The Issue The issue is whether Respondent violated the Florida Fair Housing Act (“the Act”) by failing to provide Petitioner with a reasonable accommodation.
Findings Of Fact The following Findings of Fact are based on the oral and documentary evidence adduced at the final hearing, matters subject to official recognition, and the entire record in this proceeding. Scottish Highlands is a deed-restricted community in Leesburg, Florida. The Association is responsible for the daily operations and management of Scottish Highlands. Since at least February 16, 2015, Scottish Highlands’ bylaws have provided that “[f]ences and/or continuous hedges are not permitted except along the perimeter of Association property. Approved fencing shall be of pressure treated pine ‘shadow box,’ not exceeding six (6) feet in height.” The Association’s governing documents also require that “[a]ny and all improvements, alterations, or additions to units by parcel owners” must be reviewed by an architectural review committee. The architectural review committee then recommends to the Board of Directors whether the proposed improvement, addition, or alteration should be allowed. The Board of Directors, within 60 days after the parcel owner’s initial request, approves or disapproves the proposal. Ms. Almonte and her husband moved into Scottish Highlands in May of 2010. In 2013, Ms. Almonte was diagnosed with fibromyalgia. Ms. Almonte described her experience with fibromyalgia as follows: The exact cause of fibromyalgia is not known. Symptoms include widespread pain, fatigue, cognitive difficulties, and migraine headaches. Treatments include medication and lifestyle changes. Many people describe fibromyalgia as feeling like a persistent flu. I discovered self-care was one of my best options, by exercising regularly, by gardening, using raised bed planters, because I can’t do ground level gardening because of my hips, back, and knees. I have had a hip replacement and have broken my knee. Reducing emotional and mental stress by using techniques such as meditation, relaxation, and aromatherapy in my herb garden. By eating a balanced diet, by growing my own organic vegetables, fruits, and herbs [sic]. I see a psychologist, a psychiatrist, a rheumatologist, and my primary care physician on a regular basis. When I have severe flare-ups, I am homebound for days. Stressful situations exacerbate her conditions. The Social Security Administration ruled on May 5, 2016, that Ms. Almonte is disabled. While there was no testimony or documentation describing why the Social Security Administration determined that Ms. Almonte was disabled, an October 14, 2016, letter from Dr. Eleanor Davina of Adult Medicine of Lake County, Inc., states that “due to underlying medical conditions, Ms. Lourdes is unable to do ground level yard work to include gardening or weeding, unless she has raised garden beds.”1/ It is not surprising that Ms. Almonte uses gardening to mitigate the symptoms of fibromyalgia. Ms. Almonte has over 25 years of experience with gardening. She has been a certified Florida master gardener and a member of the Florida Nursery Growers and Landscape Association. Ms. Almonte is also a founding member of the Scottish Highlands Garden Club. On approximately July 1, 2016, the Almontes paid $2,850 for 12 planter beds that were placed in their backyard. Each bed is made from pressure-treated lumber and is two feet high and six feet long. Recent photographs indicate that several of the beds include lattices that are considerably higher than the beds themselves. Initially, Ms. Almonte used 10 of the beds for gardening and the remaining two as a work bench. Depending on what she is growing at any particular time, Ms. Almonte typically has six of the beds in use. Soon after placing the planter beds in their backyard, the Almontes received at least one letter from the Association ordering their removal. Rather than contacting the Association and explaining that the planter beds were part of Ms. Almonte’s treatment, the Almontes hired an attorney. Via a letter dated July 28, 2016, the Association invited the Almontes to address the Board of Directors at the Board’s next public meeting on September 20, 2016. However, the Association barred the Almontes from bringing their attorney unless they provided a 10-day advance notice that they were doing so. Ms. Almonte declined the Association’s invitation because she did not want to discuss her health issues in public. On August 4, 2016, the Association received a “Trespass Warning” from the Almontes stating that it was not “authorized, permitted, or invited to enter or remain on” their property. The Trespass Warning also stated that the Almontes would pursue criminal charges through the Lake County Sheriff’s Office if the Association disregarded the warning. On September 26, 2016, the Association filed a Petition for Mandatory Non-Binding Arbitration with the Florida Department of Business and Professional Regulation, Division of Florida Condominiums, Timeshares, and Mobile Homes.2/ The Almonte’s Answer to the Petition stated the following: The Almontes did not “construct” large wooden planter boxes with 4X8 lattice panels and bamboo curtains. At significant expense, the Almontes hired a professional carpenter to construct several portable wooden planter boxes. The pre-constructed planter boxes were then transported to the Almontes property and situated on their back-yard patio. Mrs. Almonte is medically disabled and has been diagnosed with an anxiety disorder. Mrs. Almonte is a master gardener who has worked in the gardening industry for over 30 years. Based on her disability and her background, Mrs. Almonte’s medical doctor recommend[ed] Mrs. Almonte continue gardening to get physical exercise and to help her relieve the unbearable stress she deals with while coping with her physical and mental disability. Since Mrs. Almonte is no longer able to continuously bend or stoop to the ground to tend to a garden grown on the ground, it was recommended that Mrs. Almonte utilize raised bed gardens to accommodate her disability. Mrs. Almonte’s psychologist agrees with her medical doctor’s recommendation to utilize gardening as a means to cope with and mitigate the symptoms associated with her disability. The portable planter boxes are not positioned in a straight line and do not have the appearance of a fence or a continuous hedge. Instead, they are positioned and repositioned on the patio according to the type of plant growing in a particular planter and the time of year. As plants mature and the weather changes, the planter boxes are repositioned on the patio to where the plants can thrive. Planter boxes with plants that require their growth to be supported are equipped with wood lattice panels until the growth has died or the plants are harvested. There are no “bamboo curtains” on the Almontes’ property. They did, at one time, have a single bamboo curtain screening part of their property from their neighbor’s property. However, that curtain has long since been removed. The planter boxes were professionally constructed of pressure treated pine. Many members of the community have commented on how beautiful the planters (and plants) are and how they add beauty to the community. The Almontes’ neighbor even wrote a letter stating that she thought the planter boxes are beautiful and aesthetically pleasing to view. As stated above, the planter boxes do not constitute a fence or a continuous hedge. However, if said planter boxes were considered a fence or a hedge, which they are not, fences, raised planter boxes, and continuous hedges already exist throughout the community. * * * Under the governing documents, the Almontes are not required to seek approval from the Board of Directors because their planter boxes are not an improvement, alteration or addition to their unit. An “improvement” to real property is synonymous with a “fixture” to real property. Fixtures are typically affixed to the land and become part of the real property. Alterations alter the land in some way. And additions are typically fixtures that are added to the real property that become part of the land. Here, the planter boxes are not affixed to the real property in any way. In fact, the planter boxes are regularly moved about the Almontes’ back patio depending on the growing season. Therefore, the planter boxes are not an improvement, alteration, or addition to the real property. Accordingly, the Almontes were not required to seek approval to bring in the planter boxes.[3/] On November 16, 2016, Ms. Almonte filed a complaint with the Department of Housing and Urban Development (“HUD”), and the complaint was ultimately referred to the Commission. Ultimate Findings The unrebutted evidence demonstrates that Ms. Almonte’s major life activities of bending, stooping, kneeling, and rising from one’s knees have been substantially limited. Therefore, the undersigned finds that Ms. Almonte proved by a preponderance of the evidence that she is disabled within the meaning of the Act. While there is insufficient evidence to support a finding that Ms. Almonte expressly requested a reasonable accommodation from the Association prior to her complaint being received by HUD and the Commission,4/ the Almonte’s Answer to the Association’s Petition for Arbitration was sufficient to demonstrate by a preponderance of the evidence that the Association was on notice that Ms. Almonte wanted a reasonable accommodation. The preponderance of the evidence demonstrates that: the planter beds were a reasonable accommodation; and those planter beds were necessary to afford Ms. Almonte an opportunity to use and enjoy her home in Scottish Highlands. The planter beds were a reasonable accommodation because they cost the Association nothing and did not materially impact any of the other residents. The planter beds were a necessary accommodation because they were an important aspect of Ms. Almonte’s efforts to mitigate the effects of fibromyalgia. There is no dispute that the Association objected to Ms. Almonte having the planter beds in her backyard. The Association has not articulated a legitimate, non- discriminatory reason for withholding approval of the planter beds.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Florida Commission on Human Relations enter a final order finding that Scottish Highlands Condominium Association, Inc., violated the Florida Fair Housing Act by failing to provide Lourdes Almonte with a reasonable accommodation, and requiring Scottish Highlands Condominium Association, Inc., to provide Ms. Almonte with a reasonable accommodation. DONE AND ENTERED this 26th day of November, 2018, in Tallahassee, Leon County, Florida. S G. W. CHISENHALL Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 26th day of November, 2018.
Findings Of Fact Petitioner is the state agency charged with the enforcement of the provisions of Part VIII of Chapter 468, Florida Statutes, and of Chapter 61B-55, Florida Administrative Code. At all times material to this proceeding Respondent, Robert Rosen, was licensed as a community association manager and held license number 3371 issued by Petitioner. At the time of the formal hearing, Respondent had been performing community association management services for approximately fifteen years. Respondent has had extensive participation in community association management education and training activities and was, at all times pertinent hereto, aware of the duties imposed on community association managers by statute and by rule. Part VIII of Chapter 468, consisting of Sections 468.431 - 468.437, Florida Statutes, pertain to the regulation and licensure of Community Association Management. Section 468.431, Florida Statutes, provides the following definitions pertinent to this proceeding: "Community association management" means any of the following practices requiring substantial specialized knowledge, judgment, and managerial skill when done for remuneration and for the public and when the association or associations served contain more than 50 units or have an annual budget or budgets in excess of $100,000: controlling or disbursing funds of a community association, preparing budgets or other financial documents for a community association, assisting in the noticing or conduct of community association meetings, and coordinating maintenance for the residential development and other day-to-day services involved with the operation of a community association. A person who performs clerical or ministerial functions under the direct supervision of a licensed manager or who is charged only with performing the maintenance of a community association and who does not assist in any of the management services described in this subsection is not required to be licensed under this part. "Community association manager" means a person who is licensed pursuant to this part to perform community association management services. A person performing community association management services to one or more associations containing more than 50 units or having an annual budget or budgets in excess of $100,000 must possess a community association manager's license. Licenses to act as a community association manager are issued by Petitioner to individual persons. Licenses are not issued to corporations. An individual who is a community association manager within the meaning of Section 468.431(3), Florida Statutes, is required by the provisions of Section 468.432(1), Florida Statutes, to be licensed by the Petitioner, as follows: A person shall not manage or hold himself out to the public as being able to manage a community association in this state unless he is licensed by the department in accordance with the provisions of this part. . . . Corporations that provide community association management services through licensed employees merely have to register with the Petitioner pursuant to Section 468.432(2), Florida Statutes, which provides, in pertinent part, as follows: Nothing in this part prohibits a corporation, partnership, trust, association, or other like organization from engaging in the business of community association management without being licensed if it employs licensed natural persons in the direct provision of community association services. Such corporation, partnership, trust, association, or other organization shall also file with the department a statement on a form approved by the department that it submits itself to the rules of the department and the provisions of this part which the department deems applicable. Petitioner has rule making authority pursuant to the provisions of Section 468.433(3), Florida Statutes. Petitioner has the authority to enforce its rules and statutes pursuant to the provisions of Section 468.436, Florida Statutes. Pursuant to its rule making authority, Petitioner has enacted Rule 61B- 55.007, Florida Administrative Code, which provides, in pertinent part, as follows: Standards of Professional Conduct. All licensees and registrants shall adhere to the following provisions and standards of professional conduct, and such provisions and standards shall be deemed automatically incorporated, as duties of all licensees and registrants, into any written or oral agreement for the rendition of community association management services, the violation of which shall constitute gross misconduct or gross negligence. Definitions. As used in this rule, the following definitions apply: The word "control" means the authority to direct or prevent the actions of another person or entity pursuant to law, contract, subcontract or employment relationship with a community association, its board of directors, any committee thereof or any member of any board or committee. "Licensee" means a person licensed pursuant to section 468.432(1), Florida Statutes. "Registrant" means an entity registered pursuant to section 468.432(2), Florida Statutes. The word "funds" as used in this rule includes money and negotiable instruments including checks, notes and securities. * * * (6) Records. (a) A licensee or registrant shall not withhold possession of any books, records, accounts, funds, or other property of a community association when requested by the community association to deliver the same to the association upon reasonable notice. It shall be presumed that reasonable notice shall extend no later than 7 business days after receipt of a written request from the association. The provisions of this rule apply regardless of any contractual or other dispute between the licensee and the community association, or between the registrant and the community association. It shall be considered gross misconduct, as provided by Section 468.436(2), Florida Statutes, for a licensee or registrant to violate the provisions of this subsection. The purpose of the community association manager licensing and regulation statute is to protect the public in general, and community association members in particular. Its primary goal is to ensure that managers who receive licenses from the state are trustworthy and have some degree of professional competence. Rosen Management Service, Inc., is a corporation that is not a party to this proceeding. Robert Rosen, in addition to being a licensed community association manager, is the president of Rosen Management Service, Inc. Throughout this proceeding, Robert Rosen acted through his corporation in providing community association management services to the associations involved in this proceeding. Prior to the termination of the management agreements between Rosen Management Service, Inc., and the six associations involved in this proceeding, Robert Rosen was a member of and an ex officio officer of each association. At all times pertinent to this proceeding, Rosen Management Service, Inc., employed licensed community association managers in addition to Robert Rosen. There was no evidence that any licensed community association manager employed by Rosen Management Service, Inc., other than Robert Rosen provided services to the six associations that are involved in this proceeding. At all times pertinent to this proceeding, Robert Rosen controlled the management of Rosen Management Service, Inc. The six separate community associations involved in this proceeding are located in Dade County, Florida. Rosen Management Service, Inc., began providing community association management services to each of these associations on January 1, 1991. The services provided to each association by Rosen Management Service, Inc., included the management and control of each association's finances. Those six associations are: Moors Master Maintenance Association, Inc. Moors Town Villas Maintenance Association, Inc. Moors Garden Homes Maintenance Association, Inc. Moors Pointe Condominium Association, Inc. Moors Village Homes Maintenance Association, Inc. Moors Patio Homes Maintenance Association, Inc. At issue in this proceeding are certain bank accounts that were opened in the Dadeland branch office of Southeast Bank by Rosen Management Service, Inc. Southeast Bank was acquired by First Union National Bank of Florida in 1992 after intervention by the Federal Deposit Insurance Corporation. The subject accounts became accounts in the Dadeland branch of the First Union National Bank after the acquisition. At the time these accounts were opened, Robert Rosen was a member of and ex officio officer of each association and had the authorization of each association to open each account in the manner in which it was opened. Moors Master Maintenance Association, Inc. The Moors Master Maintenance Association, Inc., and Rosen Management Service, Inc., entered into a management agreement that was effective January 1, 1991. By that agreement, Rosen Management Service, Inc., agreed to provide community association management services to the Moors Master Maintenance Association, Inc. The agreement provided for the termination of the agreement by either party with or without cause upon sixty days written notice. The agreement was executed by Robert Rosen as president of Rosen Management Service, Inc. On January 9, 1991, Robert Rosen caused an interest bearing checking account, account #018-690008, to be opened at the Dadeland branch of the Southeast Bank. The owner information was completed as follows: "Rosen Management Service, Inc., as agent for The Moors Master Maintenance Association, Inc." Robert Rosen was the only person authorized to sign on this account. The operating funds of the association were deposited into that account. On October 8, 1991, the Moors Master Maintenance Association, Inc., voted to terminate the management agreement with Rosen Management Service, Inc., and notified Robert Rosen of that action. On October 9, 1991, the attorneys representing the Moors Master Maintenance Association, Inc., notified Robert Rosen, as president of Rosen Management Service, Inc., that it had terminated the contract and demanded a return of the Association's books and records. This letter also stated: ". . . effective immediately no additional checks are to be written by you on any of the accounts at (sic) the Association." The Moors Master Maintenance Association, Inc., caused its attorneys to write a letter to Southeast Bank dated October 10, 1991, concerning account #018-690008 which stated, in pertinent part, as follows: . . . At a meeting of the Board of Directors held on Tuesday, October 8, 1991, the Board voted to terminate its management agent, Rosen Management Service, Inc. Accordingly, please be advised that effective immediately, no further activity with respect to the above referenced account is to be initiated by Rosen Management Service, Inc. and/or Robert Rosen. The Moors Master Maintenance Association, Inc., wrote to Southeast Bank a letter dated November 19, 1991, which stated, in pertinent part, as follows: This letter is to inform you that at a Board of Directors meeting held on Tuesday, October 8, 1991, the Board of Directors of the Moors Master Maintenance Association terminated their contract with Rosen Management. This refers to the contract that went into effect January 1, 1991. Rosen Management is no longer an agent of the above mentioned association. Please transfer all monies in the Associations' account #018-690008 to the new account we opened . . . On November 19, 1991, the president of the Moors Master Maintenance Association advised the Southeast Bank that it had opened a new account and requested that the funds in account #018-690008 be transferred to the new account. Moors Town Villas Maintenance Association, Inc. The Moors Town Villas Maintenance Association, Inc., and Rosen Management Service, Inc., entered into a management agreement that was effective January 1, 1991. By that agreement, Rosen Management Service, Inc., agreed to provide community association management services to the Moors Town Villas Maintenance Association, Inc. The agreement provided for the termination of the agreement by either party with or without cause upon sixty days written notice. The agreement was executed by Robert Rosen as president of Rosen Management Service, Inc. On January 9, 1991, Robert Rosen caused an interest bearing checking account, account #018-690024, to be opened at the Dadeland branch of the Southeast Bank. The owner information was completed as follows: "Rosen Management Service, Inc., as agent for The Moors Town Villa Homes Maintenance Association, Inc." Robert Rosen was the only person authorized to sign on this account. The operating funds of the association were deposited into that account. On October 22, 1991, the Moors Town Villas Maintenance Association, Inc., voted to terminate the management agreement with Rosen Management Service, Inc., and notified Robert Rosen of that action. By letter dated November 13, 1991, the association advised Robert Rosen, as president of Rosen Management Service, Inc., that all records, documents, files, contracts, and invoices belonging to the association should be turned over to the new management company. The Moors Town Villas Maintenance Association, Inc., wrote to Southeast Bank a letter dated November 21, 1991, which stated, in pertinent part, as follows: This letter is to inform you that at a Board of Directors meeting held on Tuesday, October 22, 1991, the Board of Directors of the Moors Town Villas Maintenance Association terminated their contract with Rosen Management. This refers to the contract that went into effect January 1, 1991. Rosen Management is no longer an agent of the above mentioned association. Please transfer all monies in the Associations' account #018-690024 to the new account we opened . . . Moors Garden Homes Maintenance Association, Inc. The Moors Garden Homes Maintenance Association, Inc., and Rosen Management Service, Inc., entered into a management agreement that was effective January 1, 1991. By that agreement, Rosen Management Service, Inc., agreed to provide community association management services to the Moors Garden Homes Maintenance Association, Inc. The agreement provided for the termination of the agreement by either party with or without cause upon sixty days written notice. The agreement was executed by Robert Rosen as president of Rosen Management Service, Inc. On January 9, 1991, Robert Rosen caused an interest bearing checking account, account #018-689992, to be opened at the Dadeland branch of the Southeast Bank. The owner information was completed as follows: "Rosen Management Service, Inc., as agent for The Garden Homes of the Moors Maintenance Association, Inc." Robert Rosen was the only person authorized to sign on this account. The operating funds of the association were deposited into that account. On October 24, 1991, the Moors Garden Homes Maintenance Association, Inc., voted to terminate the management agreement with Rosen Management Service, Inc., and notified Robert Rosen of that action. By letter dated November 7, 1991, the association advised Robert Rosen, as president of Rosen Management Service, Inc., that all records, documents, files, contracts, and invoices belonging to the association should be turned over to the new management company. The Moors Garden Homes Maintenance Association, Inc., wrote to Southeast Bank a letter dated November 21, 1991, which stated, in pertinent part, as follows: This letter is to inform you that at a Board of Directors meeting held on Tuesday, October 24, 1991, the Board of Directors of the Moors Garden Homes Maintenance Association terminated their contract with Rosen Management. This refers to the contract that went into effect January 1, 1991. Rosen Management is no longer an agent of the above mentioned association. Please transfer all monies in the Associations' account #018-689992 to the new account we opened . . . Moors Pointe Condominium Association, Inc. The Moors Pointe Condominium Association, Inc., and Rosen Management Service, Inc., entered into a management agreement that was effective January 1, 1991. By that agreement, Rosen Management Service, Inc., agreed to provide community association management services to the Moors Pointe Condominium Association, Inc. The agreement provided for the termination of the agreement by either party with or without cause upon sixty days written notice. The agreement was executed by Robert Rosen as president of Rosen Management Service, Inc. On January 9, 1991, Robert Rosen caused an interest bearing checking account, account #018-689984, to be opened at the Dadeland branch of the Southeast Bank. The owner information was completed as follows: "Rosen Management Service, Inc., as agent for The Moors Pointe Condominium Association, Inc." Robert Rosen was the only person authorized to sign on this account. The operating funds of the association were deposited into that account. On October 24, 1991, the Moors Pointe Condominium Association, Inc., voted to terminate the management agreement with Rosen Management Service, Inc., and notified Robert Rosen of that action. The letter terminating the management agreement was dated October 31, 1991, and advised Robert Rosen, as president of Rosen Management Service, Inc., that all books and records for the association should be turned over to the new management company. The Moors Pointe Condominium Association, Inc., wrote to Southeast Bank a letter dated November 21, 1991, which stated, in pertinent part, as follows: This letter is to inform you that at a Board of Directors meeting held on Tuesday, October 25, 1991, the Board of Directors of the Moors Pointe Condominium Association terminated their contract with Rosen Management. This refers to the contract that went into effect January 1, 1991. Rosen Management is no longer an agent of the above mentioned association. Please transfer all monies in the Associations' account #018-689984 to the new account we opened . . . Moors Village Homes Maintenance Association, Inc. The Moors Village Homes Maintenance Association, Inc., and Rosen Management Service, Inc., entered into a management agreement that was effective January 1, 1991. By that agreement, Rosen Management Service, Inc., agreed to provide community association management services to the Moors Village Homes Maintenance Association, Inc. The agreement provided for the termination of the agreement by either party with or without cause upon sixty days written notice. The agreement was executed by Robert Rosen as president of Rosen Management Service, Inc. On January 9, 1991, Robert Rosen caused an interest bearing checking account, account #018-690032, to be opened at the Dadeland branch of the Southeast Bank. The owner information was completed as follows: "Rosen Management Service, Inc., as agent for The Moors Village Homes Maintenance Association, Inc." Robert Rosen was the only person authorized to sign on this account. The operating funds of the association were deposited into that account. On October 24, 1991, the Moors Village Homes Maintenance Association, Inc., voted to terminate the management agreement with Rosen Management Service, Inc., and notified Robert Rosen of that action. The Moors Village Homes Maintenance Association, Inc., wrote to Southeast Bank a letter dated November 21, 1991, which stated, in pertinent part, as follows: This letter is to inform you that at a Board of Directors meeting held on Tuesday, October 25, 1991, the Board of Directors of the Moors Village Homes Maintenance Association terminated their contract with Rosen Management. This refers to the contract that went into effect January 1, 1991. Rosen Management is no longer an agent of the above mentioned association. Please transfer all monies in the Associations' account #018-690032 to the new account we opened . . . Moors Patio Homes Maintenance Association, Inc. The Moors Patio Homes Maintenance Association, Inc., and Rosen Management Service, Inc., entered into a management agreement that was effective January 1, 1991. By that agreement, Rosen Management Service, Inc., agreed to provide community association management services to the Moors Patio Homes Maintenance Association, Inc. The agreement provided for the termination of the agreement by either party with or without cause upon sixty days written notice. The agreement was executed by Robert Rosen as president of Rosen Management Service, Inc. On January 9, 1991, Robert Rosen caused an interest bearing checking account, account #018-690016, to be opened at the Dadeland branch of the Southeast Bank. The owner information was completed as follows: "Rosen Management Service, Inc., as agent for The Moors Patio Homes Maintenance Association, Inc." Robert Rosen was the only person authorized to sign on this account. The operating funds of the association were deposited into that account. On October 22, 1991, the Moors Patio Homes Maintenance Association, Inc., voted to terminate the management agreement with Rosen Management Service, Inc., and notified Robert Rosen of that action. The letter terminating the management agreement was dated October 31, 1991, and advised Robert Rosen, as president of Rosen Management Service, Inc., that all books and records of the association should be turned over to the new management company. The Moors Patio Homes Maintenance Association, Inc., wrote to Southeast Bank a letter dated November 21, 1991, which stated, in pertinent part, as follows: This letter is to inform you that at a Board of Directors meeting held on Tuesday, October 22, 1991, the Board of Directors of the Moors Patio Homes Maintenance Association terminated their contract with Rosen Management. This refers to the contract that went into effect January 1, 1991. Rosen Management is no longer an agent of the above mentioned association. Please transfer all monies in the Associations' account #018-690016 to the new account we opened . . . The Collateral Litigation. In November 1991, Rosen Management Service, Inc., (plaintiff) brought suit against the Moors Master Maintenance Association, Inc., (defendant) in circuit court seeking compensatory damages in the amount of $927,553.24 and punitive damages in the minimum amount of $2,782,659.70. That proceeding was pending at the time of the formal hearing held in the instant proceeding. In December 1991, the six associations (plaintiffs) sued Rosen Management Service, Inc., and Robert Rosen (defendants) in circuit court seeking temporary and permanent injunctive relief requiring the defendants to turn over the books and records of the plaintiffs. On December 19, 1991, a special master was appointed in this circuit court proceeding. The special master was ordered to take possession of the books and records of the six associations, including the six bank accounts. The attorney for the defendants in that circuit court proceeding consented to the transfer of the control of the six bank accounts to the special master. Before the transfer could be effectuated, the circuit court proceeding was voluntarily dismissed by the plaintiffs. Consequently, the special master never took possession of the funds in these bank accounts. Robert Rosen was aware that the special master never took possession of these bank accounts. On or about March 31, 1993, a separate proceeding was filed in circuit court by the six associations (plaintiffs) against Rosen Management Service, Inc. That proceeding was pending at the time of the formal hearing held in the instant proceeding. The Manager of the Bank. In reaction to the letters from the six Moors associations and their attorneys, Diego Rodriguez, the manager of the Dadeland branch of the Southeast Bank, advised Mr. Rosen that he no longer had any authority over the account and that the bank would not take any instructions from him. This information was conveyed to Mr. Rosen by Mr. Rodriguez in October 1991, in April 1992, and on September 3, 1992. On September 3, 1992, Mr. Rodriguez wrote a letter to Sharon Malloy, Assistant Bureau Chief for Petitioner's Bureau of Condominiums. That letter corroborates the Respondent's testimony as to information provided to him by Mr. Rodriguez. That letter stated, in pertinent part, as follows: "All went fine [with the six accounts] until October 1991, when we received a certified letter from the Law Firm of Becker & Poliakoff stating that they represented the six Moors Associations, and instructed this banking center to remove Mr. Robert Rosen as an authorized signer on the six accounts. The letter further stated that this bank could no longer accept any instructions what- so-ever from Rosen and not to discuss any of these accounts with him. Ms. Malloy, our branch has done just that. We informed Mr. Rosen that he no longer had any control, custody, jurisdiction, or any other authority on these accounts. That was in October 1991, and we've told that to Mr. Rosen on at least a dozen occasions since then, including April 1992 when we confirmed this in writing to Mr. Rosen, and again today, September 3, 1992. We specifically told Mr. Rosen that in view of these circumstances, we would require a Court Order before we could accept any instructions from anyone as to these accounts. Your staff must have misinterpreted my letter of April 1992, which clearly stated that Mr. Rosen has been removed as a signer on these accounts. This doesn't mean he just can't sign; it means that he has no control, no custody, no jurisdiction, no power of any kind on these accounts. These accounts have each been coded so as not to allow Mr. Rosen either access to the funds or information on these accounts. This Bank will not take any instructions from him!!! (Emphasis in the original.) The Attorneys for the Bank. Southeast Bank, and later First Union Bank, asserted the position that it could not transfer the funds or otherwise release the funds in the six accounts without the written consent of a duly authorized representative of Rosen Management Service, Inc. On May 12, 1992, Steve Gillman, the attorney for First Union Bank advised the attorneys for the associations in writing that the transfer of the bank accounts established by Rosen Management Service, Inc., could be transferred to the new bank accounts established by the associations if an authorized representative of Rosen Management Service, Inc., as the account party executed an appropriate transfer request. On May 13, 1992, the attorneys for the associations forwarded to the attorney for the Respondent a copy of the May 12, 1992, letter from the bank's attorney. Enclosed with that letter was a simple, single page authorization form by which Robert Rosen, on behalf of Rosen Management Service, Inc., could consent to the transfer of the funds in the six association bank accounts to new bank accounts controlled by the associations. Robert Rosen received a copy of this letter and the enclosures. This letter of May 13, 1992, provided, in pertinent part, as follows: . . . As you can see an appropriate transfer request from your clients is all that is required to return the funds to their beneficial owners. Pursuant to the foregoing, we make final demand upon your clients to provide authorization to the bank to transfer the funds on deposit beneficially owned by the respective Moors associations to the new accounts at First Union/Southeast already established for the purpose of facilitating such a transfer. Toward this end, I have enclosed an authorization for your clients to sign forthwith. Robert Rosen knew that the six associations were unable to withdraw the funds from the six bank accounts because of the repeated demands of the associations. Prior to the position asserted by the bank as reflected by Mr. Gillman's letter of May 1992, there was some confusion as to what Respondent could or should do to transfer these accounts. This situation was exacerbated by the collateral litigation filed by Rosen Management Service, Inc., and by the associations, the voluntary dismissal of the suit by the associations after the special master had been appointed, and by the erroneous advice given by Mr. Rodriguez. Notwithstanding the position asserted by Mr. Rodriguez, Mr. Rosen knew after he received copies of the letters from Mr. Gillman, that his authorization was all that was required to transfer the funds from the old accounts to the new accounts. Robert Rosen failed to execute that simple authorization form until August 18, 1993, thereby blocking access by the associations to their funds in these bank accounts. There was a meeting on July 1, 1992, involving the Respondent, his attorney and attorneys and representatives of the six associations. During that meeting, Respondent was again asked to sign the consent form necessary to transfer the funds in the six accounts at issue in this proceeding to accounts controlled by the respective associations. Despite repeated demands for him to do so, Respondent did not sign the consent form that he knew was required to transfer the funds in the six bank accounts to the respective associations until August 1993. As a result of Robert Rosen's failure to sign the consent form in his capacity of President of Rosen Management Service, Inc., or to instruct some other qualified representative of Rosen Management Service, Inc., sign the form, these six associations were deprived of access to their funds until August 1993. Robert Rosen testified that he delivered an executed copy of this form to the First Union Bank Dadeland branch office shortly after he received it in May 1992. This self-serving testimony lacks credibility and is rejected as being contrary to the clear and convincing evidence that he did not execute the consent form until the first day of the formal hearing. On August 18, 1993, the first day of the formal hearing that was held in this proceeding, Robert Rosen signed the one-page document that authorized the transfer of all six association bank accounts to the respective associations. This authorization form was the same one-page document that had been forwarded to Respondent's counsel, and subsequently to Respondent, on May 13, 1992. Respondent had been repeatedly asked to execute this authorization form. On August 19, 1993, the funds that had been in account #018-690008 were transferred to a new account of the Moors Master Maintenance Association, Inc. The balance in the account at the time of the transfer was approximately $108,000.00. On August 19, 1993, the funds that had been in account #018-690024 were transferred to a new account of the Moors Town Villas Maintenance Association. The balance in the account at the time of the transfer was in excess of $100,000. On August 19, 1993, the funds that had been in account #018-689992 were transferred to a new account of the Moors Garden Homes Maintenance Association. The balance in the account at the time of the transfer was in excess of $100,000. On August 19, 1993, the funds that had been in account #018-689984 were transferred to a new account of the Moors Pointe Condominium Association The balance in the account at the time of the transfer was approximately $40,000. On August 19, 1993, the funds that had been in account #018-690032 were transferred to a new account of the Moors Village Homes Maintenance Association. The balance in the account at the time of the transfer was approximately $41,000. On August 19, 1993, the funds that had been in account #018-690016 were transferred to a new account of the Moors Patio Homes Maintenance Association, Inc. The balance in the account at the time of the transfer was approximately $75,000. Robert Rosen did not turn over and did not cause his corporation to turn over the funds of the six associations to those associations within seven business days of a written request to do so. Robert Rosen did not execute and did not cause his corporation to execute the written authorization form that was required to transfer the funds to the six associations within seven business days of a written request to do so. Because the six associations did not have access to their funds during the approximately two years that this matter was in dispute, the associations had to impose special assessments on their members, had to delay paying bills, and had to use reserve funds for operating bills. The associations also incurred attorneys' fees in attempting to secure the return of their funds. Robert Rosen has not been previously disciplined by the Petitioner. At all times pertinent to this proceeding, the funds were in interest bearing accounts. All funds in the six association accounts, including accrued interest, were turned over to the respective associations on August 19, 1993.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the licensure of Robert Rosen as a community association manager be revoked. DONE AND ORDERED this 1st day of February 1994 in Tallahassee, Leon County, Florida. CLAUDE B. ARRINGTON 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 1st day of February 1994. APPENDIX TO RECOMMENDED ORDER, CASE NO. 93-0344 The following rulings are made on the proposed findings of fact submitted by Petitioner. The proposed findings of fact in paragraphs 1, 2, 3, 4, 5, 6, 7, 8, 9, 10, 11, 12, 13, 14, 15, 16, 17, 18, 19, 20, 21, 24, 25, 28, 29, 31, 32, 33, 43 are adopted in material part by the Recommended Order. The proposed findings of fact in paragraphs 22, 30, 34, 35, 36, 37, 38, 39, 40, 41, 42, 44, 45, 46, 47, 48, 49, 50 are rejected as being subordinate to the findings made. The proposed findings of fact in paragraph 23 are rejected as being unnecessary to the conclusions reached. The proposed findings of fact in paragraphs 26 and 27 are adopted in part by the Recommended Order. The proposed findings in the last sentence of each paragraph are rejected as being argument as to the interpretation of written documents and unnecessary to the conclusions reached. The proposed findings of fact in paragraph 36 are adopted in part by the Recommended Order, and are subordinate in part to the findings made. The proposed findings of fact in paragraphs 51, 52, 53, 54 are subordinate to the conclusions reached. The following rulings are made on the proposed findings of fact submitted by Respondent. The following references are to paragraphs 1-14 contained in Respondent's Proposed Recommended Order in the section styled "General Findings of Fact and Conclusions of Law." The conclusions in paragraph 1 are rejected as being unnecessary as findings of fact and as being contrary to the conclusions reached. The proposed findings of fact and conclusions in paragraphs 2, 7, and 10 are rejected as being contrary to the conclusions reached or as being contrary to the conclusions reached. Findings of fact are made in the Recommended Order as to how the respective bank accounts were opened. The proposed findings of fact in paragraph 3 are adopted to the extent that the proposed findings are consistent with the findings made. The remainder of paragraph 3 is rejected as being contrary to the conclusions reached or to the findings made. The proposed findings of fact in paragraph 4 are adopted in material part by the Recommended Order or are subordinate to the findings made. Paragraph 5 consists of argument that is inappropriate as findings of fact. The proposed findings of fact in paragraph 6 are adopted in material part by the Recommended Order or are subordinate to the findings made. Paragraphs 7, 8 and 9 consist of argument or conclusions that are rejected as being contrary to the conclusions reached or to the findings made. The proposed findings of fact in paragraph 10 are adopted in part by the Recommended Order by the findings that Rosen Management Service, Inc., authorized the transfer of the funds to the special master. The proposed findings are otherwise rejected as being contrary to the findings made. Findings are made in the Recommended Order as to contacts Respondent made with the bank. The proposed findings of fact in paragraphs 11 and 12 are adopted to the extent the proposed findings are consistent with the findings made, but are otherwise rejected as being unnecessary to the conclusions reached since it was not established that Respondent's inquiries were directed toward returning the funds to the associations. The reference to December 1990 is unnecessary to the conclusions reached and apparently a misreading of the letter sent by Mr. Rodriguez to Ms. Malloy dated September 3, 1992. Findings are made in the Recommended Order pertaining to the collateral litigation. The proposed findings of fact in paragraph 13 are adopted to the extent the proposed findings are consistent with the findings made, but are otherwise rejected as being contrary to the greater weight of the evidence or as being contrary to the conclusions reached. The remainder of paragraph 13 consists of argument that is rejected as being contrary to the conclusions reached or as being unnecessary to the conclusions reached. Paragraph 14 consists of argument that is rejected as unnecessary as findings of fact and, in part, contrary to the conclusions reached. The following references are to paragraphs 1-15 contained in Respondent's Proposed Recommended Order in the section styled "Findings of Fact and Conclusions of Law on Termination of Agency Issue and Other Issues Relating to Charges." The proposed findings of fact in paragraphs 1, 2, 5 are adopted in material part by the Recommended Order. Paragraph 3 consists of argument or conclusions that are unnecessary as findings of fact. Paragraph 4 consists of argument or conclusions that are contrary to the findings or to the conclusions reached. The proposed findings of fact in paragraphs 6 and 7 are adopted in part by the Recommended Order or are subordinate to the findings made. The proposed findings of fact in paragraphs 6 and 7 are rejected to the extent they are inconsistent with the findings made in the Recommended Order. The proposed findings of fact in paragraph 8 are adopted in part by the Recommended Order. The remainder of paragraph 8 consists of argument that is unnecessary as findings of fact. Paragraph 9 consists of argument that is unnecessary as findings of fact. The proposed findings of fact in paragraph 10 are subordinate to the findings made. The proposed findings of fact in paragraph 11 are rejected as being unnecessary to the conclusions reached. The proposed findings of fact in paragraph 12 are adopted in part by the Recommended Order. The remainder of paragraph 12 is rejected as being unnecessary to the findings made and to the conclusions reached. The proposed findings of fact contained in paragraphs 13 and 14 are either adopted by the Recommended Order or are subordinate to the findings made. The remainder of both paragraphs consists of argument that is inappropriate to incorporate as findings of fact. The proposed findings of fact in Paragraph 15-1 are adopted in material part by the Recommended Order. The remainder of paragraph of paragraph 15 is rejected as being predicated on self-serving testimony that lacks credibility and is contrary to the clear and convincing evidence presented by Petitioner. COPIES FURNISHED: Jeanne M. L. Player, Esquire Department of Business and Professional Regulation 725 South Bronough Street Tallahassee, Florida 32399-1007 Franklin D. Kreutzer, Esquire 3041 Northwest 7th Street, Suite 100 Miami, Florida 33125 Henry M. Solares, Director Division of Florida Land Sales, Condominiums and Mobile Homes 1940 North Monroe Street Tallahassee, Florida 32399-0792 Jack McRay, Acting General Counsel Department of Business and Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399-0792
The Issue The issues presented for determination are whether Florida Housing Finance Corporation’s (FHFC) determinations regarding the applications responding to Request for Applications 2019-116 SAIL Financing of Affordable Multifamily Housing Development to Be Used In Conjunction With Tax-Exempt Bond Financing And Non-Competitive Housing Credits (the RFA), were clearly erroneous, contrary to competition, arbitrary, or capricious; and whether the award to Respondent Christian Manor Restoration, LLC (Christian Manor), is contrary to governing statutes, rules, or the solicitation specifications of the RFA.
Findings Of Fact Petitioner Parkwood is an applicant responding to the RFA. The Parkwood application, assigned number 2020-422BS, was deemed eligible but was not selected for funding under the terms of the RFA. Respondent Christian Manor is an applicant responding to the RFA. The Christian Manor application, assigned number 2020-405BS, was deemed eligible and was selected for funding under the terms of the RFA. FHFC is a public corporation created pursuant to section 420.504, Florida Statutes. The purpose of FHFC is to promote public welfare by administering the governmental function of financing affordable housing in Florida. FHFC is tasked with allocating a portion of the certain Disaster Recovery funding allocated by the U.S. Department of Housing and Urban Development pursuant to the State of Florida Action Plan for Disaster Recovery. Waterview was an applicant responding to the RFA. The Waterview application, assigned number 2020-424BSN, was deemed eligible but was not selected for funding under the terms of the RFA. FHFC is authorized to allocate housing credits and other funding by means of requests for proposals or other competitive solicitation. See § 420.507(48), Fla. Stat.; Fla. Admin. Code Ch. 67-60 (governing the competitive solicitation process). FHFC allocates its competitive funding pursuant to the bid protest provisions of section 120.57(3). Funding is made available through a competitive application process commenced by the issuance of a Request for Applications (RA). An RA is equivalent to a “request for proposal” as indicated in Florida Administrative Code Rule 67-60.009(4). The RFA was issued on November 6, 2019. It was modified several times, and the final RFA was issued on December 20, 2019. The application deadline was December 30, 2019. Sixty-five applications were submitted in response to the RFA. A Review Committee was appointed to review the applications and make recommendations to FHFC’s Board of Directors (the Board). The Review Committee found 57 applications eligible, seven applications ineligible, and one application withdrew from the selection process. Through the ranking and selection process outlined in the RFA, 13 applications were preliminarily recommended for funding, including Christian Manor. The Review Committee developed charts listing its eligibility and funding recommendations to be presented to the Board. On March 6, 2020, the Board met and considered the recommendations of the Review Committee for the RFA. At 9:35 a.m. that same day, all RFA applicants received notice that the Board determined whether applications were eligible or ineligible for funding consideration and that certain eligible applicants were preliminarily selected for funding, subject to satisfactory completion of the credit underwriting process. Such notice was provided by the posting of two spreadsheets on the FHFC website, www.floridahousing.org: (1) listing the Board-approved scoring results for the RFA, and (2) identifying the applications which FHFC proposed to fund. There is no dispute that Petitioner and Christian Manor received this notice. In the March 6, 2020, posting, FHFC announced its intention to award funding to 13 applications including Christian Manor. No challenges were made to the terms of the RFA. RANKING AND SELECTION PROCESS Through the RFA, FHFC seeks to award an estimated total of $71,360,000 in SAIL Financing, as well as tax-exempt bonds, to assist in financing the development of affordable rental housing for tenants who are either low-income or extremely low-income. The available SAIL financing was to be divided so that a certain amount was targeted both geographically, between Large, Medium, and Small Counties, and demographically, between applicants proposing housing for families and those proposing housing for the elderly. Applicants who are awarded tax-exempt bond financing are also entitled to an award of non-competitive federal low-income housing tax credits. FHFC made approximately $5,611,650 in National Housing Trust Fund (NHTF) funding available to applicants committing to build either new construction or rehabilitation of family or elderly housing for “Persons with Special Needs.” Applications in this RFA are scored in two categories for a possible total of ten points. Five points each can be awarded for Submission of Pre- Approved Principal Disclosure Form and Local Government Contributions. Because so many applicants achieve a perfect score of ten, the RFA establishes a series of tiebreakers referred to as a “sorting order,” designed to rank order applications for funding selection. The RFA set the following sorting order, after listing applications from highest score to lowest score: By eligibility for Proximity Funding Preference; then By eligibility for the Per Unit Construction Funding Preference; then By Leveraging Level number 1 through 5; then By eligibility for the Florida Job Creation Preference; then By randomly assigned lottery number. The RFA also established a series of funding goals. Those goals were: One New Construction Application in a Large County serving Elderly residents. Three New Construction Applications in a Large County serving Family residents, with a preference that at least two of such Applications being from “Self-Sourced” Applicants. One New Construction Application in a Medium County serving Elderly residents. Two New Construction Applications in a Medium County, with a preference that at least one such Application being from a self-sourced Applicant. The RFA designated each county in Florida as either Large, Medium, or Small. The RFA also allowed an applicant to designate itself as “Self- Sourced,” which requires applicants proposing new construction family projects to provide a portion of their development funding themselves, in an amount of at least half of its SAIL Request Amount (or $1 million, whichever is greater). The RFA provided that eligible applicants be assigned a Leveraging Level 1 through 5, with 1 being the best score, based on the total Corporation SAIL Funding amount relative to all other eligible applicants’ total Corporation SAIL Funding amount. The Leveraging Level is a comparative tool to rank applicants based on how much SAIL funding each applicant has requested per affordable housing unit (Set-Aside Unit) it proposes to construct. Calculation of the Leveraging Level includes adjusting the total amount of SAIL funds requested by an applicant based on a variety of factors, including development type, development location, construction method to be employed, and whether a Public Housing Authority is part of the applicant, then dividing that adjusted amount by the applicant’s proposed number of Set-Aside Units. For example, the SAIL Request per Set-Aside Unit is reduced by ten percent for applicants proposing a Mid-Rise Four-Story building, while applicants proposing Garden Apartments or Townhouses do not receive this adjustment, and applicants proposing Five-Story or Six-story Mid-Rises or High-Rises get a greater reduction. Applicants whose adjusted SAIL Request per Set-Aside Unit is among the lowest ten percent of all calculated SAIL Request amounts per Set-Aside Unit in this RFA are assigned Leveraging Level 1; the next 20 percent are Leveraging Level 2; the next 20 percent are Leveraging Level 3; the next 20 percent are Leveraging Level 4; and the highest 30 percent are Leveraging Level 5. The RFA employed a “funding test,” requiring that the full amount of an applicant’s SAIL request be available for award when that applicant is under consideration for funding; partial funding awards are not permitted. Sufficient SAIL funding must be available in both the county size group (Large, Medium, or Small), and the demographic category (elderly or family) for an applicant to be selected. Within the county size group, the RFA contains a pour-over provision for any unallocated Small County funding to be divided between the Medium and Large County funding availability; and any unallocated Medium County funding would be made available to Large County applicants. Further, in order to promote geographic distribution of funding awards, the RFA included a County Award Tally mechanism. If an applicant was selected in a particular county, a second applicant would not generally be selected from that same county if there was any eligible applicant available (even with a lower total application score) from any other county, from which an applicant had not already been selected for funding. The RFA set forth a very specific funding selection order, taking into consideration two specific counties (Miami-Dade and Broward), county size groups, development category (new construction or rehabilitation), demographic group (elderly or family), and self-sourced status. CHRISTIAN MANOR’S APPLICATION One of the criteria in the RFA for scoring and ranking applications involves proximity to certain services. The RFA provides in relevant part: e. Proximity The Application may earn proximity points based on the distance between the Development Location Point [(DLP)] and the Bus or Rail Transit Service (if Private Transportation is not selected at question 5.e.(2)(a) of Exhibit A) and the Community Services stated in Exhibit A. Proximity points are awarded according to the Transit and Community Service Scoring Charts outlined in Item 2 of Exhibit C. Proximity points will not be applied towards the total score. Proximity points will only be used to determine whether the Applicant meets the required minimum proximity eligibility requirements and the Proximity Funding Preference, as outlined in the chart below. Requirements and Funding Preference Qualifications All Large County Applications must achieve a minimum number of Transit Service Points and achieve a minimum number of total proximity points to be eligible for funding ... All Applications that achieve a higher number of total proximity points may also qualify for the Proximity Funding Preference as outlined below. Community Services (Maximum 4 Points for each service, up to 3 services) Applicants may provide the location information and distances for three of the following four Community Services on which to base the Application’s Community Services Score. The Community Service Scoring Charts, which reflect the methodology for calculating the points awarded based on the distances, are outlined in Exhibit C. Location of coordinates for Community Services Coordinates must represent a point that is on the doorway threshold of an exterior entrance that provides direct public access to the building where the service is located. * * * Eligible Community Services Grocery Store - This service is defined in Exhibit B and may be selected by all Applicants. Public School - This service is defined in Exhibit B and may be selected only if the Applicant selected the Family Demographic Commitment. Medical Facility - This service is defined in Exhibit B and may be selected by all Applicants. Pharmacy - This service is defined in Exhibit B and may be selected by all Applicants. Scoring Proximity to Services (Transit and Community) (b) Bus and Rail Transit Services and Community Services Applicants that wish to receive proximity points for Transit Services other than Private Transportation or points for any community service must provide latitude and longitude coordinates for that service, stated in decimal degrees, rounded to at least the sixth decimal place, and the distance between the [DLP] and the coordinates for the service. The distances between the DLP and the latitude and longitude coordinates for each service will be the basis for awarding proximity points. Failure to provide the distance for any service will result in zero points for that service. The Transit and Community Service Scoring Charts reflecting the methodology for calculating the points awarded based on the distances are in Exhibit C. (emphasis added). Applicants from a Large County, including Palm Beach County (where Christian Manor is located), must receive at least 10.5 Proximity Points (including at least 2.0 Transit Service points) to be eligible for consideration for funding, and at least 12.5 Proximity Points to receive the Proximity Funding Preference. In its Application, Christian Manor selected three public bus stops for its Transit Services, at claimed distances of .04 miles, .03 miles, and .51 miles from its proposed DLP. It was awarded 5 points for Transit Services. The validity of Christian Manor’s claimed Transit Services is not disputed. For its Community Services, Christian Manor identified the following services: Grocery Store - Aldi Food Market, 2481 Okeechobee Blvd., West Palm Beach, Florida 33409, at a distance of 0.73 miles Medical Facility - MD Now Urgent Care, 2007 Palm Beach Lakes Blvd., West Palm Beach, Florida 33409, at a distance of 0.82 miles Pharmacy - Target (CVS Pharmacy), 1760 Palm Beach Lakes Blvd., West Palm Beach, Florida 33401, at a distance of 0.70 miles. The Aldi Food Market meets the definition of a Grocery Store in the RFA. The MD Now Urgent Care meets the definition of a Medical Facility in the RFA. Christian Manor identified each service by latitude and longitude coordinates and by distance. These coordinates, however, did not accurately reflect the doorway threshold of either the Aldi Food Market or the MD Now Urgent Care Center. The latitude and longitude coordinates provided for the Grocery Store were erroneous. The listed coordinates identify a point over 0.9 miles away from the doorway threshold of the Aldi Food Market. The latitude and longitude coordinates provided for the Medical Facility identify a point over 0.8 miles away from the doorway threshold of the MD Now Urgent Care Center. The actual distance between the Aldi Food Market and the DLP is .73 miles. The actual distance between the street address of the MD Now Urgent Care Center and the DLP is .82 miles. Based on these identified services, Christian Manor was awarded 3 points for the Grocery Store, 3 points for the Pharmacy, and 2.5 points for the Medical Facility. The points awarded for the Pharmacy are not disputed. Parkwood argues that Christian Manor should be awarded no proximity points for its identified Grocery Store or Medical Facility. Parkwood does not argue that the Aldi Food Market is not a Grocery Store as defined by the RFA, nor does it argue that the MD Now Urgent Care is not a Medical Facility as defined by the RFA. Parkwood does not question the identified addresses for the Community Services or contest that the distances between the identified Aldi Food Market and the MD Now Urgent Care and the DLP are .73 miles and .82 miles respectively. Rather, Parkwood’s argument is narrowly focused on the fact the erroneous longitude and latitude coordinates for the grocery and medical services are not at the doorway threshold. Parkwood would have FHFC ignore the actual addresses and distances because of the error in coordinates. Respondents argue the mistake in coordinates was a minor irregularity. The RFA specifically gives FHFC the right to waive minor irregularities. Rule 67-60.008 provides the criteria that FHFC is to consider when evaluating whether an error should be waived as a minor irregularity. Minor irregularities are those irregularities in an Application, such as computation, typographical, or other errors, that do not result in the omission of any material information; do not create any uncertainty that the terms and requirements of the competitive solicitation have been met; do not provide a competitive advantage or benefit not enjoyed by other Applicants; and do not adversely impact the interests of the Corporation or the public. Minor irregularities may be waived or corrected by the Corporation. Ms. Button testified that an evaluating FHFC Review Committee member does not use the latitude or longitude coordinates to confirm the accuracy of the distances provided. Rather, the inclusion of the requirement for such coordinates dates back to when measurements were done by surveyors, who would certify the distances on a special form. FHFC no longer requires the surveyor certification form. FHFC now requires an applicant to self-designate the community services and proximity requirements. FHFC considers the actual distances as the most relevant factors when evaluating points awarded for proximity from the DLP to a selected Community Service. Ms. Button also testified that listing the incorrect latitude and longitude coordinates could, in this particular case, be waived as a minor irregularity. She explained that because the proximity points are based on the distance between the DLP and the identified services, and because the distances claimed in Christian Manor’s application were correct, the proximity points awarded were also correct. Ms. Button opined that Christian Manor did not garner a competitive advantage from the coordinate errors in the application. The coordinates did not create any uncertainty in the application as to what Community Services were identified or how far they were from the DLP. Petitioner pointed to no evidence of any such advantage. Ms. Button also testified that the error in coordinates did not result in any harm to the public or to FHFC. Again, Petitioner provided no evidence of such harm. Rather, Petitioner relies on a different application in a different RA, where the scorer for FHFC had determined that an applicant should be found ineligible because that applicant had failed to list the proper coordinates for one of its listed Community Services. That applicant, however, never challenged FHFC’s finding, and therefore never presented evidence or argument contesting this finding of ineligibility. It is unclear whether the applicant in the other case was found ineligible for other reasons as well, where that applicant was ranked, and whether there were other circumstances that would have affected the scoring and ranking in that particular RA. Ms. Button testified that if the error in coordinates had been challenged, FHFC would then have examined the particular circumstances of the situation to determine whether or not the error should have been waived as a minor irregularity. There is no dispute that the Christian Manor application contained a similar error, and that if Christian Manor had not been able to demonstrate that the claimed distances to the grocery store and medical facility were accurate, that error would have resulted in the application being found ineligible. But there is insufficient evidence to determine whether Petitioner is comparing “apples to apples” when relying on this other situation. Any reference to this other applicant in the other RA is unreliable and unconvincing. Regardless, in this case, the undersigned examined the circumstances of Christian Manor’s application and finds based on the preponderance of the evidence (made up of the stipulated facts and Ms. Button’s unrefuted testimony) any inaccuracies in the longitude and latitude coordinates provided by Christian Manor constitute a minor irregularity that may be waived by FHFC. Based on the facts established, the award to Christian Manor is reasonable and neither erroneous, arbitrary, nor capricious. WATERVIEW’S APPLICATION One of the requirements of the RFA is that applicants demonstrate certain Ability to Proceed elements. One of those elements is as follows: Appropriate Zoning. Demonstrate that as of the Application Deadline the entire proposed Development site is appropriately zoned and consistent with local land use regulations regarding density and intended use or that the proposed Development site is legally non-conforming by providing, as Attachment 9 to Exhibit A, the applicable properly completed and executed verification form: The Florida Housing Finance Corporation Local Government Verification that Development is Consistent with Zoning and Land Use Regulations form (Form Rev. 08-18) [(Zoning Form)]. As part of its application, Waterview submitted a Zoning Form executed by Elisabeth Dang, a City Public Official. The Zoning Form states, among other requirements: The undersigned service provider confirms that, as of the date that this form was signed, the above referenced Development’s proposed number of units, density, and intended use are consistent with current land use regulations and zoning designation or, if the Development consists of rehabilitation, the intended use is allowed as a legally non-conforming use. To the best of my knowledge, there are no hearings or approvals required to obtain the appropriate zoning classification. Assuming compliance with the applicable land use regulations, there are no known conditions that would preclude construction or rehabilitation of the referenced Development on the proposed site. Once it receives the Zoning Form, FHFC does not require that an applicant demonstrate in its application that it will be capable of constructing the proposed development, nor does FHFC attempt to independently verify that an applicant will be capable of constructing the proposed development during the application process. FHFC does not require an applicant to submit engineering drawings or final site plans during the application process, nor does the RFA contain any restrictions or requirements concerning the height of any proposed buildings. All of the details and verifications concerning the actual construction of the proposed project are evaluated during the credit underwriting process. Based partially on its identification of Development Type in its application to FHFC as “Mid-rise 4 stories,” Waterview’s adjusted SAIL request per affordable unit resulted in it being assigned Leveraging Level 4. If it had instead identified a Development Type of “Garden Apartments,” it would have received Leveraging Level 5. Petitioner argues that Waterview will be unable to construct the four- story mid-rise building identified in its application while also meeting a 40- foot height limitation in the local zoning code. As explained above, for the same reasons the undersigned sustained the objections to Petitioner’s exhibits relating to zoning issues and feasibility of constructing the proposed development, the undersigned finds at this stage (eligibility, scoring, and ranking), FHFC was not required to independently verify that the proposed development would comply with all building and zoning regulations.4 The evidence established that Waterview submitted the required Zoning Form executed by a person with authority from the City to execute such a form. There was no evidence presented that Waterview’s Zoning Form was improperly completed, or that it was obtained through fraud or illegality. Moreover, there was no convincing evidence that the Zoning Form was improperly completed. FHFC did not make an independent determination as to whether a proposed project would comply with all local zoning requirements, but instead relied on the representation of the local official who executed the Zoning Form. Petitioner also argues Waterview should be deemed ineligible because it presented different information to the City than it presented to FHFC in its application. Specifically, Petitioner challenges use of the term “garden apartment” by Waterview in materials it submitted to the City, but not submitted to FHFC; and the impact of Waterview’s proposed development on wetlands. The undersigned rejects these arguments for multiple reasons. 4 Had Waterview been awarded funds, but its proposed development could not be built due to zoning restrictions, that would be addressed during the credit underwriting process. First, Petitioner alleges that the presentation of additional information to the City somehow conflicts with the Applicant Certification and Acknowledgement Form that applicants are required to sign which provides in relevant part: “In eliciting information from third parties required by and/or included in this Application, the Applicant has provided such parties information that accurately describes the Development as proposed in this Application.” Ms. Button, however, testified that providing more information to the local government than is presented to FHFC would not in itself conflict with this statement in this form. Second, Mr. Savino’s deposition testimony established he had a number of communications with the City regarding the proposed project and submitted numerous documents for the City to review. Mr. Savino testified he used the term “garden apartments” when discussing the project with the City to refer to apartment complexes, not to the FHFC definition of “garden apartments” as being three stories or less. There is no evidence rebutting Mr. Savino’s version of events, nor is there any indication what the City understood the term to mean. Third, Petitioner argues that Waterview’s proposed project might have impacted wetlands on the property, contrary to relevant regulations. However, Mr. Savino testified that Waterview could build the project without impacting wetlands. Waterview also included among the documents submitted to the City a Revised Preliminary Site Plan which indicated that the Waterview development would not impact wetlands. Regardless, even if it had been shown that the Waterview project would impact wetlands, this would only impact its ability to receive NHTF funds; it would not have any impact on whether FHFC deems an applicant eligible for funding under this RFA. Ms. Button testified that each applicant is required to check a box on the application indicating whether it is seeking this special funding, but none are required to take it. This special funding is not considered by FHFC when evaluating an applicant’s funding sources during the application review process, and FHFC does not even evaluate an applicant’s eligibility for the NHTF during the scoring process. Even if Petitioner could prove Waterview would not be able to qualify for the special funding, there would be no impact on the scoring of its application. Ultimately, Petitioner presented no evidence that the City had somehow been misled into signing the Zoning Form required by the RFA, or that it had not understood that the proposed project involved a four-story building. The fact that the Ms. Dang did sign the Zoning Form indicates that she believed the City had all the information it needed to do so. Based on the preponderance of the evidence, Waterview’s application is eligible for funding.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Respondent, Florida Housing Finance Corporation, enter a final order consistent with its initial decisions: (1) finding the applications of Waterview Preserve, LLC, and Christian Manor Restoration, LLC, eligible for funding; (2) awarding the RFA funding to Christian Manor Restoration, LLC; and (3) dismissing the formal written protest of BDG Parkwood Lofts, LP. DONE AND ENTERED this 19th day of June, 2020, in Tallahassee, Leon County, Florida. S HETAL DESAI Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 19th day of June, 2020. COPIES FURNISHED: Hugh R. Brown, General Counsel Florida Housing Finance Corporation 227 North Bronough Street, Suite 5000 Tallahassee, Florida 32301-1329 (eServed) Michael P. Donaldson, Esquire Carlton Fields Suite 500 215 South Monroe Street Tallahassee, Florida 32302 (eServed) Michael J. Glazer, Esquire Ausley McMullen 123 South Calhoun Street Post Office Box 391 Tallahassee, Florida 32302 (eServed) Christopher Dale McGuire, Esquire Florida Housing Finance Corporation 227 North Bronough Street, Suite 5000 Tallahassee, Florida 32301-1329 (eServed) Corporation Clerk Florida Housing Finance Corporation 227 North Bronough Street, Suite 5000 Tallahassee, Florida 32301-1329 (eServed)
The Issue Whether Petitioner was the subject of unlawful discrimination in the provision of services or facilities in connection with her dwelling based on her race or handicap, in violation of the Florida Fair Housing Act, chapter 760, Part II, Florida Statutes.
Findings Of Fact Petitioner is a 51-year-old black female who relocated to Leesburg, Florida, from Port Chester, New York, in February 2012. Respondent, Richman Property Services, Inc., is the corporate owner/manager of Laurel Oaks Apartments (Laurel Oaks) located at 131 Bayou Circle in Leesburg, Florida. Amy Lewis is the Community Manager of Laurel Oaks. Petitioner rented a two-bedroom apartment unit from Respondent from February 24, 2012, until she moved to Orlando, Florida, on December 3, 2012. Petitioner?s daughter, Sushon Dillard, occupied the apartment with Petitioner during her tenancy at Laurel Oaks. Petitioner spoke with Ms. Lewis via telephone to inquire regarding the availability of a unit at Laurel Oaks while Petitioner was still residing out of state. Petitioner applied for tenancy at Laurel Oaks by faxing her application to Ms. Lewis. Petitioner?s application was accompanied by a copy of her award letter documenting Social Security Disability Insurance (SSDI) payments as proof of income. On February 24, 2012, Petitioner signed a lease for Laurel Oaks unit #103, paid a security deposit, and moved into the unit. Petitioner has a current clinical diagnosis of “schizophrenia, paranoid.” She also claims to be diagnosed bi- polar with Tourrete?s Syndrome. While Petitioner presented no documentation of the additional diagnosis, her testimony on this issue is credible and is accepted by the undersigned. Petitioner was first hospitalized for treatment of an unspecified mental illness at Bellevue Hospital in New York in 1982. She apparently lived without significant incident for the next 26 years. Petitioner had a “breakdown” in 2008, while living in Arizona, and another “breakdown” that same year in New York, for which she was hospitalized at Greenwich Hospital in Connecticut, and later transferred to Stamford Hospital in Connecticut. Petitioner reports that since April 2008, she has “spent time in numerous mental institutions in Arizona, Florida, Georgia, Maryland and New York.” Petitioner?s most recent incident occurred in August 2012, while she was living at Laurel Oaks. She was taken by police to a local facility named “Life Stream” where she was treated for a number of days, then returned home to her apartment at Laurel Oaks with her daughter. Petitioner appeared calm and controlled at the final hearing. She testified that she is taking her medications and doing very well. Petitioner claims that when she moved into the unit at Laurel Oaks, it was not cleaned, was “infested with dead roaches,” and the washing machine was filthy. Petitioner?s daughter testified there were dead roaches even in the dishwasher. Petitioner also bases her allegation of discrimination on Respondent?s accusation in April 2012, that Petitioner had not paid a $300 security deposit prior to occupying her apartment. When Petitioner paid her April rent, Trifonia Bradley, an employee in the office at Laurel Oaks, informed Petitioner she still owed a $300 security deposit. Petitioner responded that she had paid the deposit on February 24, 2012. Although the evidence was not clear as to the specific date, Petitioner later met with Ms. Bradley and brought in her receipt showing the $300 had been paid in February. After that meeting, Petitioner received a phone call from Ms. Lewis apologizing for the error and stating something to the effect of “we are all good.” Petitioner believes Respondent was attempting to take advantage of her disability and trick her into paying the deposit again. At final hearing, Petitioner and her daughter presented evidence and testimony regarding additional alleged discriminatory acts by Respondent. Petitioner alleged that someone employed by, or otherwise acting on behalf of Respondent, sabotaged her automobile; harassed her by requesting her daughter fill out a separate rental application in order to live with her; harassed Petitioner about her request for accommodation based on her disability and claimed she had not demonstrated that she was disabled under the Americans with Disabilities Act; threatened to tow away her car because it was inoperable; and stole money from her apartment. Each of these additional alleged acts occurred after September 21, 2012, the date on which FCHR issued its determination of no cause, and was not investigated by FCHR. Petitioner is intelligent and articulate. Her exhibits were well-organized and contained copious documentation of the alleged discriminatory acts occurring after September 21, 2012. Her documentation included correspondence with Laurel Oaks? management, notices which were posted on the apartment door, copies of numerous forms and applications, and a police report. In contrast, Petitioner offered no tangible evidence regarding the condition of the property upon occupancy other than her testimony, which was not persuasive. She introduced no photographs, no written complaint, and no correspondence with the manager or other employees of Laurel Oaks regarding the condition of the apartment. In fact, she offered no evidence that she brought the condition of the unit to the attention of Laurel Oaks? management. Given the totality of the evidence, including the demeanor of the Petitioner and Ms. Dillard, the undersigned finds that either the unit was not unclean or Petitioner did not bring the condition of the unit to the attention of Laurel Oaks upon occupying the unit. Further, the undersigned finds that Laurel Oaks erroneously requested the security deposit in April 2012, and corrected the error after reviewing Petitioner?s documentation. The mistake was not an act of discrimination based either on race or disability.2/
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. 2012H0289. DONE AND ENTERED this 27th day of December, 2012, in Tallahassee, Leon County, Florida. S Suzanne Van Wyk 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 27th day of December, 2012.
Findings Of Fact Respondent has a bachelor of science degree in accounting and a master of business administration with an emphasis in accounting. Both degrees are from Florida State University. However, Respondent is not a licensed certified public accountant. From 1982 to 1986, Respondent was employed by Deloitte Touche, one of the "big-six" accounting firms. He worked in Deloitte's Los Angeles office. After one year in audit, Respondent was assigned to the tax department of Deloitte. In 1986, Lorimar-Telepictures, Inc.--an entertainment industry conglomerate--hired Respondent as Director of Taxes. In this position, Respondent was responsible for tax planning and compliance issues for the parent and its affiliates. In 1989, Respondent returned to Florida to work with Rafor Management, Inc. (Rafor), which is owned primarily by Respondent's parents, Mr. and Mrs. Cicco. Mr. Cicco, Mrs. Cicco, and Respondent are the officers of Rafor. Rafor is a licensed real estate company. Mrs. Cicco is a licensed real estate broker and has placed her license with Rafor. Mr. Cicco is a licensed real estate sales person. Respondent is neither a licensed real estate broker nor a licensed sales person. Rafor manages real estate projects. The majority of these projects were constructed by an affiliated company. Mr. Cicco's expertise is in development, including construction and management, and he owns companies and partnerships that are involved with the projects that he has developed. Respondent has assumed the role of Chief Financial Officer of about 10- 15 entities, including Rafor, owned by his father. Respondent also provides tax planning and automated financial services for his father's companies and partnerships. Rafor is a small organization with few, if any, employees outside of three members of the Cicco family. The Shore Manor Condominium Association, Inc. is the first and last time that Rafor attempted to provide management services to an association of homeowners or condominium owners. The Board of Directors of Shore Manor, which consists of 54 units, invited Rafor to make a presentation in connection with their search for management assistance. At the time, the condominium residents were reluctant to serve as directors and sign association checks due to liability concerns. Representing Rafor, Mr. Cicco made a presentation to the Board of Directors and later negotiated the conditions of the agreement between Rafor and Shore Manor. Respondent played a relatively minor role in the presentation or the negotiations. A corporate resume submitted by Rafor to Shore Manor does not identify individuals involved with Rafor, but limits itself to corporate characteristics. However, the resume closes as follows: "If you have any questions, please call me at [telephone number omitted]. Thank you for your consideration." Beneath this statement is Respondent's signature over his typewritten name and title of Chief Financial Officer. After receiving proposals from several prospective management companies, Shore Manor selected Rafor in December 1991. Except for some year- end matters, Rafor began serving as the management company on January 1, 1992. The resulting management agreement, which is dated December 24, 1991, recites that Rafor is in the "business of providing management and supervision for the operation, conduct and management of condominium buildings." The agreement states that Rafor will "order and supervise" all labor and materials supplied in connection with the operation, management, and maintenance of the condominium project and pay all obligations of the condominium association. The agreement authorizes Rafor to collect all regular and special assessments from association members and foreclose assessment liens in the name of the condominium association. The management agreement provides that the association will assess the members the amount set forth in the annual budget, as adopted by the association through its Board of Directors "and any Manager or Management Company which may from time to time be employed by the of [sic] the Association to prepare such annual budget . . .." "Management Company" is defined in the management agreement to mean "Rafor." "Manager" is an undefined term. Other provisions of the management agreement authorize Rafor to supervise the bookkeeping records and order all work and materials needed for the day-to-day operation, maintenance, and repair of the condominium project. The management agreement requires that Rafor to provide an onsite "Manager" for at least two hours weekly and for attendance at monthly association meetings. Ensuing provisions of the management agreement identify Rafor or the "Manager" as the entity to be directed by the association in providing specific services. The term of the management agreement is three years. The association agrees to pay Rafor $16,000 annually, plus reimbursement of authorized expenditures made by Rafor on behalf of the condominium association. Respondent signed the agreement on behalf of Rafor, noting beside his name that he is the Chief Financial Officer of Rafor. The management agreement imperfectly reflects the practice of the parties, especially as to the role of the "Manager." No individual ever served as an onsite manager during the time in question. Rafor's duties regarding financial matters were carefully circumscribed. There are two main accounts (ignoring a relatively minor laundry account, whose receipts were handled exclusively by the association). The accounts are for regular assessments and reserve assessments. Residents paid these assessments by checks payable to Shore Manor and delivered directly to Rafor. Authorized signatories on the accounts into which these funds were deposited were Respondent, Mrs. Cicco, the association president, and the association treasurer. Although Respondent signed nearly all of the association checks, the president and treasurer of the association closely supervised Rafor during the term of the management agreement. Mr. Cicco first approved all invoices. Then, he or Respondent would convey the information to the president or treasurer, who would tell Respondent to write the check. There was daily contact between the president and treasurer, on the one hand, and Mr. Cicco and Respondent, on the other hand. Except during the summer months, when many residents were out of town, Rafor submitted the ledger and canceled checks to the entire Board of Directors monthly for their review and approval. Neither Respondent nor Rafor had much responsibility regarding budgets either. Respondent, on behalf of Rafor, entered all transactions on spreadsheets. Rafor ran the budget numbers from a preceding interval and, at prescribed intervals, proposed options to a special Budget Committee for their consideration. In one such report, dated November 23, 1991, Rafor described three options for a budget with brief discussions of each. Advising the president that final action was the responsibility of the Board, the letter concludes that "I would welcome the opportunity to review and discuss all aspects of our proposal with you." The letter is signed by Respondent as Chief Financial Officer. Respondent handled other Shore Manor financial matters for which Rafor was responsible. By letter to Shore Manor residents dated January 25, 1992, Respondent, as Chief Financial Officer, outlined the adopted budget and advising that assessments were due. The letter concludes that if there are any questions or requests for help, residents should "feel free to call me at [telephone number omitted]." Respondent's remaining financial services for Shore Manor were limited to the preparation of tax or information returns for the association. In general, Respondent was less involved in maintenance matters than he was in financial matters, where his father has relatively little expertise. The most important maintenance issue that arose during the term of the management agreement involved substantial repairs to an existing seawall. Shore Manor is on the Gulf of Mexico and is protected by a seawall. One day, Respondent or Mr. Cicco learned that someone had fallen in a hole that had eroded behind the seawall protecting the condominium project. Rafor handled the seawall problem flawlessly. Its first response was to hire an engineer to prepare a written report on the condition of the seawall and available options. Mr. Cicco did not attempt to deal with this engineering problem himself. After the engineer completed his report recommending elaborate repairs, Rafor contacted another engineer who orally agreed with the findings of the first engineer. The first report cost about $300. When Respondent or Mr. Cicco relayed the oral findings of the second report, coupled with the second engineer's offer to prepare a written report for a fee, the Board of Directors told them not to bother obtaining another written report. There was considerable discussion among residents as to the best course to take. There is evidence that the Shore Manor residents resisted actions that resulted in the increase of regular or special assessments upon them. For instance, some residents opposed Rafor's sensible proposal that Shore Manor substantially increase its reserves to the amount maintained by a nearby, substantially similar condominium. Rafor took the position that, once the deterioration of the seawall had been documented, Rafor had a fiduciary duty to the association to recommend the repairs identified by the engineer. However, several residents remained strongly opposed to the repairs. At one point, by letter dated April 8, 1993, Respondent, as Chief Financial Officer of Rafor, asked for an opinion letter from an attorney concerning the individual and corporate liability that would arise from failing to repair the seawall. The opinion letter, which was addressed to Respondent, as Chief Financial Officer, warned of potential liabilities. The seawall issue demanded considerable time from Rafor in the persons of Respondent and Mr. Cicco. At one point, they submitted a detailed invoice showing that they had expended $42,900 in time with an actual invoice of $2500, which was the figure on which the president and Mr. Cicco had agreed. For the first nine months of 1993, Mr. Cicco spent 319 hours and Respondent spent 110 hours on the seawall matter. Respondent and his father each attended several special meetings of the residents and Board of Directors devoted to the seawall issue. Eventually, the requisite number of residents approved the seawall repairs, and the Board of Directors authorized Rafor to solicit bids for the proposed repair project. As Rafor's Chief Financial Officer, Respondent signed letters in July 1993 soliciting bids and informing residents of the status of the bidding process. Rafor obtained four bids, and the Board selected a bid in the amount of $65,000. The contractor began the repairs in the fall of 1993 and completed the project at $5000 under budget. In early 1993, Mr. Cicco and Respondent discovered that Shore Manor had failed to register as a condominium and no one at Rafor had obtained the required license as a community association manager. On March 1, 1993, Respondent, as Chief Financial Officer of Rafor, submitted to Petitioner an information request form, evidently in connection with the registration of Shore Manor. On March 11, 1993. Mr. Cicco became licensed as a community association manager. Mr. Cicco and Respondent decided, based on the advice of counsel, that the law required only Mr. Cicco to obtain the license and not also Respondent. Eventually, residents opposed to the seawall project filed a complaint with Petitioner. Following an investigation, Petitioner commenced this case. The parties amicably terminated the management agreement in October 1994. In a related case, Petitioner prosecuted Mr. Cicco for providing services as a community association manager without a license. By Consent Order dated August 29, 1994, the parties settled the case with Mr. Cicco paying a fine of $1500. There is absolutely no evidence of fraud or mismanagement of Shore Manor matters by Rafor, Mr. Cicco, or Respondent. To the contrary, Rafor, and Respondent individually, appear to have provided wise counsel and valuable services to the association. Petitioner has failed to prove that Respondent individually noticed or conducted meetings of the association. Petitioner tried to prove that Respondent controlled or disbursed funds or prepared budgets or other financial documents for the association. This is a close issue. Respondent answered with proof that he worked under the direct supervision of his licensed father, but it is unlikely that, given the backgrounds and areas of expertise of the two men, Mr. Cicco supervised Respondent as to these matters. However, the president and treasurer of Shore Manor left Respondent no managerial discretion in the control or disbursement of association funds. They were in daily contact with Respondent, who signed checks as a convenience to them and other directors. The president and treasurer delegated no meaningful authority to Respondent or Rafor as to the control or disbursement of association funds and effectively reduced their services to those of a bookkeeper, who is willing to undergo the liability of a signatory on an association checking account. Respondent prepared alternative budgets, but there is no evidence that he presented them to the association with recommendations. Rather, he merely ran spreadsheets based on past costs with some input from various members of the Budget Committee on projected future costs for such items as cable television and utilities. Respondent then provided the output to the Budget Committee, so they could adopt a budget. Again, the services of Rafor and Respondent concerning budgets does not significantly exceed the services offered by a good bookkeeper. The supervision of Board members over Respondent likely was less direct when it came to the matter of preparing tax or information returns. However, Petitioner failed to prove exactly what Respondent prepared, and Respondent himself did not know. It is thus impossible to find that the financial document was a document of any more substance than, for instance, a change-of-address form. The question of coordinating maintenance is also close. Respondent's involvement with maintenance is less than his involvement with financial and budgetary matters, but the statute does not require as much activity in the area of maintenance as it does in financial and budgetary matters. Unlike the other statutory provisions, which speak in terms of "controlling," "disbursing," and "preparing," management regarding maintenance arises merely by "coordinating." Respondent's involvement with the seawall project rises to the level of coordination, unless his testimony is credited that he signed the various letters, such as to the prospective bidders, as a convenience to his father. The ultimate question is therefore whether Respondent performed only clerical or ministerial functions under the direct supervision and control of a licensed manager. Unlike the situation regarding finances, the backgrounds and areas of expertise of Respondent and his father militate in favor of close supervision and control when it comes to maintenance matters. The evidence discloses that Respondent has absolutely no background in construction, while his father has a substantial background in construction. Working on the seawall matter, Mr. Cicco spent nearly three hours for every one that Respondent spent. Moreover, most of Respondent's time was directed toward handling the complaints of dissatisfied association members, while a much greater percentage of Mr. Cicco's time went toward coordinating with the engineer in the design of the repaired seawall. The same relationship between father and son characterizes Respondent's involvement in other maintenance projects during the term of the management agreement. Of course, this defense is unavailable to Respondent during the period that Mr. Cicco was unlicensed from no later than January 1, 1992, through March 11, 1993. Petitioner did not plead a timeframe for the violations. Petitioner's main witness testified that she believed the timeframe extended past even the filing of the Notice to Show Cause. (Tr. p. 83.) Although Respondent might have legitimately claimed confusion on this point to preclude evidence concerning acts earlier than March 11, 1993, he candidly disclaimed such an interpretation when he stated that he thought that the covered period ran from December 1991 or January 1992 to March 11, 1993. (Tr. p. 84.) It is unnecessary to consider the timeframe that Petitioner intended to encompass in the Notice to Show Cause. Petitioner failed to prove that Respondent coordinated maintenance for Shore Manor prior to the licensure of his father. Respondent prepared the letter to the attorneys and bid solicitation letters after Mr. Cicco was licensed. The record does not establish that Respondent coordinated maintenance of the seawall or anything else prior to that time.
Recommendation It is RECOMMENDED that the Division of Florida Land Sales Condominiums and Mobile Homes enter a final order dismissing the Notice to Show Cause against Respondent. ENTERED on July 25, 1996, in Tallahassee, Florida. ROBERT E. MEALE, 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 on July 25, 1996. APPENDIX Rulings on Petitioner's Proposed Findings 1 (except last sentence): adopted or adopted in substance. 1 (remainder): rejected as not finding of fact. 2-5 (except last sentence): adopted or adopted in substance. 5 (remainder): adopted or adopted in substance, except for implication that such an act, alone, satisfies the statutory criterion. Also, this finding is rejected if it implicitly precludes the finding that Respondent was under Mr. Cicco's supervision in coordinating maintenance. 6: adopted or adopted in substance. Also, this finding is rejected if it implicitly precludes the finding that Respondent was under Mr. Cicco's supervision in coordinating maintenance. 7: rejected as unsupported by the appropriate weight of the evidence. 8: rejected as recitation of evidence. 9 (except last sentence): adopted or adopted in substance. (remainder): rejected as unsupported by the appropriate weight of the evidence. (except last sentence): adopted or adopted in substance. 10 (remainder): rejected as unsupported by the appropriate weight of the evidence. 11: rejected as unsupported by the appropriate weight of the evidence. 11(a)-(c): adopted or adopted in substance as subordinate facts. 12: rejected as subordinate and unsupported by the appropriate weight of the evidence. 13-18: adopted or adopted in substance. 19: adopted in substance as to financial and budgetary matters, except as to implication that Respondent exercised discretion as to such matters. Rejected as unsupported by the appropriate weight of the evidence as to other matters. 20: rejected as recitation testimony and subordinate. 21: rejected as subordinate. 22-23: rejected as subordinate and unsupported by the appropriate weight of the evidence. Rulings on Respondent's Proposed Findings 1-3: adopted or adopted in substance. 4: rejected as irrelevant. 5-6: adopted or adopted in substance. 7: adopted or adopted in substance, except that the financial and budgetary services were not under the direct supervision of Mr. Cicco. 8: adopted or adopted in substance. COPIES FURNISHED: James Norred, Acting Director Division of Florida Land Sales, Condominiums and Mobile Homes 1950 North Monroe Street Tallahassee, Florida 32399-0792 Lynda L. Goodgame, General Counsel Department of Business and Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399-0792 Theresa Bender, Senior Attorney Department of Business and Professional Regulation Division of Florida Land Sales, Condominiums and Mobile Homes 1940 North Monroe Street Tallahassee, Florida 32399-1007 Robert A. Cicco, Jr. 9190 Oakhurst Road, Suite 2 Seminole, Florida 34646
