The Issue The issues are whether the Department of Children and Family Services should impose an administrative fine on Petitioner because children at Petitioner’s child care facility were playing in an area that did not comply with the Department’s rule governing outdoor play areas, and if so, how much should the fine be.
Findings Of Fact Petitioner operates a licensed child care facility located in Lake Wales. The facility’s license number is C14PO0223. Petitioner’s facility, which is owned by James and Vivian Loydd, has a licensed capacity of 25 children. The facility only serves “school age” children, ages five through The Loydds own another child care facility in Lake Wales that serves younger children. Petitioner’s facility is operated on the grounds of a church located on the northeast corner of Scenic Highway and Sessoms Avenue. Scenic Highway is a busy two-lane commercial road that is used as a “cut-through” to get to a main highway. The posted speed limit on Scenic Highway is 35 miles per hour. Sessoms Avenue is a residential street. It is not heavily-traveled. The church grounds include a fellowship hall, classrooms, and an office in one building and a worship auditorium in another building.2 The church also includes a fenced playground area adjacent to the office.3 The worship auditorium building and the fellowship hall/classroom/office building are separated by a paved parking area, which is approximately 50 feet wide and 160 feet long. The parking area includes approximately six handicapped parking spaces.4 Access to the handicapped parking area is provided by a narrow, one-way driveway off of Sessoms Avenue. The driveway runs through a covered breezeway between the church office and the worship auditorium.5 The main parking area for the church is located adjacent to Scenic Highway.6 That parking area can be accessed from either Scenic Highway or Sessoms Avenue. The Sessoms Avenue entrance to the main parking area is not the same driveway that is used to access the handicapped parking area. There are no barriers between the handicapped parking area and the main parking area or Scenic Highway; however, the handicapped parking area is more than 90 feet from Scenic Highway. On March 11, 2004, the Department conducted a routine investigation of Petitioner’s facility. The inspection was conducted by Glynnis Green. Ms. Green arrived at Petitioner’s facility at approximately 3:00 p.m. She turned into the church grounds by way of the driveway off Sessoms Avenue. Ms. Green was driving very slowly along the driveway through the breezeway because she was unfamiliar with the layout of the facility. As Ms. Green was driving through the breezeway, she saw a child chasing after a ball that had rolled across the path of her car. Ms. Green stopped her car and the child ran in front of her car, retrieved the ball, and then ran back in front of her car to the handicapped parking area where he was playing with other children.7 Ms. Green was only driving three to five miles per hour at the time she first saw the child, and she was able to stop her car in plenty of time to avoid hitting the child. The child crossed approximately ten to 15 feet in front of Ms. Green’s car. The child who crossed in front of Ms. Green’s car was playing ball with seven other children in the handicapped parking area.8 Another three children were sitting on the step outside of the classroom building with Stephanie Pride, the teacher who was supervising the children at the time.9 A total of 11 children were at Petitioner’s facility on the day of Ms. Green’s investigation. All of the children were “school age,” and all of the children were outside with Ms. Pride. Ms. Pride was the only teacher at the facility at the time. The other teacher, “Miss Tina,” left approximately 10 minutes before Ms. Green arrived. The facility’s director was on maternity leave, and the Loydds were at their other child care facility. Ms. Pride and the Loydds acknowledged at the hearing that it was inappropriate for the children to be playing outside in an unfenced area with only one supervisor. They acknowledged their unfamiliarity with the Department’s rule requiring two supervisors under such circumstances, and they accepted responsibility for their lack of familiarity. After Ms. Green parked her car, she directed Ms. Pride to take the children inside. Ms. Pride did so, and Ms. Green commenced her inspection of Petitioner’s facility. After completing her inspection, Ms. Green filled out the Department’s standard inspection checklist form. On the form, Ms. Green cited Petitioner’s facility for six violations,10 including a violation of Florida Administrative Code Rule 65C- 22.002(4)(e) for the children playing in the unfenced handicapped parking area. Ms. Green described that violation on the checklist as follows: The center did not have fencing for the outdoor play area that was safe from traffic. They were allowing the children to play in the parking lot and a child was witnessed running after a ball into the path of a car entering the parking lot. The center did not have an additional staff member present in the unfenced outdoor play area used for school-age children. The center did not have written authorization from the department to operate without a fence. All of the violations cited by Ms. Green were corrected at the time of the inspection or within the time set by Ms. Green for her follow-up inspection. The violation related to the children playing in the handicapped parking area was corrected at the time of the inspection by Ms. Pride taking the children inside. Ms. Green explained the results of her inspection to Ms. Pride and the Loydds, who had come to the facility at some point during Ms. Green’s inspection. She did not indicate what action the Department might take based upon the cited violations, because she did not know. Mr. Loydd asked Ms. Green what could be done to remedy the violation related to the outdoor play area. Ms. Green suggested that the facility could erect barricades around the handicapped parking area while the children were playing in that area in order to keep the children in and the cars out. On March 12, 2004, the day after Ms. Green’s inspection, Mr. Loydd purchased $272.63 of materials to implement Ms. Green’s suggestion. The materials included four orange traffic cones, four orange posts with reflectors on top, and two rolls of four-foot high orange plastic fencing.11 Mr. Loydd planned to place two cones on the driveway in front of the breezeway and two cones at the end of the handicapped parking area. He also planned to place two posts at each end of the handicapped parking area and then run fencing between each set of posts in order to enclose the handicapped parking area.12 The cones, posts, and fencing will be set out when the children are playing in the handicapped parking area, and will be removed when the children are playing inside. After Ms. Green returned to her office, she provided the completed inspection checklist to her supervisor, Patricia Hamilton, for further action. After reviewing the checklist and discussing the matter with Ms. Green, Ms. Hamilton determined that a fine should be levied against Petitioner based upon the children's playing in the unfenced handicapped parking area. Ms. Hamilton considered the violation to be serious because the children could have been seriously injured if they were struck by a car while playing in the unfenced parking area. Ms. Hamilton determined that a $250.00 fine would be appropriate under the circumstances. She testified that the “objective” of the fine was to impress upon Petitioner the seriousness of the violation so as to ensure that it would not happen again. The proposed $250.00 fine was based solely on the violation related to the children playing in the handicapped parking area. Ms. Green and Ms. Hamilton each testified that the other violations had been promptly resolved to the Department’s satisfaction and that the proposed fine was not based upon those violations.13 A certified letter was sent to Petitioner on April 9, 2004, under Ms. Hamilton’s signature advising Petitioner of the Department’s intent to impose a $250.00 fine. The letter advised Petitioner of its right to request a hearing on the Department’s intended action. The Loydds responded to the Department’s letter through a letter dated April 28, 2004. In that letter, the Loydds requested a hearing, and also stated that they had “purchased cones and barrier protection at the cost of $275.00 to keep traffic out of the drive thru so we are requesting the department to rescind the fine and to grant the use of the drive through as part of the play area.” Ms. Hamilton did not take any action on the Loydds' request that they be allowed to use the handicapped parking area as an outdoor play area. She did not recall seeing the Loydds’ letter, and because the letter requested a hearing on the proposed fine, it is likely that Ms. Hamilton’s assistant sent it directly to Tallahassee for processing. The Loydds did not follow up with Ms. Hamilton regarding their request for approval of their use of the handicapped parking area as an outdoor play area. Mr. Loydd spoke to another Department inspector, Vicki Richmond, about using the cones and fencing to enclose the handicapped parking area, but Ms. Richmond told him that she did not think that the Department would approve that plan. The Department and the Loydds are equally at fault for the Department’s failure to take prompt action on the request for approval of Mr. Loydd’s proposal to use the handicapped parking area as an outdoor play area. The Department is at fault because, as it acknowledged in its PRO (at pages 7-8), it did not closely review the April 28, 2004, letter from the Loydds that clearly requested approval of that area as an outdoor play area, and the Loydds are at fault for not formally following up with Ms. Hamilton after she failed to respond to the letter and/or after Mr. Loydd received conflicting information from Ms. Green and Ms. Richmond regarding the viability of his proposal. The decision to approve an unfenced outdoor play area is made by Ms. Hamilton and a “team” of inspectors and supervisors. It typically takes approximately one week for such a decision to be made once a formal request is received.14 Petitioner has not used the handicapped parking area as an outdoor play area since Ms. Green’s inspection. No children have been observed playing in that area during the Department’s follow-up inspections. None of the violations cited by Ms. Green were repeat violations. Petitioner has not been cited for any previous violations by the Department relating to the safety of children at its facility.
Recommendation Based upon the foregoing findings of fact and conclusions of law, it is RECOMMENDED that the Department issue a final order imposing an administrative fine on Petitioner in the amount of $100.00. DONE AND ENTERED this 16th day of August, 2004, in Tallahassee, Leon County, Florida. S T. KENT WETHERELL, II 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 16th day of August, 2004.
The Issue The issue is whether Department of Lottery Rule 53ER88-16, entitled Handicap Accessibility, is an invalid exercise of delegated legislative authority because it does not require handicap parking spaces at the location of lottery ticket vendors.
Findings Of Fact Dr. Steven Krisher was trained and practiced as a dentist until he developed the disability of multiple entrapment neuropathy, which now has progressed to the point that he can no longer engage in gainful employment, drive an automobile, exercise, or engage in sports. In order to be mobile outside his home he uses a wheelchair. He holds a permit for disabled parking from the Department of Highway Safety and Motor Vehicles. The Department of Lottery promulgated Rule 53ER88-16, Florida Administrative Code, to replace its prior rule on handicap accessibility. The text of the current rule, which is the subject of this challenge, is as follows: Retailers shall be required to provide accessibility for disabled persons on habitable grade levels according to the following minimum specifications: A ramp 44 inches wide for changes in level in excess of 1/2 inch at doorways. The grade shall be not more than 1 inch vertically in 12 inches horizontally. A platform at the top of the ramp which is five feet by five feet if the door opens onto the platform, or three feet deep and five feet wide if the door does not open onto the platform. Aisles or pathways from the entrance door to the counter at which lottery tickets are sold shall be 44 inches in width. A clear turn-around space of at least five feet square in front of the counter at which lottery tickets are sold. An entrance door meeting one of the following specifications: Single leaf walk-through swinging door, 32 inches; One leaf of manually operated multiple- leaf swinging door, 32 inches; Any other walk-through opening, 29 inches. The Department shall not enter into a retailer contract with any retailer whose application is received by the Department after the date of adoption of this rule until the retailer is in compliance with the requirements of paragraphs 1 through 5 above. All retailers whose applications were received by the Department prior to the effective date of this rule shall, not later than 90 days after contracting with the Department, provide the Department with a certificate under oath, affirming that the retailer is in full compliance with the handicap accessibility requirements set forth above. This section does not apply to a retail location which has an entrance door threshold more than 12 inches above ground level.
The Issue The issue is whether Respondent has committed unlawful housing discrimination against Petitioner.
Findings Of Fact Waterford Crossing is a development comprising 80 townhomes in Broward County, Florida. Respondent is a homeowners' association consisting of the owners of the 80 townhomes. Respondent is governed by the homeowners and their elected Board of Directors and the officers appointed by the Board. At all relevant times, William Shaw has been the Vice President of Respondent. Diana Arguinzoni del Toro is a female who purchased a townhome at Waterford Crossing in 1997 and has lived there continuously since that time. At all relevant times, Mr. Shaw resided in a townhome across the street from the townhome of Ms. del Toro. Parking is limited at Waterford Crossing. Illegally parked cars, which may consist of vehicles parked outside of marked parking areas or vehicles in marked parking areas, but without the appropriate permit, pose a serious problem. At times, emergency vehicles have been unable to access parts of Waterford Crossing due to illegally parked vehicles. From time to time, Respondent hires a towing company to tow illegally parked vehicles from Waterford Crossing. Immediately after so-called "towing nights," residents and guests tend to comply with applicable parking rules, but, over time, compliance lessens. When the number of parking complaints rises sufficiently, Respondent hires a towing company to conduct another "towing night." It is unnecessary to consider in detail the parking rules of Waterford Crossing. On the evening of March 24, 2004, Ms. del Toro's car was legally parked, as the parking rules have been applied, in a guest space near her townhome. This happened to be a "towing night," although this fact was unknown to Ms. del Toro. As is its practice, Respondent's Board of Directors advised an employee of its property manager to conduct a towing night, and the property manager requested the towing company to tow illegally parked vehicles from Waterford Crossing that night. The diligence and care exercised by the towing company in conducting towing nights left something to be desired. Routinely, the company would tow fewer than all of the vehicles illegally parked at Waterford Crossing, as it proceeded to other sites to serve the towing needs of more profitable customers. From time to time, the company would tow a legally parked vehicle, such as a vehicle parked in a marked space and bearing a suitable parking permit. On the evening in question, towing company's lack of diligence and care combined to result in the towing of Ms. del Toro's car, despite the fact that it bore a suitable parking permit and was legally parked, and in the failure to tow other vehicles that were illegally parked. The removal of Ms. del Toro's car resulted from the failure of the tow truck operator to notice her parking sticker. The failure to remove illegally parked vehicles resulted from the operator's decision to begin and end towing night with the removal of Ms. del Toro's car. Ms. del Toro attributed the improper towing of her car to Mr. Shaw because, in the summer of 2002, he had made an unwelcome sexual advance to her while in her home. At that time, while they were alone, Mr. Shaw twice pulled the front of her blouse, in the vicinity of her breasts, in an apparent attempt to embrace or kiss her. Ms. del Toro firmly rebuffed him, and she and Mr. Shaw, who had previously maintained a neighborly relationship, no longer spoke to each other. Ms. del Toro subsequently perceived another instance of discriminatory treatment in the maintenance of her landscaping, but the evidence provides no basis to attribute this to Mr. Shaw. The evidence does not link Mr. Shaw to any shortcomings in the maintenance of vegetation on Ms. del Toro's lot, as compared to the maintenance of vegetation on the lots of other owners. Similarly, there is no more basis to attribute the towing incident to Mr. Shaw than to the incompetence of the tow truck operator, which was later fired by the property manager due to its inability to tow sufficient vehicles on "towing nights." Mr. Shaw was at work at Miami International Airport on the night of the towing incident. Additionally, the passing of nearly two years between the unwelcome sexual advance and the claimed retribution--without earlier proved instances of retribution by Mr. Shaw--militates strongly against the interpretation of the towing incident offered by Ms. del Toro and shared by Petitioner. However, Mr. Shaw's longtime status as an officer of Respondent, his unwelcome sexual advance, and his personal involvement in at least one previous "towing night," coupled with the incompetence of the towing company in improperly removing Ms. del Toro's car, constitute a reasonable basis in law and fact supporting the theory of Ms. del Toro and Petitioner that Mr. Shaw had discriminated against Ms. del Toro, Although their theory proved unsupported by the evidence, Petitioner's commencement of this proceeding was substantially justified, so as to preclude the award of attorney's fees against Petitioner.
Recommendation RECOMMENDED that the Florida Commission on Human Relations enter a final order dismissing the Petition for Relief. DONE AND ENTERED this 13th day of January, 2006, in Tallahassee, Leon County, Florida. S ROBERT E. MEALE Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 13th day of January, 2006. COPIES FURNISHED: Cecil Howard, General Counsel Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301 Denise Crawford, Agency Clerk Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301 Vicki Denise Johnson Attorney for Petitioner Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301 Thomas F. Luken Attorney and Counselor at Law 1290 East Oakland Park Boulevard Suite 200 Fort Lauderdale, Florida 33334
Findings Of Fact On or about January 26, 1990, the Respondent sought competitive bids through Invitation to Bid Number 590:2123 for the lease of certain office space in Plant City, Florida. The bid opening occurred on March 1, 1990, and Intervenor was determined to have submitted the lowest responsive bid. In addition to Intervenor's bid, bids were received from Petitioner and Walden Investment Company, which is not a party in this case. On or about May 8, 1990, the Respondent notified all bidders of its intent to award this lease to Intervenor, and on May 10, 1990, the Petitioner filed its notice of protest concerning this award claiming that Intervenor's bid was not responsive to the parking requirements in the Invitation to Bid. Section 15 of the Invitation to Bid requires that a minimum of 65 parking spaces be provided, and that a minimum of 15 of these spaces must be full size and a minimum of 5 must meet ANSI standards for handicapped parking spaces. No definition or specification for full size parking spaces is provided in the Invitation to Bid. Petitioner did not establish that there is a commonly accepted standard for full size parking spaces in the construction or development industry, or that the Respondent uniformly requires all full size parking spaces to be of certain dimensions. The Intervenor certified in its bid that it would meet the parking space requirement of the Invitation to Bid. The Respondent does not require detailed site plans which would depict actual dimensions for each parking space to be submitted with each bid. Rather, Section 10(d) of the Invitation to Bid requires only a line drawing "drawn roughly to scale", and specifies that final site layout will be a "joint effort between the department and the lessor so as to best meet the needs of the department". The Intervenor did submit a rough line drawing with its bid which depicts 71 parking spaces. The Respondent routinely accepts a bidder's certification that it will meet the parking requirements in an Invitation to Bid, and if those requirements ultimately are not met, the Respondent may proceed against the performance bond which the successful bidder is required to post. The Petitioner presented evidence that there is not enough room on Intervenor's site to provide 15 full size parking spaces measuring 10 feet wide by 20 feet long. However, there is nothing in the Invitation to Bid, or in the City of Plant City's Code which requires full size parking spaces of this dimension. Based upon its certification and the inclusion of a rough line drawing showing space for parking in excess of the requirements in the Invitation to Bid on this site,, it is found that Intervenor was responsive to the parking requirements in this Invitation to Bid.
Recommendation Based on the foregoing, it is recommended that the Respondent enter a Final Order dismissing Petitioner's protest and awarding Lease Number 590:2123 to Intervenor. DONE AND ENTERED this 3rd day of August, 1990, in Tallahassee, Leon County, Florida. DONALD D. CONN Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 3rd day of August, 1990. COPIES FURNISHED: Jack Farley, Esquire District 6 Legal Office 4000 West Dr. Martin Luther King, Jr., Blvd. 5th Floor, Room 520 Tampa, FL 33614-9990 Alan Taylor P. O. Box 7077 Winter Haven, FL 33883-7077 Richard C. Langford, Esquire P. O. Box 3706 St. Petersburg, FL 33731-3706 R. S. Power, Agency Clerk 1323 Winewood Blvd. Building One, Room 407 Tallahassee, FL 32399-0700 John Miller, General Counsel 1323 Winewood Blvd. Tallahassee, FL 32399-0700
