The Issue Petitioners, inmates at Union Correctional Institution, filed petitions pursuant to Section 120.56, Florida Statutes, challenging the validity of Respondent's Rule 33-3.0045, Florida Administrative Code, and Form DC3-302M dated 8-83, as invalid exercises of delegated legislative authority. Specifically, Petitioners allege that Respondent's Rule 33-3.0045(2)(g) is arbitrary and capricious. Petitioners also allege that Respondent has implemented an amended Form DC3-302M (8/83) without going through rule-making procedures and that such action by Respondent constitutes the formation of a new rule as defined in Section 120.52(15), Florida Statutes, and that the failure of Respondent to promulgate such a rule change in accordance with Section 120.54, Florida Statutes, renders the rule invalid. In support of this challenge Petitioners called as witnesses Mr. Jerry Pilcher, Business Manager of U.C.I.; Mr. Raymond Hay, Canteen Supervisor at U.C.I.; Col. Vernon Dukes, Chief of Security at U.C.I.; Officer Carla Faulk; Ms. Paula Lynn Decker, a non-inmate civilian; Inmate Douglas Hedges; Officer Richard Jernigan; and Petitioner Douglas L. Adams. Respondent called Mr. Milton R. Hicks, Assistant Superintendent at U.C.I. Subsequent to the hearing a transcript of the proceedings was filed with the Division of Administrative Hearings on January 6, 1987. And as previously agreed at the close of the hearing, all parties were allowed 15 days from the date of the transcript within which to file their proposed final orders. Both Petitioners and Respondent filed proposed final orders which have been carefully considered in the preparation of this Final Order. A specific ruling on each proposed finding of fact submitted by each party has been made in the attached Appendix which is incorporated into this Final Order.
Findings Of Fact Based on the stipulations of the parties, on the exhibits received in evidence, and on the testimony of the witnesses at the hearing, I make the following findings of fact. All Petitioners were, at the time of the filing of these petitions, inmates incarcerated at Union Correctional Institution. Subsequent to that filing Petitioner and authorized representative Douglas L. Adams has been reassigned to Tomoka Correctional Institution, but was transported to Union Correctional Institution by Respondent for this hearing. Petitioners, as inmates of Respondent, are subject to Rule 33-3.0045, Florida Administrative Code, which establishes a requirement for inmates to receive packages only by obtaining a package permit and that such request must be submitted on Form DC3-302M, Package Permit Form, and approved by the correctional officer chief or his designee. Petitioners have attached to both petitions an altered form DC3-302M, which they allege has been improperly altered by Respondent and is therefore in violation of Section 120.55(1)(a)4., Florida Statutes, as an unpromulgated rule. Petitioners argue that by altering the form and not filing such form pursuant to Section 120.55(1)(a)4., the form and, therefore, the rule are both invalid. It was stipulated by all parties that all Petitioners had submitted official permits to receive packages as Christmas permits that had been disapproved on various grounds by U.C.I. Personnel. On November 3, 1986, an internal memorandum was prepared by Col. Vernon C. Dukes, Chief of Security at U.C.I., to advise the inmate population at that institution that Rule 33-3.0045 (2)(g), Florida Administrative Code, would be followed in reviewing future package permits. Attached to the memorandum was a copy of Form DC3-302M (8/83) on which certain items had been marked through. The items marked through on that copy of Form DC3-302M (8/83) were marked through by Superintendent Barton during a meeting attended by Mr. Pilcher, Mr. Hicks, Assistant Superintendent Dunning, Col. Dukes, and Superintendent Barton, on or about November 3, 1986. The acts of preparing the memorandum of November 3, 1986, and of marking through certain items on a copy of Form DC3-302M (8/83) were the acts of officers and employees of Union Correctional Institution. Those acts were not actions taken by or at the direction of the Department of Corrections. The items that were struck through on the Form DC3-302M (8/83) were all items that could be purchased at the U.C.I. canteen or that could be ordered from catalogs through the U.C.I canteen. The full text of the memo posted by Col. Dukes on November 3, 1986 (omitting the formal parts) is as follows: Effective this date all package permits will be processed in accordance with Department of Corrections Rule 33-3.0045, Package Permits. Previously, items that can be purchased in the Institutional canteen were approved, however, paragraph (g) of the above mentioned rule states that "Items sold in the institution's canteen will not be approved." Col. Dukes' memorandum of November 3, 1986, which was posted with a copy of Form DC3-302M (8/83) on which certain items had been marked through was for the purpose of bringing U.C.I. into compliance with the rule which disallows packages containing items available for purchase in the facility canteen. Compliance with the requirements of the rule was an attempt to control the introduction of contraband into the facility. Immediately prior to the memorandum of November 3, 1986, officials at U.C.I, had been approving package permits that included items that could be purchased at the canteen. The prior approval of such items is in conflict with the clear language of the rule. The amended version of Form DC3-302M (8/83) which was attached to the petitions in this case (a version of the form which includes fewer items than appear on the official form) is not a form which has been prepared, promulgated, adopted, or distributed by the Respondent. The amended version of Form DC3- 302 (8/83) is an unauthorized form prepared by someone other than the Respondent. Rule 33-3.0045, Florida Administrative Code, regulates the process by which inmates may receive packages. Subsection (2)(g) of that rule, which is the portion challenged in this case, reads as follows: "Items sold in the institution's canteen will not be approved." The Department's Policy and Procedure Directive Number 3.04.11, dated 8/23/83, addresses the subject of package permit procedure. Contrary to the assertions of the Petitioners, that directive does not exempt Christmas packages from Rule 33-3.0045 (2)(g).
The Issue The issue in this appeal is whether to sustain the decision of the City Planning and Zoning Board (the Board) to deny Thomas Nott a conditional use permit to sell pre-owned motor vehicles at his business at 700 Cleveland Street, Clearwater, Florida.
Findings Of Fact Thomas A. Nott owns Lots 6 and 7, Gould & Ewing's Plat 2nd Addition. The street address is 700 Cleveland Street, Clearwater, Florida. This property is on the northeast corner of Cleveland Street and East Avenue. The property is in the Core-2 (C-2) subdistrict of the Urban Center (UC) zoning district. The Clearwater Downtown Redevelopment Plan states in pertinent part: An extremely important aspect of the way Downtown Clearwater functions and is perceived involves transportation within and into the Downtown. If the traffic flow into Downtown is efficient and the entryways are attractive, Downtown Clearwater is more likely to be frequented by citizens and visitors. If traffic flow is congested and the roadsides are unappealing, the Downtown is less likely to be a place where people visit, live and shop and where entrepreneurs invest money. * * * Cleveland Street is the single most important roadway in Downtown Clearwater. Due to it[s] "Business S.R. 60" designation, it carries a substantial amount of the traffic heading to Clearwater Beach, as well as the bulk of the office and retail traffic headed for Downtown. . . . In the Downtown Core area, Cleveland Street has been attractively landscaped with paving block and planters. This treatment has greatly improved the appearance of the Downtown along Cleveland Street. However, these efforts are, to some extent, undermined by the poorly landscaped sections of Cleveland Street outside the Downtown Core area. Land uses outside of the Downtown Core along Cleveland Street are relatively unattractive and are poorly landscaped. A remedial landscaping program should be considered as a top priority for improving this important entryway. The City also has adopted Design Guidelines for new construction, building additions, facade alterations, and signage for the Urban Center zoning district. A section on "Landscape and Streetscape Guidelines" suggests the use of different kinds of planters and curb "neck-out" street corners to create larger pedestrian areas that incorporate benches, specialized pavers, and lighted bollards. Landscaping, including shade trees, are suggested to provide separation between people and vehicles. A subsection on "Open Spaces" states: "Designers of site improvement areas are encouraged to explore opportunities to incorporate usable open space with the project (development) area." Nott's property is in a transition area between the more attractively landscaped City core to the west and the less attractive portions of Cleveland Street to the east. Immediately to the west across East Avenue is the Pinellas Trail. Immediately to the west of the Trail, fronting on Cleveland Street, is the historic United States Post Office building, which is listed on the National Register of historic buildings. (Since it still functions as a working post office, a large number of mail delivery trucks park and operate out of the back of the post office to the north.) The Trickels Jewelers building to the immediate east of Nott's property also is attractively landscaped, especially along Myrtle Avenue. The other properties to the north, east, and south of Nott's property are less attractive. They include: an automobile and marine repair business; a restaurant with little or no open space; an import car repair service business with little or no open space; and a car rental business. Ideally, the City would like Nott's property to become the start of an eastward expansion of the more attractive urban core along Cleveland Street. Nott's property is 0.26 acre in area; its dimensions are 105 feet in width and 109 feet in depth. Unlike most properties in the downtown urban core, the building on Nott's property is set back quite a distance from the streets. The building has one story and is just 1500 square feet. In the past, the property has been used as an automobile gas and service station and as a car rental business. Before Nott bought the property, the building was in disrepair and in decline. Approximately four years ago, Nott was considering relocating from South Beach in Miami, where he was in the business of selling pre-owned motor vehicles. Initially, he investigated relocating to Dunedin, but an official with Clearwater's redevelopment agency persuaded him to take advantage of Clearwater's commitment to redevelop the downtown urban core, as well as interest-free financing available through the agency to improve the property. Nott bought the property, borrowed approximately $50,000 interest-free, and invested that and an additional $50,000 of his own money to improve the property. His plan was to conduct two businesses at the property: a roller skate and bicycle rental business catering to users of the Pinellas Trail; and a pre-owned motor vehicle sales business. Due to family priorities, Nott had to delay his departure from Miami and only was able, with the help of a nephew, to open the skate and bicycle shop. The 121 square feet of storefront planned for the vehicle sales business was used as storage space for the skate and bicycle shop pending opening of the vehicle sales business. The skate and bicycle shop, called Fritz's Skate Shop, had been operating for approximately three years when Nott became ready to open his pre-owned vehicle sales business. When he went to get an occupational license towards the end of 1998, Nott learned that a conditional use permit would be required. In discussions with staff of the City's Planning and Zoning Board, Nott also was informed that a new zoning code was going into effect which would prohibit vehicles sales at Nott's property and that he would have to expedite his application for it to be considered under the existing zoning regulations. Nott filed an application for a conditional use approval on or about January 12, 1999. At the time, Nott was not familiar with Clearwater's zoning regulations and did not address some zoning requirements. Specifically, while the sketch Nott drew by hand to approximate scale to serve as the required site plan met the minimum requirements as to form, it only showed a three-foot grass buffer along Cleveland Street and a three-foot buffer of shrubs along East Avenue, while the City's development code required at least a ten-foot landscaped buffer along Cleveland Street and at least a five-foot landscaped buffer along East Avenue. The sketch also showed parking that would obstruct vehicle flow in the parking lot and failed to show a large oak tree on the site. Finally, the sketch showed parking for the display of vehicles for sale along Cleveland Street. Nott's application was set for hearing at the Board's last scheduled meeting on March 2, 1999, just six days before the new zoning and development code would take effect. Nott still did not know all of the applicable regulations under the existing code. For some reason, Nott did not obtain a complete set of the City's zoning and development regulations until approximately February 17, 1999. Nott blamed the delay on foot-dragging by the Board's staff, and he questioned whether the staff was being uncooperative to undermine his application. Nott testified that he did not get a complete set of the applicable zoning and development regulations until after he sent a letter of complaint to the staff director on February 13, 1999. The staff denied any intention to delay Nott's application or be uncooperative. The staff blamed some of the delay on the time it took for Nott to prepare and submit an acceptable site plan. It appears that Nott entered into the application process thinking that there would be no problem meeting the City's requirements and expecting the Board's staff to walk him through the process. When Nott's expectations were not met, he perceived that the staff was treating him unfairly. But it is found that Nott's evidence did not prove unfair treatment. In fact, due to Nott's inexperience, the staff was required to give Nott more assistance than usual. For his presentation to the Board, Nott had a consultant use a photograph of the site to create a computer- visualization of the proposed vehicle sales business. The photograph depicted one vehicle parked in front of the building, as well as four vehicles parked along Cleveland Street and one parked along the east property line in two of the areas identified on the site plan as parking for the display of vehicles for sale. The visualization did not add any landscaping. At the time, Nott thought the concern was adequate parking; he did not know at the time that landscaping also would be important to his application. When Nott got and reviewed the applicable zoning and development code provisions and the staff's report, he realized that he had not addressed the landscaping buffer requirements. He had his consultant further modify the computer-visualization to add a landscaping buffer. This visualization was presented at the Board hearing on March 2, 1999. However, the visualization still depicted vehicles parked along Cleveland Street and was not clear as to the width of the landscaping buffer. The site plan was not modified, so the extent of the proposed landscaping buffer could not be ascertained from the site plan. At the Board hearing, Nott stated that he would be willing to do whatever the City said was necessary in order for him to receive a conditional use permit. But Nott made no specific proposals. Essentially, Nott was asking the City to formulate an acceptable application for him. The staff report indicated that an on-site traffic circulation problem could be cured by eliminating two customer parking spaces in front of the building. But it was impossible to determine from the evidence in the record how a wider landscaping buffer would impact either traffic circulation in the parking lot, parking, or the large oak tree. The staff report pointed out that Nott's application proposed to maintain minimal (7%) open space on the site. The neighbor to the immediate east (Trickels Jewelers) has 30-35% open space, including attractive landscaping along Myrtle Avenue. At the Board hearing, Nott claimed "open space" credit for the shade canopy provided by the large oak tree on-site and contended that the credit would increase his "open space" to 30-35% as well. But even if open space credit can be given for shade canopy over a parking lot, Nott's testimony was insufficient to prove the extent of the tree's shade canopy. Besides, it could not be ascertained from the record whether the tree would have to be removed to meet landscaping buffer, traffic circulation, and parking requirements. Nott testified at the appeal hearing that, after he proposed and depicted parking of vehicles for sale along Cleveland Street, the "Division of Motor Vehicles" advised him that it would not allow him to display vehicles in that location. Nott testified that he would simply eliminate the display parking spaces along Cleveland Street and limit the display of vehicles for sale to 12 at any one time in parking spaces adjacent to the building and along the east property line. But it was not clear from the record whether all of the remaining spaces depicted on the site plan for display parking would remain available for that purpose after adding landscaping buffer, and also maintaining adequate traffic circulation and customer parking. In addition to agreeing to meet the perimeter landscape buffer requirements, Nott also agreed to condition approval on: (1) operating his vehicle sales business only 10 a.m. to 5 p.m. on Monday through Saturday; (2) not using windshield advertising, flags, or banners; (3) only selling vehicles with a retail value of $10,000 or more; and (4) not operating a "buy here-pay here" used car lot.
The Issue The issue in this case is whether Resolution No. P9-96 of the Monroe County Planning Commission should be affirmed, reversed, or modified.
Findings Of Fact The Florida Department of Transportation is seeking to initiate a project to widen a portion of Gulf Boulevard (State Road 699) on Treasure Island, Pinellas County, Florida. In connection with the project, DOT filed an application for "complex source permit" with DER prior to April, 1976. The Petitioners filed a petition and request for public hearing in connection with that application on April 19, 1976. The matter was forwarded to the office of the Division of Administrative Hearings for further proceedings. DER thereafter attempted to withdraw its complex source permit rule. DOT withdrew its application for permit, and by order entered September 30, 1977, a Hearing Officer of the Division dismissed the case. The effort to repeal the complex source permit rule was later determined to be invalid, DOT re-applied for a permit, and Petitioners renewed their request for a hearing by petition dated April 18, 1978. Proceedings were thereafter conducted before the Division of Administrative Hearings, and a recommended order was entered on December 6, 1978. On December 6, 1976, DOT filed an application for dredge and fill permit with DER respecting the same road-widening project. The permit was issued by the Southwest District Office of DER, which is located in Tampa. Notice of the pendency of the dredge and fill permit application was published in a local newspaper of general distribution. No direct notice, however, was given to the Petitioners. The Petitioners directed an inquiry as to the existence of outstanding permit applications in connection with the project by letter dated October 18, 1977. The Department responded advising the Petitioners as follows: Dredge and fill permits for the installation of culverts have been applied for in our Southwest District Office. The permits are currently pending and the application files. . . are available for inspection daily. Despite the fact that the permit had actually been issued nearly seven months earlier, DER did not advise the Petitioners that the permit had been issued, but only that it was pending. Petitioners apparently made no further inquiry respecting the dredge and fill permit until they learned, in connection with proceedings being conducted respecting the complex source permit application, that the dredge and fill permit had been issued. The Petitioners promptly thereafter initiated this proceeding. A copy of the petition in this proceeding was forwarded to counsel for the Department of Transportation by the Petitioners. At a pre-hearing conference conducted in the complex source permit proceeding, counsel for DOT indicated that it may participate in this proceeding. Counsel for DER discussed this proceeding with counsel for DOT and was advised that DOT would not become a party to this proceeding. DOT has not appeared as a party to this proceeding. No evidence was offered to establish whether DOT has taken any action to complete the work authorized by the dredge and fill permit that was issued.
The Issue The issue in this case was to have been whether the evidence sustains the decision of the City of Clearwater Planning and Zoning Board to deny the application of the Appellant for a conditional use permit to sell alcoholic beverages for consumption at the Gallery Restaurant on Sand Key if a outside deck is added to the facility. However, a threshold issue is whether an appointed hearing officer has jurisdiction to decide the case.
Findings Of Fact The Appellant's desire to expand its Gallery Restaurant by adding an outside deck necessitated the filing of an application for a conditional use permit. The application was filed in August, 1994. The matter was presented to the Planning and Zoning Board (the Board) for decision at its meetings on October 18, November 1, and December 13, 1994, but was continued each time. Finally, at its meeting on February 14, 1995, the Board considered and voted to deny the application. On February 23, 1995, a Notice of Appeal was filed with the City Clerk for the City of Clearwater.
The Issue Whether Respondent unlawfully discriminated against Petitioner on the basis of race, in violation of the Florida Fair Housing Act, sections 760.20 through 760.37, Florida Statutes.
Findings Of Fact The Parties Petitioner is an African-American adult male. He is a United States military veteran.2/ Respondent is a political subdivision of the State of Florida and is a public housing authority within Miami-Dade County. Respondent's Housing Programs Respondent owns and operates between 9,000 and 10,000 public housing units. Through its Public Housing and Community Development Department, Respondent administers several public housing programs, including the Section 8 and non-Section 8 public housing programs, which receive federal funding from the United States Department of Housing and Urban Development ("HUD").3/ To receive federal housing assistance funding from HUD, Respondent must maintain an occupancy rate of at least 95 percent at its individual public housing properties. HUD regulations govern the admission of persons into Respondent's Section 8 and non-Section 8 public housing programs. Respondent has adopted its own public housing policies in a document entitled the "Admissions and Continued Occupancy Policy" ("ACOP").4/ This document sets forth Respondent's policies governing its public housing programs, including policies to ensure compliance with HUD housing regulations and the United States Housing Act of 1937. HUD reviews and approves the ACOP. On or about June 6, 1998, Respondent and HUD entered into a Consent Decree to resolve a class action lawsuit brought by past, present, and future black residents of Respondent's public housing, alleging that Respondent, in providing public housing, discriminated against them on the basis of race in violation of, among other things, the United States Fair Housing Act of 1937. Adker v. United States Dep't of Hous. and Urban Dev., Case No. 87-0874 CIV-PAINE (Consent Decree June 6, 1998). The Consent Decree went into effect on or about August 2, 1999, and expired on August 2, 2009.5/ The Consent Decree required Respondent to establish a tenant-based6/ waiting list and a project-based7/ waiting list for admission into Respondent's public housing programs. The Consent Decree also required Respondent to establish a neutral lottery system to rank the housing assistance applications it received. Through the lottery system, each applicant was assigned two ranking numbers, one for the tenant-based waiting list and one for the project-based waiting list. Even though the Consent Decree no longer is in effect, Respondent continues to maintain its project-based and tenant- based waiting lists and its lottery ranking system pursuant to the ACOP. Because the demand for public housing assistance greatly exceeds the availability of units, Respondent opens registration for housing assistance only when units become available. At that time, persons who wish to qualify for housing assistance complete an online web application to be placed on the waiting lists. Waiting list rankings are randomly assigned by computer, and each applicant is assigned separate ranking numbers for the project-based waiting list and for the tenant- based waiting list. Applicants move up the waiting lists sequentially based on ranking number; for the project-based waiting list, the type and size of unit requested also determines movement up the list. Housing assistance recipients are selected through the waiting lists. Once an applicant moves to the top of the waiting list, he or she is contacted to participate in a preliminary eligibility interview. Eligibility is determined based on annual gross income, qualification pursuant to an eligibility category,8/ citizen or eligible immigration status, and other factors.9/ To enable Respondent to determine whether an applicant has any special needs that must be accommodated in assigning a housing unit, each applicant must complete a Reasonable Accommodation Request Questionnaire ("RARQ").10/ If an applicant identifies a need for special accommodation on the RARQ, the applicant must then submit a Reasonable Accommodation Request Form ("RARF"), and a Reasonable Accommodation Request Verification form ("RARV") completed by a health care provider. Both of these forms must be submitted for an applicant to be assigned a unit based on need for special accommodation. The first qualified applicant in sequence on a waiting list is offered a unit of appropriate size and type. If more than one unit that meets the applicant's specified needs is available, the applicant is given a choice of units. Once an applicant accepts an offer, Respondent forwards the applicant's file to the specific housing site for which the offer was made. A final determination of the applicant's eligibility, including a review of the applicant's income, verification of other requirements, and rent calculation is made at the specific housing site. If determined eligible, the applicant signs the lease and moves into the unit. The ACOP states the circumstances under which an applicant's name will be removed from a waiting list, unless good cause is shown.11/ These circumstances are that the applicant receives and accepts an offer of housing, requests that his or her name be removed from the waiting list, or is determined ineligible for assisted housing; or that an application is deemed withdrawn under specified circumstances, including that the applicant failed to respond to the offer or failed to attend the leasing meeting. If an applicant is removed from the waiting list, Respondent provides written notice and informs the applicant that he or she has the right to request an informal review of the removal decision and to present information justifying reinstatement to the waiting list.12/ Respondent generates a current list of available housing units on a daily basis. Respondent does not maintain a historic list of the specific units that were available on a particular date.13/ Petitioner's Housing Assistance Application Respondent opened its public housing assistance registration in 2008 and received over 72,000 applications. On or about July 30, 2008, Petitioner submitted a 2008 Waiting List Web Application to Respondent, seeking public housing assistance. Petitioner specified in his application that he needed a three-bedroom unit to accommodate himself and his two children.14/ Pursuant to Respondent's lottery ranking system, Petitioner was assigned ranking numbers 6,352 for the project- based waiting list and 68,187 for the tenant-based waiting list. Based on Petitioner's project-based waiting list ranking number, Respondent contacted Petitioner to interview for eligibility for public housing. Respondent interviewed Petitioner on or about December 2, 2009. As part of the interview, Petitioner was required to complete various forms, including the RARQ form. Respondent's eligibility screener, Marie Santiague, completed the top portion of the RARQ. The RARQ listed a series of responses to the question "[d]o you (head of household or any member or your family require any of the following:" For response number 3, Ms. Santiague checked "yes" and circled the word "elevator." On the portion of the form entitled "Reason for Needing Feature," Ms. Santiague wrote the word "elevator." At hearing, Ms. Santiague testified that she was in training during this period and completed every applicant's RARQ in this manner, whether or not the applicant had requested a unit having an elevator. Petitioner credibly testified that he did not request a housing unit with an elevator because neither he nor his children needed such an accommodation. He emphatically denied that he signed the RARQ.15/ Respondent's Offer and Petitioner's Acceptance Based on Petitioner's request for a three-bedroom unit, on or about December 11, 2009, Respondent offered Petitioner Unit No. 077032 ("Unit" or "Perrine Unit") at the Perrine Gardens Public Housing Development ("Perrine Gardens"), 16800 Southwest 106th Avenue, Miami. The Unit is part of a 32- unit single family residential site that is physically separate from, but a part of, Perrine Gardens. The persuasive evidence establishes that the Perrine Unit was the only three-bedroom unit available, so was the only unit offered to Petitioner. The persuasive evidence also establishes that had other three-bedroom units been available, Petitioner would have been offered a choice of units. Respondent's offer letter directed Petitioner to contact the site manager or visit the site's management office if he wished to see the unit, and to respond to the offer by December 17, 2009, to avoid having his name removed from the project-based waiting list. The offer letter further stated: "[a]ccepting this offer requires that you contact the site manager within 5 working days to complete your eligibility process, failure to do so may result in your name being removed from the 2008 project based programs." Petitioner accepted Respondent's offer to rent the Perrine Unit on December 15, 2009. He later visited Perrine Gardens and site manager Alix Cedras showed him the Unit. The Unit was a three-bedroom single story home without an elevator. The persuasive evidence establishes that in assigning the Unit to Petitioner, Respondent did not consider the RARQ form that Ms. Santiague filled in during Petitioner's initial eligibility interview. Specifically, Respondent assigned Petitioner to a single story, non-elevator unit, notwithstanding that Ms. Santiague circled and wrote the word "elevator" on the form. Moreover, Petitioner never completed and submitted the RARF and RARV forms, both of which would have been required for Petitioner to have been assigned a unit based on an accommodation request. Refusal to Move Into the Perrine Unit During the timeframe relevant to this proceeding, the racial composition of Perrine Gardens predominantly was African- American, with a smaller number of Caucasian Hispanic tenants also residing in the development. After being shown the Unit, Petitioner walked around the neighborhood and became concerned that the Unit was not located in a desegregated area. At hearing, he testified that he was particularly concerned about the quality of schools and potential for crime in the area. He acknowledged that these concerns were based on his own assumptions rather than on any specific evidence. On or about January 20, 2010, Mr. Cedras sent Petitioner a letter setting forth two rental payment options for the Unit, a flat rent option and an income-based option. In a February 1, 2010, letter to Mr. Cedras, Petitioner disputed the rental options presented and asserted the he should have been presented a zero-income option, which he claimed was appropriate since at the time he accepted the offer for the Unit, he was unemployed and had no income. He was concerned that he could not afford the calculated rent because he was in the process of transitioning from one unemployment compensation tier to another and did not know the specific amount of unemployment he would receive.16/ By letter dated February 2, 2010, Mr. Cedras notified Petitioner that Respondent was not able to further delay his move into the Unit, and requested that Petitioner be present at the Perrine Gardens management office on February 11, 2010, to sign the lease and complete all other documents necessary to move into the Unit. The letter stated: "[f]ailure to respond and comply with this invitation will result in our returning your file to the Application and Leasing Office for further action." Petitioner did not complete the leasing process as directed by Respondent and did not move into the Unit. By letter dated March 24, 2012, Respondent notified Petitioner that his name had been removed from the 2008 project- based waiting list for failure to move into the Unit.17/ Petitioner requested and received informal review of the decision to remove his name from the project-based waiting list; the informal review affirmed the decision. Respondent subsequently offered the Perrine Unit to a Caucasian Hispanic female, who accepted the offer and resides in the Unit. Petitioner claims that Respondent unlawfully discriminated against him on the basis of race by steering him to a unit in a public housing project having a predominantly black resident population.18/ In making this claim, Petitioner asserts that by only offering him a unit in a project having a predominantly black resident population, Respondent effectively rejected him as a tenant, or refused to rent him a unit, in a predominantly non-black project.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is hereby RECOMMENDED that the Florida Commission on Human Relations enter a Final Order finding that Respondent Miami-Dade County did not unlawfully discriminate against Petitioner Ricardo Lockett in violation of the Florida Fair Housing Act, sections 760.20 through 760.37, Florida Statutes. DONE AND ENTERED this 31st day of October, 2012, in Tallahassee, Leon County, Florida. S CATHY M. SELLERS Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 31st day of October, 2012.
The Issue Appellants raise five issues on appeal: (1) that the Commission erred in approving the Application despite there being no competent substantial evidence of LKCCC’s financial capacity to develop the property; (2) that the Commission erred in approving the Application despite there being no competent substantial evidence that the project will meet the “local needs” requirement of the MCC; (3) that the Commission’s Public Meeting denied Appellants due process, and was fundamentally unfair; (4) that the Commission erred in approving the Application despite the failure of the project to comply with the “phasing and aggregation” requirements of the MCC for reserved outparcels; and (5) that the Commission erred in approving the Application despite the failure of the project to comply with, and the project’s inconsistency with, the Lower Keys Livable CommuniKeys Plan (“CommuniKeys Plan”).
The Issue Whether Respondents, Housing Authority of Flagler County and Chris Beyrer, Executive Director of the Housing Authority of Flagler County (collectively, the Authority); and Advantage Realty and Management, Inc. and Dymitri Belkin (collectively, Advantage), discriminated against Petitioner Jennifer Nichole King (Petitioner) based on her race by engaging in discriminatory terms and conditions, discriminatory statements, and steering, in violation of the Florida Fair Housing Act, chapter 760, Florida Statutes.
Findings Of Fact Petitioner is an African-American female who is a participant in the Authority’s Section 8 Housing Choice Voucher Program (Section 8 Program). On April 8, 2013, Petitioner moved from the Pinellas County Housing Authority’s Section 8 Program to the Authority’s Section 8 Program. The Authority did not transfer Petitioner into its Section 8 Program, but rather administers Petitioner’s Section 8 voucher for the Pinellas County’s Housing Authority in accordance with the federal Housing and Urban Development (HUD) regulations. The essence of Petitioner’s claim against the Authority is that, because of her race, the Authority, and its executive director, Chris Beyer, steered her away from homes in predominately white areas and told her she needed to look for homes in the “projects.” According to Petitioner, when she inquired about certain homes in nicer, predominantly white areas, Chris Beyer told her that people like her did not qualify for that type of housing. She also suggested that, because of discrimination based on her race, the Authority allowed Advantage, and/or the owners of the housing units that she rented under the Section 8 Program, to continue to receive rent and raise rental rates, even though the Authority knew that repairs required for habitability were not being made. The evidence, as outlined in the Findings of Fact below, does not support Petitioner’s claims against the Authority. During her orientation process for Section 8 services in Flagler County, Petitioner completed the Authority’s voucher briefing process, which included both an oral briefing and an information packet. The subjects covered by the briefing information and documentation included family and owner obligations and responsibilities; the housing selection process; a list of the Authority’s resources for locating housing, which included areas outside of poverty or minority concentrated areas; the Authority’s process for determining the amount of housing assistance payment for the family and maximum rent; and a list of participating realtors that manage properties for various owners participating in the Section 8 Program. After Petitioner completed the voucher briefing process, on April 18, 2013, the Authority issued Petitioner a Housing Choice Voucher. In July 2013, Petitioner independently, and voluntarily, located a potential rental unit at 49 Raintree Place, Palm Coast, Florida 32164 (Raintree Place unit), and submitted a Request for Tenancy Approval for this unit to the Authority, along with a copy of the proposed dwelling lease for the unit. The Raintree Place unit was a four bedroom, detached single-family home constructed in 2006. The proposed rent for the unit was $1,000.00 per month, with a required security deposit of $1,500.00. The Authority inspected the unit, determined that it passed the housing quality standards, and that the rent was reasonable. The Authority then approved the unit and executed a Housing Assistance Payment (HAP) contract with the owner, or owner’s agent, to pay housing assistance to the owner on behalf of Petitioner. On May 29, 2014, the owner of the Raintree Place unit filed an eviction action against Petitioner for nonpayment of rent. At a subsequent mediation, the parties to the eviction action entered a stipulation agreement on July 2, 2014, which required Petitioner, among other things, to vacate the unit by July 31, 2014. The stipulation agreement also provided that if Petitioner timely performed all of the terms and conditions of the stipulation agreement, then the owner agreed to dismiss the eviction case. On July 31, 2014, Petitioner timely vacated the Raintree Place unit as agreed, thereby avoiding a judgment for possession against her. Thereafter, on August 6, 2014, the Authority issued Petitioner a new Housing Choice Voucher to locate another rental unit. In August 2014, Petitioner independently, and voluntarily, located another potential unit located at 92 Ulysses Trail, Palm Coast, Florida 32164 (Ulysses Trail unit). Petitioner submitted a Request for Tenancy Approval for this unit to the Authority, along with a copy of the proposed dwelling lease. This unit was a four bedroom, detached single- family home constructed in 2002. The proposed rent for the unit was $1,200.00 per month, and the security deposit was $1,500.00. The Ulysses Trail unit was owned by Serghei Potorac. Mr. Potorac hired Advantage to manage the unit. Advantage managed the Ulysses Trail unit until September 6, 2017. The Authority inspected the Ulysses Trail unit and determined that it passed the housing quality standards and that the proposed rent was reasonable. The Authority then approved the unit and executed a HAP contract with the owner, or the owner’s agent, Advantage, to pay housing assistance to the owner on behalf of Petitioner. Petitioner and her family moved into the Ulysses Trail unit on September 1, 2014. During Petitioner’s tenancy, the owner of the Ulysses Trail unit received various notices for city code violations because of Petitioner’s failure to maintain the property in accordance with local city codes or ordinances. The alleged violations included overgrown lawn, failing to screen outside trash containers, and accumulation of trash on the property. As a result, the city assessed fines against the owner totaling over $800.00. On July 8, 2015, Advantage sent Petitioner a seven-day notice to cure, demanding that she pay the outstanding fines. Petitioner ultimately either corrected, or agreed to correct, the violations. As a result, the city waived the outstanding fines. After conferring with the owner, Petitioner and Advantage advised the Authority that the owner would not proceed against Petitioner. On July 13, 2015, the Authority conducted an annual inspection of the Ulysses Trail unit. The unit passed the inspection but there were some issues that the Authority felt needed to be addressed. Therefore, on July 13, 2015, Robert Beyrer, the Petitioner’s housing counselor at the Authority, sent Advantage an email regarding those issues. The next year, on July 12, 2016, the Authority conducted its next annual inspection of the Ulysses Trail unit. Because of some noted deficiencies, the unit did not initially pass inspection. The Authority sent correspondence to Advantage detailing the deficiencies that needed correction by August 12, 2016. Thereafter, Advantage provided the Authority with an invoice from VK Services showing that the deficiencies had been timely corrected. During the time period from July 2015 through October 2016, the Authority received copies of at least four three-day notices that Advantage had delivered to Petitioner for failing to timely pay rent. With respect to a three-day notice delivered to Petitioner on October 11, 2016, the owner subsequently filed an eviction action on October 20, 2016. During a court-ordered mediation, the parties entered into a Stipulation Agreement dated November 10, 2016. When Petitioner failed to comply with the November 10, 2016, Stipulation Agreement, Advantage filed an affidavit on February 2, 2017, on behalf of the owner, seeking a judgment for possession. That same day, without advising the Authority of the ongoing eviction action, Petitioner asked the Authority to conduct a special inspection of the Ulysses Trail unit. During the Authority’s inspection, the Authority found that the unit failed the inspection as a result of various deficiencies attributed to both the owner and Petitioner. The next day, on February 3, 2017, the court entered a final judgment for possession against Petitioner, and the court clerk issued a writ of possession. In response, Petitioner filed a motion to stay the execution of the writ, claiming, among other things, that Advantage failed to repair items as agreed in the November 10, 2016, Stipulation Agreement. In the meantime, the unit was re-inspected by the Authority on February 27, 2017, and the inspector found that some of the deficiencies had been addressed but there remained some that still needed to be corrected. On March 14, 2017, the Authority did a final inspection of the unit and determined that the remaining deficiencies had been addressed by both Advantage and Petitioner. Following two hearings on Petitioner’s motion in the eviction case, the court granted Petitioner’s motion to stay and vacated the final judgment. The court also reduced Petitioner’s portion of the rent due for the months of January and February 2017 based on its findings regarding the outstanding repairs. Further court orders reflect that Advantage ultimately addressed the disputed repairs and that Petitioner was ordered to pay full rent for the months of March and April 2017. The Authority was not a party and did not appear in the eviction proceedings. Thereafter, the owner gave Petitioner notice and advised the Authority that Petitioner’s lease would not be renewed, and that Petitioner would need to vacate the unit by August 31, 2017. The Authority subsequently sent correspondences to Petitioner explaining what she needed to do in order to be eligible to move to another location with continued housing assistance from the Authority. Petitioner timely vacated the Ulysses Trail unit and was issued a new voucher by the Authority on September 1, 2017, that could be used for a new rental unit. On October 13, 2017, Petitioner sent Robert Beyrer an email stating: Good Morning, Can you email the list of realtors that you have. I misplaced ours with all the moving about. Also I am going to need to request an[] extension of my voucher. Do we need to sign anything? Thank, Jen King In response, Robert Beyrer sent Petitioner another copy of the list of participating realtors in Flagler County previously provided to her by the Authority during her initial voucher briefing. The Authority, through Robert Beyrer, also granted Petitioner’s request for an extension of her voucher until December 1, 2017. On October 30, 2017, Petitioner sent Robert Beyrer another email advising that she was having difficulty finding another unit. By email, Robert Beyrer responded by further extending the expiration date of her voucher until December 31, 2017, and counseling her on various sources where she might find available units, stating: There are rentals out there. I am not sure who you are speaking with. I would continue to contact the landlords on the participating realtors list, check the local newspaper weekly, and check Zillow.com for reputable property management companies. We have been leasing people up with your voucher size in your price range. I will continue to keep my eyes open for you! Petitioner independently and voluntarily located a potential rental unit located at 10 Pier Lane, Palm Coast, Florida 32164 (Pier Lane unit) and, on December 27, 2017, submitted a Request for Tenancy Approval for this unit to the Authority, along with a copy of the proposed dwelling lease for the unit. The Authority inspected the Pier Lane unit and determined that it passed the housing quality standards and that the proposed rent was reasonable. The Authority then approved the unit and executed a HAP contract with the owner, or owner’s agent, to pay housing assistance to the owner on Petitioner’s behalf. On February 1, 2018, Petitioner moved into the Pier Lane unit. At the time of the final hearing, Petitioner was residing at the Pier Lane unit and the Authority was paying HAP payments to the owner on behalf of Petitioner under a HAP Contract with the owner. At the hearing, Petitioner maintained that the crux of her housing discrimination complaint was actually based on racially discriminatory statements allegedly made to her by Chris Beyrer. Petitioner alleged that Chris Beyrer said to her, among other things, “You cannot live by the canals; they do not rent to people like you.” Petitioner testified that she took Chris Beyrer’s statements to mean that she could not rent a unit by the canals because they do not rent to black people or people of color. Petitioner admitted, however, that Chris Beyrer never referenced or otherwise indicated that race was the underlying reason or motive when he made the alleged statements. Chris Beyrer denied making the alleged discriminatory statements attributed to her by Petitioner, or any other racially discriminatory statements. Ms. Beyer explained that any housing suggestions to Petitioner would have been on the type of unit Petitioner could afford to rent based on the amount of her reported household income and rental subsidy. Ms. Beyer’s testimony was credible and is accepted. Rather than showing racial discrimination against Petitioner in the Authority’s administration of the Section 8 Program, the evidence showed that, as a Section 8 participant in Flagler County, Petitioner was and is free to locate or choose an eligible rental unit anywhere in the Authority’s jurisdiction and submit the proposed rental unit to the Authority for approval. Further, at the hearing, Petitioner withdrew any claim that Advantage had unlawfully discriminated against her because of her race by failing to make requested repairs or by providing false repair records for the Ulysses Trail unit to the Authority. Specifically, Petitioner stated at the hearing that she did not believe Advantage had engaged in any discriminatory conduct towards her, and was rescinding her housing discrimination complaint against Advantage. Nevertheless, near the close of the hearing, one of Advantage’s witnesses, a repairman from VK Services, provided brief testimony confirming that he had personally made the repairs at the Ulysses Trail unit, as indicated in the various invoices provided by Advantage to the Authority. The testimony is credited. Finally, despite Petitioner’s claims that the Authority also discriminated against her by allowing Advantage to raise rents and continuing to pay HAP to the owner during the years of her tenancy at the Ulysses Trail unit while unaddressed deficiencies existed, Petitioner admitted that she voluntarily chose to accept the owner’s proposed rental increases and repeatedly renewed her lease with the owner. The evidence further showed that Petitioner was always free under the Section 8 Program to reject lease rental increases and relocate to a new unit of her choice with continued housing assistance from the Authority. In sum, the evidence does not support Petitioner’s claim that, because of racial discrimination, the Authority steered her to only certain rental units, that the Authority allowed rent increases despite lack of repairs, that there were discriminatory statements made against her, or that Advantage was complicit in the alleged discrimination.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of law, it is RECOMMENDED that the Florida Commission on Human Relations enter a final order dismissing the Petition and Complaint. DONE AND ENTERED this 30th day of August, 2018, in Tallahassee, Leon County, Florida. S JAMES H. PETERSON, 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 30th day of August, 2018.
The Issue Appellant raises three issues on appeal: (1) whether the Commission departed from the essential requirements of the law by determining that VOF's proposed swimming pool is not part of a "resort hotel"; (2) whether the Commission departed from the essential requirements of the law by determining that VOF's proposed swimming pool is an inappropriate use in the Destination Resort (DR) zoning district; and (3) whether the Commission denied VOF due process by allowing Intervenors to present evidence at the Commission hearing on July 13, 2011. For the reasons expressed below, the Commission did not depart from the essential requirements of the law when it rendered Resolution No. P29-11, and it did not deny VOF due process during its hearing.
