The Issue The issues are whether Respondent, Country Club Village MHP, Inc. (CCV Park), discriminated against Petitioner, Miguel A. Cotrich (Mr. Cotrich), based on his national origin in violation of the Florida Fair Housing Act (the Act), and, if so, the relief to which Mr. Cotrich is entitled.
Findings Of Fact Mr. Cotrich is a Hispanic male,8/ who resided in CCV Park for approximately 29 months. Mr. Cotrich did not own the mobile home or the lot (number 56) on which it was placed; thus, he owed monthly rent to CCV Park and to the owner of the mobile home. Mr. Cotrich moved out of CCV Park in late May or early June 2011.9/ Rocio Harris, an Hispanic woman, who spoke Spanish, was CCV Park's manager during the majority of the time that Mr. Cotrich resided in CCV Park. Ms. Harris was well thought of and did her best as manager, but she did not collect monthly rent payments or enforce park rules uniformly. On June 5, 2009, Mr. Cotrich and Anna Maria Cotrich, his wife, executed a $10,000.00 Promissory Note (Note) to buy the mobile home located at lot 56 in CCV Park. The Note was between the Cotriches and Maria Gonzalez. The Note called for a $1,400.00 down payment and monthly installments of $500.00 beginning on July 1, 2009. Mr. Cotrich created a ledger to record the monthly Note payments he made on the mobile home (Petitioner's Exhibit 2). This ledger reflects he paid the $1,400.00 down payment and a $500.00 payment on January 3, 2009, five months before the Note was executed. Likewise, it also reflects five $500.00 payments for the trailer before the Note was executed. Simply by adding up the figures on Mr. Cotrich's ledger, the total comes to $10,600.00. This is $600.00 in over-payments. Mr. Cotrich did not disclose this overpayment during his testimony. Mr. Cotrich did not possess the title to the mobile home, nor did he produce any credible evidence that he was entitled to it. Mr. Cotrich's testimony contradicts the executed Note and his own written record of the amounts of payments. Neither Mr. Cotrich's testimony nor his ledger is credible. Mr. Cotrich allegedly paid Ms. Harris the monthly Note payments because he did not trust Ms. Gonzalez. Mr. Cotrich did not receive a receipt from Ms. Harris or Ms. Gonzalez for any payments made on the Note. His claim that he was working away from the mobile home and could not get to the office during its office hours to obtain such a receipt is not credible. Further, Mr. Cotrich's testimony that he paid someone other than the Note lender without obtaining a receipt from that recipient is not credible. In January 2011, Debra Hunter became CCV Park's manager following Ms. Harris' death. Ms. Hunter started collecting the rent payments on time and enforcing CCV Park rules. Her actions caused tension among those who were delinquent with their rent and/or not abiding by other park rules. Mr. Cotrich was always in arrears for his lot rent payment while Ms. Hunter was the manager. At some point Mr. Cotrich had one or two dogs (at least one of which was a pit bull dog) in his rented mobile home. CCV Park rules allow for one small (under 20 pounds) dog. Apparently Ms. Harris knew of the dogs, but did not charge Mr. Cotrich for having them. However, beginning in January 2011, when Ms. Hunter became the manager and was aware of the dogs, Mr. Cotrich was charged $16.00 monthly for having the two dogs ($8.00 per pet, per month). Charles Stevens, one of CCV Park's owners, credibly testified that he had a conversation with Mr. Cotrich about the pit bull dog(s). In that conversation, Mr. Stevens advised Mr. Cotrich that mean dogs (including pit bull dogs) were not (and are not) allowed in CCV Park. This was because there were children present, and there were insurance concerns. Mr. Stevens felt he was unable to make Mr. Cotrich understand the need to remove the dog(s). At some point, Mr. Cotrich approached Ms. Hunter and told her he wanted to sell or rent his trailer to his brother, who is Puerto Rican. Ms. Hunter objected to that proposal on the grounds that Mr. Cotrich owed past-due rent. Mr. Cotrich became loud and apparently yelled that Ms. Hunter did not want Puerto Ricans in CCV Park. Ms. Hunter's position to deny Mr. Cotrich's proposed tenant was based on the outstanding balance that Mr. Cotrich had with CCV Park. Following this verbal confrontation, Mr. Cotrich claimed he felt harassed by CCV Park management. Although Mr. Cotrich produced his medical records for hospitalization dates of January 8, January 10, and March 30, 2011,10/ there is nothing therein to substantiate that CCV Park or its management caused his physical circumstances. Mr. Cotrich, upon being discharged from the last hospitalization, went to a rehabilitation/nursing home facility. Mr. Cotrich testified he was not evicted from CCV Park, but he voluntarily left CCV Park in May 2011, because he felt his health was in jeopardy. Mrs. Cotrich completed her move out of CCV Park sometime in June 2011. CCV Park issued monthly receipts for payments it received. For the 29-month period that Mr. Cotrich claimed to reside at CCV Park, only 13 dated receipts were produced. (There were a total of 20 pages of receipts, but some were duplicative.) The receipts offered and accepted in evidence began in July 2009. All but one receipt had a monetary figure in the section "REMINDER OF OUTSTANDING CHARGES" at the bottom of each receipt. Ms. Hunter and Mr. Stevens both testified that CCV Park is 70 percent Hispanic. Mr. Stevens knows the rental market in Kissimmee, and he understands the Hispanic population has a very real presence in Kissimmee. CCV Park is a multi-cultural mobile home park. Since becoming the manager (while Mr. Cotrich lived there and after), Ms. Hunter has increased rental collections, enforced the park rules, and made CCV Park a nice place to live. CCV Park has instituted several after-school programs and activities that have apparently helped raise the children's grade-point averages in school. Mr. Cotrich presented Jess Jusino, his son-in-law, and Ernest Cotrich, his son and care-giver, as witnesses. The undersigned evaluated the testimony presented by these two witnesses and found it to be unpersuasive. Mr. Cotrich did not substantiate his claim of discrimination based on his national origin. The testimony and evidence demonstrate that Mr. Cotrich left CCV Park on his own volition and that he failed to pay rent in a timely manner.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Florida Commission on Human Relations enter a final order dismissing the Petition for Relief filed by Miguel A. Cotrich. DONE AND ENTERED this 28th day of August, 2012, in Tallahassee, Leon County, Florida. S LYNNE A. QUIMBY-PENNOCK 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 28th day of August, 2012.
The Issue Whether Respondent, Cambridge Management Inc., engaged in housing discriminatory practice in violation of the Florida Fair Housing Act, as amended, sections 760.20 through 760.37, Florida Statutes (2010).1/
Findings Of Fact In 2009-2010, Ms. Elizabeth Sherlock and her nine-year-old son, Luke Sherlock, rented a home from Ms. Sheryl Whitaker. The home was located in the Wedgewood II at Pelican Strand located in Collier County, Florida. The lease was from June 1, 2008, until June 1, 2010. Cambridge Management is the Master Association for the condominium association for the Strand properties. Cambridge Management did not rent or lease the home to Ms. Sherlock. Ms. Sherlock testified that the homeowner's association cited her for violations of the homeowner's association covenants, based on her son engaging in normal childhood activities such as climbing trees, archery, playing in the street and the community clubhouse. Ms. Sherlock testified that she was told in April 2010 that her lease would not be renewed, because her son had run across a sand trap on the golf course during a rain storm. According to Ms. Sherlock, Cambridge Management discriminated against her and her son by denying them access to their rented home.2/ Further, Ms. Sherlock testified that her son suffered severe traumatic stress, based on the security officers denying them access to their home. Finally, Ms. Sherlock testified that the decision not to continue renting to her caused her to move from the home and resulted in financial hardship. Ms. Sherlock's Petition for Relief summarily states that Respondents violated the Florida Fair Housing Act through "discriminatory terms, conditions, privileges or services, and facilities." The Petition for Relief does not contain any specific factual allegation against Respondents. The record does not support Ms. Sherlock's testimony that Cambridge Management engaged in any discriminatory practice or that it retaliated against her and her son in violation of the Florida Fair Housing Act. Mr. LeClaire is a security guard for the Wedgewood at Pelican Strand. Mr. LeClaire testified that on June 24, 2010, at approximately 9:00 p.m., he had stopped Ms. Sherlock at the gate because his supervisor had told him that Ms. Sherlock may not be a current resident. After confirming that she was still a current resident, Mr. LeClaire allowed Ms. Sherlock to access her home through the gate. Although Mr. LeClaire's supervisor had told him that Ms. Sherlock may not be a current resident, no one from Cambridge Management had told Mr. LeClaire to deny Ms. Sherlock access to her rented home. Mr. Weaver is also a security guard for the Wedgewood at Pelican Strand. Mr. Weaver testified that on July 2, 2010, at approximately 9:00 p.m., he stopped Ms. Sherlock at the gatehouse to determine whether or not she was a current resident. Mr. Weaver credibly testified that he stopped Ms. Sherlock because he did not recognize her as a resident. After he verified that she was a current resident, Mr. Weaver allowed Ms. Sherlock into the community. Mr. Weaver credibly testified that he delayed her at most three minutes. Mr. Charles Sherlock is Ms. Sherlock's father. Mr. Sherlock resides in Naples, Florida, during the winter. He testified about the close relationship that he enjoys with his grandson Luke. According to Mr. Sherlock, Luke felt that it was his fault that he and Ms. Sherlock had been evicted from Ms. Whitaker's home, and had to move to Minnesota. Mr. Sherlock further testified that he had to pay for Ms. Sherlock's move to Minnesota, and that he would like to be reimbursed for the costs. Ms. Rubele is an officer with Wackenhut Security, and she testified about the Wackenhut Standard Operating Procedure for the Strand, and testified that Wackenhut's contact person for security was Ms. Brandy K. Callahan of Cambridge Property Management. Prior to the final hearing, Ms. Sherlock voluntarily dismissed, with prejudice, her claims against Respondents, Wedgewood at Pelican Strand Neighborhood Association, et al., and Newell Property Management, et al., and voluntarily dismissed Respondent, Sheryl Whitaker.
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 of dismissal of the Petition for Relief. DONE AND ENTERED this 7th day of June, 2011, in Tallahassee, Leon County, Florida. S THOMAS P. CRAPPS 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 June, 2011.
The Issue The issue in this case is whether Respondent, the Department of Environmental Protection, violated the Florida Civil Rights Act of 1992 as alleged in a Petition for Relief filed by Petitioner, Edwin R. Bollinger, with the Florida Commission on Human Relations.
Findings Of Fact Petitioner, Edwin R. Bollinger, is a Caucasian male, born March 18, 1936. At the time of the alleged unlawful employment practice at issue in this case, Mr. Bollinger was 58 to 59 years of age. Mr. Bollinger was employed by the State of Florida from at least 1982 until his termination in May 1995. At all times relevant to this matter, Mr. Bollinger was employed by Respondent, the Department of Environmental Protection (hereinafter referred to as the "Department"), or, prior to its absorption into the Department, the Department of Natural Resources. Prior to July 1994 Mr. Bollinger served as a park officer in the Florida Park Service of the Department. Mr. Bollinger was stationed at Bill Baggs Cape Florida State Recreation Area located in Dade County, Florida. Two other park officers were working with Mr. Bollinger in July 1994: Antonio Sanchez and Kathy Martinez. Effective July 1, 1994, all Florida Park Service officers were reclassified as law enforcement officers and were transferred to the Department's Division of Law Enforcement (hereinafter referred to as the "Division"). The position of park officer was abolished. Colonel Mickey Watson was the Director of the Division at all times relevant to this matter. Captain Carl Nielsen, Mr. Bollinger's immediate supervisor, met with Mr. Bollinger, Ms. Martinez, and Mr. Sanchez on July 1, 1994, to swear them in as law enforcement officers within the Division. Captain Nielsen explained the nature of the new positions to the three officers, gave them a copy of the position description for the positions, and gave them new manuals. In particular, Captain Nielsen explained that the new positions would require the enforcement of the laws and rules that governed the parks on a full-time basis and the devotion of their efforts to full-time law enforcement. On February 3, 1995, Captain Nielsen placed Mr. Bollinger, Ms. Martinez, and Mr. Sanchez on performance improvement plans (hereinafter referred to as "PIPs") because of deficiencies in their performance since their reclassification. Ms. Martinez and Mr. Sanchez successfully completed their PIPs. On May 10, 1995, Mr. Bollinger was dismissed from his position with the Department for failure to perform his duties satisfactorily. The dismissal was recommended by Captain Nielsen and approved by Colonel Watson. Mr. Bollinger was 59 years of age at the time of his dismissal. Colonel Watson, Captain Nielsen, and Mr. Sanchez were in excess of 40 years of age at the time of Mr. Bollinger's dismissal. Ms. Martinez was less than 40 years of age at the time of Mr. Bollinger's dismissal. Mr. Bollinger challenged his dismissal before the Public Employees Relations Commission (hereinafter referred to as "PERC"). On June 22 and 23, 1995, and July 5, 1995, a hearing was conducted by a PERC Hearing Officer. A Recommended Order was entered on August 2, 1995, finding that just cause existed for Mr. Bollinger's dismissal. The Recommended Order included the following conclusion: In conclusion, the Agency has proven by a preponderance of the evidence that Bollinger did not meet his performance standards, after he was informed of the deficiencies, given assistance in improving the deficiencies, and had an amply opportunity to improve his deficiencies. See Croce v. Department of Corrections, 3 FCSR 239 (1988), affirmed, 553 So.2d 1181 (Fla. 4th DCA 1989)(unsatisfactory performance on one or few job duties which are critical factors for the effective functioning of an agency can support discipline for unsatisfactory performance). Thus, Bollinger's unsatisfactory performance of his duties supports just cause for discipline. Page 19, Respondent's Exhibit 1. The Recommended Order was subsequently adopted by PERC by Final Order entered on or about January 23, 1996. The evidence failed to prove that Mr. Bollinger's age played any role in his dismissal by the Department. In June of 1990 Mr. Bollinger underwent extensive surgery on his right shoulder, chest, and neck due to squamous cell carcinoma right parotid gland. Mr. Bollinger returned to work on November 12, 1990. Although the following description of the results of Mr. Bollinger's initial and subsequent surgery was written after Mr. Bollinger's termination from employment with the Department, it adequately describes his condition during the times relevant to this proceeding: This produced a deformity of the chest wall as well as more deformity of the supraclavicular area of the right side of his neck as well as a large scar in that area. The surgery included dissection of the facial nerve which was not completely successful because of the entanglement of the tumor around the nerve. [Mr. Bollinger] was left with a facial nerve palsy. He also complains of some loss of hearing, loss of motion of the shoulder and loss of motion of his neck. Petitioner's Exhibit 11. After returning to work after his surgery, Mr. Bollinger informed his immediate supervisor that he could perform his responsibilities without limitation but requested that he be permitted time to switch his firearm qualification from his right hand to his left hand. He also made informal requests for reduced beach patrol, foot patrol, and water patrol so that he could minimize his exposure to the sun. The evidence failed to prove that these informal requests were not granted. Mr. Bollinger did not inform Captain Nielsen that his physical condition would in any way prevent him from satisfying the PIP imposed on him by Captain Nielsen prior to his dismissal. Mr. Bollinger also did not make any request to the Department for any accommodation for his physical condition other than noted, supra. Despite the consequences of the surgery performed on Mr. Bollinger, he continued to carry out his duties with the Department from 1990 to 1994 when he was discharged for reasons unrelated to his medical condition. The evidence failed to prove that Mr. Bollinger's disability played any role in his dismissal by the Department. The evidence failed to prove that the Department's actions were a pretext for discrimination based upon Mr. Bollinger's age or disability. There was no evidence that the Department's dismissal of Mr. Bollinger was grounded on discriminatory animus or that discriminatory reason motivated the Department in its actions toward Mr. Bollinger.
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 finding that Edwin R. Bollinger failed to prove that the Department of Environmental Protection committed an unlawful employment practice in violation of Section 760.10(1)(a), Florida Statutes (1995), and dismissing, with prejudice, Mr. Bollinger's Petition for Relief. DONE AND ENTERED this 15 day of June, 2000, in Tallahassee, Leon County, Florida. LARRY J. SARTIN 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 15th day of June, 2000. COPIES FURNISHED: Edwin R. Bollinger 6372 Alderwood Plaza Woodbury, Minnesota 55125 Marshall G. Wiseheart, Assistant General Counsel Department of Environmental Protection 3900 Commonwealth Boulevard, Mail Station 35 Tallahassee, Florida 32399-3000 Sharon Moultry, Agency Clerk Florida Commission on Human Relations 325 John Knox Road, Building F Tallahassee, Florida 32303-4149 Dana A. Baird, General Counsel Florida Commission on Human Relations 325 John Knox Road, Building F Tallahassee, Florida 32303-4149
The Issue The issue is whether Respondent is guilty of housing discrimination against Respondent based on her race and disabilities, in violation of the Florida Fair Housing Act, Sections 760.20-760.37, Florida Statutes.
Findings Of Fact Petitioner is African-American, although the record fails to disclose any physical or mental disability. Due to her pending eviction at an apartment complex known as the Tennis Club in Fort Lauderdale, Petitioner visited the Venice Cove apartment complex, also in Fort Lauderdale, in the summer of 2002. Deciding that she liked Venice Cove, Petitioner applied for a one bedroom apartment on September 16, 2002. In accordance with its customary practice, Respondent obtained a credit report and learned that Petitioner owed a utility payment, possibly a cable television box. Respondent advised Petitioner that she would have to satisfy this debt to rent an apartment, and Petitioner did so. At some point, Petitioner decided that she wanted a two bedroom/two bathroom apartment, and Respondent tentatively assigned her a unit of this type, pending final approval of her application to lease. Petitioner changed her preferences for type of apartment several times. Respondent was able to accommodate immediately all but one of these preferences. In early December, Petitioner mentioned to Respondent's representative that she was being evicted from the Tennis Club. This is the first time that Petitioner disclosed any eviction to Respondent. Examining the file, Respondent's representative realized that she had failed to order the more thorough credit report that Respondent had been using since November 2002. This report would reveal evictions, among other things. Respondent's representative ordered the more thorough credit report, which revealed that Respondent had been evicted three times. Respondent's policy precluded renting to a person with this rental history, and Respondent's representative promptly informed Petitioner that she was denying Petitioner's application. There is no evidence whatsoever that Respondent denied Petitioner's application on the basis of Petitioner's race or any disability from which she may suffer.
Recommendation It is RECOMMENDED that the Florida Commission on Human Relations enter a final order dismissing Petitioner's Housing Discrimination Complaint. DONE AND ENTERED this 29th day of October, 2004, in Tallahassee, Leon County, Florida. S ROBERT E. MEALE Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 29th day of October, 2004. COPIES FURNISHED: Cecil Howard, General Counsel Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301 Denise Crawford, Agency Clerk Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301 Elvira Williams 1515 Northwest 2nd Avenue Fort Lauderdale, Florida 33311 Kristine A. Sawyers Law Offices of Lowenhaupt & Sawyers 7765 Southwest 87th Avenue Suite 201 Miami, Florida 33173
The Issue Whether Respondent is liable to Petitioner for discrimination in the sale or rental of housing because of Petitioner’s alleged disability, in violation of the Florida Fair Housing Act.
Findings Of Fact In June 2016, Gaudina and Grand Lifestyle executed a document, entitled “GLC III/LLLP Lease – Basic Rental Agreement or Residential Lease” (lease), in which Gaudina leased from Grand Lifestyle a residence at 3346 East Dale Street, Leesburg, Florida, in the Lakeside Village mobile home park (premises). The lease provided that Gaudina pay to Grand Lifestyle $656.00 per month to lease the premises. The lease further provided that at the end of three consecutive years of living at the premises, Grand Lifestyle would provide Gaudina the option of purchasing the premises for $1,000.00. Gaudina testified that his primary residence is in Colorado, but that he wished to lease the premises so that he had a residence when he visited his wife, who lived nearby in Lake County, Florida. As he did not reside permanently at the premises in Leesburg, Gaudina subleased the premises to another individual, possibly in violation of the lease. That individual reported to Gaudina numerous issues with the premises, which Gaudina testified he brought to the attention of Grand Lifestyle.2/ Both parties testified that they sought various remedies in other courts concerning these issues. The undersigned finds that these issues are not relevant to Gaudina’s allegations concerning discrimination under the Florida FHA. Gaudina testified that he possesses a disability that requires use of an emotional support animal. The only evidence Gaudina submitted in support of this contention was a letter, dated February 24, 2015, from Emilia Ripoll, M.D. (Ripoll), located in Boulder, Colorado, and a “Health Care Provider Pet Accomodation Form,” also from Ripoll. This letter states: Mr. Jan Gaudina is currently my patient and has been under my care since 1998. I am intimately familiar with his history and with the functional limitations imposed by his medical condition. Due to his diagnosis of bladder cancer and bilateral ureter cancer, Jan has certain emotional limitations including stress which may cause his cancer to recur. In order to help alleviate these difficulties, and to enhance his ability to cope and live independently, I have prescribed Jan to obtain his pet for emotional support. The presence of this animal is necessary for the mental health of Jan. The Health Care Accomodation Form prescribed the use of Gaudina’s dog, a golden retriever, as an emotional support animal. Gaudina did not present the testimony of Ripoll or any other health care provider concerning his alleged disability. The letter and form, which are inadmissible hearsay that Gaudina failed to corroborate with admissible non-hearsay evidence, attempt to establish that Gaudina required an emotional support animal to prevent a recurrence of cancer. The undersigned cannot consider these documents to support a finding that Gaudina is disabled and in need of an emotional support animal. See Fla. Admin. Code R. 28-106.213(3).3/ Therefore, the undersigned finds that Gaudina has failed to establish that he suffers from a disability that requires the accommodation of his golden retriever as an emotional support animal. Principe, the owner of Grand Lifestyle, testified that the prospectus for the premises restricted pet ownership to pets that weigh less than 20 pounds. The parties acknowledged that a golden retriever weighs in excess of 20 pounds. Principe testified that, during a telephone conversation, Gaudina asked whether he could bring his golden retriever to the premises, but never mentioned his alleged disability. Principe also testified that he asked Gaudina whether Gaudina’s golden retriever was a trained service dog. Gaudina testified that his golden retriever was not a “service dog,” as defined under section 413.08, Florida Statutes.4/ Principe further testified that Gaudina rarely visited the premises. Gaudina testified that, in total, he visited the premises in Leesburg three or four times over the period of approximately one year. Gaudina presented no credible evidence that he qualifies as a person who is disabled for the purposes of the Florida FHA. Further, there is no competent, persuasive evidence in the record upon which the undersigned could make a finding of discrimination in the sale or rental of housing because of Petitioner’s alleged disability, in violation of the Florida FHA.
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 finding that Petitioner, Jan Gaudina, did not prove that Respondent, Grand Lifestyle Communities III/IV, LLLP, committed discrimination in the sale or rental of housing because of Petitioner’s alleged disability, in violation of the Florida Fair Housing Act, and dismissing his Petition for Relief. DONE AND ENTERED this 18th day of January, 2019, in Tallahassee, Leon County, Florida. S ROBERT J. TELFER III 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 18th day of January, 2019.
The Issue Whether Petitioner was subjected to housing discrimination by Respondent based on Petitioner's race, African-American, in violation of the Florida Fair Housing Act.
Findings Of Fact Petitioner Miguel Johnson is an African-American male and, therefore, belongs to a class of persons protected from discrimination under the Florida Fair Housing Act, Sections 760.20 through 760.37, Florida Statutes (2009). He filed a complaint for housing discrimination against Riviera Towers at 6896 Abbott Avenue in Miami Beach. Respondent Riviera Terrace Apartments (Riviera Terrace) was apparently erroneously named Riviera Towers in the complaint and in the style of this case. Notice of that error was given by the owner, Arie Markowitz, and in the absence of any indication that Riviera Terrace is a corporate entity, Mr. Markowitz is also added as a Respondent. The style has been corrected to reflect these corrections. Riviera Terrace, 6890 Abbott Avenue, Miami Beach, Florida, 33141, is a 20-unit apartment complex. Mr. Johnson thought that the complex has 22 units, but there is no evidence to support his thinking. Contrary to his request, the undersigned has no independent investigative powers and must accept the evidence in the record. According to his records, Mr. Johnson, on March 17, 2009, telephoned a number he saw on a "For Rent" sign at Riviera Terrace. A woman identified as Diana Miteff answered the telephone. Mr. Johnson said Ms. Miteff identified herself as the manager of the complex. The telephone records indicate that the conversation lasted one minute. Mr. Johnson testified that Ms. Miteff told him to call back later. Mr. Johnson telephoned Ms. Miteff again on March 21, 2009, and his records indicate that they talked for 8 minutes. Mr. Johnson testified that Ms. Miteff told him about the security deposit, that the rent for a one bedroom apartment was $900 a month, and that she had some vacant efficiencies. Mr. Johnson testified that a friend of his, Pedro Valdes, lives in the same complex and that together they met with Ms. Miteff the day after Mr. Johnson talked to her on the telephone, and saw a vacant efficiency apartment. According to Mr. Johnson, Ms. Miteff told him, after seeing him, that there were no vacancies. Ayesha Azara, Mr. Johnson's wife, testified that she made another unsuccessful attempt to rent a unit in Riviera Terrace in May 2009. She had no information in March 2008, except to say tht Ms. Miteff claimed to be the manager and told her the building was for elderly people. Pedro Valdes testified that he lives in Riviera Towers and gave his address as 6896 Abbott Avenue. He said that the "For Rent" sign for Riviera Terrace is not always posted in front of the complex. Mr. Markowitz is the owner of Riviera Terrace at 6890 Abbott Avenue. He testified that he is also the manager and that Ms. Miteff is a tenant. He uses her telephone number on the "For Rent" sign because he does not speak Spanish. The apartments are government-subsidized Section 8 housing. The only vacant efficiency in March 2008 was a unit for which he already had a written lease, but the tenant could not move in until after a government-required inspection. He also testified that his tenants are not all Caucasians and not all elderly. Ms. Miteff confirmed that she has been a resident of Riviera Terrace for 20 years. She concedes that she told Mr. Johnson's wife that the people in the complex are very quiet and mostly old people. Mr. Johnson's claim of discrimination based on race is not supported by the evidence, which is contradictory with regard to the name and address of the property, and because there were no vacant apartments at Riviera Terrace in March 2008.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that: The Petition for Relief be dismissed. DONE AND ENTERED this 15th day of October, 2009, in Tallahassee, Leon County, Florida. S ELEANOR M. HUNTER 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 15th day of October, 2009. 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 Louis A. Supraski, Esquire Louis A. Supraski, P.A. 2450 Northeast Miami Gardens Drive 2nd Floor North Miami Beach, Florida 33180 Miguel Johnson 916 West 42nd Street, Apt. 9 Miami Beach, Florida 33140 Miguel Johnson C/O Robert Fox 1172 South Dixie Highway Coral Gables, Florida 33146 Diana Mittles Riviera Terrace Apartments 6896 Abott Avenue Miami Beach, Florida 33141
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 the discriminatory housing practices alleged in Petitioner's amended housing discrimination complaint were committed by Respondents and, if so, what relief should the Florida Commission on Human Relations (Commission) provide Petitioner.
Findings Of Fact Based on the evidence adduced at the final hearing and the record as a whole, the following findings of fact are made: Petitioner is a woman of Native American heritage. The record evidence, however, does not reveal that, at any time material to the instant case, anyone outside of her family, including Respondents, was aware of Petitioner's Native American background; nor does the record evidence establish that Petitioner was ever subjected to derogatory remarks about being of Native American descent. At all times material to the instant case, Petitioner has suffered from health problems that have substantially limited her ability to walk and have required her to use a motorized wheelchair to ambulate. Petitioner is now, and has been at all times material to the instant case, a resident of Kings Manor Estates (Park), a residential community of single-family mobile homes that is located in Davie, Florida. The Park is one of various mobile home communities that Respondent Uniprop Corporation (Uniprop) owns and operates. Like the other residents of the Park, Petitioner owns the mobile home in which she resides and pays rent to Uniprop for the use of the lot on which home is situated. Petitioner's home occupies lot 78 in the Park. As a resident of the Park, Petitioner has use of the Park's common areas and facilities, which include a swimming pool. There has been no showing that Petitioner has been denied access to any of these common areas or facilities due to her handicap. Residents of the Park must comply with the Park's rules and regulations. These rules and regulations reasonably require, among other things, that residents obtain, in addition to any permits they may need from the Town of Davie, the approval of Uniprop (referred to as "design approval") before constructing any improvements on their lots, including wheelchair ramps. To obtain such "design approval," a resident must submit to Park management a completed "design approval" application form and any supporting documentation. The application form provides a space for the resident to provide a "[d]escription, [d]rawing [l]ocation & [s]ize of [the proposed] [a]ddition." Immediately underneath this space on the form is the following pre-printed language: It is the Resident's responsibility to obtain all governmental approvals, to make certain the proposed improvement is suitable for the purpose intended and that the improvement complies with all applicable codes, standards and governmental requirements. Approval by Management of any improvement is limited to considerations of appearance. Resident agrees to have their home improvements built to the specifications listed above and illustrated in the space above and/or attached drawings, exhibits and permits. It is the responsibility of the Park's property manager, with the help of the Park's assistant property manager, to enforce the Park's rules and regulations. The duties of the Park's property manager and assistant property manager (whose work stations are located in the Park's business office) also include collecting rent from the Park's residents and taking appropriate action when residents are delinquent in their rental payments. There is a "drop off box" located outside the Park's business office in which residents can place their rental payments when the office is closed and the Park's property manager and assistant property manager are unavailable. Neither the property manager nor the assistant property manager is authorized to give residents "design approval." Only the Uniprop regional supervisor has such authority. The property manager and assistant property manager merely serve as "conduits" between the resident and the Uniprop regional supervisor in the "design approval" process. They take the completed "design approval" application form from the resident, provide it to the Uniprop regional supervisor, and, after hearing back from the regional supervisor, communicate the regional supervisor's decision to the resident. At all times material to the instant case, Respondent Delores Maddox was the Park's property manager. Ms. Maddox no longer works for Uniprop. Hazel Crain is now, and has been at all times material to the instant case, the Park's assistant property manager. At all times material to the instant case, Milton Rhines was the Uniprop regional supervisor having authority over the activities at the Park. Mr. Rhines was based in Ft. Myers, Florida, on the other side of the state from the Park. Josephine Patricia Silver is now, and has been at all times material to the instant case, employed as a sales consultant for Uniprop. In this capacity, she engages in activities designed to facilitate the sale of mobile homes manufactured by Uniprop (to be placed in the Park and other mobile home communities Uniprop owns and operates). Although her office is located in the Park, she plays no decision-making role in Park management. Notwithstanding that it is not her job responsibility to accept rental payments, she sometimes will do so as a courtesy to Park residents when she is at the Park on weekends or during the evening hours and the business office is closed. Although Ms. Silver and Petitioner do not get along, Ms. Silver has never threatened to "throw away" Petitioner's rental payments; nor has she ever told any of Park's residents that Petitioner was not paying her rent. Ms. Silver, however, has "gossiped" and made derogatory comments about Petitioner, but no showing has been made that Petitioner's handicap, her Native American heritage, or her having exercised any of her rights under Florida's Fair Housing Act played any role in Ms. Silver's having made these comments. In August of 2002, Petitioner mentioned to Ms. Crain about her interest in having a wheelchair ramp constructed on her lot. Ms. Crain suggested to Petitioner that she contact the Town to discuss the feasibility of such a project. Petitioner subsequently telephoned Brian Dillon, the Town's chief structural inspector. Mr. Dillon not only attempted to assist Petitioner in her efforts to obtain a permit from the Town to construct the wheelchair ramp, he also helped her make arrangements to have a boy scout troop construct the ramp for her with donated materials. The Town would not issue Petitioner a permit for the ramp unless and until she obtained the written approval of the Park owner, Uniprop. The ramp was constructed for Petitioner by the boy scouts during a weekend in mid-November 2002, without Petitioner's having first obtained Uniprop's "design approval" or a permit from the Town. Prior to the construction of the ramp, Petitioner had received a "design approval" application form from Ms. Crain and, on or about November 12 or 13, 2002, with Ms. Crain's assistance, had begun the application process. Petitioner, however, did not wait to receive the "design approval" she had applied for from Uniprop before giving the boy scouts the go ahead to start constructing the ramp. After discovering that the ramp had been constructed, Park management attempted to "work" with Petitioner to enable her to complete the paperwork necessary to obtain (belatedly) "design approval" for the ramp. On November 21, 2002, Petitioner submitted to Park management the following note from her physician, James Milne, D.O.: Due to Medical Necessity, my patient Mary Helen Meacham requires use of a motorized wheelchair, and it is necessary for her to have ramp access. If you have any questions, please feel free to call my office. By December 5, 2002, Petitioner had yet to submit the design plans needed to obtain "design approval" for the ramp. Accordingly, on that date, Uniprop's attorney, Ernest Kollra, Esquire, sent Petitioner, by certified mail, a Notice of Violation of Community Covenants, which read as follows: Please be advised the undersigned represents Kings Manor Estates with respect to your tenancy at the Community. This Notice is sent to you pursuant to Florida Statute, Chapter, 723.061, Et Seq. Park Management has advised the undersigned that you are in violation of the following Community Covenants of Kings Manor Estates: 7. Improvements: Before construction of any type is permitted on the homesite or added to a home, the Resident must obtain written permission from Management in the form of a Design Approval. Additional permits may be required by the municipality in which the Community is located. 10. Handicap Access: Any Residents requiring handicap access improvements such as ramps are permitted. All plans for such ramps must be approved by Management and comply with all other Community Covenants and governmental standards. You are in violation of the above Community Covenants, in that you have failed to submit plans to Management prior to the construction of your ramp. Park Management has been apprised by the Town of Davie that permits are required and none was obtained by you prior to construction, in compliance with Town of Davie governmental standards. In order to correct the above violation, you must within seven (7) days from delivery of this Notice, remove the ramp from your homesite. Delivery of the mailed notice is deemed given five (5) days after the date of postmark. If you fail and/or refuse to comply with this Notice, your tenancy will be terminated in accordance with Florida Statute Chapter 723.061.[2] If you have any questions concerning any of the above, you may contact Park Management at . . . . Petitioner did not remove the ramp by the deadline imposed by the December 5, 2002, Notice of Violation of Community Covenants. Park management, however, took no action to terminate her tenancy. After receiving the December 5, 2002, Notice of Violation of Community Covenants, Petitioner stopped making rental payments to Uniprop and, instead, deposited these monies with the Florida Justice Institute to be held in escrow until the controversy concerning the ramp was resolved. In or around mid-January 2003, Park management received from Petitioner corrected design plans for the ramp (that had been prepared by Doug Amos of Doug Amos Construction). On January 15, 2003, Ms. Maddox sent to Mr. Rhines, by facsimile transmission, a copy of these plans. Petitioner was subsequently granted "design approval" for the ramp. It has not been shown that there was any unreasonable or excessive delay involved in the granting of such approval. On February 19, 2003, Ms. Maddox wrote the following letter to the Town's Building Department: Please be advised that MaryHelen Meacham Woods is authorized to have permits issued for site #78 at 12620 SW 6th Street Davie, Florida 33325 for the Installation of a handicapped ramp. Thank you for your consideration in this matter. Following an inspection, the Town, in March 2003, issued a permit for the ramp. Petitioner has had use of the ramp since mid-November 2002 when it was first built (notwithstanding that she did not obtain Uniprop's "design approval" and a permit from the Town until some months later). On or about May 30, 2003, Petitioner authorized the Florida Justice Institute to deliver to Uniprop the rental payments it was holding (at Petitioner's request) in escrow. Uniprop accepted these rental payments when they were delivered. Petitioner has had raw eggs thrown at her wheelchair ramp. She suspects that Ms. Maddox's children were responsible for this vandalism, but there is insufficient record evidence to identify the culprits, much less ascertain their motives. On or about August 31, 2004, at a time when Hurricane Frances was approaching the Florida peninsula from the southeast, Park management sent Petitioner a Notice of Violation of Community Covenants, which read as follows: Pursuant to Florida Statute 723.061 et seq, you are hereby advised that you are in violation of the following Community Covenant(s) of which the Community first became aware on August 30, 2004. SECTION I: HOME AND SITE MAINTENANCE - Eachresident shall keep his/her site and home in a clean and neat condition and free of any fire hazards, there is no storage permitted around or under the home or in screened rooms. ALL items must be stored inside the home or storage shed. Although you have previously been furnished a copy of the Community Covenants of the park, and said Community Covenants are posted in the recreation center and business office, a copy of the rule(s) of which you are in violation is attached to this notice for your convenience. Specifically, you are in violation of the above Community Covenant(s) in that Your home, trim and utility shed are dirty, there is growth in the gutters and there is a window air conditioner on the home. In order to correct the above violation of the Community Covenant(s) you must Wash your home, trim and utility shed, paint with colors approved by management, clean the growth from the gutters and remove the window air conditioner within seven (7) days from delivery date of this letter. If you fail and/or refuse to correct the violations of the Community Covenant(s) in the manner listed above, the park will pursue all its rights and remedies pursuant to 723.061 et seq. PLEASE GOVERN YOURSELF ACCORDINGLY It has not been shown that Park management took this action to retaliate against Petitioner for having requested permission to construct a wheelchair ramp on her lot or that such action was motivated by any other improper purpose. Park management has not pursued the matter the further. At no time has Park management initiated legal action to terminate Petitioner's tenancy and evict her. The record evidence is insufficient to establish that Respondents, or anyone acting on their behalf, have said or done anything having the purpose or effect of disadvantaging Petitioner based on her handicap, her Native American heritage, or her having asked to be allowed to build a wheelchair ramp on her lot.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Commission issue a final order finding that Respondents are not guilty of any "discriminatory housing practice" and dismissing Petitioner's amended housing discrimination complaint based on such finding. DONE AND ENTERED this 5th day of May, 2005, in Tallahassee, Leon County, Florida. S ___ STUART M. LERNER Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 5th day of May, 2005.
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 A Notice to Show Cause issued on May 5, 1989, alleges that Respondent violated Sections 723.031(5) and (6), F.S. by increasing mobile home park lot rentals on January 1, 1987 and on October 1, 1987, and by collecting charges for water, sewer and waste disposal from at least one homeowner when such charges were not disclosed prior to tenancy. If it is determined that those violations occurred, it is necessary to recommend an appropriate penalty and corrective action.
Findings Of Fact At all times relevant to these proceedings, Alfred Herrick has been the park owner of Tan Tara Mobile Home Park, which is located in Melbourne, Florida. Respondent purchased the park in 1980. Eighty-four (84) lots are offered for rent or lease in the Tan Tara Mobile Home Park. Seventy-eight (78) lots are offered to tenants who own their home. Nineteen (19) lots were leased on or after November 1, 1986. The proposed prospectus for the Tan Tara Mobile Home Park was filed with the Division on September 13, 1985. The prospectus was deemed adequate to meet the requirements of Chapter 723, Florida Statutes on December 23, 1983. The prospectus was delivered to homeowners after January 1986. The prospectus review by the Division determines adequacy with Chapter 723, Florida Statutes. The prospectus is not reviewed to determine consistency with rental agreements or disclosures made to homeowners. Park owners are advised that approval of the prospectus by the Division does not relieve the park owner of any requirements under the law. The park owner determines the contents of the prospectus. Homeowners have no input as to the contents of or in the review process of the prospectus. The prospectus for Tan Tara Mobile Home Park contains a number of disclosures, as required by 723.012, F.S., relating to the mobile home park property, and sets out the terms and conditions of the rental agreement between the park owner and individual tenants of mobile home park. Included in the prospectus is the disclosure of all of the charges which may be charged by the park. Paragraph VII. UTILITY AND OTHER SERVICES, provides the following relevant disclosures: Water - Treated drinking water is provided by the City of Melbourne Utilities and is provided to each mobile home site. The charges for this service is [sic] currently included in the tenants' total monthly rental fee. * * * Sewage - Sewage disposal is provided by the City of Melbourne Utilities. The charges for this service is [sic] included in the tenants' monthly rental fee. * * * Waste and trash disposal - The collection of garbage and trash is provided by the City of Melbourne Utilities and is provided for each mobile home. The charge for this service is currently included in the tenants' total monthly rental fee. ... Paragraph VIII. RENT, RENTAL INCREASES AND OTHER CHARGES, provides the following relevant disclosures: The base rent and other charges applicable to your lot are effective January 1, 1985, as reflected in this section. The "base rent" refers to the regular monthly rent established by the Park Owner from time to time. The base rent is subject to annual rent increases effective each January 1st, after ninety (90) days notice from the Park Owner or Management of such increase. * * * "Other charges" refers to "special use fees" and "pass through charges". SPECIAL USE FEES refers to those separately itemized amounts charged in addition to the base rent for those specific items hereinafter set forth. The following special use fees are in effect within the park: Owner reserves the right to charge an Entrance or "Move-in" fee. The present amount charged for this fee in the Park is $1,000.00. Late rental payment fee of $10.00 after the fifth day of the month and $2.00 per day thereafter. Return check charge of $10.00 for each check not honored by the banking institution upon which the check is drawn. An additional charge of $5.00 per month for each and every person over two occupying a mobile home. Extra visitor and/or guest charge of $2.00 per person per day staying more than 15 consecutive days or 30 days total. Lawn maintenance fee, including mowing, edging, and trimming, in the amount of $10.00 for each required maintenance. If it becomes necessary for Management to place the Tenant' s garbage in proper containers, there will be an additional charge of $5.00 assessed to the Tenant for each occurrence. An additional charge of $5.00 per month for a Tenant's washing machine due to the extra water usage caused by the washing machine and also sewerage charges. For the purchaser, there will be a registration fee of $75.00 for investigating any proposed new Tenant into the Park. A new Tenant nonrefundable application fee of $75.00 for investigating any proposed new Tenant into the Park. A garbage and trash "removal" fee not included in the normal garbage or waste removal, of a minimum of $5.00, the exact charge to be determined by Park Management based upon size and weight of such excess refuse so removed by Management. Additional copies of the Prospectus are available at the park Off ice for Tenants requesting same for which there is a charge of $50.00 for each additional copy requested. Pet fee of 5.00 per pet per month. Skirting area clean up minimum fee of $20.00 if tenant fails to do this. * * * PASS THROUGH CHARGES, means those amounts other than special use fees, which are itemized and can be charged separately from the base rent and which represents the mobile home owner's share of cost charged to the park Owner by any State or local government or utility company. These charges will be passed on to the Tenant(s) on a pro rata basis. ("Pro rata basis" means that percentage derived by dividing the number of mobile home spaces leased by a resident by the total number of occupied mobile home spaces in the park.) The pass through charges which may be passed on to the Tenant(s) are as follows: Water charges or increases in same; Sewer charges or increases in same; Waste disposal charges or increases in same; * * * I. Replacement utility costs charged to the Park Owner by State or local government incurred as the result of the actions of any utility company for any utility or other services not provided or available to park residents on the delivery date that replaces, in whole or in part, any utility or other service that is provided or is available to park residents on the delivery date. * * * The above-mentioned pass through charges and costs which are billed by either the State or local governmental entities or utility companies may be passed through to the Tenants after providing at least ninety (90) days advanced written notice to all Tenants. The amount of an increase in pass through charges shall be limited to the increased costs or charges billed to the park owner by the State or local governmental agency or utility company plus any maintenance and administrative costs related to same as is permitted by 723.045, Florida Statutes. * * * (Petitioner's Exhibit #2, pp 11, 61-66, emphasis added) On September 2, 1986, Mr. Herrick gave a notice to all residents within the Tan Tara Mobile Home Park of a "base rent" increase effective January 1, 1987. On June 23, 1987, Mr. Herrick gave a notice of a pass through charge effective October 1, 1987. The notice provided for billing each tenant for the actual usage of water, sewer and waste disposal. In addition, the notice provided that the extra charge for washing machines would be eliminated effective October 1, 1987. Further, the notice indicated that due to the charges for water, sewer and waste disposal becoming effective October 1, there would not be a base rent increase on January 1, 1988. The cost of providing water, sewer and waste disposal, prior to October 1, 1987, had been included in the base rent charged by Tan Tara Mobile Home Park. Mr. Herrick calculated that the portion of base rent for those utilities was $12.50 for each lot. Individual water meters were installed and beginning October 1, 1987, the park owner began assessing all homeowners in the park for water, sewage and garbage based on individual usage. This cost was in addition to the base rent. The park owner also began assessing each homeowner two dollars and fifty cents ($2.50) per month, for meter reading Beginning January 1, 1989, Herrick started deducting from the base rent the $12.50 previously computed for utilities. He then continued to add on the utility charge based on the individuals meter reading. Bonnie and Reginald Charron are residents of Tan Tara Mobile Home Park. They first assumed occupancy in the park in 1982, leasing lot number 18. At that time they were given the park rules and regulations marked Petitioner's Exhibit 6. No disclosures regarding water, sewage, and garbage were made prior to occupancy. On or after August 30, 1984, the Charrons moved to lot 23. No other disclosures were made regarding the homeowners' obligation to pay for water, sewage or garbage. The prospectus was delivered to the Charrons on January 25, 1986. Since assuming occupancy in the park, the Charrons have been continuous residents and have not been evicted pursuant to Section 723.061, F.S. The Charrons paid fifteen dollars ($15.00) extra per month for their three (3) children plus five dollars ($5.00) per month for the washing machine. Mrs. Charron was advised the five dollars ($5.00) per person was required to cover the cost for extra water and sewage being used by those persons. When the Charrons began to pay for water, sewage and garbage based on individual usage) the fifteen dollars ($15.00) per month was never deducted from the base rent. Since October 1, 1987, the Charrons cost for water, sewage, and garbage has exceeded twelve dollars and fifty cents ($12.50) per month. Peggy E. Headley is a resident of Tan Tara Mobile Home Park. She moved into the park in September of 1982. On August 23, 1982, she was given the park rules and regulations marked Petitioner's Exhibit 8. No other disclosures were made regarding her obligation to pay for water, sewage and garbage. The prospectus was delivered to Mrs. Headley on January 25, 1986. Mrs. Eddie Walters is a resident of Tan Tara Mobile Home Park. She moved into the park in May of 1977. At that time, she received a copy of the park rules and regulations. On January 16, 1986, she received the prospectus. Respondent stipulated that water, sewage, and garbage charges have not been collected from homeowners as a matter of custom. It is undisputed that prior to occupancy in the mobile home park, the tenants listed above did not receive a disclosure from the park owner that they would be responsible for paying pass through or pass on charges as defined in the park prospectus. The rules and regulations which were in effect in the park were amended at various times, and at various times provided that water would be included in the base rent and/or that the park owner may charge separately for water. The set of rules and regulations attached to the prospectus provided that the management reserved the right to assess "pass through charges", including for water, on a pro rata basis. "Pro rata basis" is defined in the rules and regulations in the same manner as defined in the prospectus: "...that percentage derived by dividing the number of mobile home spaces leased by a resident by the total number of occupied mobile home spaces in the park." (Petitioner's Exhibit #2, p. 73) Neither the prospectus nor the rules and regulations provide for collection of water or other utilities based on individual usage. Oral lot rental agreements are in effect in Tan Tara Mobile Home Park. No written lot rental agreements have ever been executed between homeowners and the Respondent or prior park owners of Tan Tara. The term of the oral lot rental agreements is one year and begins January 1 of each year. Respondent has not been required by any governmental agency to install individual water meters or assess homeowners based on usage. However, an official with the City of Melbourne Water and Sewage Operations recommended installing individual meters as a means of finding out where the water was going. Herrick had contacted the city regarding high water and sewer bills. After the meters were installed the city noted an average monthly reduction of 173,200 gallons of water at the park. Water charges within the park are determined by reading individual meters which are located on each individual lot within the mobile home park. The meter readings are forwarded to New York, where Mr. Herrick maintains his residence and main business. A bill for water usage is sent from New York to each tenant and the payment is received in the New York office. Water usage records are kept each month by the New York office in order to determine water usage and the appropriate billing rates for water and sewer for individual residents.
Recommendation Based on the foregoing, it is hereby, RECOMMENDED: That a Final Order be entered finding that Alfred Herrick, d/b/a Tan Tara Mobile Home Park violated Section 723.031(5), F.S., and requiring that: Respondent immediately cease assessing homeowner for utilities based on individual usage, and Respondent reimburse to each homeowner all sums collected since October 1, 1987, for utilities over and above that sum that would have been collected under a "pro rata" computation as described in the prospectus and park regulations. This latter computation should credit the homeowners for the $12.50 collected each month from October 1, 1987 until January 1, 1989. DONE AND RECOMMENDED this 15th day of March, 1990, in Tallahassee, Leon County, Florida. MARY CLARK Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904)488-9675 Filed with the Clerk of the Division of Administrative Hearings this 15th day of March, 1990. COPIES FURNISHED: Debra Roberts Asst. General Counsel Dept. of Business Regulation 725 S. Bronough Street Tallahassee, FL 32399-1007 David D. Eastman, Esquire P.O. Box 669 Tallahassee, FL 32302 James Kearney, Director Dept. of Business Regulation The Johns Building 725 S. Bronough Street Tallahassee, FL 32399-1060 Joseph A. Sole General Counsel Dept. of Business Regulation The Johns Building 725 S. Bronough Street Tallahassee, FL 32399-1000 Stephen R. MacNamara Secretary Dept. of Business Regulation The Johns Building 725 S. Bronough St. Tallahassee, FL 32399-1000 =================================================================
