The Issue The issue is whether Respondent engaged in a discriminatory housing practice, within the meaning of and in violation of the Florida Fair Housing Act, Sections 760.20 through 760.37, Florida Statutes (2005), by requiring Petitioners to submit a second application for the approval of a condominium purchase.
Findings Of Fact It is undisputed that Petitioner, Allan Kangas, has no handicap and is not a disabled person. At the conclusion of Petitioners' case-in-chief, Mr. Kangas testified that he has no handicap. The undersigned, sua sponte, entered an ore tenus order on the record dismissing the case brought by Mr. Kangas. Petitioner, Anna Kangas, is an elderly female and the mother of Mr. Allan Kangas and Mr. Sheldon Kangas, the latter being the representative in this proceeding for the named Petitioners. It is undisputed that Mr. Sheldon Kangas is not handicapped, but that Mrs. Kangas is handicapped, within the meaning of Section 760.22(7), Florida Statutes (2005), because of Alzheimer's disease. Respondent is a condominium association lawfully incorporated as a Florida corporation (Association). Respondent must operate in accordance with the Articles of Incorporation, By-Laws, and Declaration of Condominium (condominium documents). The condominium documents require the Association to approve each purchase of a condominium. On December 8, 2005, Mr. Sheldon Kangas and Mrs. Anna Kangas contracted with Ms. Mary Cox to purchase condominium unit 15, located at 23 Hatchett Creek Road. Ms. Cox is a real estate agent and a co-owner of unit 15. Ms. Cox notified Ms. Pat Williamson, Association Secretary, of the prospective purchase. For the reasons stated herein, Respondent did not discriminate against the prospective purchasers, but approved the purchase of condominium unit 18 in a timely manner after the purchasers changed their purchase contract from unit 15 to unit 18. The prospective purchasers completed an application for approval of the purchase of unit 15 sometime between December 8 and 10, 2005. The Association conducted a meeting to approve the proposed purchase on December 10, 2005. During the meeting on December 10, 2005, the purchasers informed the Association that they wished to purchase unit 18, located at 29 Hatchett Creek Road, rather than unit 15. Unit 18 was owned by Mr. Brian Isaac. Ms. Cox did not object to releasing the purchasers from the contract for the purchase of unit 15. The Association informed the purchasers that a new application for unit 18 would be required. The purchasers completed a new application under protest. At a meeting conducted on January 3, 2006, the Association approved the application for the purchase of unit 18. The purchase of unit 18 closed on January 25, 2006. The purchasers seek reimbursement of living expenses incurred for hotel rooms and meals during the delay caused by the requirement for a second application. The purchasers are not entitled to reimbursement. The purchase of unit 18 was the first time the Association had required a second application. However, it was also the first time a purchaser had changed his or her choice of units after submitting an application. The Association did not discriminate against Mrs. Kangas because of her handicap. The record evidence contains no justifiable issue of law or fact to support the alleged discrimination.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Commission enter a final order dismissing the Petition for Relief. DONE AND ENTERED this 2nd day of January 2007, in Tallahassee, Leon County, Florida. S DANIEL MANRY Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 Filed with the Clerk of the Division of Administrative Hearings this 2nd day of January 2007. COPIES FURNISHED: Cecil Howard, General Counsel Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301 Denise Crawford, Agency Clerk Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301 David G. Muller, Esquire Becker & Poliakoff, P.A. 630 South Orange Avenue, Third Floor Sarasota, Florida 34236 Shelden Kangas Allan Kangas 4578 Manor Drive Sarasota, Florida 34233
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 The issue is whether Respondent committed a discriminatory housing practice against Respondent in violation of Section 760.23(2), Florida Statutes (2005).
Findings Of Fact Petitioner, an Armenian, began renting one of the units in Respondent’s Colony Apartments on August 14, 2002, The initial lease term was August 14, 2002, to August 31, 2003. The monthly rent was $340 per month. Petitioner renewed his lease beginning September 1, 2003, through March 31, 2004, for a monthly rent in the amount of $350. Petitioner renewed his lease beginning April 1, 2004, through March 31, 2005, for a monthly rent in the amount of $360. Petitioner renewed his lease in a timely manner on or about March 31, 2005. On April 1, 2005, the monthly rent for Petitioner’s apartment increased to $370. On April 4, 2005, Respondent charged Petitioner an extra $50 as a month-to-month charge because Respondent’s staff unintentionally failed to enter the lease renewal into management’s software. This clerical error resulted in Petitioner receiving one or more delinquency notices. On April 6, 2005, Petitioner paid $365 in rent. Petitioner paid $370 in rent on May 6, 2005. The rules addendum to the lease agreement at issue here provides as follows in pertinent part: LATE PAYMENTS AND RETURNED CHECKS: a. Rent paid after the first day of each month shall be deemed as late; if rent is not received by close of business on the 5th day of the month, resident agrees to pay an additional fee of $50.00. Such fees will be considered additional rent. * * * 4. TERMINATION OF LEASE: Either Resident or Landlord may terminate this Lease Agreement at the end of the term by giving the other party thirty (30) days prior written notice. If Resident vacates [or] fails to give such notice, the Lease will be renewed on a month-to-month basis for successive one-month terms at a premium of $50.00 above the current monthly market rent until either party gives thirty (30) days prior written notice to the other, as provided herein. . . . * * * 9. RIGHT OF ACCESS: Landlord shall have the right to enter the Apartment without notice, for inspection maintenance and pest control during reasonable hours. In case of emergency, Landlord may enter at any time to prevent damage to property. * * * 15. REPAIRS: Resident accepts the Apartment in its current “as is” condition. Landlord will make necessary repairs to the Apartment to render Apartment tenantable with reasonable promptness after receipt of written notice from Resident unless the repairs are required due to acts of negligence of Resident of his guests, in which case, Resident agrees to pay Landlord immediately the cost of repair. Resident agrees to make maintenance checks at regular intervals on each smoke alarm located in the Apartment and to immediately report any and all defects in writing to Landlord . . . Resident shall maintain the Apartment, including the fixtures therein, in a clean, sightly and sanitary condition . . . . * * * 23. RULES AND REGULATIONS: * * * e. Parking: Resident agrees to abide by the parking regulations established by Landlord. No trailers, campers, boats, or commercial vehicles will be allowed without the written permission of Landlord. Motor vehicles may be towed at Resident’s expense, without notice, if parked improperly or if parked on lawns. Only operating passenger vehicles with current tags and ordinary size may be parked on the Premises, motorcycles shall not be parked beside buildings, under overhangs or under stairways; disabled vehicles with flat tires shall not be parked on the Premises and all such vehicles may be towed away without notice and at the Resident’s expense. No vehicle repairs will be allowed on the Premises. * * * o. Maintenance: Service call are performed during normal weekday working hours except in cases of bona fide emergencies. All service calls must be reported by the Resident to the Landlord (i.e. office personnel). They may be reported by telephone, written message, or in person. Maintenance personnel employed by the Landlord are not authorized to take any individual calls except those that are made through the office. Service calls are performed on a “first-come, first-served” basis with priority given to those requests that would constitute a hazard or discomfort to a resident. On April 28, 2005, Petitioner requested Respondent to perform the following maintenance in his apartment after lunch: (a) repair large burner on stove; (b) repair bottom oven element; (c) repair living room blind; and (d) repair rusty kitchen drain. Respondent completed these repairs the next day. Petitioner paid $370 in rent for the month of June 2005. On June 10, 2005, Petitioner complained that his refrigerator was leaking and that he lost food in the freezer compartment. Respondent gave this complaint a high priority and changed Petitioner’s refrigerator. By letter dated June 15, 2005, Respondent advised Petitioner that his apartment was in an unsanitary condition. The letter informed Petitioner that he had seven days to correct the matter at which time, Respondent intended to inspect Petitioner’s apartment. A letter dated June 22, 2005, stated that Respondent intended to inspect Petitioner’s apartment for cleanliness on June 23, 2005 at 8:00 a.m. The letter also advised that Respondent intended to fix a leak causing damage to the apartment below Petitioner’s apartment. In the letter, Respondent demanded that Petitioner clean his bathtub so that Respondent’s maintenance men could caulk it and stop the leak. The letter warned Petitioner that if the bathtub was not cleaned, Respondent would have a housekeeper to clean it and charge Petitioner’s account $50 for the service provided. Petitioner paid $370 in rent for the month of July. On July 6, 2005, Respondent finally adjusted Petitioner’s account to correct the erroneous $50 one-time, month-to-month charge carried over since April 2005. It took three months for Respondent to verify that the $50 charge was Respondent’s clerical error and not Petitioner’s failure to pay his rent on time or his failure to timely renew his lease. The correction resulted in a zero balance on Petitioner’s account. On July 5, 2005, Petitioner requested the following maintenance in his apartment: (a) repair problem causing sink to backup; and (b) repair problem causing bathtub to have spots and an unpleasant odor. Petitioner told Respondent he believed that the maintenance men had poured a chemical in his bathtub, causing the spots and the odor. Respondent gave this complaint a high priority, sending a maintenance man to Petitioner’s apartment later that day. The maintenance man repaired the sink and inspected the bathroom. There is no credible evidence that Respondent used a chemical in the building’s plumbing system that caused the spots and bad smell in Respondent’s bathtub. The greater weight of the evidence indicates that Petitioner did not keep his tub clean. In July 2005, Respondent’s staff placed a warning notice on Petitioner’s vehicle. The notice advised that the vehicle was subject to towing by a date certain due to an expired license tag as of May 2003 and a flat tire. After receiving the notice, Petitioner moved his vehicle and parked it in another area of the apartment complex. Respondent’s staff issues these warning notices to any vehicles on the apartment premises that are parked improperly, broken down and unattended, had missing or expired license tag, and/or had a flat tire. Respondent’s staff does not check to determine the ownership of the car before issuing the warning. Respondent’s staff placed a second warning notice on Petitioner’s vehicle for the same reasons. On August 23, 2005, Ace Towing & Storage, pursuant to a contract with Respondent, removed Petitioner’s car from the premises. The contract with the towing company results in five to ten cars per month being removed from the premises. Between the time that Petitioner’s car was towed in August 2005 and the hearing, Petitioner compiled a long list of vehicles that he claims violated Respondent’s rules and regulations for motor vehicles. During the hearing, Respondent presented persuasive evidence that all but two of the cars had been moved or towed from the premises. The two vehicles that remained at the apartment complex no longer violated Respondent’s rules and regulations. On August 23, 2005, Petitioner complained that the deadbolt lock on his apartment door would not move. On August 24, 2005, Petitioner complained that his kitchen blind needed to be replaced. On August 25, 2005, Petitioner would not allow Respondent’s maintenance men to enter his apartment to make repairs. On August 30, 2005, Petitioner’s downstairs neighbor filed a written complaint with Respondent. The neighbor complained that his apartment had bathroom mold for the fourth time and that he was experiencing breathing problems due to the mold. The neighbor also complained that Petitioner made noises all night long. According to the neighbor, the noises sounded like Petitioner was moving furniture. On or about August 31, 2005, Respondent sent Petitioner a letter advising him that loud noises from his apartment were disturbing other residents. The letter requested Petitioner’s cooperation in keeping noise at a minimum. At some point in time, Petitioner filed a housing complaint with the City of Jacksonville. In response to Petitioner’s complaint to the City of Jacksonville, Respondent delivered a timely letter dated September 13, 2005, to Petitioner. The letter informed Petitioner that it would be inspecting his apartment on September 14, 2005. The letter complied with the requirements of Section 83.53, Florida Statutes (2005). On September 14, 2005, Respondent and the city’s inspector attempted an inspection of Petitioner’s apartment pursuant to Chapter 518, Jacksonville Municipal Code, to determine compliance with the City’s Property Safety and Maintenance Code, a city ordinance, which sets minimum property standards. The inspector could not complete the inspection because he could not gain access to Petitioner’s apartment. By letter dated October 12, 2005, Respondent provided Petitioner with a seven-day notice of termination of tenancy with option to cure, as authorized by Section 83.56(2)(b), Florida Statutes (2005), and rules addendum to the lease agreement. The letter states as follows in relevant part: You are hereby notified the GMC Property Management intends to terminate you tenancy, for reason of your failure to comply with the duties imposed upon tenants by law and/or with material provision of you rental agreement, to wit: It has come to our attention that you are disturbing and being a nuisance to the resident (sic). This is in violation of your lease agreement. We need you to correct this matter immediately to avoid termination of your lease agreement. Demand is hereby made that you remedy the noncompliance within seven (7) days of this notice or your lease shall be deemed terminated and you shall vacate the premises upon such termination. If this same conduct, or conduct of a similar nature is repeated within 12 months, your tenancy is subject to termination without your being given an opportunity to cure the noncompliance. Because Petitioner was not at home or would not open the door, Respondent delivered this letter to Petitioner in a timely fashion by posting it at the entrance to Petitioner’s apartment. On April 6, 2006, Petitioner renewed a lease for the term beginning April 1, 2006, to March 31, 2007, for $385 per month. On May 8, 2006, Petitioner complained that he was having problems with his plumbing because his bathroom had brown spots on the floor and wall. Petitioner would not let Respondent’s maintenance in his apartment on May 9, 2006.
Recommendation Based on the forgoing Findings of Fact and Conclusions of Law, it is RECOMMENDED: That the Florida Commission on Human Relations enter a final order finding that Respondent did not commit a discriminatory housing practice based on Petitioner’s national origin. DONE AND ENTERED this 30th day of November, 2006, in Tallahassee, Leon County, Florida. S SUZANNE F. HOOD 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 30th of November, 2006. 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 Samuel Sukyasov 2705 Stardust Court, No. 10 Jacksonville, Florida 32211 Gregory Simms GMC Property Management 9550 Regency Square Boulevard, Suite 902 Jacksonville, Florida 32225
The Issue The first issue in this case is whether Respondent violated the Fair Housing Act, Section 760.20, et seq., Florida Statutes (2004),1 by denying Petitioners housing based on their race. There is also a jurisdictional issue in this matter: whether Petitioners' initial complaint of housing discrimination was timely filed pursuant to the Florida Fair Housing Act, Section 760.34, Florida Statutes.
Findings Of Fact Callie Glover is an elderly African-American woman. She and her daughter, Debra Glover (jointly referred to herein as the Petitioners), are residents of the State of Florida. Respondent, The Summit at Hunter's Creek (now known as Camden Hunter's Creek and referred to herein as "Hunter's Creek"), is an upscale, multifamily apartment community located in Orlando, Florida. On April 17, 2004, Petitioners applied for residency at Hunter's Creek. Each Petitioner filled out an Application for Residency setting forth her current place of residence, occupation, educational background, etc. The application forms were pre-printed by Hunter's Creek and filled out in pen by the Petitioners. Each Petitioner signed her respective application on April 17, 2004, and each paid a non-refundable $50 application fee. A $150 administrative fee was also paid, but was refundable only if the application was denied or if the applicants canceled or withdrew their application within three days. Petitioners advised Hunter's Creek that they would be utilizing a Section 8 voucher to pay rent. The property manager, Lizzette Herron, who was ultimately responsible for the applications, had to consult with the property vice president on how to handle a Section 8 application because she had little experience with them. She was advised that Petitioners would need to meet the regular financial criteria, i.e., an income three times the rental amount, in order to be approved. At the time they filed the applications, neither Petitioner indicated a place of employment, but each had some income (Petitioner Callie Glover from Social Security and Petitioner Debra Glover from an undisclosed source). Hunter's Creek conducted a financial screening of the Petitioners through SafeRent, a company used by Hunter's Creek to investigate every applicant's financial condition. Upon completion of the screening, Petitioners were deemed to have insufficient income to meet the required threshold. However, Petitioners agreed to obtain a guarantee of payment from a friend with sufficient financial resources. This arrangement was acceptable to Hunter's Creek. Petitioners' application for a first-floor apartment was preliminarily approved pending receipt of a commitment letter from their chosen guarantor. A one-page fax sheet entitled "Promissory Note (The Summit Properties)" was received at Hunter's Creek on April 20, 2006. The sum and substance of the fax was this statement: "I Michelle McKnight promise to contribute $1400.00 a month towards rent to Debra Glover." This fax was accepted by Hunter's Creek as a sufficient guarantee of payment. Upon receipt of the guarantee, Hunter's Creek approved the application and issued a "Welcome Home" sheet to Petitioners, outlining the provisions of the rental agreement, i.e., apartment number, rent amount, move-in date, term of lease, and acknowledging that the application fee and administrative fee had been paid. The Welcome Sheet indicated Petitioners were approved to move in on June 1 and advised them how to arrange for utilities. The very day Hunter's Creek approved the application, Petitioners notified Hunter's Creek that Section 8 would not approve payment of the rent because the rental amount was too high. Petitioners cancelled (or withdrew) their application, and Respondent closed their file. Subsequently, Petitioners asked Hunter's Creek to refund their application fee and administrative fee. Both requests were denied because the application fees were non- refundable, and Petitioners had waited too long to request the administrative fee. Hunter's Creek calculated the time for requesting a refund as follows: April 17, the day the application was submitted, was day one. April 18 was day two, April 19 was day three, and April 20 was day four. A more traditional calculation of days would be for the day after the application (April 18) to be day one, meaning April 20 would have been day three. However, at no point did Petitioners contest the method of calculating the days. Herron noted the closing of Petitioner's file by a contemporaneous writing on the face of the file folder containing Petitioners' lease paperwork. Her note indicated the application had been cancelled on that day, April 20, 2004. Herron began to describe the reason for the cancellation when she wrote, "Section 8 would not . . . ," but for some reason did not complete the sentence. Her testimony that the file was closed on that date pursuant to discussions with Petitioners is credible. There is no evidence that Petitioners' applications were denied or rejected. Rather, it is clear that Petitioners withdrew their applications because Section 8 funds were not forthcoming to assist with rent payments. After being denied return of their fees, Petitioners filed a complaint with HUD on March 1, 2006. Petitioners maintain the complaint was filed on February 1, 2005, but there is no competent, substantial evidence to support that claim. In the alternative, Petitioners claim their request for reimbursement of fees is an on-going matter and that the complaint to HUD was made within one year of the last act of denial by Hunter's Creek. Petitioner's testimony and evidence on that issue is not credible. Hunter's Creek rents apartments to people of all races, nationalities, genders and backgrounds. The property manager, a female Cuban-American, has conducted training on fair housing laws for new employees. She is well versed in the law and strives to ensure compliance at the properties she manages. There is no evidence of discrimination. Hunter's Creek not only accepted Petitioners' applications, but had already approved them by the time Petitioners withdrew the applications.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a final order be entered by the Commission denying Petitioners' claim of discrimination. DONE AND ENTERED this 22nd day of March, 2007, in Tallahassee, Leon County, Florida. S R. BRUCE MCKIBBEN 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 22nd day of March, 2007.
The Issue The issue is whether petitioner is entitled to an award of attorney's fees and costs under Section 57.111, Florida Statutes.
Findings Of Fact Based upon all of the evidence, the following findings of fact are determined: Background This case involves a claim by petitioner, John E. Phillips, Jr., that he is entitled to an award of attorney's fees and costs because of an administrative action improvidently brought against him by respondent, Department of Banking and Finance (DBF). When the complaint was filed, Phillips was registered with DBF as an associated person with Aragon Financial Services, Inc. DBF contends the claim is without merit because Phillips is not a small business party within the meaning of the law, there is substantial justification to support the agency's decision to file a complaint, and special circumstances are present which would make an award of fees and costs unjust. The action which underlies this claim involved an administrative complaint filed against Phillips on February 4, 1994, charging him with violating various provisions within Chapter 517, Florida Statutes. That complaint was assigned Case No. 94-1266. The complaint also denied an application by Phillips to register as an associated person with a new firm. In addition, the complaint named Bruce M. Walker as a co-respondent, and as to that registrant, the complaint was assigned Case No. 94-1358. Both cases were consolidated for hearing and, after an evidentiary hearing was conducted on June 27, 1994, a Recommended Order was issued on September 13, 1994, recommending that all charges against Phillips be dismissed and that his application for registration be approved. The Recommended Order was adopted by DBF without change, and Phillips is accordingly deemed to be a prevailing party in that action. Phillips has requested fees and costs in the amount of $15,000.00, the maximum allowed by law. Respondent does not contest the reasonableness of that amount. Prima Facie Requirements for an Award of Fees and Costs In order to show entitlement to an award of fees and costs, petitioner must demonstrate that he is a "prevailing small business party" within the meaning of the law. Since he has filed the petition on his own behalf, he must show he is a sole proprietor of an unincorporated business, including a professional practice, whose principal office is in this state, who is domiciled in this state, and whose business or professional practice has, at the time the action is initiated by the state agency, not more than 25 full-time employees or a net worth of not more than $2 million. At the time the administrative complaint was filed, Phillips was domiciled in Pensacola, Florida, and had a net worth of less than $2 million. According to an uncontroverted allegation in his petition, Phillips had no "employees relating to business that formed the basis for the Agency's charges." Petitioner was also a 50 percent shareholder in a subchapter S corporation known as Phillips, Walker & Associates, Inc. (PWA), a Pensacola firm engaged in the sale of insurance products. Although Phillips was registered with DBF as an associated person with Aragon Financial Services, Inc., that firm was not the subject of the complaint nor is it otherwise relevant to this dispute. Petitioner's principal source of income was through the sale of insurance products sold through PWA although he occasionally sold a few securities during that same period of time. The administrative complaint was not filed against PWA, which held no licenses from the state, but rather was filed against the registration of Phillips as an individual. Although he was an officer, employee and shareholder of PWA, Phillips was not a sole proprietor of an unincorporated business, including a professional practice. Therefore, he does not qualify as a small business party. Was There Substantial Justification? The consumer complaint which eventually led to the filing of the charges in Case No. 94-1266 was made by Jane Hubbard, a Gulf Breeze realtor who had loaned a substantial amount of money ($50,000.00) to PWA in May 1988 and was never repaid. The loan was secured by a promissory note personally signed by Phillips and Walker, as the owners of the corporation. After PWA ceased doing business in May 1990, and both Phillips and Walker had filed for bankruptcy, Hubbard, or her attorney, contacted DBF in an effort to seek DBF's aid in collecting her money from Phillips and Walker. Since petitioner was registered with DBF as an associated person, and thus was subject to DBF's regulatory jurisdiction, Hubbard apparently assumed that Phillips may have violated the law in some respect, and the agency might be able to assist her in recovering all or a part of her money. A similar complaint filed with the Department of Insurance was not pursued by that agency. Hubbard's complaint was eventually referred to a DBF financial examiner, Robert R. Kynoch, who, among other things, interviewed Phillips, Walker, Hubbard, and three other persons who had made loans to Walker (but not Phillips). Although Kynoch did not place the persons interviewed under oath during the investigative stage, there was no requirement that he do so. Based on a representation by Hubbard that Phillips and Walker had failed to disclose to her all relevant information regarding PWA's financial status at the time the loan was made, Kynoch concluded that a reasonable basis existed to bring charges against the two if the loan was actually an investment, and thus subject to DBF's jurisdiction under Chapter 517, Florida Statutes. Accordingly, Kynoch prepared a written investigative report, received in evidence as respondent's exhibit 3, which recommended that the report "be further reviewed for appropriate disposition." The report was first reviewed by Michael D. Blaker, a DBF area financial manager, who approved the recommendation and forwarded it to his supervisor, Richard White. It was then reviewed and approved by a bureau chief, William Reilly, and finally by the division director, Don Saxon. After Saxon signed off on the report, it was sent to the general counsel's office for a legal determination as to whether the loan was an investment. Margaret S. Karniewicz, an assistant general counsel, concluded that it was, and recommended the issuance of an administrative complaint. After an evidentiary hearing was conducted, a determination was made that the loan constituted an investment. This determination in the Recommended and Final Orders was not contested by any party, including Phillips. There was, however, insufficient evidence to establish that misrepresentations were made by Phillips during the sale of the investment. For this reason, the charges against Phillips were dismissed and his application for registration with a new firm was approved. Because DBF had statements, which it assessed to be credible, from a complaining witness (Hubbard) that misrepresentations or material omissions were made by Phillips and Walker during the transaction, and DBF properly construed the transaction as an investment, it had a reasonable basis in fact and law to file the complaint. Since there was no showing that the agency's credibility assessment was unreasonable, DBF was substantially justified in bringing the charges in Case No. 94-1266. Special Circumstances There was no evidence presented by respondent to show that special circumstances exist that would make an award of attorney's fees and costs unjust.
Findings Of Fact Based on the undisputed facts included in pleadings filed in this proceeding and on the documentary evidence attached to the Association's Renewed Motion to Dismiss, the following findings of fact are made: On or about April 16, 1999, Ms. Thornhill filed a complaint with the Department of Housing and Urban Development, in which she accused the Association of housing discrimination on the basis of handicap and coercion. The complaint was apparently based on the Association's attempts to make Ms. Thornhill remove a set of steps leading from the terrace of her apartment. In June 1999, the Association filed a civil lawsuit against Ms. Thornhill in the Circuit Court of the 11th Judicial Circuit in and for Miami-Dade County, styled Admiral Farragut Condominium Association v. Maria Thornhill, Case No. 99-15567 CA 22. On or about September 21, 1999, Ms. Thornhill, through her attorney, filed Defendant, Maria Thornhill's Answer to Complaint. Included in the answer was a Counterclaim filed by Ms. Thornhill, through her attorney, against the Association, in which she sought injunctive relief and damages against the Association pursuant to Section 760.35(1) and (2), Florida Statutes. 1/ She asserted in the Counterclaim that she had filed a discrimination complaint against the Association with the Department of Housing and Urban Development, which had been referred to the Commission and that this complaint was still pending before the Commission. Ms. Thornhill alleged in the Counterclaim that the Association had engaged in housing discrimination against her on the basis of her handicap because it had refused to accommodate her disability by giving her permission to retain the steps she had installed leading from the terrace of her apartment. Ms. Thornhill also alleged that the Association had "authorized or acquiesced in a series of actions intended as harassment and retribution" against Ms. Thornhill for having filed a housing discrimination complaint. The factual and legal bases on which Ms. Thornhill requests relief in the Petition for Relief filed with the Commission and in the Counterclaim filed in circuit court are virtually identical.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Florida Commission on Human Relations enter a final order dismissing the administrative complaint filed by Maria T. Thornhill to enforce rights granted by the Florida Fair Housing Act, Sections 760.30 through 760.37, Florida Statutes. DONE AND ENTERED this 7th day of November, 2000, in Tallahassee, Leon County, Florida. PATRICIA HART MALONO 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 7th day of November, 2000.
The Issue The issue for determination in this matter is whether Respondents engaged in acts of housing discrimination against Petitioners on the basis of race in violation of the Florida Fair Housing Act.
Findings Of Fact Petitioners, Donald Travis and Lisa Harrell, are a bi-racial couple (Mr. Travis is African-American and, therefore, belongs to a class of persons subject to protection under Florida's Fair Housing Act, Sections 760.20 through 760.37, Florida Statutes, and Ms. Harrell is white). They have two sons who are bi-racial (one is African-American and white, the other is white and Asian). Petitioners lived in Apartment 163 at 10075 West Highway 98, Pensacola, Florida 32506. Respondents, John and Anne Cutler, are the owners of two four-plex apartments at 10075 West Highway 98, Pensacola, Florida 32506, including the unit occupied by Petitioners that gave rise to this matter. They are both retired educators who own and operate their apartment rental business in their retirement. In their teaching and professional careers, both have instructed students of various races and national origins. Petitioner, Donald Travis, is a veteran of Desert Storm and has been treated for Post Traumatic Stress Disorder. He regularly takes medications to treat anxiety and depression. On April 4, 2008, Petitioners moved into Apartment 163, which had been recently painted, carpeted, and had a new ceiling fan and light installed in the living room. Everything went smoothly between Petitioners and Respondents for several months. Mr. Cutler had to unplug the downstairs toilet with a plunger a few times, but everything else seemed to be in working order. Both Mr. and Ms. Cutler considered Petitioners to be good tenants. As summer approached, Mr. Travis asked Mr. Cutler about installing a screen door for the sliding glass doors. This could not be done without replacing the entire sliding glass doors. When Apartment 131 became vacant, its screen door was moved to Petitioners' apartment. The screen door had a slit in it, which Ms. Cutler repaired with tape. When Apartment 132 became vacant, the good screen door from that apartment was used to replace the taped one in Petitioners' apartment. Respondents tried to keep everything in working order in Petitioners' apartment. When Petitioners' refrigerator door would not close, Respondents replaced the refrigerator. Respondents thought Petitioners were happy with their apartment. Petitioners called Respondents about a plumbing leak and said feces was running down the wall. The leak and pipe were fixed by B & G Plumbing. Petitioners were shown the water shut-off valve in case of future leaks. Petitioners believe that Respondents treated them differently from other tenants in the apartment buildings. Petitioners believe that other tenants were allowed to keep pets in their apartments while they were not. Respondents allowed tenants who had pets when they purchased the apartments to keep them, but banned pets on all future rentals. The rent for Petitioners' apartment, including water, sewer, and garbage, was $650.00. Petitioners always paid their rent on time. Petitioners asked to be moved into a better unit since they believed their unit was inferior to others in the complex. Petitioners wanted to move into Apartment 162 which, in their opinion, was in much better shape than their unit. Respondents offered to put new carpet into Apartment 162 before Petitioners moved in, but they refused. Petitioners decided to leave the apartment because they believed the maintenance was not properly performed. On December 5, 2008, the day Petitioners made known their desire to leave the apartment, Mr. Travis confronted Mr. Cutler. Mr. Cutler offered Apartment 132 to Petitioners because it was ready for occupancy after its occupants had moved out. Apartment 133 would soon be ready, and was also offered to Petitioners. Mr. Travis angrily refused to move into any apartments in the two four-plexes. He yelled at Mr. Cutler and told him he hated him. This exchange was witnessed by a neighbor, Gary Denton. Mr. Cutler offered to let Petitioners move out without penalty, and agreed to return their $650.00 deposit. Petitioners accepted the offer and received the deposit in full as well as a waiver of the first five days' rent for December and an additional four days of rent to allow them time to pack and move. Petitioners accused Respondents of renting one four-plex to whites only and the other to minorities. At the time Petitioners moved out, both four-plexes had tenants of different races. As of the date of the hearing, five of the six total units rented were to non-white tenants. Only one was rented to a white couple.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Florida Commission on Human Relations enter a final order dismissing the Petition for Relief. DONE AND ENTERED this 25th day of November, 2009, in Tallahassee, Leon County, Florida. S ROBERT S. COHEN 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 25th day of November, 2009. COPIES FURNISHED: John Cutler Anne Cutler 5970 Limestone Road Pensacola, Florida 32504 Donald Travis Lisa Harrell 1008 West Young Street Pensacola, Florida 32501 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
The Issue The issue is whether appellant's application for a conditional use permit should be approved.
Findings Of Fact Based upon the entire record, the following findings of fact are determined: Appellant, Nostimo, Inc. (appellant, applicant or Nostimo), is the owner of Lots 8, 9, 10 and 11, Block 8, Revised Plat of Clearwater Beach Subdivision, located at 32 Bay Esplanade, Clearwater Beach, Florida. The property is subject to the land use requirements codified in the City of Clearwater Code of Ordinances (code or city code). By application filed on April 25, 1989 appellant sought the issuance of a conditional use permit from appellee, City of Clearwater (City or appellee). If approved, the permit would authorize the sale of beer and wine for off-premises consumption by a Pick Kwik Food Store to be constructed on the property under a lease agreement between appellant and Pick Kwik, Inc. Appellant's property is properly zoned for a retail establishment (CB or Beach Commerical), and it needs no further zoning permits from the City in order to convert the existing structures on the property to a convenience store. Indeed, appellant has already received approval for the construction and operation of the store. However, under subsection 137.024(b) of the city code, appellant is required to obtain a conditional use permit because it intends to engage in the sale of packaged beer and wine for off-premises consumption. In order to obtain such a permit the applicant must satisfy a number of criteria embodied in the code. The parties have stipulated that, with the exception of one standard, all other relevant criteria have been met. The disputed standard requires that "the use shall be compatible with the surrounding area and not impose an excessive burden or have a substantial negative impact on surrounding or adjacent uses or on community facilities or services." It is noted that appellant must secure the necessary land use permit from the City before it can obtain the alcoholic beverage license from the Department of Business Regulation, Division of Alcoholic Beverages and Tobacco. The application was considered by the Clearwater Planning and Zoning Board (Board) on June 13, 1989 and denied by a 5-0 vote with one member abstaining. As a basis for the denial, the Board adopted a staff report that concluded that "due to the beach area being saturated with this use (sale of alcoholic beverages), public nuisances requiring police action are taxing community services." It further concluded that the proliferation of this activity "has a substantial negative impact on surrounding or adjacent uses or on community facilities and services, specifically police services in handling nuisances related to alcoholic beverage establishments." Members of the public who testified in opposition to the application expressed concern over increased traffic in the area, the glare of lights from a 24 hours per day establishment, and potential problems arising from customers who will consume the beer and wine during the evening hours. In addition, two letters in opposition to the application were considered by the Board. Finally, besides a presentation by applicant's attorney, two witnesses appeared on behalf of the applicant and established that Pick Wick, Inc. provides security services at its stores, if needed, and training for employees to prevent the sale of alcoholic beverages to minors. The subject property is located on the western side of the intersection of Bay Esplanade and Mandalay Avenue in Clearwater Beach, an elongated strip of land to the west of the mainland portion of the City and separated from the mainland by Clearwater Harbor. Mandalay Avenue runs north and south through the heart of Clearwater Beach and is a principal traffic artery in that part of the community. The avenue narrows from four to two lanes just south of where the store is to be located. Bay Esplanade is a much shorter street and runs in an east-west direction between the Gulf of Mexico and Clearwater Harbor. In general terms, the property is surrounded by mixed uses and include a 7-11 convenience store immediately across the street to the east, motels and rental apartments, a restaurant, retail businesses and resort facilities, residences, public areas and a city fire station. Maps received in evidence more definitively depict the nature of the uses surrounding Nostimo's property. In addition to a number of commercial establishments within the immediate area, there are also tennis courts, a parking area, community boat ramp, soccer field, playground and public park. Finally, the area is replete with apartments, rental units and condominiums, including some directly behind the proposed establishment. Although there are presently no active businesses located on the subject property, the premises were once occupied by a hotel, apartments, hot dog shop and a small lounge that offered both on and off premises consumption of alcohol. The applicant contends that the proposed use is compatible with both the property's former use and the present surrounding area, particularly since a 7-11 convenience store directly across the street has been in business selling beer and wine for the last twenty-five years, and there are several restaurants or motels within a block that sell alcoholic beverages. The applicant added that, in all, there are approximately fifty-three active alcoholic beverage licenses within two miles of the proposed convenience store. At both the Board hearing and final hearing in this cause, the City Police Department offered testimony in opposition to the issuance of the requested permit. According to the uncontradicted testimony of Lt. Frank Palumbo, who is the Clearwater Beach police department district commander, additional noise, vandalism, traffic congestion and congregation of younger people are expected if the permit is issued. This opinion was based upon his law enforcement experience with other convenience stores on the Beach side that sell beer and wine, including another Pick Wick convenience store. Further, Mandalay Avenue is an important north-south traffic artery in Clearwater Beach, and there are no alternative streets for residents and visitors to use to avoid the traffic build-up that will occur around the store. Lieutenant Palumbo disputed the assertion that the lounge that once occupied a portion of the subject property generated substantial numbers of customers and associated traffic and that the new enterprise is actually a downgrade in use. He pointed out that the former lounge was very small, and a congregation of four or five customers at any one time was a "large crowd." In contrast, the police officer distinguished that situation from the proposed store where the sale of beer and wine around the clock is expected to generate larger volumes of traffic and customers, particularly during the evening hours. Finally, it has been Lt. Palumbo's experience that convenience stores that sell beer and wine attract the younger crowd, including minors, during the late hours of the night, and they create noise and sanitation problems for the adjacent property owners. The witness concluded that all of these factors collectively would have a negative impact on "community services" by placing a greater demand on police resources. This testimony was echoed by a city planner who gave deposition testimony in this cause. The nexus between the sale of alcoholic beverages and increased traffic and noise was corroborated by Daniel Baker, the manager of another Pick Wick store and a former employee of the 7-11 store across the street, who recalled that when beer sales stopped at that store at midnight, the noise and traffic also came to a halt. In this regard, it is noted the proposed store will operate twenty-four hours per day. To the above extent, then, the proposed use is incompatible with the requirements of section 137.011(d)(6). Two other witnesses testified at final hearing in opposition to the application. One, who is a member of a church that lies a block from the proposed store, pointed out without contradiction that a playground sits next to the church and is used by area young people, many of whom use bicycles as their means of transportation. She was concerned that if more traffic is generated by the store, it would make access to the playground more hazardous and discourage the children from using the facility. The second member of the public is concerned that the store will be incompatible with the surrounding area. This is because much of the neighboring area is made up of public areas, apartments, rental units or condominiums, and he contended an establishment selling alcoholic beverages would be inconsistent with those uses.
