STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

FLORIDA COMMISSION ON HUMAN )

RELATIONS, )

)

Petitioner, )

)

and )

)

HYMAN TOBIN AND RUTH TOBIN, )

) Case No. 96-5569

Intervenors, )

)

vs. )

)

BURGUNDY I CONDOMINIUM )

ASSOCIATION, INC., )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, a formal hearing was held in this case in West Palm Beach, Florida, on April 7, 8, and 9, 1997, before Patricia Hart Malono, a duly-designated Administrative Law Judge of the Division of Administrative Hearings.

APPEARANCES

For Petitioner: Evelyn Davis Golden

Acting General Counsel

Florida Commission on Human Relations

325 John Knox Road Building F, Suite 240

Tallahassee, Florida 32303-4149

For Respondent: George W. Bush, Jr. Esquire

Walton Lantaff Schroeder & Carson 1645 Palm Beach Lakes Boulevard Suite 800

West Palm Beach, Florida 33401

STATEMENT OF THE ISSUES

Whether the Respondent committed a discriminatory housing practice as set out in the Notice of Determination: Cause and Issuance of an Administrative Charge dated August 27, 1996, and, if so, the relief that would be appropriate.

PRELIMINARY STATEMENT

In a Housing Discrimination Complaint dated February 22, 1995, Intervenors, Hyman and Ruth Tobin, charged the Burgundy I Condominium Association, Inc. ("Association"), with discrimination on the basis of physical handicap. The following was included in the "summary of what happened":

At King's Point, we have over 100 buildings with 24 units upstairs, and 24 units downstairs. Kings Point is a Senior Citizen Complex. Almost all the people living here, are 65 years old or older. Most of us are now handicapped one way or another, and have great difficulty going up or down the one flight of stairs. All our efforts to get a Wheel Chair Lift installed, have been blocked by our Association. We need your help desperately. All the HANDICAPPED PEOPLE that live in the upstairs units of All the Condominiums will Thank You very much.

The Tobins also complained that the Association "intimidated, interfered, or coerced" them as a result of the exercise of their rights under the fair housing laws.

After receiving the complaint, the Florida Commission on Human Relations ("Commission") notified the Association of the charges and conducted an investigation. As a result of the investigation, the Commission issued a Notice of Determination:

Cause and Issuance of an Administrative Charge dated August 27, 1996, charging the Association with having committed a discriminatory housing practice in violation of Florida's Fair Housing Act, which is found in Sections 760.20-.37, Florida Statutes (1995). The Notice further stated that the Tobins incurred damages as a result of the violation. Although the Notice of Determination stated that the "Determination" was attached, this document was not attached to the Notice of Determination filed with the Division of Administrative Hearings, nor was it provided at the hearing.

In response to the Notice of Determination, the Tobins requested in a letter dated September 10, 1996, that the Commission initiate an administrative action seeking relief on their behalf. In a letter dated September 18, 1996, the Association likewise requested an administrative hearing. The Commission filed a Notice dated November 22, 1996, with the Division of Administrative Hearings instituting an administrative action against the Association pursuant to Section 760.35(3)(a)1, Florida Statutes (1995). There was no statement in the Notice setting out the specific charges against the Association. After one continuance, the formal hearing in this case was held April 7 through 9, 1997.

At the hearing, the Commission presented the testimony of Ruth and Hyman Tobin, the complainants and Intervenors; Harry Pulik, president of the Association; Joseph Glazer and Salvatore

Amato, owners of second-floor units in Burgundy I; Jerauld W. Carron, III, a state licensed elevator contractor; and Debbie R. Newton, coordinator for the Commission's Fair Housing Investigation and Enforcement Unit. The Petitioner offered into evidence Exhibits 1 through 14. Exhibit 3 was withdrawn, the document marked for identification as Exhibit 9 was initially rejected but later received without objection as Exhibit 13, and ruling was withheld on Exhibit 11, which is discussed below. The Petitioner's remaining exhibits were received into evidence without objection except for Exhibit 5, which was received over a hearsay objection. The Tobins did not offer any evidence at the hearing but relied on the Commission to represent their interests.

The Association presented the testimony of Adele Glazer and Shirley Lustig, owners of first-floor units in Burgundy I; Charles Edgar, an attorney specializing in condominium law; Jack Abolsky, owner of a second-floor unit in Burgundy I and a member of the Board of Directors of the Association; Randolph Hansen, an architect and licensed general contractor; and Ruth Tobin.

Respondent's Exhibits 1 through 10 were offered and received into evidence.

As noted above, ruling was withheld on the admissibility of an audio tape marked for identification as Petitioner's

Exhibit 11. The tape contains a recording of a meeting of the Association's Board of Directors that took place on April 2,

1995. The tape was offered into evidence by the Commission for the limited purpose of showing that the Association members, that is, the owners of condominium units in Burgundy I, attempted to intimidate and coerce the Tobins into withdrawing the complaint they filed with the Commission. The Association objected to the tape's being received into evidence, arguing that the contents are either duplicative of testimony already in the record or irrelevant to the charges stated in the Commission's Notice of Determination. The Association also argued that, even if relevant, the tape should not be admitted into evidence pursuant to Section 90.403, Florida Statutes, because its probative value is outweighed by the danger of unfair prejudice. Finally, it objected on the ground that the tape is hearsay.

The only document of record in which intimidation and coercion is mentioned is the complaint filed with the Commission by the Tobins on February 22, 1995. The actual charging document in this case, the Notice of Determination issued by the Commission, charged only that the Association had "violated Florida's Fair Housing Act by committing a discriminatory housing practice." It did not include the separate charge of intimidation and coercion that is set out in Section 760.37, Florida Statutes.

The Commission made a motion at the hearing to amend the Notice of Determination to charge the Association with intimidation and coercion. It ultimately withdrew the motion,

stating its intention to go forward with only the allegations in the Notice. Since the sole purpose for which the Commission offered the tape was to demonstrate intimidation and coercion, it is not relevant to the issues that must be resolved in this proceeding. Accordingly, the tape that was marked for identification as Petitioner's Exhibit 11 is not be received into evidence.

The transcript of the final hearing was filed with the Division of Administrative Hearings on May 7, 1997. The parties requested and were granted an extension of time within which to file proposed findings of fact and conclusions of law. These proposals were timely filed and have been duly considered.

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:

1. The Florida Commission on Human Relations is the state agency charged with investigating complaints of discriminatory housing practices and enforcing Florida's Fair Housing Act. Sections 760.30-.35, Florida Statutes. In 1981, the Florida Fair Housing Act was declared the substantial equivalent of the Federal Fair Housing Act, 42 U.S.C. Section 3601 et seq. Consequently, since 1981, the Commission has been charged with investigating fair housing complaints for both itself and the Department of Housing and Urban Development.

2. Burgundy I is one of over 100 buildings comprising King's Point, a condominium complex located in Delray Beach, Florida. Burgundy I is a two-story building, with 24 condominium units on the first floor and 24 units on the second floor. The only access to the second-floor units is by stairs, and there are four stairways leading to the second floor, one on each end of the building and two spaced closer to the center of the building.

3. The owner of a condominium unit in Burgundy I owns the space within the interior walls of the unit and an undivided interest in the common area associated with the building.1 All unit owners are members of the Burgundy I Condominium Association, a not-for-profit corporation governed by a Board of Directors ("Board") elected by the members. The affairs of Burgundy I are governed by the Burgundy I Declaration of Condominium and by the Articles of Incorporation and By-Laws of the Association. Burgundy I is also subject to Florida's Condominium Act, Chapter 718, Florida Statutes.

4. Hyman and Ruth Tobin purchased a condominium unit in Burgundy I in 1981. Mr. and Mrs. Tobin live six months each year in their condominium unit and six months each year in their home in Marblehead, Massachusetts. They generally arrive in Florida in the first part of November and move back to Massachusetts in the first part of May. They have followed this pattern for the past ten years.

5. Mr. and Mrs. Tobin own and reside in unit 419, on the second floor near the center of the Burgundy I building; the only access to their unit is by the stairs.

6. In 1990 or 1991, Mr. Tobin was diagnosed with Parkinson's disease, which has become progressively worse since it was diagnosed. He also has an undiagnosed neuromuscular condition, and, in 1995, he suffered a small stroke. These conditions have resulted in Mr. Tobin's having extreme difficulty ambulating, even with the aid of a cane or a walker; this difficulty is obvious to the casual observer. Mr. Tobin's ability to ambulate is not expected to improve, and the parties have stipulated that Mr. Tobin is handicapped for purposes of Florida's Fair Housing Act.

7. As a result of his handicap, it is very difficult for Mr. Tobin to go up and down the stairs, and he restricts his activities as a result. Although he is supposed to exercise in the swimming pool several times a week, he does not do so because of the difficulty he has negotiating the stairs. On several occasions, he has almost fallen on the stairs.

8. In late 1994 or early 1995, Mrs. Tobin discussed with Jay Carron the feasibility of installing some type of device to assist Mr. Tobin in reaching the second floor of Burgundy I. Mr. Carron is certified by the state to install, maintain, and inspect elevators, and he owns Palm Beach Lifts, Inc., a state-

   registered elevator company that specializes in installing elevators and wheelchair lifts.

9. Mr. Carron visited Burgundy I several times to evaluate the best means of providing Mr. Tobin access to the second floor of Burgundy I. The Tobins ruled out an elevator because it was too expensive. Mr. Carron investigated the feasibility of installing a chair lift on the stairs but, after taking measurements, decided that it would block egress and would not meet code requirements. He also considered the feasibility of installing a vertical wheelchair lift to the second floor of the building and determined that this alternative would meet

   Mr. Tobin's needs. He recommended either a hydraulic-drive or a screw-drive, free-standing lift.

10. Mr. Carron has installed approximately 30 wheelchair lifts, and the units he recommended to the Tobins are commonly installed in shopping malls, nursing homes, office buildings, and condominiums, among other commercial and commercial/residential structures.

11. Mr. Carron provided Mrs. Tobin with a copy of the industry standards for vertical wheelchair lifts and a copy of product information on the lift systems he recommended. He also provided her with a copy of his county occupational license, his state certificate of competency, his company's state registration, and his certificate of liability insurance.

12. Both of the lifts Mr. Carron recommended accommodate a wheelchair and two people, although the hydraulic lift is the larger of the two units. A source of 110 to 220 volts of electricity is needed to operate the lift. Both of the lifts are free-standing and rest on a concrete slab that is six feet square.

13. Mrs. Tobin and Mr. Carron discussed three potential locations for the lift: On the garden side of the building near the Tobins' unit; on the parking-lot side on a blank wall outside the bedroom of the unit directly underneath the Tobins' unit; and on the garden side, in the exact center of the building, where there would be convenient access to electricity. Mr. Carron also considered installing the lift so that it would open directly into the Tobins' unit. Regardless of which location is chosen, the lift will alter the common area of Burgundy I.

14. If the lift were to open onto the walkway on the second floor, it would be necessary to cut through the railing to install a door leading from the lift to the walkway; if the lift were to open directly into the Tobins' unit, it would be necessary to cut through the wall of the unit.

15. When he first spoke with Mrs. Tobin two years ago,

    
    

    Mr. Carron estimated that it would cost approximately $12,000 to install a wheelchair lift that would open onto the second-floor walkway. Shortly after she was given this estimate, Mrs. Tobin opened a bank account with her funds in the amount of $20,000 to

    pay for the installation of the lift and initial maintenance expenses.2 Mrs. Tobin later learned that it would cost approximately $3,000 more to install the lift to open directly into the Tobins' unit.

16. The Tobins have not yet chosen a location for the lift. Mrs. Tobin believes that there will be opposition from many of the unit owners regardless of where the lift is located.

17. In late 1994, Mrs. Tobin spoke informally to her second-floor neighbors about her intention to install a wheelchair lift; at about the same time, Mrs. Tobin told Harry Pulik, the president of the Association, about her proposal. Mr. Pulik's response to the proposal was very negative.

    Mrs. Tobin felt that he misunderstood what she wanted to do and asked that he call a meeting of the Association's Board of Directors so she could explain the proposal before the board.

18. Mr. Pulik and other board members routinely put items on the agenda for a board meeting with nothing more than a verbal request from a unit owner.3 Notwithstanding this established practice, Mr. Pulik refused to call a board meeting to discuss Mrs. Tobin's request for a wheelchair lift.

19. Sometime in late December 1994, Mr. Pulik attempted to contact the building inspector concerning whether a wheelchair lift could even be installed at Burgundy I; Mrs. Tobin was present when Mr. Pulik telephoned the inspector. He was on Christmas vacation, however, and was scheduled to return on

    January 3. Mrs. Tobin asked Mr. Pulik on January 4 if he had reached the building inspector. He told her he had not received a return call, and she never heard anything more from him on this matter.

20. Meanwhile, Mrs. Tobin prepared a letter to her neighbors dated December 28, 1994, and hand-delivered it to the owners of Burgundy I condominium units who were in residence; she sent the letter by mail to those owners who were not in residence at the time. In the letter, Mrs. Tobin stated that "we" would like to install a hydraulic wheelchair lift for the use of the tenants of the building, that she and Mr. Tobin would pay for the installation of the lift, and that any neighbor wishing to use the lift could purchase a key for a one-time fee of $2,000 if paid before construction or $2,500 if paid after construction. Mrs. Tobin explained in the letter that the money raised from the key purchases would be used to help defray some of the costs of the lift and to fund on-going costs such as maintenance, utilities, repairs, and insurance.

21. Mrs. Tobin did not send a copy of this letter to the board as a formal proposal, nor did she, at this time, formally advise the board that she wished to install a wheelchair lift. She knew, however, that the members of the board were aware of her plans because they were among the neighbors to whom she sent the December 28 letter.

22. Mrs. Tobin followed up the December 28 letter in the latter part of January 1995 by taking a survey of her neighbors. The survey sheet listed the unit numbers and names of the owners of the Burgundy I condominium units. In the preface to the survey list, Mrs. Tobin wrote: "This is to inform you that we plan to install a wheelchair lift in the Burgundy I condominium, so that my husband and all upstairs participating neighbors can fully enjoy our premises."4 The survey sheet was divided into four columns, and Mrs. Tobin requested that each neighbor initial one column, specifying that "I do not object," "I will participate," or "I do object"; if anyone objected, Mrs. Tobin requested that they state the reason in the fourth column. According to the results of the survey, twenty-four owners did not object, nine second-floor owners stated that they wished to participate, five owners objected, and ten owners refused to sign, could not be reached, or were unsure.

23. A short time after she gathered these responses,

    
    

    Mrs. Tobin had a meeting in her unit with the owners who had indicated that they wished to participate by purchasing a key to the lift. At this meeting, she discussed her proposal in detail. She did not, however, discuss the proposal in detail with any other neighbors.

24. Because no action had been taken on her request for a meeting of the Association's Board of Directors, Mrs. Tobin filed the Housing Discrimination Complaint with the Commission on

    February 22, 1995.5 This complaint initiated the investigation that resulted in the discrimination charges.

25. On March 3, 1995, a meeting was held with Ron Raible, a representative of Prime Management Group, the company that is under contract with the Association to provide management services to Burgundy I. The meeting was requested by Mrs. Tobin and attended by Mrs. Tobin and by Salvatore Amato, another resident of Burgundy I who has long been interested in installing some type elevator or lift to provide vertical accessibility to the second floor of Burgundy I.

26. Mr. Carron also attended the meeting and gave

    
    

    Mr. Raible a copy of the materials he had earlier presented to Mrs. Tobin. Mr. Raible expressed his satisfaction that these documents were in order.

27. Mr. Carron explained the lift and the process of installation to Mr. Raible. Additionally, Mr. Amato gave

    Mr. Raible a drawing he had done, which purported to show, to scale, the lift's dimensions in relation to the features of the condominium building at one of the locations under consideration. The drawing is not, however, to scale, and the open area in which the 6' x 6' concrete slab is shown is actually much smaller than it appears in the Amato drawing.

28. Mr. Raible prepared a memorandum to Mr. Pulik dated March 10, 1995, in which he reported on the March 3 meeting. Mr. Raible stated that the issues were discussed in a "very

    amicable, cooperative, and positive mood"; that the plan was to install a lift not an elevator; that a bank account had been established in the amount of $20,000 to fund installation of the lift; that the results of a survey taken by Mrs. Tobin showed that thirty-two owners did not object to installation of the lift; and that Mr. Carron "was quite informed and apparently has done his homework with respect to the lift and how the county would view the installation along with the counties [sic] requirements."

29. Mr. Raible also reported in this memorandum that the location of the lift was discussed, and Mr. Raible identified the location as between first-floor units 394 and 397.6 Mr. Raible also reported that he discussed financial responsibility for the lift with Mrs. Tobin and that he had made specific suggestions to her regarding access to the lift and responsibility for the costs associated with its operation, "pending conformation [sic] of attorneys from both sides."

30. Finally, Mr. Raible advised Mr. Pulik that he should not act on the wheelchair lift proposal until a response to the discrimination complaint was received from the Commission; that he should not talk about the proposal with any unit owner or with any member of the board in open meeting; and that he should familiarize himself with the information provided by Mr. Carron concerning the lift unit itself.

31. In Mrs. Tobin's view, she presented her formal proposal for the wheelchair lift to Mr. Raible, as an agent for the Association, at the March 3, 1995, meeting, and she had no reason to think that the proposal was not complete because Mr. Raible did not ask her for any additional information at or after the March 3 meeting.

32. As of March 24, 1995, the board still had not met to discuss Mrs. Tobin's request to install a wheelchair lift. On that date, in a letter signed by Mrs. Tobin and seven other condominium owners, Mr. Pulik, in his capacity as president of the Burgundy I Condominium Association, was asked to call a meeting of the Board of Directors of Burgundy I, to be held within ten days of the request, for the purpose of discussing the necessity for installing a vertical wheelchair lift at

    Burgundy I.

    
    

33. On April 2, 1995, a properly noticed board meeting was held by the condominium mailbox for the stated purpose of deciding whether to hire an attorney to advise the board with regard to the complaint filed with the Commission by Mrs. Tobin. The board decided at the meeting to hire the law firm of Sachs and Sax for this purpose. There was, however, no discussion by the board relating to the substance of the request that the Tobins be permitted to install a wheelchair lift.

34. Nonetheless, a survey dated April 2, 1995, was taken of the Burgundy I unit owners, and a majority signed a statement

    attesting "that we are opposed to the installation of a lift/elevator including the maintenance, insurance expenses, and like expenses including any and all liabilities likely to be incurred."

35. A notice dated April 25, 1995, was posted in which the Association's Board of Directors notified all Burgundy I unit owners of a special board meeting to be held May 18, 1995, to discuss the request for a wheelchair lift. The agenda included on the notice indicated that the purpose of the meeting was to discuss the "discrimination claim," and it was noted that "THE ATTORNEY WILL ATTEND THIS MEETING FOR THE PURPOSE OF DISCUSSION." A detailed "Proposed Agenda for Discussion" included a series of questions under the headings of "Feasibility of Installation of Lift at Burgundy I" and "Procedures for Approval of Lift Installation."7

36. Mr. and Mrs. Tobin did not attend the May 18 meeting. As they had done every year since 1981, the Tobins had returned to Massachusetts in early May. Because of Mr. Tobin's health, Mrs. Tobin could not leave her husband to travel to Florida for the board meeting.

37. Although there was general discussion of the wheelchair lift at the May 18 board meeting, there was no discussion of the specific items included in the proposed agenda because much of the information could only have been provided by the Tobins. Consequently, no action on the request for installation of a

    wheelchair lift was taken by the board at the May 18 meeting because the board wanted more information regarding the Tobins' proposal.

38. A board meeting was held March 4, 1997, a month before the final hearing in this case, and Mrs. Tobin and her daughter attended. At least one of the board members asked questions of Mrs. Tobin regarding her proposal, which she refused to answer.

39. Pursuant to paragraphs 2.7 and 9 of the Burgundy I Declaration of Condominium, the owners of all of the units in Burgundy I are liable to pay assessments to cover the common expenses of the condominium and of the Association, and these common expenses include expenses for "insurance, maintenance, operation, repair and replacement of the common elements . . . and other common facilities of the Project."

40. Pursuant to Section 7.5 of the Declaration of Condominium, as amended effective December 31, 1981, the entire membership must approve in writing any alteration to the common elements:

    Alteration and improvement. After the completion of the improvement included in the common elements contemplated by the Declaration, there shall be no alteration nor further improvement of common elements or acquisition of additional common elements without prior approval in writing by the record owners of all of the units; provided, however, that any alteration or improvement of the common elements or acquisition of additional common elements bearing the approval in writing of the record owners of not less than 50% of the common elements, and which does not interfere with the rights of

    any owners without their consent, may be accomplished, and the owners who do not approve are not relieved from the cost of the alteration, improvement or acquisition.

    
    

41. Pursuant to paragraph 3.3 of the Association's By-laws, a special meeting of the membership of the Association may be called at the request of a majority of the Board of Directors or at the written request of a majority of the unit owners.

    SUMMARY OF THE EVIDENCE

    
    

42. Mr. Tobin is disabled and the evidence presented by the Commission is sufficient to establish that some type of vertical accessibility device is necessary to allow him the full enjoyment of his condominium unit and the facilities at Burgundy I.

43. The evidence presented by the Commission is also sufficient to establish that a wheelchair lift is a reasonable device for providing Mr. Tobin access to and from his second- floor unit.

44. The evidence presented by the Commission is also sufficient to prove that the Association refused to permit the Tobins to install a wheelchair lift at Burgundy I. Installation of a wheelchair lift would necessarily alter a portion of the common elements. Consequently, depending on whether the proposal would potentially interfere with the rights and obligations of any of the unit owners without their consent, the proposal must be approved in writing either by all of the Burgundy I condominium unit owners or by fifty percent of the unit owners. Since the Association's Board of Directors has never formally

    presented the Tobins' request to the unit owners, the request has technically never been refused. Nonetheless, even if the board thought the Tobins' proposal to install a wheelchair lift was

    ill-advised or incomplete, the proposal should have been presented to the Association's membership for discussion and a vote at a special membership meeting called for that purpose. The Association's board has not, however, called such a meeting. Therefore, even though it cannot approve the Tobins' request to install a wheelchair lift, the board, acting on behalf of the Association, effectively refused to permit the modification by its inaction.

45. The evidence presented by the Commission is not, however, sufficient to establish that the Tobins' proposal to install a wheelchair lift in the common elements of Burgundy I constitutes a reasonable modification to the premises. The Tobins have not chosen the site where they wish to install the lift. The lift's location is an important factor in determining whether the proposed modification to the condominium premises is reasonable. The installation of a wheelchair lift will affect the Burgundy I unit owners and, most especially, those persons who own units near the lift, and the impact on their rights to enjoy the premises should be considered.

46. The evidence presented by the Commission is, likewise, not sufficient to establish that the modification proposed by the Tobins will be undertaken at their expense. All the unit owners

    of Burgundy I are responsible for paying their pro rata share of the expenses of maintaining the common elements of the condominium and of any other costs related to their ownership of an undivided interest in the common elements. As a result, for the modification to be at the Tobins' expense, their proposal must shield the unit owners from liability for any of the expenses relating to the installation and operation of the wheelchair lift.

47. Mrs. Tobin testified at the final hearing that she intends to pay the entire cost of installing the lift and stated her willingness to pay for an annual service contract covering minor maintenance, for annual inspections, and for electricity. She also testified that she will purchase whatever insurance is necessary. She believes these costs will be minimal, although she does not know how much insurance will cost. She will not, however, commit to assuming sole responsibility for the expense of major maintenance on the lift because she believes that she cannot afford to pay these costs. Rather, it is, and has been, her plan to offer her neighbors the opportunity to purchase a key allowing access to the lift, with the proceeds from the sale of keys being set aside as a maintenance fund.

48. There is, however, no evidence to establish, for example, that the Tobins will collect enough money from the sale of keys to the lift to create a viable maintenance fund; or that they have a contingency plan for providing for payment of

    maintenance expenses if the balance in the maintenance fund is insufficient to cover the expenses; or that they have made arrangements for purchasing the service contract and paying for inspections, electricity, and insurance if they cannot afford to pay these costs or if they no longer need the use of the lift.8 In addition, there is no evidence that the Tobins have made provision in their plan to install a wheelchair lift for shielding the Burgundy I unit owners from liability for costs and expenses arising out of the installation and use of the lift.

49. The Commission has, therefore, not sustained its burden of proving that the Association has violated Florida's Fair Act Act.

    CONCLUSIONS OF LAW

    
    

50. The Division of Administrative Hearings has jurisdiction over the subject matter of this proceeding and of the parties thereto pursuant to Section 760.35(3)(a), Florida Statutes (1995) and Sections 120.569 and s 120.57(1), Florida Statutes (Supp. 1996).

51. Although the issues in this case were not framed with any degree of specificity in the Commission's Notice of Determination, it became clear during the proceeding that the gravamen of the Commission's charge against the Association is that it committed a discriminatory housing practice under Sections 760.23(8) and (9), Florida Statutes, which provide:

    1. It is unlawful to discriminate against any person in the terms, conditions, or privileges of sale or rental of a dwelling, or in the provision of services or facilities in connection with such dwelling, because of a handicap of:

       1. That buyer or renter;

       2. A person residing in or intending to reside in that dwelling after it is sold, rented, or made available; or

       3. Any person associated with the buyer or renter.

    2. For purposes of subsections (7) and (8), discrimination includes:

       1. A refusal to permit, at the expense of the handicapped person, reasonable modifications of existing premises occupied or to be occupied by such person if such modifications may be necessary to afford such person full enjoyment of the premises; or

       2. A refusal to make reasonable accommodations in rules, policies, practices, or services, when such accommodations may be necessary to afford such person equal opportunity to use and enjoy a dwelling.9

52. It further became apparent during the hearing that the specific issue presented by the Commission was whether the Association committed an unlawful discriminatory housing practice by "refus[ing] to permit, at the expense of the handicapped person, reasonable modifications of existing premises occupied

    . . . by such person if such modifications may be necessary to afford such person full enjoyment of the premises." Section 760.23(8)(b)and (9)(a), Florida Statutes.10

53. The Commission requested a hearing before the Division of Administrative Hearings pursuant to its authority under section 760.35, Florida Statutes, which provides:

    (3)(a) If the commission is unable to obtain voluntary compliance with ss. 760.20-

    1. or has reasonable cause to believe that a discriminatory practice has occurred:

       1. The commission may institute an administrative proceeding under chapter 120; or

       2. The person aggrieved may request administrative relief under chapter 120 within 30 days after receiving notice that the commission has concluded its investigation under s. 760.34.

    1. Administrative hearings shall be conducted pursuant to ss. 120.569 and 120.57(1). The respondent must be served written notice by certified mail. If the administrative law judge finds that a discriminatory housing practice has occurred or is about to occur, he shall issue a recommended order to the commission prohibiting the practice and recommending affirmative relief from the effects of the practice, including quantifiable damages and reasonable attorney's fees and costs. The commission may adopt, reject, or modify a recommended order only as provided under s. 120.57(1). Judgment for the amount of damages and costs assessed pursuant to a final order by the commission may be entered in any court having jurisdiction thereof and may be enforced as any other judgment.

54. Section 760.34(5), Florida Statutes, provides that "[I]n any proceeding brought pursuant to this section or s. 760.35, the burden of proof is on the complaining party."

55. Both parties identified the burden of proof and the order of production in this case as that established by the United States Supreme Court in McDonnell-Douglass Corp. v. Green, 411 U.S. 792, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1978), as refined by the Court in Texas Department of Community Affairs v. Burdine, 450 U.S. 248, 101 S.Ct. 1089, 67 L.Ed.2d 207 (1981), and in St.

    Mary's Honor Center v. Hicks, 509 U.S. , 113 S.Ct. 2742, 125 L.Ed.2d 407 (1993). In these three cases, the Court dealt with Title VII employment discrimination claims, and in McDonnell- Douglass and Burdine, the Court developed a three-step allocation of the burden of production in these cases. As summarized by the court in Barth v. Gelb, 2 F.3d 1180, 1185 (D.C. Cir. 1993):

    Burdine places on the plaintiff an initial burden of producing sufficient evidence to support a prima facie case of discrimination. If the plaintiff establishes a prima facie case, the burden shifts to the defendant, which must then produce evidence of an articulable non-discriminatory reason for the challenged action. If the defendant produces such a reason, the plaintiff then bears the ultimate burden of persuading the trier of fact that the reason was pretextual and that intentional discrimination had in fact occurred.

56. The purpose of the three-step allocation of the burden of production is to assist the plaintiff in proving unlawful discrimination when proof of discriminatory intent or motivation is required. Because the Court recognized that it is very difficult to prove discriminatory intent or motivation, the prima facie case of discrimination prescribed in McDonnell-Douglass and Burdine requires only that the plaintiff establish that he or she is a member of the protected class and has been denied the benefits available under the law. See St. Mary's Honor Center, 113 S.Ct at 2746-49; Barth v. Gelb, 2 F.3d at 1185-86.

57. Accordingly, the Commission has stated that a prima facie case giving rise to a presumption of discrimination in this case requires that it prove only

    1. That Mr. Tobin is handicapped . . . and part of a protected class.

    2. That he is otherwise qualified to reside in the apartment in question.

    3. That he suffered a loss of the fullest enjoyment of his housing opportunity under circumstances which lead to an inference that they [the Association] based the action solely on his handicap.

    Once these elements are proven, the Commission would apparently expect the Association to produce evidence to establish that it had a non-discriminatory reason for refusing the Tobins' request, which could then be refuted by the Tobins.

58. Several federal courts have adopted and applied the McDonnell-Douglass/Burdine allocation of the burden of production used in Title VII employment discrimination cases to cases involving discrimination arising under the federal Fair Housing Act and the 1988 amendments which, inter alia, prohibited discrimination against the handicapped.11 However, a different approach is emerging in the context of discrimination claims involving reasonable accommodations for the handicapped, including reasonable modifications. In Barth v. Gelb, the court concluded that handicapped discrimination arising under Section

    504 of the Rehabilitation Act of 1973 should be governed by the traditional allocation of the burden of production. In so holding, the court stated:

    These cases deal with objective claims that may be tested through the application of traditional burdens of proof. [A]

    plaintiff must establish that (a) he is handicapped but, (b) with reasonable accommodation (which he must describe), he is

    1. able to perform "the essential functions" of the position he holds or seeks. As

    in the usual case, it would then be up to the employer to refute that evidence. The burden, however, remains with the plaintiff to prove his case by a preponderance of the evidence.

    Id. at 1187(citations omitted).12

59. The traditional framework adopted by the court in Barth is the appropriate framework to apply in this case. The elements of the prima facie case of unlawful discrimination are set out in Section 760.23(9)(a). Accordingly, the Commission has the burden of proving that (1) the Association refused to permit (2) at the Tobins' expense (3) a modification of the Burgundy I common elements which is reasonable and (4) necessary for Mr. Tobin to fully enjoy the premises. Cf. Stewart v. Happy Herman's Cheshire Bridge, Inc., Case N. 96-8689, 1997 WL 378601 (11th Cir. July 24, 1997). The Association may then produce evidence refuting that of the Commission.

60. Based on the facts as found herein, the Commission has not proven by a preponderance of the evidence that the Association is guilty of unlawful discrimination based on its constructive refusal to approve the Tobins' request to install a wheelchair lift on the common elements of Burgundy I condominium. Mr. Tobin's handicap is established by stipulation, and the

Commission proved by a preponderance of the evidence that a wheelchair lift or some other device that provides Mr. Tobin with access to the second floor of Burgundy I is necessary to permit him the full enjoyment of the premises. The Commission has not proven by a preponderance of the evidence that the Tobins' proposal for installation of a wheelchair lift in the common elements of Burgundy I is reasonable. The determination of reasonableness requires a balancing of the right of all the affected persons to full enjoyment of the premises, and this cannot be done until the Tobins specify the place where they want to install the lift.13 Finally, given the potential liability for common expenses imposed both by statute and by the Burgundy I Declaration of Condominium on all of the condominium unit owners, the Commission has not proven by a preponderance of the evidence that the Tobins would be responsible for all of the expenses attributable to the installation and operation of the lift.

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 Notice of Determination charging the Burgundy I Condominium Association with a violation of the Florida Fair Housing Act.

DONE AND ENTERED this 12th day of November, 1997, 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

(904) 488-9675 SUNCOM 278-9675

Fax Filing (904) 921-6847

Filed with the Clerk of the Division of Administrative Hearings this 12th day of November, 1997.

ENDNOTES

1/ The ownership interest of the unit owners in the common area is determined by the square footage of each unit; owners of one- bedroom units own 1.82621 percent of the common area and owners of two-bedroom units own 2.16904 percent of the common area.

2/ The balance of the account is now approximately $22,000.

3/ It is the practice of the Burgundy I Condominium Association Board of Directors that any board member can request at any time that an item be placed on the agenda for discussion at a board meeting.

4/ Mrs. Tobin used the term "participating neighbors" to refer to those neighbors who had purchased a key to the lift.

5/ Mrs. Tobin and her husband also signed an amended complaint dated February 22, 1995. This amended complaint was offered into evidence as Petitioner's Exhibit 3 but was withdrawn because there was no evidence that the Association had ever received a copy of this amended complaint.

6/ It is clear from testimony at the hearing that a final location had not, and has not to date, been identified.

7/ The following are the questions relating to feasibility and procedures included in the Proposed Agenda for the May 18 meeting:

1. Feasibility of Lift at Burgundy I:

   
   

   1. Who would bear costs of: (i) soft costs relating to lift (architect, permits, etc.);

      (ii) construction and installation of lift; and (iii) maintenance.

      
      

   2. Who would be permitted to use lift? How would use of the lift be restricted to designated users (key?)?

      
      

   3. Who would determine location of lift? What criteria are to be used in determining location?

      
      

   4. Who would be responsible for maintenance of lift?

      
      

   5. How and by whom would contractor be selected in construct lift?

      
      

   6. Should Unit Owners seeking a lift be required to pay an advance maintenance deposit?

      
      

   7. Should a bond for initial construction be required from owners seeking a lift?

      
      

   8. Community as a whole: in favor of lift, against lift, or with no opinion?

      
      

   9. Installation of lift/elevator not required by ADA.

      
      

   10. Consider installation of elevator, as opposed to lift?

       
       

2. Procedures for Approval if lift Installation:

   
   

   1. Necessity of Amendment to Declaration of Condominium.

      
      

   2. Notice and voting Requirements for passage of Amendment.

8/ This is especially troublesome because of the rights of those unit owners who have purchased a key to the lift. Absent an agreement among the users of the lift, the Tobins cannot simply set aside funds to pay for the removal of the lift and the

restoration of the common elements when Mr. Tobin no longer needs the lift.

9/ In all respects material to this action, the language in Sections 760.23(8) and (9) is identical to that in 42 U.S.C. Section 3604(f)(2) and (3) of the federal Fair Housing Act Amendment of 1988. Under the federal statute, it is unlawful:

1. To discriminate against any person in the terms, conditions, or privileges of sale or rental of a dwelling, or in the provision of services or facilities in connection with such dwelling, because of a handicap of--

   1. that person; or

   2. a person residing in or intending to reside in that dwelling after it is so sold, rented, or made available; or

   3. any person associated with that person.

2. For purposes of this subsection, discrimination includes--

   1. a refusal to permit, at the expense of the handicapped person, reasonable modifications of existing premises occupied or to be occupied by such person if such modifications may be necessary to afford such person full enjoyment of the premises except that, in the case of a rental, the landlord may where it is reasonable to do so condition permission for a modification on the renter agreeing to restore the interior of the premises to the condition that existed before the modification, reasonable wear and tear excepted.

   2. a refusal to make reasonable

accommodations in rules, policies, practices, or services, when such accommodations may be necessary to afford such person equal opportunity to use and enjoy a dwelling.

10/ Although reference was made to Section 760.23(9)(b) in the parties' Proposed Recommended Orders, no evidence was presented which tended to prove that the Association refused "to make reasonable accommodations in rules, policies, practices, or services, when such accommodation may be necessary to afford such person equal opportunity to use and enjoy a dwelling."

11/ See, e.g., United States v. California Mobile Home Park Management Co., 107 F.3d 1374, 1380 (9th Cir. 1997)(handicap discrimination under the federal Fair Housing Act); United States

Department of Housing and Urban Development on Behalf of Herron v. Blackwell, 908 F.2d 864 (11th Cir. 1990)(racial discrimination under Fair Housing Act); United States v. City of Black Jack, Missouri, 508 F.2d 1179 (8th Cir. 1974)(racial discrimination under Fair Housing Act); United States v. Freer, 864 F.Supp. 324 (W.D.N.Y. 1994)(handicap discrimination under the Fair Housing Act Amendments). See also Barth v. Gelb, 2 F.3d at 1185-86 and cases cited therein.

12/ See also Stewart v. Happy Herman's Cheshire Bridge, Inc., Case No. 96-8689, slip op. at 8, 1997 WL 378601 (11th Cir. July 24, 1997)("[T]he burden of identifying an accommodation that would allow a qualified individual to perform the job rests with that individual, as does the ultimate burden of persuasion with respect to demonstrating that such an accommodation is reasonable."); Willis v. Conopco, 108 F.3d 282, 286 (11th Cir.

1997)("[E]stablishing that a reasonable accommodation exists is a part of an ADA plaintiff's case.").

Although the courts in Stewart, Willis, and Barth addressed claims of discrimination for failure to make reasonable accommodation for the handicapped under the Americans with Disabilities Act and Section 504 of the Rehabilitation Act of 1973, the goal and language of these provisions are similar. For instance, in Shapiro v. Cadman Towers, 51 F.3d 328, (2d Cir.

1995), the court stated, in considering a claim of handicap discrimination under the federal Fair Housing Act Amendments,

Section 504 [of the Rehabilitation Act] prohibits federally-funded programs from discriminating on the basis of handicap and requires such programs to reasonably accommodate an otherwise-qualified individual's handicaps. The legislative history of Section 42 U.S.C. Section 3604(f) [encompassing Sections 760.23(8) and (9), Florida Statutes] plainly indicates that its drafters intended to draw on case law developed under Section 504, a provision also specifically directed at eradicating discrimination against handicapped individuals.

See also United States v. California Mobile Home Park Management Co.; cf. Willis v. Conopco (reasonable accommodation claims under the ADA evaluated under the same standards as claims under Section 504 of the Rehabilitation Act).

13/ To determine whether a requested accommodation, in this case the installation of a wheelchair lift, is reasonable, it is

necessary to balance the rights and privileges enjoyed by non- handicapped persons against the needs of the handicapped individual. See Shapiro, 51 F.3d at 336 (owners of a cooperative apartment building must accommodate handicap, as required by 42

U.S.C. Section 3604(f) [Sections 760.23(8) and (9), Florida Statutes] "provided such accommodation does not pose an undue hardship or a substantial burden."); United States v. Village of Palatine, 37 F.3d 1230, 1234 (7th Cir. 1994)("determining whether a requested accommodation [under 42 U.S.C. Section 3504(f)(3)(B), Section 760.23(9)(b), Florida Statutes]is reasonable requires, among other things, balancing the needs of the parties involved.").

COPIES FURNISHED:

Hyman Tobin & Ruth Tobin

39 Maple Street Marblehead, MA 01945

Hyman Tobin & Ruth Tobin

419 Burgundy I

Delray Beach, Florida 33484

George Bush, Jr., Esquire

Walton, Lantaff, Schroeder & Carson

1645 Palm Beach Lakes Boulevard, Suite 800 West Palm Beach, Florida 33401

Evelyn Golden, Esquire

Florida Commission on Human Relations

325 John Knox Road, Building F, Suite 240 Tallahassee, Florida 32303-4149

Sharon Moultry, Agency Clerk

Florida Commission on Human Relations

325 John Knox Road, Building F, Suite 240 Tallahassee, Florida 32303-4149

Dana Baird, General Counsel

Florida Commission on Human Relations

325 John Knox Road, Building F, Suite 240 Tallahassee, Florida 32303-4149

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

All parties have the right to submit written exceptions within 15 days from the date of this recommended order. Any exceptions to this recommended order should be filed with the agency that will issue the final order in this case.

1 The ownership interest of the unit owners in the common area is determined by the square footage of each unit; owners of one- bedroom units own 1.82621 percent of the common area and owners of two-bedroom units own 2.16904 percent of the common area.

2 The balance of the account is now approximately $22,000.

3 It is the practice of the Burgundy I Condominium Association Board of Directors that any board member can request at any time that an item be placed on the agenda for discussion at a board meeting.

4 Mrs. Tobin used the term "participating neighbors" to refer to those neighbors who had purchased a key to the lift.

5 Mrs. Tobin and her husband also signed an amended complaint dated February 22, 1995. This amended complaint was offered into evidence as Petitioner's Exhibit 3 but was withdrawn because there was no evidence that the Association had ever received a copy of this amended complaint.

6 It is clear from testimony at the hearing that a final location had not, and has not to date, been identified.

7 The following are the questions relating to feasibility and procedures included in the Proposed Agenda for the May 18 meeting:

LINDSAY - PLEASE INSERT FROM DOCUMENT ATTACHED IN BLOCK QUOTE FORMAT.

8 This is especially troublesome because of the rights of those unit owners who have purchased a key to the lift. Absent an agreement among the users of the lift, the Tobins cannot simply set aside funds to pay for the removal of the lift and the restoration of the common elements when Mr. Tobin no longer needs the lift.

9 In all respects material to this action, the language in Sections 760.23(8) and (9) is identical to that in 42 U.S.C. Section 3604(f)(2) and (3) of the federal Fair Housing Act Amendment of 1988. Under the federal statute, it is unlawful:

1. To discriminate against any person in the terms, conditions, or privileges of sale or rental of a dwelling, or in the provision of services or facilities in connection with such dwelling, because of a handicap of--

   1. that person; or

   2. a person residing in or intending to reside in that dwelling after it is so sold, rented, or made available; or

   3. any person associated with that person.

2. For purposes of this subsection, discrimination includes--

   1. a refusal to permit, at the expense of the handicapped person, reasonable modifications of existing premises occupied or to be occupied by such person if such modifications may be necessary to afford such

      person full enjoyment of the premises except that, in the case of a rental, the landlord may where it is reasonable to do so condition permission for a modification on the renter agreeing to restore the interior of the premises to the condition that existed before the modification, reasonable wear and tear excepted.

   2. a refusal to make reasonable accommodations in rules, policies, practices, or services, when such accommodations may be necessary to afford such person equal opportunity to use and enjoy a dwelling.

10 Although reference was made to Section 760.23(9)(b) in the parties' Proposed Recommended Orders, no evidence was presented which tended to prove that the Association refused "to make reasonable accommodations in rules, policies, practices, or services, when such accommodation may be necessary to afford such person equal opportunity to use and enjoy a dwelling."

11 See, e.g., United States v. California Mobile Home Park Management Co., 107 F.3d 1374, 1380 (9th Cir. 1997)(handicap discrimination under the federal Fair Housing Act); United States Department of Housing and Urban Development on Behalf of Herron v. Blackwell, 908 F.2d 864 (11th Cir. 1990)(racial discrimination under Fair Housing Act); United States v. City of Black Jack, Missouri, 508 F.2d 1179 (8th Cir. 1974)(racial discrimination under Fair Housing Act); United States v. Freer, 864 F.Supp. 324 (W.D.N.Y. 1994)(handicap discrimination under the Fair Housing Act Amendments). See also Barth v. Gelb, 2 F.3d at 1185-86 and cases cited therein.

12 See also Stewart v. Happy Herman's Cheshire Bridge, Inc., Case No. 96-8689, slip op. at 8, 1997 WL 378601 (11th Cir. July 24, 1997)("[T]he burden of identifying an accommodation that would allow a qualified individual to perform the job rests with that individual, as does the ultimate burden of persuasion with respect to demonstrating that such an accommodation is reasonable."); Willis v. Conopco, 108 F.3d 282, 286 (11th Cir. 1997)("[E]stablishing that a reasonable accommodation exists is a part of an ADA plaintiff's case.").

Although the courts in Stewart, Willis, and Barth addressed claims of discrimination for failure to make reasonable accommodation for the handicapped under the Americans with Disabilities Act and Section 504 of the Rehabilitation Act of 1973, the goal and language of these provisions are similar. For instance, in Shapiro v. Cadman Towers, 51 F.3d 328, (2d Cir.

1995), the court stated, in considering a claim of handicap discrimination under the federal Fair Housing Act Amendments,

Section 504 [of the Rehabilitation Act] prohibits federally-funded programs from discriminating on the basis of handicap and requires such programs to reasonably accommodate an otherwise-qualified individual's handicaps. The legislative history of Section 42 U.S.C. Section 3604(f) [encompassing Sections 760.23(8) and (9), Florida Statutes] plainly indicates that its drafters intended to draw on case law developed under Section 504, a provision also specifically directed at eradicating discrimination against handicapped individuals.

See also United States v. California Mobile Home Park Management Co.; cf. Willis v. Conopco (reasonable accommodation claims under the ADA evaluated under the same standards as claims under Section 504 of the Rehabilitation Act).

13 To determine whether a requested accommodation, in this case the installation of a wheelchair lift, is reasonable, it is necessary to balance the rights and privileges enjoyed by non- handicapped persons against the needs of the handicapped individual. See Shapiro, 51 F. 3d at 336 (owners of a cooperative apartment building must accommodate handicap, as required by 42 U.S.C. Section 3604(f) [Sections 760.23(8) and (9), Florida Statutes] "provided such accommodation does not pose an undue hardship or a substantial burden."); United States v. Village of Palatine, 37 F.3d 1230, 1234 (7th Cir. 1994)("determining whether a requested accommodation [under 42

U.S.C. Section 3504(f)(3)(B), Section 760.23(9)(b), Florida Statutes]is reasonable requires, among other things, balancing the needs of the parties involved.").

Docket for Case No: 96-005569

Orders for Case No: 96-005569