The Issue Whether the decision to reject all bids for Lease No. 800:0187 is illegal, arbitrary, dishonest, or fraudulent under the provisions of Section 120.57(3), Florida Statutes, or violates the terms of the Request for Proposal.
Findings Of Fact Prior to May 17, 1999, the Department issued a RFP for office space seeking to lease approximately 14,420 contiguous square feet of space located in Broward County, Florida. This lease, designated 800:0187 in this record, was to run for a basic term of seven years with three two-year renewal options. The RFP specified the lessor was to provide full services and 60 parking spaces. In response to the RFP, the Petitioner, Sunrise, and Intervenor timely submitted proposals. The space proposed by Petitioner complied with the requirements of the RFP. Additionally, the Petitioner's submittal was well within the Department's acceptable rate range. On May 17, 1999, the Department issued an intended award to Sunrise for lease 800:0187. Sunrise was deemed the lowest responsive bidder. All objections to the award to Sunrise were resolved or withdrawn. For reasons not clearly documented in this record, the Department withdrew its decision to award the lease to Sunrise. The agency action, posted on June 12, 2000, some 13 months after the initial posting, stated Sunrise had not performed and recommended Lauderdale as the second-ranked entity that had responded to the RFP. Both Sunrise and the Intervenor timely filed protests to the proposed award to Lauderdale. The Petitioner filed motions with the Department to dismiss and intervene in those protests. As of the date of the final hearing in the instant case, the Department had not resolved or referred those protests to the Division of Administrative Hearings. Instead, on July 24, 2000, the Department issued a notice stating it would reject all bids for lease 800:0187 and rescind the award to Lauderdale. In reaching this decision, the Department stated it "cannot determine its space needs until after the pending Department reorganization is complete." If the Department was being "reorganized" such reorganization would have been known to the Department on June 12, 2000. No legislative or administrative action was taken to require reorganization between June 12, 2000 and July 24, 2000. The Department determined that its decision of July 24, 2000, rendered the June 12 award to Lauderdale moot. The Petitioner, Sunrise, and Intervenor challenged the agency's decision to reject all bids. Section M of the RFP provides, in pertinent part: The Department reserves the right to reject any and all proposals when such rejection is in the best interest of the State of Florida. Such rejection shall not be arbitrary, but be based on strong justification. (Emphasis in original omitted.) Subsequent to the protests of the rejection of all proposals, Perry Anderson, a regional administrator for the Department whose region encompasses Broward County, drafted a memorandum dated September 22, 2000, to address the number of leases and unit requirements for service areas of Broward County. The proposals set forth in the memorandum have not been resolved. As of the date of the hearing, the Department did not present any definitive statement as to its leasing needs for Broward County or how and why the submittals for lease 800:0187 could not address the agency's need. The Department has not presented documentation for any agency plan or statutory mandate to reorganize or decentralize the office space encompassed by lease 800:0187. If decentralization is required, the Department has presented no studies to determine the location, service areas, or numbers of clients for such offices. Studies for demographics, travel times, accessibility to public transportation, client case loads, or how reorganization would better address such issues have not been presented. Moreover, the Department has not demonstrated how decentralization would be inconsistent with the award of lease space as designated by lease 800:0187. The only justification for the rejection of all proposals for lease 800:0187 was the alleged reorganization of the Department. The Department presented no factual information as to how the "reorganization" related to an emerging philosophy supporting decentralization or improved services to the client population.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Juvenile Justice enter a final order rescinding its decision to reject all proposals for lease 800:0187. DONE AND ENTERED this 27th day of July, 2001, 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 27th day of July, 2001. COPIES FURNISHED: Brian D. Berkowitz, Esquire Scott Wright, Esquire Office of General Counsel Department of Juvenile Justice 2737 Centerview Drive Tallahassee, Florida 32399-3100 Robert A. Sweetapple, Esquire Sweetapple, Broeker & Varkas 165 East Boca Raton Road Boca Raton, Florida 33432 Daniel H. Thompson, Esquire Berger, Davis & Singerman 215 South Monroe Street Suite 705 Tallahassee, Florida 32301 A. Margaret Hesford, Esquire 5648 West Atlantic Boulevard Margate, Florida 33063 William G. Bankhead, Secretary Department of Juvenile Justice Knight Building 2737 Centerview Drive Tallahassee, Florida 32399-3100 Robert N. Sechen, General Counsel Department of Juvenile Justice Knight Building 2737 Centerview Drive Tallahassee, Florida 32399-3100
The Issue Whether Respondent should sustain Petitioner's challenge to the preliminary determination to award Bid No. DCPHU 10-91 to Kinney System of Florida, Inc.?
Findings Of Fact Based on the record evidence, the following Findings of Fact are made: In November, 1991, Respondent issued Invitation to Bid No. DCPHU 10-91 (hereinafter referred to as the "ITB"). Through the ITB, Respondent solicited bids to manage the Dade County Public Health Unit's parking lot located at 1350 N.W. 14th Street in Miami, Florida. The managerial responsibilities to be assumed by the successful bidder were described in the ITB as follows: That the OWNER will grant unto the MANAGER, the full exclusive management rights to operate a public parking service, and said MANAGER will take the exclusive rights to operate upon the premises and driveways, of what is commonly known as a "Public Parking Service" at and for the Dade County Public Health Unit. The term "Public Parking Service" as indicated above, is defined as meaning "those patrons wishing to avail themselves of a paid parking service." MANAGER will furnish competent and courteous uniformed parking attendants, during the times and on the days and hours as may be deemed necessary, and to be set forth by the OWNER. It is understood and agreed, all employees are in the employ of MANAGER, solely and not in the employ of OWNER. OWNER is in no way liable to employees for their wages or compensation. That in consideration for such services, the OWNER will allow the MANAGER the exclusive right to charge, collect the established fees for all those wishing to have their cars parked upon the parking premises. All fees must be approved by the OWNER. The ITB indicated that, in order to be deemed a "qualified bidder," the bidder "must be licensed to do business in the State of Florida." The following advisement was given in the ITB regarding how the bids of "qualified bidders" would be evaluated: Bidders shall be evaluated on the basis of proposal for operating the lot, proposed rates, proposed net income distribution, proposer's financial condition, prior job performance, and recommended detailed anticipated operating expense budget for a twelve (12) months [sic] period. So that Respondent would have information upon which to evaluate the financial condition of those submitting bids, the ITB directed all bidders to submit: "1. COPY OF 1990 OR LATEST FINANCIAL STATEMENT AND 2. FEDERAL INCOME TAX RETURN AND 3. ANNUAL REPORT."1/ There are three basic types of financial statements that accountants prepare: those that are the product of an audit (hereinafter referred to "audit statements"); those that are the product of a review; and those that are the product of a compilation (hereinafter referred to as "compilation statements"). Of the various types of financial statements produced by accountants, certified audit statements are considered to be the most reliable and compilation statements that are produced without the benefit of the accountant's examination of the source documents and materials upon which they are purportedly based are considered to be the least reliable. In preparing such compilation statements, the accountant simply puts the figures he has been provided by his client in financial statement form without verifying the accuracy of these figures. Accordingly, it is standard practice in the accounting profession for accountants to warn readers of such compilation statements that they "do not express an opinion or any other form of assurance on the[se statements]." The ITB did not specify what type of financial statement bidders had to submit along with their bid. There was no indication in the ITB that a compilation statement would be deemed unacceptable. Petitioner submitted a timely bid in response to the ITB. Its bid was accompanied by the financial statement required by the ITB. The financial statement was a compilation statement prepared by Petitioner's accountant, Herbert Ehrlich. Appended to the statement was a letter written by Ehrlich. The body of the letter read as follows: We have compiled the accompanying balance sheet of Centre City Parking Inc. as of December 31, 1990, and related statement of income, retained earnings and supporting schedules, for the year then ended, in accordance with standards established by the American Institute of Certified Public Accountants. A compilation is limited to presenting in the form of financial statements information that is the representation of management. We have not audited or reviewed the accompanying financial statements and, accordingly, do not express an opinion or any other form of assurance on them. Management has elected to omit substantially all of the disclosures and the statement of cash flows required by generally accepted accounting principles. If the omitted disclosures and statement of cash flows were included in the financial statements, they might influence the user's conclusions about the company's financial position, results of operations and cash flows. Accordingly, these financial statements are not designed for those who are not informed about such matters. The shareholders2/ have elected to treat the company as a small business corporation for income tax purposes as provided in the Internal Revenue Code and the applicable state statutes. As such, the corporation income or loss and credits are passed through to the shareholders and combined with their personal income and deductions to determine taxable income on their individual returns. In issuing such a written warning regarding the compilation statement he had prepared for Petitioner, Ehrlich was acting in accordance with the standards of acceptable accounting practice prescribed by the American Institute of Certified Public Accountants. Kinney System of Florida, Inc. (hereinafter referred to as "Kinney"), Meyers Parking System, Inc. and Republic Parking System also timely submitted bids in response to the ITB. Kinney's bid was accompanied by a certified audit statement of its parent corporation, Kinney System Holding Corporation. There was no financial statement, however, reflecting Kinney's individual financial condition. A bid evaluation committee comprised of five members evaluated each of the four bids submitted in response to the ITB. The members of the committee determined that, of the four bids submitted, Petitioner's was the lowest. They were concerned, however, based upon the statements made in Ehrlich's letter, that Petitioner had Ehrlich prepare its financial statement without giving him the opportunity to verify the accuracy of the representations it had made to him regarding its financial condition. Because of these concerns, they eliminated Petitioner's bid from consideration, notwithstanding that it was the lowest responsive bid submitted by a qualified bidder, and recommended that the contract be awarded to Kinney, whom they determined to be the next lowest qualified and responsive bidder.3/ The committee members' decision was announced in a letter dated January 13, 1992, the body of which read as follows: Based on the proposed net income distribution, references, background and financial condition, the Parking Lot Management Bid Selection Committee recommends award of the annual parking lot management contract to Kinney Systems [sic] of Florida, Inc. Failure to file a protest within the time prescribed in Section 120.53(5), Florida Statutes, shall constitute a waiver of proceedings under Chapter 120, Florida Statutes. Protests not filed within the prescribed time limit will not be considered. To comply with this statute, a written notice of intent to protest must be filed with the Administrative Services Director named in the bid invitation within 72 hours after receipt of this notice. Within ten days after a notice of intent to protest is filed, a formal written notice of protest must be filed with the Administrative Services Director. A copy of this letter was mailed to Petitioner. Petitioner subsequently protested the committee's recommendation in accordance with the procedures set forth in the letter.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is hereby RECOMMENDED that the Department of Health and Rehabilitative Services enter a final order sustaining Petitioner's protest and awarding Petitioner the contract advertised in the ITB. DONE AND ENTERED in Tallahassee, Leon County, Florida, this 26th day of March, 1992. STUART M. LERNER 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 26th day of March, 1992.
Findings Of Fact In March, 1992, the Department of Labor and Employment Security ("Department") issued a Request for Proposal and Bid Submittal ("RFP") seeking to lease approximately 21,033 square feet of office space in Pinellas Park, Florida. The RFP specifies that "approximately" 130 off-street no charge parking spaces were required for the exclusive use of the employees and clients of the Respondent. The RFP states that "[p]arking space must be under the control of the bidder and be suitably paved, lined, and bumper pads installed." The Department received two bids in response to the RFP; one submitted by Hart-Land Ext., Inc., ("Petitioner") and the other submitted by Resolving, Inc. Both bids were signed by James Hartley, as Vice President of the respective corporations. The Department initially determined that, on the basis of the representations contained in the bids, both bids were responsive. An evaluation committee determined that the bid submitted by the Petitioner was the lowest and best bid. On the basis of the evaluation, the Department awarded the bid to the Petitioner by letter dated May 13, 1992. Subsequent to the bid award, the Petitioner submitted several differing site plans to the Department. The site plans indicated various amendments to the configuration of parking spaces available. None of the plans indicated that there would be less than 130 parking spaces available for use by Department personnel. The Department suggests that the revisions of site plans raised doubts as to whether the property was under the control of the Petitioner, that such information was requested of the Petitioner and that appropriate responses were not forthcoming. Nothing in the site plans would suggest that the property was not under the Petitioner's control. The evidence establishes that sufficient information was provided by the Petitioner in response to Department inquiries related to property ownership. By letter dated August 24, 1992, the Department rescinded its award to the Petitioner. The stated reason for recission was that the Petitioner did not have control over 130 paved and lined parking spaces as the time of the bid opening. At the time the Petitioner submitted the proposal, it had the right, pursuant to an executed Contract for Sale and Purchase, to purchase the property which was identified in the proposal as the site upon which the office space was located. The contract was valid at all times material to this case. The Department accepts the existence of a valid Contract for Sale and Purchase as sufficient evidence of a bidder having control over the property proposed for use. The evidence establishes that at all times material to this case, the Petitioner controlled the property proposed for use in his response to the RFP. As to the parking requirements, the Department offered testimony asserting that the language in the RFP requires that such spaces be paved, lined, and bumper-pads installed, at the time the bid is submitted. The RFP includes no requirement, either express of implied, that the parking area proposed must be paved, lined, and bumpered at the time of bid submission. The Petitioner's response to the RFP met the parking requirements set forth therein. The Department asserts that because the parking spaces were not lined, it was unable to determine the number of spaces available in each area proposed for parking. The Department had ample opportunity to inspect the property proposed in the Petitioner's bid, and in fact, such inspections did occur. The Department reviewed site plans, floor plans, physically inspected the structure and had full access to the property. The fact that the parking spaces were not lined or bumper-padded at the time of bid submittal would have been obvious. Further, the RFP seeks to have "approximately" 130 spaces available. Of the 130 spaces the Petitioner said would be available, 118 spaces were paved at all times material to this case. The remaining 22 parking spaces were located in an unpaved area which would have been paved prior to the date upon which the Respondent would have occupied the building, at which time all 130 spaces would have been lined and bumper-padded also. Therefore, even if the agency's position that the RFP required paved spaces at time of bid submission were supported by evidence, the Petitioner's proposal would meet the requirement. Subsequent to the award of the project, the Petitioner closed the contract for sale in escrow and placed $150,000 in trust to close the sale. The Petitioner employed a general contractor, obtained completed floor plans, mechanical plans, electrical and plumbing plans for the structure, performed roof repairs and purchased new air conditioning equipment. At the request of Department's representatives, the Petitioner also made arrangements for additional parking spaces beyond the 130 spaces previously proposed, with the additional spaces being located off-site and across the street from the office space. The total cost of these actions is approximately $179,600. The purchase of the property and incurrence of related costs was done in good faith and in reliance upon the award of the project.
Recommendation Based on the foregoing, it is hereby RECOMMENDED that the Department of Labor and Employment Security enter a Final Order awarding proposed lease 540:0921 to Hart-Land, Ext., Inc. DONE and RECOMMENDED this 24th day of March, 1993, in Tallahassee, Florida. WILLIAM F. QUATTLEBAUM 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 24th day of March, 1993. APPENDIX TO CASE NO. 92-5748BID The following constitute rulings on proposed findings of facts submitted by the parties. Petitioner The Petitioner's proposed findings of fact are accepted as modified and incorporated in the Recommended Order. Respondent The Respondent's proposed findings of fact are accepted as modified and incorporated in the Recommended Order except as follows: Rejected, unnecessary. Rejected as to reference of difficulty in determining availability of parking spaces, not supported by greater weight of evidence. Measurement would have established whether space was adequate. There is no evidence that it was not. 6-9. Rejected as to inference that submission of amended site plans was inappropriate, not supported by greater weight of evidence. There is no evidence that the agency rejected the proposal based on the amendment of site plans, irrelevant. As to the amendment of site plans being indicative of a lack of 130 paved spaces, rejected immaterial. 11. Rejected as to determination that such spaces were not available on property controlled by the Petitioner, not supported by credible and persuasive evidence. COPIES FURNISHED: Shirley Gooding, Acting Secretary Suite 303, Hartman Building 2012 Capital Circle S.E. Tallahassee, Florida 32399-2152 Cecilia Renn Chief Legal Counsel Suite 307, Hartman Building 2012 Capital Circle, S.E. Tallahassee, Florida 32399-2152 William H. Walker, Esquire NCNB Bank Building, Suite 403 501 First Avenue North St. Petersburg, Florida 33701 Edward Dion, Esquire Assistant General Counsel Suite 307, Hartman Building 2012 Capital Circle S.E. Tallahassee, Florida 32399-2189
The Issue The issue in this case is whether Respondent discriminated against Petitioner because of her disability in violation of the Florida Fair Housing Act.
Findings Of Fact Petitioner, Bernice Buchanan, an 81-year-old female, lives in a condominium at 700 Seabrook Court, Unit 103, Altamonte Springs, Florida. The condominium unit was purchased by Petitioner and is within the Key West Condominiums complex. Respondent, Key West Condominium Association, Inc. ("Key West Association"), a not-for-profit corporation, is responsible for the operation of Key West Condominiums, which consists of 60 units. Petitioner has a meniscus tear in her right knee, arthritis in her right knee and right shoulder, and degenerative discs in her lumbar and cervical spine. As a result of the degenerative discs, there are no ligaments between Petitioner's bones in the affected area, thereby causing the degenerated discs to push on her muscles and nerves. Moreover, because there are no ligaments in the affected areas, Petitioner has a problem with balance and must walk very slowly. Finally, because of Petitioner's degenerative disc condition, Petitioner has severe pain when she walks, sits, or lies down. Petitioner's physician, John F. Ryan, M.D., submitted documentation which stated that Petitioner is not allowed to lift more than 15 pounds due to her degenerative discs and severe knee pain. Also, Dr. Ryan indicated that because of the severe pain in Petitioner's right knee, she is limited in walking, even moderate distances. Petitioner's degenerative disc condition and knee pain are permanent disabilities. Petitioner anticipates having surgery that may reduce or alleviate the pain caused by the degenerative discs. She is also contemplating having knee replacement surgery which should help the right knee. However, unless and until Petitioner has the surgeries, it is impossible to know if those procedures will alleviate her pain and/or otherwise improve her impaired mobility issues. While surgery may possibly improve some of Petitioner's medical conditions, that is not an option with regard to her arthritis. Petitioner is not aware of any surgery or other medical procedure that will improve and/or alleviate the pain she is experiencing due to the arthritis in her knee and shoulder. Furthermore, there is no evidence that any of her physicians have recommended any such procedure. Although Petitioner's ability to walk is impaired, she does not presently use any walking devices such as a cane or walker. Petitioner's ability to drive is not impacted by her medical conditions and associated physical impairments. In fact, Petitioner regularly drives to places such as the grocery store, church, and to visit family. The Key West Condominium complex has three types of parking spaces: (1) assigned garage spaces1; (2) unassigned uncovered non-handicap parking spaces ("regular parking spaces"); and (3) unassigned uncovered handicap parking spaces ("handicapped parking spaces"). Petitioner has an assigned garage space which is located in a bank of four garages. That assigned parking space is about ten feet wide. The regular parking spaces are not assigned and may be used by homeowners, residents and visitors on a "first come, first serve basis." The handicap parking spaces are not assigned and may be used by the homeowners and residents of Key West Condominiums and their visitors who have appropriate handicap decals. There is one handicap parking space located to the left of the bank of garages where Petitioner's garage space is located. Also, there are several regular parking spaces to the right of that garage bank. Because Petitioner's assigned garage is only ten feet wide, it is difficult for her to enter and exit her small Toyota sedan when it is parked in the garage. Nonetheless, provided Petitioner does not have groceries or packages to remove from her car, the garage space is "adequate." Due to the width of Petitioner's assigned garage, when Petitioner parks her car in that space, the car doors cannot be opened wide enough to allow her to remove groceries or packages from her vehicle. Thus, when Petitioner has groceries or packages to unload from her vehicle, in order to unload them, she must park in a space other than her assigned garage space. When Petitioner has groceries and/or other packages to unload and carry into her unit, she usually parks in a regular parking space in front of and close to her condominium unit. When Petitioner parks in the regular parking spaces, it is easier for her to unload the groceries from her car and carry them to her unit. If all of the regular parking spaces in front of her building are occupied by other vehicles, Petitioner has sometimes double-parked behind those vehicles. In those instances, Petitioner would unload the groceries or packages from her car, take them into her condominium unit, and then return to her car and park it in her assigned garage. Petitioner no longer double parks behind vehicles parked in the regular parking spaces when she has groceries and/or packages to unload from her car and take to her condominium. The reason is that Petitioner found that double parking and walking behind parked vehicles to unload her groceries was dangerous. When Petitioner has groceries or packages to take into her condominium and no regular parking spaces are available, she must park across the street and wait until a space becomes available. In such instances, Petitioner reported that she sometimes had to wait for up to 25 minutes for an available space. Petitioner's decreased mobility and impaired ability to walk, even moderate distances, and her lifting restrictions significantly impair her ability to retrieve groceries and packages from her car and carry them into her unit. Petitioner's assigned garage is 47 feet and nine inches from the front door of her unit. The handicap space to the left of the garage bank is 90 feet from the front door of Petitioner's unit. The regular parking space to the right of the garage bank, which Petitioner sometimes uses, is 38 feet from Petitioner's front door. In a letter dated May 15, 2007, Petitioner requested that the Key West Association provide her with a parking space close to her unit marked "Handicapped Parking" and designated only for her. Petitioner noted that she did not need space for a wheelchair. Finally, Petitioner advised Key West Association that the request was based on medical reasons. At the time Petitioner wrote the May 15, 2007, letter, there was a handicap parking space with the painted markings of a handicap parking space. However, that handicap parking space did not have a "handicap parking" sign designating that space as such. In her May 15, 2007, letter, Petitioner advised the Key West Association that the handicap parking space referenced in paragraph 29 would not meet her needs because it was too far for her to carry her groceries. In June 2007, the Key West Association Board of Directors ("Board"), denied Petitioner's request for the regular parking space closest to her unit to be designated as a "handicap parking" space reserved for her use only.2 Instead, the Board directed Petitioner to use the handicap parking space to the left of the garage bank. The Board also notified Petitioner that it would reinstall the "Handicapped Parking" sign"3 at the above-referenced handicap parking space. The Board did not designate the handicap parking space for Petitioner's exclusive use. Therefore, it could be used by any Key West Condominium homeowner or resident or their visitors with a handicap decal. The handicap parking space that the Board made available for use by Petitioner is located between two garage banks so that the handicap space is bordered on each side by a wall of the abutting garage bank. As noted above, the handicap parking space that the Board told Petitioner to use is 90 feet from the front door of Petitioner's condominium; this is 52 feet farther than the regular parking space in front of Petitioner's building. The Board's June 2007, denial letter expressed concern about the cost of constructing the handicap parking space. Additionally, the Board noted that construction of a new handicap parking space would result in the loss of two non-handicap parking spaces. (This was because two non-handicap parking spaces were needed to construct one handicap parking space.) By letter dated September 12, 2007, Petitioner advised the Key West Association that she was still having problems with parking. Petitioner reiterated that the handicap parking space, which the Board had opened for use (by re-installing the handicap parking sign), was too far for her to carry her groceries and other items (90 feet from the front door of her unit). Petitioner also noted that she had the following problems with the handicap parking space: (1) The handicap parking space was often occupied by a vehicle with no handicap decal; (2) Petitioner was required to exit her vehicle on the side of the parking space next to the wall of the garage bank; and (3) After exiting the handicap space, she could only access the sidewalk to her unit by stepping over a curb into the grass or walking around her car to the other side.4 Based on the problems enunciated in her September 12, 2007, letter, Petitioner again requested a "handicapped parking space closest to [her] building without having to walk in between cars." Petitioner wanted the requested handicap parking space to be for her exclusive use. Along with Petitioner's letter was a note from her physician, Dr. John Ryan, which supported her request for a handicap parking space. Dr. Ryan's note stated, "[d]ue to her [Petitioner's] medical condition, I request that [Petitioner] be assigned a parking area closest to her building. She requires a handicap space." There is no evidence that the Key West Association ever responded in writing to Petitioner's September 12, 2007, request or asked for additional information about her medical condition. Reggie Caruso, the deputy building official, is the principal plan reviewer for new and large construction projects, including condominium complexes, for the City of Altamonte Springs, Florida. Mr. Caruso is familiar with the parking requirements for condominium complexes, and his office enforces the laws and regulations applicable thereto. Unless otherwise exempt, condominium complexes are required to have a certain number of handicap parking spaces. However, except for the public areas, the Key West Association has the discretion to place the handicap parking spaces wherever it chooses and/or where such spaces are needed. Section 553.5041, Florida Statutes (2008),5 regulates parking spaces for persons with disabilities (i.e., handicap parking spaces) and applies to Key West Condominiums. Subsection 553.5041(5)(c)1., Florida Statutes, provides that: (1) handicap parking spaces be no less than 12 feet wide; (2) the parking access aisle be no less than five feet wide and be placed adjacent to the handicap parking space; and (3) the access aisle be part of an accessible route to the building or facility entrance. Also see Sections 11-4.6.2(1) and 11-4.6.3, Florida Building Code.6 Subsection 553.5041(4), Florida Statutes, provides that the number of "accessible parking spaces" (handicap parking spaces) must comply with the parking requirements in Section 4.1.2(5)(a) of the Americans With Disabilities Act ("ADA") Accessibility Guidelines. These requirements have been adopted and are in Section 11-4.1.2(5)(a) of the Florida Building Code. The number of handicap parking spaces in the Key West Condominium complex complies with applicable law, if the handicap parking space discussed below that does not meet minimum legal requirements, is counted. Subsection 553.5041(4)(c), Florida Statutes, provides that "[t]he number of parking spaces for persons who have disabilities must be increased on the basis of demonstrated and documented need." In or about mid-November 2008, Mr. Caruso inspected the handicap parking space that the Board advised Petitioner to use. That inspection revealed two areas in which that handicap space and the adjacent access aisle were not in compliance with Subsection 553.5041(5)(c)1., Florida Statutes, and the Florida Building Code.7 The first area of non-compliance involves the width of the handicap parking space and adjacent access aisle. Here, the handicap parking space, including the adjacent access aisle, is tapered and has a width that ranges from 16 feet to 18 feet. Accordingly, at certain points, the handicap parking space, including the adjacent access aisle, is only 16 feet wide, not 17 feet, the prescribed minimum width. During the inspection, Mr. Caruso observed that a "fixed" building (a bank of garages) was on each side of the handicap parking space, including access aisle. Thus, Mr. Caruso determined that there is no reasonable way to change the space so that the minimum width of the handicap parking space and adjacent access aisle is 17 feet at all points as prescribed in Subsection 553.5041(5)(c)1., Florida Statutes.8 The second area of non-compliance concerns the requirement that the access aisle be connected to an accessible route. During his inspection of the handicap parking space, Mr. Caruso observed that there is no direct route from the handicap parking space's adjacent access aisle to a sidewalk. Instead, there is a five-inch high curb which obstructs the accessible route. Consequently, the access aisle is not connected to the access route (sidewalk) to the building in which is located Petitioner's unit or any other building in the complex. Mr. Caruso testified credibly that to establish an accessible route from the access aisle (adjacent to the handicap parking space), part of the five-inch high curb would have to be removed and the concrete would have to be extended from the access aisle to the sidewalk. The removal of the curb would result in compliance with the requirement in Subsection 553.5041(5)(c)1., Florida Statutes, that the access aisle connect with and is "part of an accessible route to the building." Also, the removal of the curb would make the space safe because persons using the space would no longer have to step over the five-inch high curb to get to the accessible route. Even if the curb is removed, the parking space, including access aisles, would still not be in compliance with law because the space does not meet the minimum width requirement of 17 feet prescribed in Subsection 553.5041(5)(c)1., Florida Statutes. Moreover, as noted above, because the handicap parking space is bordered on each side of a "fixed" building, it cannot reasonably be brought into compliance. Marty Boble is a planning and development review specialist for the City of Altamonte Springs. In that position, he determines compliance as it relates to the number of parking spaces on-site. In November 2008, Mr. Boble went to the Key West Condominium complex and inspected the property, including the above-referenced handicap parking space. He also reviewed the Key West Condominium plans, which showed the buildings and parking spaces in the complex. The Florida Building Code requires the Key West Condominium complex to have two parking spaces per dwelling. Key West Condominium, which counts its garage spaces as parking spaces, not only meets the requirement as to number of spaces per unit, but exceeds it by 20 spaces. To construct a new handicap parking space that complies with the legally prescribed width requires that two non-handicap parking spaces be used. Thus, the result of constructing a new handicap parking space would result in the loss of two existing regular parking spaces. Nonetheless, Key West Association would still be in compliance with the Code requirement of two parking spaces per unit because it currently has 20 more spaces than required.9 Petitioner's request for a handicap parking space near her condominium unit is reasonable. In light of her impaired ability to walk, even moderate distances, and her lifting restrictions, Petitioner is unable to retrieve groceries and other packages from her vehicle and take them to her unit. Without an accommodation for her handicap, Petitioner cannot have an equal opportunity to use and enjoy her condominium unit. In this case, Petitioner has a disability which significantly impairs her ability to walk. Thus, Respondent is required to provide her with a reasonable accommodation. As of the date of this proceeding, Respondent has not provided any accommodation to Petitioner. The reasonable accommodation that Respondent should provide is to convert non-handicap or regular parking spaces into a handicap parking space. This remedy is required due to the non-compliance issue of the handicap space which cannot be corrected.10 By converting two non-handicap or regular parking spaces to one handicap parking space, Respondent will be able to construct and provide a handicap parking space that complies with applicable law and regulations. The accommodation offered by the Key West Association and its Board is not a reasonable one. As noted above, the handicap parking space offered to Petitioner did not comply with the provisions of Subsection 553.5041(5)(c)1., Florida Statutes. Moreover, the Key West Association failed to take steps to bring that parking space into partial compliance and to make it safe for Petitioner's use, although it had more than a year to do so. Finally, even though it was clearly established that Petitioner needed a space closer to her unit, the Key West Association and its Board offered her a space that was not only unsafe and non-compliant with law, but was further away from her unit. The Declaration of Condominium for Key West provides that material alterations of common elements, such as regular parking spaces, require approval of two-thirds of the owners at a properly noticed meeting. Despite the Key West Association's position, use of two regular parking spaces to construct a handicap space is a material alteration, it never called a meeting for that purpose.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Florida Commission on Human Relations enter a final order: Finding that Respondent, Key West Condominium Association, Inc., discriminated against Petitioner, Bernice Buchanan, under the FFHA by refusing to make a reasonable accommodation for her handicap; Ordering Respondent to cease the discriminatory practice; and Ordering Respondent to provide a handicap parking space close to Petitioner's condominium unit. DONE AND ENTERED this 29th day of May, 2009, in Tallahassee, Leon County, Florida. S CAROLYN S. HOLIFIELD 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 29th day of May, 2009.
The Issue The issue in this case is whether the Respondent's proposed award of DCPHU Bid I-90 to the Intervenor, Meyers Parking Systems, Inc., for the management of a parking facility located at 1350 Northwest 14th Street should be upheld.
Findings Of Fact For approximately the last ten years, Kinney has operated the parking lot at the Dade County Public Health Unit building located at 1350 N.W. 14th Street in Miami, Florida (the "Parking Lot") pursuant to a contract with HRS. The existing contract between Kinney and HRS for the management of the Parking Lot was entered in June 1989 and was scheduled to expire on June 30, 1990. That contract included two one-year options to renew. The contract also included a provision that allowed either party to terminate the contract upon thirty days notice. The contracts for management of the Parking Lot in previous years were substantially identical in form to the existing contract. In February of each year, a contract review committee consisting of the head of the administrative services department of the facility (the "Contract Manager') and several other employees of the facility would meet to discuss the Parking Lot contract and to determine whether to renew the contract or rebid it. (This Committee will be referred to as "Parking Lot Committee.") The Contract Manager (whose title has been recently changed to Administrative Services Director) essentially chaired the Parking Lot Committee and appointed the other employees who served on the Committee. For the last ten years the Contract Manager has been responsible for overseeing this contract. During this time, his main contacts at Kinney were Chuck Adams, who was usually at the Parking Lot on a daily basis, and Mr. Adams' supervisor, Ken Deutsch. Both Mr. Deutsch and Mr. Adams left the employ of Kinney sometime prior to February, 1990. The exact date of their departure was not established. Both Mr. Deutsch and Mr. Adams now work for Meyers. Kinney's new representative with respect to the Parking Lot contract was Tony Benyon, who assumed those responsibilities on February 1, 1990. Mr. Benyon had previously worked for Meyers and was on the job only twenty two days before the decision was made to rebid the contract. On February 22, 1990, the Parking Lot Committee met and determined not to renew the contract with Kinney. At the time this decision was made, the Contract Manager was aware that the former Kinney employees had switched jobs and were now working for Meyers. However, it does not appear that he brought the job changes to the attention of the Parking Lot Committee because at least one member of the Committee was not aware of the job changes. On or about March 23, 1990, HRS issued an invitation to bid for the management and operation of the Parking Lot (the "Invitation to Bid.") Although the evidence did not establish exactly how many time this contract had been bid in the past, it appears that bids were solicited for this contract on at least two prior occasions during the ten years that Kinney had been operating the Parking Lot. On each occasion, the Invitation to Bid form was substantially identical to the form used in March of 1990. Page 6 of the Invitation to Bid requested bidders to submit a resume of their backgrounds. Page 8 of the Invitation to Bid was entitled "Bid Sheet" and required bidders to submit the following information: "(1) Proposal for Operating the Lot; (2) Proposed Rates, (3) Proposed Net Income Distribution." The Invitation to Bid did not require the bidders to provide any documentation regarding their financial condition nor did it indicate that prior job performance would be considered in evaluating the bids. The Invitation to Bid contained a provision that "any questions concerning conditions and specifications shall be directed in writing to this office for receipt no later than ten (10) days prior to the bid opening." Between the time the Invitation to Bid was sent out and the bids were received, the Contract Manager admits that he "probably" had conversations with some of the bidders and responded to questions about the bid. The Contract Manager could not specifically recall any such discussions with potential bidders between the time the Invitation to Bid was sent out and the date the bids were submitted. However, he admitted that it was likely that some discussions took place. Kinney was never advised of any such discussions between the Contract Manager and other potential bidders. Three sealed bids (including proposals from Kinney and Meyers) were received and opened by HRS at a bid opening on April 4, 1990. A fourth bid was disqualified because it was not sealed. The members of the Parking Lot Committee and representatives of the bidders were present at the bid opening. The bid submitted by Kinney proposed a net income distribution to HRS of 82.5 percent with the remaining 17.5 percent being retained by Petitioner. The Kinney bid also contained a specific breakdown of anticipated costs, fees and expenses to be deducted from the projected gross income to achieve projected net income, a resume and a list of references regarding other-lots being managed by the Petitioner in the area. Meyers and Hi-Rise Parking Systems, Inc. ("Hi- Rise") also submitted bids. Both of those bids contained a proposed net income distribution of 90 percent to HRS. Neither the Hi-Rise nor the Meyers' bids contained a resume or a list of local references of other lots being managed by the companies nor did they contain a listing of anticipated costs, fees and expenses. At the bid opening, the Contract Manager indicated that the bids submitted by Meyers and Hi-Rise were the low bids and the Parking Lot Committee would meet to determine how to "break the tie." At this point, Kinney was effectively eliminated from consideration. By letter dated April 10, 1990, the Contract Manager requested additional information from Meyers and Hi-Rise as follows: Company background information including officers, organization and latest financial/management audit; [and] At least three references to include name of contact person, firm, mailing address and telephone number. The Contract Manager did not request any additional information from Kinney or the disqualified bidder. On or about April 16, 1990, Meyers submitted the requested information to the Contract Manager. On or about April 17, 1990, Hi-Rise submitted the requested information to the Contract Manager. Thus, it is clear that information regarding the financial condition of Meyers and Hi-Rise was not submitted until after the bids were opened. On May 1, 1990, the Parking Lot Committee met to discuss the additional information received from Meyers and Hi- Rise. At that meeting, the members of the Committee completed a "bid selection review form" that listed (1) net income distribution (2) references and (3) company management and financial condition as the criteria for evaluation of the bids. The Committee determined that Meyers and Hi--Rise were "tied" in all categories except financial condition. At best, the submitted financial information provides a cloudy picture of Meyers' financial status. The information indicates that Meyers showed an income loss for the year 1988-1989 of $3,670,000. While a large portion of this loss is apparently related to corporate restructuring, it does not appear that any members of the Parking Lot Committee understood or fully considered this financial information nor did they seek to have the submitted financial information reviewed by an accountant. Hi-Rise's financial records indicate that it is a significantly smaller company, but its records indicated a positive cash flow for the preceding year. Notwithstanding these facts, the Committee decided to award the contract to Meyers. This decision was essentially made on the recommendation of the Contract Manager. The bid selection review form stated as follows: Based on bids and additional information provided, the Parking Lot Management Bid Selection Team recommended award of DCPH Bid No. I-90 to Meyers Parking System, Inc. On May 9, 1990, HRS provided all interested parties with a notice of its selection of Meyers as the successful bidder. In the Notice of Selection, HRS indicated that Meyers had been selected based on the proposed net income distribution, references, background and financial condition. Petitioner timely filed a protest of the proposed award of the contract. The Parking Lot Committee excluded Kinney from consideration based solely upon the net income distribution percentage. However, since the Invitation to Bid did not require the bidders to specify or limit in any way the expenses that could be deducted from gross revenues prior to distributing proceeds to HRS, there was an insufficient basis to accurately evaluate the proceeds that HRS could reasonably expect pursuant to any of the bid proposals. HRS and Meyers have argued that, because HRS has many years experience and expense records relating to the operation of the Parking Lot, the information provided pursuant to the Invitation to Bid provided HRS with sufficient information to make a reasonable evaluation of the financial terms of the proposals. This contention is rejected. To permit such uncertainty and discretion to be built into the bid process would substantially undermine the integrity and dependability of the process. Item 12 on page 6 of the Invitation to Bid required that "bidders will submit a resume of their background and other local lots they are currently managing." No such resume or lists were provided by Meyers. Meyers contends that its response to Item 1 on Page 8 of 8 adequately addressed this requirement. That response provided as follows: PROPOSAL FOR OPERATING LOT. Meyers Parking System, Inc. proposes to operate the Dade County Health department's parking lot with the same high degree of professionalism that we are known for and have demonstrated to our other clients throughout the county. The facility will be managed by trained, uniformed, courteous employees and supervised regularly and closely with our field supervisors and our Regional Vice-President... This statement is not a sufficient response to Item 12 of the Invitation to Bid. During the Parking Lot Committee meeting on February 22, 1990, several complaints were made regarding Kinney's performance under the existing contract. However, no efforts were ever undertaken by HRS to terminate the existing contract with Kinney. While HRS contends that the complaints were part of the reason for deciding to rebid the contract, no steps were taken to disqualify Kinney from bidding on the new contract. In any event, most of the complaints voiced on February 22, 1990 would have been the responsibility of the prior managers of Kinney who now work for Meyers. In February and March of 1990, the disbursements to HRS under the existing contract diminished significantly. This decrease in payments was the result of embezzlement by Kinney employees. While HRS has cited this shortage to justify its decision in awarding the contract to Meyers, there is no evidence that HRS ever attempted to terminate the existing contract nor does it appear that the Parking Lot Committee considered this fact in deciding to eliminate Kinney's bid from consideration. Similarly, the evidence established that there have been problems during the months of March, April and May of 1990 with attendants failing to appear at work on time or leaving the job site. Again, however, there is no indication that HRS attempted to terminate the existing contract or that the Parking Lot Committee relied upon these factors in deciding to eliminate the Kinney bid from consideration. There have been recurring complaints made to Kinney under the existing contract regarding excessive towing of cars from the Parking Lot. The problem of parking lot attendants ordering cars towed without the permission of HRS has existed off and on for sometime. Even though HRS representatives had voiced complaints about the. towing policies, the evidence indicates that this recurring problem became worse in the late spring and early summer of 1990. Nonetheless, HRS never sought to terminate the existing contract because of the towing problems nor did the Parking Lot Committee rely upon this fact in deciding to eliminate the Kinney bid from consideration.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Secretary of the Department of Health and Rehabilitative Services enter a Final Order rejecting all bids for DCPHU Bid I-90 and issue a new Invitation to Bid. DONE AND ORDERED in Tallahassee, Leon County, Florida, this 31 day of October, 1990. J. STEPHEN MENTON 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 31 day of October, 1990.
Findings Of Fact During March 1988, the Respondent issued an Invitation to Bid by which it sought to lease 17,973 net usable square feet of office space to be located within a specified geographic area in Tampa, Florida, under a nine year lease with two additional three year option periods. This Invitation to Bid is referred to as Lease Number 590:1927. Three bids were received in response to the Invitation to Bid, and they were opened on May 13, 1988. Bids were received from the Petitioner, 8900 Centre, Ltd., and the Allen Morris Management Company. All bidders were determined to be responsive to the Invitation to Bid. Despite the fact that petitioner submitted the lowest bid, Respondent notified Petitioner by letter dated June 10, 1988, of its intent to award Lease Number 590:1927 to 8900 Centre, Ltd., as the lowest and best bidder. Petitioner has timely filed its protest seeking review of that decision. It is undisputed that Petitioner submitted the lowest bid. For the first year of the lease, Petitioner bid $7.85 per square foot, while 8900 Centre bid $7.95 per square foot. Thereafter, Petitioner proposed a yearly increase of 50 cents per square foot, reaching $11.85 per square foot in the ninth year of the lease, while 8900 Centre proposed annual increases of approximately 75 cents, reaching $14.00 per square foot in the ninth year. This equates to an actual dollar difference over the nine year term of approximately 185,000. However, using a present value methodology and a present value discount rate of 8.81 percent referred to on page 17 of the bid submittal form, the present value difference in these two bids is approximately $1,000 per month, which would result in a present value difference between Petitioner and 8900 Centre of approximately $108,000 over the nine year period. Neither the Invitation to Bid, bid specifications, nor the actual bids were offered into evidence. One page of the bid submittal form, designated as page 17 of 18, was offered and received in evidence. This portion of the bid submittal form states that the "successful bid will be that one determined to be the lowest and best." It also sets forth evaluation criteria, and assigns weights to each criteria. The evaluation criteria include associated fiscal costs (35 points), location (40 points) and facility factors (25 points) . A synopsis of bids was also offered and received in evidence showing the points awarded to each bidder by the Respondent's bid evaluation committed. Out of a possible 100 points, 8900 Centre received 95.17 points, while Petitioner received 82.25 points and the Allen Morris Management Company received 70.67 points. Petitioner asserts that the members of the evaluation committee were not qualified or knowledgeable in basic construction, design and engineering principles, and therefore could not competently evaluate the bids submitted. However, Petitioner did not offer competent substantial evidence to support this contention. Only the chairperson of the committee, Susan Jennings, was called to testify, and she appeared thoroughly knowledgeable in the bid process, the needs of the agency, the bid requirements and the representations made to the committee members by each bidder, including Petitioner, when the committee made its site visit to each location. Since the actual Invitation to Bid, bid specifications, and evidence about the other committee members were not introduced, it is not possible to know what the specific duties of the committee were, how they were to carry out their duties their qualifications and training, and whether they failed to competently carry out these duties, as alleged by Petitioner. Despite Petitioner's lower bid, Respondent awarded this lease to 8900 Centre, Ltd., based upon the evaluation committee's determination assigning 8900 Centre the highest number of evaluation points. Out of a possible 35 points for fiscal costs, Petitioner received 34 and 8900 Centre received 31.5. Thus, Petitioner's status as low bidder is reflected in the points awarded by the committee. Since neither the bid invitation or specifications were introduced, no finding can be made as to whether the difference between these two bidders comports with any instructions or directions provided by the agency to potential bidders, or whether this difference of 2.5 points on this criteria reasonably reflects and accounts for the dollar difference in these two bids. Petitioner received 34.75 points out of a possible 40 points on the general evaluation criteria "location," while 8900 Centre received the full 40 points. Within this criteria, there were three subcategories, and on the first two subcategories (central area and public transportation) there was an insignificant difference of less than one-half point between Petitioner and 8900 Centre. The major difference between these two bidders which accounts for their significant difference on the location criteria, was in the subcategory of environmental factors, in which Petitioner received 15.17 points and 8900 Centre received the full 20 points. Petitioner did not present competent substantial evidence to discredit or refute the committee's evaluation in the subcategory of environmental factors. To the contrary, the only testimony from a committee member was that of Susan Jennings, and according to her, Petitioner failed to explain the availability of individual air conditioning and heating controls, or the possibility of separate program entrances, which could be made available under its bid. Although Petitioner sought to explain at hearing that these desires of the agency could be accommodated in its bid, there is no evidence that such an explanation was provided in its bid or during the bid process when the evaluation committee visited the Petitioner's site. The committee was aware, however, that 8900 Centre would provide individual heating and air conditioning controls, as well as separate outside entrances for the three programs which would occupy the leased space. Additionally, the committee was concerned, according to Jennings, that parking areas at Petitioner's facility were more remote and removed from the building entrance than at 8900 Centre, and were somewhat obscured by trees and shrubbery, thereby presenting a potential safety concern for employees working after dark. Finally, every employee would either have a window or window access at 8900 Centre, while it was not explained that Petitioner's site would offer a similar feature. Thus, Petitioner failed to establish that the evaluation committee erred in assigning a significantly greater number of points for environmental factors to 8900 Centre than to Petitioner. The evidence reflects a reasonable basis for this difference. The other significant difference between these two bidders was in the subcategory for layout and utilization under the evaluation criteria "facility." Petitioner received 13.67 points while 8900 Centre received a full 20 points. Jennings explained that the separate outside entrances leading directly into the three programs that would occupy this space was preferred to a single reception area for all three programs. Petitioner offered the single reception area in its bid and site visit presentation, while 8900 Centre made it clear that each program would have its own entrance. Since these programs do not have a receptionist position, and none wanted to give up a secretarial position to serve as receptionist for all three programs, the committee did not consider the single reception area entrance to be desirable. Additionally, Petitioner's facility was a two-story building, while 8900 Centre is a single story facility. Jennings explained that the committee considered a ground level facility to be preferable to a two story building, particularly since the Medicaid program was to occupy the major portion of this space. The Medicaid program would have to be split up at Petitioner's facility, either in two separate buildings or on two levels of the same building, while at 8900 Centre, Medicaid could be accommodated in one, single story building, with the other two programs in a second, single story building. Finally, parking at 8900 Centre was directly next to, and outside the entrance of the building, while Petitioner offered to make assigned spaces available in a general parking area which serves its entire 100,000 square foot complex. The parking offered by Petitioner is more remote than that offered by 8900 Centre, and would be less secure at night due to a greater distance from the building entrances and the parking lot. Thus, Petitioner failed to establish that the committee erred in assigning a significantly greater number of points for layout and utilization to 8900 Centre than to Petitioner. There is a reasonable basis for this difference, according to the evidence in the record.
Recommendation Based upon the foregoing, it is recommended that Respondent enter a Final Order dismissing Petitioner's protest to Lease Number 590:1927. DONE AND ENTERED in Tallahassee, Leon County, Florida, this 9th day of December 1988. DONALD D. CONN Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32399-1050 Filed with the Clerk of the Division of Administrative Hearings this 9th day of December 1988. APPENDIX (DOAH Case Number 88-3765 BID) Rulings on Petitioner's Proposed Findings of Fact: Adopted, in part, in Finding of Fact 1, but Rejected in Finding of Fact 10, and otherwise as not based on competent substantial evidence in the record. Adopted in Finding of Fact 5. 3-5. Adopted in Finding of Fact 4, but Rejected in 7. 6-7. Rejected in Finding of Fact 8. Rejected in Finding of Fact 10, and otherwise as not based on competent substantial evidence in the record. Rejected in Findings of Fact 9 and 10, and otherwise as not based on competent substantial evidence. Rulings on the Respondent's Proposed Findings of Fact: Adopted in part in Finding of Fact 1, but otherwise rejected as not based on competent substantial evidence. Adopted in Finding of Fact 4. 3-4. Adopted in part in Findings of Fact 5 and 6, but otherwise rejected as not based on competent substantial evidence in the record of this case. Adopted In Findings of Fact 5, 7-10. Adopted in Finding of Fact 5. Adopted in Finding of Fact 7. Adopted in Finding of Fact 8. Rejected as irrelevant and unnecessary since the point difference in this subcategory is insignificant. Adopted in Finding of Fact 9. 11-12. Adopted in Finding of fact 10. COPIES FURNISHED: Michael V. Giordano, Esquire 7821 North Dale Mabry Suite 100 Tampa, Florida 33614 Jack Farley, Esquire W. T. Edwards Facility 4000 West Buffalo Fifth Floor, Room 520 Tampa, Florida 33614 Sam Power, Clerk Department of Health and Rehabilitative Services 1323 Winewood Boulevard Tallahassee, Florida 32399-0700 Gregory Coler, Secretary Department of Health and Rehabilitative Services 1323 Winewood Boulevard Tallahassee, Florida 32399-0700 John Miller, General Counsel Department of Health and Rehabilitative Services 1323 Winewood Boulevard Tallahassee, Florida 32399-0700
The Issue The issue is whether Respondent, Agency for Persons with Disabilities (Agency), had a reasonable basis in law and fact to initially deny Petitioner's application for a license to operate a group home, or whether other circumstances were present that would make an award of attorney's fees and costs unjust within the meaning of section 57.111(1)(e), Florida Statutes (2015).
Findings Of Fact Respondent is the state agency that licenses group homes pursuant to section 393.067. On June 13, 2014, Petitioner's corporate agent, Lavonda Hargrove, filed with the Agency an application for licensure to operate a group home facility in Wesley Chapel, Florida. Relevant to this dispute is a requirement by the Agency that if the applicant does not own the property on which the facility will be located, it must submit a copy of a fully-executed landlord/tenant lease agreement with the application packet. Petitioner did not own the property on which the facility would be operated and was required to comply with this requirement. The initial application packet filed with the Agency was missing a number of required items and some questions on the application were left blank. However, as found by Judge Crapps, a copy of an undated and partially signed residential lease agreement was submitted with the application. As noted below, its whereabouts are unknown. On July 29, 2014, or more than 30 days after the application was filed,1/ Myra Leitold, a Residential Program Supervisor in Tampa who reviewed the application, emailed Hargrove and informed her that the application had "to be completed in its entirety" and described areas of the application that required additional information. Leitold also attached to the email a generic checklist of 36 required documents for an initial license application, one of which was a "Landlord Agreement/Lease." While she identified some, but not all, of the items on the checklist that were missing, she did not specifically mention that a landlord agreement/lease had not been filed. In response to the email, on September 12, 2014, Hargrove submitted a second application with the supplemental information requested in Leitold's email. Because a lease agreement had already been submitted with the first application, and no mention of one was made in Leitold's email, it is reasonable to assume that this was the reason why Hargrove did not submit another copy with her second application. To make sure that her application was complete, on September 17, 2014, Hargrove emailed Leitold and stated the following: This is a follow up email to confirm your receipt of requested items for licensure of the Wesley Chapel home at 31733 Baymont Loop. Please advise if additional information is needed. Also, do you have any idea when you will be available to inspect the home? In response to Hargrove's email, Leitold promptly sent an email stating as follows: I did receive the documents forwarded last week however, have not had an opportunity to review them. I should be able to get to them in the next week or two. After her review of the second application was completed, Leitold believed it was still incomplete because there was no lease agreement in the packet. At the underlying hearing, Leitold acknowledged that it was possible the lease agreement had been filed with the initial application on June 13, 2014, but thought it unlikely the Agency had lost the document. As found by Judge Crapps, however, an agreement was filed but its whereabouts are unknown. In any event, Leitold did not advise Hargrove that her application was still incomplete. Instead, she forwarded the second application, without a lease agreement, to the Central Office in Tallahassee for final disposition. Applications are sent to Tallahassee only if they are incomplete or involve pending violations by the applicant; otherwise, action on the application is made at the local level. Incomplete applications are always denied, and Leitold knew that when the application was forwarded to Tallahassee, this would be the final disposition of the matter. After the application packet was reviewed by the Central Office in Tallahassee, with no executed lease agreement, on October 6, 2014, the Agency issued its Notice of License Application Denial for Group Home (Notice) based upon the ground that it did not include a lease agreement. (Presumably, the application satisfied all other licensing requirements.) Two Agency employees in Tallahassee who reviewed the application, Kim Walsh and Tom Rice, testified without dispute that a lease agreement is an essential part of an application, and without the document, they had no choice under the law except to deny the application. Neither Walsh nor Rice had knowledge that a partially executed and unsigned lease agreement had been submitted with the first application but was apparently lost or misplaced, or that Lietold had failed to notify Hargrove that this specific item was missing before the packet was sent to Tallahassee. On October 23, 2014, Hargrove requested a hearing to contest the decision. Although she was knew why the application was denied, in her request for a hearing, Hargrove did not indicate any specific material facts in the Notice that were in dispute. Moreover, she never indicated that a lease agreement had been filed with her initial application. According to Mr. Rice, the Agency's Program Administrator, had Hargrove disclosed this fact in her request for a hearing or brought it to the attention of Agency personnel in a timely manner, the matter could have been resolved without a hearing. A formal hearing was conducted by Judge Crapps on February 24, 2015. Just prior to the hearing, a lease agreement was provided to the Agency in the form of a proposed exhibit. Because it was not fully executed, the case was not settled, and an evidentiary hearing was conducted. At the hearing, Hargrove testified that the fully executed lease agreement was at her home. In his Recommended Order, Judge Crapps accepted Hargrove's testimony that a lease agreement had been filed with the initial application but made no finding as to what happened to the document. Even if the agreement was lost by the Tampa office, or was not fully executed, he observed that the Agency did not notify Hargrove within 30 days after the application was filed of any apparent errors or omissions, as required by section 120.60(1). For this reason, he deemed the application complete by operation of law. He also criticized the Agency for failing to specifically identify the missing lease agreement in its email sent on July 29, 2014. He recommended that the Agency reconsider the application and make a decision to approve or deny. The Agency's Final Order adopted the Recommended Order without change and approved the application.
The Issue Whether Appellants were wrongfully denied a variance of 16-17 parking spaces that could allow an existing 2170 square foot restaurant to transfer and use its 2-COP State alcoholic beverage license at 201 South Gulfview Boulevard on Clearwater Beach, in the City of Clearwater.
Findings Of Fact Appellants own real property on the north corner of South Gulfview Boulevard and First Street on Clearwater Beach. The property is in a zoning district designated as CR-28 (Resort Commercial District/Commercial Tourist Facilities), and is primarily used by Appellants to operate a motel business. The surrounding land uses to the north, south and east are primarily motel. To the west is a public parking lot and the beaches. In May 1990, Appellants leased a portion of the ground floor to James B. Mayes so that he could operate a restaurant known as Britt's Beachside Cafe at that location. In order to build a restaurant on premises, 2170 square feet of gross floor area was improved by the lessee. Pursuant to code, 11 parking spaces were needed for the restaurant to meet parking space requirements for an eating establishment at this site. The parking space calculation was made according to the formula of one space per 100 square feet of gross floor area, the general parking formula for restaurants, with a 50 percent reduction allowed for Clearwater Beach locations. Prior to the opening of the business, only 9 off-street parking spaces were allocated to Britt's Beachside Cafe. During May 1990, a variance of 2 parking spaces was requested by Appellants and granted by the Development Code Adjustment Board. At that time, Britt's Beachside Cafe was involved with food and non-alcoholic beverage sales. With the approved variance, the restaurant was granted an occupational license and a certificate of occupancy for the operation of the restaurant at this location. Previously, Mr. Mayes operated his restaurant in a larger motel with a smaller parking lot and fewer parking spaces approximately 60 feet north of the subject property for almost four years. The former restaurant had 120 seats for patrons as opposed to the current 84 seats. Beer and wine was sold in the restaurant under a 2-COP State alcohol beverage license. The beverage license was acquired because this location was exempt from the current city parking requirements under a grandfathering provision of the Clearwater Code. In addition, Mr. Mayes' restaurant was exempt from the code requirement that 51 percent of sales had to be from food and non-alcoholic beverages because the business existed before the ordinance went into effect. When the restaurant moved, the exemption from current parking space requirements remained with the original location, and the exemption from the 51 percent sales from food and non-alcoholic beverages for the business was removed. The 2-COP State alcohol beverage license for Britt's Beachside Cafe, however, was attached to the business and could easily transfer to the new location if local zoning laws permitted its use there. In order to have the alcoholic beverage license transferred to the new business location, the state requires the business to continue with its compliance with local zoning and development laws. To accomplish this, the restaurant is required to have one parking space per 40 square feet of gross floor area, with the 50 percent reduction formulated and allowed for a Clearwater Beach location. As Britt's Beachside Cafe is currently operating under the 11 parking space requirement, 16-17 more parking spaces are needed for the business to transfer the beverage license to the new business location. The actual number of parking spaces for the restaurant on location is During site review prior to the granting of the certificate of occupancy, city staff improperly counted four illegal parking spaces along First Street as legitimate, non-conforming off-street parking spaces. The restaurant caters primarily to persons walking to the restaurant either from adjacent motels or the beach. Few automobiles are driven and parked at Britt's Beachside Cafe. Even when the business was located in the other motel with more seating and fewer parking spaces, parking was never a problem in the area. There is considerable public parking immediately adjacent to Appellant's property, both across the street, and approximately one block to the north. When restaurant patrons are unable to use the parking spaces on location, they park in these convenient public spaces. Since Mr. Mayes relocated his restaurant, he has served beer and wine on premises, without charge. It has always been his intent to transfer his 2- COP State alcoholic beverage license to this new location if permitted to do so through a parking space variance. The City's requirement that the restaurant acquire more off-street parking spaces is factually unnecessary if the sole purpose of the ordinance is to provide parking for the restaurant patrons. At the old location, parking was never a problem. Likewise, no problems exist at the new location. As the restaurant no longer seeks to expand, the major differences a parking variance would make are that Mr. Mayes could charge for the beer and wine served and use his 2-COP license. When Appellants proceeded through the first phase of the approval process to obtain a decision from the Planning and Zoning Board, their conditional use application met with approval. It was determined, however, that the preliminary approval would be subject to the obtainment of a parking space variance, which needed to be decided by the Development Code Adjustment Board. Accordingly, the application proceeded to the second phase. If granted in the second phase, Appellants would go to the City Commission for a variance from the separation requirement. The application for a variance that removes the requirement for 16-17 additional parking spaces to enable the sale of beer and wine on premises was denied by the Development Code Adjustment Board and this appeal followed. The appeal was filed based upon the allegation that the decision of the Development Code Adjustment Board departs from the essential requirements of law. The Code of Ordinances of the City of Clearwater requires additional parking for establishments with alcoholic beverage licenses, which by nature of their license only, can be converted from restaurants to taverns or night clubs. Mr. Mayes' restaurant, which is subject to the additional parking space requirement because of the type of alcoholic beverage license he seeks to transfer, is already prevented from converting to a tavern or a night club by virtue of the restaurant's location in the CR-28 zoning district. In the CR-28 zoning district, all alcoholic beverage sales for consumption on premises shall be located only within a hotel or motel in conjunction with a 4-COP license or within a restaurant deriving 51 percent or more of its gross revenue from the sale of food and non-alcoholic beverages. The restrictive requirement that a 2-COP license be used solely to accompany a restaurant business, as opposed to a tavern or night club in the special CR-28 zoning district, is balanced by the Clearwater Code provision that reduces the required number of parking spaces by 50 percent for Clearwater Beach locations and the opportunity to have a business that sells alcoholic beverages in a resort commercial district. The 2-COP license was acquired prior to the restaurant's move to its current location. If Appellants request for a parking space variance is denied, Mr. Mayes' application for transfer of his beverage license to a new location will likely be denied by the state, pursuant to Section 561.331, Florida Statutes. The request for the variance is based primarily on Mr. Mayes' desire for greater financial return on his business and to keep his 2-COP license attached to the restaurant. The Development Code Adjustment Board has granted parking variances to other 2-COP restaurants before and after Appellants' application in the same zoning district. These variances were based on applications and evidence presented at Board hearings.
Findings Of Fact This case concerns what is-called a "Turnkey Lease". The program was developed by the State of Florida in 1971. It encompasses a situation where by agencies seeking space for their operations may, after a specific need is determined that cannot be filled by existing adequate space, solicit competitive bids from developers for the provision of land and the construction of a building thereon sufficient to-meet the agency's needs, for lease specifically to the agency requesting it. The Bureau of Property Management within DGS was given the initial responsibility to develop the guidelines, promulgate the rules, and seek statutory authority for such a program. The Bureau's current role is to work with agencies requesting this program. The agency certifies the need to the Bureau in addition to the fact that there is no available existing space present. The Bureau then determines agency needs and gives the agency the authority to solicit the bids for the turnkey project. Once the bids are then received, evaluated, and a recommendation for an award is forwarded by the agency to DGS, DGS reviews the supporting documents required by the provision of the Florida Administrative Code and either concurs or does not concur in the recommendation. If DGS concurs, the submitting agency is notified and is permitted to then secure the lease. Once the lease has been entered into; it is then sent back to DGS for review and approval as to the conditions; and thereafter the plans and specifications for the building are also referred to DGS for review and approval as to the quality and adequacy as well as code compliance. Section 255.249 and Section 255.25, Florida Statutes, set forth the requirements for soliciting and awarding bids for lease space in an amount in excess of 2,500 square feet. This provision requires that an award of this nature be made to the lowest and best bidder, and DCS utilizes that standard in evaluating and determining whether or not it will concur with an agency's recommendation. In the instant case, DHRS advertised for bids for the construction of office space in Palatka, Florida for its District III facilities. Before seeking to solicit bids, the District III staff conducted a search for other possible existing space within a five mile radius of the downtown area and located no adequate facilities. Thereafter, a Certification of Need was processed for a solicitation of proposals and approval was granted by DGS to follow through with the solicitation. A preproposal conference was advertised and held on October 14, 1983, and after project review by those present at the conference, bid opening date was set for November 22, 1983. Thirty-two bid packages were distributed and twelve bidders submitted proposals. The public bid opening was held as scheduled at 2:00 p.m., on November 22, 1983, in Palatka, Florida by Robert E. Litza, Facilities Services Coordinator for DHRS District III. Of the bids submitted by the twelve bidders, the lowest hid was rejected because of the failure of the bidder to comply with the requirements of the bid package. Of the remaining eleven bids, the four lowest were evaluated with the understanding that additional higher bids would be evaluated if the four lowest bids were found to be unacceptable. Among the four bids considered were bids of Chuck Bundschu, Inc., Kenneth R. McGurn, one of the Intervenors (McGurn submitted five prices scheduled for his bid and of these, only one was considered); Elizabethan, Petitioner herein; and TSU. Only three bids are pertinent to the discussion here. They are #8-C (McGurn); #11 (Elizabethan); and #12 (TSU). In pertinent particulars, these bids provided as to rental costs: 8-C 11 12 1st yr $14.00/$220,808 $8.95/$ 61,916.10 S 7.16/$ 49,532.88 2nd yr 14.00/ 220,8088 8.95/ 141,159.40 7.35/ 115,924.20 3rd yr 14.00/ 220,808 8.95/ 141,159.40 7.62/ 120,182.64 4th yr 14.00/ 220,808 8.95/ 141,159.40 8.08/ 127,437.76 5th yr 14.00/ 220,808 8.95/ 141,159.40 8.33/ 131,380.76 6th vr 14.00/ 220,808 8.95/ 141,159.40 8.59/ 135,481.48 7th yr 14.00/ 220,808 8.95/ 141,159.40 8.86/ 139,739.92 8th yr 14.00/ 220,808 8.95/ 141,159.40 9.19/ 144,944.68 9th yr 14.00/ 220,808 8.95/ 141,159.40 9.58/ 151,095.76 10th yr 14.00/ 220,808 8.95/ 141,159.40 10.09/ 159,139.48 Renewal Option 1st yr3.00/47,316 9.93/ 156,615.96 10.51/ 165,763.72 2nd yr3.00/47.316 9.93/ 156,615.96 10.99/ 173,334.28 3rd yr3.00/47.316 9.93/ 156,615.96 11.48/ 181,062.56 4th yr3.00/47.316 9.93/ 156,615.96 11.99/ 189,106.28 5th yr3.00/47.316 9.93/ 156,615.96 12.51/ 197,307.72 Total Basic Overall Lease 1-15 yrs $1,971,500 $2,115,430.50 $2,181,434.12 Average Sq.Ft. for 15 yrs $8.60 $9.20 $9.58 A recommendation by the evaluation committee which met at DHRS District III, that McGurn's bid be selected, was forwarded to DGS in Tallahassee through the Director of DHRS's General Services in Tallahassee on December 22, 1983. The terms of the successful bid and the reasons for its being considered lowest and best are discussed below. The successful bid for the lease in question, lease number 590:8030, upon completion of the committee's evaluation was also evaluated by Ms. Goodman in the Bureau of Property Management of DGS. She also considered the McGurn bid to be the lowest and best of the eleven non-disqualified bids. In that regard, not only Mr. McGurn's bid but all of the twelve bids received were considered and reviewed not only at the local level but at DHRS and DGS headquarters as well. In her evaluation of the proposal and the bids, Ms. Goodman considered the documentation submitted by DHRS. This included a letter of recommendation supported by a synopsis of all proposals, the advertisement for bids, and any information pertinent to the site selection process. In determining the McGurn's bid was the lowest as to cost of all the bids, Ms. Goodman compared the average rate per square foot per year for each. This did not take into con- sideration pro-ration of costs per year, but strictly the average over the fifteen year probable term of the lease (ten years basic plus five year option). According to Ms. Goodman, this same method of calculating cost has been used in every lease involving a turnkey situation and in fact in every lease since 1958 - as long as she has been with DGS. This particular method, admittedly, is not set forth in any rule promulgated by DGS. However, the agencies are instructed by DGS to advertise and bidders to bid on an average square foot basis, the basis utilized by Ms. Goodman and her staff in analyzing the bids submitted. In that regard, the request for proposals does not, itself, indicate how the calculation of lowest cost would be made by DHRS and DGS but it does tell prospective bidders what information to submit. This procedure has been followed exclusively in situations like this for may years and many of the bidders here have bid before using this same system. All bidders are considered on the same footing in an evaluation. They are notified of what information will be considered along with that of all the other bidders. Further, anyone who inquires as to the basis for evaluation will be given a straight and complete answer as to the method to be used. Petitioner contends that McGurn's bid does not conform to either the normal bidding procedure followed by contractors in this type of procurement over the past years or to the normal bidding procedures adopted by Respondent, DHRS. It urges that the questioned bid is non-responsive and front-end loaded to the detriment of DHRS. With regard to the front-end loading objection, Mr. Taylor, testifying for Petitioner, attempted to indicate by graphic evidence that Elizabethan's bid, which he claims is not front-end loaded, is cheaper to the State than that of McGurn. Due to the large rental cost of the McGurn bid in the opening years of the lease, the State would have to borrow money to make the large rental payments; the interest cost of which, when added to the $3.00 cost in the option years, raises the cost considerably and makes the bid not the lowest. Though Mr. Taylor testified to this he failed to produce any independent evidence to support it. In addition, Taylor urges, under the McGurn schedule, McGurn would recoup his entire construction debt (approximately $423.00 plus interest) in the first four years of the lease: Comparing the two bids, it appears that the State would pay McGurn approximately $494,500.00 more than it would pay Elizabethan for the same period during the first seven years of the lease. Considering this, it is Taylor's belief that McGurn's profit after the fourth year is excessive. He contends also that when, after the tenth year, McGurn's rental rate drops to $3.00 per square foot for the remaining five years which constitutes the option period of the lease, the State could not afford to leave the low figure and as a result, the ten year lease is converted to a l5 year lease which is unresponsive. Further, the $3.00 figure for the last years, which would ostensibly show a loss to McGurn, is misleading in that there would be sufficient income from the advance profit garnered in years 5 to 10, when invested, to cover the soft costs and more in these later years. Admitting that because of its involvement in other turnkey projects in Florida, Elizabethan is aware of the State policy on cost evaluation, Taylor contends that while his bid does not violate State policy, McGurn's bid does because it would be fiscally irresponsible for the State to pay so much up front. This conclusion is his opinion, however, and not supported by any independent evidence. Both expert witnesses, Respondents Scott and Perry, who testified for the Intervenor, TSU, agree that the present value of money should be considered in evaluating rental costs. Their major point of difference is in the percentage of discount rate to be applied. Dr. Perry urges that use of the 10% rate mandated by the U. S. Government in its procurements of this nature. Dr. Scott, on the other hand, considers this to be too high and urges a rate in the area of 3% be used. The significance of this is that at the lower of the range spread, McGurn's bid is lowest. At the higher end, TSU's bid is lowest. From 5.7% up to below 6%, Petitioner's bid is lowest. Whichever would be appropriate, the State has not adopted the present value of money methodology and the policy followed by the State is not to consider that methodology in analyzing costs. State policy is to use only the average rental methodology. There is, in addition, no prohibition against front- end loaded bids encompassed within this policy. By the same token, there is nothing in the bid package issued to all prospective bidders that in any way stipulates the method of computing lease costs or prohibits from loaded bids. DGS zone rates, criteria stipulating the maximum agencies can send on rent without approval by DGS, are not part of the bid package and do not constitute a factor in determining whether a bid is conforming or not. These zone rates may be waived by DGS at the time the proposed award is submitted for DGS approval. In practice, within the memory of Joseph Lambert, HRS' Administrator of Facilities Services, who administers the Department's leasing program, he cannot recall DGS ever denying a DHRS request for waiver of the maximum zone rate in any case where it was pertinent. In this case, since the lease payments at-least in the second through tenth years-of the McGurn bid exceed the zone limits, the award would have to be approved by the Governor and Cabinet in addition to DGS. It has not yet been placed on the Cabinet agenda because of the protests filed. As was stated before, there are no rules governing the evaluation of bids for leases of this nature. Oral instructions given to each agency, when applied here, reveal that the McGurn bid, as was seen above, has an average cost of $8.86 per square foot per year. TSU's bid costs $9.58 per square foot per year, and Elizabethan's bid costs $9.29 per square foot per year. These same calculations are followed on all turnkey and non- turnkey leases in the State. The reason the State uses this process instead of the present value of money methodology is that it is easy. DGS statistics indicate that at least 50% of the landlords in the approximately $32,000,000 worth of leases presently existing with the State are "Mom and Pop" landlords. These people are not normally trained lease evaluators. By using the straight average rental rate method, there are no arbitrary variables. It has always worked because people can understand it and all agencies which lease property in the State follow this procedure. In the opinion of Ms. Goodman, the costs involved in utilizing the present value of money methodology would far outweigh the paper savings to be gained, notwithstanding the testimony of Dr. Perry to the contrary. With regard to the option issue, it was the position of DGS in reviewing the proposals that the very low $3.00 lease cost per square foot in the last five years (the option period) did not make the McGurn bid unresponsive. There were no limits imposed upon the bidders except that a five year option to a ten year lease be included. Were it not there, the bid would be unresponsive. DGS would issue approval for a ten year lease with a five year option but not a fifteen year lease. Ms. Goodman cannot recall a situation in which an option was not exercised by it if the need for the space continued though there have been some instances where option costs have been renegotiated.
Recommendation Based on the foregoing, it is, therefore; RECOMMENDED THAT DHRS License Number 590:8030 be awarded to Kenneth R. McGurn. RECOMMENDED this 5th day of September, 1984, in Tallahassee, Leon County, Florida. ARNOLD H. POLLOCK Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkwav Tallahassee, Florida 32301 Filed with the Clerk of the Division of Administrative Hearings this 5th day of September, 1984. COPIES FURNISHED: David Pingree, Secretary Department of Health and Rehabilitative Services 1323 Winewood 8Oulevard Tallahassee, Florida 32301 Morgan Staines, Esquire 2204 East Fourth Street Santa Ana, California 92705 Thomas D. Watry, Esquire 1200 Carnegie Building 133 Carnegie Way Atlanta, Georgia 30303 Steven W. Huss, Esquire Department of Health and Rehabilitative Services 1317 Winewood boulevard Tallahassee, Florida 32301 Ronald W. Thomas, Executive Director Department of General Services 115 Larson Building Tallahassee, Florida 32301 Steven W. Huss Assistant General Counsel Department of Health and Rehabilitative Services 1317 Winewood Blvd. Tallahassee, Florida 32301 Gary J. Anton, Esquire P.O. Box 1019 Tallahassee, Florida 32302 Harden King, Agency Clerk Assistant General Counsel Department of Health and Rehabilitative Services 1323 Winewood Boulevard Building One, Suite 406 Tallahassee, Florida 32301
The Issue The issue is whether Respondents are guilty of housing discrimination against Petitioner based on disability, in violation of Section 760.23, Florida Statutes (2003).
Findings Of Fact Petitioner suffered a stroke in September 1997 and was consequently disabled. His right side was impaired. Petitioner's right foot drags when he walks, and his right arm is of limited use. Petitioner is unable to walk long distances or stand for a significant period of time. To walk at all, Petitioner requires the use of a cane or a walker. Petitioner has been in this condition from September 1997 through the date of the final hearing. At all material times, Petitioner has possessed a handicapped parking sticker due to these disabilities. For many years, Petitioner's wife has lived in unit 102 at the Majestic Gardens Condominium, Building "C," Lauderhill, Florida. Petitioner married his wife shortly before suffering the stroke and moved into her condominium unit at Majestic Gardens in December 1997. Petitioner and his wife resided together at unit 102 until April 2001, when they rented the unit and moved to a house in Miramar. All of the buildings at Majestic Gardens Condominiums comprise 238 units. Building "C" is a three-story building with 41 units. Each unit in Building "C" is assigned one parking space. The assigned parking spaces are in close proximity to the entrances of the units. Building "C" provides nine guest parking spaces, but the parking is limited at Majestic Gardens, and these spaces are routinely unavailable. In the case of Petitioner's unit, the assigned space is less than 15 feet from the front door to the ground-floor unit. At all material times, Petitioner's wife has parked her car in this space. The two spaces to the left of Petitioner's assigned space, as one faces the unit, are slightly closer to Petitioner's unit and are designated as guest spaces. Both Respondents are jointly responsible for operating and assigning the parking spaces immediately adjacent to Building "C." From 1998 through 2001, Petitioner and his wife tried unsuccessfully to convince Respondents to designate a parking space in front of their unit as handicapped, so that Petitioner, who can still drive, could park his car directly in front of his unit. Respondents refused to designate a handicapped space because the effect of such a designation would have been that Petitioner and his wife would have had two spaces in front of their unit, when all of the other unitowners had only one space. Respondents have not designated any handicapped parking adjacent to Building "C." They have designated three handicapped spaces at a nearby clubhouse, but, after Petitioner started parking his car in one of these spaces, Respondent Majestic Gardens Condominium Association, Inc., informed Petitioner that these spaces were reserved for use by persons using the recreation facilities. Because Petitioner was not using the recreation facilities, he could not park in one of these handicapped spaces. Later, Respondent Majestic Gardens Condominium Association, Inc., painted over the blue lines and removed the handicapped-parking sign, thus allowing all users of the recreation facilities to park in the three spaces previously reserved for handicapped users of the recreation facilities. At that point, the entire eight-building Majestic Gardens complex lacked any parking designated exclusively for handicapped use. Relations between the condominium management and Petitioner and his wife became strained at times. Petitioner received cautionary notes and threats of towing whenever he parked his car in a guest space. However, Respondents gave Petitioner's wife the names of persons who might be willing to rent their assigned parking spaces. Despite several efforts, Petitioner and his wife were unable to secure another space by this means.
Recommendation It is RECOMMENDED that the Florida Commission on Human Relations enter a final order dismissing the Petition for Relief. DONE AND ENTERED this 19th day of November, 2003, 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 19th day of November, 2003. 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 Stewart Lee Karlin Stewart Lee Karlin, P.A. 315 Southeast 7th Street, Second Floor Fort Lauderdale, Florida 33301 Roosevelt Walters Qualified Representative 1509 Northwest 4th Street Fort Lauderdale, Florida 33311 Florida Donaldson Majestic Gardens Condominium 4045 Northwest 16th Street, Building C Lauderhill, Florida 33313
