended action and that Mr. Puleo could contest the charges before they became final by timely requesting an administrative hearing. At the hearing, the Department offered no explanation for its failure to follow the same procedure when it notified Mr. Puleo by letter on May 13, 2010, that his 2009 permit would be revoked, effective eight days hence. The Complaint is predicated only on Mr. Puleo's alleged violation of the 2010 permit, by his use of the new asphalt pad for parking and advertising. The Complaint does not charge Mr. Puleo with any improper use of the right-of-way in front of his building. The parties stipulated that Mr. Puleo has been parking and advertising on Department right-of-way.7/ Mr. Puleo credibly testified that he would not have agreed to a settlement of the circuit court litigation with the Department without the 2009 permit authorizing him to "extend [his] parking area." Mr. Puleo reasonably relied on the Department's representations expressed in the 2009 permit and in the settlement agreement incorporating the 2009 permit. The Department's representations recognized that Mr. Puleo's "historic driveway" was used as a parking area; the Department's representations authorized Mr. Puleo to extend his parking area and continue his historic usage of the parking area, as extended by the new asphalt pad. In reliance on the Department's representations, Mr. Puleo changed his position to his detriment by agreeing to a settlement agreement that resulted in the dismissal of the circuit court litigation. In entering into the settlement agreement, Mr. Puleo acquiesced to terms that were of great value and importance to the Department, because Mr. Puleo understood from the Department's representations that he was receiving, in return, the terms that were of great importance to him. The 2009 permit was issued as an inducement to secure Mr. Puleo's agreement to execute the settlement agreement.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Transportation enter a final order (1) determining that permit number 2009-K- 194-36 remains in full force and effect; (2) determining that permit number 2010-2010-K-194-30 is void and of no effect; and (3) dismissing the Complaint (as deemed amended), based on the failure to prove violations of the 2009 permit under the statutes charged in the Complaint, and based on the established defense of equitable estoppel. DONE AND ENTERED this 14th day of February, 2013, in Tallahassee, Leon County, Florida. S ELIZABETH W. MCARTHUR 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 14th day of February, 2013.
The Issue Whether Petitioner was subject to discrimination in the rental of a dwelling, or in the terms, conditions, or privileges of rental of a dwelling, based on her gender, in violation of the Florida Fair Housing Act, chapter 760, Part II, Florida Statutes.1/
Findings Of Fact Petitioner, Lyric Black, is an adult female currently residing in Marietta, Georgia. Respondent, Holmes County Housing Authority, administers federal housing-assistance programs, including the HUD Section 8 Housing Choice Voucher Program. Respondent is located at 107 East Montana Avenue, Bonifay, Florida 32425. Respondent maintains a local preference for housing assistance. The local preference is reflected in two policies. First, Respondent’s waiting list policy affords highest priority to local residents. While applicants from other states or counties may apply for a voucher, local applicants enjoy higher priority on the waiting list. Second, Respondent’s portability policy authorizes recipients to port their voucher (i.e., use their voucher in another state or county) only if they have participated in the program for 12 months. Participation means residing in the local jurisdiction on the housing voucher. Petitioner applied, in person, for a housing choice voucher from Respondent on May 28, 2014. On her application, Petitioner represented her residence as an undisclosed local shelter for victims of domestic violence. Petitioner represented that she had lived at the shelter for the past four months and had previously resided in Marietta, Georgia. Petitioner listed the names and ages of four minor children living with her, ranging in age from 5 months to 14 years old. Petitioner also disclosed that she was pregnant. Petitioner received a preferential position on Respondent’s waiting list based on her residence in the area (at the local domestic violence shelter). At some point after filing her application with Respondent, Petitioner “returned” to Georgia. The record does not clearly establish where in Georgia to which she “returned” after making application. Respondent was unaware that Petitioner had “returned” to Georgia after applying for the housing choice voucher in May 2014. Respondent understood Petitioner had continued to reside locally, in the domestic violence shelter or otherwise in the county, between May and October 2014. In October 2014, Respondent notified Petitioner that Petitioner’s name had advanced on the waiting list and would shortly be at the top. Petitioner testified that she moved to Bonifay in October 2014 “seeking to flee domestic violence.” Petitioner’s testimony on this point conflicted with her testimony on cross- examination that she moved to Bonifay in October because she received word that her name was close to the top of the waiting list for a housing voucher. On October 29, 2014, Petitioner submitted most of the documentation required to receive her housing voucher from Respondent. Petitioner needed to submit a few outstanding documents and sign her voucher form. On November 4, 2014, Petitioner notified Respondent that she would be delayed in submitting the last of her paperwork and coming in to sign her voucher because she was having a baby. Catrina Carroll allowed Petitioner until November 12, 2014, to come in to complete her paperwork and sign her voucher. Petitioner gave birth to a baby girl on November 4, 2014, in Georgia. According to Petitioner, she returned to Holmes County with the new baby and her other children “two or three days later.” Petitioner completed her paperwork and signed her voucher at Respondent’s office on November 12, 2014. After issuing a voucher, Respondent requires recipients to identify a local rental unit, request Respondent to inspect and approve the unit, and connect utilities and occupy the unit within 60 days. Petitioner was given the same amount of time to complete the required steps to become a participant in the voucher program. Respondent had no contact from Petitioner between November 12, 2014, and December 30, 2014. On December 30, 2014, Petitioner faxed a letter to Respondent titled “Portability Request.” Petitioner’s letter read as follows: I have experienced a recent severe domestic violence incident and seek to move with continued tenant-based assistance (proof attached). In reference to the initial 12- month residency requirement, I do understand that according to the Violence Against Women and Justice Department and Reauthorization Act 2005 (VAWA 2005) amended section 8(r) of the U.S. Housing Act to provide an exception to the prohibition against a family moving under the Portability provisions in violation of the lease. Furthermore, Denying [sic] the move would violate VAWA, which provides that an applicant may not be denied admission or assistance, terminated from participation in or evicted because the victim is or has been a victim of domestic violence, dating violence, sexual assault or stalking. Denying such a request to port is also inconsistent with HUD’s directive regarding other portability rules. In closing, I respectfully request HCHA to consider this exception to the initial 12- month residency requirement and allow me to port my voucher to: 4273 Wendell Drive Atlanta, Georgia 30336 Office: (404) 588-4950 TTY Line: (404)696-0449 Fax: (404) 472-3431 This letter also include [sic] a portability request to address an emergency situation over which I have no control. Attached with this letter to serve as proof of domestic violence: Police Report; ER medical record of injuries; and TPO. I’ve also included previous police reports of documented domestic abuse. Petitioner attached to the letter the following: an ex parte family violence protective order filed December 8, 2014, by the Superior Court of Clayton County, Georgia, against C.H. (whom Petitioner identified as her ex- boyfriend); a police report documenting an arrest of C.H. for aggravated assault on Petitioner during an incident on December 3, 2014, at 7007 Richmond Court, Apartment C, Jonesboro, Georgia 30236; a single-page printout from Southern Regional Medical Center Emergency Services dated December 4, 2014, documenting an evaluation and treatment of Petitioner for injuries associated with an alleged assault; and, a letter to Petitioner from the Clayton County State Attorney dated December 12, 2014, offering the services of the Victim Family Assistance Program. On December 30, 2014, by letter from Catrina Carroll, Respondent’s Executive Director, Respondent terminated Petitioner’s voucher and denied Petitioner’s request to port her voucher. In the termination letter, Ms. Carroll stated, “[I]t seems that you have relocated back to Jonesboro or Marietta, GA and have therefore invalidated your preference status with our PHA. We are revoking your local status and terminating your Voucher effective immediately.” Ms. Carroll added, “You are not being denied assistance because of VAWA criteria. Special accommodations are not given for VAWA, and our policy only gives preference for local applicants.” Petitioner argues that she and her minor children were forcibly taken from the parking lot of the domestic violence shelter in Panama City and removed to Georgia on November 18, 2014, by her ex-boyfriend. Petitioner maintains that she was held captive in Georgia for three weeks, until December 4, 2014, when she was able to escape and call the police for assistance. Petitioner gave a lengthy statement to police when her ex-boyfriend was arrested on December 4, 2014. The statement police report does not include anything about being forcibly removed from Florida and held against her will in Georgia between November 18 and December 4, 2014. Petitioner produced a document at final hearing purporting to be a copy of her bank statement showing debit and ATM transactions made in Bonifay, Florida, during the months of October and November 2014. Petitioner produced no witness to authenticate the document and the document is not self- authenticating pursuant to section 90.902, Florida Statutes (2015). Apparently, Petitioner believes her personal family violence circumstance is sufficient grounds for an exception to Respondent’s portability policy. On cross-examination, however, Petitioner admitted her effort to obtain portability of her voucher was “a gamble.” Nevertheless, Petitioner expressed dismay that Respondent revoked her voucher.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Florida Commission on Human Relations issue a final order dismissing the Petition for Relief filed in FCHR No. 2015H0187. DONE AND ENTERED this 4th day of September, 2015, in Tallahassee, Leon County, Florida. S SUZANNE VAN WYK 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 4th day of September, 2015.
The Issue Whether Respondents retaliated against Petitioner Rita Lynar, in violation of the Florida Fair Housing Act, chapter 760, part II, Florida Statutes (FHA); and, if so, the appropriate penalty.
Findings Of Fact Respondent Westminster Communities, Inc., owns and operates several retirement communities across Florida. The Westminster property in this matter is Respondent Asbury Arms North, Inc., which is located in Cocoa, Florida. Respondent Joseph Downs is the administrator for Westminster’s Cocoa site, and manages its facilities. Ms. Lynar is a resident of Asbury Arms North, Inc. Ms. Lynar previously filed a housing discrimination complaint on August 17, 2017, against Respondents that claimed that Respondents violated the FHA, and contending that Respondents retaliated against her. After FCHR notified Ms. Lynar that no reasonable cause existed to believe that Respondents committed a discriminatory housing practice on February 9, 2018, she filed a Petition for Relief with FCHR. FCHR transmitted the Petition for Relief to the Division on March 6, 2018. The Division’s case number for this matter is 18-1314. ALJ J. Bruce Culpepper conducted a two-day final evidentiary hearing in DOAH Case No. 18-1314 on September 11, 2018, and January 9, 2019. On July 10, 2019, ALJ Culpepper issued a Recommended Order, which 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 Retirement Communities Foundation, Inc., et al., Case No. 18-1314 (Fla. DOAH July 10, 2019; FCHR Oct. 1, 2019)(Lynar II). As previously noted in the undersigned’s March 18, 2020, Order Denying Respondent’s Motion to Dismiss Based on Res Judicata and Collateral Estoppel and Motion for Sanctions and Attorney Fees, and Extending Time to Respond to Initial Order, the undersigned specifically precluded any attempt by Ms. Lynar to relitigate any matter resolved (or that could have been resolved) in Lynar II in the instant matter. Thus, in the instant matter, the undersigned only considered any alleged acts that occurred after the final hearing in Lynar II commenced, i.e., after September 11, 2018, as possible evidence of FHA retaliation.1 November 7, 2018, Incident and Lease Termination On November 8, 2018—after the commencement of the final hearing in Lynar II, and while that matter remained pending—Ms. Lynar was involved in an incident at Asbury Arms North. Pastor Adkins, who was conducting a regular morning Bible study meeting on November 8, 2018, in the fellowship room, which is a common area in the Asbury Arms North building that has multiple entranceways, noticed Ms. Lynar walk through the fellowship room “at a very fast pace” on multiple occasions that morning. Upon her first pass through the fellowship room, he heard Ms. Lynar screaming in front of Mr. Downs’s office and pounding on his office door. Pastor Adkins did not see Ms. Lynar scream or pound, but heard it. Pastor Adkins next observed Ms. Lynar pass through the fellowship room again, and she went towards her apartment. Then, approximately a minute or two later, she rushed back through the fellowship room, went to the same area in front of Mr. Downs’s office, and began screaming and 1 Additionally, Ms. Lynar, in 2014, filed a charge of discrimination against Respondents, alleging an FHA violation. After receiving a No Cause Determination from FCHR, she filed a Petition with FCHR, alleging gender discrimination. FCHR transmitted that Petition to the Division, which assigned it DOAH Case No. 15-2796 (Lynar I). ALJ Culpepper also conducted a partial hearing in that matter but, on December 15, 2015, the parties filed a Stipulation for Dismissal. Consistent with the undersigned’s March 18, 2020, ruling, the undersigned did not consider any alleged acts that occurred prior to September 11, 2018, in the instant matter. pounding on the same office door. He also heard Ms. Lynar screaming at Ms. Brooks, who was located in close proximity to Mr. Downs’s office. He described Ms. Lynar’s behavior that morning as “unhinged.” Pastor Adkins testified that these incidents disrupted his Bible study meeting for approximately 10 minutes. Ms. Brooks, who is an administrative assistant at Asbury Arms North, works at a desk in that building’s front lobby. Her desk was around the corner from Mr. Downs’s office. She worked at the front desk on the morning of November 7, 2018, and recalled that she heard Ms. Lynar “pounding” on Mr. Downs’s office door; she described it as “[v]ery intentional and very loud.” Ms. Brooks walked around the corner to observe Ms. Lynar, and testified that Ms. Lynar began screaming at her. Ms. Brooks testified that she said nothing to Ms. Lynar, and that Ms. Lynar eventually left. Ms. Brooks then entered Mr. Downs’s office, where there were two other residents and a certified occupational specialist, and explained to Mr. Downs what had transpired outside of his office. Ms. Brooks was inside of Mr. Downs’s office when Ms. Lynar began screaming and pounding on his office door a second time. Ms. Brooks testified that Ms. Lynar’s conduct that morning frightened her. Mr. Downs, the administrator of Westminster’s property in Cocoa, including Asbury Arms North, testified that on the morning of November 7, 2018, he was on a telephone call, but heard a loud pounding on his door, and ended his call. He testified that Ms. Brooks came to his office to explain what had happened, and during this explanation, Ms. Lynar began pounding on the door and screaming again. After answering the door, he stated that Ms. Lynar stormed off. The undersigned observed a video recording of the first of the two “screaming and pounding” incidents that occurred the morning of November 7, 2018. Although the video recording did not also have an audio recording of this incident, it appeared to the undersigned that Ms. Lynar clearly approached an office door and, with her hand and fist, intentionally pounded on the office door. Additionally, Respondents introduced into evidence only one of the two “pounding and screaming” incidents, explaining that the video of the other/second incident was unavailable. On November 20, 2018, Asbury Arms North, Inc., hand-delivered to Ms. Lynar a “Notice of Termination of Tenancy,” which stated, in part: YOU ARE HEREBY NOTIFIED that your tenancy … is terminated, effective at the end of the day on December 20, 2018. You must vacate the premises at or before that time. THIS TERMINATION is based on your material noncompliance with the Lease Agreement, including one or more substantial violations of the Lease Agreement. The specific reason for this termination is as follows: On the morning of November 7, 2018 you committed a substantial violation of the lease by causing a loud commotion by acting aggressive and erratic, banging repeatedly on the office door, and yelling at staff and other residents, including Receptionist Josephine Brooks and Administrator Joe Downs. Your actions were threatening, intimidating, harassing, and violent. Your actions interfered with the quiet and peaceful enjoyment of the other residents living in the apartment property by causing a commotion and disrupting a bible study being conducted by Chaplain Don Adkins and approximately 15 residents. Your actions also disrupted the management of Westminster Asbury by staff. Your actions scared staff and other residents, and have caused continuing fear among staff and other residents. The Lease Agreement contains the following requirement regarding resident conduct: Conduct Residents … will not engage in, or participate in, such conduct which interferes with the quiet and peaceful enjoyment of the other residents living in the apartment property. No act of a resident and/or guest which threatens, intimidates, is deemed as harassing others, is physically violent with or without injury to another person and/or property, or has unacceptable social conduct, will be tolerated. Any such act will be considered a violation of the Community Policies and the Lease. No act of intimidation, harassment, verbal abuse, physical threat or violence, or social misconduct of, or to, and [sic] employee of this apartment property by any person will be tolerated. Any such act is considered a noncompliance of the Lease Agreement and will result in termination of the Lease. Your above-described actions on November 7, 2018 violate the foregoing conduct requirements, in that you engaged in conduct that interfered with the quiet and peaceful enjoyment of the other residents, you intimidated other residents, and you intimidated, harassed, and verbally abused employees of the property. Your actions, pursuant to the Lease, are a noncompliance and have resulted in termination of the Lease. BE ADVISED that if you remain in the leased unit after the date specified for termination, the Landlord may seek to enforce the termination only by bringing a judicial action at which time you may present any defenses. Thereafter, on December 22, 2018, Asbury Arms North, Inc., filed a Complaint for possession of real property, and damages, in county court in Brevard County, Florida. Ms. Lynar testified that she has been the subject of previous eviction actions with Asbury Arms North, Inc., and had never previously received a Notice of Termination. She stated that Asbury Arms North, Inc., delivered this while she was with friends in the fellowship room, and believed this was inappropriate and retaliation for participation in Lynar II. Ms. Lynar testified that she did knock on Mr. Downs’s door, to (again) complain about a group of residents she contends engage in bullying and harassment. She contends that instead of doing something about the bullying and harassment, Asbury Arms North, Inc., instituted the eviction action in Brevard County Court, again, in retaliation for her participation in Lynar II.2 Other Alleged Bases for FHA Retaliation Ms. Lynar testified that she believed Respondents’ decision to issue the Notice of Termination and commence eviction proceedings against her was also in retaliation for her assisting another Asbury Arms North, Inc., resident, Sudhir Kotecha, in bringing an FHA discrimination claim against Respondents. Respondents had also commenced an eviction action against Mr. Kotecha during this time period. Mr. Kotecha’s attorney, Nicholas Vidoni, testified at the final hearing concerning the deposition of Mr. Downs in that eviction proceeding, in which Ms. Lynar (who was not a party to that eviction matter, but was a party to the December 22, 2018, pending eviction matter involving Asbury Arms North, Inc.) attempted to attend. Mr. Downs’s attorney objected, and filed a Motion to Terminate or Limit Examination, requesting that Ms. Lynar not be present for the deposition because of the pending eviction matter and the pending Lynar II matter (in both of which, Mr. Vidoni represented Ms. Lynar), and other reasons. Mr. Vidoni testified that the county judge granted the Motion to Terminate or Limit Examination, in part, and barred Ms. Lynar from attending Mr. Downs’s deposition. Additionally, during this time period, Ms. Lynar testified that Respondents sought to have the county judge assigned to the eviction case 2 The issue of bullying and harassment at the hands of certain residents of Asbury Arms North, Inc., was fully considered and rejected as grounds for a violation of the FHA in Lynar II. removed, because Ms. Lynar allegedly had contact with the county judge at a restaurant. Mr. Vidoni confirmed that Respondents indeed filed such a motion, but did not testify as to its resolution, and Ms. Lynar presented no further evidence about it. Ms. Lynar testified that the actions of Respondents in paragraphs 20 and 21 above are further evidence of Respondents retaliating against her for participation in Lynar II. Ms. Lynar also contends that Mr. Downs reached out to the Department of Housing and Urban Development (HUD), which subsidizes her apartment at Asbury Arms North, Inc., to discuss the non-renewal of Ms. Lynar’s lease in 2014, as an additional form of retaliation. Mr. Downs testified that Respondents had initiated an eviction proceeding in 2014, and that he recalled discussing with a HUD official whether Asbury Arms North, Inc., should renew Ms. Lynar’s lease; Mr. Downs testified that the HUD official questioned why Ms. Lynar’s lease would be renewed if Asbury Arms North, Inc., was in the process of evicting her. This conversation occurred well before the actions that resulted in Lynar II occurred, and are irrelevant. Ms. Lynar failed to provide any credible evidence that Respondents’ decision to issue the Notice of Termination, and subsequently commence eviction proceedings in county court, was retaliation for her participation in Lynar II, in violation of the FHA. The undersigned further finds that the actions that occurred during the Kotecha eviction proceeding, and Mr. Downs’s conversation with a HUD official, are not credible evidence of FHA retaliation.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, the undersigned hereby RECOMMENDS that the Florida Commission on Human Relations issue a final order dismissing Rita Lynar’s Petition for Relief. DONE AND ENTERED this 4th day of January, 2021, in Tallahassee, Leon County, Florida. S ROBERT J. TELFER III 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 4th day of January, 2021. COPIES FURNISHED: Tammy S. Barton, Agency Clerk Florida Commission on Human Relations 4075 Esplanade Way, Room 110 Tallahassee, Florida 32399-7020 (eServed) Stephen G. Henderson, Esquire Henderson Legal Group 5419 Village Drive Viera, Florida 32955 (eServed) Rita Lynar 1200 Clearlake Road #2114 Cocoa, Florida 32922 (eServed) Cheyanne Costilla, General Counsel Florida Commission on Human Relations 4075 Esplanade Way, Room 110 Tallahassee, Florida 32399-7020 (eServed)
The Issue The issue is whether appellant's application for a conditional use permit should be approved.
Findings Of Fact Based upon the entire record, the following findings of fact are determined: Appellant, Nostimo, Inc. (appellant, applicant or Nostimo), is the owner of Lots 8, 9, 10 and 11, Block 8, Revised Plat of Clearwater Beach Subdivision, located at 32 Bay Esplanade, Clearwater Beach, Florida. The property is subject to the land use requirements codified in the City of Clearwater Code of Ordinances (code or city code). By application filed on April 25, 1989 appellant sought the issuance of a conditional use permit from appellee, City of Clearwater (City or appellee). If approved, the permit would authorize the sale of beer and wine for off-premises consumption by a Pick Kwik Food Store to be constructed on the property under a lease agreement between appellant and Pick Kwik, Inc. Appellant's property is properly zoned for a retail establishment (CB or Beach Commerical), and it needs no further zoning permits from the City in order to convert the existing structures on the property to a convenience store. Indeed, appellant has already received approval for the construction and operation of the store. However, under subsection 137.024(b) of the city code, appellant is required to obtain a conditional use permit because it intends to engage in the sale of packaged beer and wine for off-premises consumption. In order to obtain such a permit the applicant must satisfy a number of criteria embodied in the code. The parties have stipulated that, with the exception of one standard, all other relevant criteria have been met. The disputed standard requires that "the use shall be compatible with the surrounding area and not impose an excessive burden or have a substantial negative impact on surrounding or adjacent uses or on community facilities or services." It is noted that appellant must secure the necessary land use permit from the City before it can obtain the alcoholic beverage license from the Department of Business Regulation, Division of Alcoholic Beverages and Tobacco. The application was considered by the Clearwater Planning and Zoning Board (Board) on June 13, 1989 and denied by a 5-0 vote with one member abstaining. As a basis for the denial, the Board adopted a staff report that concluded that "due to the beach area being saturated with this use (sale of alcoholic beverages), public nuisances requiring police action are taxing community services." It further concluded that the proliferation of this activity "has a substantial negative impact on surrounding or adjacent uses or on community facilities and services, specifically police services in handling nuisances related to alcoholic beverage establishments." Members of the public who testified in opposition to the application expressed concern over increased traffic in the area, the glare of lights from a 24 hours per day establishment, and potential problems arising from customers who will consume the beer and wine during the evening hours. In addition, two letters in opposition to the application were considered by the Board. Finally, besides a presentation by applicant's attorney, two witnesses appeared on behalf of the applicant and established that Pick Wick, Inc. provides security services at its stores, if needed, and training for employees to prevent the sale of alcoholic beverages to minors. The subject property is located on the western side of the intersection of Bay Esplanade and Mandalay Avenue in Clearwater Beach, an elongated strip of land to the west of the mainland portion of the City and separated from the mainland by Clearwater Harbor. Mandalay Avenue runs north and south through the heart of Clearwater Beach and is a principal traffic artery in that part of the community. The avenue narrows from four to two lanes just south of where the store is to be located. Bay Esplanade is a much shorter street and runs in an east-west direction between the Gulf of Mexico and Clearwater Harbor. In general terms, the property is surrounded by mixed uses and include a 7-11 convenience store immediately across the street to the east, motels and rental apartments, a restaurant, retail businesses and resort facilities, residences, public areas and a city fire station. Maps received in evidence more definitively depict the nature of the uses surrounding Nostimo's property. In addition to a number of commercial establishments within the immediate area, there are also tennis courts, a parking area, community boat ramp, soccer field, playground and public park. Finally, the area is replete with apartments, rental units and condominiums, including some directly behind the proposed establishment. Although there are presently no active businesses located on the subject property, the premises were once occupied by a hotel, apartments, hot dog shop and a small lounge that offered both on and off premises consumption of alcohol. The applicant contends that the proposed use is compatible with both the property's former use and the present surrounding area, particularly since a 7-11 convenience store directly across the street has been in business selling beer and wine for the last twenty-five years, and there are several restaurants or motels within a block that sell alcoholic beverages. The applicant added that, in all, there are approximately fifty-three active alcoholic beverage licenses within two miles of the proposed convenience store. At both the Board hearing and final hearing in this cause, the City Police Department offered testimony in opposition to the issuance of the requested permit. According to the uncontradicted testimony of Lt. Frank Palumbo, who is the Clearwater Beach police department district commander, additional noise, vandalism, traffic congestion and congregation of younger people are expected if the permit is issued. This opinion was based upon his law enforcement experience with other convenience stores on the Beach side that sell beer and wine, including another Pick Wick convenience store. Further, Mandalay Avenue is an important north-south traffic artery in Clearwater Beach, and there are no alternative streets for residents and visitors to use to avoid the traffic build-up that will occur around the store. Lieutenant Palumbo disputed the assertion that the lounge that once occupied a portion of the subject property generated substantial numbers of customers and associated traffic and that the new enterprise is actually a downgrade in use. He pointed out that the former lounge was very small, and a congregation of four or five customers at any one time was a "large crowd." In contrast, the police officer distinguished that situation from the proposed store where the sale of beer and wine around the clock is expected to generate larger volumes of traffic and customers, particularly during the evening hours. Finally, it has been Lt. Palumbo's experience that convenience stores that sell beer and wine attract the younger crowd, including minors, during the late hours of the night, and they create noise and sanitation problems for the adjacent property owners. The witness concluded that all of these factors collectively would have a negative impact on "community services" by placing a greater demand on police resources. This testimony was echoed by a city planner who gave deposition testimony in this cause. The nexus between the sale of alcoholic beverages and increased traffic and noise was corroborated by Daniel Baker, the manager of another Pick Wick store and a former employee of the 7-11 store across the street, who recalled that when beer sales stopped at that store at midnight, the noise and traffic also came to a halt. In this regard, it is noted the proposed store will operate twenty-four hours per day. To the above extent, then, the proposed use is incompatible with the requirements of section 137.011(d)(6). Two other witnesses testified at final hearing in opposition to the application. One, who is a member of a church that lies a block from the proposed store, pointed out without contradiction that a playground sits next to the church and is used by area young people, many of whom use bicycles as their means of transportation. She was concerned that if more traffic is generated by the store, it would make access to the playground more hazardous and discourage the children from using the facility. The second member of the public is concerned that the store will be incompatible with the surrounding area. This is because much of the neighboring area is made up of public areas, apartments, rental units or condominiums, and he contended an establishment selling alcoholic beverages would be inconsistent with those uses.
The Issue Whether, on the basis of her handicap, Respondent discriminated against Petitioner as alleged in Petitioner’s Housing Discrimination Complaint, in violation of the Florida Fair Housing Act (“FFHA”).
Findings Of Fact HABC is a PHA that administers vouchers used in Brevard County, Florida, as part of the HCV Program. Petitioner, Karenlee Krason, began receiving an HCV Program voucher ("voucher") in 2009. In 2019, she rented a two-bedroom house at 407 Ward Road Southwest, Melbourne, Florida, 32980 ("Ward Unit"). HABC granted a reasonable accommodation to Petitioner by approving a second bedroom for her oxygen equipment. On July 30, 2019, Petitioner's landlord notified her in writing that her lease would not be renewed for the Ward Unit. Ms. Alysha Connor, a Section 8 Technician at the HABC, scheduled a relocation appointment on October 9, 2019, to assess Petitioner's plan for finding new housing. HABC issued Petitioner a voucher authorizing her to find new housing within 60 days. HABC is not responsible for finding suitable housing for voucher recipients. However, HABC repeatedly attempted to assist Petitioner in finding a new place to reside. Petitioner notified HABC that she found a place to rent at Las Palmas Apartments, located at 1915 Agora Circle, Unit 101, Palm Bay, Florida 32909 (“Agora Circle Unit"). In an e-mail dated November 5, 2019, Petitioner requested that her voucher include reimbursement for expenses relating to her certified service animal. A Request for Tenancy Approval was submitted for the Agora Circle Unit for a potential move-in date of December 1, 2019. All rental units must meet minimum standards of health and safety and pass a Housing Quality Standard (“HQS”) inspection, as determined by HABC in cooperation with HUD. The Agora Circle Unit failed an inspection conducted by HABC on November 18, 2019. HABC identified the conditions/items needing to be addressed in order to pass inspection. In the meantime, HABC obtained an extension on Petitioner's Ward Unit lease with her landlord. The lease would not expire until December 31, 2019. An additional inspection of the Agora Circle Unit was performed on November 27, 2019, at which time the Agora Circle Unit passed HABC's re- inspection. However, Petitioner communicated to HABC that she no longer wanted to rent the Agora Circle Unit. Petitioner now expressed a desire to rent a unit at 409 Mercury Avenue Southeast, Unit 103, Palm Bay, Florida ("Mercury Unit"). The Mercury Unit passed HABC's inspection on December 11, 2019. However, issues arose with Petitioner refusing to submit an application for her daughter's background check. HABC had offered to pay the required application fee, but the landlord revoked Petitioner's application approval because she failed to comply with the landlord's request for the background check. By this time, Petitioner's lease extension for the Ward Unit had expired, as of December 31, 2019. However, Petitioner was still residing in the unit. On January 9, 2020, HABC attempted to obtain another extension on Petitioner's lease, but the landlord refused the request. Nonetheless Petitioner continued to live in the Ward Unit as she searched for alternative housing. On February 3, 2020, Petitioner's realtor, Bruce Reilly, contacted HABC regarding a unit located at 1642 Lizette Street Southeast, Palm Bay, Florida ("Lizette Unit"). Mr. Reilly inquired whether Petitioner could afford the unit. HABC provided Mr. Reilly its calculations on what Petitioner could qualify for. There were no further communications from Mr. Reilly. During this time, Petitioner's landlord at the Ward Unit provided her with notice to vacate the unit by February 29, 2020. Furthermore, the landlord communicated to HABC that he would no longer accept rent from HABC for the following month. Two days before her deadline to vacate the Ward Unit, Petitioner sent an email to HABC advising that she had located a unit at 3025 Thrush Drive, Unit 101, Melbourne, Florida (''Thrush Unit"). Petitioner advised HABC that the property needed to be inspected the following day. The Request for Tenancy Approval ('"RFTA") packet submitted by Petitioner for the Thrush Unit was incomplete. Although HABC was closed for business on Friday, February 28, 2020, HABC made arrangements for one of its employees to inspect the Thrush Unit that day. In addition, HABC's CEO, Michael Bean, accelerated the process to allow Petitioner to relocate to the Thrush Unit immediately so she would not become homeless. Later that day, Petitioner notified HABC that the Thrush Unit had been rented to another individual. Throughout the relocation process, Petitioner was granted numerous extensions on her voucher. At the end of each year, HABC conducts a mandatory review of the financial information provided by Section 8 voucher recipients through the Enterprise Income Verification (“EIV”) system. EIV provides a comprehensive online system for the determination and verification of various resident information and income that PHAs use to determine rental subsidies. On or about January 2020, EIV reported that Petitioner's daughter was working at Cumberland Farms. Petitioner had failed to disclose this fact. Upon contacting Petitioner to discuss this omission, Petitioner continued to assert that her daughter was not employed. HABC proceeded to investigate this matter further. Throughout its investigation, HABC retrieved employment records from Cumberland Farms. This documentation confirmed that Petitioner’s daughter indeed worked at Cumberland Farms. Moreover, Florida Power and Light billing records disclosed that Petitioner’s daughter no longer resided at the residence occupied by Petitioner. In light of the above revelations, HABC began the process of terminating Petitioner's voucher because she had violated HABC's policies and regulations. Specifically, Petitioner violated HABC’s policy by failing to disclose additional household income and by failing to disclose that her daughter was no longer living at the Ward Unit. On February 3, 2020, HABC emailed Petitioner, outlining its findings, and notifying her that HABC would be terminating her voucher effective March 31, 2020. HABC informed her she had the option to request a hearing before termination. Petitioner elected to have an informal hearing to contest her termination from the program. The informal hearing was held on February 14, 2020. Petitioner appeared by telephone. At the hearing, Petitioner was combative and refused to answer questions posed by Hearing Officer G. Phillip J. Zies. She abruptly ended the telephone call before the conclusion of the hearing. At the hearing, HABC recommended the Hearing Officer not terminate Petitioner's voucher. On the same day as the hearing, the Hearing Officer decided to make Petitioner's status "conditionally eligible" subject to her making arrangements with HABC to stay in the HCV Program within seven (7) days of the hearing. On February 19, 2020, HABC reached out to Petitioner via email providing a list of documents she needed to complete, including: A Retroactive Payment Plan; Nicole Krason’s tax returns from 2017, 2018, and 2019 tax years; Copies of updated driver's licenses from Petitioner and Nicole Krason; and An Updated Lease Agreement from Nicole Krason. As of October 9, 2020, the date of Ms. Disco’s affidavit, Petitioner has failed to provide any of the documents requested above. Notwithstanding Petitioner’s failure to comply with HABC's documentation requests, HABC has extended Petitioner's voucher until December 31, 2020. Petitioner’s voucher originally expired on November 30, 2019, but has been extended through December 31, 2020. During the period of the extension, Petitioner was required to complete her annual recertification in order to remain eligible under the HCV Program. HUD mandates HABC must conduct an annual re-examination of a participant's eligibility for the HCV Program. The purpose of the annual re-examination is to establish that every family's eligibility for assistance is based on their income, as determined in accordance with program rules. During the annual recertification process, Petitioner requested that her daughter be deemed a “live-in aid” so that her daughter's income would not count towards the household income. However, Petitioner declined to continue with this process because she wanted the voucher to transfer to her daughter. According to HUD guidelines, Petitioner's daughter would not qualify as a live-in aide, eligible for rental assistance or occupancy in a subsidized unit, because her daughter had lived as an "other household adult" between 2008 and 2019. HABC's administrative plan does not allow prior, or current, household adults to be live-in aides. Participants must provide information requested by HABC because changes in income or family composition can affect the amount of assistance a tenant is eligible to receive. Those who fail to cooperate in providing such information can have their voucher terminated. On or about July 30, 2020, HABC sent Petitioner an annual recertification packet in order for her to complete the annual recertification process. This packet needed to be completed by September 1, 2020. On September 17, 2020, HABC sent a letter to Petitioner advising her she had not completed the annual recertification packet and that she would need to complete the packet in order to remain eligible under the HCV Program. On September 23, 2020, Petitioner returned the packet, but it was incomplete. Specifically, Petitioner did not provide proper documentation for her out-of-pocket medical expenses. HABC requested the proper documentation be submitted to complete the annual recertification process. Petitioner did provide HABC with a letter from Health First Alliance Group confirming her continued need for medical equipment. Independent of the proceedings before FCHR, HUD also investigated the handling of Petitioner's case by HABC. The scope of HUD’s investigation was to determine whether HABC discriminated against Petitioner in violation of Section 504 of the Rehabilitation Act of 1973, and its implementing regulations found at 24 CFR, Part 8. Section 504 provides that no otherwise qualified individual with disabilities shall, solely on the basis of disability, be excluded from participation in, be denied the benefits of, or otherwise be subjected to discrimination under any program or activity that receives federal financial assistance from HUD. HUD’s investigation led to a finding that there were no reasonable grounds to believe that an unlawful discriminatory housing practice had occurred.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Florida Commission on Human Relations issue a final order dismissing Petitioner’s Petition for Relief. DONE AND ENTERED this 24th day of November, 2020, in Tallahassee, Leon County, Florida. S W. DAVID WATKINS 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 24th day of November, 2020. COPIES FURNISHED: Tammy S. Barton, Agency Clerk Florida Commission on Human Relations Room 110 4075 Esplanade Way Tallahassee, Florida 32399-7020 (eServed) LaShawnda K. Jackson, Esquire Rumberger, Kirk & Caldwell, P.A. Suite 1400 300 South Orange Avenue Orlando, Florida 32801 (eServed) KarenLee Krason c/o General Delivery Melbourne, Florida 32901 (eServed) Francis Sheppard, Esquire Rumberger, Kirk & Caldwell, P.A. Suite 1400 300 South Orange Avenue Orlando, Florida 32801 (eServed) Michael D. Begey, Esquire Rumberger, Kirk & Caldwell, P.A. Suite 1400 300 South Orange Avenue Orlando, Florida 32801 (eServed) Cheyanne Costilla, General Counsel Florida Commission on Human Relations Room 110 4075 Esplanade Way Tallahassee, Florida 32399-7020 (eServed)
Findings Of Fact Clearwater Beach Community Church (the Church) applied to the City of Clearwater for a conditional use permit on November 14, 1988. The conditional use requested by the Church was to establish and operate a non-profit day care center for no more than 49 children, ages 2 to 5. The proposed center would be operated on the Church property by Latchkey Services for Children, Inc., a non- profit organization which provides subsidized child care. Latchkey currently operates six preschool centers and 36 school-age centers in Pinellas County. The Church's proposed center would operate weekdays from approximately 6:30 a.m. to 6:00 p.m. and would accommodate parents who live or work on Clearwater Beach. Five staff members, or one adult per 10 children, would be employed to operate the center. No day care centers currently exist on Clearwater Beach. Minimum standards for day care centers in Pinellas County are set by the Pinellas County License Board for Children's Centers and Family Day Care Homes. The Church's proposed center meets all standards set by the licensing board. Based on the available classroom space at the Church, the largest group of children would be limited to 13. The proposed outdoor play area is 81 feet by 33 feet and would be utilized by no more than 13 children at one time. At least one adult would be present at all times to supervise the children's outdoor play periods. The play area is enclosed on the south and west sides by Church buildings and on the north side by a six (6) foot high cement block wall. A fence is to be constructed on the east side to fully enclose the play area. Outside play time would be almost continuous between the hours of 8:00 a.m. and 5:30 p.m. Parents would drop off their children between 6:30 a.m. and 8:00 a.m. in the circular drive area on the east side of the Church's property. Three areas with a total of 14 parking spaces have been designated as parking areas for day care center employees and for parents required to park their cars when dropping off or picking up their children. In addition, a city- owned public parking lot is located directly across Bay Esplanade to the south of the Church. On-street parking exists on Poinsettia Avenue on the west side of the Church. It is to be anticipated that some parents will walk or use public transportation to deliver their children to the school. Parents will pick up their children between 4:30 p.m. and 6:00 p.m. The Church property is zoned Public/Semi-Public. To the immediate south across Bay Esplanade lies city-owned property on which are located, from west to east: public tennis courts; a public metered parking lot; public basketball courts; a city youth recreation center; and a public boat ramp. To the immediate west, from south to north, are a motel, an apartment building and a public soccer field. To the north on the Poinsettia (west) side, lies, from south to north, a vacant privately-owned lot, a triplex and a 13-unit apartment building. To the north on the Cyprus Avenue (east) side, and directly behind the Church's sexton residence, is a four-unit, two-story apartment house which is partially occupied by its owner. Across Cyprus Avenue to the east of the Church property, from south to north, are a motel and several duplexes. The area surrounding the Church is a quiet area inhabited by a large proportion of permanent residents, mostly elderly retirees, and by residents of motels who choose the area because it is quiet. Some of these residents live close enough to the proposed day care center to be disturbed by the noise that would surely result, even with the proposed noise buffers, from the process of dropping off and picking up the children each day, five days a week, especially the process of dropping them off between approximately 6:30 a.m. and 8:00 a.m., and from the continuous use of the play area by 10-13 children for approximately 8 hours a day, five days a week. Because of the character of the neighborhood, the noise disturbance could reasonably be expected to have an adverse impact on property values of both the motels and residences in the immediate area.
Findings Of Fact On or about March 29, 1988, Applicants filed their application for conditional use approval for on premises consumption of beer and wine at 1218 Cleveland Street, Clearwater, Florida. The property is located at the northeast corner of Cleveland Street and Jefferson Avenue, and a restaurant and lounge known as "Sandpiper's" is located on the subject property. The property is zoned urban center - eastern corridor (UC-E). The subject property also uses the mailing address of 1214A and 1214 Cleveland Street, but the property and business operated thereon is the same as described in Finding of Fact 1. At all times material hereto, Applicant Kallivokas has owned the subject real property. On or about March 31, 1988, Applicant McCabe acquired ownership of Gulf Coast Rathskeller, Inc., and all assets pertaining to the restaurant and lounge known as "Sandpiper's" located on the subject property. Gulf Coast Rathskeller, Inc., has been the lessee of the premises, and has operated the Sandpiper at all times material hereto, both before and after the transfer of ownership to Applicant McCabe on March 31, 1988. This transfer was accomplished through a 100 percent sale of stock in Gulf Coast Rathskeller, Inc., to the Applicant McCabe. This sale and stock transfer constitutes a "change of business ownership" as that term is used in the Land Development Code. The Planning and Zoning Board considered this application on April 19, 1988, and by a 5-2 vote approved the application with the following conditions: That the occupational license be obtained by the current owner (McCabe) within 6 months; That the closing hours be 10 p.m. on week nights, and midnight on Friday and Saturday nights; That the kitchen remain open until closing; That no outside speakers be permitted and That the doors be kept closed during live entertainment. Although the Applicants timely appealed all conditions, at hearing only the hours of closing were in dispute, and Applicant McCabe stated he is complying with all other conditions without any adverse impact on his business. He is not complying with the condition on hours of closing, pending this appeal. He estimates that the closing condition would reduce his business by 40 percent. John W. Homer, the owner of commercial property across Jefferson Avenue from the subject property, has also timely appealed the action of the Planning and Zoning Board, but he urges that the application be denied in its entirety, notwithstanding the conditions placed upon its approval by the Board. The City's Planning Director, Paula Harvey, testified without contradiction, and it is therefore accepted as fact, that the location of "Sandpiper's" was specifically approved by an ordinance adopted by the City Commission pursuant to designation procedures set forth in former Section 72.01, Code of Ordinances. As such, the subject property, and the alcoholic beverage establishment known as "Sandpiper's" have been grandfathered under the separation requirements set forth in Section- 136.024(d), Land Development Code, as enacted by Ordinance Number 4420 on January 21, 1988. Although "Sandpiper's" has closed from time to time, and was specifically closed for a period of time between October, 1987 and April, 1988, when it was reopened by Applicant McCabe, it has never been closed for a continuous period of one year or more. It is, therefore, uncontroverted that "Sandpiper's" has been an "existing alcoholic beverage establishment" at all times material hereto. No other restaurant and lounge is currently operating in the City subject to the same closing hour condition as was imposed on this Applicant by the Planning and Zoning Board. Such businesses are allowed to, and do in fact, stay open until 2:00 a.m. on all days, except Sunday. The City's Traffic Engineering and Police Departments have expressed no opposition to this application. The City's Planning Director supports the approval of this application. Public testimony and evidence in opposition to this application is primarily directed to the operation of this establishment by its former owner, prior to October, 1987. Numerous police reports involving incidents at the Sandpiper occurring prior to October, 1987 while the business was operating under prior ownership are irrelevant to this application. Applicant McCabe has made improvements in the Sandpiper, and is now attracting a higher class clientele than under the former owner. Outside litter has been reduced. No outside speakers are used, the door is closed during live entertainment, and the kitchen stays open each night until the Sandpiper closes. There has been only one police report of any incident at the Sandpiper since April, 1988, while under McCabe's ownership.
