The Issue The issue to be resolved in this proceeding concerns whether Jim Vandergrifft, the Respondent, as mayor of the City of New Smyrna Beach, voted on a matter which inured to his special private gain in violation of Section 112.3143(3), Florida Statutes, by voting to postpone a vote on Proposed City Ordinance 43-05. If enacted, the ordinance would have established an "historic architecture overlay district" by amendment to local land use regulations.
Findings Of Fact Jim Vandergrifft was the Mayor of New Smyrna Beach at times pertinent to this case. He had been mayor from 1995 through 2007, and prior to that time served as a city commissioner from 1988 to 1995. He is subject to the requirements of Part III, Chapter 112, Florida Statutes, the Code of Ethics for Public Officers and Employees. A proposed city ordinance came before the New Smyrna Beach City Commission for a vote, as proposed ordinance number 43-05. The vote was to be taken on February 14, 2006. The Respondent voted to postpone enactment of the ordinance which was designed to amend local land development regulations by establishing an historic architectural overlay district. It applied to a certain described territory within the City of New Smyrna Beach. The purpose of the ordinance was to ensure that new construction and renovations of current structures within that historic overlay district would adhere to strict building guidelines intended to maintain the historic character of the area, by following historic design standards of the City of New Smyrna Beach. The guidelines concerning building and remodeling structures in the historic district of New Smyrna Beach were voluntary prior to the proposal of ordinance 43-05. The ordinance was never enacted, however, so the guidelines for building and remodeling in the subject territory in the City of New Smyrna Beach remained voluntary. At the time of the vote on February 14, 2006, the Respondent had a pending contract for the purchase of property located at 115 Washington Street, New Smyrna Beach, Florida. The property was located in the area to be affected by the above-referenced proposed ordinance. At the time of the vote on February 14, 2006, the property was under contract and was not actually in the title ownership of the Respondent. He closed his purchase of the property and completed it on February 15, 2006. At the time of the purchase a dilapidated 15-room hotel was located on the property. The hotel was in very bad condition. The roof was in the process of collapse and it was dangerous to walk on the second floor for risk of falling through. The wiring was antiquated and in poor condition, and the building had no central heating system. At the time of the vote on February 14, 2006, the Respondent owned his personal residence, also located in the area affected by the ordinance. Because his residence was new it would not have affected by the subject architectural standards ordinance. Mr. Vandergrifft disclosed that he lived in his residence and owned other property in the district, encompassed by ordinance 43-05, at the city commission meeting of February 14, 2006. The Respondent did not abstain from voting on that date, but publicly disclosed that he lived downtown and owned other properties in the affected area. The Respondent had sought advice from the city attorney prior to the vote on February 14, 2006, concerning whether he would have a voting conflict if he voted on the ordinance. He told the city attorney that he lived in and had other property in the district to which the ordinance would apply if enacted. He did not actually inform the city attorney of his impending purchase of the property located at 115 Washington Street (the hotel site). The city attorney advised him that as an elected official he had an obligation to vote on the ordinance. According to the city attorney's testimony the Respondent indicated that he lived downtown and had other property in the area of the ordinance's applicability and inquired whether he could vote on the ordinance. Based on his understanding of the district covered by the ordinance, the city attorney advised Mr. Vandergrifft that he could vote on the matter. The city attorney reasoned that under existing law, Mr. Vandergrifft's ownership interest was less than one percent of the properties being affected by the vote, therefore Mr. Vandergrifft could vote on the ordinance. According to the city attorney's testimony: ". . . practically every land use vote that a member of the governing body makes could affect that person's property one way or the other. But, they're . . . required to live in the city to qualify for office . . . so obviously their votes affect their property. The question is whether it is a special private gain." The proposed ordinance 43-05 would have affected 522 parcels of property within its territorial area. If the Respondent had an ownership interest in two properties, his residence and the property at 115 Washington Street (the hotel) his interest would only constitute .37 percent of the total parcels affected by the ordinance, obviously less than one percent of the total parcels affected. In fact, as of the date the postponement vote on the ordinance was taken, he did not actually own the hotel property. It was under contract to be sold to the Respondent but the closing and final performance of the contract did not occur until the day after the city commission meeting at which the postponement was voted. In any event, Mr. Vandergrifft's ownership in the territorial area of the proposed ordinance amounted to less than one percent, at most, of the total affected parcels. Therefore, in the opinion of the city attorney a voting conflict did not exist. Although the Respondent did not inform the city attorney of the impending purchase of that specific piece of property, he did inform him that he owned his residence and "other property" in the area affected by the proposed ordinance. The city attorney would not have changed his legal advice as to whether the Respondent could vote on the ordinance if he had known of the specific impending purchase of the property at 115 Washington Street. The Respondent purchased the property at 115 Washington Street with the intention of renovating it. After having architects examine it, however, including a renovation architect, and having it inspected by members of the city staff, it was determined by all concerned, including the city building inspector, that the property should be demolished. It was deemed beyond repair and a liability. The renovation architect believed that there was no feasible way to renovate the building and so the Respondent requested approval to demolish the structure. Ultimately approval was granted by the city and the old hotel structure has now been demolished, as of October 2007, approximately one and one-half years after the property was purchased by the Respondent. The demolition of the hotel building was accomplished in accordance with the "Historic Building Demolition Ordinance." Pursuant to that ordinance the hotel was a "contributing structure" in the National Register Historic District. If the subject proposed ordinance had been enacted, demolition of the hotel building would have still have been possible. There were no differences in the actual approval process of the Historic Preservation Commission with respect to the proposed demolition either with or without enactment of the proposed ordinance at issue. Several conditions were attached to approval of the demolition of the hotel building, as allowed for by the "Historic Building Demolition Ordinance." The Respondent agreed to these conditions, one of which was that a site plan for reconstruction be completed and approved, based upon historic overlays. The procedures voluntarily followed by the Respondent in demolition of the hotel, and obtaining the site plan approval by the Historic Preservation Board and the City Building Department, although pursuant to non-mandatory guidelines, were essentially the same as they would have been if the mandatory standards of the proposed ordinance had been enacted. A Real Estate Broker, Mr. Floyd Fulford, established that, based on Multiple Listing Service Reports, four properties in the district covered by the proposed ordinance, were sold during February of 2006. However, property sold by owners without the use of a realtor are typically not shown in the multiple listing service, a service to which realtors have access. According to the Volusia County Property Appraiser's data base, as described by Mr. Fulford, 166 properties were sold in the entire 32168 zip code area, which is the mainland side of the City of New Smyrna Beach. There may have been other sales in February 2006 occurring in the beachside area of New Smyrna Beach. Mr. Fulford was not aware of whether or not these properties were located in the Historic Overlay District at issue.
Recommendation Having considered the foregoing Findings of Fact, Conclusions of Law, the evidence of record, the candor and demeanor of the witnesses, and the pleadings and the arguments of the parties, it is, therefore, RECOMMENDED that a final order be entered by the Florida Commission on Ethics finding that the Respondent, Jim Vandergrifft, did not violate Section 112.3143(3)(a), Florida Statutes. DONE AND ENTERED this 17th day of November, 2008, in Tallahassee, Leon County, Florida. S P. MICHAEL RUFF Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 17th day of November, 2008. COPIES FURNISHED: Kay Starling, Agency Clerk Florida Commission on Ethics 3600 Macclay Boulevard, South Post Office Drawer 15709 Tallahassee, Florida 32317-5709 Phillip C. Claypool, Executive Director Florida Commission on Ethics 3600 Macclay Boulevard, South Post Office Drawer 15709 Tallahassee, Florida 32317-5709 Jennifer M. Erlinger, Esquire James H. Peterson, III, Esquire Advocate for the Commission on Ethics Office of the Attorney General The Capitol, Plaza Level 01 Tallahassee, Florida 32399-1050 Mark Herron, Esquire Messer, Caparello & Self, P.A. 2618 Centennial Place Post Office Box 15579 Tallahassee, Florida 32317
The Issue The issue for determination is whether Respondent discriminated against Petitioner in violation of the Fair Housing Act by failing to make reasonable accommodations for Petitioner's handicap.
Findings Of Fact Mr. Botero has a Ph.D. in engineering. Due to a medical mishap, involving the administration of anesthesia, Mr. Botero suffers from narcolepsy. His narcolepsy is controlled by medication. Narcolepsy is a medical disorder which causes Mr. Botero to have sudden and uncontrollable, though brief, attacks of deep sleep, and he becomes unintelligible and unable to move. His condition gives him a warning before an attack occurs, and he has a small window period of time, approximately five to seven minutes, of reaction time. A narcolepsy attack for him lasts approximately three to four minutes. Mr. Botero is handicapped. Even though Mr. Botero suffers from narcolepsy, he has been licensed by the State of Florida to drive a vehicle and has a handicap parking permit. If his disorder presents itself when he is operating a vehicle, the small window period of reaction time allows him to maneuver his vehicle to a safe spot and park before the narcolepsy attack occurs.1 If he is not driving, but is parked when his disorder presents itself, Mr. Botero needs additional space to exit his vehicle or for someone to remove him from his vehicle. Calusa Club was constructed in 1980 and consists of several condominium buildings. Each condominium building has a homeowner’s association and is also referred to as a community. The developer of Calusa Club assigned reserved parking spaces for each condominium unit. As a result, each condominium owner is assigned a reserved parking space. Some handicap parking spaces are reserved and some are available on a first- come, first-serve basis. Only testimony, not written documentation, was presented at hearing evidencing the assignment of reserved parking spaces. The undersigned finds this testimony credible. Calusa Club is managed by Miami Management, Inc. Miami Management does not have the authority to change the reserved parking spaces assigned to condominium units, including reserved handicapped parking spaces, or to add additional reserved parking spaces for a condominium unit. Only testimony, not written documentation, was presented at hearing evidencing the assignment of reserved parking spaces. The undersigned finds this testimony credible. In 1997, Mr. Botero purchased a condominium unit at Calusa Club, unit number E-201. Mr. Botero's condominium association is Calusa Club Condominium D North Association, Inc. His assigned reserved parking space was number 9 (Reserved Space Number 9). At that time, he informed Miami Management, through its property manager for Calusa Club, Kathie Roder,2 that he was handicapped and needed a handicapped parking space close to his community. No reserved handicapped parking spaces were located at Mr. Botero's community. Ms. Roder informed Mr. Botero that no reserved handicapped parking space was available in his community; however, she gave Mr. Botero a non-reserved parking space in his community. Based on the testimony of the Miami Management's current assistant property manager for Calusa Club, Michelle Lopez, which is found to be credible, an inference is made that the parking space given to Mr. Botero by Ms. Roder was a guest parking space. To Mr. Botero, the parking space given to him was too small dimensionally to accommodate his condition. When he opened the door on the driver's side of his vehicle, Mr. Botero was unable to open the door fully and, therefore, the parking space given to him failed to provide sufficient space dimensionally for him to exit his vehicle or for someone to remove him from his vehicle. He subsequently requested another parking space.3 Mr. Botero was given another non-reserved parking space, but he again complained that it too was too small dimensionally for the same reason as before. Based on the testimony of Ms. Lopez, which is found to be credible, an inference is made that the second parking space given to Mr. Botero by Ms. Roder was a guest parking space. After complaining a third time,4 Ms. Roder moved Mr. Botero's Reserved Space Number 9 next to the access walkway to his condominium building, which is the current space complained of. Reserved Space Number 9 measures 78 inches in width; immediately to its left is another reserved space assigned to another condominium unit; immediately to its right is the access walkway to Mr. Botero's condominium building; and immediately to the right of the access walkway is a guest parking space. The width of the Reserved Space Number 9 is the same width of the other parking spaces of his condominium building. Mr. Botero complains that Reserved Space Number 9, even though it is located next to the access walkway to his unit, is also too small dimensionally to accommodate his condition in that, if an attack occurs in the parking space and if a vehicle is in the parking space next to him, insufficient space exists for him to exit his vehicle or for someone to remove him from his vehicle. Furthermore, Mr. Botero is unable to back into Reserved Space Number 9 because he is fearful of hitting another vehicle, an object, or someone else if he has a narcolepsy attack while he is backing-up. If he could back-in, the position of his vehicle would give him sufficient space to exit his vehicle or for someone to remove him because the driver's side of his vehicle would be next to the access walkway. Moreover, Mr. Botero would back into Reserved Space Number 9 if it was larger dimensionally because he would then not be fearful of hitting another vehicle, an object, or someone else. After complaining to Ms. Roder, regarding the re- location of Reserved Space Number 9, she advised him in a letter dated May 5, 2004, among other things, that Calusa Club had provided him a reasonable accommodation and that nothing else could be done. The letter provided, in pertinent part, as follows: Please be advised that we have contacted our attorney regarding providing you with a Handicapped parking place. We are sorry to report that because our community was built in the early 1980's, we are only required to provide you with "reasonable accommodation". We have done so by moving your reserved space #9 next to your access walkway. We would not be able to place a handicapped space anywhere near that location. No evidence was presented to demonstrate that Calusa Club incurred any expense moving Reserved Space Number 9 to the guest parking space to the left of the access walkway. Therefore, an inference is drawn and a finding is made that Calusa Club incurred no expense moving Reserved Space Number 9 to the guest parking space to the left of the access walkway. No reserved handicapped parking space was or is available at Mr. Botero's community; they were and are all assigned. In order to widen Reserved Space Number 9, Miami Management would have to take away the reserved parking space assigned to the owner of another condominium unit. Ms. Lopez testified that Miami Management could not take away a reserved parking space assigned to the owner of another condominium unit. The undersigned finds her testimony to be credible. Ms. Lopez also testified that Miami Management could not "change" a reserved parking space assigned to the owner of a condominium unit. She later testified that Miami Management could not "take away" a reserved parking space assigned to the owner of a condominium unit. No documentation was presented at hearing evidencing Miami Management's lack of authority to "change" or to "take away" a reserved parking space. An inference is drawn and a finding is made that "change" and "take away" have identical meaning as used by Ms. Lopez. Mr. Botero has had narcolepsy attacks since residing at Calusa Club. His neighbors have had to remove him from his vehicle and park his vehicle in Reserved Space Number 9 for him. Around 2001, Mr. Botero deeded his condominium unit to his son, a college student. He and his son live together in the unit. Mr. Botero did not inform Calusa Club or his condominium association that he had deeded the condominium unit to his son. Mr. Botero continues to pay the maintenance and condominium association fees. Mr. Botero parks his vehicle in a guest space, while his son parks his (son's) vehicle in Reserved Space Number 9. Calusa Club learned of Mr. Botero's present arrangement with his son at hearing through Mr. Botero's testimony. Mr. Botero filed his complaint of discrimination under Florida's Fair Housing Act (Act) with the FCHR on about June 4, 2004.5
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Florida Commission on Human Relations enter a final order: Finding that Calusa Club Village, P.O.A., discriminated against Humberto Botero under Florida’s Fair Housing Act by failing and refusing to make a reasonable accommodation for his handicap; Ordering Calusa Club Village, P.O.A.,to cease the discriminatory practice; and Ordering Calusa Club Village, P.O.A., to move the reserved parking space of condominium unit number E-201 to the right of the access walkway of the condominium building. DONE AND ENTERED this 31st day of October, 2005, in Tallahassee, Leon County, Florida. S ERROL H. POWELL 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 31st day of October, 2005.
The Issue The issue is whether Respondent is guilty of housing discrimination against Respondent based on her race and disabilities, in violation of the Florida Fair Housing Act, Sections 760.20-760.37, Florida Statutes.
Findings Of Fact Petitioner is African-American, although the record fails to disclose any physical or mental disability. Due to her pending eviction at an apartment complex known as the Tennis Club in Fort Lauderdale, Petitioner visited the Venice Cove apartment complex, also in Fort Lauderdale, in the summer of 2002. Deciding that she liked Venice Cove, Petitioner applied for a one bedroom apartment on September 16, 2002. In accordance with its customary practice, Respondent obtained a credit report and learned that Petitioner owed a utility payment, possibly a cable television box. Respondent advised Petitioner that she would have to satisfy this debt to rent an apartment, and Petitioner did so. At some point, Petitioner decided that she wanted a two bedroom/two bathroom apartment, and Respondent tentatively assigned her a unit of this type, pending final approval of her application to lease. Petitioner changed her preferences for type of apartment several times. Respondent was able to accommodate immediately all but one of these preferences. In early December, Petitioner mentioned to Respondent's representative that she was being evicted from the Tennis Club. This is the first time that Petitioner disclosed any eviction to Respondent. Examining the file, Respondent's representative realized that she had failed to order the more thorough credit report that Respondent had been using since November 2002. This report would reveal evictions, among other things. Respondent's representative ordered the more thorough credit report, which revealed that Respondent had been evicted three times. Respondent's policy precluded renting to a person with this rental history, and Respondent's representative promptly informed Petitioner that she was denying Petitioner's application. There is no evidence whatsoever that Respondent denied Petitioner's application on the basis of Petitioner's race or any disability from which she may suffer.
Recommendation It is RECOMMENDED that the Florida Commission on Human Relations enter a final order dismissing Petitioner's Housing Discrimination Complaint. DONE AND ENTERED this 29th day of October, 2004, in Tallahassee, Leon County, Florida. S ROBERT E. MEALE 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 29th day of October, 2004. COPIES FURNISHED: Cecil Howard, General Counsel Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301 Denise Crawford, Agency Clerk Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301 Elvira Williams 1515 Northwest 2nd Avenue Fort Lauderdale, Florida 33311 Kristine A. Sawyers Law Offices of Lowenhaupt & Sawyers 7765 Southwest 87th Avenue Suite 201 Miami, Florida 33173
The Issue The issue in this case is whether Respondent, Center Lake Owner's Association, Inc. ("Center Lake"), discriminated against Petitioner, James Schweim ("Schweim"), on the basis of his purported disability in violation of the Florida Fair Housing Act.
Findings Of Fact Schweim is a white male who at all times material hereto resided at Center Lake. Schweim provided some evidence of his medical condition at final hearing, but did not affirmatively establish a disability, per se. Notwithstanding that fact, a review of the facts will be made concerning the merits of Schweim's claim. Center Lake is the homeowner's association for the Center Lake subdivision located in Manatee County. The association has been in existence since 1986. The subdivision is subject to various deed restrictions as set forth in the Declaration of Covenants, Conditions and Restrictions for Centre1/ Lake, recorded at O.R. Book 1168, Page 1508, in the public records of Manatee County, Florida. Of significance to this proceeding, Section 11 of the deed restrictions is relevant. Section 11, as it will be referred to herein, states in whole: Vehicles. No vehicle of a subdivision resident shall be parked in the subdivision except on a paved driveway, or inside a garage. No vehicle shall at anytime be parked on grass or other vegetation. No trucks or vehicles which are used for commercial purposes, other than those present on business, nor any trailers, may be parked in the subdivision unless inside a garage and concealed from public view. Boats, boat trailers, campers, vans, motorcycles and other recreational vehicles and any vehicle not in operable condition or validly licensed shall be permitted in the subdivision only if parked inside a garage and concealed from public view. No maintenance or repair of any boat or vehicle shall be permitted upon any Lot except within an enclosed garage. Beginning some time in 2004, Schweim and Center Lake commenced a dispute concerning Schweim's alleged violation of the provisions of Section 11. Specifically, Schweim was accused of parking a recreational vehicle (the "RV") on his property in violation of the deed restriction. There is no dispute between the parties that Schweim owns a 23-foot recreational vehicle, which is kept on his property (at 3550 65th Avenue Circle East). As a result of the 2004 dispute, the parties entered into a Settlement Stipulation signed by Center Lake and its attorneys on December 6 and 7, 2004, respectively. Schweim's attorney signed the document on November 24, 2004; Schweim and his wife signed on that same date. The Settlement Stipulation was admitted into evidence at the final hearing. Schweim asserted that the version of the Settlement Stipulation entered into evidence was not the version he signed, but the most persuasive evidence is that it is the same version. Schweim does not agree that all the terms and conditions in the Settlement Stipulation were extant at the time he signed, but he could not produce a copy of any other version of the document for comparison. In the Settlement Stipulation, Schweim agreed to move the RV from his property and not to bring it onto the property except for loading or unloading. In exchange, Center Lake agreed to voluntarily dismiss its then-pending lawsuit against Schweim. Despite the resolution of the aforementioned lawsuit, Schweim did not remove his RV from his property. Instead, Schweim kept the RV on the property and, ultimately, filed a discrimination action against Center Lake because of their efforts to have him remove the RV. That action is the subject of the instant proceeding. Schweim does not dispute that he is keeping the RV on his property in violation of the deed restrictions. Rather, Schweim suggests that he should be allowed to do so on three bases: One, that he is proposing a fence on his property that will cover the RV and make it hidden from view from the street; Two, that there are other residents of the subdivision who are also in violation of the deed restrictions; and, three, that he is disabled and needs the RV parked on his property to accommodate his disability. As to his first reason, Schweim's proposal is simply that, a proposal. There is no evidence that the fence proposed by Schweim would satisfy the requirements of the deed restriction. Further, Center Lake has no confidence, based on its history with Schweim, that he would follow through with the proposal. There is some evidence that other residents in the area appear to be in violation of the deed restrictions. However, there was no evidence presented at final hearing that those residents had refused to move their vehicles upon filing of a complaint. That is, the homeowner's association tends not to take any action unless a homeowner files a formal complaint concerning a violation. In Schweim's case, several complaints were filed as to his RV. There was also some discussion at final hearing as to the appropriate licensure for the RV. Any vehicle not properly licensed is not allowed to be parked in the subdivision based on the deed restrictions. However, Schweim says the license is currently up-to-date and that is no longer an issue. Concerning Schweim's disability, he presented the following facts: At age 23, Schweim suffered a gunshot wound to his abdomen, causing long-term damage; In 1991, Schweim had a ruptured disc; Surgical fusion of his disc was performed in 2002 and again in 2004; In 2009, Schweim underwent a lumbar fusion. As a result of those events, Schweim has what he describes as an acute medical condition limiting his ambulatory abilities. At the final hearing, Schweim negotiated the hearing room slowly and with some difficulty. Judy Schweim, a nurse, testified that she transports Schweim to doctor's appointments and other medical situations. At times, Schweim's back will "go out," and she is responsible for getting him to medical treatment as soon as possible. Schweim produced evidence that he has received a Florida parking permit for disabled persons. The application for the permit indicates his condition as "severe limitation in a person's ability to walk due to an arthritic, neurological, or orthopedic condition." A doctor's order dated May 6, 2004, indicates that it is "medically necessary for [Schweim] to have ready access to a walk-in vehicle to accommodate his disability." An August 19, 2010, memo from Dr. Tally at the Neuro Spinal Associates, P.A., and a September 27, 2010, memo from the Dolphin Medical Group, state essentially the same thing. None of the hearsay documents were sufficient to establish a disability, per se. Schweim says that his disability makes it necessary for him to have the RV parked in his yard so that, when necessary, he can use it to get medical treatment. Schweim says that when his back goes out, he needs a vehicle that he can walk into while standing up. He cannot sit down into an automobile at those times. The incidences of Schweim's debilitating back pain only occur every couple of years. When not experiencing that pain, Schweim is able to drive his red car, described by neighbors as a "hot rod," without any problem. Schweim drove a motorcycle for years, but says he has not driven it for quite some time. Schweim said that an ambulance was not a viable option for him when he has the back pain, because the ambulance will not take him where he needs to go, i.e., straight to a particular doctor, rather than the emergency room. There is no competent evidence to support that contention. Schweim candidly admits that the only time he needs the RV is when he has an episode with his back and that such episodes are few and far between. And while it is true that an episode may occur at any time, there is insufficient evidence to support Schweim's claim that the RV is integral to him receiving prompt and appropriate medical care.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a final order be entered by the Florida Commission on Human Relations dismissing the Petition for Relief filed by Petitioner, James Schweim, in its entirety. DONE AND ENTERED this 7th day of July, 2011, in Tallahassee, Leon County, Florida. R. BRUCE MCKIBBEN 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 7th day of July, 2011.
The Issue Whether Petitioner was subjected to housing discrimination by Respondent based on Petitioner's race, African-American, in violation of the Florida Fair Housing Act.
Findings Of Fact Petitioner Miguel Johnson is an African-American male and, therefore, belongs to a class of persons protected from discrimination under the Florida Fair Housing Act, Sections 760.20 through 760.37, Florida Statutes (2009). He filed a complaint for housing discrimination against Riviera Towers at 6896 Abbott Avenue in Miami Beach. Respondent Riviera Terrace Apartments (Riviera Terrace) was apparently erroneously named Riviera Towers in the complaint and in the style of this case. Notice of that error was given by the owner, Arie Markowitz, and in the absence of any indication that Riviera Terrace is a corporate entity, Mr. Markowitz is also added as a Respondent. The style has been corrected to reflect these corrections. Riviera Terrace, 6890 Abbott Avenue, Miami Beach, Florida, 33141, is a 20-unit apartment complex. Mr. Johnson thought that the complex has 22 units, but there is no evidence to support his thinking. Contrary to his request, the undersigned has no independent investigative powers and must accept the evidence in the record. According to his records, Mr. Johnson, on March 17, 2009, telephoned a number he saw on a "For Rent" sign at Riviera Terrace. A woman identified as Diana Miteff answered the telephone. Mr. Johnson said Ms. Miteff identified herself as the manager of the complex. The telephone records indicate that the conversation lasted one minute. Mr. Johnson testified that Ms. Miteff told him to call back later. Mr. Johnson telephoned Ms. Miteff again on March 21, 2009, and his records indicate that they talked for 8 minutes. Mr. Johnson testified that Ms. Miteff told him about the security deposit, that the rent for a one bedroom apartment was $900 a month, and that she had some vacant efficiencies. Mr. Johnson testified that a friend of his, Pedro Valdes, lives in the same complex and that together they met with Ms. Miteff the day after Mr. Johnson talked to her on the telephone, and saw a vacant efficiency apartment. According to Mr. Johnson, Ms. Miteff told him, after seeing him, that there were no vacancies. Ayesha Azara, Mr. Johnson's wife, testified that she made another unsuccessful attempt to rent a unit in Riviera Terrace in May 2009. She had no information in March 2008, except to say tht Ms. Miteff claimed to be the manager and told her the building was for elderly people. Pedro Valdes testified that he lives in Riviera Towers and gave his address as 6896 Abbott Avenue. He said that the "For Rent" sign for Riviera Terrace is not always posted in front of the complex. Mr. Markowitz is the owner of Riviera Terrace at 6890 Abbott Avenue. He testified that he is also the manager and that Ms. Miteff is a tenant. He uses her telephone number on the "For Rent" sign because he does not speak Spanish. The apartments are government-subsidized Section 8 housing. The only vacant efficiency in March 2008 was a unit for which he already had a written lease, but the tenant could not move in until after a government-required inspection. He also testified that his tenants are not all Caucasians and not all elderly. Ms. Miteff confirmed that she has been a resident of Riviera Terrace for 20 years. She concedes that she told Mr. Johnson's wife that the people in the complex are very quiet and mostly old people. Mr. Johnson's claim of discrimination based on race is not supported by the evidence, which is contradictory with regard to the name and address of the property, and because there were no vacant apartments at Riviera Terrace in March 2008.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that: The Petition for Relief be dismissed. DONE AND ENTERED this 15th day of October, 2009, in Tallahassee, Leon County, Florida. S ELEANOR M. HUNTER 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 15th day of October, 2009. 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 Louis A. Supraski, Esquire Louis A. Supraski, P.A. 2450 Northeast Miami Gardens Drive 2nd Floor North Miami Beach, Florida 33180 Miguel Johnson 916 West 42nd Street, Apt. 9 Miami Beach, Florida 33140 Miguel Johnson C/O Robert Fox 1172 South Dixie Highway Coral Gables, Florida 33146 Diana Mittles Riviera Terrace Apartments 6896 Abott Avenue Miami Beach, Florida 33141
The Issue The issues to be determined in this appeal are whether the decision of the Community Development Board (Board) to approve Flexible Development Application FLD2017-07012 filed by Gulfview Lodging, LLP (Gulfview), cannot be sustained by substantial competent evidence before the Board, or that the decision of the Board departs from the essential requirements of law.
Findings Of Fact The 0.59-acre project site is located at the northeast corner of South Gulfview Boulevard and Fifth Street and wraps around the McDonald’s parking lot and Frenchy’s Beach Café (Frenchy’s) to the west. The project site includes two parcels owned by Gulfview, and 2,195.09 square feet of the South Gulfview Boulevard right-of-way, which will need to be vacated by the City. Gulfview’s proposal is to demolish all structures currently on the project site and build a seven-floor hotel with 150 units per acre, which would be 88 rooms if the City vacates the 2,195.09 feet of right-of-way. Gulfview’s application for development approval was filed with the City on July 28, 2017, including design plans. The subject property is zoned Tourist (T) District with an underlying Future Land Use Plan (FLUP) category of Resort Facilities High (RFH). The subject site is located in the Beach Walk district of Beach by Design.2/ The maximum permitted density for the site pursuant to Beach by Design is 150 units per acre. The application contemplates a subsequent vacation process for the 2,195.09 square feet of City right-of-way. On July 20, 2017, the City Council approved the allocation of up to 59 units from the Hotel Density Reserve under Beach by Design (Case No. HDA2017-04001) and adopted a resolution to the same effect (Res. No. 17-19). Preston’s attorney admitted that he attended the July 20, 2017, City Council hearing that resulted in the July 28, 2017, Hotel Density Reserve Development Agreement (Development Agreement) between Gulfview and the City. Preston’s attorney attended the July 20 City Council hearing on behalf of Frenchy’s, but conceded to the Board and at oral argument that Frenchy’s is located on the land owned by Preston, as trustee, and Preston is the sole shareholder of Frenchy’s. The Development Agreement was recorded in Book 19727, Page 2465-2503 of the Public Records of Pinellas County, Florida, on August 2, 2017. The Development Agreement includes Exhibit “B”-- the same set of design plans that were filed with Gulfview’s July 28, 2017, application for development approval. Section 6.2.4 of the Development Agreement specifically states: The overall number of proposed units density provided for by this Agreement (88 units) is contingent upon the proposed vacation of the 2,195.09 square feet of South Gulfview Boulevard right-of-way within the Beach Walk district. The City shall process a right-of- way vacation ordinance to vacate the 2,195.09 square feet of South Gulfview Blvd. right of way within the Beach Walk district conditioned upon submission of a complete set of building plans for construction of the improvements shown on Exhibit “B”. Regardless of whether or not the vacation is granted the maximum permitted density of the property may not exceed 150 units per acre. Gulfview’s application requires a Level Two approval. Under Section 4-206 of the Community Development Code, a Level Two approval requires mailing of a notice of application to owners of properties “within a 200-foot radius of the perimeter boundaries of the subject property.” The notice mailed by the City identifies both the north parcel and the south parcel by address and parcel number. The notice also describes the quasi-judicial public hearing process before the Board and ends with an invitation “to discuss any questions or concerns about the project and/or to better understand the proposal and review the site plan” with the assigned planner. The City Clerk mailed notice of Gulfview’s application to owners of parcels located within 200 feet of the two parcels identified in the notice, including Preston. Preston does not dispute receiving the notice. Section 4-206 of the Community Development Code also requires the posting of a sign on the “parcel proposed for development.” Preston does not dispute that the sign was posted. Preston objected that the mailed and posted notices did not reference the proposal to vacate 2,195.09 square feet of right-of-way. He argued that if he had known more than “a few days ago” when he received the Staff Report ahead of the October 17, 2017, Board meeting that the right-of-way was proposed to be vacated, he would have had expert witnesses at the hearing to give “an equal presentation” in response to Gulfview’s presentation. Preston requested a continuance citing lack of proper notice and insufficient time to prepare for the public hearing. Preston did not introduce any testimony or other evidence regarding the application. Preston’s primary objection to the project was vacation of the right-of-way and he wanted the opportunity to present witnesses regarding that issue. Vacating the right-of-way is a separate process and the hearing before the Board is not the proceeding in which the right-of-way vacation is decided. However, the substantial competent record evidence shows that Preston had actual notice as early as July 20, 2017, that the proposed project contemplated vacating 2,195.09 square feet of right-of-way. Preston’s other objection was that Gulfview’s design plans did not meet the requirements of Beach by Design’s Beach Walk District overlay. Preston argued to the Board that the hotel’s proposed design did not meet the redevelopment goals for addition of facilities and amenities generally described as areas for outdoor dining, outside cafes, and other seaside amenities.3/ However, although Preston had actual notice of the hotel design plans as early as July 20, 2017, he did not introduce any expert testimony or other evidence to support those objections. The Staff Report states that Beach by Design proposed to create a great beach front, known as “Beach Walk,” by relocating South Gulfview Boulevard from the existing right of way. Beach by Design recognized that the redevelopment and revitalization of the properties that front on South Gulfview were and, to a certain extent, still are generally constrained by several factors including small parcel sizes and the Coastal Construction Control Line. As a result, most of the motels and hotels which existed along the east side of South Gulfview would have limited opportunities for redevelopment even if Clearwater Beach were repositioned in the tourism market place. Beach by Design proposed to relocate South Gulfview to the west of its current alignment in order to achieve multiple purposes. First, it would create a drive with a real view of the Beach and the Gulf of Mexico. Second, it would allow the City to vacate the east 35 feet of the existing right of way in favor of the properties along the eastern frontage of existing South Gulfview as an incentive for appropriate redevelopment. Many of those existing properties would substantially benefit from an additional 35 feet of depth which could be used for the addition of facilities and amenities such as safe and comfortable areas for outdoor dining. The creation of Beach Walk and the realignment of South Gulfview Boulevard have all been realized. Several segments of the South Gulfview Boulevard have already been vacated and many of the properties along South Gulfview Boulevard have, in the years since the initial adoption of Beach by Design, been redeveloped with hotels. As noted, this proposal also includes a vacation of a portion of the South Gulfview Boulevard right-of-way which will facilitate the redevelopment of the subject site with a new hotel playing an important role in the ongoing renewal and revitalization of the Beach. Specifically, the vacation will allow for the location of an outdoor seating area providing a strong link between Beach Walk and the proposed hotel as supported by Beach by Design. Therefore, the proposal is consistent with this provision. (Emphasis added). The Staff Report concluded that the proposed project is consistent with applicable provisions of the Community Development Code, applicable components of the City’s Comprehensive Plan, the Beach Walk District of Beach by Design, and the Design Guidelines of Beach by Design. Mark Parry, Senior Planner with the City, testified that “the proposed number of units, 88, is contingent on vacation of that right-of- way,” and if the right-of-way is not later vacated, it “would knock out about eight units.” Mr. Parry also testified that the proposed project provides amenities and an outdoor seating area as specified by Beach by Design. Preston only conducted a very short cross-examination of Mr. Parry, despite having party status to do so. Sue Ann Murphy, an experienced land use planner, also testified that the proposed development complied with all applicable Community Development Code, Comprehensive Plan and Beach by Design requirements. The project architect, Istvan Peteranecz, AIA, was accepted by the Board as an expert. Mr. Peteranecz answered questions from Board members regarding the design of the proposed hotel’s main entrance, including the porte cochere and public seating area adjacent to the Beach Walk and immediately south of Frenchy’s. Preston did not cross- examine Ms. Murphy or Mr. Peteranecz, despite having party status to do so. Substantial competent evidence in the record supports the conclusion that the proposed project is consistent with applicable provisions of the Community Development Code, applicable components of the City’s Comprehensive Plan, the Beach Walk District of Beach by Design, and the Design Guidelines of Beach by Design. At the conclusion of the public hearing, the Board acknowledged Preston’s pending request for continuance and proceeded with discussion. After extensive discussion among the Board members, a motion was made and seconded for the Board “to approve case number FLD2017-07012 based on the evidence, the testimony presented, and the application, the staff report, and at today’s hearing, and to adopt the findings of fact and conclusions of law stated in the staff report with all of the conditions of approval, as listed.” The motion carried. On October 19, 2017, the City entered a Development Order memorializing the Board’s decision. The Development Order includes a Finding of Fact that “[t]he total lot area includes 2,195 square feet of the South Gulfview Boulevard right-of-way which would need to be vacated by the City,” and includes a Condition of Approval that “application for a building permit be submitted no later than October 17, 2019, unless time extensions are granted.” The City represented at oral argument that if the proposed development is not consistent with the Development Order (e.g., if the approximately 2,195 square feet of the South Gulfview Boulevard right-of-way is not vacated), Gulfview will not be able to get a building permit without going through a minor amendment process for a less intense project.
The Issue The issue is whether Respondent Alexander J. Milanick should be required to pay attorney fees and costs in the amount of $4,976.00 to Petitioner Charles Osborne to compensate Petitioner for his defense of an ethics complaint filed with the Florida Commission on Ethics.
Findings Of Fact The Town of Beverly Beach, Florida has a population of about 600 located in Flagler County, Florida. It is about one mile from north to south, and occupies about .4 square miles. It is bounded on the west by the Intracoastal Waterway and on the east by the Atlantic Ocean. U.S. Highway A1A is the main north-south route through the town. Mr. Osborne is an aerospace engineer who served on the Beverly Beach Town Commission from 1997 through March 1999. He was mayor from March 1999 until 2001. He has lived at 2641 Osprey Circle, in Beverly Beach, in a home constructed at that location, since 1995. This residence is closer to the southern boundary of Beverly Beach than to the northern boundary. Dr. Milanick is a dentist who, along with his brother John, and a person named McGee, during times pertinent, owned land immediately north of Beverly Beach. On the property then and currently owned by Dr. Milanick, and east of A1A, is a restaurant named the Shark House. The premises has also been known as Crabby Joe's. In 1995, Dr. Milanick applied to the Town Commission to have his property, and that of his brother, and that of McGee, annexed into the town limits of Beverly Beach. He did this by asking a Mr. Taylor to do what was necessary to cause the annexation to occur. Mr. Taylor thereafter filed a petition with the Town Commission. By Ordinance 95-9-4, the Town Commission, in 1995, assented to the request and it was made effective November 15, 1995. The Ordinance purported to annex the Milanick property into the Town of Beverly Beach and to zone it general commercial. Mr. Osborne was not a member of the Town Commission and was not mayor during this time. The Ordinance, however, was defective in four ways. The Ordinance purported to annex the property into Bunnell, Florida; it was not properly signed by all commissioners; it was not publicly noticed; and it did not provide a legal description of the property. It was not filed with either the Flagler County Clerk of the Court or the Florida Secretary of State. The matter languished until 1997 when Dr. Milanick determined that his property had not in fact been moved within the boundaries of Beverly Beach. Dr. Milanick brought this to the attention of the Town Commission in October 1997. At a Town Commission meeting on December 3, 1997, the Town Attorney stated that he had not had a chance to look into the Milanick and Shark House issue. At a Town Commission meeting on February 4, 1998, Dr. Milanick inquired as to the progress being made on the annexation of his property and was told that the Town Attorney would get with him and discuss the procedure. Subsequently, the Town Attorney, Pat McCormick, suggested that it would be necessary to start the process from the beginning if the land was to be annexed. At a Town Commission meeting on March 4, 1998, Mayor Osborne stated that there was no benefit to the annexation of the Shark House. One member of the Town Commission suggested that they honor past commitments. Dr. Milanick was in attendance at this meeting. At a Town Commission meeting on May 5, 1999, Dr. Milanick and his brother again attended the Town Commission meeting and requested the annexation of their property and discussed the procedure that would be necessary. At a Town Commission meeting on June 2, 1999, a motion was made to go forward with Ordinance 95-9-4 and to amend the official city map and legal description to include the Shark House property. The motion passed but Mayor Osborne vetoed it. During a regular monthly meeting of the Town Commission on July 7, 1999, James Kearn, an attorney retained by Dr. Milanick, who was authorized to act for Dr. Milanick, appeared and requested that the Commission direct the Town Clerk to sign Ordinance 95-9-4 and to forward it to the county and the state in order to determine if the Ordinance was valid. This request was approved by the Town Commission. Mayor Osborne, vetoed the measure. Thereafter, the veto was over-ridden by the Commission. At a Town Commission workshop on July 21, 1999, there was additional discussion regarding the annexation of the Shark House. Mr. Kearn accused Mayor Osborne of discussing the Milanick annexation matter with Sid Crosby, Clerk of the Court of Flagler County. Mayor Osborne denied the charge. The discussion became heated and accusatory and Mayor Osborne threatened to have the sheriff eject Mr. Kearn from the meeting. Subsequent to the action of the Town Commission of July 7, 1999, the Town Clerk, Douglas Courtney, took Ordinance 95-9-4 to Syd Crosby, Clerk of the Court for Flagler County. In a memorandum dated July 26, 1999, Mr. Courtney reported to the Town Commission that Mr. Crosby would not file Ordinance 95-9-4 because it was defective. One of the defects cited was that the instrument purported to annex the land into the City of Bunnell, Florida. No creditable evidence was adduced which indicated that Mayor Osborne visited Syd Crosby for the purpose of preventing the recording of the annexation of Dr. Milanick's property. Mr. Crosby concluded from the beginning that Ordinance 95-9-4 was not recordable. Mayor Osborne suggested some solutions which would permit the annexation, including, re-submission of a proper application. Over a period of time some "glitch" bills were considered which would annex the land. However, none passed. Mr. Kearn attended the Town Commission meeting on February 2, 2000, and the minutes of the meeting noted that he was accompanied by "a person taking notes." Following this meeting, in a February 16, 2000, letter to Dennis Knox Bayer, Town Attorney, Mr. Kearn claimed that Mayor Osborne had a personal vendetta against Dr. Milanick, and that he was exercising dictatorial efforts to prevent citizens to speak at town meetings. He further demanded that ". . . all Town officials, including you as their representative, refrain from saying things that are simply and blatantly false, which only serve to incite Mr. Milanick." At a town meeting on March 1, 2000, Mr. Kearn complained about the annexation not being on the agenda and Mayor Osborne stated that a request for inclusion on the agenda had not been made in writing. Mr. Kearn was permitted to speak for three minutes, he spoke for three minutes, and immediately thereafter Mayor Osborne adjourned the meeting. On or about April 25, 2000, Dr. Milanick and his brother John, filed suit against the Town of Beverly Beach and Mayor Osborne personally, in the Circuit Court of the Seventh Judicial Circuit in and for Flagler County. The suit alleged that the Town of Beverly Beach and Mayor Osborne violated the civil rights of the Milanicks. The suit alleged that Mayor Osborne had a vendetta against Dr. Milanick and should be held personally liable to Dr. Milanick. The Circuit Court dismissed the civil rights count against Mayor Osborne and the town, and this dismissal was affirmed by the Fifth District Court of Appeal. The Circuit Court also dismissed the mandamus action, finding that the 30- day limitations' period for filing a petition for a writ of certiorari applied and that a prima facie case for mandamus had not been established. The Fifth District Court of Appeal, on October 19, 2001, remanded that count to the Circuit Court with directions to grant the petition for mandamus, but upheld the dismissal of the civil rights counts. On January 23, 2003, the Circuit Court entered its Alternative Writ of Mandamus. The Writ incorporated the allegations of Plaintiff's Complaint by reference and ordered that the Defendants take whatever steps necessary to sign and record Ordinance 95-9-4. When this occurred, Mr. Osborne was no longer an elected official of Beverly Beach. The Circuit Court complaint filed by Dr. Milanick recited that the recording of the ordinance did not occur because Mayor Osborne conferred with the Clerk of the Court to block recording of the ordinance. The adoption of the matters recited in the complaint as true, by the appellate court, does not make them proven facts because no evidence was taken in the case. The complaint, moreover, alleges actions, such as being tyrannical and peevish, which could not in any event constitute a violation of a person's civil rights. The complaint does not allege that Mr. Osborne took any action, as mayor, because he wished to obtain a personal advantage and does not allege that the annexation of Dr. Milanick's real property would affect Mr. Osborne's real property in terms of value or otherwise. As of the date of the hearing, Dr. Milanick's property had not been annexed into the corporate limits of Beverly Beach. Mr. Osborne, while serving as mayor, was not helpful in causing the annexation to occur and it is apparent that his relations with Mr. Kearn were not amicable. Mr. Osborne, while serving as mayor was irascible, intimidating, and controlling. Mr. Osborne believed that the annexation would bring no benefit to Beverly Beach and believed it would, "change the town's character." Mr. Osborne gained nothing directly or personally by preventing, or making difficult, the annexation of Dr. Milanick's land. As an elected official, he was permitted to advance his own ideas with regard to what he believed would be best for Beverly Beach and for himself as a citizen and property owner of Beverly Beach. He could act in this regard so long as he did not secure a special privilege, benefit, or exemption for himself, as opposed to a general benefit. A letter signed by Mr. Kearn dated July 18, 2003, accompanied by an affidavit signed by Dr. Milanick, requested that the Commission conduct an investigation into the activities of Mr. Osborne during the period when he was the mayor of Beverly Beach. For reasons which become apparent hereafter, this letter, which had the words "Via Airborne Overnight Mail" stamped on its face, will be hereinafter referred to as the "Airborne" letter. The following statements were contained in the "Airborne" letter: Specifically, while Mayor, Charles Osborne simply refused to sign and record the ordinance duly adopted by the Town, which annexed land into the Town as a general commercial, simply because he personally did not want anymore general commercial land in the Town, which could jeopardize his personal investment in the Town. He also met with the former Clerk of Court for Flagler County, Mr. Syd Crosby, to persuade the Clerk to not record anything regarding the annexation of such land, in order to prevent the completion of the annexation. He thus plainly put his purely personal concerns, ahead of his duties as mayor, and fiduciary duty to the citizens of Beverly Beach. The mayor still refused to oblige the Town's request, or to honor the duly adopted resolution, for his own personal reasons, irrespective of his duties as mayor to the citizens of Beverly Beach.... Even worse, he met with the former Clerk of Circuit Court of Flagler County, Mr. Syd Crosby, to attempt to persuade Mr. Crosby to not record any ordinance presented by the Town, annexing the Milanicks' property. Mayor Osborne repeatedly ignored and defied the will of the Town to complete the annexation, to pursue his own personal agenda, i.e., stopping annexation of land as general commercial. The "Airborne" letter then parroted items that indicated that the Circuit Court had found to be true, as follows: Additionally, Mr. Osborne simply does not allow anyone to speak with whom he disagrees, or to address matter that he does not want addressed. Mayor Osborne has... refused to put the Milanicks' matters or requests on the Town Council agenda; taken action regarding the Milanicks' properties, without any notice to the Milanicks, or without knowledge by the Milanicks that such action was being taken against their property, as required by the Town's own law; refused to allow the Milanicks to speak to matters that affect their personal and property interests, once the Town Council had opened discussion regarding the annexation and zoning of the Milanicks' properties; blatantly and willfully misrepresented the Milanicks' positions, actions, and statements at Town meetings, beyond the scope of the privilege normally attendant to a politician's statements at such meeting, in order to defeat the Milanicks' requests, and to harm the Milanicks; refused to honor Ordinances passed by previous Town councils, as detailed above; refused to follow through with completing the annexation approved by previous council members of the Town; worked to undercut the recording of the completion of the signing of the ordinance, and the recording of the ordinance, to complete the annexation, all as detailed above. The matters in paragraph 25, are misleading because they indicate that the Circuit Court found these items to be true when in fact no evidentiary proceedings with regard to these items occurred in the Circuit Court. Moreover, the Complaint alleged several matters which Dr. Milanick either knew to be untrue, or should have known that it was untrue. Specifically, the Complaint alleged that Mayor Osborne "did not want anymore general commercial land in the Town, which could jeopardize his personal investment in the Town." This allegation implies that he was acting for some personal and specific reason financial reason, as opposed to a general opposition to development. This allegation, had it been true, would have been actionable pursuant to Section 112.313(6) The Complaint also alleged that Mayor Osborne met with Syd Crosby in order to prevent the annexation of the Milanicks' property. This allegation, coupled with the allegation as to a financial interest, bolsters the asserted improper purpose. Based on this Complaint, the Executive Director of the Commission issued a Determination of Investigative Jurisdiction and Order to Investigate, which was filed with the Commission on September 26, 2003, and assigned Complaint Number 03-091. Investigator Travis Wade of the Commission was directed to conduct a preliminary investigation into whether or not there was probable cause to believe a violation of Section 112.313(6), Florida Statutes, had occurred. That section reads as follows: (6) Misuse of public position.--No public officer, employee of an agency, or local government attorney shall corruptly use or attempt to use his or her official position or any property or resource which may be within his or her trust, or perform his or her official duties, to secure a special privilege, benefit, or exemption for himself, herself, or others. This section shall not be construed to conflict with s. 104.31. Mr. Osborne learned of the Determination of Investigative Jurisdiction and Order to Investigate and thereafter retained Robert J. Riggio, of the firm of Riggio & Mitchell, P.A., located in Daytona Beach, as his attorney. Mr. Riggio worked on the case from October 24, 2003, until September 29, 2004. He charged $150 per hour, which is below the customary charge in the Daytona Beach area, and the hourly rate therefore, is reasonable. He expended 33 hours which is reasonable. He expended $180 in costs. These expenditures totaled $4,976 which was billed to Mr. Osborne. He paid the bill. On April 6, 2004, a second letter dated July 18, 2003, was sent to the Commission by Mr. Kearn by facsimile. This will be referred to as the "Fax" letter. This was precipitated by a request to Mr. Kearn from Investigator Wade that he provide a copy of the original letter. The "Fax" letter differed from the "Airborne" letter. In the second paragraph of the "Fax" letter the following sentence appears: "Specifically, while Mayor, Charles Osborne simply refused to sign and record the ordinance duly adopted by the Town, which annexed land just north of Mr. Osborne's manufactured home . . . ." And in the fourth paragraph of the "Fax" letter, the following sentence appears: "The Mayor objected, because it would serve to annex land as general commercial, just north of his own manufactured home." It further stated that his motivation was ". . . stopping land as commercial near him." Mr. Kearn testified under oath that when Investigator Wade was discussing the case with him, that he, Mr. Kearn, realized the "Fax" letter was a draft that had been sent to Investigator Wade in error. Mr. Kearn said that the "Fax" letter was a draft that had subsequently been edited by Dr. Milanick who knew, July 18, 2003, that Mr. Osborne did not live in a manufactured home located immediately south of the property which was sought to be annexed. Mr. Kearn said that it the "Airborne" letter was supposed to be the operative document. He said that he realized that the "Fax" letter was being used by Investigator Wade when he was talking to him on the telephone on June 8, 2004, and that he advised Investigator Wade of the error. He testified that he made it perfectly clear to Investigator Wade that the "Airborne" letter was the operative document. Investigator Wade's Report of Investigation, however, recites that during the telephone interview of Mr. Kearn, that Mr. Kearn advised him that Mr. Osborne resided in a mobile home community immediately south of the Milanick property, while he served as mayor and that Mr. Osborne's interest in stopping the annexation was to use his position for his personal benefit. At the hearing, Investigator Wade stated under oath that Mr. Kearn advised him during their telephone conversation that Mr. Osborne resided in a mobile home community immediately south of the Milanick property while he was serving as mayor. Investigator Wade stated that the issue of whether or not Mr. Osborne lived in the immediate vicinity of the Milanick property was the key element in his investigation because if that were true, stopping the annexation could be a personal benefit to Mr. Osborne. Mr. Wade was a disinterested and credible investigator and witness and his testimony is taken as true and accurate. Mr. Osborne did not live in either a manufactured or mobile home. The type of home he lived in is irrelevant. What is relevant is that Mr. Osborne did not live adjacent to, or in the vicinity of, the Milanick property. In fact, Mr. Osborne did not live near the north side of town. He lived closer to the south side of town and it is unlikely that the annexation of the Milanick property would have an economic effect on Mr. Osborne's property. Mr. Kearn was aware of Mr. Osborne's resident address because he had him served with a civil suit at his residence in 2000. Mr. Kearn knew that Mr. Osborne did not live in a mobile home community, or in a manufactured home near the Milanick property, or anywhere near it. Nevertheless, he asserted that to be true when he talked to Investigator Wade. Mr. Kearn is the attorney and agent of Dr. Milanick. Mr. Kearn is, therefore, the alter ego of Dr. Milanick so that the actions of Mr. Kearn, are the actions of Dr. Milanick. The Commission, found in their Public Report, dated September 8, 2004, that Mr. Osborne's opposition to the annexation was not connected to any desire to secure a benefit for himself. The Commission dismissed the Milanick complaint on a finding of "no probable cause."
Recommendation Based upon the Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Florida Commission on Ethics enter an order requiring Dr. Milanick to pay Mr. Osborne $4,976.00. DONE AND ENTERED this 1st day of July, 2005, in Tallahassee, Leon County, Florida. S HARRY L. HOOPER 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 1st day of July, 2005. COPIES FURNISHED: Kaye Starling, Agency Clerk Commission on Ethics 3600 Maclay Boulevard, South, Suite 201 Post Office Drawer 15709 Tallahassee, Florida 32317-5709 James J. Kearn, Esquire James J. Kearn, P.A. 138 Live Oak Avenue Daytona Beach, Florida 32114-4912 Gary S. Edinger, Esquire 305 Northeast First Street Gainesville, Florida 32601 Martin A. Pedata, Esquire Martin Pedata, P.A. 505 East New York Avenue, Suite 8 DeLand, Florida 32724 Robert J. Riggio, Esquire Riggio & Mitchell, P.A. 400 South Palmetto Avenue Daytona Beach, Florida 32114 Bonnie J. Williams, Executive Director Commission on Ethics 3600 Maclay Boulevard, South, Suite 201 Post Office Drawer 15709 Tallahassee, Florida 32317-5709 Phillip C. Claypool, General Counsel Commission on Ethics 3600 Maclay Boulevard, South, Suite 201 Post Office Drawer 15709 Tallahassee, Florida 32317-5709 Virlindia Doss, Esquire Office of the Attorney General The Capitol, Plaza Level 01 Tallahassee, Florida 32399-1050
The Issue Whether Respondent, Cambridge Management Inc., engaged in housing discriminatory practice in violation of the Florida Fair Housing Act, as amended, sections 760.20 through 760.37, Florida Statutes (2010).1/
Findings Of Fact In 2009-2010, Ms. Elizabeth Sherlock and her nine-year-old son, Luke Sherlock, rented a home from Ms. Sheryl Whitaker. The home was located in the Wedgewood II at Pelican Strand located in Collier County, Florida. The lease was from June 1, 2008, until June 1, 2010. Cambridge Management is the Master Association for the condominium association for the Strand properties. Cambridge Management did not rent or lease the home to Ms. Sherlock. Ms. Sherlock testified that the homeowner's association cited her for violations of the homeowner's association covenants, based on her son engaging in normal childhood activities such as climbing trees, archery, playing in the street and the community clubhouse. Ms. Sherlock testified that she was told in April 2010 that her lease would not be renewed, because her son had run across a sand trap on the golf course during a rain storm. According to Ms. Sherlock, Cambridge Management discriminated against her and her son by denying them access to their rented home.2/ Further, Ms. Sherlock testified that her son suffered severe traumatic stress, based on the security officers denying them access to their home. Finally, Ms. Sherlock testified that the decision not to continue renting to her caused her to move from the home and resulted in financial hardship. Ms. Sherlock's Petition for Relief summarily states that Respondents violated the Florida Fair Housing Act through "discriminatory terms, conditions, privileges or services, and facilities." The Petition for Relief does not contain any specific factual allegation against Respondents. The record does not support Ms. Sherlock's testimony that Cambridge Management engaged in any discriminatory practice or that it retaliated against her and her son in violation of the Florida Fair Housing Act. Mr. LeClaire is a security guard for the Wedgewood at Pelican Strand. Mr. LeClaire testified that on June 24, 2010, at approximately 9:00 p.m., he had stopped Ms. Sherlock at the gate because his supervisor had told him that Ms. Sherlock may not be a current resident. After confirming that she was still a current resident, Mr. LeClaire allowed Ms. Sherlock to access her home through the gate. Although Mr. LeClaire's supervisor had told him that Ms. Sherlock may not be a current resident, no one from Cambridge Management had told Mr. LeClaire to deny Ms. Sherlock access to her rented home. Mr. Weaver is also a security guard for the Wedgewood at Pelican Strand. Mr. Weaver testified that on July 2, 2010, at approximately 9:00 p.m., he stopped Ms. Sherlock at the gatehouse to determine whether or not she was a current resident. Mr. Weaver credibly testified that he stopped Ms. Sherlock because he did not recognize her as a resident. After he verified that she was a current resident, Mr. Weaver allowed Ms. Sherlock into the community. Mr. Weaver credibly testified that he delayed her at most three minutes. Mr. Charles Sherlock is Ms. Sherlock's father. Mr. Sherlock resides in Naples, Florida, during the winter. He testified about the close relationship that he enjoys with his grandson Luke. According to Mr. Sherlock, Luke felt that it was his fault that he and Ms. Sherlock had been evicted from Ms. Whitaker's home, and had to move to Minnesota. Mr. Sherlock further testified that he had to pay for Ms. Sherlock's move to Minnesota, and that he would like to be reimbursed for the costs. Ms. Rubele is an officer with Wackenhut Security, and she testified about the Wackenhut Standard Operating Procedure for the Strand, and testified that Wackenhut's contact person for security was Ms. Brandy K. Callahan of Cambridge Property Management. Prior to the final hearing, Ms. Sherlock voluntarily dismissed, with prejudice, her claims against Respondents, Wedgewood at Pelican Strand Neighborhood Association, et al., and Newell Property Management, et al., and voluntarily dismissed Respondent, Sheryl Whitaker.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Florida Commission on Human Relations enter a final order of dismissal of the Petition for Relief. DONE AND ENTERED this 7th day of June, 2011, in Tallahassee, Leon County, Florida. S THOMAS P. CRAPPS 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 7th day of June, 2011.
The Issue Whether Respondent violated Sections 112.4143(3)(a), and (4), Florida Statutes (Supp. 1994), by committing the acts alleged in the Order Finding Probable Cause and, if so, what penalty is appropriate.
Findings Of Fact All times pertinent to this proceeding, Respondent served as a member of the Mexico Beach Planning and Zoning Board (Zoning Board). Respondent began his service on the Board in mid-March, 1995. In that public position, Respondent was subject to the requirements of Part III, Chapter 112, Florida Statutes, the Code of Ethics for Public Officers and Employees. Respondent owns and operates a marina in Mexico Beach, Florida which he sought to expand. To accomplish the expansion, Petitioner needed to purchase certain parcels of property adjacent to his marina and have the parcels rezoned from single family residential to tourist commercial. If the Zoning Board granted the rezoning request, Respondent planned to buy the land and expand his business. The Zoning Board is empowered to make decisions relative to the zoning or rezoning of property in Mexico Beach, Florida. Thus, on June 12, 1995, Respondent presented to the Board a request to rezone certain parcels of property adjacent to his marina from single family residential to tourist commercial. Respondent participated in the Zoning Board's discussion on the matter. However, prior to his participation in the discussion, Respondent failed to formally announce his interest of the matter. Respondent failed to file a written memorandum disclosing his interest in the matter prior to the June 12, 1995, Board meeting. Respondent also failed to make an oral disclosure of his interest in the matter at the June 12, 1995 Board meeting. Respondent abstained from voting on the rezoning request on June 12, 1995, but did not file a Memorandum of Voting Conflict with respect to the rezoning request within fifteen days of that meeting. The matter was reheard by the Board on August 1, 1995. At that time, Respondent again made a presentation and requested that the Zoning Board rezone the property adjacent to his marina. Following his presentation, Respondent also participated in the Zoning Board's discussion of the matter. Respondent's objective in participating in the discussion was to persuade the Zoning Board to grant the rezoning request. However, prior to his participating in the Zoning Board's discussion, Respondent failed to formally announce his interest in the matter. Respondent did not file a written memorandum prior to the August 1, 1995, Zoning Board meeting disclosing his interest in the matter. On August 1, 1995, Respondent abstained from voting on the rezoning request, but did not file a written memorandum disclosing his interest in the rezoning request within fifteen days of the Zoning Board meeting. Respondent filed a Form 8B, Memorandum of Voting Conflict with respect to the rezoning matter, but did not do so until August 24, 1995.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Final Order and Public Report be entered by the Florida Commission on Ethics finding that Respondent, Jim McCullough, violated Sections 112.3143(4) and 112.3143(3)(a), Florida Statutes (Supp. 1994), and imposing a civil penalty of $200.00. DONE and ENTERED this 24th day of April 1997, in Tallahassee, Florida. CAROLYN S. HOLIFIELD Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (904) 488-9675 SUMCOM 278-9675 Fax Filing (904) 921-6847 Filed with the Clerk of the Division of Administrative Hearings this 24th day of April 1997. COPIES FURNISHED: Eric Scott Assistant Attorney General Attorney's General's Office The Capitol PL-01 Tallahassee, Florida 32399-1050 Kerrie Stillman Complaint Coordinator Florida Commission on Ethics Post Office Box 15709 Tallahassee, Florida 32317-5709 Mr. Jim McCullough 105 North 36th Street Mexico Beach, Florida 32410 Bonnie Williams Executive Director Florida Commission on Ethics Suite 101 2822 Remington Green Circle Post Office Drawer 15709 Tallahassee, Florida 32317-5709 Phil Claypool General Counsel Florida Commission on Ethics Suite 101 2822 Remington Green Circle Post Office Drawer 15709 Tallahassee, Florida 32317-5709
