The Issue The issue is whether the Department of Transportation's calculation of Petitioner's replacement housing payment determination was correct.
Findings Of Fact The Department is the state agency responsible for acquiring rights-of-way for highway construction and widening in the State of Florida. As part of a federally funded right-of-way acquisition project, the Department acquired the house that the Gheorghes were renting. The Gheorghes thus became eligible for relocation assistance under the Surface Transportation and Uniform Relocation Assistance Act of 1987, Public Law No. 100-17, codified at 42 U.S.C. § 4601 et seq. (Uniform Act).1/ Chris Scodius is a senior right-of-way specialist with American Acquisition Group, a consulting firm that provides acquisition, relocation, appraisal, cost estimating, and property management services. The firm provides these services to the Department pursuant to contract. In November 2011, Mr. Scodius was assigned the task of calculating a revised replacement housing estimate for the Gheorghes' relocation.2/ Mr. Scodius estimated that he has performed a similar function on over 50 relocation projects, including 25 projects involving the Department. Mr. Scodius gathered information on three comparables to the displaced dwelling and chose the one most comparable for the computation of the rental assistance payment. He selected the comparables by browsing websites such as Realtor.com and by visiting local realtors and property management companies to find dwellings that were functionally equivalent to the displaced dwelling. The dwelling from which the Gheorghes were displaced was at 1910 Southampton Road on the south side of Jacksonville, near Atlantic Boulevard and I-95. Mr. Scodius' report described it as follows: The single family house facing Southampton Road is a one-story, wood frame residence, built off-grade on a wood joist floor system with asbestos shingle siding and an asphalt shingle roof on a pitched rafter system, originally constructed 68 years ago in 1943. Interior floor coverings are hardwood and carpet, walls and ceilings are of plaster on lathe. A central system conditions air with heat and cooling. Two window air units supplement cooling capacity of the dwelling. The 1093 square foot conditioned portion of the house is divided into six rooms in addition to the single full bathroom. These six rooms include a living room and a dining room, a kitchen, a small office and three bedrooms. Attached to the front of this conditioned space is a small, covered entry stoop and steps with a small covered entry stoop at the rear behind the garage. There is a one-car enclosed garage attached to the west side of the house with doorway access only to the exterior of the house at the dirt driveway. The appraisal prepared for FDOT indicates that the house is of average quality construction and interior finish, is in average condition and indicates the building structure has a remaining economic life of about 35 years. The described home- site contains 4,495 square feet more or less. Ingress and egress frontage along Southampton Road is 50 feet. This dwelling is served by a public potable water supply and a public wastewater disposal system. The comparable dwellings were located at 7416 Silver Lake Terrace in Arlington; 2427 Sam Road, between University Boulevard and Dean Road; and 7913 Jasper Avenue in Arlington. None of the comparables was in the same neighborhood as the Southampton Road house, but none was more than 5.3 miles away and all were on the south side of Jacksonville in similar neighborhoods. Mr. Scodius chose the Silver Lake Terrace property as the most comparable and used it for the calculation.3/ This was a 1,549 square foot single family home consisting of three bedrooms and 1.5 bathrooms, built in 1980 with a recently renovated interior. Mr. Scodius described it as follows: Similar to the subject, this dwelling has one full bathroom and its conditioned space is further divided into 6 rooms. These rooms consist of a living room, dining room, kitchen and three bedrooms. Accessed from outside the interior space of the dwelling, but enclosed and under the carport roof is a small utility room equipped with connections for a washer and dryer. The general construction and material of the interior is similar to the subject, with hardwood, tile and carpeted floors and painted sheet-rock walls. This home is heated and cooled by an electric, central, ducted system. Potable water is from a public supply and wastewater disposal is by a private septic tank and drainfield system. Exterior features include a fenced back yard with wood storage building at the back property line. Before making his selection, Mr. Scodius visited the Southampton Road and Silver Lake Terrace properties to determine their comparability in person. He calculated that the Silver Lake Terrace property was 4.7 miles from the Southampton Road property and that the Silver Lake Terrace property was within two miles of a variety of shopping, restaurants, banks, schools and community services. He inspected the dwelling and determined that it met the standards of "Decent, Safe and Sanitary" (DS&S) prescribed by the Federal Highway Administration and the Uniform Act. Mr. Scodius concluded his report on the Silver Lake Terrace property as follows: This dwelling has been chosen as the number one comparable dwelling because of its distinct similarity to the subject in terms of overall room count, number of bedrooms, overall living area and close proximity to the subject neighborhood. Given its quiet, residential setting within easy access to shopping and being within 4 miles of the displacee's church of choice, this available rental dwelling appears to be the best suited of the three to this displaced family's particular needs and lifestyle. Mr. Scodius testified that he chose this house in the Arlington area because he believed it to be the most functionally equivalent comparable, and because it was actually superior to the Southampton Road property in which the Gheorghes were currently residing. Mr. Scodius explained that the number one comparable is used only as the basis for computing the amount of the rental assistance payment. Though the number one comparable must be available, the displaced persons are not required to move into it. They may take the rental assistance payment and move into a dwelling of their choosing. After choosing the number one comparable dwelling, Mr. Scodius prepared a computation of the rental assistance payment for the Gheorghes. To arrive at a final rental assistance payment number, the base rent for the current dwelling, including average utility payments over 12 months, is subtracted from the advertised monthly rental rate for the comparable, including information obtained from the Jacksonville Electric Authority (JEA) as to average utility payments for a representative 12-month period. The resulting number is then multiplied by the 42 months for which payments are available in order to arrive at a final lump sum rental assistance payment. In this case, the advertised market rent of $950.00 plus average monthly utilities of $217.50 as provided by the JEA for the Silver Lake Terrace property totaled $1,167.50. The base rent for the Southampton Road property was the actual monthly rental of $525.00 plus average monthly utilities of $437.21 for a total of $962.21. The difference of $205.29 was multiplied by 42 to arrive at a rental assistance payment of $8,622.18. The federal relocation assistance regulations provide that the maximum payment for rental assistance is $5,250.00. 49 C.F.R. § 24.402(a). However, the regulations also provide for "replacement housing of last resort" in situations where replacement dwellings are not available within the prescribed monetary limits. 49 C.F.R. § 24.404. The Department determined that the Gheorghes were eligible for a last resort payment as "the best alternative allowable within the established procedure in order to relocate Mr. Gheorghe and his family into a decent, safe and sanitary replacement dwelling in a timely manner." Therefore, the Gheorghes were paid $8,622.18, plus a $1,500.00 moving assistance fee. At the hearing, the Gheorghes4/ voiced several criticisms of the Department's methodology in selecting the number one comparable and its calculation of the rental assistance payment. First, Ms. Gheorghe complained that the chosen comparables were all several miles from the Southampton Road house despite the fact that there were three available rental properties in her current neighborhood. However, no evidence beyond Ms. Gheorghe's bare assertion was provided as to the existence of these rental properties, and no particulars were offered as to their functional equivalence to the Gheorghes' Southampton Road dwelling. Next, the Gheorghes claimed that the basis for comparison was skewed because the rent they paid on the Southampton Road house was well below market value. In renewing the Gheorghes' lease in 2006, the landlord acknowledged they were good longtime tenants and therefore charged them only $525.00 per month. Mr. Scodius testified that the federal guidelines do not focus on price but on functional equivalence. The amount of rent currently being paid by the Gheorghes was an irrelevant factor in his selection of comparables. Further, if it is true that the Gheorghes' rent was artificially low, this factor worked in their favor by raising the amount of rental assistance to which they were entitled. Under the formula, the current rent is subtracted from the advertised rent of the number one comparable. The lower the current rent, the higher the resulting rental assistance calculation. This objection by the Gheorghes is not a ground for disturbing the calculation made by Mr. Scodius. The Gheorghes complained that the Silver Lake Terrace house could not be considered comparable to the Southampton Road house because the latter was connected to city water and sewage, whereas the former, despite the statement in Mr. Scodius' report that it received potable water "from a public supply," was actually serviced by a well and septic tank. Mr. Knight reasonably testified that a well and septic tank provide the same function as city water and city sewer. The well provides potable water to the dwelling and the septic tank provides a means to discharge the waste. While some people might prefer one to the other, the well and septic tank are functionally equivalent to city water and sewage and meet the DS&S standard.5/ The Gheorghes attacked the comparability of the JEA bills for the Southampton Road house and the Silver Lake Terrace house. They claimed that the latter was unoccupied for a period of the time considered by Mr. Scodius in his calculation, and therefore the utility bill for the house was artificially low. However, Mr. Scodius plausibly testified that he specifically asked JEA for an average utility bill for the last 12 months in which the property was occupied. To the best of his knowledge, JEA gave him information on an occupied dwelling. It is noted that the average monthly utility bill for the Gheorghes' home on Southampton Road was almost exactly double that of the Silver Lake Terrace house. It is also noted that the average utility bills for the comparable houses on Sam Road and Jasper Avenue were $211.25 and $228 respectively, far closer to the Silver Lake Terrace bill than to the Gheorghes' Southampton Road dwelling. Unless JEA provided Mr. Scodius with bad information as to all three comparable houses, it appears that the Gheorghes' utility bill is the outlier among these comparables.6/ Ms. Gheorghe argued that she should have been reimbursed for pet deposits at her new residence because the Department was well aware at the outset of negotiations that she had a dog and more than one cat. However, the Gheorghes could point to no provision of the Uniform Act or its implementing rules that authorize or require the agency to pay the relocation costs for pets. Mr. Knight affirmatively testified that the Department is not authorized to consider pet deposits as expenses eligible for reimbursement. At the hearing, the Department did not contest Ms. Gheorghe's testimony that some of its representatives dealt high-handedly with the Gheorghes during the relocation process. Much of Ms. Gheorghe's presentation had less to do with the financial data in question than with what she considered her family's poor treatment at the hands of certain Department personnel. Ms. Gheorghe's complaints were heartfelt and appeared legitimate. It is hoped that being forced to undertake the time and expense of litigating this matter has demonstrated to the Department that good will and civility are not only desirable qualities in a public agency but cost effective ones as well.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Transportation enter a final order denying the petition of Stefan and Dana Gheorghe for an additional replacement housing payment. DONE AND ENTERED this 30th day of April, 2013, in Tallahassee, Leon County, Florida. S LAWRENCE P. STEVENSON 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, 2013.
The Issue The issue in this case is whether Respondent unlawfully discriminated against Petitioner on the basis of her national origin or ethnicity in violation of the Florida Fair Housing Act.
Findings Of Fact Petitioner Fabiola Heiblum ("Heiblum") is a Hispanic woman who, at all times relevant to this action, has owned Unit No. 5C in the Carlton Bay Condominium, which is located in North Miami Beach, Florida. She purchased her unit in 2004 and has resided there continuously since some time in 2005. Respondent Carlton Bay Condominium Association, Inc. ("Association") is the entity responsible for operating and managing the condominium property in which Heiblum's unit is located. In March 2008, the Association's Board of Directors ("Board") approved a special assessment, to be levied against all unit owners, the proceeds of which would be used to pay insurance premiums. Each owner was required to pay his share of the special assessment in full on April 1, 2008, or, alternatively, in three equal monthly installments, due on the first of April, May, and June 2008, respectively. Heiblum's share of this special assessment was $912.81. At or around the same time, the Board also enacted a procedure for collecting assessments, including the special insurance assessment. According to this procedure, owners would have a grace period of 15 days within which to make a required payment. After that period, a delinquent owner would be notified, in writing, that the failure to pay his balance due within 15 days after the date of the notice would result in referral of the matter to an attorney for collection. The attorney, in that event, would file a Claim of Lien and send a demand letter threatening to initiate a foreclosure proceeding if the outstanding balance (together with costs and attorney's fees) was not paid within 30 days after receipt of the demand. This collection procedure applied to all unit owners. Heiblum did not make any payment toward the special assessment on April 1, 2008. She made no payment on May 1, 2008, either. (Heiblum concedes her obligation to pay the special assessment and does not contend that the Association failed to give proper notice regarding her default.) The Association accordingly asked its attorney to file a Claim of Lien against Unit No. 5C and take the legal steps necessary to collect the unpaid debt. By letter dated May 8, 2008, the Association's attorney notified Heiblum that a Claim of Lien against her property had been recorded in the public records; further, demand was made that she pay $1402.81 (the original debt of $912.81 plus costs and attorney's fees) to avoid foreclosure. On or around May 10, 2008, Heiblum gave the Association a check in the amount of $500, which the Association returned, under cover of a letter dated May 16, 2008, because its attorney was now in charge of collecting the overdue debt. Heiblum eventually paid the special assessment in full, together with costs and attorney's fees, thereby obviating the need for a foreclosure suit. Heiblum believes that the Association prosecuted its claims for unpaid special assessments more aggressively against Hispanics such as herself than persons of other national origins or ethnicities, for which owners the Association allegedly showed greater forbearance. Specifically, she believes that the Association did not retain its attorney to undertake collection efforts against non-Hispanic unit owners, sparing them the costs and fees that she was compelled to pay. There is, however, no competent, persuasive evidence in the record, direct or circumstantial, upon which a finding of any sort of unlawful housing discrimination could be made. Ultimately, therefore, it is determined that the Association did not commit any prohibited discriminatory act vis-à-vis Heiblum.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Florida Commission on Human Relations enter a final order finding the Association not liable for housing discrimination and awarding Heiblum no relief. DONE AND ENTERED this 27th day of February, 2009, in Tallahassee, Leon County, Florida. JOHN G. VAN LANINGHAM 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 27th day of February, 2009.
The Issue Whether Respondent committed the discriminatory housing practice alleged in Petitioner's Housing Discrimination Complaint and, if so, what relief should Petitioner be granted.
Findings Of Fact Because no evidence was offered at the final hearing held in the instant case, no findings of fact are made.
Recommendation Based upon the foregoing, it is hereby RECOMMENDED that the Commission issue a Final Order dismissing Petitioner's Complaint and Petition. DONE AND ENTERED this 6th day of July, 2010, in Tallahassee, Leon County, Florida. S STUART M. LERNER Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 6th day of July, 2010. COPIES FURNISHED: Denise Crawford, Agency Clerk Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301 Larry Kranert, General Counsel Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301 Benjamin M. Esco, Esquire Cole, Scott & Kissane, P.A. 1645 Palm Beach Lakes Boulevard Second Floor West Palm Beach, Florida 33401 Andrea Crump 9601 Collins Avenue, Apt. 906 Bal Harbour, Florida 33154
The Issue The two issues raised in this proceeding are: (1) whether the basis and reason Respondent, Vestcor Companies, d/b/a Madalyn Landings (Vestcor), terminated Petitioner, Carlos Gomez's (Petitioner), employment on June 28, 2002, was in retaliation for Petitioner's protected conduct during his normal course of employment; and (2) whether Vestcor committed unlawful housing practice by permitting Vestcor employees without families to reside on its property, Madalyn Landing Apartments, without paying rent, while requiring Vestcor employees with families to pay rent in violation of Title VII of the Civil Rights Act of 1968, as amended, and Chapter 760.23, Florida Statutes (2002).
Findings Of Fact Based upon observation of the demeanor and candor of each witness while testifying, exhibits offered in support of and in opposition to the respective position of the parties received in evidence, stipulations of the parties, evidentiary rulings made pursuant to Section 120.57, Florida Statutes (2002), and the entire record compiled herein, the following relevant, material, and substantial facts are determined: Petitioner filed charges of housing discrimination against Vestcor with the Commission on August 30, 2002. Petitioner alleged that Vestcor discriminated against him based on his familial status and his June 28, 2002, termination was in retaliation for filing the charge of discrimination. Vestcor denied the allegations and contended that Petitioner's termination was for cause. Additionally, Vestcor maintained Petitioner relinquished his claim of retaliation before the final hearing; and under oath during his deposition, asserted he would not pursue a claim for retaliation. Petitioner was permitted to proffer evidence of retaliation because Vestcor terminated his employment. The Commission's Notice was issued on January 7, 2005. The parties agree that Petitioner was hired by Vestcor on June 25, 2001, as a leasing consultant agent for Madalyn Landing Apartments located in Palm Bay, Florida. Petitioner's job responsibilities as a leasing consultant agent included showing the property, leasing the property (apartment units), and assisting with tenant relations by responding to concerns and questions, and preparing and following up on maintenance orders. Petitioner had access to keys to all apartments on site. At the time of his hire, Petitioner was, as was all of Vestcor employees, given a copy of Vestcor's Employee Handbook. This handbook is required reading for each employee for personal information and familiarity with company policies and procedures, to include the company requirement that each employee personally telephone and speak with his/her supervisor when the employee, for whatever reason, could not appear at work as scheduled, which is a basis and cause for termination. The parties agree that Vestcor's handbook, among other things, contains company policies regarding equal employment; prohibition against unlawful conduct and appropriate workplace conduct; procedures for handling employee problems and complaints associated with their employment; and procedures for reporting illness or absences from work, which include personal notification to supervisors, and not messages left on the answering service. Failure to comply with employment reporting polices may result in progressive disciplinary action. The parties agree that employee benefits were also contained in the handbook. One such employee benefit, at issue in this proceeding, is the live-on-site benefit. The live-on- site benefit first requires eligible employees to complete a 90-day orientation period, meet the rental criteria for a tax credit property, and be a full-time employee. The eligible employee must pay all applicable security deposits and utility expenses for the live-on-site unit. Rent-free, live-on-site benefits are available only to employees who occupy the positions of (1) site community managers, (2) maintenance supervisors, and (3) courtesy officers. These individuals received a free two-bedroom, two-bathroom apartment at the apartment complex in which they work as part of their employment compensation package. The rent-free, live-on-site benefit is not available for Vestcor's leasing consultant agent employees, such as Petitioner. On or about July 3, 2001, Petitioner entered into a lease agreement with Vestcor to move into Apartment No. 202-24 located at Madalyn Landing Apartments. The lease agreement ended on January 31, 2002. The lease agreement set forth terms that Petitioner was to receive a $50.00 monthly rental concession, which became effective on September 3, 2001. Although he was eligible for the 25-percent monthly rental concession, to have given Petitioner the full 25 percent of his monthly rental cost would have over-qualified Petitioner based upon Madalyn Landing Apartment's tax credit property status. Petitioner and Vestcor agreed he would receive a $50.00 monthly rental concession, thereby qualifying him as a resident on the property. Petitioner understood and accepted the fact that he did not qualify for rent-free, live-on-site benefits because of his employment status as a leasing consultant agent. Petitioner understood and accepted Vestcor's $50.00 monthly rental concession because of his employment status as a leasing consultant agent. The rental concession meant Petitioner's regular monthly rental would be reduced by $50.00 each month. On September 1, 2001, Henry Oliver was hired by Vestcor as a maintenance technician. Maintenance technicians do not qualify for rent-free, live-on-site benefits. At the time of his hire, Mr. Oliver did not live on site. As with other employees, to become eligible for the standard 25-percent monthly rental concession benefits, Mr. Oliver was required to complete a 90-day orientation period, meet the rental criteria for a tax credit property, be a full-time employee, and pay all applicable security deposits and utility expenses for the unit. On November 13, 2001, Michael Gomez, the brother of Petitioner (Mr. Gomez), commenced his employment with Vestcor as a groundskeeper. Groundskeepers did not meet the qualifications for rent-free, live-on-site benefits. At the time of his hire, Mr. Gomez did not live on site. As with other employees, to become eligible for the standard 25-percent monthly rental concession benefits, Mr. Gomez was required to complete a 90-day orientation period, meet the rental criteria for a tax credit property, be a full-time employee, and pay all applicable security deposits and utility expenses for the unit. On November 21, 2001, 81 days after his hire, Mr. Oliver commenced his lease application process to reside in Apartment No. 203-44 at Madalyn Landing Apartments. Mr. Oliver's leasing consultant agent was Petitioner in this cause. Like other eligible Vestcor employees and as a part of the lease application process, Mr. Oliver completed all required paperwork, which included, but not limited to, completing a credit check, employment verification, and income test to ensure that he was qualified to reside at Madalyn Landing Apartments. Fifteen days later, on November 28, 2001, Mr. Gomez commenced his lease application process to reside in Apartment No. 206-24 at Madalyn Landing Apartments. As part of the leasing process, Mr. Gomez, as other eligible Vestcor employees who intend to reside on Vestcor property, completed all necessary paperwork including, but not limited to, a credit check and employment verification and income test to ensure he was qualified to reside at Madalyn Landing Apartments. Included in the paperwork was a list of rental criteria requiring Mr. Gomez to execute a lease agreement to obligate himself to pay the required rent payment, consent to a credit check, pay an application fee and required security deposit, and agree not to take possession of an apartment until all supporting paperwork was completed and approved. Mr. Gomez's leasing consultant was Petitioner. On December 28, 2001, Petitioner signed a Notice to Vacate Apartment No. 206-24, effective February 1, 2002. The Notice to Vacate was placed in Vestcor's office files. Petitioner's reasons for vacating his apartment stated he "needed a yard, garage, more space, a big family room, and some privacy." Thirty-four days later, February 1, 2002, Mr. Gomez moved into Apartment No. 206-24 at Madalyn Landing Apartments without the approval or knowledge of Vestcor management. On January 9, 2002, a "Corrective Action Notice" was placed in Petitioner's employee file by his supervisor, Genea Closs. The notice cited two violations of Vestcor's policies and procedures. Specifically, his supervisor noted Petitioner did not collect administration fees from two unidentified rental units, and he had taken an unidentified resident's rental check home with him, rather than directly to the office as required by policy. As a direct result of those policy violations, Ms. Closs placed Petitioner on 180 days' probation and instructed him to re-read all Vestcor employees' handbook and manuals. Petitioner acknowledged receiving and understanding the warning. At the time she took the above action against Petitioner, there is no evidence that Ms. Closs had knowledge of Petitioner's past or present efforts to gather statements and other information from Mr. Gomez and/or Mr. Oliver in anticipation and preparation for his subsequent filing of claims of discrimination against Vestcor. Also, on January 9, 2002, Petitioner was notified that his brother, Mr. Gomez, did not qualify to reside at Madalyn Landing Apartments because of insufficient credit. Further, Petitioner was advised that should Mr. Gomez wish to continue with the application process, he would need a co-signer on his lease agreement or pay an additional security deposit. Mr. Gomez produced an unidentified co-signer, who also completed a lease application. On January 30, 2002, the lease application submitted by Mr. Gomez's co-signor was denied. As a result of the denial of Mr. Gomez's co-signor lease application, Vestcor did not approve Mr. Gomez's lease application. When he was made aware that his co-signor's application was denied and of management's request for him to pay an additional security deposit, as was previously agreed, Mr. Gomez refused to pay the additional security deposit. As a direct result of his refusal, his lease application was never approved, and he was not authorized by Vestcor to move into any Madalyn Landing's rental apartment units. At some unspecified time thereafter, Vestcor's management became aware that Mr. Gomez had moved into Apartment No. 206-24, even though he was never approved or authorized to move into an on site apartment. Vestcor's management ordered Mr. Gomez to remove his belongings from Apartment No. 206-24. Subsequent to the removal order, Mr. Gomez moved his belongings from Apartment No. 206-24 into Apartment No. 103-20. Mr. Gomez's move into Apartment No. 103-20, as was his move into Apartment No. 206-04, was without approval and/or authorization from Vestcor's management. Upon learning that his belonging had been placed in Apartment No. 103-20, Mr. Gomez was again instructed by management to remove his belongings. After he failed and refused to move his belongings from Apartment No. 103-20, Vestcor's management entered the apartment and gathered and discarded Mr. Gomez's belongings. As a leasing contract agent, Petitioner had access to keys to all vacant apartments. His brother, Mr. Gomez, who was a groundskeeper, did not have access to keys to any apartment, save the one he occupied. Any apartment occupied by Ms. Gomez after his Notice to Vacate Apartment No. 103-20 was without the knowledge or approval of Vestcor and in violation of Vestcor's policies and procedures. Therefore, any period of apartment occupancy by Mr. Gomez was not discriminatory against Petitioner (rent-free and/or reduced rent), but was a direct violation of Vestcor's policies. On February 10, 2002, Mr. Oliver signed a one-year lease agreement with Vestcor. Mr. Oliver's lease agreement reflected a 25-percent employee rental concession. Throughout Mr. Oliver's occupancy of Apartment No. 203-64 and pursuant to his lease agreement duration, Mr. Oliver's rental history reflected his monthly payment of $413.00. There is no evidence that Mr. Oliver lived on site without paying rent or that Vestcor authorized or permitted Mr. Oliver to live on site without paying rent, as alleged by Petitioner. On June 2, 2002, Ms. Closs completed Petitioner's annual performance appraisal report. Performance ratings range from a one -- below expectations, to a four -- exceeds expectations. Petitioner received ratings in the categories appraised as follows: Leasing skills -- 4; Administrative skills -- 2, with comments of improvement needed in paperwork, computer updating, and policy adherence; Marketing skills -- 4, with comments that Petitioner had a flair for finding the right markets; Community awareness -- 3, with no comment; Professionalism -- 2, with comments of improvement needed in paperwork reporting; Dependability -- 2, with comments of improvement needed in attendance; Interpersonal skills -- 3, with no comments; Judgment/Decision-making -- 3, with no comments; Quality of Work -- 2, with comments that work lacked accuracy; Initiative -- 4, with no comment; Customer service -- 3, with no comments; Team work -- 2, with comments of improvement needed in the area of resident confidence; Company loyalty -- 2, with comments of improvement needed in adherence to company policy and procedures; and Training and development -- 3, with no comments. Petitioner's Overall rating was 2.5, with comments that there was "room for improvement." On June 27, 2002, while on 180 days' probation that began on January 9, 2002, Petitioner failed to report to work and failed to report his absence to his supervisor, Ms. Closs, by a person-to-person telephone call. This conduct constituted a violation of Vestcor's policy requiring all its employees to personally contact their supervisor when late and/or absent from work and prohibited leaving messages on the community answering service machine. On June 28, 2002, Petitioner reported to work. Ms. Closs, his supervisor, informed Petitioner of his termination of employment with Vestcor for failure to report to work (i.e. job abandonment) and for probation violation, as he had been warned on January 9, 2002, what would happen should a policy violation re-occur. It was after his June 28, 2002, termination that Petitioner began his personal investigation and gathering of information (i.e., interviews and statements from other Vestcor employees) in preparation to file this complaint. Considering the findings favorable to Petitioner, he failed to establish a prima facie case of retaliation by Vestcor, when they terminated his employment on June 28, 2002. Considering the findings of record favorable to Petitioner, he failed to establish a prima facie case of housing and/or rental adjustment discrimination by Vestcor, based upon familial status of himself or any other employer. Petitioner failed to prove Vestcor knowingly and/or intentionally permitted, approved, or allowed either Mr. Gomez or Mr. Oliver to live on site without a completed and approved application followed by appropriate rent adjustments according to their employment status and keeping within the tax credit requirement, while requiring Vestcor employees with families (or different employment status) to pay a different monthly rent in violation of Title VII of the Civil Rights Act of 1968. Petitioner failed to prove his termination on June 28, 2002, was in retaliation for his actions and conduct other than his personal violation, while on probation, of Vestcor's policies and procedures.
Recommendation Based on the foregoing, Findings of Fact and Conclusions of Law, it is RECOMMENDED the Florida Commission on Human Rights enter a final order dismissing the Petition for Relief alleging discrimination filed by Petitioner, Carlos Gomez. DONE AND ENTERED this 29th day of August, 2005, in Tallahassee, Leon County, Florida. S FRED L. BUCKINE 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 29th day of August, 2005.
The Issue The issue for determination is whether Petitioner should pay a $500 fine to the Polk County Health Unit for operating residential migrant housing without a permit.
Findings Of Fact Respondent is the governmental agency responsible for issuing permits for residential migrant housing in accordance with Section 381.0081(2), Florida Statutes. 1/ Respondent is also responsible for inspecting residential migrant housing through Respondent's local county health units. Roger Burgere, an environmental specialist for the Polk County Public Health Unit, responded to a nuisance complaint on January 18, 1996. The complaint alleged that residential migrant housing was being operated on Petitioner's property at 2550 Smith Road in Haines City, Florida. There are four dwelling units on Petitioner's property. One dwelling unit is a house. The other three dwelling units are mobile homes located between the house and the roadway. Raw sewage from the mobile home nearest the road was on the ground within 15 feet of the mobile home. The sewage covered an area of approximately 20 square feet. At the third mobile home from the roadway, a pipe leading to the septic tank had broken. Raw sewage covered an area approximately five feet by four feet. Approximately two- thirds of this area was under the mobile home. The house had washing machine waste, or "gray water," on the ground in the vicinity of the house. Windows were broken. There were multiple holes in the ceilings and walls. Four or five bags commonly used by migrant workers in picking citrus fruit from trees were located outside the dwelling units. The bags were made of tough plastic or fabric and made so that they can be worn from the neck like an apron. Each bag holds about 80 pounds of fruit. Fruit groves are located within one mile of Petitioner's property. Many other groves are located within a 20 mile radius of Petitioner's property. Approximately three cars were parked in the driveways of the dwelling units. All of the vehicles were licensed in states other than Florida. A family occupied the house. Approximately 12 men occupied the mobile homes. The 12 men are migrant farmworkers within the meaning of Section 381.008(4). Each man is employed to harvest fruit by hand labor, and each man changes his residence to do so. Within the last 12 months, each man has been employed to harvest fruit by hand labor and has changed his residence for such purposes. Petitioner operated residential migrant housing within the meaning of Section 381.008(8). Petitioner rented dwelling units on her property for occupancy by five or more migrant workers. Petitioner does not have a permit to operate residential migrant housing. Petitioner rents to single women who take in migrant workers as borders. Petitioner has engaged in this method of operation for many years. Petitioner knew or should have known upon reasonable inquiry that her property was being used for residential migrant housing. Evidence that Petitioner's property was used for residential migrant housing was obvious to anyone on the property. Petitioner resides on the property. Mr. Burgere issued a citation to Petitioner that imposed a $500 fine. Mr. Burgere also advised Petitioner that the fine would be waived if Petitioner applied for a permit within 48 hours of the citation and agreed to correct the inadequacies in her residential migrant housing. Petitioner never applied for a permit and evicted the migrant farmworkers from her property. Over the next 14 days, Petitioner made the repairs necessary to correct leaking sewage and to repair the holes in the ceiling and walls of the house. Petitioner is no longer operating residential migrant housing on her property.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Respondent enter a Final Order finding Petitioner guilty of operating migrant residential housing without a permit and requiring Petitioner to pay a fine of $500 in the manner and place prescribed by Respondent. RECOMMENDED this 31st day of May, 1996, in Tallahassee, Florida. DANIEL S. MANRY, 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 31st day of May, 1996.
The Issue The issue for determination is whether Respondent discriminated against Petitioners in violation of the Fair Housing Act by failing to release them from a 20-year affordable housing deed restriction.
Findings Of Fact No dispute exists that Mr. Discher is handicapped, as indicated in his medical records, for purposes of the Fair Housing Act. John and Ruth Discher own the property located at 22916 Bluegill Lane, Cudjoe Key, Florida, with the following legal description: Lot 32, Block 10, Cudjoe Ocean Shores, as recorded in Plat Book 6, Page 76, of the Public Records of Monroe County, Florida. At the time of hearing, the Dischers did not live in the residential home on the property but rented it. No dispute exists that Monroe County is a political subdivision of the State of Florida having regulatory jurisdiction over the Dischers’ property. Since around 1979, Monroe County has been designated as an Area of Critical State Concern (ACSC). As an ACSC, increased State oversight of and involvement in local planning decisions is required by the Governor and Cabinet, sitting as the Florida Administrative Commission, and the Department of Community Affairs (DCA), as the State land planning agency. The Florida Legislature imposed a series of “principles for guiding development” in the Florid Keys. § 380.0552(7), Fla. Stat. One of the principles for guiding development imposed by the State is “to make available adequate affordable housing for all sectors of the population of the Florida Keys.” § 380.0552(7)(j), Fla. Stat. In 1992, the Rate of Growth Ordinance (ROGO) was adopted by the Florida Administrative Commission on behalf of Monroe County in order to limit growth in the Keys. The purpose and intent of ROGO was to facilitate implementation of goals, objective and policies set forth in Monroe County’s comprehensive plan relating to many areas of concern, including the protection of the environment (including endangered species and species on the concerned list), residents, and visitors; hurricane evacuation; road improvement; property and property development. ROGO consists of a competitive point system, based on a complex scoring system, and those who obtain the top points receive allocations. Point values are accessed on and using a number of criteria. Under the ROGO system, property owners, who wish to build houses on vacant land, must compete to receive a limited number of residential allocations. The yearly number of building allocations is limited by state administrative rule. Property owners seeking building allocations compete against each other in order to receive one of the limited number of allocations. In 1996, Monroe County’s comprehensive plan was effective. Prior to 1996, Monroe County received very few applicants for ROGO; however, after the comprehensive plan became effective the competition under ROGO increased tremendously. Developers and persons with high economic means became the majority of those able to receive points in order to obtain the majority of the limited allocations. With the increase in competition, affordable housing became a concern. The ultimate goal of Monroe County under the ACSC program is for it (Monroe County) to get into the position of being able to protect the environmental resources, provide for hurricane evacuation, and do everything that is required in Chapter 380, Florida Statutes, and be removed or “de-designated” as an ACSC. Applicable to the instant matter, affordable housing was defined in Monroe County Code, Land Development Regulations, Section 9.5-4, which provided in pertinent part: (A-5) Affordable housing means housing which: * * * With respect to a housing unit to be occupied by moderate-income persons, that monthly rents, or monthly mortgage payments, including taxes and insurance, do not exceed thirty (30) percent of that amount which represents one hundred twenty (120) percent of the median adjusted gross annual income for households within Monroe County, divided by 12 for a period of twenty (20) years. The dwelling unit must also meet all applicable requirements of the United States Department of Housing and Urban Development minimum property standards as to room sizes, fixtures, landscaping and building materials, when not in conflict with applicable laws of Monroe County. For the purposes of this section, “adjusted gross income” means all wages, assets, regular cash or noncash contributions or gifts from persons outside the household, and such other resources and benefits as may be determined to be income by rule of the department of community affairs, adjusted for family size, less deductions allowable under section 62 of the Internal Revenue code; and In which, if permitted by law, preference is given to local contractors. The threshold for a household’s income to qualify for affordable housing was set by this regulation. Further, Monroe County Code, Land Development Regulations, Section 9.5-266, applicable to the instant matter, provided in pertinent part: (a) Affordable Housing: (1) Notwithstanding the density limitation in section 9.5-262, the owner of a parcel of land shall be entitled to develop affordable housing as defined in section 9.5-4(A-5). . . . * * * Before any certificate of occupancy may be issued for any structure, portion or phase of a project subject to this section, restrictive covenant(s), limiting the required number of dwelling units to households meeting the income criteria described in paragraph (4)(a)-(f) of this subsection (a) running in favor of Monroe County and enforceable by the county, shall be filed in the official records of Monroe County. The covenant(s) shall be effective for twenty (20) years but shall not commence running until a certificate of occupancy has been issued by the building official for the dwelling unit or units to which the covenant or covenants apply. In order for the owner of a parcel of land to be entitled to the incentives outlined in this section, the owner must ensure that: a. The use of the dwelling is restricted to households that derive at least seventy (70) percent of their household income from gainful employment in Monroe County; and * * * e. The use of the dwelling is restricted for a period of at least twenty (20) years to households with an income no greater than one hundred twenty (120) percent of the median household income for Monroe County . . . . This regulation sets the limitation for covenants at 20 years, with the time period beginning to run at the issuance of the certificate of occupancy by the building department. Under the ROGO plan, a person was awarded additional points if the person agreed to the imposition of an affordable housing deed restriction. Being awarded the additional points meant that a person would receive an allocation in a shorter period of time. At that time, Mrs. Discher was an employee of the Monroe County Sheriffs Department. The Dischers completed a ROGO application. They wanted to be awarded additional points to reduce the period of time for them to receive an allocation for the construction of their home. The Dischers completed an Annual Affidavit of Qualification for Affordable Housing (Residential Dwelling Unit). The Affidavit provided, among other things, an acknowledgement by the Dischers that the Affidavit was a waiver of payment of the required impact fees; that Mrs. Discher was an employee of the Monroe County Sheriff’s Department and at least 70 percent of the household’s income was derived from that employment; that the single family home was restricted for 20 years to household’s with adjusted gross income of a certain amount; that the Dischers would file an approved deed restriction indicating “that, either (1) the deferred impact fees shall become due and owing if the unit no longer qualifies as Affordable Housing, or, (2) that the dwelling unit shall be restricted by the affordable housing criteria for twenty years commencing from the issuance of the certificate of occupancy”; and that the Dischers understood that, if affordable housing was used to gain points in the allocation system, the single-family home would be restricted by the covenants for 20 years. Mr. Discher prepared an affordable housing deed restriction for a residential dwelling unit in 1997. The Affordable Housing Deed Restriction, prepared by Mr. Discher, was executed by the Dischers on July 2, 1997. Provision II of the Affordable Housing Deed Restriction provided, among other things, an acknowledgement that “fair share impact fees” shall be paid by any person prior to receiving a building permit for any new land development. Provision III of the Affordable Housing Deed Restriction provided, among other things, an acknowledgement by the Dischers that they were being exempt from payment of their fair share impact fees for the single family home to be constructed by them on their property. Provision IV of the Affordable Housing Deed Restriction provided, among other things, that the sale, transfer or rental of their single family home shall only be to persons who qualify under Monroe County’s current affordable housing eligibility requirements as established and amended from time to time. Provision V of the Affordable Housing Deed Restriction provides, among other things, that the covenants shall be effective for 20 years and shall begin to run at the issuance of certificate of occupancy by the building department. Provision VI of the Affordable Housing Deed Restriction provides, among other things, that the Dischers used the affordable housing program to gain additional points in the permit allocation system. The Affordable Housing Deed Restriction contains no provision for removal of the affordable housing deed restriction. The Dischers were given additional points. Their wait-time for an allocation was reduced, and they received an allocation to build their single family home. The Dischers attempted to pay impact fees on or about October 2, 1997. They were informed by the building department that they were not required to pay the impact fees and their check for the impact fees was returned to them. They obtained a mortgage loan and completed their single family home. A certificate of occupancy was issued on June 30, 1999. Mr. Discher testified at hearing that the only reason that he and his wife applied for the ROGO program and that he prepared and he and his wife executed the Affordable Housing Deed Restriction was because an employee of the Monroe County Building Department informed him that they (the Dischers) could be released from the affordable housing deed restriction simply by paying the fair share impact fee at any time. Before ROGO, Monroe County had an affordable housing ordinance that permitted the removal from affordable housing by paying the impact fees. A household benefited by not initially paying impact fees; but, the household could later decide to pay the impact fees, come forward and pay the impact fees, and be removed from affordable housing. However, after ROGO was adopted, the option to later pay the impact fees and be removed from affordable housing no longer existed. ROGO contained no mechanism for a person to pay the impact fees and be removed from affordable housing before the time limit expired or to be removed from affordable housing before the time limit expired. At hearing, the building official was identified but did not testify. Insufficient evidence was presented to ascertain whether the building official had the apparent authority to allow the Dischers to pay the impact fees and remove them from the affordable housing restrictions prior to the 20 years. Consequently, the evidence is insufficient to demonstrate that the Dischers reasonably relied upon the building official’s representation to support a release from the affordable housing restrictions. No copy of any release from the affordable housing deed restrictions recorded in the official records of Monroe County was presented at hearing. The evidence is insufficient to demonstrate that Monroe County had released any persons from affordable housing deed restrictions. In 2005, the Dischers made a request to Monroe County for removal of the affordable housing deed restrictions. The Dischers were notified by Monroe County that no provision existed in the Monroe County Code or Monroe County’s Comprehensive Plan for removal of the affordable deed restrictions prior the effective date of their expiration or termination and that its Comprehensive Plan provided that affordable housing projects shall be required to maintain the project as affordable housing on a long-term basis in accordance with deed restrictions. Furthermore, the Dischers were notified by Monroe County that prospective occupant(s) of the affordable housing must meet the qualifications for affordable housing. The Dischers attempted to pay the impact fees in order to be released from the affordable housing deed restrictions. They attempted to pay the impact fees on at least two occasions— March 20, 2006, and February 20, 2007. On each occasion, their payment was refused by Monroe County. Monroe County determined that payment of the impact fees would not release the Dischers from the affordable housing deed restrictions, and, therefore, refused and returned the Dischers’ payments. Moreover, no provision in the Monroe County Code permitted the removal of the affordable housing deed restrictions. Monroe County admits that, under the guidelines in place when the Dischers obtained affordable housing, the Dischers are not restricted to a selling or renting price for their single family home. However, they are restricted as to the income of prospective buyer(s) or renter(s), i.e., the prospective buyer(s) or renter(s) must meet the income guidelines set forth in the Monroe County Code. Prior to and during the entire process involving the ROGO program, Mr. Discher was disabled. A copy of a letter written by the Dischers in September 1997, in which Mr. Discher indicated his disability, was forwarded to Monroe County. After the completion of the Dischers’ home, Mr. Discher’s health deteriorated. At hearing, Mr. Discher admitted that, prior to filing the discriminatory fair housing complaint, he had never mentioned his disability to Monroe County in relation to having the affordable housing deed restrictions removed. Moreover, at hearing, he admitted that Monroe County had not discriminated against him on the basis of his disability by refusing to remove the affordable housing deed restrictions. Mr. Discher’s physicians recommended to him that he move away from the Keys to improve his health. Furthermore, eventually, Mr. Discher needed to be closer to the locations where he was receiving his medical treatments, which were outside of the Keys. The Dischers finally moved away from the Keys to be closer to the locations where Mr. Discher was receiving his medical treatments. They rented their single-family home in Monroe County. Mrs. Discher was forced to return to work. If the Dischers are released from the affordable housing deed restrictions or if the affordable housing deed restrictions are removed, the Dischers would sell the single-family home. A Senior Planner with DCA, Ada Mayte Santamaria, testified at hearing as an expert in community planning. Ms. Santamaria testified that neither Monroe County’s Comprehensive Plan nor its Land Development Regulations allow for the removal of the Dischers’ affordable housing deed restrictions; and that, if the affordable housing deed restrictions were released, DCA would probably issue a notice of violation against Monroe County for not properly implementing its Comprehensive Plan and Land Development Regulations and probably recommend to the Administration Commission that Monroe County’s allocations for the year following such release be reduced because of the failure of Monroe County to enforce and implement its Comprehensive Plan and Land Development Regulations. Ms. Santamaria further testified that Monroe County is allowed to submit two proposed comprehensive plan amendments per year; and that, because of the process involved in proposed amendments, including review by DCA, a proposed amendment by Monroe County to release affordable housing deed restrictions would take a minimum of six months and could take up to a year and a half to complete the process. At a Monroe County Commission meeting held on January 17, 2007, the Dischers requested to be released from their affordable housing deed restrictions based on hardship due to Mr. Discher’s medical conditions. At the meeting, copy of his medical documents, identifying his disability, was distributed to the Commissioners. The Commissioners denied the Dischers’ request. However, the Commissioners also decided that they wanted to address extreme hardship situations and unanimously voted to direct its staff to begin work on an “exit strategy” for affordable housing deed restrictions on the basis of extreme hardship situations. The Commission staff represented at the meeting that such a process would take at least three months and indicated that Monroe County’s Comprehensive Plan may have to be amended in conjunction with what the Commission wanted. At the time of the final hearing in the instant matter, approximately a year and a half later, no “exit strategy” had been brought before the Commission. No evidence was presented that the Commission had decided that it no longer wanted to develop an “exit strategy.” No evidence was presented as to why the process had not begun. The Dischers are convinced that Monroe County wants to take their property. The evidence is insufficient to demonstrate that Monroe County wants to take the Dischers’ property.
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 finding that Monroe County Commissioners did not commit a discriminating housing practice against John and Ruth Discher in violation of the Fair Housing Act by failing to release or remove the affordable housing deed restrictions. DONE AND ENTERED this 31st day of December, 2008, in Tallahassee, Leon County, Florida. ERROL H. POWELL 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 31st day of December, 2008.
Findings Of Fact Petitioners are husband and wife. They were required to locate to another home due to the acquisition of right-of-way by Respondent for construction of Interstate Highway 75 in Collier County, Florida. It is undisputed that Petitioners are eligible displacees under the federal government's Uniform Relocation Assistance and Real Property Acquisition Policies Act of 1970, and are displaced persons entitled to relocation assistance within the definition of 49 Code of Federal Regulations, Subtitle A, Section 25.2(f). Petitioners and their children resided in two of three travel trailers which they owned on a five acre tract of land in a rural, wet area of Collier County, Florida. Both Petitioners were employed. He drove daily approximately 80 miles each way to his job as a taxi cab operator in Fort Lauderdale, Florida. She worked part time as a store clerk in a business near their home. On February 23, 1986, an employee of Respondent completed a household survey questionnaire regarding Petitioners' residence. The purpose of the questionnaire was to decide requirements governing assistance to be provided them in view of their future relocation to other housing as a result of their displacement by the interstate highway construction. The survey establishes that Petitioners owed $2,000 on their property, and that replacement housing was required for the husband, wife and two children of opposite sexes. The husband signed the survey instrument. Petitioners' property had an appraised value of $25,950. Of this amount, $17,550 reflected land value and $8,400 was the value of improvements. Petitioners initially received $25,950 when their property was acquired by Respondent through eminent domain proceedings. In the absence of comparable, utility equipped acreage in Collier County where applicable zoning restrictions would permit the placement of mobile homes, Respondent upgraded the type of replacement housing used to determine the amount of relocation assistance due to Petitioners. The effect of such an upgrade, termed "last resort housing," is to permit a higher limit on the payment to be made by Respondent to Petitioners for replacement housing. In this case, the upgrade consisted of Respondent's use of home sites with permanent houses on them in the calculation of the payment to be made to Petitioners. Respondent used three comparable parcels of property in the Golden Gate subdivision near Naples, Florida. The highest priced property was $53,900. This area is approximately 30 miles West of the site of the land previously occupied by Petitioners. A determination of comparable property is generally limited to a 50 mile radius of the dislocatee's property and, when possible, closer to the job of the primary income producer in the family. In this instance, no properties were available in the 50 mile radius to the East of Petitioners' property in the direction of Fort Lauderdale due to the immediate proximity of the Florida Everglades. On April 21, 1986, the comparable properties were selected, approved and determined by Respondent's staff to comply with the relocation program's requirements that comparable housing parcels used to compute the replacement housing payment meet decent, safe and sanitary living standards. Those standards require that comparable properties provide a minimum living area for the number of affected inhabitants, as well as appropriate utilities. The process of computing a replacement housing payment requires that the property appraisal of the dislocatee's property, including improvements less depreciation, be subtracted from the highest priced comparable to provide the amount due to the displaced property owner. Due to the condition of Petitioners' travel trailers, septic tank and well, those items were depreciated 40 per cent which resulted in a value of $4,279. Respondent rounded this amount off to $4,300. This final amount plus the land value of Petitioners' property of $17,500 came to a total of $21,800 for purpose of determining an amount to be subtracted from the highest priced comparable property value of $53,900. The result of this subtraction, or $32,100, reflected the amount of the replacement housing payment which Respondent determined to be due to Petitioners. The net effect of Respondent's depreciation of Petitioners' property improvements resulted in a reduction of the amount to be subtracted from the highest priced comparable property value which, in turn, increased the amount of the replacement housing payment. Dislocatees may acquire new property wherever they wish without regard to the location of comparable properties used to calculate their relocation assistance payment, although such comparable properties must be available to dislocatees who desire to purchase them. Petitioners contracted with a builder to construct a home in Palm Beach County. After payment by them of $4,000 to this individual, he vanished with their money. Subsequent to the experience with the unreliable West Palm Beach builder, Petitioners indicated to Respondent a desire to have their relocation payment computed again, this time on the basis of replacement housing in Broward County, Florida. Three new comparables were selected by Respondent's staff in that county. As had occurred in Collier County, Respondent's staff encountered difficulty finding comparable acreage property due to the lack of availability of such property which would meet restrictions imposed on such acreage with mobile homes. The result was that Respondent's staff determined no comparable acreage to be available in Broward County, Florida. Palm Beach County, Florida, was also searched by Respondent staff for comparable properties, but this effort was abandoned as a result of Petitioners expressed greater desire to relocate in Broward County. On June 26, 1987, three residences were selected by Respondent from the Pembroke Pines area Broward County to serve as comparables in the computation of the amount of the relocation housing payment. The evidence establishes that these homes were either "double wide" trailers or permanently affixed modular homes. These properties were selected because the comparables used in Collier County were no longer available. These residences were an "up grade" from the small travel trailers inhabited by Petitioners. Since the selling value of the highest priced Broward County comparable was only $49,500, the result, after subtraction of the estimated value of $21,800 for Petitioners' property, was a housing payment of $27,700. Since this payment amount is less than the amount originally computed by Respondent's staff, its use is prohibited by relocation program guidelines. Therefore, the previously computed greater amount of $32,100 for the area near Naples, Florida, became the final replacement housing payment. The evidence establishes that Petitioners filed an application and claim for replacement housing payment on March 23, 1987, and were paid $32,100 by state warrant dated April 28, 1987. Advanced moving expenses of $400 were paid to them by state warrant dated September 9, 1987. A state warrant for $1,497.26 to reimburse incidental expenses was issued to Petitioners on December 1, 1987. In total, it is found that Petitioners received $59,947.26 when the complete amount of relocation expense payments is added to the $25,950 amount also paid to them by the State of Florida in initially acquiring their property. Petitioners moved from their property in Collier County during July or August 1987. Petitioners located a house in West Palm Beach, Florida, but were unable to meet mortgage qualifications. However, after a high down payment with approximately half of the funds received from Respondent, they purchased the home. The amount of indebtedness remaining on the home is slightly less than $60,000 and has created a financial problem for Petitioners. Their desire is for Respondent to pay off the remaining mortgage amount or provide an acre of land with trailers in which to live. Respondent is authorized to administer the federal government's Uniform Relocation Assistance and Real Property Acquisition Policies Act of 1970. Respondent also administers a corresponding relocation aid program established by state law. Rules governing the state program are almost a verbatim duplicate of the federal program. Respondent's right-of-way procedures manual, comprised of state rules governing nonfederal relocation assistance, and federal regulations are used in administration of federal relocation aid projects.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that a final order be entered denying Petitioners' claim for further payment. DONE AND ENTERED this 18th day of January, 1989, in Tallahassee, Leon County, Florida. DON W. DAVIS Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32399-1550 (904)488-9675 Filed with the Clerk of the Division of Administrative Hearings this 18th day of January, 1989. APPENDIX The following constitutes my specific rulings, in accordance with section 120.59, Florida Statutes, on findings of fact submitted by the parties. Petitioner's Proposed Findings 1. 2. Unnecessary to result reached. Addressed. Unnecessary to result reached. Not supported by weight of the evidence. 5-6. Unnecessary to result reached. Self-serving assertion; not supported by the weight of the evidence. Addressed. Unnecessary to result reached. 10-14. Addressed. Adopted by reference. Addressed. Unnecessary to result reached. Addressed. Rejected, not supported by weight of the evidence. Rejected as a conclusion or recommendation, not a factual finding. Respondent's Proposed Findings 1-5. Addressed in part; remainder unnecessary to result. COPIES FURNISHED: Vernon L. Whittier, Jr., Esquire Haydon Burns Building 605 Suwannee Street, M.S. 58 Tallahassee, Florida 32399-0458 Ann Porath, Esquire 12773 West Forest Hill Boulevard Suite 209 West Palm Beach, Florida 33414 Thomas H. Bateman, 111, Esquire General Counsel Department of Transportation 562 Haydon Burns Building Tallahassee, Florida 32399-0450 Honorable Kaye N. Henderson Secretary Haydon Burns Building Attn: Eleanor F. Turner, M.S. 58 605 Suwannee Street Tallahassee, Florida 32399-0450
The Issue The issue for consideration in this case is whether Petitioner received appropriate relocation assistance for her home and business as a result of the Department’s taking.
Findings Of Fact For several years during the mid to late 1990’s, and specifically during 1996 and 1997, the Department of Transportation was engaged in acquiring property in Pasco County, Florida, for the construction of the Suncoast Parkway, a new corridor which, when completed, will extend approximately 42 miles from the Veteran’s Expressway in Hillsborough County in the south to a connection with US Highway 98 in Hernando County in the north. In support of that project, it became necessary for the Department to acquire approximately 639 individually owned parcels of land. To facilitate the planning for and purchase of this property, the Department utilized the services of several engineering firms, including the firm of Post, Buckley, Schuh, and Jernigan, Inc., (PBS&J). PBS&J’s manager for this project was Norris Smith, who has been employed with the company in this type of work for approximately eight years. PBS&J, as general consultant for the Turnpike District, also manages other firms working on road construction projects for the Department. Included among these firms utilized on the Suncoast Parkway project were Gulf Coast Property Acquisitions (Gulf Coast), and Universal Field Services (Universal). In acquiring the identified individual parcels which make up a specific project, the procedure usually followed calls for a relocation specialist to make the original calculation of the relocation payment to the property owner. This calculation is then put through a review process during which it is evaluated for approval by the project manager. In the instant case, the initial relocation specialist was Gary South, an employee of Gulf Coast, who made the initial relocation contact with the Petitioner. However, Mr. South took ill in January 1997, and was replaced on this project by David Cole. Mr. Cole has worked with Gulf Coast as a relocation specialist since 1993, and, since 1970, has worked as a relocation specialist under the Uniform Relocation Assistance Act (Act) in five states. He has participated in relocations involved in approximately 70 parcel acquisitions on the Suncoast Parkway project. Relocations of individuals displaced as a result of property acquisitions for road construction are accomplished under the guidelines of the Uniform Relocation Assistance Program memorialized in 24 C.F.R., Part 24. These guidelines have been adopted by the State of Florida and are incorporated in the Department of Transportation’s Rule 14-66. Once the Department is tasked to undertake a construction project in which land is to be acquired or businesses are to be relocated, it conducts one or more public hearings in the area of development to explain the scope and dimensions of the project. After that, relocation specialists visit each residence and business to speak with the resident or business owner and conduct a needs assessment survey which is supposed to be used as a guide to determine the type of relocation assistance necessary. It is at this visit that the relocation specialist provides the resident or business owner with a relocation brochure which explains the process and the displacee’s rights and responsibilities in detail. The displacee’s prior term of tenancy of the property determines his/her eligibility level for relocation assistance payments. If the resident/occupant has been in the property for 180 days or more, he or she is eligible for relocation payments of up to $22,500 in addition to benefits to cover moving personal property to the new dwelling. If the resident/occupant has been a tenant in place for 90 to 179 days, he or she is eligible for a rental assistance payment not to exceed $2,500 which may be used either FOR rent payments on a replacement rental property or as a down payment on the purchase of a new home. Consistent with the described procedure, Gary South conducted the needs assessment survey of Petitioner’s household in February 1996 during which he informed Ms. Dornseif of the relocation services available. It was determined during that survey that there were two residences as well as three business on the Dornseif property. One of the residences was occupied by Petitioner and her family. The other residence was occupied by Petitioner’s father, Mr. DeClue. Mr. DeClue was determined to be a 180-day homeowner/occupant eligible for benefits, while Petitioner was classified as a 90-day tenant and eligible for rental assistance payments and move costs. This information was conveyed to Petitioner by Mr. South. After Mr. South became ill and Mr. Cole took over from him as relocation specialist for this property, Mr. Cole met with Petitioner to update the survey and determine that the information previously developed by Mr. South was still accurate. Cole also reiterated the relevant information regarding the relocation advisory services for which Petitioner was eligible. Included in this advice was the information regarding rental assistance payments, as well as the information necessary to calculate that figure. Mr. Cole specifically advised Petitioner that she could utilize the rental assistance payment as down payment on a home. In connection with this move, Mr. Cole updated the household survey relating to the number of people in the home and the number of rooms contained in the house. He also delivered to Petitioner the residential relocation brochure, explained his participation in the process, and delivered the original Notice of Eligibility. He also delivered a statement of eligibility and gave Petitioner a briefing of the amount of money available as a rent supplement and how it was calculated. In addition, he provided Petitioner with a list of available properties. In addition to the verbal communication by Mr. Cole, all the pertinent and necessary information regarding relocation assistance was also included with a Notice of Eligibility which the Department served on Petitioner on July 19, 1996. By this notice, Petitioner was advised of her eligibility for a relocation assistance payment, but because the specific amount of payment is dependent upon financial input from the individual being displaced, the exact dollar amount of the payment may not be available when the eligibility notice is issued. That was the case here. Ms. Dornseif acknowledged receipt of her Notice of Eligibility on July 19, 1996, but because she had not submitted all relevant and required financial information to the Department by the time of eligibility determination, the exact amount of payment had not been determined. Petitioner was informed of that fact and the reason for it. In fact, the required rental and income information needed to calculate the amount of payment to be made was not received by the Department until approximately one year later, when it was submitted by Petitioner’s attorney. Once the required financial information was received by the Department, however, a revised Notice of Eligibility was issued on June 17, 1997, which included the amount to be paid by the Department. According to the Department’s calculations, based on information submitted by the Petitioner, Ms. Dornseif was to receive a rental assistance payment of $7,440.12. This figure was based on the difference between the rental and utility costs at the former dwelling and the rental plus utility costs at the replacement dwelling. Under the formula for calculating payment, the difference is multiplied by 42 so as to provide displacement costs to cover 42 months. In implementing the formula, the replacement rental is based on the rental costs of a comparable dwelling on the market at the time of the assessment. It appears that though the land on which the mobile home occupied by Petitioner was located was owned by her, her husband, and her father, Mr. DeClue, the actual residence was owned by her father. It was for that reason that Petitioner was eligible for the rental supplement as opposed to the other allowance. She claims she made all this information known to the Department in advance and was assured it was “OK,” but now asserts she did not know, and was not told at the time, that there was a maximum for rental supplements. The maximum cap for rental assistance payments is set by law at $5,250. This is less than the amount received by the Petitioner. However, there is a provision in the law for exceeding the cap upon justification by the Department in writing to the federal government. Because of market conditions at the time of the search for comparables for Petitioner, the comparable used in the calculation was the best available. This information regarding the regulatory cap, the calculations made in this case, and the effect that current market conditions had on the calculations, were explained to Petitioner by Mr. Cole. With regard to the actual move by Petitioner from the former residence to the replacement dwelling, Petitioner after being fully briefed both in writing and by Mr. Cole on the procedure to be followed, chose to be reimbursed for the actual costs of the move by a commercial mover. She was instructed to obtain estimates from two commercial movers and advised she would be reimbursed the lower of the two estimates. This was $5,728.62. After the move was completed, Petitioner submitted receipts for the commercial move totaling approximately $6,074.94, but she was reimbursed the $5,662.94. The reduction was made because of some duplications and claims for ineligible items, but Petitioner was dissatisfied with the amount paid. Petitioner also was eligible for reimbursement for the move of her business. In this case, she chose an “in lieu of” payment instead of actual reimbursement for a commercial move. She elected to do this after she had been personally briefed by Mr. Cole on the options available to her for this part of the move. She claims she was told by Department personnel she would receive a fixed amount for the business plus a reimbursement for the business move, but she now contends she received no reimbursement. Petitioner is not satisfied with the relocation assistance payments made to her, claiming that the amounts finally offered were approximately one-half the amount initially estimated by Department personnel. She asserts that all the original estimates by Department personnel were reduced and cut, and she received far less than she was led to expect. She claims her neighbors, who had resided nearby for a far shorter time than she got far more than she did. Petitioner requested that the Department’s calculations of the amounts to be paid to her be independently reviewed. Niether individual who performed the recalculations made any changes to the amounts determined payable. Petitioner then requested another review by a higher authority, and the matter was referred to Paula Warmath, at the time the Right-of Way Manager for the Turnpike District. After her review of the matter, Ms. Warmath did not make any changes to the payment amounts. Petitioner’s next appeal was to Richard Eddleman, the Department’s State Relocation Administrator, the final review authority for relocation assistance appeals. Mr. Eddleman obtained the complete relocation files maintained by the Department on this case, carefully reviewed it, spoke with relevant Turnpike district personnel, and recalculated the relocation assistance payments. Based on his review of the file, Mr. Eddleman concluded that the relocation assistance payments for Petitioner had been properly calculated according to the established rules. This decision was communicated to Petitioner.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is recommended that the Department of Transportation enter a Final Order affirming the relocation assistance payments previously calculated for Petitioner. DONE AND ENTERED this 15th day of December, 1998, in Tallahassee, Leon County, Florida. _ ARNOLD H. POLLOCK 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) 921-6947 Filed with the Clerk of the Division of Administrative Hearings this 15th day of December, 1998. COPIES FURNISHED: Vlenda Dornseif 15331 Penny Court Spring Hill, Florida 34610 Andrea V. Nelson, Esquire Department of Transportation 605 Suwannee Street Mail Station 58 Tallahassee, Florida 32399-0450 Thomas F. Barry, Secretary Department of Transportation Haydon Burns Building 605 Suwannee Street Tallahassee, Florida 32399-0450 Pamela Leslie, General Counsel Department of Transportation 605 Suwannee Street Suite 562 Tallahassee, Florida 32399-0450
The Issue Whether applicant is eligible for relocation assistance monetary benefits pursuant to Public Law 91-646 and Uniform Relocation Assistance and Real Property Acquisition Policies Act of 1970. Although notice of hearing was provided to Mr. and Mrs. Limegrover on March 26, 1976, they did not appear at the time of hearing. Upon telephonic inquiry on June 8th by a representative of the Department of Transportation, Mr. Limegrover advised that he had received the notice and although he had intended to call the Department of Transportation concerning the matter, he had forgotten to do so. He stated that he desired a continuance of the case. His request was objected to by counsel for the Department of Transportation. The request for continuance was denied as being untimely and good cause not having been shown therefor. The hearing was conducted as an uncontested proceeding.
Findings Of Fact By letter of October 20, 1975, Mr. and Mrs. Richard Limegrover of Courtly Manors Mobile Home Park, Hialeah Gardens, Florida, were advised by the Florida Department of Transportation that it was in the process of acquiring right-of-way for State Road #25 (U.S. 27) in their area, and that the mobile home lot the Limegrovers occupied as tenants would be required for construction of the facility. The letter provided the Department's assurance that they would not be required to move until at least 90 days had elapsed from the date of receipt of the letter, and that they would receive a further notice specifying the actual date by which the property must be vacated at least 30 days prior to the date specified. The letter concluded by an expression of the Department's desire to assist in relocation and to answer any questions concerning such matters. On December 8, 1975, a further letter was sent to the Limegrovers by the Department of Transportation assuring the addressees that the prior letter had not been a notice to move and that no one at the Courtly Manors Mobile Home Park would be required to move until negotiations with the owner had been completed or monies placed with the Clerk of the Circuit Court of Dade County by court order. It further stated that in the interim period relocatees living within Courtly Manors who were eligible and decided to move on their own initiative would be assisted by the Department in their relocation. Limegrover called Mr. Carl Moon, Right-of-Way Agent, Department of Transportation, Ft. Lauderdale, on December 11, requesting assistance in arrangements for moving his mobile home. Moon discovered that Limegrover wanted to move before January 1, 1976, as he had reserved a lot in another mobile home park. However, Limegrover told him that when he advised his current landlord on December 11 of the projected move on December 30, the landlord stated that in the absence of 30 days notice, Limegrover must forfeit his $90.00 security deposit. Limegrover told Moon that he felt the Department of Transportation should pay the $90.00 security deposit since he was being forced to move by that agency. Moon told him that he was not required to move that soon, but Limegrover was unwilling to wait, fearing that he would not be able to find a satisfactory place later on. Accordingly, Moon assisted him in his moving arrangements and Limegrover was paid for his moving expenses in the amount of $640.00 and smaller sums for reinstallation of his telephone and disconnection and reconnection of his gas equipment. Inasmuch as the Department of transportation declined to pay the $90.00 representing alleged forfeiture of the security deposit, Limegrover filed this relocation appeal. (Testimony of Moon, Exhibits 1 & 2).
Recommendation That the appeal of Richard and Jane Limegrover, in the amount of $90.00, be denied. DONE and ENTERED this 13th day of July, 1976, in Tallahassee, Florida. THOMAS C. OLDHAM Division of Administrative Hearings Room 530, Carlton Building Tallahassee, Florida 32304 (904) 488-9675 COPIES FURNISHED: Phillip Bennett, Esquire Department of Transportation Room 562 Haydon Burns Building Tallahassee, Florida Richard S. and Jane E. Limegrover Lot F4, Haven Lakes Mobile Home Park 11201 S.W. 55th Street Miramar, Florida 33025
The Issue The issue to be resolved concerns whether the Petitioner was the victim of a discriminatory housing practice, by allegedly being denied the opportunity to rent an apartment from the Respondents, and by being falsely informed of its non- availability, based upon her race.
Findings Of Fact The Petitioner is an African-American female. In early January 2007, she learned of an apartment for rent, owned or managed by the Respondents. She called to inquire about the apartment and was told by the Respondent, Ms. Lindsay, that the rent would be $625.00 per month, with a one-month rent amount and security deposit due in advance. She was told that the Lessee of a neighboring apartment, Clint Cook, would have a key and would show her the apartment. She went to view the apartment, and decided that she wished to rent it. She then telephoned Ms. Lindsay, and Ms. Lindsey faxed an application to her to complete. In the conversation, she told Ms. Lindsay she would not have the required deposit money until Friday. This was on a Monday or Tuesday. Ms. Lindsay then told her securing the apartment was on a “first come-first-served” basis. The Petitioner never completed the application and never tendered the security deposit. Shortly after that telephone conversation, Ms. Lindsay was contacted by Stacey Edwards, while the apartment was still available for rent, concerning rental. Ms. Edwards, on behalf of herself and her boyfriend/husband, submitted an application to rent the apartment, together with the appropriate required deposit and rental amount on January 15, 2007. Ms. Lindsay leased the apartment to the couple. They had a planned move-in date of February 1, 2007. They are a mixed-race couple, and Ms. Lindsay was aware of that fact when renting to them. Sometime after January 15, 2007, the Petitioner called Ms. Lindsay a second time, and was told that the apartment had been rented (to the Edwards couple) and was no longer available. Testimony to this effect is corroborated by the Edwards rental application and deposit receipt, which are in evidence. The Edwards rental was documented on January 15, 2007. Later that month, the Petitioner noticed the “for rent" sign displayed, or displayed again, and she and/or her witness, Lynn Kliesch, called about the apartment’s availability. Ms. Lindsay again stated that it was rented. Indeed, it was, to the Edwards. The rental sign had been left up because the Edwards couple were not scheduled to move in until February 1, 2007. This communication between the parties occurred before Ms. Edwards informed Ms. Lindsay that they would not be moving in. Shortly before February 1,2007. Ms Edwards and her husband/boyfriend learned that his employment had ended (or he was transferred to another job location). They therefore informed Ms. Lindsay that they had to re-locate to South Florida and could not take the apartment. She charged them for the two weeks of rental, and refunded their deposit. She then placed the apartment back on the rental market. On January 31, 2007, Ms. Mari Ferguson inquired of Ms. Lindsay about the apartment’s availability. This was after Ms. Edwards had informed Ms. Lindsay that she would not be renting the apartment. Ms. Lindsay told Ms. Ferguson that the property was available and she rented it to Ms. Ferguson that same day. Ms. Ferguson and her boyfriend, who occupied the apartment with her, were also a mixed-race couple, with children. In fact, the boyfriend is the nephew of the Petitioner herein. Ms. Ferguson and family moved into the apartment. Some months later a hostile situation arose between the Respondents and Ms. Ferguson. Ms. Lindsay apparently received reports that “drug dealing” was occurring in the apartment. Ms. Ferguson and/or the other occupants were responsible for some damage, and Ms. Ferguson became several months behind on rental payments. The Respondents therefore, through legal process, had her evicted. The Respondent, Ms. Lindsay, through her firm, Elite Properties of Northwest Florida, Inc., manages some 37 rental properties in Escambia and Santa Rosa Counties. She is the president and broker for the firm and has no employees or agents. Among the rental property owners she and her firm represent is her Co-Respondent, Michael Houser. Both Ms. Lindsay and Elite Properties, as well as Mr. Houser, have a significant number of minority tenants, both Hispanic and African-American. A substantial number of those, both historically, and at the time of the hearing are single, African-American females, as heads of households. There is no evidence, aside from the Petitioner’s unsubstantiated opinion, that either the Respondent has ever refused to rent to the Petitioner or anyone else, based upon race, nor that they have falsely denied availability of a dwelling for rent or sale for that reason. There is no evidence that they have refused or attempted to avoid holding out a property for rent or sale for reasons based on racial animus.
Recommendation Having considered the foregoing Findings of Fact, Conclusions of Law, the evidence of record, the candor and demeanor of the witnesses, and the pleadings and arguments of the parties, it is, therefore, RECOMMENDED that a final order be entered by the Florida Commission on Human Relations, determining that the Respondents did not commit a discriminatory housing practice based upon the Petitioner's race and that the Petition be dismissed in its entirety. DONE AND ENTERED this 16th day of April, 2009, in Tallahassee, Leon County, Florida. S P. MICHAEL RUFF 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 April, 2009. COPIES FURNISHED: Sylvia Mims 3382 Greenbriar Circle, Apt. B Gulf Breeze, Florida 32561 Beverly Lindsay 5252 Springdale Drive Milton, Florida 32570 Michael Houser 3533 Edinburgh Drive Pace, Florida 32571 Larry Kranert, 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
