The Issue Whether Respondent, Great Southwest Corporation, discriminated against the Petitioner, Demetrio A. Walters, when Respondent terminated Petitioner's employment.
Findings Of Fact Upon consideration of the oral and documentary evidence adduced at the hearing the following relevant findings of fact are made: Petitioner, a black, hispanic male, was employed by Respondent sometime around September 1, 1988 as a journeyman carpenter on the Respondent's Tampa Bay Convention Center Project. Respondent is an employer within the meaning of the Section 760.02(6), Florida Statutes. Petitioner's employment was terminated on March 31, 1989, and Respondent's stated reason for Petitioner's discharge was insubordination and failure to follow instructions necessary to carry out his daily activities. Respondent is not a party to any formal collective bargaining agreement. Therefore, it was not unusual for the Respondent to require carpenters to perform work which normally would have been otherwise performed by laborers or some other craft. However, this policy was applied to all carpenters working on the Tampa Bay Construction Project regardless of the race or national origin. Petitioner resented being required to perform work normally reserved for laborers or other crafts, and, as a result, this created problems between the Petitioner and his immediate supervisor. Petitioner did not always follow instructions given to him by his immediate supervisor to perform a certain task or to perform a certain task in a certain way, and on occasion would be absent from his work station during working hours without permission from his immediate supervisor. At all times material to this proceeding, Gene Raulerson was the Petitioner's immediate supervisor while working with Respondent on the Tampa Bay Construction Center Project. Gene Raulerson frequently directed profanity at all of his subordinates, and treated all of his subordinates in a rude and disrespectful manner. Raulerson cursed and called Petitioner offensive names, and even called Petitioner's mother an offensive name, and treated Petitioner in a rude and disrespectful manner. However, there was no evidence that Raulerson treated Petitioner any differently that other carpenters on the project because of his race or national origin or that Raulerson discharged the Petitioner because of his race or national origin. Respondent has an affirmative action program that prohibits discrimination against any individual based upon inter alia race or national origin.
Recommendation Having considered the foregoing Findings of Fact, Conclusions of Law, the evidence of record and the candor and demeanor of the witnesses, it is, therefore, RECOMMENDED: That the Florida Commission on Human Relations enter a Final Order finding that the Petitioner, Demetrio A. Walters, was not discharged due to his race or national origin in violation of Section 760.10, Florida Statutes, and that the Petition for Relief be dismissed. DONE and ENTERED this 8th day of March, 1991, in Tallahassee, Florida. WILLIAM R. CAVE Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, FL 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 8th day of March, 1991. APPENDIX TO RECOMMENDED ORDER 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 Petitioner in this case. Rulings on Proposed Findings of Fact Submitted by the Petitioner Petitioner has submitted a notarized statement that he is black and hispanic and has no problems working with people of any color or race, with a list of names of people attached that he has worked with. Although it would be stretching it to consider this as Proposed Findings of Fact, I have found the Petitioner to be black and hispanic and the balance of this statement is not relevant or material. Rulings on Proposed Findings of Fact Submitted by the Respondent 1. - 3. Adopted in Findings of Fact 2, 1, and 3, respectively. 4. Adopted in Findings of Fact 8 and 9. 5. - 7. Adopted in Finding of Fact 4. 8. Adopted in Finding of Fact 6 but modified. 9. - 10. Adopted in Findings of Fact 9 and 10, respectively. COPIES FURNISHED: Dana Baird, General Counsel 325 John Knox Road Building F, Suite 240 Tallahassee, FL 32399-1570 Ronald M. McElrath Executive Director 325 John Knox Road Building F, Suite 240 Tallahassee, FL 32399-1570 Demetrio A. Walters 1716 Hartley Road Tampa, FL 33619 Charles R. Nixon, Esquire Vice President/General Counsel Rooney Enterprises, Inc. 3333 Lee Parkway P.O. Box 19000 Dallas, TX 75219 James Clemmenen, Vice President Great Southwest Corporation Post Office Box 24748 Tampa, FL 33623-4748
The Issue The issue in this case is whether a proposed activity by Cayo Costa Island Partnership is exempt from permitting.
Findings Of Fact Cayo Costa Island is a bridgeless barrier island situated between Gasparilla Island to the north and Captiva Island to the south. East of Cayo Costa Island is Pine Island, and east of Pine Island is Cape Coral. In the 1960s, Travis Gresham subdivided and commenced development of a portion of Cayo Costa Island. Development included the dredging of canals. Eventually, one or more plat maps were recorded in the public records of Lee County, so that warranty deeds for residential lots referred to such recorded plat maps. There is also a subdivision sales plat map, which may not have been recorded. Not all of the land was subdivided into lots. The sales plat map reserves a considerable amount of land and canals for future development. One of the reserved areas is to the east of the subdivided lots. The location of the proposed dock is in the extreme southwest corner of this unplatted area. The dock would be located at the western end of a relatively wide manmade canal, which measures 2000 feet long and 105 feet wide. The east end of the canal terminates in Pine Island Sound. Petitioner and her late husband purchased from Mr. Gresham lot 16 in block 1 over 30 years ago, and they moved onto the island almost 20 years ago. The lot does not abut the canal, nor the upland adjacent to the subject dock. She has permanently resided on the island continuously since 1976. In 1984, she and her husband conveyed their property by warranty deed to the State of Florida, reserving a life estate. Petitioner's husband and some friends constructed the subject dock at the end of the canal in September 1978. A couple of years later, another nearby resident named Carl Noah substantially enlarged the dock. On March 16, 1993, Mr. Noah conveyed by warranty deed his real property to Paul Faust. At the same time, Mr. Noah gave Mr. Faust a quitclaim deed for "boat docks constructed by [Mr. Noah] to be used with the [residential] structure." After purchasing the property from Mr. Noah, Mr. Faust was contacted by Petitioner, who told him that she had previously owned the dock and that Mr. Noah had shared it with her. Mr. Faust agreed to share the dock with her, for as long as he owned it. There are no recorded easements concerning the use of the dock. On the sales plat map, the west end of the canal is clearly separated from the subdivided area by a road, which is named Harbor Drive. However, Harbor Drive was never constructed and there is no physical evidence of the proposed road. Petitioner's late husband and his friends who helped build the dock mistakenly believed that the west end of the canal terminated at Harbor Drive. Undoubtedly, other persons were similarly confused, including the property assessor, who had never assessed the property that separates the west end of the canal from Harbor Drive. However, in May 1993, Noel Andress, one of the partners of Cayo Costa Island Partnership, obtained a warranty deed from Mr. Gresham for a triangular- shaped piece of land running north just to the existing dock from the intersection of Harbor Drive and an actual road known as La Costa Drive. Mr. Andress quitclaimed the triangular-shaped parcel, which is described by metes and bounds, to Cayo Costa Island Partnership on January 13, 1994. After Mr. Andress acquired the triangular-shaped parcel, he directed his attorney to write Petitioner and Mr. Faust and inform them to remove their personal property from the real property that Mr. Andress had recently acquired. Mr. Faust is contesting this matter in court. Unfortunately, the record does not include the application or applications submitted by Cayo Costa Island Partnership. Mr. Andress testified that he submitted an application in February or March of 1993. The proposed dock, which would replace the dock built by Mr. Sellars and Mr. Noah, would serve a single family. The proposed dock would consist of two sections: a 5' by 92' main section and a 6' by 10' walkway to the upland area. Thus, the total area of the dock would be 520 square feet. The application reportedly provides that Cayo Costa Island Partnership would use turbidity barriers during construction. The location of a 92-foot dock running parallel to the end of a 2000- foot long undeveloped canal presents no impediment to navigation. There is no reason to infer an adverse impact to flood control or, as long as turbidity barriers are used, a violation of water quality standards. By letter dated June 15, 1994, the Department of Environmental Protection acknowledged receipt of the application, as well as additional drawings and documents submitted on April 8, 1994. Based on these materials, the letter states that the proposed project "appears to qualify as an activity which is exempt from the need for a Department wetland resource permit under Florida Administrative Code Rule 17-312.050(1)(h)."
Recommendation Based on the foregoing, it is hereby RECOMMENDED that the Department of Environmental Protection enter a final order dismissing the petition of Petitioner. ENTERED on November 22, 1994, in Tallahassee, Florida. ROBERT E. MEALE 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 on November 22, 1994. APPENDIX Rulings on Petitioner's Proposed Findings A-C: rejected as not findings of fact. A1: rejected as not finding of fact and irrelevant, except for last sentence, which is adopted or adopted in substance. A2-end: rejected as irrelevant, recitation of evidence, subordinate, and unsupported by the appropriate weight of the evidence. Rulings on Cayo Costa's Proposed Findings 1-10: adopted or adopted in substance. 11-12: rejected as subordinate. 13-15: adopted or adopted in substance. 16-23: rejected as subordinate, recitation of testimony, and unnecessary. 24-31: adopted or adopted in substance. 32-33: rejected as irrelevant. COPIES FURNISHED: Virginia B. Wetherell, Secretary Department of Environmental Protection Twin Towers Office Building 2600 Blair Stone Road Tallahassee, FL 32399-2400 Kenneth Plante, General Counsel Department of Environmental Protection Twin Towers Office Building 2600 Blair Stone Road Tallahassee, FL 32399-2400 Barbara Mathews Trescott Pepper Law Firm 1505 S.E. 40th St. Cape Coral, FL 33904 Mary F. Smallwood Ruden, Barnett P.O. Box 10888 Tallahassee, FL 32302 John Chaves Department of Environmental Protection Twin Towers Office Building 2600 Blair Stone Road Tallahassee, FL 32399-2400
The Issue The issue to be determined is whether the dissolution of the district complies with chapter 190, Florida Statutes, and whether the hearing process has been conducted in accordance with the requirements of chapter 190 and Florida Administrative Code Chapter 42-1.
The Issue The issue is whether Respondent homeowners’ association properly revived its expired Declaration of Covenants, Conditions, and Restrictions in accordance with sections 720.403- 720.407, Florida Statutes.
Findings Of Fact Petitioners own residential properties in Bayhead Landings community (the “Community”). Petitioners are members of Respondent, Bayhead Landings Property Owners Association, Inc. (the “Association”). The Association has historically operated and governed the Community. The Declaration of Covenants, Conditions, and Restrictions of the Association (the “Declaration”), by its terms, provided that it would expire at the end of 2010, unless it was renewed in accordance with its terms. Because the Declaration was to expire, by its terms, at the end of 2010, the Association attempted to preserve the Declaration, prior to its expiration, on more than one occasion, the last of which was in the latter part of 2010. At that time, a membership vote to approve the preservation was conducted by written consents, pursuant to chapter 617, Florida Statutes. The membership vote resulted in 41 votes in favor and zero votes against preserving the Declaration, with six abstentions or non-votes. In the fall of 2013, Petitioners in this consolidated matter, with the exception of the Whitts, commenced a suit against the Association, seeking to invalidate the 2010 preservation and seeking a determination that the Declaration had expired, by its terms, and become void on December 31, 2010 (the “Declaratory Suit”). While the Whitts were not plaintiffs in the Declaratory Suit, they were parties to the pre-suit mediation demand and took part in the pre-suit mediation, prior to the filing of the Declaratory Suit. In their Petitions and in testimony at the final hearing in this matter by Petitioner, Daniel J. DiCiolla, Petitioners have continued to assert that the Declaration had expired and become void on December 31, 2010. In early 2014, the plaintiffs in the Declaratory Suit filed a motion for summary judgment, based on several arguments, one of which was that the Association had improperly conducted the 2010 preservation vote by written consent, instead of voting in person or by proxy at a duly noticed meeting. At the March 17, 2014, hearing on the Plaintiffs’ Motion for Summary Judgment, plaintiffs’ counsel, who is also the Petitioners’ counsel in this proceeding, argued that the Declarations “weren’t preserved” and that if the Association wanted to protect the property, it could always revitalize the Declaration. The court in the Declaratory Suit, by final judgment dated March 24, 2014, granted summary judgment in favor of the plaintiffs, holding that the 2010 preservation vote, because it was conducted by written consent, had been ineffective, and that the Declaration was therefore void, as of its expiration date on December 31, 2010. As of January 1, 2011, the Declarations were declared expired by the Pasco County Court in case number 2013-CC-003057. On April 2, 2014, the Association appealed the final judgment on various grounds. The trial court, on May 15, 2014, entered an order staying the effect of the final judgment pending the appeal (the “Stay Order”). The Stay Order was thereafter amended, on June 12, 2014 (the “Amended Stay Order”), to allow members, instead of paying their assessments to the Association, to pay such assessments to the escrow account of plaintiffs’ counsel, who is also counsel for Petitioners in this matter. The Association, prior to the Declaratory Suit, had incurred substantial legal costs in successfully defending two pieces of litigation. The Amended Stay Order, while providing that the Association could petition for the release of assessments paid into the escrow account held by plaintiffs’ counsel, provided, in paragraph 6, that no such funds could be released for payment of the Association’s past legal fees. The entry of the summary judgment and the Stay Order created confusion among the membership, as a result of which many members believed they had no continuing obligation to pay their assessments, and made no such payments. While the appeal was pending, the Association took steps to revive the Declaration, pursuant to sections 720.403- 720.407, Florida Statutes. The Board of Directors (the “Board”) for the Association appointed a committee (the “Organizing Committee”) to administer the revival of the Declaration. The appointment of the Organizing Committee was published to the membership of the Association at the annual members meeting held on May 10, 2014. Petitioners, Audie Childers and Daniel J. DiCiolla, were present at the May 10, 2014, annual members meeting at which the appointment of the Organizing Committee was announced to the membership. The Organizing Committee had no formal meetings, but met in a series of work sessions at which administrative functions, such as stuffing and placing postage on envelopes, making copies, mailing out letters, receiving letters, and counting ballots, were performed. Notice of these sessions was not provided to the members of the Association. The Organizing Committee never held a meeting at which a final decision was made regarding the expenditure of Association funds, and the Organizing Committee was never vested with the power to approve or disapprove architectural decisions with respect to a specific parcel of residential property owned by a member of the Community. In its effort to revive the Declaration, the Association obtained a majority vote of the membership in favor of revival, consisting of 26 affirmative votes, in accordance with section 720.405(6). The revival vote was conducted by written consent, in accordance with section 720.405(6). The revived Declaration was approved by the Florida Department of Economic Opportunity, by letter to the Association dated August 21, 2014. Once the revival was complete, the Association dismissed the appeal. Plaintiffs’ motion for attorney’s fees and costs remained for determination by the appellate court at the time of this hearing. The parcel owners of real property governed by Respondent are still subject to the stay and required to pay assessments and otherwise comply with the Declaration. The Bylaws governing Respondent were at all times in full force and effect, and the ruling in the Pasco County Court case did not invalidate the Bylaws. The Bylaws were written in 1990 before chapter 617, Florida Statutes, was revised to allow not-for-profit corporations to use written consents, and provided that the only method allowed for the membership to vote was either in person or by proxy at a duly noticed meeting. The Declaration and Bylaws were written and recorded in 1990, before sections 720.403-720.407 were enacted in 2004. Petitioners were at no time opposed to the preservation of the Declaration or the revival of the Declaration. Petitioners introduced no evidence in support of any damages suffered as a result of the Declaration being revived.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Economic Opportunity enter a final order dismissing the Petitions and affirming its approval of Respondent’s revival. DONE AND ENTERED this 1st day of April, 2015, in Tallahassee, Leon County, Florida. S ROBERT S. COHEN 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 1st day of April, 2015. COPIES FURNISHED: Barbara Billiot Stage, Esquire Law Offices of Stage and Associates, P.A. 7635 Ashley Park Court Orlando, Florida 32835 (eServed) Gary M. Schaaf, Esquire Becker and Poliakoff, P.A. Suite 100 1511 North Westshore Boulevard Tampa, Florida 33607 (eServed) Robert N. Sechen, General Counsel Department of Economic Opportunity Caldwell Building, Mail Stop Code 110 107 East Madison Street Tallahassee, Florida 32399-4120 (eServed) Jesse Panuccio, Executive Director Department of Economic Opportunity Caldwell Building 107 East Madison Street Tallahassee, Florida 32399-4120 (eServed) Katie Zimmer, Agency Clerk Department of Economic Opportunity Mail Stop Code 110, Caldwell Building 107 East Madison Street Tallahassee, Florida 32399-4120 (eServed)
The Issue The issue before the Florida Land and Water Adjudicatory Commission (FLWAC) in this proceeding is whether to grant the Petition to Establish the Tern Bay Community Development District (Petition), dated December 18, 2003. The local public hearing was conducted for the purpose of gathering information in anticipation of rulemaking by FLWAC.
Conclusions Having reviewed the Administrative Complaint, and all other matters of record, the Agency for Health Care Administration finds and concludes as follows: 1. The Agency has jurisdiction over the above-named Respondent pursuant to Chapter 408, Part II, Florida Statutes, and the applicable authorizing statutes and administrative code provisions. 2. The Agency issued the attached Administrative Complaint and Election of Rights form to the Respondent. (Ex. 1) The Election of Rights form advised of the right to an administrative hearing. 3. The parties have since entered into the attached Settlement Agreement. (Ex. 2) Based upon the foregoing, it is ORDERED: 1. The Settlement Agreement is adopted and incorporated by reference into this Final Order. The parties shall comply with the terms of the Settlement Agreement. 2. The Respondent shall pay the Agency $2,000.00. If full payment has been made, the cancelled check acts as receipt of payment and no further payment is required. If full payment has not been made, payment is due within 30 days of the Final Order. Overdue amounts are subject to statutory interest and may be referred to collections. A check made payable to the “Agency for Health Care Administration” and containing the AHCA ten-digit case number should be sent to: Office of Finance and Accounting Revenue Management Unit Agency for Health Care Administration 2727 Mahan Drive, MS 14 Tallahassee, Florida 32308 1 Filed July 12, 2011 1:26 PM Division of Administrative Hearings ORDERED at Tallahassee, Florida, on this_|_! day of Tied ,2011. DL
Other Judicial Opinions A party who is adversely affected by this Final Order is entitled to judicial review, which shall be instituted by filing one copy of a notice of appeal with the Agency Clerk of AHCA, and a second copy, along with filing fee as prescribed by law, with the District Court of Appeal in the appellate district where the Agency maintains its headquarters or where a party resides. Review of proceedings shall be conducted in accordance with the Florida appellate rules. The Notice of Appeal must be filed within 30 days of rendition of the order to be reviewed. CERTIFICATE OF SERVICE I CERTIFY that a true and correct copy of this Final Order was served on the below-named persons by the method designated on this _/ any of Richard Shoop, Agency Clerk Agency for Health Care Administration 2727 Mahan Drive, Bldg. #3, Mail Stop #3 Tallahassee, Florida 32308-5403 Telephone: (850) 412-3630 Jan Mills Finance & Accounting Facilities Intake Unit Revenue Management Unit (Electronic Mail) (Electronic Mail) _ Suzanne Suarez Hurley, Attorney Sue G. Brody 2 Office of the General Counsel Chief Executive Officer Agency for Health Care Administration Bayfront Medical Center, Inc. (Electronic Mail) 701 — 6" Street South St. Petersburg, FL 33701 (U.S. Mail) Jon M. Pellett, Esq. Barr, Murman & Tonelli 201 East Kennedy Blvd., Suite 1700 Tampa, FL 33602-5865 (U.S. Mail) Elizabeth W. McArthur Administrative Law Judge Division of Administrative Hearings (Electronic Mail)
The Issue Whether Respondent committed the violations alleged in the Amended Administrative Complaint and, if so, what disciplinary action should be taken against him.
Findings Of Fact Based on the evidence adduced at hearing, and the record as a whole, the following findings of fact are made: Respondent is now, and has been since 2007, a Florida- licensed community association manager. At the time of his initial licensure, Respondent's legal name was Ferdinand A. Resto, Jr. In or some time before July 2009, he legally changed his name to Fernando A. Laracuente.6 Respondent is the owner of a residential unit at the North Bay Villas Condominium complex (Condominium). The governing body of the Condominium is the North Bay Villas Condominium Association. On and off since 2007, Respondent has held various offices on the Association's Board of Directors (Board), including that of secretary. At all times material to the instant case, Respondent was the sole owner and officer of North Bay Property Management, Inc. (Management), a duly registered Florida corporation.7 Management is a Florida-licensed community association management firm. Respondent is its "qualifier." At all times material to the instant case, Management provided community association management services to the Association. It did so through hired licensed community association managers, other than Respondent, who were present on the premises of the Condominium (working out of the property management office8) 40 hours a week. These licensed community association managers employed by Management were hand-picked by, and responsible for acting in accordance with the directions of, the Board. The property management office out of which these licensed community association managers worked had a computer the managers were to use in carrying out their duties. The computer was set up so that e-mail correspondence sent from the office (using the e-mail application installed on the computer) would reflect that it was from "Fernando Resto (northbayproperty @gmail.com)." On July 1, 2009, there was a meeting of the Board. Respondent was not, at the time, a member of the Board. It was the responsibility of the secretary of the Board to prepare the minutes of Board meetings. Management, through the licensed community association managers it hired, assisted the secretary in fulfilling this responsibility. On Friday, July 10, 2009, at around 11:30 a.m., during the workday of the licensed community association manager then employed by Management, an e-mail was sent to unit owners from the computer in the Condominium's property management office. This e-mail read as follows: Dear Home Owners, Attached are the minutes of the previous board meeting held on 6/1/2009 [sic], per the request of many of you. If you have any questions, please do not hesitate to contact the office. Management Visit North Bay Villas Condo Association online at: http://www.northbaypropertymanagement.com/ northbayvillas Attached to the e-mail were what purported to be "minutes" of the July 1, 2009, Board meeting, written on Management letterhead. These "minutes" had not been approved by the Board for dissemination to unit owners. The record evidence does not clearly and convincingly establish that this July 10, 2009, e-mail was personally sent by Respondent, or at his direction. Respondent was the secretary of the Board for the first eight months of 2010. (A new secretary took office on or about August 28, 2010, following Board elections.) By letter dated February 16, 2010, addressed to Respondent at the Condominium property management office address, Adam Steinberg, Esquire, an attorney acting on behalf of Adriana Vasquez Caraballo, a Condominium unit owner, made a "[r]equest for Condominium [r]ecords." The body of the letter read as follows: Pursuant to Florida Statute 718.111(12)(c), this correspondence is an official request to review and obtain copies of the records of North Bay Villas Condominium Association, Inc. Pursuant to the foregoing section, please find below Adriana M. Vazquez's (Unit 221) signature with a properly executed notary page indicating that Ms. Vazquez has appointed Richard C. Muller, CAM, and me as her duly authorized representatives to secure copies of North Bay Villas Condominium Association, Inc.'s records. Florida Statute 718.111(12)(a) designates the following as official records of the condominium and I hereby request a time, date (within 10 days of receipt of this request), and place to review and copy these records: Minutes of board meetings for 2008, 2009, and 2010; A current roster; A copy of the current management agreement; Accounting records for fiscal years 2008, 2009 and 2010 year to date; Annual audits; General ledger; Bank statements; Accounts receivable; "A current account and a monthly, bimonthly, or quarterly statement of the account for each unit designating the name of the unit owner, the due date and amount of each assessment, the amount paid upon the account, and the balance due." Florida Statute 718.111(12)(a)11.b; If a general ledger is not available, "accurate, itemized, and detailed records of all receipts and expenditures," in accordance with Florida Statute 718.111(12)(a)11.a., will suffice; and All voting records from the last annual election. At your earliest convenience, please contact me or Richard C. Muller. Mr. Steinberg's February 16, 2010, letter was received in the property management office. The Management-hired licensed community association manager servicing the Association at the time was Cheryl Montgomery Barker. Ms. Barker contacted Respondent, who, as the secretary of the Board, was the custodian of the Association's records, and notified him of the contents of Mr. Steinberg's letter. Respondent, together with other members of the Board, sought and obtained the advice of counsel as to how to respond to the letter. Consistent with that advice, the following letter, on Management letterhead, was sent to Mr. Steinberg on February 23, 2010, on behalf of the Board: We are in receipt of your public records request dated February 16, 2010 and received by our offices on February 19, 2010. Pursuant to Florida Statute 718.111(12)(c),[9] we hereby notify you that an appointment has been set for Ms. Adirana [sic] M. Vazquez to inspect Association records for: Date: March 08th, 2010 Place: Management Office, 1801 S. Treasure Drive, N Bay Village, Fl 33141 Time: 4:00 p.m. Please also note that pursuant to [sic] Florida Statute 718.111(12), also stipulates that the disclosures and copies are governed according to the Rules and Policies adopted by an Association. It is the policy of the Association that your client or representatives adheres to the following when inspecting Association public records: Your office staff will be granted access to available records. However, not all records may be immediately available. The Association will notify Ms. Caraballo, you or any other authorized representatives when the rest of the records would be available for inspection (if the records exist) and a new appointment for these records would be given. Your client will not be allowed to make any copies on the spot, as some information may have to be redacted that may identify a homeowner or provide privileged information. However, your client may request to have certain copies made at the rate of $0.25 per page, after inspecting the records. It is highly suggested that your client brings [sic] post-it notes, so that she may mark those pages she wishes to have copies of. The Association will notify your client when such copies are available to pick up and the price per copy incurred. A cashier's check or money order must be given to the Association (North Bay Villas Condominium Association) for the first total number of copies and check must clear, prior to disbursement of any copies of the Association records. The Association, its agent or authorized representatives will not engage in any discussion of such records and neither your client nor her authorized representatives should disrupt the normal day-to-day operations of the Association to carry out its duties to manage said property during the inspection period. Nor would the Association will [sic] provide the files in any particular order. Any violation of these rules, disorderly conduct or disruption to the normal day-to- day operation of the Association will be caused [sic] to have the inspection session terminated. If there are any questions regarding this issue or anything further to that this Association must address, please direct all questions to: Ms. Cheryl Montgomery, LCAM Property Manager Agent for North Bay Villas Condominium Association, Inc. 1801 S. Treasure Drive, Management Office N Bay Village FL 33141 Tel (305)867-8821 Fax (305)397-0990 Email: montgomery@northbayproperty management.com In and For the Board of Directors, Cheryl Montgomery-Barker Cheryl Montgomery-Barker, LCAM Property Manager Agent for North Bay Villas Condominium Association Neither Ms. Caraballo, nor Mr. Steinberg, appeared at the property management office at the appointed date and time (March 8, 2010, at 4:00 p.m.) to inspect the Association's records.10 In April 2010, Ms. Caraballo renewed the records request her attorney had made a couple of months earlier, and was given a May 10, 2010, appointment by Ms. Barker to inspect the Association's records. Ms. Caraballo met with Ms. Barker on May 10, 2010, as scheduled, and viewed the Association's records. On May 14, 2010, Ms. Caraballo signed a Receipt for Condominium Documents, which read, in pertinent part, as follows: This public records requested [sic] dated on April 26th, 2010 and received by North Bay Villas Condominium Association on May 5th, 2010, has been completed [sic] provided by F.S. 718.111(12)(c). Homeowner acknowledges receipt of all files in accordance with the statutory [sic] and by receiving such documents holds harmless, North Bay Villas Condominium Association, Inc. and its duly appointed representatives of the Board of Directors. This request is deemed complete. Ms. Barker's employment with Management was terminated 11 days later, on May 25, 2011. As secretary of the Board, Respondent was involved in the running of the 2010 Board elections. Ms. Caraballo, in or around April 2010, filed a complaint concerning this election with the Department of Business and Professional Regulation, Division of Florida Condominiums, Timeshares, and Mobile Homes (FCTMH). William Smith, an FCTMH investigator, was assigned to investigate the complaint. On May 18, 2010, Mr. Smith wrote the following letter to the Board: Re: North Bay Villas Condominium Association Case No. 2010021485 Dear Mr. Laracuente as Secretary, and other Members of the Board: As discussed with Mr. Laracuente during our May 17, 2010, telephone conversation, the Division of Florida Condominiums, Timeshares, and Mobile Homes has completed its investigation, and is addressing the allegations below by providing educational information pursuant to rule 61B-21.002, Florida Administrative Code. The Association failed to include all timely submitted names of eligible candidates on the ballot for the election scheduled June 4, 2010. Specifically, candidates were instructed to send notice of intent to: Fernando A. Laracuente-Secretary North Bay Villas Condominium Association, Inc. 15551 SW 14th St. Miami, FL 33194 Three Candidates sent certified letters of intent in a timely manner (Andrea Gomez, Roxana Fracchi, and Natalia Guida-Pometti) to the [a]fore-mentioned address. The three certified letters sent by these individuals (as evidenced by USPS Track and Confirm documentation) were delivered and "REFUSED" on April 19, 2010. The letters were subsequently re-delivered and accepted on April 21, 2010, one day after the cut off date for timely notice. During the course of the investigation a number of pertinent facts came to the forefront: The Management office for North Bay Villas Condominium Association, Inc. is located at 1801 South Treasure Drive, North Bay Village, FL 33141. The hours for the North Bay Village [sic] Management Office are 09:00 to 13:00 and 14:00 to 17:00 Monday through Friday. The written request[s] to be a Candidate for the Board of Directors were dated April 14, 2010 for Roxanne Fracchia, April 15, 2010 for Natalie Guida-Pometti, and April 16, 2010 for Andrea Gomez. Notice[s] from Fracchia, Guida- Pometti, and Gomez were received on April 19, 2010, at the address indicated in instructions. That address was Fernando A. Laracuente, Secretary, North Bay Villas Condominium, Association, Inc., 15551 SW 14th Street, Miami, FL 33194. However, Track & Confirm certification from the United States Postal Service indicates that although received 11:10 a.m. on April 19, 2010 mail items numbered 7009 3410 0002 1310 0881, 7009 3410 0002 1310 9211, and 7009 3410 0002 1310 9228 were refused to be accepted. The cut off date for notice of intent to run as a candidate was April 20, 2010. The aforementioned certified letters were delivered and accepted on April 21, 2010. Fracchia, Guida-Pometti, and Gomez were denied the opportunity to be candidates for the Board. The Association has an obligation to accept certified mail at the address it indicates in the first mailing. Whereas the Association instructed unit holders to send their intent of Candidacy to a specific address, and given that the Association has an obligation to accept said notice during normal business hours a violation has occurred which requires corrective action. The candidates are eligible. 61B-23.0021(9) of the Florida [A]dministrative Code states: "The failure of the written ballot to indicate the name of each eligible person shall require the association to mail, transmit, or deliver an amended second notice, which shall explain the need for the amended notice and include a revised ballot with the names of all eligible persons within the time required by this rule. If an amended second notice cannot be timely mailed, transmitted or delivered, then the association must re-notice and reschedule the election. If the election has already been held, under these circumstances the association shall conduct a new election." There is corrective action required which is to redo the election process from the fourteen day notice forward with the three candidates in question on the ballot. This entire process must be completed by June 15, 2010. By June 1, 2010 the following evidence is to be sent to the Division: Second notice of the new election; Affidavit of mailing the second notice of the new election; Candidate information sheets for the new election; Ballot for the new election; Outer envelope sample for the new election; Inner envelope sample for the new election. Upon completion of the election by June 15, 2010 the following is to be sent to the Division: List of eligible voters for the new election; Tally sheets for the new election; Minutes of the annual meeting and election. As discussed, rule 61B-21.002(4), Florida Administrative Code, provides that associations must provide a written response to a Warning Letter. Mr. Laracuente on behalf of the Board agreed to submit a response to this letter by May 28, 2010. The response must include confirmation of the violation, and the Association[']s agreement to comply in the future. Additionally, the Association must implement corrective action, which is a redo of the election from the fourteen day notice. However, should the Association disagree with or want to challenge the Division's findings, the Association may request the Division enter a Notice to Show Cause. If such request is received or if the Association disputes the Division's findings, the Division may conduct further investigation into the Association's response, which may require the production of further documentation, and issue a Notice to Show Cause that will provide the Association an opportunity to dispute the Division's findings and ask for a hearing. Failure to reply, take corrective action as requested herein, or repeated violations of a similar nature within two years from the date the violation is resolved, may result in an enforcement action by the Division as well as civil penalties of up to $5,000 per violation. Your attention is directed to rule 61B- 23.002(7)(b)1., Florida Administrative Code, which requires retention of this letter or a copy thereof among the official records of your Condominium Association for future reference. Please address your response to me at the address listed on our letterhead. If you have any questions about this matter, please contact me at 954.202.3983, extension 111, william.smith@dbpr.state.fl.us. The Board decided not to challenge the findings made by Mr. Smith in his May 18, 2010, letter. Instead, it sent out an amended notice of election to unit owners which listed Ms. Fracchia, Ms. Guida-Pometti, and Ms. Gomez as eligible candidates who would be on the ballot for the June 2010 election. This amended notice of election, however, did not "explain the need for the amended notice," as required by Florida Administrative Code Rule 61B-23.0021(9). Mr. Smith telephoned Respondent to notify him, as the contact person for the Board, of this deficiency in the Board's response to the May 18, 2010, letter. Respondent took the matter to the other members of the Board. The Board made the decision to cancel the June 2010 election. The election was rescheduled for, and ultimately held, in August 2010. Around the time that Mr. Smith was conducting his investigation, Respondent had a conversation with one of Petitioner's investigators, Beatriz Caldera, who was investigating a complaint that had been filed with Petitioner against Respondent. During this conversation, Ms. Caldera questioned whether it was a conflict of interest for Respondent to serve on the Board and also be the owner of the community association management firm (Management) providing community association management services to the Association. In his response, Respondent told Ms. Caldera, among other things, that there were three owners of Management, which was not true inasmuch as he was Management's sole owner at the time.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is hereby RECOMMENDED that the Department of Business and Professional Regulation issue a Final Order dismissing the Amended Administrative Complaint in its entirety. DONE AND ENTERED this 26th day of September, 2011, in Tallahassee, Leon County, Florida. S 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 26th day of September, 2011.
The Issue Whether Respondent, Florida Housing Finance Corporation’s (“Florida Housing”), decision to award funding, pursuant to Request for Applications 2017-111 (“the RFA”), to HTG Sunset, LLC (“Sunset Lake”); HTG Creekside, LLC (“Oaks at Creekside”); and Harper’s Pointe, LP (“Harper’s Pointe”), is contrary to its governing statutes, rules, or the RFA specifications; and, if so, whether the decision is clearly erroneous, contrary to competition, arbitrary, or capricious.
Findings Of Fact Petitioner Madison Oaks is the Applicant entity for a proposed affordable housing development to be located in Osceola County, Florida. Petitioner Sterling Terrace is the Applicant entity for a proposed affordable housing development to be located in Hernando County, Florida. American Residential and Sterling Terrace are Developer entities as defined by Florida Housing in Florida Administrative Code Rule 67-48.002(28). Sunset Lake, Oaks at Creekside, and Harper’s Pointe are all properly registered business entities in Florida in the business of providing affordable housing. Florida Housing is a public corporation organized pursuant to chapter 420, Part V, Florida Statutes, and, for the purposes of these proceedings, an agency of the State of Florida. Through the RFA, Florida Housing proposes to award an estimated $10,978,942 in Housing Credit Financing for Affordable Housing Developments located in medium and small counties (“affordable housing tax credits”). The RFA outlines a process for selecting developments for funding. Section Five B. outlines the Selection Process, and subsection 2. is the Application Sorting Order. On November 5, 2017, Florida Housing received 167 applications in response to the RFA. Madison Oaks, Sterling Terrace, Sunset Lake, Oaks at Creekside, and Harper’s Pointe timely submitted applications seeking funding to assist in the development of multi-family housing in medium counties. Florida Housing selected a review committee to score all submitted applications. The review committee issued a recommendation of preliminary rankings and allocations, and the Board of Directors of Florida Housing approved these recommendations on May 4, 2018. The Board found that the parties to this proceeding all satisfied the mandatory and eligibility requirements for funding, but awarded funding to Intervenors based upon the ranking criteria in the RFA. If Sterling Terrace can demonstrate that any two of the three Intervenors should not have been recommended for funding, it and Blue Sunbelt, LLC, will displace them as applications selected for funding. If Madison Oaks can demonstrate that all three Intervenors should not have been recommended for funding, Sterling Terrace and Blue Sunbelt, LLC, will displace them as applications selected for funding. Sunset Lake Section Four A.5.e.(3) of the RFA allows applicants to receive up to four points for proximity to certain community services. The RFA provides that applicants in medium counties must receive at least seven points to be eligible for funding, and at least nine points to be eligible for a Proximity Funding Preference. One of those community services is public schools, which are defined as follows: A public elementary, middle, junior and/or high school, where the principal admission criterion is the geographic proximity to the school. This may include a charter school, if the charter school is open to appropriately aged children in the radius area who apply, without additional requirements for admissions such as passing an entrance exam or audition, payment of fees or tuition, or demographic diversity considerations. Additionally, it must have been in existence and available for use by the general public as of the Application Deadline. (emphasis added). Sunset Lake identified the Jewett School of the Arts (“Jewett School”) as a public school, received four points for proximity, and as a result, was eligible for the Proximity Funding Preference. The Jewett School is a magnet school within the Polk County Florida School District. The Jewett School was in existence and available for use by the general public as of the application deadline. Petitioners maintain the Jewett School does not meet the definition of “public school.”4/ If the Jewett School does not meet the definition of a “public school,” Sunset Lake would not be entitled to four points for proximity to community services. As a result, it would have a total of seven points for proximity, and while it would remain eligible, it would lose the Proximity Funding Preference. As a result, Sunset Lake would not have been ranked as highly and would not have been recommended for funding. The Jewett School does not meet the RFA definition of “public school” because geographic proximity to the school is not the principal admission criterion. Although a student must live in Polk County Schools’ Magnet Zone B to apply for admission to the Jewett School, the principal admission criteria is a random lottery process. Geographic location within the Polk County magnet school zones is a threshold issue which qualifies a student to apply for admission. However, the magnet school decision-making process entails a subsequent elaborate demographic diversity analysis, sorting based on the outcome of that analysis, and, ultimately, a random lottery drawing which determines final admission. The Jewett School admission process is contrary to Florida Housing’s primary purpose of awarding proximity points to proposed housing developments--to ensure the intended residents can, in fact, use the services in proximity to the development. Sunset Lake is not entitled to four points for proximity to community services and should not be awarded Proximity Funding Preference. As a result, Sunset Lake should not have been ranked as highly and should not have been recommended for funding. Oaks at Creekside Oaks at Creekside identified the Manatee Charter School (“Manatee School”) as a public school, received three points for proximity, and, as a result, was eligible for funding but not for the Proximity Funding Preference. The Manatee School is a charter school located in Bradenton, Florida. The Manatee School was in existence and available for use by the general public as of the application deadline. Petitioners maintain the Manatee School does not meet the definition of a “public school.”5/ If the Manatee Charter School does not meet that definition, then Oaks at Creekside is not entitled to three points for proximity. As a result, it would have only six total proximity points, and would not be eligible for funding. Florida Housing maintains that a charter school must meet both parts of the definition of a public school in order for a proposed development to receive proximity points based on proximity to that school. That means a charter school must (1) use geographic proximity as the primary admission criteria, and (2) be “open to appropriately aged children in the radius area who apply, without additional requirements for admissions such as passing an entrance exam or audition, payment of fees or tuition, or demographic diversity considerations.” Geographic proximity is not the primary admission criterion for the Manatee School. On the contrary, the Manatee School is open for admission regardless of geographic proximity thereto. The Manatee School operates pursuant to a contract with the Manatee County School Board, and is “open to any student residing in the Manatee County School District, students covered in an interdistrict agreement and students as provided for in Section 1002.33(10), Florida Statutes (2010).”6/ The Manatee School operates a “controlled open enrollment” process. The application period opens in early January and closes at the end of February, and the School accepts students from any school district in the state whose parent or guardian can provide transportation to the school, if the school has not reached capacity. This process is sometimes referred to as “school choice” and is mandatory pursuant to section 1002.31, Florida Statutes.7/ The Manatee School has enrolled students throughout Manatee County, as well as from adjoining Sarasota County. Historically, the Manatee School has not reached capacity. Once the School reaches capacity in any one grade level or class, students will be selected by a system-generated, random lottery process. The term “radius area” is not defined in the RFA or in Florida Housing’s rules. Florida Housing introduced no evidence regarding the meaning of the term “radius area” within the definition of “public school.” When questioned about the meaning, Marisa Button, Florida Housing’s Director of Multifamily Allocations, stated she did not know, but “[I] assume it means if the charter school has a radius area. I don’t know.”8/ The term “radius” is defined as “a bounded or circumscribed area.” Merriam-Webster Online, www.merriam- webster.com (2018). The bounded or circumscribed area for admission to the Manatee School is the Manatee County School District, pursuant to its contract. The Manatee School is open to appropriately-aged children in the radius area who apply. The Manatee School does not apply additional requirements for admission, such as passing an entrance exam or audition, payment of fees or tuition, or demographic diversity considerations.9/ The Manatee School does provide admissions preferences to students of active duty military personnel, siblings of a student already enrolled, siblings of an accepted applicant, children of an employee of the School, and children of a charter board member. Each of these preferences is authorized pursuant to section 1002.33(10)(d). The preferences are not additional requirements for admission to the Manatee School. The Manatee School meets the second part of the definition of “public school” for purpose of qualifying Oaks at Creekside to receive proximity points pursuant to the RFA. Harper’s Pointe Madison Oaks argues Harper’s Pointe is ineligible for funding pursuant to the RFA because the Harper’s Pointe development site is a “scattered site,” and Harper’s Pointe did not identify the site as such and comply with the RFA requirement to designate latitude and longitude coordinates for both sites.10/ Rule 67-48.002(105) defines “scattered sites” as follows: (105) “Scattered sites,” as applied to a single Development, means a Development site that, when taken as a whole, is comprised of real property that is not contiguous (each such non-contiguous site within a Scattered Site Development, is considered to be a “Scattered Site”). For purposes of this definition “contiguous” means touching at a point or along a boundary. Real property is contiguous if the only intervening real property interest is an easement, provided the easement is not a roadway or street. All of the Scattered Sites must be located in the same county. Section Four A.5.c. of the RFA states: “The Applicant must state whether the Development consists of Scattered Sites.” Section Four A.5.d. of the RFA requires that applicants provide latitude and longitude coordinates for the Development Location Point and any scattered sites. Section Five A.1. provides that “only items that meet all of the following Eligibility Items will be eligible for funding and consideration for funding selection.” Among the items listed are “Question whether a Scattered Sites Development answered” and “Latitude and Longitude Coordinates for any Scattered Site provided, if applicable.” Harper’s Pointe did not state in its application that the development consists of scattered sites, and did not provide separate latitude and longitude coordinates for scattered sites. Harper’s Pointe’s proposed development site, as identified in its Site Control Documents, consists of land located within a platted tract of property. The plat recorded in Alachua County indicates that the site is bisected by a platted 50-foot street easement running east/west through the property. The parties stipulated the street has never been constructed. Although portions of the east/west easement area show signs of having been improved at some time in the past, the easement area has never been paved, and is currently impassible by car or truck due to vegetation in the easement area. Even if the easement area were improved, there is no roadway to the west of the property to which it would connect. A fence runs along the property line and the property beyond the fence is platted residential lots accessed by Northeast 22nd Street. An existing roadway, Northeast 23rd Avenue, terminates at the eastern property line just south of the east/west easement. The City has placed barriers at that property line prohibiting access to the property from Northeast 23rd Avenue. If the platted street is a “roadway or street” as those terms are used in rule 67-48.002(105), the site would meet the definition of a “scattered site.” Ms. Button testified on behalf of Florida Housing that the property meets the definition of a scattered site because “there is an easement that is a road or a street” that bisects the property. Ms. Button first testified that Florida Housing’s determination did not depend on whether a roadway or street is actually constructed within the easement, but rather, “it goes back to the easement, whether there is an easement that is a roadway or street.” Ms. Button’s testimony seemed logical enough. If the easement were a street easement, access between the northern and southern portions of the development site would be constrained. By contrast, if the easement were a conservation or utility easement, there would be no impairment of access between portions of the development site. However, on cross examination, Ms. Button testified that, in making the determination whether an easement for a road or street existed, Florida Housing would consider a number of other factors, including whether a roadway was actually constructed within the easement, whether there were physical obstructions preventing access to the “prospective” roadway or street, and whether the public had a right to use the “prospective” roadway or street. Ms. Button did not testify with specificity what factors she considered in making the determination that the easement, in this case, was “a roadway or street.” Ms. Button’s direct-examination testimony was conclusory: “Based on the documentation we received, there is an easement that is a road or street.” On direct examination, her determination appeared to be based solely on the plat designation of a street easement. On cross-examination, however, Ms. Button testified that “a street designated . . . on a plat could be evidence of the existence of a scattered site.” (emphasis added). Moreover, Ms. Button testified that Florida Housing could consider whether a roadway or street was actually constructed, whether there were obstructions to its use, and whether the public had a right to use the purported roadway. Ms. Button’s testimony that the Harper’s Point development site was a scattered site was equivocal, and the undersigned does not accept it as either reliable or persuasive.11/ There is no physical roadway or street constructed within the easement. While there is some evidence that some portions of the easement area were improved in the past, said improvement was at least 25 years old. The current condition of the property is fairly heavily wooded. To the extent a “path” exists on the property, it is not passable by a standard four- wheeled vehicle. Moreover, there are physical barriers preventing vehicular access to the property from the adjoining street to the east. There is no access to the property from the residential development to the west of the property. There is not an improved area preventing access from the northern to the southern portion of the development site. There is no structure built within the easement which would have to be demolished in order to build the project on the development site as a single parcel. Based on the entirety of the reliable evidence, the Harper’s Pointe development site is not a “scattered site” as defined in the RFA. Madison Oaks failed to prove that Florida Housing’s initial determination to award tax credits to Harper’s Pointe, pursuant to the RFA, was incorrect.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Florida Housing issue a final order finding (1) that its initial scoring decision regarding Sunset Lake was erroneous, and awarding funding to the applicant with the next highest lottery number; and (2) awarding funding to Oaks at Creekside and Harper’s Pointe, pursuant to its initial scoring decision. DONE AND ENTERED this 23rd day of August, 2018, in Tallahassee, Leon County, Florida. S SUZANNE VAN WYK Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 23rd day of August, 2018.
