The Issue The issues are whether Respondent, Sarasota Housing Authority (the Housing Authority), discriminated against Petitioner, Estella Smith (Ms. Smith), based on her disability in violation of the Florida Fair Housing Act (the Florida FHA), and, if so, the relief to which Petitioner is entitled.
Findings Of Fact Ms. Smith, a 52-year-old female, testified she participated in the Section 8 program for over ten years and never had any problems until she moved to Sarasota. Ms. Smith moved into the Sarasota rental unit in October 2009. The Housing Authority is a public housing authority that administers the Section 8 program, within Sarasota County, Florida, pursuant to 42 U.S.C. section 1437f. Under the Section 8 program, the Housing Authority uses funds, supplied by HUD, to pay a percentage of the monthly rent on a leased "unit" directly to the landlord. The Section 8 program tenant pays the balance of the monthly rent to the landlord. Ms. Smith executed a residential lease for a HUD- approved unit on September 5, 2009, to begin a one-year rental. Ms. Smith agreed to abide by all the terms and conditions of the residential lease, including the timely payment of rent and the number of occupants (one adult and one child) in the rental unit without the written consent of the landlord. On or about October 1, 2009, Ms. Smith moved from Tampa, Florida, to Sarasota, Florida, and resided at the rental unit, 3047 East Tamiami Circle, Apartment A, Sarasota, Florida. On September 8, 2009, Ms. Smith executed the Housing Authority's personal declaration/tenant information form. Under part three of this form labeled: "Family Members (including Head of Household) currently residing in unit," there were blank lines to be completed by Ms. Smith. The following information was requested: name; date of birth; social security number; disabled; Hispanic; race; and relationship. Ms. Smith (or someone at her direction) completed the form including information about herself and her sole dependant. Under the disabled heading on the line for Ms. Smith, the word "Pending" is written. Additionally, in part five of this form labeled: "Expenses," was a question, "Are you or your spouse age 62 or older and/or disabled?" Ms. Smith (or someone on her behalf) checked the box before "no" after this specific question. Ms. Smith testified she suffered a stroke sometime in 2009 and was physically affected by it. However, she was unable to reference the specific time frame except for prior to her "porting" back to Sarasota. Ms. Smith claimed to use both a walker and a wheelchair at various times since suffering the effects of the stroke. Further, she later testified that, when she was in her rental unit, the doorways were narrow but she could maneuver in it. During her initial interview with the Housing Authority in September 2009, Ms. Smith stated she was using a walker that day and never told anyone at the Housing Authority that she was disabled. Ms. Smith admitted she withheld the rent from the landlord. However, she claimed her refusal to pay the rent was based on the lack of heat in the rental unit and the suspension of her laundry room privileges. Ms. Smith further testified Bertha L. Pete (Ms. Pete) provided Ms. Smith with assistance in her daily living activities and started living in Ms. Smith's rental unit after Christmas or in late December 2009. A copy of Ms. Pete's Florida driver's license, which reflects Ms. Smith's rental unit address as Ms. Pete's residence as of January 27, 2010, was admitted into evidence. On February 10, 2010, Ms. Smith executed a request for a live-in aide with the Housing Authority. Ms. Smith named Ms. Pete to be her proposed live-in aide. The date stamp for the Housing Authority reflects that the request was received by the Housing Authority on February 17, 2010. Any proposed live- in aide has to meet the requirements imposed by the Housing Authority and HUD. Ms. Pete did not meet the requirements. Additionally, on February 17, 2010, Ms. Smith executed a verification of live-in aide form to be completed by her physician and returned to the Housing Authority. That completed form was never returned to the Housing Authority. Both parties produced an executed medical doctor's prescription with Ms. Smith's name as the patient. The hand-written notation on the prescription is "patient needs in home aid." This verbiage is not sufficient nor equivalent to the requirements listed on the verification form for a "live-in aide." The Housing Authority did not know that Ms. Smith needed a live-in aide when she completed her application in September 2009. Although Ms. Smith utilized a walker at the time of her initial interview with the Housing Authority, the Housing Authority did not know she was disabled at that time. It is not the Housing Authority's practice to inquire of someone's physical status, as that could be perceived as a discriminatory question. Sharla Frantz (Ms. Frantz), director of human resources for the Housing Authority, is the hearing officer for the Section 8 program. Ms. Frantz testified as to the process utilized in the Housing Authority's Section 8 program. Ms. Frantz testified that Ms. Smith made a request for assistance on January 27, 2010, regarding the lack of heat in her rental unit. The Housing Authority caused an inspection to be made that same day, and a deficiency was noted. The repair was completed, and the rental unit passed a follow-up inspection on February 28, 2010. However, at the time of her complaint, Ms. Smith did not discuss any other conditions or circumstances regarding the rental unit, nor was any request for a live-in aide made. On or about February 11, 2010, the Housing Authority was made aware of a possible unauthorized person living at Ms. Smith's rental unit, as well as her failure to timely pay rent. Several days later, the Housing Authority issued a letter to Ms. Smith detailing the reasons for her termination from the Section 8 program: an unauthorized person living in the rental unit and her failure to pay rent. Ms. Smith requested a hearing from the Housing Authority, which was held on March 2, 2010. As a result of the hearing, the Housing Authority issued a letter detailing the basis for Ms. Smith's termination from the Section 8 program: an unauthorized person living in the rental unit and her failure to pay rent. Ms. Smith was afforded time to prove that the rental amount was paid in full and that Ms. Pete did not live with her. Ms. Frantz testified that at the Housing Authority hearing, Ms. Smith wrote a check for the past due rental amount. However, Ms. Frantz never received proof that the payment was actually made to the landlord. Ms. Smith testified the landlord wanted the payment in cash; however, Ms. Smith did not feel comfortable paying the rent in cash, as it did not provide her with a receipt. The rent was never paid. After waiting several days, the Housing Authority issued another letter to Ms. Smith stating that Ms. Smith was terminated from the Section 8 program for two program violations. It further described that a lease agreement, brought in to the Housing Authority, did not substantiate her claim that an unauthorized person (Ms. Pete) was not living in Ms. Smith's rental unit.
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 Estella Smith in its entirety. DONE AND ENTERED this 17th day of August, 2011, in Tallahassee, Leon County, Florida. S LYNNE A. QUIMBY-PENNOCK 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 17th day of August, 2011.
Findings Of Fact The parties have stipulated to the following facts: The petitioner received payment of $1,920 from Blue Cross/Blue Shield for the purchase of an EBI bone healing system. Blue Cross/Blue Shield also paid $2,000 to EBI Medical Systems, Inc., the provider, for the purchase of the same equipment. The petitioner was not covered by his state health insurance plan at the time of the purchase of the equipment, because he had failed to pay his premiums while he was on leave without pay from his state employment position. The petitioner has not remitted payment for the purchase of the EBI equipment to the respondent agency. The petitioner owes the State of Florida the sum of $1,920.
Recommendation In consideration of the foregoing findings of fact and conclusions of law, it is RECOMMENDED that a Final Order be entered by the Department of Administration requiring that the petitioner, Gregory Chrishon, pay the Department of Administration, Office of State Employees' Insurance, the sum of $1,920 in accordance with a payment schedule to be agreed upon by the respondent and the petitioner, and to provide that such payment will constitute the total amount due to the respondent from the petitioner arising out of the claim for reimbursement for services received related to the purchase of the subject equipment. DONE and ENTERED this 23rd day of December, 1987, in Tallahassee, Leon County, Florida. P. MICHAEL RUFF Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 23rd day of December, 1987. COPIES FURNISHED: T. Patterson Maney, Esquire, P.A. 123 Staff Drive Post Office Drawer 1628 Fort Walton Beach, Florida 32549 Andrea R. Bateman, Esquire Assistant General Counsel Department of Administration 435 Carlton Building Tallahassee, Florida 32399-1550 Adis M. Vila, Secretary Department of Administration 435 Carlton Building Tallahassee, Florida 32399-1550
The Issue The issue in this case is whether Respondent's license as a teacher in the State of Florida should be disciplined.
Findings Of Fact At all times relevant to this proceeding, Respondent, Daniel Klahn, was the holder of Florida teaching certificate 634054. The certificate is for the area of Social Studies and was valid through June 30, 1994. During the 1990-1991 school year, Mr. Klahn was employed as a teacher by the Taylor County School Board. Mr. Klahn and his wife have two sons, Daniel M. Klahn, II, and John D. Klahn. During the 1990-1991 school year, Mr. Klahn and his wife decided they wanted to adopt a female child. Toward this end, they agreed to be foster parents for the Florida Department of Health and Rehabilitative Services. L. S., a nine-year-old female child was placed as a foster child in the Klahns' home during the 1991-1992 school year. L. S. was born on May 3, 1982. She underwent surgery for ruptured blood vessels in her brain shortly after she was born. L. S. suffers from epilepsy. In approximately 1987, L. S. lived with her mother, step-father and two half-brothers. L. S. reported that her step-father had been sexually abusing her. L. S. was taken out of the home and placed in foster care as a result of her allegations against her step-father. L. S. ultimately admitted that it had been one of her step-brothers, Nathan Wheeler, that had abused her and not her step-father. Nathan was approximately 16 or 17 when the incident was reported by L. S. L. S. had originally accused her step-father because she had been told by Nathan that he would kill or otherwise harm her mother and step-father if she ever told on him. Nathan was eventually moved out of L. S.'s home. L. S. was not, however, allowed to go back to her mother for two years. During the two years that L. S. was in foster care she lived in four different foster care households, including Mr. Klahn's. Mr. Klahn's home was the fourth foster care home L. S. was placed in. She stayed in the home for approximately 3 months. L. S. was approximately 8 or 9 years old while she lived with Mr. Klahn. L. S., as a result of having been sexually abused, having been taken away from her mother and having been placed in various foster homes, was anxious to get back to her mother. When she was unhappy about a foster home, she would act out and become unruly. L. S. did not like being in Mr. Klahn's home. She believed that Mr. and Ms. Klahn treated her harder than they did their two sons. Mr. and Ms. Klahn were not very understanding of her situation and treated her as a child who simply lacked discipline. As a result of these facts and those described in finding of fact 13, L. S.'s grades started to slip and she became more troublesome. While in Mr. Klahn's home, L. S. continued to visit on occasion with the family that she had previously lived with, the Bennetts. At some point, L. S. reported to the Ms. Bennett that Mr. Klahn was abusing her. She eventually reported the alleged incidents to her mother. The alleged incidents reported by L. S., which form the bases of the Administrative Complaint against Mr. Klahn, are as follows: the Respondent inappropriately touched L. S. in the chest and vaginal area. when L. S. misbehaved the Respondent and his wife held down L. S. and attempted to place pepper in her mouth. The Respondent and his wife then placed liquid soap on L. S.'s mouth; the Respondent applied medication to L. S.'s vaginal area; the Respondent made inappropriate suggestive comments in front of L. S. Alleged Inappropriate Touching. The evidence failed to prove that Mr. Klahn "touched L. S. in the chest and vaginal area", except as discussed, infra. Pepper and Soap Incident. On one occasion, L. S. was in the dining room doing homework. Mr. Klahn was attempting to assist her when she became angry and threw a temper tantrum. L. S. called Ms. Klahn a "mother fucking witch." When she did, Ms. Klahn picked up a pepper shaker and told L. S. to stick out her tongue. L. S. refused. Ms. Klahn then went into the kitchen and got the dish washing liquid soap and returned to the dining room. Ms. Klahn then put soap on L. S.'s lips. Mr. Klahn had to hold L. S. in order for Ms. Klahn to put the soap on L. S.'s lips. Vaginal Medication. Shortly after being placed in Mr. Klahn's home, L. S. was diagnosed as suffering from a yeast infection. Medication for the infection was prescribed by a physician. Mr. Klahn applied the medicine to L. S.'s vaginal area. L. S. felt that she was old enough to put the medicine on herself or that Ms. Klahn should have put the medicine on rather than Mr. Klahn. L. S. did not, however, tell Mr. Klahn how she felt. The evidence failed to prove that Mr. Klahn put the medicine on L. S. because she refused to do it herself or because she refused to let anyone except Mr. Klahn put the medicine on. Suggestive Comments. The evidence failed to prove that Mr. Klahn made inappropriate suggestive comments in front of L. S.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a final order be entered dismissing the Administrative Complaint against Daniel Klahn. DONE AND ENTERED this 3rd day of April, 1995, in Tallahassee Florida. LARRY J. SARTIN Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 3rd day of April, 1995. COPIES FURNISHED: Robert J. Boyd, Esquire Post Office Box 26 Tallahassee, Florida 32302 J. Victor Africano, Esquire Post Office Box 1450 Live Oak, Florida 32060 Karen B. Wilde Florida Department of Education The Florida Education Center Room 301 Tallahassee, Florida 32399 Kathleen M. Richards, Administrator Professional Practices Services 352 Florida Education Center 325 Gaines Street Tallahassee, Florida 32399
The Issue Whether the Petitioner is barred by the doctrine of res judicata from maintaining its challenge to rule 59A-4.128, Florida Administrative Code, which governs the evaluation and rating of nursing homes, as an invalid exercise of delegated legislative authority.
Findings Of Fact Based on the representations of counsel at the hearing and on the entire record of this proceeding, the following findings of fact are made: Advantage Therapy and Nursing Center (Beverly Health and Rehabilitative Services, Inc.) is the licensee of a nursing home in Fort Pierce, Florida. Rule 59A-4.128, Florida Administrative Code, governs the evaluation and rating of nursing homes in Florida. The rule provides: 59A-4.128 Evaluation of Nursing Homes and Rating System. The agency shall, at least every 15 months, evaluate and assign a rating to every nursing home facility. The evaluation and rating shall be based on the facility's compliance with the requirements contained in Sections 59A-4.100 through 59A-4.128, of this rule, Chapter 400, Part II and the requirements contained in the regulations adopted under the Omnibus Budget Reconciliation Act (OBRA) of 1987 (Pub. L. No. 100-203) (December 22, 1987), Title IV (Medicare, Medicaid, and Other Health Related Programs), Subtitle C (Nursing Home Reform), as amended and incorporated by reference. The evaluation shall be based on the most recent licensure survey report, investigations conducted by the AHCA and those persons authorized to inspect nursing homes under Chapter 400, Part II, Florida Statutes. The rating assigned to the nursing home facility will be either conditional, standard or superior. The rating is based on the compliance with the standards contained in this rule and the standards contained in the OBRA regulations. Non-compliance will be stated as deficiencies measured in terms of severity. For rating purposes, the following deficiencies are considered equal in severity: Class I deficiencies; Class II deficiencies; and those Substandard Quality of Care deficiencies which constitute either immediate jeopardy to resident health or safety or a pattern of or widespread actual harm that is not immediate jeopardy. Further for rating purposes, the following deficiencies are considered equal in severity: Class III deficiencies; and those Substandard Quality of Care deficiencies which constitute a widespread potential for more than minimal harm to resident health or safety, but less than immediate jeopardy with no actual harm. Class I deficiencies are those which present either an imminent danger, a substantial probability of death or serious physical harm and require immediate correction. Class II deficiencies are those deficiencies that present an immediate threat to the health, safety, or security of the residents of the facility and the AHCA establishes a fixed period of time for the elimination and correction of the deficiency. Substandard Quality of Care deficiencies are deficiencies which constitute either: immediate jeopardy to resident health or safety; a pattern of or widespread actual harm that is not immediate jeopardy; or a widespread potential for more than minimal harm, but less than immediate jeopardy, with no actual harm. Class III deficiencies are those which present an indirect or potential relationship to the health, safety, or security of the nursing home facility residents, other than Class I or Class II deficiencies. A conditional rating shall be assigned to the facility: if at the time of relicensure survey, the facility has one or more of the following deficiencies: Class I; Class II; or Substandard Quality of Care deficiencies which constitute either immediate jeopardy to resident health or safety or a pattern of or widespread actual harm that is not immediate jeopardy; or if at the time of the relicensure survey, the facility has Class III deficiencies, or Substandard Quality of Care deficiencies which constitute a widespread potential for more than minimal harm to resident health or safety, but less than immediate jeopardy, with no actual harm and at the time of the follow-up survey, such deficiencies are not substantially corrected within the time frame specified by the agency and continue to exist, or new Class I or Class II or Substandard Quality of Care deficiencies which constitute either immediate jeopardy to resident health or safety or a pattern of or widespread actual harm that is not immediate jeopardy are found at the time of the follow- up survey. A facility receiving a conditional rating at the time of the relicensure survey shall be eligible for a standard rating if: all Class I deficiencies, Class II deficiencies, and those Substandard Quality of Care deficiencies which constitute either immediate jeopardy to resident health or safety or a pattern of or widespread actual harm that is not immediate jeopardy are corrected within the time frame established by the AHCA and all Class III deficiencies and those Substandard Quality of Care deficiencies which constitute a widespread potential for more than minimal harm to resident health or safety, but less than immediate jeopardy, with no actual harm are substantially corrected at the time of the follow-up survey. A facility receiving a conditional rating at the time of the relicensure survey shall not be eligible for a superior rating until the next relicensure survey. A standard rating shall be assigned to a facility, if at the time of the relicensure survey, the facility has: No Class I or Class II deficiencies and no Substandard Quality of Care deficiencies which constitute either immediate jeopardy to resident health or safety or a pattern of or widespread actual harm that is not immediate jeopardy, and Corrects all Class III deficiencies and those Substandard Quality of Care deficiencies which constitute a widespread potential for more than minimal harm to resident health or safety, but less than immediate jeopardy, with no actual harm within the time frame established by the AHCA. A superior rating shall be assigned to a facility, if at the time of the relicensure survey, the facility has received a standard rating and meets criteria for a superior rating through enhanced programs and services as contained in (7) of this Section. In order to qualify for a superior rating, the nursing facility must provide at least three enhanced programs or services which encompass the following areas: Nursing services. Dietary or nutritional services. Physical environment. Housekeeping and maintenance. Restorative therapies and self help activities. Social services. Activities and recreational therapy. In order to facilitate the development of special programs or facility wide initiatives and promote creativity, these areas may be grouped or addressed individually. In establishing the facility's qualification for a superior rating, the AHCA survey team will use the Rating Survey and Scoring Sheet, Form No. AHCA 3110-6007, Nov., 1994, incorporated by reference, and may be obtained from the Agency for Health Care Administration. Upon initial licensure, a licensee can receive no higher than a standard license. After six months of operation, the new licensee may request that the agency evaluate the facility to make a determination as to the degree of compliance with minimum requirements under Chapter 400, Part II, F.S., and this rule to determine if the facility can be assigned a higher rating. Nursing facilities will be surveyed on this Section of the rule beginning March 1, 1995. Advantage Therapy filed a petition pursuant to Section 120.56(1) and (3), Florida Statutes (Supp. 1996), challenging the validity of existing rule 59A-4.128 and asserting in paragraph five of the petition: Rule 59A-4.128, F. A. C., as applied to the issuance of conditional licenses, is an invalid exercise of delegated legislative authority in that it is vague, fails to establish adequate standards for agency decisions, and vests unbridled discretion in employees of the agency, and violates . . . [Section] 400.23(8)(h) which requires that the agency have uniform procedures in place for the evaluation of nursing homes. Advantage Therapy focuses its challenge on the Agency's alleged failure to interpret or apply the rule in a manner consistent with the federal rules relating to nursing homes adopted pursuant to the Omnibus Budget Reconciliation Act of 1987 and on alleged inconsistencies in the interpretation and application of the provisions of the rule by the Agency and by the various Agency survey teams which are responsible for identifying and classifying deficiencies in nursing homes. In a Final Order entered July 16, 1996, Administrative Law Judge David M. Maloney concluded that proposed rule 59A-4.128 was not an invalid exercise of delegated legislative authority in a challenge brought by the Florida Health Care Association, Inc. Florida Health Care Association, Inc. v. Agency for Health Care Administration, DOAH Case Number 95-4367RP (1996). No appeal was taken from this Final Order. The Florida Health Care Association's challenge to proposed rule 59A-4.128 was brought pursuant to Section 120.54(4), Florida Statutes (1995), which provided in subsection (a) that "any substantially affected person may seek an administrative determination of the invalidity of any proposed rule on the ground that the proposed rule is an invalid exercise of delegated legislative authority." "Invalid exercise of delegated legislative authority" was defined in Section 120.52, Florida Statutes (1995), as follows: "Invalid exercise of delegated legislative authority" means action which goes beyond the powers, functions, and duties delegated by the Legislature. A proposed or existing rule is an invalid exercise of delegated legislative authority if any one or more of the following apply: The agency has materially failed to follow the applicable rulemaking procedures set forth in s. 120.54; The agency has exceeded its grant of rulemaking authority, citation to which is required by s. 120.54(7); The rule enlarges, modifies, or contravenes the specific provisions of law implemented, citation to which is required by s. 120.54(7); The rule is vague, fails to establish adequate standards for agency decisions, or vests unbridled discretion in the agency; or The rule is arbitrary or capricious. Florida Health Care Association's challenge to proposed rule 59A- 4.128 was brought pursuant to this 1995 definition of "invalid exercise of delegated legislative authority." Advantage Therapy's challenge to existing rule 59A-4.128 was brought pursuant to Section 120.56, Florida Statutes (Supp. 1996), which provides that "[a]ny person substantially affected by a rule or a proposed rule may seek an administrative determination of the invalidity of the rule on the ground that the rule is an invalid exercise of delegated legislative authority." Section 120.56(1)(a), Florida Statutes (Supp. 1996). Sections 120.56(2) and (3), Florida Statutes (Supp. 1996), include special provisions which apply to challenges of proposed rules and to challenges of existing rules, respectively. In Section 120.52(8), Florida Statutes (Supp. 1996), the legislature added to the five bases included in Section 120.52(8), Florida Statutes (1995), two new bases for finding that a proposed or existing rule constitutes an invalid exercise of delegated legislative authority : The rule is not supported by competent substantial evidence; or The rule imposes regulatory costs on the regulated person, county, or city which could be reduced by the adoption of less costly alternatives that substantially accomplish the statutory objectives. Section 120.52(8), Florida Statutes (Supp. 1996). Advantage Therapy's rule challenge does not implicate either of these two new bases for finding that a proposed or existing rule is an invalid exercise of delegated legislative authority; rather, it asserts that "[t]he rule is vague, fails to establish adequate standards for agency decisions, or vests unbridled discretion in the agency." Section 120.52(8)(d), Florida Statutes (1995 and Supp. 1996).2 The party challenging either a proposed or an existing rule pursuant to Sections 120.54(4) or 120.56, Florida Statutes (1995), was required to prove by a preponderance of the evidence that the proposed rule was an invalid exercise of delegated legislative authority. Agrico Chemical Co. v. Department of Environmental Regulation, 365 So. 2d 759, 762 (Fla. 1st DCA 1978). In Section 120.56(2)(a), the legislature changed the allocation of the burden of proof in challenges to proposed rules, but no change in the allocation of the burden of proof is included in Section 120.56(3) with respect to challenges to existing rules. Beverly Health and Rehabilitation Services, Inc., which does business as Advantage Therapy, is, and was at the time of the challenge to proposed rule 59A-4.128, a member of the Florida Health Care Association, Inc. The language in proposed rule 59A-4.128 is identical to the language in existing rule 59A-4.128.
The Issue Whether Petitioner is lawfully entitled to work in a position designated by law as a position of trust or responsibility.
Findings Of Fact Petitioner is a twenty-five year old woman who resides in Chattahoochee, Florida. The Department is the state agency responsible for receiving, evaluating, and approving or denying applications for exemptions from disqualification to hold a position of trust, with regard to child care and developmentally disabled adults. The Department must screen persons working in child care and with developmentally disabled adults. When Petitioner was screened it was determined that she had committed three serious felonies when she was subject to the jurisdiction of the juvenile court. The evidence of record indicated that Petitioner committed the following offenses when a juvenile: On May 12, 1992, Petitioner was charged with an aggravated battery. She was accused of attacking another juvenile with a broken Coca Cola bottle. On June 26, 1992, she admitted the allegation. The court did not adjudicate Petitioner a delinquent but did place her in the "JASP" program and required school attendance and 20 hours of community service. On May 11, 1994, Petitioner was charged with another aggravated battery. She was accused of attacking an individual with a razor box cutter. She pled nolo contendere in juvenile court and was ordered to commit no further violations, attend school, and keep away from weapons. On June 8, 1994, Petitioner was charged in juvenile court with grand theft. This charge arose out of the theft of more than $300 from the premises of a Wal-Mart store. She again pled nolo contendere in juvenile court and once more was ordered to commit no further violations, attend school, and keep away from weapons. Petitioner presented a letter from Jerome Bryant, of Quincy, Florida, who is Petitioner's uncle. He noted that Petitioner has overcome her prior problems and is on the right track. Petitioner also completed a home health aide course on December 18, 1996; a child care training course given by Early Childhood Services, Inc. on May 17, 1997; a Parenting Young Children Program given by the Florida Cooperative Extension Service on May 21, 2002; and attended 12 sessions of the New Hope Intervention Program for Domestic Violence ending on May 28, 2002.
Recommendation Based upon the Findings of Fact and Conclusions of Law, it is RECOMMENDED: That a final order be entered which dismisses Petitioner's Petition. DONE AND ENTERED this 18th day of June, 2002, in Tallahassee, Leon County, Florida. 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 18th day of June, 2002. COPIES FURNISHED: Jaisy Bell Billins 424 Line Street, Apartment D-5 Chattahoochee, Florida 32324 John R. Perry, Esquire Department of Children and Family Services 2639 North Monroe Street Building A, Suite 104 Tallahassee, Florida 32399-2949 Katherine A. Kearney, Secretary Department of Children and Family Services 1317 Winewood Boulevard Building 1, Room 202 Tallahassee, Florida 32399-0700 Josie Tomayo, General Counsel Department of Children and Family Services 1317 Winewood Boulevard Building 1, Room 204 Tallahassee, Florida 32399-0700 Peggy Sanford, Agency Clerk Department of Children and Family Services 1317 Winewood Boulevard Building 2, Room 204B Tallahassee, Florida 32399-0700
The Issue The issue in this case is whether Respondents committed a housing discriminatory practice in violation of Chapter 760, Florida Statutes (2008).
Findings Of Fact On or about January 20, 2009, the Petitioner filed a Housing Discrimination Complaint with the Florida Commission on Human Relations (Commission). Pursuant to the Commission's procedure, an investigation of the matter was completed that resulted in a Notice of Determination of No Cause. Essentially, the Commission found that based upon the allegations raised by the Petitioner there was no cause from which it could be found the Respondents had violated the Florida Fair Housing Act. Thereafter, the Petitioner elected to file a Petition for Relief to challenge the determination and to seek relief against the Respondents for the alleged violation. The Commission then forwarded the matter to the Division of Administrative Hearings for formal proceedings. The Division of Administrative Hearings issued a Notice of Hearing that was provided to all parties at their addresses of record. The postal service did not return the notices as undelivered. It is presumed the parties received notice of the hearing date, time, and location. No party appeared at the hearing.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Florida Commission on Human Relations enter a Final Order dismissing the Petitioner's claim of discrimination. DONE AND ENTERED this 6th day of August, 2009, in Tallahassee, Leon County, Florida. J. D. PARRISH 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 6th day of August, 2009. COPIES FURNISHED: Leaford Green Danett Green 3758 Southwest Findlay Street Port St. Lucie, Florida 34953 Paula Adams Post Office Box 1665 Fort Pierce, Florida 34950 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 Whether petitioners have standing to challenge the validity of respondent's proposed rules, 38F-5.30 through 38F-5.70, Florida Administrative Code I.
The Issue Whether Respondent discriminated against Polly Leggitt on the basis of her handicap, violating Sections 760.23(1), (2) and (7)(a), Florida Statutes (1992). If discriminatory conduct has been proven, whether quantifiable damages, or other allowable remedies, have been proven under Section 760.35(3)(b), Florida Statutes. Whether Florida Commission on Human Relations’ failure to conclude its investigation within one year requires dismissal of the complaint/charge; and Whether Florida Commission on Human Relations’ delay has prejudiced the Respondent and whether the complaint should be dismissed on the basis of violation of the statute of limitations or laches.
Findings Of Fact Petitioner is charged with the administration of the Florida Civil Rights Act of 1992, as amended, Section 760.30, Florida Statutes (1995). If Petitioner is unable to obtain voluntary compliance with sections 760.20-760.37, Florida Statutes, or has reasonable cause to believe a discriminatory housing practice has occurred, Petitioner may institute an administrative proceeding under Chapter 120, Florida Statutes on behalf of the aggrieved party. On February 3, 1993, Leggitt filed a complaint with the Petitioner, and the United States Department of Housing and Urban Development. The complaint names Carole Naylor, Property Administrator, as the person who discriminated against her. On March 24, 1993, the Petitioner notified Regency Place Apartments and Carole Naylor that the complaint had been filed, and stated that within 100 days the Petitioner would investigate the complaint and give notice whether there was or was not reasonable cause to believe that a discriminatory housing practice had occurred. The Notice further provided that a final administrative disposition of the complaint would be completed within one year (on or about February 3, 1994). A Notice of Determination: Cause and Issuance of an Administrative Charge was made and issued by document dated and served on August 28, 1996. It named Regency Place Apartments; Carole Naylor, Property Administrator; Frank Cutrona, Property Manager; and Robert Stitzel, Owner. The notice was issued more than one year after the filing of the complaint. Respondent was the developer and owner of Regency Place Apartments in Melbourne, Florida, at all times relevant. Respondent hired Frank Cutrona as manager of Regency Place Apartments and was the manager during the relevant period. Respondent hired Carole Naylor as a clerical worker and gave her the title of Property Administrator. On September 9, 1992, Regency Place Apartments located in Melbourne, Florida, responded to a letter of inquiry from Polly Leggitt, and offered certain apartments for rent. The letter of September 9, 1992, was signed by Frank Cutrona and his wife (resident managers) offered a $100.00 discount, and invited Leggitt to visit the complex. At that time, Leggitt was a resident of Richardson Apartments located in Fort Myers, Florida. Leggitt indicated that she wanted to leave that area and move to Brevard County, Florida. On or about October 11 or 12, 1992, Leggitt visited the apartment complex and was shown an upstairs one-bedroom apartment, by a woman who she did not identify. Leggitt did not advise the woman that she had a disability, and Leggitt did not have a seeing-eye dog with her at that time. Leggitt found that the price and location of the apartments were suitable to her needs. Leggitt wanted to move to Regency Place because the apartments were accessible to all that was important to her. She used a guide dog at the time to help her with traffic. There was a veterinary clinic nearby; a light to cross the street; a bus stop so that she could get the mall; and a bank and grocery store directly across the street. Leggitt did not contact the apartment complex again until after Christmas of 1992, at which time she called and spoke to a person she believed was Frank Cutrona, the apartment manager. Leggitt was sent an application which she filled out and returned sometime after January 8, 1993. On the application she noted in the place where it requested information about automobiles, “None- (legally blind - no license)”. The application form requested information regarding pet ownership and indicated that there would be a separate application for pets. She wrote in the application that she had a guide dog, and that federal and state laws prohibited discrimination by charging a fee for guide dogs. The application stated that she was self-employed and obtained $281.34 per month in Social Security disability income. In the application, she stated “Mom pays rental and ut’s” (presumably utilities). The proposed monthly rental for a one-bedroom apartment was $380 per month, plus utilities. Leggitt sent a deposit and application fee on or about January 11, 1993. No specific amount of contribution towards Leggitt’s income was shown for her mother on the application. By letter dated January 18, 1993, Leggitt’s application was declined, citing the unavailability of the kind and location of the apartment which she desired and insufficient income to qualify. The letter was signed by Carole Naylor, “Property Administrator.” The original cashiers check for the deposit was also returned. Subsequent conversations took place between Leggitt and Frank Cutrona regarding her ability to pay and whether or not her mother’s income could be considered for credit requirements. Leggitt asked him to speak to her mother. Leggitt stated that she did not submit any information regarding her mother being a co-signer. Polly testified “[t]hey told me they would send her an application.” Christine Puchalski testified that she knew Leggitt as a resident of the apartment complex where she was a resident manager. In response to an inquiry by an unknown person calling on behalf of Regency Place Apartments, Puchalski stated that she did not go into any details other than that Leggitt paid her rent on time, that she did not have any returned checks, and there were no problems with Leggitt’s tenancy. By letter of January 28, 1993, Leggitt was advised that her application was not approved, stating that “We require the tenant/occupant to have sufficient income to qualify. Your mother living out of state, and not occupying the apartment would preclude her income from being part of the calculation.” This letter was signed by Carole Naylor, Property Administrator. Leggitt acknowledged that her application was not very specific as to income and that there were times that her mother paid rent directly to the apartment complex and sometimes she sent the sum directly to her. Following the rejection of her application, Leggitt moved to Titusville, Florida, to an apartment that was not accessible for her handicap. This apartment was on a very dangerous road, with no reliable public transportation and three miles to the grocery store. She had to buy a bicycle and risk her life on the dangerous road leading to the apartment, to buy groceries. She lived there eight-and-a-half months before moving to Merritt Island, Florida. Regency Apartments, containing 219 units, was built by Robert Stitzel in 1983 and owned by him until it was sold on April 30, 1993, to a third party corporation. The contract to sell the property had been executed in December, 1992. Frank Cutrona had worked for Stitzel between 4 and 6 years. He died on December 26, 1996. Carole Naylor did not work in the rental office. She made no judgments regarding the rental of the apartment, nor the creditworthiness of the prospective tenants. Her title “Property Administrator” appears to be a title only. Her duties were administrative, typing, and bookkeeping. She composed and typed the two letters that were sent to Leggitt, but the contents of the letters were given to her by Cutrona. She had no conversations with Polly Leggitt or Frances Leggitt. Robert Stitzel made no judgments regarding the tenants. Regency Apartments would require income equaling three times the gross rental. The creditworthiness and the determination of who would rent apartments was left solely with the resident manager. The proposed rent for a one-bedroom apartment was $380. Therefore, three times that amount equals $1,140.00. Respondent demonstrated that many disabled people had lived in the apartment complex. There was a person who was legally blind. There were amputees and physically challenged people of many different disabilities over the years. Accommodations were made for people with disabilities by Cutrona and such costs for these accommodations were paid by Regency. It does not appear that Regency Apartments is a legal entity. The owner of the apartment complex at the time of the alleged discrimination was Regency Place, Ltd., a Florida limited partnership, which no longer owns the apartment complex. Frank Cutrona is deceased, and his estate has not been made party to this proceeding. Cutrona has been described as a caring, disabled man who was kind and considerate of his tenants with disabilities and made innovative accommodations for their benefit. The specific reasons or motivations for the rejection of the application by Cutrona cannot be clarified because of his death in December, 1996. Respondent was aware that the complex could not discriminate on the basis of race, color, sex or disabilities. The Petitioner has made a prima facie case of discrimination in that Leggitt is a handicapped person, who is otherwise qualified to rent the apartment, and she suffered a loss of a housing opportunity, under circumstances which lead to an inference that Respondent based its action solely upon her handicap. Respondent presented evidence that Regency’s requirement of gross income equaling three times the monthly rent had not been satisfied by Leggitt’s mother’s agreement to contribute $550 per month. Leggitt’s income of $281.34, plus her mother’s contribution, would come to $831.34 per month. Three times the monthly rent was $1,140, thus rendering their income short by $308.66 per month. The motivation for rejecting the application is recited in those letters which stated that the apartment which Leggitt wanted was not available, and Leggitt did not have sufficient income to qualify. There is no evidence of a discriminatory motive on the part of Cutrona, Naylor, Stitzel, or Regency Apartments, other than conjecture. There is no evidence that suggests the reasons given were not true at the time the letters were written or that they were merely pretextual. Further, it does not appear from the evidence that any discriminatory motive has been proven. There is nothing in the evidence that proves that Leggitt’s legal blindness was a cause of the rejection of her application. There is no evidence of any act or conduct which would suggest discriminatory conduct or a discriminatory animus by any of the persons named as Respondents. Taken as a whole, the credible evidence indicates that the sole basis for rejecting her application was the unavailability of the unit that she requested, and her failure to satisfy management of her financial ability to meet the financial requirements of Regency Apartments. Although Leggitt testified as to her inconvenience caused by the denial of her application, there is no evidence of any quantifiable damages.
Recommendation Upon the foregoing findings of fact and conclusions of law, it is RECOMMENDED that the Florida Commission on Human Relations issue a Final Order denying the relief sought and dismissing the petition filed in this matter. RECOMMENDED this 7th day of July, 1997, at Tallahassee, Leon County, Florida. DANIEL M. KILBRIDE Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (904) 488-9675 SUNCOM 278-9675 Fax Filing (904) 921-6847 Filed with the Clerk of the Division of Administrative Hearings this 7th day of July, 1997. COPIES FURNISHED: Sharon Moultry, Clerk Commission on Human Relations 325 John Knox Road Building F, Suite 249 Tallahassee, Florida 32303-4149 Dana Baird, Esquire Commission on Human Relations 325 John Knox Road, Building F, Suite 240 Tallahassee, Florida 32303-4149 Evelyn Davis Golden, Esquire Assistant General Counsel Commission on Human Relations 325 John Knox Road, Building F, Suite 240 Tallahassee, Florida 32303-4149 Ms. Polly Leggitt 505 Landings Way, Apartment Number 12 Merritt Island, Florida 32952 Mike Krasny, Esquire Krasny & Dettmer Post Office Box 428 Melbourne, Florida 32902-0428
