The Issue The issue to be resolved in this proceeding concerns whether Respondent discriminated against Petitioner based upon his race and/or his age, in violation of Section 760.10, Florida Statutes (2004).2/
Findings Of Fact Based on the oral and documentary evidence adduced at the final hearing and the entire record in this proceeding, the following findings of fact are made: Respondent, Metro Corral, operates several family- oriented buffet restaurants in the Orlando area under the name "Golden Corral." Petitioner, Randall Carter, is an African-American male born on December 6, 1958. At the time he filed his charge of discrimination with the Commission on June 15, 1998, Mr. Carter was 39 years old. At the hearing, no evidence was presented to show that age was a factor in the decision not to promote Mr. Carter. Several persons Mr. Carter's age or older were promoted to managerial positions in the Golden Corral restaurant that employed Mr. Carter during the time period at issue. In August 1994, Mr. Carter was hired to work as a cook at one of Metro Corral's Orlando restaurants. Mr. Carter worked as a grill cook and a hot bar cook. Like all kitchen employees, he received cross-training outside his regular work areas, so that he could fill in at other positions when needed. Mr. Carter cross-trained in the bakery and the cold food preparation area. Mr. Carter had no prior experience as a restaurant manager. Though Mr. Carter's charge of discrimination alleged that he was not promoted to "Kitchen Manager," the evidence at hearing established that the position in question was "Assistant Manager." The charge of discrimination alleged that Mr. Carter was passed over in favor of William Thompson, "a much younger Black Male." Metro Corral's assistant managers receive extensive training. A potential assistant manager is first assigned to a certified training restaurant, where he or she works for five weeks and learns to train employees for all positions in the restaurant. Next, the assistant manager trainee is assigned to another restaurant for an additional five weeks of training, including computer operations. Finally, the trainee is sent to Raleigh, North Carolina, for two weeks of classroom training and testing. Mr. Carter alleges that he was repeatedly passed over for promotions in favor of employees with less seniority. Shelly McCormick, the director of operations for Metro Corral and the person who performed all the hiring, firing, and promotion functions in the Orlando restaurants, testified that Mr. Carter was never considered a candidate for promotion. Mr. McCormick was very familiar with Mr. Carter and his job performance. He considered Mr. Carter to be a "mediocre employee" at best. Mr. Carter did his job and was, by and large, not a disciplinary problem. However, Mr. McCormick noted that Mr. Carter did not keep his work area clean, was not always well groomed, and did not display the leadership qualities or exceptional work ethic that Metro Corral sought in potential managers. In fact, Mr. Carter once confronted a fellow employee because the employee was working too hard and "[making] everyone else look bad." Mr. Carter was also unwilling to travel to other restaurants, a requirement of the management training. Seniority was never a consideration in determining potential managers. Mr. McCormick testified that performance, work ethic, and leadership were the qualities under consideration for potential managers. In April 1998, Mr. McCormick made the decision to promote William Thompson, an African-American employee who exhibited strong leadership qualities and a powerful work ethic. At the time of the promotion, Mr. McCormick did not know whether Mr. Thompson was younger than Mr. Carter. No evidence was presented that the promotion was based on anything other than Mr. McCormick's observation of Mr. Thompson's exceptional job performance. Mr. Carter testified that on June 6, 1998, he overheard two statements that he found offensive. Both statements were allegedly made when a bus full of black people pulled into the restaurant's parking lot. Mr. Carter testified that Keith Pangle, the white general manager, told Mr. Thompson to "drop all the chicken," i.e., cook all the available chicken because a busload of black people had arrived. Mr. Carter also claimed that the lead waitress told someone to cut up all the watermelon, again, because a busload of black people had arrived. Mr. Carter told Mr. Pangle that he found his statement offensive. Mr. Pangle sat down with both Mr. Carter and Mr. Thompson to assure them that he meant nothing offensive. Mr. Pangle apologized and never again said anything on the job that could be construed as racist or otherwise offensive. Mr. Pangle denied having made any reference to the race of the people on the bus. Nonetheless, Mr. McCormick counseled Mr. Pangle against using descriptive terms for customers entering the restaurant. Mr. McCormick testified that Mr. Pangle would have given the order to "drop all the chicken" when a busload of people arrived, regardless of their color. The fryer holds about 20 pieces of chicken and takes about 15 minutes to cook them meaning that in an hour, 80 pieces of chicken can be cooked. If a busload of 100 people comes into the restaurant, the buffet would fall behind if the chicken were not "dropped" immediately. Other hot items that require only two or three minutes to fry do not have to be "dropped" all at once because they can be cooked as quickly as people eat them. Mr. McCormick testified that items such as vegetables, watermelon, and cantaloupe are also time consuming to prepare for the buffet, meaning that "when you see that bus pull up, you've got to get on it." There was no substantial, persuasive evidence to show that the employment decision made by Mr. McCormick was based in whole, or in part, on any intentional discrimination or animus based upon Petitioner's race or age.
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 the Petition for Relief. DONE AND ENTERED this 10th day of November, 2004, in Tallahassee, Leon County, Florida. S LAWRENCE P. STEVENSON 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 10th day of November, 2004.
Recommendation Based upon the findings of fact and conclusions of law recited above, it is recommended that the respondent Division of Beverage issue the type 11-C license to petitioner without further delay. Respectfully submitted and entered this 24th day of March, 1976, in Tallahassee, Florida. DIANE D. TREMOR, Hearing Officer Division of Administrative Hearings Room 530, Carlton Building Tallahassee, Florida 32304 (904) 488-9675 COPIES FURNISHED: Mr. Charles A. Nuzum Division of Beverage Johns Building. Tallahassee, Florida
Findings Of Fact Peter P. Sedler, at all times material to the complaint, has been licensed as a real estate broker, holding license 0079017. He was last licensed as a broker c/o Marshall & Sedler, Inc., 7771 St. Andrews, Lake Worth, Florida 33467. Marshall & Sedler, Inc., at all times relevant to the complaint, had been registered as a Florida real estate broker, holding license 0250511, its last licensed address was 7771 St. Andrews, Lake Worth, Florida 33467. Peter P. Sedler was the qualifying broker and officer for Marshall & Sedler, Inc. On about July 3, 1987, Tom Teixeira was employed as a salesman by Cartier Realty, of 11852 42nd Road North, Royal Palm Beach, Florida. Cartier Realty had solicited, through a direct mailing, listings for property in the Royal Palm Beach area. Ms. Mary Myers, an older woman of about 70 years of age, responded to the advertisement, and gave Mr. Teixeira an open listing for real property which she owned. While Mr. Teixeira placed a Cartier Realty "For Sale" sign on the property, the sign was somehow removed shortly thereafter, and no party dealing with Ms. Myers during the months of July, August and September of 1987 would have been placed on notice that Cartier Realty had any listing on the property. Mr. Sedler had nothing to do with the disappearance of the sign. Ms. Myers had originally acquired the property from her daughter. Long before Ms. Myers gave a listing to Cartier Realty, William Kemp and his wife Gina DiPace Kemp had told Ms. Myers that they were interested in purchasing the property, which is adjacent to the home of Mr. and Mrs. Kemp. When Mr. and Mrs. Kemp first contacted Ms. Myers, she had wanted to keep the property, in the belief that she might eventually convey it back to her daughter. Mr. Teixeira brought to Ms. Myers an offer from David R. and Maureen C. Rose to purchase the land for $11,900. Ms. Myers did not accept that offer, but the Roses accepted Ms. Myers' counteroffer on July 24, 1987, to sell it for $12,300. The sale was contingent upon the buyers obtaining financing; they applied for a loan, and ordered both an appraisal and a survey. The closing was to be held by September 1, 1987. (Contract, paragraph VI.) The closing date passed, without the buyers obtaining the necessary financing, so the contract was no longer effective. On about September 8, 1987, Mr. Teixeira attempted to contact Ms. Myers. He had obtained no written extension of the contract but hoped the sale might yet close. Ms. Myers told Teixeira that she was still willing to sell the property to Mr. and Mrs. Rose. In the meantime, Mr. and Mrs. Kemp became aware that Ms. Myers wanted to sell the property, because they noticed Mr. and Mrs. Rose coming to look at the land, and had engaged them in conversation. Ms. Kemp then contacted Ms. Myers to remind her that they were still willing to purchase the property, and also to say that they would offer more than the current offer on the property. On about September 11, 1987, Ms. Kemp contacted Cartier Realty to say that she also wished to make an offer on the Myers' lot. For a reason which was never adequately explained at the hearing, Teixeira, who should have been working on behalf of the seller, refused to take the offer, even though it was for a higher price. After this rebuff by Teixeira, Ms. Kemp contacted Marshall & Sedler, Inc., in order to try to find a broker who would convey their offer to Ms. Myers and spoke with Patricia Marshall, Ms. Marshall referred her to her partner, Peter Sedler. The Kemps told Sedler that Ms. Myers had told them that she had received a $9,000 offer on the lot. Why Ms. Myers told the Kemps that the Rose offer was $9,000 is not clear, for the actual offer had been $12,300, but Sedler did not know this. There was no listing of the lot in the local board of realtors multiple listing service book, and Mr. Sedler found the address of Ms. Myers through the public records. Mr. Sedler knew from his conversations with Ms. Kemp that Cartier Realty had some involvement with an offer on the property. He called Cartier Realty and tried to speak with the broker handling the matter. He spoke with a man named Tom, who he thought was a brother of the owner of Cartier Realty, Pete Cartier. Mr. Sedler actually talked with Tom Teixeira. Sedler believed he was dealt with rudely by Teixeira, who had hung up on him. Sedler then called Pete Cartier directly to find out whether there was an outstanding contract on the property, and Cartier told Sedler that he would call Sedler back. When Cartier called Sedler, Cartier warned Sedler that he should stay out of the deal. Mr. Sedler became suspicious about Cartier Realty's failure to bring a higher offer to the attention of the seller, and on September 16, 1987, filed a complaint against Tom Cartier with the Lake Worth Board of Realtors. Mr. Sedler then traveled to Pompano Beach to meet with Ms. Myers at her home, and brought with him a contract for sale and purchase of the property, already signed by the Kemps and dated September 14, 1987. While at the door, Ms. Myers asked Peter Sedler if he was "Tom." Ms. Myers knew that she had been dealing with a "Tom" at Cartier Realty, but all her dealings were on the phone, and she did not know what Tom Teixeira looked like. Sedler replied "Yes, but you can call me Pete." Sedler merely intended the comment as humor. At that time Sedler gave Ms. Myers his pink business card and specifically identified himself as Pete Sedler of Marshall & Sedler, Inc. Mr. Sedler asked Ms. Myers if she had any paperwork, such as the prior contract for the sale of the lot which had expired on September 1, 1987, but she did not. While Sedler was with Ms. Myers, she agreed to sell the property to the Kemps for $12,500 and signed the Kemp contract. The Kemps had put the purchase price of $12,500 into the Marshall & Sedler escrow account. Three days later, on September 18, 1987, Mr. Sedler, in the company of his wife Bonnie, presented a post-dated check to Ms. Myers in the amount of $11,020, the net amount due to Ms. Myers for the lot, based on the purchase price of $12,500. When they met this second time he introduced himself again as Pete Sedler and offered Ms. Myers his card for a second time. The post-dated check was conditioned by an endorsement making it good upon a determination that the title to the lot was good. A quit claim deed to Mr. and Mrs. Kemp was executed by Ms. Myers and witnessed by Bonnie Sedler. The post-dated check was given to Ms. Myers because she was about to leave on vacation. The check was given as a sort of security for good title, in return for the quit claim deed which closed the transaction. Mr. Sedler had structured the transaction in this way because he was concerned that someone at Cartier Realty might also attempt to purchase the property from Ms. Myers on behalf of one of their clients. At that time, Mr. Sedler held the reasonable belief that no other party had a subsisting contract to purchase the property from Ms. Myers. Sedler had no reason to believe the Roses would or could pay more for the property than the Kemps offered. Ms. Myers knew that Tom Teixeira from the Cartier realty firm represented a distinct business entity from Marshall & Sedler or Pete Sedler. After a title search showed that Ms. Myers had clear title to the property, the check which Mr. Sedler had given to Ms. Myers on September 18, 1987, with the restrictive endorsement was replaced. Later Mr. and Mrs. Rose tried to close their purchase, but found they could not. Ms. Myers had failed to inform them of the sale she made to the Kemps through Mr. Sedler. Mr. Teixeira, in retribution, filed an ethics complaint about Mr. Sedler with the West Palm Beach Board of Realtors.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is recommended that the Administrative Complaint against Peter P. Sedler and Marshall & Sedler, Inc., be dismissed. RECOMMENDED this 14th day of March, 1991, at Tallahassee, Florida. WILLIAM R. DORSEY, JR. 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 14th day of March, 1991. APPENDIX TO RECOMMENDED ORDER, CASE NO. 90-6183 Rulings on findings proposed by the Department: 1. Rejected as unnecessary. 2 and 3. Adopted in Finding 1. 4 - 6. Adopted in Finding 2. Adopted in Finding 3. Adopted in Finding 3. Implicit in Finding 5. Adopted in Finding 5. Adopted in Finding 5. Adopted in Finding 5. Adopted in Finding 5. Adopted in Finding 6. Implicit in Finding 6. This does not mean that the contract subsisted, however. Rejected. Ms. Myers was willing to sell the property to Mr. and Mrs. Rose after the contract expired, but she was not under any obligation to do so. Adopted in Finding 7. Rejected, because there was no pending contract. Teixeira never obtained a written extension of the closing date and Ms. Myers was free to sell elsewhere. Rejected. No one could have truthfully told Sedler there was a pending contract. None existed. Rejected, because Mr. Sedler had no reason to believe that there was a subsisting contract for the sale of the property; there was none. Admission number 20 is not to the contrary. Adopted in Findings 10 and 11. Rejected. See, Findings 9 and 10. Rejected as unpersuasive. Rejected as cumulative to Finding 9. Adopted in Finding 14. Adopted in Finding 11. Rejected as unnecessary. COPIES FURNISHED: James H. Gillis, Esquire Department of Professional Regulation Post Office Box 1900 Orlando, Florida 32802-1900 Frank W. Weathers, Esquire Frank W. Weathers, P.A. Post Office Box 3967 Lantana, Florida 33465-3967 Darlene F. Keller, Division Director Department of Professional Regulation Division of Real Estate Post Office Box 1900 Orlando, Florida 32801 Jack McRay, General Counsel Department of Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399-0792
The Issue The issue is whether Granada Lakes Development Corporation should be fined for alleged violations of the Florida Condominium Act, Chapter 718, Florida Statutes?
Findings Of Fact General Findings Pertaining to the Condominium Granada Lakes Adult RV Resort Condominium is located in Fort Myers, Florida. It consists of 151 units; about 70 have been sold. It was to be developed in three phases. Each Unit is a parcel upon which the purchaser may place a dwelling unit. Granada Lakes Development Corporation is the developer of the condominium. The declaration of condominium for Granada Lakes Adult RV Resort Condominium was recorded in the public records of Lee County on March 11, 1982. The Respondents did not include in the original declaration of condominium which submitted Phase I to condominium ownership the time period within which Phases II and III would be completed. The developer owned all condominium units during 1982. Sale contracts for the first units were executed in 1982. The first sales did not close until early 1983. No units have been offered for sale at the Granada Lakes Adult RV Resort Condominium for approximately eighteen months preceding the day of the hearing. Respondents ceased to be the developer of Granada Lakes RV Resort Condominium at the end of July 1985. Granada Lakes Development Corporation was involuntarily dissolved by the Department of State on about November 1, 1985. Distribution of Statements of Receipts and Expenses for 1983 and 1984 Morgan Lloyd closed the purchase of his unit in February 1983. He served as treasurer for the condominium association from February 1983 until approximately February 1984. Mr. Lloyd prepared a financial statement showing receipts and expenditures for the calendar year 1983. Although this statement is for calendar year 1983, the association's fiscal year for 1983 ended October 31, 1983. The statement of income and expenses for the year 1983 was prepared more than 60 days after the close of the fiscal year. The account balance was determined as of December 31, 1983, so the statement had to have been prepared after that date. It was distributed to unit owners at the first annual meeting of the unit owners, which occurred on February 23, 1984. (This disregards, for the moment, the unit owners meeting held by the developer when it was the sole owner of the units, see Finding of Fact 15, post.) The annual financial report of the association for, fiscal year 1984 was not distributed earlier than March 1985. Proposed Budgets for 1982 through 1984 Proposed annual budgets for the years 1982 and 1983 had been prepared by the developer and were distributed with the prospects for the condominium units. The proposed budget for 1982 (which was included in the prospectus) contained as line item 13 for operating expenses a reserve account for roof replacement, equipment replacement, building painting and pavement resurfacing. It called for an annual reserve funded by all 151 units of $3,415. Copies of the 1985 proposed annual budget of common expenses were mailed to unit owners 13 days prior to the meeting at which the 1985 budget was to be considered. Reserves After the developer began conveying out units in 1983, there was never a meeting of the condominium association at which the membership voted to waive or reduce the funding of reserves shown in the estimated budget in the prospectus of $1.88 per condominium unit per month. These reserve monies were placed in the reserve account quarterly as they were paid by unit owners. The developer did not pay any reserves in 1983 or 1984 for units owned by the developer because, in the developers view, those payments were not due under the resolution passed during the January 5, 1983 membership meeting of Granada Lakes Adult RV Resort Condominium Association, Inc. That meeting had been held at a time when the developer owned all of the units that made up the association. The meeting occurred after distribution of the prospectus, which disclosed the reserve account and showed all units contributing to the payment of common operating expenses, including reserves. That resolution states: the President of the Association then brought up for consideration the proposal by the developer, Granada Lakes Development Corporation, that it guarantee the maintenance fee during the two-year period commencing January 5, 1983. Upon a motion duly made and adopted, the Association agreed that in lieu of the developer paying its maintenance assessments on unsold units that the developer could and did agree to guarantee that for the two-year period stated above the maintenance fee charge to unit owners other than the developer would not exceed the [sic] $31.61 per month and that any shortage that might be incurred in the maintenance of the Association during such period shall be covered by the developer. Such agreement was accepted by all concerned, including the Development Corporation, which is as of the time of this meeting the sole unit owner in the Condominium. The matter of the reserves was also discussed and the Development Corporation, as sole unit owner, agreed with the association to the waiver of the funding of reserves for the same two year period. Based on the payment of $1.88 per unit per month the amount of money which should be in the reserve account from the date of recording of the declaration of condominium until the date the respondent was no longer the developer is $11,554. As of July 1985 the reserve account contained $3,227.35, having a deficit of $8,326.65. Since units began to be sold, there have been no withdrawals made from the reserve account. Mr. Sharp, the president of the developer, testified that he spent approximately the $2,400 for reserve-type expenses but had sought no reimbursement from the reserve account because he wanted the reserve account going. No receipts verifying such expenditures were introduced into evidence. This attempt to offset developer expenses against amounts the developer should have paid into the reserve account of the Association is rejected as unpersuasive. Association Records While he served as Association treasurer, Morgan Lloyd asked on several occasions to see the bills for Association expenses. Mr. Sharp would only tell him the amount of the association's bills, and refused to let Mr. Lloyd see the original bills.
Recommendation A civil penalty for each violation the condominium act, not to exceed $5,000.00 per offense may be imposed under section 718.501(1)(d)4., Florida Statutes (1983). The Division of Florida Land Sales, Condominiums and Mobile Homes may also take affirmative action to carry out the purposes of Chapter 718. Section 718.501(1)(3)2., Florida Statutes (1983). Based on the foregoing, it is RECOMMENDED THAT: For its multiple violations of the condominium act, Granada Lakes Development Corporation shall pay to the Division of Florida Land Sales, Condominiums and Mobile Homes within thirty (30) days of the entry of a final order civil penalty in the total amount of $5,000.00 by certified check payable to the director of the Division. Within thirty (30) days of the issuance of a final order the developer shall pay to the Granada Lakes Adult RV Resort Condominium Association the sum of $8,276.65 representing its liability for reserves from the recording of the date of a. declaration of condominium through July 1985. DONE AND ORDERED this 22nd day of May, 1987, in Tallahassee, Florida. WILLIAM R. DORSEY,JR., Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32399 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 22nd day of May, 1987. COPIES FURNISHED: Robin H. Conner, Esquire Department of Business Regulation 725 South Bronough Street Tallahassee, Florida 32301-1927 Norman A. Hartman, Esquire GOETZ & HARTMAN Post office Box 6844 Fort Myers, Florida 33911-6844 Granada Lakes Development Corporation C/O All America RV Sales U.S. 41 South Box 806S, Route 13 Fort Myers, Florida 33908 James Kearney, Secretary Department of Business Regulation The Johns Building 725 South Bronough Street Tallahassee, Florida 32399-100 Thomas A. Bell, General Counsel Department of Business Regulation The Johns Building 725 South Bronough Street Tallahassee, Florida 32399-1000 APPENDIX The following constitute my specific rulings pursuant to Section 120.59(2), Florida Statutes (1985), on the proposed findings of fact submitted by the parties. Rulings on Proposed Findings of Fact Submitted by Petitioner l(a). Covered in Finding of Fact 2. l(b). Covered in Finding of Fact 13. l(c). Covered in Finding of Fact 4. 2(a). Covered in Finding of Fact 8. 3(a). Covered in Finding of Fact 1. 3(b). Sentence 1, covered in Finding of Fact 3. Sentence 2, covered in Finding of Fact 7. 3(c). Covered in Finding of Fact 6. 3(d). Rejected as a recitation of testimony, not a finding of fact. 3(e). Covered in Finding of Fact 9. 3(f). Covered in Finding of Fact 9. 3(g). Covered in Finding of Fact 10. 3(h). To the extent relevant, covered in Finding of Fact 5. The date on which witnesses moved into the condominium prior to the date they closed the purchases of their unit is irrelevant. 3(i). Rejected as recitations of testimony, not proposed findings of fact, also irrelevant. 3(j). Rejected as inconsistent with the evidence I find more credible, i.e., that an owners meeting was held by the developer on January 5, 1983. 3(k). Sentence 1, covered in Finding of Fact 11. Sentences 2 and 3, rejected as irrelevant. 3(1). Covered in Finding of Fact 18. 3(m). Generally rejected as a recitation of testimony, not a finding of fact. Covered, however, in Finding of Fact 14. 3(n). Covered in Finding of Fact 12. 3(o). Covered in Finding of Fact 15. 3(p). Covered in Finding of Fact 16. 3(q). Covered in Finding of Fact 17. Rulings on Proposed Finding of Fact Submitted by Respondent 1. No ruling necessary. 2(A). Evidence that meetings of unit owners were held in 1982 and 1983 have been accepted in Findings of Fact 9 and 15. 2(B). Rejected because there is no evidence that for fiscal or calendar year 1982 the reserve requirement had been waived. The only evidence of any meeting of the condominium association in 1982, joint exhibit 5(a) does not show any waiver of reserve requirements for that year. It is inconceivable that the developer, at a meeting where it is the sole owner of all units, may waive reserve requirements when the budget distributed with the prospectus to potential purchasers shows reserves in the estimated operating budget it distributed. See joint exhibit 1. The resolution recorded in the minutes of the meeting of the Condominium Association of January 5, 1983, which purports to waive funding of reserves for two years is ineffective for the reasons discussed in Conclusions of Law 7. ================================================================= AGENCY FINAL ORDER ================================================================= STATE OF FLORIDA DEPARTMENT OF BUSINESS REGULATION DIVISION OF FLORIDA LAND SALES, CONDOMINIUMS AND MOBILE HOMES DEPARTMENT OF BUSINESS REGULATION, DIVISION OF FLORIDA LAND SALES, CONDOMINIUMS AND MOBILE HOMES, Petitioner, DBR DOCKET NO. 85224MVC DOAH CASE NO. 85-4267 GRANADA LAKES DEVELOPMENT CORP., d/b/a GRANADA LAKES ADULT RV RESORT CONDOMINIUM, Respondent. /
The Issue The ultimate issues to be resolved in this proceeding are whether the Respondent has committed violations of The Condominium Act, Chapter 718, Florida Statutes, and, if so, the appropriate action that should be taken by the Petitioner. Petitioner contends that the Respondent participated in board of directors' meetings regarding the Golden Lakes Village condominium, without first posting notice of the meetings and without maintaining minutes of the meetings as required by the provisions of The Condominium Act. Respondent denies the allegations.
Findings Of Fact The Respondent, Florida Planned Communities, Inc., is the developer of a condominium known as Golden Lakes Village, Phase B. The affairs of Golden Lakes Village are administered by a board of directors that is controlled by the developer. There are three members of the board. Two are selected by the developer, and one by unit owners within the condominium. The bylaws of the condominium provide that meetings of the board of directors shall be open to all unit owners and that notice of meetings shall be posted conspicuously at the condominium property forty-eight hours in advance of the meeting. The bylaws provide that a quorum of the directors means a majority of the entire board. The bylaws require that minutes of all meetings of the board of directors be kept. The condominium association maintains a minutes book. There are minutes from nine board of directors' meetings since 1979. Four of these meetings had as their purpose consideration of proposed budgets. Four were organizational meetings to elect officers. One was a special meeting called to consider a proposal to engage the services of a management company. Minutes were not kept for any other meetings of the board of directors that were conducted from 1979 until the present, neither was there any posting to advise unit owners of these meetings in advance. There were numerous meetings of the Board of Directors of Golden Lakes Village, Phase B, other than those that were properly noticed and for which minutes were taken. During these meetings, matters affecting the condominium were discussed. Many of the meetings were conducted on a very informal basis when the unit owners' representative on the board contacted one of the developer's representatives and asked for a meeting. Among the matters discussed were repairs to facilities, additional facilities, budget, and the like. It does not appear that business was conducted in this manner so as to hide the meetings from unit owners. Rather, the purpose appears to have been to conduct operations in a simple manner and to allow the unit owners' representative on the board ready access to the developer's representatives. While the motives of the developer do not appear to have been bad ones, conducting the meetings without first posting notice and without keeping minutes violated the provisions of the condominium bylaws.
The Issue Whether the sign which was located at the northwest corner of US #41 and State Road 862, 50 feet west from US #41 on Vanderbilt Road, with the copy "La Playa Motor Inn" and "La Playa Motor Inn", found there on October 8, 1975, continuing through February 19, 1976 was in violation of the following: Chapter 479.07(1), Florida Statutes, which requires a permit for the erection of a sign. Chapter 478.07(7), Florida Statutes, which requires the name of owner or advertiser be affixed to the face of the sign structure. Chapter 479.02(2), Florida Statutes, which sets forth certain requirements of spacing.
Findings Of Fact At a time prior to October 8, 1975, Seminole Vanderbilt Corporation, which trades as La Playa Motor Inn and is owned by P. M. Francoeur, sole owner and president, leased a sign from Richard O. Radenbaugh. This sign was located in the vicinity of the northwest corner of US #41 and State Road 862, 50 feet west from US #41 on Vanderbilt Road. Subsequent to the time that the sign was leased to the Seminole Vanderbilt Corporation, Richard O. Radenbaugh entered into a contract to sell the space and the sign to the Department of Transportation. The sale was effected and the sign was removed. P. M. Francoeur, as President and leaseholder on the sign was not told that the subject sign would be sold, prior to the negotiations and sale between Mr. Radenbaugh and the Department of Transportation. Consequently, the original sign with the copy "La Playa Motor Inn" was removed without his knowledge; Mr. Francoeur went to a County Commissioners meeting in Collier County, Florida and Mr. Radenbaugh spoke with Mr. Francoeur at that time and promised to give him a vacant sign which had the copy "King Crown Inn". This sign was located immediately west of the "La Playa Motor Inn" former sign. Mr. Francoeur accepted that offer and caused workmen to go to the location and to remove the "King Crown Inn" sign and have it refurbished for purposes of installation at the general location of the original "La Playa Motor Inn" sign. When this refurbishing and site location was accomplished, it left two signs in the area that originally had three signs. There was now, an unrelated sign and the new "La Playa Motor Inn" sign which had been constructed from the former "King Crown Inn" sign; as opposed to, the unrelated sign, the original "La Playa Motor Inn" sign which had been sold to the Department of Transportation and removed, and the "King Crown Inn" sign which was in the immediate area west of the original "La Playa Motor Inn" sign. Mr. James A. Hachett, outdoor advertising inspector with the Department of Transportation, was aware that the original "La Playa Motor Inn" sign had been sold and removed. When he went by the subject location after the original "La Playa Motor Inn" sign had been sold and removed, he discovered that a new sign with the copy "La Playa Motor Inn" had been erected in the general area where the original "La Playa Motor Inn" had been located. He also noted that the "King Crown Inn" sign was no longer located in a position west of the space which had been occupied by the original "La Playa Motor Inn" sign. In addition, the new "La Playa Motor Inn" sign was not in the exact location as the original "La Playa Motor Inn" sign. On a closer examination, Mr. Hachett discovered that there were three identifying permit tags affixed to the new "La Playa Motor Inn" sign. One tag was the permit tag from the original "La Playa Motor Inn" sign, and the other two tags were from the sign west of the location, which sign was the "King Crown Inn" sign. These former permit tags were affixed to each side of the double faced advertising sign. It was after this examination that the "La Playa Motor Inn", in the person of P. M. Francoeur was notified of the prospective violations as ultimately alleged in the October 8, 1975 complaint. Francoeur was notified by an alleged violation statement addressed to the Seminole Vanderbilt Corporation, which owns "La Playa Motor Inn". As of February 19, 1976, at the time of the hearing, the new "La Playa Motor Inn" sign which is in fact the refurbished structure which was the "King Crown Inn" sign, located west of the original "La Playa Motor Inn" sign, is still standing in the general, but not exact position of the original "La Playa Motor Inn" sign. Application for permit by the Seminole Vanderbilt Corporation t/a "La Playa Motor Inn" for the benefit of the copy, "La Playa Motor Inn" has not been applied for since the original "La Playa Motor Inn" sign was sold to the Department of Transportation and removed. Application has been made for a renewal of the permit which is associated with the "King Crown Inn" sign which was refurbished and became the subsequent "La Playa Motor Inn" sign. In describing the location of the new "La Playa Motor Inn" sign, it is somewhere between the location of the original "La Playa Motor Inn" sign and the "King Crown Inn" sign, but not in the exact location of either of those original signs.
Recommendation It is recommended that the Petitioner afford the Respondent 30 days within which to remove the sign or take satisfactory steps to obtain a permit for the sign, after which time the Petitioner, in accordance with Chapter 335.13(2), Florida Statutes, shall cause such sign to be removed. DONE and ENTERED this 14th day of April, 1976, in Tallahassee, Florida. CHARLES C. ADAMS, Hearing Officer Division of Administrative Hearings Room 530, Carlton Building Tallahassee, Florida 32304 (904) 488-9675 COPIES FURNISHED: Philip S. Bennett, Esquire Office of Legal Operation Mr. P. M. Francoeur, President Department of Transportation c/o La Playa Motor Inn 605 Suwannee Street 9091 Gulf Shore Drive Haydon Burns Building Naples, Florida 33940 Tallahassee, Florida 32304
Findings Of Fact Upon consideration of the oral and documentary evidence adduced at the hearing, the following facts are found: During the development stage of a condominium project, known as Lake Villas Condominium, in Altamonte Springs, Florida, First Federal Savings and Loan of Orlando foreclosed on some forty (40) units of the project. At that time, approximately in November of 1975, thirty-one (31) units already had fee- simple owners or were under a lease/purchase option and they were not involved in the foreclosure proceedings. Mr. David McComb, a vice-president and mortgage loan officer with First Federal Savings and Loan of Orlando, was given the responsibility of assuring the completion of the remaining units, selling the units and setting up a homeowners' association for the Lake Villas Condominium. The petitioner Lake Villas Condominium Association's five-position board of directors was originally comprised of three members who were personnel of First Federal Savings and Loan of Orlando, so that First Federal would have majority control at a time when it held the ownership to the majority of the units. In June of 1976, thirty-seven of the seventy-one units had been sold to individuals. Thereafter, the composition of the petitioner's board of directors changed and the individual-unit owners held the majority of the five positions. Mr. McComb, as a representative of First Federal Savings and Loan of Orlando, remained on the board of directors and continued First Federal's attempts to sell the remaining unsold units. First Federal retained a sales representative who lived in one of the condominium units, operated her sales office from one of the vacant units owned by First Federal and was paid a real estate commission when she sold a unit. The sales contract on the last of the units owned by First Federal was closed on December 12, 1977. Prior to mid-1976, the Florida Power Corporation account for seven or eight common element meters was in the name of First Federal Savings and Loan of Orlando, doing business as Lake Villas Condominium Association, and the billing statements were mailed to the Orlando office of First Federal Savings and Loan. In June or July of 1976, after the majority of units had been purchased by individual owners and majority control of the board of directors was obtained by the individual owners, Mr. McComb of First Federal placed a telephone call to the respondent's Winter Park office. The purpose of this call was to inform respondent that First Federal wanted the account name and address for the seven or eight meters changed and to inform respondent that the Lake Villas Condominium Association had taken over responsibility for the accounts. Mr. McComb spoke on the telephone to a female who handled commercial accounts for the respondent's Winter Park office and informed her that he wanted the name of First Federal Savings and Loan taken off the account and the bills to be mailed to the Lake Villas Condominium Association at a post office box in Altamonte Springs. The female to whom Mr. McComb spoke took down the information regarding the account numbers and change of billing names and addresses, and told him she would take care of it. Mr. McComb did not inquire about a rate adjustment, and no discussion was had concerning rates for the seven or eight meters. Following the June or July, 1976, discussion between Mr. McComb and a female at the respondent's Winter Park office concerning a change in billing name and address, the billing statements were sent and received at the post office address of the Lake Villas Condominium Association, Inc. in Altamonte Springs. Approximately one year later, in mid-1977, Mr. McComb was forwarded some delinquent notices on the seven or eight meters. They had originally been sent to the petitioner's post office box in Altamonte Springs, but were thereafter forwarded to Mr. McComb's attention at First Federal. Mr. McComb noticed that, although the post office address had been changed, the accounts were still in the name of First Federal Savings and Loan of Orlando. He then placed another telephone call to the respondent's Winter Park office, spoke with a female in the commercial department and requested that the name of First Federal Savings and Loan of Orlando be removed from the account and that the Lake Villas Condominium Association, Inc. be inserted as the new-named customer. The female informed Mr. McComb that this request would be taken care of and that nothing further need be done. No inquiry by Mr. McComb or discussion was had concerning a rate adjustment for these seven or eight meters. Electricity for the individual living units of the Lake Villas Condominiums are separately metered. In addition, there are seven or eight separately billed meters which service the common areas of the condominium, such as the two swimming pools, the internal street and sidewalk lighting, the clubhouse and small post lamps for an open green area. From at least April of 1979 through October of 1980, no commercial activity occurred in any of the condominium units. In April of 1979, Mr. O. K. Armstrong became the manager of the Lake Villas Condominiums and was responsible for the association's financial transactions. He noticed in May of 1979 that the bills for the seven or eight subject meters contained the name of First Federal Savings and Loan of Orlando, though they did list the condominium's post office box number for the address. After speaking with Mr. McComb about the matter, Mr. Armstrong telephoned a Mr. Harbour at the respondent's Winter Park office. It was during this discussion that petitioner, through Mr. Armstrong, learned that the seven or eight common element meters might qualify for a residential, as opposed to the higher commercial, rate. Thereafter, the rates for the seven or eight meters were changed by Florida Power Corporation from commercial to residential. The request of Mr. Armstrong for a retroactive application of those residential rates to January 1, 1976, which would amount to a refund of all amounts paid in excess of the residential rates from that date, was denied by Mr. Harbour, respondent's office manager in Winter Park. During the hearing, the petitioner verbally amended the request for retroactive application of the residential rate from January 1, 1976, to July of 1976.
Recommendation Based upon the findings of fact and conclusions of law recited above, it is RECOMMENDED that the petition filed by the Lake Villas Condominium Association, Inc. be DISMISSED. Respectfully submitted and entered this 17th day of June, 1981, in Tallahassee, Florida. DIANE D. TREMOR, Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 17th day of June, 1981. COPIES FURNISHED: James D. Mapp Hunter, Pattillo, Marchman, Mapp and Davis Post Office Box 340 Winter Park, Florida 32790 Blair W. Clack Assistant Counsel Post Office Box 14042 St. Petersburg, Florida 33733 Arthur Shell Public Service Commission Legal Department 101 East Gaines Street Tallahassee, Florida 32301 Steve Tribble, Clerk Florida Public Service Commission 101 East Gaines Street Tallahassee, Florida 32301
