The Issue Whether Respondents Bonavida Condominium Association, Inc., Lorne Rovet, and John McNamee discriminated against Petitioners Carlos Rodriguez and Monica Bontempi in the terms, conditions, or privileges of the sale or rental of a dwelling, or in the provision of services or facilities in connection therewith, because of their national origin; and retaliated against Petitioners on account of their having exercised any right granted under the Florida Fair Housing Act, in violation of sections 760.23(2) and 760.37, Florida Statutes (2018); and, if so, the relief to which Petitioners are entitled.1
Findings Of Fact Parties Petitioners are husband and wife who, until recently, worked and lived in their country of origin, Argentina. Petitioners are headstrong, well- educated, and very proud of their Argentinian national origin. While living in Argentina, Rodriguez worked as a renowned physicist and research professor and Bontempi as a physician and renowned immunologist. After successful careers in Argentina, Petitioners retired and moved from Argentina to Aventura, Florida, where, in 2015, they purchased Unit 1505 at Bonavida. Petitioners own the condominium unit through Tina Trust, LLC, named after their native country of Argentina. Bonavida is a multi-cultural condominium community governed by an association, which, in turn, is governed by a board of directors. At all times material hereto, the board has been comprised of individuals of many different cultures, backgrounds, and countries of origin. Many of the individual board members are headstrong, which often led to confrontational interactions, disputes, and bickering among board members relating to various matters of association business. Rovet has been a unit owner at Bonavida since 2009 and McNamee since 1985. Rovet is not retired and works full-time as an accountant. McNamee retired following a distinguished career in law enforcement in New York City. "The Three Musketeers" Join the Board Together in 2018 For several years, Petitioners, Rovet, and McNamee were good friends and socialized together. In 2016, Rodriguez was president of the board. By the end of 2016, a dispute arose regarding Rodriguez's presidency and he was removed as president. However, Rodriguez remained on the board as a director for unspecified periods of time during 2016 and 2017. By the end of 2017, Rodriguez was no longer on the board. However, Rodriguez, McNamee, and Rovet were dissatisfied with the prior management company at Bonavida and condition of the property, so they agreed to become more active in the association. To this end, McNamee asked Rodriguez to join the board with him and Rovet. In January 2018, Rodriguez, McNamee, and Rovet joined the board together determined to collectively combat the problems at Bonavida. McNamee became vice president, Rovet became treasurer, and Rodriguez was a director. At the time, Petitioners, McNamee, and Rovet, were still good friends. In fact, Rodriguez, McNamee, and Rovet fondly referred to each other as "the three musketeers" in reference to their plan to combat the problems at Bonavida. Deterioration of the Relationship and the July 30, 2018, Board Meeting Not long after joining the board together in January 2018, the friendship between Petitioners, McNamee, and Rovet deteriorated. A dispute arose between Petitioners, McNamee, and Rovet over the management of the board and how to address the condition of the property. These disputes are gleaned from a review of numerous emails exchanged between Rodriguez, McNamee, and Rovet on June 22, 2018. On June 25, 2018, on the heels of these emails, a Bonavida board meeting was held. During the meeting, Rodriguez became angry, took the floor, and to McNamee's and Rovet's surprise, challenged McNamee's and Rovet's qualifications to be on the board. Rodriguez argued that McNamee and Rovet were not full-time residents of Bonavida (McNamee was a resident of New York and Rovet was a resident of Canada); and, therefore, they were not qualified to be on the board. Bonavida's condominium attorney was present at the June 25, 2018, board meeting and the matter was addressed and resolved at the meeting in favor of McNamee and Rovet. Nonetheless, after the meeting, Rodriguez unilaterally contacted the board's attorney causing Bonavida to incur additional legal expense. Understandably, after the June 25, 2018, board meeting, Petitioners, McNamee, and Rovet were no longer friends and they did not speak to each other, although they each remained on the board. In the meantime, Rovet, as treasurer, had discovered that Bonavida's finances were in poor shape, and one of the reasons was the incurrence of unauthorized legal fees incurred by Rodriguez. The matter was noticed to be discussed during a board meeting to occur on July 30, 2020, where other fees potentially owing and due to Bonavida from other unit owners would also be discussed. The agenda for the July 30, 2018, board meeting was posted in common areas. The agenda items included "Carlos Rodriguez-Legal Fees" and various types of fees attributable to other units. The meeting commenced at 5:04 p.m., and did not conclude until 7:20 p.m. The meeting began in chaotic fashion with Rodriguez interrupting other speakers and bickering over the approval of the prior board meeting minutes. After several minutes of bickering, a vote was taken and the reading and approval of the previous meeting minutes was tabled so that the board could move forward and address the agenda items. Even after this vote, Rodriguez continued to argue about the prior meeting minutes and interrupted other speakers. At one point, an unidentified speaker chastised Rodriguez for always interrupting other speakers at board meetings, which invoked a loud applause and "thank yous," from other attendees at the meeting. The meeting then turned to the first agenda item, which was a discussion and vote on a proposal requiring Petitioners' unit to reimburse Bonavida for legal fees. As treasurer, Rovet took the floor to speak on the matter. He was immediately interrupted by Rodriguez, which resulted in further bickering until Rodriguez momentarily stopped talking. At the meeting, Rovet explained that the legal fees were incurred by Bonavida in 2017, and arose from five invoices totaling $5,332.52. Each invoice was attributable to Petitioners' unit. Four of the invoices (totaling $4,448.52) related to a conflict between the former association manager, Beth Natland, and Bontempi, in which Bontempi was accused of threatening Ms. Natland. Another invoice in the amount of $884.00 related to an attempted transfer in 2017 of Petitioners' unit from an "LLC to their trust." There was a heated and chaotic discussion on the item for almost one hour. Petitioners disagreed with Bonavida's legal authority to recover the legal fees. Following a vote, a majority of the board voted to hold Petitioners' unit responsible to reimburse Bonavida for the legal fees ($5,332.52). After the vote, no action was ever taken to seek to recover the legal fees. The legal fees have never been placed on Petitioners' unit ledger; Bonavida has not sought to collect the fees; the fees have never been paid; no lien, lawsuit, or foreclosure action was filed; and Petitioners have never been threatened with eviction or evicted. On December 10, 2018, the president of Bonavida sent Petitioners a letter stating that no action would be taken to collect any of the legal fees. Petitioners do not owe any assessments, expenses, or fees to the association and they own their unit free and clear of any mortgage liens, fees, expenses, or assessments owed to Bonavida. Notably, Petitioners have resided at the unit without interruption since they moved into Bonavida in 2015. At no time have Petitioners been denied the provision of services or facilities in connection with the sale or rental of a dwelling. Nevertheless, Petitioners assert that the agenda's reference to Rodriguez by name and the board's action at the July 30, 2018, meeting to recover the legal fees of $5,332.52 against their unit is based on national origin discrimination. Significantly, at no time during the meeting did Petitioners contend that the agenda or attempt to recover the legal fees was based on national origin discrimination. At hearing, Rodriguez could not explain how the attribution of the legal fees incurred in 2017 related to Petitioners' unit are based on his national origin. Rather, Rodriguez contends Petitioners could not be legally held responsible for the attorneys' fees; a point he stated at the meeting and reiterated at the final hearing. The evidence presented at hearing demonstrates that other unit owners who are not Argentinian have been identified at board meetings as being responsible for various types of fees owed to Bonavida. In sum, Petitioners failed to present persuasive and credible evidence that Respondents discriminated against them based on their national origin with respect to the meeting agenda, the July 30, 2018, board meeting, and any attempt to recover the legal fees from Petitioners' unit in the amount of $5,332.52. Emails Petitioners further assert that they were discriminated against because of their national origin based on emails authored by Rovet. On April 3, 2018, Rovet sent an email to Brenda Friend, the president of Bonavida, in which numerous other persons, including Rodriguez, were copied, stating: Great suggestion Brenda. We should only allow Brazilians into the building. My ideas would be to have everyone speak one language, like Swedish. A great rule change would be to require all residents to change their underwear every day and to wear the underwear [on] the outside of their clothing so we can check. Good work team! Rovet's April 3, 2018, email was not directed at Petitioners and does not refer to their national origin. At hearing, Rovet testified that he is a fan of movies and music, and that he often refers to various movies and songs in his communications with others in an attempt at "dry humor." Rovet testified that his reference to "Brazilians," "Swedish," and individuals with underwear outside their clothing was an attempt at humor and in reference to a "Woody Allen movie." The email was in no way intended to disparage Petitioners based on their national origin. At hearing, Rodriguez acknowledged that Rovet is sarcastic and that it is important to consider the full context of email conversations. Petitioners also point to an email by Rovet dated April 15, 2018, which he sent to Rodriguez and other board members regarding "Violations and Enforcement Committee," stating: Before leaving there Brenda and I discussed this issue and concluded that regardless of what our rules state and what state laws state we should be reasonably aggressive against violators because we have to in order to change the culture but also because most residents will not know the rules nor take the time to learn about them. If confronted by anyone surpassing that assumption we can always withdraw from our position. This email does not refer to Petitioners and makes no reference to their national origin. In no way was this email intended by Rovet to disparage Petitioners' national origin. Petitioners also point to the following string of emails by Rovet dated May 28, 2018. At 4:38 a.m. that morning, Rovet stated: "How do you know its pee?" A couple of hours later, McNamee responded; "?? Shouldn't pee be on the pillar. I only see it on the floor therefore, if pee, it's not a male dog?" In response, Rovet sent an email to McNamee, Rodriguez, and others stating: "We need a pee detective to get to the bottom of this." At hearing, Rovet testified that he wrote the May 28, 2018, emails because a dog was allegedly "peeing" somewhere near his building. Rovet's reference to "pee detective" was in reference to the Jim Carrey movie, "Pet Detective." The May 28, 2018, emails were another attempt by Rovet at dry humor and in no way intended to disparage Petitioners based on their national origin. Petitioners also point to an email written by Rovet on July 25, 2018, at 4:03 p.m. to McNamee, Rodriguez, and other board members, stating: "Let[']s put that in the new condo rules – all board members required to sit at same table facing same way unless they have BO and/or excess gas and are over smiling." This email does not refer to Petitioners. This email was another attempt by Rovet at dry humor and was in no way intended to disparage Petitioners based on their national origin. Petitioners also point to an email written by Rovet on July 26, 2018, at 5:27 p.m., to Rodriguez and other board members, stating: "can't help but think of Staff Sergeant Bob Barnes in Platoon--terrible what happened to Sergeant Elias, no relation to our President, at the end." This email does not refer to Petitioners, was another attempt by Rovet at dry humor, and was in no way intended to disparage Petitioners based on their national origin. Petitioners also point to an email written by Rovet on July 27, 2018, at 2:26 p.m., stating, "sung to the tune 'Cry For Me Argentina.' [The song title is actually 'Don't Cry for Me Argentina']." This is the only email authored by Rovet that actually mentions Argentina. This email was written by Rovet following a dispute among the board members as to how meetings and votes should be conducted. Significantly, Rodriguez interjected the issue of Argentina into the discussion in reference to the past-oppressive Argentinian government and as an example of how meetings at Bonavida should not be conducted, which prompted Rovet to write the email, "sung to the tune 'Cry for Me Argentina.'" In response to Rovet's email, Rodriguez wrote back to Rovet moments later, stating: "Please don't make fun of the death and disappearance of 30,000 people." Moments later, Rovet responded: "I love to sing. I have a right to sing and I shall sing. Can we sing together?" Later that afternoon, Rovet also sent an email, stating: "stand and sing with you John—let[']s stand and sing together a song called 'Oh That Sweet Lovely Bully Boy.'" At hearing, Rovet testified that the email "sung to the tune 'Cry For Me Argentina,'" was in reference to the song by Madonna titled: "Don't Cry For Me Argentina," which Rovet had just heard prior to writing the email. At hearing, Rodriguez acknowledged he is aware of the Madonna song; that Rovet made the statement "Cry For Me Argentina" as a joke; and that he (Rodriguez) interjected the issue of Argentina into the conversation before Rovet's email. Rovet's emails were another attempt at dry humor and were in no way intended to disparage Petitioners based on their national origin. Petitioners also point to an email written by Rovet to Rodriguez and others on August 19, 2018, stating: "Let[']s give Arthur a piece of our hearts so he might have some peace in his heart and maybe he will respect our parking rules." This email makes no reference to Petitioners' national origin and is in no way disparaging against Petitioners based on their national origin. Petitioners also point to an email written by Rovet on September 1, 2018, to various persons regarding "Unauthorized notice at mail room," stating: Well said Elisa, the guy's real intentions have been apparent for some time. Yes I agree, he needs a shrink. A football team of them, in fact. (It's never easy as an adult if beaten as a child). Meanwhile, the fencing will go on, and that's the main thing. I don't mind Carlos around, even if his intentions are nefarious, because these little things he comes up with (a piece of paper, a missing flag and the fence permit, for example), makes us all step up our game and that's never a bad thing because there are cracks and stuff inadvertently falls in them. Almost can[']t wait for his next amusing electioneering gambit. Probably the parking system. He dislikes it. But I appreciate the feedback, even if delivered negatively, and any help he has to lend us which can serve to make us better. This email refers to Rodriguez's ongoing disputes and bickering with board members regarding various issues before the board. The email in no way disparages Petitioners based on their national origin; and, in fact, demonstrates Rovet's tolerance of Rodriguez's positions on various issues pertaining to Bonavida. Petitioners also point to an email from McNamee to Rovet and other persons on September 2, 2018, at 6:32 p.m., stating, "Try dictator instead of director?" This email does not refer to Petitioners and their national origin. Even if it referred to Rodriguez, however, it illustrates the personal dispute and bickering between McNamee and Rodriguez over the handling of board matters and in no way was intended to disparage Petitioners based on their national origin. The undersigned carefully considered all the emails received into evidence which are alleged by Petitioners to be discriminatory against them based on their national origin, even if every email is not specifically referenced herein. Suffice it to say that none of the emails demonstrate a discriminatory animus by Respondents against Petitioners based on their national origin, and, in any event, Petitioners did not suffer any injuries from the emails. In sum, Petitioners failed to present persuasive and credible evidence that Respondents discriminated against them based on their national origin with respect to any emails. McNamee's "Bullshit" Comment During the October 22, 2018, Meeting During this chaotic board meeting, an ongoing parking issue was discussed. The discussion was supposed to be very brief. After a few minutes, Rodriguez took the floor and while he was speaking on the matter and discussing a possible solution, McNamee, who was attending the meeting over a speakerphone, blurted out: "Stop the bullshit." Not to be deterred, Rodriguez spoke for several more minutes explaining his proposal. At hearing, McNamee testified that the "stop the bullshit" comment was directed at his wife, who was in the same room with him. McNamee thought his speakerphone was muted when he made the comment to his wife. McNamee further testified that the same comment had been used by Rodriguez on prior multiple occasions. The phrase "stop the bullshit" is commonly used in today's vernacular. Even if the comment was directed at Rodriguez, it had nothing to do with Petitioners' national origin. In sum, Petitioners failed to present persuasive and credible evidence that Respondents discriminated against them based on their national origin with respect to the "stop the bullshit" comment made by McNamee during the October 22, 2018, board meeting. Petitioners' Retaliation Claim Based on Emails Petitioners contend Respondents subjected them to retaliation beginning in March 2019, after the filing of Petitioners' HUD complaint. In support of their position, Petitioners again rely on various emails. On March 14, 2019, at 2:49 p.m., Rodriguez wrote to Elisa Souza and copied other board members, including Brenda Friend, regarding "Generator repair quotes," stating, Hi Elisa Please note that the most important issue was not replied by you. Are you against transparency? Are you against to having 3 bids? Respectfully Carlos At 3:05 p.m., Ms. Friend wrote to the other board members, stating: "Elisa let him 'die' wondering of that!" At 3:13 p.m., Ms. Friend wrote again to other board members: "It seems Carlos has adopted the bad so well known 'leftist' habit/strategy which is: 'Always accuse others of what you are and do.' So people (the masses) of poor intellect can believe." Ms. Friend did not testify at the final hearing, so it is unclear what she meant by the emails she authored on March 14, 2019. Nevertheless, a plain reading of the email string indicates her comments were made in direct response to emails written by Rodriguez challenging her transparency and decisions, not in response to Petitioners' HUD complaint; and, in any event, no action was taken against Petitioners in the emails. On April 9, 2019, at 1:40 p.m., the Bonavida manager wrote an email to unidentified individuals regarding an insurance carrier's approval of a law firm to defend against Petitioners' HUD complaint filed against Bonavida and two directors. In response, at 2:18 p.m., Rovet wrote "another reason not to do the pool now," which elicited an email from McNamee to unidentified persons at 7:44 p.m., stating: "After the association wins the case, can they sue for expenses incurred for defending this libelous action or does every one of us sue individually?" Merely questioning whether expenses may be recovered and referring to Petitioners' complaint as "libelous" is not retaliation. Again, no action was taken against Petitioners in these emails. On May 29, 2019, at 10:33 a.m. an unidentified person wrote to Ms. Friend and other board members, stating: Dear Ms[.] Friend I do not want you to think I'm ignoring your questions but I'm going down to speak to the manager in person about what requires permits what doesn't require permits, is there a list of things that absolutely must be inspected by County inspectors, is there a list of things that absolutely don't have to be inspected. Etc etc etc] I wish there were such a list I would love to shove it in our antagonists face ??? At 11:02 a.m., McNamee replied, stating, "Does the City of Aventura reward whistle blowers for creating revenue? The City of NY does[.]" Rodriguez takes issue with McNamee's email at 11:02 a.m. At hearing, Rodriguez acknowledged that because of his "scientific preparation and attitude," he was "obsessive on getting the permits…," and ensuring they were correct. Based on Rodriguez's own testimony, the email authored by McNamee was in reference to permits, not Petitioners' HUD complaint. In any event, no action was taken against Petitioners in the email. The undersigned carefully considered all the emails received into evidence which are alleged by Petitioners to be retaliation against them based on their HUD complaint, even if every email is not specifically referenced herein. Suffice it to say that none of the emails demonstrate a retaliatory animus by Respondents against Petitioners based on their HUD complaint, and no action was taken against Petitioners in the emails. In sum, Petitioners' failed to present persuasive and credible evidence that Respondents retaliated against them for filing their HUD complaint based on any emails. Petitioners' Retaliation Claim Based on the Cardroom Incident Finally, Petitioners contend that McNamee's inquiry to the Bonavida manager regarding a gathering of owners, including Rodriguez, at a Bonavida cardroom on December 8, 2019, is further evidence of retaliation. However, McNamee's inquiry legitimately pertained to whether Rodriguez had paid the required deposit to reserve the cardroom for the gathering. In any event, no action was taken against Petitioners. In sum, Petitioners failed to present persuasive and credible evidence that Respondents retaliated against them for filing their HUD complaint based on McNamee's inquiry to the manager regarding the cardroom.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Florida Commission on Human Relations enter a final order dismissing the Petition for Relief. DONE AND ENTERED this 6th day of October, 2020, in Tallahassee, Leon County, Florida. S DARREN A. SCHWARTZ 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 4 On pages 29 and 30 of their Proposed Recommended Order, Petitioners assert that Respondents also violated section 760.23(3) with regard to an unspecified "chain of emails" 15 days before the July 30, 2018, board meeting and the posting of the agenda for the July 30, 2018, meeting. Under section 760.23(3), "[i]t is unlawful to make, print, or publish, or cause to be made, printed, or published, any notice, statement, or advertisement with respect to the sale or rental of a dwelling that indicates any preference, limitation, or discrimination based on … national origin or an intention to make any such preference, limitation, or discrimination." However, whether Respondents violated section 760.23(3) was not identified as an issue in the notices of hearing or at the final hearing. It is also not identified as an issue at the beginning of the parties' proposed recommended orders. Accordingly, the issue has been waived. Even if the undersigned were to address the issue, however, Petitioners' claim under section 760.23(3) fails for the same reasons their claim under section 760.23(2) fails. Respondents did not make, print, or publish, or caused to be made, printed, or published, any notice, statement, or advertisement with respect to the sale or rental of a dwelling that indicates any preference, limitation, or discrimination based on their national origin or an intention to make any such preference, limitation, or discrimination. Filed with the Clerk of the Division of Administrative Hearings this 6th day of October, 2020. COPIES FURNISHED: Tammy S. Barton, Agency Clerk Florida Commission on Human Relations 4075 Esplanade Way, Room 110 Tallahassee, Florida 32399-7020 (eServed) Carlos O. Rodriguez Monica Bontempi 20100 West Country Club Drive, Unit 1505 Aventura, Florida 33180 (eServed) S. Jonathan Vine, Esquire Cole, Scott & Kissane, P.A. 222 Lakeview Avenue, Suite 120 West Palm Beach, Florida 33401 Stuart S. Schneider, Esquire Cole, Scott & Kissane, P.A. 222 Lakeview Avenue, Suite 120 West Palm Beach, Florida 33401 (eServed) Cheyenne Costilla, General Counsel Florida Commission on Human Relations 4075 Esplanade Way, Room 110 Tallahassee, Florida 32399-7020 (eServed)
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.
Findings Of Fact Outdoor Advertising Art, Inc. is the owner of a 12 x 40 foot sign located on State Road 540 in Polk County. The records of the Department of Transportation show the last valid permit for this sign was issued in 1973. The Respondent forgot to renew the permit for 1974 due to clerical error of its staff although it received notice as required by statute from the Department of Transportation. On October 2, 1975, Outdoor Advertising Art, Inc. attempted to obtain a permit for this sign for the year 1974 and 1975, and tendered a check to Department of Transportation in the amount of $20. In doing so, the Respondent relied upon what it stated the policy of the Department had been regarding renewal of delinquent permits; however, it did not fail to renew in reliance on this policy but through its own oversight. The Department of Transportation denied the permit on the sign which did not conform to the existing rules and regulations adopted by the State of Florida as part of the federal highways beautification program. Testimony was received that delinquent applications have been allowed to be filed by the Department of Transportation, but not in District I of the Department of Transportation.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, this Hearing Officer recommends that the sign be removed. DONE and ENTERED this 27th day of January, 1978, in Tallahassee, Florida. STEPHEN F. DEAN, Hearing Officer Division of Administrative Hearings Room 530, Carlton Building Tallahassee, Florida 32304 (904) 488-9675 COPIES FURNISHED: John J. Rimes, Esquire Office of Legal Operations Department of Transportation Haydon Burns Building Tallahassee, Florida 32304 William D. Rowland, Esquire Post Office Box 539 Winter Park, Florida 32789
