The Issue The issue in this case is whether Respondents committed a housing discriminatory practice in violation of Chapter 760, Florida Statutes (2008).
Findings Of Fact On or about January 20, 2009, the Petitioner filed a Housing Discrimination Complaint with the Florida Commission on Human Relations (Commission). Pursuant to the Commission's procedure, an investigation of the matter was completed that resulted in a Notice of Determination of No Cause. Essentially, the Commission found that based upon the allegations raised by the Petitioner there was no cause from which it could be found the Respondents had violated the Florida Fair Housing Act. Thereafter, the Petitioner elected to file a Petition for Relief to challenge the determination and to seek relief against the Respondents for the alleged violation. The Commission then forwarded the matter to the Division of Administrative Hearings for formal proceedings. The Division of Administrative Hearings issued a Notice of Hearing that was provided to all parties at their addresses of record. The postal service did not return the notices as undelivered. It is presumed the parties received notice of the hearing date, time, and location. No party appeared at the hearing.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Florida Commission on Human Relations enter a Final Order dismissing the Petitioner's claim of discrimination. DONE AND ENTERED this 6th day of August, 2009, in Tallahassee, Leon County, Florida. J. D. 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 6th day of August, 2009. COPIES FURNISHED: Leaford Green Danett Green 3758 Southwest Findlay Street Port St. Lucie, Florida 34953 Paula Adams Post Office Box 1665 Fort Pierce, Florida 34950 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
The Issue Whether Petitioner was the subject of unlawful coercion, intimidation, threats, or interference in the exercise of her rights in connection with Respondent?s regulatory actions regarding rental property owned by Petitioner, in violation of section 818 of Title VIII of the Civil Rights Act of 1968, as amended by the Fair Housing Act of 1988 and the Florida Fair Housing Act, chapter 760, Part II, Florida Statutes (2011).
Findings Of Fact Petitioner, an African-American woman, owns and manages a residential tri-plex rental unit located at 302 Dubs Drive, Holly Hill, Florida. Dubs Drive is zoned R-2 single-family residential. Petitioner?s tri-plex was constructed in 1955, and is grandfathered as a non-conforming use. The other houses on Dubs Drive are newer, and are all single-family homes. Petitioner purchased the tri-plex in 1998. At the time of her purchase, the tri-plex consisted of a single-story building with 3 apartments and two garages, and was configured, from south to north, as a two-bedroom apartment, a two-bedroom apartment, a one-bedroom apartment, a garage with a washer/dryer connection, and a garage with a toilet. The garages had drywall interiors, except that the ceilings lacked drywall. After she purchased the tri-plex, Petitioner hired Arthur Kowitz, a realtor, to manage the property for her. He performed management services from the time of the purchase until 2001. Mr. Kowitz is white. In 2001, Petitioner retained All-Florida Realtors to manage the property. All-Florida performed management services from 2001 to 2004. All-Florida is a white-owned company. In 2004, Petitioner retained John Benzette to manage the property. Mr. Benzette performed management services from 2004 through November 2007. Mr. Benzette is white. In 2004, Petitioner applied to Respondent for a permit to install an electric meter at the tri-plex. The purpose of the meter was not to serve the apartments -- each of which already had meters by which the tenants individually received and paid for service -- but was a “house meter” or “landlord?s meter” for exterior lighting, garage lighting and outlets, and other uses common to the tri-plex. The permit was issued, and the meter was installed. During one of the 2005 hurricanes that hit the area, the meter was knocked off of the unit by falling debris. It was not reinstalled at that time. The property managers from 1998 through 2007 were responsible for general maintenance and repair activities. Those types of activities did not require building permits. From the time she purchased the tri-plex in 1998, until 2008, the unit was not subject to any formal code-enforcement actions by Respondent. Starting in December, 2007, Petitioner began managing the tri-plex on her own. One of the first activities she performed as owner/manager was the conversion of the garage on the northern end of the building -- separated from the apartments by the other garage -- to a living space. That was accomplished by removing the garage door, constructing a block wall with a window and exterior door, completing interior drywall work, and installing a shower. Petitioner did not apply for or receive a building permit for the work. As part of the construction, Petitioner had the electric meter that was knocked off in 2005 renovated and reinstalled onto the unit. When Petitioner requested service from Florida Power & Light, Florida Power & Light contacted Respondent to confirm a legal connection. Respondent sent employees Mark Ballard and Tim Harbuck to the tri-plex. At that time, it was determined that Petitioner had performed construction without a building permit. Respondent?s employees initially thought the new living space was to be rented as a fourth apartment, an act that would have constituted an unallowable expansion of the non- conforming use of the property. Their belief was not unreasonable, as the configuration of the converted garage was conducive to its being used as a separate apartment, and since Petitioner subsequently placed a “For Rent” sign on the unit, despite the fact that she was living in apartment #3 at the time. However, Petitioner has denied that the rental of the converted garage as a separate unit was her intent, but that the converted garage was intended as an added room for apartment #3. Regardless of whether the conversion of the garage was intended to result in a separate apartment, the construction required a building permit. As a result of the determination that the construction was not permitted, the meter was removed on February 8, 2008. The requirement that the meter be removed, despite the 2004 permit, was not related to Petitioner?s race, but was related to the unauthorized construction and intended use of the converted garage. On April 25, 2008, Respondent sent Petitioner a Notice to Appear at a hearing before a special magistrate. The notice provided that the purpose of the hearing was the “violation of City Ordinance Building Permit Required.” The hearing was set for May 14, 2008. Petitioner asserted that she called the telephone number printed on the notice to ascertain the purpose of the May 14, 2008, hearing. She alleged that she was told by an unnamed city employee that the hearing was to be held regarding issues pertaining to her rental license. The evidence of the call was entirely hearsay, and was not corroborated by any non- hearsay evidence. Regardless of the substance of the telephone call, the notice plainly stated that the purpose of the hearing was related to a required building permit. The hearing was held as scheduled on May 14, 2008. At the hearing, Petitioner was advised that the subject of the hearing was the unpermitted construction at the Dubs Drive location. Petitioner, claiming to have had no knowledge of the subject of the hearing, requested a continuance to retain an attorney to represent her. The request was denied. At the hearing, it was determined that, at a minimum, Petitioner removed the garage door, blocked up the front of the garage and installed a door and window in its place to convert it to living space, and installed a shower. On May 22, 2008, the special magistrate entered an Order of Non-Compliance in which he concluded that Petitioner violated the Holly Hill Zoning Ordinance requiring a building permit for the work done on the property, required Petitioner to obtain a building permit, and imposed an administrative fine of $250.00. If the corrective measures were not taken, or the fine was not paid, the Order authorized an additional penalty of $150.00 per day, and authorized Respondent to place a lien on the Dubs Drive location. Petitioner was warned that she was not to use the renovated garage as a separate dwelling unit, but could only use it as an addition to apartment #3. The action by Respondent to enforce its building code was entirely appropriate, and was undertaken with all due process rights having been afforded to Petitioner. There was no evidence presented to support a finding that Petitioner?s race had anything to do with Respondent?s reaction to Petitioner?s unpermitted construction, or that Respondent failed to enforce its building code, including permit requirements, against similarly-situated property owners who were not members of Petitioner?s protected class. Petitioner paid the administrative fine on June 2, 2008, and received the after-the-fact building permit on June 10, 2008. On September 5, 2008, Respondent placed a lien on the Dubs Drive location based on its mistaken belief that Petitioner had failed to pay the $250.00 administrative fine. The notice of lien letter was received by Petitioner on November 18, 2008. Petitioner advised Respondent that she had paid the fine. Ms. Sue Meeks confirmed that the fine was paid, and Respondent promptly recorded a satisfaction of lien. The evidence indicates that the decision to record the lien was a bureaucratic error that was immediately corrected. There was no evidence presented to support a finding that Petitioner?s race was Respondent?s motive for recording the lien. A business tax receipt is required for each of the three apartments at the Dubs Drive location in order for Petitioner to engage in the business of real estate rental. Authorization for the business tax receipt was adopted by ordinance by Respondent in July, 2000, and is applicable to all rental units in the city of the type owned by Petitioner. Prior to July 2000, Respondent did not require an owner of a small rental location to obtain a business tax receipt. The business tax receipt ordinance required Respondent to perform annual inspections of businesses within its municipal boundaries. The inspections were started in 2000 or 2001. Business tax receipts are issued for a term from October 1 to September 30 of each year. If a business tax receipt is not renewed on time, Respondent is authorized to assess a 25 percent penalty, plus additional filing fees. For 2008-2009, Petitioner timely paid the business tax receipts for apartment Nos. 1 and 2. The tax was $45.00 for each apartment. Petitioner failed to pay the business tax receipt for apartment #3 until March 2009, after the renewal date had passed. Therefore, a penalty and additional filing fees were assessed which raised the business tax receipt fee for that apartment to $70.00. Petitioner alleged that Respondent “overcharged” her for the apartment #3 business tax receipt, which she construed as evidence of a pattern of discrimination. The evidence demonstrates that the $70.00 charge was the result of Petitioner?s failure to timely renew, and was not the result of discrimination based on her race. There was no evidence presented to support a finding that Petitioner?s race had anything to do with Respondent?s assessment of late penalties and fees, or that Respondent failed to assess such late penalties and fees against similarly-situated rental apartment owners who were not members of Petitioner?s protected class. On or about February 6, 2009, Respondent issued a violation notice alleging that Petitioner failed to renew her business tax receipt for apartment #1 and #2. The notice was posted on the doors of the apartments on February 10, 2009. The notice allowed three days to correct the violation, a period that had already passed when the notice was received. Petitioner had already paid the business tax receipt, and went to city hall to inquire about the violation notice. She was advised that her check, identified by Petitioner as check #486, had not been received. Petitioner went to Bank of America to stop payment on check #486, for which a banking fee of $30.00 was assessed. Upon her return to city hall, Petitioner was advised that a search had resulted in the discovery of check #486 on a city employee?s desk. It had not been cashed. Petitioner wrote a replacement check. Respondent credited Petitioner?s utility bill for $30.00 to reimburse her for the Bank of America stop-payment charge and the matter was resolved without further ado. Petitioner alleged that the incident was “harassment,” which she construed as further evidence of discrimination. To the contrary, the evidence demonstrates that the violation notice was a minor bureaucratic error that was promptly corrected, and for which Petitioner was made financially whole. There is no evidence in the record that the incident was the result of discrimination based on Petitioner?s race. On February 19, 2009, Petitioner wrote Respondent to express her belief that she was being overcharged for water. She had a single meter to serve the Dubs Drive tri-plex, but was being charged for three connections. In fact, Petitioner had three apartments. In such cases, Respondent bills for each unit served by a single “master meter.” The minimum bill per apartment includes 2000 gallons of water per month, with additional usage added as an additional charge. Respondent billed for three connections at the Dubs Drive location since at least 1997, prior to Petitioner?s purchase of the tri-plex. Petitioner inquired whether she could have separate meters installed for each apartment, rather than having minimum and total bills determined by the “master meter.” Respondent would not allow separate meters since the Dubs Drive tri-plex was a non-conforming use in a single-family zoned area, and the installation of separate meters would “enhance the non- conformity.” Respondent?s approach to billing for water in multi- family locations accounts for the demand created by three families versus one family. The evidence demonstrates that Respondent bills all multi-unit complexes in a manner to account for the demand of multiple family consumption on its water facilities. There is no evidence in the record that Respondent?s billing practice for water consumption was applied to Petitioner differently from any other multi-family facilities, or was the result of discrimination based on Petitioner?s race. On or about March 3, 2009, as a result of an annual inspection conducted as part of the business tax receipt process, Respondent cited Petitioner for several deficiencies at the Dubs Drive tri-plex, including a lack of smoke alarms, some windows that would not open, and a lack of GFI (ground-fault interrupter) electrical outlets at one location in apartment #1, and two locations in apartment #2. GFI outlets are commonly known to prevent shocks, and are required at locations where the outlets may be exposed to water, e.g. kitchens and bathrooms. Petitioner installed the GFI outlets. There was no other sanction or penalty. There is no evidence in the record that the requirement that Petitioner install a reasonable and necessary safety feature in apartments being rented to others was the result of discrimination based on Petitioner?s race. On or about March 24, 2009, during the follow-up compliance inspection of the tri-plex, one of Petitioner?s tenants advised the inspector that Petitioner had been living in the converted garage for two months, and was receiving mail in “mailbox #4” during that period. The use of the converted garage as a separate living unit would be a violation of Respondent?s zoning ordinance regarding limitations on the expansion of a non-conforming use, and would have violated the special magistrate?s Order entered at the May 14, 2008, hearing. As a result, Respondent issued violation notices to Petitioner on March 24, 2009, and March 27, 2009, each of which concerned the use of the converted garage as a separate living unit. The March 27, 2009, notice indicated that Petitioner and Respondent were “working to resolve” the issue. On March 31, 2009, Respondent provided Petitioner with a letter resolving the separate living unit issue that stated: This letter is to inform you of the requirements of Compliance in reference to 302 Dubs Ave. Your triplex must not be occupied by more than 3 separate families. The new addition on the north end of the building can be used in conjunction with #3, [b]ut can not be used as a separate unit. Mailbox #4 must be taken down within 45 Days of this date. (March 31, 2009) The letter contained nothing more than a straight-forward recitation of the terms and conditions applicable to the non- conforming residential structure. Respondent imposed no penalties or sanctions. There is no evidence to suggest that Respondent imposed terms or conditions on the use of the tri- plex different from any other similarly-situated non-conforming structure. There is no evidence in the record that Respondent?s response to the tenant?s statement that Petitioner was using the converted garage as a fourth apartment was either disproportionate under the circumstances, or was the result of discrimination based on Petitioner?s race. On April 30, 2009, the tenants of apartment #2 wrote to Petitioner with a long list of complaints regarding the conditions at the apartment that, on their face, were very serious, and which included structural, electrical, plumbing, and safety issues. The couple that lived in the apartment was white. The fact that the tenants were white does not minimize the fact that their concerns were legitimate. Having received no response to their complaints, the tenants called Respondent about the living conditions. In accordance with Respondent?s routine practice regarding complaints, Ms. Meeks was dispatched to inspect the property. Her inspection of apartment #2 confirmed the tenant complaints. Ms. Meeks also inspected apartment #1 at the request of the tenants of that apartment, and noted problems with “the bottom of the walls pealing [sic.] off and has some kind of bugs that are biting the children that live there.” The tenants also provided Ms. Meeks with a list of dates on which they alleged Petitioner had been staying in the converted garage which, if true, would have indicated that Petitioner used the addition as a separate living unit for more than 50 days over a three-month period. Respondent sent Petitioner a letter detailing the problems observed during the inspection, and advising Petitioner that her issues would be taken up at a hearing before the Special Master on July 8, 2009. The letter was received by Petitioner on June 15, 2009. The time between the letter and the scheduled hearing was ample time for Petitioner to correct the problems. On June 24, 2009, Respondent served Petitioner with a Notice to Appear at the July 8, 2009, hearing. On June 25, 2009, and June 29, 2009, Respondent obtained written statements from the tenants of apartment #2 detailing the problems that they had encountered with their leased apartment. Their statements were consistent with their earlier descriptions and the results of the inspection. On July 7, 2009, Petitioner requested a continuance of the July 8, 2009, hearing due to the death of her father. The request was granted by notice dated July 15, 2009, and the hearing was continued to August 12, 2009. Respondent was directed to “bring proof of her father?s passing” to the August hearing. On July 27, 2009, Respondent reissued a Notice to Appear for the August 12, 2009, hearing. On August 12, 2009, a hearing was convened before the special magistrate. Petitioner was represented by counsel. At the hearing it was determined that the back door of apartment #2 had been replaced to the tenant?s satisfaction, though Petitioner failed to obtain a building permit for the same, and that the electrical issue with the GFI outlet and the water heater breaker had been resolved. It was ultimately determined to be in the best interest of all of the parties to have the tri-plex inspected by Respondent, and to reconvene the hearing in September, 2009. Petitioner asserted that the August 12, 2009, hearing was continued because a white tenant had not appeared at the hearing to testify against her. The record does not support that reason. An Order Continuing Case was entered on August 26, 2009. The Order noted that Petitioner had not produced evidence of her father?s death as instructed. On August 27, 2009, Respondent reissued a Notice to Appear for September 9, 2009. On August 18, 2009, Respondent conducted an inspection of the tri-plex. It was determined that some of the deficiencies identified in the June notice had been made, but others had not. The hearing was reconvened on September 9, 2009. Petitioner was represented by counsel. After considerable discussion, it was determined that Petitioner had substantially resolved the issues identified in the June notice, some more recently than others. The special magistrate assessed a $250.00 administrative fine for the initial items of non-compliance resulting in the need to have the hearings, and $300.00 for failure to make repairs within a reasonable period after the initial notice in June. Petitioner also produced a copy of her father?s obituary as proof of his death in July. An Order of Non-Compliance reciting the outcome of the hearing was entered on September 25, 2009. The Order was not appealed. Petitioner stated her belief that the requirement that she provide evidence of her father?s death to substantiate the basis for the July 7, 2009, request for continuance was imposed as a result of harassment and discrimination against her due to her race. Although the requirement that she produce an obituary or the like seems insensitive and unnecessary, there was no evidence that Petitioner?s race was the basis for the request, or that such a requirement was not imposed on all persons seeking a continuance of a code enforcement hearing, regardless of race. On November 4, 2009, the special magistrate, after having received evidence of the completion of the repairs from Respondent, entered an Order of Compliance by which he found all of the deficiencies at the Dubs Drive location had been satisfactorily resolved. Petitioner has alleged that the code enforcement actions taken by Respondent were part of a pattern of harassment and intimidation directed at her because of her race. She argued that her white property managers were not cited for violations, thus establishing evidence of racial bias. While it is true that some of the violations for which Petitioner was cited concerned issues that pre-dated Petitioner?s assumption of management duties in December 2007, e.g., the use of interior- grade doors being used as exterior doors and the lack of GFI outlets, there was no evidence that Respondent ever noticed those deficiencies, or that any tenant had ever complained. The evidence demonstrates that the triggering event that drew the attention of Respondent?s code enforcement section was not Petitioner?s race, but was Petitioner?s unpermitted conversion of the garage into living space. The other triggering event was the complaint filed with Respondent by Petitioner?s tenants that alleged crumbling infrastructure, including the very poor condition of the exterior doors. Both incidents properly resulted in thorough inspections. There was no event at the Dubs Drive location prior to December 2007, that would have resulted in increased scrutiny. Thus, the evidence demonstrates that Respondent?s actions were reasonable and appropriate responses to conditions at the Dubs Drive location that were brought to its attention by the actions of Petitioner and her tenants, conditions for which Respondent would have been remiss had it failed to act. The evidence in this proceeding does not support a finding that Respondent?s actions were taken due to Petitioner?s race. The evidence produced at the hearing contained not a shred of competent, substantial evidence that would support a finding that Respondent took any action regarding the Dubs Drive tri-plex because of Petitioner?s race. Rather, the evidence supports a finding that Respondent was appropriately exercising its police powers to ensure that rental dwelling units within its jurisdiction are safe and sanitary. If anything, Respondent and the special magistrate treated Petitioner with considerable patience, restraint, and leniency given the nature of the non- compliance resulting from the unpermitted renovations, and from the delays in making necessary repairs to the property. Petitioner?s dated signature on the Housing Discrimination Complaint that forms the basis for this proceeding indicates that Petitioner filed her initial complaint of discrimination no earlier than August 31, 2010. However, the HUD Determination gives two dates on which Petitioner supposedly filed her complaint -- August 13, 2010, and September 2, 2009. Given the findings and conclusions herein that Respondent had no racial animus or bias in its actions regarding Petitioner -- going back to the December 2007 date on which Petitioner assumed her property management duties -- it is not necessary to determine which of the dates is accurate. However, to the extent it were to become an issue with regard to the application of the jurisdictional limits established by section 760.34(2), the most persuasive evidence demonstrates that Petitioner filed her Housing Discrimination Complaint on or after August 31, 2010. Ultimate Findings of Fact There was no competent, substantial evidence adduced at the hearing that Respondent took any regulatory, utility billing, or code enforcement action regarding Petitioner, or the Dubs Drive location, in an effort to coerce, intimidate, threaten, or interfere with Petitioner in the exercise of her rights as an owner of rental housing due to Petitioner?s race. Respondent?s actions were, in each instance, a legitimate response to unpermitted building activities, a correct application of Respondent?s ordinances, or a reasonable response to complaints filed by Petitioner?s tenants. At worst, Respondent committed two minor bureaucratic errors that were quickly resolved, and for which Petitioner suffered no loss. There was no evidence that Respondent applied its code enforcement ordinances or policies in its dealings with Petitioner in a manner that was inconsistent with their application to similarly-situated persons who were not members of Petitioner?s protected class. Having found no evidence to demonstrate that Respondent discriminated against Petitioner on the basis of her race, the Petition for Relief should be dismissed.
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 in FCHR No. 2011H0053. DONE AND ENTERED this 22nd day of May, 2012, in Tallahassee, Leon County, Florida. S E. GARY EARLY 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 22nd day of May, 2012.
The Issue The issue in this case is whether Respondent, Center Lake Owner's Association, Inc. ("Center Lake"), discriminated against Petitioner, James Schweim ("Schweim"), on the basis of his purported disability in violation of the Florida Fair Housing Act.
Findings Of Fact Schweim is a white male who at all times material hereto resided at Center Lake. Schweim provided some evidence of his medical condition at final hearing, but did not affirmatively establish a disability, per se. Notwithstanding that fact, a review of the facts will be made concerning the merits of Schweim's claim. Center Lake is the homeowner's association for the Center Lake subdivision located in Manatee County. The association has been in existence since 1986. The subdivision is subject to various deed restrictions as set forth in the Declaration of Covenants, Conditions and Restrictions for Centre1/ Lake, recorded at O.R. Book 1168, Page 1508, in the public records of Manatee County, Florida. Of significance to this proceeding, Section 11 of the deed restrictions is relevant. Section 11, as it will be referred to herein, states in whole: Vehicles. No vehicle of a subdivision resident shall be parked in the subdivision except on a paved driveway, or inside a garage. No vehicle shall at anytime be parked on grass or other vegetation. No trucks or vehicles which are used for commercial purposes, other than those present on business, nor any trailers, may be parked in the subdivision unless inside a garage and concealed from public view. Boats, boat trailers, campers, vans, motorcycles and other recreational vehicles and any vehicle not in operable condition or validly licensed shall be permitted in the subdivision only if parked inside a garage and concealed from public view. No maintenance or repair of any boat or vehicle shall be permitted upon any Lot except within an enclosed garage. Beginning some time in 2004, Schweim and Center Lake commenced a dispute concerning Schweim's alleged violation of the provisions of Section 11. Specifically, Schweim was accused of parking a recreational vehicle (the "RV") on his property in violation of the deed restriction. There is no dispute between the parties that Schweim owns a 23-foot recreational vehicle, which is kept on his property (at 3550 65th Avenue Circle East). As a result of the 2004 dispute, the parties entered into a Settlement Stipulation signed by Center Lake and its attorneys on December 6 and 7, 2004, respectively. Schweim's attorney signed the document on November 24, 2004; Schweim and his wife signed on that same date. The Settlement Stipulation was admitted into evidence at the final hearing. Schweim asserted that the version of the Settlement Stipulation entered into evidence was not the version he signed, but the most persuasive evidence is that it is the same version. Schweim does not agree that all the terms and conditions in the Settlement Stipulation were extant at the time he signed, but he could not produce a copy of any other version of the document for comparison. In the Settlement Stipulation, Schweim agreed to move the RV from his property and not to bring it onto the property except for loading or unloading. In exchange, Center Lake agreed to voluntarily dismiss its then-pending lawsuit against Schweim. Despite the resolution of the aforementioned lawsuit, Schweim did not remove his RV from his property. Instead, Schweim kept the RV on the property and, ultimately, filed a discrimination action against Center Lake because of their efforts to have him remove the RV. That action is the subject of the instant proceeding. Schweim does not dispute that he is keeping the RV on his property in violation of the deed restrictions. Rather, Schweim suggests that he should be allowed to do so on three bases: One, that he is proposing a fence on his property that will cover the RV and make it hidden from view from the street; Two, that there are other residents of the subdivision who are also in violation of the deed restrictions; and, three, that he is disabled and needs the RV parked on his property to accommodate his disability. As to his first reason, Schweim's proposal is simply that, a proposal. There is no evidence that the fence proposed by Schweim would satisfy the requirements of the deed restriction. Further, Center Lake has no confidence, based on its history with Schweim, that he would follow through with the proposal. There is some evidence that other residents in the area appear to be in violation of the deed restrictions. However, there was no evidence presented at final hearing that those residents had refused to move their vehicles upon filing of a complaint. That is, the homeowner's association tends not to take any action unless a homeowner files a formal complaint concerning a violation. In Schweim's case, several complaints were filed as to his RV. There was also some discussion at final hearing as to the appropriate licensure for the RV. Any vehicle not properly licensed is not allowed to be parked in the subdivision based on the deed restrictions. However, Schweim says the license is currently up-to-date and that is no longer an issue. Concerning Schweim's disability, he presented the following facts: At age 23, Schweim suffered a gunshot wound to his abdomen, causing long-term damage; In 1991, Schweim had a ruptured disc; Surgical fusion of his disc was performed in 2002 and again in 2004; In 2009, Schweim underwent a lumbar fusion. As a result of those events, Schweim has what he describes as an acute medical condition limiting his ambulatory abilities. At the final hearing, Schweim negotiated the hearing room slowly and with some difficulty. Judy Schweim, a nurse, testified that she transports Schweim to doctor's appointments and other medical situations. At times, Schweim's back will "go out," and she is responsible for getting him to medical treatment as soon as possible. Schweim produced evidence that he has received a Florida parking permit for disabled persons. The application for the permit indicates his condition as "severe limitation in a person's ability to walk due to an arthritic, neurological, or orthopedic condition." A doctor's order dated May 6, 2004, indicates that it is "medically necessary for [Schweim] to have ready access to a walk-in vehicle to accommodate his disability." An August 19, 2010, memo from Dr. Tally at the Neuro Spinal Associates, P.A., and a September 27, 2010, memo from the Dolphin Medical Group, state essentially the same thing. None of the hearsay documents were sufficient to establish a disability, per se. Schweim says that his disability makes it necessary for him to have the RV parked in his yard so that, when necessary, he can use it to get medical treatment. Schweim says that when his back goes out, he needs a vehicle that he can walk into while standing up. He cannot sit down into an automobile at those times. The incidences of Schweim's debilitating back pain only occur every couple of years. When not experiencing that pain, Schweim is able to drive his red car, described by neighbors as a "hot rod," without any problem. Schweim drove a motorcycle for years, but says he has not driven it for quite some time. Schweim said that an ambulance was not a viable option for him when he has the back pain, because the ambulance will not take him where he needs to go, i.e., straight to a particular doctor, rather than the emergency room. There is no competent evidence to support that contention. Schweim candidly admits that the only time he needs the RV is when he has an episode with his back and that such episodes are few and far between. And while it is true that an episode may occur at any time, there is insufficient evidence to support Schweim's claim that the RV is integral to him receiving prompt and appropriate medical care.
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 Petitioner, James Schweim, in its entirety. DONE AND ENTERED this 7th day of July, 2011, in Tallahassee, Leon County, Florida. 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 7th day of July, 2011.
The Issue Whether Respondent violated Sections 112.3143(3)(a), 112.3143(4), and 112.313(7)(a), Florida Statutes (1993), by committing the acts alleged in the Order Finding Probable Cause and, if so, what penalty is appropriate.
Findings Of Fact All times pertinent to this proceeding, Respondent served as a member of the Mexico Beach Planning and Zoning Board (Zoning Board). Respondent began his service on the Board in mid-April, 1994. In that public position, Respondent was subject to the requirements of Part III, Chapter 112, Florida Statutes, the Code of Ethics for Public Officers and Employees. In late 1993, Respondent contracted with the owners of Toucans Restaurant (Toucans) to build an additional story on the existing building. Toucans is a bar/restaurant located on Highway 98 in Mexico Beach, Florida. The Zoning Board is empowered to make decisions relative to zoning and rezoning matters, including the granting of parking variances. In furtherance of his work for Toucans, Respondent sought a parking variance from the Zoning Board. To this end, Respondent appeared before the Zoning Board on three separate occasions. The last time Respondent appeared before the Zoning Board regarding the parking variance for Toucans was April 19, 1994, shortly after his appointment to the Zoning Board. At that meeting, Respondent was representing Toucans before the Zoning Board and attempting to secure a parking variance for Toucans. At the April 19, 1994 meeting, when Respondent presented the Toucans parking variance issue before the Zoning Board, he participated in the Zoning Board's discussion of the matter. Prior to his participating in the Zoning Board's discussion of the Toucans matter on April 19, 1994, Respondent failed to formally announce his interest in the Toucan project. Respondent failed to file a written memorandum disclosing his interest in the matter prior to the April 19, 1994 meeting. Respondent failed to orally disclose the nature of his interest in the Toucans project at the April 19, 1994 Zoning Board meeting. At its April 19, 1994 meeting, the Zoning Board voted on the Toucans project. Respondent abstained from voting on the Toucans parking variance request at that meeting, but did not file a written memorandum disclosing his interest in the project within fifteen days of the vote. Respondent filed a Memorandum of Voting Conflict with respect to the Toucans parking variance request on May 27, 1994.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Final Order and Public Report be entered by the Florida Commission on Ethics finding that Respondent, Jim McCoullough, violated Sections 112.3143(3)(a), 112.3143(4) and 112.313(7)(a), Florida Statutes (1993), and imposing a civil penalty of $300.00. DONE and ENTERED this 30th day of April 1997, in Tallahassee, Florida. CAROLYN S. HOLIFIELD Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (904) 488-9675 SUMCOM 278-9675 Fax Filing (904) 921-6847 Filed with the Clerk of the Division of Administrative Hearings this 30th day of April 1997. COPIES FURNISHED: Eric Scott, Esquire Department of Legal Affairs The Capitol PL-01 Tallahassee, Florida 32399-1050 Kerrie Stillman Complaint Coordinator Florida Commission on Ethics Post Office Drawer 15709 Tallahassee, Florida 32317-5709 Mr. James Naus 115 Fifth Street Mexico Beach, Florida 32410 Bonnie Williams Executive Director Florida Commission on Ethics Post Office Drawer 15709 Tallahassee, Florida 32317-5709 Phil Claypool General Counsel Florida Commission on Ethics Post Office Drawer 15709 Tallahassee, Florida 32317-5709
