Findings Of Fact Petitioner herein is the State of Florida, Department of Business Regulation, Division of Florida Land Sales Condominiums and Mobile Homes. One Respondent in this matter is Tanwin Corporation (hereinafter "Tanwin") the developer of two residential condominiums known as Vista Del Lago Condominium I and Vista Del Lago Condominium II, located in West Palm Beach, Florida. The other Respondent is Vista Del Lago Condominium Association, Inc. (hereinafter "Association"), the condominium association for Vista Del Lago Condominiums I and II. Transition from developer control of the Association has not occurred, and at all times pertinent hereto, Respondent Tanwin has in fact controlled the operation of the Respondent Association. The Declaration of Condominium for Vista Del Lago Condominium I (hereinafter "Condo I") was recorded in the public records on December 12, 1980. The Declaration of Condominium for Vista Del Lago Condominium II (hereinafter "Condo II") was recorded in the public records on March 11, 1982. Condo I contains 16 units; and Condo II contains 18 units. Herbert and Judith Tannenbaum are the President and Secretary, respectively, of both Tanwin and the Association and are members of the Association's Board of Directors. The developer-controlled Association failed to provide a proposed budget of common expenses for Condo I for the fiscal year 1982. The developer-controlled Association failed to provide a proposed budget of common expenses for Condo I and Condo II for 1983 until the unit owner meeting in March or April of 1983. The budget provided at that time contained no provision for reserves. Although the document alleged to be the 1983 proposed budget admitted in evidence as Petitioner's Exhibit numbered 17 does contain an allocation for reserves, Petitioner's Exhibits numbered 17 is not the 1983 budget disseminated to unit owners at the annual meeting in 1983. In addition, the 1983 budget was received by the unit owners at the meeting at which the proposed budget was to be considered and not prior to the budget meeting. Statutory reserves were not waived during the period December, 1980 through December, 1983. The "start-up" budgets contained as exhibits to the Declarations of Condominium indicate that reserves were to be collected from unit owners at the rate of $15 per month per unit at least during the first year commencing December of 1980 with the first closing. Hence, reserves were not waived December, 1980 through December, 1981. From November, 1981 through December, 1983, no vote to waive reserves was taken by the unit owners. Although reserves were discussed at the 1983 meeting, no vote was taken during the period in question including 1983, to waive reserves. The developer as owner of unsold units; has failed to pay to the Association monthly maintenance for common expenses during the period December, 1980 through December, 1983. The developer Tanwin has, in the nature of an affirmative defense, alleged the existence of a guarantee of common expenses pursuant to Section 718.116(8), Florida Statutes, which purportedly ran from the inception of the condominiums to date. Accordingly, the initial issue for resolution is whether the developer pursuant to statute guaranteed common expenses. Section 718.116(8)(b) provides that a developer may be excused from payment of common expenses pertaining to developer-owned units for that period of time during which he has guaranteed to each purchaser in the declaration of condominium, purchase contract or prospectus, or by an agreement between the developer and a majority of unit owners other than the developer, that their assessments for common expenses would not increase over a stated dollar amount during the guarantee period and the developer agrees to pay any amount necessary for common expenses not produced by the assessments at the guaranteed level receivable from other unit owners, or "shortfall". Actual purchase agreements were admitted in evidence. Respondents seek to label certain unambiguous language in the purchase contracts as a guarantee. This language, uniform throughout all those contracts as well as the form purchase contract filed with Petitioner except that of Phillip May, provides as follows: 9. UNIT ASSESSMENTS. The Budget included in the Offering Circular sets forth Seller's best estimation of the contemplated expenses for operating and maintaining the Condominium during its initial year. Purchaser's monthly assessment under the aforementioned Budget is in the amount of $109.00. Until Closing of Title, Seller has the right (without affecting Purchaser's obligation to purchase in accordance with the provisions hereof, to modify the estimated Budget and assessments periodically if then current cost figures indicate that an updating of estimates is appropriate). [Emphasis added]. That portion of the purchase agreement set forth above does not constitute a guarantee. Instead, the purchase agreement simply includes a best estimation of expenses for the initial year. It does not govern assessments after the expiration of one year, and even as to the initial year, the language in the contract sets forth only a "best estimation" and not a guarantee that the assessments would not increase during the "guarantee period." Phillip May's purchase agreement reflects that he purchased his unit in August of 1983; after condominium complaints had been filed by the unit owners with the Florida Division of Land Sales Condominiums and Mobile Homes. His purchase agreement has been altered from the purchase agreement of earlier purchasers in that his purchase agreement expressly, by footnote contains a one- year guarantee running from closing. The guarantee contained in his purchase agreement was presented by the developer without any request from Mr. May for the inclusion of a guarantee in his purchase agreement. The guarantee language in this purchase agreement is useful for the purpose of comparing the language with those portions of the pre-complaint contracts which Respondents assert contain or constitute a guarantee. Similarly it is determined that no guarantee of common expenses exists in the Declarations of Condominium for Condo I and II or in the prospectus for Condo II. While Respondents seek to assert the existence of a guarantee in those documents, the portions of those unambiguous documents which according to Respondents contain a guarantee, have no relation to a guarantee or do not guarantee that the assessments for common expenses would not increase. Respondent Tanwin also seeks to prove the existence of an oral guarantee which was allegedly communicated to purchasers at the closing of their particular condominium units. However, purchasers were told by Herbert or Judith Tannenbaum only that assessments should remain in the amount of $109 per month per unit unless there existed insufficient funds in the Association to pay bills. This is the antithesis of a guarantee. During a guarantee period the developer in exchange for an exemption from payment of assessments on developer- owned units agrees to pay any deficits incurred by the condominium association. Accordingly, no guarantee was conveyed at the closing of condominium units. Further Respondent Tanwin's additional contention that an oral guarantee arose when the condominiums came into existence is plainly contradicted by the express language throughout the condominium documents and purchase agreements that there exist no oral representations and that no reliance can be placed on any oral representations outside the written agreements. Further, prior to December, 1983, no reference was ever made by the developer either inside or outside of unit owner meetings as to the existence of the alleged guarantee. Moreover, a comparison between on the one hand, the 1981 and 1982 financial statements prepared in March of 1983, and on the other hand, the 1983 financial statements, clearly reveals that even the accountant for Tanwin was unaware of the existence of a guarantee during the period in question. While the 1983 statements, prepared in 1984 after unit owners filed complaints with Petitioner contain references to a developer guarantee, the 1981 and 1982 statements fail to mention a guarantee. Instead, included in the 1981 and 1982 statements of the Association are references under the current liabilities portion of the balance sheets for those years, to a "Due to Tanwin Corporation" liability in the amounts of $2,138 for 1981 and $2,006 for 1982. Petitioner through Ronald DiCrescenzo, the C.P.A. for Tanwin, established that at a minimum, the $2,006 figure reflected in the 1982 balance sheet was in fact reimbursed to Tanwin. Section 7D-18.05(1),(c), Florida Administrative Code, entitled "Budgets" and effective on July 22, 1980, was officially recognized prior to the final hearing in this cause. That section requires each condominium filing to include an estimated operating budget which contains "[a] statement of any guarantee of assessments or other election and obligation of the developer pursuant to Section 718.116(8); Florida Statutes." The estimated operating budgets for Condo I and Condo II do not include a statement of any guarantee of assessments or other election or obligation of the developer. The testimony of Herbert Tannenbaum with regard to an oral (or written) guarantee is not credible. He first testified that an oral guarantee was communicated to purchasers at the closing of each unit. In contrast, Tannenbaum also testified that the first discussion he had regarding a guarantee occurred with his attorney after the filing of the Notice to Show Cause in this action. Tannenbaum further testified that he did not understand what a guarantee was until after this case had begun and was unaware of the existence of any guarantee prior to consulting with his attorney in regard to this case. Moreover, Ronald DiCrescenzo, the C.P.A. for Tanwin testified that it was Tannenbaum who informed DiCrescenzo of the existence of a guarantee but DiCrescenzo was unable or unwilling to specify the date on which this communication occurred. Respondent Tanwin also seeks to establish the existence of a guarantee through Petitioner's Exhibit numbered 5 which is a document signed by less than the majority of unit owners even including Tannenbaum and his son, and signed on an unknown date during 1984. The document provides: The undersigned Unit Owners at the Vista Del Lago Condominium do not wish to give up the benefits of the developer's continuing guarantee which has been in effect since the inception of the condominium and agreed to by a majority of unit owners and whereby the developer has continuously guaranteed a maintenance level of no more than $109.00 per month per unit, until control of the condominium affairs is turned over to the unit owners in accordance with Florida's Condominium law. According to Respondent Tanwin, Petitioner's Exhibit numbered 5 constitutes a memorandum signed by unit owners evidencing their belief that a continuous guarantee of the developer has been in effect. First, however, this document was never admitted into evidence for that purpose; rather the document was admitted only to establish the fact that a unit owner had signed the document. Second, this document, unlike the purchase agreements or other condominium documents is ambiguous and is not probative of the existence of a guarantee. Instead, the evidence is overwhelming that the document was prepared by the developer in the course of this litigation for use in this litigation. Moreover, unit owner testimony is clear regarding what Mr. and Mrs. Tannenbaum disclosed to unit owners as the purpose for the document when soliciting their signatures, to- wit: that the document was a petition evidencing the unit owners' desire that their monthly maintenance payments not be increased and that prior confusion as to whether reserves had been waived needed resolution. Respondent Tanwin did pay assessments on some developer-owned units during the period December, 1980 through December, 1983, a fact which is inconsistent with its position that a guarantee existed. Noteworthy is the statement by Ronald DiCrescenzo, the C.P.A. for Tanwin, in his August 16, 1983, letter to Herbert Tannenbaum wherein it is stated: "It is my understanding that you are doing the following: . . .[Playing maintenance assessments on units completed but not sold." It is inconceivable that a developer during a "guarantee period" would pay assessments on some developer units as the purpose of the statutory guarantee is to exempt the developer from such assessments. The assessments for common expenses of unit owners other than the developer have increased during the purported guarantee period. At least some, if not all, unit owners paid monthly assessments of $128 - $130 for at least half of 1984. This fact is probative of the issue of whether a guarantee existed because unit owner assessments must remain constant during a guarantee period. At the Spring 1984 meeting chaired by Mr. Tannenbaum a vote was taken for the first time as to whether reserves should be waived. Although only 21 owners were present in person or by proxy; the vote was tabulated as 12 in favor and 12 opposed. Mr. Tannenbaum, therefore, announced an increase in monthly maintenance payments to fund reserves. Thereafter owners began paying an increased assessment. The fact that the developer-controlled Association collected increased assessments from unit owners during 1984, and had up to the time of the final hearing in this cause made no effort to redistribute those funds suggests that the developer-controlled Association and the developer considered themselves to be under no obligation to keep maintenance assessments at a constant level. There was no guarantee of assessments for common expenses by Tanwin from December, 1980, through at least December, 1983. Since there was no guarantee during the time period in question, Respondent Tanwin is liable to the Respondent Association for the amount of monthly assessments for common expenses on all developer-owned units for which monthly assessments have not been paid. In conjunction with the determination that Tanwin owes money to the Association (and not vice versa), Respondent Tanwin attempted to obtain an offset by claiming the benefit of a management contract between either Tannenbaum or Tanwin and the Association. No such management contract exists, either written or oral. Although a management contract is mentioned in one of the condominium documents there is no indication that one ever came into being, and no written contract was even offered in evidence. Likewise, no evidence was offered to show the terms of any oral contract; rather, Tannenbaum admitted that he may never have told any of the unit owners that there was a management contract. Tannenbaum's testimony is consistent with the fact that no budget or financial statement reflects any expense to the Association for a management contract with anyone. Likewise, the "budget" contained within Condo II's documents recorded on March 11, 1982, specifically states that any management fee expense was not applicable. Lastly, Tannenbaum's testimony regarding the existence of a management contract is contrary to the statement signed by him on February 10, 1981, which specifically advised Petitioner that the Association did not employ professional management. To the extent that Respondent Tanwin attempted to establish some quantum meruit basis for its claim of an offset, it is specifically found that no basis for any payment has been proven for the following reasons: Tannenbaum had no prior experience in managing a condominium, which is buttressed by the number of violations of the condominium laws determined herein; Tannenbaum does not know what condominium managers earn; no delineation was made as to specific duties performed by Tannenbaum on behalf of the Association as opposed to those duties performed by Tannenbaum on behalf of Respondent Tanwin; since there was no testimony as to duties performed for the Association, there was necessarily no testimony as to what duties were performed on behalf of the Association in Tannenbaum's capacity as President of the Association and member of the Association's Board of Directors as opposed to duties allegedly performed as a "manager." Tannenbaum's testimony as to the value of his "services" ranged from $10,000 to $15,000 a year to a lump sum of $60,000; it is interesting to note that the value of his services alone some years exceeded the Association's annual budget. Respondent Tanwin has failed to prove entitlement to an offset amount, either pursuant to contract or based upon quantum meruit. The financial statements of the Association--including balance sheets, statements of position, and statements of receipts and expenditures--for 1980-81 and for 1982 reveal consolidation of the records for Condo I and Condo II in these statements. Additionally, DiCrescenzo admitted that separate accounting records were not maintained for each condominium and Herbert Tannenbaum also admitted to maintaining consolidated records. Accordingly, the developer- controlled Association failed to maintain separate accounting records for each condominium it manages. The By-Laws of the Association provide: SECTION. 7. Annual Audit. An audit of the accounts of the Corporation shall be made annually by a Certified Public Accountant - and a copy of the Report shall be furnished to each member not later than April 1st of the year following the year in which the Report was made. The financial statement for 1981 bears the completion date of February 9, 1983. The 1982 financial statement contains a completion date of March 1, 1983. Both the 1981 and the 1982 statements were delivered to the unit owners in March or April, 1983. Accordingly, Respondents failed to provide the 1981 financial report of actual receipts and expenditures in compliance with the Association's By-Laws. As set forth hereinabove, statutory reserves were not waived during the period of December, 1980 through December, 1983. Being a common expense, reserves must be fully funded unless waived annually. In the instant case, Respondents, rather than arguing that reserves had in fact been fully funded, sought to prove that reserves had been waived during the years in question. The fact that reserves were not fully funded is established by reviewing the financial statements. In accordance with the start-up budgets, reserves were initially established at the level of $15.00 per unit per month. Therefore, during 1981, for Condo I containing sixteen units, the Association's reserve account should contain 16 multiplied by $15.00 per month multiplied by 12 months, or $2,880. Since the Declaration of Condominium for Condo II was not recorded until March 11, 1982, assessments for common expenses including allocations to reserves, were not collected from Condo II during 1981. Therefore, the balance in the reserve account as reflected in the balance sheet for the year 1981 should be no less than $2,880. The actual balance reflected in this account is $2,445. Both Tannenbaum and DiCrescenzo testified that most of the balance in that account was composed of purchaser contributions from the closing of each condominium unit "equivalent to 2 months maintenance to be placed in a special reserve fund" as called for in the purchase contracts. Tannenbaum further admitted that instead of collecting $15.00 per month per unit for reserves, the money that would have gone into the reserve account was used "to run the condominium." Similarly, for the year ending 1982, the balance in the reserve account also reflects that reserves were not being funded. First, the amount of reserves which should have been set aside in 1981 of $2,880 is added to the total amount of reserves which should have been collected for 1982 for Condo I ($2880), giving a total figure of $5,760. To this figure should be added the reserves which should have been collected from units in Condo II during 1982. This figure is derived by multiplying the total number of units in Condo II, 18 units, by $15.00 per unit multiplied by 8 months (since Condo II was recorded in March of 1982) to yield a figure for Condo II of $2,160. Adding total reserve assessments for Condo I and II, $2,160 plus $5,760 equals $7,920 the correct reserve balance at the close of 1982. The actual balance for the period ended December 31, 1982, is reflected to be $4,138. Similarly, the amount of reserves required for Condos I and II as of December 31, 1983, can be calculated using the same formula. Although the 1983 financial statement prepared in 1984 reflects the existence of a funded reserve account, both DiCrescenzo and Tannenbaum admitted there was no separate reserves account set up during the time period involved herein. Statutory reserves were not waived and were not fully funded for the period of December, 1980 through December, 1983. All parties hereto presented much evidence, unsupported by the books and records of the corporations, for the determination herein of the amounts of money owed by Respondent Tanwin to the Association to bring current the total amount which Tanwin should have been paying to the Association from the inception of each condominium for monthly maintenance on condominium units not yet sold by the developer, together with the amount owed by Tanwin to the Association so that a separate reserve account can be established and fully funded for all years in which the majority of unit owners including the developer have not waived reserves. No findings of fact determining the exact amount Tanwin owes to the Association will be made for several reasons: first, the determination of that amount requires an accounting between the two Respondents herein which is a matter that can only be litigated, if litigation is necessary, in the circuit courts of this state; second, the determination of the amount due between the private parties hereto is not necessary for the determination by Petitioner of the statutory violations charged in the Amended Notice to Show Cause; and third, where books and records exist; one witness on each side testifying as to conclusions reached from review of those records, even though the witnesses be expert, does not present either the quantity or the quality of evidence necessary to trace the income and outgo of specific moneys through different corporate accounts over a period of time, especially where each expert opinion is based upon questionable assumptions. It is, however, clear from the record in this cause that Respondent Tanwin owes money to the Respondent Association and further owes to the Respondent Association an accounting of all moneys on a specific item by item basis.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law it is, therefore, RECOMMENDED that a Final Order be entered: Finding Respondent Tanwin Corporation guilty of the allegations contained in Counts 1-7 of the Amended Notice to Show Cause; Dismissing with prejudice Count 8 of the Amended Notice to Show Cause; Assessing against Respondent Tanwin Corporation a civil penalty in the amount of $17,000 to be paid by certified check made payable to the Division of Florida Land Sales, Condominiums and Mobile Homes within 45 days from entry of the Final Order herein; Ordering Respondents to forthwith comply with all provisions of the Condominium Act and the rules promulgated thereunder; And requiring Tanwin Corporation to provide and pay for an accounting by an independent certified public accountant of all funds owed by the developer as its share of common expenses on unsold units and the amount for which Tanwin is liable in order that the reserve account be fully funded, with a copy of that accounting to be filed with Petitioner within 90 days of the date of the Final Order. DONE and RECOMMENDED this 9th day of August, 1985, at Tallahassee, Florida. LINDA M. RIGOT, Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 9th day of August, 1985. COPIES FURNISHED: Karl M. Scheuerman, Esquire Thomas A. Bell, Esquire Department of Business Regulation 725 South Bronough Street Tallahassee, Florida 32301 Joseph S. Paglino, Esquire 88 Northeast 79th Street Miami, Florida 33138 E. James Kearney, Director Department of Business Regulation Division of Florida Land Sales Condominiums and Mobile Homes 725 South Bronough Street Tallahassee, Florida 32301 Richard B. Burroughs, Jr., Secretary Department of Business Regulation 725 South Bronough Street Tallahassee, Florida 32301 ================================================================= AGENCY FINAL CONSENT ORDER ================================================================= STATE OF FLORIDA DEPARTMENT OF BUSINESS REGULATION DIVISION OF FLORIDA LAND SALES, CONDOMINIUMS AND MOBILE HOMES DEPARTMENT OF BUSINESS REGULATION, DIVISION OF FLORIDA LAND SALES, CONDOMINIUMS AND MOBILE HOMES, Petitioner, CASE NO. 84-0437 DOCKET NO. 84001MVC TANWIN CORPORATION and VISTA DEL LAGO CONDOMINIUM ASSOCIATION, INC. Respondents. / FINAL CONSENT ORDER The Division of Florida Land Sales, Condominiums and Mobile Homes, (hereinafter the Division), Vista Del Lago Condominium Inc., (hereinafter the Association), and Tanwin Corporation, (hereinafter Tanwin), hereby stipulate and agree to the terms and issuance of this Final Consent Order as follows: WHEREAS, the Division issued a Notice to Show Cause directed to Respondents and, WHEREAS, after issuance of the Recommended Order in this cause, the parties amicably conferred for the purpose of achieving a settlement of the case, and WHEREAS, Tanwin is desirous of resolving the matters alleged in the Notice to Show Cause without engaging in further administrative proceedings or judicial review thereof, NOW, THEREFORE, it is stipulated and agreed as follows:
The Issue Whether the Respondent violated the Florida Fair Housing Act as alleged in the Petition for Relief filed with the Florida Commission on Human Relations on June 21, 2002.
Findings Of Fact Based on the oral and documentary evidence presented at the final hearing and on the entire record of this proceeding, the following findings of fact are made: Robin Yeager is a 38-year-old single mother of a young son. In an order entered September 21, 2001, Ms. Yeager was found eligible for Social Security Disability Insurance Benefits, effective retroactively to December 14, 1998, because of a severe impairment caused by obstructive lung disease secondary to toxin exposure. As a result of the damage to her lungs, Ms. Yeager is not able to walk comfortably even for short distances. During the times material to these proceedings, Ms. Yeager resided at 2214 Cypress Bend Drive, Number 107, Building 1, of the Cypress Bend II Condominium. A Board of Directors elected by members of the Association governs Cypress Bend II Condominium. The Board of Directors enacts rules governing the owners and renters of the apartments, including rules governing parking on condominium property and screening applicants to purchase or lease apartments. At the times material to this proceeding, Mr. Rodgers was the President of the Association and acted on behalf of the Association's Board of Directors. During the times material to this proceeding, DCI provided property management services to the Association. The management agreement between DCI as property manager and the Association, was executed on February 13, 2001, and included the following terms relevant to this proceeding: 2. Under the personal and direct supervision of the Board of Directors of the Association, the Manager shall render services and perform duties as described and attached hereto and incorporated herein as Exhibit A, with the following additions: * * * c. Process all applications for Resales and/or Rentals, including coordinating for screening interviews with the appointed committee, [and] reviewing applications to be sure they are completed, . . . * * * Operate the Association property according to the overall plan of the Association consistent with the direction of the Board of Directors and the approved budget. The Manager shall make every reasonable effort to see that all members are informed with respect to such rules, regulations, and notices as may be promulgated by the Association from time to time. The Manager shall be expected to perform such other acts and deeds as are reasonable, necessary and proper in the discharge of its duties under this agreement. At the times material to this proceeding, Carl T. Miller was employed by DCI and was the property manager for Cypress Bend II Condominium. He worked out of DCI's Pompano Beach, Florida, office. Mr. Miller's function was to carry out the instructions of the Board of Directors, as conveyed to him by Mr. Rodgers, the Association's President, and to ensure that the Association's rules were enforced. Ms. Yeager became a resident of Cypress Bend II Condominium on August 15, 2000, under a one-year lease with B.A.R.S. Inc., the principals of which were Leona and A.L. Stein. Pursuant to the Association's rules, Ms. Yeager submitted an Application for Residency, appeared before the Association Screening/Welcoming Committee ("Screening Committee"), and was approved for residency before she moved into Cypress Bend II Condominium as Mr. and Mrs. Stein's new tenant. It was noted on the lease that $2,150.00 was due from Ms. Yeager before she moved into the apartment; this amount included a $100.00 "application fee" to cover the costs of processing the Application for Residency. Ms. Yeager and her son resided in the apartment leased from the Steins until July 2001 without any significant dissention or disagreements with Mr. Rodgers or the staff of DCI. The difficulties leading to the instant proceeding began on or about July 9, 2001, when Ms. Yeager found that the parking decal required to park in a resident's space at the Cypress Bend II Condominium had been removed from her car and a "will tow" notice had been posted on the car.3 In accordance with the Association's rules,4 all residents of the Cypress Bend II Condominium, both apartment owners and tenants, are assigned parking spaces near their apartments, and they are given parking decals to place on their cars so that the cars will not be towed as unauthorized vehicles. There are also parking places reserved for guests, which are some distance away from the apartments; guest passes must be placed on cars parking in the spaces reserved for guests. Before DCI was hired as Cypress Bend II Condominium's property manager, Mr. Rodgers was very involved in the "minutia" of regulating the parking situation at Cypress Bend II Condominium, and he typically issued parking decals to the residents of the apartments and parking passes to their guests. As President of the Association, Mr. Rodgers initiated a program whereby he identified all of the cars issued parking decals by their tag numbers and kept a log of the spaces to which each car was assigned. The security company employed by the Association was under orders from Mr. Rodgers to have all unauthorized cars towed from the Cypress Bend II Condominium parking lot. When she first became a resident of Cypress Bend II Condominium in August 2000, Mr. Rodgers assigned Ms. Yeager a resident's parking space immediately adjacent to the apartment she was leasing, and he issued a parking decal for the Ford Explorer that she was driving at the time. Ms. Yeager's parking space was located eight or ten steps from the front door of her apartment. In January 2001, Ms. Yeager began dating a man who owned two Bentley automobiles. Ms. Yeager's friend gave her the white Bentley to drive, and Mr. Rodgers told her to use the parking decal for the Explorer on the Bentley. Ms. Yeager also occasionally drove her friend's other Bentley and parked it in her assigned space when her Bentley was in the shop for repairs. Ms. Yeager apparently placed the parking decal issued for the Explorer on whichever Bentley she happened to be driving so she could park in her assigned space without being towed. DCI assumed responsibility for managing Cypress Bend II Condominium in February 2001, and one of its responsibilities was to issue parking decals and guest parking passes in accordance with the Association's rules. If the Board of Directors, through the Association's President, directed DCI to refuse to issue a replacement decal to a tenant or owner who was creating a problem, DCI would be compelled by the terms of its management agreement with the Association to follow these directions. Even though Mr. Rodgers turned over the primary responsibility for issuing parking decals to DCI, he continued to be involved in decisions regarding the issuance of parking decals in his capacity as President of the Association, and he apparently continued to issue parking decals in some circumstances. In April 2001, Ms. Yeager drove either the white Bentley or a red Ford Expedition that was also owned by her friend. Mr. Rodgers issued Ms. Yeager a parking decal for the Bentley and told her to put the parking decal for the Explorer on the red Expedition so that she could park either one of these cars in her assigned space. Ms. Yeager was given permission by Mr. Rodgers to tape the parking decal to the Bentley's windshield rather than affixing it permanently, and Ms. Yeager used the Bentley parking decal if she was driving a car other than the Bentley or the red Expedition. On July 9, 2001, when Ms. Yeager found that the parking decal had been removed from the back window of the white Bentley,5 she went to DCI's office in Pompano Beach, Florida, and requested a new parking decal. Ms. Yeager gave Mr. Miller's staff documentation, including her driver's license, the registration for the Bentley, and a picture of the car. The receptionist in DCI's Pompano Beach office routinely processed requests for parking decals. One of the Association's rules provided that, with the exception of rental cars, parking decals were available only for cars registered to an owner or a lawful tenant of an apartment in Cypress Bend II Condominium. The receptionist conferred with Mr. Miller and told him that Ms. Yeager was parking several different vehicles in her parking space. Ms. Yeager was refused a new parking decal because she did not own the white Bentley that she was driving and parking in her assigned space. On July 10, 2001, Ms. Yeager went back to DCI's office with Mrs. Stein, and Ms. Yeager again requested a replacement parking decal. She took with her a letter written by her attorney, dated July 10, 2001, and addressed to DCI, in which he advised that Ms. Yeager was a lawful resident of Cypress Bend II Condominium and that DCI should carry out its duties as property manager and issue the parking pass and decal. Ms. Yeager was again refused a parking decal. Ms. Yeager continued to demand that she be issued a parking decal for the space previously assigned to her near her apartment; DCI continued to refuse to issue the parking decal, based on directions from Mr. Rodgers6; and Ms. Yeager continued to park in her usual space near her apartment. Ms. Yeager was repeatedly advised that her car would be towed if she parked a car in that space without a parking decal. On August 15, 2001, the day after her original lease expired, DCI issued Ms. Yeager a guest-parking pass, at Mr. Rodgers' direction, that allowed her to park only in the guest parking area, which was more than 75 feet from her apartment. This guest pass was valid for 2 weeks, with a one- week extension available. In mid-August, Ms. Yeager obtained a Mazda that was registered in her name. By this time, however, another process had been set in motion that further frustrated Ms. Yeager's efforts to obtain a parking decal allowing her to park her car in the space in front of the apartment she was leasing from Mr. Stein. On July 25, 2001, Ms. Yeager and Mrs. Stein, for B.A.R.S. Inc., executed a lease renewal on the apartment for a three-month term, to begin at the end of the existing lease, that is, on August 14, 2001, and to end on November 14, 2001. The lease included an option for Ms. Yeager to purchase the apartment for $79,900.00 that was valid only for the three months of the lease term. It was noted on the lease that $2,150.00 was due from Ms. Yeager before she moved into the apartment; this amount included a $100.00 "application fee." The Association's rules require that all prospective purchasers of apartments apply for approval to reside in Cypress Bend II Condominium even if they have been previously approved for residency as tenants. The Association's Screening Committee reviews applications for residency submitted by prospective purchasers, and the members of the committee vote to accept or reject the application. The rejection of an application for residency means that the apartment owner cannot sell the apartment to the person who has been rejected. One of DCI's responsibilities as property manager for the Association was to process applications for residency in Cypress Bend II Condominium. The proposed tenant or purchaser would submit the application to DCI, and DCI's staff would ensure that all of the necessary paperwork had been provided. DCI would also order a background investigation of the applicant. DCI would then submit the application packet to the Screening Committee for its consideration. DCI had no further role in the approval or rejection of prospective tenants or owners. The Board of Directors would usually notify the applicant of the outcome of the Screening Committee decision. In a letter dated August 8, 2001, Mr. Miller notified Mr. Stein that Ms. Yeager's renewal lease had to be submitted for approval to the Board of Directors and that Ms. Yeager would need to pay an application fee because the renewal lease contained an option for Ms. Yeager to purchase the apartment. Under the Association's rules, even existing tenants were required to submit a new Application for Residency if there was an option to purchase in the renewal lease. The July 25, 2001, renewal lease with the option to purchase was submitted to the Screening Committee, accompanied by an Application for Residency signed by Ms. Yeager and dated August 14, 2001. In her application, Ms. Yeager indicated that she was not employed but was receiving "SSD," or Social Security Disability Insurance Benefits. There was no information provided on the application regarding the nature of her disability. Ms. Yeager was not asked to appear before the committee, and she was never informed in writing of the decision of the Screening Committee. Rather, in a letter to Mr. Stein dated August 17, 2001, Mr. Rodgers notified Mr. Stein, as the apartment's owner, of the Screening Committee's rejection of Ms. Yeager for residency in Cypress Bend II Condominium: [T]he Lease Contract between you and Ms. Robin Yeager is invalid for the following reasons: Ms. Yeager has submitted an incomplete Application for Residency, and has repeatedly refused to complete that application stating that Cypress Bend II rules do not apply to her. Accordingly, her Application for Residency has been rejected by our Screening Committee and the undersigned, not to be reconsidered.[7] I also wish to advise you to apprise Ms. Yeager that she is never to try to contact this writer at anytime except by U.S. Mail. No telephone communication with her will be tolerated. Even though Mr. Rodgers had declared Ms. Yeager's renewal lease invalid, neither DCI nor the Association could evict her because only the apartment's owner could evict a tenant. Mr. Miller, therefore, reminded Mr. Stein in a letter dated August 22, 2001, that he had previously been informed that Ms. Yeager's application for a lease renewal had "been rejected by the screening committee for cause" and that she was "residing at Cypress Bend II Condominium without benefit of a lease." Mr. Miller requested that Mr. Stein advise him of his plans to evict Ms. Yeager. On August 22, 2001, Ms. Yeager caused several letters to be sent via facsimile to DCI. One letter, written by Ms. Yeager's attorney and addressed to "TO WHOM IT MAY CONCERN," informed the reader that a federal administrative law judge had announced at an administrative hearing on May 16, 2001, that Ms. Yeager was entitled to receive Social Security Disability Insurance Benefits. Ms. Yeager did not provide DCI with any medical documentation of her disability or disclose the nature of her disability to anyone at DCI because she believed that she should not have to divulge this personal information to DCI. In a letter to Mr. Miller dated August 24, 2001, Ms. Yeager requested that Mr. Miller tell her why her Application for Residency was rejected and would not be reconsidered. In addition, she stated: "I would also like to know why I can not [sic] obtain a Permit Parking sticker for the duration of my Lease that is valid through Nov. 15, 2001." It was Mr. Miller's understanding from conversations with Mr. Rodgers that, after the Screening Committee's decision on August 17, 2001, rejecting Ms. Yeager's Application for Residency, Ms. Yeager was residing in Cypress Bend II Condominium without a valid lease and was, therefore, no longer a "valid" tenant. Because only tenants and owners are entitled to a resident's parking decal under the Association's rules, Ms. Yeager was not entitled to a parking decal allowing her to park in the space near her apartment. Mr. Miller, therefore, responded to Ms. Yeager's inquiries in a letter dated August 24, 2001, as follows: The reason your application for residency was not approved has been conveyed to Mr. Al Stein, your former landlord. It is my understanding you are now in residency without a valid lease. That is the reason you will not be afforded any further parking permits. In addition to his understanding of the Association's rules, Mr. Miller also refused to issue a parking decal to Ms. Yeager because Mr. Rodgers instructed him not to do so. At the time, Mr. Rodgers was aware that Ms. Yeager had a disability, but it was his position that everyone was required to abide by the rules of the Association, including a person with a disability. At some time prior to September 6, 2001, Mr. Miller told Mr. Stein that the July 25, 2001, renewal lease for Ms. Yeager's apartment was invalid because it contained an option to purchase and the Screening Committee had rejected Ms. Yeager as a prospective purchaser of the apartment. Ms. Yeager and Mrs. Stein, therefore, crossed out references in the renewal lease to "option to purchase" and signed the changes. Ms. Yeager and Mr. Stein took the amended renewal lease to DCI's Pompano Beach office and gave it to Mr. Miller, together with a completed Application for Residency, which was signed by Ms. Yeager and dated September 6, 2001. The Screening Committee either rejected or did not consider Ms. Yeager's September 6, 2001, Application for Residency with respect to the amended renewal lease. According to Mr. Rodgers, even after the references to "option to purchase" were deleted from the renewal lease, there was something in the body of the lease that indicated that Ms. Yeager could possibly purchase the apartment, so the amended renewal lease was unacceptable.8 Mr. Stein did not evict Ms. Yeager from the apartment, and Ms. Yeager continued living there, and, presumably, parking in the space near her apartment without a parking decal, until mid-October 2001, when she moved to Cypress Bend I Condominium. On October 1, 2001, Ms. Yeager went to DCI's office with documentation for a Kia automobile that she owned,9 and she again requested that she be issued a parking decal. Ms. Yeager's request was denied, and, in a letter dated October 1, 2001, Mr. Miller explained the basis for the denial: Your landlord has previously been advised that the screening committee rejected you for residency at Cypress Bend Two. Additionally, the Association Attorney has determined that you do not have a valid lease. Since this is the present situation, you obviously are not entitled to any parking passes whatsoever. In a letter dated October 1, 2001, Mr. Miller advised Mr. Stein that, because Ms. Yeager continued to reside in his apartment without a valid lease, the Association was in a position to bring suit against him to force him to evict Ms. Yeager from the apartment. On or about October 4, 2001, Ms. Yeager was, for some reason not clear from the record, given a guest pass so she could park the Kia in the guest parking area. On October 6, 2001, while she was in the process of moving to Cypress Bend I Condominium and without any warning, Ms. Yeager's Kia was towed from the space she had been using since August 2000. On or about October 10, 2001, a suit was filed in circuit court on Ms. Yeager's behalf against Association, DCI, and Mr. Rodgers. Beginning in July 2001, a great deal of rancor developed between Ms. Yeager and Mr. Rodgers and Mr. Miller and between Mr. Stein and Mr. Miller: On August 17, 2001, Mr. Rodgers made it clear in his letter to Mr. Stein that he would not communicate with Ms. Yeager by telephone, and he asked Mr. Stein to advise Ms. Yeager that she was to communicate with him only by "U.S. Mail." According to Mr. Miller, Ms. Yeager caused a commotion, used profanity, and was abusive to members of DCI's staff during several visits when she was trying to persuade DCI to issue a resident's parking decal, and Mr. Miller requested on August 16, 2001, that Ms. Yeager submit any requests she might have of DCI in writing and addressed to him. Sometime after the Screening Committee rejected Ms. Yeager's Application for Residency, Tom Keating, the father of Ms. Yeager's son, overheard on Ms. Yeager's speaker phone an angry conversation between Ms. Yeager and Mr. Miller during which Mr. Keating heard Mr. Miller say that he did not care if she was disabled, he would not issue her a parking pass. Mr. Keating observed that Mr. Miller did not seem to like Ms. Yeager. In late August 2001, when Mr. Stein and Ms. Yeager went to the DCI office with the amended renewal lease, Mr. Stein's perception was that Mr. Miller treated them rudely and refused to issue Ms. Yeager a parking decal. Mr. Rodgers resented Mr. Stein's "trying to run things his way" and considered the rejection of Ms. Yeager's Application for Residency a means of not letting Mr. Stein do so. Summary The evidence presented by Ms. Yeager is not sufficient to establish that DCI discriminated against her because she was a single mother of a young child or because she was disabled.10 Although the evidence is uncontroverted that Ms. Yeager was, at the times pertinent to this proceeding, the single mother of a young child and suffered from a disability that affected her ability to walk even short distances, Ms. Yeager has failed to produce any persuasive evidence establishing that DCI treated her differently from the way it treated other residents who were married or single without children or who were not disabled. DCI refused to issue Ms. Yeager a parking decal in accordance with the Association's rules and the directions of the Association's President, Mr. Rodgers, as required by its management agreement with the Association. Ms. Yeager failed to produce any evidence establishing that DCI participated in any substantive way in the decision- making process of the Association's Screening Committee when it rejected Ms. Yeager's August 2001 Application for Residency. DCI did nothing more than submit Ms. Yeager's application to the Screening Committee, notify Mr. Stein of his obligation to evict Ms. Yeager, and explain to Ms. Yeager that she would not be issued a parking decal because she did not have a valid lease to live in the Cypress Bend II Condominium apartment. Ms. Yeager did not establish by the greater weight of the evidence that DCI discriminated against her by failing to issue her a parking decal to accommodate her disability. Nothing in DCI's management agreement with the Association gave it the authority to deviate from the Association rules or to ignore an instruction from the Association's President. The Association's Board of Directors, not DCI, had the authority to waive its rules relating to the issuance of parking decals. Ms. Yeager presented no evidence establishing that DCI harassed or intimidated her or took any action against her in retaliation for her filing a discrimination complaint. Ms. Yeager filed a complaint against the Association, DCI, and Mr. Rodgers in circuit court on or about October 10, 2001, when she was in the process of moving out of the Cypress Bend II Condominium apartment or had already done so.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Florida Commission on Human Relations enter a final order dismissing the Petition for Relief filed by Robin Yeager. DONE AND ENTERED this 30th day of May, 2003, in Tallahassee, Leon County, Florida. _ PATRICIA HART MALONO 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 30th day of May, 2003.
The Issue The issue for determination is whether Respondent discriminated against Petitioner in violation of the Fair Housing Act by failing to make reasonable accommodations for Petitioner's handicap.
Findings Of Fact Mr. Botero has a Ph.D. in engineering. Due to a medical mishap, involving the administration of anesthesia, Mr. Botero suffers from narcolepsy. His narcolepsy is controlled by medication. Narcolepsy is a medical disorder which causes Mr. Botero to have sudden and uncontrollable, though brief, attacks of deep sleep, and he becomes unintelligible and unable to move. His condition gives him a warning before an attack occurs, and he has a small window period of time, approximately five to seven minutes, of reaction time. A narcolepsy attack for him lasts approximately three to four minutes. Mr. Botero is handicapped. Even though Mr. Botero suffers from narcolepsy, he has been licensed by the State of Florida to drive a vehicle and has a handicap parking permit. If his disorder presents itself when he is operating a vehicle, the small window period of reaction time allows him to maneuver his vehicle to a safe spot and park before the narcolepsy attack occurs.1 If he is not driving, but is parked when his disorder presents itself, Mr. Botero needs additional space to exit his vehicle or for someone to remove him from his vehicle. Calusa Club was constructed in 1980 and consists of several condominium buildings. Each condominium building has a homeowner’s association and is also referred to as a community. The developer of Calusa Club assigned reserved parking spaces for each condominium unit. As a result, each condominium owner is assigned a reserved parking space. Some handicap parking spaces are reserved and some are available on a first- come, first-serve basis. Only testimony, not written documentation, was presented at hearing evidencing the assignment of reserved parking spaces. The undersigned finds this testimony credible. Calusa Club is managed by Miami Management, Inc. Miami Management does not have the authority to change the reserved parking spaces assigned to condominium units, including reserved handicapped parking spaces, or to add additional reserved parking spaces for a condominium unit. Only testimony, not written documentation, was presented at hearing evidencing the assignment of reserved parking spaces. The undersigned finds this testimony credible. In 1997, Mr. Botero purchased a condominium unit at Calusa Club, unit number E-201. Mr. Botero's condominium association is Calusa Club Condominium D North Association, Inc. His assigned reserved parking space was number 9 (Reserved Space Number 9). At that time, he informed Miami Management, through its property manager for Calusa Club, Kathie Roder,2 that he was handicapped and needed a handicapped parking space close to his community. No reserved handicapped parking spaces were located at Mr. Botero's community. Ms. Roder informed Mr. Botero that no reserved handicapped parking space was available in his community; however, she gave Mr. Botero a non-reserved parking space in his community. Based on the testimony of the Miami Management's current assistant property manager for Calusa Club, Michelle Lopez, which is found to be credible, an inference is made that the parking space given to Mr. Botero by Ms. Roder was a guest parking space. To Mr. Botero, the parking space given to him was too small dimensionally to accommodate his condition. When he opened the door on the driver's side of his vehicle, Mr. Botero was unable to open the door fully and, therefore, the parking space given to him failed to provide sufficient space dimensionally for him to exit his vehicle or for someone to remove him from his vehicle. He subsequently requested another parking space.3 Mr. Botero was given another non-reserved parking space, but he again complained that it too was too small dimensionally for the same reason as before. Based on the testimony of Ms. Lopez, which is found to be credible, an inference is made that the second parking space given to Mr. Botero by Ms. Roder was a guest parking space. After complaining a third time,4 Ms. Roder moved Mr. Botero's Reserved Space Number 9 next to the access walkway to his condominium building, which is the current space complained of. Reserved Space Number 9 measures 78 inches in width; immediately to its left is another reserved space assigned to another condominium unit; immediately to its right is the access walkway to Mr. Botero's condominium building; and immediately to the right of the access walkway is a guest parking space. The width of the Reserved Space Number 9 is the same width of the other parking spaces of his condominium building. Mr. Botero complains that Reserved Space Number 9, even though it is located next to the access walkway to his unit, is also too small dimensionally to accommodate his condition in that, if an attack occurs in the parking space and if a vehicle is in the parking space next to him, insufficient space exists for him to exit his vehicle or for someone to remove him from his vehicle. Furthermore, Mr. Botero is unable to back into Reserved Space Number 9 because he is fearful of hitting another vehicle, an object, or someone else if he has a narcolepsy attack while he is backing-up. If he could back-in, the position of his vehicle would give him sufficient space to exit his vehicle or for someone to remove him because the driver's side of his vehicle would be next to the access walkway. Moreover, Mr. Botero would back into Reserved Space Number 9 if it was larger dimensionally because he would then not be fearful of hitting another vehicle, an object, or someone else. After complaining to Ms. Roder, regarding the re- location of Reserved Space Number 9, she advised him in a letter dated May 5, 2004, among other things, that Calusa Club had provided him a reasonable accommodation and that nothing else could be done. The letter provided, in pertinent part, as follows: Please be advised that we have contacted our attorney regarding providing you with a Handicapped parking place. We are sorry to report that because our community was built in the early 1980's, we are only required to provide you with "reasonable accommodation". We have done so by moving your reserved space #9 next to your access walkway. We would not be able to place a handicapped space anywhere near that location. No evidence was presented to demonstrate that Calusa Club incurred any expense moving Reserved Space Number 9 to the guest parking space to the left of the access walkway. Therefore, an inference is drawn and a finding is made that Calusa Club incurred no expense moving Reserved Space Number 9 to the guest parking space to the left of the access walkway. No reserved handicapped parking space was or is available at Mr. Botero's community; they were and are all assigned. In order to widen Reserved Space Number 9, Miami Management would have to take away the reserved parking space assigned to the owner of another condominium unit. Ms. Lopez testified that Miami Management could not take away a reserved parking space assigned to the owner of another condominium unit. The undersigned finds her testimony to be credible. Ms. Lopez also testified that Miami Management could not "change" a reserved parking space assigned to the owner of a condominium unit. She later testified that Miami Management could not "take away" a reserved parking space assigned to the owner of a condominium unit. No documentation was presented at hearing evidencing Miami Management's lack of authority to "change" or to "take away" a reserved parking space. An inference is drawn and a finding is made that "change" and "take away" have identical meaning as used by Ms. Lopez. Mr. Botero has had narcolepsy attacks since residing at Calusa Club. His neighbors have had to remove him from his vehicle and park his vehicle in Reserved Space Number 9 for him. Around 2001, Mr. Botero deeded his condominium unit to his son, a college student. He and his son live together in the unit. Mr. Botero did not inform Calusa Club or his condominium association that he had deeded the condominium unit to his son. Mr. Botero continues to pay the maintenance and condominium association fees. Mr. Botero parks his vehicle in a guest space, while his son parks his (son's) vehicle in Reserved Space Number 9. Calusa Club learned of Mr. Botero's present arrangement with his son at hearing through Mr. Botero's testimony. Mr. Botero filed his complaint of discrimination under Florida's Fair Housing Act (Act) with the FCHR on about June 4, 2004.5
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Florida Commission on Human Relations enter a final order: Finding that Calusa Club Village, P.O.A., discriminated against Humberto Botero under Florida’s Fair Housing Act by failing and refusing to make a reasonable accommodation for his handicap; Ordering Calusa Club Village, P.O.A.,to cease the discriminatory practice; and Ordering Calusa Club Village, P.O.A., to move the reserved parking space of condominium unit number E-201 to the right of the access walkway of the condominium building. DONE AND ENTERED this 31st day of October, 2005, in Tallahassee, Leon County, Florida. S ERROL H. POWELL 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 31st day of October, 2005.
Findings Of Fact Eden Isles Condominiums are residential condominiums consisting of 7 identical buildings with 52 units in each building. Each building has a separate Declaration of Condominium which declaration is identical with the other 6 Declarations of Condominiums except as to the identification of the condominium. There are 4 swimming pools, parking areas, etc., the expenses for which are shared by the 7 condominiums. The Declarations of Condominiums provide for the percentage of the common ownership and expense associated with each unit in the condominium. The Declarations provide that the affairs of each condominium will be managed by the Eden Isles Condominium Association, Inc., Respondent. Duties of the Association include the preparation of budgets, collection of assessments for expense of maintaining common elements from each unit owner, maintenance of all common elements and generally conducting all of the business dealings associated with the common elements. From the inception of the Association in 1972 a common budget has been prepared for the 7 condominiums which is assessed against unit owners by taking total expenses for the common elements of the 7 buildings, dividing this by 7 and then allocating to each of the 52 unit owners in each building his pro rata share of those expenses. This has the effect of requiring the unit owners housed in Building D to share the cost for the replacement of an elevator in Building P or the replacement of a roof on Building C. The net result of the consolidated budget is to treat the 7 condominiums as one for the purpose of maintaining the common elements. When built and the Declarations of Condominiums recorded, Eden Isles was not a phased development.
The Issue The issue for consideration in this hearing was whether the Appellant's application for a conditional use permit should be approved.
Findings Of Fact At all times pertinent to the matters involved herein, the City of Clearwater Planning and Zoning Board was the municipal agency responsible for the approval/disapproval of requests for conditional use permits within the Clearwater city limits. Appellant, Patrick T. Maguire, filed an application for a conditional use permit on September 26, 1989, with the Planning and Zoning Board, to operate a charter fishing boat from slip Number 9 at the Island Yacht Club Condominium Marina, located at 200 Windward Passage, Clearwater, Florida. The vessel in question is a 26 foot center console open fisherman which would be captained by one individual, and which would, at any one time, carry no more than four passengers. Appellant has agreed, however, if required as a condition precedent to granting of his permit, to carry no more than three passengers at any one time. Island Yacht Club Condominium is a commercial condominium consisting of 130 individual units, 128 of which are boat slips, and 2 of which are commercial offices. Located on the premises are 42 on site parking spaces. There are 13 city parking spaces located nearby and contiguous to the condominium's property. Overflow parking from the yacht club lot, when necessary, utilizes a vacant lot adjacent to the subject property and across from the High and Dry Marina, the club's closest neighbor. The condominium association was created in 1980 and predates the present land development code of the City of Clearwater. Business activities conducted within the confines of the condominium area include a yacht brokerage and the offices of a development corporation. The association engages in the sale and rental of the boat slips and at the present time there are approximately 11 live-aboard vessels moored at the site. Though not a current practice, there is evidence that commercial vessels have been moored and displayed at the site, and that a vessel charter operation has also been conducted there at one time. The uplands on either side of the yacht club are zoned commercial general, as is the uplands portion of the club facility. Currently in operation on the other commercial sites are a boat storage, sales, and fueling facility; a boat sales and service operation; municipal boat slips; and a large boat repair and maintenance operation (Ross Yachts). Restrictions contained in paragraph 10 of the commercial declaration of condominium pertaining to Island Yacht Club, dated January 2, 1980, prohibit live-aboards, nuisances, and immoral, improper, offensive, or unlawful uses. No advertisements or notices of any type may be erected upon the common elements. The parties agree the major objection to the approval of appellant's request for permit relates to the potential for interference with the members' ability to park near their boats. Each slip owner receives one parking sticker for use when his car is in the club's parking lot. Cars parked there without displaying the sticker are uniformly towed away. A survey was conducted for Appellant of the parking lot owned by the yacht club and the contiguous city parking referred to above, at various times between September 26, 1989, the date the permit application was filed, and October 12, 1989. Thirteen separate site visits were made on three days in September and eight days in October. On September 30 and October 1, two visits were made each day. The visit times were anywhere from 8:00 AM to 10:00 PM. At no time, on any of the visits, were more than 22 parking spaces occupied in the club lot, or more than 7 in the contiguous city parking. At 11:40 AM, October 2, 1989, only 9 club spaces were in use and none of the city spaces. Even the condominium association president, Ms. Fricke, indicated that due to the strict enforcement of the parking permit requirement, there is no longer a parking problem on site at the club. This strict enforcement could be continued even if Appellant's permit were granted. There is, however, a continuing problem with parking for patrons of the contiguous businesses and frequently, the city slots are fully occupied. Appellant understands that neither his clients nor his captain would be authorized to use club site parking unless they were furnished with his parking permit issued for slip 9. Consequently, for the most part, his captain and clients would be required to use off site parking. This, however, would be their responsibility to find, and the impact of parking problems would bear directly upon the success of Appellant's operation, not the club. Assuming the parking restrictions currently existing were to be maintained, Appellant's captain and clients could not park on the club lot, and should constitute no additional burden on parking spaces thereon. According to Keith Crawford, the City's traffic engineer, there has been a problem regarding the 13 contiguous city spaces, and who has the right to use them, going back as far as 1980. Admitting that there is currently no problem existing relating to ingress and egress to and from the club site, and to the control of the property on which the 13 city spaces are located, Mr. Crawford believes that the Appellant's charter boat operation, even limited to a captain and four clients, because of their inability to park on club property, would generate an increased need for parking in the public area which may not be available. This potential problem, while perhaps factual, appears to be of a minor nature due to the limited number of people involved. At most, limiting the number of passengers to three and assuming all would come in separate cars, the maximum additional parking need would be for only 4 spaces. Another concern of the association related to a potential increase in its liability insurance premium as a result of Appellant's conduct of a commercial enterprise from his slip which would give the public greater access to club property. Evidence presented indicates that the condominium association is already a commercial condominium and currently carries insurance coverage for commercial enterprises. A letter from the association's insurance agent indicates the club's insurance rates would not go up as a result of Appellant's commercial activity. Though in a late-filed communication from 20 owners of 31 or 128 slips at the marina there is some reference to a potential increase in insurance rates, no evidence to this effect was presented at the hearing and this allegation is rejected as unproven. Still another basis for objection to the granting of Appellant's permit, in addition to the purported parking problem, is the reluctance among several members to permit the establishment of a precedent setting commercial operation at the marina. While admitting that the marina slips may be rented by their owners to other boaters who occupy them, and that this constitutes a commercial use of the property, it is not the type of commercial use to which the owners object. Whereas, according to the terms of the declaration of condominium, leases of slots must be approved by the condominium board, no control over who Appellant's patrons might be could be exercised, and the association prefers not to open the door to future unrestricted commercialization of its slips. This concern is reasonable if not controlling. Mr. Held, the city's Harbormaster since November, 1986, is not a traffic engineer. Nonetheless, he initially recommended denial of Appellant's application based on what he considered insufficient parking in the area. Mr. Held's office is at the municipal marina which has 152 slips available. Those slips are occupied by, among others, 7 party boats carrying up to 80-90 passengers each and a crew of three; between 20 and 24 charter fishing boats carrying up to 6 passengers each; and several other commercial boats including dinner boats, (50 - 300 passengers each), and a sailing charter. The marina also houses a bait house, a gift shop, a restaurant and other commercial operations, including a fuel dock. All this is supported by approximately 287 parking spaces on site. Of these, all but 12 are metered. There are also metered spaces in the Civic Center parking lot across the street, and in a city parking lot to the west. Appellant's application was considered by the Planning and Development Department of the city's Planning and Zoning Board. In it's report to the full Board at the October 17, 1989 meeting, the Department concluded that Appellant's proposal complied with the city's conditional use standards and the general and specific standards for marinas as outlined in Section 136.025 of the City Code. It recommended that the application be approved, subject to a limitation of four passengers at any one time, and that any required occupational license be obtained within 6 months. Though the city claims the Department's recommendation was flawed, it has not clearly shown this to be the case. Notwithstanding this recommendation and the recommendation of a licensed real estate broker and appraiser who testified at the hearing that in his opinion, Appellant's use of the property was appropriate and that parking would not be a problem, the Board heard adverse comment from not only Mr. Held, but other slip owners, and upon unanimous, (6-0), vote, denied the Appellant's request. Thereafter, Appellant appealed.
The Issue Whether Respondent Versailles Plaza Condo Association, Inc., ("Respondent") failed to provide reasonable accommodations for Petitioner Marcella Zambrano's disability in violation of Florida's Fair Housing Act, and, if so, the relief that is appropriate.
Findings Of Fact Petitioner Marcella Zambrano ("Marcella") is a 28-year- old-female, who is mentally retarded and suffers from cerebral palsy. Marcella weighs 260 pounds, has the mental age of a two-year-old, cannot speak, has difficulty walking, and frequently falls down when she attempts to walk. Marcella attended the final hearing in a wheelchair, and she has obvious physical and cognitive impairments. Marcella requires the use of a wheelchair due to her very limited mobility. She cannot be left alone for very long, and she is unable to wheel herself in a wheelchair. Petitioner Liliana Zambrano is Marcella's mother and primary caregiver. Liliana Zambrano weighs 135 pounds, and pushes Marcella in the wheelchair. The wheelchair weighs approximately forty pounds, and it is difficult for Liliana Zambrano to transport Marcella in the wheelchair. Petitioners reside in a third-floor unit at the Versailles Plaza Condominium in Miami, Florida. Respondent is the condominium association for the condominium complex. Petitioner Liliana Zambrano has two assigned parking spots for her unit within the complex's resident parking lot. Petitioners reside in the last unit on the far-east side of the residential building in which their unit is located. There is only one entrance from the parking lot into the condominium building in which Petitioners' unit is located. The entrance to the building is located in the middle of the building. The distance from Petitioners' assigned parking spot to the entrance of the building is approximately 50 yards. The distance from the entrance of the building to Petitioners' unit is approximately another 50 yards. Thus, the total distance from the assigned resident parking spot to Petitioners' unit is approximately 100 yards. Marcella attends a day program at the Association for Retarded Citizens ("ARC") from 9:00 a.m. to 2:00 p.m., three days a week. In order to get to the program, a bus arrives at the front of the condominium complex to pick her up. A gate is located at the front of the condominium complex. The bus stops to pick Marcella up just outside the gate. In order to get Marcella to the bus in the mornings, Liliana Zambrano must push her in the wheelchair from their apartment through the entrance of the building, then from the entrance of the building through the parking lot, and then from the parking lot through the front gate. Once Petitioners reach the gate, Liliana Zambrano must activate a hand-held remote-controlled device for the gate to open. When the gate opens, Liliana Zambrano must then push Marcella's wheelchair to get her out of the complex and to the bus. No ramp is located in the vicinity of the gate. This mode of transporting Marcella is repeated in the opposite direction in the afternoons when the bus returns to the complex to drop Marcella off from the ARC program. Petitioners requested that Respondent provide them a reasonable accommodation due to Marcella's handicap by re-assigning at least one of their parking spots closer to the entrance of the building. Petitioners further requested that Respondent provide them a reasonable accommodation for Marcella's handicap by allowing the ARC bus to enter the building's drive-way to drop her off in the afternoons. Respondent offered Petitioners a new parking spot outside the fenced-in condominium parking lot in an area typically reserved for visitors of the complex. In order to transport Marcella to and from the parking space proposed by Respondent as an accommodation, Liliana Zambrano would be required to push Marcella's wheelchair through a spring-loaded gate that will not open or close automatically. Moreover, Petitioners would have to negotiate two curbs, which are each five to six inches high. Furthermore, the space is in a high traffic area directly in front of a fire hydrant. As to the request regarding access for the bus, Respondent refused to allow the bus to enter the complex through the gate. The evidence adduced at the final hearing established that Marcella is a handicapped person because she has physical and mental impairments which substantially limit one or more life activities, and she has developmental disabilities. The evidence adduced at the hearing established that Respondent knew of Marcella's handicap, that reasonable accommodations were requested and are necessary to afford Petitioners an equal opportunity to use and enjoy the dwelling and facilities, and that Respondent refused to provide the reasonable accommodations for Marcella's disability by failing to assign Liliana Zambrano a designated accessible parking spot closer to the entrance of the building and by failing to allow the ARC bus to enter the complex. Respondent failed to articulate legitimate, non-discriminatory reasons for its actions.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a final order be entered by FCHR requiring that Respondent: provide Petitioners with an accessible parking space closer to the entrance of the building; allow the ARC bus to enter the complex through the gate; and award Petitioners' counsel their reasonable attorney's fees and costs incurred in bringing this action. If there is a dispute regarding the amount of attorneys' fees and costs, remand this matter to the Division of Administrative Hearings for the purpose of determining the amount of reasonable attorneys' fees and costs. DONE AND ENTERED this 6th day of June, 2014, in Tallahassee, Leon County, Florida. S DARREN A. SCHWARTZ 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 6th day of June, 2014.
The Issue Administrative determination of the validity of Rule 7D-17.01(3), Florida Administrative code, pursuant to Section 120.56, Florida Statutes. On January 15, 1981, Petitioner filed its petition with this division seeking a determination of the invalidity of Rule 7D-17.01(3), Florida Administrative Code. Petitioner also filed a motion for consolidation of this case with three other cases involving the same parties, DOAH Cases Nos 81-013, 81-014, 81-015. Those cases deal with Notices to Show Cause issued against Petitioner by Respondent for alleged violation of Chapter 718, Florida Statutes, and Rule 7D-17.01(3), F.A.C. The motion as to consolidation of Cases Nos. 81- 013, 014, and 015 was granted, but the motion was denied as to consolidation of Case No. 81-078RX due to the 30 day time limitation involved in the hearing of cases filed under Section 120.56, F.S. The parties stipulated that the factual allegations contained in paragraphs 1 through 4 of the Petition are true and correct, and agreed that only legal issues remained for determination. The stipulated facts are as follows:
Findings Of Fact This is a proceeding pursuant to section 120.56, Florida Statutes, for the determination of the invalidity of a rule being enforced by the Division of Land Sales and Condominium. The Petitioner is a developer of condominium in the State of Florida subject to the provisions of chapter 718 Florida Statutes. Petitioner has been served with a Notice to Show Cause in a separate docket for closing on the sale of several condominiumminium units in violation of Rule 7D-17.01(3), Florida Administrative Code, and is thereby substantially affected by the workings and enforcement of such rule. Respondent is an agency of the State of Florida empowered by the provisions of Section 718.501, Florida Statutes, to enforce and insure compliance with the provisions of Chapter 718, Florida Statutes, and the rules promulgated thereunder. Petitioner filed a proposed prospectus with the Respondent pertaining to the sale of condominiumminium units located within the Cypress Tree Condominiumminium, Nos. 6 and 7, located at 4141 Northwest 21st Street, Lauderhill, Florida. Respondent thereafter notified Petitioner of several alleged deficiencies in its filing and issued Notices to Show Cause to Petitioner, relative to Cypress Tree Condominiumminium building Nos. 6 and 7, which allege that Petitioner has failed to correct certain alleged deficiencies and has closed on the sale of units in the subject condominium in violation of Rule 7D-17.01(3), Florida Administrative Code.
