The Issue The issue is whether Respondent committed an unlawful employment practice contrary to Section 760.10, Florida Statutes, by discriminating against Petitioner based on his gender.
Findings Of Fact Respondent is a staffing company that provides temporary employees to a variety of customers/employers. Respondent performs workforce management for its customers, including hiring personnel, providing new-employee orientation, and conducting ongoing training after the initial hire. Respondent provides its employees with harassment-free workplace training as part of the initial orientation. Thereafter, Respondent provides the harassment-free workplace training on an annual basis and more frequently at the request of its customers. Petitioner is a white male who worked as a temporary employee for Respondent on two occasions: from May 17, 1993, through July 27, 1996, and from June 30, 1997, through July 28, 2003. On both occasions, Respondent assigned Petitioner to perform maintenance work at the Island House Hotel in Orange Beach, Alabama. Petitioner was a maintenance technician at the Island House Hotel until Respondent promoted him to the position of Assistant Supervisor of Maintenance in 1998. Respondent promoted Petitioner to the management position of Chief Engineer in 1999. As Chief Engineer, Petitioner supervised five or six maintenance technicians. Petitioner received a salary but often worked more than a 40-hour week. For instance, Petitioner would stay at the hotel during hurricanes instead of going home to be with his family. At all times relevant here, Petitioner was aware of Respondent's written "Harassment-Free Workplace Policy." The policy defines sexual harassment as "unwelcome conduct of a sexual nature where an employee feels compelled to comply with the harassment as part of job betterment, or where the harassment interferes with an employee's work creating an intimidating or hostile work environment." The policy lists examples of sexual harassment, including unwelcome physical contact, request for sexual favors, and/or displays of a sexual nature. Respondent's Harassment-Free Workplace Policy goes on to discuss other types of discriminatory conduct. Specifically, the policy prohibits discrimination, such as intimidation or ridicule based on gender, race, color, national origin, sexual orientation, pregnancy, age, religion, disability, veteran status, or any other basis that creates an offensive work environment, or which results in an unfavorable job action. The policy lists verbal or written jokes or offensive comments based on race, sex, etc., as examples of discriminatory conduct. Respondent's Harassment-Free Workplace Policy advises employees, whether a victim or a witness, to report all incidents of discrimination or harassment. Respondent instructs its employees to report such complaints to their manager, their local office staffing specialist, and/or Respondent's corporate office, using a toll-free employee hot line. Petitioner had a good professional and personal relationship with Respondent's employees who were assigned management positions at the Island House Hotel. Specifically, Petitioner was friends with the following employees: (a) Barbara Walters, General Manager; (b) Glenn Johnson, Director of Operations; and (c) Margaret Lathan, Director of Housekeeping. Petitioner and Ms. Walters occasionally shared off- color jokes with each other. Sometimes they laughed about jokes with sexual connotations that one of them had copied from the Internet. On at least one occasion, Ms. Walters and Petitioner discussed hotel guests who were wearing bathing suits at the pool. There is no evidence that Petitioner was ever offended by the jokes; he never complained to Respondent about the jokes. Ms. Walters personally was not offended by the jokes. In time, however, she became concerned that Petitioner's jokes and comments to employees other than herself were no longer appropriate in the workplace. Eventually, Ms. Walters began to verbally counsel Petitioner to clean up his language and to be careful of his remarks to other employees because they might consider them offensive. Petitioner and Ms. Latham also enjoyed sharing jokes of a sexual nature with each other. On one occasion, Ms. Latham gave Petitioner a T-shirt when she returned from vacation. The back of the shirt had pictures of ladies’ butts wearing bikinis. There is no evidence that Petitioner found the shirt offensive; he never complained to Respondent or anyone else about the T-shirt. On or about June 23, 2001, Ms. Walters wrote a note to Petitioner. Ms. Walters requested that Ms. McDowell place the note in Petitioner's personnel file. The note stated as follows: After our conversation on Wednesday, I thought we had cleared up my concerns with you. Today I discover that your "blond" lady that does awnings was in your office yesterday and that you allowed her to accompany you to repair the washer in the laundry. This is totally unacceptable and violates Hotel policy and safety issues. I do not expect you as a manager to have outside vendors in areas that they are not here to inspect, study, or to prepare estimates for. I will not discuss this any further with you. Ms. Walters would have written the above-referenced note if Petitioner had invited an unauthorized male to accompany him into a secure area. However, Ms. Walters was especially concerned because the incident involved a female. On at least two occasions, Ms. Walters made special requests for Respondent to conduct a class to review Respondent's harassment policy with her management team. She made these requests because her management team consisted of members who were of various ages. Ms. Walters wanted to make sure that the management team was aware that times had changed, and that conduct, which had been acceptable years ago, was no longer acceptable in today's workplace. At the request of Ms. Walters, Respondent's staffing specialist, Martina McDowell, conducted a class on Respondent's harassment policy at the Island House Hotel on January 31, 2002. Petitioner, Ms. Walters, and Ms. Latham attended the class. During the January 2003 class, Petitioner received a copy of Respondent's Harassment-Free Workplace Policy. He signed a statement acknowledging that he had read and understood the policy, including the procedure to report violations. On February 14, 2002, Petitioner signed a copy of Respondent's "New Employee Orientation Guidelines: Policy & Procedures." This document includes Respondent's discrimination and harassment policies, which Petitioner initialed. Ms. McDowell signed the document under Petitioner's signature. In the last year of Petitioner's employment at the Island House Hotel, Ms. Walters realized Petitioner was under stress in his personal life. She also noticed a change in his behavior at work. Ms. Walters felt that Petitioner's jokes and other attempts to be humorous became more intense. Ms. Walters was so concerned that she requested Ms. McDowell to counsel Petitioner on more than one occasion. During the counseling sessions, Ms. McDowell advised Petitioner that off-color jokes were not accepted in the workplace. Ms. McDowell also told Petitioner that flirting with female co-workers was inappropriate and would be considered as sexual harassment under Respondent's policy. Respondent does not provide the Island House Hotel with employees to perform housekeeping duties. Island House Hotel contracts with a company by the name of TIDY for housekeeping services. Ms. Latham, as Director of Housekeeping, does not supervise TIDY's housekeepers directly. Instead, she interacts with TIDY's supervisors to ensure that the housekeeping duties are performed. One of TIDY's housekeepers was a young female named April. She began working at Island House Hotel on or about July 23, 2003. On Friday, July 25, 2003, Petitioner grabbed and jiggled his private parts as he walked down the hall to the elevator at the Island House Hotel. April, Ms. Latham, and a porter named Alan Hoffman, were standing at the elevator. Ms. Latham observed Petitioner's conduct and considered it offensive. Ms. Latham could tell that Petitioner's inappropriate behavior embarrassed April. On Saturday, July 26, 2003, Ms. Walters was working at the Island House Hotel when she learned that a young man was at the front desk. The young man wanted to speak to Ms. Walters privately. Therefore, Ms. Walters invited the young man to go with her to the sales office. During the conversation, the young man complained to Ms. Walters that an older gentleman named Ben, who worked at the hotel, had made inappropriate gestures to his fianceé, April. Specifically, the young man alleged that Ben had grabbed his private parts and jiggled them in front of April, who was offended by such behavior. Ms. Walters talked to Ms. Latham after the young man left the hotel. Ms. Latham confirmed that she had witnessed Petitioner grabbing his private parts in front of April. Immediately after talking to Ms. Latham, Ms. Walters called Respondent's branch manager, Sherry Moore. Ms. Walters told Ms. Moore that Respondent needed to release Petitioner from his assignment at Island House Hotel. Ms. Moore contacted Ms. McDowell by telephone. Ms. Moore instructed Ms. McDowell to contact Petitioner and instruct him to report to Respondent's office in Gulfport, Florida, on July 28, 2003. On Sunday, July 27, 2003, Ms. McDowell contacted Petitioner. Ms. McDowell told Petitioner to report to her office the next day instead of returning to work at Island House Hotel. On Monday, July 28, 2003, Petitioner met Ms McDowell at her office. Ms. McDowell explained that Respondent had received a sexual harassment complaint involving his behavior. Petitioner's initial reaction was to state that he had talked to the little girl and that she was okay with his apology. The little girl that Petitioner referred to was not April. Petitioner's initial statement in Ms. McDowell's office related to an incident involving a female employee of the hotel's beach service. Ms. McDowell informed Petitioner that the complaint involved a housekeeper. After explaining the allegations against him, Ms. McDowell relieved Petitioner of his work assignment at Island House Hotel. Petitioner became angry, stating as follows: "Well, if Ms. Walters was going down the hallway and her ass was itching and she scratched it, would you fire her too?" Ms. McDowell responded that she was dealing only with a complaint brought against him, where another employee had witnessed his conduct. Ms. McDowell did not tell Petitioner that he was terminated as one of Respondent's temporary employees. Respondent's policy requires employees to make themselves available for work assignments. Employees are supposed to contact Respondent within 48 hours of the time that a work assignment ends if they are available for another job. Thereafter, employees are required to contact Respondent on a weekly basis. Petitioner did not follow Respondent's policy in this regard. In any event, Ms. McDowell conducted a follow-up investigation. The investigation included interviews with Ms. Walters, Ms. Latham, and Mr. Hoffman. Ms. McDowell was unable to talk to April who never returned to work. After completing her investigation, Ms. McDowell considered Petitioner's employment terminated. On or about November 21, 2003, Ms. McDowell requested that Ms. Latham make a written statement regarding the July 25, 2003, incident. Ms. Latham made the following statement: April (housekeeper), Alan (porter) and myself were standing by the elevator when Ben Torres came down the hall and grabbed his privates. Ben might not have realized April was standing there, he made these gestures all the time and I told him many times, that one of these days he will do it in front of the wrong person and get in trouble. Most of the housekeepers knew how he was and just ignored his behavior. Respondent did not hire another Chief Engineer to replace Petitioner. Instead, Respondent assigned the duties of Chief Engineer to Glenn Johnson, the Director of Operations at the Island House Hotel. Mr. Johnson is a white male.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED: That FCHR enter a final order dismissing the Petition for Relief. DONE AND ENTERED this 6th day of June, 2005, in Tallahassee, Leon County, Florida. S SUZANNE F. HOOD Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 6th day of June, 2005. COPIES FURNISHED: Denise Crawford, Agency Clerk Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301 Debra Dawn Cooper, Esquire Debra D. Cooper, Attorney 309 West Gregory Street Pensacola, Florida 32502 Jane M. Rolling, Esquire 5301 North Ironwood Road Post Office Box 2053 Milwaukee, Wisconsin 53217 Cecil Howard, General Counsel Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301
Findings Of Fact Respondent has a bachelor of science degree in accounting and a master of business administration with an emphasis in accounting. Both degrees are from Florida State University. However, Respondent is not a licensed certified public accountant. From 1982 to 1986, Respondent was employed by Deloitte Touche, one of the "big-six" accounting firms. He worked in Deloitte's Los Angeles office. After one year in audit, Respondent was assigned to the tax department of Deloitte. In 1986, Lorimar-Telepictures, Inc.--an entertainment industry conglomerate--hired Respondent as Director of Taxes. In this position, Respondent was responsible for tax planning and compliance issues for the parent and its affiliates. In 1989, Respondent returned to Florida to work with Rafor Management, Inc. (Rafor), which is owned primarily by Respondent's parents, Mr. and Mrs. Cicco. Mr. Cicco, Mrs. Cicco, and Respondent are the officers of Rafor. Rafor is a licensed real estate company. Mrs. Cicco is a licensed real estate broker and has placed her license with Rafor. Mr. Cicco is a licensed real estate sales person. Respondent is neither a licensed real estate broker nor a licensed sales person. Rafor manages real estate projects. The majority of these projects were constructed by an affiliated company. Mr. Cicco's expertise is in development, including construction and management, and he owns companies and partnerships that are involved with the projects that he has developed. Respondent has assumed the role of Chief Financial Officer of about 10- 15 entities, including Rafor, owned by his father. Respondent also provides tax planning and automated financial services for his father's companies and partnerships. Rafor is a small organization with few, if any, employees outside of three members of the Cicco family. The Shore Manor Condominium Association, Inc. is the first and last time that Rafor attempted to provide management services to an association of homeowners or condominium owners. The Board of Directors of Shore Manor, which consists of 54 units, invited Rafor to make a presentation in connection with their search for management assistance. At the time, the condominium residents were reluctant to serve as directors and sign association checks due to liability concerns. Representing Rafor, Mr. Cicco made a presentation to the Board of Directors and later negotiated the conditions of the agreement between Rafor and Shore Manor. Respondent played a relatively minor role in the presentation or the negotiations. A corporate resume submitted by Rafor to Shore Manor does not identify individuals involved with Rafor, but limits itself to corporate characteristics. However, the resume closes as follows: "If you have any questions, please call me at [telephone number omitted]. Thank you for your consideration." Beneath this statement is Respondent's signature over his typewritten name and title of Chief Financial Officer. After receiving proposals from several prospective management companies, Shore Manor selected Rafor in December 1991. Except for some year- end matters, Rafor began serving as the management company on January 1, 1992. The resulting management agreement, which is dated December 24, 1991, recites that Rafor is in the "business of providing management and supervision for the operation, conduct and management of condominium buildings." The agreement states that Rafor will "order and supervise" all labor and materials supplied in connection with the operation, management, and maintenance of the condominium project and pay all obligations of the condominium association. The agreement authorizes Rafor to collect all regular and special assessments from association members and foreclose assessment liens in the name of the condominium association. The management agreement provides that the association will assess the members the amount set forth in the annual budget, as adopted by the association through its Board of Directors "and any Manager or Management Company which may from time to time be employed by the of [sic] the Association to prepare such annual budget . . .." "Management Company" is defined in the management agreement to mean "Rafor." "Manager" is an undefined term. Other provisions of the management agreement authorize Rafor to supervise the bookkeeping records and order all work and materials needed for the day-to-day operation, maintenance, and repair of the condominium project. The management agreement requires that Rafor to provide an onsite "Manager" for at least two hours weekly and for attendance at monthly association meetings. Ensuing provisions of the management agreement identify Rafor or the "Manager" as the entity to be directed by the association in providing specific services. The term of the management agreement is three years. The association agrees to pay Rafor $16,000 annually, plus reimbursement of authorized expenditures made by Rafor on behalf of the condominium association. Respondent signed the agreement on behalf of Rafor, noting beside his name that he is the Chief Financial Officer of Rafor. The management agreement imperfectly reflects the practice of the parties, especially as to the role of the "Manager." No individual ever served as an onsite manager during the time in question. Rafor's duties regarding financial matters were carefully circumscribed. There are two main accounts (ignoring a relatively minor laundry account, whose receipts were handled exclusively by the association). The accounts are for regular assessments and reserve assessments. Residents paid these assessments by checks payable to Shore Manor and delivered directly to Rafor. Authorized signatories on the accounts into which these funds were deposited were Respondent, Mrs. Cicco, the association president, and the association treasurer. Although Respondent signed nearly all of the association checks, the president and treasurer of the association closely supervised Rafor during the term of the management agreement. Mr. Cicco first approved all invoices. Then, he or Respondent would convey the information to the president or treasurer, who would tell Respondent to write the check. There was daily contact between the president and treasurer, on the one hand, and Mr. Cicco and Respondent, on the other hand. Except during the summer months, when many residents were out of town, Rafor submitted the ledger and canceled checks to the entire Board of Directors monthly for their review and approval. Neither Respondent nor Rafor had much responsibility regarding budgets either. Respondent, on behalf of Rafor, entered all transactions on spreadsheets. Rafor ran the budget numbers from a preceding interval and, at prescribed intervals, proposed options to a special Budget Committee for their consideration. In one such report, dated November 23, 1991, Rafor described three options for a budget with brief discussions of each. Advising the president that final action was the responsibility of the Board, the letter concludes that "I would welcome the opportunity to review and discuss all aspects of our proposal with you." The letter is signed by Respondent as Chief Financial Officer. Respondent handled other Shore Manor financial matters for which Rafor was responsible. By letter to Shore Manor residents dated January 25, 1992, Respondent, as Chief Financial Officer, outlined the adopted budget and advising that assessments were due. The letter concludes that if there are any questions or requests for help, residents should "feel free to call me at [telephone number omitted]." Respondent's remaining financial services for Shore Manor were limited to the preparation of tax or information returns for the association. In general, Respondent was less involved in maintenance matters than he was in financial matters, where his father has relatively little expertise. The most important maintenance issue that arose during the term of the management agreement involved substantial repairs to an existing seawall. Shore Manor is on the Gulf of Mexico and is protected by a seawall. One day, Respondent or Mr. Cicco learned that someone had fallen in a hole that had eroded behind the seawall protecting the condominium project. Rafor handled the seawall problem flawlessly. Its first response was to hire an engineer to prepare a written report on the condition of the seawall and available options. Mr. Cicco did not attempt to deal with this engineering problem himself. After the engineer completed his report recommending elaborate repairs, Rafor contacted another engineer who orally agreed with the findings of the first engineer. The first report cost about $300. When Respondent or Mr. Cicco relayed the oral findings of the second report, coupled with the second engineer's offer to prepare a written report for a fee, the Board of Directors told them not to bother obtaining another written report. There was considerable discussion among residents as to the best course to take. There is evidence that the Shore Manor residents resisted actions that resulted in the increase of regular or special assessments upon them. For instance, some residents opposed Rafor's sensible proposal that Shore Manor substantially increase its reserves to the amount maintained by a nearby, substantially similar condominium. Rafor took the position that, once the deterioration of the seawall had been documented, Rafor had a fiduciary duty to the association to recommend the repairs identified by the engineer. However, several residents remained strongly opposed to the repairs. At one point, by letter dated April 8, 1993, Respondent, as Chief Financial Officer of Rafor, asked for an opinion letter from an attorney concerning the individual and corporate liability that would arise from failing to repair the seawall. The opinion letter, which was addressed to Respondent, as Chief Financial Officer, warned of potential liabilities. The seawall issue demanded considerable time from Rafor in the persons of Respondent and Mr. Cicco. At one point, they submitted a detailed invoice showing that they had expended $42,900 in time with an actual invoice of $2500, which was the figure on which the president and Mr. Cicco had agreed. For the first nine months of 1993, Mr. Cicco spent 319 hours and Respondent spent 110 hours on the seawall matter. Respondent and his father each attended several special meetings of the residents and Board of Directors devoted to the seawall issue. Eventually, the requisite number of residents approved the seawall repairs, and the Board of Directors authorized Rafor to solicit bids for the proposed repair project. As Rafor's Chief Financial Officer, Respondent signed letters in July 1993 soliciting bids and informing residents of the status of the bidding process. Rafor obtained four bids, and the Board selected a bid in the amount of $65,000. The contractor began the repairs in the fall of 1993 and completed the project at $5000 under budget. In early 1993, Mr. Cicco and Respondent discovered that Shore Manor had failed to register as a condominium and no one at Rafor had obtained the required license as a community association manager. On March 1, 1993, Respondent, as Chief Financial Officer of Rafor, submitted to Petitioner an information request form, evidently in connection with the registration of Shore Manor. On March 11, 1993. Mr. Cicco became licensed as a community association manager. Mr. Cicco and Respondent decided, based on the advice of counsel, that the law required only Mr. Cicco to obtain the license and not also Respondent. Eventually, residents opposed to the seawall project filed a complaint with Petitioner. Following an investigation, Petitioner commenced this case. The parties amicably terminated the management agreement in October 1994. In a related case, Petitioner prosecuted Mr. Cicco for providing services as a community association manager without a license. By Consent Order dated August 29, 1994, the parties settled the case with Mr. Cicco paying a fine of $1500. There is absolutely no evidence of fraud or mismanagement of Shore Manor matters by Rafor, Mr. Cicco, or Respondent. To the contrary, Rafor, and Respondent individually, appear to have provided wise counsel and valuable services to the association. Petitioner has failed to prove that Respondent individually noticed or conducted meetings of the association. Petitioner tried to prove that Respondent controlled or disbursed funds or prepared budgets or other financial documents for the association. This is a close issue. Respondent answered with proof that he worked under the direct supervision of his licensed father, but it is unlikely that, given the backgrounds and areas of expertise of the two men, Mr. Cicco supervised Respondent as to these matters. However, the president and treasurer of Shore Manor left Respondent no managerial discretion in the control or disbursement of association funds. They were in daily contact with Respondent, who signed checks as a convenience to them and other directors. The president and treasurer delegated no meaningful authority to Respondent or Rafor as to the control or disbursement of association funds and effectively reduced their services to those of a bookkeeper, who is willing to undergo the liability of a signatory on an association checking account. Respondent prepared alternative budgets, but there is no evidence that he presented them to the association with recommendations. Rather, he merely ran spreadsheets based on past costs with some input from various members of the Budget Committee on projected future costs for such items as cable television and utilities. Respondent then provided the output to the Budget Committee, so they could adopt a budget. Again, the services of Rafor and Respondent concerning budgets does not significantly exceed the services offered by a good bookkeeper. The supervision of Board members over Respondent likely was less direct when it came to the matter of preparing tax or information returns. However, Petitioner failed to prove exactly what Respondent prepared, and Respondent himself did not know. It is thus impossible to find that the financial document was a document of any more substance than, for instance, a change-of-address form. The question of coordinating maintenance is also close. Respondent's involvement with maintenance is less than his involvement with financial and budgetary matters, but the statute does not require as much activity in the area of maintenance as it does in financial and budgetary matters. Unlike the other statutory provisions, which speak in terms of "controlling," "disbursing," and "preparing," management regarding maintenance arises merely by "coordinating." Respondent's involvement with the seawall project rises to the level of coordination, unless his testimony is credited that he signed the various letters, such as to the prospective bidders, as a convenience to his father. The ultimate question is therefore whether Respondent performed only clerical or ministerial functions under the direct supervision and control of a licensed manager. Unlike the situation regarding finances, the backgrounds and areas of expertise of Respondent and his father militate in favor of close supervision and control when it comes to maintenance matters. The evidence discloses that Respondent has absolutely no background in construction, while his father has a substantial background in construction. Working on the seawall matter, Mr. Cicco spent nearly three hours for every one that Respondent spent. Moreover, most of Respondent's time was directed toward handling the complaints of dissatisfied association members, while a much greater percentage of Mr. Cicco's time went toward coordinating with the engineer in the design of the repaired seawall. The same relationship between father and son characterizes Respondent's involvement in other maintenance projects during the term of the management agreement. Of course, this defense is unavailable to Respondent during the period that Mr. Cicco was unlicensed from no later than January 1, 1992, through March 11, 1993. Petitioner did not plead a timeframe for the violations. Petitioner's main witness testified that she believed the timeframe extended past even the filing of the Notice to Show Cause. (Tr. p. 83.) Although Respondent might have legitimately claimed confusion on this point to preclude evidence concerning acts earlier than March 11, 1993, he candidly disclaimed such an interpretation when he stated that he thought that the covered period ran from December 1991 or January 1992 to March 11, 1993. (Tr. p. 84.) It is unnecessary to consider the timeframe that Petitioner intended to encompass in the Notice to Show Cause. Petitioner failed to prove that Respondent coordinated maintenance for Shore Manor prior to the licensure of his father. Respondent prepared the letter to the attorneys and bid solicitation letters after Mr. Cicco was licensed. The record does not establish that Respondent coordinated maintenance of the seawall or anything else prior to that time.
Recommendation It is RECOMMENDED that the Division of Florida Land Sales Condominiums and Mobile Homes enter a final order dismissing the Notice to Show Cause against Respondent. ENTERED on July 25, 1996, in Tallahassee, Florida. ROBERT E. MEALE, Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this on July 25, 1996. APPENDIX Rulings on Petitioner's Proposed Findings 1 (except last sentence): adopted or adopted in substance. 1 (remainder): rejected as not finding of fact. 2-5 (except last sentence): adopted or adopted in substance. 5 (remainder): adopted or adopted in substance, except for implication that such an act, alone, satisfies the statutory criterion. Also, this finding is rejected if it implicitly precludes the finding that Respondent was under Mr. Cicco's supervision in coordinating maintenance. 6: adopted or adopted in substance. Also, this finding is rejected if it implicitly precludes the finding that Respondent was under Mr. Cicco's supervision in coordinating maintenance. 7: rejected as unsupported by the appropriate weight of the evidence. 8: rejected as recitation of evidence. 9 (except last sentence): adopted or adopted in substance. (remainder): rejected as unsupported by the appropriate weight of the evidence. (except last sentence): adopted or adopted in substance. 10 (remainder): rejected as unsupported by the appropriate weight of the evidence. 11: rejected as unsupported by the appropriate weight of the evidence. 11(a)-(c): adopted or adopted in substance as subordinate facts. 12: rejected as subordinate and unsupported by the appropriate weight of the evidence. 13-18: adopted or adopted in substance. 19: adopted in substance as to financial and budgetary matters, except as to implication that Respondent exercised discretion as to such matters. Rejected as unsupported by the appropriate weight of the evidence as to other matters. 20: rejected as recitation testimony and subordinate. 21: rejected as subordinate. 22-23: rejected as subordinate and unsupported by the appropriate weight of the evidence. Rulings on Respondent's Proposed Findings 1-3: adopted or adopted in substance. 4: rejected as irrelevant. 5-6: adopted or adopted in substance. 7: adopted or adopted in substance, except that the financial and budgetary services were not under the direct supervision of Mr. Cicco. 8: adopted or adopted in substance. COPIES FURNISHED: James Norred, Acting Director Division of Florida Land Sales, Condominiums and Mobile Homes 1950 North Monroe Street Tallahassee, Florida 32399-0792 Lynda L. Goodgame, General Counsel Department of Business and Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399-0792 Theresa Bender, Senior Attorney Department of Business and Professional Regulation Division of Florida Land Sales, Condominiums and Mobile Homes 1940 North Monroe Street Tallahassee, Florida 32399-1007 Robert A. Cicco, Jr. 9190 Oakhurst Road, Suite 2 Seminole, Florida 34646
The Issue Whether the Respondent, Department of Children and Families (DCF), may impose a moratorium for new residents at The Haven Center, Inc., for those who are enrolled in the Developmental Services Home and Community-Based Services Waiver Program (DS Waiver).
Findings Of Fact The Respondent is the state agency charged with the responsibility of regulating residential facilities that provide DS waiver services. Sunrise Opportunities, Inc., Sunrise Communities, Inc., and The Haven Center, Inc., are members of the Sunrise group of providers that serve individuals with developmental disabilities. Sunrise Opportunities, Inc., is a charitable, tax-exempt entity that provides residential and day treatment services to individuals under the DS Waiver program. The Haven Center, Inc., owns seven homes located on 23+/- acres in Miami-Dade County, Florida. The homes located at The Haven Center, Inc., are operated by Sunrise Opportunities, Inc. Such homes have been monitored and reviewed by the DCF on numerous occasions. The reviews or inspections have never revealed a significant deficiency. Moreover, historically the DCF has determined that residents at The Haven Center, Inc., have received a high quality of care. For some unknown time the parties were aware of a need to move individuals residing at The Haven Center into community homes in the greater South Miami-Dade County area. Concurrently, it was planned that individuals in substandard housing would then be moved into The Haven Center. This "transition plan" as it is called in the record would be accomplished as improvements were completed to the Sunrise properties. That the parties anticipated the transition plan would be implemented as stated is undisputed. Because it believed the transition plan had been agreed upon and would be followed, Sunrise Opportunities, Inc., incurred a considerable debt and expended significant expenses to purchase and improve homes in the South Miami-Dade County area. Additionally, DS Waiver participants were moved from The Haven Center to the six-person homes in South Miami-Dade County. In fact, over fifty percent of The Haven Center residents have made the move. In contrast with the transition plan, only 12 individuals were allowed to move into The Haven Center. Instead, DCF notified the Petitioners of a moratorium prohibiting the placement of DS Waiver residents into The Haven Center. This moratorium, represented to be "temporary," is on-going and was unabated through the time of hearing. The moratorium prompted the instant administrative action. Upon notice of DCF's intention to impose a moratorium on The Haven Center, the Petitioners timely challenged such agency action. DCF based the moratorium upon an Order Approving Settlement Agreement entered in the case of Prado-Steiman v. Bush, Case No. 98-6496-CIV-FERGUSON, by United States District Judge Wilkie D. Ferguson, Jr. on August 8, 2001. The Petitioners had objected to the approval of the Settlement Agreement in Prado-Steiman but the court overruled the objectors finding they, as providers of services to the DS Waiver residents, did not have standing in the litigation. The Prado-Steiman case was initiated by a group of disabled individuals on behalf of the class of similarly situated persons who claimed the State of Florida had failed to meet its responsibility to such individuals under Federal law. Without detailing the case in its totality, it is sufficient for purposes of this case to find that the Prado-Steiman Settlement Agreement imposed specific criteria on the State of Florida which were to be met according to the prospective plan approved and adopted by the court. At the time the Prado-Steiman case was filed, The Haven Center was licensed as a residential habilitation center. After the Settlement Agreement was executed by the parties in Prado-Steiman, but before the court entered its Order Approving Settlement Agreement, the licensure status of The Haven Center changed. Effective June 1, 2001, The Haven Center became licensed as seven group homes together with a habilitation center. Pertinent to this case are specific provisions of the Prado-Steiman Settlement Agreement (Agreement). These provisions are set forth below. First, regarding group home placements, the Agreement provides that: The parties agree that they prefer that individuals who are enrolled in the Waiver [DS Waiver] live and receive services in smaller facilities. Consistent with this preference, the parties agree to the following: The Department [DCF] will target choice counseling to those individuals, [sic] enrolled on the Waiver who presently reside in residential habilitation centers (where more than 15 persons reside and receive services). The focus of this choice counseling will be to provide information about alternative residential placement options. The Department will begin this targeted choice counseling by December 1, 2000, and will substantially complete the choice counseling by December 1, 2001. * * * 4. The Department and the Agency [Agency for Health Care Administration] agree that, in the residential habilitation centers, if a vacancy occurs on or after the date this agreement is approved by the Court, the Department will not fill that vacancy with an individual enrolled on the Waiver. (Emphasis added) None of the individually licensed group homes at The Haven Center is authorized to house more than 15 persons. All of the group home licenses at The Haven Center were approved before the Prado-Steiman Court approved the Agreement. The Agreement also provides that the parties: . . . have agreed that the Court may retain jurisdiction of this litigation until December 31, 2001, at which time this case will be dismissed with prejudice. The Plaintiffs may seek to continue the jurisdiction of the Court and to pursue any of the relief requested in this lawsuit only if they can show material breach as evidenced by systemic deficiencies in the Defendants' implementation of the Plan of Compliance. In any motion to continue the jurisdiction of the Court, Plaintiffs must demonstrate that alleged breaches and any proposed cure were fully disclosed to the state defendants consistent with the "Notice and Cure" provisions set forth below in paragraphs 7-10 below, that the action requested by the plaintiffs is required by existing law, and the State Defendants have refused to take action required by law. Such relief may not be sought after the scheduled dismissal of the litigation. Absent the allegation of material breach in a pending motion, the Court will dismiss this lawsuit with prejudice on December 31, 2001. (Emphasis added) Also pertinent to this case, the Agreement provides: 19. The parties' breach, or alleged breach, of this Agreement (or of the terms contained herein) will not be used by any party as a basis for any further litigation. "Systemic problems or deficiencies" is defined by the Agreement to mean: problems or deficiencies which are common in the administration of the Waiver, inconsistent with the terms of this Stipulated Agreement, and in violation of federal law. Isolated instances of deficiencies or violations of federal law, without evidence of more pervasive conduct, are not "systemic" in nature. State otherwise, a problem or deficiency is systemic if it requires restructuring of the Florida Developmental Services Home and Community-Based Services Waiver program itself in order to comply with the provisions of federal law regarding the Waiver; but that it is not "systemic" if it only involves a substantive claim having to do with limited components of the program, and if the administrative process is capable of correcting the problem. After the Agreement was adopted the Respondent advised Petitioners to continue with the transition plan. On or about September 1, 2001, the Petitioners and the Respondent entered into contracts for the group homes operated at The Haven Center. Each home is properly licensed, has honored its contracts to provide services to disabled individuals, and has complied with state licensure laws. A licensed Residential Habilitation Center may not have a licensed capacity of less than nine. Advocacy issued a letter dated March 8, 2002, that alleged systemic problems constituting material breaches of the Agreement. Among the cited alleged deficiencies is the failure of the state to ensure . . . that locally-licensed providers receiving waiver funds for providing group- home services in fact are providing services in that setting rather than in institutional settings. Examples include: a) A former residential habilitation center known as Haven is now licensed as a group home in District 11 (Miami/Dade) and receives HCBS waiver funds. There is no evidence that The Haven Center is providing services in any setting other than as licensed by the Respondent. That is, there is no evidence it is not operating as individually licensed group homes. Further, Advocacy had actual knowledge of the instant administrative action. In short, it did not attempt to participate in the Petitioners' challenge to the moratorium. DCF has imposed a moratorium on no other licensed group home in the State of Florida. The group homes at The Haven Center are the sole targets for this administrative decision.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Respondent, Department of Children and Family Services, enter a Final Order lifting the moratorium on placements of DS Waiver participants at The Haven Center's group homes. DONE AND ENTERED this 3rd day of June, 2002, in Tallahassee, Leon County, Florida. J. D. PARRISH Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 3rd day of June, 2002. COPIES FURNISHED: Paul Flounlacker, Agency Clerk Department of Children and Family Services 1317 Winewood Boulevard Building 2, Room 204B Tallahassee, Florida 32399-0700 Josie Tomayo, General Counsel Department of Children and Family Sevices 1317 Winewood Boulevard Building 2, Room 204 Tallahassee, Florida 32399-0700 Veronica E. Donnelly, Esquire Office of the Attorney General The Capitol, Plaza Level 01 Tallahassee, Florida 32399-1050 Steven M. Weinger, Esquire Kurzban, Kurzban, Weinger & Tetzeli, P.A. 2650 Southwest 27th Avenue, Second Floor Miami, Florida 33133
The Issue The issues are whether the respondents engaged in a discriminatory housing practice, in violation of the Florida Fair Housing Act, Sections 760.20 through 760.37, Florida Statutes (2007),1 by discriminating against Petitioner, on the basis of her alleged disability, and by harassing Petitioner and retaliating against her.
Findings Of Fact Petitioner is a former resident of Broadview Mobile Home Park (Broadview), located at 1701 Post Road, Melbourne, Florida. Petitioner resided in Broadview for approximately six years from an undisclosed date in 2002 through September 8, 2008. Mr. Lamont Garber holds an ownership interest in Broadview. The record does not quantify the ownership interest of Mr. Garber. Mr. Garber manages Broadview with his brother, Mr. Wayne Garber. Broadview rents sites within the mobile home park to residents who own mobile homes. Each site has access to water and electric service. Each resident arranges his or her water and electric service directly with the respective utility provider. Sometime in 2005, Petitioner purchased a mobile home for approximately $6,500.00 and moved within Broadview to Lot 24. The rental agreement for Lot 24 required rent to be paid on the first day of each month. The rent for July 2008 was due on July 1, 2008. Petitioner failed to pay the rent payment that was due on July 1, 2008. On July 9, 2008, Broadview served Petitioner, by certified mail, with a notice that she had five business days in which to pay the rent due (the five-day notice). Petitioner received the five-day notice on July 10, 2008. The five-day period expired on July 17, 2008, with no rent payment from Petitioner. Petitioner had paid rent late in the past, but Petitioner had never been more than four or five days late. After July 17, 2008, Broadview initiated eviction proceedings. Petitioner tendered the rent payment on July 20, 2008, but Broadview proceeded with the eviction. Petitioner did not appear and defend the eviction proceeding. On August 26, 2008, the County Court for Brevard County, Florida, issued a Final Default Judgment of Eviction awarding possession of Lot 24 to Broadview. Law enforcement officers thereafter executed the Court's order and evicted Petitioner from Broadview on or about September 8, 2008. After Petitioner received the notice of eviction, she filed a complaint with the Florida Department of Business and Professional Regulation, Division of Florida Condominiums, Timeshares, and Mobile Homes (DBPR). DBPR is the state agency responsible for regulating mobile home parks, including Broadview. The allegations in the complaint that Petitioner filed with DBPR were substantially similar to the claims of discrimination, retaliation, harassment, and unlawful rent increases Petitioner asserts in this proceeding. DBPR rejected Petitioner's allegations and found that Broadview lawfully evicted Petitioner for non-payment of rent. The final agency action of DBPR is substantially similar to that of HUD and the Commission's proposed agency action in this proceeding. Each agency found that Broadview lawfully evicted Petitioner for non-payment of rent and rejected the allegations of discrimination, harassment, and retaliation. The DOAH proceeding is a de novo consideration of the proceeding before the Commission. A preponderance of the evidence does not establish a prima facie showing that Petitioner is disabled or handicapped. Petitioner has cancer and is receiving chemotherapy and radiation treatment. A preponderance of evidence does not show that the medical condition substantially limits one or more major life activities of Petitioner. Petitioner also alleges that she is disabled and handicapped by a mental condition. Petitioner submitted no medical evidence of the alleged disability or handicap. A preponderance of evidence does not establish a prima facie showing that, if such a mental condition exists, the condition substantially limits one or more major life activities of Petitioner. Assuming arguendo that a preponderance of the evidence showed that Petitioner were disabled or handicapped, a preponderance of evidence does not establish a prima facie showing that either of the respondents discriminated against Petitioner, harassed her, or evicted her in retaliation for Petitioner's disability or handicap. It is undisputed that Petitioner conducted neighborhood organization efforts to protest a rent increase at Broadview and repeatedly called law enforcement officials to report alleged drug and prostitution activity in Broadview.2 However, Broadview did not evict Petitioner for those activities, and Petitioner's testimony to the contrary is neither credible nor persuasive. Rather, Petitioner engaged in other activities that the respondents found objectionable. Petitioner baby sat for one or more dogs in violation of Broadview's prohibition against pets. Some of the dogs were dangerous to other residents. Petitioner also verbally abused Mr. Wayne Garber when he attempted to mediate with Petitioner concerning the presence of dogs and Petitioner's conduct toward management at Broadview. On July 1, 2008, Broadview served Petitioner with a seven-day notice concerning Petitioner's compliance with lease requirements. The notice, in relevant part, alleged that Petitioner harassed management and impaired the ability of management to perform its duties. The testimony of respondents describing the activities of Petitioner that precipitated the seven-day notice is credible and persuasive. A preponderance of the evidence shows that the respondents had legitimate non-discriminatory reasons for requiring Petitioner to comply with the terms of the seven-day notice and for requiring Petitioner to comply with the requirement for rent to be paid on July 1, 2008. Petitioner failed to comply with either requirement, and Broadview evicted Petitioner for legitimate, non-discriminatory reasons. The respondents did not harass or retaliate against Petitioner.3
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Commission enter a final order finding that the respondents did not engage in an unlawful housing practice and dismissing the Petition for Relief. DONE AND ENTERED this 20th day of May, 2009, 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 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 20th day of May, 2009.
Findings Of Fact The land encompassed within the mobile home park known as Mohawk Village was purchased by Winter Springs Mobile Home Corporation, a corporation owned and controlled by the Tanner family. The majority of the stock in Respondent is owned by the oldest son; another son is president of Respondent; and the father, L. William Tanner, served as "consultant" to the corporation. This tract was initially divided into some 700-odd lots which were being sold to the public in 1980 as mobile home sites. The land was purchased from North Orlando Sewer and Water Company, which agreed to provide sewer and water services to the subdivision and to have these facilities in place by January 1, 1981. Respondent never registered with the Petitioner in accordance with Chapter 498, Florida Statutes. North Orlando Sewer and Water Company failed to provide sewer service to this development and none of the home sites were available for occupancy January 1, 1981, as promised to buyers by Respondent. Without sewer service it became necessary to go to septic tanks and this required larger lots per mobile home site. The tract was replatted to provide 300-odd lots despite the previous sale of smaller lots to buyers. These buyers were advised their lots would have to be swapped and when some objected and demanded their money back, without success, Petitioner was made aware of the development and investigated. The investigation led to the entering of a Cease and Desist and Consent Order (Exhibit 1). Therein Petitioner essentially agreed to forego action against Respondent for prior violations of Chapter 498, which Respondent contended it was subject to; and Respondent agreed to cease all leasing until the site was ready for occupancy, to provide Petitioner with copies of all leases in effect, as well as copies of all future leases executed, to deposit funds received from buyers in escrow until after receipt of a certificate of occupancy, and to take necessary steps to ensure all future leases fall within the statutory exemptions set forth in Section 498.025(1)(g), Florida Statutes. L. William Tanner was paid a consulting fee by Respondent "in the ballpark of $100,000." In addition, he was to own the companies that provided utilities to the park (after default by North Orlando Sewer and Water Company), and furnished porches, decks, built walkways, roads, etc. Following the Consent Order funds were received payable to Tanner-controlled companies that were not deposited in the escrow account. These funds were not lease payments but came from the lessees for sewer and water hookups, porches, decks, etc. Mohawk Village received its first certificate of occupancy on 14 January 1982. Between 17 April 1981, when the Consent Order was entered, and 14 January 1982, lot leases were sold to Gould on 30 November 1981; to Herring on 12 September 1981; and to Roberts on 14 January 1982 (Exhibit 6). The sales to Gould and Herring were clearly during the period Respondent had consented not to sell leases. Exhibit 1 authorized Respondent to renegotiate and relocate current lessees to new mobile home sites under a plan to use alternate utility services from those initially to be provided by North Orlando Sewer and Water Company "if such plan is implemented at no additional cost to the individual lessees." Those who had bought leases under the original scheme agreed to pay $29 per month to lessor. Leases sold after the decision to use septic tanks where the number of lots was reduced from 700-odd to 300-odd, provided the lessees would pay the lessor $59 per month. Respondent advised the earlier lessees that they would have to pay $59 per month in lieu of $29. When they objected and demanded refunds of what they had paid, some of them were promised refunds but to date very few have received any refunds. Changing their rental fee from $29 to $59 violated the Consent Order. The only change in the lease before and after the execution of the Consent Order was the change of this monthly rental payment. Since the original lease did not qualify for exemption under Section 498.025(1)(g), Florida Statutes, the amended lease, which merely changed the monthly rental fee, did not qualify for exemption. Leases on these lots were sold at prices ranging from $1,000 to $7,000. At no time relevant hereto did Respondent hold a dealer's license to deal in or sell mobile homes (Exhibit 3) There was no valid reservation program established by Respondent pursuant to Section 498.024, Florida Statutes, nor did Respondent apply for or receive approval of a public offering statement for Mohawk Village (Exhibit 2). All leases sold provided, in addition to a habitable lot, that the seller would provide recreational facilities. Those leases sold in 1980 promised a lot on which the buyer could move his mobile-home by January 1, 1981. Not only was the deadline missed but also Respondent has provided no recreational facilities. One witness who sold her home and bought a mobile home could not move it to the site in accordance with the contract because of lack of utilities and was forced to acquire another residence. Although proper demand was made she has been refunded none of her purchase money. According to his testimony, L. William Tanner has developed about one hundred subdivisions throughout the United States since 1946. Some 20 such subdivisions have been developed by him in Florida. He is aware of the Florida statutes regulating the subdivision and sale of lands, and contends that the Mohawk Village subdivision is exempt because Petitioner does not have jurisdiction over 99-year leases. He further contends that the monthly rental payments of $29 or $59 for 99 years brings the price paid for the lots to more than $50,000, thereby exempting them from the provisions of Chapter 498. Prior to the commencement of this hearing, Mohawk Village was transferred to Gould, who had been involved in supplying mobile homes to lot purchasers in the park. According to Tanner's testimony "it was not much of a sale" with him insisting Gould and Mohician Valley (apparently the new name for the mobile home subdivision) acknowledging existing mortgage, the Consent Agreement with Petitioner, and the obligation to refund the monies. No documentary evidence was presented to show that Tanner or his immediate family does not continue to own controlling interest in this mobile home park.
The Issue Whether Respondent, Venetian Isles Homeowners Association, Inc. (Association), properly revived its expired Declaration of Restrictions and Covenants in accordance with sections 720.403 through 720.407, Florida Statutes (2019).
Findings Of Fact Based on the evidence adduced at hearing and the record as a whole, the following Findings of Fact are made: 1 During the final hearing there was testimony about the circuit court case. At the undersigned's request and per the parties' agreement, the circuit court order was filed post- hearing on June 11, 2020. PARTIES Petitioner is a parcel owner within the Venetian Isles community.2 Petitioner's real property was included in the Association's request for revitalization submitted to the Department for approval. Although Petitioner is not a member of the Association, Petitioner's property would be subject to the Declaration of Restrictions and Protective Covenants (Restrictive Covenants) that the Association wishes to revitalize. Respondent Association is a not-for-profit corporation formed pursuant to chapter 617, Florida Statutes. It is a voluntary homeowners association and is not governed by chapter 720. All parties agree, however, that the procedures set forth in sections 720.403 through 720.407 can be used to revitalize the Association's expired restrictive covenants which it seeks to enforce. See § 712.11, Fla. Stat. ("Covenant revitalization. A property owners' association not otherwise subject to chapter 720 may use the procedures set forth in ss. 720.403-720.407 to Revive Covenants that have lapsed under the terms of this chapter"). The Department is the state agency responsible for reviewing and approving submissions from associations seeking to revive declarations of covenants that have expired or otherwise have lapsed. Chapter 720, Part III, contains the requirements for revitalization and also contains the specific responsibilities of the Department. RESTRICTIVE COVENANTS AND OTHER GOVERNING DOCUMENTS The original developer of Venetian Isles placed conditions and restrictions on the parcels by recording separate restrictions for each Unit. The first restrictions were recorded in 1967 for Unit 1 and the last were recorded in 1972 for Unit 9 (developer's restrictions).3 2 Venetian Isles is a residential subdivision in St. Petersburg, Pinellas County, Florida comprised of Units 1 through 10, with 525 single family homes. 3 The Restrictive Covenants for Unit 9 were later amended in 1973. The Association was incorporated in 1971 after the development of Unit 9. Although it is unclear from the record, at some point responsibility for administering and enforcing the developer's restrictions may have been assigned to the Association. The Restrictive Covenants the Association seeks to revive were recorded on January 24, 1978. At that time, the developer's restrictions were superseded because Venetian Isles was fully developed and authority for enforcement of the restrictions was transferred from the developer to the Association. As reflected in the "Whereas" clause in the 1978 Restrictive Covenants, the homeowners in Units 1 through 9 approved the new restrictions; the homeowners in Unit 10 did not. The undersigned finds that the 1978 Restrictive Covenants were validly enacted and recorded, and that they extinguished the restrictions previously recorded by the developer for Units 1 through 9. Pursuant to chapter 712, Florida Statutes (also known as the Marketable Record Title Act (MRTA)), the Restrictive Covenants recorded in 1978 expired 30 years later, on January 24, 2008. They are no longer effective or enforceable, absent revitalization. Prior to their expiration, the Restrictive Covenants were amended four times: November 10, 1999; August 18, 2005; November 27, 2006; and July 17, 2007. A fifth Amendment was recorded on April 7, 2015, after the expiration of the Restrictive Covenants. The Association was incorporated as a not-for-profit corporation under chapter 617, and its Articles of Incorporation were recorded on August 11, 1971. The Association's original bylaws were not presented at the hearing or submitted to the Department. The Association revised its bylaws numerous times including in 2004, 2007, and 2013. Only the 2007 bylaws were recorded, and that was not done until January 2010. The Association argues that the 2013 revised bylaws were not official because they were not recorded. As explained below, neither chapter 617 nor the statutory procedures for revitalization require that the Association bylaws be recorded. These 2013 bylaws were duly adopted by the Association on January 28, 2013, as indicated through the Association newsletter. The 2013 bylaws are also posted on the Association's website as the current set of bylaws. See Venetian Isles Homeowners Association website at http://www.ourvi.org/deed-restrictions.html (last visited on June 8, 2020). As such, the undersigned finds that the 2013 bylaws are the official bylaws of the Association. REVITALIZATION COMMUNICATIONS, PACKAGES, AND PROCESS In an effort to revitalize the expired Restrictive Covenants, pursuant to the requirements of sections 720.403, the Association formed an organizing committee made up of the following people: Randy Havey, Mark Brenman, and Thomas Testa. The Association prepared a packet of documents (Owners' Packet) consisting of the following documents: Cover letter with instructions dated October 28, 2019; Document titled "Written Consent Approving Revived Declaration of Declaration of Restrictions and Protective Covenants for Venetian Isles Under Florida Statute 720.405(6)" (Consent Form); Copy of the Declaration of Restrictions and Protective Covenants for Venetian Isles, recorded January 24, 1978, with five amendments recorded in 1999, 2005, 2006, 2007, and 2015; Certificate of Incorporation and the Articles of Incorporation for the Association recorded in 1971; Revised bylaws for the Association dated January 25, 2007, and recorded in 2010; and Plats (graphic depictions) for Units 1 through 9 of Venetian Isles. The committee either hand-delivered or sent via regular U.S. mail an Owners' Packet to each parcel owner, not just to voluntary Association members. As a parcel owner, Petitioner received the Owners' Packet. The Association received 321 Consent Forms in favor of revitalization. Therefore, a majority of the 525 parcel owners (263 constituting a majority) elected to proceed with the revitalization process. The cover letter in the Owners' Packet contained the names, addresses, and phone numbers of all three of the organizing committee members. Petitioner alleges numerous additional communications were made by the Association regarding the revitalization to its members, but not to him. He also alleges these communications did not have the necessary contact information for the organizing committee members. The Association counters that it is a voluntary Homeowners association and the additional communications were sent only to those members who had paid the Association dues. Again, Petitioner was not a member of the Association at that time. Many of the communications were on the Association website or on a social media site for neighborhoods known as "Nextdoor." The undersigned finds these communications were not from the organizing committee. However, on November 5, 2019, Anne Hathorn, the Association's attorney who was handling the revitalization process, sent out an informational letter directed to "Venetian Isles Homeowners" (Hathorn Letter). In the letter, Ms. Hathorn specifically stated she was asked by the Association's Board to address questions raised about the revitalization of the Restrictive Covenants. At the conclusion of the letter she instructed, "If you have questions, please contact a member of the Organizing Committee, whose contact information is contained in the package you received." The Hathorn Letter did not state that it was addressed only to Association members, nor did it specifically include the organizing committee members' contact information. Based on the substance of the Hathorn Letter and on Ms. Hathorn's testimony, the undersigned finds this letter was an official communication authorized by the organizing committee. On January 16, 2020, the Association submitted a package to the Department seeking approval of the revitalization of the Restrictive Covenants and amendments (DEO Package). The DEO Package contained the following items: Affidavit of Mr. Brenman, one of the organizing committee members, verifying the copies of the Written Consents returned to the Association; Verified Copies of the Written Consents agreeing to revitalization of the Restrictive Covenants; Affidavit of Ms. Hathorn, the Association's attorney, verifying the Restrictive Covenants and amendments for Venetian Isles, and the Articles of Incorporation and the bylaws for the Association; Copy of the Restrictive Covenants for Venetian Isles, recorded January 24, 1978, and the five amendments recorded in 1999, 2005, 2006, 2007, and 2015; Certificate of Incorporation and the Articles of Incorporation for the Association recorded in 1971; Revised bylaws for the Association dated January 25, 2007, and recorded in 2010; Legal Descriptions of each parcel and graphic depictions of the parcels by Unit; and List of all the parcel owners for Units 1 through 9. On February 7, 2020, per the Department's request, the Association submitted the following additional items in support of its revitalization efforts: Affidavit of Mr. Testa, one of the organizing committee members, verifying copies of the Owners' Package were sent to all affected parcel owners of Venetian Isles; Copy of the Owners' Packet; Affidavit of James Pelletier, dated March 15, 2010, and recorded on March 18, 2010, certifying that the 2007 set of bylaws for the Association were the set of bylaws in effect at that time, along with a copy of the 2007 bylaws; and Affidavit of Mr. Testa verifying a copy of the Association's bylaws (undated and unrecorded) titled "2004 bylaws of Venetian Isles Homeowners Association, Inc.," and attesting that this copy is the earliest set of bylaws in the Association's Official Records. On February 21, 2020, the Department approved the revitalization of the Restrictive Covenants and "other governing documents." On March 11, 2020, the Circuit Court for the Sixth Judicial Circuit for Pinellas County held an evidentiary hearing in the matter of Venetian Isles Homeowners Association, Inc. v. Edwin Kravitz, Jr. (Case No. 19-001734-CI). The circuit court ordered that the Association was allowed to record the revised Restrictive Covenants as approved by the majority of the parcel owners and the Department, but the Association was barred from enforcing the Restrictive Covenants against Petitioner until further ruling from this administrative proceeding.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Economic Opportunity enter a final order disapproving the revitalization of the Venetian Isles Homeowners Association, Inc.'s expired restrictive covenants. 4 The undersigned is cognizant of the fact that the Association has recorded the revitalized Restrictive Covenants at issue, but makes no finding or conclusion regarding the appropriate action in the circuit court case. DONE AND ENTERED this 17th day of August, 2020, in Tallahassee, Leon County, Florida. S HETAL DESAI Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 17th day of August, 2020. COPIES FURNISHED: Connie Davies, Esquire The Law Office of Connie Davies, P.A. 2158 Montana Avenue Northeast St. Petersburg, Florida 33703 (eServed) Anne Hathorn, Esquire Anne Hathorn Legal Services, LLC Suite 1270 150 2nd Avenue North St. Petersburg, Florida 33701 Janay Lovett, Agency Clerk Department of Economic Opportunity Mail Stop 110 107 East Madison Street Tallahassee, Florida 32399 (eServed) Valerie A. Wright, Esquire Department of Economic Opportunity 107 East Madison Street Tallahassee, Florida 32399-6508 (eServed) Keith G. Shevenell, Esquire Groelle & Salmon, P.A. Suite 320 1715 North Westshore Boulevard Tampa, Florida 33607 (eServed) Jon F. Morris, Esquire Department of Economic Opportunity Mail Station 110 107 East Madison Street Tallahassee, Florida 32399 (eServed) Ken Lawson, Executive Director Department of Economic Opportunity Caldwell Building 107 East Madison Street Tallahassee, Florida 32399-4128 (eServed) Mark Buckles, Interim General Counsel Department of Economic Opportunity Caldwell Building., MSC 110 107 East Madison Street Tallahassee, Florida 32399-4128 (eServed)
Findings Of Fact Lake Waldena Resort is a mobile home park as defined by Section 723.003(6), Florida Statutes. It is located at Route 4, Box 300, Silver Springs, Florida 32688. The mobile home park is subject to regulation pursuant to Section 723.002(1), Florida Statutes. That law is administered by the Petitioner. All Respondents are mobile home park owners as defined by Section 723.003(7), Florida Statutes. The Hilgemans are park owners and have been at all relevant times for this dispute. At the times relevant to the inquiry Pat Montgomery was the park operator, which equates to park owner under the terms of the statute. Pat Montgomery concluded her affiliation with Lake Waldena Resort in May 1989. Pat Montgomery, as the park operator, who had been employed by Donald L. Hilgeman, collected the rent from the mobile homeowners who had lots within the park. She attended any problems that the mobile homeowners confronted her with. She ordered supplies for the operation of the mobile home park. She sold mobile homes for use in the park and ordered them for sale. She was involved with the provision of carports and screen rooms associated with mobile homes in the park. She was responsible for the payroll and basically everything that transpired in the day-to- day operations in the mobile home park. The Hilgemans had limited affiliation with the park. Mr. Hilgeman was involved with doing physical labor at the park and was Montgomery's employer. On July 26, 1988, a notice of lot rental increase was mailed to all tenants in the Lake Waldena Resort Mobile Home Park. This notice was provided in accordance with Rule 7D-32.002(1), Florida Administrative Code. The basis for this increase was associated with the economic pressures on the park owner brought about by increases in real estate taxes, insurance costs, sanitation fees, other fees payable to the Petitioner, and wage increases. An exemplar of the form notice which had been sent out to each mobile home owner may be seen in Respondents' Exhibit 5 admitted into evidence. All notices were dispatched by U.S. Mail. As contemplated by Rule 7D-32.002(4), Florida Administrative Code, official notice was considered to have been made within five days of July 26, 1988, which corresponded to July 31, 1988. A meeting within 30 days of the provision of notice as described in Section 723.037(3), Florida Statutes, would equate to August 30, 1988. The proposed lot increase was from $78 to $88. At the time of notification of the lot increase Lloyd Carter was the vice president of the homeowners' association at Lake Waldena Resort. He was residing in the mobile home park. Gordon Gibson was the president of the homeowner's association who, at the moment of the lot increase, was residing in Minden, Ontario, Canada. Mr. Carter picked up a copy of the notice of lot rental increase from the office at the mobile home park shortly after the notice had been prepared on July 26, 1988. He then called Mr. Gibson in Canada and explained the particulars of that notice. At that time, Mr. Carter stated no concerns to Mr. Gibson about the notice of lot rental increase. He merely informed Mr. Gibson of the pendency of the lot rental increase. Under ordinary circumstances the' expected time for delivery of mail dispatched from the United States to Canada was in the neighborhood of five to seven days; however, in August 1988, the Canadians were undergoing a postal strike which delayed matters. Nonetheless, Mr. Gibson received his copy of the notice and on August 4, 1988, he wrote Mr. Hilgeman. A copy of that correspondence may be seen as Respondents' Exhibit 6 admitted into evidence. Mr. Gibson informed Mr. Hilgeman in that correspondence that he wished to have a meeting to discuss the lot rental increase. The meeting would be attended by a committee of not more than four persons under the direction of Mr. Carter. He asked that the meeting be held at a convenient time prior to August 26, 1988. The basis for Mr. Gibson's action in which he requested a meeting with the park owner was through the process of discussion with his board of directors in independent conversations in which it was decided that a meeting was desired. A meeting to discuss the reasons for the lot rental increase was not held before August 26, 1988, or before August 30, 1988. When Mr. Gibson sent his August 4, 1988 correspondence he was aware of the problems of the postal strike in Canada and the delay that this might promote in the receipt of his letter by the park owner. He had not instructed Mr. Carter to make any contact with the park owner prior to the park owner's receipt of the correspondence which outlined the fact of Mr. Carter's duties as chairman of the committee. The return receipt correspondence from Gibson to Hilgeman dated August 4, 1988, was received by, Pat Montgomery in mid August 1988. By correspondence of August 22, 1988, addressed from Mr. Hilgeman to Mr. Gibson, a copy of which may be seen as Respondents' Exhibit 7 admitted into evidence, Mr. Hilgeman demanded of Mr. Gibson that he confirm that a majority of the Lake Waldena residents had in fact selected Mr. Gibson to represent them. Reference is made in that letter to section 723.078(2)(b), Florida Statutes, having to do with the requirements for bylaws in homeowners' associations. This request of Mr. Gibson is not a prerogative of Mr. Hilgeman as park owner in dealing with the issue of the conduct of the meeting. Nor is it available to Mr. Hilgeman to remind Mr. Gibson that he had to comply Section 723.037(1), Florida Statutes or Section 723.076(1), Florida Statutes. To the extent that those provisions have any relevance to the homeowners' association, the former pertains to standing to challenge increases in such things as the lot rental amount through the homeowners' association, something that the park owner is not called upon to advise the homeowners' association about. This question of standing does not enter in to the matter of the ability to represent mobile home owners at a meeting pursuant to Section 723.037(3), Florida Statutes, for purposes of discussing the lot rental increase. Likewise, the latter statutory reference that describes the idea of incorporation of a homeowners' association and the need to notify the park owner is not associated with the meeting to discuss the purposes of the lot rental increase. On the other hand, when Mr. Hilgeman referred to Rules 7D-32.003(1) and 7D-32.004(2), Florida Administrative Code, those are provisions which have some significance in considering the matter of a meeting to discuss a lot rental increase. Rule 7D-32.004(2), Florida Administrative Codes, states: If requested to do so by the park owner or subdivision developer, the committee shall certify that it has been selected as described Rule 7D-32.003, Florida Administrative Code. The certification shall include a certificate of all members of the committee attesting to its proper formation under the statute in these rules. Significantly, that provision does not describe the relationship of such a request to the obligation of the park owner to meet within 30 days of notice of lot rental increase as contemplated by Section 723.037(3), Florida Statutes. None of the principals, given the statutory scheme and rules that were designed to effectuate the purposes of the statute, could have reasonably understood on what terms the park owner was entitled to make this request taking into account the complications of corresponding back and forth between the United States and Canada in the midst of a mail strike, the consequence of which made it unlikely that the meeting would take place on or before August 30, 1988. In the conclusions of law a discussion is made of the effect of the request for certification and whether it tolls the time for conducting the informational session to discuss the reasons for the lot rental increase. The envelope for the August 22, 1988 correspondence was stamped in the United States on August 23, 1988, in Bradenton, Florida. It also bears a date of August 29, 1988, which is seen as a part of the verification of receipt of that letter in Canada. Mr. Gibson received the Hilgeman correspondence of August 22, 1988 on August 29, 1988. Mr. Carter also received a copy of the August 22, 1988 correspondence by Mr. Hilgeman and had a discussion with Mr. Hilgeman about that letter sometime around August 23 or August 24, 1988. That conversation took place in the mobile home park. This did not lead to the resolution of the certification request made by Mr. Hilgeman to the homeowners' association. It was left to Mr. Gibson to take care of the response to the request for certification. In the conversation being described, between Hilgeman and Carter, Carter made it known that he intended to complain to the Petitioner about the park owner not meeting with the homeowners' committee within 30 days of notice. A complaint was made as may be seen in a copy of that complaint which is Respondent's Exhibit No. 2 admitted into evidence. That complaint was sent out on August 26, 1988. The basis for the homeowners' association complaining to the Petitioner was related to their concern that they preserve their right to have the meeting even if it transpired beyond the 30 days contemplated in the statute. Notwithstanding the complaint's existence, Mr. Gibson went forward with his attempts to try to satisfy Mr. Hilgeman concerning certification and did so with the assistance of Victor Davis a member of the board of directors of the homeowners' association. Mr. Gibson's attitude about this was to the effect that the request by Mr. Hilgeman was a legitimate request that should be complied with. A discussion had also been held between Carter and Hilgeman on August 18, 1988, in which Mr. Hilgeman gave advance notice of the fact that he needed several questions answered and that there would be a delay in the meeting. The indication was made that a letter would be sent to Mr. Gibson to have those questions answered. That eventuated in the August 22, 1988 correspondence from Hilgeman to Gibson. Upon making these matters known to Mr. Carter on August 18, 1988, Mr. Carter's only remark was that this would be "fine." On September 9, 1988, a letter was written from Ralph B. Murray, Jr., Specialist Enforcement Section, Bureau of Mobile Homes within the Petitioner's department which was sent to Mr. Hilgeman reminding him of the necessity to respond to allegations that had been made by the Lake Waldena Resort Homeowners' Association concerning the claim that Mr. Hilgeman had refused to meet with those mobile homeowners in the statutorily prescribed time as announced at Section 723.037(3), Florida Statutes. A copy of this correspondence may be found as Respondent's Exhibit No. 9, admitted into evidence. On September 13, 1988, by correspondence, a copy of which may be found as Respondent's Exhibit No. 10 admitted into evidence, Mr. Hilgeman offered his reply. He tells Mr. Murray that he is not sure whether the homeowners' association is legitimate and that they had not responded to his August 22, 1988 correspondence to Mr. Gibson which he enclosed in his letter to Mr. Murray. He spoke of delays in the mailing time for mail coming from Canada. He makes mention of the fact of having informed Mr. Carter that the manager, who was Ms. Montgomery was on vacation and would not return until August 30, 1988. In fact, Ms. Montgomery was not available to meet with the homeowners' association in the period August 18 through August 30, 1988. This would not have relieved Mr. Hilgeman of the necessity to meet with the homeowners' association on or before August 30, 1988, had they complied with his request for certification prior to that date. They did not. Compliance with the certification process was achieved by correspondence of September 12, 1988 from Gibson to Hilgeman in which he sets out the explanation of certification of the credentials of the homeowners' association to form a committee and meet with the park owner. That was received by the park owner on September 19, 1988, in the person of Pat Montgomery. A copy of this correspondence and the certification of receipt may be found as Respondent's Exhibit No. 11 admitted into evidence. After receipt of the information concerning the certification of the homeowners' association committee, Mr. Hilgeman sent a letter to Mr. Carter on September 29, 1988, to establish a meeting. A copy of that correspondence may be found as Respondent's Exhibit No. 13 admitted into evidence. It outlines the fact that Mr. Hilgeman is sufficiently satisfied concerning the certification to have the meeting and offers a meeting prior to October 4, 1988 or after October 9, 1988, and invites Mr. Carter to consult with Pat Montgomery to establish a mutually convenient time for the meeting. A meeting was held between Mr. Murray and Mr. Hilgeman in October, 1988, in which a discussion ensued concerning whether or not Mr. Hilgeman himself would meet with the homeowners' committee. Mr. Hilgeman held firm in his attitude that his manager Pat Montgomery would be available to meet with the homeowners' committee, but that Mr. Hilgeman would not be meeting with them. As explained in the correspondence of October 14, 1988, addressed from Mr. Carter to Mr. Murray, a copy of which may be found as Respondent's Exhibit No. 14 admitted into evidence, contact was made between Carter and Montgomery and Carter was told on October 11, 1988 that a meeting would be held at 10:00 a.m. on October 14, 1988, between Montgomery and the committee. She was told by Carter that this meeting would not be acceptable unless Mr. Hilgeman was in attendance. Based upon conversations with Mr. Murray, the homeowners' association had been persuaded that it was only appropriate to meet with Mr. Hilgeman. Consequently, by this logic it was not appropriate to meet with Ms. Montgomery. A copy of this correspondence of August 14, 1988 was made available to Mr. Hilgeman. On June 7, 1989, the Petitioner brought an action against the Respondent and he sought a formal hearing which was conducted on February 22, 1990. Prior to that hearing the homeowners did have their meeting with Mr. Hilgeman on November 14, 1989, in which they were made aware of the reasons for the lot rental increase. The homeowners accepted the explanation and the idea of the increase and do not desire to pursue the present complaint against the Respondents. When Mr. Hilgeman sought certification of the credentials of the committee assigned by the homeowners association he was acting in good faith. In addition, he was entitled to look to Pat Montgomery as park operator and by consequence park owner under the definition of Section 723.003(7), Florida Statutes, to speak for him in the course of the meeting to discuss the lot rental increase. The misconception of the committee of mobile home owners concerning the necessity to meet with Mr. Hilgeman and not with his park operator, as fostered by the remarks of Mr. Murray, who lead those mobile homeowners to believe that they could only meet with Mr. Hilgeman, caused a delay in arranging the meeting. Mr. Hilgeman should not be hold accountable for that delay.
Recommendation Based upon the consideration of the facts found and the conclusions of law reached, it is, RECOMMENDED: That a Final Order be entered that dismisses these actions against the Respondents. DONE and ENTERED this 18th day of April, 1990, in Tallahassee, Florida. CHARLES C. ADAMS, 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 18th day of April, 1990. APPENDIX CASE NO. 89-4100 The following discussion is given concerning the proposed facts of the parties. Petitioner's Facts Paragraphs 1-9 are subordinate to facts found. Although Paragraph 10 is an accurate portrayal of the meeting of August 24, 1988 between Mr. Carter and Mr. Hilgeman, it should be stated that any meeting to discuss lot rental increase was contingent upon the response to the certification request made by Mr. Hilgeman and replied to by Mr. Gibson on a date beyond the 30 day period. Paragraphs 11 and 12 are subordinate to facts found. Concerning Paragraph 13, whatever Mr. Hilgeman perceptions would be about the role of Ms. Montgomery, whether she was considered to be the same as an attorney representing or in some other capacity, in law she was a park owner and entitled to act in behalf of the park owners at the meeting. Concerning Paragraph 14, the effect of failing to respond to the request for certification within the 30 day period was tantamount to a waiver or agreement to meet at a time later. Paragraph 15 is subordinate to facts found. Concerning Paragraph 16, to the extent this paragraph suggests that the length of the meeting or breadth of detail in the explanation made by Mr. Hilgeman was inadequate, that idea is rejected in that sufficient explanation was given to comply with the requirements of law. The comments in Paragraph 17 are not relevant. The accommodation that was made between counsel was not a necessary arrangement to mitigate the circumstance in an instance where Respondent Donald L. Hilgeman had violated Chapter 723, Florida Statutes. This meeting was beneficial to the homeowners and park owners alike, but came at this late date based upon the failure of the homeowners to meet with Pat Montgomery over a year earlier. Respondents' Facts Paragraph 1 is subordinate to facts found Paragraph 2 is not necessary to the resolution to the dispute. Paragraph 3 is subordinate to facts found with the exception of those two sentences that come before the last sentence in that paragraph. Paragraphs 4 and 5 and all sentences save the last of Paragraph 6 are subordinate to facts found. That sentence is not necessary to the resolution of the dispute. Paragraphs 7 through 11 with the exception of the second sentence in Paragraph 11 are subordinate to facts found. The second sentence is not necessary to the resolution of the dispute. Paragraph 12 is subordinate to facts found. Paragraph 13 is misleading in that it intimates that Mr. Carter was derelict in his duties to make contact with Mr. Hilgeman to establish a meeting; however, the contacts that were made were in accordance with the expectations of Mr. Hilgeman and Mr. Gibson who were controlling the timing of that meeting. Paragraphs 14 through 16 with the exception of the last sentence to Paragraph 16 are subordinate to facts found. The last sentence to Paragraph 16 is not necessary to the resolution of the dispute. Paragraph 17 is subordinate to facts found with the exception of the last sentence which is not necessary to the resolution of this dispute. Paragraphs 18 and 19 are subordinate to facts found. Paragraph 20 is subordinate to facts found with the exception of the last sentence which is not necessary to the resolution of this dispute. Paragraph 21 is not necessary to the resolution of the dispute and is an inaccurate portrayal of the requirements of law as to gaining the approval of the majority of homeowners before representing them in the course of a meeting to discuss lot rental increases. Paragraphs 22 through 25 are subordinate to facts found. COPIES FURNISHED: Stephen R. MacNamara, Secretary Department of Business Regulation 725 South Bronough Street Tallahassee, FL 32399-1007 Joseph A. Sole, General Counsel Department of Business Regulation 725 South Bronough Street Tallahassee, FL 32399-1007 David D. Eastman, Esquire Parker, Skelding, Labasky & Corry Post Office Box 669 Tallahassee, FL 32302 Susan C. Marvin Pamela Leslie Assistants General Counsel Department of Business Regulation 725 South Bronough Street Tallahassee, FL, 32399-1007
