The Issue The issues in this case are whether Respondent, Lakeview of Largo Condominium Association, Inc., et al. (Lakeview or Respondent), violated chapter 70, Pinellas County Code of Ordinances, as alleged in the discrimination complaint (Complaint) filed by Francis Dandrea (Mr. Dandrea or Petitioner); and, if so, what relief should be granted.
Findings Of Fact The following Findings of Fact are based on the relevant stipulated facts and the oral and documentary evidence adduced at the final hearing. The parties agree that the Federal Act (42 U.S.C. 3601 et seq.), the Florida Fair Housing Act (sections 760.20 through 760.37, Florida Statutes, (2019)),2 and “the Pinellas County Code mirror one another, so the same legal arguments apply to all counts of the Complaint.”(*) The Lakeview campus consists of 12 to 14 acres of land and six residential buildings with approximately 60 condominiums in each building, for a total of 312 units. There are laundry facilities (a washer/dryer unit) on each floor for residents to use. Residents are not allowed to use laundry facilities found on the different floors of each building, but must use the facilities on their floor. If the laundry facilities on their floor are in use, 1 At the hearing, the parties jointly offered an additional exhibit, Exhibit Q, which was admitted into evidence. 2 Unless stated otherwise, all Florida statutory citations will be to the 2019 version of the Florida Statutes. No legislative changes have been made to sections 760.20 through 760.37 since 2013. residents must wait until the laundry facilities are available. In 2004, Petitioner was 71 years old, and his wife, Dolores Dandrea, was 70 years old when they purchased Lakeview Condominium No. 6113. On April 13, 2004, Petitioner and Mrs. Dandrea executed the following statement: I have read the frequently asked questions and answer sheet and understand my responsibilities as an owner.3 Lakeview’s Rules and Regulations (the “Rules”), Section VIII, paragraph three provides: “No new washer or dryer installations will be permitted within the units as of January 1, 1994 Upon the sale of the unit, washers and/or dryers within the unit must be removed.”(*) The Rules do not provide who (buyer or seller) is to remove the washer and dryer upon sale of a condominium unit. (*) Petitioner and Mrs. Dandrea resided in Condominium No. 6113 for nine years. In those nine years, Petitioner testified he had never thought about the Rules, specifically about the washer/dryer unit, as they were “very close” or “right next door” to the first floor laundry facility. In 2013, Condominium No. 6110 was listed for sale. Petitioner either knew or became aware that there was a washer/dryer unit in that condominium, a main purchasing point for Petitioner. On March 29, 2013, Petitioner executed an “AS IS” residential contract for the sale and purchase of Condominium No. 6110. The contract clearly listed additional personal property included in the sale: refrigerator(s); microwave oven; washer; dryer; and blinds. It is undisputed that the washer/dryer unit was installed prior to the Dandrea’s purchase of Condominium No. 6110. (*) An “Estoppel Letter”4 requested by the title company provided there were no violations against Condominium No. 6110 at the time of the sale. 3 As part of Lakeview’s screening process, all new residents have to acknowledge a “55+ Community Frequently Asked Questions and Answer Sheet DBR Form 33-032.” 4 The “Estoppel Letter” provides that the buyers are “Francis and Dolores D’Andrea”. Petitioner and Mrs. Dandrea moved from Condominium No. 6113 into Condominium No. 6110 in late April or early May 2013. A washer/dryer unit was in Condominium No. 6110, as specified in the purchase agreement. Petitioner’s current unit (Condominium No. 6110) is a dwelling within the meaning of the Act, 42 U.S.C.§ 3602(b), because it is within a multi-unit building occupied as a residence by several families. (*) On October 24, 2018, Lakeview’s community association manager, Frank Fundora, notified Petitioner and Mrs. Dandrea of their non-compliance with the Rules regarding the presence of the washer/dryer unit in Condominium No. 6110. (*) On January 22, 2019, Mr. Fundora, on behalf of Lakeview, sent the Dandreas a letter that “required” them to attend a Lakeview Compliance Committee hearing to explain their position as it related to the washer/dryer unit in their condominium. The hearing was held on February 6, 2019.5 On February 21, 2019, Mr. Fundora, on behalf of Lakeview, advised the Dandreas that they were found in non-compliance of the Rules by the Compliance Committee. (*) That violation was reported to the Lakeview Board of Directors (Board), who requested the washer/dryer unit be removed from Condominium No. 6110 within 14 days of the letter. Additionally, the Dandreas were notified that the non-compliance (the failure to remove the washer/dryer unit) would lead to a monetary fine of up to $100 per day to a maximum of $1,000. (*) The Dandreas did not remove the washer/dryer unit from Condominium No. 6110. On March 14, 2019, Mr. Fundora, on behalf of Lakeview, notified the Dandreas of the fine assessment of $100 per day for the violation of the 5 The January 22, 2019, letter provided the hearing would be on February 5, 2019, however the February 21, 2019, Lakeview letter to the Dandreas provided the hearing took place on February 6, 2019. Rules, up to a maximum of $1,000 fine, consistent with chapter 718, Florida Statutes. The fine was placed on Petitioner's account in an amount of $1,000 on March 22, 2019. (*) Petitioner, via letter to the Board dated April 19, 2019,6 requested a reasonable accommodation from the Rules pursuant to the Act. (*) The letter provides7: Dear Sirs, I respectfully request a conversation with you asap [sic] about reasonable accommodations at our condo complex…[sic] I am enclosing letters from our doctors stating that we should not get rid [of] our washer/dryer due to our medical complications and conditions. Respectfully, Francis Dandrea Along with the April 19, 2019, reasonable accommodation request, Petitioner submitted supporting documentation from medical professionals setting forth the medical conditions of both Petitioner and Mrs. Dandrea as the basis for the reasonable accommodation request. (*) The parties stipulated that the medical documentation below was provided in Petitioner’s request for a reasonable accommodation. That documentation provided: 11/06/2018 To whom it may concern, Francis Dandrea suffers from generalized arthritis in addition to medical diagnoses of emphysema and intermittent atrial fibrillation. His wife is limited functionally by polymyalgia rheumatic. Removing the washer/dryer from their condo would creat [sic] a physical hardship and is not recommended. 6 The certified letter was “signed for” by Mr. Fundora on April 22, 2019. 7 This letter was written in all capital letters. The text is provided in sentence format. Please share this communication with the patient. Signed by: /es/ JOHN H HULL, MD GERIATRICS & EXTENDED CARE 11/07/2018 05:41 Analog Pager: [Omitted] Digital Pager: [Omitted] And: 12/12/2018 To Whom It May Concern: Mrs. Dolores D’Andrea is under my medical care for 5 years. She asked me to write this letter. She has multiple medical conditions. It came to my attention that recently washer and dryer was [sic] required to be removed from her unit. Patient has urinary incontinence. It is absolutely important for her to have washer and dryer nearby, so she can wash her clothes because of frequent accidents. Also she has polymyalgia rheumatica, and it is very difficult for her to walk down the hall to a washer and dryer units that located down the hall in apartment area. [sic] It would be medically necessary for her to have washer and dryer in her apartment. If any questions, please feel free to call my office 727-584-7706. Sincerely, Helen Brvenik, M.D. Petitioner testified to his multiple infirmities: osteoarthritis; atrial fibrillation; and a bulging disc. Petitioner also provided that he had had surgery on both knees (“not replacements”), and he had to give up golf three years ago. Petitioner also testified that his wife has neurological problems, including double vision for which she had surgery, and anxiety issues. On April 24, 2019, two days after receipt of Petitioner’s request for a reasonable accommodation, Mr. Fundora, on behalf of the Lakeview Board, informed the Dandreas that Lakeview had denied the requested accommodation. Further, the Board voted to give the Dandreas until May 8, 2019, to comply with the Rules by removing the washer/dryer unit. If the Dandreas refused to do so, their right to use the common recreational facilities would be suspended. (*) Petitioner did not remove the washer/dryer unit, and on May 8, 2019, Lakeview suspended Petitioner's rights to the common recreational facilities. (*) Petitioner filed the Complaint against Lakeview with the PCOHR on May 13, 2019. (*) On September 8, 2019, the PCOHR issued a Determination of Reasonable Cause and Charge of Discrimination. (*) Those individuals who testified at the hearing either are friends of Petitioner, serve (or have served) on Lakeview’s Board, or are employed by Lakeview. However, none of them are health care professionals, and their observations are just that, observations without any medical training or knowledge of Petitioner’s health issues. Mr. Fundora testified that Lakeview did not have a process in place for the type of reasonable accommodation requested by Petitioner. However, Lakeview had, in the past, received reasonable accommodation requests for emotional support animals, large vehicles, and motorcycles. Those requests have been handled on a case-by-case basis.8 A request for additional medical information to support or discredit the requested accommodation for Petitioner (or Mrs. Dandrea) was never sought. There is no dispute that Lakeview objected to the Dandreas retaining the washer/dryer unit. Lakeview’s denial of the request for a reasonable accommodation within two days of the request appears to be solely based on observations made by non-medically trained residents or Board members who 8 At least one request for an emotional support animal was approved, while another was denied when the supporting documentation was found to be fabricated. had seen Petitioner (and Mrs. Dandrea) walking around the Lakeview complex at some time. These witnesses attempted to give opinions from their observations, yet they were not qualified to do so as they did not know if the requested accommodation was medically necessary. Lakeview has not articulated a legitimate, non-discriminatory reason for withholding the reasonable accommodation request. The preponderance of the evidence demonstrates that having the washer/dryer unit within Petitioner’s condominium is a reasonable accommodation; and necessary to afford Petitioner (and Mrs. Dandrea) the opportunity to the use and enjoy their home.
Findings Of Fact Respondent, Studebaker's Restaurant (Respondent), owns a 50's theme bar in Clearwater which offers entertainment and dancing and serves alcoholic beverages and food. Studebaker's has a nationwide policy, also followed at the Clearwater establishment, of restricting admittance to persons aged 23 and older. In the same building housing the Clearwater Studebaker's, Respondent also owns and operates a theme bar called the Palm Beach Club which is under common management and which is operated like Studebaker's except that the theme and music is contemporary and anyone who has attained the legal drinking age is allowed admittance. Petitioner, Ronald M. McElrath, is the coordinator for the Community Relations Board established under Chapter 99 of the City of Clearwater Code. He is approximately 38 years of age. In May or June 1985, McElrath witnessed an employee of the Clearwater Studebaker's refusing admission to a female on the basis that she was not at least 23 years of age. Investigating further, McElrath verified through the manager of the Clearwater Studebaker's that Respondent did have a policy restricting admission to the Clearwater Studebaker's to persons at least 23 years of age. Based on McElrath's knowledge and information, McElrath and the Community Relations Board attempted to conciliate with Respondent the alleged conflict between Respondent's age policy at the Clearwater Studebaker's and Chapter 99 of the City of Clearwater Code. By November 13, 1985, McElrath and the Community Relations Board concluded that their attempts at conciliation would not be successful, and the Community Relations Board filed a charge of discrimination against Respondent. That charge of discrimination was referred to the Division of Administrative Hearings and assigned Case No. 85-3513. On or about February 11, 1986, Case No. 85-3513 was dismissed and the file closed based upon the Community Relations Board's report that it was withdrawing its petition in the case and that an individual other than the Community Relations Board would file a separate petition as Charging Party. Actually, on or about January 9, 1986, McElrath, in his capacity as coordinator for the Community Relations Board, had filed a Supplemental Charge Of Discrimination against Respondent on the same alleged facts that formed the basis of Case No. 85-3513. McElrath's Supplemental Charge Of Discrimination was referred to the Division of Administrative Hearings on or about February 4, 1986, resulting in this case. McElrath has never attempted to file any other complaint under Chapter 99 of the City of Clearwater Code in his capacity as coordinator for the Community Relations Board. Because no further investigation was necessary and no further attempts to conciliate were reasonably likely to succeed, McElrath made no further investigation and made no further attempts to conciliate with Respondent after filing the Supplemental Charge Of Discrimination. Before filing of the Supplemental Charge Of Discrimination in this case, McElrath did not make a formal probable cause determination and did not serve notice of determination of probable cause on the Respondent. Respondent and its management has a commendable and appropriately implemented policy of being a responsible seller of alcoholic beverages for consumption on the premises. However, contrary to Respondent's assertions in this case, the policy of allowing only persons 23 years of age and older in the Clearwater Studebaker's is not significantly motivated by a desire to reduce alcohol-related traffic accidents. The primary motivation for the age limit is to establish and maintain an economically successful theme bar. Any contribution towards reducing alcohol related traffic accidents is an after thought rationalization. This was proven by Respondent's willingness to divert patrons younger than 23 next door to its Palm Beach Club where Respondent willingly serves them alcoholic beverages for consumption on the premises.
Findings Of Fact Based upon my observation of the witnesses and their demeanor while testifying, the documentary evidence received and the entire record compiled herein, I hereby make the following Findings of Fact: The Respondent, Ocean Dunes Development Corporation, is the developer of a residential condominium known as Ocean Dunes, located in Highland Beach, Palm Beach County, Florida. Count One The first closing on a unit in Ocean Dunes occurred on April 30, 1982. The Respondent controlled the operation of the condominium association from the incorporation of the association up to February 4, 1986, when unit owners other than the developer elected a majority of the members of the board of administration of the condominium association. Pursuant to the Articles of Incorporation of the condominium association, the board of directors is composed of three members. According to the by-laws of the association, unit owners other than the developer are entitled to elect at least one-third of the members of the board when they own fifteen per cent of the units in the condominium. The by-laws further provide that within sixty days after unit owners other than the developer are entitled to elect a member of the board, the association shall call and give not less than thirty days notice of a meeting of the unit owners for this purpose. on July 15, 1982, unit owners other than the developer owned fifteen per cent of the total number of units in the condominium. The first association unit owner meeting after July 15, 1982, occurred in April of 1983. Present at the meeting were several unit owners and Mr. Philip Connor, president of both the association and the developer corporation. According to the association by-laws, a quorum is achieved by a majority of the votes of the entire membership. In April of 1983 there were 48 units in the condominium, 17 units were owned by someone other than the developer. Therefore, the developer's unit votes were absolutely necessary to achieve a quorum. At the beginning of the meeting, Mr. Connor, the president of the developer corporation, stated that he was not authorized to utilize the developer's unit votes through proxy or otherwise. Mr. Connor stated: First item, obviously is to determine whether we have a quorum in order to properly conduct business. I am not voting on behalf of the developing company this evening. Mr. Hubert (the general counsel of the developer) as far as I know we do not have a quorum. Therefore, the meeting is officially adjourned. But, Mr. Connor went on to add: However, I would like to spend some time with you this evening to go over and formulate any questions or problems, et cetra. Unit owners other than the developer did not elect a member of the board of administration of the association until April 17, 1984. Count Two While operating the condominium association, the Respondent used condominium association common funds to pay for certain carpentry expenses in the amount of $1,836. The carpentry expenses were the responsibility of the Respondent as developer. During the initial phases of the investigation of this case by the Department of Business Regulation, the Respondent agreed that the carpentry expenses were the developer's responsibility and reimbursed $1,836 to the association on August 29, 1984. Count Three An "election period" is a mechanism by which the developer, as the owner of units, is excused from the payments of assessments against those units for a certain period of time. See Section 718.116(8)(a)(1), Florida Statutes. During an election period, the developer does not pay assessments on developer-owned units, but instead pays the difference between the common expenses of the association and monies received from other unit owners in the form of assessments during that period of time. In other words, if assessments collected from other unit owners are insufficient to meet common expenses, the developer is required to pay the deficiency. The election period must terminate no later than the first day of the fourth calendar month following the month in which the first closing of a unit in a condominium occurs. See Section 718.116(8)(a)(1), Florida Statutes. The first closing on the first unit in Ocean Dunes Condominium occurred on April 30, 1982. During the election period, the developer periodically funded the association and made available to it funds to pay required bills on a current, "as-due" basis. Thus, the Respondent attempted to satisfy its election period payment requirements on a cash accounting basis. The developer did not perform an election period calculation on the condominium's books and records to determine the difference between expenses incurred during the election period and assessments collected form other unit owners. Mr. Larsen, a certified public accountant and the Petitioner's expert witness, reviewed the condominium's financial records and calculated an election period deficit of $45,077.88. Mr. Larsen arrived at the figure of $45,077.88 by calculating that assessment revenues from non-developer unit owners amounted to $5,393.92 and that common expenses during the period amounted to $50,471.40, the difference being $45,077.88. The $45,077.88 figure arrived at by Larsen was composed in part of unfunded reserves during the election period, certain association bills which were left unpaid during the election period but had balances which came due later and certain prepaid assessments from other unit owners paid in advance, but which would have come due after the expiration of the election period. In arriving at the election period deficit of $45,077.88, Larsen completed a review or compilation of the financial records of the association using generally accepted principles of accounting for a review or compilation of financial statements. Count Four Unit owners other than the developer remitted their assessments on a quarterly basis. In contrast, the Respondent developer provided some funds to the association on a monthly, "as-needed" basis. Typically, when the association funds became inadequate to pay outstanding bills, the developer would contribute its assessments. At the end of each calendar year, the developer calculated an outstanding assessment liability on its inventory units and recognized that liability on the association's books. The Declaration of Condominium at Article 6.2, provided that assessments not paid on a timely basis would bear interest at the rate of 10% per annum from the date when due until paid. Although unit owners were paying their assessments on a quarterly basis, neither the Declaration of Condominium nor the by-laws established a date when assessments were due. Count Five The percentage of ownership interest of each individual unit owner in the common elements of Ocean Dunes Condominium is set forth in Exhibit B to the Declaration of Condominium. The percentage of common elements per unit ranged from a minimum of .01959 to a maximum of .02170. The quarterly assessments to unit owners were not based on the percentages of their ownership of the common elements as outlined in the recorded Declaration. Prior to the formal hearing, the Respondent acknowledged that the proper percentages were not being assessed, and adjustments were made for all unit owners' assessments. Count Six A condominium association's annual budget must include a reserve account (unless specifically waived by the association) for capital expenditures and deferred maintenance. The reserve account of the association is set aside for long term items such as roof replacement, building painting and pavement resurfacing. See Section 718.112(2)(f), Florida Statutes. Ocean Dunes Condominium Association established a budgeted annual reserve figure of $6,000 per year (reserves were not waived). On December 31, 1984, the reserve account, if fully funded, would have contained $16,569.86. While in control of the condominium association, the Respondent did not maintain a separate, funded reserve account. Rather, the Respondent showed the reserve account as a liability in its accounting statements. The listing of a reserve account as a liability on a financial statement would not violate, nor be contrary to, generally accepted principles of accounting. The Respondent believed in good faith that it was allowed to carry reserves as liability in the association's financial books. Count Seven The Respondent employed the accounting firm of Coopers and Lybrand to handle the financial books and records of the condominium association. Coopers and Lybrand has offices in both Broward and Palm Beach Counties. Although the Respondent maintained the corporate books and records of the association at the Royal Palm Beach Bank in Palm Beach County, portions of the accounting records were routinely transferred between Coopers and Lybrand's offices in Palm Beach and Broward Counties. Count Eight On February 4, 1986, unit owners other than the developer assumed control of the condominium association. After turnover, the Respondent provided the association with the annual audits performed by the accounting firm of Coopers and Lybrand. The annual audits did not cover the election period and the period early in 1986 which the audit for the year 1985 did not cover. After turnover of counsel of the association, the annual audits were the only review of the association's financial records provided to the association by the developer. After turnover, the association at all times made the corporate books and records available to the developer. Upon turnover, the Respondent offered to the association 9 pages of separate plans and specifications utilized in the construction of the condominium. Although the plans contained the certificate of a surveyor, only one of the nine plans contained a signed affidavit that the plans were authentic.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is. RECOMMENDED that a Final Order be entered: Requiring the Respondent pay to the association $45,077.88 (representing the deficit which existed during the developer election period) no later than 45 days from the date of the Final Order; Requiring that Respondent obtain, and provide to the association, no later than 60 days from the date of the Final Order, a turnover review of the financial records of the association prepared in strict compliance with Section 718.301(4)(c), Florida Statutes, and Rule 7D-23.03, Florida Administrative Code; Requiring that Respondent obtain and deliver to the association no later than 60 days from the date of the Final order, a copy of the construction plans of the condominium with a certificate in affidavit form prepared in strict compliance with Section 318.301(4)(f), Florida Statutes; and Assessing a civil penalty of $5,000. DONE AND ORDERED this 22nd day of December, 1986, in Tallahassee, Florida. W. MATTHEW STEVENSON, 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 December, 1986. COPIES FURNISHED: Karl M. Scheuerman, Esquire Department of Business Regulation 725 South Bronough Street Tallahassee, Florida 32399-1007 Philip R. Connor, Jr., President Ocean Dunes Development Corporation Suite 205 2929 East Commercial Boulevard Ft. Lauderdale, Florida 33308 James Kearney, Secretary Department of Business Regulation 725 South Bronough Street Tallahassee, Florida 32399-1007 Thomas A. Bell, Esquire General Counsel Department of Business Regulation 725 South Bronough Street Tallahassee, Florida 32399-1007 Richard Coats, Director Division of Florida Land Sales, Condominiums and Mobile Homes Department of Business Regulation 725 South Bronough Street Tallahassee, Florida 32399-1007 APPENDIX The following constitutes my specific rulings pursuant to Section 120.59(2), Florida Statutes, on all of the Proposed Findings of Fact submitted by the parties to this case. Rulings on Proposed Findings of Fact Submitted by the Petitioner: Addressed in Procedural Background section. Adopted in Finding of Fact 1. Adopted in Finding of Fact 3. Addressed in Conclusions of Law section. Adopted in substance in Finding of Fact 4. Adopted in substance in Findings of Fact 5 and 9. Adopted in substance in Findings of Fact 6, 7 and 8. Addressed in Conclusions of Law section. Adopted in substance in Findings of Fact 10 and 11. Addressed in Conclusions of Law section. Adopted in substance in Finding of Fact 12. Adopted in substance in Finding of Fact 13. Adopted in substance in Finding of Fact 16. Adopted in substance in Finding of Fact 17. Adopted in substance in Finding of Fact 15. Rejected as a recitation of testimony. Rejected as misleading as stated, but adopted in substance in Finding of Fact 18. Rejected as misleading as stated, but adopted in substance in Findings of Fact 19, 20 and 21. The last sentence of Paragraph 19 is rejected as not supported by the weight of the evidence. Addressed in Conclusions of Law section. Adopted in substance in Finding of Fact 22. Adopted in substance in Finding of Fact 23. Addressed in Conclusions of Law section. Addressed in Conclusions of Law section. Partially adopted in Finding of Fact 25. Matters note contained therein are rejected as subordinate. Partially adopted in Findings of Fact 25 and 26. Matters not contained therein are rejected as subordinate. Addressed in Conclusions of Law section. Adopted in substance in Finding of Fact 29. Addressed in Conclusions of Law section. Adopted in substance in Finding of Fact 32. Rejected as a recitation of testimony. Rejected as a recitation of testimony. Partially adopted in Finding of Fact 34. Matters not contained therein are rejected as argument and/or subordinate. Adopted in substance in Finding of Fact 33. Adopted in substance in Finding of Fact 35. Rulings on Proposed Findings of Fact Submitted by the Respondent: Partially adopted in Findings of Fact 2, 3, 4, 5, 6, 7 and 8 Matters not contained therein are rejected as Subordinate and/or a recitation of testimony. Rejected as not supported by the weight of the evidence. The first sentence of this paragraph is rejected as contrary to the weight of the evidence. The remainder of the paragraph is adopted in substance in Findings of Fact 12, 13, 14, 15, 16, 17 and 18. Matters contained in Paragraph 3 which are inconsistent with the Findings of Fact previously mentioned are rejected as contrary to the weight of the evidence and/or subordinate. Partially adopted in Findings of Fact 19, 20 and 21. Matters not contained therein are rejected as contrary to the weight of the evidence and/or subordinate. Adopted in substance in Findings of Fact 22 and 23. Partially adopted in Findings of Fact 24, 25, 26 and 27. Matters not contained therein are rejected as contrary to the weight of the evidence. Adopted in substance in Finding of Fact 29. Rejected as contrary to the weight of the evidence and/or a recitation of testimony.
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.
Findings Of Fact Petitioner River Trails is the developer of a condominium community in Palm Beach County known as River Walk. River Walk is contiguous to and immediately adjacent to 2600 feet of South Florida Water Management District (hereinafter "SFWMD") property bordering Canal C-18 in Palm Beach County. The right- of-way adjacent to C-18 as well as the bottom of C-18 is owned by SFWMD. C-18 is not in an area designated as Outstanding Florida Waters. As required by Section 403.813(2), Florida Statutes, River Trails sought and obtained on January 12, 1984, a permit from the SFWMD to construct a dock and boat ramp in Canal C-18. The permit conveyed no property rights to River Trails. On October 12, 1984, River Trails asked DER to confirm that River Trails' proposed boat ramp qualified for an exemption pursuant to Section 403.813(2)(c), Florida Statutes. By letter dated December 20, 1984, DER informed River Trails that the proposed boat ramp did qualify for the exemption and, therefore did not require any permit from DER. On October 18, 1984, River Trails asked DER to confirm that River Trails' proposed dock of 1,000 square feet or less qualified for an exemption from DER's permitting authority pursuant to Section 403.813(2)(b), Florida Statutes. However, on November 30, 1984, DER informed River Trails that its proposed dock did not qualify for the exemption because there was already an existing dock on SFWMD property on Canal C-18. As authority for its position, DER cited the following sentence in DER Rule 17-4.04(9)(c), Florida Administrative Code: "A private dock is a single pier at a parcel of property." On the 2600 feet of SFWMD-owned right-of-way contiguous to River Trails, there are presently no docks. On SFWMD-owned right-of-way east of River Trails, between River Trails and the southwest fork of the Loxahatchee River, there are two docks approximately 300 feet apart located in front of single-family residences. DER contends all contiguous property owned by an individual, group or entity, including a water management district, constitutes a "parcel of property" and accordingly does not recognize River Trails' claim to an exemption because of the existence of these docks. Prior to River Trails' request that DER confirm River Trails' right to an exemption, DER had not interpreted water management district-owned right-of-ways to be a "parcel of property" within the meaning of Rule 17- 4.04(9)(c). In the past, the SFWMD has permitted numerous docks of less than 1,000 square feet on SFWMD-owned right- of-ways. Copies of these permits were routinely forwarded to DER. While these docks were and are on right-of-ways which DER now defines as a "parcel" within the meaning of Rule 17-4.04(9)(c), DER has not required permits for these docks. The DER employees who interpret the rule in question as part of their duties and whose depositions were introduced at hearing do not agree on the configuration which constitutes a single pier, on the degree of ownership or control required over a parcel of property by an applicant for an exemption, or on the definition of a parcel of property. DER has failed to adequately explain its deviation from past agency practice in interpreting SFWMD right-of- way as a parcel of property. But for DER's new interpretation of the term "parcel of property" found in Rule 17-4.04(9)(c), Florida Administrative Code, River Trails' proposed dock meets the statutory and rule requirements for an exemption from obtaining a permit from DER.
The Issue Whether Petitioner was the subject of discrimination based on her race, sex or handicap in leasing her apartment from Respondents in violation of Sections 804d and 804f of Title VIII of the Civil Rights Act of 1968, as amended by the Fair Housing Act of 1988 and the Florida Fair Housing Act and Section 760.23(2)(4), Florida Statutes (2008).
Findings Of Fact Petitioner is a white female with a mental impairment. As such, she is a member of a protected class. Boardwalk Apartments (Boardwalk) is a large apartment complex owned by Blackwater Housing Corporation (Blackwater) and managed by Progressive Management of Milton, Inc. (Progressive). Boardwalk leases 6 apartments to Lakeview Center. Neither Blackwater, Progressive nor Boardwalk had any substantial contact with Petitioner. Nor were any of these Respondents involved in the lease arrangement Petitioner had with Lakeview Center. Because of this lack of involvement, Blackwater, Progressive and Boardwalk were dismissed as parties at the close of Petitioner’s case in chief. Lakeview Center leases its Boardwalk Apartments to its clients who qualify for services in its Independent Living Program. In order to qualify to lease an apartment under the Independent Living Program, a person must have a major mental illness and be homeless. The program is a therapeutic program with a housing component that is intended to help homeless, mentally-ill clients of Lakeview learn and attain independent living skills. If a person qualifies for the program, he or she enters into a contract and a lease with Lakeview Center that requires the tenant to clean and maintain the apartment he or she leases. All the apartments at Boardwalk could be leased to two clients at one time. During the time relevant to this proceeding, the Lakeview apartments at the Boardwalk Apartment complex were leased to six tenants. Like Petitioner, all six tenants were female, White, and had a mental disability. In fact, the only tenants that Lakeview can provide housing to under its Independent Living Program are homeless individuals with a mental impairment. On November 7, 2008, Petitioner applied to rent a unit through the Lakeview Center Independent Living Program and was accepted. She entered into the standard contract and lease used by Lakeview Center in its Independent Living Program. As with all of Lakeview’s tenants, the contract required Petitioner to clean and maintain the apartment. The apartment at the Boardwalk Apartment complex assigned to Petitioner was newly renovated and relatively clean. One other Lakeview client was living in the apartment. Petitioner did not provide any credible evidence to support that the apartment was filthy or that she was given or held to different terms and conditions than other residents of the Independent Living Program based on her race, sex, color or disability. Indeed, her roommate lived in the apartment under the same terms and conditions that Petitioner lived in the apartment. Petitioner did not present any evidence regarding any of the other tenants’ terms and/or conditions relative to their apartments. Petitioner, simply, did not like the condition of her apartment, refused to clean the apartment and, the next day, declined to stay in the apartment. Petitioner’s other complaint was that she did not like the way she was treated by Mr. Baldwin, who coordinates Lakeview’s Independent Living Program. She thought he was extremely rude to her. However, there was no evidence that demonstrated Petitioner was treated differently than any of the other Lakeview clients in the Independent Living Program with whom Mr. Baldwin works. Given the lack of evidence in this case and the fact that all of Lakeview’s tenants at the Boardwalk apartments were mentally handicapped and the same race and sex as Petitioner, Petitioner has failed to demonstrate that Respondent discriminated against her on the basis of her race, sex or handicap. Therefore, the Petition for Relief should be dismissed.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Florida Commission on Human Relations issue a Final Order dismissing the Petition of Relief. DONE AND ENTERED this 28th day of September, 2009, in Tallahassee, Leon County, Florida. S DIANE CLEAVINGER 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 28th day of September, 2009. COPIES FURNISHED: Susan Walters 112 Bartow Avenue Pensacola, Florida 32507 Sterling Baldwin, B.A. Lakeview Center 1813 North J Street, Building L Pensacola, Florida 32501 Dan D’Onofrio Blackwater Housing Corporation, Progressive Management of Milton, Inc. And Boardwalk Apartments 205 Brooks Street, Southeast, Suite 305 Fort Walton Beach, Florida 32548 Denise Crawford, Agency Clerk Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301 Larry Kranert, General Counsel Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301
The Issue Whether Respondents engaged in a discriminatory housing practice against Petitioner in violation of the Florida Fair Housing Act (Sections 760.20 through 760.37, Florida Statutes).
Findings Of Fact Respondent, Caribe Co-Operative Club Apartments, Inc. (Caribe Club), is a Florida not-for-profit corporation and a co-operative association that owns the apartment complex at issue in this proceeding located in Lake Worth, Florida. There are twenty-one apartments in the Caribe Club. The apartments constituting the Caribe Club are subject to duly-enacted bylaws and to a form proprietary lease. These documents govern the management of the co-operative association and specify the terms and conditions of each tenancy. An existing lease cannot be transferred until the transaction has been approved by the stockholders of the Caribe Club. If the transaction is approved, the prospective lessee is required to purchase a share of stock in the cooperative association and execute the form proprietary lease. The existing lessee and the proposed transferee are required to apply to the board of directors for approval of the proposed transaction. The board is then required to convene a meeting of the stockholders, at which the proposed transaction is discussed and the prospective lessee may be interviewed. Thereafter, a vote by secret ballot is taken, with each apartment having one vote. A two-thirds affirmative vote of the stockholders voting at the meeting is required for approval of the proposed transaction. Petitioner agreed to purchase the apartment at the Caribe Club owned by Phyllis McAuliffe for the sum of $13,500. As required by the bylaws of the Caribe Club, Petitioner and Ms. McAuliffe requested approval of the proposed transfer and Petitioner submitted her personal financial information in addition to the application. For approximately a year before she decided to purchase the McAuliffe lease, Respondent lived in the Caribe Club apartment leased by Quentin Mason, her boyfriend. After she and Ms. McAuliffe had come to terms, but before she submitted her request for approval to the board of directors, Petitioner painted and cleaned the McAuliffe apartment. In addition, she replaced a door. At all times pertinent to this proceeding, the Caribe Club had a president, two vice-presidents, a secretary, and a treasurer. These officers constituted the board of directors. Francis A. Phillip, Jr., the president of the Caribe Club, reviewed Petitioner's application and her supporting financial information. As required by the bylaws, Mr. Phillip called a special meeting of the stockholders for January 22, 1996, to consider the application. After her financial information was determined to be in order, Petitioner was briefly interviewed and then excused from the meeting. The only discussion of the proposed transfer consisted of Fernand Roy making a statement against the transaction and Mr. Mason giving a response. The proposed transaction was rejected by the vote by secret ballot that followed. Of the twelve voting stockholders at the meeting, seven voted against the transaction and five voted in favor. To the knowledge of the witnesses who testified, this was the first occasion that a prospective transfer had been rejected. The following stockholders were present at the meeting: Mr. and Mrs. Brooks (with one vote), Mr. Mason, Mr. and Mrs. Todd (with one vote), Mrs. Knutson, Mrs. Loomis, Mrs. Mack, Mrs. Senn, Mrs. Lambert, Mrs. Tognacci, Mr. Phillip, Mr. Reed, and Mr. Roy. At the formal hearing, there was competent evidence as to how five stockholders voted and the reasons of those who voted against the transaction. Mr. Mason and Mr. Reed voted for the transaction. Mr. Roy, Ms. Senn, and Mr. Phillip voted against the transaction. The Petitioner did not establish by competent evidence how the other individual stockholders voted or the reason for their votes. 1/ Fernand Roy participated in the stockholder meeting as a voting stockholder. Mr. Roy and Petitioner's boyfriend, Mr. Mason, had a long-standing feud. Mr. Roy did not want Petitioner to become a stockholder because she would then be able to support Mr. Mason's positions on various issues pertaining to management of the Caribe Club. Florence Senn participated in the stockholder meeting as a voting stockholder. Ms. Senn voted against the proposed transaction because she did not like the fact that Petitioner and Mr. Mason had been living together without the benefit of marriage. Ms. Senn did not discuss her position on the matter with anyone prior to the vote being taken. Ms. Senn told Petitioner before the vote was taken that if the stockholders rejected her application it would be because she was Mr. Mason's girlfriend. Ms. Senn was of the opinion following the vote that most of the stockholders who voted against the transaction did so because they did not like Mr. Mason. Mr. Phillip participated in the stockholder meeting as the presiding officer and as a voting stockholder. Mr. Phillip voted against the proposed transaction because he believed that Petitioner's entering the McAuliffe unit to paint, clean, and make repairs before the stockholders had approved the transaction evidenced an unwillingness on her part to comply with the bylaws and rules and regulations of the Caribe Club. Mr. Phillip testified that he had told Petitioner not to work in the apartment before the transaction was approved, but that she did so anyway. Before the meeting, Mr. Phillip mentioned to one or two other stockholders that Petitioner was working on the McAuliffe apartment, but he did not discuss his position on the transaction with anyone prior to the vote being taken. The evidence did not establish that any stockholder voted against the proposed transaction based on Petitioner's age, national origin, sex, handicap, familial status, or religion. 2/
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Florida Commission on Human Relations enter a final order dismissing Petitioner's discriminatory housing complaint and Petition for Relief. DONE AND ENTERED this 20th day of May, 1999, in Tallahassee, Leon County, Florida. CLAUDE B. ARRINGTON Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 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, 1999.
Conclusions DOAH No. 14-248 ACHA No. 2013006534 DOAH No. 14-528 ACHA No. 2013007612 DOAH No. 14-521 ACHA No. 2013010196 Having reviewed the Administrative Complaints and Notices of Intent to Deny, and all other matters of record, the Agency for Health Care Administration finds and concludes as follows: 1. The Agency has jurisdiction over Senior Care Group, Inc. d/b/a Lakeshore Villas Health Care Center pursuant to Chapter 408, Part II, Florida Statutes, and the applicable authorizing statutes and administrative code provisions. 2. The Agency issued the attached Administrative Complaints and Notices of Intent to Deny and Election of Rights forms to Senior Care Group, Inc. d/b/a Lakeshore Villas Health Care Center. (Ex. 1) The Election of Rights forms advised of the right to an administrative hearing. 3. The parties have since entered into the attached Settlement Agreement. (Ex. 2) Based upon the foregoing, it is ORDERED: 1, The Settlement Agreement is adopted and incorporated by reference into this Final Order. The parties shall comply with the terms of the Settlement Agreement. 2. The Notice of Intent to Deny is superseded by this Agreement. 3. Senior Care Group, Inc. d/b/a Lakeshore Villas Health Care Center shall pay the Agency $25,500.00. If full payment has been made, the cancelled check acts as receipt of payment and no further payment is required. If full payment has not been made, payment is due within 30 days of the Final Order. Overdue amounts are subject to statutory interest and may be referred to collections. A check made payable to the “Agency for Health Care Administration” and containing the AHCA ten-digit case number should be sent to: Office of Finance and Accounting Revenue Management Unit Agency for Health Care Administration 2727 Mahan Drive, MS 14 Tallahassee, Florida 32308 4. Conditional licensure status is imposed on Senior Care Group, Inc. d/b/a Lakeshore Villas Health Care Center beginning on April 12, 2013. ORDERED at Tallahassee, Florida, on this 22 day of Mace 2014, Dp Agency for Health Care Administration
Other Judicial Opinions A party who is adversely affected by this Final Order is entitled to judicial review, which shall be instituted by filing one copy of a notice of appeal with the Agency Clerk of AHCA, and a second copy, along with filing fee as prescribed by law, with the District Court of Appeal in the appellate district where the Agency maintains its headquarters or where a party resides. Review of proceedings shall be conducted in accordance with the Florida appellate rules. The Notice of Appeal must be filed within 30 days of rendition of the order to be reviewed. CERTIFICATE OF SERVICE I CERTIFY that a true and correct copy of this Final Order was served on the below-named persons by the method designated on this 3 ay of ore ‘A 2014, Richard Shoop, Agency Clerk Agency for Health Care Administration 2727 Mahan Drive, Bldg. #3, Mail Stop #3 Tallahassee, Florida 32308-5403 Telephone: (850) 412-3630 Jan Mills Finance & Accounting Facilities Intake Unit Revenue Management Unit (Electronic Mail) (Electronic Mail) Thomas J. Walsh II 1 Anna G. Small, Esq. Office of the General Counsel Allen Dell, P.A. Agency for Health Care Administration 202 South Rome Avenue (Electronic Mail) Tampa, Florida 33606 (U.S. Mail) Linzie F. Bogan Lynne A. Quimby-Pennock Administrative Law Judge Administrative Law Judge Division of Administrative Hearings Division of Administrative Hearings (Electronic Mail) (Electronic Mail) aA DECOY 7] Certified Article Number 7256 9008 Will see W925 SENDERS RECORD FLORIDA AGENCY FOR HEALTH CARE ADMINISTRATION aaa Better Health Care for all Floridians SEA ORETARY. EK May 22, 2013 ADMINISTRATOR minty RECERVED LAKESHORE VILLAS HEALTH CARE CENTER C!LIFY INTAKE UnpLICENSE NUMBER: 1282096 16002 LAKESHORE VILLA DR we FILE NUMBER: 62921 TAMPA, FL 33613 MAY & 2043 CASE #: 2013005471 Agency for Health NOTICE 6f INFENTIO.DENY Dear Ms. Johnson: It is the decision of this Agency that Lakeshore Villas Health Care Center’s license renewal application for a nursing home be DENIED. The specific basis for the Agency’s decision is based on the following grounds: e Pursuant to section 400.121(3)(d), F.S., the Agency shail revoke or deny a nursing home license for two class I deficiencies arising from separate surveys within a 30 month period. Lakeshore Villas Health Care Center was cited for Class I deficiencies on October 13, 2011 and November 14, 2012. e — Section 408.815(1), F.S., states that in addition to the grounds provided in authorizing statutes, grounds that may be used by the agency for denying and revoking a license or change of ownership application include any of the following actions by a controlling interest: (a) a violation of this part, authorizing statutes, or applicable rules; and (d) a demonstrated pattern of deficient performance. EXPLANATION OF RIGHTS Pursuant to Section 120.569, F.S., you have the right to request an administrative hearing. In order to obtain a formal proceeding before the Division of Administrative Hearings under Section 120.57(1), F.S., your request for an administrative hearing must conform to the requirements in Section 28-106.201, Florida Administrative Code (F.A.C), and must state the material facts you dispute. SEE ATTACHED ELECTION AND EXPLANATION OF RIGHTS FORMS. Agengy for Y) Adminjstraty Z j /¢. Berard E. Hudsda, Manager Long Term Care Unit ce: Agency Clerk, Mail Stop 3 EXHIBIT 1 Visit AHCA online at ahca.myflorida.com 2727 Mahan Drive,MS#33 Tallahassee, Florida 32308 FLORIDA AGENCY FOR HEALTH CARE ADMINISTRATION RICK SCOTT GOVERNOR July 8, 2013 LAKESHORE VILLAS HEALTH CARE CENTER 16002 LAKESHORE VILLA DR . TAMPA, FL 33613 Dear Administrator: ELIZABETH DUDEK SECRETARY RECEIVED GENERAL COUNSEL JUL 12 2013 Agency for Health Care Administration The attached license with Certificate #18248 is being issued for the operation of your facility. Please review it thoroughly to ensure that all information is correct and consistent with your records. If errors or omissions are noted, please make corrections on a copy and mail to: Agency for Health Care Administration Long Term Care Section, Mail Stop #33 2727 Mahan Drive, Building 3 Tallahassee, Florida 32308 Issued for status change to Conditional. Sincerely, Fracey Weathewpeoan for Kathy Munn Agency for Health Care Administration Division of Health Quality Assurance Enclosure cc: Medicaid Contract Management 2727 Mahan Drive, MS#33 Tallahassee, Florida 32308 Visit AHCA online at ahca.myflorida.com CERTIFICATE #: 18248 LICENSE #: SNF1282096 State of Florida AGENCY FOR HEALTH CARE ADMINISTRATION DIVISION OF HEALTH QUALITY ASSURANCE NURSING HOME CONDITIONAL This is to confirm that SENIOR CARE GROUP, INC. has complied with the rules and regulations adopted by the State of Florida, Agency For Health Care Administration, authorized in Chapter 400, Part I, Florida Statutes, and as the licensee is authorized to operate the following: LAKESHORE VILLAS HEALTH CARE CENTER 16002 LAKESHORE VILLA DR TAMPA, FL 33613 TOTAL: 179 BEDS ~ STATUS CHANGE EFFECTIVE DATE: 06/04/2013 EXPIRATION DATE: 06/29/2013 ary fy Assurance
