The Issue Whether Respondent committed the violations alleged in the respective Administrative Complaints, and, if so, whether Petitioner should impose against Respondent an administrative fine, penalty, and survey fee.
Findings Of Fact DOAH Case No. 13-2011: Failure to Properly Train, Supervise, and Perform CPR Pine Tree Manor is licensed by the Agency for Health Care Administration to operate a 24-bed assisted living facility. The facility's license number is 8317, and it expires on November 13, 2014. On February 12, 2013, the date of the incident that provides the basis for the instant action, Aurelia Cristobal was employed as a staff member at the facility operated by Pine Tree Manor. Spanish is Ms. Cristobal's native language, and her ability to speak English is very limited. Brent Sparks, the owner and administrator at Pine Tree Manor, acknowledged, when interviewed as part of the post-incident investigation, that Ms. Cristobal struggles at times with English, especially when under stress. Mr. Sparks was aware of Ms. Cristobal's limitations with English prior to February 12, 2013. Within a few days of B.Y.'s death, Ms. Cristobal left the United States and is believed to be currently living in Mexico. Ms. Cristobal did not testify during the final hearing. For the period June 15, 2011, through June 15, 2013, Ms. Cristobal was certified by the American Safety & Health Institute in the areas of automated external defibrillation (AED), cardiopulmonary resuscitation (CPR), and basic first aid. In the spring of 2011, Ms. Cristobal received training from Pine Tree Manor in the areas of facility emergency procedures and do not resuscitate (DNR) orders. Pine Tree Manor's written emergency procedures provide, in part, as follows: In all emergencies, it is important to remain calm and display a sense of control. Upsetting our residents will only induce undue stress. DIAL "911" EMERGENCY in the following cases: A medical emergency such as serious injuries or life threatening incidences. Fires Bodily harm to staff or residents such as terrorism, robbery, inclement weather. Call the administrator if there is any question concerning injury or illness, a resident is missing, security of facility is in doubt, or inspectors enter the facility. In the case of any significant changes or emergency, call the family, guardian and a health care provider. Also, contact the administrator. In cases of non-emergency need for transportation to the hospital or emergency room, call SUNSTAR AMBULANCE SERVICE @ 530-1234. In all cases, use common sense and remain calm, and remember to contact the administrator if in doubt. Pine Tree Manor's policy regarding DNR orders provides that: In the event a resident with a signed DNR experiences cardiopulmonary arrest, our policy is for staff trained in CPR/AED to withhold resuscitative treatment. Staff will report to the administrator immediately and in turn notify [the] resident's medical providers and resident representative. For example, staff on duty shall call 911 to report the condition, or if on Hospice [place] a call to (727) 586-4432, the Lavender Team Patient Leader. B.Y. became a resident of Pine Tree Manor on or about December 23, 2010. B.Y. did not execute a DNR directive. On February 12, 2013, between the hours of approximately 5:00 p.m. and 7:00 p.m., Ms. Cristobal was the only employee on site at Pine Tree Manor. According to J.M., who on February 12, 2013, was a resident at Pine Tree Manor, B.Y. entered a common area of the facility where J.M. and other residents were located. J.M. advised that B.Y. sat on the sofa, and started watching television. While on the sofa, B.Y. stopped breathing. The evidence is inconclusive as to how long B.Y. was incapacitated before others learned of her condition. Although it is not clear from the testimony how Ms. Cristobal was informed of B.Y.'s peril, she did, at some point, learn that B.Y. was incapacitated and was experiencing a medical emergency. After learning of B.Y.'s situation, Ms. Cristobal, according to J.M., became nervous and "didn't know what to do." In fact, Ms. Cristobal was so nervous that she did not call 911, she did not check B.Y. for a pulse, and she did not perform CPR on B.Y. Ms. Cristobal did, however, make several attempts to contact Mr. Sparks. Ms. Cristobal eventually reached Mr. Sparks and advised him of the situation with B.Y. The evidence does not reveal how long B.Y. remained incapacitated before Ms. Cristobal was able to speak with Mr. Sparks. When Mr. Sparks received the call from Ms. Cristobal, he was at his residence in Hillsborough County. Pine Tree Manor is located in Pinellas County. Because Mr. Sparks was in Hillsborough County when he received the call from Ms. Cristobal, he was not able to call 911 and be immediately connected to an emergency operator in Pinellas County. Understanding this limitation, Mr. Sparks called the non-emergency number for the Pinellas County Sheriff's office, who, in turn, contacted the 911 operator and informed them of the emergency. In the course of discussing the emergency situation with Ms. Cristobal, Mr. Sparks learned that she had not called 911. Knowing the emergency nature of the situation and the fact that he could not call Pinellas County 911 directly, Mr. Sparks should have directed Ms. Cristobal to call 911, since she was located in Pinellas County, but he did not. Mr. Sparks should have also instructed Ms. Cristobal to start CPR on B.Y., but he did not. According to the Pinellas County Emergency Medical Services (EMS) Patient Care Report for B.Y., the 911 call was received by the 911 dispatcher at 6:11 p.m. and an EMS unit was dispatched to Pine Tree Manor at 6:12 p.m. The EMS unit arrived at the facility at 6:15 p.m. and commenced treating B.Y. at 6:16 p.m. EMS personnel worked for nearly 30 minutes to revive B.Y., but their efforts were unsuccessful. Richard Sherman (EMT Sherman) is a firefighter and paramedic for the Pinellas Suncoast Fire District. EMT Sherman was the first paramedic to arrive at Pine Tree Manor on the day in question. Upon arrival at the facility, EMT Sherman attempted to enter through the facility's main door, but could not gain immediate entry because the door was locked. EMT Sherman rang the doorbell and knocked on the door in an attempt to gain entry into the facility. Resident J.M. opened the door, and EMT Sherman entered the facility. Upon entry, EMT Sherman noticed that B.Y. was unresponsive on the sofa. He also observed at the same time that there were several residents in B.Y.'s immediate area and that there was no staff present. When EMT Sherman arrived, Ms. Cristobal was in another part of the facility assisting a resident who had become upset because the resident was having difficulty satisfying her toileting needs. Approximately a minute after EMT Sherman started resuscitation efforts on B.Y., Ms. Cristobal appeared in the area where B.Y. was located. Because Ms. Cristobal was wearing scrubs, EMT Sherman correctly identified her as a facility employee. EMT Sherman asked Ms. Cristobal if she knew anything about B.Y. and the circumstances surrounding her collapse. Ms. Cristobal did not respond to EMT Sherman's questions. EMT Sherman testified that Ms. Cristobal, after not responding to his questions, simply "looked at [him] and then turned and walked away" towards the main doors of the facility. While continuing to attempt to resuscitate B.Y., EMT Sherman noticed that Ms. Cristobal appeared to be locking the doors that he had just entered. EMT Sherman instructed Ms. Cristobal several times to not lock the doors because more emergency personnel would soon be arriving. Apparently not understanding EMT Sherman's directives, Mr. Cristobal locked the doors. A few minutes later, district fire chief John Mortellite arrived at the facility. EMT Sherman, while continuing to work on B.Y., heard District Chief Mortellite banging on the locked main doors in an effort to gain entry to the facility. A resident eventually unlocked the doors, and District Chief Mortellite entered the building. When asked why Ms. Cristobal would call him in an emergency situation and not 911, Mr. Sparks explained that it was Ms. Cristobal's practice to always call him in an emergency and that he would, in turn, manage the situation. Mr. Sparks, by allowing Ms. Cristobal "to always call him" in emergency situations instead of 911, created an alternative practice that was directly contrary to the facility's written policy which clearly directs employees to "DIAL '911'" when confronted with a medical emergency. Ms. Cristobal was, therefore, not properly trained. Mr. Sparks, by establishing and, indeed, encouraging a practice that shielded Ms. Cristobal from directly communicating with 911, placed B.Y. in a position where there was an unacceptable delay, though not precisely quantifiable, in contacting emergency personnel on her behalf. In a life or death situation such as that experienced by B.Y., every second matters because, as noted by EMT Sherman, "the longer the delay [in receiving medical treatment] the less probability of a positive outcome." When EMT Sherman arrived at Pine Tree Manor, he was completely unaware of the fact that the only employee on site spoke little, if any English. It is, therefore, reasonable to infer that Mr. Sparks failed to inform either the Pinellas County Sheriff's Office or the 911 operator of Ms. Cristobal's limitations with the English language. By Ms. Cristobal's not calling 911, and Mr. Sparks' not disclosing to the 911 operator that the only employee on site had limited English language skills, decedent B.Y. was placed in the unenviable position of having EMT Sherman's attention divided between resuscitation efforts and worrying about whether Ms. Cristobal was able to comply with his instructions. EMT Sherman testified that Pinellas County EMS, including 911 operators, has protocols in place for dealing with individuals that may not speak English. Had either Mr. Sparks disclosed to the 911 operator Ms. Cristobal's language limitations or had Ms. Cristobal herself called 911, protocols could have been implemented by emergency personnel that would have triggered certain safeguards designed to ensure that Ms. Cristobal's language limitations did not interfere with the delivery of emergency services to B.Y. DOAH Case No. 13-2397: Failure to Remain Generally Aware of the Whereabouts of Resident Most recently, R.D., on September 27, 2010, became a resident of Pine Tree Manor. A demographic data information survey was prepared as part of R.D.'s new resident intake process. R.D.'s intake data showed that he was independent in the areas of ambulation, bathing, dressing, toileting, eating, and transferring. R.D. was identified as needing supervision when performing tasks related to personal grooming. It was also noted that R.D. suffered from anxiety and panic attacks. According to R.D.'s brother Tom, R.D. was under the care of a psychiatrist for many years and "suffered from debilitating panic attacks." When suffering a panic attack, R.D. would often lay on the ground or floor, most often in a fetal position, and remain in this position until help arrived. As a part of the new resident intake process, R.D. was assessed for his risk of elopement. The assessment revealed that R.D. was not at risk for elopement and that he was free to "come and go [from the facility] as he pleases" and that he needed to "sign out" whenever leaving the facility. By correspondence dated March 14, 2011, the administration of Pine Tree Manor reminded R.D. that he needed to adhere to the facility's resident sign-out procedure whenever leaving from and returning to the facility. Approximately ten months after reminding R.D. of the facility's sign-out procedure, Mr. Sparks, on January 2, 2012, updated R.D.'s risk assessment form and again noted thereon that R.D. "may come and go as he pleases" and he "[n]eeds to remember to sign out" when leaving the facility. On May 23, 2012, R.D. was evaluated by a physician and it was noted, in part, that R.D. could function independently in the areas of ambulation, bathing, dressing, eating, grooming, toileting, and transferring. As for certain self-care tasks, the evaluating physician noted that R.D. needed assistance with preparing his meals, shopping, and handling his personal and financial affairs. It was also noted that R.D. needed daily oversight with respect to observing his well-being and whereabouts and reminding him about important tasks. The evaluating physician also noted that R.D. needed help with taking his medication.1/ The evaluation was acknowledged by Mr. Sparks as having been received on May 25, 2012. R.D.'s most recent itemization of his medications shows that on October 10, 2012, he was prescribed Clonazepam and Buspirone. The Clonazepam was administered three times a day at 8:00 a.m., noon, and 8:00 p.m. The Buspirone was administered four times a day at 8:00 a.m., noon, 5:00 p.m., and 8:00 p.m. These medications are often prescribed for anxiety, however, R.D.'s medications listing form does not expressly denote why the drugs were prescribed. At 7:58 a.m., on November 10, 2012, an ambulance from the Pinellas County EMS was dispatched to Pine Tree Manor. When the EMS unit arrived at 8:00 a.m., R.D. was found "on the ground or floor" and was complaining of feeling anxious. While being treated by EMS, R.D. took his 8:00 a.m. dose of Clonazepam and was transported to "Largo Med." Less than 24 hours later, EMS, at 4:29 a.m., on November 11, 2012, was dispatched to 13098 Walsingham Road, because R.D. was again complaining of feeling anxious. This location is apparently near Pine Tree Manor, as the EMS Patient Care Report for this service call notes that R.D. "walked to [the] store." Following the evaluation by EMS, R.D. was again transported to "Largo Med." At 12:24 p.m., on November 18, 2012, EMS was dispatched to a location near Pine Tree Manor where R.D. was found "lying supine on [the] sidewalk." According to the EMS report, R.D. advised that he became lightheaded and fell to the ground. R.D. did not complain of any other symptoms and was transported to a medical facility in Largo for further evaluation. At 1:27 p.m., on November 25, 2012, EMS was dispatched to a 7-11 store near Pine Tree Manor. Upon arrival at the store, EMS personnel found R.D. and, when questioned, he advised that he was again feeling anxious. Per R.D.'s specific request, as noted on the EMS report, he was transferred to St. Anthony's Hospital in St. Petersburg. On November 28, 2012, Mr. Sparks made an entry into R.D.'s file and noted that a neurosurgeon evaluated R.D.'s shunt on that date in an attempt to determine if a malfunction was the cause of R.D.'s panic attacks. Mr. Sparks noted in the record that the doctor advised that the shunt was working properly and that the shunt was ruled out as the "cause of [R.D.'s] panic attacks." As of November 28, 2012, Mr. Sparks was aware that R.D. had recently complained of experiencing panic attacks and that the cause of the same had not yet been determined. It was not confirmed, although it was certainly believed by Mr. Sparks, that R.D. was manipulating medical personnel at local treatment facilities for the purpose of securing medication beyond that prescribed by his regular treating physicians. This belief by Mr. Sparks is reasonable especially in light of R.D.'s request to EMS personnel on November 25, 2012, that he was to be transported to a medical facility other than "Largo Med" for treatment related to his feelings of anxiety.2/ R.D.'s medication record for December 4, 2012, shows that he was given his prescribed medication for the 8:00 a.m. dispensing time. Soon after receiving his medication, R.D. left Pine Tree Manor for the purpose of visiting his local congressman's office. According to the survey notes from the investigation related hereto, the congressman's office is located approximately two miles from Pine Tree Manor. Although it cannot be confirmed, it reasonably appears that R.D. walked to the congressman's office. R.D. did not sign out of the facility when he left Pine Tree Manor on the morning of December 4, 2012. R.D. did, however, inform facility staff that he was going to the congressman's office to discuss an issue.3/ Security video from the building where the congressman's office is located established that R.D. arrived at the congressman's office at 9:50 a.m. At approximately 10:45 a.m., a representative from the congressman's office called Pine Tree Manor and informed them that R.D. was ready to return to the facility. The person receiving the message from the congressman's office contacted Mr. Sparks and informed him that R.D. was requesting a ride back to Pine Tree Manor from the congressman's office. Mr. Sparks was assisting another resident at a local hospital when he received the request to transport R.D. and was, therefore, unable to transport R.D. from the congressman's office. Pine Tree Manor had no obligation to provide transportation services to R.D. Surveillance video from the building where the congressman's office is located confirmed that R.D. exited the building on December 4, 2012, at approximately 10:50 a.m. R.D.'s body was found on December 12, 2012. It is not known what happened to R.D. between the time he left the congressman's office and when his body was eventually discovered.4/ When Mr. Sparks returned to Pine Tree Manor on December 4, 2012, he was advised by staff that R.D. had not returned from the congressman's office. According to the posted work schedule for December 4, 2012, Mr. Sparks worked from 7:00 a.m. to 5:00 p.m. When Mr. Sparks left Pine Tree Manor on December 4, 2012, R.D. had not returned. Mr. Sparks, upon leaving the facility for the day, instructed staff (Aurelia Cristobal) to call him when R.D. returned. Ms. Cristobal's shift ended at 8:00 p.m. Pine Tree Manor employee Laura Munoz worked from 7:00 p.m. on December 4, 2012, to 7:00 a.m. on December 5, 2012. Ms. Munoz was not responsible for assisting R.D. with his medication, so it is unlikely that she would have known that R.D. missed receiving his medication prior to her arrival at work. Because Mr. Sparks left Pine Tree Manor on December 4, 2012, before Ms. Munoz arrived for work, he called Ms. Munoz after her shift started (precise time unknown) and requested that she call him upon R.D.'s return. There were no instructions given to Ms. Munoz by Mr. Sparks as to what she should do if R.D. did not return by some time certain. On December 4, 2012, Mr. Sparks knew that R.D. had never spent the night away from Pine Tree Manor without someone at the facility knowing R.D.'s whereabouts and that R.D. had never gone unaccounted for a period greater than 12 hours. On December 5, 2012, Mr. Sparks' scheduled work time was from 7:00 a.m. to 5:00 p.m. Prior to reporting to the facility on the morning of December 5, 2012, Mr. Sparks learned that R.D. had not returned to his room during the night shift. The exact time is not known when Mr. Sparks acquired this information, but it was likely sometime around 6:30 a.m. After learning that R.D. was still unaccounted for, Mr. Sparks immediately began canvassing the area near Pine Tree Manor. Around this same time, Mr. Sparks contacted R.D.'s brother and apprised him of the situation. At approximately noon on December 5, 2012, Mr. Sparks contacted the Pinellas County Sheriff's Office and reported R.D. missing. Pine Tree Manor has an elopement and missing residents policy that provides, in part, as follows: Residents may come and go as they please and shall not be detained unless family/resident representative and administrator agree supervision is required. A resident leaving the facility should either sign out by the front door or inform a staff member of their departure and provide an estimated time of return. The staff person should sign the resident out and notify other staff on duty. . . . If a resident . . . is deemed missing, staff shall immediately search the entire facility inside and around the facility grounds. . . . Whenever a resident is not found within the facility or its premises, the Administrator will: Notify the resident's representative. Notify the County Sheriff's Department by calling 911. Provide staff and searching parties with information and photo I. D. Instruct the staff to search inside the facility and the premises, the adjacent residential properties to the facility, up and down 131st Street, 102nd Avenue and the cross streets.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Petitioner, Agency for Health Care Administration: Enter in Agency Case No. 2013002572 (DOAH Case No. 13-2397) a final order finding that Respondent, Pine Tree Manor, Inc., d/b/a/ Pine Tree Manor, committed a Class II violation and assessing an administrative fine of $5,000.00 and a survey fee of $500.00. Enter in Agency Case No. 2013004620 (DOAH Case No. 13-2011) a final order finding that Respondent, Pine Tree Manor, Inc., d/b/a/ Pine Tree Manor, committed a Class I violation and assessing an administrative fine of $8,000.00. It is also RECOMMENDED that the final order not revoke Respondent's license to operate an assisted living facility in the State of Florida, but, instead, suspend Respondent's license for a period of 60 days.7/ DONE AND ENTERED this 5th day of December, 2013, in Tallahassee, Leon County, Florida. S LINZIE F. BOGAN 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 5th day of December, 2013.
The Issue The issue in this case is whether Respondent, Laurel Oaks Apartments ("Laurel Oaks"), discriminated against Petitioner, Lawrence Jacobs, Jr., on the basis of his race in violation of the Florida Fair Housing Act.
Findings Of Fact Petitioner is a 22-year-old African-American male. At all times relevant hereto, Petitioner was residing at Laurel Oaks in Temple Terrace, Florida. Petitioner co-habited at Laurel Oaks with a woman, Sade Newton. Petitioner and Newton were expecting a child during the time they resided at Laurel Oaks. Laurel Oaks Apartments is the Respondent. It is a large apartment complex comprised of several buildings. Approximately 70 to 75 percent of the residents of Laurel Oaks are minorities. Petitioner moved into Laurel Oaks on or about November 3, 2009. Petitioner and Newton signed an Apartment Lease Contract (the "Lease") on that date. Petitioner was assigned apartment number 8704 (the "Initial Unit") at a rental fee of $589.00 per month. The term of the Lease was one year. Almost immediately upon taking possession of the Initial Unit, Petitioner began to have some sort of confrontation with a neighboring tenant and his family (hereinafter referred to as the "Neighbor"). Specifically, Petitioner felt that the Neighbor's children were too loud, and that they were disrupting Petitioner's quiet enjoyment of his residence. Petitioner and the Neighbor argued numerous times, and Petitioner reported these arguments to Respondent. Upon receiving Petitioner's complaints about the Neighbor, Respondent offered to let Petitioner out of his Lease or move him to another apartment. In fact, Respondent agreed to allow Petitioner to move into an upgraded apartment with no increase in the rental fee. Respondent also agreed to waive the transfer fee normally associated with moving from one apartment to another. Petitioner believes that Respondent was dilatory in helping him move to a different apartment. However, there is no evidence to support that contention. The assistant community manager, Makell, indicated that she provided Petitioner with four possible options for moving. Some of the units she offered were undergoing painting or repairs and were not immediately available. Makell remembers only one telephone call from Petitioner concerning his potential interest in one of the available units. Petitioner remembers calling regularly to inquire about the units. Makell also remembers Petitioner ultimately asking for a specific apartment, number 8716 (the "Second Unit"). Petitioner and Newton signed a new lease (referred to herein as the "New Lease") for the Second Unit on February 8, 2010, and moved in on that date. The New Lease was also for a term of one year. The Second Unit was an upgrade from the Initial Unit, but Petitioner was not charged a higher rental fee. The Second Unit was, inexplicably, directly "across the way"1 from the apartment where the Neighbor resided. The evidence as to why Petitioner chose that unit or why he agreed to move into that unit was contradictory and confusing. Nonetheless, it is clear that Petitioner at some point voluntarily moved into the Second Unit. Shortly after Petitioner and Newton moved into the Second Unit, they had some sort of domestic squabble. Newton was pregnant with Petitioner's child, and there were some tensions between them. As a result of the squabble, someone called the police. When the police arrived, they talked with Petitioner and Newton for about an hour and then arrested Newton for domestic violence. Petitioner believes Newton had to be arrested pursuant to police policy, i.e., once the police are called to investigate domestic violence, they have to arrest one of the parties. There was no persuasive, non-hearsay evidence to confirm that such a policy exists. All charges against Newton were apparently dropped. However, the significance of Newton's arrest is that it constituted a breach of the New Lease. Paragraph 28 of the New Lease prohibits conduct which infringes on the quiet enjoyment of the apartment complex by other tenants. As a result, Laurel Oaks gave Petitioner and Newton a "Seven Day Notice of Noncompliance Without Opportunity to Cure" (the "Notice"), which effectively evicted them from the Second Unit. Petitioner does not deny that the New Lease was breached; he admitted so in a letter to Respondent dated May 12, 2010, about a week after the domestic violence arrest occurred. In his letter, Petitioner asks Respondent to reconsider its decision to uphold the provision in the New Lease and to rescind the Notice. Despite Petitioner's plea, Respondent stood by its Notice, and Petitioner was forced to move out of the apartment. At some point thereafter, Petitioner and a representative from Laurel Oaks did a "walk-through" of the Second Unit. A tenant who defaulted under a Laurel Oaks lease would normally be liable for any damages and for all rent that came due until the unit was re-leased. Laurel Oaks suggested at the time of the walk-through that Petitioner would receive a prorated refund for the current month (May) and would not be charged for the remainder of the Lease term. However, Petitioner, thereafter, got into an argument with the community manager, Heckinger, and Heckinger decided to pursue all allowable charges against Petitioner. As a result, when Petitioner received his ultimate receipt from Laurel Oaks, it included a demand for payment in the amount of $589.00 for termination of the Lease, forfeiture of Petitioner's $99.00 security deposit, and the remaining May rent amount ($114.00). Petitioner believes Heckinger and other employees of Laurel Oaks did not take him as seriously as other tenants. He believes Heckinger was "nasty" to him, but not to other tenants. Petitioner believes his request to move to a different apartment was not responded to in a timely fashion. Petitioner provided no evidence that any other residents were, in fact, treated differently than he was treated. There was no evidence presented that persons of color, including Petitioner, were treated differently than similarly situated persons. There was no persuasive evidence that any person affiliated with Laurel Oaks treated Petitioner badly or discriminated against him in any fashion. Laurel Oaks actually did more for Petitioner than was required or mandated by the Lease or by law. Petitioner was given the benefit of the doubt, was provided extra accommodation for his problems, and was treated appropriately. Petitioner also admitted that he did not believe the Laurel Oaks employees were racist.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a final order be entered by the Florida Commission on Human Relations denying Petitioner, Lawrence Jacob, Jr.'s, Petition for Relief in full. DONE AND ENTERED this 10th day of December, 2010, in Tallahassee, Leon County, Florida. S R. BRUCE MCKIBBEN Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 10th day of December, 2010.
The Issue Whether Respondent violated the Florida Fair Housing Act as alleged in the Petition for Relief filed with the Florida Commission on Human Relations on July 9, 2007.
Findings Of Fact Based on the oral and documentary evidence presented at the final hearing and on the entire record of this proceeding, the following Findings of Fact are made: Petitioner is a single, widowed mother of two minor sons. She belongs to a protected class under the Florida Fair Housing Act because of her sex and familial status. During the times material to these proceedings, Petitioner owned and resided at 1779 Cambridge Village Court, Ocoee, Florida, within the Villages of West Oaks. As a fee interest owner of a lot within the Villages of West Oaks, she is a member of Respondent homeowners' association. Respondent, a not-for-profit corporation, is managed by a Board of Directors drawn from the homeowners' association members elected by members of the homeowners' association as dictated by its Articles of Incorporation and By-Laws. The Board of Directors employed Southwest Property Management to assist the Board of Directors in the management of the homeowners' association, to carry out the instructions of the Board of Directors in the management of the homeowners' association, and to ensure that the homeowners' association's rules were enforced. During the times material to this proceeding, Gary Comstock, an employee of Southwest Property Management, inspected the residences of the Villages of West Oaks to insure compliance with the Covenants, Conditions, and Restrictions of the Villages of West Oaks and Villages of West Oaks Architectural Standards. The above-mentioned Covenants, Conditions, Restrictions and Architectural Standards contain "general restrictions" that address the appearance of the residential lots within the Villages of West Oaks. For example, Article IV, Section 1(f), of the Covenants, Conditions, and Restrictions reads, in pertinent part, "All lots shall be maintained and landscaped to a standard suitable for this type development." The Architectural Standards Manual further defines landscaping standards by dictating the minimum and maximum height and type of lawn grass and provides additional, more specific, landscaping guidelines. However, these landscaping guidelines include the following: "All lots shall be landscaped and in keeping with the general conformity and harmony of the Villages of West Oaks." As a result, the landscaping rules and guidelines are vague. Petitioner was a member of the Board of Directors and Architectural Review Board that created the referenced Villages of West Oaks Architectural Standards Manual in September 2004. Between February 29, 2004, and January 10, 2006, Southwest Property Management sent Petitioner nine letters that addressed purported "disrepair of your home," "covenant violations," "need for lawn replacement," "miscellaneous items on porch," and "miscellaneous items in driveway." During the same general period of time, a significant number of homeowners' association members, female and male (Mr. or Mrs.), apparent single female (Ms.), and apparent married couples (Mr. and Mrs.), received similar letters addressing purported violations similar to those of Petitioner. Petitioner urges that she was discriminated against because of her sex and the fact the she had two teenage boys. Petitioner alleges that this discrimination was manifest in her receipt of the complaints regarding the maintenance of her home and yard. The sheer volume of similar letters to other homeowners and visual evidence received does not support this contention. Admittedly, the "landscape rules and guidelines" require subjective assessment, but there isn't any evidence of discrimination based on sex or familial status. In 2006, the Board of Directors sought volunteers to offer themselves as candidates for board positions. Petitioner offered herself as a candidate at a meeting. Apparently, there was then a discussion among Petitioner, board members and other meeting attendees that Petitioner was not qualified to serve on the board because of her extensive history of violations of the homeowners' association rules. The testimony is conflicting as to whether Petitioner withdrew her name from consideration. The homeowners' association's controlling documents do not contemplate the selection process undertaken at this meeting, nor is there a basis in these documents for disqualification based on a history of violation of homeowners' association rules, except for failure to pay assessments. If this prohibition from candidacy for the Board of Directors reflects discrimination, the discrimination is based on Petitioner's purported failure to comply with homeowners' association rules, not because of her sex or familial status. There is no persuasive evidence that the homeowners' association, either by a member of the Board of Directors or an employee of the property management, threatened to place a lien on Petitioner's property.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Florida Commission on Human Relations enter a final order dismissing the Petition for Relief filed by Catherine Hall. DONE AND ENTERED this 18th day of October, 2007, in Tallahassee, Leon County, Florida. S JEFF B. CLARK Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 18th day of October, 2007. COPIES FURNISHED: Denise Crawford, Agency Clerk Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301 Cecil Howard, General Counsel Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301 Catherine Hall 584 Neuman Village Court Ocoee, Florida 34761 Ron M. Campbell, Esquire Cole, Scott & Kissane, P.A. 1645 Palm Beach Lakes Boulevard Second Floor West Palm Beach, Florida 33401-2204
The Issue Whether Petitioner, Sarasota County School Board ("School Board"), has just cause to terminate Respondent, Rebecca Willard's (Respondent), employment as a teacher's aide.
Findings Of Fact Respondent was a teacher's aide at the Oak Park School in Sarasota, which is operated by the School Board. Oak Park School serves students with a broad range of special needs. During the 2007-2008 school year, Respondent was a teacher's aide in a classroom of six autistic children. The disabilities of these children included aggressive and non-verbal children, as well as a child who would run away if not constantly supervised. That classroom was led by one teacher and two aides, including Respondent. That staffing level was necessary for that classroom to ensure the safety of the children. Respondent has a history of excessive absenteeism, which she acknowledged. During the 2007-2008 school year, Oak Park School principal Dan Parrett counseled her informally, and later formally in a noticed meeting, for her excessive absenteeism and reminded her of the critical need for her to be present or inform administration of her absence in sufficient time so that substitute coverage could be arranged. Oak Park School maintained a designated answering machine that staff would use to call in and notify the school of an impending absence, if an employee had not previously notified administration of the absence. For instance, if an employee became ill during the night prior to work, that employee would call the answering machine and advise that he or she was ill and would not be at work. Oak Park School personnel reviewed the messages on the designated answering machine at the beginning of each morning (7:00 a.m.) and would arrange for substitutes for those individuals who left messages that they would be absent. Oak Park School personnel have a difficult time arranging for a substitute if they first learn of an absence later in the morning due to a lack of available substitutes. At all times material to this case, Respondent was aware of the answering machine and the need to inform the Oak Park School administration of any upcoming absence. Respondent failed to report to work at Oak Park School on Monday, April 28, 2008; Tuesday, April 29, 2008; Wednesday, April 30, 2008; and Thursday, May 1, 2008. Respondent did not, nor did anyone on her behalf, notify anyone at Oak Park School or anyone with the School Board prior to these absences that she would not be reporting to work on these dates. Respondent did not, nor did anyone on her behalf, leave a message on the answering machine at Oak Park School at anytime from the end of the school day on Friday, April 25, 2008, through the afternoon of Thursday, May 1, 2008. On May 1, 2008, the fourth consecutive day that Respondent was absent from work without notifying anyone of her absence, the Superintendent recommended Respondent's termination for job abandonment. Respondent testified that the reason she did not report to work the week of April 28, 2008, or leave a message on the answering machine was that she suffered from back spasms and her phone was inoperable. Respondent, however, failed to produce any document or witness to corroborate her statements. Notwithstanding her contention that she could not report to work at Oak Park School on April 28, 2008, or call to advise of her absence, she worked at her second job on Sunday, April 27 and, Monday, April 28, 2008. The undisputed evidence established that Respondent worked at Nokomis Publix on both Sunday, April 27, 2008 (during the afternoon and evening for 8.52 hours), and Monday April 28, 2008 (during the evening for 3.95 hours), which provided her access to a telephone and an opportunity to notify Oak Park School of her absence. Publix's time records for Respondent demonstrate that she was afforded breaks both of those dates and she easily could have made a telephone call and left a message on the Oak Park School answering machine. Because Respondent worked at Publix on Monday evening, April 28, 2008, the assertion that she was suffering from severe back spasms that day and the following days, which precluded her from working at Oak Park School that day is not credible. On April 27 and 28, 2008, Respondent was able to drive to her job at Publix. Respondent conceded that she had an operable motor vehicle the week of April 28, 2008. However, Respondent testified that she was unable to walk down the steps of her apartment or house and drive to the location where she could notify Oak Park School personnel that she would be absent. This testimony is not credible. Contrary to her testimony, Respondent could have notified personnel at Oak Park School, either in person or by telephone prior to her absences, but she did not. Respondent was willfully absent from her teacher's aide position at Oak Park School from April 28, 2008, through and including May 2, 2008. Contrary to her testimony, Respondent could have notified personnel at Oak Park School, either in person or by telephone prior to her absences, but she did not. Respondent voluntarily abandoned her job with the School Board and has no legitimate excuse for her absences. Respondent never requested any type of leave of absence (such as, family medical leave) associated with her absences for the week of April 28, 2008, either before or after that week.
Recommendation Based on the foregoing Findings of Facts and Conclusions of Law, it is RECOMMENDED that Petitioner, Sarasota County School Board, enter a final order that dismisses Respondent, Rebecca Willard, from her position as a teacher's aide. DONE AND ENTERED this 30th day of September, 2008, 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 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 30th day of September, 2008.
The Issue Whether Grandview Landscaping Services, Inc., is liable to Petitioner for the purchase of landscaping trees; and, if so, in what amount.
Findings Of Fact Petitioner, Southeastern Trees, LLC (Petitioner or Southeastern Trees), is a Florida Limited Liability Corporation located in Gainesville, Florida, engaged in the business of commercial tree farming. Keith Lerner is the President of Southeastern, and David Lerner is the Vice President. Respondent, Grandview Landscaping Services, Inc. (Respondent or Grandview), is a Florida corporation headquartered in Ocala, Florida, engaged in commercial landscaping. Grandview is licensed by the Department as a dealer in nursery products, flowers, and sod. In August 2015, John Sapp, Grandview’s owner, visited Petitioner’s tree farm and selected 27 live oak trees to purchase. On December 11, 2014, Mr. Sapp returned to Southeastern Trees and took possession of the 27 live oak trees. Mr. Sapp used his own equipment to haul the trees. Petitioner sent an invoice to Respondent on December 11, 2014, in the amount of $5,724.00 for the 27 live oak trees. The invoice term was “net 30,” allowing 30 days for Respondent to pay in full. After 30 days had elapsed without payment, David Lerner contacted Mr. Sapp to request payment. Mr. Lerner also requested the location of the trees in order to place a lien thereon. According to Mr. Lerner, Mr. Sapp refused to divulge the location of the trees. After 60 days had elapsed without payment, Keith Lerner contacted Mr. Sapp via telephone. According to Keith Lerner, he spoke with Mr. Sapp on March 1, 2015, who informed him the trees were beautiful and Mr. Sapp would “get him a check.” Keith Lerner attempted to reach Mr. Sapp via telephone again on March 10, 2015, and left messages with Grandview’s office and on Mr. Sapp’s personal mobile phone. Mr. Lerner did not receive a return call. On March 25, 2015, Petitioner sent Respondent, via certified mail, a letter requesting payment of $5,724.00 for the 27 live oak trees and “any interest available to us beyond the 30 days of credit that were extended to you.” The letter was delivered to both Grandview’s business address and Mr. Sapp’s home address. The certified mail receipts were returned to Southeastern Trees, signed and dated March 26, 2015. Petitioner filed a complaint with the Department on March 31, 2015, against Southeastern Trees. Petitioner paid a filing fee of $50.00 As of the date of the hearing, Southeastern Trees had not responded to Petitioner’s request for payment.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Agriculture and Consumer Services enter a final order approving the claim of Southeastern Trees, LLC, against Grandview Landscaping Services, Inc., in the amount of $5,774.00. DONE AND ENTERED this 8th day of October, 2015, in Tallahassee, Leon County, Florida. S Suzanne Van Wyk 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 8th day of October, 2015.
The Issue The issues to be resolved in these consolidated cases concern whether the licenses of Myrtle Grove, Inc. and M.H. Mikhchi should be subject to administrative fines for alleged failure to timely correct seven class III deficiencies at Three Oak Manor (hereinafter Respondent) and, if so, in what amount.
Findings Of Fact The Petitioner is the state agency responsible for the licensing and regulation of ALFs in Florida. The Respondent is licensed to operate Three Oak Manor as an ALF in Pensacola, Florida. Ms. Jackie Klug was called as a witness for the Petitioner. She is a public health nutrition consultant and a registered dietitian. Her duties included surveying for both state and federal regulation for ALF's, nursing homes, hospitals, and any other health care facility licensed by the state of Florida. Ms. Klug has been in this position for three years. She is familiar with the surveys at issue in these proceedings. "Tag deficiencies" are an agency manual or policy means of indexing rule violations. Ms. Klug participated in a survey of August 11, 1998. She observed the Respondent to have failed to have menus reviewed by a registered or licensed dietitian annually. Ms. Klug testified she cited "Tag A-807" a rule violation pertaining to the appropriate amounts of food being served to the residents on a daily basis. Ms. Klug observed that the Respondent did not provide the residents with the required daily servings of food. Ms. Klug cited "Tag A-810" for failure to record menu substitutions before or at the time a meal is served. This was based on her observations of what occurred on August 11, 1998. Ms. Klug established that these rule violations are class III deficiencies. Ms. Klug observed deficiencies during the survey of October 1, 1998, as follows: "Tag A-200" for non-compliance with requirements for posting for public view the last Agency for Health Care inspection. "Tag A-205" failure to maintain records, including major incidents. "Tag A-208" failure to report a fire in the facility. "Tag A-804" pertaining to the provision of therapeutic diets according to a written order by the health care provider, as ordered. Ms. Klug observed other deficiencies during the survey of January 21, 1999, as follows: "Tag A-515" failure to maintain minimum staffing levels. "Tag A-804" pertaining to the provision of therapeutic diets according to a written order by the health care provider, as ordered. "Tag A-810" failure to record substitutions before or when the meal is served. These deficiencies are repeat citations from the prior surveys of August 11, 1998 and October 1, 1998. Ms. Klug identified the Petitioner's Composite Exhibit 1, item 6 as a copy of the license for Myrtle Grove, Inc., d/b/a Three Oak Manor with an effective date of August 5, 1998, and with an expiration date of August 4, 2000. Myrtle Grove, Inc., d/b/a Three Oak Manor is the licensee. Ms. Paula Faulkner was called as a witness for the Petitioner. She is a Health Facility Evaluator III. Her duties included investigation of consumer complaints as well as routine surveys. Ms. Faulkner is familiar with the facility at issue. She has had numerous opportunities to survey this facility. Ms. Faulkner participated in the survey of October 1, 1998. Based on her observations at this survey she found a failure to meet minimum staffing requirements in the facility. Ms. Faulkner established that Ms. Donna Danley of the agency found this deficiency still uncorrected at the January 20 through 21, 2000 survey. Ms. Faulkner had no further involvement in this case, other than her participation in the team decision to cite these violations as a class III deficiency. Ms. Klug identified the Petitioner's Composite Exhibit 2, item 1 as a copy of the summary statement of deficiencies for the re-visit survey of January 21, 1999. Based on her observations, the Respondent was out of compliance with state regulation "Tag A-006" pertaining to an un-stageable pressure sore. Ms. Klug identified the Petitioner's Composite Exhibit 2, item 2 as an accurate representation of deficiencies still existing during a re-visit that was made on January 21, 1999, and a re-visit of March 8, 1999. Ms. Klug participated in these surveys. Based on her observations she found the Respondent was still out of compliance due to the fact that "resident No. 7" had a stage-two pressure ulcer which had been identified and was being treated since February 16, 1999. Ms. Klug observed other deficiencies during the re- visit survey of March 8, 1999, which were previously cited on January 21, 1999, as follows: Failure to have a completed evaluation for residents; the nurse on duty failing to have a current license in the state of Florida; failure to maintain documentation on file with regard to the qualifications of individuals performing limited nursing services. In fact, the nurse had applied for Florida licensure but had not yet received it. Ms. Klug identified the Petitioner's Composite Exhibit 2, item 4 as a copy of the Respondent's limited nursing license for Three Oak Manor. The license has an effective date of August 5, 1998, and an expiration date of August 4, 2000. Mr. M.H. Mikhchi is the licensee.
Recommendation Having considered the foregoing Finding of Facts, Conclusions of Law, the evidence of record and the candor and demeanor of the witnesses, it is RECOMMENDED: That the Petitioner, Agency for Health Care Administration, enter a final order imposing fines totaling $2,400.00 against the Respondent, in the aggregate, for failure to timely correct seven class III deficiencies found during the above-referenced surveys, related to both administrative complaints. DONE AND ENTERED this 5th day of October, 2000, in Tallahassee, Leon County, Florida. P. MICHAEL RUFF Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 5th day of October, 2000. COPIES FURNISHED: Michael O. Mathis, Esquire Agency for Health Care Administration 2727 Mahan Drive, Mail Stop 3 Building 3, Suite 3408D Tallahassee, Florida 32308 M. H. Mikhchi, Owner/President Myrtle Grove, Inc., 1012 North 72nd Street Pensacola, Florida 32506 Sam Power, Agency Clerk Agency for Health Care Administration 2727 Mahan Drive Building 3, Suite 3431 Tallahassee, Florida 32308 Julie Gallagher, General Counsel Agency for Health Care Administration 2727 Mahan Drive Building 3, Suite 3431 Tallahassee, Florida 32308 Ruben J. King-Shaw, Jr., Director Agency for Health Care Administration 2727 Mahan Drive Building 3, Suite 3116 Tallahassee, Florida 32308
The Issue The issue in this case is whether the decision of Appellee, City of Clearwater (the "City"), through its Development Code Adjustment Board (the "Board"), to grant a variance that would allow a 7.5-foot side setback for a single family residence proposed by Appellees, Olen K., Jr. and Pamela A. Marks (the "Marks"), is supported by competent and substantial evidence and does not depart from the essential requirements of law.
Findings Of Fact The Marks seek to build a single family residence and detached, four-car garage. The proposed residence is a two-story structure. Both floors of the residence are to be constructed over a recreational area on the ground floor that includes a swimming pool. The residence and recreational area will encompass approximately 5,000 to 6,000 square feet of floor space. The proposed construction site is a lot that is approximately one acre. It is located in a residential area of the City known as Harbor Oaks subdivision. Harbor Oaks is an area of low-density residential land use. The homes in Harbor Oaks are generally estate homes that are non-conforming structures under the City's land development code. Most of the homes in the immediate vicinity of the construction site were built in the late 1920s and early 1930s, including a home that once occupied the Marks' property and was subsequently razed by the previous owners. The construction site is one of approximately 12 lots within the block occupied by Appellants and the Marks. Each of the 12 lots on the block are far more similar than they are different. They share similar topography, size, shape, and physical surroundings. A bluff runs across the back of the 12 lots and terraces down toward Clearwater Harbor. The bluff is a unique topographic feature of the City. Protection of the bluff is one of the goals of the City's comprehensive plan. Each lot fronts Druid Road to the east and abuts Clearwater Harbor to the west. The Intercoastal Waterway runs through the Harbor. Like the other 12 lots on this block, the Marks' lot is long and narrow. It is approximately 94.43-feet wide at its eastern boundary on Druid Road. At its western boundary on Clearwater Harbor, the lot is an equivalent width. The northern boundary of the construction site is approximately 440-feet long. Its southern boundary is approximately 430.52-feet long. The southern boundary of the construction site is the northern boundary of Appellants' lot. The northern boundary of Appellants' lot is approximately 430.52-feet long. The southern boundary is approximately 418-feet long. Appellants' lot is approximately 94.90-feet wide at its eastern boundary on Druid Road. It is approximately 91.62-feet wide at its western boundary on Clearwater Harbor. All 12 of the lots on the block are zoned RS 2. RS 2 zoning requires 15-foot side setbacks. The Marks seek a variance that would allow a side setback of 7.5-feet. 2/ The Board Meeting The Marks' presented their application and supporting evidence at the Board's regular meeting conducted on December 12, 1996. The Marks' architect represented them before the Board. Appellants were represented by their attorney. The Board considered evidence consisting of the unsworn presentation of its staff report, the sworn testimony of the representatives for the Marks and the Appellants, a document that is hearsay and purports to evidence the acquiescence to the variance by the Marks' neighbor to the north, and the unsworn statement of Mr. Marks. The Board discussed the evidence and related issues. A motion to grant the variance was made, seconded, and approved by a 4-1 vote; subject to two standard conditions that are not relevant or material to this proceeding. Appellants appealed the decision of the Board in accordance with the requirements of Code Sections 36.065(2) and (3). The matter was referred to DOAH for assignment of an Administrative Law Judge to hear the appeal. Scope Of Review Unlike an administrative hearing conducted pursuant to Section 120.57(1), Florida Statutes (1995), 3/ this is not a de novo hearing. It is an appellate hearing. Where an administrative tribunal such as DOAH acts in an appellate capacity, the lower administrative tribunal, the Board in this case, is the finder of fact. DOAH does not reweigh the evidence or formulate final agency action. The appellate review is limited to a determination of whether the Board's findings are supported by competent and substantial evidence. 4/ The City has created a peculiar procedure for appellate review of the Board's decision. The City requires the Administrative Law Judge to determine whether the Board's decision is supported by competent and substantial evidence before the Board at the time of its meeting and by additional evidence before the Administrative Law Judge, even if the additional evidence was not before the Board when the Board made its decision. In relevant part, Code Section 36.065(6)(a) provides: Although additional evidence may be brought before the . . . [judge], the hearing shall not be deemed a hearing de novo, and the record before the board shall be incorporated into the record before the . . . [judge], supplemented by such additional evidence as may be brought before the . . . [judge]. (emphasis supplied) Code Section 36.065(6)(d) limits the Administrative Law Judge to a decision that either affirms or reverses the decision of the Board. The Administrative Law Judge can impose any reasonable conditions that the Board could have imposed. However, no other exception to the requirement to affirm or reverse the Board's decision is authorized in the Code. Code Section 36.065(6)(b) requires the decision of the Administrative Law Judge to be guided by the City's comprehensive plan and established case law. In addition, Code Section 36.065(6)(a) requires the decision of the Administrative Law Judge to be based on evidence relevant to the guidelines prescribed in the Code for variances. In relevant part, Code Section 36.065(6)(a) provides: The . . . [judge] shall review the record and testimony presented at the hearing before the board and the . . . [judge] relative to the guidelines for consideration of . . . variances as contained in . . . chapter 45 . . . . The guidelines for consideration of variances are prescribed in Code Section 45.24. Code Section 45.24 provides: A variance shall not be granted unless the application and evidence presented clearly support all of the following conclusions: There are special circumstances related to the particular physical surroundings, shape or topographical conditions applicable to the land or buildings, and such circumstances are peculiar to such land or buildings and do not apply generally to the land or buildings in the applicable zoning district. The strict application of the provisions of the code would deprive the applicant of the reasonable use of the land or buildings. The variance is not based exclusively upon a desire for economic or other material gain by the applicant or owner. The granting of the variance will be in harmony with the general purpose and intent of the land development code and comprehensive plan and will not be materially injurious to surrounding properties or otherwise detrimental to the public welfare. The motion to approve the Marks' application for a variance included a proposed finding that the application and evidence clearly support a conclusion that all of the guidelines for variances prescribed in Code Section 45.24 were met. In relevant part, the motion stated: I move to grant the variance . . . because the applicant has substantially met all of the standards for approval as listed in Section 45.24 . . . . I feel there are special circumstances. I feel that strict application of the provisions of the Code would deprive the applicant of the reasonable use of the land or buildings. I feel that waterfront property and the type of . . . expensive home being built that what's proposed is a reasonable use of . . . this unique property. I don't feel that the variance . . . is based exclusively upon the applicant's desire for economic or material gain. And, finally, I don't believe that, if we grant this variance, it would have a negative impact; certainly not on the neighborhood, and I don't believe on Mr. Walter's property because of the fact that his view would not be impaired. . . . Therefore, I think we should grant it subject to the two conditions as recommended by staff. Tape of Board Meeting on December 12, 1996 ("Taped Record"). The motion was seconded and approved by 4 to 1 vote. Material Gain And Public Welfare 23. It is uncontroverted that the variance is not based exclusively upon a desire for economic or other material gain by the Marks within the meaning of Code Section 45.24(3). The granting of the variance will not be detrimental to the public welfare within the meaning of Code Section 45.24(4). Comprehensive Plan As a threshold matter, the Board made no express finding that the contested variance is in harmony with the general purpose and intent of the land development code and comprehensive plan within the meaning of Code Section 45.24(4). Even if such a finding were deemed to arise by necessary implication, it is not supported by competent and substantial evidence before the Board and the Administrative Law Judge. One of the purposes of the land development code and comprehensive plan is to eliminate non-conforming uses. Neither the code nor the plan seeks to perpetuate non-conforming uses. Numerous variances have historically been granted in Harbor Oaks. The Board granted the variance, in part, based on evidence of similar variances previously given for homes in Harbor Oaks, including Appellants' home. A decision to grant a variance based on variances previously given perpetuates non-conforming uses. 5/ It does not eliminate them. A decision to grant a variance because previous variances were granted is not in harmony with the comprehensive plan's goal of eliminating non-conforming uses. Such a decision is not guided by the comprehensive plan within the meaning of Code Section 36.065(6)(b). The proposed residence will be constructed on the bluff that runs the length of the block. The bluff is a unique topographic feature of the City. Protection of the bluff is a goal and objective of the City's comprehensive plan. The Board made no express finding that construction of the proposed residence and recreation area on the bluff will harmonize with the goal of the comprehensive plan to protect the bluff. Even if such a finding were deemed to arise by necessary implication, it is not supported by competent and substantial evidence before the Board and the Administrative Law Judge. The primary reason for building the house on the bluff is the protection of three oak trees in front of the house. The oak trees are specimen oak trees. The respective circumference of each tree is 42, 42, and 60 inches. The evidence before the Board showed: There are several reasons for the way we have situated the house on the piece of property. There are the three large oak trees. One's 42 inches, and the other one's 42, and then there is a 60. They sit approximately 170 feet back from Druid Road, and then there's another 54 inch oak . . . [on adjacent property] which is to the north . . . and its tree limbs go over . . . almost the total front of this piece of property. . . . All these houses I'm talking about . . . were developed in the late 20s, early 30s. There was a house that was on this piece of property that was tore down, and it actually was built . . . in front of the oak trees. . . . We don't have enough width in the lot to put the traditional garage that would face the street in combination with the tree situation. So, what we're doing, we're putting the garage sideways. It'll be a free standing building. It is roughly 80 feet back from Druid Road. And, then the main front of the house . . . is actually going to be built on top of that bluff, and it is about 190 feet back from the street. . . . In rebuttal to testimony by Appellants' attorney at the Board meeting, the Marks' architect testified as follows: The trees . . . in the middle of the property obviously that is something that attracted us to the property because of the beauty of the trees, but we know the difficulty of building around them. . . . [W]e . . . decided to build the house on the back side of the trees because we didn't want to have a view We're going to have to come right up to the back . . . . And, those are obviously very large trunk trees. So, the idea was to put the house to the back side so that our view was not blocked by the trees. But, we want to keep the trees because obviously it enhances the property. I mean that is the beauty of the property; the trees. So, it's either the front or the back, and we determined to be on the back. . . . Taped Record. The Board granted the variance, in part, to preserve the oak trees. That goal is evidenced by the statement of one of the Board members on the record before the Board voted: Before I forget, I wanted to do something unusual . . . and commend [the architect] upon the imagination of his plans. I think those trees are just fantastic, and I'm not a tree man. But, that's a beautiful layout in taking those trees in . . . . Taped Record. No evidence shows that the preservation of oak trees is either an express or implied goal of the City's comprehensive plan or, if it is, that it takes priority over the express goal of protecting the bluff. There is no evidence that the decision to approve a variance for construction on the bluff in order to spare oak trees is in harmony with the comprehensive plan within the meaning of Code Section 45.24(4). Such a decision is not guided by the City's comprehensive plan within the meaning of Code Section 36.065(6)(b). Reasonable Use The Board's finding that strict application of the 15- foot setback requirement will deprive the applicant of the reasonable use of the land or buildings, within the meaning of Code Section 45.24(2), is not supported by competent and substantial evidence before the Board and the Administrative Law Judge. Rather, evidence before the Board and the Administrative Law Judge clearly shows that the Marks can build a house of 5,000 to 6,000 square feet on the property without the contested variance. The Marks can construct a residence with the same footprint, but without the contested variance, by moving the residence to the front of their lot and removing the oak trees. If the Marks do not wish to destroy the trees, they can change the configuration or size of the proposed residence at its current location. Alternatively, the Marks can build the proposed residence in front of the oak trees. At the Board meeting, the attorney for Appellants asked the architect for the Marks the following question: Can a 5 to 6,000 square foot home be built on the applicant's property without the granting of the side setback variances? The architect answered: Yes, the house can be built. But, it can't take full utilization of this piece of property. And, there is a big difference. Taped Record. Code Section 45.24(2) does not require the evidence to clearly show that failure to grant a variance would deprive the applicants of the full utilization of their property. It requires the evidence to clearly show that failure to grant a variance would deprive the applicants of the reasonable use of their property. There can be a "big difference" between full utilization and reasonable use. Moving the residence toward Druid Road so that the foundation, recreation area, and pool are not constructed on the bluff does not deprive the applicants of the reasonable use of their property. The applicants can build the identical house with no variance by eliminating the oak trees. If the applicants choose to preserve the trees, they can do so by changing the size or configuration of the residence in its current site or by moving the site in front of the trees. Use of the property that includes such an array of choices does not deprive the applicants of the reasonable use of their property within the meaning of Code Section 45.24(2). Injury To Appellants' Property The Board's finding that the granting of a variance will not be materially injurious to Appellants' property, within the meaning of Code Section 45.24(4), is not supported by competent and substantial evidence before the Board and the Administrative Law Judge. The Appellants' representative testified before the Board that the granting of the variance will have: . . . an adverse effect on the Walter's home. It's down closer to the Bay, and the way it's situated on the lot, it will cut off a degree or angle of view to the north. . . . Especially where this house is proposed to be constructed, that setback encroaches in the light, view, and air issues. Taped Record. The Board limited the scope of its inquiry to a determination of the effect of the variance on the view from Appellants' home. The Board did not inquire into other adverse impacts on Appellants' property. Other adverse impacts include those caused by the towering effect of the proposed construction. The proposed construction would tower approximately 40 feet over the Appellants' back yard. A 40-foot tower encompassing 5,000 to 6,000 square feet of floor space would encroach into the Appellants' reasonable use of their property including their view, their light, their air, and their privacy. Moving the proposed construction toward Druid Road would reduce the encroachment caused by the current configuration without depriving the Marks of the reasonable use of their property. Special Circumstances The Board's finding that there are special circumstances related to the particular surroundings, shape, or topographical conditions of the Marks' property that do not generally apply to the land or buildings in the zoning district, within the meaning of Code Section 45.24(1), is not supported by competent and substantial evidence. Rather, the record before the Board and the Administrative Law Judge is replete with evidence of the similarities between the construction site and other properties in the neighborhood. The only special circumstance related to the proposed construction site are the oak trees. The City's land development code makes no provision for the protection of the oak trees.
