Findings Of Fact In January, 1985, Petitioner acquired an existing retail florist business located at 416 Indiantown Road, Jupiter, Florida. Petitioner's business occupied one-half of the building located at that address. The remainder of the building housed La Casa Mexican Restaurant and a Metro Cellular Phone business. At the time that Petitioner acquired the business, the parking lot for the building consisted of 15 spaces and was shared by all three businesses. Six of those spaces were located behind the building and were accessible from an alley. Nine of those spaces, including the handicapped space, were located in front of the building and were accessible from Indiantown Road. The parking lot for the building constituted a legal non-conforming use, that is, it was permitted to exist without meeting current code requirements of the local government. The business lease entered into by the Petitioner on January 21, 1985, for a term of thirty months was essentially a "standard form" lease. However, Petitioner as Lessee and Petitioner's Lessor specifically added to the standard lease language a twenty-fourth clause which provided as follows: Twenty-Fourth: In the event Indiantown Road is widened during the term of this lease and the widening project results in a loss of more than two of the present ten [sic] parking spaces in front of the building, then the rental payments under this lease can be renegotiated by the parties, and if such renegotiations do not result in terms satisfactory to the tenant, the tenant will have the right to cancel this lease with thirty days notice to the landlord. Accordingly, Petitioner specifically retained the right to either stay or vacate the leased premises if the road-widening project resulted in a loss of more than two of the parking spaces in front of the building. The Department subsequently commenced its road-widening project which resulted in the Department's "taking" of two of the parking spaces in front of the building. The Department paid Petitioner's claim for business damages as a result of the loss of two parking spaces in the condemnation proceeding involving Petitioner and the property owner. After the loss of the two parking spaces, the front parking lot was re- designed so as to more closely comply with local code requirements. That re- design of the parking spaces reduced the number of spaces in front of the building by an additional two, resulting in a total reduction of parking spaces in front of the building by four. The re-design left a total of five spaces in front of the building, including a handicapped space. Although a local government can require a legal non-conforming use to be made conforming under certain circumstances, there is no evidence that the local government required the owner of the property leased by Petitioner to re- design the front parking lot according to code requirements. Accordingly, there is no showing that the deletion of the two additional parking spaces was a direct result of the road-widening project. On approximately July 1, 1991, Petitioner moved its retail florist business to 323 West Indiantown Road, Jupiter, Florida. Petitioner relocated its business at that time because Petitioner's president believed that business "...was at a point where it was just going to be falling off." (R. 37). The relocation of Petitioner's business was caused by Petitioner's decision to conduct its business from a different location. Petitioner did not move its business as a direct result of the Department's acquisition of two parking spaces. Accordingly, Petitioner is not eligible for relocation benefits.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a Final Order be entered denying Petitioner's application for relocation benefits. DONE and ENTERED this 3rd day of November, 1993, at Tallahassee, Florida. LINDA M. RIGOT Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 3rd day of November, 1993. APPENDIX TO RECOMMENDED ORDER, CASE NO. 92-7265 The Department's proposed findings of fact numbered 5-8 and 10 have been adopted in substance in this Recommended Order. The Department's proposed findings of fact numbered 1 and 2 have been rejected as being subordinate to the issues involved herein. The Department's proposed findings of fact numbered 3, 4, and 9 have been rejected as not constituting findings of fact but rather as constituting argument of counsel or conclusions of law. COPIES FURNISHED: Ben G. Watts, Secretary Department of Transportation Haydon Burns Building 605 Suwannee Street Attn: Eleanor F. Turner, Mail Station 58 Tallahassee, Florida 32399-0458 James R. Clodfelter Authorized Representative Acquisition Consultant Enterprises, Inc. Boca Bank Corporate Center 7000 West Palmetto Road, Suite 503 Boca Raton, Florida 33433 Charles Gardner, Esquire Department of Transportation 605 Suwannee Street, Mail Station #58 Tallahassee, Florida 32399-0458
The Issue The issue for determination is whether Petitioner has been subjected to an unlawful housing practice in violation of Section 760.23, Florida Statutes.
Findings Of Fact At all times pertinent to these matters, Respondent operated an apartment building, Loutitt Manor, encompassing 177 apartments. The facility caters exclusively to elderly tenants. On August 3, 2001, Petitioner filed a Charge of Discrimination with FCHR alleging that Respondent discriminated against Petitioner in violation of the Florida Fair Housing Act, Part II, Chapter 760, Florida Statutes, and appropriate federal regulation. Allegedly, the discrimination was based on Respondent's failure to make reasonable accommodation for Petitioner's handicap. Following FCHR's Determination of no reasonable cause, dated June 24, 2002, Petitioner filed a Petition for Relief on July 26, 2002. The case was subsequently transferred to DOAH. The testimony of Respondent's facility manager establishes that there are only 100 parking spaces for the 177 apartments in the building. The 100 parking spaces are assigned to specific tenants who are expected to park in their assigned space. Petitioner has an assigned space. A priority list is maintained for persons who need to park closer to the building. Respondent's rules require that anyone desiring to have their name placed on the list for such accommodation must first provide a written request to Respondent's office. Secondly, if the need for closer parking is a personal disability, then the name and address of a third party professional must be provided and the tenant must sign appropriate documentation (medical releases, etc.) to permit Respondent to obtain the medical information necessary to make a reasonable accommodation. Respondent does not place tenants on the priority parking list simply because they possess a handicapped parking placard issued by the State of Florida because 80 percent of the tenants in the facility possess such placards. Petitioner has never specifically complied with Respondent's rule requirements, maintaining that he cannot supply third-party documentation from medical personnel regarding his medical need for a closer parking space, because he is treated by the Veterans Administration (VA) and such personnel are constantly moving to other locations. By a note dated November 2, 2001, Petitioner did provide what he alleges are medical records from the VA clinic that were used by him to obtain a handicapped parking permit. While Petitioner maintains that he suffers from an episodic arthritic condition that impedes his walking the 200 feet from the building to his parking space, the records provided by him to Respondent details that Petitioner "should walk as much as possible" and that a disabled parking permit should be used only in "extreme circumstances." As established by Petitioner's testimony at final hearing, he has not been the subject of illegal discrimination by Respondent. The parties concede that Respondent has one disabled parking space closer to the facility than tenant parking. That space is designated as a handicapped space and bears signage stating that the space may only be used by visitors to the facility. Petitioner initiated this proceeding after he was warned on one occasion that he must move his car from the space or the car would be towed. Petitioner told Respondent's representative he would only be in the space for 15 minutes or less.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law it is RECOMMENDED: That a final order be entered dismissing the Petition for Relief. DONE AND ENTERED this 18th day of October, 2002, in Tallahassee, Leon County, Florida. DON W. DAVIS 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, 2002. COPIES FURNISHED: Denise Crawford, Agency Clerk Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301 Robert Robins, Esquire Post Office Box 1649 Daytona Beach, Florida 32115 Glenn E. Whitener 229 South Ridgewood Avenue, Unit 316 Daytona Beach, Florida 32114 Cecil Howard, General Counsel Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301
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.
The Issue This is an appeal from a resolution of the Monroe County Planning Commission ("Planning Commission") granting the application of Barry J. Mankowitz, M.D., for a variance from the off-street parking requirements of the Monroe County Code. The appeal was transferred from the Planning Commission to the Division of Administrative Hearings pursuant to Article XIV, Monroe County Code, the Hearing Officer Appellate Article. The issue presented in the appeal is whether Resolution No. P33-97 of the Planning Commission should be affirmed, reversed, or modified.
Findings Of Fact Based upon my observation of the witnesses and their demeanor while testifying, the documentary evidence submitted and the entire record compiled herein, I hereby make the following findings of fact. In 1986 DHRS determined the need for a facility in Miami Beach in which to administer various programs, including but not limited to, economic services, food stamps, aged and elderly services and medicaid. In December of 1986 DHRS extended an invitation to bid (Lease No. 590:1802) to individuals or companies interested in providing the type of facility needed in Miami Beach. The Invitation to Bid and Bid Submittal Form for DHRS Lease No. 590:1802 stated that DHRS was seeking approximately 19,198 net rentable square feet of office space to lease within the City of Miami Beach. DHRS desired a ten year lease with a three year option, occupancy by November 1, 1987. January 20, 1987 was established as the bid closing date. The Invitation to Bid and Bid Submittal Form provided in relevant part as follows: Requirements for Bidders to Submit Bids. Control of Property - To submit a responsive bid a prospective lessor must meet one of the following qualifications: Be the owner of record of the facility. Be the lessee of the space to be proposed and present with bid, a copy of lease with documentation of authorization to sublease the facility. * * * (d) Submit documentation of an option to lease the facility with an authori- zation to inturn, sublease. * * * Existing Tenants If the offered space or any portion there- of will be covered by an active lease(s) at the stated availability date, written documentation by the tenant indicating acknowledgment of the bid and ability to vacate premises by the proposed date must be included with the proposal. * * * 14. Parking For this facility the department has determined that a minimum of 120 parking spaces are required to meet its needs. This parking is to be under the control of the bidder, off street, suitably paved and lined. * * * A minimum of 6 spaces of the 120 re- quired must meet the requirements of the Standards for Special Facilities for Physically Disabled, Chapter 13D-1, Florida Administrative Code. 28. Miscellaneous Requirements * * * (8) Bidders must have appropriate and pertinent zoning approval by bid opening date and this must be documented by the City of Miami Beach and such proof must be included as part of the bid submittal form. * * * Attachments Required to be Submitted with Bid Submittal for Existing Building * * * Floor Plan Site Layout * * * Documentation showing bidder as controller of property, if not owner of record. * * * Documented zoning approval from City of Miami Beach. * * * Definition of Terms * * * Existing Building - To be considered as existing, the entire space being bid must be dry and capable of being physically measured to determine net rentable square footage... * * * Evaluation of Bids 1. Bids received are first evaluated to determine technical responsiveness. This includes submittal on bid submittal form, inclusion of required information and date, bid signed and notarized. Non-responsive bids will be withdrawn from further con- sideration. * * * In response to the invitation to bid, four bidders, Procacci, Causeway, Alton Road and Rae Lin Realty (Rae Lin) timely submitted bids to DHRS. After bid openings, DHRS reviewed each bid and prepared an initial comparative synopsis. Upon initial review DHRS determined that Alton Road submitted the only responsive bid. Thereafter, DHRS allowed the three other bidders the opportunity to clarify certain "questionable" parts of their bids in an effort to determine if the bids were in fact non-responsive. After an evaluation of the bid proposals plus the information gathered in the "clarification process," DHRS concluded that the bids of Procacci, Causeway and Rae Lin were non-responsive and that the only responsive bid was that of Alton Road. Procacci's bid was found non-responsive due to an insufficient amount of net square footage and lack of control of parking spaces. Thirteen of the parking spaces offered by Procacci were municipal parking spaces with annual reservations. DHRS allowed Procacci the opportunity to re-measure and possibly re-adjust the square footage submitted in its bid. DHRS also allowed Procacci the opportunity to clarify its control over the municipal parking spaces. Procacci was unable to demonstrate that it could provide the minimum square footage required and could not provide any assurance or documentation that the City of Miami Beach would guarantee the municipal spaces for the full 10 year term of the lease. Procacci's proposal was non-responsive to the invitation to bid. Causeway's bid was found non-responsive because of lack of sufficient net square footage. Causeway was allowed the opportunity to submit floor plans adjusting and clarifying the net square footage contained in its proposal but failed to demonstrate that its proposal would provide the square footage required. Causeway's proposal was non-responsive to the invitation to bid. Rae Lin's bid was found non-responsive because of failure to submit the required zoning approval documentation for the existing building with its bid. Rae Lin was not allowed to clarify this aspect of its bid because zoning approval documentation for the existing building was required to be submitted by the bid opening date. Rae Lin's proposal was non- responsive to the invitation to bid. Alton Road's bid was responsive on its face at the time of bid opening. However, during the initial evaluation process, it was brought to the attention of DHRS that Alton Road might not have actual control over some of its proposed parking spaces. Alton Road was allowed the opportunity to clarify its ability to provide the parking spaces proposed in its bid package. Alton Road was able to demonstrate that it had control over at least 120 parking spaces as called for in the invitation to bid. DHRS found Alton Road's bid responsive in all other respects and gave notice to all bidders of its intent to award the lease to Alton Road, the lowest responsive bidder. Procacci and Causeway submitted timely formal written protests contending that Alton Road's bid is non-responsive. PARKING Alton Road's proposed facility was acquired pursuant to a lease with Potamkin Chevrolet, owner of the property. The lease between Alton Road and Potamkin guaranteed to Alton Road a minimum of one hundred and twenty parking spaces and, if necessary, exclusive right to other parking spaces on property in the proximate vicinity. After bid opening, DHRS was informed by Causeway that two of the parking spaces which Alton Road included in its bid proposal were leased by Potamkin to Causeway and not to Alton Road. During the clarification/evaluation process, Alton Road disputed Causeway's claim and also demonstrated that it's proposal could provide at least 120 parking spaces even if the two parking spaces in question were excluded. In addition, Potamkin owned much of the adjacent property and was bound by its lease with Alton Road to provide 120 exclusive parking spaces. The lease specifically provided that exclusive right to additional parking spaces on property located in the proximate vicinity would be provided if necessary. A portion of Alton Road's proposed parking spaces were being leased by Potamkin to an existing tenant, Miami Beach Wrecker and Towing Services, Inc., at the time of the bid submission. However, there was no evidence that any portion of the property offered by Alton Road would be covered by an active lease of Miami Beach Wrecker or any other tenant on the required availability date of November 1, 1987. The bid submittal form requires that at least six (6) of the one hundred and twenty parking spaces comply with the requirements of the Standards for Special Facilities for the Physically Disabled, Chapter 13D-I, Florida Administrative Code. A complete reading of the bid submittal form in light of Chapter 13D-I, Florida Administrative Code indicates that the invitation to bid contemplated that renovations would be necessary to comply with the handicapped parking specifications and that there was no requirement that the renovations or modifications be completed at the time of bid submission. Alton Road's bid proposal provided for the required six (6) physically handicapped parking spaces. A complete reading of the bid submittal form indicates that bidders were required to include zoning approval for the existing building with their packages but were not required to submit documentation regarding parking space zoning. This interpretation of the bid submittal form's requirements is further supported by the fact that none of the four bidders included documentation as to parking space zoning with their bid proposals and there was no evidence that such a requirement was ever applied to other DHRS bid projects. In its bid proposal, Alton Road submitted one hundred and twenty parking spaces under its control, off-street, suitably paved and lined as required in the invitation to bid. CONTROL OF THE PROPERTY Alton Road's proposed facility was acquired pursuant to a lease between Alton Road and Potamkin Chevrolet. The lease contains a 19 page addendum. Both the lease and addendum are signed by the vice-president of finance of Potamkin Chevrolet. The lease and addendum were executed on January 17, 1987. All signatures on the final page of the addendum are witnessed. The lease specifically states that the addendum is "attached hereto" and "made a part hereof." The bid submitted by Alton Road was responsive to the Invitation to Bid for DHRS Lease Number 590:1802.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is, RECOMMENDED that Department of Health and Rehabilitative Services project lease number 590:1802 be awarded to Alton Road Six Corporation. DONE and ORDERED this 15th day of July, 1987 in Tallahassee, Leon County, Florida. W. MATTHEW STEVENSON Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 15th day of July, 1987. APPENDIX TO RECOMMENDED ORDER, CASE NO. 87-1849BID & 87-1850BID The following constitutes my specific rulings pursuant to Section 120.59(2), Florida Statutes, on all of the Proposed Findings of Fact submitted by the parties to this case. Rulings on Proposed Findings of Fact Submitted by the Petitioner (Procacci) Adopted in Finding of Fact 4. Adopted in substance in Finding of Fact 5. Adopted in substance in Finding of Fact 5. Adopted in Findings of Fact 6, 7 and 8. Adopted in substance in Finding of Fact 6. Adopted in substance in Finding of Fact 7. Adopted in substance in Finding of Fact 8. Adopted in substance in Finding of Fact 9. Adopted in substance in Finding of Fact 10. Rejected as subordinate and/or unnecessary. Adopted in Finding of Fact 10. Adopted in substance in Finding of Fact 2. Rejected as misleading and not supported by the weight of the evidence. Rejected as a recitation of testimony and/or misleading. 15. Rejected as a recitation of testimony/evidence and/or misleading. Rejected as a recitation of testimony and/or misleading. Rejected as a recitation of testimony and/or subordinate. Rejected as subordinate and/or unnecessary. Rejected as misleading and/or subordinate. Rejected as not supported by the weight of the evidence. Rejected as misleading, subordinate and/or not supported by the weight of the evidence. Rejected as contrary to the weight of the evidence and/or misleading. Although Procacci was not afforded the opportunity to substitute other parking for the thirteen (13) municipal parking spaces included in its proposal, Procacci was provided the opportunity to demonstrate to DHRS that the municipal parking spaces would be guaranteed by the City of Miami Beach for the entire term of the lease. This, Procacci failed to do. Rejected as contrary to the weight of the evidence. Rulings on Proposed Findings of Fact Submitted by the Petitioner (Causeway) (a) Rejected as contrary to the weight of the evidence. Rejected as contrary to the weight of the evidence. Rulings on Joint Proposed Findings of Fact Submitted by the Respondents and Intervenor Adopted in Finding of Fact 4. Adopted in substance in Finding of Fact 5. Adopted in substance in Finding of Fact 5. Adopted in Findings of Fact 6, 7 and 8. Adopted in Finding of Fact 6. Adopted in Finding of Fact 7. Adopted in Finding of Fact 8. Adopted in Findings of Fact 6, 7, 8 and 9. Adopted in Findings of Fact 6, 7 and 8. Rejected as subordinate and/or unnecessary. Rejected as subordinate and/or unnecessary. Adopted in Finding of Fact 9. Adopted in Finding of Fact 10. Rejected as subordinate and/or unnecessary. Adopted in substance in Finding of Fact 10. Adopted in substance in Finding of Fact 2. Adopted in Findings of Fact 3 and 15. Adopted in Findings of Fact 3 and 15. Partially adopted in Finding of Fact 15, matters not contained therein are rejected as subordinate. Adopted in substance in Finding of Fact 15. Adopted in Finding of Fact 3. Rejected as subordinate and/or unnecessary. Adopted in Finding of Fact 3. Adopted in Finding of Fact 16. Adopted in Finding of Fact 17. Adopted in Finding of Fact 12. Adopted in substance in Finding of Fact 12. Addressed in Conclusions of Law section. Adopted in Finding of Fact 13. Adopted in substance in Finding of Fact 13. Adopted in substance in Finding of Fact 17. Adopted in substance in Finding of Fact 18. Adopted in substance in Finding of Fact 18. Addressed in Conclusions of Law section. Adopted in substance in Finding of Fact 6. Adopted in Finding of Fact 3 and 36. Adopted in Finding of Fact 3 and 36. Adopted in substance in Finding of Fact 14. Adopted in Finding of Fact 9 and 19. Addressed in Conclusions of Law section. COPIES FURNISHED: M. Carmen Dominguez, Esquire Robert Rich 401 North West Second Avenue Causeway Properties, Inc. Suite 790 160 Sunny Isles Blvd. Miami, Florida 33128 North Miami, Florida 33160 Louisa P. Maurer Pedro Munilla, Esquire Acting Administrator 1401 South West First Street HRS District XI Suite 210 401 North West Second Avenue Miami, Florida 33135 Room 939 Miami, Florida 33128 Gregory L. Coler Secretary Thomas Hinners Department of Health Procacci Real Estate and Rehabilitative Services Management Co. Ltd. 1323 Winewood Blvd. 3200 North Federal Highway Tallahassee, Florida 32399-0700 Suite 221-A Boca Raton, Florida 33431 John Miller, Esquire Acting General Counsel Pablo I. Lopez Department of Health and Facilities Service Mgr. Rehabilitative Services Suite 950 1323 Winewood Blvd. 401 North West Second Avenue Tallahassee, Florida 32399-0700 Miami, Florida 33138 Sam Power Department of Health and Rehabilitative Services 1323 Winewood Blvd. Tallahassee, Florida 32399-0700
The Issue The issue in this case is whether Respondent’s intended award of a lease for office space to a bidder other than Petitioner was clearly erroneous, contrary to competition, arbitrary, or capricious.
Findings Of Fact Respondent, on or about May 18, 1998, advertised and released RFP for Lease No. 800:0184 in order to procure approximately 5,000 square feet of office space in Lake City, Florida. Three timely filed proposals were submitted in response to the RFP. One of the submissions was determined to be nonresponsive and rejected. The two other proposals submitted by Petitioner and William and Willene Giles (Giles) were deemed responsive and evaluated by Respondent personnel. Site visits were made to each of the proposed sites. The sites were then evaluated using a numerical scoring system. Respondent’s initial posting of bid results on August 4, 1998, indicated a tentative award of the lease to Giles. Giles received a total score of 88.5 points. Petitioner received the maximum points with respect to cost, but was given only a total of 75.7 points. The RFP clearly requires that a bidder must provide a site layout drawn to scale which indicates the facility location and dimensions of each parking space. Also, the number of parking spaces assigned to other tenants must be identified. A bidder must agree to provide 25 parking spaces on site for use by Respondent. The site plan submitted with the Giles proposal shows five of the required parking spaces are located on property abutting the Giles property. Those five parking spaces do not currently exist on that property. No ingress or egress is shown on the site plan, although such is required by the RFP. The Giles bid should demonstrate requisite control over the adjacent property utilized in that bid. Such is not the case. Documents submitted to indicate control of the property by Giles are deficient. In addition to holders of life estates in the property, fee owners of the property must also agree to use of the property in conjunction with the lease between Giles and Respondent. The evidence does not establish that the fee owners have provided their consent. Testimony of Mary Goodman, an expert witness on behalf of Petitioner, establishes that the Giles’ bid did not demonstrate the requisite control of the property, specifically the parking area, required by the RFP at the time of bid opening. The Giles bid was not responsive. Petitioner’s bid identifies and offers for lease space in the Lake City Professional Plaza. The drawing submitted with the bid mistakenly identifies the area of the proposed lease space as “Grant Plaza.” Additionally, Petitioner’s bid did not contain a Public Entity Crime Addendum as required by the RFP. Failure to meet this requirement, by terms of the RFP, “will result in immediate disqualification of your proposal.” Other errors in Petitioner’s bid include the drawing submitted in the bid response which depicts parking. The drawing indicates that there are “new” parking spaces which are to be 10 feet wide by 19 feet deep. Under local land use regulations, new regular parking spaces must be 10 feet by 21 feet with a requirement that handicapped spaces measure 12 feet by 20 feet. Petitioner’s bid fails to comport with applicable local land use regulations. On page 2 of the RFP, Respondent reserves the right to reject any and all proposals which are not responsive. Neither the Giles’ bid nor the Petitioner’s is found to be responsive.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is recommended that a Final Order be entered finding none of the bids to be responsive and making such other disposition as may be deemed appropriate. DONE AND ENTERED this 7th day of December, 1998, in Tallahassee, Leon County, Florida. DON W. DAVIS Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 Filed with the Clerk of the Division of Administrative Hearings this 7th day of December, 1998. COPIES FURNISHED: Joseph M. Helton, Jr., Esquire Scott C. Wright, Esquire Department of Juvenile Justice 2737 Centerview Drive Tallahassee, Florida 32399-3100 Robert A. Sweetapple, Esquire Sweetapple, Broeker and Varkas 465 East Palmetto Park Road Boca Raton, Florida 33432 Calvin Ross, Secretary Department of Juvenile Justice 2737 Centerview Drive Tallahassee, Florida 32399-3100 Janet Ferris, Esquire Department of Juvenile Justice 2737 Centerview Drive Tallahassee, Florida 32399-3100
The Issue Whether Petitioners' Petition for Relief from a Discriminatory Housing Practice (Petition for Relief) filed against Respondents should be granted by the Florida Commission on Human Relations (Commission).
Findings Of Fact Based on the evidence adduced at hearing, and the record as a whole, the following findings of fact are made: Samari Lake East (Development) is a residential condominium apartment development located on approximately 16 or 17 acres of land in the City of Hialeah Gardens, Florida. It is one of the largest such developments in Miami-Dade County. The Development is home to a racially and ethnically diverse group of persons. Because of the diversity of its residents, it has been described, appropriately, as a "rainbow community." While the majority of the residents are of Hispanic origin and speak Spanish, many different countries and cultures are represented in the community. There are some, but not a relatively large number of, black and African-American residents. The exact number is difficult to ascertain. No records are kept which keep track of such information. Persons of all ages, including approximately 500 children, reside in the Development. There are no age restrictions barring children from living in the Development. Petitioners are an African-American married couple with eight children. They have owned a two-bedroom, two-bath unit in the Development since approximately 1990. They resided in the unit from approximately 1990 until early July of 2002 when they were forced to vacate because the premises became uninhabitable as a result of an overflow of water and waste materials from within the unit's plumbing system. When they moved into the unit in 1990, Petitioners had only one child and Ms. Williams was pregnant with the couple's second child. At the time that they had to move out of the unit, Petitioners and their children had the following living arrangements: Petitioners and their two youngest children shared the master bedroom; three children (all girls) shared the second bedroom; two children (both boys) shared the living room; and the oldest child (a boy) lived on the balcony, which was enclosed. The Development is comprised of eight five-story multi-family, elevatored buildings having a total of 635 units (60 of which have three bedrooms and two baths, 510 of which have two bedrooms and two baths, and 65 of which have one bedroom and one and a half baths). First-floor units have porches. Units above the first floor have balconies. Most of the balconies, unlike the balcony in Petitioners' unit, are "open."3 Access to the units are by common exterior corridors and catwalks. Pursuant to Section 14A of the Development's Declaration of Condominium, "[e]ach Unit shall be used only as a single family residence" and "[n]o separate part of a Unit may be rented and no short term tenants (i.e., tenants for less than one month) may be accommodated in any Unit." The Development has two phases. Phase I consists of Buildings 1, 2, 3, and 4, which together contain 330 units. One of these units is Petitioners' unit, Unit 2314, which is on the third floor in Building 4. Phase II consists of Buildings 5, 6, 7, and 8, which together contain 305 units. The buildings in Phase I were constructed more than a quarter of a century ago (in or around 1976 or 1977). The buildings in Phase II were constructed sometime later, and, as a result, they are in better general, overall condition than those in Phase I. Each phase has its own swimming pool and clubhouse. Residents and their guests are free to use the swimming pool from 9:00 a.m. to 8:00 p.m. Children under 12 years of age must be accompanied by an adult when at the pool. Persons who use the pool are expected to wear appropriate attire and refrain from activities that endanger themselves or others or that otherwise unreasonably interfere with others' peaceful enjoyment of the pool. The rules and regulations regarding the use of the pool are posted. In addition, individual copies of these rules and regulations are given to the residents. The clubhouse is available for use by residents (for a fee) for parties and similar functions. Residents, if they want to rent the clubhouse, must fill out a form in the management office in the Development and put down a refundable $100.00 rental deposit at least seven days in advance of the date of the desired rental date. If the clubhouse is available on the requested date, the resident will be permitted to use it. There is a $150.00 rental charge. There are parking areas in the Development for residents and visitors. These parking areas include spaces reserved for the handicapped. The resident parking area is closer to the buildings than is the visitor parking area. Each unit is assigned one primary reserved parking space. Since there are not enough parking spaces for each unit to be assigned a second reserved parking space, secondary reserved parking spaces are assigned on a "first come, first served basis." Unit owners fortunate enough to have a secondary reserved parking space must pay $30.00 for a parking sticker (with a bar code), as well as a monthly fee of $20.00. If they do not make these payments, they forfeit the space. Unit owners desiring to obtain a secondary reserved parking space must go to the management office in the Development and make a request that their names be placed on a "waiting list." There are 50 to 60 names on the list at any one time. When a secondary reserved parking space becomes available, the unit owner at the top of the list is awarded the space, provided that the unit's account is current. If the unit owner is delinquent in paying any assessed common expenses, the unit owner will be bypassed and the space will be given to the next non-delinquent unit owner on the list. The Development has a gated, two-lane entrance, at which there is a guardhouse manned 24 hours a day, seven days a week by at least one member of the Development's in-house security staff4 (whose members also patrol the Development on foot and in golf carts). All vehicles must pass through this gated entrance to enter the Development. Hundreds of vehicles pass through each day. The lane farthest from the guardhouse is for residents with reserved parking spaces and current parking stickers (with bar codes) affixed to their vehicles. If the equipment (which includes a laser bar code reader) is working properly, the gate arm will automatically rise when a vehicle with a properly affixed parking sticker is approaching. If the equipment malfunctions, the security guard stationed at the guardhouse will let the resident in (after asking for the resident's name and apartment number and confirming, from a list of current residents, which all security guards are required to carry with them, that the resident lives in the Development). Once inside the gate, the resident must park in his or her unit's assigned space. The lane closest to the guardhouse is for visitors. Visitors must stop at the guardhouse to be cleared for entry and given a yellow visitor's pass (which expires at midnight that day and is good only for that visit) by the security guard on duty. There is a switch inside the guardhouse that the security guard moves to raise the gate arm in the visitor's lane and let properly screened and authorized visitors into the Development. The "post orders" that the security guards are given contain the following instructions regarding their dealing with visitors at the entrance to the Development: The security officer should fill in visitor's pass completely. The unit number, telephone number and the vehicle tag must be written. Do not tear identification numbers off passes. In the future, the security officer will be required to announce all visitors before allowing entry to the property. The only person that can grant a visitor entry, is the person they are visiting. Night & Day shifts should call when there is low traffic, or when suspicion exists. Security must verify the telephone number by: Using a residents telephone list. Do not ask the visitor for the telephone number. In the event that a telephone number is not [o]n the list, you may ask visitor for the number. The officer will thereafter obtain entry clearance from the resident. Place the new telephone number on the list. File an entry in the logbook for building manager. If telephone happens to be disconnected Make an entry in the log and highlight for future follow up. Entry will not be granted without authorization of resident or person being visited. NO PHONE NO ENTRY. After clearance, for the guest, has been obtained, the Security Officer is to: Give visitor a Guest Pass; the pass should be h[u]ng [on] front rear view mirror. Advise guest that pass needs to be visible at all times and th[at] he/she needs to park in visitors parking. Have guest sign the pass on the back, which authorizes us to tow after 2359. Visitors must proceed directly to the visitor parking area (which is to the left of the guardhouse as one enters the Development). The resident parking area is off limits to visitors, except when they are dropping off an infant or a handicapped or elderly person. Security guards on patrol inside the Development attempt to make sure that no persons have entered the Development who do not belong there. It is not unusual for them, particularly in the pool areas in the Development (where uninvited guests have been discovered in the past) to stop and question persons with whom they are unfamiliar to find out if they are residents or invited guests. If a security guard determines that the person is an uninvited guest, the security guard will call the police to obtain a trespass warning against the person. Respondent Samari Lake East Condominium Association, Inc. (Association), was incorporated in August of 1977. Pursuant to the Development's Declaration of Condominium, the Association is responsible for the operation of the Development and the maintenance, repair and replacement of the common elements (that is all parts of the Development except for the units themselves), and unit owners are obligated to pay assessments (regular and special) imposed by the Association for the costs and expenses incurred by the Association in the performance of its duties. The amount of a unit owner's regular assessment (or maintenance fee, as it is sometimes called) is based on the number of bedrooms in the unit and the unit's square footage. It includes charges for water and sanitary sewer services. (The Association is billed by the City of Hialeah Gardens for water and sanitary sewer services provided all of the units in the Development.5 The city does not bill individual unit owners.) According to Section 10B, C, and D of the Development's Declaration of Condominium: Assessments that are unpaid for over fifteen (15) days after the due date shall bear interest at a rate equal to the lesser of (i) eight percent (8%) per annum, or (ii) the maximum legal rate permitted under controlling law, from the due date until paid. In the sole discretion of the Board of Directors, a late charge, in an amount determined by the Board of Directors from time to time, for Assessments not paid when due may be assessed against a delinquent Unit Owner. Regular Assessments shall be due and payable monthly on the first (1st) of each month, unless the Board of Directors shall otherwise determine. The Condominium Association shall have a lien on each Unit for any unpaid Assessments, together with interest thereon, owed by the Unit Owner of such Unit. Reasonable attorney's fees (including fees in appellate proceedings) incurred by the Condominium Association incident to the collection of any Assessment or the enforcement of such lien (whether or not suit is instituted), together with sums advanced or paid by the Condominium Association in order to preserve and protect its lien, shall be payable by the Unit Owner upon demand and shall be secured by such lien. The Board of Directors may take such action as it deems necessary to collect Assessments by personal action, or by enforcing and foreclosing such lien, and may settle and compromise the same, if it shall so determine. Such lien shall be effective from and after the recording of a claim or lien as and in the manner provided by the Condominium Act. The Condominium Association shall be entitled to bid at any sale held pursuant to a suit to foreclose an Assessment lien, and to apply as a cash credit against its bid all sums due the Condominium Association covered by the lien enforced. In case of such foreclosure, the Unit Owner shall be required to pay a reasonable rental for the Unit, and the plaintiff in such foreclosure shall be entitled to the appointment of a receiver to collect such rental from the Unit Owner and/or Occupant. To assist it in discharging its responsibility to maintain the common elements in the Development, the Association employs a maintenance supervisor. Cosme Rodriguez has been employed by the Association as the Development's maintenance supervisor since 1993. He and his wife (who is black) live in the Development. Unit owners have been instructed to come to the management office if they have a maintenance-related complaint. After such a complaint is made, Mr. Rodriguez is sent out to investigate and determine what action if any, the Association should take to address the problem. On occasion, a "specialist," such as a plumber in the case of a plumbing problem, is hired to help. If it is determined that the problem is within the boundaries of the unit (which includes, among other things, according to Section 3B4(e), (f) and (l) of the Development's Declaration of Condominium, "[a]ll plumbing fixtures located within [the unit]," "[a]ll piping, ducts and wiring serving only [the] [u]nit," and "[t]he fresh water pipes, discharge pipes and all other plumbing, pipes and conduits serving only [the] [u]nit"), the Association will not take any action other than to tell the unit owner of its determination. The Development is a much more desirable place to live today than it was in the mid-1990's, when units were selling for less than a third of their present value.6 By the mid-1990's, conditions in the Development had become, in a word, "deplorable," so bad that condemnation proceedings had commenced and one of the buildings (Building 5) had been ordered to be demolished. There were a number of fire code and building code violations, some of which were "life-threatening." The fire alarm system was not operational, and replacement parts could not be found because the system was "obsolete." There were railings on the exterior corridors and catwalks above the first floor that had rusted and were loose. Some railings had already fallen off. The elevators did not work. There were cracks and spalls in the walkways, fire stairs, and building exteriors. Water was leaking into the buildings through the roofs. The swimming pools were closed because the water (which had turned green) was no longer safe to swim in, and they had become a dumping ground for used tires and other unwanted items. Crime was rampant in the Development. Two gangs considered the Development their turf. Light bulbs and fixtures in common areas in the Development were constantly being broken, largely due to gang activity. Consequently, "[t]he place was dark at night." The parking lot was littered with abandoned and stolen vehicles, as well the parts of vehicles. A "clandestine" car repair business was being operated out of the parking lot. When there was a significant rain event, the parking lot would flood because of poor drainage. Sometimes the water would be knee deep. Visitors commonly and, with impunity, parked in residents' reserved parking spaces or elsewhere where they did not belong (such as on the sprinklers). Overpopulation was a serious problem. Notwithstanding the mandate in the Development's Declaration of Condominium that "[e]ach Unit shall be used only as a single family residence," some units were shared by more than one family and had as many as 15 occupants. There were instances where a single room in a unit (either a bedroom or the living room) was rented out by the family living in the unit to another family (or families7), in violation of the prohibition in the Development's Declaration of Condominium that "[n]o separate part of a Unit may be rented " The large number of residents overwhelmed, not only the Development's facilities, but also the Association's financial resources. The cost of water and sewage usage was more than the Association was able to pay. The Association was in arrears to the City of Hialeah Gardens approximately $350,000.00 for water and sanitary sewer services. The Association also owed money for trash removal services. Making it even more difficult for the Association to meet its financial obligations was that some unit owners (particularly the younger ones) were not paying their assessments. With the Association paralyzed by debt, unable to meet its responsibilities, "chaos" reigned in the Development. Finally, in 1995, a group of unit owners, led by Maria Colson, went to court and requested that the Association be placed in receivership and that the court, through a receiver, administer the Association. The request was granted by Miami- Dade County Circuit Court Judge Rosemary Usher Jones, who, in or around September of 1995, appointed Stanley Tate to serve as receiver for the Association.8 In or around November of 1995, Mr. Tate was succeeded as receiver by a team of three persons, one of whom later became the sole receiver. The plight of the unit owners and the Association had not improved appreciably by May of 1996, when Judge Jones appointed Respondent Rafael Penalver to serve as receiver for the Association. Mr. Penalver is a Florida-licensed attorney who has been practicing law since 1976. He presently is a partner in the law firm of Penalver and Penalver, P.A. Since high school, Mr. Penalver has been actively involved in civil rights activities. Among the most notable of these activities was his service as a member of the Commission for four years. Mr. Penalver began actively serving in his capacity as receiver for the Association on July 1, 1996. A couple of months later, Mr. Penalver, on behalf of the Association, contracted with SPM Group, Inc. (SPM), an established community association management firm, to provide a site manager for the Development to oversee the Association's day-to-day operations. The site manager that SPM provided was Respondent Carlos Reyes, one of its employees. Mr. Reyes is a Florida-licensed community association manager. The Association is still in receivership today. Mr. Reyes continues to act as site manager. Mr. Penalver remains the receiver, however, he now serves at the pleasure, and under the supervision, of Miami-Dade County Circuit Court Judge Michael Chavies, who was assigned the case in 1999.9 Judge Chavies is "very involved" in administering the Association. He holds hearings once or twice a month. Unit owners are given the opportunity to address Judge Chavies at these hearings and to air their concerns. Notices of the hearings before Judge Chavies are posted at various places in the Development. These notices are in both English and Spanish, as are all other notices that are posted by Respondents in the Development.10 Unit owners also have the opportunity to attend meetings conducted from time to time by Mr. Penalver and Mr. Reyes (including the annual meeting of unit members, at which Mr. Penalver presents them with a copy of the annual report that he prepares.) Spanish is spoken at these meetings; however, both Mr. Penalver and Mr. Reyes are fluent in Spanish and English,11 and they have never refused any request to serve as interpreter for English-speaking attendees who do not understand or speak Spanish. (Ms. Williams is not someone who would need such help from Mr. Penalver or Mr. Reyes. As she testified at hearing, while she does not read or write Spanish "very well," she does "speak it and understand it."12) The Development has experienced a "turn[] around" in the time that Mr. Penalver and Mr. Reyes have been there. Many physical improvements have been made, and, as a result, the condemnation proceedings that had been initiated before their arrival have been "halted." New railings have been installed.13 There is a new sprinkler system. Fire extinguishers are now properly located (every 75 feet) in the common exterior corridors. A new fire alarm system (including mini-horns in each unit), financed by a special assessment imposed in July 1999, has been installed. The project began in or around late 1999 or early 2000. Efforts to complete the project in a timely manner were stymied by unit owners who did not allow the contractor into their units when asked to do so. In some instances, court orders were needed to gain access. (The contractor experienced some problem, initially, in gaining access to Petitioners' unit.) Four buildings, including Building 4, Petitioners' building, have new elevators, and the elevators in all of the buildings now operate reliably. New lighting has been installed. The swimming pools are open and safe to use. The parking areas have been repaved and equipped with a new storm drainage system, which has alleviated the previous flooding problems. This project (which was first approved in 1995 or 1996, before Mr. Penalver was appointed receiver) was finished in September of 2001. The project cost $377,000.00 and was paid for with federal funds obtained through the Community Development Block Grants program. The recipient of the funds was the City of Hialeah Gardens, not the Association. The funds were administered by Miami-Dade County. Acosta Constructors, which performed work on the project pursuant to a contract with the City of Hialeah Gardens, posted signs (on barricades) in the parking areas, in Spanish, advising motorists as to where there was construction work ongoing and where they therefore could not park. The Association was required by law, after the project had been completed, to increase the size and number of handicapped spaces and to locate these spaces closer to the buildings in the Development than the old handicapped spaces had been. To comply with this requirement, the parking areas had to be reconfigured. The reconfiguration has resulted in a reduction of the total number of parking spaces in the Development, making an already tight parking situation worse. Before the project, there were a total of 953 parking spaces (including resident, visitor, and handicapped spaces). There are now a total of approximately 920 parking spaces, 870 of which are for residents. Of the 870 resident parking spaces, 635 are primary reserved parking spaces (one for each unit) and the remaining spaces are secondary reserved parking spaces. Unit owners had to be assigned new primary reserved parking spaces following the reconfiguration. Mr. Penalver enlisted the assistance of a unit owners' advisory committee to help him determine how these reassignments should be made. Taking into consideration the input he received from the unit owners' advisory committee, Mr. Penalver recommended to Judge Chavies that new primary reserved parking spaces be assigned based on "proximity" (distance from the unit), with first floor unit owners given the opportunity to park directly behind their units, where possible, so as to minimize the noise and other disturbances they had to contend with due to the location of their units and for the additional purpose of enhancing the value of these first-floor units (which have a lower value than comparable units on the floors above them). Judge Chavies adopted Mr. Penalver's recommendation at a hearing held on the matter (of which unit owners were given written notification, in both English and Spanish). Thereafter, Petitioners were assigned a new primary reserved parking space (space number 503), which is farther away from their unit than was their old space (304). Others owning units above the first floor, including Petitioners' next door neighbors (whose new primary reserved parking spaces are next to Petitioners') now also have to walk a greater distance to get from their primary reserved parking space to their unit than they did prior to the reconfiguration of the parking areas. Petitioners' race and familial status played no role in the assignment of their new primary reserved parking space. While much progress has been made, there are still physical improvements that need to made by the Association. The buildings' roofs still leak and need to be repaired. Steps, however, have been taken to fix the problem. A special assessment of approximately $2,000.00 per unit (approved by Judge Chavies) has been imposed for a roof replacement project and a contractor to do the work has been hired. There are still cracks and spalls in the walkways,14 fire stairs, and building exteriors. There are such cracks and spalls in the area outside of Petitioners' unit15 and elsewhere in the Development, including, most notably, in Buildings 1 and 2, which have the greatest number, and in the fire stairs in the Phase II buildings. The next major project the Association intends to undertake (following the completion of the roof replacement project) is the replacement of these fire stairs. After all structural repairs have been made, the buildings will be painted. Petitioners' race and familial status have played no role in the Association's prioritization of physical improvements. The Association's efforts to make physical improvements have been hampered by the failure of some unit owners to pay their assessments when due. Initially, Mr. Penalver simply "begged" delinquent unit owners to pay the money they owed and took no other action. After three years of employing this strategy, he started sending cases to a collection attorney, Michael Chadrow, Esquire, of the law firm of Bakalar, Brough & Chadrow, P. A. (Bakalar law firm) to take appropriate legal action. Since March of 1999, Mr. Chadrow and others in the Bakalar law firm have filed 112 foreclosure actions on behalf of the Association. Once a matter is turned over to the collection attorney, Mr. Penalver takes a "hands off approach" and lets the attorney handle all communications with the delinquent unit owner regarding the unit owner's arrearage. Petitioners were among the unit owners who did not pay their assessments and whose cases were sent by Mr. Penalver to the collection attorney. Petitioners' case was one of the last to be sent,16 even though their outstanding unpaid balance was greater than most, if not all, other delinquent unit owners. They had made no payments from August 31, 1996, until the time Mr. Penalver turned their case over to the collection attorney. As a consequence of being behind in their payments, Petitioners were unable to obtain a secondary reserved parking space. They had requested that their names be placed on the "waiting list" for such a space and they were next on the list when a space became available, but were bypassed because they were in arrears at the time. Petitioners' race and familial status played no role in their not being able to obtain a secondary reserved parking space. Mr. Penalver delayed in turning Petitioners' case over to the collection attorney because he thought that it might be difficult for Petitioners, due to the large size of their family, to meet their financial obligations to the Association. Before sending their case to the collection attorney, Mr. Penalver made an effort to speak with Petitioners. He went to their unit several times and knocked on the door, but no one answered. Mr. Penalver was finally able to make contact with Mr. Williams, when he spotted Mr. Williams outside of Petitioners' unit. Mr. Penalver asked if Williams would be willing to work out a "payment plan." Mr. Williams responded by telling Mr. Penalver that he would be filing a harassment action against Mr. Penalver. Petitioners' race and familial status played no role in Mr. Penalver's decision to send their case to the collection attorney (although their familial status was a factor in his not sending it sooner). Mr. Penalver believed that not pursuing legal action against Petitioners after having waited as long he did for Petitioners to bring their account current would have been unfair to the ninety percent or so of the unit owners who were up-to-date in their assessment payments. On May 1, 2001, a Final Summary Judgment of Foreclosure and Order Taxing Costs and Attorney's Fees was entered against Petitioners and in favor of the Association in Miami-Dade County Circuit Court. As of June 29, 2001, Petitioners had not made any assessment payments since August 31, 1996, and their outstanding unpaid balance was $15,616.00. On that date, faced with the imminent public sale of their unit, they tendered payment to the Association, bringing their account current and satisfying the judgment that had been entered against them. By the next month, Petitioners were already in arrears again, and, in the following months, they continued to fail to make their assessment payments. A second foreclosure action was commenced by the Association against Petitioners in Miami-Dade County Circuit Court. A Final Judgment of Foreclosure was entered against Petitioners and in favor of the Association on October 18, 2002. A Clerk's Certificate of Satisfaction of Final Judgment of Foreclosure was issued on December 19, 2002. Petitioners corresponded in writing with the Bakalar law firm during the time the law firm was working on collecting the monies Petitioners owed the Association. In their correspondence to the law firm, after complaining about the conditions in the Development and the manner in which they and their family and friends had been treated by the Association and its agents, Petitioners expressed their willingness to "come to some type of agreement" with the Association. Following his routine practice, Mr. Penalver determined that the issues raised in the correspondence should be dealt with by the collection attorney handling the case. Despite not having the cooperation of all unit owners, the Association's financial situation is not nearly as bleak now as it was when Mr. Penalver became receiver. For example, the amount of the Association's indebtedness to the City of Hialeah Gardens is presently $35,000.00, a tenth of what it was at the start of Mr. Penalver's receivership. Like the Association's indebtedness, crime in the Development has also been reduced dramatically. A significant contributing factor to the reduction in crime in the community has been the Association's stepped-up efforts to prevent unauthorized persons from gaining entry to and loitering in the Development. The Association's first line of defense against intruders is the security guard stationed at the guardhouse, who is responsible for screening visitors seeking to enter the Development and instructing those permitted entry where to park. Ms. Williams' sister, Iris Thomas, was involved in an incident with security staff at the entrance to the Development on the evening of October 24, 2001. Ms. Thomas had been given a visitor's pass and allowed to enter the Development earlier in the day to pick up three of Petitioners' children. When she returned to the Development with the children,17 she got into a dispute with the security guard manning the entrance. She wanted to drive into the resident parking area closest to Petitioners' unit so she could quickly drop off the children and then leave. The security guard told her, however, that she had to park in the visitor parking area inasmuch as none of the children in the vehicle were infants. Ms. Thomas expressed her displeasure upon being told this. The security guard contacted his immediate supervisor (the shift supervisor that evening), Alexander Santiero, and asked him to come to the guardhouse to assist in dealing with Ms. Thomas. As he approached the guardhouse and started speaking with the security guard, Mr. Santiero saw one of the children in Ms. Thomas' vehicle exit the vehicle and go into the guardhouse. The child apparently touched the switch controlling the gate arm in the visitor's lane because the arm began to rise. Mr. Santiero reacted by getting a portable metal sign to drag over an "access sensor" on the pavement in front of Ms. Thomas' vehicle (on the other side of the gate) so that the arm would lower. As he moved in front of Ms. Thomas's vehicle with the sign in his hand, Ms. Thomas' vehicle lurched forward, hitting Mr. Santiero and injuring his ankle. In anger, Mr Santiero threw the sign that he was still holding onto at Ms. Thomas' vehicle. Police were called to the scene, but no arrests were made. The determination to deny Ms. Thomas access to the resident parking area was in keeping with reasonable Association policy and, like Mr. Santiero's reaction to being hit by Ms. Thomas' vehicle, was not based on racial or other impermissible considerations.18 The security guards who patrol the Development are responsible for checking to see that no unauthorized persons have been successful in gaining entry to the Development. It is also their responsibility to make sure that those who are authorized to be there (invited guests and residents) are acting in compliance with the Association's rules and regulations and, if they are not, to take appropriate action. Discharging these responsibilities frequently draw the security guards to the pool areas, which are magnets for uninvited outsiders who enter the Development by jumping over the fence that separates the Development from the property around it. Ms. Williams has had two encounters with security guards in the pool area (in Phase I) that have left her upset. The first encounter occurred in or around June of 1999. Ms. Williams was in the pool with her two-year old son, who was wearing only a diaper, when she was approached by a security guard asking that she change her son into shorts. Ms. Williams complied with the request. At no time was she told that she could not use the pool. The second encounter occurred in or around June of 2000. Ms. Williams was in the pool area with her children and other family members (her mother-in-law, her younger sister, and a nephew) when she got into a dispute with a security guard who had been dispatched to the area to investigate a complaint of excessive noise. Ms. Williams was unable to convince the security guard that she lived in the Development. Consequently, the security guard asked her and her family to leave. Ms. Williams became "outraged." The security guard contacted Mr. Reyes and asked him to come to the pool area. When he arrived on the scene, Mr. Reyes walked up to Ms. Williams, whom he recognized, and told her to calm down. He then spoke to the security guard and told him that Ms. Williams lived in the Development and that therefore she and her family were entitled to use the pool. The security guard responded by apologizing to Ms. Williams. After speaking with the security guard, Mr. Reyes turned his attention back to Ms. Williams. One of her sons, who appeared to Mr. Reyes to be between six and seven years of age, was naked. Mr. Reyes told Ms. Williams that she and her family could stay in the pool area, but that the young boy needed to have on appropriate attire. There is no indication in the evidentiary record in the instant case that the actions of the security guards and Mr. Reyes in the two pool area incidents related above involving Ms. Williams and her family were the product of any racial animus or any other illicit motivation. Petitioners and their family have not used the pool since the last of these two incidents. They have not done so, however, of their own choosing, not because they have been denied use of the pool. Another common facility that Petitioners have not used is the clubhouse. It cannot be said, though, that they have been unfairly denied use of the clubhouse inasmuch as, at no time, have they followed the established procedure to which all unit owners must adhere in order to be able to enjoy such use. The security guards are not the only ones who patrol the grounds of the Development. Mr. Penalver and Mr. Reyes do so as well. On the evening of March 22, 2001, at around 9:00 p.m., Mr. Penalver observed a young man in a ski cap pulled down to his eyes walking slowly on the "island" between two rows of parked vehicles in the resident parking area. It appeared to Mr. Penalver that the young man was looking inside the parked vehicles. This aroused Mr. Penalver's suspicion, particularly since there had been a car burglary in the Development a couple of nights before. Mr. Penalver approached the young man, whom he did not recognize, and asked him if he lived there. He asked no other questions, nor did he stop or detain the young man. The young man, it turned out, was Darrell Williams, Petitioners' teenage son. Darrell responded to Mr. Penalver's inquiry by calling Mr. Penalver a "racist." He then walked away, went up to his parents' unit, and told them about what had just happened. Mr. Williams decided to call the police "to put this on record" because he believed (erroneously) that Darrell had been unfairly harassed and discriminated against by Mr. Penalver. After contacting the police, Mr. Williams went downstairs to the resident parking area and confronted Mr. Penalver in a hostile manner. He informed Mr. Penalver that he had called the police and demanded that Mr. Penalver wait with him until the police arrived. Mr. Penalver remained with Mr. Williams, waiting for the police to respond to Mr. Williams' call. The police officer who responded to the scene spoke with Mr. Williams and Mr. Penalver, filled out paperwork, and then left. That evening, Mr. Penalver did not treat Darrell any differently than he would have treated anyone else, unfamiliar to him, doing what he observed Darrell doing. The reduction in the Association's indebtedness and in crime in the Development has coincided with a decrease in the number of persons residing in the Development. To address the overpopulation problem that plagued the Development at the time Mr. Penalver took over as receiver, the Association, in November of 1996, adopted, with court approval, the following reasonable occupancy limits, which are consistent with HUD guidelines: a maximum of two persons in a one-bedroom unit; a maximum of four persons in a two-bedroom unit; and a maximum of six persons in a three-bedroom unit. This policy was designed to reduce, not the number of families with children who lived in the Development,19 but the total number of persons of all ages who called the Development home. Notices of this policy are posted at the entrance to every building in the Development. The Association has issued anywhere from 50 to 100 notices of violation to unit owners in violation of this policy. In those instances where the unit having a greater number occupants than allowed is being used by more than one family, a fine has been imposed against the unit owner. The Association has not taken any other action to enforce its adopted occupancy limits. After receiving complaints from Petitioners' neighbors about the noise and the number of persons living in Petitioners' unit, Mr. Reyes, on March 29, 2001, sent Petitioners a notice of violation advising Petitioners that there were "too many people" in their unit. No fine was imposed, however. Although Petitioners continued to be in violation of the occupancy limit for a two-bedroom unit, no enforcement action was taken against them pursuant to Mr. Penalver's instructions. Mr. Penalver, however, did recommend to Petitioners, when there were three-bedroom units available, that they consider moving into such a unit,20 a recommendation Petitioners declined to follow. Mr. Penalver has been criticized by some unit owners for not strictly enforcing the Association's occupancy limits. He has endured this criticism since he "does not have the heart to force people out" due to the size of their families. In addition to the March 29, 2001, notice of violation for having "too many people" in their unit, Petitioners have received several other notices of violation during Mr. Penalver's receivership. Like the March 29, 2001, notice of violation, these other notices of violation were signed by Mr. Reyes (or for him, by his secretary) and contained the following advisement: If the above mentioned violation(s) is(are) true, then we respectfully request that you immediately correct them[.] [I]f you disagree [,] [p]lease notify us in writing within 7 days. If the violation(s) re- occurs, per Florida Statute 718.112[,] . . . you can be subjected to a fine of $50.00 per day up to $1,000.00. Your cooperation in observing the rules and regulations would be greatly appreciated[.] [T]his will help us in maintaining a peaceful and safe place to live. These other violations were based on reports received by Mr. Reyes of misconduct involving Petitioners' children. One notice of violation was dated January 24, 2000. It advised Petitioners that their "account ha[d] been fined $50.00." The violation alleged was "throwing a mustard bottle." Another notice of violation was dated February 7, 2000. The violation alleged was "breaking glass bottle, threatening other children." Mr. Reyes had been told about the incident by two or three young residents (approximately nine to 11 years of age). The children reported to Mr. Reyes that the incident took place on the grounds of the Development. The notice reflected that no fine was being imposed against Petitioners. A few days later, Petitioners received a notice of violation, signed by Mr. Reyes' secretary, advising them a second time of the violation that had been described in the February 7, 2000, notice of violation. This notice of violation, like the February 7, 2000, notice of violation, indicated that Petitioners were not being fined. There was a notice of violation dated February 10, 2000, advising Petitioners that their "account ha[d] been fined $100.00" for "threat[en]ing other kids, picking fights." Petitioners were fined because this was a repeat offense.21 Petitioners received another notice of violation dated February 10, 2000. The violation alleged was "jumping on vehicles." The notice reflected that Petitioners' "account ha[d] been fined $100.00." Earlier in the month, the Development's director of security, Pablo Diaz de la Rocha, had observed two of Petitioners' sons, Larry Williams, Jr., and Jordan Williams, jumping on the hoods of parked vehicles in the Development. Mr. de la Rocha took their names and wrote a report, which he subsequently sent to Mr. Reyes. He also entered into an agreement with Larry and Jordan, allowing them to perform "community service" (by taking to the bus bench, outside the Development's entrance, shopping carts that had been brought into the Development from a nearby supermarket) in lieu of their parents' having to pay a fine for their misconduct. To Mr. de la Rocha's knowledge, Larry and Jordan did not live up to their end of the bargain. It was only after being advised by Mr. de la Rocha of the brothers' noncompliance that Mr. Reyes sent Petitioners the notice of violation described above. Mr. Reyes has not issued a notice of violation every time he has received a complaint about the conduct of Petitioners' children. The notices of violation he has sent to Petitioners (which number no more than seven or eight) represent a very small percentage of the total number of notices he has issued since becoming site manager. Other families whose children have engaged in misconduct of which Mr. Reyes has been made aware have also received notices of violation. Petitioners have not been unfairly singled out. No notice of violation has been sent to Petitioners, nor has any fine been imposed upon them, based on racial considerations or on their familial status. Unfortunately, Petitioners are not able to enjoy the overall improved conditions in the Development because the conditions inside their unit are such that they can no longer live in it. The unit has been uninhabitable since on or about Saturday, July 6, 2002. On that day, Ms. Williams and her children, upon returning to their unit, discovered the unit "ankle deep" in water and waste materials. Ms. Williams telephoned the guardhouse and advised the security guard on duty of the situation. The family then left, taking with them what they could. That same day, Mr. Rodriguez was asked by Mr. Reyes to check out a "plumbing problem" in Petitioners' unit. Mr. Rodriguez went to Petitioners' unit to investigate. It was his routine practice, as maintenance supervisor, to check out all maintenance-related problems referred to him, regardless of who the unit owner was complaining about the problem. He treated Petitioners' complaints no differently than those made by other unit owners. Mr. Rodriguez knocked on the door to Petitioners' unit, but no one answered. He then went up to the roof. Using a motorized snake, he made sure that the main lines servicing Petitioners' unit and the units beneath and above Petitioners' unit (which main lines are common elements that the Association is responsible for maintaining) were unclogged. He then returned to his unit, thinking "everything was okay." The following Monday (July 8, 2002), Mr. Rodriguez was asked to look into a complaint from Petitioners' next door neighbor (in unit 2316) that water was leaking into her unit from Petitioners' unit. Mr. Rodriguez went back to Petitioners' unit. Mr. Williams was there. He let Mr. Rodriguez in and showed him the flooding in the unit. Mr. Rodriguez then returned to the roof. He put the snake down the main lines and found no obstructions. Mr. Rodriguez reported back to Mr. Reyes, telling him that the flooding in Petitioners' unit did not appear to be caused by any problem in the main lines. After obtaining Mr. Penalver's approval, Mr. Reyes hired a plumber to determine the cause of the flooding in Petitioners' unit. The plumber Mr. Reyes hired was Ricardo Frankie. Mr. Frankie has worked as a plumber for the past 23 years. Mr. Frankie came out to the Development the same day he was called (July 8, 2002). After conducting the tests he typically performs to determine the source of a overflow problem in a multi-story building, Mr. Frankie concluded that there was a blockage, not in the main lines, but in a pipe or pipes serving only Petitioners' unit. Before leaving, Mr. Frankie verbally advised Mr. Rodriguez of his conclusion. He subsequently provided a written report. Mr. Rodriquez informed Mr. Williams that, because the obstruction was within the interior boundaries of Petitioners' unit, it was Petitioners', not the Association's, responsibility to take care of the problem. On July 11, 2002, Mr. Williams contacted the Miami- Dade County Health Department complaining that there was "sewage backup throughout [his] building." A Health Department inspector, Paul Silvestri, was dispatched to the Development that same day, but Mr. Silvestri was unable to make contact with Petitioners. Another Health Department inspector, Seidel Sanchez, went to the Development the following day. Based on what he observed and the information he obtained from speaking with Mr. Rodriguez, with Mr. Williams, and with others, Mr. Sanchez decided to issue Mr. Williams an Official Notice to Abate a Sanitary Nuisance, which directed Mr. Williams to abate, within 48 hours, the "unsanitary condition existing on property under [his] control," to wit: "sewage water inside unit 2314, also [going] into unit 2316 closet and room." Petitioners had a plumber, Lee Allen, come to their unit that same day to look at the problem. The Association's failure to take any further action to address the flooding problem in Petitioners' unit was based on the reasonable belief that the Association was under no legal obligation to take such action. Petitioners' race and familial status played no role in the Association's failure to act. In summary, there has been no showing of any acts of commission or omission by Respondents the purpose or effect of which was to disadvantage Petitioners based on their race or familial status.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Commission issue a final order finding that Respondents are not guilty of any "discriminatory housing practice" and dismissing Petitioners' Petition for Relief based on such finding. DONE AND ENTERED this 29th day of April, 2003, in Tallahassee, Leon County, Florida. STUART M. LERNER Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 29th day of April, 2003.
The Issue The issue to be resolved in this proceeding concerns whether the Respondent Department acted fraudulently, arbitrarily, illegally or dishonestly in making a decision to award Central Florida Legal Services, Inc., the Intervenor, a bid concerning a proposed contract to enter into Lease No. 800:0045. Embodied within that general issue are questions involving whether the Petitioner, Robert Allan Weinberg's (Weinberg) response to the Department's Invitation to Bid (ITB) was responsive, was the lowest and best bid and whether the Intervenor's bid was responsive to the ITB and was the lowest and best bid. Finally, it must be determined whether the Department properly evaluated the bid proposals in accordance with legally-acceptable, competitive bidding principles, in an honest and non-arbitrary fashion.
Findings Of Fact This dispute arose upon the Department electing to seek office space for personnel of its District 12, in Daytona Beach, Florida. After considering the type and nature of the facilities it needed, the Department ultimately published a set of specifications for the desired facility in an ITB. The ITB included detailed instructions for preparation and submittal of bids and a relevant form. A pre-bid conference was conducted and thereafter, three vendors submitted bids. One proposal was determined by the Department to be non- responsive because the amount of space contained in the bid proposed by that vendor did not meet the Department's specifications contained in the ITB. That agency decision was not contested. The bid submitted by the Intervenor, as well as the Petitioner, were both determined to be responsive by the Department. After evaluating the proposals based upon criteria contained in the ITB, the Department ultimately determined that the lowest, best and most responsive bid was that submitted by the Intervenor. It notified the bidders of its decision to award the subject bid to the Intervenor, and the Petitioner filed a protest. A formal written protest was timely filed, initiating this proceeding. The issues raised by the parties, concerning the relative responsiveness of the two bids, revolve around the question of adequate parking, the status of existing tenants in the buildings, a consideration required by the terms of the ITB, the question of adequacy of "dry and measurable" space, the question of "location" (including building appearance, appearance of the property, the character of the neighborhood, security issues, design or layout of the proposed space, and provision for future expansion). Petitioner's Responsiveness The Petitioner's response to the ITB is deficient in terms of provisions for parking, as well as concerning the disclosure of the status of existing tenants in the Petitioner's building. The parking facilities offered by the Petitioner do not meet the requirements of the ITB. The ITB requires that 60 parking spaces be available for the exclusive use of the Department. Petitioner's Exhibit 1, Item 21 in evidence (the ITB) provides: For this facility, the Department has determined that a minimum of 60 parking spaces are required to meet its needs. Its parking is to be provided as part of a lease cost to the department. The lessor will grant to the lessee an exclusive right to use 60 parking spaces. Lessor shall submit with this bid submittal a letter certifying that the lessor agrees to the requested number of parking spaces on site, states the number of parking spaces per square foot of space as required by the local zoning jurisdiction and provides a site plan of the parking lot identifying the number of parking spaces assigned to specific other tenants. The purpose of this submittal is to assure parking spaces conform to local jurisdiction requirements of number and size, and that the number of parking spaces requested in this invitation can be achieved without infringing on or combining with the parking requirement of other tenants (emphasis contained in original document). The Petitioner's bid submittal does not show spaces assigned to specific other tenants, as required by the ITB, and does not state the number of parking spaces per square foot of space required by the local zoning jurisdiction, which is the City of Daytona Beach, Florida. The Petitioner proposes to house the Department in two sections of an existing building. Those sections are presently occupied by other tenants. Other space within the building is also presently occupied and will continue to be occupied, even if the Department decides to lease the Petitioner's space at issue. The Petitioner's site plan shows that it has 92 spaces available to serve tenants in that building located on the building site. In addition to those spaces, the Petitioner proposes to use eight (8) additional spaces located off-site. Certain space in the Petitioner's proposed building is presently leased to the Florida Department of Health and Rehabilitative Services (HRS). That lease will remain in effect even if the Petitioner leases the space at issue to the Department. Under that HRS lease, 29 spaces are committed to HRS on an exclusive basis, with six (6) other spaces on a non-exclusive basis. There is additional office space in the building presently occupied by private businesses, which totals 4,470 square feet. Under the City of Daytona Beach Code, the parking requirement for 4,470 square feet of commercial office space, in a building the size of the Petitioner's is 16 spaces. The eight (8) parking spaces off the building site, proposed to be used by the Petitioner, are adjacent to and serve an existing building that also houses a private business. That building has 16 total parking spaces, including the eight (8) which the Petitioner is proposing to allocate to the agency, if the bid is awarded. The building contains 3,900 square feet. Under the City of Daytona Beach Code, it must have a minimum of 14 parking spaces for that square footage. If the Petitioner leased space to the Respondent, its total parking space requirement to serve all of its tenants, including the proposed office space, under the City of Daytona Beach Code, would be 125 spaces. Eighty-nine (89) of those spaces would be for the exclusive use of the Respondent and HRS. The Petitioner's site plan, however, reveals that only 108 spaces are available, including the spaces at the off-site location. Additionally, the existing parking spaces of the Petitioner, designed to serve handicapped persons, do not conform to the current City of Daytona Beach Code. Handicapped parking spaces are required by that Code to be 12 feet wide, with an additional five feet provided for access of handicapped persons. In order to meet this dimensional requirement, the Petitioner's need for parking spaces to accommodate all tenants, will increase by four (4) spaces. He will need a total of 129 spaces to accommodate all tenants, including the Department, should the bid be awarded. He has only 108 spaces available. Mr. Weinberg testified on behalf of the Petitioner, to the effect that the parking lot could be re-configured in order to gain 13 more spaces. This did not include the four additional spaces that would be needed to properly accommodate the handicapped parking spaces to the requirements of the City of Daytona Beach Code. The Petitioner's bid submittal plan, however, does not reflect any site plan involving re-configuration of the parking area. Moreover, it was not established that the reconfiguration proposed by the Petitioner can be accomplished under the mandates of the City of Daytona Beach Code. If it could, the Petitioner would still not have sufficient spaces to meet the requirements in the ITB, as well as the requirements of existing tenant leases and code requirements, concerning parking spaces for relevant amounts of building square footage allocated to the various tenants. The Petitioner's bid also does not meet the criteria of the ITB containing the status of existing tenants. The ITB requires that vendors provide information regarding the rights of existing tenants, including written documentation regarding their status, as that relates to the availability and the time of availability of the space proposed in the bid. The ITB provides, in pertinent part: Existing tenants: If the offered space or any portion thereof (including parking areas) is at present occupied or will be covered by an active lease(s) at the stated availability date, written documentation by the tenant indicating acknowledg- ment of the lessor's bid and ability to vacate premises by the proposed date or earlier to allow lessor's renovation work to be completed must be included with the bid submittal. If the existing tenants are on a month-to-month lease, the bidder must provide a letter of explanation of this condition. There are two existing tenants in the space which the Petitioner has proposed to lease to the Department. The Petitioner offered no written documentation from either tenant indicating acknowledgment of the bid and lessee's ability to vacate the premises. The only information which the Petitioner provided was for one of those tenants and that was not signed nor acknowledged by the tenant. No information was provided, as required by the ITB, as to the other tenant. Intervenor's Responsiveness The Petitioner maintains that the Intervenor's proposed office space was not "dry and measurable" at the time the bid was submitted by the Intervenor. The Petitioner also contends that the Intervenor's bid does not meet the parking facility requirements of the ITB. The criteria in the ITB require a definition of "dry and measurable" space available and also contain provisions allowing the vendor time to complete the facility through renovation, etc., subsequent to the bid submittal, but prior to the occupancy time specified in the ITB. The ITB provides, on page 2 in the second paragraph: Space to be made available: 07-01-95 or within 182 days after notification of bid award, whichever occurs last. Under the heading, "Handicap Standards and Alterations", at page 4 of the ITB, the ITB provides: Lessor agrees that the demised premises now conform, or that, prior to lessee's occupancy, said premises shall, at the lessor's expense, be brought into conformance with the require- ments of Section 553.48, F.S., providing requirements for the physical handicapped and the requirement of public law 101-336, July 26, 1990, known as the "American With Disabil- ities Act of 1990.". . . The proposed space must be in an existing building or a building which is to be complete by July 1, 1995, and is 50 percent complete on the bid deadline submission. To be considered as existing, the entire space must be dry, fully enclosed, and capable of being physically measured, to determine net rentable square footage, at the time of bid submittal. Reno- vations to bring the facility into compliance with all applicable federal, state, and local codes and regulations and/or to meet with desired arrangements are permitted, if carried out in accordance with prescribed procedures: Bids offering multi-story or multi-level buildings must have all stories serviced by an elevator which meets the requirements of DCA accessibility manual . . . (emphasis in original). The Intervenor's proposal meets these requirements. The facility proposed by the intervenor is in an existing building. "Dry and measurable" means that the facility has exterior walls and a roof and is at least enclosed enough as to not to become wet or to be wide open to the elements. The Intervenor's proposed building has exterior walls and a roof and is enclosed with windows and doors secured so that it would not get wet or be open. There is ample space within the Intervenor's existing building to determine the net rentable square footage and to ensure that the square footage being offered meets the bid specifications. In fact, measurement was undertaken by the Intervenor's representative, including its architect, and the space and site plans were made available to representatives of the Department, who were in a position to make the same measurements when they conducted a site visit of the premises. The only part of the facility that was not dry and measurable at the time of bid submission was a proposed new elevator, and entrance space related to the elevator, which the Petitioner has proposed to construct in order to meet the "Americans with Disabilities Act" requirements. The elevator and related space needed to accommodate entrances into the second floor of the building by the elevator were not dry and measurable at the time of bid submission and were not required to be by the terms of the ITB. The express provisions of the ITB allow vendors to renovate facilities in order to meet government regulations "prior to lessee's occupancy." The vendor is not required to have the space ready for occupancy until July 1, 1995, or 182 days after notice of award, whichever is later. The Intervenor has committed to complying with these requirements of the ITB and will be subject to a penalty if it does not, should the bid be awarded. Thus, if the vendor is offering a multi-story building, it is not required to have a handicapped accessible elevator already in place and operating at the time of bid submission. It simply must be installed prior to the lessee's occupancy. Therefore, under the terms of the ITB referenced above, the elevator-related space would not be required to be part of the dry and measurable space computation submitted with the bid. The Department agreed at the pre-bid conference that the 60 exclusive parking spaces it would require, as specified in the ITB, would meet the ITB criteria if within 1,000 feet of the building. In response to this criteria, the Intervenor offered most of the required spaces at the site of its building. It also offered to make spaces available at three other locations as alternatives. It offered to make 48 of the 50 spaces it has on its own building site exclusively available to the Department and also offered 21 parking spaces on "Lot B" or "Parcel B", as delineated in its bid. This lot is within 1,000 feet of the Intervenor's building, which was offered in the bid, and is approximately 350 feet away. It can accommodate the 21 parking spaces, but will necessitate a variance from zoning requirements, in order to place 21 spaces on Lot B. The ITB allows bidders 30 days from the date of any award to deal with such zoning issues and resolving any zoning problems. If this lot is used, the Intervenor will seek a variance in order to be able to put the 21 spaces on the lot. The Intervenor does not yet have the variance, but there is no evidence of record that would establish that it cannot be obtained from the City zoning authority. The Intervenor has an option to lease Lot B, where the 21 parking spaces would be located, and, therefore, has sufficient control of it. Another alternative offered by the Intervenor is designated as "Lot A" or "Parcel A" in its bid. This lot is across an existing municipal parking lot from the Intervenor's facility being offered. It includes 69 parking spaces and is within 1,000 feet of the Intervenor's building. The Intervenor has secured this facility through an option to purchase. The only remaining step in order to purchase the lot would be for the Intervenor's board, responsible for the operation of its programs, including the building, to execute the option it has already entered into. This also constitutes sufficient control over the property to comply with the terms of the ITB. This parking lot and the spaces thereon meet the requirements of the ITB. The third nearby lot, available to the Intervenor, is designated as "Parcel D" or "Lot D" on the Intervenor's bid documents. Additional spaces could be made available on this lot. It is 1,070 feet away from the Intervenor's building, however, and thus does not meet the 1,000-foot requirement set by the Department at the bidders' conference, in its interpretation of the specification concerning parking. The demonstrated availability of the other parking areas and spaces, however, establishes that the Intervenor has sufficient parking available, within the required distance, to meet the terms of the ITB. Moreover, the Intervenor's building will house the office of the Intervenor, as well as the office of the Respondent/Department. The Intervenor's building is located directly adjacent to a free municipal parking lot. This lot would be available to employees of the Intervenor, as well as Intervenor's visitors, and as well as to employees of the Department and the Department's visitors, who, for whatever reason, might not use the exclusive dedicated parking spaces. Because it is in a downtown development area, the Intervenor is not required, under the City of Daytona Beach Zoning Code, to provide any parking for its building. Bid Evaluations The Department received bid responses from the two parties and proceeded to evaluate them. The part of the evaluation based upon prices bid by the vendors was conducted by Department personnel in Tallahassee. The part of the evaluation based upon more subjective factors was conducted by three Department employees in Daytona Beach, who ultimately have to work in the facilities that the Department acquires through this procurement process. The price evaluation was undertaken with the assistance of a representative of the Department of Management Services, who is familiar with statutory and rule requirements for a proper evaluation of bids. Price was apportioned 40 of the total 100 points available in the bid evaluation process. The price evaluation resulted in the Petitioner receiving 40 points because it had the lowest price of the two subject bids. The Intervenor received 33 points for the price criterion. The three Department employees designated to evaluate the other aspects of the bid proposals conducted site visits at each of the vendors' facilities. During the site visits, the evaluators walked through the parking lots and counted the spaces, checked the exit door locations, inquired about heating, ventilation, and air-conditioning facilities and equipment, evaluated the condition of the buildings and how they were being maintained, checked security lighting and other security issues, checked on placement of the lobbies and how offices would be positioned, observed the availability of natural lighting and surveyed neighborhood conditions. Each evaluator then conducted evaluations based upon factors other than cost, without consulting each other. They used an evaluation form that relates to various criteria which come directly from the ITB. Upon completion of the evaluations, the completed forms were forwarded to the Tallahassee office of the Department. The evaluation criteria allow three categories of evaluation under the general heading of "location". Ten points are allowed as a maximum in the category of "availability and frequency of public transportation within the proximity of the space being offered." The evaluators gave the Petitioner five, six and five points, respectively, for its response to this category. They gave the Intervenor seven, six and five points. Both facilities have public bus stops near the building which provide good access to public transportation. The Intervenor's facility is located within a few blocks of the transit transfer station, which offers the advantage that bus passengers will be able to get to the Intervenor's facility without the need of a transfer which could save them considerable time. The Department of Juvenile Justice is the type of state agency which has a great deal of business with clients and their family members of a lower-income status, who might frequently have to rely on public transportation. Nine (9) points are allowed in the evaluation criteria for the category of "appearance of the building property and neighborhood of the property being offered," under the general heading of "location". The Petitioner was accorded three, five and four points, respectively, for its response to this category. The Intervenor was given nine, eight and seven points. This is admittedly a subjective criteria. The appearance of a facility and its surrounding area can make a difference in the morale and productivity of the working staff, as well as the attitude of visitors to the facility. The Intervenor's building is in a renovated, historic structure located in the historic preservation section of the downtown area of Daytona Beach. It has a great deal of aesthetic appeal and has been the subject of several newspaper articles noting the attractiveness and functionality of the renovation. The Petitioner's structure, on the other hand, although well-landscaped and maintained, is a metal, prefabricated building, not as aesthetically interesting or pleasing. It is also located adjacent to higher crime areas in the City. The evaluation criteria allow for four points for the category of "security issues posed by the building and surrounding area" under the category of "location". The evaluators scored the Petitioner's response at two, two and one points for this subject. They scored the Intervenor's bid three, three and two points for the same category. It is apparent that the Petitioner's facility is located in an area which is somewhat crime-prone. While the evidence does not reflect any criminal activity on the Petitioner's site itself, at least one evaluator was intimately and personally familiar with the neighborhood and the criminal problems occurring there. This familiarity was confirmed by Department personnel from police reports showing the area to be a high-crime area. Under the "facility" heading, the evaluation criteria and form allows points for four different categories. It allows 15 points for the category of "susceptibility of the design and space being offered to good utilization by differing segments of the Department." The evaluators gave the Petitioner seven, five and six points for their three evaluations of this response. They scored the Intervenor's submittal at 15, 12 and 10 points. The Intervenor's proposal offers a building that has windows on all four sides with abundant natural lighting, good visibility, and contiguous space. The Intervenor's facility can be very easily renovated into appropriate space for the different segments of the Department. The Petitioner's facility, on the other hand, has few windows, offers limited natural lighting and is not easily visible from the street. Additionally, the Petitioner offered divided space within its building so that some segments of the Department's work force would be physically separated from one another, with access between the two divided areas of office space being only obtainable by going outside the building and then in another door of another part of the building. The evaluation form also allows 10 points for the category of "susceptibility of the building parking area and property as a whole for future expansion." The Petitioner received a score of three, five and five points for this category by the evaluators. The Intervenor's response received seven, eight and three points for the same category. The Petitioner's facility offers no opportunity for expansion unless existing lessees leave the building. There is no room for additional parking for expansion purposes. The Intervenor's facility has space on the first floor not being leased at all at the present time and a portion of the third floor could be enclosed to provide additional space. Further, since the only other tenant is the lessor, there is a prospect that the lessor itself might move to other facilities in order to accommodate Department expansion. Lot A offers considerably more parking spaces than the Department or other tenants of the Intervenor's building need. Furthermore, the Intervenor's facility is located adjacent to a free, municipal parking lot which is only moderately used. Under the same general heading of "facility", the evaluation form and criteria allows ten points for the category of "having all the square footage in a single building will earn more points than square footage offered in more than one building." The Petitioner is offering space in a single building. However, the Petitioner's space would be divided so that the Department's office space would not all be contiguous, and personnel would have to go from one side of the building to the offices on the other side of the building only by going outside the building. This is functionally akin to space being in more than one building. Thus, the Petitioner's proposal would have some of the disadvantages of being like a proposal for more than one building. Workers would not be as readily able to assist one another in dealing with work loads or as easily undertaking many of the work activities requiring them to communicate with each other in each other's physical presence as easily as in a contiguous set of offices located in a single building. It is true that the Petitioner is proposing all of its space in one building. Thus, it meets the ITB criteria in this regard. It also can be argued as the Department evaluators found, that because the space functions akin to being in separate buildings, because of the separation of the offered office spaces, it should be evaluated as being somewhat analogous to space located in two separate buildings. Thus, although both bids were responsive to the ITB in terms of offering space physically and technically within a single building, it was not arbitrary for the evaluators to accord more weight to the Intervenor's response, since all of the office offered by the Intervenor is contiguous space in the same building. However, even if the evaluators had or should have ranked both bids equally under this "single building criteria", that alone would not alter the evaluators' result that the Intervenor's bid and facility was the best response to the agency's needs expressed in the ITB. The evaluation criteria and form also allows a maximum of two points to be accorded to the category of "if space is offered in more than one building, are the buildings connected by overhangs and sidewalks," under the heading of "facility". The space offered by both bidders, the Petitioner and the Intervenor, is clearly in a single building. All of the evaluators gave both parties an equal two points for this category which shows a lack of arbitrariness in the bid evaluation process. When the evaluation was complete, the Intervenor was accorded scores of 86, 82 and 72 points by the three evaluators. Two of the evaluators rated the Intervenor significantly higher, and the third favored the Petitioner's proposal by a single point. The total score given the Petitioner, taking into account its lower price, was 67, 71 and 73 points by the three evaluators. The total score accorded the parties by the three evaluators shows that the Intervenor's proposal was accorded a substantial advantage by two of the three evaluators. The evaluator scores were independently determined but were still generally consistent with each other. They were based upon logic and not merely upon a review of plans, figures, and written responses but also upon a detailed view of the two properties, parking spaces, and the like. Thus, it is determined that the scoring was consistent, logical, and not shown to be unreasonable under the circumstances. Based upon the scores by the evaluators, the Department determined that the Intervenor's bid was the lowest, best and most responsive and elected to award the lease to the Intervenor. There has been no preponderant proof offered to show that the decision or any of the evaluation decisions on individual categories, leading up to the ultimate score and decision to award, were fraudulent, arbitrary, illegal, or dishonest.
Recommendation Based on the foregoing Findings of Fact, Conclusions of Law, the evidence of record, the candor and demeanor of the witnesses, and the pleadings and arguments of the parties, it is RECOMMENDED that a Final Order be entered by the Department of Juvenile Justice dismissing the Petitioner's formal protest because the Petitioner lacks standing to initiate the subject proceeding and because the Petitioner has failed to establish that the determination to award a contract to the Intervenor was fraudulent, arbitrary, illegal or dishonest. DONE AND ENTERED this 15th day of June, 1995, in Tallahassee, Florida. P. MICHAEL RUFF, 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 15th day of June, 1995. APPENDIX TO RECOMMENDED ORDER, CASE NO. 95-1736BID Respondent's and Intervenor's Proposed Findings of Fact The proposed findings of fact of these two parties are accepted to the extent that they are not inconsistent with the findings of fact made by the Hearing Officer. Certain proposed findings of fact accepted as true are immaterial to the resolution of the issues presented. Petitioner's Proposed Findings of Fact A-F. Accepted. Rejected, as subordinate to the Hearing Officer's findings of fact on this subject matter, and as not entirely in accordance with the preponderant evidence of record. Accepted. Accepted, but not itself materially dispositive. J.(1-3) Rejected, as not being entirely in accordance with the preponderant evidence of record, and as subordinate to the Hearing Officer's findings of fact on this subject matter. K-L. Rejected, as not being entirely in accordance with the preponderant evidence of record, and as subordinate to the Hearing Officer's findings of fact on this subject matter. M. Accepted, but not itself materially dispositive. N.(1-6- Subparts) Rejected, as not entirely in accordance with the preponderant evidence of record, and as subordinate to the Hearing Officer's findings of fact on this subject matter. Rejected, as not entirely in accordance with the preponderant evidence of record, and as subordinate to the Hearing Officer's findings of fact on this subject matter. Accepted. COPIES FURNISHED: Calvin Ross, Secretary Department of Juvenile Justice 2737 Centerview Drive Tallahassee, Florida 32399-3100 Mr. Robert Allan Weinberg RW Custom Builders, Inc. 955 Orange Avenue Daytona Beach, Florida 32114 Scott C. Wright, Esquire Department of Juvenile Justice 2737 Centerview Drive Tallahassee, Florida 32399-3100 G. Steven Pfeiffer, Esquire APGAR, PELHAM, ET AL. 909 East Park Avenue Tallahassee, Florida 32301
Findings Of Fact Petitioners own the Sea Cloud Motel with 11 rooms located at 540 South Gulf View Boulevard, Clearwater, Florida, in an area zoned CTF-28. CTF-28 is high density commercial-tourist and is dominated by motels, restaurants, and other businesses catering primarily to tourists. The Sea Cloud Motel has only ten parking spaces at present, with two of these spaces so located that with the space behind them occupied a car cannot get into or out of those spaces. Petitioners have leased five additional spaces from the Clearwater Point Deli on property adjacent to the Sea Cloud Motel (Exhibit 2). Adjacent to the Sea Cloud Motel is the Hibiscus Gift Shop owned and operated as part of the Red Carpet Resort Motel. Across the street from Petitioners' property is a convenience store with gas pumps and a car rental agency. Several realty offices are located in the general area of the Sea Cloud Motel in addition to restaurants and convenience stores. The principal objection to the special exception here requested came from adjacent property owners who fear the real estate office will aggravate the inadequate parking facilities presently existing on Clearwater Beach. The addition of the real estate office in a space less than 150 square feet will not require the addition of another parking space. The leasing of five additional parking spaces will more than adequately compensate for the additional traffic anticipated to be generated by a one-desk real estate office, particularly where the office is intended to concentrate on foreign visitors interested in real estate investments at Clearwater and will be operated by the co-owner of the motel, Kathleen M. Fuller, a registered real estate salesperson.
