The Issue Whether Respondent Whispering Oaks Estates Home Owners’ Association, Inc. (Whispering Oaks Estates HOA), failed to provide a reasonable accommodation for the late Charles A. Tipton’s disability in violation of Florida’s Fair Housing Act; and, if so, the relief that is appropriate.
Findings Of Fact Whispering Oaks Estates HOA governs Whispering Oaks Estates, a property located in Hernando County, Florida. Every owner of a lot in Whispering Oaks Estates is a member of Whispering Oaks Estates HOA. A document entitled “Amended Declaration of Covenants, Conditions and Restrictions” (the Covenants) sets forth several conditions governing lot owners’ use of their property and empowers Whispering Oaks Estates HOA to enforce those conditions. For example, the Covenants mandate that an “Architectural Control Committee shall be responsible for approving or rejecting house designs, size, elevation, color, and/or any other matters generally relating to protection of the overall aesthetic harmony of Whispering Oaks Estates.” Also, a lot owner cannot erect a fence, wall, antenna, or a cable television facility without prior approval from Whispering Oaks Estate HOA’s Board of Directors or the Architectural Control Committee. In addition, if a lot owner fails to care for his or her lawn, then the Board of Directors can hire a lawn-care service to cut and trim the lot owner’s lawn as necessary. Furthermore, the Covenants expressly prohibit garage sales, and lot owners’ ability to park boats, campers, trucks, pickups, trailers, or recreational vehicles in Whispering Oaks Estates is strictly regulated. The Covenants also provide that they can be amended by a two-thirds vote of the lot owners. Dr. Tipton holds a doctorate in management information systems from the University of Sarasota and has lived in Whispering Oaks Estates since August of 2005. Dr. Tipton resides in a section of Whispering Oaks Estates that consists of five townhomes, which are the property of the townhome owners. The five townhome owners jointly own a nearby parking lot, and each townhome owner has two spaces in the parking lot. Dr. Tipton’s townhome is approximately 130 feet from the parking lot. Dr. Tipton shared her townhome with her father, who suffered from Chronic Obstructive Pulmonary Disorder (COPD). As a result, Mr. Tipton needed supplemental oxygen and made use of a walker and a wheelchair. In addition, Dr. Tipton assisted her father with his daily activities as necessary. Because of Mr. Tipton’s condition, it was impossible for him to traverse the distance between the parking lot and his daughter’s townhome on foot. Therefore, Dr. Tipton would utilize a golf cart to transport her father between the parking lot and her townhome. Because of the golf cart’s size, Dr. Tipton needed five feet alongside the passenger’s side of her vehicle to remain unobstructed so that she could transfer her father between her vehicle and the golf cart. In October of 2013, Dr. Tipton wrote a letter to Nancy Frizelle, who was the president of Whispering Oaks Estates HOA at the time. Dr. Tipton’s letter had a subject line referring to “Disabled Access/Fair Housing Act,” and the body of the letter stated the following: Dear Mrs. Frizelle, The Homeowners Association has a valid purpose. It protects the homeowners so we can sell our properties located on a beautiful golf course. My goal is to attempt to obey all housing rules and deed restrictions to create a nice community. However, at no time, will I support any type of discrimination or harassment from other home owners over parking. That is what this letter is about as we wish to resolve this quickly without going to court. As you are aware, my house has shared designated parking. Each owner has 1/5 ownership of a parking lot that has two designated parking spaces per owner. My Dad resides with me as I am his caregiver. Under the law, the caregiver is considered the same as the disabled person. All of the owners have left the walkway open as some of the 5ft access is part of my actual parking space. The other footage is in Bonomo’s. None of us owners had a problem before keeping it open. The one lawsuit that would concern the Homeowners Association is under the Fair Housing Act. The attorney we consulted is a specialist in that area. Her name is Lynn Handshaw located in Tampa, Florida. She requested that this letter be written as the association is an indirect body that controls the parking lot. It was further explained to Lynn that our intent is not to file a lawsuit to the association because they do try to keep the community in good standing. However, we will if necessary. The private parking lot is owned by (5) five homeowners but it is required by the association that we park there. We are giving the association (10) ten days to notify Bonomo, Collazo, and Buckingham that Reeves will be painting the blue lines and white “no parking” on that five foot ADA access way. Each owner can give up (1) one foot to have that painted. According to my attorney, she does not care if the association or homeowners agree to this or not. She stated that if they don’t comply she will file a lawsuit against the association and only the homeowners, that don’t comply. She will do it on a percentage contingency. Please get with Mr. Murphy so that he fully understands that the 5 ft access is to remain unblocked and painted so the Sheriff’s Office can tow any vehicle that is blocking its’ path. If the association does not want to support my having ADA access then they can buy my house or place parking in front of my home like the other villas, at their expense. While this would ruin my view, it would give me quiet ownership without having to put up with the constant upheaval of parking. Please respond back to me within (10) ten days as to the associations [sic] intentions as we would like this to be resolved. Thanks for your attention to this matter. Respectfully, Dr. B.J. Tipton Ms. Frizelle responded to Dr. Tipton’s letter via a letter dated October 19, 2013, stating the following: Dear Ms. Tipton, Your letter entitled Disabled Access/Fair Housing Act was presented to the Whispering Oaks Estates Home Owners Association for consideration at its regular Board of Directors meeting on October 16, 2013. The Board’s position is quite simple: the Whispering Oaks Estates Home Owners Association has neither the jurisdiction nor the responsibility to police private property rights and or/disagreements. Therefore, we can initiate no action to help you solve the situation described in your letter. Very truly yours, Nancy Frizelle President Whispering Oaks Estates Home Owners Association On November 18, 2014, Dr. Tipton wrote a letter to Wayne Parlow, who was the president of Whispering Oaks HOA at the time. Dr. Tipton’s letter had a subject line referencing “Easement, Parking, Harassment” and stated the following: Dear Mr. Parlow and Board Members, As you are aware, The Department of Justice has the case concerning access to the parking lot under the disabilities and fair housing act. The department has a copious amount of pictures, documents, video recordings and the letter from Ms. Frizelle, past president. This is not a parking lot dispute as Ms. Frizelle and others had attempted to indicate. The case is simple. The Homeowners Association held themselves out to be an association but failed to perform. Reasonable accommodations were requested and denied. Harassment then started from various individuals. Discrimination is ugly. I am the youngest owner with a disabled father that is a permanent resident in the home that I have owned for ten (10) years. The Department of Justice has made it clear that my legal rights have been violated. All of these discussions are documented through e- mails. My case is in the queue. After the Department of Justice completes their job my civil attorney, in Tampa, will have the second lawsuit against the private owners, Arvin Franklin Marshall, Jr. (A.K.A. Lucky) and Michele Cerise Collazo Nelson Dorney that have denied access/blocked/ /verbally insulted/stalked and harassed me and/or my dad. Some of this has been documented with the Hernando County Sheriff [sic] Office. There are pictures and video recordings that have been forwarded. Lucky or Michele do not own any portion of that parking lot. Please remember, that my family or I have never known Lucky prior to him living with Michele. There has never been any conversations, initiated by me or my family, to Michele or Lucky. No one in my household has anything to do with the Collazo residence or Lucky or Michele. Lucky has sexually harassed me on several occasions and this has been reported. Recently, Lucky confronted me and my dad, on the golf cart, one day in the parking lot, when doing transfer. He stated he was going to put my dad “in the bottom of the Withlacoochee River with cement shoes.” We contacted the Hernando County Sheriff [sic] Office. Lucky or Michele are not allowed on any land that I own or partially own due to harassment. Kenneth and Rachael Reeves are the only 1/5th owners that will not be included as they know the law and have stated they have no intentions of breaking it. Roger Levesque, Jr. may possibly be included as well. Again, I do not know Roger and have never spoken to him. Roger bought 35000 Whispering Oaks Blvd and is Lorraine Collazo’s friend. He approached me one day, in the road in front of my home, threatening me over the parking lot. It is amazing that someone would threaten an owner that they have never spoken with concerning any issue. Furthermore, he never even tried to obtain facts prior to his threat. That also has been reported. The third lawsuit concerns the easement. In a previous letter this issue was mentioned. It has also been discussed verbally. This letter is to advise the association that I have retained Mr. Jacob I. Reiber of Wesley Chapel, Florida for the easement issue. He requested that this letter be sent. We will be seeking emergency mandatory injunctions to not have any further plantings in my secondary easement, if necessary. The homeowners association[] has been contacted on numerous occasions over the years that the easement needed to be cleared so that my mowers and golf cart could have access. The grapefruit/lemon tree and purple bush were all planted by the Bonomo[]s that own 35004 Whispering Oaks Blvd. The four wood slabs that create a planter box were installed by Collazo and Bonomo. Collazo owns 35002 Whispering Oaks Blvd. If these items were removed I probably would have access. These are all man made obstructions. This forces me to use the easement owned by the golf course, which is allowed, if an easement is obstructed, according to the restrictions. All legal cost for reimbursement will be included in this lawsuit. The association has thirty (30) days to get with Mr. Reiber concerning their intentions. Mr. Reiber will be in contact with Arvin and Michele to keep them from harassing and stalking me over the parking situation. Michele is Lorraine Collazo’s daughter that lived at 35002 Whispering Oaks Blvd. on and off throughout the ten (10) years that I have owned my home as a primary residence. It is dangerous for me to do my daily walks due to Lucky entering the neighborhood. Neither Arvin nor Michelle has a license to practice real estate or law but seem to dispense advice concerning ADA and the parking lot deed. Their opinion simply does not count as neither have legal ownership and are not a member of the association. This could be considered a felony. These cases are interrelated but will be kept separate. Please do not respond to me concerning this letter. Mr. Reiber has all the documents needed to discuss this situation. Please contact Mr. Reiber or have Mr. Murphy make contact concerning these issues. Our intention is to have all these issues resolved as quickly as possible. Have a Happy Thanksgiving! Respectfully, Dr. B.J. Tipton Mr. Tipton died in March of 2015. While his will nominates Dr. Tipton to act as the personal representative to dispose of his property if Mr. Tipton’s son is unable or unwilling to do so, Dr. Tipton testified during the final hearing in this matter that “an estate has not been opened.” Dr. Tipton asserted during the final hearing that she requested a “reasonable accommodation” (within the meaning of Florida’s Fair Housing Act) by asking the Whispering Oaks Estates HOA to keep the five feet alongside the passenger side of her truck unobstructed. Dr. Tipton also asserted during the hearing that she verbally communicated her reasonable accommodation request on multiple occasions to those in charge of Whispering Oaks Estates HOA. As a matter of ultimate fact, Mr. Tipton was handicapped/disabled and five feet of additional space adjacent to Dr. Tipton’s parking space was necessary in order for Mr. Tipton to use and enjoy Whispering Oaks Estates. As a matter of ultimate fact, Dr. Tipton proved by a preponderance of the evidence that she communicated a reasonable accommodation request via her October 2013, letter to Whispering Oaks Estates HOA. As a matter of ultimate fact, the Whispering Oaks Estates HOA had the authority to mandate that the five feet of space adjacent to Dr. Tipton’s parking space remain unobstructed. Dr. Tipton is seeking damages based on Whispering Oaks Estate HOA’s denial of her request for a reasonable accommodation. Specifically, she seeks to be reimbursed $53.50 for a camera that was used to monitor the parking lot that she and her neighbors jointly owned. Dr. Tipton also seeks to be reimbursed $125.00 for the cost of hiring a tow truck to remove a vehicle from her parking space. Finally, Dr. Tipton seeks $25,000 in punitive damages. As a matter of ultimate fact, Dr. Tipton failed to demonstrate that the costs associated with the camera and the towing service were related to the denial of a reasonable accommodation. Instead, it is more likely that those costs were associated with the alleged harassment described by Dr. Tipton. Indeed, Dr. Tipton testified at length during the final hearing about the alleged harassment and stated that the camera was intended to monitor whether anyone attempted to sabotage her vehicle.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Florida Commission on Human Relations issue a final order dismissing Petitioner’s Petition for Relief. The Estate of Charles A. Tipton’s requests for damages and its Motion for Attorney’s Fees are DENIED. Whispering Oaks Estates HOA, Inc.’s Motion for Attorney’s Fees is DENIED. DONE AND ENTERED this 16th day of December, 2015, in Tallahassee, Leon County, Florida. S G. W. CHISENHALL 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 16th day of December, 2015. COPIES FURNISHED: Tammy Barton, Agency Clerk Florida Commission on Human Relations 4075 Esplanade Way, Room 110 Tallahassee, Florida 32399 (eServed) Cheyanne Costilla, General Counsel Florida Commission on Human Relations 4075 Esplanade Way, Room 110 Tallahassee, Florida 32399 (eServed) B. J. Tipton Estate of Charles A. Tipton 35006 Whispering Oaks Boulevard Ridge Manor, Florida 33523 (eServed) Michael Joseph Bayern, Esquire 570 East Long Beach Road St James, New York 11780 (eServed) David J. Murphy, Esquire Mander Law Group 14217 Third Street Dade City, Florida 33523 (eServed)
The Issue Whether Respondent Banta is guilty of dishonest dealing, culpable negligence, or breach of trust in a business transaction, in violation of Section 475.25(1)(b), Florida Statutes, (1993). Whether Respondent is guilty of operating as a real estate broker without a valid and current license, in violation of Section 475.25(1)(e), Florida Statutes (1993). Whether Respondent is guilty of failing to provide written agency disclosure to a party in a real property transaction, in violation of Section 475.25(1)(q) and (1)(e), Florida Statutes (1993) and Rule 61J2-10.033, Florida Administrative Code.
Findings Of Fact Petitioner is a state licensing and regulatory agency charged with the responsibility and duty to prosecute Administrative Complaints pursuant to the laws of the State of Florida. Respondent is now and was at all times material hereto a licensed real estate broker in the State of Florida having been issued license number 0165881. As of March 31, 1992, the Respondent failed to renew his real estate broker’s license, for the 2-year period of April 1, 1992 to March 31, 1994. Renewal would have consisted of completing the required continuing education, paying the required fee, and sending the required form to the Department of Business and Professional Regulation. The Respondent’s license was delinquent after March 31, 1992. As of March 31, 1994, the Respondent had not renewed his broker’s license and his license remained delinquent. On May 9, 1994, the Respondent renewed his license, in order to make a claim for a commission. As of March 31, 1996, the Respondent failed to renew his license again. His license was delinquent after March 31, 1996, and was delinquent as of the hearing date. The Respondent operated as a real estate broker during the period of approximately February 1993 through May 1994, specifically including a period when his license was delinquent as “involuntary inactive.” Sam Morrow is a licensed real estate broker and is a real estate developer and home builder. Effective February 10, 1993, Respondent entered into an Independent Contractor Agreement with Florida’s Preferred Homes, Inc. (FPH), a company in which Morrow is a principal. Respondent was originally retained on a fixed salary basis for an indefinite term to assist in finishing a number of low-income housing tax credit apartment applications for tax credits. At the request of Morrow, Respondent assumed other duties. Respondent represented FPH, and other business entities of which Morrow was the principal, in other business dealing from February 10, 1993 through May 24, 1994, when Respondent was terminated. The Respondent received a fixed salary throughout the period of his association with Morrow with the promise of additional undefined compensation in the future. For the purposes of this matter, Respondent was an employee of FPH and was supervised by Morrow. Respondent’s association with Morrow was not an exclusive employment agreement. During this same period in February 1993, Morrow became engaged in a transaction involving affordable housing. The transaction involved the purchase of land, by a purchasing entity, the Community Housing Trust, Inc., a 501(c)(3) non-profit corporation, from the seller, Rouse Road Corporation. After this purchase the property was to be transferred to another corporation, of which Morrow was to be the principal along with another business partner, and affordable housing units would be constructed upon the land and then sold to the public. The structure of the purchasing and developing entities was complex, involving various public and private entities, including Orange County. Morrow was a principal and the overall coordinator of the entire project which came to be known as the Oak Grove Circle project. There was no specific agreement for the Respondent to receive any particular additional compensation for the Respondent’s services in the affordable housing project. Respondent was familiar with the property that the Rouse Road Corporation had for sale and brought it to the attention of Community Housing Trust, as a prospective purchaser. This particular property was suitable for purchase and development as an affordable housing project. Respondent facilitated the purchase and prepared the contract for sale and purchase which was executed by the parties: Community Housing Trust, as purchaser, and Rouse Road Corporation, as seller. The contract was executed on March 5, 1993 for the property later known as the Oak Grove Circle property. Respondent represented neither the purchaser nor the seller in the transaction. He considered himself a transactional broker. The contract indicates on its face that Respondent, J. Scott Banta, is the real estate broker in the transaction. The contract called for the payment of a 10% commission to the Respondent. Respondent was not at any time prior to or during the purchase and sale transaction, either an agent, employee, independent contractor or representative of the seller, Rouse Road Corporation. Respondent was not at any time prior to or during the purchase and sale transaction, either an agent, employee, independent contractor or representative of the purchaser, Community Housing Trust, Inc. In September 1993, Morrow formed a Florida corporation known as FPH Venture 2, Inc. He was the sole incorporator. During this period in the fall of 1993, certain negotiations took place regarding the structure and goals of FPH Venture 2, Inc. The principals of the firm were to be Sam Morrow and Long Farms North. All of the prospective partners agreed that because of the need for cash equity, the real estate commission on the Oak Grove Circle property would remain in the FPH Venture 2 proposed project. For this consideration Respondent expected to be a principal also. The goals for the FPH Venture 2 project were set out in some detail in a memorandum developed by the prospective venturers and typed by Respondent. Respondent was included as one of the principals. The goals memorandum provides that the 10% commission payable to Respondent on the Oak Grove Circle purchase and sale would be assigned by Respondent to FPH Venture 2 “for cash flow and total profit benefits.” Respondent’s understanding of the proposed FPH Venture 2 project was that he was to receive a one-third ownership participation in FPH Venture 2, Inc., which was to have included the proposed Oak Grove Circle project and another proposed project in Lakeland, Florida, in exchange for the prospective commission. The terms of Respondent’s proposed participation in FPH Venture 2 were never reduced to any form of written agreement. Nor was Respondent ever made a principal in the company or issued any stock, or otherwise given anything to evidence his interest in the proposed venture. The closing of the purchase and sale of the property, later known as the Oak Grove Circle property, as anticipated by the contract for sale and purchase, was consummated on May 19, 1994. James L. Bishop, vice-president of Community Housing Trust, Inc., executed the settlement statement which provided for payment of $28,000 real estate commission to J. Scott Banta from the seller’s proceeds of closing. The commission check was delivered to Respondent at the closing without objection. On the day after closing of the Oak Grove Circle purchase and sale, May 20, 1994, Respondent gave Morrow a memorandum suggesting a procedure for payment of the $28,000 commission into FPH Venture 2, Inc. On May 24, 1994, the matter culminated in a conversation between Respondent Banta and Morrow. Respondent requested Morrow reduce their agreement regarding his proposed participation in FPH Venture 2, Inc., to writing. Morrow refused to do so, and at 4:45 p.m. on the same day, terminated Respondent’s employment, stopped payment on Respondent’s consulting fee check for the prior week and changed the locks on his office with Respondent’s personal property still inside. Respondent has retained the commission from the sale of the Oak Grove Circle property. Morrow’s account of this business relationship with Respondent and the agreed disposition of the proceeds of the commission is not credible.
Recommendation Upon the foregoing findings of fact and conclusions of law, it is RECOMMENDED that the Respondent be found guilty of violating Sections 475.25(1)(e) and (1)(q) and be found not guilty of violating Section 475.25(1)(b), Florida Statutes (1993). It is further recommended that Respondent be fined the sum of $1,000 and that his license be suspended for a period of three months, subject to reinstatement upon such reasonable conditions as the Florida Real Estate Commission shall require. RECOMMENDED this 8th day of January, 1997, at Tallahassee, Florida. DANIEL M. KILBRIDE Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 SUNCOM 278-9675 Fax Filing (904) 921-6847 Filed with the Clerk of the Division of Administrative Hearings this 8th day of January, 1997. COPIES FURNISHED: Steven D. Fieldman, Esquire Department of Business and Professional Regulation 400 West Robinson Street Hurston Building - North Tower, Suite N308 Orlando, Florida 32801 Allen C.D. Scott, II, Esquire Scott & Scott, P.A. 99 Orange Street St. Augustine, Florida 32084 Lynda L. Goodgame, Esquire Department of Business and Professional Regulation Northwood Centre 1940 North Monroe Street Tallahassee, Florida 32399-0792 Henry M. Solares Division Director Department of Business and Professional Regulation 400 West Robinson Street Hurston Building - North Tower, Suite N308 Orlando, Florida 32801
The Issue Is Petitioner entitled to compensation for the sale of agricultural products, and, if so, how much?
Findings Of Fact On or about August 28, 2001, Petitioner sold F.O.B. (Free on Board) at Petitioner's farm to P.S.L. Landscape Services Inc. (hereafter, PSL), 16 Crepe Myrtle trees 14 feet tall and 5 Live Oak trees 2.5 -3.0 inches in Diameter Breast High for a total costs, including tax, of $4,208.20. These trees were dug and wrapped in accordance with the standards of the American Association of Nurseryman in the afternoon of August 30, 2001. The tree roots balls were 40 inches in diameter, and the root balls were placed in wire baskets lined with burlap. The trees were placed upon a flatbed truck with the tops of the trees resting on a rack, and the entirety of the trees, except the roots, covered with a plastic screening material used for this purpose to keep the leaves from becoming wind burned in transit. The trees were transported overnight to PSL where they were received Broward County the following morning at 8:00 a.m. The trees were received and signed for by a representative of PSL, Randy Smith. The documents accompanying the shipment were introduced as part of Petitioner's Composite Exhibit 1. The first of these documents signed by Smith states: Attention: We do not replace trees. If trees are not in satisfactory condition when received, do not accept them. So please take care of your trees. Refer to watering guide in our catalog. The second document signed by Smith provides in bold type at the bottom of the page: DO NOT REFUSE TO UNLOAD THE TRUCK. If there is a serious problem and you question the merchandise, call our office immediately. Our number is 352 493 2496. PSL provided the freight company two checks, one to the freight handler for the freight and the other for 4,208.20 to Petitioner. This check was delivered to the Petitioner by the freight company and deposited by the Petitioner in due course. The Petitioner was notified several days later that a stop payment order had been received on the check for $4,208.20 by PSL. This was the first time the Petitioner was aware of a problem with the merchandise. PSL had not contacted the Petitioner about any problem with the shipment. When Mr. George Kijewski of PSL was contacted regarding the stop payment order, he responded that the trees had wilted. He wrote a letter dated December 21, 2001, to the Department of Agriculture in which he stated: Our firm ordered material from A.D. Andrews Nursery for one of our projects. Two Live Oaks were not number one as ordered. The Crepe Myrtle came in bone dry, not wet as the nursery states. The nursery dug up the plant material ordered and left items in the field until they were loaded onto truck for delivery. They never went to holding area prior to loading to get watered or hardened off. When we got them they were wilting . . . [.] Mr. Deming was present when the trees were prepared. Mr. Kijewski was not present when the trees were prepared. Mr. Deming described the manner in which the trees were dug, prepared for shipment, and shipped. The Crepe Myrtles were dug using a tree spade; the root balls were placed in burlap- lined wire baskets; and the trees placed on the trailer bed where they were secured and covered with a plastic screen to protect them from wind in transit. The Oaks were handled in a similar manner. The trees were not watered; however, the area had received approximately 1.5 inches of water in the seven days prior to shipment. The roots were wet enough to cause the burlap to be damp. The shipping documents do not reflect any wilting or problems although the documents, as quoted above, advised that product should not be received if not in good shape. No notes were made upon receipt reflecting the alleged poor condition of the trees. The trees were sold F.O.B. at Chiefland, and were the property of PSL when loaded.
Recommendation Based upon the foregoing findings of fact and conclusions of law, it is RECOMMENDED: That the Department enter a final order adopting these findings and conclusions of law, directing PSL to pay to Petitioner $4,208.20 within 14 days of receipt of its final order; and, if PSL fails to abide by the Department's order, directing the surety to make good on its bond in the amount of $4,208.20. DONE AND ENTERED this 30th day of April, 2002, in Tallahassee, Leon County, Florida. STEPHEN F. DEAN Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 30th day of April, 2002. COPIES FURNISHED: Andy D. Andrews A. D. Andrews Nursery Post Office Box 1126 Chiefland, Florida 32644 Brenda D. Hyatt, Bureau Chief Department of Agriculture 541 East Tennessee Street Tallahassee, Florida 32308 George Kijewski P.S.L. Landscaping Services, Inc. Post Office Box 9421 Port St. Lucie, Florida 34985 Deborah A. Meek Cumberland Casualty & Surety Company 4311 West Waters Avenue Suite 401 Tampa, Florida 33614
The Issue Whether Grandview Landscaping Services, Inc., is liable to Petitioner for the purchase of landscaping trees; and, if so, in what amount.
Findings Of Fact Petitioner, Southeastern Trees, LLC (Petitioner or Southeastern Trees), is a Florida Limited Liability Corporation located in Gainesville, Florida, engaged in the business of commercial tree farming. Keith Lerner is the President of Southeastern, and David Lerner is the Vice President. Respondent, Grandview Landscaping Services, Inc. (Respondent or Grandview), is a Florida corporation headquartered in Ocala, Florida, engaged in commercial landscaping. Grandview is licensed by the Department as a dealer in nursery products, flowers, and sod. In August 2015, John Sapp, Grandview’s owner, visited Petitioner’s tree farm and selected 27 live oak trees to purchase. On December 11, 2014, Mr. Sapp returned to Southeastern Trees and took possession of the 27 live oak trees. Mr. Sapp used his own equipment to haul the trees. Petitioner sent an invoice to Respondent on December 11, 2014, in the amount of $5,724.00 for the 27 live oak trees. The invoice term was “net 30,” allowing 30 days for Respondent to pay in full. After 30 days had elapsed without payment, David Lerner contacted Mr. Sapp to request payment. Mr. Lerner also requested the location of the trees in order to place a lien thereon. According to Mr. Lerner, Mr. Sapp refused to divulge the location of the trees. After 60 days had elapsed without payment, Keith Lerner contacted Mr. Sapp via telephone. According to Keith Lerner, he spoke with Mr. Sapp on March 1, 2015, who informed him the trees were beautiful and Mr. Sapp would “get him a check.” Keith Lerner attempted to reach Mr. Sapp via telephone again on March 10, 2015, and left messages with Grandview’s office and on Mr. Sapp’s personal mobile phone. Mr. Lerner did not receive a return call. On March 25, 2015, Petitioner sent Respondent, via certified mail, a letter requesting payment of $5,724.00 for the 27 live oak trees and “any interest available to us beyond the 30 days of credit that were extended to you.” The letter was delivered to both Grandview’s business address and Mr. Sapp’s home address. The certified mail receipts were returned to Southeastern Trees, signed and dated March 26, 2015. Petitioner filed a complaint with the Department on March 31, 2015, against Southeastern Trees. Petitioner paid a filing fee of $50.00 As of the date of the hearing, Southeastern Trees had not responded to Petitioner’s request for payment.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Agriculture and Consumer Services enter a final order approving the claim of Southeastern Trees, LLC, against Grandview Landscaping Services, Inc., in the amount of $5,774.00. DONE AND ENTERED this 8th day of October, 2015, in Tallahassee, Leon County, Florida. S Suzanne Van Wyk Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 8th day of October, 2015.
The Issue The issue in this case is whether the application of Christopher and Caroline Roetzer (Appellants) for two variances allowing fences of greater than permitted height on their property should be approved.
Findings Of Fact Appellants, Christopher and Caroline Roetzer, are the owners of property located at 3001 Sunset Point Road in Clearwater, Florida. On or about July 7, 1994, Appellants filed an application with the Appellee, City of Clearwater, for variances of: 3.5 feet to permit a fence height of 6 feet where 2.5 feet maximum height is permitted in a structural setback area from a street right- of-way (Sunset Point Road) where the property is addressed from; and, (2) 2 feet to permit a fence height of 6 feet where 4 feet maximum is permitted in a structural setback from a street right- of-way where the property is not addressed from at 3001 Sunset Point Road. The Appellants purchased the subject property in November of 1993. At the time of purchase, the property was in an incorporated part of Pinellas County and was zoned for commercial use. The Appellants purchased the property for the purpose of constructing a single-family residence. The county issued a permit for construction of the residence on December 8, 1993, and construction began shortly thereafter. The residence was completed in March of 1994. The Appellants' residence is addressed from Sunset Point Road. The back of Appellants' property adjoins Oak Forest Drive. Oak Forest Drive is located in Forest Wood Estates, a residential subdivision that was initially developed more than twenty years ago. Appellants' property was not, prior to their purchase, and is not now, a part of Forest Wood Estates. Appellants' residence is a large two-story, three-car garage structure. The Appellants have also constructed a fenced dog-pen immediately adjacent to their residence. The surrounding residences are generally smaller, single story structures. Unlike Appellants' residence, the other residences adjoining Oak Forest Drive front on, and are addressed from that street, and not Sunset Point Road. The back of the residential property located at 3006 Oak Forest Drive, which is immediately adjacent to the Appellants' property, has a wooden fence in excess of 2.5 feet located along Sunset Point Road. In February of 1994 Appellants applied for annexation by the City of Clearwater. The purpose of the application for annexation was to enable the Appellants to access the City sewage system. On March 17, 1994 the subject property was annexed by the City. The Appellants were not informed that the annexation had been effected at that time. On May 19, 1994, officials of Pinellas County, also unaware that the Appellants' property had been annexed by the City, issued a permit for the construction of a 6 foot fence in the back of the Appellants' property adjoining Oak Forest Drive. On June 7, 1994, the fence was erected. At the time the fence was constructed, Robert King, a resident of Forest Wood Estates, informed the fencing contractor that the fence violated the City code. On June 9, 1994, the City of Clearwater issued the Appellants a notice of violation of permitting requirements. Prior to the construction of the fence, children used the back of Appellants property as a shorter route to return home from school. On July 7, 1994, Appellants filed an application for variances to construct not only the 6 foot fence that had been erected in the back of the property, but also to construct a 6 foot fence in the front of the property along Sunset Point Road. The Appellants applied for the variances for reasons of security, privacy, and protection from liability. Additionally, the Appellants applied for the variances for the purpose of allowing their two golden retrievers access to roam the property safely. The city planning staff recommended approval of the Appellants' application for the two variances. The matter was heard by the Development Code Adjustment Board on July 28,1994, at which time the recommendation of the City planning staff to approve the application for variances was presented by Senior Planner John Richter. Appellants also appeared and expressed their concerns for the security and privacy of their residence and property. Several residents of Forest Woods Estates appeared at the hearing and stated that the fence in the back of Appellants' property was unsightly and would detract from property values. The residents also stated that although a proposed expansion of Sunset Point Road would allow traffic to move closer to the Appellants' residence that the Appellants' front lawn was the largest on the street. The Development Code Adjustment Board unanimously denied the application of the Appellants as to both variances . The Appellants filed a timely appeal of the denial of their application. The appeal was referred to the Division of Administrative Hearings on August 23, 1994. The appeal was heard on January 12, 1995. Since the construction of the 6 foot fence in the back of Appellants' property there have been no incidences of children using the Appellants' property as a route to return home from school. Appellants' dogs have also had access to the back yard without incident. Appellants continue to experience a high level of noise and litter from the traffic on Sunset Point Road in the front of their property. Craig Hill, a resident of Forest Woods, who lives at 1882 Oak Forest Drive which is immediately behind the Appellants' property testified that he recently purchased his home in this subdivision, that the Appellants' fence provided security for keeping his son away from Appellants' dogs, and that the fence did not detract from his purchase of this property. Robert and Caroline King, real estate brokers who have resided in Forest Woods subdivision for 22 years, testified that the fence is unsightly and would detract from the value of other homes in the neighborhood. For these proceedings, Mr. and Mrs. King were neither tendered, nor qualified, as experts in real estate appraisals. Other longtime residents, Irving Carlson and Camplin Straker, also testified that the fence and the double gate for the fence were unsightly. The residents also expressed concerns because the fence is located near the only entrance to Forest Woods and generally detracts from the aesthetic appearance of the entire subdivision. John Richter, a Senior Planner with the City of Clearwater with 17 years of planning experience with the City, testified that there is no presumption to the recommendations of the planning staff to the Board, and that one consideration of the City code is the visual aesthetics of the surrounding property.
