The Issue Whether Respondent violated Sections 112.313(6), Florida Statutes, by using a Riviera Beach Housing Authority credit card for personal use and, if so, what penalty is appropriate.
Findings Of Fact At all times pertinent to this proceeding, Respondent was a member of the Board of Commissioners of the Riviera Beach, Florida Housing Authority (Housing Authority/Board). Respondent was appointed to the Housing Authority by the mayor of Riviera Beach, Florida, and served from January 1994 until September 1996. In that public position, Respondent was subject to the requirements of Part III, Chapter 112, Florida Statutes, the Code of Ethics for Public Officers and Employees. The Housing Authority is empowered to operate and make decisions relative to housing projects located in the City of Riviera Beach, Florida. The property operated by the Housing Authority constitutes an area of approximately 14.5 acres or about three city blocks. In February 1995, the Housing Authority voted to obtain and issue credit cards to its commissioners and staff members. At this meeting, it was made clear that these credit cards were to be used by commissioners and staff members exclusively for travel expenses incurred while engaged in business related to the Housing Authority. Respondent attended the February 1995 meeting at which the credit card issue was presented and approved by the Housing Authority and, also, participated in the vote on this issue. Accordingly, Respondent was aware of the intended and appropriate purpose for which these credit cards could be used. Although the Housing Authority credit cards were issued in the individual names of commissioners and staff members, they were kept at the Housing Authority office. When a commissioner or staff member needed to use the credit card, that individual had to go the Housing Authority office to retrieve the card. Prior to obtaining their credit cards, commissioners or staff members were required to sign a log, indicating the date the card was checked out. Upon completion of the Housing Authority related travel and business, the commissioner or staff member was required to return the credit card to the Housing Authority office. Individual commissioners and staff members were not required to pay the credit card bills. Rather, under procedures implemented by the Housing Authority, these credit card bills were sent to and paid by the Board. At all times relevant to this proceeding and while serving as a Commissioner of the Housing Authority, Respondent worked as a confidential informant for the Palm Beach County Sheriff's Office. In her capacity as a confidential informant, Respondent worked on cases in West Palm Beach as well as in Riviera Beach, Florida. Respondent was sometimes compensated by the Palm Beach Sheriff's Office for information that she provided. At all times relevant hereto, Owen Dixon was the Executive Director of the Housing Authority. In this capacity, Mr. Dixon was responsible for approving and authorizing all business related travel for commissioners of the Housing Authority. Commissioners were required to obtain prior approval for all Board related travel expenses if they wanted to use the credit cards issued by the Housing Authority and expected the Board pay the expenses. Mr. Dixon authorized Respondent to use her Housing Authority credit card to rent a vehicle for a one-day trip to conduct business associated with the Board. Based upon Respondent’s request and Mr. Dixon's authorization, the trip was to be taken on or about April 27, 1995. The reason Mr. Dixon approved use of the credit card for this one-day trip was that it was: (1) related to Housing Authority business and (2) appropriate under the guidelines established by the Housing Authority. On April 27, 1995, Respondent went to the Housing Authority office and signed out the Authority credit card bearing her name. On this same day, Respondent went to Payless Car Rental, and using her Board-issued credit card, rented a vehicle. Although Respondent's request and Mr. Owen's approval was for a one-day trip, Respondent kept the Payless rental car until May 4, 1995. During this one-week period, Respondent put 513 miles on the vehicle that she rented from Payless. On May 4, 1995, after returning the Payless rental car, Respondent rented a vehicle from National Car Rental. When Respondent rented the car from National Car Rental, she used her Housing Authority credit card. On May 4, 1995, after returning the Payless rental vehicle and renting a vehicle from National Car Rental, Respondent returned the Housing Authority credit card that had been issued in her name. Mr. Dixon never authorized Respondent to keep the Payless rental vehicle for more than the one day. Furthermore, Respondent neither sought nor obtained approval from Mr. Dixon or anyone else connected with the Housing Authority to rent a vehicle from National Car Rental on or after May 4, 1995. Moreover, there were no Housing Authority matters that required Respondent to rent a car for the period between April 28 through May 4, 1995, and any time period subsequent thereto. On June 5, 1995, the Housing Authority received a bill from Visa for charges incurred by Respondent for renting a vehicle from Payless Car Rental. The cost for Respondent's renting the Payless vehicle from April 27 through May 4, 1995, was $296.61. This total amount was charged to the Visa credit card issued by the Housing Authority to Respondent in her name. It was only after this bill was received by the Housing Authority did Mr. Dixon learn that Respondent had kept the Payless vehicle for one week, rather than the one day that he had authorized. On June 6, 1995, Mr. Dixon wrote a letter to Respondent asking her to reimburse the Housing Authority $288.70, the part of the total bill that was not attributable to Housing Authority business. In response to the letter, Respondent made partial reimbursement to the Housing Authority in the amount of $200 on June 23, 1995. Respondent fully reimbursed the Housing Authority for the Payless car rental on July 10, 1995, when she remitted $100 to the Housing Authority. Upon payment of the $100, Mr. Dixon's secretary, Marion White, told Respondent that she had overpaid by $11.30 the amount owed to the Housing Authority. Respondent then directed Mrs. White to "just hold on to" the balance. Approximately two weeks after Respondent fully reimbursed the Housing Authority for the Payless car rental, the Housing Authority received a bill from Visa, dated July 28, 1995. This Visa bill reflected charges of $188.84 incurred at National Car Rental that had been made on Respondent's Housing Authority credit card. Several days later, in a courtesy reminder dated July 31, 1995, Visa notified the Housing Authority that the credit limit on Respondent's credit card had been exceeded. The courtesy notice showed additional billing to the account of $997 from National Car Rental. Within a few days, the Housing Authority received a bill for additional charges of $214.99 from National Car Rental that had been made on Respondent's credit card. Respondent charged a total of $1,400.94 to her Housing Authority credit card for the National car rental. This amount represents the cost for Respondent's renting a vehicle from National Car Rental for approximately eighty (80) days. As of the date of the final hearing, Respondent had not reimbursed the Housing Authority for the National Car Rental bill. On or about July 4, 1995, Respondent signed up for membership in National Car Rental's "Emerald Club." Membership in the Emerald Club was available to individuals who had been or were customers of National Car Rental. Emerald Club members were entitled to discounts and express service, and were required to have a primary credit card number listed with National Car Rental. Because prospective Emerald Club members had been or were customers of National Car Rental, the primary credit card number could be obtained from the company's computer system based on credit card information acquired during prior transactions. On May 4, 1995, when Respondent initially rented a vehicle from National Car Rental, she used her Housing Authority credit card. Thereafter, Respondent's Housing Authority credit card number appeared in National Car Rental's computer system and was listed as the primary credit card for Respondent's Emerald Club membership. Respondent never used a personal credit card when she rented a vehicle from National Car Rental. The expenses incurred by Respondent as a result of renting a vehicle from National Car Rental were never billed to any credit card other than her Housing Authority credit card. Also, upon returning the vehicle rented from National Car Rental, Respondent never paid a sufficient amount in cash to prevent a balance from being billed to her Housing Authority credit card. There is no dispute that Respondent incurred the charges for car rental from National Car Rentals. In fact, at a meeting held in late July 1995, and attended by Mr. Owens, the Mayor of Riviera Beach, a Housing Authority Commissioner, the attorney for the Housing Authority Board, and a Palm Beach Sheriff's deputy, Respondent admitted that she had rented a vehicle from National Car Rental. It was during this meeting that Respondent first divulged that she was a confidential informant. According to Respondent, she had been using the car rented from National in connection with her work as an informant. However, Respondent indicated that she had paid the bills incurred as a result of the National Car Rental expenses. Despite this representations, Respondent never provided documentation that she made such payments. Prior to the meeting held in late July 1995, no one connected with the Housing Authority knew that Respondent has worked as a confidential informant. Likewise, neither Mr. Dixon nor anyone associated with the Housing Authority ever authorized Respondent to use the Housing Authority credit card for such purpose. After Respondent stated that she was using the Housing Authority credit card in her work as a confidential informant, Respondent was told that such use was improper. Nonetheless, Respondent kept the car rented from National Car Rental for several more days. Moreover, Respondent allowed these as well as the other National Car Rental expenses to be charged to her Housing Authority credit card. When Respondent returned the car to National Car Rental, because she did not pay the bill, the car rental expenses were billed to and, eventually, paid by the Housing Authority. Respondent's use of the Housing Authority credit card for car rental for personal use or travel, or for work as a confidential informant or any other private employment is contrary to the mission and public purpose of the Housing Authority. On August 4, 1995, the Board rescinded Respondent's authorization for future travel related to the Housing Authority due to her misuse of Housing Authority resources. At this meeting, Respondent again told Commissioners of the Board that she had paid the National Car Rental bills. However, again, no documentation supporting this claim was presented by Respondent. The Palm Beach County Sheriff's Office never directed nor required Respondent to rent a vehicle to conduct her work as a confidential informant. In cases where the Palm Beach Sheriff's Office determines that it is necessary for an informant to have a rental car, that agency must give prior approval for such rental. Also, any costs associated with such an authorized and approved car rental are paid by the Palm Beach County Sheriff's Office.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Final Order and Public Report be entered by the Florida Commission on Ethics finding that Respondent, Delphine Gissenter, violated Section 112.313(6), Florida Statutes, and imposing a civil penalty of $3000; issuing a public censure and reprimand; and requiring restitution to the Riviera Beach Housing Authority in the amount of $1400.94. DONE AND ENTERED this 29th day of December, 1997, in Tallahassee, Leon County, Florida. CAROLYN S. HOLIFIELD Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 Filed with the Clerk of the Division of Administrative Hearings this 29th day of December, 1997. COPIES FURNISHED: Virlindia Doss Assistant Attorney General Attorney's General's Office The Capitol, Plaza 01 Tallahassee, Florida 32399-1050 Kerrie Stillman Complaint Coordinator Florida Commission on Ethics Post Office Box 15709 Tallahassee, Florida 32317-5709 James Green, Esquire One Clearlake Centre, Suite 1503 250 Australian Avenue West Palm Beach, Florida 33401 Bonnie Williams Executive Director Florida Commission on Ethics Suite 101 2822 Remington Green Circle Post Office Drawer 15709 Tallahassee, Florida 32317-5709 Phil Claypool, General Counsel Florida Commission on Ethics Suite 101 2822 Remington Green Circle Post Office Drawer 15709 Tallahassee, Florida 32317-5709
The Issue Did Respondent, Robert Skidmore, III, violate section 112.313(6), Florida Statutes (2011),1/ by using his position as county commissioner to ask a county staff member to approve a zoning application for Beach Road Boutique? Did Mr. Skidmore violate section 112.313(6) by asking a county employee to look for and selectively enforce code violations against J.J.'s Restaurant?
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: At all times relevant to this proceeding, Mr. Skidmore was a Charlotte County commissioner. Beach Road Boutique Zoning Scott and Jill Hemmes, constituents of Mr. Skidmore, owned a business known as Beach Road Boutique in Charlotte County. They sought to obtain a state alcoholic beverage sales license. In order to obtain a license, the applicant must demonstrate local zoning approval. Charlotte County Commission employees enforce and apply zoning regulations in the county. Erin Mullen-Travis is the licensing manager for Charlotte County Planning and Development. During 2011, she was the code compliance and licensing manager. Ms. Mullen-Travis has worked for Charlotte County over 26 years. One of Ms. Mullen-Travis's duties as code compliance and licensing manager was the review and approval of the zoning requirements on applications of establishments wanting alcoholic beverage licenses. Ms. Mullen-Travis first denied the zoning application of Beach Road Boutique on February 17, 2011. Mr. and Ms. Hemmes sought Mr. Skidmore's assistance getting approval for their zoning application. Mr. Skidmore called Ms. Mullen-Travis about the application. Mr. Skidmore told Ms. Mullen-Travis that he had some nice people in his office and that he needed help getting zoning approval for them. In her 26 years of employment with Charlotte County, Mr. Skidmore was the only county commissioner who had ever directly sought her assistance with constituent matters. Other commissioners had always gone through the chain-of-command. He identified the applicant, and Ms. Mullen-Travis explained why the zoning had not been approved. Ms. Mullen-Travis felt intimidated by Mr. Skidmore. Mr. Skidmore, however, did not threaten Ms. Mullen-Travis or explicitly offer any reward available to him because of his position as county commissioner. He did, however, implicitly offer a reward, if she helped the Hemmes. It is common knowledge in Charlotte County that Ms. Mullen-Travis is a NASCAR fan. Among other things, she drives a car with Dale Earnhardt and NASCAR badges and decals. During the call, Mr. Skidmore asked Ms. Mullen-Travis about her affinity for NASCAR. He also offered to get her an autographed photo of Rusty Wallace (a NASCAR driver) and tickets to a race. He told her that he had gone to school with Rusty Wallace's son. This is true. And Ms. Mullen-Travis could not have known it without Mr. Skidmore telling her. Given the context, Ms. Mullen-Travis accurately considered that the tickets and photo were offered in exchange for her approval of the application to the benefit of the Hemmes. Also, the call was made in Mr. Skidmore's official capacity. Charlotte County has a Home Rule Charter (Charter). Section 2.3(A)(1) of the Charter makes the county administrator responsible for all administrative matters and operations. Section 2.3(C)(1) states: "Except for purposes of inquiry and information, the members of the board of county commissioners shall not interfere with the performance of the duties of any employee of the county who is under the direct or indirect supervision of the county administration." Also, the long-established practice was for commissioners to only contact agency directors. Mr. Skidmore's call to Ms. Mullen-Travis was contrary to the Charlotte County Charter and the practice under it. Therefore, it was not an authorized act pursuant to his duties or authorities as a county commissioner. Mr. Skidmore and Ms. Mullen-Travis were the only participants in the call. He denies the conversation. Ms. Mullen-Travis's account is more credible. This is based upon her contemporaneous communications about the call, the common recollection of all witnesses of a NASCAR component to the conversation, the fact that she could not otherwise have known Mr. Skidmore went to school with Rusty Wallace's son, the relative personal interests of the witnesses in the outcome of the proceeding, and the demeanor of the witnesses, particularly of Mr. Skidmore's. Shonna Jenkins worked as a contractor licensing investigator for Charlotte County for a little over seven years. She held that position in 2011 and reported to Ms. Mullen-Travis. Mr. Skidmore had obtained Ms. Jenkins cell phone number. He had a practice of calling her directly to check on contractor licensing matters. He also contacted Ms. Jenkins to ask her to approve the Beach Road Boutique zoning application. J.J.'s Restaurant After a meeting held on March 3, 2011, Mr. Skidmore flagged Ms. Jenkins down in the parking lot. He asked her to "do him a favor," and "go shut them [J.J.'s Restaurant] down. I want them out of this f**ing town." Mr. Skidmore wanted Ms. Jenkins to find code violations for J.J.'s Restaurant. Mr. Skidmore said that he would make sure that Ms. Jenkins got a pay raise or a pay grade increase for this. Either the ex-boyfriend or ex-husband of Mr. Skidmore's wife and father of her child had an interest in J.J.'s Restaurant. There was conflict between the two families. Mr. Skidmore had also requested the Charlotte County director of Growth Management, Jeff Ruggieri, to take code enforcement actions against J.J.'s Restaurant. Ms. Jenkins was intimidated and feared her job with the county was in jeopardy if she did not do as Mr. Skidmore asked. Ms. Jenkins reported the conversation to Ms. Mullen-Travis and Joanna Colburn, a licensing investigator, immediately afterwards. Ms. Jenkins was visibly upset and shocked. She also contemporaneously documented the incident. Ms. Jenkins is and has been frank about her dislike for Mr. Skidmore. This hostility, as well as the mental and emotional difficulties Ms. Jenkins suffered as a result of her employment and dealings with Mr. Skidmore, does not undermine her testimony. In light of the witnesses' demeanor and corroborating evidence, her testimony is credible. In addition, although evidence established Ms. Jenkins was taking several medications, the record does not indicate that the medications in any way affect a person's memory or veracity. Mr. Skidmore's requests to Ms. Jenkins and Mr. Ruggieri to act against J.J.'s Restaurant were in violation of the Charlotte County Charter and, therefore, not authorized acts pursuant to his duties or responsibilities as a county commissioner.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a final order and public report be entered finding that Respondent, Robert Skidmore, III, twice violated section 112.313(6) and that he be fined $5,000 for each violation for a total of $10,000, together with public censure and reprimand. DONE AND ENTERED this 27th day of February, 2015, in Tallahassee, Leon County, Florida. S JOHN D. C. NEWTON, II Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 27th day of February, 2015.
The Issue The issue addressed in this proceeding is whether Respondent's correctional officer's certification should be disciplined.
Findings Of Fact Linda S. Linton was certified by the Criminal Justice Standards and Training Commission on May 27, 1988, and was issued Certificate Number 11-87- 502-04. Respondent began her employment with the Department of Corrections as a Correctional Officer I at Calhoun Correctional Institution on May 27, 1988. She has continued in that position to the present. During her years with the Department, Ms. Linton received overall achieves performance standards ratings and has been rated as exceeding her standards in several specific categories. Her performance appraisals indicate that she excelled in the following areas: supervision of inmates in her area of responsibility; adherence to Department rules, regulations, policies and procedures; completion of all written reports and assignments in an accurate, concise and neat manner within specified time limits; maintenance of control of the inmate population through counseling and appropriate disciplinary actions; and completion of other related duties as assigned within specified time frames and according to supervisors' instructions. The comments of her supervisors indicate that Ms. Linton is considered to be a conscientious, dedicated, reliable and dependable employee. However, in 1990, she was suspended 120 days for the misdemeanor conviction which is the subject of this case. Other than the discipline imposed by the Department of Corrections, the misdemeanor conviction has not affected or impaired Respondent's ability to perform her duties as a correctional officer. The misdemeanor conviction in this case occurred after her licensure. However, the facts giving rise to the conviction occurred prior to her licensure as a correctional officer. Prior to her employment with the Department of Corrections, Ms. Linton worked as a clerk in the Post Office. The Post Office was located in the Fiesta Food Store at Mexico Beach, Florida. Beginning in early 1987, Ms. Linton's duties included assisting Janis Brownell, the senior clerk at the post office, in the postal unit, putting up mail, waiting on the postal window, operating the cash register, selling postage stamps and money orders to the public and accepting items for mailing. Isaac "Ike" Duren and his brother operated the Mexico Beach Branch Post Office for a monthly fee pursuant to a contract with the United States Postal Service. Mr. Duren also was and is a real estate broker. His brokerage office was located within a block of the Post Office. Ms. Linton had known the Duren family for approximately twenty years. She worked for Ike Duren's father at the convenience store for seven years prior to being hired by Ike Duren at the Post Office. Her pay was $2.35 per hour at the Post Office. While working full-time at the Post Office, Ms. Linton attended night school at Gulf Coast Community College for four hours a night, five nights a week. Ms. Linton attended school in order to obtain the necessary educational credentials to become certified as a correctional officer. On weekends, she practiced at the firing range to achieve the level of firearm proficiency required for certification. The Post Office generally maintained an inventory valued at around $5,000.00. The safe for the Post Office was located at the back of the area Mr. Duren provided for the Post Office. Those persons having access to the safe included Linton, Judy Hendricks, Janis Brownell, Ike Duren and his wife, as well as one or two employees of Duren's real estate office, Gulfaire Realty. On more than one occasion when she reported to work, Linton found that the safe had been left open overnight. The cash/stamp drawer containing stamps and money was located at the front of the Post Office. At night, the cash/stamp drawer was removed from the front of the Post Office and placed in the safe. The key to the drawer remained in the drawer during working hours. The drawer was never locked during either the day or night. The Post Office inventory was not audited when Linton began her employment. However, the inventory was apparently short at that time by about $50.00. It was common practice for Gulfaire Real Estate employees to take sheets or rolls of stamps from the Post Office and leave slips of paper in the drawer denoting the amount taken. On several occasions Ms. Linton saw two or three slips in the drawer. She had been advised to remove the slips if a postal inspector came to the Post Office. Janis Brownell handled the slips from the real estate office, ordered stamps and other supplies, and completed the daily worksheets. The daily worksheets showed the "running totals" of cash received and expended as well as inventory items received and sold to the public. These daily worksheets were sent to the Panama City Post Office. Either Judy Hendricks or Ms. Linton ordered inventory and completed the daily worksheets when Ms. Brownell could not. When Ms. Brownell could not be at the Post Office during regular working hours because of illness or death in her family, she would sometimes come in after hours to handle the ordering and accounting matters that Ms. Linton did not know how to do. Ms. Linton and Ms. Brownell discussed the shortage in the inventory/cash several times prior to late 1987 when Ms. Brownell performed an audit. The audit verified a shortage of approximately fifty dollars. Around Christmas time of 1987 Ms. Linton and Ms. Brownell discussed the possible need to notify the postal inspectors so that they could audit the post office. Ms. Linton does not know whether Ms. Brownell discussed the shortage with Mr. Duren. Ms. Linton did not tell Mr. Duren of the shortage at that time since it was Ms. Brownell's duty to inform Mr. Duren. Eventually, however, Mr. Duren became aware of the shortage in the Post Office. In February, 1988, at Duren's request, two postal inspectors audited the Mexico Beach Post Office. The audit revealed a shortage of $2,545.69 in the $5,000 inventory for which the contract unit was accountable. Upon questioning by the postal inspectors, Ms. Linton admitted that she had occasionally taken small amounts of money from postal funds in the cash/stamp drawer to purchase cokes or cookies at the convenience store. She believed such actions to be common practice and did not intend to steal any money since she intended to pay the money back when she left employment with Mr. Duren. She did not know the total amount she had taken. The postal inspectors prepared a statement for Linton to sign which estimated $600 as the amount of money she had taken. The postal inspectors told Ms. Linton that she could avoid prosecution if she made restitution for the total shortage and signed the statement they had prepared. She voluntarily signed a statement acknowledging that she had taken approximately $600.00 from the contract Post Office for her own use, without returning same. She told the inspectors as well as Mr. Duren that she had not taken the amount they estimated or the much larger total shortage of $2,545.69. However, she agreed to pay the entire amount of the shortage to Mr. Duren in order to put the matter behind her and move on to finishing her certification requirements. Ms. Linton agreed to the settlement as stated by the postal inspectors and signed papers which she thought satisfied all matters with the Postal Service. Both Respondent and Mr. Duren understood that if Respondent repaid the amount of the shortage ($2,545.69), the Postal Service would take no further legal action against her. As the postal contractor ultimately responsible for the postal contract, Mr. Duren immediately paid the Postal Service the entire amount of the shortage. Mr. Duren withheld Ms. Linton's last paycheck and applied it to the total she owed him of $2,545.69. Additionally, on March 21, 1988, Ms. Linton paid Mr. Duren $900.00 towards repayment of the shortage. Mr. Duren had kept in contact with the Postal Service "every so often" to inform them whether Ms. Linton had made full restitution. On May 19, 1988, a postal inspector came to Ms. Linton's house, showed her his badge identifying himself as a "Postal Inspector," and told her she had to pay full restitution that day or be taken to jail. She unsuccessfully attempted to borrow the amount of the shortage remaining unpaid. 1/ Ms. Linton could borrow only $1,000.00 from her brother-in-law Johnny D. Linton. Johnny D. Linton had borrowed the $1,000.00 on his signature at Northwest Finance in Port Saint Joe. Ms. Linton told the postal inspector that she had tried to obtain the entire amount she owed but could not get all of it. She gave the inspector the $1,000 and received a receipt for the payment. The postal inspector, who had apparently been in contact with Mr. Duren, told Linton she had to "work out something" with Mr. Duren for the remainder of the shortage. Following her conversation with the postal inspector, Ms. Linton drove to the real estate office to talk with Mr. Duren about the balance she owed after the $1,000.00 payment. The postal inspector, who drove in his own car, arrived at the real estate office after Ms. Linton and gave Mr. Duren the $1,000.00 payment. Mr. Duren told Ms. Linton that the postal inspector was waiting for his acknowledgment that the matter of restitution had been settled. To settle the matter, Ms. Linton signed a promissory note in the amount of $1,161.50 that Mr. Duren had prepared. The amount of the promissory note was calculated by Mr. Duren and was purported to be the balance Linton owed on the $2,545.59 shortage, after she had paid her last paycheck and $1,900. Added to the shortage were Mr. Duren's attorney's fees. Again, the figures used by Mr. Duren, did not add up to the shortage amount plus a reasonable attorney's fee. In addition to the promissory note, Duren's attorney, Tom Gibson, had prepared a mortgage for Linton's signature. The mortgage referred to an "Exhibit A" where the property description would ordinarily have been. Exhibit A was either not attached to the mortgage or Respondent did not look at it when she signed the mortgage. Ms. Linton understood that the mortgage referred to the property on which her home was built, Lots 8, 9 and 12 in Bay View Heights. She also understood that the mortgage would not "have to come into effect" since she signed the promissory note. Unknown to Respondent, Exhibit A mortgaged Lots 8, 9 and 12; and Lots 7, 10 and 16, Block F, in Bay View Heights. All of Respondent's property was also owned by her husband as tenants by the entirety. Her husband did not sign the mortgage and the mortgage was invalid as a lien against the property and particularly invalid against the homestead property. 2/ Ms. Linton owned no property apart from the property she and her husband owned jointly. Mr. Duren knew Ms. Linton was married, knew her husband, knew where their home was built, and knew the approximate value of lots in Bay View Heights. Mr. Duren was a real estate broker but did not obtain the husband's signature or verify in any way that the husband's signature was not needed on the mortgage he obtained from Respondent. 3/ Ms. Linton and her husband had purchased Lot 16, Block F from Quality Services, Inc., in Marianna under an agreement for deed and were making monthly payments on the Lot. Lot 7, Block F had two $35,000 mortgages on it, one to AVCO Financial Services and the other to Citizens Federal. Lot 10, Block F had no mortgage on it. The Lintons built a house in 1986 on Lots 8, 9 and 12 to replace their house that had burned in 1985. On November 24, 1987, the new house was appraised at $100,000. They attempted to mortgage the house and property to AVCO Financial Services for $35,000. However, the mortgage was mistakenly placed on Lot 7. Subsequently, Citizens Federal repeated the AVCO mistake and placed a second mortgage for $35,000 on Lot 7 instead of on Lots 8, 9 and 12, as intended. The mistakes on lot identification were not discovered by the Lintons, AVCO or Citizens Federal until AVCO started to foreclose its mortgage. In an effort to clear title and place AVCO in the position it should have been in if the property description in AVCO's mortgage had been correct, the Lintons executed a quit claim deed on their home and lots 8, 9 and 12 on September 1, 1988, in lieu of foreclosure and corrected the prior mortgage error on Lot 7. On September 28, 1988, the Lintons deeded Lot 16 back to Quality Service in lieu of foreclosure. In connection with returning Lot 16 to the original owner, Respondent signed an Affidavit under oath, attesting that no mortgage or lien existed against Lot 16. At the time she signed the affidavit she believed there was no mortgage or lien existing on the property. Moreover, apart from her belief, Mr. Duren's mortgage was invalid as either a mortgage or a lien. Both legally and factually there was no mortgage or lien in existence on Lot 16 and Respondent is not guilty of any false statement or perjury. Therefore, the portions of the Administrative Complaint and amended Administrative Complaint relating to this affidavit should be dismissed. Ms. Linton had a number of financial difficulties and was unable to pay the $1,161.50 balance to Mr. Duren promptly. Mr. Duren wrote the postal inspector to encourage the Postal Service to criminally prosecute Ms. Linton and filed civil suit on the note against Ms. Linton. The civil suit resulted in a default judgment. Mr. Duren then wrote the superintendent at Calhoun Correctional Institution to tell him "what kind of employee he had" and to see if the superintendent would get Ms. Linton to make monthly payments on the default judgment he had obtained. On December 20, 1988, the Grand Jury issued an indictment charging Ms. Linton with knowingly converting to her own use public funds entrusted to the United States Postal System of a value in excess of $100.00 in violation of Title 18, United States Code, Section 641. Pursuant to this indictment, the federal court issued a warrant for her arrest. Ms. Linton was unaware of either the indictment or the warrant for her arrest until the United States Marshall's Office telephoned her and notified her that it had a felony warrant for her arrest. In response to this notice, Ms. Linton drove to Panama City to be arrested and was released. The following day Ms. Linton consulted her supervisor, Lieutenant Durham, and reported her arrest in a letter to the superintendent at Calhoun Correctional Institution. On June 29, 1989, the United States Attorney executed and filed an information that amended the charge against Ms. Linton to encompass a lesser period of time and a value of less than $100.00, thus, reducing the offense from a felony to a misdemeanor. Linton pled guilty to the charge as amended without going to trial. The United States District Court, Northern District of Florida, convicted her of violating the misdemeanor provision of Title 18, Unite States Code, Section 641, suspended her sentence and placed her on probation for a period of three years. Linton has voluntarily continued to pay restitution even though that was not a term of her sentence. Linton notified the Department of the proceedings in her case as they occurred. The evidence was neither clear nor convincing that Respondent committed any felony offense against either the U.S. Postal Service or Mr. Duren. The evidence did demonstrate that Petitioner committed the misdemeanor offense of petty theft. However, even with this conviction, given the underlying facts of this case, the evidence did not demonstrate that Respondent lacked good moral character or is dishonest or unfair. In fact, the unrebutted evidence from her peers is that she possesses good moral character and should be allowed to continue as a correctional officer. The portions of the Administrative Complaint and amended Administrative Complaint relating to this misdemeanor conviction should be dismissed.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is recommended that the amended Administrative Complaint filed against Linda S. Linton be dismissed. RECOMMENDED this 28th day of October, 1991, in Tallahassee, Florida. DIANE CLEAVINGER Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, FL 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 28th day of October, 1991.
The Issue Whether the after-the-fact permit sought by Petitioner for a single family dock that has been constructed within the Indian River Aquatic Preserve, Malabar to Vero Beach, should be granted and, if so, the conditions that should be imposed.
Findings Of Fact Petitioner, Richard O. Thomas, resides at 13845 North Indian River Drive, Sebastian, Florida. Mr. Thomas is the owner of this real property, which fronts the intracoastal waterway in an area that is referred to as the Indian River Aquatic Preserve, Malabar to Vero Beach (IRAP). Construction of docks in the IRAP requires a permit from Respondent pursuant to Section 253.77(1), Florida Statutes. A dock is presently built in front of Petitioner's property and is within the IRAP. 1/ Petitioner began applying for a permit from Respondent to construct a single-family private dock in front of his property to extend into the IRAP in April of 1987. The size of main access docks and terminal platforms are limited by Respondent primarily to protect the fragile environment found in aquatic preserves such as the light-sensitive sea grass beds and attached algae found in the vicinity of Petitioner's dock and to minimize the effect of the construction of these type facilities on those areas. Petitioner sent a drawing of the requested dock to the Florida Department of Environmental Regulation (DER) in April of 1987. DER thereafter forwarded a copy of the drawing to Respondent. The April 1987 drawing depicted a main access dock 200' long and 4' wide with a terminal platform in an ell shape to the south of the main access dock 16' wide and 10' long. The dock was to be elevated 4' in height with railings around the terminal platform. This drawing was not the drawing subsequently permitted by Respondent. In June 1987, Petitioner first learned that he needed, in addition to the other permits he was seeking, a permit from Respondent. After consulting Brian Poole, an Environmental Specialist employed by Respondent, Petitioner submitted a revised drawing to Respondent on June 25, 1987. This drawing, stamped "Revised" by Respondent, was forwarded to Wilbert Holliday, an Environmental Specialist Supervisor, in Respondent's Orlando office. The June 1987 drawing depicts a main access dock 200' long and 4' wide with an ell shaped terminal platform facing south that is 6' long and 10' wide. The main access dock did not extend the length of the terminal platform. Petitioner made numerous telephone calls between June 1987 and October 1988, to Mr. Poole and to Mr. Holliday in an effort to determine the status of his request and in an effort to have his request approved. In the interim, Petitioner received conflicting instructions from Respondent, the Army Corps of Engineers, and DER as to how long the dock would have to be. Respondent's staff wanted the dock to be 500' in length so that the boats that would be moored at the dock would not be crossing sea grass beds that were located closer to shore. Petitioner testified that he engaged in a series of telephone conversations with Mr. Holliday concerning the pertinent permitting requirements. Pursuant to conversations with Mr. Holliday, Petitioner submitted a written request on October 17, 1988, for permission to build a dock "... no longer than 210 feet, 5 feet above mean low water, and with 1/2 inch spaces between deck planks. The platform is to be no more that 6 feet by 10 feet. The draft of the boat is to be used is no more than 18 inches. " Between October 17 and October 20, 1988, Petitioner informed Mr. Holliday that the ell platform had to be moved from south of the main access dock to north of it due to the county's concern for his neighbor's riparian rights. During that same telephone conversation Mr. Holliday informed Petitioner that his staff was still recommending that the dock be 500 feet in length. On October 20, 1988, Petitioner wrote Mr. Holliday a letter which voiced his displeasure as to that recommendation and which provided, in part, as follows: ... I again respectfully request that the dock length be 210 ft. long with platform area 160 sq. ft. and the dock to be 4 ft. in height with spaces 3/8 inches (they will shrink to 1/2 inches.) If the 4 ft. is disallowed then I need a lower platform area to get in and out of my two boats. My wife is 5 ft. 2 in tall. If this isn't's going to fly then I have no other recourse than seek a third party opinion. At Petitioner's request, Mr. Holliday gave Petitioner the name and number of John Peterson, an environmental specialist in Respondent's Tallahassee office. Petitioner and Mr. Peterson engaged in a lengthy telephone conversation about Petitioner's application. At the conclusion of the conversation, Mr. Peterson asked Petitioner to submit his final plan and informed Petitioner that he would be back in contact with Petitioner. A day or two after that conversation, Mr. Holliday called Petitioner and requested that Petitioner send to him Petitioner's final plan. On October 27, 1988, Petitioner sent to Mr. Holliday what Petitioner considered to be his final plan depicting a main access dock 4' x 210' with a 12' x 12' covered ell platform facing north. This 12' by 12' area (or 144 square feet) is the area Petitioner considers to be the terminal platform. The main access dock extended the length of the terminal platform and added to the terminal platform an area 4' wide and 12' long (or 48 square feet). The main access dock and the terminal platform were to be 5' above mean low water. Two boat slips were requested with an adjacent catwalk 3.5' above mean low water. On November 14, 1988, Casey Fitzgerald, as Chief of Respondent's Bureau of Submerged Lands Management, sent Petitioner a letter that stated in pertinent part: You are hereby authorized to proceed with construction of a two-slip single-family dock as depicted on the attached drawing ... . This authorization is specifically conditioned upon the following: The proposed dock shall be elevated +5 feet above the ordinary water line with 3/8 inch spaces between deck planks. The terminal platform area shall be elevated +3 feet above the ordinary water line. Vessels to moor at the dock shall have a maximum running draft of 18 inches, and shall be operated in a manner that will minimize impacts to the grassbeds at the site; and The attached general consent conditions shall be accepted and complied with. 2/ Please consider this the conditional authority sought under Section 253.77, Florida Statutes, to pursue this project. The letter in no way waives the authority and/or jurisdiction of any governmental entity, nor does it disclaim any title interest that the State may have in this project site. We appreciate your cooperation with our resource management objectives, and apologize for the long delay. If you have and questions, please feel free to contact me. No drawing was attached to Mr. Fitzgerald's letter of November 14, 1988. Petitioner thereafter constructed the dock in accordance with the plan he submitted on October 27, 1988. Construction on the dock and covered terminal platform was concluded in approximately March of 1989. The as constructed dock deviated from the plan submitted on October 27, 1988, in that Petitioner added two lowered platforms approximately 3.5' x 12' each around the north and east ends of the terminal platform to be used for access to moored boats. Petitioner concedes that these platforms were not part of the drawing of October 27, 1988, and he has agreed to remove them. Respondent calculated that the square footage of the terminal platform is 351 square feet (19' wide and 19.5' long). Respondent's calculations included the two lowered platform areas that Petitioner has agreed to remove and the portion of the main access dock that extends the length of the terminal platform. Petitioner made a good faith effort to follow the instructions of Respondent and to comply with the appropriate permitting procedure. He relied in good faith on the letter of November 14, 1988, and he reasonably assumed that the October 27, 1988, drawing was the one referred to in the November 14, 1988, letter. Mr. Fitzgerald did not testify at the formal hearing. The greater weight of the evidence establishes that Mr. Fitzgerald, as the bureau chief, had greater authority in permitting matters than did either Mr. Holliday or Mr. Poole. While there is no question that Petitioner was permitted to construct a dock, there is no direct evidence as to which of the several drawings Petitioner submitted had been approved by Mr. Fitzgerald. Mr. Holliday did not recall having sent the October 27, 1988, drawing to Mr. Fitzgerald. After Mr. Peterson and Mr. Fitzgerald became involved in Petitioner's application, it is not clear what involvement Mr. Holliday had, other than to ask Petitioner to submit his final plan. It is clear that Mr. Fitzgerald had information pertaining to Petitioner's application available to him when he wrote Petitioner on November 14, 1988. The most reasonable inference 3/ to be drawn from the evidence is that Mr. Fitzgerald had for his review Petitioner's complete application file, including the drawing submitted October 27, 1988, and it was to the drawing of October 27, 1988, that his letter referred. The next contact between Petitioner and Respondent occurred June 1, 1990, when an inspection team from Respondent's field office, including Mr. Poole, visited the site and met with Petitioner. During this visit, Mr. Poole observed that the sea grass that had been visible before the dock was built had died and that underneath the structure was now white sand. Mr. Poole wrote a letter to Petitioner dated June 14, 1990, which asserted Respondent's understanding of an agreement reached during the on-site meeting of June 1, 1990, 4/ and provided, in pertinent part, as follows: The terminal platform area will be reduced to no more than 160 square feet. This will require the removal of all the catwalks and reducing the ell-shaped platform area to 10' x 16' or any other shape so long as the size does not exceed 160 square feet. The resulting terminal platform may be lowered to a height of +3 feet above the ordinary water line to facilitate ingress and egress from the two vessels. The roof over the platform will be removed. ... It is our position that the roof is inconsistent with Chapter 18-20, FAC, and the adopted Indian River Malabar to Vero Beach Aquatic Preserve Management Plan. Section 18-20.004(5)(a)(2) provides for more restrictive modification for docks that fall within areas of special or unique importance, such as extensive seagrass beds. Section 18- 20.004(1)(f) requires that the structure be necessary to conduct water dependent activities, a roof over the platform is not necessary to access the water. ... * * * 6. You agreed to comply with the above requirements within 60 days. Your receipt of this letter will initiate the 60 day time clock. The letter of June 14, 1990, also discussed the requirement that Petitioner remove a boat hoist and that he not moor a commercially registered vessel at the dock. These two matters were resolved by the parties and were not at issue at the formal hearing. On October 24, 1990, James M. Marx, an Environmental Administrator with Respondent's Bureau of Submerged Lands and Preserves, sent a letter which advised that modifications to the dock in accordance with the letter of June 14, 1988, including removal of the roof, must be completed within thirty days of his receipt of the letter and that failure to do so will result in action that may result in removal of the entire structure. On December 26, 1990, Petitioner filed an application seeking approval of the dock as constructed less the two platforms he had agreed to remove. After the removal of the two platforms, the dock will be substantially in compliance with the drawing submitted by Petitioner on October 27, 1988. On April 4, 1991, Michael E. Ashey, as Chief of Respondent's Bureau of Submerged Lands and Preserves, advised Petitioner by letter that his after-the- fact permit application was denied on the following grounds: 1. Section 18-20.004(5)(b)(6) (sic), Florida Administrative Code, states in pertinent part: "terminal platform size shall be no more than 160 square feet." The existing structure has a terminal platform area of 392 square feet. 2. Section 18-20.004(5)(b)(1) (sic), Florida Administrative Code, limits the width of the main access walkway to 4 feet. The existing structure includes a main access walkway and a 3' x 42'11" catwalk adjacent to the walkway. The combined width of the access walkway structure exceeds the 4' width limit of the rule. 3. Section 18-20.004(1)(f), Florida Administrative Code, states in pertinent part: "that activities shall be designed so that the structure or structures to be built in, on or over sovereignty lands are limited to structures necessary to conduct water dependent activities." The existing roof is not a necessary component to a water dependent activity. All three of the deviations raised by Mr. Ashey's letter of April 4, 1991, were reflected on the drawing that Petitioner submitted to Mr. Holliday on October 27, 1988. Petitioner understood that the terminal platform could not exceed 160 square feet. Petitioner believed that the terminal platform consisted only of the 12' x 12' platform that was attached to the main access dock. Petitioner did not understand that the 4' width of the adjacent main access dock would be included in calculating the square footage of the terminal platform, nor did he understand that the two unauthorized platforms (which did not appear on his final plans of October 27, 1988) would be included in calculating the terminal platform. The term "terminal platform" is not defined by rule. By internal memorandum, to which Petitioner did not have access, a "terminal platform" is considered to be that portion of the dock which is wider than the main access dock, generally at the terminus of the dock, and the area where boats are generally moored. Neither Mr. Poole, Mr. Holliday, Mr. Fitzgerald, or Mr. Peterson has the authority to permit the construction of a dock which contains the design of a terminal platform in excess of 160 square feet. Mr. Holliday and Mr. Poole testified that Respondent does not mark approved plans "approved" before returning the plans to the file so there is no way to distinguish preliminary plans from approved or permitted plans. There is no plan in Respondent's files pertaining to Petitioner's application marked "approved" or "permitted". On November 18, 1988, the date of Mr. Fitzgerald's letter to Petitioner, Mr. Fitzgerald served as the Bureau Chief, Department of Submerged Lands and Aquatic Preserves in Respondent's Tallahassee office. Mr. Holliday served as the Planning Manager of the East Central Florida field office located in Orlando. Mr. Poole served as an Environmental Specialist out of the Respondent's Melbourne office. The letter of November 14, 1988, was not routed through either Mr. Holliday or Mr. Poole. Petitioner and other members of his family, including his mother, his aunt, and his uncle have had skin cancers in the past. Young children and babies use the dock for recreational purposes during the day. Petitioner had not, prior to the construction of the structure, discussed his desire to have the terminal platform covered with either Mr. Poole or Mr. Holliday. The first drawing reflecting that the platform would be covered was the drawing of October 27, 1988. The roof on the dock would offer those using the dock during the day protection from the sun. Respondent has permitted at least two other docks located within an aquatic preserve that were roofed. Respondent is opposed to permitting the roof because of the shading that results from a solid structure. Neither Mr. Poole nor Mr. Holliday would have permitted the dock pursuant to the drawing of October 27, 1988, because neither believed the dock to be in compliance with his interpretation of the permitting requirements found in Chapter 18-20, Florida Administrative Code.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a Final Order be entered which requires that Petitioner remove the two lowered platforms on the north and east ends of the terminal platform within sixty days of the entry of the Final Order. It is further recommended that the Final Order find that the after the fact application submitted by Petitioner on December 26, 1990, is consistent with the authorization granted by the letter issued by Mr. Casey Fitzgerald on November 14, 1988. It is further recommended that the Final Order grant the after the fact application submitted by Petitioner on December 26, 1990. DONE AND ENTERED this 31st day of January, 1992, in Tallahassee, Leon County, Florida. CLAUDE B. ARRINGTON Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 31st day of January, 1992.
The Issue The issue is whether Petitioner has a disability (handicap), and, if so, was denied a reasonable accommodation for his disability by Respondents, in violation of the Florida Fair Housing Act (FFHA), as amended.
Findings Of Fact The record in this discrimination case is extremely brief and consists only of a few comments by Mr. Homer, cross- examination by Respondents' counsel, and Respondents' exhibits. Petitioner resides at Golfside Villas, a condominium complex located in Winter Park, Florida. At hearing, Petitioner asserted that he suffers from a disability, narcolepsy, but he offered no competent evidence to support this claim. Thus, he does not fall within the class of persons protected against discrimination under the FFHA. Golfside is the condominium association comprised of unit owners that is responsible for the operation of the common elements of the property. Hara is the corporate entity that administers the association, while Mr. Michaud, a Hara employee, is the community manager. In September 2016, Mr. Homer became involved in a dispute with Golfside over late fees being charged to his association account and issues concerning ongoing repairs for water damage to his unit that were caused by flooding several years earlier. Because some of his telephone calls were not answered by "Lorie" (presumably a member of management staff), on September 23, 2016, Mr. Homer sent an email to Mr. Michaud, the community manager, expressing his displeasure with how his complaints were being handled. He also pointed out that "I have a disability." The email did not identify the nature of the disability, and it did not identify or request an accommodation for his alleged disability. There is no evidence that Respondents knew or should have known that Mr. Homer had a disability or the nature of the disability. Also, there is no evidence that narcolepsy is a physical impairment "which substantially limits one or more major life activities" so as to fall within the definition of a handicap under the FFHA. See § 760.22(7)(a), Fla. Stat. Here, Petitioner only contends that at times it causes him to speak loudly or yell at other persons. As a follow-up to his email, on September 26, 2016, Mr. Homer spoke by telephone with Mr. Michaud and reminded him to look into the complaints identified in his email. If a request for an accommodation ("work with me") was ever made, it must have occurred at that time, but no proof to support this allegation was presented. Mr. Homer acknowledged that he was told by Mr. Michaud that in the future, he must communicate by email with staff and board members rather than personally confronting them in a loud and argumentative manner. On September 26, 2016, Mr. Michaud sent a follow-up email to Mr. Homer informing him that he must "work with my staff, without getting loud or upset, no matter how frustrated you may be at the time." The email also directed staff to answer Mr. Homer's questions regarding repairs for water damage to his unit, to "look into some late charges on his account," and to "work with Mr. Homer to help him get both his unit and his account in order." On November 15, 2016, Mr. Homer filed his Complaint with the FCHR alleging that on September 26, 2016, Golfside, Hara, and Mr. Michaud had violated the FFHA by "collectively" denying his reasonable accommodation request. Later, a Petition for Relief was filed, which alleges that Gulfside and Hara (but not Mr. Michaud) committed the alleged housing violation. However, the findings and conclusions in this Recommended Order apply to all Respondents.
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, with prejudice. DONE AND ENTERED this 14th day of December, 2017, in Tallahassee, Leon County, Florida. S D. R. ALEXANDER 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 14th day of December, 2017. COPIES FURNISHED: Tammy S. Barton, Agency Clerk Florida Commission on Human Relations Room 110 4075 Esplanade Way Tallahassee, Florida 32399-7020 (eServed) John Homer Unit 609 1000 South Semoran Boulevard Winter Park, Florida 32792-5503 Candace W. Padgett, Esquire Vernis & Bowling of North Florida, P.A. 4309 Salisbury Road Jacksonville, Florida 32216-6123 (eServed) Cheyanne M. Costilla, General Counsel Florida Commission on Human Relations 4075 Esplanade Way, Suite 110 Tallahassee, Florida 32399-7020 (eServed)
The Issue The issue is whether Respondents committed an act of discrimination based upon familial status against Petitioners in violation of the Florida Fair Housing Act.
Findings Of Fact Petitioners own Unit L-105 at The Collins, located at 6917 Collins Avenue, Miami Beach, Florida 33141. Petitioners have a three-year-old daughter who resides with them and claim membership, for purposes of alleging discrimination under the Florida Fair Housing Act, in the class of familial status. Petitioners have exclusive use of their private patio, a limited common element, adjacent to their ground floor unit, subject to the terms and conditions, as well as the rules of the Association. This patio is in close proximity to the Association’s ungated common swimming pool. Unlike most of the condominiums on floors above the pool area, Petitioners’ unit does not have a glass protective barrier on their patio, or any barrier whatsoever installed outside their unit by the Association. All of the units located above Petitioners’ unit that have balconies that are raised from the pool’s surface in heights varying between the second floor and many floors above, without a glass barrier at the end of the balconies, would have a significant and dangerous drop to the pool level for anyone stepping over the edge. Petitioners owned Unit L-105 for 13 years before having a daughter, now three years old, which changed their status to familial for the past three years. Petitioners sought to have the Association allow them to install a glass barrier between their patio and the ungated pool in order to end their claim of discrimination based upon familial status and protect their daughter from accidentally falling into the pool if left unattended on the patio. Respondents refused to install or allow the installation of a glass barrier on Petitioners’ patio, citing that it would not conform with the rules and regulations of the condominium association concerning the common elements of the condominium. Petitioners installed what they called a “temporary” fence around their patio. The fence involved the drilling of holes into the concrete surface of the pool deck and installing posts and netting into the holes to create a fencelike barrier. Claiming this was not approved and not in conformance with the rules and regulations for the common elements of the condominium, the Association brought in workers who removed the fence, the posts, and filled in the holes that had been drilled into the concrete. The Association billed Petitioners $1,200 for having the removal and repair work done for the unapproved installation of the fence. At some point, after the fencing had been removed, Petitioners moved out of their condominium unit, but remain the owners of it. At the time of the hearing, Petitioners had pending in circuit court an action regarding the pool fence. No further details were given regarding the nature of the action and relief sought. Mr. Riveiro testified that he and his wife are willing to bear the cost, including any needed permits, parts, labor, and inspections for installing a temporary fence that will protect their daughter from accidentally falling into the pool. Mr. Blanco, the Association’s board president, who has served on the board of the Association for 15 or more years, testified that, during his tenure, the board has never discriminated against persons for any reason, including based upon their familial status. Respondents offered several solutions to Petitioners, including allowing a temporary fence that could be easily removed, but did not involve drilling holes in the common area of the pool deck. According to the local code enforcement officials, all that is required for garden or pool level doors that open to an “ungated pool” are door alarms to alert the occupants when the door is opened from inside or out. Mr. Riveiro testified that he could not use door alarms and keep his doors open to enjoy the breeze and fresh air because, after a time, the alarms sounded to remind the occupants the door has been left open. Because of this, Petitioners were not satisfied with setting up an internal fence that would keep their daughter from running out the door. An internal fence was superfluous since always keeping the doors closed avoids the need for a fence, but restricts Petitioners full use and enjoyment of their unit. If the residents wanted fences to be installed on the pool level, they would have to be uniform in design and function. Because this would be considered a material alteration to the common elements, 75 percent of the unit owners would have to vote in favor of such a change. A material alteration to the common elements was neither requested by Petitioners nor voted upon by the Association’s unit owners upon request from any individual, family, or the Association board itself.
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 Respondents not liable for housing discrimination and dismissing Petitioners’ Petition for Relief. DONE AND ENTERED this 22nd day of April, 2021, in Tallahassee, Leon County, Florida. S ROBERT S. COHEN Administrative Law Judge 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 22nd day of April, 2021. COPIES FURNISHED: Tammy S. Barton, Agency Clerk Florida Commission on Human Relations 4075 Esplanade Way, Room 110 Tallahassee, Florida 32399-7020 Darrin Gursky, Esquire Gursky Ragan, P.A. 141 Northeast 3rd Avenue Miami, Florida 33132 Cheyanne Costilla, General Counsel Florida Commission on Human Relations 4075 Esplanade Way, Room 110 Tallahassee, Florida 32399-7020 Fernando Riveiro 14838 Southwest 35th Street Davie, Florida 33331 Mayelin Perez 4495 Southwest 67th Terrace, No. 207 Davie, Florida 33314
The Issue The issue in this case is whether Respondent unlawfully discriminated against Petitioner because of handicap in violation of the Florida Fair Housing Act.
Findings Of Fact At all relevant times, Petitioner Shelley M. Wright ("Wright") was a graduate student at Florida International University ("FIU") in Miami, Florida. Wright has a physical disability that affects her mobility, and, as a result, she uses a wheelchair or scooter to get around. There is no dispute that Wright falls within a class of persons protected against discrimination under the Florida Fair Housing Act ("FFHA"). Respondent Servitas Management Group, LLC ("SMG"), manages Bayview Student Living ("Bayview"), a privately owned student housing community located on FIU's campus. Bayview's owner, NCCD — Biscayne Properties, LLC, leases (from FIU) the real estate on which the project is situated. Bayview is a recently built apartment complex, which first opened its doors to students for the 2016-2017 school year. On November 20, 2015, Wright submitted a rental application for a single occupancy efficiency apartment in Bayview, fitted out for residents with disabilities. She was charged an application fee of $100.00, as were all applicants, plus a "convenience fee" of $6.45. Much later, Wright would request that SMG refund the application fee, and SMG would deny her request, although it would give her a credit of $6.45 to erase the convenience fee on the grounds that it had been charged in error. Wright complains that this transaction was tainted with unlawful discrimination, but there is no evidence of such, and thus the fees will not be discussed further. Wright's application was approved, and, accordingly, she soon executed a Student Housing Lease Contract ("First Lease") for a term commencing on August 20, 2016, and ending on July 31, 2017. The First Lease stated that her rent would be $1,153.00 per month, and that the total rent for the lease term would be $12,683.00. Because Wright was one of the first students to sign a lease, she won some incentives, namely $500.00 in Visa gift cards and an iPad Pro. The First Lease provided that she would receive a $200.00 gift card upon lease execution and the balance of $300.00 upon moving in. As it happened, Wright did not receive the gift cards in two installments, but instead accepted five cards worth $500.00, in the aggregate, on August 20, 2016. There were two reasons for this. One was that SMG required lease holders to appear in-person to take possession of the gift cards and sign a receipt acknowledging delivery. Wright was unable (or unwilling) to travel to SMG's office until she moved to Miami in August 2016 to attend FIU. The other was that SMG decided not to use gift cards as the means of paying this particular incentive after integrating its rent collection operation with FIU's student accounts. Instead, SMG would issue a credit to the lease holders' student accounts in the amount of $500.00. Wright, however, insisted upon the gift cards, and so she was given them rather than the $500.00 credit. Wright has alleged that the untimely (or inconvenient) delivery of the gift cards constituted unlawful discrimination, but the evidence fails to sustain the allegation, which merits no further discussion. In May 2016, SMG asked Wright (and all other Bayview lease holders) to sign an amended lease. The revised lease made several changes that SMG called "improvements," most of which stemmed from SMG's entering into a closer working relationship with FIU. (One such change was the aforementioned substitution of a $500.00 credit for gift cards.) The amended lease, however, specified that Wright's total rent for the term would be $13,836.00——an increase of $1,153.00 over the amount stated in the First Lease. The explanation was that, in the First Lease, the total rent had been calculated by multiplying the monthly installment ($1,153.00) by 11, which did not account for the 12 days in August 2016 included in the lease term. SMG claimed that the intent all along had been to charge 12 monthly installments of $1,153.00 without proration (even though the tenant would not have possession of the premises for a full 12 months) and thus that the First Lease had erroneously shown the total rent as $12,683.00. As SMG saw it, the revised lease simply fixed this mistake. Wright executed the amended lease on or about May 10, 2016 (the "Second Lease"). Wright alleges that this rent "increase" was the product of unlawful discrimination, retaliation, or both. There is, however, no persuasive evidence supporting this allegation. The same rental amount was charged to all occupants of the efficiency apartments, regardless of their disabilities or lack thereof, and each of them signed the same amended lease document that Wright executed. To be sure, Wright had reason to be upset about SMG's revision of the total rent amount, which was not an improvement from her standpoint, and perhaps she had (or has) legal or equitable remedies available for breach of lease. But this administrative proceeding is not the forum for redressing such wrongs (if any). Relatedly, some tenants received a rent reduction through the amended leases SMG presented in May 2016, because the rates were reduced therein for two- and four-bedroom apartments. As was made clear at the time, however, rates were not reduced on the one-bedroom studios due to their popularity. Wright alleges that she subsequently requested an "accommodation" in the form of a rent reduction, which she argues was necessary because she leased a more expensive studio apartment, not by choice, but of necessity (since only the one- bedroom unit met her needs in light of her disabilities). This claim fails because allowing Wright to pay less for her apartment than every other tenant is charged for the same type of apartment would amount to preferential treatment, which the law does not require. Wright makes two claims of alleged discrimination that, unlike her other charges, are facially plausible. She asserts that the handicapped parking spaces at Bayview are unreasonably far away for her, given her limited mobility. She further asserts that the main entrance doors (and others in the building) do not afford two-way automatic entry, and that as a result, she has difficulty exiting through these doors. The undersigned believes it is possible, even likely, that the refusal to offer Wright a reasonable and necessary accommodation with regard to the alleged parking situation, her problems with ingress and egress, or both, if properly requested, might afford grounds for relief under the FFHA. The shortcoming in Wright's current case is the absence of persuasive proof that she ever presented an actual request for such an accommodation, explaining the necessity thereof, for SMG's consideration. There is evidence suggesting that Wright complained about the parking and the doors, perhaps even to SMG employees, but a gripe, without more, is not equivalent to a request for reasonable accommodation. Determinations of Ultimate Fact There is no persuasive evidence that any of SMG's decisions concerning, or actions affecting, Wright, directly or indirectly, were motivated in any way by discriminatory animus directed toward Wright. There is no persuasive evidence that SMG denied a request of Wright's for a reasonable accommodation at Bayview. In sum, there is no competent, persuasive evidence in the record, direct or circumstantial, upon which a finding of any sort of unlawful housing discrimination could be made. Ultimately, therefore, it is determined that SMG did not commit any prohibited act.
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 SMG not liable for housing discrimination and awarding Wright no relief. DONE AND ENTERED this 27th day of September, 2017, in Tallahassee, Leon County, Florida. S JOHN G. VAN LANINGHAM Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 27th day of September, 2017.
