Findings Of Fact Fred Thomas owns a home and lot on the beach in Clearwater at 730 Eldorado Avenue, Mandalay Subdivision, Block 2, Lot 8, now zoned RS-8 (single family residential). The Thomas house was built 30 years ago when front yard setbacks for the area were only 10 feet and there were no open space requirements. Now the front setback in the area is 25 feet, and Section 135.029(8) of the Clearwater Land Development Code now requires lots in RS-8 zones to have a minimum open space of 35 percent of the lot and 40 percent of the front yard. There are many properties in the area of the Thomas house that maintain pre- existing non- conformities to the current setback and open space requirements. The Thomas property, in addition to the pre-existing setback non-conformity, had only 26 percent open space overall and no open space at all (all concrete) in the front yard. In 1987, Thomas undertook renovations to his house. During construction, Thomas' concrete front yard deteriorated from additional cracking, and he decided to replace the concrete with brick pavers. He removed the concrete but then was required to get a building permit for this work. The building permit was not granted because the placement of brick pavers in the front yard violated the open space requirements. Thomas applied for a variance to replace the concrete with brick pavers and later modified the application to be allowed to have 29 percent lot coverage and 12 percent front yard coverage with open space. The modified application was denied by the DCAB after hearing on February 11, 1988, and Thomas took this appeal. Thomas also filed another variance application to be allowed to have 30 percent lot coverage and 16.8 percent front yard coverage with open space. This application was heard on March 10, 1988, and this time the DCAB granted the application. The only open space required under the granted variance not required under the denied variance application is a 10' by 10' square on the far left side of the front yard (facing the house). Thomas claims that this open space requirement prevents him from using a narrow concrete alley to the left of the house (and perhaps the concrete apron in the back of the house) for guest parking, leaving him with a two-car garage and the brick paved area directly in front of the garage that could accommodate two cars but would block the garage. Lack of guest parking would create a hardship of sorts on Thomas. There is no on-street parking in the area, and the Clearwater Police vigorously patrol and ticket violators in the area. The brick paved spaces in front of the garage could be inconvenient to the owners of the vehicles parked in the garage (probably the Thomases) and conceivably could block the cars in the garage temporarily under some circumstances. However, Thomas is incorrect in his presumption that guest parking in the alley and back of the house would be blocked by the 100 square feet of open space required under the granted variance but not under the denied variance application.
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 for determination is whether the Florida Department of Labor and Employment Security illegally rejected Petitioner's bid as nonresponsive.
Findings Of Fact Fred Boozer, Sr., (Boozer), the Petitioner, owns Boozer Properties, a family business which includes a building at 2235 South Babcock Street, Melbourne, Brevard County, Florida. The building is currently occupied by staff of the Florida Department of Labor and Employment Security (LES) and other tenants. In south Brevard, LES staff also occupies another building in Palm Bay. Because of staff expansion and the need to co-locate its offices, LES issued a Request for Proposal (RFP) for Lease No. 540:0904 on January 28, 1992. The RFP had been previously advertised but was successfully challenged on issues unrelated to the issues in this proceeding. The January 1992 RFP sought approximately 11,474 to 11,818 square feet of office space. The RFP also specified that 95 off-street parking spaces be provided for the exclusive use of LES employees and clients. The spaces were to be suitably paved and lined, and under the control of the bidder. The RFP advertised a pre-proposal conference on February 4, 1992. No bidder attended, and no objections to the RFP were filed. Six responses were received on the February 28th deadline, one of which was immediately determined to be nonresponsive. The remaining bid proposals were evaluated, and Boozer's bid, offering his Babcock Street site, and 95 parking spaces, received the highest points from the evaluation committee. During a recent LES bidding process for office space in West Palm Beach, a problem arose with a bidder's ability to provide the required parking spaces. Cognizant of this, the LES leasing manager contacted the City of Melbourne to determine whether the apparent bid winner, Boozer, could meet his obligation to provide 95 spaces. The written response dated March 20, 1992, from Dominic Mauriello, a Melbourne city planner, provides his estimation that, for the various uses in the Babcock Street building, 207 parking spaces would be required. The memo states that a site plan on file at the city planning office reflects that there are 165 spaces. The site plan attached to Boozer's bid proposal submitted to LES indicates that 175 spaces are available. LES staff person, Lynne Mobley, telephoned Fred Boozer on March 24, 1992, informing him of the memorandum from the city. He responded with a request that he be allowed twenty-four hours to provide additional information. By March 27, 1992, the LES leasing office had not received further information from Boozer. The RFP had advertised a 30-day deadline for the bid award, which deadline fell on a weekend. The agency considered that it needed to make the award on Friday, the 27th. After contacting the City of Palm Bay to assure that the next highest rated response could deliver the requisite parking spaces, a letter was sent notifying Woodlake S.W. No. 1, Ltd., (Woodlake) of its award. In a letter dated March 27, 1992, LES notified Boozer that its bid was determined nonresponsive based on the outcome of investigation and consultation with the city regarding his inability to produce the required 95 exclusive spaces. In the meantime, Fred Boozer had contacted Peggy Bray, the City's Planning and Zoning Administrator, who provided an amended estimation stating that 190 spaces would be required for the Babcock Street site, and that the site currently includes 184 parking spaces. Ms. Bray's letter, dated March 27, 1992, states that in order to provide 95 spaces for the Department of Labor, 1800 square feet of office space would need to remain vacant. The Bray letter was immediately sent by facsimile transmission to LES, and was received the afternoon of March 27th, after the award and rejection notices were sent. Boozer's building is approximately 39,000 square feet. Several tenants are month to month lessees, and another tenant is expected to move prior to the beginning of the LES lease term. Boozer is willing to keep vacant the 1800 square feet and contemplated that necessity when he submitted his bid proposal. He did not include this agreement in his written bid response, but neither did LES specifically ask, either in the bid form or at the time of the committee's site walk-through prior to the bid award. Boozer contends that he responded on the bid proposal that he would provide 95 exclusive spaces and he remains willing to provide those spaces. At hearing, Boozer disclosed that 20 additional parking spaces are located adjacent to the subject property and are available for use by HRS' County Health Services, another tenant in the Babcock Street building. The spaces would reduce by 20 the spaces required by the city code, but their existence was not disclosed in the bid proposal as they are not part of the attached site plan. Boozer's onsite parking spaces range from one-half to one foot short of the eleven-feet width required by the city code. No evidence was presented with regard to any pending or contemplated enforcement action, and LES did not base its decision on this defect. LES did base its decision on a good-faith reliance on the communication by a member of the City of Melbourne planning staff. Even when that initial communication was corrected by the planning administrator, the number of spaces available were still less than needed for LES purposes and to comply with the City's code. LES did not anticipate, nor was it informed prior to bid award, of Boozer's ability and willingness to keep space vacant to comply with his commitment to provide 95 parking spaces to LES.
Recommendation Based on the foregoing, it is hereby, recommended that a final order be entered dismissing Petitioner's protest of intended bid award. RECOMMENDED this 18th day of June, 1992, in Tallahassee, Leon County, Florida. MARY CLARK 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 18th day of June, 1992. APPENDIX TO RECOMMENDED ORDER, CASE NO. 92-2372BID The following constitute specific rulings on the findings of fact proposed by the parties. Petitioner's Proposed Findings of Fact Adopted in paragraphs 2, 3 and 4. Adopted in paragraphs 4 and 9. Adopted in paragraph 6. Adopted in substance in paragraph 7. Rejected as unnecessary. The testimony of Ms. Mobley is that she did not receive the message. Adopted in paragraph 10. Adopted in paragraphs 8 and 9. Adopted in paragraphs 10 and 13. Rejected as unnecessary. 10-13. Adopted in paragraph 11. Rejected as unsubstantiated by competent evidence. Adopted by implication in paragraph 5. Rejected as irrelevant, except as to Intervenor's spaces, which is adopted in paragraph 8. 1718. Rejected as unnecessary and irrelevant. Respondent's Proposed Findings of Fact 1. Adopted in paragraph 3. 2. Adopted in paragraph 1. 3. Adopted in paragraph 2. 4-5. Adopted in paragraph 4. 6-7. Adopted in paragraph 5. 8. Adopted in paragraph 6. 9. Adopted in paragraph 7. 10-11. Adopted in paragraph 8. 12. Adopted in paragraph 10. 13. Adopted in paragraph 12. 14. Adopted in paragraph 9. Intervenor's Proposed Findings of Fact 1-2. Adopted in substance in paragraph 3. 3. Rejected as unnecessary. 4-5. Adopted in paragraph 4. Adopted in paragraph 3. Adopted in paragraph 4. Adopted in paragraph 11. Adopted in paragraph 4. Adopted in paragraph 5. Adopted in paragraph 6. Adopted in paragraph 7. Adopted in paragraph 10. Adopted in paragraph 9. 15-16. Adopted in paragraph 8. Rejected as unnecessary. Adopted in Preliminary Statement. 19-28. Rejected as unnecessary. COPIES FURNISHED: Howard M. Swerbilow, Esquire Post Office Box 541271 Merritt Island, FL 32954-1271 Edward A. Dion, Esquire Department of Labor and Employment Security Suite 307, Hartman Building 2012 Capital Circle Southeast Tallahassee, FL 32399-2189 Jack Spira, Esquire 5205 Babcock Street N.E. Palm Bay, FL 32905 Alan Taylor Elizabethan Development Corporation 245 Avenue O S.W. Winter Haven, FL 33880 Frank Scruggs, Secretary Department of Labor and Employment Security 303 Hartman Building 2012 Capital Circle S.E. Tallahassee, FL 32399-2152 Cecilia Renn Chief Legal Counsel Department of Labor and Employment Security 303 Hartman Building 2012 Capital Circle S.E. Tallahassee, FL 32399-2152
Findings Of Fact Lior Hason is the owner of Britt's Cafe, a restaurant which occupies property owned by the Petitioner's Stanislaw and Kasimiera Budzinski. On or about December 19, 1995, Harry S. Cline, an attorney for Mr. Hason and the Budzinskis, filed an application for a variance from the City of Clearwater's Development Code, for the purpose of eliminating three required parking spaces from the front of the subject property for the construction of an outdoor cafe at 201 South Gulfview Boulevard. The Code requires one parking space per 200 square feet of gross floor area, and a variance was required to remove three existing parking spaces from the unit's parking space inventory. The matter was brought before the City's Development Code Adjustment Board at its January 11, 1996 meeting. Mr. Cline appeared at the meeting on behalf of the applicant and presented the project. No one else was present to speak in support of or in opposition to the request. However, four letters in opposition from neighboring business owners were submitted. Notwithstanding these objections, the Board determined that the applicant had substantially met all standards for approval listed in the City's Land Development Code; and upon vote of the Board, the application was approved, subject to certain conditions, by a three to two majority. Mr. Hason entered into discussions with City officials to determine what was necessary. Official City reaction was initially favorable. Mr. Hason was advised of the requirements for the project and had plans drawn which called for a deck with a 35 to 36 inch railing with landscaping around it, and with posts and lights. When the plans were submitted to the City officials, the only change suggested was to raise the railing height to 45 inches, which was done, after which the City approved the plans and the permit was granted. The deck was then constructed exactly according to the approved plans. At some time during 1996, Mr. Hason discussed with some City employees putting an awning over the deck. During these discussions, the City employees sent Mr. Hason a copy of Section 41.221(1)(c), Clearwater City Code, which provides for awnings to be removable. Mr. Hason considered the sending of this Code provision to be tantamount to a favorable reply to his inquiry, and, based on that, he finalized his plans for the installation of a removable awning. The proposed awning is designed in such a fashion as to be extendible and retractable on a frame, capable of easily being pulled up against the front of the building like a drapery. With a minimum of further effort, consisting of the removal a several bolts, the entire awning construction can be removed from the frame. Mr. Hason submitted his application for the variance to install the awning on February 2, 1997. In the interim, the City employees with whom Mr. Hason discussed the project changed their position from favoring the project to opposing it. He was ultimately advised in December 1996 or January 1997 that the awning could not be permitted because an awning could not be approved over a deck for which a permit should not have been issued and for which the issuance was a mistake. Though the Board had not yet voted on the application, no information was given to Mr. Hason as to what he could do to make the project approvable. His application, on February 2, 1997, was submitted because, Hason claims, he had been told, by someone not further identified, that applying for a variance for the awning would make everything right. The Variance Staff Report submitted to the Board by the appropriate City employees acknowledged that the frame over which Mr. Hason proposed to put the awning does not meet code because it was constructed within a required setback area from South Gulfview Boulevard, but since the frame was built pursuant to a City-issued permit, consistent with City policy, the City accepted its existence. In its final recommendation to the Board, the staff concluded that notwithstanding the encroachment into the setback area, the project "appears to comply with all standards for approval, provided attention is given to the external appearance of the cafe:" The staff then went on to recommend approval of the project subject to certain conditions, all of which, Mr. Hason accepts and agrees to. Nonetheless, the Board denied the permit by a vote of four to one. Mr. Hason contends that the Board vote was an attempt by the Board to get back at him because of what it perceived as his failure to comply with the conditions placed upon the issuance of the first permit and his alleged misrepresentation of the scope of his project at the time. Mr. Hason, however, categorically denies he has done anything contrary to the dictates of the City. He went back to City officials many times during the construction of the deck to make sure the project was built as required. The majority of the Board members believe, however, that the deck as constructed, goes far beyond the limited structure approved by the granting of the parking space variance in January 1996. This animosity toward the project can be seen from a review of the audio record of the February 13, 1997, Board meeting where, during a colloquy between a Board member and Mr. Hason, it appeared the member was somewhat put out by the entire situation. His analysis indicates a less than complete recollection of the matter, however. Whereas one of the conditions to the issuance of the initial permit was that the area of the outdoor cafe should not be greater than 25 percent of the indoor area of the restaurant, this member pointed out that the 69 outdoor seats were far in excess of 25 percent of the 115 or so indoor seats. This constituted a confusion of seating as opposed to area. No evidence was presented concerning whether Mr. Hason had violated the area constraint. In the main, however, while it appeared that a majority of the Board members were unhappy about the way the project developed, and expressed the opinion that the project did not conform to what they had intended to approve, there was no indication any member s vote was motivated by anything other than a sincere belief in the correctness of his position. There was no indication of any inappropriate or vindictive action by anyone on the Board or its staff. Stephen Sarnoff, a central permitting specialist with the City reviewed the plans for the initial construction and for the current application. As he recalls, the plans for the initial deck construction did not show any support beams, fans, overhead structure or latticework fencing, and the deck, as built, does not conform to the plans as submitted. City Code requirements call for a railing of from 30 to 42 inches high. The current railing of 45 inches does not conform to that standard, and Mr. Sarnoff is not aware of any request from the City that the railing be raised to that height, as Mr. Hason claims. By the same token, while there is no requirement in the ordinance that a deck be of a certain height, anything higher than 12 inches is considered a structure and a waiver is required. This deck was approved for 12 inches. A certificate of occupancy is usually issued for a deck, but in the instant case, such a certificate has not been issued because the deck, as built, is not in compliance with the 1996 approval. If it is brought into compliance, it will be approved. Sarnoff is aware of and familiar with other outdoor restaurant decks built at various locations in the Clearwater area, as indicated by Mr. Hason. Some are not within the CR-28 zone and do not come under the same standards as are applicable here. Others, which must conform to the instant requirements appear to have movable awnings which are acceptable. Still others are in a different zoning district with different set-back requirements, and some were initially denied, but were subsequently approved when they were brought into compliance with the requirements. John Richter, a senior planner for the City, was the individual who prepared the staff report on the instant project and initially recommended approval, contingent upon changes to the external appearance of the facility. He made suggestions and has discussed the project with Hason on his several visits to the property. He did discuss an awning with Hason at some point, but their discussions did not deal with its mobility. All in all, Mr. Richter concluded that the project appears to meet the standard for approval, provided attention is given to the external appearance of the cafe. David S. Shuford, the City's central permitting director and development code administrator indicated that the variance required for the awning, which was an integral part of the structure already built, was not automatically granted with the granting of the permit for the deck structure. Section 42.221, Clearwater City Code, was adopted to promote a more festival atmosphere in some of the outdoor tourist areas. The intent of subsection (l)(c) of that provision was to require the use of moveable items and to design structures that would meet wind requirements and not interfere with pedestrian traffic. The term "moveable" means what it says, and in Shuford's opinion, from the plans he saw, the proposed awning would not be easily moveable on a daily basis. The Clearwater City Code establishes the area in question as one where, once guidelines are developed, they will be adopted and be complied with. Mr. Shuford opines that the current deck, in the rafter area, goes beyond what was proposed at the time the project was submitted for the parking variance and was approved. This is what appears to be the source of the difficulty the Board members have with it. However, if designed to comply with the guidelines, this awning could be approved. He would agree with the conditions outlined in the staff recommendation so far as they relate to painting and architectural matters.
The Issue Whether Respondent acted fraudulently, arbitrarily, illegally, or dishonestly in its proposed rejection of all bids received in response to Request for Proposals, Lease No. 700:0819.
Findings Of Fact On May 10, 1999, the Respondent, Department of Corrections (Department), issued Request for Proposal, Lease No. 700:0819 (the RFP) for office space in Dade County for the Office for Probation and Parole Supervision. Petitioner, 7952 West 2nd Corporation, and Intervenor, Capital Group of Miami, Inc. (Capital), submitted the only responses to the RFP. Upon receipt of the proposals, Mr. Audwyn Francis, the Department's employee in charge of the RFP, believing the bids to be nonresponsive, contacted the Department's legal section for advice and for a determination of responsiveness. While waiting for the legal section to research and make a recommendation on the responsiveness of the proposals, because of time constraints, Department staff decided to proceed with the site visits and evaluation of the proposals but not to make an award until they received a decision from legal counsel concerning the responsiveness of the proposals. A site visit was conducted at the two proposed sites. The responses were evaluated according to the criteria in the RFP. Capital received a score of 98. 7925 West 2nd Corporation received a score of 92. The evaluation committee recommended that an award be made to Capital. Upon further review of the proposals by the Department's attorneys, it was determined that all of the bids were nonresponsive. Based on this determination, the Department rejected all bids. On page four, section A, paragraph seven, the RFP provides the following requirements relating to parking: A minimum of 50 on-site spaces for the exclusive use of the employees and clients at no additional charge to the leasee. Parking spaces must be under the control of the bidder and be suitably paved, lined, bumper pads installed, and labeled D.C. parking. At least two spaces must meet the requirements of the Accessibility Requirements Manual published by the Department of Community Affairs, latest edition. Parking area shall be well lighted and secure. Bidder shall provide a site plan identifying the number of parking spaces assigned to specific other tenants. The purpose of this submittal is to assure parking spaces requested in this RFP can be achieved without infringing on or combining with the parking requirements of other tenants. At the preproposal conference, Mr. Francis, advised the attendees that all attachments as indicated on pages 29 through 31 of the bid package must be included with the bid submittal. On page 30 the RFP requires the proposers to show proof of structures and parking control and directs the proposers to page 4, section A, paragraph 7 and page 23, section D, paragraph 7. Capital proposed to provide 43 parking spaces on-site and 7 parking spaces across the street. Capital's proposal was not responsive to the requirement of providing 50 parking spaces on-site. Petitioner included a document entitled "As-Built Survey" with its proposal. The survey showed the outline of the building on the site, but did not show any parking spaces. Petitioner stated in its proposal that it would provide 50 parking spaces. When Department staff arrived at Petitioner's site to conduct a site visit, they could not find a place to park. During the site visit, Robert Harrison, a representative of Petitioner, advised Department staff that Petitioner leased office space to another agency in the same building that was being offered to the Department. Mr. Harrison advised that he did not know the number of parking spaces to which the other agency was entitled to use. None of the parking spaces at the site were marked as being assigned to any tenant. As of the date of the Department's letter advising that it was rejecting all bids, Department staff were unaware of the total number of spaces available on the site and the number of spaces to which the other agency had exclusive use. After all the bids were rejected, Petitioner disclosed that it had a lease with the Department of Health and Rehabilitative Services (HRS) for space in the building in which it proposed to lease space to the Department. The lease provided that HRS had exclusive use of 150 parking spaces on- site. Petitioner further disclosed that it had a total of 250 parking spaces on-site. Petitioner failed to comply with the requirement that the proposer provide a site plan showing the number of spaces assigned for the use of the current tenant at the building. The Department utilizes a manual entitled "Competitive Proposals," which establishes the procedures to solicit and evaluate proposals. Section Seven of the manual pertains to the procedures to be followed by the Department when evaluating proposals and provides: All proposals will first be reviewed for conformance with the provisions specified in the RFP. Any proposal not in compliance with the terms of the proposal specifications shall not receive further consideration. The evaluation committee will analyze each responsive proposal to determine which proposal is the lowest and best in accordance with established provisions and award factors. . . . To be considered for award, a proposal must comply in all material respects with the RFP so that all proposers may stand on equal footing, with respect to the method and time frame of submission, and to the substance of any resulting lease. The proposal must result in a binding contract. Non-responsive proposals. Any proposal which fails to substantially conform to the requirements of the Request for Proposal. A proposal may not be considered if the proposer imposes conditions which would modify requirements of the Request for Proposal, or limit their liability to the State of Florida, giving them an advantage over other proposers. When a question of responsiveness is unclear the agency's legal counsel should be consulted. In the event no acceptable proposals are received, all proposal should be formally rejected by letter, sent by certified mail, return receipt requested. * * * F. Proposals which technically conform to the requirements of the Request for Proposal are considered to be responsive and may be accepted for consideration by the evaluation committee for determination of an award recommendation. The evaluation committee can seek clarifications as needed from any proposer. However, clarifications received from the proposer which change what was originally proposed cannot be considered in the evaluation. * * * Each committee member is to personally inspect the proposed facility, and evaluate the location and facility on the basis of the evaluation criteria contained in the specifications. When all committee members have individually assessed award factor points for each proposal, the entire evaluation committee will meet to review the individual evaluations and jointly develop a committee determination of the best proposal based on the overall factor ratings. * * * L. The agency has the right to reject any and all proposals when such rejection is in the best interest of the State of Florida. Such rejection cannot be arbitrary, but must be based on strong justification. Each person with a rejected proposal should be notified by certified mail return receipt requested.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED a final order be entered dismissing Petitioner's protest. DONE AND ENTERED this 29th day of February, 2000, in Tallahassee, Leon County, Florida. ___________________________________ SUSAN B. KIRKLAND 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 Hearings Filed with the Clerk of the Division of Administrative this 29th day of February, 2000. COPIES FURNISHED: Michael W. Moore, Secretary Department of Corrections 2601 Blairstone Road Tallahassee, Florida 32399-2500 Louis A. Vargas, General Counsel Department of Corrections 2601 Blairstone Road Tallahassee, Florida 32399-2500 Obed Dorceus, Esquire Department of Corrections 2601 Blairstone Road Tallahassee, Florida 32399-2500 Robert A. Sweetapple, Esquire Sweetapple, Broeker & Varkas 165 East Boca Raton Road Boca Raton, Florida 33432-3911 David A. Anthony, Esquire Law Offices of David A. Anthony 916 Catalonia Avenue Coral Gables, Florida 33134
The Issue Has Respondent's connection permit number C-16-095-93 (permit) expired under Section 335.185, Florida Statutes? Has Respondent timely complied with the requirements and conditions of the permit? If not, does Respondent's noncompliance cause safety or operational problems on State Road 555 (SR 555) which would require closing Respondent's connection to SR 555?
Findings Of Fact Upon consideration of the oral and documentary evidence adduced at the hearing, the following relevant findings of fact are made: At all times pertinent to this proceeding, the Department was the state agency responsible for regulating vehicular access and connections to or from the State Highway System in accordance with Sections 335.18-335.188, Florida Statutes, known as the State Highway System Access Management Act. Respondent owns the property in issue which is located on the southwest corner of the intersection of SR 555 and SR 655 in Polk County, Florida. As a cure for the problem created by the eminent domain proceeding in FDOT v. Shaffer concerning the preexisting connections to SR 555 and SR 655, the Department agreed to provide connections to SR 555 and SR 655 for the property involved in the instant case. By letter dated September 27, 1993, the Department agreed to honor this agreement even though it was not included in the final order in FDOT v. Shaffer. In its letter, the Department agrees to issue a permit and construct the connections "on the condition that the remaining lands are reconstructed as shown in the attachment." The letter informs Respondent that the attachment was prepared by Reggie Mesimer for the Department and that "it appears that the settlement was based on that cure." The letter also informs Respondent that the "permit will contain limiting language to make clear that the permit has not been reviewed for compliance with DOT standards and that it is issued for replacement of preexisting access." Attached to the letter was a site plan showing: (a) the parking layout for the site which included two parallel parking spaces in front of the building, six perpendicular south to north parking spaces on the south end of the building and eight perpendicular north to south parking spaces on the south side of the south parking area; (b) a connection to SR 655 on the north side of the building; (c) a connection to SR 555 at the front of the building; and (d) a connection to First Avenue, a side street, on the south side of the building. The site plan shows a driveway commencing at the connection to SR 655 and continuing on in front of the building to First Avenue on the south side of the building. The site plan does not show any signings or pavement markings to indicate traffic flow in and out of the site. Sometime around June 1993, the agreement in FDOT v. Shaffer notwithstanding, the Department attempted to close the preexisting connections to SR 555 and SR 655. As a result, Respondent requested a formal administrative hearing and Department of Transportation vs First Mortgage Corporation, DOAH Case No. 93-9037 was filed with the Division. This case was later rendered moot by the issuance of the permit for the connections to SR 555 and SR 655 and the Department's agreement to construct the connections to SR 555 and SR 655. By letter dated December 15, 1993, with an addendum dated December 16, 1993, the Respondent agreed "to designating two parallel parking spaces in front of the building and have the striping done immediately." In return, the Department would "agree to have the driveway installed as shown on the drawing originally submitted." In the addendum, Respondent states that the two designated parallel parking spaces in front of the building were being striped on December 16, 1993, and that the Respondent was removing the chain link fence on the south side of the building to provide additional parking. The addendum also states that the Respondent will resurface the entire area of the drive and parking areas after the Department finishes the road construction. Additionally, the Respondent agreed to substantially comply with the driveway and parking area as shown on an attachment. The attachment was a copy of site plan referred to above in Finding of Fact 3. Respondent's Connection Application, number C-16-095-93, was approved by the Department on December 20, 1993, and the permit was issued. The application "requests permission for the construction of a connection(s) on Department of Transportation right-of-way. . . " The connections are described as: "REPLACEMENT OF EXISTING CONNECTION: ONE 24 FT INGRESS ON SR 655, ONE 30 FT INGRESS & EGRESS ON US 17 (SR 555) FOR A CONVENIENCE STORE AND RESTAURANT." Although the permit provides blank spaces where the mandatory beginning and completion of construction dates are to be filled in, these spaces were left blank on the permit. Likewise, there is no expiration date shown on the permit. A site plan was attached to the permit. The site plan is a copy of the site plan attached to the Department's September 27, 1993, letter referred to above with signings and pavement markings added to indicate the traffic flow in and out of the site. General Provision one of the permit provides: The permittee agrees and obligates himself to perform at his own expense the relocations, closure, alteration of the permitted connection, should the Department determine that the traffic patterns, points of connection, roadway geometrics or traffic control devices are causing an undue disruption of traffic or creating safety hazards at the exiting connections. Special Provisions one through five provide: This permit application has not been reviewed for compliance with DOT standards and is issued for replacement of preexisting access by the Florida Department of Transportation. The permit is subject to the limitations in Chapter 335, Florida Statutes, to the same extent as the preexisting access. The permittee shall place signing and pavement marking, as indicated on the attached site plan, so that the connection on SR 655 is operated as ingress only. Parking layout and traffic flow will be constructed and maintained in substantially the same manner as indicated in the attached site plan. The permittee acknowledges that the attached site plan was the cure in the settle- ment in DOT vs. EDWARD M. SHAFFER, case number GC-G-91-786, Parcel 105. The permittee acknowledges that with the issuance of this permit and the Florida Depart- ment of Transportation's agreement to construct the two connections referenced in this permit, DEPARTMENT OF TRANSPORTATION, Petitioner, vs. FIRST MORTGAGE CORPORATION, Defendant, case number 93-3037 has been rendered moot. Further- more, the permittee agrees to make the appropriate filing with the State of Florida Division of Administrative Hearings. (Emphasis supplied). The permit application was signed by Dennis G. Davis as president of First Mortgage Corporation. Dennis G. Davis also signed accepting the Special Provisions attached to the permit. As to signings and pavement markings the site plan shows: a designated driveway beginning at the SR 655 connection (north end of property) and proceeding around the front of the building (east side) to the south end of the building and commencing on to the First Avenue connection; large arrows within the designated driveway indicating ingress only from SR 655 and one-way traffic around the front of the building to a point on the south end of the building where stop signs are to be located; stop signs on each side of the one-way driveway where the one-way driveway intersects a designated two-way driveway; to the south of the stop signs, arrows indicating that the one-way traffic is to move into the south side parking lot or move into the south-bound lane of the two-way driveway that exits onto First Avenue; arrows indicating that incoming traffic from First Avenue is to move into the south side parking lot only; a No Right Turn sign on the east side of the one-way driveway just south of the stop signs where the one-way driveway intersects the two-way driveway; a No Left Turn sign on the southwest side of the south side parking lot where the south side parking lot intersects the outgoing lane of the two-way driveway that exits onto First Avenue; a stop sign just south of the southeast corner of the south side parking lot to the west of the outgoing lane of the two-way driveway just before First Avenue; and a No Exit sign on each side of the one-way driveway facing the opposite direction of the traffic flow in the one-way driveway at the northeast corner of the building. As to the parking layout, the site plan shows: two parallel parking spaces running north to south in front of the building along the west side of the one-way driveway; six perpendicular parking spaces running south to north abutting the south side of the building, and eight perpendicular parking spaces running north to south abutting the south side of the property west of the two-way driveway. The Department constructed the connection on SR 655 for ingress to the property from SR 655 and the connection on SR 555 for ingress to the property from SR 555 and egress to SR 555 from the property sometime in June 1993, which was before the expiration of one year after the date of issuance of the permit. Respondent started to comply with the signings and pavement markings of the site plan attached to the permit as early as December 16, 1993. Respondent has complied with the signings and pavement markings for traffic flow and parallel parking as shown on the site plan attached to the permit beginning at the connection to SR 655 and up to and including the two stop signs at the south end of the one-way driveway where it intersects the two-way driveway. The Respondent has maintained these signs and pavement markings during the construction on SR 555 by restriping the pavement and replacing signs that were torn down. However, due to the wear on the striping caused by construction traffic the pavement markings for the parallel spaces and traffic flow are dim and need painting. Due to a misunderstanding as to the Department's jurisdiction over First Avenue, Respondent has not completed the signings and pavement markings from the stop signs where the one-way driveway intersects the two-way driveway over to First Avenue or over to the parking lot. The Respondent has not completed the striping for the south to north perpendicular parking spaces abutting the south end of the building where there is pavement which would allow such striping. A segment of a chain link fence abuts the south end of the building preventing any further perpendicular parking abutting the south end of the building without going inside to the grassed area (green area) enclosed by the chain link fence. However, instead of parking perpendicular to the south end of the building, customers are parking east to west, perpendicular to the existing chain link fence. At the time the permit was issued, a chain link fence surrounded the green area on the south end of the property. Respondent removed the middle section of the chain link fence on the east side of the green area to provide additional parking inside the green area. Respondent has not placed signs or pavement markings around or at the entrance to the green area so that customers are made aware that the green area is available for parking. However, some customers are using the green area for parking. Although the parking layout of the site plan includes delineated parking spaces in the green area, nothing in the permit, including the site plan, specifically requires the green area to be paved. Although Respondent has indicated a willingness to stripe the designated parking spaces in the green area as shown on the site plan, striping the green area is neither feasible nor is it required under the permit. While all of the parking spaces have not been delineated by striping, there was no evidence that there were insufficient parking spaces on the site or that the lack of designated parking spaces was creating any safety or operational problem on SR 555. Although the site plan does not indicate by signings or pavement markings that the connection to SR 555 is an ingress and egress connection, the permit specifically provides for ingress and egress at the SR 555 connection and nothing on the site plan prohibits such access. On occasions customers park perpendicular to the front of the building ignoring the delineated parallel parking spaces in front of the building. Respondent has agreed to place a solid concrete curb along the building side (west side) of the parallel parking spaces and remove the yellow concrete stop blocks now in place that may be unintentionally inviting customers to park perpendicular to the building. The Department's expert, Michael Tako, testified that perpendicular parking in front of the building could result in vehicles on SR 555 having to slow down for vehicles that are backing out of those perpendicular parking spaces onto SR 555, creating a hazard on SR 555 known as stacking. However, there was insufficient evidence to establish facts to show that stacking actually occurred or that there was any safety or operational problem being created on SR 555 by customers parking perpendicular to front of the building rather than parking in the two parallel parking spaces in front of the building. There was no engineering study presented that had been conducted subsequent to the issuance of the permit substantiating any safety or operational problem on SR 555 resulting from the failure of the Respondent to comply with signings and pavement markings of the site plan or any of the special provisions of the permit or from customers parking perpendicular to the building rather than in the parallel parking spaces. Construction on SR 555 had not been completed as of the date of the hearing. However, Respondent agreed that construction was at the stage where the driveway and parking area could now be resurfaced and restriped without substantial damage to the striping, pavement markings and signings due to construction activity.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is recommended that the Department enter a final order requiring the Respondent to: comply with the placement of signs as shown on the site plan attached to the permit including those signs required for the First Avenue connection; (b) comply with the pavement markings for traffic flow as shown on the site plan attached to the permit, including those necessary for the First Avenue connection and direction for entrance to the green area; (c) pave any surface necessary to comply with the pavement markings provided for in (b) above, including that necessary for the First Avenue connection and to allow necessary pavement markings for traffic flow into the green area but not to include the green area; (d) restripe the parallel parking spaces in front of the building and place a solid curb on the immediate west side of the parallel parking to replace the curb stops now in place; (e) stripe the perpendicular parking spaces that abut the south end of the building where pavement presently exists; (f) place the necessary signs at the entrance to the green area so that customers will be aware of the additional parking inside the fenced green area and; (g) remove whatever portion of the chain link fence is necessary to allow reasonable entrance to and exit from the green area. It is further recommended that Respondent be allowed sufficient time to complete the above, not to exceed 60 days unless the Respondent wishes to resurface the entire driveway area including the First Avenue connection and any parking area that is presently paved. In that event, it is recommended that Respondent be allowed 90 days. It is further recommended that Respondent not be required to pave any area that is to be used for parking including the green area and that adjacent to the green area that does not already have existing pavement. RECOMMENDED this day 12th of October, 1995, at Tallahassee, Florida. WILLIAM R. CAVE, 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 12th day of October, 1995. APPENDIX TO RECOMMENDED ORDER, CASE NO. 95-0673 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 in this case. Petitioner's Proposed Findings of Fact. Proposed findings of fact 1-7, 10-13, 16-18, 20, and 21 are adopted in substance as modified in Findings of Fact 1 through 21 of the Recommended Order. Proposed findings of fact 8 and 9 are covered in the Preliminary Statement. Proposed findings of fact 14, 22 and 24 are rejected as not being supported by competent substantial evidence in the record. Proposed findings of fact 19 and 23 are rejected as being argument rather than findings of fact. Proposed finding of fact 15 goes to the weight to be given to Tako's testimony and is not a finding of fact per se. The Respondent Proposed Findings of Fact. The first two sentences of Respondent's introductory paragraph under "Findings Of Fact" are covered in the Preliminary Statement. The balance of the introductory paragraph and unnumbered paragraphs 2 - 6 are presented as restatements of Tako's and Davis' testimony and not as findings of fact. However, this testimony has been adopted in substance as modified in Findings of Fact 1 - 21 of the Recommended Order and where it has not been so adopted it is rejected as not being supported by competent substantial evidence in the record. COPIES FURNISHED: Ben Watts, Secretary Department of Transportation ATTN: Diedre Grubbs Haydon Burns Building Mail Station 58 605 Suwannee Street Tallahassee, Florida 32399-0458 Thornton J. Williams, Esquire General Counsel Department of Transportation 562 Haydon Burns Building 605 Suwannee Street Tallahassee, Florida 32399-0450 Francine M. Fflokes, Esquire Department of Transportation Haydon Burns Building Mail Station 58 605 Suwannee Street Tallahassee, Florida 32399-0458 Stephen W. Moran, Esquire Moran & Tileston 1738 East Edgewood Drive Lakeland, Florida 33803
The Issue Whether the Department of Corrections' proposed award of Lease No. 700:0710 to Melstine Corporation was proper.
Findings Of Fact The Respondent, Department of Corrections, Region Four (Department), issued a request for proposals for approximately 7,500 square feet of office space in Dade County which was designated as Lease No. 700:0710 (RFP). The office space was to be used as offices for the professional and support staff who were providing probation and parole supervision. Petitioner Wharton Little River (Wharton), Intervenor Green East #2, Ltd. (Green East), and Melstine Corporation (Melstine) submitted proposals to the Department. The Department's evaluation committee evaluated the three proposals, and their evaluation included a site visit to each of the proposed locations. Melstine Corporation received the highest number of points followed by Wharton Little River. The Department notified all bidders of its intent to award the lease to Melstine. On March 15, 1995, Wharton filed a notice of intent to protest the Department's decision to award the lease to Melstine. Wharton filed its formal written protest on March 14, 1995. The RFP set forth the requirements for submitting a responsive proposal and the criteria to be used in evaluating the proposals. The bidders were required to provide 55 offstreet parking spaces for the exclusive use of the Department's employees and clients at no additional cost to the Department. This provision is interpreted to mean that the bidder could propose 55 exclusive parking spaces plus or minus one to two percent. The RFP provided spaces in which the bidders were to indicate whether they were proposing onsite or offsite parking. The RFP also provides: Federal, state, county, and local laws, ordinances, rules, and regulations that in any manner affect the items covered herein apply. Lack of knowledge by the bidder will in no way be a cause for relief from respon- sibility. This provision is interpreted to include applicable zoning codes. Both Melstine and Wharton proposed to provide 55 exclusive parking spaces onsite. Green East proposed 40 exclusive spaces and 20 nonexclusive spaces. The evidence did not establish whether Green East's spaces were onsite or offsite. The evaluation criteria assigned a maximum number of points a bidder could receive for specific criteria. The maximum points totaled 100. The criteria for evaluating parking was the "[p]roximity of adequate parking area to the building. Must be well lighted." The maximum number of points that could be awarded to a bidder for parking was 10. Melstine received 10 points for parking. The space proposed by Melstine is located on the ground floor of a six-story building with approximately 87,000 square feet. The building is currently vacant. Melstine is actively seeking to lease other portions of the building. In its proposal Melstine stated that its intention was to market the remaining space on the ground floor to the banking industry as a banking location. There are 54 onsite parking spaces on the property proposed by Melstine. There is additional space onsite that could be converted to 20 parking spaces, bringing the total parking spaces available on the Melstine property to There are approximately 50 offsite parking spaces available in a lot across the street from the building proposed by Melstine. Melstine provided a map in its proposal showing that the located property was located in a C-1, limited commercial, zone. By letter dated February 21, 1995, Phillip J. Procacci, advised the Department that he felt that the Melstine proposal did not meet the requirements of the RFP because the parking spaces did not meet the zoning code requirements of the City of Miami. Department staff contacted the City of Miami zoning officials and were advised that the parking proposed by Melstine was acceptable under the City of Miami's zoning regulations. The Department relied on the representations from the City of Miami that the Melstine property would be in conformance with the zoning code. By letter dated April 17, 1995, Juan C. Gonzalez, Acting Zoning Administrator, advised Melstine's agent that the parking on the Melstine site would be acceptable as meeting the zoning requirements for the City of Miami for office use without the need of providing additional spaces for existing office square footage. By letter dated April 24, 1995, Mr. Gonzalez further clarified the City of Miami's position on parking spaces assigned to individual tenants. While the code does mandate a certain amount of spaces to be provided on site for individual uses, the code is silent on how the parking will be assigned, therefore, the city does not become involved or regulates assignment of existing parking spaces. Region Four of the Department has not experienced a problem with lessors not providing adequate parking in the past. Melstine's proposal met the parking requirements of the RFP and complied with the City of Miami's zoning ordinance.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the bid protest of Wharton Little River, Investment, Inc. by Procacci Commercial Realty, Inc. be dismissed and that Lease No. 700:0710 be awarded to Melstine Corporation. DONE AND ENTERED this 20th day of June, 1995, in Tallahassee, Leon County, Florida. SUSAN B. KIRKLAND 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 20th day of June, 1995. APPENDIX TO RECOMMENDED ORDER, CASE NO. 95-1839BID To comply with the requirements of Section 120.59(2), Florida Statutes (1993), the following rulings are made on the parties' proposed findings of fact: Petitioner's Proposed Findings of Fact. (Proposed Recommended Order After Reopening of Hearing) Paragraphs 1-3: Accepted in substance. Paragraph 4: Accepted in substance as it refers to the parking criteria. The remainder is rejected as unnecessary. Paragraph 5: Accepted in substance. Paragraph 6: Accepted to the extent that Wharton received the second highest number of points. Paragraphs 7-11: Accepted in substance. Paragraph 12: Rejected as not supported by the evidence. There was no evidence that access to the parking lot from the Melstine property is owned by Melstine. Paragraphs 13-22: Rejected as subordinate to the facts actually found. Respondent's Proposed Findings of Fact. Paragraphs 1-23: Accepted in substance. Paragraphs 24-25: Rejected as subordinate to the facts found. Paragraphs 26-28: Accepted in substance. Paragraph 29: Accepted. Paragraph 30: Rejected as subordinate to the facts found. Paragraph 31: Accepted. Paragraphs 32-34: Rejected as subordinate to the facts found. Paragraphs 35-41: Accepted in substance. Intervenor's Proposed Findings of Fact. (The paragraphs are unnumbered. Each paragraph will be addressed in the order it appears under the section entitled, "The Computation of Error.") Paragraph 1: The first three sentences are accepted in substance. The fifth, sixth, and seventh sentences are rejected as subordinate to the facts found. The remainder is rejected as not supported by the greater weight of the evidence. Paragraph 2: These adopted paragraphs are addressed above under Respondent's Proposed Findings of Fact. Paragraphs 3-4: Rejected as subordinate to the facts found. Paragraph 5: Rejected as a conclusion of law. Paragraph 6: Rejected as not supported by the greater weight of the evidence. COPIES FURNISHED: R. Beth Atchison Assistant General Counsel Florida Department of Corrections 2601 Blair Stone Road Tallahassee, Florida 32399-2500 Robert A. Sweetapple, Esquire Sweetapple, Broeker & Varkas 465 East Palmetto Park Road Boca Raton, Florida 33432 John R. Beranek, Esquire 227 South Calhoun Street Post Office Box 391 Tallahassee, Florida Harry K. Singletary, 2601 Blairstone Road 32302 Jr., Secretary Tallahassee, Florida 32399-2500 Louis A. Vargas General Counsel 2601 Blairstone Road Tallahassee, Florida 32399-2500
The Issue The issue to be determined is whether Respondent violated section 475.25(1)(b) & (c), Florida Statutes (2007), as alleged in the Administrative Complaint and if so, what penalty should be imposed?
Findings Of Fact Petitioner is the state agency charged with regulating the practice of real estate pursuant to section 20.165 and chapters 455 and 475, Florida Statutes. At all times material to this Administrative Complaint, Respondent was licensed as a real estate broker associate in the State of Florida, having been issued license number 3057283. At all times material to this Administrative Complaint, Respondent was licensed with Re/Max Professionals, Inc., a real estate corporation. At the time of hearing, Respondent was licensed with Access Realty of North Florida, Inc., a licensed real estate corporation. Respondent's address of record is 757 West Duval Street, Lake City, Florida 32055. At all times material to the Administrative Complaint, Respondent was the listing agent for a property known as 831 South West 5th Street, Live Oak, Florida (5th Street property). On March 4, 2008, Respondent listed the property as having a Commercial Intensive (CI) zoning. At the time of the listing, zoning classifications for property in Live Oak were not available on line, and could only be obtained by calling for the information. At the present time, George Curtis is employed by the City of Live Oak and handles inquiries regarding zoning for properties in the City of Live Oak. He does not recall receiving a telephone call from Respondent regarding the zoning classification for the 5th Street property. However, at the time of Respondent's inquiry, Mr. Curtis was just starting his employment with the city, and did not yet have an office. Inquiries were at that time directed to the City Clerk's office. Mr. Curtis could not state that no call was received by that office, or, if received, what information was given. The listing for the property states at the bottom, "[t]his information is deemed reliable, but is not guaranteed." Respondent listed the property zoning as CI after calling to inquire regarding the appropriate zoning for the property. While she testified that her call was to the Suwannee County office as opposed to the City of Live Oak, it is found that the call must have been made to the City, given the telephone call described below. The property described in the listing is not zoned CI, but rather Commercial Neighborhood (CN). In Live Oak, CI zoning is the most intense zoning district, and is limited to major arterial roads in the city. It is intended to meet the needs of a regional population. CN zoning is intended to provide for commercial use on a more limited scale, in terms of the size of the building that can be placed and the types of uses. It is intended to meet the needs of a neighborhood area. A funeral home would not be a permitted use for property zoned CN. It would require a zoning change. A funeral home would be permitted on a property zoned as commercial general (CG). The CG category is between CI and CN. In September 2008, Respondent contacted the City of Live Oak and was referred to George Curtis about the possible use of the property on SE 5th Street as a daycare. During their telephone conversation, he told her that in order to operate a daycare on the property, the owner would need to receive a special exception to the zoning requirements. He obtained her e- mail address and sent her an e-mail with attachments regarding obtaining special exceptions. Respondent believed, based upon their conversation, that the same would be true for any business to be located on the property. Mr. Curtis does not recall telling Respondent at that time that the property was not zoned as CI. On October 16, 2008, Respondent sent the following e- mail to Mr. Curtis: Hi George, the contract for a day care on 831 SW 5th Street, Live Oak (lots 14, 15, 16, Block E, Hildreth) fell through. I now have a pending contract but the buyers want to use the property for a funeral home. Do you see any problem with this? Anne The e-mail was sent at 5:01 p.m. At 5:22 p.m., Mr. Curtis sent the following reply: Hello Anne: I believe this property was Neighborhood Commercial between Green and Ammons on the south side of 5th. C-N does not have any allowances for a Funeral Home, even as a Special Exception. A petition could be proposed to the City Council for Residential- Office or Office Zoning that does allow for the Funeral Home (with also a Special Exception) but other criteria would have to be evaluated to be sure that parting and buffering requirements could be met after any zoning change took place--which is also a process that is not guaranteed but a possibility--there is no way to predict whether the rezoning and the special exception would be approved. This would probably be a 4-6 month process start to finish plus the associated fees to try. Funeral Homes are allowed by right in General Commercial Zoning but you have to front a major street (129/90/51, etc. to get considered for that zoning…) Hope this helps -- wish I had better news… Respondent claims that she never received this e-mail, and that she never deleted it from her computer. She testified that when she did not receive a response, she called the zoning office and was told that a special exception would be required for a funeral home. She passed this information on to Mr. Wright. On October 17, 2008, Russell Wright made an offer to purchase the property on S.W. 5th Street for $45,000. The contract (Petitioner's Exhibit 3) has been reduced and copied several times, and as a result, is illegible in most respects. However, it can be ascertained that the contract was made on October 17, 2008, and signed by the sellers on October 22, 2008. The contract specified that closing was to take place October 31, 2008, which it did. The contract also specified that the Buyers would pay $5,000 down, and the Sellers would finance the remainder at 8 percent, with payments of $485.31. As part of the closing, the Buyers and Sellers signed an Affidavit of Buyer and Seller Regarding Contract Compliance, which stated "all of the contingencies and conditions set forth in the contract (and all addendums thereto) between the Seller and Buyer have been satisfied, performed or waived by the Buyer and the Seller " Because of the condition of Petitioner's Exhibit 3, it cannot be determined whether the form contract made any representations regarding zoning and who was responsible for determining the appropriate zoning for the property. On October 23, 2008, Respondent sent an e-mail to Russell Wright with attachments labeled "Petition for Special Exemption," "How the Future Land Use Plan Map - Brochure," and "Sec. 12.2 Special Exceptions." The message in the e-mail reads: Hi Russ, here's the contact person who deals with the zoning in Live Oak, and the forms for filing. I received 1 of the forms back from you, the As Is Rider but I still need the corrected Lead based paint disclosure that I sent with the AS Rider in yesterday's fax. Please complete this form and fact back to me. The Seller's [sic] are going to close at 9:00 am on Friday 31st, please let me know as soon as possible a time that would be convient [sic] for you and your wife to attend. Regards, Anne. Mr. Wright acknowledged receiving an e-mail, but not the documents. He sent Respondent the other documents required for closing. After the closing, he called her and stated that he could not locate the paperwork related to special exceptions, and on November 3, 2008, she mailed it to him. With the paperwork was the following note: Dear Russell and Marcus: I have enclosed the paperwork for the Special exception. If you have any questions you may call George Curtis at 386-362-2276. Mr. Curtis is the development manager for the City of Live Oak. Regards, Anne Mr. Wright began making renovations on the property in order to open a funeral home. In July 2009, he began the process of getting his city occupational license. He could not obtain the license because the property was not zoned for his intended use. At that point, Mr. Wright contacted city officials, including George Curtis and the Mayor of Live Oak. Mr. Curtis advised Mr. Wright that he had sent an e-mail to Respondent advising her that a funeral home could not be operated on the property with its present zoning. Mr. Wright wrote to Respondent, demanding that she compensate him for the fact that he could not open the funeral home without a zoning change. The letter stated in pertinent part: The Mayor of Live Oak and Mr. George Curtis has informed me that I can apply for a zoning change so that My Wife and I can open our business. But it will cost $750.00 to file the initial papers. And that is NOT a guarantee. To date with the down payment and monthly payments and renovation cost, your dealings have cost us $25,000 plus pain and suffering and embarrassment. And we have property that we can't use for the intention it was purchased. Ms. Hurst, we are allowing you and your firm to settle this matter out of court. Ms. Hurst we will settle this matter for the amount of $50,000.00 which is damages plus pain and suffering. If you and ReMax Professionals, Inc., are not willing to settle with us out of Court, we will retain the Attorney with whom my Wife and I have consulted. . . . It is clear from the evidence that Mr. Wright chose to believe that he could open a funeral home on the property without any further administrative action either to change the zoning or to obtain a Special Exception for its intended use. Neither belief is consistent with the credible evidence that Respondent sent him information regarding Special Exemptions and the process to obtain them. All of the information given to him is consistent with his need to follow up with the City's zoning department, which he did not do. Based on the more persuasive evidence presented in this classic, "he-said, she-said" case, it is found that Respondent did not receive the October 17, 2008 e-mail from George Curtis, but believed that a Special Exemption would be required to operate a funeral home on the property, and that she supplied information to Mr. Wright to that effect. Mr. Wright's claim that Respondent represented that the property could be used as a funeral home with no further action is rejected.
Recommendation Upon consideration of the facts found and conclusions of law reached, it is RECOMMENDED that the Florida Real Estate Commission enter a final order dismissing Count One in the Administrative Complaint; finding a violation of section 475.25(1)(c), as alleged in Count Two; imposing a reprimand and fining Respondent $250.00. DONE AND ENTERED this 8th day of June, 2011, in Tallahassee, Leon County, Florida. S Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 8th day of June, 2011. COPIES FURNISHED: William Haley, Esquire Brannon, Brown, Haley, Robinson & Bullock, P.A. Post Office Box 1029 Lake City, Florida 32056-1029 Joseph A. Solla, Esquire Department of Business and Professional Regulation 400 West Robinson Street, Suite 801N Orlando, Florida 32801-1757 Thomas W. O’Bryant, Jr., Director Division of Real Estate 400 West Robinson Street, Suite 801N Orlando, Florida 32801-1757 Layne Smith, General Counsel Department of Business and Professional Regulation Northwood Centre 1940 North Monroe Street Tallahassee, Florida 32399-0792
The Issue Whether Respondent violated the Florida Fair Housing Act by discriminating against Petitioner based on her sex, national origin, and/or handicap by the manner it enforced its vehicle parking rules.
Findings Of Fact Petitioner is an 81-year-old female who is a native of Peru. Petitioner does not speak, write, or read English. Petitioner and her late husband were owners and residents of a condominium unit managed by Respondent. Petitioner continued to own and reside in the unit after her husband's death in September 2009. Petitioner and her husband had ten children, two of whom are Patricia Ramirez and Gloria Silva. At the time of his death, Petitioner's husband owned an automobile that he had properly registered with Respondent. Following her husband's death, Petitioner inherited the automobile he had owned. Petitioner does not drive and does not have a driver's license. On September 17, 2009, the title to the car was changed into the names of Petitioner and Gloria Silva. Gloria Silva has not been recognized by Respondent as a "resident" of Petitioner's unit.2 Respondent's rules and policies are set forth in a "Handbook of Rules and Regulations" (the Handbook). Respondent's vehicle parking policies begin on page 28 of the Handbook. Respondent's parking policies for a "Resident Parking Decal" provide, in relevant part, as follows: A "Resident" as set forth in these regulations is a person who has been registered at the Management Office and has been approved by the Association to live in the Unit whether it is an owner or a tenant. All vehicles of Residents parked in the Condominium Property must have a "Resident PARKING DECAL" [sic]. This permit consists of a decal containing a number that is placed on the outside top or bottom left- side corner of the rear glass of the vehicle. For your protection, this decal shall be applied to the glass by an Association Representative only. Only Residents actually living all year round in the Condominium Property and owning a valid driver's license will be issued a Resident Parking Decal. . . .. Only one vehicle is allowed per Resident with a valid driver's license and a Vehicle Registration to such vehicle issued in the Residents' name. There will be a $25.00 refundable deposit for every Resident Parking Decal issued. Failure to return the Decal to the Management Office upon selling and/or disposing of his/her vehicle (including total loss due to an automobile accident) or moving out of the Property, such $25.00 shall be forfeited. . . . If the Resident sells or in any other way disposes of a vehicle to which a Resident Parking Decal was previously issued, that Resident must remove and bring to the Management Office such Resident Parking Decal before a new Resident Parking Decal is issued for a new vehicle. Gary Mars, an attorney representing Respondent, advised Petitioner by letter dated September 10, 2009, that she was in violation of Respondent's vehicle parking policy and its occupancy policy. As to the parking policy, the letter provided, in relevant part, as follows: The Rules and Regulations state that "[o]nly Residents actually living all year round in the Condominium Property and owning a valid driver's license will be issued a Resident Parking Decal. Absentee owners who lease their units are not entitled to having a Resident Parking Decal. Only one vehicle is allowed per Resident with a valid driver's license and a Vehicle Registration to such vehicle issued in the Resident's name. " . . . This correspondence serves as . . . demand that any and all guests of your Unit cease and desist utilizing a resident parking decal immediately upon receipt of this communication and secure the appropriate parking decals from the Property Management Office. Mr. Mars wrote a second letter to Petitioner on November 9, 2009, containing the following demand: This letter is being provided in order to notify you as to a recently recognized violation of the Declaration of Condominium which requires your immediate attention. Specifically, the Association has recognized that the vehicle registered to your deceased husband continues to maintain a residents [sic] parking decal even though the vehicle is utilized by your daughter, Ms. Gloria Silva, who is not a resident of the Condominium. Therefore, this use of a decal is improper and in violation of the Association's controlling documents. The Rules and Regulations state that "[o]nly Residents actually living all year round in the Condominium Property and owning a valid driver's license will be issued a Resident Parking Decal. Absentee owners who lease their units are not entitled to having a Resident Parking Decal. Only one vehicle is allowed per Resident with a valid driver's license and a Vehicle Registration to such vehicle issued in the Resident's name. " Notice is hereby provided of this violation. Specifically, the Association is demanding that your guest permanently cease and desist utilizing a resident parking decal, and remove and return the decal within seventy-two hours of this communication to the Property Management Office. In the event you and your guests fail to comply with the request as set forth herein, the Association may have no alternative but to enforce the Rules and Regulations which may include the towing and removal of the vehicle . . . By letter dated December 31, 2009, Mr. Mars wrote to Petitioner a third and final letter, styled "Final Demand," repeating his notice that the vehicle would be towed if she did not comply with the resident parking policy. On the following dates Respondent had Petitioner's vehicle towed from the condominium property: January 19, January 22, and February 9, 2010. At all times relevant to this proceeding, Petitioner was out-of-compliance with Respondent's resident parking policy. There was no evidence that Petitioner ever surrendered the Resident Parking Decal that remained on the vehicle after her husband died. There was no evidence that Petitioner filed an application reflecting the change of ownership of the vehicle following her husband's death or paid the application fee for a new decal.3 There was no evidence that Respondent knew or should have known that Petitioner was handicapped or disabled.4 There was no evidence that Respondent's enforcement of its parking policies was motivated by Petitioner's sex, national origin, or handicap.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is hereby RECOMMENDED that the Florida Commission on Human Relations enter a final order dismissing Petitioner's Petition for Relief. DONE AND ENTERED this 21st day of March, 2011, in Tallahassee, Leon County, Florida. S CLAUDE B. ARRINGTON Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 21st day of March, 2011.
The Issue The issues to be determined in this appeal are whether the Appellants have standing to bring this appeal, and (2) whether the development plan application met the applicable criteria for approval under Section 30-3.46 of the City's LDC in light of the standard of review outlined in Section 30-3.57 of the City's LDC.
Findings Of Fact The Property The property consists of approximately 0.50 acres located at 422 Northwest Third Avenue, Gainesville, Florida (the Property). The Property currently has a Residential Low- Density (RL) future land use (FLU) category under the City's Comprehensive Plan. The RL FLU category includes five implementing zoning districts, and the Property is in the Residential Conservation (RC) zoning district. The Property is not located within the boundaries of the Pleasant Street Historic District. Blackwater owns the Property and submitted a minor development plan application, identified as AD-17-00143, for three buildings with six dwelling units and associated parking, stormwater facilities, and utility improvements. The three buildings have two dwelling units each, which is a use allowed by right in the RC zoning district. The use is described in Section 30-4.16 of the City's LDC as "Multi-family, small scale (2-4 units per building)." The Property was conveyed to Blackwater by a warranty deed recorded January 15, 2014. The warranty deed describes parcel 14518-002-000 as the east one-half of lot 7 and all of lots 8 and 9 in the south half of block 27 of "Brush's Addition to Gainesville," according to the Plat recorded in "Plat Book 'A,' Page 88 of the Public Records of Alachua County, Florida." Issues on Appeal The Appellants raised and argued four issues in this appeal. Whether the Property is a parcel or lot that can be developed under the City's LDC. The Appellants argue that the Property is not a "parcel" and also not a "lot" under the City's LDC. The LDC definitions are found in Section 30-2.1 of the City's LDC, which states: Parcel means a unit of land within legally established property lines. Legally established property lines means those lines created by a recorded plat, minor plat or lot split, those units of land recognized as lots formed prior to 1961 as recorded on a map kept by the building division, and those lots recognized by the county code enforcement department at the time of any annexation. Lot means a parcel of land contained within property lines of a specific area, including land within easements and building setback lines of the area, but excluding any land within street right-of-way. The Appellants contend that the Plat of Brush's Addition to Gainesville (the Plat) legally established property lines. The Appellants further contend the definitions mean that only the lots created by the Plat are parcels. In other words, the "unit of land within legally established lines" cannot consist of more than one of the originally platted lots. This is not the City's interpretation of its own LDC. The Property, as described by the warranty deed, is a parcel within the property lines first established on the Plat. As argued by the City and Blackwater during oral argument, the Appellants' interpretation is not reasonable and "could stop all multifamily development in the [C]ity." The City's interpretation of its own LDC is not clearly erroneous and has foundation in reason. Also, approval of the development plan was not an ultra vires act since the City was required to make a decision on the development plan application in accordance with the provisions of its LDC. Whether the Property meets minimum lot width standards under the City's LDC. The Appellants' second argument is that the development plan fails to meet the required minimum lot width standard under Section 30-4.17 of the City's LDC. The Appellants argue that since Lots 8 and 9 on the Plat are each 50 feet wide, then the permitted use should be "single-family," which has a minimum lot width of 35 feet. Based on the above finding, the Property is a parcel or lot that may be developed under the City's LDC. The Property's lot width is 125 feet, which meets the minimum width standard for the proposed "multi-family, small scale (2-4 units per building)" use. Whether the requirements for a masonry wall and Type B landscape buffer apply to the Property and the development plan. Section 30-4.8.D.2.e of the City's LDC provides: A decorative masonry wall (or equivalent material in noise attenuation and visual screening) with a minimum height of six feet and a maximum height of eight feet plus a Type B landscape buffer shall separate multi- family residential development from properties designated single-family residential. The Appellants argue that the development plan should be required to meet this buffer standard because the RC zoning district is residential, and the Property abuts single-family dwellings. Under the LDC provision, the buffer is required to separate multi-family developments from properties "designated single-family residential." The City argues that designations refer to a property's FLU category as designated in the City's Comprehensive Plan. The Appellants argue that "designated single-family residential" simply refers to a single-family dwelling. Policy 4.1.1 of the City's Comprehensive Plan describes certain FLU categories such as Single-Family (SF). Policy 4.1.4 of the City's Comprehensive Plan provides that the City can amend land use "designations" under certain circumstances. Policy 4.2.1 of the City's Comprehensive Plan provides that the City shall adopt regulations that separate uses with performance measures, such as "buffering of adjacent uses by landscape." Based on the language of the City's Comprehensive Plan, it is a reasonable interpretation that use of the term "designated" refers to the FLU category. The Property and the abutting single-family dwellings have the same FLU category designation of RL. Thus, the masonry wall and Type B buffer requirements of Section 30-4.8 of the City's LDC do not apply to this development plan. Whether the Property's development plan meets applicable parking standards under the City's LDC. The Appellants argue that the development plan must provide 13 parking spaces, and it only provides nine parking spaces, which does not meet the parking standards of Sections 30- 7.2 and 30-7.5 of the City's LDC. In addition, the Appellants argue that the parking must be paved because the City's LDC only allows gravel parking areas with ten or fewer parking spaces. Under Section 30-7.5 of the City's LDC, the development plan must provide 13 parking spaces. The development plan provides nine parking spaces on the Property and four on-street spaces approved by the City, for a total of 13 parking spaces. The nine parking spaces on the Property satisfy the requirement of allowing gravel parking areas with ten or fewer parking spaces. Standing Appellants Vanessa Burt and Suzi Rumsey are the only residents who own property within 400 feet of the Property. Appellants Jason Atkins-Tuffs and Lauren Atkins are recent new home buyers in the Pleasant Street Neighborhood. Mr. Atkins-Tuffs is concerned that the development plan would not be a "good fit for our growing historic downtown family neighborhood." Appellant Dotty Faibisy is an almost 20-year resident and is concerned that the development plan "is a poor fit for the Historic Pleasant Street Neighborhood." Appellants John Rehfuss and Caroline Rehfuss are residents since 2013 in the Pleasant Street Historic District and are concerned that the development plan "is going to be a poor fit, both aesthetically and functionally, for our neighborhood." Appellant Tan Silva is a 23-year resident, who lives outside of but "on the edge" of the Pleasant Street Historic District and feels that compatible development should be maintained. Appellant Furman Wallace is an 84-year resident of the Pleasant Street Neighborhood. He is concerned with the character and type of buildings in the Pleasant Street Neighborhood. Appellant Thomas Hawkins was a 12-year resident of the Pleasant Street Neighborhood and is currently building a new home in the neighborhood. Mr. Hawkins is concerned that the development plan does "not compliment the neighborhood's historic architecture" and is not consistent with the City's LDC requirements.
