Findings Of Fact The subject applications requests a permit from the Central and Southern Florida Flood Control District for the irrigation of 280 acres of golf courses. The public notice of hearing appearing in The Fort Lauderdale News, Fort Lauderdale, Florida, which noticed the permit applications submitted on behalf of the Fort Lauderdale Country Club, were received into evidence without objection. Mr. Carnahan, as representative for the applicant and Mr. Walker, on behalf of the Central and Southern Florida Flood. Control District stipulated to the introduction of the applications and the staff report of the Central and Southern Florida Flood Control District, without objection. It was further stipulated that the matters as contained in the applications and staff report could be utilized as a basis for findings of fact and recommended order, without the necessity of putting on testimony in behalf of - the applicant or the staff. Pursuant to that stipulation, oral testimony was not presented by the parties. The amount of water requested by the applicant in application number 21938 is 26 million gallons per year and the amount requested in application number 21939 is 264 million gallons per year. The staff report recommended an annual allocation in the amount of 14.4 inches which is equivalent to 336 acre/feet or 109.4 million gallons a year for approval. Mr. David Carnahan, P.E., representing the applicant, did not offer any further evidence beyond the application and staff report in support of the requests for permits. Specifically, Mr. Nagendra Khanal, Hydrology Division, Resource Planning, Central and Southern Florida Flood Control District, recommended the following, through his staff report: Allocation of 14.4 inches which is equivalent to 336.0 acre/feet or 109.4 million gallons per year. The following special provisions are recommended: Approval of maximum pumpage not to exceed 5.5 inches which is equivalent to 128.3 acre/feet or 41.8 million gallons per month. Diversions of water in this amount are subject to availability of surplus water in the basin, consistent with and subject to specific basin rules including minimum flows and levels, all as determined by the District. The existing five 12 inch wells with the total installed capacity of 3,020 gpm. The term of allocation is until October, 1977. The applicant shall install a measuring device. Pumpage records from the wells shall be submitted to the District at the end of each irrigation season. There were no persons at the hearing who wished to act as intervenors in the capacity of proponents or opponents of the applications, nor were there any members of the general public, not party to the proceedings, who wished to comment on the applications.
Recommendation Based upon the above findings of fact and conclusions of law, it is recommended that the permits requested be issued in accordance with the recommendations set forth in the staff report (attached thereto). Respectfully submitted this 31st day of October, 1975, in Tallahassee, Florida. CHARLES C. ADAMS 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 October, 1975. COPIES FURNISHED: Mr. David Carnahan 1350 South Pompano Parkway Pompano Beach, Florida 33020 Stephen Walker, Esquire Post Office Box V West Palm Beach, Florida 33402 Fort Lauderdale Country Club 415 Country Club Circle Fort Lauderdale, Florida
The Issue The issue to be resolved in this proceeding concern whether a modification of a general permit should be issued by the Respondent agency Department of Environmental Protection (Department), to the Respondent, Chuck Emling, so as to allow construction and operation of a stormwater discharge facility on Emling's property in Gulf Breeze, Florida.
Findings Of Fact The Respondent Chuck Emling, intends to build a sports complex, herein known as the "Club Property." He obtained a general stormwater discharge facility permit therefor, since his property represents a drainage area of approximately 10 acres in size, well under the threshold of 100 acres or less by which a general permit may be granted and because he proposes to construct and operate the facility such as to retain the first one-half inch of run-off. Because his plans for the sports complex and attendant stormwater discharge facility changed he applied for a modification of that general permit, which was duly noticed by the Department and protested by the Petitioner herein. The Petitioner is concerned that overflow from the retention areas will be channeled onto his property and that the berm at the northeast corner of the project site will cause natural stormwater flow to be diverted onto Workman's property which formerly flowed across Mr. Emling's property. The Petitioner contends that a landowner, such as the applicant, may not construct a berm along the borders of his property to prevent surface waters that would otherwise naturally flow onto his property from doing so, under generally accepted principles of real property law.1 The Department is an agency of the State of Florida charged, as pertinent hereto, with authority to regulate stormwater discharge facility construction, design and operation, pursuant to the legal authority cited herein. The proposed project is approximately ten acres in size and the project is expected to exceed all required standards for stormwater retention. The facility, as proposed in the modification application, will store approximately 18,254 cubic feet of run-off water and percolate it through its retention system within approximately seventy-two hours. The modified facility will store between 97,000 and 110,000 cubic feet of stormwater for percolation which is approximately five times greater than that required by regulations contained in Chapter 62-25, Florida Administrative Code, concerning storage of one- half inch of run-off, if the drainage area served by the stormwater facility is 100 acres or less. The subject project site is approximately 10 acres in size. Prior to development of the Club Property, an "equalization pipe" ran under Crane Cove Boulevard providing for run-off of stormwater which was in excess of the amount that could be retained in the low-lying area immediately to the west of Crane Cove Boulevard and the Club Property. This was designed to allow such excess water to flow back onto the Club Property as well as to allow stormwater run-off on the Club Property to the east to reach the inlet of the equalization pipe to flow westward into the depressed area to the west of Crane Cove Boulevard. In other words, flow was permitted in both an easterly and westerly direction to equalize excess stormwater on both properties and to permit continuance of the historic east-to-west flow of stormwater over the land surface of the properties involved herein, after the installation of the obstacle consisting of Crane Cove Boulevard. Installation of the pipe and Crane Cove Boulevard occurred before the installation of the berms around the boundary of the applicant's property which are a part of the subject project. The equalization pipe under Crane Cove Boulevard has now been connected to an extended pipe running under the Club Property all the way to the boundary of the Club Property which joins the Workman property. Some surface waters that historically and naturally flowed back onto the Club Property from the depressed area to the west of Crane Cove Boulevard, if that area flooded, and which are kept off the Club Property by the berms, can now pass through the equalization pipe without flowing onto or across the Club Property, which thus prevents the stormwater facility proposed to be installed from treating off- site stormwater. The pipe is supposedly sited and installed at an elevation so as to allow discharge off the Club Property only of stormwater in excess of the retention and treatment standard sub judice, which is that the facility will retain on-site all stormwater run-off resulting from less than a 100-year storm event. Thus, for this reason, there is little likelihood that stormwater will be discharged onto the Workman property from this pipe from the Club Property and the applicant's proposed stormwater facility. It is also unlikely that stormwater will traverse the equalization pipe and its extension to the boundary of the Workman property from the west since, if the depressed area lying west of Crane Cove Boulevard floods, the stormwater collected there would more likely migrate westward since that is the direction of natural flow. The Petitioner's case, on direct and through cross- examination, establishes two problems with the application for permit modification as proposed. First, the elevation of the weir on the eastern boundary of the Club Property, next to the Workman property, which allows water to be discharged through the pipe from the Club Property onto the Workman property, above a certain level, is purportedly at a lower level than the calculations provided by the applicant's engineers. Their calculations indicate what they believe is necessary to retain stormwater up to the volume of a 100-year storm event before it can spill onto the Workman property. The Petition contends the calculations indicate that the weir would thus have to be at an elevation of 19 feet to retain stormwater to that level or volume, but the applicant's plans and evidence show variously that the weir would be either at 18.9 feet or at 18.3 feet. Additionally, the modification plan increases the size and configuration of the earthen berm around the northern end of the Club Property, moving it more toward the outer northern boundary along U.S. 98. The Petitioner demonstrated two problems with the size, configuration and location of the berm in this area of the property, that is the northern side of the Club Property in the area where it joins the northwest portion and boundary of the Workman property. First, the Department of Transportation (DOT) drain structure in the highway right-of-way of U.S. 98, at that point, is being subjected to siltation caused by unstabilized earth eroding off the berm and toward and into the drainage structure. This can cause downstream siltation pollution as well as actual physical blockage of all or part of the drainage capability of this structure. In addition to the possible pollution hazard posed by this situation it can also result in water ponding on the Workman property through impedance of proper drainage. Additionally, the configuration, size and location of the berm on the northeast corner and portion of the applicant's property may cause "backing up" or ponding of water on the Workman property. The erosion to the berm must be stabilized properly and the berm should be so located and configured near this northeast corner of the applicant's property and the northwest corner of the Workman property and other necessary steps taken so as to prevent the ponding of water onto the Workman property. A grant of the permit should be so conditioned. The modification application proposes erosion control measures, including sod and landscaping, to enhance and preserve the stormwater system's integrity. During construction the project and site will be protected from soil erosion and sedimentation. Protective measures will include, as a minimum, installing staked hay bales and silt and sediment fencing downhill from any earth work activity, prior to the start of construction. The project specifications require all soil erosion and sedimentation to be controlled during construction and retained on-site. The stormwater collection and treatment system will require periodic maintenance for continued proper operation, including removal of silt and debris from infiltration areas and maintenance of vegetative cover. The grant of the permit should be conditioned on these steps being strictly followed, especially with regard to proper design and configuration of any berm and sod of it, so as to prevent erosion and resulting sedimentation into the DOT drainage and stormwater treatment system consisting of the culverts and swales along Highway 98. It is critical that those DOT structures and systems be maintained in proper operating condition and not impeded by construction and operation of the proposed project so as to prevent the ponding of water on the adjacent property owners' land. The pre-development stormwater discharge rate for the project site, as shown in Appendix D to DEP Exhibit 3, was 6.55 cubic feet per second. The proposed project will retain all stormwater on-site with up to 100 percent of the volume caused by a "100-year storm." This means that the proposed 24-foot weir will be set at a minimum elevation of 18.3 feet, so that no stormwater will be discharged from the site until it reaches at least an elevation of 18.3 feet. It will discharge less than the predevelopment amount of stormwater after that point or once the surface water elevation in the retention system exceeds 18.3 feet. Thus the Club Property stormwater design will lessen the impact on all properties to the east of the development, and to the west as well, because all stormwater will be retained unless it exceeds the volume of 100 percent of a 100-year storm falling on the site area. Thus the pre-development discharge of 6.55 cubic feet per second will be entirely eliminated unless such a storm intensity and volume is reached. Even if the pond were to reach its maximum elevation, a discharge to the east towards Workman's property would only be 6.44 cubic feet per second or slightly under the pre-development discharge rate. When the project is completed a "junction box" will be placed at the end of the mitered end section of the 18-inch pipe on the Club Property. The side discharge slot on that junction box will be set at an elevation of 18.3 feet. Therefore, no discharge from the Club site can flow toward Crane Cove Boulevard to the west unless a storm event in excess of a 100-year storm occurs, because only such an event would cause water to exceed that elevation. Thus, by not otherwise discharging from the site through the pipe the project will result in a lessening of any previous impacts on properties both west and east of the subject site from stormwater discharge. The testimony of Mr. Leland Empie, a surveyor, testifying for the Petitioner, contains discussion of a purported wetlands area lying just west of the Club Property, across Crane Cove Boulevard and south of Highway 98. That wetlands area, if indeed it is a jurisdictional wetlands area, which was not definitively established, is only approximately one and one-half acres in size. Mr. Empie also postulated that there may be a wetlands area on the Club Property but that could not be definitively determined, as he admitted himself. He testified that he saw no definitive indication of jurisdictional wetlands on the project site and the area in question has been "cut and filled" so it is difficult to determine the fact of existence of any wetlands area on the Club Property. In any event, there has been no showing that the subject project will discharge stormwater to any wetland except possibly the wetland west of Crane Cove Boulevard, assuming that it qualifies as a jurisdictional wetland, which has not been proven. If that were the case, the discharge would only occur at a volume and level in the stormwater system which exceeds that of a 100-year storm. If such a discharge occurs it will still be, as found above, at a volume-per-day less than the historic run-off volume from the subject property in its predevelopment stage. In summary, no preponderant definitive evidence was offered to prove that jurisdictional wetlands exist on the project site. The Petitioner's surveyor witness, Mr. Empie, relied on overlays of data from federal map sources to determine the purported location of wetlands on a map but could not verify the accuracy of the maps nor explain the difference in the manner in which jurisdictional wetlands are determined by the Northwest region of the Department versus the method used by the federal agencies referenced in his testimony.
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 RECOMMENDED: That a final order be issued by the Department of Environmental Protection approving the requested modification of the Respondent-Applicant's stormwater discharge general permit in the manner recommended and conditioned herein. DONE AND ENTERED this 10th day of May, 1999, in Tallahassee, Leon County, Florida. 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 Filed with the Clerk of the Division of Administrative Hearings this 10th day of May, 1999.
Recommendation Based upon the above findings of fact and conclusions of law, it is recommended that the permits requested and the right-of-way permit be issued in accordance with the recommendations set forth in the Staff Report (attached hereto), as amended at the hearing of this cause, which amendments are discussed in the Findings of Fact herein. Respectfully submitted this 7th day of October, 1975, in Tallahassee, Florida. DIANE D. TREMOR, Hearing Officer Division of Administrative Hearings Room 530, Carlton Building Tallahassee, Florida 32304 (904) 488-9675 COPIES FURNISHED: Stephen A. Walker, Esquire Attorney for the Central and Southern Florida Flood Control District P.O. Box V West Palm Beach, Florida 33402 Mr. John Moose General Manager of Ascot Groves, Inc. P.O. Box 576 Fort Pierce, Florida 33450
The Issue The issue in this case is whether Petitioner's two applications for continuing education course approval should be denied for the reasons set forth in the Florida Real Estate Commission's Notices of Intent to Deny, which were issued on February 19, 2009.
Findings Of Fact Petitioner Jon D. Tremper is a licensed real estate sales associate. In 1988, Petitioner established a home inspection company and has since performed several thousand inspections of properties in Florida. In 1999, Petitioner established The Home Inspection Academy, which he describes as a "private school providing training to the home inspection industry." Petitioner has developed and taught home inspection and construction-related courses to individuals and to groups including the Florida Association of Building Inspectors. Petitioner applied to the Department of Business and Professional Regulation, Division of Real Estate (Division) for continuing education credit for two courses that he developed and wished to present for credit to licensed real estate professionals: "Homeowner's Guide to Hurricane Protection & Insurance Discounts," and "Protecting Homes from Termites, Water Damage and Mold." The courses were placed on the FREC agenda for consideration at its January 20, 2009, meeting. The FREC denied both courses by way of Notices of Intent to Deny issued on February 19, 2009. The FREC's intent to deny was based on Subsection 475.182(1)(a), Florida Statutes (2008),1 the relevant portion of which provides: Approval or denial of a specialty course must be based on the extent to which the course content focuses on real estate issues relevant to the modern practice of real estate by a real estate licensee, including technology used in the real estate industry. Each Notice contained the following finding of fact: The Director of the Division of Real Estate suggested that the course could be denied due to the subject matter of the course not being related to the profession of real estate and not related to the nuts and bolts of real estate. "Homeowner's Guide to Hurricane Protection & Insurance Discounts" is a three-hour course. The learning objectives of the first hour are to understand the impact of recent hurricanes in Florida, which structures survived the storms and why they survived, and the wind resistance upgrades that are available to homeowners. The learning objectives of the second hour are to understand what insurance companies are looking for and how a homeowner can lower his premium, where to get help in determining cost-effective wind resistance upgrades, and the necessity of taking the initiative in dealing with insurance companies. The learning objectives of the third hour are to understand the "My Safe Florida Home" program offered by the State of Florida, the importance of and procedures for documentation of home improvements, and the best resources available for protecting a home from hurricanes. "Protecting Homes from Termites, Water Damage and Mold" is a three-hour course. The learning objectives of the first hour are to know the threats of termites, water damage and mold to Florida homes, where to get help when a problem is found, and the seven ways to ensure that a home stays termite free. The learning objectives of the second hour are to know and understand the unique elements of Florida climate, the importance of keeping water out of Florida homes, and the seven ways to prevent water damage. The learning objectives of the third hour are to know and understand the conditions for mold growth in Florida homes, why mold remediation is necessary, and the seven ways to keep mold out of Florida homes. Ralph McCoig, the chairman of the FREC, has been a real estate agent and broker for nearly 30 years. Since 1994, Mr. McCoig has been the owner and broker of Edita Realty in Rockledge. Mr. McCoig testified that Petitioner’s courses were of great interest to homeowners, but were not really relevant to a real estate licensee's practice. Mr. McCoig stated that a licensee's duties to a seller are to establish a price for the house based on the current market, to market the house, and to negotiate the contract of sale. A licensee's duties to a buyer are to find houses, show the properties, and assist the buyer in obtaining financing. Licensees do not give opinions on hurricane insurance requirements or on termite, water or mold damage. Mr. McCoig stated that home inspection companies, insurance agents, and licensed pest control companies are the professionals qualified to deal with the matters discussed in Petitioner's courses. A real estate licensee would be better served to retain these professionals on his client's behalf, because they are the best sources of relevant information and because the real estate professional does not want to incur liability for practicing beyond his area of expertise. Mr. McCoig testified that the FREC determined that Petitioner’s courses were not applicable to a real estate professional's job and not appropriate for continuing education credit. Petitioner testified that his courses were not designed to make a realtor an expert in hurricane protection or termite, water and mold damage, but to give the realtor the ability to offer common sense advice to his clients. Petitioner pointed out that the standard contract for sale and purchase of real property in Florida contains provisions regarding disclosure of wood-destroying organisms and mold, and that Section 627.711, Florida Statutes, requires insurers to take certain actions regarding discounts for hurricane reinforcements. Petitioner opined that realtors should be familiar with these matters in order to properly serve their clients. Petitioner also testified that the Department of Business and Professional Regulation, Bureau of Education and Testing's web site discloses "thousands" of approved courses, including some whose titles appear equivalent to Petitioner’s proposed courses and some of which appear frivolous, such as "Feng Shui for Realtors." In rebuttal, Mr. McCoig testified that the FREC has recently denied applications for courses related to Feng Shui concepts. Mr. McCoig stated more generally that the current FREC board has taken a more hands-on and restrictive approach to the approval of continuing education courses than had been the practice in previous years, when the Division had apparently been delegated authority to approve courses at the staff level. The FREC board intends to whittle the list of approved courses down to a manageable number directly related to the "nuts and bolts" of real estate practice in Florida.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Florida Real Estate Commission enter a final order denying Petitioner's applications for continuing education course credit for courses titled "Homeowner's Guide to Hurricane Protection & Insurance Discounts" and "Protecting Homes from Termites, Water Damage and Mold." DONE AND ENTERED this 19th day of June, 2009, 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 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 19th day of June, 2009.
The Issue This is a license discipline case in which the Petitioner seeks to take disciplinary action against the Respondent on the basis of allegations of misconduct set forth in a four-count Administrative Complaint. The Administrative Complaint charges the Respondent with violation of the following statutory provisions: Sections 489.129(1)(g), 489.129(1)(h)2, 489.129(1)(k), and 489.129(1)(n), Florida Statutes (1996 Supp.).
Findings Of Fact The Respondent, Allen Fader, is, and has been at all times material, a licensed Certified General Contractor, having been issued license number CG C007504 by the State of Florida. At all times material, the Respondent was licensed to contract as an individual. The Respondent, by virtue of his license, advertised construction services for Gold Coast Construction Services, Inc., during 1997. The Respondent presented a business card, with the name of Gold Coast Construction Services, Inc., to Ruby M. Shepherd, a customer, in April of 1997. On April 14, 1997, the Respondent, doing business as Gold Coast Construction Services, Inc., contracted with Ruby M. Shepherd to enclose a patio and to install hurricane shutters at Ms. Shepherd's residence located at 12325 Northwest 19th Avenue, Miami, Florida. The contract was conditioned on Ms. Shepherd being able to obtain financing to pay for the construction described in the contract. The exact amount Ms. Shepherd was required to pay under the original April 14, 1997, contract cannot be determined from the evidence in this case.4 The Respondent assisted Ms. Shepherd in obtaining a loan for the financing of the construction work described in the contract. It took several months to obtain a loan. Ultimately, through the efforts of the Respondent, and of a person engaged by the Respondent to help obtain a loan, Ms. Shepherd received a loan through Town and Country Title Guaranty and Escrow. The check from Town and Country Title Guaranty and Escrow was in the amount of twelve thousand nine hundred seventy-nine dollars and fifteen cents ($12,979.15). The check was made payable to Ms. Shepherd and to Gold Coast Construction Services, Inc. At the request of the man who helped obtain the loan, Ms. Shepherd endorsed the loan check and agreed for the check to be delivered to the Respondent. The Respondent, doing business as Gold Coast Construction Services, Inc., negotiated the loan check and received all of the proceeds in the amount of twelve thousand nine hundred seventy-nine dollars and fifteen cents ($12,979.15). The Respondent received the proceeds of the loan on or about September 12, 1997. The Respondent did not take any action on Ms. Shepherd's construction project until November 14, 1997. On that day, the Respondent placed an order for the material for the hurricane shutters on Ms. Shepherd's project. Nothing more was done on Ms. Shepherd's project for quite some time. Towards the end of February of 1998, the Respondent had some health problems, which caused him to be unable to work for several weeks. Eventually, the Respondent attempted to pick up the shutter materials he had ordered for Ms. Shepherd's project. As a result of the delay, those materials had been returned to stock and had been sold to someone else. The Respondent ordered the materials again. Eventually, in June of 1998, the Respondent had the shutter materials delivered to Ms. Shepherd's residence, and began the process of installing the hurricane shutters. In the meantime, from September of 1997 until January of 1998, the Respondent did not contact Ms. Shepherd. During this period of time, Ms. Shepherd called the Respondent's office numerous times and left numerous messages asking the Respondent to return her calls. From September of 1997 until January of 1998, the Respondent did not return any of Ms. Shepherd's calls. In January of 1998, Ms. Shepherd was finally able to speak with the Respondent. From January of 1998 until the installation work began in June of 1998, Ms. Shepherd spoke to the Respondent on numerous occasions in an effort to find out when the Respondent was going to begin work or return the money he had been paid. During this period of time, the Respondent repeatedly made false assurances to Ms. Shepherd that the work would be performed within two weeks. On or about June 12, 1998, the Respondent obtained a building permit for Ms. Shepherd's project from the Miami-Dade Department of Planning, Development, and Regulation. Installation of the hurricane shutters began that same week. The installation process was delayed because some of the materials did not fit and had to be returned to the manufacturer for modifications. Following the modifications, the installation process resumed. After a few more days, the Respondent told Ms. Shepherd the hurricane shutter work was finished and that he was not going to do the patio construction work, because the loan Ms. Shepherd had received was not enough money to pay for both projects. After the Respondent told Ms. Shepherd that the installation of the hurricane shutters was complete, the Respondent never did any further work on Ms. Shepherd's construction project. The hurricane shutters installed at Ms. Shepherd's property by the Respondent were not installed correctly. Several of the hurricane shutters will not open and close properly. Several of the hurricane shutters are insufficiently fastened. A necessary shutter over the storage room door was never installed. The problems with the subject hurricane shutters can be corrected. The cost of the corrections necessary to make the shutters operate properly and to fasten them securely is approximately one thousand dollars ($1,000). The Respondent never called for an inspection of the installation of the hurricane shutters at Ms. Shepherd's residence. In their present condition, those hurricane shutters will not pass inspection, because they were installed improperly. If corrections are made, those hurricane shutters will pass inspection. By reason of the facts stated in paragraphs 12 and 13 above, the Respondent failed to properly and fully complete the hurricane shutter portion of the contracted work. The Respondent never did any work on the patio portion of the contracted work. At some point in time between September of 1997 and June of 1998, Ms. Shepherd and the Respondent agreed to a modification of their original contract due to the fact that the proceeds of the loan obtained by Ms. Shepherd were insufficient to pay for both the hurricane shutters and the enclosure of the patio. The essence of their modified agreement (which was never reduced to writing) was that the Respondent would not do the patio enclosure portion of the contracted work; the Respondent would do the hurricane shutter portion of the contracted work; the Respondent would be paid for the hurricane shutter portion of the contracted work; and any remaining balance of the loan proceeds that had been paid to the Respondent would be paid back to Ms. Shepherd. Implicit, but apparently unstated, in this modified agreement, was the notion that the Respondent would charge a fair price for the hurricane shutter portion of the contracted work. A fair price for the hurricane shutter portion of the contracted work at Ms. Shepherd's residence, including all materials, labor, overhead, and profit, would be approximately four thousand dollars ($4,000).5 The price of four thousand dollars presupposes properly installed hurricane shutters that will pass inspection. As previously mentioned, it will cost approximately one thousand dollars ($1,000) to make the corrections to the subject hurricane shutters which are necessary for the shutters to function properly and pass inspection. Accordingly, the fair value of the work performed by the Respondent at Ms. Shepherd's residence is three thousand dollars ($3,000). Ms. Shepherd has paid $12,979.15 to the Respondent, doing business as Gold Coast Construction Services, Inc. The fair value of the work performed by the Respondent at Ms. Shepherd's residence is $3,000. Therefore, the Respondent has been paid $9,979.15 more than he is entitled to keep. As of the date of the final hearing, the Respondent has not paid back any money to Ms. Shepherd.
Recommendation On the basis of the foregoing findings of fact and conclusions of law, it is RECOMMENDED that a final order be issued in this case concluding that the Respondent is guilty of the violations charged in each of the four counts of the Administrative Complaint, and imposing the following penalties: For the violation of Section 489.129(1)(g), Florida Statutes (1996 Supp.), an administrative fine in the amount of $100.00. For the violation of Section 489.129(1)(k), Florida Statutes (1996 Supp.), an administrative fine in the amount of $2,000.00. For the violation of Section 489.129(1)(n), Florida Statutes (1996 Supp.), an administrative fine in the amount of $1,000.00. For the violation of Section 489.129(1)(h), Florida Statutes (1996 Supp.), an administrative fine in the amount of $1,500.00, and placement of the Respondent on probation for a period of one year. It is further RECOMMENDED that the final order require the Respondent to pay restitution to Ms. Shepherd in the amount of $9,979.15, and to pay costs of investigation and prosecution in the amount of $266.55. DONE AND ENTERED this 9th day of September, 1999, in Tallahassee, Leon County, Florida. MICHAEL M. PARRISH 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 9th day of September, 1999.
Findings Of Fact The subject application requests a permit from the Central and Southern Florida Flood Control District for the agricultural irrigation of 640 acres of grass-clover mixture, of which approximately 320 are planted annually to small grains and annual rye grass. The public notice of hearing appearing in The Orlando Sentinel Star, Orlando, Florida, and The Evening Herald, Sanford, Florida, which noticed the permit application submitted on behalf of Robert E. Lee, were received into evidence without objection. (A copy of The Orlando Sentinel Star exhibit, public notice of hearing, is attached to this report, because the original of the exhibit is contained with the report on docket no. 61, application 21423.) Mr. Lee and Mr. Wheeler on behalf of the Central and Southern Florida Flood Control District stipulated to the introduction of the application and the staff report of the Central and Southern Florida Flood Control District, without objection. It was further stipulated that the matters as contained in the application and staff report could be utilized as a basis for findings of fact and recommended order, without the necessity of putting on testimony in behalf of the applicant or the staff. Pursuant to that stipulation, oral testimony was not presented by the parties. The amount of water requested by the application is 398.9 acre/feet per year. The staff report recommended approval of 398.9 acre/feet per year, as requested by the applicant, based on the applicant's supplemental water use request. Mr. Lee did not offer any further evidence beyond the application and staff report, in support of the request for permit. The recommendation as contained in the staff report prepared by Mr. Nagendra Khanal, Hydrology Division, Resource Planning Department, Central and Southern Florida Flood Control District, was that the application #25642 for annual allocation of 398.9 acre/feet per year for purposes as applied for was acceptable. However, Mr. Khanal indicated that the permit should be subject to the following conditions: Recommendation of maximum monthly pumpage not to exceed 180.17 acre/feet or 4.70 inches/month. Pumpage in this amount is subject to availability of surplus water in the basin, consistent with and subject to specific basin rules including minimum flows and levels, all as determined by the District. Existing well and 10 inch deep well turbine pump with an installed capacity of 3,000 gpm be approved. This permit shall expire on October 15, 1978. The applicant shall install a measuring device on the well. Pumpage records shall be submitted to the District at the end of each irrigation season. There were no persons at the hearing who wished to act as intervenors in the capacity of proponents or opponents of the application, nor were there any members of the general public, not party to the proceedings, who wished to comment on the application.
The Issue The issue in this case is whether the land development regulations (LDRs) adopted through Ordinance 07-11 by Islamorada, Village of Islands (Islamorada), are consistent with the Principles for Guiding Development in the Florida Keys, set forth in Section 380.0552(7), Florida Statutes (2007).2
Findings Of Fact The Lodging Association is a trade association with an office in Key West, Florida. The Lodging Association is a not- for-profit association, created to monitor, initiate, advance, support or oppose legislation, policies and other governmental regulations that affect the lodging industry in Monroe County, including Islamorada. Membership in The Lodging Association includes owners and operators of the hotels and motels in Islamorada. Islamorada is a municipality within Monroe County which has adopted a comprehensive plan and LDRs. The Department is the state land planning agency with the power and duty to exercise general supervision of the administration and enforcement of the Area of Critical State Concern program, and to approve or reject LDRs adopted by local governments within areas of critical state concern. The Florida Keys were designated an Area of Critical State Concern by the Administration Commission in 1975 and re- designated by the Legislature in 1986 pursuant to Section 380.0552, Florida Statutes. Ordinance 07-11, would make the following changes to the existing LDRs regulating hotels and motels: Room, hotel or motel, - means a unit in a public lodging establishment as defined by F.S. Section 509.013(4)(a) intended for transient lodging only for periods not exceeding 30 days. Transient occupancy shall conform to the definition contained in F.S. Section 509.013(8) as to transient occupancy. For the purposes of density restriction under this chapter: A hotel or motel room may be a single room or a suite and may include a kitchen but no more than 1 1/2 bathrooms. An existing hotel or motel room may be redeveloped to a unit no less than 150 square feet and not exceeding 2,000 square feet of habitable floor area and consisting of no more than two (2) full bathrooms and three (3) bedrooms, one (1) kitchen, one- half bathroom and one (1) additional living area (excluding bedrooms), provided that the average habitable floor area of all hotel or motel units on the property does not exceed 1,500 square feet and that the rates of redevelopment set forth in (3) below are met; and All entrances to a hotel or motel room shall share the same key or means of controlling access so that the hotel or motel room as defined herein is not divisible into separately rentable units; and Suites containing more than one bedroom and 1½ baths may be constructed; however, each bedroom/full bath combination shall be considered a hotel/motel unit. A property with existing hotel or motel units may be redeveloped pursuant to the following equivalency rates: Ordinance 07-11 also amended Section 30-852 of Islamorada LDRs which establishes the required parking spaces for various uses. Ordinance 07-11 changes the parking space requirement for hotel rooms from 1.0 spaces per unit (without regard to numbers of bedrooms) to 1.0 space for a one-bedroom unit, 1.2 spaces for a two-bedroom unit, and 1.5 spaces for a unit with three or more bedrooms. Evidence was presented by The Lodging Association to show that the principal objective of the ordinance is to respond to the trend in the hospitality industry for larger hotel and motel rooms to accommodate families for longer stays. The Department reviewed Ordinance 07-11 to determine whether it is consistent with the Principles for Guiding Development (Principles) set forth in Section 380.0552(7), Florida Statutes: To strengthen local government capabilities for managing land use and development so that local government is able to achieve these objectives without the continuation of the area of critical state concern designation. To protect shoreline and marine resources, including mangroves, coral reef formations, seagrass beds, wetlands, fish and wildlife, and their habitat. To protect upland resources, tropical biological communities, freshwater wetlands, native tropical vegetation (for example, hardwood hammocks and pinelands), dune ridges and beaches, wildlife, and their habitat. To ensure the maximum well-being of the Florida Keys and its citizens through sound economic development. To limit the adverse impacts of development on the quality of water throughout the Florida Keys. To enhance natural scenic resources, promote the aesthetic benefits of the natural environment, and ensure that development is compatible with the unique historic character of the Florida Keys. To protect the historical heritage of the Florida Keys. To protect the value, efficiency, cost- effectiveness, and amortized life of existing and proposed major public investments, including: The Florida Keys Aqueduct and water supply facilities; Sewage collection and disposal facilities; Solid waste collection and disposal facilities; Key West Naval Air Station and other military facilities; Transportation facilities; Federal parks, wildlife refuges, and marine sanctuaries; State parks, recreation facilities, aquatic preserves, and other publicly owned properties; City electric service and the Florida Keys Electric Co-op; and Other utilities, as appropriate. To limit the adverse impacts of public investments on the environmental resources of the Florida Keys. To make available adequate affordable housing for all sectors of the population of the Florida Keys. To provide adequate alternatives for the protection of public safety and welfare in the event of a natural or manmade disaster and for a post-disaster reconstruction plan. To protect the public health, safety, and welfare of the citizens of the Florida Keys and maintain the Florida Keys as a unique Florida resource. In its Amended Final Order and in the parties’ Joint Pre-hearing Stipulation, the Department asserted that Ordinance 07-11 is inconsistent with four of the Principles, which are repeated below: To strengthen local government capabilities for managing land use and development so that local government is able to achieve these objectives without the continuation of the area of critical state concern designation. * * * (d) To ensure the maximum well-being of the Florida Keys and its citizens through sound economic development. * * * (j) To make available adequate affordable housing for all sectors of the population of the Florida Keys. * * * (l) To protect the public health, safety, and welfare of the citizens of the Florida Keys and maintain the Florida Keys as a unique Florida resource. Principle (a) - Managing Land Use and Development The Department asserts that Ordinance 07-11 is inconsistent with Principle (a) because the ordinance is inconsistent with five policies of the Islamorada Comprehensive Plan and, therefore, fails to properly manage land use and development. Policy 1-2.1.10 The Department contends that Ordinance 07-11 is inconsistent with Policy 1-2.1.10 which states, “Islamorada, Village of Islands shall cap the number of new transient units at the number of current and vested hotel and motel rooms, campground and recreational vehicle spaces existing within the Village as of December 6, 2001.” Much of the confusion in this case surrounding the issue of the cap on hotel/motel rooms arises from the practice in Islamorada and elsewhere in Monroe County of defining a hotel or motel room in a manner that differs from its common meaning to the general public, which is the space that one rents from the clerk at the desk, with one entrance and one key. Instead, a room is defined according to the number of bedrooms and bathrooms, so that the space one rents with a single entrance and key can be defined in the LDRs as one, two, or even three hotel rooms. An analogy would be if a vehicle were defined for regulatory purposes according to its output of emissions, so that if your vehicle had relatively high levels of emissions, it might be counted as two or three vehicles. Although much testimony was devoted to this disputed issue, it is clear that Ordinance 07-11 would allow for the creation of more hotel and motel rooms in Islamorada (as “room” was previously defined). There are many examples that could be given of how Ordinance 07-11 would allow for more hotel and motel rooms, but one example is that a room with two bedrooms and two bathrooms counts as two units under the existing ordinance, but is only one unit under Ordinance 07-11. Ordinance 07-11 allows a hotel owner to enlarge a hotel room in a manner that under the former ordinance would have been treated as creating another hotel room – a violation of Policy 1-2.1.10. Without changing the policy, Ordinance 07- 11 defines away the violation. When Islamorada adopted Policy 1-2.1.10 to cap the number of hotel/motel rooms at the number of “current” rooms, the policy could only mean the number of rooms that existed under the definition of hotel/motel room that was then in effect. Otherwise, the policy would be ineffectual as a cap.3 Despite the findings made above, the determination of whether Ordinance 07-11 should be rejected is complicated by the fact that, in 2005, the Department approved a similar ordinance of the City of Marathon. Like Islamorada, Marathon had formerly counted one bedroom and one and one half bathrooms as one hotel/motel unit. Marathon Ordinance 2004-017 redefined hotel/motel rooms so that a room with three bedrooms and two and a half bathrooms now counts as one unit. Marathon’s comprehensive plan also has a cap on hotel/motel rooms. The Department’s approval of Ordinance 2004-17 appears to have been based in large part on the “density reduction” provisions in the Marathon ordinance. For example, one-bedroom units may be redeveloped as two-bedroom units “at the rate of 90 percent,” and one-bedroom units may be redeveloped as three- bedroom units “at the rate of 85 percent.” The density reduction provisions in Ordinance 2004-017 are easiest to understand with an example using ten existing units. Applying the 90 percent rate, ten existing one-bedroom units can be redeveloped into nine two-bedroom units. There is no practical way to apply the reduction rates when just one or a few units are redeveloped, because applying the rate results in fractional units. For example, using the 90 percent reduction rate, 1 one-bedroom unit cannot be redeveloped as .9 two-bedroom units, and 2 one-bedroom units cannot be redeveloped as 1.8 two-bedroom units. In these two examples, the hotel owner would be allowed to create 1 and 2 two-bedroom units, respectively. Therefore, the density reduction rate has no effect in these (and other) scenarios. Marathon’s density reduction provisions do not prevent more hotel and motel rooms from being created. In the example given above, the nine redeveloped two-bedroom units would have counted as 18 units under the definition in Marathon’s former ordinance. With admirable candor, the Department’s expert planner testified that it was her opinion that Marathon Ordinance 2004-17 is inconsistent with Marathon’s cap on hotel/motel rooms. However, it does not take an expert planner to see the inconsistency. Counsel for the Department argued that Marathon Ordinance 2004-017 materially differs from Village Ordinance 07- 11 because the density reduction provisions in the Marathon ordinance created an “equivalency” with regard to the additional vehicles associated with larger hotel/motel units. Islamorada Ordinance 07-11 also has similar density reduction provisions, but the Department does not think they create a similar equivalency. However, the Department’s argument about equivalency is not persuasive because it requires that the cap on hotel/motel rooms be read as a cap on the traffic generated by hotel/motel rooms, which is contrary to the plain wording of Policy 1-2.2.10. Furthermore, as explained above, the density reduction rates do not apply to many redevelopment scenarios that can result in larger hotel/motel rooms that generate more traffic. Unlike the Marathon ordinance, Village Ordinance 07-11 also allows for the creation of new hotel/motel rooms through “disaggregration.” This term was used by the Department to describe how the ordinance can be applied in reverse to create smaller, separate hotel/motel rooms which could later be enlarged. For example, an existing two-bedroom/one-bathroom unit (defined as one unit under the former ordinance) could be redeveloped under Ordinance 07-11 as two separate one- bedroom/one-bathroom units, and then redeveloped again as two separate two-bedroom/two-bathroom units (defined as four units under the former ordinance). The Department demonstrated that Ordinance 07-11 allows for new hotel/motel rooms to be created beyond the current number of hotel/motel rooms. Therefore, it is not fairly debatable whether Ordinance 07-11 is consistent with Policy 1-2.1.10. Because the ordinance is inconsistent with the comprehensive plan, it is also inconsistent with Principle (a). Policy 1-2.2.4 Policy 1-2.2.4 provides that nonconforming uses (due to their density) may only be redeveloped to the same density. There are hotel and motels in Islamorada that are nonconforming because their density is greater than is currently allowed. The Department contends that Ordinance 07-11 is inconsistent with Policy 1-2.2.4 because the ordinance would allow more rooms and thereby increase the density at nonconforming hotels and motels. The Lodging Association argues that Ordinance 07-11 does not increase density, but merely allows more bedrooms and bathrooms. The prohibition against increasing nonconforming uses is a general provision found in all local government codes. It does not prevent the periodic redefinition of what constitutes a nonconforming use. In other words, the policy has the same meaning as if it read, “However nonconforming uses are defined, do not make them worse.” The cap on hotel/motel rooms in Policy 1-2.1.10 is different in this respect. It is a unique policy that is expressly tied to a specific condition and time – “the number of current hotel and motel rooms . . . existing within the Village as of December 6, 2001.” A density limit and the cap on hotel/motel rooms serve different purposes. It was not explained by the Department and it is not apparent how the purpose served by the density limit for hotel/motels is thwarted if a bedroom or bathroom is added to a single hotel unit. On the other hand, the purpose served by the cap on the number of hotel/motel rooms that existed on December 6, 2001, is clearly thwarted by a re-definition of “room” that allows more hotel/motel rooms than existed on that December 6, 2001. The disaggregation of hotel/motel rooms can create more separate units (greater density), not just larger units. Nevertheless, the Department did not adequately explain why Policy 1-2.2.4 could not be applied by Islamorada as a limit on any disaggregation that would result in the creation of additional units at a nonconforming hotel or motel. It is fairly debatable whether Ordinance 07-11 is consistent with Policy 1-2.2.4. Policy 1-2.2.6 Policy 1-2.2.6 prohibits the enlargement or extension of non-conforming structures. The Department asserted that Ordinance 07-11 “creates a possibility of redeveloping and expanding the size of hotel/motel units to a previously existing non-conforming structure,” but the evidence presented by the Department on this issue was insufficient to explain what kinds of non-conforming structures would be affected by the ordinance, or to demonstrate how the ordinance would require noncompliance with Policy 1-2.2.6. Ordinance 07-11 is not facially inconsistent with the policy. The Department did not adequately explain why Policy 1- 2.4.6 could not be applied by Islamorada as a limit on any application of Ordinance 07-11 that would result in a nonconforming structure. It is fairly debatable whether Ordinance 07-11 is consistent with Policy 1-2.2.6. Policy 2-1.6.3 Policy 2-1.6.3 establishes a 24-hour hurricane evacuation time. Hurricane evacuation is a major issue for Islamorada and for all local governments in the Florida Keys because of their low elevation, exposure to storm surge, flooding, and high winds, and limited evacuation routes. The hurricane evacuation model used for the Florida Keys predicted in 2001 (the last time the model was run) that more than 24 hours would be needed to evacuate the Keys. Therefore, Islamorada and other local governments in the Keys developed “staged” evacuation plans whereby transient units are evacuated 48 hours prior to the arrival of hurricane force winds, then mobile home residents 36 hours prior to that time, and other residents are evacuated 24 hours prior. These staged evacuation plans have been accepted by the Department as consistent with the requirement for 24-hour hurricane evacuation. Despite the prediction of the hurricane evacuation model, the Department allows local governments in the Florida Keys to add new residences and associated vehicles every year; 28 each year in Islamorada. The Department contends that Ordinance 07-11 is inconsistent with Policy 2-1.6.3 because the ordinance allows for the creation of more hotel/motel units and larger units which will generate more traffic and make hurricane evacuation more difficult. It is undisputed that Ordinance 07-11 will increase the need for parking spaces at hotels and motels in Islamorada. The Department showed there would be an unquantified increase in the number of vehicles associated with larger hotel and motel rooms. More vehicles means more time would be needed to evacuate transient units in Islamorada. However, the Department did not show that Ordinance 07-11 would prevent Islamorada from evacuating transient units in conformance with the staged evacuation plan. The Department points out that, for fast-forming and fast-approaching hurricanes, Islamorada will not always have time to evacuate residents and visitors in the time frames called for in the staged evacuation plan. However, the Department could have used the occurrence of fast-forming and fast-approaching hurricanes as a rationale to oppose the adoption of staged evacuation plans by Islamorada and other local governments in the Florida Keys. Instead, the Department determined that staged evacuation plans are consistent with the statutory requirement and the comprehensive plan policies calling for 24-hour hurricane evacuation, despite the possibility of fast-forming and fast-approaching hurricanes. Therefore, to prove that Ordinance 07-11 is inconsistent with Policy 2-1.6.3, it is not enough for the Department to merely show that Ordinance 07-11 would lead to more vehicles associated with transient units. The Department must prove that Ordinance 07-11 would prevent Islamorada from evacuating transient units under the time frames of the staged evacuation plan. Insufficient competent evidence was presented about the hurricane evacuation model, about the model’s assumptions, and whether the model’s assumptions are still relevant to current circumstances, to assist the Administrative Law Judge to make findings regarding the potential effects of Ordinance 07-11 on the modeled evacuation times. William Wagner, formerly an emergency management coordinator for Monroe County and currently the chief for emergency services for Islamorada, testified that the staged evacuation plan has been implemented two or three times since its adoption and there have been no problems evacuating the transient population within the time frames of the plan. It was his opinion that doubling the current number of hotel/motel units in Islamorada would not prevent evacuation of the Florida Keys in compliance with the goals of the staged evacuation plan. It is fairly debatable whether Ordinance 07-11 is consistent with Policy 2-1.6.3. Policy 3-1.1.8 Policy 3-1.1.8 requires Islamorada to adopt LDRs “that establish a fair and equitable method for requiring developers of new and expanded businesses and private developers of housing to provide or subsidize housing for employees.” The Department contended that Ordinance 07-11 is inconsistent with this policy because the ordinance creates a need for more employees without providing affordable housing for them. However, Islamorada recently adopted an LDR which requires developers to provide at least 30 percent affordable housing on site or pay a fee which Islamorada will use to provide affordable housing elsewhere. Based on Islamorada’s adoption of the affordable housing LDR, the Department changed its position and now states that Ordinance 07-11 is “neutral” with respect to affordable housing. It is fairly debatable whether Ordinance 07-11 is consistent with Policy 3-1.1.8. Principle (d) - Sound Economic Development In its Proposed Recommended Order, the Department asserts that Ordinance 07-11 is inconsistent with Principle (d), but does not explain why. The Department makes a general reference to protection of natural habitat and provision of affordable housing, but no evidence was presented to demonstrate that Ordinance 07-11 would result in adverse impacts to the natural environment, and the Department withdrew its contention that affordable housing was an issue. The Department failed to prove by a preponderance of the evidence that Ordinance 07-11 is inconsistent with Principle (d). Principle (j) – Affordable Housing As discussed above, the Department changed its initial position and now states that Ordinance 07-11 is neutral with regard to affordable housing. The Department failed to prove by a preponderance of the evidence that Ordinance 07-11 is inconsistent with Principle (j). Principle (l) – Health, Safety, and Welfare The principal basis for the Department’s contention that Ordinance 07-11 is inconsistent with Principle (l) is the Department’s allegation that the ordinance will increase the traffic associated with hotels and motels and, therefore, adversely affect hurricane evacuation. For the reasons already discussed in the context of Policy 2-1.6.3 of the Islamorada Comprehensive Plan, the Department failed to prove by a preponderance of the evidence that Ordinance 07-11 is inconsistent with Principle (l) with regard to hurricane evacuation. Another basis for the Department’s contention that Ordinance 07-11 is inconsistent with Principle (l) is the ordinance’s alleged effect on potable water supply in Islamorada. In the Department’s Amended Final Order, there was one passing reference to the lack of data and analysis regarding “potential impacts on potable water supply.” There was no mention of a potable water supply issue in the parties’ Joint Pre-Hearing Stipulation. In its Proposed Recommended Order, the Department simply asserts that “Ordinance 07-11 fails to address the impacts on potable water supply.” The burden was on the Department to prove that Ordinance 07-11 would create potable water supply problems. It failed to meets its burden. The Department did not prove by a preponderance of the evidence that Ordinance 07-11 is inconsistent with Principle (l).
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is: RECOMMENDED that the Department of Community Affairs enter a Final Order rejecting Ordinance 07-11 as inconsistent with the Principles for Guiding Development set forth in Section 380.0552(7), Florida Statutes. DONE AND ENTERED this 22nd day of October, 2008, in Tallahassee, Leon County, Florida. BRAM D. E. CANTER 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 22nd day of October, 2008.
The Issue Whether Highgate Park Homeowners' Association (HOA) discriminated against Javier Arrillaga (Petitioner) based on his disability when it denied his application to install permanent accordion hurricane shutters; and if so, what is the appropriate remedy.
Findings Of Fact Petitioner owns a house in Polk County at 629 Kensington Drive, Davenport, Florida (Property). He resides at the Property with his wife, nephew, and mother. Respondent is a non-profit association operating for the benefit of the Highgate Park community and its members. There are 243 homes in the community (including the Property) and all the homeowners are members of the HOA. The HOA is managed by Richard Drake, a community association manager employed by Century Management. It is governed by a board of directors made up of three people: Scott Cooper, Kerri Hill, and Wesley Shaffer. The board members also serve as members of the HOA's Architectural Control Committee (ACC). Each homeowner in Highgate Park is provided a copy of the HOA's Amended and Restated Declaration of Covenants, Conditions and Restrictions (Covenants). The Covenants are also available on the HOA 's website. 5 The Property is part of the HOA and subject to the HOA's rules and regulations regarding the appearance of the Property. The ACC is responsible for enforcing some of the Covenants involving modifications or changes to the outside of homes in the community. This includes regulations relating to placement of garbage cans and trampolines, changes in landscaping, and the building of play structures such as basketball hoops and tree houses. The Covenants specifically address the topic of storm and hurricane shutters: (11) Unless installed by the Developer, no awning, canopies or shutters (including hurricane or storm shutters), or other decorative trim, shall be attached or affixed to the exterior of a building without the prior written approval of the ACC. No foil, window tinting materials or shielding materials or devices shall be placed upon any windows or sliding glass doors that are part of a Home, without the prior written approval of the ACC. According to the HOA's board president, "[n]one of the houses have shutters." REQUEST - JULY 12, 2020 On July 12, 2020, Petitioner submitted an "ACC General Application" form (Application) which stated, "Installation of accordion hurricane shutters in all window and doors of my house. Attached are pictures of how the accordion hurricane shutters look like." In the July 12 Application, Petitioner did not mention a disability or that the permanent accordion hurricane shutters (accordion shutters) were required as an accommodation. The accordion shutters Petitioner sought to install were estimated to cost $5,620.00. At the time of the July 12 Application, the HOA did not know that the request to install the accordion shutters was an accommodation for his disability. In response to the July 12 Application, on July 14, 2020, Mr. Drake emailed Petitioner denying his request: The attached ACC Application for Hurricane shutters is not acceptable because the ACC will only accept either: 1.) Removable hurricane panels that can only be installed during a tropical storm/hurricane watch/warning & removed & stored after the tropical storm/hurricane. 2.) Installation of permanent hurricane window and door glass. The email further asks that Petitioner resubmit another Application for one of the two options above so it can be reviewed at the next ACC meeting on July 16, 2020. Although Petitioner claimed he would not be able to hire someone to place and remove hurricane panels during an approaching storm, he offered no evidence that he researched this possibility or obtained estimates for the price of assistance for this service. He also offered no evidence regarding the costs of the removable hurricane panels. Petitioner did not resubmit an Application. Instead, on July 15, 2020, Petitioner emailed the HOA stating the reason he requested the accordion shutters was due to a disability, and that he could not put up and take down the removable panels on his home if there was a storm. He did not address the possibility of installing hurricane proof glass windows and doors. Later, Mr. Drake told Petitioner that installing the hurricane proof windows and door glass would be the best option that the ACC would approve. Petitioner responded, "So now you are breaking disability laws by denying reasonable accommodation. I will be contacting the ADA about this and taking action against the HOA if [I] need to." No further action was taken by the HOA on Petitioner's July 12 Application. Petitioner filed his Charge of Discrimination with FCHR on August 5, 2020. REQUEST - FEBRUARY 2, 2021 On February 2, 2021, Petitioner filed another Application. This Application was for permission to replace the windows on Petitioner's home. In its letter approving the February 2 Application for the installation of new windows on Petitioner's home, the HOA reminded Petitioner: [T]he installation of the permanent accordion style shutters will not be approved by Highgate Park even after you replace the windows and doors with non-hurricane impact glass for the reasons previously stated and that the option for you to install permanent hurricane windows and door glass remains a viable alternative as it both complies with the HOA Restrictions and accommodates your disability claim. Petitioner did not purchase the hurricane proof windows and doors, but opted to install the non-impact resistant windows and doors. The installation of the new windows and doors cost $8,635.1 1 Petitioner claimed and argued in his PRO that the windows were financed through his mother. The undersigned finds it is irrelevant who paid for the windows. Hurricane proof windows would have cost him $7,150 more, or a total of $15,785. In comparison, it would cost Petitioner a total of $14,255 had he installed the accordion shutters ($5,620) with the non-hurricane impact windows and doors ($8,635) that he had installed. The cost difference between the option of installing the accordion shutters compared to installing the hurricane proof glass and doors was $1,530. There was no evidence at the hearing on how much the removable hurricane panels would have cost. REQUEST - March 26, 2021 After receiving the "No Cause" Determination, but before filing his Petition for Relief, on March 26, 2021, Petitioner filed another Application with the ACC, again requesting permission to install the accordion shutters: Per [FCHR], resubmitting ACC for hurricane accordion style shutters. Disability information is attached for reasonable accommodation request. On April 23, 2021, the ACC denied Petitioner's March 26 Application. Specifically, it found that the accordion shutters did not comply with community-wide standards and would violate the Covenants. The HOA again suggested that the option of installing hurricane proof glass and doors was a reasonable viable alternative to the accordion shutters. Although Petitioner argued in his PRO that the accordion shutters were the only option that would not cause him a financial hardship, he provided no evidence as to his income or why the alternatives suggested by the HOA were cost prohibitive. PETITIONER'S DISABILITY Petitioner testified as to his medical condition and physical limitations. These limitations were consistent with the medical documents attached to the March 26 Application: (1) a letter from the U.S. Social Security Administration, Office of Disability Adjudication and Review, dated October 22, 2007, indicating Petitioner was deemed "disabled" due to hip dysplasia and degenerative arthritis, and was entitled to benefits; (2) a medical note dated January 29, 2020, listing a number of medical conditions which limit Petitioner's mobility and cause him pain; (3) an FCHR form executed by Petitioner's treating medical provider dated September 23, 2020, indicating Petitioner suffered from physical impairments that limit his ability to breath, hear, perform manual tasks, see, and walk; and (4) an examination report dated December 23, 2019, recommending Petitioner would benefit from a scooter for ease of movement outside the home. In the FCHR form, the medical provider specifically states Petitioner "has limited mobility of his [lower extremities] and decreased upper body strength. He would be unable to repeatedly put up and take down hurricane shutters." Based on this documentation and Petitioner's undisputed testimony regarding his physical condition, the undersigned finds Petitioner suffers from a physical impairment that affects major life activities, including walking and standing. Petitioner offered no evidence (medical or otherwise) that hurricane shutters (permanent or removable) were necessary to alleviate some aspect of his medical conditions or that accordion shutters were necessary for the full enjoyment of the Property.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Florida Commission on Human Relations issue a final order dismissing the Petition for Relief filed by Javier Arrillaga. DONE AND ENTERED this 13th day of August, 2021, in Tallahassee, Leon County, Florida. S HETAL DESAI Administrative Law Judge 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 13th day of August, 2021. COPIES FURNISHED: Robert Aranda, Esquire Campbell, Trohn, Tamayo, & Aranda 1701 South Florida Avenue Lakeland, Florida 33803 Javier Arrillaga 629 Kensington Drive Davenport, Florida 33897 Tammy S. Barton, Agency Clerk Florida Commission on Human Relations 4075 Esplanade Way, Room 110 Tallahassee, Florida 32399-7020 Stanley Gorsica, General Counsel Florida Commission on Human Relations 4075 Esplanade Way, Room 110 Tallahassee, Florida 32399-7020
