The Issue Whether Petitioner was subjected to housing discrimination by Respondent based on Petitioner's race, African-American, in violation of the Florida Fair Housing Act.
Findings Of Fact Petitioner Miguel Johnson is an African-American male and, therefore, belongs to a class of persons protected from discrimination under the Florida Fair Housing Act, Sections 760.20 through 760.37, Florida Statutes (2009). He filed a complaint for housing discrimination against Riviera Towers at 6896 Abbott Avenue in Miami Beach. Respondent Riviera Terrace Apartments (Riviera Terrace) was apparently erroneously named Riviera Towers in the complaint and in the style of this case. Notice of that error was given by the owner, Arie Markowitz, and in the absence of any indication that Riviera Terrace is a corporate entity, Mr. Markowitz is also added as a Respondent. The style has been corrected to reflect these corrections. Riviera Terrace, 6890 Abbott Avenue, Miami Beach, Florida, 33141, is a 20-unit apartment complex. Mr. Johnson thought that the complex has 22 units, but there is no evidence to support his thinking. Contrary to his request, the undersigned has no independent investigative powers and must accept the evidence in the record. According to his records, Mr. Johnson, on March 17, 2009, telephoned a number he saw on a "For Rent" sign at Riviera Terrace. A woman identified as Diana Miteff answered the telephone. Mr. Johnson said Ms. Miteff identified herself as the manager of the complex. The telephone records indicate that the conversation lasted one minute. Mr. Johnson testified that Ms. Miteff told him to call back later. Mr. Johnson telephoned Ms. Miteff again on March 21, 2009, and his records indicate that they talked for 8 minutes. Mr. Johnson testified that Ms. Miteff told him about the security deposit, that the rent for a one bedroom apartment was $900 a month, and that she had some vacant efficiencies. Mr. Johnson testified that a friend of his, Pedro Valdes, lives in the same complex and that together they met with Ms. Miteff the day after Mr. Johnson talked to her on the telephone, and saw a vacant efficiency apartment. According to Mr. Johnson, Ms. Miteff told him, after seeing him, that there were no vacancies. Ayesha Azara, Mr. Johnson's wife, testified that she made another unsuccessful attempt to rent a unit in Riviera Terrace in May 2009. She had no information in March 2008, except to say tht Ms. Miteff claimed to be the manager and told her the building was for elderly people. Pedro Valdes testified that he lives in Riviera Towers and gave his address as 6896 Abbott Avenue. He said that the "For Rent" sign for Riviera Terrace is not always posted in front of the complex. Mr. Markowitz is the owner of Riviera Terrace at 6890 Abbott Avenue. He testified that he is also the manager and that Ms. Miteff is a tenant. He uses her telephone number on the "For Rent" sign because he does not speak Spanish. The apartments are government-subsidized Section 8 housing. The only vacant efficiency in March 2008 was a unit for which he already had a written lease, but the tenant could not move in until after a government-required inspection. He also testified that his tenants are not all Caucasians and not all elderly. Ms. Miteff confirmed that she has been a resident of Riviera Terrace for 20 years. She concedes that she told Mr. Johnson's wife that the people in the complex are very quiet and mostly old people. Mr. Johnson's claim of discrimination based on race is not supported by the evidence, which is contradictory with regard to the name and address of the property, and because there were no vacant apartments at Riviera Terrace in March 2008.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that: The Petition for Relief be dismissed. DONE AND ENTERED this 15th day of October, 2009, in Tallahassee, Leon County, Florida. S ELEANOR M. HUNTER Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 15th day of October, 2009. COPIES FURNISHED: Denise Crawford, Agency Clerk Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301 Larry Kranert, General Counsel Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301 Louis A. Supraski, Esquire Louis A. Supraski, P.A. 2450 Northeast Miami Gardens Drive 2nd Floor North Miami Beach, Florida 33180 Miguel Johnson 916 West 42nd Street, Apt. 9 Miami Beach, Florida 33140 Miguel Johnson C/O Robert Fox 1172 South Dixie Highway Coral Gables, Florida 33146 Diana Mittles Riviera Terrace Apartments 6896 Abott Avenue Miami Beach, Florida 33141
The Issue Whether Respondent discriminated against Petitioner on the basis of handicap in violation of the Florida Fair Housing Act and, if so, the relief to which Petitioner is entitled.
Findings Of Fact At times relevant to this proceeding, Petitioner, a female born in October 1953, received housing assistance from a federally funded assistance program referred to as the Section 8 Choice Voucher program (the Section 8 program). The Section 8 program relevant to this proceeding is administered by Respondent and has eligibility criteria that a participant must meet. A participant receives a voucher from the Section 8 program that pays part, but not all, of the participant’s rent. Petitioner has also received Supplemental Security Income (SSI) at all times relevant to this proceeding. Respondent knew that Petitioner received SSI, but it had no information as to why she qualified to receive SSI. At the times relevant to this proceeding, Petitioner’s landlord was named Rupert Phipps. On May 27, 2007, Mr. Phipps issued to Petitioner a notice styled “Three-day Notice for Non- payment of Rent pursuant to Florida Statutes" (Notice). After stating the amount owed and the address of the rented premises, the Notice demanded “. . . payment of the rent or possession of the Premises within three days (excluding Saturday, Sunday and legal holidays). ” Petitioner was evicted from her apartment. The date of the eviction was not established. After being advised by Mr. Phipps that Petitioner had failed to pay her rent, Ms. Smith mailed to Petitioner a certified letter dated July 6, 2007, stating that she would be terminated from the Section 8 program effective August 6, 2007. The stated reason for the termination was Petitioner’s failure to pay rent to the landlord, which is considered a serious violation of the lease and, therefore, a violation of 24 C.F.R. § 982,511(4)(c), which prohibits a participant in the Section 8 program from committing any serious or repeated violation of the lease with the participant’s landlord. Ms. Smith’s letter also contained the following statement: . . . If you wish to appeal this decision, you have the right to an informal hearing. The request must be submitted to this agency in writing within 10 days from the date of this letter. Your request should be directed to Alex Morales, Executive Director. The ten-day period for the appeal is part of Respondent’s written policies and is consistent with the requirements of 24 C.F.R. § 982.554(a), that require an agency such as Respondent to have a written appeals process. Respondent has consistently treated the failure of a participant to pay his or her share of the rent as a serious violation of a lease. Petitioner was familiar with Respondent’s appeal process because she had successfully appealed a prior notice of termination of her participation in the Section 8 program. Ms. Smith’s letter was received by Petitioner on July 7, 2007. At some undetermined time between July 7 and July 19, 2007, Ms. Tennie called Ms. Smith and told Ms. Smith that she was sick. Ms. Smith told Ms. Tennie that she would have to follow the instructions set forth in the letter and respond in writing if she wanted an informal appeal. On July 19, 2007, Petitioner sent the following letter to the attention of Ms. Smith and Mr. Morales: Would you give me Mae Tennie another hearing because I got the letter to [sic] late and I was in the hospital due to an anurism [sic] stroke at the brain their [sic] was blood on my head and I’m still rehabilitating the after affects [sic] of this serious condition. In the case of my Section 8 voucher being terminated I plead for another hearing due to the terms [sic] of my hospitalization. Respondent received Petitioner’s letter on July 23, 2007. Petitioner’s written request for an appeal was after the ten-day deadline for filing the request. By letter signed by Mr. Morales and dated July 25, 2007, Respondent denied Petitioner’s request contained in her letter dated July 19 as follows: I am in receipt of your letter requesting a hearing. Please be advised that your request for a hearing cannot be granted because your request was not made within the required 10 day period. For this reason, your case will remain closed. No further action was taken by either party to this proceeding until December 2007, when Petitioner sought the services of Legal Services of Greater Miami, Inc. On December 20, 2007, Mr. Lewis, as counsel for Petitioner, sent the following letter to Mr. Morales: This office represents Ms. Mae Tennie regarding her participation in the Section 8 program administered through the Hialeah Housing Authority (“HHA”). Ms. Tennie has been a participant of Section 8 through HHA for the past 25 years. On July 6, 2007, HHA served Ms. Tennie with notice of its intent to terminate her Section 8 assistance on the basis that she violated one of her obligations under the program. The notice informed Ms. Tennie of her right to appeal the decision and to attend an informal hearing. The written request was to be submitted to HHA within 10 days of the date of the letter. Ms. Tennie faxed her written request for an appeal on July 19, 2007. A copy of Ms. Tennie’s letter is attached as “Attachment A.” In her request, she notified HHA that she was unable to submit her request within the time required because she [had] been, and still was, recovering from a brain aneurism.[2] On or about July 31, 2007, HHA notified Ms. Tennie that her request was denied because it was submitted too late. Ms. Tennie requests that HHA reconsider its denial and provide Ms. Tennie with an informal hearing to appeal the termination. Ms. Tennie is an elderly woman in failing health. In June 2007, Ms. Tennie was hospitalized twice at Jackson South Community Hospital as a result of suffering an “intracranial hemorrhage.”[3] I have attached copies of supporting medical documentation as “Attachment B.” As a result of this very serious medical condition, Ms. Tennie’s cognitive abilities were significantly diminished. Ms. Tennie was bed-bound and only able to communicate under great strain. The Fair Housing Act, the Americans with Disabilities Act, and Section 504 of the Rehabilitation Act of 1973, prohibits [sic] any agency or landlord receiving federal funds to deny equal access for individuals with disabilities to housing or other program benefits and services. To ensure individuals with disabilities have equal access to those services and benefits, an agency or landlord is required to provide reasonable accommodations to that person’s disability. One form of reasonable accommodations is the modification of a program rule or policy. The right to a hearing to appeal the termination of Section 8 assistance is a benefit that Ms. Tennie, as a participant, was entitled to. Ms. Tennie made clear in her letter to HHA that she was unable to comply with HHA’s time requirement because of her disabling medical condition. Ms. Tennie also asked that the policy be modified to accommodate her disability. HHA should have reasonably accommodated Ms. Tennie’s disability by simply modifying the time period by adding 3 extra days for her to submit her request for a hearing. By failing to do so, HHA effectively denied Ms. Tennie equal access to federal benefit under the Section 8 program, that of having a hearing to appeal her termination. Ms. Tennie is therefore renewing her request to HHA for reasonable accommodations to her disability by modifying the time limit to request a hearing. For the above reasons, Ms. Tennie requests that HHA reconsider its denial and provide Ms. Tennie a hearing to challenge her termination from Section 8. Please do not hesitate to contact me with any questions or additional information at ... . [telephone number omitted.] [Footnotes omitted.] By letter dated December 26, 2007, Respondent denied the request set forth in Mr. Lewis’s letter. Thereafter, Petitioner filed the complaint with HUD that culminated in this proceeding as described in the Preliminary Statement of this Recommended Order. Ms. Tennie was hospitalized June 7, 2007, and discharged June 14, 2007. Mr. Lewis attached to his letter a discharge summary from Jackson Memorial Hospital, which contained the following diagnoses on discharge: Intracranial hemorrhage with intraventricular extension secondary to uncontrolled hypertension. Diabetes. The discharge summary reflects that Petitioner had fallen the Saturday before admission and had hit her head on a doorknob. The discharge summary reflects that on discharge she was awake, alert, and oriented times three. She had fluent speech and she was able to ambulate without difficulty. She was instructed to make an appointment with her primary care doctor in one week and to follow up in the Jackson Memorial’s Stroke Clinic in 4 to 8 weeks. Petitioner was discharged to home in a stable condition. Petitioner scheduled an appointment with Milton R. Bengoa, M.D., and on June 18, 2007, she kept that appointment. No finding is made as to Petitioner’s physical status as determined by Dr. Bengoa because nearly all of his notes of that meeting are illegible. In response to questions from her attorney, Petitioner testified as follows beginning at page 27, line 12: Q. And Ms. Tennie, can you please describe what your current health conditions are? A. Right now it’s not very good, because after I had the aneurism I have been having problems walking and problems breathing and I have seizures that I never had before until I had the aneurism and I take all kinds of medicines. And I just found out last week I have a brain mass and they don’t know if it is cancer or what, because the blood that was left in my head was still there so I have excruciating headaches. Q. And could you please explain what your health condition was at or about the time you suffered the stroke or shortly after you had suffered the stroke? A. Well, shortly after I suffered the stroke I had to try and walk all over again, because my memory where I had the stroke at, the neurologist said that it was so deep in my brain that they couldn’t do surgery and that it was going to mess my motor skills up. So I had to learn how to swallow. I forgot how to swallow meat and stuff, so I started eating soft food. I had problems breathing, so when I come [sic] home I had a breathing machine – oxygen machine there. My daughter had to help me try to walk all over again. Q. And so I take it you had someone helping you? A. Yes. My daughter. I moved home with my daughter, because they wanted to put me out at Purdue, it is a nursing facility, but she wanted me to come home with her, so that is what I did. I went home with my daughter and I stayed there for six months. Then I found the place down the street, close to her, which was a two bedroom. Q. Now, prior to suffering the stroke, how was your – can you describe what your health condition was. A. Before I had the stroke, I was sick too. I have congestive heart failure, so I kept going back and forth into the hospital because of my breathing. When the water built up around my heart it had [sic] me to where I can’t breathe. So I have to go in and let them pull the water off. And I was sick before I had the stroke. Petitioner also testified that she could not timely request a hearing and blamed that inability on her general medical condition. Petitioner’s testimony as to her medical condition shortly after the hospitalization is unconvincing because it contradicts the description of her medical condition as described by her treating physician in the discharge notes. The evidence established that Petitioner received Ms. Smith's letter dated July 6, 2007, and understood its contents. Petitioner’s testimony is insufficient to establish that her medical condition caused her failure to timely request an informal hearing to appeal of the termination of her participation in the Section 8 program. Petitioner failed to establish that she required an extension of the expired deadline to request an informal hearing as a “reasonable accommodation” of her condition.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is hereby RECOMMENDED that the Florida Commission on Human Relations enter a final order finding Respondent not liable for the acts of discrimination alleged in the subject Petition for Relief. DONE AND ENTERED this 16th day of December 2009, in Tallahassee, Leon County, Florida. CLAUDE B. ARRINGTON Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 16th day of December 2009.
The Issue The issue to determine in this bid protest matter is whether Respondent, Florida Housing Finance Corporation’s, intended award of funding under Request for Applications 2017-113 was contrary to its governing statutes, rules, or the solicitation specifications.
Findings Of Fact Florida Housing is a public corporation created pursuant to section 420.504, Florida Statutes. Its purpose is to provide and promote public welfare by administering the governmental function of financing affordable housing in Florida. Florida Housing has been designated as the housing credit agency for Florida within the meaning of section 42(h)(7)(A) of the Internal Revenue Code. As such, Florida Housing is authorized to establish procedures to distribute low-income housing tax credits and to exercise all powers necessary to administer the allocation of these credits. § 420.5099, Fla. Stat. For purposes of this administrative proceeding, Florida Housing is considered an agency of the State of Florida. Florida Housing administers the competitive solicitation process to award low-income housing tax credits and other funding by means of request for proposals or other competitive solicitation. Florida Housing initiates the competitive solicitation process by issuing a Request for Applications. §§ 420.507(48) and 420.5087(1), Fla. Stat.; and Fla. Admin. Code R. 67-60.009(4). The low-income housing tax credit program (commonly referred to as “tax credits” or “housing credits”) was enacted to incentivize the private market to invest in affordable rental housing. Tax credits are awarded competitively to real estate developers in Florida for rental housing projects which qualify. Typically, developers then sell the tax credits to raise capital for their housing projects. Because tax credits allow developers to reduce the amount necessary to fund a housing project, they can (and must) offer the tax credit property at lower, more affordable rents. Developers also agree to keep rents at affordable levels for periods of 30 to 50 years. The Request for Applications at issue in this matter is RFA 2017-113, entitled “Housing Credit Financing for Affordable Housing Developments Located in Broward, Duval, Hillsborough, Orange, Palm Beach, and Pinellas Counties.” The purpose of RFA 2017-113 is to distribute funding to create affordable housing developments in the State of Florida. Through RFA 2017-113, Florida Housing intends to provide an estimated $14,601,863.00 of housing credit financing. Florida Housing issued RFA 2017-113 on October 6, 2017. Applications were due to Florida Housing by December 28, 2017.6/ Florida Housing received 33 applications in response to RFA 2017-113. Five proposed developments, including FOUR6 Skyway7/ and Eagle Ridge, applied for funding for housing credits in Pinellas County. Upon receipt of the applications, Florida Housing assigned each applicant a lottery number. Florida Housing created a Review Committee from amongst its staff to score each application. The Review Committee reviewed, deemed eligible or ineligible, and ranked applications pursuant to the terms of RFA 2017-113, as well as Florida Administrative Code Chapters 67-48 and 67-60, and applicable federal regulations. As further explained below, the Review Committee deemed FOUR6 Skyway’s application ineligible for consideration under RFA 2017-113. Specifically, the Review Committee determined that FOUR6 Skyway’s application failed to state its housing project’s Development Location Point in “decimal degrees, rounded to at least the sixth decimal point” as expressly required by Section Four, A.5.d(1), of RFA 2017-113. Conversely, the Review Committee found that Eagle Ridge’s application satisfied all mandatory and eligibility requirements for funding and was awarded 20 out of 20 total points. Eagle Ridge was assigned a lottery number of 16. On March 16, 2018, the Review Committee presented its recommendation of preliminary rankings and allocations to Florida Housing’s Board of Directors. Based on the Review Committee’s recommendations, the Board of Directors (without explanation) stated that FOUR6 Skyway did not satisfy all mandatory and eligibility requirements for funding. Consequently, although FOUR6 Skyway was assigned a lower lottery number of 2, the Board of Directors selected Eagle Ridge for funding to develop affordable housing in Pinellas County. (Only applications that met all eligibility requirements were considered for selection.) The Board of Directors approved $1,660,000.00 in housing credit funding for Eagle Ridge’s housing project. FOUR6 Skyway protests Florida Housing’s selection of Eagle Ridge instead of its own housing project. FOUR6 Skyway specifically challenges Florida Housing’s determination that its application was ineligible under the terms of RFA 2017-113. If FOUR6 Skyway successfully demonstrates that Florida Housing erred in disqualifying its application, FOUR6 Skyway, by virtue of holding the lower lottery number, will be selected for housing credit financing in Pinellas County instead of Eagle Ridge. The focus of FOUR6 Skyway’s challenge is the information it provided in response to RFA 2017-113, Section Four, A.5.d., entitled “Latitude/Longitude Coordinates.” RFA 2017-113, Section Four, A.5, entitled “Location of Proposed Development” instructs, in pertinent part: The Applicant must indicate the county where the proposed Development will be located. This RFA is only open to proposed Developments located in Broward, Duval, Hillsborough, Orange, Palm Beach, and Pinellas counties. * * * d. Latitude/Longitude Coordinates (1) All applicants must provide a Development Location Point[8/] stated in decimal degrees, rounded to at least the sixth decimal place. In its application, FOUR6 Skyway responded to Section Four, A.5.d(1), as follows: [Latitude in decimal degrees, rounded to at least the sixth decimal place.] N 27 43 34.215880 [Longitude in decimal degrees, rounded to at least the sixth decimal place] W 82 40 47.887360 As shown above, FOUR6 Skyway stated its Development Location Point in a “degree/minute/second” format instead of the required “decimal degrees” format.9/ Because FOUR6 Skyway failed to comply with the Section A.5.d instruction to state the Development Location Point in decimal degrees, the Review Committee (and subsequently the Board of Directors) determined that FOUR6 Skyway’s application was ineligible for funding.10/ In arguing that its application was eligible under RFA 2017-113, FOUR6 Skyway contends that map coordinates written in a “degree/minute/second” format may be converted to decimal degrees by using the following mathematical equation: Degree + minute/60 + second/3600 = decimal degrees. Using this formula, the coordinates FOUR6 Skyway listed in its application can be converted into the following decimal degrees: Latitude: N 27 43 34.215880 equals 27.726171 decimal degrees Longitude: W 82 40 47.887360 equals - 82.679969 decimal degrees Florida Housing does not dispute that the latitude/longitude coordinates FOUR6 Skyway listed (in either the “degree/minute/second” or decimal degree formats) correspond to a map location that would have been eligible for funding under RFA 2017-113. Consequently, FOUR6 Skyway argues that Florida Housing could have, and should have, used this “simple” mathematical formula to obtain the decimal degrees of its Development Location Point. FOUR6 Skyway further claims that it included sufficient information on the face of its application for Florida Housing to pinpoint the exact location of its proposed housing development in Pinellas County. Not only did FOUR6 Skyway list the address of its development, but it attached to its application a Surveyor Certification Form which also identified its Development Location Point using the “degree/minute/second” format.11/ FOUR6 Skyway asserts that, in light of the fact that the term “decimal degrees” is not defined by statute, rule, or in RFA 2017-113, Florida Housing should have deemed its application eligible for funding based on the information it provided. Finally, FOUR6 Skyway contends that Florida Administrative Code Rules 67-60.002(6) and 67-60.008 authorize Florida Housing to waive “minor irregularities” in applications. FOUR6 Skyway maintains that Florida Housing should have exercised its discretion and waived FOUR6 Skyway’s failure to state its Development Location Point in decimal degrees as a “minor irregularity.” Therefore, Florida Housing should have found FOUR6 Skyway’s application eligible for funding under RFA 2017-113. In response to FOUR6 Skyway’s challenge, Florida Housing asserts that it properly acted within its legal authority to disqualify FOUR6 Skyway’s application. Florida Housing argues that FOUR6 Skyway, by stating the latitude/longitude coordinates of its Development Location Point in the (unacceptable) “degree/minute/second” format, failed to comply with the express terms of RFA 2017-113, thus rendering its application ineligible for funding. In support of its position, Florida Housing presented the testimony of Marisa Button, Florida Housing’s Director of Multifamily Allocations. In her job, Ms. Button oversees the Request for Applications process. Ms. Button initially explained the procedure by which Florida Housing awarded funding under RFA 2017-113. Ms. Button conveyed that Florida Housing created a Review Committee from amongst its staff to score the applications. Florida Housing selected Review Committee participants based on the staff member’s experience, preferences, and workload. Florida Housing also assigned a backup reviewer to separately score each application. Review Committee members independently evaluated and scored discrete portions of the applications based on various mandatory and scored items. Thereafter, the scorer and backup reviewer met to reconcile their scores. If any concerns or questions arose regarding an applicant’s responses, the scorer and backup reviewer discussed them with Florida Housing’s supervisory and legal staff. The scorer then made the final determination as to each application. For RFA 2017-113, Florida Housing assigned Karla Brown, a Multifamily Programs Manager, as the lead scorer for the “proximity” portion of RFA 2017-113, which included the Section Four, A.5.d, latitude/longitude coordinates of the Development Location Point. Ms. Brown has scored proximity points for Requests for Application for approximately ten years. At the final hearing, Florida Housing offered the deposition testimony of Ms. Brown. In her deposition, Ms. Brown testified that, upon reviewing FOUR6 Skyway’s application, she immediately noticed that FOUR6 Skyway did not use decimal degrees to record the latitude/longitude coordinates of its Development Location Point. Ms. Brown explained that Florida Housing’s mapping software required applicants to list their Development Location Points in decimal degrees in order to locate the proposed housing project. The software would not allow her to plot latitude/longitude coordinates written in the “degree/minute/second” format. Consequently, she was not able to determine the location of (or award “proximity” points to) the FOUR6 Skyway development. As a direct result, Ms. Brown determined that FOUR6 Skyway’s application was ineligible for an award of funding under RFA 2017-113. Furthermore, Ms. Brown considered whether she should waive FOUR6 Skyway’s latitude/longitude coordinates as a “minor irregularity.” She determined that waiving FOUR6 Skyway’s “degree/minute/second” coordinates was not appropriate because RFA 2017-113 expressly instructed applicants to state the Development Location Point in the distinct format used by its mapping software, i.e., decimal degrees. At the final hearing, Ms. Button elaborated on Ms. Brown’s testimony maintaining that an applicant’s use of decimal degrees for its Development Location Point was critical in Florida Housing’s review of each application. Ms. Button reiterated that Florida Housing uses the application’s Development Location Point to confirm that the proposed housing project is located in the area covered by the Request For Applications. Ms. Button explained that when latitude/longitude coordinates are submitted in the wrong format, it is impossible for Florida Housing staff to plot the Development Location Point using its internal mapping software. Regarding FOUR6 Skyway’s argument that Florida Housing should have considered its “degree/minute/second” format as a “minor irregularity,” Ms. Button testified that Florida Housing recognizes that developers occasionally make errors in their applications. In light of this possibility, the rules governing the competitive solicitation process authorize Florida Housing to waive “minor irregularities.” As provided in rule 67-60.008, [Florida Housing] may waive Minor Irregularities in an otherwise valid Application. Mistakes clearly evident to the Corporation on the face of the Application, such as computation and typographical errors, may be corrected by the Corporation; however, the Corporation shall have no duty or obligation to correct any such mistakes. See also Fla. Admin. Code R. 67-60.002(6) and RFA 2017-113, Section Three, A.2.C. However, Ms. Button declared that the difference between latitude/longitude coordinates stated in “degree/minute/seconds” versus “decimal degrees” is more than just a “minor irregularity.” Converting map coordinates into decimal degrees goes beyond simply correcting a computational or typographical error. Such action requires the scorer to actually calculate the coordinate point on behalf of the applicant. Ms. Button explained that scorers are not prepared or trained on how to mathematically determine map coordinates. (In her deposition, Ms. Brown testified that she did not “even know how to begin to try to convert” a “decimal/minutes/second” coordinate to decimal degrees. She is a “scorer,” not a “surveyor.” Ms. Brown relayed that she was specifically trained to use the decimal degrees numbers, and only the decimal degrees numbers, to plot Development Location Points in the Florida Housing mapping software.) Ms. Button added that, not only would converting latitude/longitude coordinates into decimal degrees place the burden on the scorers to correctly enter an applicant’s data into the mapping software program, but, a scorer might miscalculate the plot points. This result would taint the reliability of the scoring process. Consequently, Florida Housing did not believe that it should have exercised its discretion to waive FOUR6 Skyway’s improper latitude/longitude coordinates and convert its “degree/minute/second” Development Location Point into decimal degrees. Therefore, Florida Housing fully supported Ms. Brown’s decision not to waive FOUR6 Skyway’s response to Section Four, A.5.d., as a “minor irregularity.” Finally, Ms. Button professed that transcribing latitude/longitude coordinates into decimal degrees would be contrary to competition by relieving an applicant of the minor, but real, burden of accurately plotting its project’s Development Location Point. Such a practice would allow a Florida Housing scorer to independently modify (and thus, benefit) a developer’s application, thereby enabling it to prevail over other applicants. Finally, at the formal hearing, FOUR6 Skyway presented evidence of other “minor irregularities” Florida Housing has waived in past Requests for Applications.12/ FOUR6 Skyway argues that, in light of these prior decisions, Florida Housing’s failure to waive its nonconforming latitude/longitude coordinates in this matter was arbitrary and capricious. However, FOUR6 Skyway did not offer any evidence or elicit any testimony that Florida Housing has ever waived similar coordinate formatting errors. On the contrary, Ms. Button stated that she was not aware of any other instance where Florida Housing waived an applicant’s listing of latitude/longitude coordinates in “degree/minute/seconds,” instead of decimal degrees, as a “minor irregularity.” Based on the evidence presented at the final hearing, FOUR6 Skyway did not establish, by a preponderance of the evidence, that Florida Housing’s decision finding FOUR6 Skyway’s application ineligible for funding was clearly erroneous, contrary to competition, arbitrary, or capricious. Therefore, the undersigned concludes, as a matter of law, that Petitioner did not meet its burden of proving that Florida Housing’s proposed action to award housing credit funding to Eagle Ridge under RFA 2017-113 was contrary to its governing statutes, rules or policies, or the provisions of RFA 2017-113.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Florida Housing Finance Corporation enter a final order dismissing the protest by FOUR6 Skyway. It is further recommended that Florida Housing Finance Corporation select Eagle Ridge as the recipient of housing credit funding under RFA 2017-113. DONE AND ENTERED this 24th day of July, 2018, in Tallahassee, Leon County, Florida. S J. BRUCE CULPEPPER 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 24th day of July, 2018.
The Issue The issues in this case are whether Respondents unlawfully discriminated against Petitioners on the basis of race, or retaliated against them for exercising a protected right, or both, in violation of the Florida Fair Housing Act.
Findings Of Fact Because no evidence was admitted into the record at the final hearing, the undersigned cannot make any findings of fact. § 120.57(1)(j), Fla. Stat. (“Findings of fact shall be based … exclusively on the evidence of record and on matters officially recognized.”).
Recommendation Based on the foregoing Conclusions of Law, it is RECOMMENDED that the Florida Commission on Human Relations enter a final order finding Respondents not liable for housing discrimination and awarding Petitioners no relief. DONE AND ENTERED this 27th day of October, 2020, in Tallahassee, Leon County, Florida. S JOHN G. VAN LANINGHAM 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 October, 2020. COPIES FURNISHED: Antonio Carraway Whang Carraway 1406 Southwest Osprey Cove Port St. Lucie, Florida 34986 (eServed) Jillian Sidisky, Esquire Stefanie S. Copelow, Esquire Cole, Scott & Kissane, P.A. 222 Lakeview Avenue, Suite 120 West Palm Beach, Florida 33401 (eServed) Tammy S. Barton, Agency Clerk Florida Commission on Human Relations 4075 Esplanade Way, Room 110 Tallahassee, Florida 32399 (eServed) Cheyanne Costilla, General Counsel Florida Commission on Human Relations 4075 Esplanade Way, Room 110 Tallahassee, Florida 32399 (eServed)
The Issue Whether the registered general contractor's license and the registered pool contractor's license of the Respondent Eversole should he suspended or revoked, or whether Respondent should be fined.
Findings Of Fact Petitioner, Florida Construction Industry Licensing Board, filed a Second Amended Administrative Complaint against Respondent, Thomas W. Eversole d/b/a Pools by Eversole, Inc. on August 24, 1978 seeking to revoke the general contractor's license and registered pool contractor's license held by Respondent and to impose a fine of $500.00. The Complaint alleged that the Petitioner would not allow Respondent to qualify Gunite Contractors of Pensacola, Inc. as an additional company under Petitioner's license but Respondent did contract and construct pools under the name of Gunite Contractors of Pensacola, Inc.; and further that the Respondent, in violation of Ft. Walton Beach's building code, constructed a swimming pool at the residence of Dr. Eugene R. Valentine without a current city occupational license and without a permit. Respondent Eversole appeared before the Petitioner on January 14, 1977 to qualify Gunite Contractors of Pensacola, Inc. He appeared to request a change of status from qualifying pools by Eversole, Inc. to qualifying Gunite Contractors of Pensacola, Inc. After a motion to lay it on the table had been made, a new motion was made denying Mr. Eversole's request. The denial of the request to qualify Gunite Contractors of Pensacola, Inc. was for the reason that after an investigation of financial responsibility and the credit and business reputation of the individual, it was recommended that Mr. Eversole be denied the license. The motion to lay it on the table was "until such time as the judgments against Mr. Eversole have been satisfied". Subsequent thereto a contract was entered into between Dr. Valentine and Gunite Contractors of Pensacola, Inc. for the building of his pool. The City of Ft. Walton Beach issued a license and a job permit for the pool construction subsequent to March 28, 1977, the date of the agreement between Dr. Valentine and Gunite Contractors of Pensacola, Inc. Petitioner Eversole was the President of Gunite Contractors of Pensacola, Inc., (which was not registered or certified with the Florida Construction Industry Liensing Board, at the time of the building of the pool but he was not a stockholder of that corporation. The pool was built for Dr. Eugene R. Valentine who testified that he was satisfied with its construction and had paid Gunite Contractors of Pensacola, Inc. The Hearing Officer further finds that: The parties stipulated at the hearing that Respondent Eversole holds a pool contractor's license and a general contractor's license. The subject pool was constructed by Gunite Contractors of Pensacola, Inc. Petitioner abandoned allegation in paragraph 6(a) of the Second Amended Complaint contending Respondent violated Section 468.112(2)(a), Florida Statutes, having no evidence to show a willful or deliberate violation of the Fort Walton Beach building code. Petitioner contends: Respondent is guilty of contracting without being registered. Respondent aided an unregistered person to engage in the business of contracting. Respondent contends: That he holds registration and is therefore eligible to construct pools, as well as to do general contracting work and that there are no complaints as to his work. That Gunite Contractors of Pensacola, Inc. built the pool, and that if any party violated the Florida Construction Industry Licensing law it was Gunite and not the Petitioner. That he felt Gunite was Qualified and went ahead as president of the company and built the pool.
Recommendation Suspend the certificates of registration of Respondent from all operations as a contractor until he can satisfy the board as to his financial responsibility, credit and business reputation. DONE and ENTERED this 29th day of December, 1978 in Tallahassee, Florida. DELPHENE C. STRICKLAND Hearing Officer Division of Administrative Hearings Room 101, Collins Building Tallahassee, Florida 32301 (904) 488-9675 COPIES FURNISHED: Michael Egan, Esquire 217 South Adams Street Tallahassee, Florida 32302 Samuel W. Bearman, Esquire 26 East Garden Street Pensacola, Florida 32501
The Issue Whether Respondent, Florida Housing Finance Corporation’s (“Florida Housing”), decision to award funding, pursuant to Request for Applications 2017-111 (“the RFA”), to HTG Sunset, LLC (“Sunset Lake”); HTG Creekside, LLC (“Oaks at Creekside”); and Harper’s Pointe, LP (“Harper’s Pointe”), is contrary to its governing statutes, rules, or the RFA specifications; and, if so, whether the decision is clearly erroneous, contrary to competition, arbitrary, or capricious.
Findings Of Fact Petitioner Madison Oaks is the Applicant entity for a proposed affordable housing development to be located in Osceola County, Florida. Petitioner Sterling Terrace is the Applicant entity for a proposed affordable housing development to be located in Hernando County, Florida. American Residential and Sterling Terrace are Developer entities as defined by Florida Housing in Florida Administrative Code Rule 67-48.002(28). Sunset Lake, Oaks at Creekside, and Harper’s Pointe are all properly registered business entities in Florida in the business of providing affordable housing. Florida Housing is a public corporation organized pursuant to chapter 420, Part V, Florida Statutes, and, for the purposes of these proceedings, an agency of the State of Florida. Through the RFA, Florida Housing proposes to award an estimated $10,978,942 in Housing Credit Financing for Affordable Housing Developments located in medium and small counties (“affordable housing tax credits”). The RFA outlines a process for selecting developments for funding. Section Five B. outlines the Selection Process, and subsection 2. is the Application Sorting Order. On November 5, 2017, Florida Housing received 167 applications in response to the RFA. Madison Oaks, Sterling Terrace, Sunset Lake, Oaks at Creekside, and Harper’s Pointe timely submitted applications seeking funding to assist in the development of multi-family housing in medium counties. Florida Housing selected a review committee to score all submitted applications. The review committee issued a recommendation of preliminary rankings and allocations, and the Board of Directors of Florida Housing approved these recommendations on May 4, 2018. The Board found that the parties to this proceeding all satisfied the mandatory and eligibility requirements for funding, but awarded funding to Intervenors based upon the ranking criteria in the RFA. If Sterling Terrace can demonstrate that any two of the three Intervenors should not have been recommended for funding, it and Blue Sunbelt, LLC, will displace them as applications selected for funding. If Madison Oaks can demonstrate that all three Intervenors should not have been recommended for funding, Sterling Terrace and Blue Sunbelt, LLC, will displace them as applications selected for funding. Sunset Lake Section Four A.5.e.(3) of the RFA allows applicants to receive up to four points for proximity to certain community services. The RFA provides that applicants in medium counties must receive at least seven points to be eligible for funding, and at least nine points to be eligible for a Proximity Funding Preference. One of those community services is public schools, which are defined as follows: A public elementary, middle, junior and/or high school, where the principal admission criterion is the geographic proximity to the school. This may include a charter school, if the charter school is open to appropriately aged children in the radius area who apply, without additional requirements for admissions such as passing an entrance exam or audition, payment of fees or tuition, or demographic diversity considerations. Additionally, it must have been in existence and available for use by the general public as of the Application Deadline. (emphasis added). Sunset Lake identified the Jewett School of the Arts (“Jewett School”) as a public school, received four points for proximity, and as a result, was eligible for the Proximity Funding Preference. The Jewett School is a magnet school within the Polk County Florida School District. The Jewett School was in existence and available for use by the general public as of the application deadline. Petitioners maintain the Jewett School does not meet the definition of “public school.”4/ If the Jewett School does not meet the definition of a “public school,” Sunset Lake would not be entitled to four points for proximity to community services. As a result, it would have a total of seven points for proximity, and while it would remain eligible, it would lose the Proximity Funding Preference. As a result, Sunset Lake would not have been ranked as highly and would not have been recommended for funding. The Jewett School does not meet the RFA definition of “public school” because geographic proximity to the school is not the principal admission criterion. Although a student must live in Polk County Schools’ Magnet Zone B to apply for admission to the Jewett School, the principal admission criteria is a random lottery process. Geographic location within the Polk County magnet school zones is a threshold issue which qualifies a student to apply for admission. However, the magnet school decision-making process entails a subsequent elaborate demographic diversity analysis, sorting based on the outcome of that analysis, and, ultimately, a random lottery drawing which determines final admission. The Jewett School admission process is contrary to Florida Housing’s primary purpose of awarding proximity points to proposed housing developments--to ensure the intended residents can, in fact, use the services in proximity to the development. Sunset Lake is not entitled to four points for proximity to community services and should not be awarded Proximity Funding Preference. As a result, Sunset Lake should not have been ranked as highly and should not have been recommended for funding. Oaks at Creekside Oaks at Creekside identified the Manatee Charter School (“Manatee School”) as a public school, received three points for proximity, and, as a result, was eligible for funding but not for the Proximity Funding Preference. The Manatee School is a charter school located in Bradenton, Florida. The Manatee School was in existence and available for use by the general public as of the application deadline. Petitioners maintain the Manatee School does not meet the definition of a “public school.”5/ If the Manatee Charter School does not meet that definition, then Oaks at Creekside is not entitled to three points for proximity. As a result, it would have only six total proximity points, and would not be eligible for funding. Florida Housing maintains that a charter school must meet both parts of the definition of a public school in order for a proposed development to receive proximity points based on proximity to that school. That means a charter school must (1) use geographic proximity as the primary admission criteria, and (2) be “open to appropriately aged children in the radius area who apply, without additional requirements for admissions such as passing an entrance exam or audition, payment of fees or tuition, or demographic diversity considerations.” Geographic proximity is not the primary admission criterion for the Manatee School. On the contrary, the Manatee School is open for admission regardless of geographic proximity thereto. The Manatee School operates pursuant to a contract with the Manatee County School Board, and is “open to any student residing in the Manatee County School District, students covered in an interdistrict agreement and students as provided for in Section 1002.33(10), Florida Statutes (2010).”6/ The Manatee School operates a “controlled open enrollment” process. The application period opens in early January and closes at the end of February, and the School accepts students from any school district in the state whose parent or guardian can provide transportation to the school, if the school has not reached capacity. This process is sometimes referred to as “school choice” and is mandatory pursuant to section 1002.31, Florida Statutes.7/ The Manatee School has enrolled students throughout Manatee County, as well as from adjoining Sarasota County. Historically, the Manatee School has not reached capacity. Once the School reaches capacity in any one grade level or class, students will be selected by a system-generated, random lottery process. The term “radius area” is not defined in the RFA or in Florida Housing’s rules. Florida Housing introduced no evidence regarding the meaning of the term “radius area” within the definition of “public school.” When questioned about the meaning, Marisa Button, Florida Housing’s Director of Multifamily Allocations, stated she did not know, but “[I] assume it means if the charter school has a radius area. I don’t know.”8/ The term “radius” is defined as “a bounded or circumscribed area.” Merriam-Webster Online, www.merriam- webster.com (2018). The bounded or circumscribed area for admission to the Manatee School is the Manatee County School District, pursuant to its contract. The Manatee School is open to appropriately-aged children in the radius area who apply. The Manatee School does not apply additional requirements for admission, such as passing an entrance exam or audition, payment of fees or tuition, or demographic diversity considerations.9/ The Manatee School does provide admissions preferences to students of active duty military personnel, siblings of a student already enrolled, siblings of an accepted applicant, children of an employee of the School, and children of a charter board member. Each of these preferences is authorized pursuant to section 1002.33(10)(d). The preferences are not additional requirements for admission to the Manatee School. The Manatee School meets the second part of the definition of “public school” for purpose of qualifying Oaks at Creekside to receive proximity points pursuant to the RFA. Harper’s Pointe Madison Oaks argues Harper’s Pointe is ineligible for funding pursuant to the RFA because the Harper’s Pointe development site is a “scattered site,” and Harper’s Pointe did not identify the site as such and comply with the RFA requirement to designate latitude and longitude coordinates for both sites.10/ Rule 67-48.002(105) defines “scattered sites” as follows: (105) “Scattered sites,” as applied to a single Development, means a Development site that, when taken as a whole, is comprised of real property that is not contiguous (each such non-contiguous site within a Scattered Site Development, is considered to be a “Scattered Site”). For purposes of this definition “contiguous” means touching at a point or along a boundary. Real property is contiguous if the only intervening real property interest is an easement, provided the easement is not a roadway or street. All of the Scattered Sites must be located in the same county. Section Four A.5.c. of the RFA states: “The Applicant must state whether the Development consists of Scattered Sites.” Section Four A.5.d. of the RFA requires that applicants provide latitude and longitude coordinates for the Development Location Point and any scattered sites. Section Five A.1. provides that “only items that meet all of the following Eligibility Items will be eligible for funding and consideration for funding selection.” Among the items listed are “Question whether a Scattered Sites Development answered” and “Latitude and Longitude Coordinates for any Scattered Site provided, if applicable.” Harper’s Pointe did not state in its application that the development consists of scattered sites, and did not provide separate latitude and longitude coordinates for scattered sites. Harper’s Pointe’s proposed development site, as identified in its Site Control Documents, consists of land located within a platted tract of property. The plat recorded in Alachua County indicates that the site is bisected by a platted 50-foot street easement running east/west through the property. The parties stipulated the street has never been constructed. Although portions of the east/west easement area show signs of having been improved at some time in the past, the easement area has never been paved, and is currently impassible by car or truck due to vegetation in the easement area. Even if the easement area were improved, there is no roadway to the west of the property to which it would connect. A fence runs along the property line and the property beyond the fence is platted residential lots accessed by Northeast 22nd Street. An existing roadway, Northeast 23rd Avenue, terminates at the eastern property line just south of the east/west easement. The City has placed barriers at that property line prohibiting access to the property from Northeast 23rd Avenue. If the platted street is a “roadway or street” as those terms are used in rule 67-48.002(105), the site would meet the definition of a “scattered site.” Ms. Button testified on behalf of Florida Housing that the property meets the definition of a scattered site because “there is an easement that is a road or a street” that bisects the property. Ms. Button first testified that Florida Housing’s determination did not depend on whether a roadway or street is actually constructed within the easement, but rather, “it goes back to the easement, whether there is an easement that is a roadway or street.” Ms. Button’s testimony seemed logical enough. If the easement were a street easement, access between the northern and southern portions of the development site would be constrained. By contrast, if the easement were a conservation or utility easement, there would be no impairment of access between portions of the development site. However, on cross examination, Ms. Button testified that, in making the determination whether an easement for a road or street existed, Florida Housing would consider a number of other factors, including whether a roadway was actually constructed within the easement, whether there were physical obstructions preventing access to the “prospective” roadway or street, and whether the public had a right to use the “prospective” roadway or street. Ms. Button did not testify with specificity what factors she considered in making the determination that the easement, in this case, was “a roadway or street.” Ms. Button’s direct-examination testimony was conclusory: “Based on the documentation we received, there is an easement that is a road or street.” On direct examination, her determination appeared to be based solely on the plat designation of a street easement. On cross-examination, however, Ms. Button testified that “a street designated . . . on a plat could be evidence of the existence of a scattered site.” (emphasis added). Moreover, Ms. Button testified that Florida Housing could consider whether a roadway or street was actually constructed, whether there were obstructions to its use, and whether the public had a right to use the purported roadway. Ms. Button’s testimony that the Harper’s Point development site was a scattered site was equivocal, and the undersigned does not accept it as either reliable or persuasive.11/ There is no physical roadway or street constructed within the easement. While there is some evidence that some portions of the easement area were improved in the past, said improvement was at least 25 years old. The current condition of the property is fairly heavily wooded. To the extent a “path” exists on the property, it is not passable by a standard four- wheeled vehicle. Moreover, there are physical barriers preventing vehicular access to the property from the adjoining street to the east. There is no access to the property from the residential development to the west of the property. There is not an improved area preventing access from the northern to the southern portion of the development site. There is no structure built within the easement which would have to be demolished in order to build the project on the development site as a single parcel. Based on the entirety of the reliable evidence, the Harper’s Pointe development site is not a “scattered site” as defined in the RFA. Madison Oaks failed to prove that Florida Housing’s initial determination to award tax credits to Harper’s Pointe, pursuant to the RFA, was incorrect.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Florida Housing issue a final order finding (1) that its initial scoring decision regarding Sunset Lake was erroneous, and awarding funding to the applicant with the next highest lottery number; and (2) awarding funding to Oaks at Creekside and Harper’s Pointe, pursuant to its initial scoring decision. DONE AND ENTERED this 23rd day of August, 2018, 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 23rd day of August, 2018.
The Issue Whether Respondent, Century Realty Funds, Inc., violated the Florida Fair Housing Act, Chapters 760.20 through 760.37, Florida Statutes (2006), by failing to install a poolside chairlift as requested by Petitioner.
Findings Of Fact Based on the oral and documentary evidence presented at the formal hearing and on the entire record of this proceeding, the following Findings of Fact are made: Petitioner is physically disabled and protected for the purposes of the Florida Fair Housing Act. Respondent is the owner of Plantation Landings Mobile Home Park ("Plantation Landings") in Haines City, Florida. Plantation Landings is a 55-year-old and older community. It owns and leases the lots to the owner-tenants of Plantation Landings. Because Respondent owns the Plantation Landings real estate and the subject swimming pool, it has the sole discretion to approve the requested improvements. The swimming pool area is handicap accessible. It is a public swimming pool and regulated by the State of Florida, Department of Health. It was built approximately 30 years ago; there are no known existing construction plans for the pool. The swimming pool is surrounded by a wheelchair-accessible path, and the pool itself has two separate sets of handrails; one for the deep end and one for the shallow end. There are steps leading into the shallow end of the pool and a ladder leading into the deep end. The swimming pool does not have a poolside chairlift. The swimming pool area is not supervised by life guards. Plantation Landings does not provide any supportive services to its residents, such as counseling, medical, therapeutic, or social services. The owner-tenants of Plantation Landings are members of the Plantation Landings Mobile Home Park Homeowners' Association ("Homeowners' Association"), which is a voluntary homeowners' association. Petitioner and his wife are members of the Homeowners' Association. Petitioner and his wife purchased a home in Plantation Landings and leased a lot from Respondent on February 8, 2001, pursuant to a Lease Agreement of the same date. Petitioner is a paraplegic and is able to move about by wheelchair. He is able to access the swimming pool common area in his wheelchair. However, he is not able to get in and out of the pool by himself. He has attempted to get into the swimming pool with the assistance of other residents. He would like to be able to have access into the swimming pool without relying upon the assistance of other residents so that he can exercise. In April 2003, Petitioner discussed the feasibility of installing a poolside chairlift at the swimming pool with Respondent's agent. Petitioner offered to pay for the poolside chairlift and installation at his own expense. On April 1, 2003, Petitioner submitted a written request to Respondent requesting that Respondent install a poolside chairlift. Petitioner delivered his April 1, 2003, written request, literature, and video regarding the poolside chairlift to Respondent's agent. The request did not include any specifications or engineered drawings, nor did it state the proposed location for the poolside chairlift. The poolside chairlift initially proposed by Petitioner was the Model IGMT, which was an in-ground manually-operated lift with a 360-degree seat rotation. In its consideration of Petitioner's request, Respondent determined that the design and construction of the pool and the surrounding common areas were in compliance with all state and federal statutes and regulations and that the pool area and common areas to the pool were accessible by wheelchair. Respondent determined that it was not required to install a poolside chairlift for access into the pool. Respondent also learned that the IGMT model was not Americans With Disabilities Act compliant. It was Respondent's conclusion that the poolside chairlift was cost-prohibitive and a dangerous hazard. When Petitioner returned to Plantation Landings in November 2003, he was advised of Respondent's decision not to provide the requested poolside chairlift. In March 2004, Petitioner requested the assistance of James Childs, president of the Homeowners' Association, for the purpose of making a second request to Respondent for the installation of a poolside chairlift. On March 7, 2004, Mr. Childs, on Petitioner's behalf, wrote Respondent requesting a poolside chairlift. On May 3, 2004, Respondent wrote Mr. Childs denying the request. Over the several years Petitioner has resided in Plantation Landings, he has requested modifications to accommodate wheelchair accessibility. These requests included modifications to the ramp at the front of the clubhouse, modifications adding an additional wheelchair ramp to the back of the clubhouse for access into the clubhouse, and modifications to the handicap parking spaces in front of the clubhouse. All of Petitioner's requests for modifications were honored. In May 2006, Petitioner, again with the assistance of Mr. Childs, made a third request to install a poolside chairlift. This third request was identical to his two prior requests made in 2003 and 2004. This request was denied by letter on April 27, 2006. On December 23, 2006, Petitioner filed a Complaint with the U.S. Department of Housing and Urban Development alleging that Respondent had discriminated against him on the basis of his disability by refusing to allow him to install a poolside chairlift at his own expense.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Florida Commission on Human Relations enter a final order dismissing with prejudice the Petition for Relief for failure to establish an unlawful discriminatory act by Respondent, or, alternatively, that the claim is time-barred and that the Commission lacks jurisdiction to consider the Petition for Relief. DONE AND ENTERED this 15th day of February, 2008, in Tallahassee, Leon County, Florida. S JEFF B. CLARK Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 15th day of February, 2008.
The Issue The first issue in this case is whether Respondent violated the Fair Housing Act, Section 760.20, et seq., Florida Statutes (2004),1 by denying Petitioners housing based on their race. There is also a jurisdictional issue in this matter: whether Petitioners' initial complaint of housing discrimination was timely filed pursuant to the Florida Fair Housing Act, Section 760.34, Florida Statutes.
Findings Of Fact Callie Glover is an elderly African-American woman. She and her daughter, Debra Glover (jointly referred to herein as the Petitioners), are residents of the State of Florida. Respondent, The Summit at Hunter's Creek (now known as Camden Hunter's Creek and referred to herein as "Hunter's Creek"), is an upscale, multifamily apartment community located in Orlando, Florida. On April 17, 2004, Petitioners applied for residency at Hunter's Creek. Each Petitioner filled out an Application for Residency setting forth her current place of residence, occupation, educational background, etc. The application forms were pre-printed by Hunter's Creek and filled out in pen by the Petitioners. Each Petitioner signed her respective application on April 17, 2004, and each paid a non-refundable $50 application fee. A $150 administrative fee was also paid, but was refundable only if the application was denied or if the applicants canceled or withdrew their application within three days. Petitioners advised Hunter's Creek that they would be utilizing a Section 8 voucher to pay rent. The property manager, Lizzette Herron, who was ultimately responsible for the applications, had to consult with the property vice president on how to handle a Section 8 application because she had little experience with them. She was advised that Petitioners would need to meet the regular financial criteria, i.e., an income three times the rental amount, in order to be approved. At the time they filed the applications, neither Petitioner indicated a place of employment, but each had some income (Petitioner Callie Glover from Social Security and Petitioner Debra Glover from an undisclosed source). Hunter's Creek conducted a financial screening of the Petitioners through SafeRent, a company used by Hunter's Creek to investigate every applicant's financial condition. Upon completion of the screening, Petitioners were deemed to have insufficient income to meet the required threshold. However, Petitioners agreed to obtain a guarantee of payment from a friend with sufficient financial resources. This arrangement was acceptable to Hunter's Creek. Petitioners' application for a first-floor apartment was preliminarily approved pending receipt of a commitment letter from their chosen guarantor. A one-page fax sheet entitled "Promissory Note (The Summit Properties)" was received at Hunter's Creek on April 20, 2006. The sum and substance of the fax was this statement: "I Michelle McKnight promise to contribute $1400.00 a month towards rent to Debra Glover." This fax was accepted by Hunter's Creek as a sufficient guarantee of payment. Upon receipt of the guarantee, Hunter's Creek approved the application and issued a "Welcome Home" sheet to Petitioners, outlining the provisions of the rental agreement, i.e., apartment number, rent amount, move-in date, term of lease, and acknowledging that the application fee and administrative fee had been paid. The Welcome Sheet indicated Petitioners were approved to move in on June 1 and advised them how to arrange for utilities. The very day Hunter's Creek approved the application, Petitioners notified Hunter's Creek that Section 8 would not approve payment of the rent because the rental amount was too high. Petitioners cancelled (or withdrew) their application, and Respondent closed their file. Subsequently, Petitioners asked Hunter's Creek to refund their application fee and administrative fee. Both requests were denied because the application fees were non- refundable, and Petitioners had waited too long to request the administrative fee. Hunter's Creek calculated the time for requesting a refund as follows: April 17, the day the application was submitted, was day one. April 18 was day two, April 19 was day three, and April 20 was day four. A more traditional calculation of days would be for the day after the application (April 18) to be day one, meaning April 20 would have been day three. However, at no point did Petitioners contest the method of calculating the days. Herron noted the closing of Petitioner's file by a contemporaneous writing on the face of the file folder containing Petitioners' lease paperwork. Her note indicated the application had been cancelled on that day, April 20, 2004. Herron began to describe the reason for the cancellation when she wrote, "Section 8 would not . . . ," but for some reason did not complete the sentence. Her testimony that the file was closed on that date pursuant to discussions with Petitioners is credible. There is no evidence that Petitioners' applications were denied or rejected. Rather, it is clear that Petitioners withdrew their applications because Section 8 funds were not forthcoming to assist with rent payments. After being denied return of their fees, Petitioners filed a complaint with HUD on March 1, 2006. Petitioners maintain the complaint was filed on February 1, 2005, but there is no competent, substantial evidence to support that claim. In the alternative, Petitioners claim their request for reimbursement of fees is an on-going matter and that the complaint to HUD was made within one year of the last act of denial by Hunter's Creek. Petitioner's testimony and evidence on that issue is not credible. Hunter's Creek rents apartments to people of all races, nationalities, genders and backgrounds. The property manager, a female Cuban-American, has conducted training on fair housing laws for new employees. She is well versed in the law and strives to ensure compliance at the properties she manages. There is no evidence of discrimination. Hunter's Creek not only accepted Petitioners' applications, but had already approved them by the time Petitioners withdrew the applications.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a final order be entered by the Commission denying Petitioners' claim of discrimination. DONE AND ENTERED this 22nd day of March, 2007, in Tallahassee, Leon County, Florida. S R. BRUCE MCKIBBEN Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 22nd day of March, 2007.
The Issue The issue is whether Respondent engaged in a discriminatory housing practice, within the meaning of and in violation of the Florida Fair Housing Act, Sections 760.20 through 760.37, Florida Statutes (2005), by requiring Petitioners to submit a second application for the approval of a condominium purchase.
Findings Of Fact It is undisputed that Petitioner, Allan Kangas, has no handicap and is not a disabled person. At the conclusion of Petitioners' case-in-chief, Mr. Kangas testified that he has no handicap. The undersigned, sua sponte, entered an ore tenus order on the record dismissing the case brought by Mr. Kangas. Petitioner, Anna Kangas, is an elderly female and the mother of Mr. Allan Kangas and Mr. Sheldon Kangas, the latter being the representative in this proceeding for the named Petitioners. It is undisputed that Mr. Sheldon Kangas is not handicapped, but that Mrs. Kangas is handicapped, within the meaning of Section 760.22(7), Florida Statutes (2005), because of Alzheimer's disease. Respondent is a condominium association lawfully incorporated as a Florida corporation (Association). Respondent must operate in accordance with the Articles of Incorporation, By-Laws, and Declaration of Condominium (condominium documents). The condominium documents require the Association to approve each purchase of a condominium. On December 8, 2005, Mr. Sheldon Kangas and Mrs. Anna Kangas contracted with Ms. Mary Cox to purchase condominium unit 15, located at 23 Hatchett Creek Road. Ms. Cox is a real estate agent and a co-owner of unit 15. Ms. Cox notified Ms. Pat Williamson, Association Secretary, of the prospective purchase. For the reasons stated herein, Respondent did not discriminate against the prospective purchasers, but approved the purchase of condominium unit 18 in a timely manner after the purchasers changed their purchase contract from unit 15 to unit 18. The prospective purchasers completed an application for approval of the purchase of unit 15 sometime between December 8 and 10, 2005. The Association conducted a meeting to approve the proposed purchase on December 10, 2005. During the meeting on December 10, 2005, the purchasers informed the Association that they wished to purchase unit 18, located at 29 Hatchett Creek Road, rather than unit 15. Unit 18 was owned by Mr. Brian Isaac. Ms. Cox did not object to releasing the purchasers from the contract for the purchase of unit 15. The Association informed the purchasers that a new application for unit 18 would be required. The purchasers completed a new application under protest. At a meeting conducted on January 3, 2006, the Association approved the application for the purchase of unit 18. The purchase of unit 18 closed on January 25, 2006. The purchasers seek reimbursement of living expenses incurred for hotel rooms and meals during the delay caused by the requirement for a second application. The purchasers are not entitled to reimbursement. The purchase of unit 18 was the first time the Association had required a second application. However, it was also the first time a purchaser had changed his or her choice of units after submitting an application. The Association did not discriminate against Mrs. Kangas because of her handicap. The record evidence contains no justifiable issue of law or fact to support the alleged discrimination.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Commission enter a final order dismissing the Petition for Relief. DONE AND ENTERED this 2nd day of January 2007, in Tallahassee, Leon County, Florida. S DANIEL MANRY Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 Filed with the Clerk of the Division of Administrative Hearings this 2nd day of January 2007. COPIES FURNISHED: Cecil Howard, General Counsel Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301 Denise Crawford, Agency Clerk Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301 David G. Muller, Esquire Becker & Poliakoff, P.A. 630 South Orange Avenue, Third Floor Sarasota, Florida 34236 Shelden Kangas Allan Kangas 4578 Manor Drive Sarasota, Florida 34233
