The Issue Whether Petitioner has been the subject of discrimination in housing due to a handicap.
Findings Of Fact Petitioner is a 52-year-old female who has a mental disability which impairs her ability to manage her money and stay organized. She is unemployed and relies on Social Security and a special needs trust to support herself. Her sister, Katherine Newman, is the trustee of Petitioner's trust. However, Petitioner's outward presentation is of an intelligent, capable, and non-disabled person. Until 2009, Petitioner, when not hospitalized, either lived with her mother or resided with another person. For a variety of reasons and with the concurrence of those involved in her care, in 2009, Petitioner, at around age 50, decided to attempt living by herself. Respondent, GrandeVille on Saxon, Ltd. (GrandeVille), is the owner of GrandeVille on Saxon, a large apartment complex located at 741 Saxon Boulevard, Orange City, Florida. GrandeVille contracted with Respondent, Cambridge Management Services, Inc. (Cambridge), to manage the GrandeVille apartment complex. During 2009 and 2010, Respondent, Carol Werblo, was an employee of Cambridge Management Services, Inc., and acted as a leasing agent for the GrandeVille apartment complex. In the past, she was recognized as the outstanding leasing agent for the GrandeVille apartment complex, as well as for all properties managed by Cambridge. She continues as a leasing agent for the apartment complex to date and has earned several Certificates of Achievement in Fair Housing Training over the years of her employment. Indeed, all employees of Cambridge receive fair housing training upon employment. Thereafter, all employees receive annual fair housing training. In 2009, GrandeVille required a prospective lessee to submit a completed application, and pay $299.00 in application, administrative and reservation fees (collectively the “application fees”). GrandeVille would not reserve an apartment or enter into a lease with a prospective lessee without a completed application and payment of all application fees. Additionally, GrandeVille required all applicants to be screened for rental history or mortgage payment history, employment history, credit history, and criminal background prior to approval of the application. After approval of an application, the prospective lessee may enter into a Reservation Agreement with GrandeVille to reserve a specific apartment within the complex and establish an anticipated move-in date. The Reservation Agreement identified the applicant’s future address, as well as, provided information concerning utilities, services and move-in procedures. The Reservation Agreement also notified prospective lessees that they were required to secure electric service and renter’s insurance before signing a lease and moving in. Additionally, the Reservation Agreement required an appointment prior to a lessee taking possession of an apartment in order to execute a formal lease agreement. In general, the application process at the GrandeVille apartment complex could take anywhere from a day to a longer period of time to complete, depending on the day and time the application is given to the facility. Importantly, applications could not generally be approved over a weekend since the person with authority for such approval did not generally work over the weekend and some of the screening process could not be completed. If there was an emergency housing situation over a weekend, the person responsible for application approval could be called by telephone to review the application, if they were available. However, the evidence did not demonstrate any housing emergency during the time period relevant to this action since Petitioner always had places she could live supplied by either family or friends available to her. Cambridge manages the inventory of apartment units at the GrandeVille complex by use of “availability reports” that are computer generated and printed daily. Leasing agents at the complex use the reports to locate apartments that can be shown and are available to rent. The availability reports list the apartment complex's inventory by floor, apartment number, number of bedrooms, type, and availability to rent. The number of bedrooms an apartment has is represented by a letter, with "A" designating a one bedroom apartment. The type of an apartment is, also, represented by a letter, with "I" designating an apartment with a glassed-in area known as an imagination room and "S" designating an apartment with a screened-in lanai. Additionally, the availability reports separate apartments into various categories. The categories under which apartments are separated are 1) vacant, not leased, and ready to show; 2) vacant, not leased, not ready to show; 3) occupied, but have received notices to vacate and are not leased; 4) occupied, but have received notices to vacate and are leased; and 5) vacant, still under lease, but ready to show. Since the apartments in categories three and four are still occupied, they cannot be shown to prospective tenants and are not available to lease. Apartments in category two cannot be shown to prospective tenants because they are not ready to show since, necessary repairs, painting, replacement and maintenance have not been completed after their occupants moved out. These units are not available for immediate occupancy and repairs are highly dependent on the workload and schedule of maintenance personnel or subcontractors. Units in categories one and five may be shown to prospective tenants and are available to lease, subject to the apartments lease status. Importantly, only apartments in category one are available for immediate or near immediate occupancy if a prospective lessee first applies, reserves, and pays all of the application fees. Around January 9, 2009, Petitioner was looking for a one-bedroom apartment. She saw an advertisement in a local rental magazine for the GrandeVille apartment complex. On January 9, 2009, she visited the complex. During this visit she was shown two one-bedroom apartments by Respondent Carol Werblo. Ms. Werblo followed her standard process in showing apartments to a prospective lessee. One apartment shown to Petitioner had an imagination room. According to the availability reports for that day, the apartment which Petitioner viewed was apartment 10118. The apartment was under a current lease but could be shown since it was vacant. Occupancy was subject to the terms of its current lease. The other apartment shown to Petitioner had a screened- in lanai. According to the availability reports for that day, the lanai apartment which Petitioner viewed was either apartment 10217 or 10219. Apartment 10217 was vacant and could be leased and occupied. Apartment 10219 was under a current lease, but could be shown since it was vacant. Occupancy of 10219 was subject to the terms of its current lease. Upon seeing the two apartments, Petitioner fell in love with the imagination room apartment. She told Ms. Werblo that she wanted to rent the apartment she had seen. In fact, Petitioner was only interested in renting a one bedroom, imagination room apartment. She was not interested in renting any other type of apartment. Following the viewing, Ms. Werblo again followed her usual procedure and discussed the application and leasing process and the rents charged by GrandeVille with Petitioner. Petitioner, per standard practice, was also provided a rate sheet showing market rent for the various apartments. Handwritten on the sheet were reduced rent rates for the one- bedroom and two-bedroom apartments based upon rent promotions or specials that were available on January 9, 2009. These promotions are limited in time and often change depending on apartment availability. The promotional rates can only be locked in by reserving an apartment while they are in effect and are one reason for reserving an apartment early in the application process. The evidence was unclear and did not establish that Petitioner told Ms. Werblo that she was disabled or handicapped or, if she did, the nature of that disability or handicap. Petitioner did advise Petitioner that she wanted to talk to her sister, Katherine Newman, about leasing the apartment and that her sister handled her money. The evidence was again unclear and did not establish that Petitioner told Ms. Werblo that she had a trust that supplied her income or that her sister was the trustee of that trust. The evidence was clear that, even after discussing the application and leasing process with Ms. Werblo, Petitioner did not complete an application or pay any application fees on January 9, 2009, so that an application could be processed and, if approved, an apartment reserved for her. Therefore, she did not apply for a lease or reserve any apartment on that day and Respondents were not obligated to hold an apartment for her. Additionally, there was no evidence introduced at the hearing as to any specific threshold requirements that a prospective lessee must meet. Petitioner's ability, at substantially later times, to qualify to rent an apartment at another apartment complex or obtain a mortgage on her mother's home does not establish that Petitioner met Respondents' requirements in January of 2009. Given this lack of evidence, it cannot be concluded that Petitioner met Respondents' screening requirements and Petitioner has, therefore, failed to establish that she was qualified to lease an apartment from GrandeVille. There was also no evidence that Petitioner may not have fully understood the application and leasing process. Indeed, Petitioner admitted that she did not fill out an application or pay the application fees because she felt such financial matters were her sister's area of responsibility. Even if Petitioner did not understand the application process, there was no evidence that Respondents could or should have known about Petitioner's lack of understanding. Given these facts, there was no evidence that any of the Respondents discriminated against Petitioner during her visit to the apartment complex on January 9, 2009. As stated above, Petitioner decided she wanted to rent the imagination room apartment and told her family and friends she was going to move into this apartment even though she did not know or have an apartment number. Petitioner told Ms. Newman about the apartment and the amount of rent under the rent promotion. She asked her sister to contact the apartment complex so that she could rent the apartment. As indicated, Ms. Newman is the sister of Petitioner and is the trustee of her special needs trust. She is a licensed Certified Public Accountant in Florida. She often advises Petitioner on financial matters. She perceives her duty as trustee to conserve the funds and make sure dollars are not spent unwisely. As such, she was in favor of Petitioner’s living independently, but was reticent about the amount of rent and expenses such independent living would entail. Ms. Newman felt the promotional rent was somewhat high for the area. However, she did feel the apartment complex met Petitioner's need for a secure living environment. On January 14, 2009, Ms. Newman telephoned the GrandeVille complex to inquire about one-bedroom apartments and to negotiate a better deal for Petitioner. She spoke with Carol Werblo. The conversation took about 10 or 15 minutes. Ms. Newman told Ms. Werblo that she handled Petitioner's financial affairs and that rent would be paid from a special needs trust. The evidence was unclear and did not establish that she advised Ms. Werblo that her sister was disabled or the nature of the disability. However, the evidence did establish that Ms. Newman thought the rent at the apartment complex was too high and communicated that belief to Ms. Werblo. Her position about the rent also made her less than pro-active in assisting her sister in going through the application and leasing process. Ms. Newman did attempt to negotiate a lower rate. The negotiation was unsuccessful. She knew Petitioner had “terrible credit” and correctly believed Petitioner could not pass the application screening process for renting an apartment without providing financial information about her trust. Ms. Newman did not provide any documentation to Respondents about the trust that would have supported any potential application for Petitioner. She did not complete an application to lease the apartment for her sister because her sister was legally capable of completing the application herself. However, she did not ascertain any of the steps that Petitioner needed to take to apply, reserve, or lease an imagination room apartment. She did not pay any application fees and did not transfer any funds to either Petitioner or GrandeVille to cover the application fees or monthly rental amount. Indeed, there was no credible evidence introduced at hearing that either Petitioner or Ms. Newman had demonstrated to Respondents that Petitioner had the financial capability to rent an apartment. In fact, there was no evidence that any of the Respondents discriminated against Petitioner on January 14, 2009, since neither Ms. Newman nor Petitioner provided any financial documentation to Respondents or otherwise completed any of the steps necessary to reserve or lease an apartment at the GrandeVille complex. Additionally, given this lack of evidence and since the only significant contact Ms. Werblo had with Petitioner or her sister occurred on January 9 and 14, 2009, the charges of discrimination against Ms. Werblo should be dismissed. In the interim, Petitioner mistakenly believed the imagination room apartment was hers for leasing at the rent she had discussed with Ms. Werblo on January 9, 2009. Since her visit she had bought furnishings for the apartment. In an e- mail to Ms. Newman dated January 28, 2009, Petitioner stated, “I want to sign a lease the first week of February.” In a January 30, 2009, e-mail, Petitioner told Ms. Newman she had obtained a telephone number for the apartment and was “going to the apartments to get lease papers and look one more time at the apt.” Petitioner was excited and looking forward to living on her own. Interestingly, Ms. Newman never informed Petitioner that she had not completed any steps necessary to financially enable Petitioner to apply for or reserve the imagination room apartment. At best, it appears both Petitioner and her sister wrongly assumed the other had performed or completed the rental process required by Respondents for all prospective lessees. Sometime between January 29, 2009, and January 31, 2009, Emily Tyler completed an application, and was approved to lease apartment 10219. The apartment was one of the two apartments Petitioner had looked at on January 9, 2009. It was the last lanai-style apartment on either the first or second floor of the apartment complex where Petitioner was interested in renting. After approval, Ms. Tyler reserved the apartment and paid all of the required application fees on January 30 or 31, 2009. Given this transaction and according to the availability reports, there were no imagination room-style apartments on the first or second floor available for leasing on January 31, 2009. There was one lanai-style apartment on the third floor. However, Petitioner was not interested in leasing a lanai apartment or leasing an apartment on the third floor. After the second floor unit was reserved by Ms. Tyler, Petitioner, on Saturday, January 31, 2009, returned to the GrandeVille apartment complex to sign a lease and rent the one- bedroom imagination apartment she had viewed. Petitioner assumed the apartment she wanted would be ready for her when she visited the apartment complex. Indeed, she had arranged for family and friends to help her move in that weekend. Upon entering the building, Petitioner asked the leasing agent, Patrick Smith, who was a young college student, for “the lease documents” so that she could sign the lease to rent the apartment on that day. Mr. Smith was not familiar with Petitioner and met her for the first time on that day. She did not speak with Ms. Werblo who was busy with other clients. However, no application had been submitted, no application fee had been paid, no application screening had been done, no lease had been prepared for her, and no move-in date was scheduled for Petitioner. Additionally, the person who could approve an application was not present at the complex since the weekend was her scheduled time off and she would not return to work until Monday. Additionally, Petitioner did not have any means to pay the required application fees of $299.00 with her and did not offer to pay the application fees. Given these facts, Petitioner has failed to demonstrate that she was qualified to lease an apartment from GrandeVille on January 31, 2009, and has failed to demonstrate that Respondents discriminated against her by not leasing her the apartment she had viewed. Mr. Smith told Petitioner that the only one-bedroom unit available that could be rented by Petitioner for immediate or near immediate occupancy on January 31, 2009, was a third- floor screened lanai unit. Mr. Smith offered to show Petitioner the third-floor lanai unit. He also checked and printed out the apartment complex's availability report which showed only one one-bedroom lanai apartment available and ready to rent on January 31, 2009. Petitioner became upset. She was not interested in the lanai apartment and so informed Mr. Smith. She told Mr. Smith that she only wanted to rent the imagination room apartment that she had been shown and she wanted to move in over that weekend. Petitioner testified that Mr. Smith indicated, based on the availability report for January 31, 2009, that the apartment she had seen was not available and ready to rent that day and further the only one-bedroom apartment available to rent that day was the third-floor lanai apartment, not an imagination room apartment. The statement was accurate since no apartment of the type and location Petitioner was interested in was available for immediate occupancy over the weekend. Mr. Smith could not give Petitioner a lease since she had not completed the required application process. He tried to explain to Petitioner that she must qualify to lease an apartment by first completing an application. Moreover, there were no units available for occupancy over the weekend that met Petitioner's style and location criteria. After talking with Mr. Smith, Petitioner became confused and did not know what to do. She stepped outside the building and telephoned Ms. Newman. She returned to the lobby of the GrandeVille complex, asserted the leasing agent knew she was disabled, demanded copies of the availability report, contested the truthfulness of the leasing agent’s information, and threatened to sue. She also demanded rent records for the apartment complex. At the time, Petitioner was not entitled to the private records of the apartment complex and was denied copies of these records. Petitioner again telephoned Ms. Newman who suggested she was being discriminated against and told her to leave. Petitioner then left the premises. The evidence did show that there were three apartments on January 31, 2009, that might have been made available to rent at a near future date. These apartments were 16213, 16214, and 16217. These apartments were vacant, but none were available to move in over the weekend of January 31, 2009, since all needed some sort of repair or maintenance since last occupied. In fact, the evidence indicated that none of the apartments was ready for occupancy until over a month later. The rent offers they were available at had not changed since January 9, 2009. However, at no time did Petitioner attempt to apply or reserve an apartment of the type she desired. She simply demanded to sign a lease on January 31, 2009, for a one-bedroom imagination room apartment on the first or second floor so that she could move in that weekend. No such apartments were immediately available to meet Petitioner's demands. Respondents did not misrepresent the availability of any apartments or information about its rent specials on January 31, 2009, and did not otherwise, discriminate against Petitioner. Additionally, Respondent never complied with Respondent's requirements to lease an apartment. Given these facts, the Petition for Relief should be dismissed.1/
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Florida Commission on Human Relations enter a final order dismissing Petitioner's Petition for Relief. DONE AND ENTERED this 30th day of December, 2011, in Tallahassee, Leon County, Florida. S DIANE CLEAVINGER 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 30th day of December, 2011.
The Issue The issues in this case are, one, whether Respondent unlawfully discriminated against Petitioner on the basis of her alleged handicap in violation of the Florida Fair Housing Act; and, two, whether Respondent subjected Petitioner to acts of coercion or retaliation as a result of Petitioner's exercise, or attempted exercise, of a protected housing right.
Findings Of Fact Petitioner Maria Thornhill ("Thornhill") owns and lives in a unit in the Admiral Farragut Condominium Apartments. Respondent Admiral Farragut Condominium Association, Inc. ("AFCA"), manages the property of which Thornhill's condominium is a part. This case continues a dispute between Thornhill and AFCA which began in 1997, when Thornhill——without first securing AFCA's permission——installed three wooden steps leading from her rear balcony down to a patio located about 30 inches below. AFCA disapproved of the steps and directed Thornhill to remove them, which was done long ago. In the past, Thornhill has alleged, among other things, that AFCA and its individual directors unlawfully discriminated against her in denying her many requests to reinstall the steps, which she claims are needed as a reasonable accommodation for her handicap.2 Consequently, the parties have been pitted against each other for years in one legal proceeding after another, in various forums including DOAH. Thornhill has lost many battles in this protracted litigation——and consequently been ordered to pay tens of thousands of dollars in sanctions, court costs, and attorney's fees. Still, she presses on. In this case, Thornhill argues, as she has for more than a decade, that she needs to attach steps to her rear balcony because she is physically unable to traverse the 30 inches which separate the balcony from the ground and hence would be trapped if a fire were to block both of the unit's two doors to the outside. Not for the first time, Thornhill alleges here that AFCA discriminated against her on the basis of handicap when it denied her request(s), the most recent of which was made in January 2004, for approval of the steps. In addition to her claim involving the steps, Thornhill alleges that AFCA has discriminated or retaliated against her, in some unspecified way(s), in connection with a boat slip, which she is, evidently, "next in line" to rent, once the lease expires under which another unit owner currently enjoys the right to use the slip. Finally, Thornhill contends that, in its efforts to collect the various money judgments it has been awarded, AFCA has retaliated against her unlawfully. Determinations of Ultimate Fact With regard to the steps, Thornhill presented no evidence suggesting that such a modification is reasonable, nor any proof that installation of such steps is necessary to ameliorate the effects of her particular handicap. There is no evidence that any of AFCA's decisions concerning the boat slip were motivated in any way by discriminatory animus directed toward Thornhill. There is likewise no evidence that AFCA ever undertook to execute or otherwise enforce the judgments it has obtained against Thornhill because of discriminatory animus. In sum, there is not a shred of competent, persuasive evidence in the record, direct or circumstantial, upon which a finding of any sort of unlawful housing discrimination, coercion, or retaliation could possibly be made. Ultimately, therefore, it is determined that AFCA did not commit any prohibited act.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the FCHR enter a final order finding AFCA not liable for housing discrimination and awarding Thornhill no relief. DONE AND ENTERED this 20th day of January, 2010, 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 20th day of January, 2010.
The Issue The issue in this case is whether the Bradenton Housing Authority (Respondent) committed an act of housing discrimination against Willie A. Washington (Petitioner) based on his race and disability, in violation of the Florida Fair Housing Act, Sections 760.20 through 760.37, Florida Statutes (2007).
Findings Of Fact The Petitioner is African-American. Although the record failed to disclose any physical or mental disability, the parties stipulated that the Petitioner is legally disabled for purposes of this proceeding. In 2004, on an otherwise unidentified date, the Petitioner filed an application for public housing assistance with the Respondent. The Respondent thereafter denied the application after completing a review of the Petitioner's criminal record history. The date of the denial was not identified. The Respondent's rationale for the denial was that the Petitioner did not meet the eligibility criteria established by the Respondent's governing board. The evidence established that the Petitioner has a criminal history extending from 1988 to 2000, and including convictions for drug possession and sale, battery on a law enforcement officer, resisting arrest with violence, and possession of a firearm by a convicted felon. The Respondent's eligibility criteria set forth numerous restrictions and provides in relevant part as follows: All families who are admitted to Public Housing must be individually determined to be eligible under the terms of the policy. In order to be determined eligible, an applicant must meet ALL of the following requirements: * * * The applicant family must have no record of . . . substance abuse . . . or any other history which may be reasonably expected to adversely affect: The health, safety, or welfare of other residents; The peaceful enjoyment of the neighborhood by other residents; and/or The physical environment and fiscal stability of the neighborhood. * * * G. The applicant family must have no history of criminal activity which, if continued, could adversely affect the health, safety or welfare of other residents. * * * The applicant family can not currently be engaged in or has been engaged [sic] during the past of any of the following activities: Drug related criminal activities. Violent criminal activities Other criminal activities that would threaten the health, safety, or right to peaceful enjoyment of the premises by other residents or HACB representatives. Conviction of drug-related criminal activity for the manufacture or production of methamphetamine on the premises of federally assisted housing. Based upon review of the criteria set forth herein, the Petitioner does not meet the Respondent's eligibility criteria. The Petitioner asserted that the Respondent provides housing assistance to Hispanic persons who have criminal records and further asserted that the Respondent does not perform criminal records reviews for Hispanic applicants. The Petitioner offered no evidence in support of the assertion. There was no evidence that the Respondent is providing housing assistance to any person with a criminal record. The Petitioner was unable to identify any person with a criminal record to whom the Respondent is providing housing assistance. There was no evidence that the Respondent does not perform criminal records reviews for Hispanic applicants. The evidence established that criminal records reviews are completed for all applicants. There was no evidence that the Respondent's denial of the Petitioner's application for housing assistance was based in any manner on the Petitioner's race or disability.
Recommendation Based on the foregoing Findings of fact and Conclusions of Law, it is RECOMMENDED that the Florida Commission on Human Relations enter a final order dismissing the Petitioner's Housing Discrimination Complaint. DONE AND ENTERED this 16th day of June, 2008, in Tallahassee, Leon County, Florida. S WILLIAM F. QUATTLEBAUM 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 June, 2008. COPIES FURNISHED: John Fleck, Esquire 1111 Ninth Avenue, West Bradenton, Florida 34205 Denise Crawford, Agency Clerk Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301 Willie A. Washington 2803 Fourth Avenue East Palmetto, Florida 34221 Cecil Howard, General Counsel Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301
The Issue Whether Respondent committed the unlawful employment practice alleged in the Charge of Discrimination filed with the Florida Commission on Human Relations (FCHR) and, if so, the relief that should be granted.
Findings Of Fact At all relevant times, Petitioners resided in an apartment in Eastwind Apartments, a HUD multifamily development in Marathon, Florida. MHA manages Eastwind Apartments. Monroe County Housing Corporation has an ownership interest in Eastwind Apartments. Ms. Vogt is the housing manager of Eastwind Apartments. Mr. Castillo is the executive director of MHA. The lease between Petitioners and MHA contains the following provision: "The Tenant agrees to permit the Landlord, his/her agents or other persons, when authorized by the Landlord, to enter the unit for the purposes of making reasonable repairs and authorized inspections." On September 18 and October 14, 2009, Ms. Vogt provided notices to all residents of Eastwind Apartments of upcoming inspections. The notices contained the following: ". . . there is still not a pet policy. If you have a pet, make sure it is confined and not loose anywhere in the apartment. The inspector can walk into any room and look around and your pet cannot be loose or locked in a room." On December 2, 2009, a maintenance man reported to Ms. Vogt that he was hesitant to enter the Petitioners' apartment because of the presence of a pit bull dog in the apartment. On December 2, 2009, Ms. Vogt hand-delivered an NOLV to Petitioner Alberto Pis based on the presence of the dog in the apartment. The NOLV instructed Petitioners to remove the dog from the apartment by December 5, 2009. The NOLV was written in English. There was not a Spanish translation of the NOLV. Ms. Vogt is fluent in English, but she is not fluent in Spanish. Mr. Pis could not read the NOLV in English. Mr. Pis became upset when Ms. Vogt asked him to sign that he had received the NOLV. Petitioners allege that Ms. Vogt's demand that Mr. Pis sign for the receipt of the NOLV constituted an act of discrimination. Petitioners have an adult son and an adult daughter who are fluent in Spanish and English. The adult daughter translated the NOLV to her parents on December 2, 2009, after Ms. Vogt had returned to her office. On December 14, 2009, Ms. Vogt hand-delivered a second NOLV to Petitioner Alberto Pis. This NOLV advised that keeping the dog in the apartment was a lease violation. The second NOLV was written in English. There was not a Spanish translation of the second NOLV. At all times relevant, MHA had an employee in the office at Eastwind Apartments who was fluent in Spanish and English. Elio Pis is a student at a school in Miami, but lives in the apartment leased by his parents from time to time. The dog in the apartment belongs to Elio Pis. Elio Pis, acting on behalf of himself and his parents, complained to Mr. Castillo about the NOLVs. At first, Mr. Castillo refused to discuss the matter with Elio Pis because Mr. Castillo thought that Elio Pis resided in Miami, not in the subject apartment. Mr. Castillo discussed the matter with Elio Pis after he learned that Elio Pis resided in the apartment from time to time. Petitioners allege that Mr. Castillo's refusal to promptly investigate their complaints constituted an act of discrimination. On February 8, 2010, Mr. Castillo wrote the following letter to Petitioner Alberto Pis: Following a phone conversation with your son regarding a Lease Violation issued on December 2, 2009, I conducted a review of the incident and actions taken by the Eastwind staff. The review indicates that on December 2nd, maintenance staff attempted to respond to a request for maintenance in your unit (work order) and was scared off by the presence of a dog in the unit. Based on this information, the Housing Manager issued you a lease violation. Additionally, on December 14, 2009, numerous tenants received what was intended to be a courtesy notice but was titled "Lease Violation", one of which you received. This second notice was rescinded on December 17, 2009. With regard to the initial lease violation issued, the Housing Manager perhaps over- reacted out of concern for the safety and well-being of the employee and others. The employee, while relaying the incident to a fellow employee, was noticeably shaken. I have asked the Housing Manager to also rescind the December 2nd Lease Violation. Staff is currently finalizing a revised Pet Policy that will allow for pets at Eastwind Apartments with restrictions and limitations. Residents will be notified of this change as the process is completed. On behalf of the Housing Authority, I apologize for any inconvenience to you and your family. The two NOLVs were rescinded before Petitioners filed their initial Complaint of Discrimination with HUD on March 19, 2010. Petitioners have been allowed to keep the dog in their apartment. Petitioners complained that certain repairs have not been made to their apartment. There was no evidence that similar repairs had been made to apartments rented by non- Hispanic tenants. There was no evidence that the terms and conditions of Petitioners' tenancy at Eastwind Apartments were different from the terms and conditions of any other tenant.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is hereby RECOMMENDED that the Florida Commission on Human Relations enter a final order dismissing Petitioners' Amended Petition for Relief. DONE AND ENTERED this 14th day of February, 2011, in Tallahassee, Leon County, Florida. S CLAUDE B. ARRINGTON 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 14th day of Februray, 2011. 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 Franklin D. Greenman, Esquire Greenman and Manz 5800 Overseas Highway, Gulfside Village, Suite 40 Marathon, Florida 33050 Alberto Pis and Maria Soto 240 Sombrero Beach Road, Apartment A-4 Marathon, Florida 33050
The Issue The issues in this case are: Whether Respondent, St. Joseph Garden Courts, Inc. ("Garden Courts"), discriminated against Petitioner, Lillian Craig ("Craig"), on the basis of her race (Caucasian) in violation of the Florida Fair Housing Act; and Whether Gardens Courts retaliated against Craig when she filed a discrimination claim.
Findings Of Fact Craig is an elderly Caucasian woman, who at all times material hereto resided at Garden Courts. Garden Courts is a federally-funded, multi-unit housing project that provides housing to elderly and lower income individuals under Section 202 of the Housing Act of 1959, as amended. On February 27, 2009, Craig entered into a "202 Project Rental Assistance Contract" (the "Lease") with Garden Courts. Craig agreed to lease Unit 311 for the sum of $465.00 per month, plus $60.00 per month for utility services. Craig agreed to abide by all terms and conditions of the Lease, including the Rules and Regulations attached thereto as an addendum. The Rules and Regulations attachment contains the following provision at paragraph 30: Authorized personnel will enter the apartment periodically for routine inspections, maintenance replacement/repairs, and pest control. Routine inspections, as required by HUD, are conducted to determine the condition of the dwelling unit, that the unit is decent, safe and sanitary, and in good physical condition. Inspections may reveal possible lease violations. Photographs will be taken if determined necessary. Any lease violations found during these inspections may result in termination of tenancy. On October 10, 2010, Garden Courts conducted a routine housekeeping and maintenance inspection of Unit 311. Mott, as property manager, headed up the inspection. Mott used a form checklist consistent with Department of Housing and Urban Development (HUD) guidelines for the inspection. Inspections of several other units were performed on the same day. The inspections were conducted by Mott with the assistance of Rudy (last name not provided), the maintenance director. Generally, Mott would inspect the kitchen and bathroom, while Rudy inspected the bedroom(s). Inspections were performed to assure cleanliness, orderliness, and compliance with all safety requirements. Upon inspection of Unit 311, Mott determined that there was one minor deficiency, a dirty stovetop, and one major problem, a fire hazard in the bedroom. The apartment was deemed free of roaches and vermin, free of trash and garbage, and in a "fair" state of cleanliness. Photographs were taken on the unit to document the major deficiency. The situation causing a major fire safety problem in the unit was that Craig had boxes and furniture stacked up in the bedroom which blocked the outside window. Inasmuch as there need to be two methods of ingress/egress for each room, the boxes illegally blocked one of the escape routes. The boxes also were stacked so high that the inspectors could not reach the smoke detector to determine whether it was functional. Further, the boxes blocked the electrical outlets so that they could not be tested. The fact that the boxes contained lots of paper was a concern to Garden Courts due to the possibility of fire. Due to the deficiencies, a follow-up inspection had to be scheduled. Garden Courts usually asked the tenant whether he or she wanted the re-inspection to occur within 15 days or 30 days. In this case, Craig asked for some time to rectify the problem and requested re-inspection a month later. Garden Courts honored her request and scheduled a re-inspection for the unit on September 10, 2010, one month after the initial inspection. Craig was advised by Mott that the boxes and furniture in the bedroom were the cause of Craig's apartment not passing the inspection. There is no credible evidence that Mott told Craig to move the boxes or face eviction. The best evidence is that Craig understood the need to move the boxes and volunteered to do so if she was afforded ample time. When Mott came back to re-inspect the unit a month later, the boxes had been moved. Craig claims she was treated differently from other tenants during her inspection. On the same date that Unit 311 was initially inspected, Mott and Rudy also inspected Units 210, 217, 306, 325, 119, and 116. The tenants of each of those units were Hispanic. Craig asserts that she was treated differently, because she was not Hispanic. That is, Unit 116 also had an issue relating to stacks of boxes, but Mott did not take a picture of that apartment. According to Mott, that was because the other unit was not, in her opinion, as severe a problem as Craig's unit. Each of the Hispanic tenants was given two weeks to a month to correct his or her cited deficiencies, depending on the nature and severity of the issues. Craig was allowed one full month to correct her deficiencies. The tenant of Unit 116 was ultimately given additional time to move the boxes in her apartment due to her physical condition. That tenant asked for and received additional time; Craig did not ask for additional time, because she was able to move her boxes before the scheduled re-inspection. Shortly after the re-inspection, Craig contacted the Jacksonville HUD office to complain about her treatment by Mott. Craig actually filed a Housing Discrimination Complaint with HUD, alleging discrimination based upon her race, Caucasian. HUD notified Mott about the complaint and asked Mott to speak to Craig about the allegations. Mott then tried to contact Craig to discuss the complaint. However, the phone number Mott had for Craig did not have a voice mailbox set up, so Mott was not able to leave Craig a message. On September 15, 2010, Craig returned to Garden Courts after doing some grocery shopping. As she walked through the lobby, Mott asked her to stop and talk for a moment concerning the HUD complaint. Craig indicated that she could not talk at that time because she had to get her groceries put away. Mott told Craig that attempts to leave Craig a message on her cell phone were thwarted due to the fact that the message box had not yet been set up. Craig disputed that statement, saying that she was receiving messages from other people. Craig says that Mott grabbed her arm and yelled at her. Mott remembers only speaking to Craig in a normal tone of voice and requesting a meeting. There is no persuasive evidence as to how the conversation actually occurred. Mott awaited a return call or visit from Craig for a few hours, then drafted a letter to Craig when there was no further contact. The letter again asked Craig to contact Mott to discuss the HUD complaint. The letter included the cell phone number that Mott had on file for Craig and asked Craig to contact Mott by the end of the following day. Craig, however, was apparently unwilling to talk with Mott on her own, so she went to speak with an attorney, rather than contacting Mott. There is no indication that Mott and Craig ever had a meaningful discussion between themselves about the fire hazard issue. At some point in time, a meeting was held that both Mott and Craig, along with legal counsel, attended. However, the results of that meeting are not in evidence.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a final order be entered by the Florida Commission on Human Relations dismissing the Petition for Relief filed by Lillian Craig in its entirety. DONE AND ENTERED this 13th day of July, 2011, in Tallahassee, Leon County, Florida. S R. BRUCE MCKIBBEN 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 13th day of July, 2011.
The Issue The issue in this case is whether Respondent committed a discriminatory housing practice against Petitioner on the basis of a handicap.
Findings Of Fact Petitioner formerly resided in Montrose Apartments at 563 West Montrose Street, Apartment 18, Clermont, Florida. Petitioner alleges that he is a handicapped/disabled person by virtue of a mental disability, who was "illegally" evicted from Montrose Apartments because of his handicap/disability. At all times relevant to this proceeding Francisco Guzman, Jr., owned and managed Montrose Apartments. Mr. Guzman was unaware of Petitioner's alleged handicap/disability. At no time during Petitioner's tenancy at Montrose Apartments did Petitioner notify management of the apartment complex that he had a handicap/disability. Furthermore, Petitioner never provided management with documentation verifying that he had a handicap/disability. Petitioner alleged that in early 2009, he requested that Respondent make plumbing repairs in his apartment unit and that Respondent refused to comply with those requests. He further alleged that Respondent did not take his maintenance requests seriously and treated other tenants at Montrose Apartments more favorably than he was treated. Petitioner admitted that he did not pay rent for his Montrose Apartment unit in March and April 2009. According to Petitioner, he withheld the rent because Respondent failed to make the requested plumbing repairs. In correspondence from him to a "Ms. Smith," Mr. Guzman indicated that on "Sunday [March] 22, 2009," he had posted a three-day notice on Petitioner's apartment, because he had not paid his March 2009 rent. Also, Mr. Guzman acknowledged that he had not been able to repair Petitioner's bathroom sink because he had been unable to gain access to Petitioner's apartment. Finally, Mr. Guzman indicated that he believed Petitioner was "avoiding [him] since he is unable to pay the rent." Petitioner did not pay rent for his Montrose Apartment unit in March and April 2009, even after Respondent notified him several times that the rent was past due and should be paid. Respondent began eviction proceedings against Petitioner in or about late April or early May 2009, by filing a Complaint for Eviction ("Eviction Complaint") with the County Court of Lake County, Florida. The Eviction Complaint was assigned Case No. 2009-CC001534. Respondent filed the Eviction Complaint against Petitioner after, and because, he did not pay the March and April 2009 rent for his Montrose Apartment unit. On May 5, 2009, a Final Judgment for Possession and Writ of Possession were entered against Petitioner. The Writ of Possession was served on Petitioner and enforced. On or about May 8, 2009, the apartment unit previously rented to Petitioner was turned over to Mr. Guzman. Petitioner alleges and asserts that: (1) he is disabled/handicapped due to a mental disability; (2) he was evicted because of his handicap/disability; and (3) Respondent knew Petitioner was handicapped/disabled. Nevertheless, Petitioner presented no competent evidence to support his claim.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Florida Commission on Human Relations enter a final order dismissing Luis Bermudez' Complaint and Petition for Relief. DONE AND ENTERED this 26th day of February, 2010, in Tallahassee, Leon County, Florida. S CAROLYN S. HOLIFIELD 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 26th day of February, 2010.
The Issue The issue in this case is whether Respondents, The Fourth Bayshore Condominium Association, Inc. (“Bayshore”), Karl Stemmler (“Stemmler”), and/or Richard Grove (“Grove”), discriminated against Petitioner, Robert Pagano (“Pagano"), on the basis of his physical handicap in violation of the Florida Fair Housing Act.
Findings Of Fact Pagano is a Caucasian male who is handicapped by virtue of medical complications which resulted in the amputation of his left leg in March 2008. He has been confined to a wheelchair since that time. At all times relevant hereto, Pagano was renting a condominium unit at Bayshore. In January 2012, Pagano saw another unit at Bayshore advertised for rent. He called Grove, listed as the owner of the unit, and inquired about renting the property. Grove told Pagano that a key to the unit would be left under a mat between the screen door and front door on January 19, 2012. On that day, Pagano went to inspect the unit, accompanied by a friend, Philip Saglimebene. Upon arrival at the unit, Pagano and his friend began looking for the hidden key, but could not find it. They apparently made some noise while searching for the key, because they were confronted by Stemmler. According to Pagano, Stemmler began asking them in unfriendly terms who they were and what they were doing at the unit. The friend then told Stemmler they were looking for a key so they could go in and inspect the unit as Pagano was interested in renting it from Grove. Stemmler, supposedly identifying himself as a “building representative,” said there was no key to be found. He also reputedly told Pagano and his friend that they would not need a key anyway, “because you are not moving in.” When the friend explained that the unit was for Pagano, not him, Stemmler allegedly said that Pagano was not moving in either because he was an “undesirable.” When asked to explain that comment, Stemmler purportedly said, “He just is; that’s all you need to know.” (None of Stemmler’s comments were verified by competent evidence and, without verification or support, cannot be relied upon to make a finding of fact in this case.) Pagano believes Stemmler’s purported comments were based on the fact that he (Pagano) has long hair and a beard and does not fit into the conventional norm at Bayshore. He also believes that his handicap served as a basis for Stemmler’s alleged comments. There was no credible evidence presented at final hearing to substantiate Pagano’s suppositions. Grove had put his condominium unit up for rent at the beginning of the year. When Pagano called to inquire about it, Grove – who lives out-of-state – notified a friend to leave a key under the mat, as described above. That friend simply forgot to leave a key at the unit on the designated date. Grove knew nothing about Pagano’s interaction with Stemmler. Grove had not spoken to Stemmler prior to the day he and Pagano had their interaction. Stemmler had no authority to speak for Grove or to make a decision concerning to whom Grove would rent his condominium unit. Subsequent to the day Pagano visited the unit, Grove took the unit off the rental market because his wife decided to use the unit to house family and friends rather than renting it out to someone else. It took several weeks for the rental advertisement for the unit to be removed from a locked bulletin board at Bayshore. Grove said that if the unit ever went back on the market, he would call Pagano first about renting it, i.e., Grove had no opposition whatsoever to Pagano’s being a tenant. Van Buren, president of Bayshore, explained that the condominium association utilizes the support of voluntary building representatives to assist with security and minor maintenance at Bayshore. The volunteers, who are generally seasonal residents at Bayshore, do not hold keys to individual units and have no authority to grant or deny an applicant’s request to rent a unit. Stemmler is one of many building representatives who resides part-time at Bayshore. Pagano does not know of any non-handicapped individual who was allowed to rent a unit at Bayshore to the exclusion of himself or any other handicapped person. In fact, Pagano currently resides in another unit at Bayshore; he is already a resident there.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a final order be entered by the Florida Commission on Human Relations dismissing the Petition for Relief filed by Robert Pagano in its entirety. DONE AND ENTERED this 5th day of September, 2012, in Tallahassee, Leon County, Florida. S R. BRUCE MCKIBBEN 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 5th day of September, 2012.
The Issue The issues in this case are whether the applications of Urban Edge Family, Ltd. (Application No. 2011-236C), and Urban Edge Apartments, Ltd. (Application No. 2011-235C), are entitled to Proximity Tie-Breaker Points with regard to a "medical facility," as defined in the 2011 Universal Cycle Instructions.
Findings Of Fact Findings of Fact 1 through 29 were stipulated to by the parties and appeared in their Prehearing Stipulation. Each Petitioner is a Florida limited partnership with its address at 700 West Morse Boulevard, Winter Park, Florida 32789. Each is in the business of providing affordable rental housing units in the State of Florida. Florida Housing is a public corporation, with its address at 227 North Bronough Street, Suite 5000, Tallahassee, Florida 32310, organized to provide and promote the public welfare by administering the governmental function of financing and refinancing housing and related facilities in the State of Florida. Background Florida Housing administers various affordable housing programs, including the following: Housing Credit (HC) Program pursuant to section 42 of the Internal Revenue Code and section 420.5099, Fla. Stat., under which Florida Housing is designated as the Housing Credit agency for the state of Florida within the meaning of section 42(h)(7)(A) of the Internal Revenue Code, and Florida Administrative Code Rule 67-48, F.A.C.; and HOME Investments Partnerships (HOME) Program pursuant to section 420.5089, and Rule 67-48. The 2011 Universal Cycle Application, through which affordable housing developers apply for funding under the above- described affordable housing programs administered by Florida Housing, together with Instructions and Forms, comprise the Universal Application Package or UA1016 (Rev. 2-11), adopted and incorporated by Florida Administrative Code Rule 67-48.004(1)(a). Because the demand for HC and HOME funding exceeds that which is available under the HC program and HOME program, respectively, qualified affordable housing developments must compete for this funding. To assess the relative merits of proposed developments, Florida Housing has established a competitive application process known as the Universal Cycle pursuant to Florida Administrative Code Rule 67-48. Specifically, Florida Housing's application process for the 2011 Universal Cycle, as set forth in Rule 67-48.001 through 67-48.005, involves the following: The publication and adoption by rule of a "Universal Application Package," which applicants use to apply for funding under the HC and HOME Programs administered by Florida Housing; The completion and submission of applications by developers; Florida Housing's preliminary scoring of applications (Preliminary Scoring Summary); An initial round of administrative challenges in which an applicant may take issue with Florida Housing's scoring of another application by filing a Notice of Possible Scoring Error ("NOPSE"); Florida Housing's consideration of the NOPSEs submitted, with notice (NOPSE scoring summary) to applicants of any resulting change in their preliminary scores; An opportunity for the applicant to submit additional materials to Florida Housing to "cure" any items for which the applicant was deemed to have failed to satisfy threshold or received less than the maximum score; A second round of administrative challenges whereby an applicant may raise scoring issues arising from another applicant's cure materials by filing a Notice of Alleged Deficiency ("NOAD"); Florida Housing's consideration of the Cures and NOADs submitted, with notice (final scoring summary) to applicants of any resulting change in their scores; An opportunity for applicants to challenge, by informal or formal administrative proceedings, Florida Housing's evaluation of any item in their own application for which the applicant was deemed to have failed to satisfy threshold or received less than the maximum score; Final scores, ranking of applications, and award of funding to successful applicants, including those who successfully appeal the adverse scoring of their application; and An opportunity for applicants to challenge, by informal or formal administrative proceedings, Florida Housing's final scoring and ranking of competing applications where such scoring and ranking resulted in a denial of Florida Housing funding to the challenging applicant. Petitioners timely submitted their two applications for financing in Florida Housing's 2011 Universal Cycle. In Application No. 2011-236C (DOAH Case No. 12-1615), Petitioner Urban Edge Family, Ltd., applied for $1.46 million in annual federal tax credits to help finance the development of its project, a 64-unit multi-family apartment complex in Pinellas County, Florida, known as Urban Edge--Phase II. In Application No. 2011-235C (DOAH Case No. 12-1616), Petitioner Urban Edge Apartments, Ltd., applied for $1.66 million in annual federal tax credits to help finance the development of a second project, an 80-unit multi-family apartment complex in Pinellas County, Florida, known as Urban Edge Apartments. For both applications, Petitioners initially submitted for Proximity Tie-Breaker Points medical facility coordinates purporting to be an entrance to Bayfront Medical Center in Pinellas County, Florida. Petitioners' applications were initially awarded the full 4.0 Proximity Tie-Breaker Points for proximity to Bayfront Medical Center. Subsequently, competing applicants submitted NOPSEs asserting that the coordinates submitted for Bayfront Medical Center were, in fact, located at the nearby All Children's Hospital (the "Hospital"). In response to the NOPSEs filed against Petitioners' applications, Florida Housing rescinded its preliminary scoring with regard to the medical facility and awarded Petitioners zero points for proximity to a medical facility. Petitioners subsequently submitted Cures to their applications providing different medical facility coordinates, this time for the Hospital emergency department and asserting that the emergency room of the Hospital met Florida Housing's definition of "medical facility" for purposes of awarding Proximity Tie-Breaker Points. In response to the submitted Cures, competing applications filed NOADs disputing the status of the Hospital as a medical facility under the definition included in the 2011 Universal Cycle Instructions. After review of the submitted Cures and NOADs regarding the status of the Hospital emergency room as a "medical facility," Florida Housing again rejected the Hospital emergency room as a medical facility and awarded zero Proximity Tie-Breaker Points to both applications for this service. Urban Edge (235C) Application Status and Scoring The Urban Edge application (2011-235C) meets all threshold requirements for consideration for funding. The Urban Edge application (2011-235C) is entitled to 79.00 points (excluding all Tie-Breaker points). The Urban Edge application (2011-235C) is entitled to 6.00 Ability to Proceed Tie-Breaker Points. The coordinates provided by Urban Edge on the Exhibit 25 (Surveyor Certification form), submitted with its Cure for a medical facility, represent a point on the doorway threshold of an exterior entrance that provides direct public access to the emergency department at the Hospital. The coordinates provided by Urban Edge on the Exhibit 25 submitted with its Cure for the Tie Breaker Measurement Point (TBMP) were unchanged from its original TBMP, and they represent a point that is on the Urban Edge development site. The coordinates provided by Urban Edge for a medical facility in the Exhibit 25 submitted with its Cure represent a point that is within .25 miles of the Urban Edge TBMP. If the medical facility designated by Urban Edge on the Exhibit 25 submitted with its Cure qualifies as a medical facility under Florida Housing's rules, then Urban Edge is entitled to 4.0 Proximity Tie-Breaker Points for a medical facility; and Urban Edge would be entitled to a total of 34.75 Proximity Tie-Breaker Points. If Urban Edge had relied on the alleged location of the exterior entrance to Bayfront Medical Center as stated in NOPSE No. 519, then it would have received only 3.5 Proximity Tie-Breaker Points for a medical facility, for a total Proximity Tie-Breaker Point score of 34.25. Urban Edge II (236C) Application Status and Scoring The Urban Edge II application (2011-236C) meets all threshold requirements for consideration for funding. The Urban Edge II application (2011-236C) is entitled to 79.00 points (excluding all Tie-Breaker points). The Urban Edge II application (2011-236C) is entitled to 6.00 Ability to Proceed Tie-Breaker Points. The coordinates provided by Urban Edge II on the Exhibit 25 submitted with its Cure for a medical facility represent a point on the doorway threshold of an exterior entrance that provides direct public access to the emergency department at the Hospital. The coordinates provided by Urban Edge II on the Exhibit 25 submitted with its Cure for the TBMP was unchanged from its original TBMP, and they represent a point that is on the Urban Edge II development site. The coordinates provided by Urban Edge II for a medical facility on the Exhibit 25 submitted with its Cure represent a point that is within .25 miles of the Urban Edge II TBMP. If the medical facility designated by Urban Edge II on the Exhibit 25 submitted with its Cure qualifies as a medical facility under Florida Housing's rules, then Urban Edge II is entitled to 4.0 Proximity Tie-Breaker Points for a medical facility, and Urban Edge II would be entitled to a total of 34.00 Proximity Tie-Breaker Points. If Urban Edge II had relied on the alleged location of the exterior entrance to Bayfront Medical Center as stated in NOPSE No. 515, then it would have received only 3.5 Proximity Tie-Breaker Points for a medical facility, for a total Proximity Tie-Breaker Point score of 33.50. Urban Edge II timely filed its Petition contesting Florida Housing's scoring of its application, whereupon Florida Housing forwarded the matter to the Division of Administrative Hearings. The following Findings of Fact are based on testimony and documentary evidence presented at final hearing: Florida Housing defines medical facilities, for purposes of determining Proximity Tie Breaker Points, as "[A] hospital, state or county health clinic or walk-in clinic (that does not require a prior appointment) that provides general medical treatment or general surgical services at least five days per week to any physically sick or injured person." (This definition is found on page 34 of the Florida Housing Instructions portion of the application.)1/ All Children's Hospital is licensed by the State of Florida as a Class II hospital with 162 acute care beds, 35 neonatal intensive care unit (NICU) Level 2 beds, and 62 NICU Level 3 beds. The Hospital is classified as a specialty hospital for children and is known as a pediatric health care facility. Emergency services at the Hospital are provided through an on-site emergency department. The emergency department, per the federal Emergency Medical Treatment and Active Labor Act (EMTALA), must provide emergency services to any person, regardless of age, who presents in an emergent state. The emergency department at the Hospital is within .25 miles of the sites proposed for Petitioners' projects. Florida Housing contends that the emergency department of the Hospital is not a medical facility as defined by Florida Housing's rules. Because the emergency department is part of a specialty hospital which serves only children, Florida Housing takes the position that the medical facility selected by Petitioners does not provide services to "any" physically sick or injured persons. Florida Housing's director, Mr. Auger, stated that no distinction is made between a hospital and its emergency room, i.e., if a hospital holds a specialty license, then the entire hospital is considered a specialty hospital. He did not opine as to the impact of EMTALA on that statement. Mr. Auger did, however, address the correlative situation of a specialty grocery store (as grocery stores are another place which can provide tie-breaker points to an applicant in close proximity). If an ethnic grocery was located near a proposed project, it could be counted for proximity points if it also met all the rule requirements for a grocery store, e.g., sufficient square footage, appropriate air conditioning, necessary food products, etc. Presumably, a specialty hospital could also satisfy the proximity requirements, so long as it met all other requirements for a medical facility. Petitioners provided a letter from the Hospital in its Cure documents which stated in full: "This letter confirms that the Emergency Center at All Children's Hospital is open 24/7 and will treat all patients in accordance with EMTALA." The letter was written by Tim Strouse, the Hospital's vice-president of facilities and support services. Mr. Strouse is not a physician. Mr. Strouse did not know the Hospital's protocol for handling non-pediatric patients in its emergency center. He was of the opinion that generally such a patient would be sent across the street to Bayfront Medical Center. However, he did believe that essentially all services offered in the Hospital were available in the emergency center. Two expert witnesses testified, in the abstract, concerning the process for treating patients who present to an emergency room.2/ It is clear that once a person appears at a specialty hospital's emergency room, there is an initial triage performed to determine the level of treatment needed. If the person requires medical care to stabilize his or her condition, such care must be provided by the emergency room under EMTALA. It does not matter whether the person would be a candidate for admission to the specialty hospital after stabilization; any and all care the hospital is authorized to provide can be given to that patient in order to resolve the emergency situation. There was no testimony provided by a physician or other health care worker from the Hospital concerning how it handled emergency center patients. Absent such testimony, it is not possible to ascertain exactly how the Hospital complies with EMTALA requirements. If, as Mr. Strouse believed, an adult patient would merely be transferred 130 feet across the street to Bayfront Medical Center without further treatment, then there would not seem to be any provision of medical services. However, if the medical experts who testified were correct and stabilization of patients involved the provision of medical services, then the Hospital may be a medical facility under the Florida Housing rules. The Hospital representative was provided several scenarios involving the treatment of different kinds of patients presenting with various and sundry ailments. In each case, the representative, who was not a physician, attempted to suggest how the Hospital might treat those individuals. The representative could not opine, however, as to whether general medical treatment would be provided in any of the scenarios. From the evidence presented, the Hospital provides an extensive array of services to its pediatric patients, including, but not limited to: cardiology, cardiovascular surgery, colon and rectal surgery, endocrinology, gastroenterology, hematology, internal medicine, nephrology, neurology, obstetrics, ophthalmology, orthopedics, plastic surgery, pulmonary medicine, radiology, thoracic surgery, and urology. It must be presumed that those same services could theoretically be provided in the emergency department as well.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a final order be entered by Respondent, Florida Housing Finance Corporation, finding that Petitioners, Urban Edge Family, Ltd., and Urban Edge Apartment, Ltd's, applications satisfy the requirements for all four Proximity Tie-Breaker Points relating to proximity to a medical facility. DONE AND ENTERED this 9th day of July, 2012, in Tallahassee, Leon County, Florida. S R. BRUCE MCKIBBEN 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 9th day of July, 2012.
