STATE OF FLORIDA
DIVISION OF ADMINISTRATIVE HEARINGS
MARIA T. THORNHILL, )
)
Petitioner, )
)
vs. ) Case No. 00-3014
) TRACY WATKINS, LAURA KHACHAB, ) LINDA MACKEY, DAPHNE ) O'SULLIVAN, PAT CREWS, NANCY ) MORGAN, CHERYL CULBERSON, ) CAROLYN TOOHEY, PAT GODARD and ) DEANE HUNDLEY, )
)
Respondents. )
) MARIA T. THORNHILL, )
)
Petitioner, )
)
vs. ) Case No. 02-1056
) TRACY WATKINS, LAURA KHACHAB, ) RAYMOND KHACHAB, LINDA MACKEY, ) DAPHNE O'SULLIVAN, PAT CREWS, ) NANCY MORGAN, CHERYL CULBERSON, ) DOUG KING, TOM LOTT, CAROLYN ) TOOHEY, PAT GODARD and/or ) ESTATE OF PAT GODARD, and DEANE ) HUNDLEY, )
)
Respondents. )
)
RECOMMENDED ORDER
Pursuant to notice, a formal hearing was held in these cases on May 21 and 22, 2002, and on July 23 and 24, 2003, in Miami, Florida, and on September 19, 2003, via video teleconference, with the parties appearing in Miami, Florida,
before Patricia Hart Malono, a duly-designated Administrative Law Judge of the Division of Administrative Hearings.
APPEARANCES
For Petitioner: Maria T. Thornhill, pro se
6815 Edgewater Drive, No. 105 Coral Gables, Florida 33133
For Respondents: John R. Sutton, Esquire
Sutton & Montoto
7721 Southwest 62nd Avenue, Suite 101 South Miami, Florida 33143
STATEMENT OF THE ISSUE
Whether the Respondents discriminated against the Petitioner and retaliated against her, in violation of Sections 760.23(8) and (9) and 760.37, Florida Statutes (1999).
PRELIMINARY STATEMENT
DOAH Case No. 00-3014
On or about April 13, 1999, Maria T. Thornhill filed a Housing Discrimination Complaint with the Department of Housing and Urban Development ("HUD"), which was transmitted to the Florida Commission on Human Relations ("FCHR") for investigation. In the complaint, Ms. Thornhill alleged that she had been the victim of "[d]iscriminatory acts under Section 818 (coercion, Etc.)" and "[f]ailure to make reasonable accommodation." Ms. Thornhill identified March 16, 1999, as the most recent date on which the alleged discriminatory acts took place, and she identified "The Admiral Farragut Condo. Apts.
Assoc. Inc." as a Respondent, together with the following current and former officers and directors of Admiral Farragut Condominium Apartments Association, Inc. ("Association"): Tracy Watkins, Past-President; Laura Khachab, Past-Vice President; Carlos Flores, Past Treasurer; Linda MacKey, Board Member; Daphne O'Sullivan, Board Member; Pat Crews, Board Member; Nancy Morgan, President; Cheryl Culberson, 1st Vice President; Carolyn Toohey, 2nd Vice President; Pat Godard, Secretary; and Deane Hundley, Treasurer.
Ms. Thornhill stated the following as the facts on which she based her housing discrimination and coercion complaint:
I have a disability and submitted information from my doctor to the Board to request a reasonable accommodation. The previous Board and the current Board denied the accommodation. Furthermore, I have been subjected to harassment by the Board because of my request. The Board President, Nancy Morgan, physically attacked me and I have a fear for my life. I had a watch order placed with the police. Since that encounter, I have received permit complaints from the Zoning Board as well as a visitation by two inspectors. The steps had been in place for two years prior to this visitation.
Ms. Thornhill did not specify in her Housing Discrimination Complaint the nature of the "reasonable accommodation" that she contended the Board had denied.
The FCHR proceeded to investigate Ms. Thornhill's discrimination complaint, and, on May 2, 2000, the FCHR issued a
Determination of No Reasonable Cause, in which it advised
Ms. Thornhill that "[b]ased on the evidence obtained during the investigation, the FCHR has determined that reasonable cause does not exist to believe that a discriminatory housing practice has occurred." The FCHR advised Ms. Thornhill that she had the right to file a civil action in state or federal court or to request formal administrative proceedings by filing a Petition for Relief with the FCHR within 30 days of the date on which the Determination of No Reasonable Cause was mailed. Ms. Thornhill filed an undated Petition for Relief with the FCHR, which was transmitted to the Division of Administrative Hearings on
July 21, 2000, for assignment of an administrative law judge.
In the Petition for Relief, Ms. Thornhill named as Respondents "Admiral Farragut Condominium Assoc, Inc., et al." She included the following allegations:1
RESPONDENT HAS VIOLATED THE FLORIDA FAIR HOUSING ACT, AS AMENDED, IN THE MANNER SPECIFICALLY DESCRIBED BELOW:
Not allowing for a "Reasonable Accommodation" for a handicap, both "PHYSICAL & MENTAL" after medical questionaires [sic] prepared by FCHR were filled out & sent in by MD's
At time I rented (12 yrs ago) the "Board" conducted an interview & were [sic] all aware of [the] disability I suffer from.
At time of purchase, Board made "steps" an excuse not to approve purchase after steps had been there for 4 yrs & had
been approved verbally by 2 Board members, Tracy Watkins & Carols Flores. I found out that the Board president was going to be putting a contract on my unit and wanted it with "the cute little wooden steps." See FCHR's copy of written statement from Carolyn Toohey to arbitration complaint filed by Respondent. I was further advised by Board member "Laura Kashab" [sic] that "a person with my problem should not be buying there (referring to her need for steps)." I was further advised that in 1969 Respondent took a man in a wheelchair to court to stop him from buying there & won. So this shows a "pattern of discrimination" already established before.
Steps were put there after a fire in my apartment blocked both existing exits and were "given" to me as a birthday present by my friends for my "SAFETY" and "Peace of mind", God Forbid, I were to be put in that situation again.
I reserve the right to add more to this petition once I receive all documents & log notes which I have requested & paid to FCHR.
A "Reasonable Accommodation" in keeping steps there where they are in no ones way whatsoever. See video, Mark Shumacher, expose. See attached case law.
THE DISPUTED ISSUES OF MATERIAL FACT, IF ANY, ARE LISTED BELOW:
A physical & mental handicap was proven by MD reports on "questionaire" [sic] prepared by FCHR and not by relying on a "speculation" on a phone conversation with Dr. Berti where "I am told" he was asked if I could sit on balcony could I "jump" down. Dr. Berti is willing to testify & also establish that he has never seen balcony in question.
A 12 year court case based in
2 countries & 5 courts, including Supreme Court, more than established, by "independent reports of MD's" chosen by the court that I do have a disability & my "quality" of life as I knew it completely changed after my accident. All court documents are "public records" in Court in Miami, Florida.
I reserve the right in "ALL" answers to this "Petition for Relief" to amend & add to after I receive all documents & notes by FCHR.
This issue of the steps happened because of a fire in my apartment 4 years ago not for any other reason. Both exits were blocked by fire and the only way out was the balcony, at that time I had a boyfriend which carried me off balcony to get out & that is why my friends gave me the steps as a birthday present. Also available are "hospital records" of my son's third degree burns. The reasons for stating where these documents are is because since the Respondent had me investigated by a private PI [indecipherable], they must have all this information already.
Where it states that I agreed to "permanently remove the steps" was only "temporary" removal. Never did I promise to "permanently" remove them since I had been working with HUD in Miami, Ms. Diane Cook- Lee, since before the purchase & she was the one giving me the instructions as to what was my legal remedy through HUD, i.e. requesting the Board, after the purchase, with a written request for a "reasonable accommodation" together with my doctors [sic] letter & the laws of HUD that have to do with this situation.
The March 17 letter that Respondent claims I received is NOT true. At that
time, my apartment was piled up with furniture & 3 or 4 workers at a time while the floors were being done in Saturnia.
They claim someone signed a certified receipt and cannot identify who it was or where it was put. The 2 reasons cited by Mr. Clement, that he says the Respondent gave as to the obvious "THEFT" of my steps by the Board are not true. The Declaration, & By-Laws state that anything external must have Board approval. Both Tracy Watkins & Carlos Flores, of the Board knew of the steps, saw them & approved. The fact that the Respondent never did anything about the steps for 4 years also leads me to believe it was acceptable.
The Respondent said steps are an "added liability" is also untrue since it would only be used by me and is out of everyone's way.
Back to Condo Bylaws & Declaration also clearly states [sic] that the boat docks of the condo "belong to the Association and are to be used by all without discrimination." But this does not apply to certain members of the Association without any records whatsoever of anyone either "owning or
99 year leases" which would make those individual people sell their apartments for
$50,000 to $75,000 more than the rest of the Association, all while the entire Association to date must pay for the maintenance of the docks, but cannot use them; that too is discrimination.
Where Respondent claims untimely filing of complaint, at the time of the Dec[ember] 97 letter to which they refer did not own apartment & did not know if I would be able to purchase it at that time. Also, I immediately answered letter giving explanation for the steps and the then President of the Assoc did NOT make the letter a part of the condo documents or even show the rest of the Board. (See consent
letter to purchase by Pat Crews in your records). Also, my impairment, after my accident, has substantially limited my major life activities and to state a few; no more children, no jumping, lifting, running, driving for 2 years, no water or snow skiing, no tennis, no bikes, no [indecipherable], no sleeping on stomach - in other words, my major life activities have been affected both physically & mentally & monatorily [sic]. The steps are a "necessity" that will & do enhance my quality of life, since I have already experienced a fire where that was the only way out. Also my coordination is no longer what it used to be as well as my endurance especially with my right front foot having remained numb after my operation. When I requested that Mr. Clement send Dr. Berti pictures of the balcony and decent [sic], he refused.
When I asked that he contact Dr. Shafee was for Mr. Clement to see that all the "RETALIATION" by Respondent to me & my son, including death threats, (ALL ON VIDEO - which I can make available), I fell sick & rushed to the hospital emergency room where I had to be revived twice and kept in the hospital, it was established that the "stress" I was being put through by the Retaliation caused it. Headaches continued to the point that both my spinal cord & brain were swelling and I had to start seeing Dr. Shafee for that. To date, I have to take daily medication for that ailment too.
Also my disability was more than established and is public record as stated before for
12 years.
It is incredible that the President of the Association has on numerous occasions stated her "political connections" and that
Mr. Clement found not in favor of any issues that I have proof of. That certain
President provides secretarial services to the City of Coral Gables and has always touted her "connections."
The stealing of the steps and all consequent violations by the City of Coral Gables was initiated by Respondents theft and numerous "anonymous calls" to the City.
THE ULTIMATE FACTS ALLEGED & ENTITLEMENT TO RELIEF ARE AS LISTED BELOW:
Discrimination occurred when I was made to do things & pay for approval to buy that another tenant did not have to go through a few months prior & by making the steps an issue when they were there for 4 years. As relief, I want a formal apology to be made part of the condo records, the steps and payment for all attorneys fees and repairs because of retaliation and for medical bills.
On August 7, 2000, the Association filed a Motion to Dismiss and Answer to Petition for Relief, in which it set forth several grounds to support its request that Ms. Thornhill's Petition for Relief be dismissed. The Motion to Dismiss was denied in an order entered August 30, 2000. On September 12, 2000, the Association filed a Motion for Reconsideration of Respondent's Motion to Dismiss, as well as a request for oral argument on the motion for reconsideration. After oral argument, the motion for reconsideration was granted, but, upon reconsideration, the Order Denying Motion to Dismiss was left undisturbed. Counsel for the Respondent was, however, given
leave to file a new motion to dismiss based on a new ground first stated in the motion for reconsideration.
On October 11, 2000, the Association filed its Renewed Motion to Dismiss and Memorandum of Law, and Ms. Thornhill filed her answer in opposition to the renewed motion. After a telephone hearing during which oral argument was heard from both the Association attorneys and Ms. Thornhill, a Recommended Order of Dismissal was entered on November 7, 2000. The recommendation of dismissal was based on Ms. Thornhill's filing in the Circuit Court of the 11th Judicial Circuit in and for Miami-Dade County a counterclaim against the Association in a civil action it had filed against Ms. Thornhill. In the counterclaim, Ms. Thornhill raised the same charges of discrimination and retaliation against the Association, based on virtually the same factual allegations, as she raised in her Petition for Relief. The undersigned concluded that
Ms. Thornhill was barred from pursuing an administrative action for discrimination and retaliation against the Association. The file of the Division of Administrative Hearings was, accordingly, closed, and the matter returned to the FCHR for final agency action.
In an order entered March 15, 2001, the FCHR dismissed the Association as a Respondent, but remanded the case for hearing with respect to the eleven individuals named in Ms. Thornhill's
Housing Discrimination Complaint dated April 13, 1999. The file of the Division of Administrative Hearings was re-opened on March 30, 2001, but an Order Closing File on Remand was entered on April 23, 2001. There were two bases for the Order Closing File: First, there was nothing in the documents sent to the Division of Administrative Hearings by the FCHR that established that the FCHR had served a copy by certified mail of
Ms. Thornhill's Petition for Relief on the eleven named individuals that the FCHR had determined were Respondents in the case; service of a copy of the petition is required by the FCHR's Florida Administrative Code Rule 60Y-8.001(1). Second, assuming that the individual Respondents had been properly served with a copy of the petition, there was nothing in the documents sent to the Division of Administrative Hearings by the FCHR that established that the Respondents had filed an answer to the Petition for Relief; such an answer was required by the FCHR's Florida Administrative Code Rule 60Y-8.001(4) that was in effect at the times material to this proceeding.
In an Order Remanding Petition for Relief from a Discriminatory Housing Practice entered February 11, 2002, the FCHR determined that service of the Petition for Relief on the attorneys for the Association was sufficient notice to the eleven individuals named as Respondents in the Housing Discrimination Complaint and that the Answer and Motion to
Dismiss filed by the Association would be considered the answer of the eleven individuals. The file of the Division of Administrative Hearings in DOAH Case No. 00-3014 was, therefore, reopened by order entered April 18, 2002, and the case was scheduled for hearing on May 21 and 22, 2002, together with DOAH Case No. 02-1056, which was forwarded to the Division of Administrative Hearings on March 14, 2002.
DOAH Case No. 02-1506
In a Housing Discrimination Complaint dated March 27, 2001, Ms. Thornhill alleged that discriminatory acts in the form of retaliation had occurred. Ms. Thornhill named as Respondents the Association, Nancy Morgan, Ray and Laura Khachab, Estate of Pat Godard, Tom Lott,2 Doug King, Cheryl Culberson, and Deane Hundley. In the complaint, Ms. Thornhill alleged:
I am suffering retaliation from the Admiral Farragut Condominium Association. I filed a Fair Housing Complaint in March of 1999. I have suffered retaliation in the forms of, [sic] being taken to court in a civil suit, have had my life threatened, had my boat sank, my mail has been tampered with, my home has had a lien placed on it from the City of Coral Gables, and I have been followed by investigators. Retaliation is a violation of the Fair Housing Act, as amended.
Ms. Thornhill identified the "most recent date" on which discrimination occurred as November 7, 2000. The FCHR issued its Determination of No Reasonable Cause on February 21, 2002.
On March 11, 2002, Ms. Thornhill filed a document entitled Urgent - Petition for Relief. In the petition, Ms. Thornhill identified as Respondents Gary Davidson, Esquire; Patrick C. Barthet, Esquire; Patrick C. Barthet, P.A.; Tracy Watkins; Laura and Raymond Khachab; Estate of Pat Godard; Carlos Flores; Linda MacKey; Daphne O'Sullivan; Pat Crews; Nancy Morgan; Cheryl Culberson; Carolyn Toohey; and Deane Hundley. Ms. Thornhill described the specific manner in which the Respondents violated the Fair Housing Act as follows:
(See attached Exhibit A - Web Site Office of NY State Attorney General)[not attached to the copy of the petition filed with the Division of Administrative Hearings]
(Emphasis in original.)
Ms. Thornhill alleged the following in the Urgent - Petition for Relief as disputed issues of material fact:3
In the NO CAUSE Determination dated February 20, 2002, the writer states in page 4, 3rd paragraph:
"To pursue Ms. Thornhill's allegations that Respondents were prejudiced against persons with disabilities, the investigator asked the association's treatment about others with such conditions. A unit owner
I have been living here for fourteen years now and bought in 1999. The unit owner that she refers to lives directly above me. The apartment was rented out for the most part, until a few years ago that the owners moved in. An architect has stated that if a ramp was to have been erected from the steps to the pool, the wheelchair and Mother, would have fallen flat on their face, due to the elevation level. Also, has the investigator ever called any of the "old timers" that have lived here always? They can tell you no ramp ever existed! i.e. Carlos or Eva Flores.
There were no problems prior to my purchase that were of any importance. The problems started because I was trying to let unit owners know what the Board was doing with regards to the HUD Reasonable ACCOMMODATION Request. The Association tore up letters, and refused to advise anyone. Never, was it my intent, to file against my home. I was left with no choice but to file the Complaint, after the Association hired an attorney, Nancy Wear to an Annual Meeting and claimed it was normal procedures, when it was in retaliation against me.
Ms. Wear's words and the Association's words were recorded by Ms. Wear and myself. Tapes available [sic] why has the investigator never asked to hear them or see them?
Additionally, the correspondence which I was trying to make the owners aware of, had
Ms. Diane Cook-Lee's telephone number for
anyone to call her with any questions regarding accommodations or laws of HUD.
To this day, Dr. Berti has not been called to clear up the "Sit & Jump" as reported by Matthew Clement. Dr. Berti has never been out here to see the 3 foot by 6 foot patio, and was, if at all, given a hypothetical situation to comment on.
The writers [sic] giving any credence to a letter written by a painter, Doug King, NOT SIGNED, who on video threatened my life and my son's is unbelievable. Further on video, while the "Board" was hiding in the garage, while they took my Mercedes, this same painter is screaming at me both in Spanish and English, "I told you to move your car, you "…………" [sic]. Video available.
The writer says in page 1 paragraph 3, "The Association's only intention has simply been to have Ms. Thornhill voluntarily abide by the bylaws, rules and regulations which equal [sic] govern each and all of its members" I agree with. Well, why have certain members here continued to "break the rules" for as long as 15 years and are not told anything. Even after the City of Coral Gables cited them and the corrections as early as a month ago, have not been corrected to date? i.e. permits?
Why has the Board, together with certain members, not tell [sic] the truth regarding leases which claim to be in effect on our "common element" property that affect us all in dollar amounts? Why do they hide the leases? Why have the Kashab's [sic] just bought from the Estate of Pat Godard, and given themselves additional footage on the docks? Why have the Kashabs [sic] used and continue to use for over 14 years, forty feet of dock space, when he has the ONE AND ONLY LEASE for 22 feet? Is this not prejudice, discriminatory and yes fraudulent? See attached "Newsletter".
[The newsletter was not attached to the copy of the petition filed with the Division of Administrative Hearings.]
Why would an investigator, Matthew Clement, decide that though I have a disability, he wants me to sit and jump?
The steps, in the back patio that are referred to as "installed" were 3 little wooden steps that sat up against the patio edge. They were built by very good friends while she was pregnant at night after work. They were given to me as a "surprise birthday gift", with much love and work, due to the fire my son had in the apartment on December 27, 1995.
It has been the purpose of the Boards, past and present, to TAKE my home, business, boat, car, and Rolex watch. The reason my contract was not accepted by Tracy Watkins on the day I presented it to her, is because she is the one that wanted my apartment,
yes, with the "cute little wooden steps" as directly told to me by another owner that next day.
The Court action which the writer refers to was totally prejudiced. I was not allowed an attorney or jury, in closed doors for five days, when my body finally gave out as reported to the Judge by three doctors. The Judge refused and gave the "Association" the case. He also stated, that if at a later time I wished to present my case I could (in transcripts). When I tried, he refused.
The attorneys for the Association never sent me the Judgement [sic] or documentation saying I had lost by default. The Association did not win on merit. My case was never presented. I am sure if I were given the opportunity to present my case in front of a jury, I will prevail. I do not lie and I do not cheat and I do not wish anyone harm in any way, and never have and still so not [sic]. If anything, I pray for
these few people who have done what they have done to a single mother, with a disability that gives me excruciating pain at times worse than others. I instead have minded my own business and not gotten in the way of anyone. I truly believe that all this boils down to jealousy and envy.
This is too much to address at this time, since I have a few hours left before I AM RAIDED, AGAIN. By Nancy Morgan and the Kashabs [sic], and Gary Davidson representing them in this malicious discrimination against me.
(Emphasis in the original.)
After receiving clarification from Ms. Thornhill regarding the status of Gary Davidson, Esquire; Patrick Barthet, Esquire; and Patrick C. Barthet, P.A.; an order was entered on May 16, 2002, dismissing these persons as Respondents in this case. An order was also entered on May 16, 2002, dismissing Carlos Flores as a Respondent; this was done at Ms. Thornhill's request.
Finally, on or about May 16, 2002, the style of the case was amended to identify Tom Lott and Doug King as Respondents; although Mr. Lott and Mr. King were included as Respondents in Ms. Thornhill's March 27, 2001, Housing Discrimination Complaint and were listed by the FCHR as having received copies of the Transmittal of Petition filed with the Division of Administrative Hearings on March 14, 2002, Ms. Thornhill did not include them as Respondents in the Urgent - Petition for Relief,
and they were not included in the style of the case on the FCHR's Transmittal of Petition.
Even though DOAH Case No. 02-1056 was not consolidated with DOAH Case No. 00-3014, both cases were scheduled to be heard together on May 21, 2002, because the factual issues arose out of the same set of circumstances and the parties were virtually identical.
Summary of proceedings and evidentiary rulings.
On May 10, 2002, the Respondents filed a Request for Pre- Hearing Conference. The request was granted, and a lengthy pre-hearing conference was conducted by telephone on May 14, 2001. A Pre-Hearing Order was entered on May 15, 2002, in both DOAH Case No. 00-3014 and DOAH Case No. 02-1056, in which the
legal issues in these cases were identified; the factual issues in these cases were identified insofar as possible; the burden of proof and the order of proof were set forth, and the procedures relating to telephonic testimony at the final hearing were established.
At the hearing on May 21, 2002, Ms. Thornhill presented the testimony of Nancy Morgan, Luis Pereda, William Potts, Douglas King, and Penny Matthews,4 and Petitioner's Exhibits 1 through 13 were offered and received into evidence. Although not included in the transcript of the proceedings filed with the Division of Administrative Hearings, the hearing was reconvened on May 22,
2002, at which time Ms. Thornhill advised that she had retained an attorney on the evening of May 21, 2002, and that he was available for a telephone conference. A telephone conference was held, with Henry G. Ferro, Esquire, appearing by telephone. Mr. Ferro confirmed that Ms. Thornhill had retained him, and he requested a continuance of the final hearing to allow him time to prepare Ms. Thornhill's case. The request for a continuance was granted, and an order memorializing this ruling was entered on June 7, 2002. The continuation of the hearing was scheduled for October 9 through 11, 2002. Neither Ms. Thornhill nor the Respondents presented any evidence during the hearing on May 22, 2002.
On Ms. Thornhill's motion, a continuance of the October 9, 2002, hearing was granted, and the continuation of the final hearing was re-scheduled for February 12 and 13, 2003. On February 11, 2003, counsel for Ms. Thornhill filed a Motion to Withdraw as Counsel. A telephone conference was held, which included Ms. Thornhill, and the motion to withdraw was granted and memorialized in an order entered February 12, 2003. During the February 11, 2003, telephone conference, Ms. Thornhill requested a continuance of the hearing scheduled for
February 12, 2003, to allow her time to retain other counsel. The request was granted, and the February 12, 2003, hearing was continued. On April 10, 2003, Ms. Thornhill advised that she
had been unable to retain an attorney. Consequently, the continuation of the final hearing was scheduled for May 7 through 9, 2003. On May 2, 2003, Ms. Thornhill filed a motion for a continuance of the final hearing, asserting that she should be given an additional 60 days in which to retain an attorney. The motion was granted in an order entered May 7, 2003, and the continuation of the final hearing was re-scheduled for July 23 and 24, 2003.
At the hearing on July 23 and 24, 2003, Ms. Thornhill testified in her own behalf and presented the testimony of Cheryl Culberson. Petitioner's Exhibits 14, 15, 17, 18, 20,
22 through 24, 27 through 29, and 31 through 40 were offered and received into evidence. Petitioner's Exhibits 16, 21, 25, 26, and 30 were rejected, and Ms. Thornhill made proffers of Petitioner's Exhibits 16, 21, 25, and 30.
The Respondents objected to the admission of Petitioner's Exhibit 19, marked for identification, on the grounds that the photographs depicted in the exhibit had not been previously disclosed and that the Respondents were prejudiced because they had no opportunity to formulate a response to the exhibit.
Ruling was withheld on this exhibit until presentation of all of the evidence, at which time consideration would be given to ways in which the Respondents could ameliorate any prejudice resulting for the failure to disclose the exhibit prior to
hearing. The hearing was not completed within the time scheduled in July 2003, and a further continuation of the final hearing was scheduled for September 19, 2003. The Respondents, therefore, had an opportunity to cure any prejudice resulting from the admission of Petitioner's Exhibit 19, but they did not submit such evidence. Therefore, Petitioner's Exhibit 19 is hereby received into evidence.
Petitioner's Exhibit 33 is a CD containing 23 segments of videotape, including the videotape of a television newscast and videotapes of portions of meetings of the Association's Board of Directors; the segments are identified in the CD's directory as Items A through N, Items 01 through 04, and Items Q through U. Petitioner's Exhibit 33 was received into evidence over the Respondents' objections, but the Respondents were given leave to file a written motion requesting that all or portions of the material on the CD be stricken. On August 8, 2003, the Respondents filed their objections and motion to strike several videotape segments included on the CD, and they objected to the admission of all but six of the videotape segments.
Ms. Thornhill filed a response to the motion to strike on September 16, 2003. Having carefully reviewed the 23 segments of videotape on the CD and having considered the objections raised by the Respondents, the Respondents' motion to strike is denied.5
At the hearing on July 23 and 24, 2003, the Respondents presented the testimony of Raymond Khachab, Nancy Morgan, Cheryl Culberson, Tom Lott, and Laura Khachab. Respondents' Exhibits 1 through 21 were offered and received into evidence. The hearing was adjourned at the end of the day on July 24, 2003, at the completion of direct examination of Ms. Khachab by counsel for the Respondents.
Because the Respondents did not complete the presentation of their case on July 24, 2003, a continuation of the hearing was scheduled for September 19, 2003. At the hearing on September 19, 2003, the Respondents presented the testimony of Margaret Pass, and they presented Laura Khachab for cross- examination by Ms. Thornhill; Respondents' Exhibit 22 was offered and received into evidence. Ms. Thornhill was given leave to present the testimony of Jorge Luis Padron, Alberto Delgado, and Ricardo Russi out-of-turn as part of her case-in- chief. Petitioner's Exhibits 42 and 43 were offered and received into evidence; Petitioner's Exhibit 41 was rejected.
As her case in rebuttal, Ms. Thornhill recalled Nancy Morgan as a witness, and she presented Ms. Morgan with a number of documents that had not previously been marked for identification. Ms. Thornhill was directed to send to the undersigned those documents presented to Ms. Morgan that she wished to move into evidence, which she did on September 22,
2003. The documents were marked as Petitioner's Exhibits 44 through 61 and 63 through 68,6 and the Respondents filed objections to some of these proposed exhibits on October 20, 2003. An order was entered on November 21, 2003, disposing of the objections raised by the Respondents, receiving into evidence Petitioner's Exhibits 44 through 61 and 63 through 68.
On December 5, 2003, Ms. Thornhill filed with the Division of Administrative Hearings a letter to which she attached a letter dated October 23, 2003, from Lisa A. Sutherland, an investigator with the FCHR, to Dr. Joseph Traina requesting that he complete a Medical Certification Form enclosed with the letter for his patient, Ms. Thornhill. Ms. Thornhill also attached to her December 5, 2003, letter a copy of a Florida Commission on Human Relations Medical Certification Form completed by Dr. Traina, who stated that he was Ms. Thornhill's treating medical professional. In the certification form, which is dated October 27, 2003, Dr. Traina offers his opinion regarding Ms. Thornhill's medical condition and her need for an accommodation. Ms. Thornhill stated in her letter that she was offering these documents as proof that she is disabled.
The record in these cases was closed when the final hearing was concluded on September 19, 2003, and the documents
Ms. Thornhill attached to her December 5, 2003, letter cannot be accepted as part of the evidentiary record of these proceedings.
Even if these documents could be accepted into the record, the information Dr. Traina included in the certification form cannot form the basis for a finding of fact that Ms. Thornhill is disabled because the documents contain hearsay that, without more, is not admissible into evidence over objection in a civil action. See § 120.57(1)(c), Fla. Stat. (2003)("Hearsay evidence may be used for the purpose of supplementing or explaining other evidence, but it shall not be sufficient in itself to support a finding unless it would be admissible over objection in civil actions.").7 Finally, the documents attached to Ms. Thornhill's December 5, 2003, letter are irrelevant to resolving the issue presented in DOAH Case No. 00-3014, which is whether
Ms. Thornhill was disabled at the time the Association's Board refused her request that she be allowed to retain the steps as an accommodation under the fair housing laws. The documents Ms. Thornhill attached to her December 5, 2003, letter include a certificate signed by Dr. Traina on October 27, 2003, reflecting his opinion regarding Ms. Thornhill's current medical condition.
A certified copy of the two-volume transcript of the proceedings held on May 21, 2003, was filed with the undersigned by the Respondents on July 23, 2003, the original transcript not having been filed with the Division of Administrative Hearings8; the original four-volume transcript of the proceedings held on July 23 and 24, 2003, was filed with the Division of
Administrative Hearings on October 15, 2003, and on December 22, 2003; and the one-volume transcript of a portion of the proceedings held on September 19, 2003, was filed with the Division of Administrative Hearings on October 2, 2003.9 These seven volumes of transcript, the exhibits received into evidence, and the undersigned's Notes of Video Teleconference Hearing September 19, 2003,10 comprise the evidentiary record of the proceedings in these cases.
The parties were directed to file their proposed findings of fact and conclusions of law with the Division of Administrative Hearings on or before December 10, 2003, but the time for filing was extended on a motion by Ms. Thornhill. The parties filed their proposals timely; Ms. Thornhill filed one proposal for both DOAH Case No. 00-3014 and DOAH Case No. 02- 1056, entitled Findings of Fact, Conclusions of Law & Final Judgment; the Respondent filed separate Proposed Findings of Fact and Conclusions of Law for DOAH Case No. 00-3014 and DOAH Case No. 02-1056, and these proposals have been considered in the preparation of this Recommended Order.11
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:
The Admiral Farragut Condominium Apartments ("Condominium") are located at 6815 Edgewater Drive. The Association is a not-for-profit corporation, and the owner of each apartment in the Condominium is automatically a member of the Association.
The Association was incorporated in May 1968, and, pursuant to Section 7 of the Declaration of Condominium of Admiral Farragut Condominium Apartments, the Association is charged with operating and administering the Condominium in accordance with the Declaration of Condominium and with the Association's By-Laws. Section 3.1 of the By-Laws provides that "[t]he affairs of the Association shall be managed by a board of not less than three nor more than 11 directors, the exact number to be determined at the time of election," and Section 4 of the Association's By-Laws provides that "[a]ll of the powers and duties of the Association existing under the Condominium Act, Declaration of Condominium, Articles of Incorporation and these By-Laws shall be exercised exclusively by the board of directors, its agents, contractors, or employees, subject only to approval by apartment owners when such is specifically required."
Pursuant to Section 3.6 of the Declaration of Condominium, the boundaries of the Condominium apartments include, in pertinent part, the interior building walls bounding
an apartment, the "exterior of the outside wall of the apartment building bounding an apartment and fixtures thereon," and, when balconies or terraces are attached to the apartment building and serve only one apartment, the apartment "boundaries shall be the intersecting vertical plans [sic] adjacent to and which include all of such structures and fixtures thereon."
Pursuant to Section 3.7 of the Declaration of Condominium, "[t]he common elements include the land and all other parts of the condominium not within the apartments."
The Association is responsible for the "maintenance and operation of the common elements" of the Condominium, as set forth in Section 5.2.a. of the Declaration of Condominium, and, pursuant to Section 5.2.b. of the Declaration of Condominium, "there shall be no alteration nor further improvement of common elements without prior approval in writing by the record owners of all of the apartments." Finally, Section 5.1.b.(2) of the Declaration of Condominium prohibits an apartment owner from "paint[ing] or otherwise decorat[ing] or chang[ing] the appearance of any portion of the exterior of the apartment building."
Ms. Thornhill has resided in Apartment 105 in the Condominium since 1988; she rented the apartment from its owner, Robert McTague, from 1988 until January 7, 1999, when she purchased the apartment.
Apartment 105 is located on the first floor of the apartment building, which consists of three floors and
26 apartments. Ms. Thornhill refers to her apartment as a "garden" apartment, and there are only two such apartments in the Condominium.
Apartment 105 has one door leading from the kitchen outside into the front corridor of the first floor of the apartment building and another door leading out into the corridor that Ms. Thornhill refers to as the "front" door.
Apartment 105 has a balcony along the back wall of the apartment, and the balcony is adjacent to the concrete patio surrounding the Condominium swimming pool. The balcony is elevated approximately 30 inches above the patio and is made of concrete, with an approximately waist-high concrete wall enclosing three sides of the balcony and the apartment's walls forming the fourth side. A wrought iron panel is located in the approximate middle of the back wall of the balcony, which is the long wall on the side of the balcony facing the pool/patio area.
The landscaping and swimming pool are identified in Section 3.5.b. of the Declaration of Condominium as common elements of the Condominium.
The wooden steps
On December 25, 1995, a fire started in the kitchen of Ms. Thornhill's apartment, while her son was frying pork. The
fire spread, and Ms. Thornhill evacuated the apartment by going out through the decorative wrought iron panel on the balcony, which she had converted into a gate providing direct access from her balcony onto the patio surrounding the Condominium pool.
Her then-boyfriend assisted her in evacuating the apartment. As a result of the fire, Ms. Thornhill's son suffered burns to his left hand and leg.12
During the first part of October 1997,13 Ms. Thornhill placed a set of three wooden steps leading from her balcony to the pool/patio common area of the Condominium. As one is standing on the patio facing Ms. Thornhill's balcony, the path leading to the Condominium boat docks and garden are immediately to the right of the set of wooden steps.
In a letter to Ms. Thornhill dated December 29, 1997, Nancy Morgan, the 1997/1998 President of the Association's Board of Directors, advised Ms. Thornhill that the wooden steps were discussed at the December 15, 1997, meeting of the Association's Board and that the Board members agreed that the steps had to be permanently removed. Ms. Morgan provided Ms. Thornhill with the following explanation of the basis for the Board's decision: "While they [the steps] possibly represent an added convenience for you, they intrude into the pool/patio area (which is a common element of the property) and appear to be a physical adjunct of the building."
Ms. Thornhill wrote a memorandum to the Association's Board dated January 7, 1998, in which she stated:
The steps are there for the following two purposes:
Use by me after disability so there isn't any jumping. Since my accident I am not to be jumping and all other activities that have to do with my back.
I use the patio as a secondary exit for this apartment. I have been told by a Fire Marshall that one should have two fire exits out of every room. The kitchen exit is too close in proximity to the front door to be considered a separate exit. The back patio serves as the primary emergency exit for both the bedroom and the living room which is where I spend most of my time.
I respectfully send you this memo so you can see it is not "for my convenience" but for my health. I thank you in advance for your cooperation.
The Association did not respond to Ms. Thornhill's request, and the steps remained in place, apparently without incident.
Ms. Thornhill was injured in 1987, when she fell on the island of St. Maarten. Dr. Aldo Berti, a neurosurgeon, performed surgery on Ms. Thornhill on May 11, 1987, which included a L5 laminectomy with a L5-S1 discectomy.14
Ms. Thornhill has suffered from back pain and numbness in her right foot since the surgery.15 She was not under the care of a
neurosurgeon between February 1996 and January 2002, but she was under the care of a neurologist and an orthopedic surgeon.
After Ms. Thornhill received the settlement from the lawsuit involving her fall in St. Maarten, she signed a contract in October 1998 with the owner of Apartment 105, Bob McTague, to purchase the apartment. She presented the contract to Tracy Watkins, the president of the Association at the time.
Ms. Watkins would not accept the contract and told Ms. Thornhill that she needed to fill out an application to request the Association's approval to purchase Apartment 105.16 After this conversation, Ms. Thornhill promptly prepared a memorandum, dated October 23, 1998, confirming that she had signed the purchase contract, noting that Ms. Watkins had advised her that she would have to fill out various papers regarding her request for approval to purchase the apartment, and requesting that she be provided the papers as soon as possible so that she could submit her application in time for the November 9, 1998, Board meeting because the bank "requires the condo approval right away."
In a memorandum dated November 9, 1998, and addressed to Ms. Watkins, Ms. Thornhill questioned why the Board was not taking up her approval to purchase her apartment at the Board's November 10, 1998, meeting. Ms. Thornhill observed that it was "strange" that Ms. Watkins did not return her earlier telephone
call asking when the Board would meet and issue the approval letter necessary for her to obtain financing. Ms. Thornhill also questioned why the Board was having her screened and a background check done before the Board would approve her purchase of Apartment 105 since she had been living in the apartment for ten years. Ms. Thornhill also asked why the approval process was so "'mysterious'" and stated "I feel I am being "singled out" and considering the past situations here with me, am I again being discriminated upon?"17
When Ms. Morgan learned that Mr. McTague had agreed to sell Apartment 105, Ms. Morgan, who was not on the Board at the time, decided to comment on two matters that concerned her. In a letter to Ms. Watkins dated November 9, 1998, Ms. Morgan asserted that Ms. Thornhill was conducting business from her apartment on a regular basis, as evidenced by daily employee activity and frequent UPS deliveries, and pointed out that this was not permitted by either the Association rules or the City of Coral Gables Building and Zoning Code. Ms. Morgan also objected to the steps leading from Ms. Thornhill's balcony to the pool/patio area of the Condominium and expressed her concerns about the steps as follows:
2. None of us, as owners or tenants, is allowed to erect any structure, temporary or permanent, without permission by the Board of Directors and a consensus of members of the Association. The wooden steps adjacent
to the balcony on Apartment 105 are an eyesore, are permitted in opposition to the guidelines we all must follow and are an insult to the rest of us who cannot construct anything we would like to "personalize" our units. The steps should not be allowed to exist unless a proper request is made and the Board decides to approve it. As you and other members of the Board may recall, I wrote to Mr. McTague requesting his cooperation. He did not respond and I feel frustrated that the Board has not taken any further action.
Ms. Morgan suggested in the letter that Ms. Thornhill be required to follow the rules and regulations applicable to all of the residents of the Condominium if she was to be approved to purchase Apartment 105.
In a memorandum dated November 10, 1998, and addressed to Ms. Watkins, Ms. Thornhill advised that she attached the "Application for Occupancy" that she had filled out and signed that day. Ms. Thornhill noted that she had sent it to O'Connor Credit Research & Information Service, and she requested that someone from the Board call to authorize the company to begin processing the application.
In a letter dated December 4, 1998, and placed on
Ms. Thornhill's apartment door, the Association's Board advised Ms. Thornhill as follows:
The Board of Directors of Admiral Farragut hopes to approve your application and welcome you as an owner/resident of
Unit 105. Unfortunately, however, due to you expressed unwillingness to comply with
the rules and regulations (as set forth in the Declaration of Condominium and recorded in the public records of Dade County), we regret our inability to approve your application at this time.
Specifically, as discussed on previous occasions, it is necessary for you to permanently remove the wooden steps adjacent to the balcony of Unit 105 in the pool/patio area and agree to abide by the rules and regulations regarding this and all other issues. These rules and regulations ensure fairness, continuity, consistency and equality in matters related to our communal property for all owners of Admiral Farragut.
We have enjoyed you as a member of this community for many years, and sincerely wish to approve your application. The approval process, however, is hampered only by your unwillingness to comply with the same rules that apply to everyone else. It is our duty to uphold these regulations.
In response to the Board's condition on the approval of her application to purchase Apartment 105, Ms. Thornhill agreed in writing to remove the wooden steps from adjacent to her balcony. The Association approved her purchase, and
Ms. Thornhill closed on her apartment on January 8, 1999.
Even though she agreed to remove the steps as requested by the Association's Board, Ms. Thornhill never intended to remove them permanently. Ms. Thornhill replaced the wooden steps shortly after she closed on her apartment.
After she replaced the wooden steps, Ms. Thornhill requested in a memorandum dated February 2, 1999, that the Board allow her to keep the steps, and she stated in pertinent part:
I would like to respectfully request that the Board allow me to keep steps for reasonable accommodations for my safety due to my handicap, so that I may be able to get out in case of an emergency, i.e. fire etc. At the time the "steps" were put out there, my son had an unfortunate incident whereby not only did the kitchen catch fire, but so did the hallway going to the front door.
Due to my medical limitation, I cannot jump, run or even maneuver as well as others.
I would very much like for the Board to grant this exception. Of course, I understand that I will conform to what the exterior already has, plain concrete steps as those in the breezeway area and will have them made at my expense.
Ms. Thornhill attached a copy of the memorandum she had written to the Board dated January 7, 1998, and a copy of information she claimed to have received from a representative of the Department of Housing and Urban Development ("HUD") relating to the prohibition of discrimination because of handicap to the February 2, 1999, memorandum.18
On or about February 15, 1999,19 Ms. Thornhill also provided the Board with a letter from Dr. Berti, the surgeon who operated on her back in 1987, which states in its entirety:
This is to certify that the above patient has been under my care for many years and suffers from Cauda Equina Syndrome as a result of a fall.
The patient has limitations of gait and she will benefit from steps leading from her apartment which, in case of an emergency, will make it easier for her to exit the premises.
If there are any questions concerning the patient, please contact my office.
At the meeting held on February 17, 1999, the Board deferred consideration of Ms. Thornhill's request that she be allowed to keep the steps because a new Board of Directors was to be elected at the March 9, 1999, meeting, and the sitting Board decided to allow the new Board to consider the request.
Ms. Thornhill was very upset that her request was not approved at the February 17, 1999, meeting. Subsequent to that meeting, Ms. Thornhill wrote memoranda to the Association's Board and the owners of apartments in the Condominium dated February 18, 1999, and February 19, 1999, which contained complaints that she had been mistreated throughout the 11 years she had been living in the Condominium; contained threats directed to the Board members and apartment owners; and contained allegations of wrongdoing by the Board members and other apartment owners. In the memoranda, Ms. Thornhill also notified the Board and all apartment owners at the Condominium that she was filing a discrimination complaint under the Fair Housing Act; that she had reported the Association's Board of Directors to the state Bureau of Condominiums for wrongdoing;
and that she would report any owners who, without a permit, "pick[ed] up a hammer & nail" do work on their apartments.20
The Annual Meeting of the Association's members/owners was held on March 9, 1999, for the primary purpose of electing a new Board of Directors. The Board retained Nancy Wear, an attorney, to conduct the meeting and to maintain order during the meeting. This was the first time the Board had retained an attorney to attend either an annual meeting or a Board meeting.
Ms. Morgan was elected president of the Association's Board of Directors during the March 9, 1999, meeting, replacing Ms. Watkins, and a new Board of Directors was elected to serve until March 2000. Ms. Thornhill announced at the meeting that she had filed a complaint with HUD and that she would be adding the new members of the Board to the complaint.
The new Board reviewed Ms. Thornhill's memorandum of January 7, 1998, and Dr. Berti's February 15, 1999, letter, which she provided in support of her February 2, 1999, request that she receive the Board's approval for the steps. The Board was not satisfied that this information established that
Ms. Thornhill was legally handicapped and that the steps were a necessary accommodation for her. Members of the Board were not certain that Ms. Thornhill was handicapped because she had often been observed going up and down a ladder on the boat docks to get to her boat, climbing into and out of her boat, stooping,
walking without obvious difficulty or problems with her gait, going up and down the stairs between the four floors of the Condominium building, and exiting her balcony through the gate to the pool/patio area when the steps were not there by grabbing the railing and lowering herself to the patio.
The Board did not approve Ms. Thornhill's request that she be allowed to keep the steps on March 9, 1999, but, instead, asked Ms. Thornhill to provide a letter from her doctor stating that she was legally handicapped and a letter from the fire marshal stating that an emergency exit from her apartment by way of the balcony was necessary.21
In a memorandum dated March 15, 1999, to the Association and Ms. Watkins as president, headed "ADDITIONAL EVIDENCE OF DISCRIMINATION AND 'FRAUD,'" Ms. Thornhill stated: "New fraud charges consist of the way Tracy Watkins, let drop last minute, at the Annual Board of Directors Meeting, March 9, 1999, the list of Owners & Residents and the NEWLY FORMED 'ASSOCIATION RULES & REGULATIONS" WHICH WERE POSTDATED AUGUST 1998!!!!"22 Ms. Thornhill also stated in this memorandum that her contact at HUD suggested that Ms. Wear was not "well versed" in HUD laws and should "learn or review" them.
Ms. Thornhill also wrote a memorandum dated March 16, 1999, to the Association and Ms. Watkins, as president, noting that she saw a notice that the Association would consider
approving prospective purchasers of a Condominium apartment. Ms. Thornhill stated in the memorandum that one of the prospective purchasers had told her he had not been informed of "the legal situation this building is in, which will directly affect his apartment as well all [sic] others (except mine). I apprised him of the H.U.D. Complaint and, now, the "Additional Discrimination and Fraud".23
A Board meeting was held on March 16, 1999, with Ms. Morgan presiding; Ms. Thornhill had an associate videotape the meeting. Before the meeting was called to order,
Ms. Thornhill began passing out documents, including her February 19, 1999, memorandum, to the owners, residents, and Board members present at the meeting. Ms. Morgan called the meeting to order and asked Ms. Thornhill to stop passing out the papers so that the meeting could be conducted without disruption; Ms. Morgan advised Ms. Thornhill that she would have an opportunity "later" to speak at the meeting.
Ms. Thornhill refused to stop distributing the papers, and she approached Ms. Morgan. Ms. Morgan and Ms. Thornhill engaged in a brief verbal confrontation, during which Ms. Morgan grabbed at the papers in Ms. Thornhill's hand while telling her to "back away," that she would have the opportunity to raise her issues later.24 Ms. Morgan called the City of Coral Gables police and asked that a police officer be sent to restore order,
the Board meeting was adjourned, and the Board met in administrative session.
After the March 16, 1999, meeting, Ms. Thornhill requested in a memorandum dated March 19, 1999, and addressed to the members of the Association's Board of Directors, that an emergency meeting of all of the owners be called for the purpose of considering, among other things, the removal of Ms. Morgan from the Board because Ms. Morgan "felt she had the right to physically grab, push, touch my person as well as tear up papers in my hand"25 and "[P]ersonal discrimination against me." In the memorandum, Ms. Thornhill stated:
I highly recommend that the Board think carefully about who should be on the Board and keep bigots, discriminators, non truth tellers out completely. It will also become evident that other Board members "conspired" to cover up the truth and also are involved in "FRAUD", then I will request that they too shall be removed.
This is also to make it known to the Board and ALL owners of the AFCA Condominium. The "STEPS" I have out back are there for my safety and are "MY PERSONAL & PRIVATE PROPERTY" and anyone attempting to do anything with them in any way shall pay the consequences.
Ms. Thornhill's steps subsequently disappeared, and, on March 28, 1999, she filed an Offense Incident Report with the Coral Gables police in which she reported that the steps had been stolen.
Ms. Thornhill immediately replaced the steps with a set of steps that she attached to her balcony with metal plates. The missing steps were found on the Condominium property several months after they disappeared, but neither Ms. Thornhill nor the police ever learned who had taken them.26 Ms. Thornhill stored the second set under her balcony, along with several stacks of marble tiles.27
Despite repeated requests from both the Board and from Ms. Morgan, Ms. Thornhill did not remove the steps and did not provide the Board with any documentation to establish her handicap or the need for the three steps leading from her balcony to the pool/patio area other than her memorandum dated January 7, 1998, and the February 15, 1999, letter from
Dr. Berti, and a letter dated July 19, 1999, and addressed to Ms. Thornhill from Thomas W. Allison, "Fire Marshal." The letter stated in its entirety:
This letter is to advise you that the Coral Gables Fire Department has no objection to exceeding Fire Code requirements for means of egress.
Any modification would require a permit from the Building and Zoning Department, along with the required inspections.
If I may be of further assistance please contact me.[28]
In a memorandum dated March 30, 1999, Ms. Morgan, in her capacity as president of the Association's Board of Directors, wrote to all Condominium apartment owners advising them that it was likely that there would be a financial assessment against all apartment owners to pay for legal expenses that the Association was incurring with respect to matters involving Ms. Thornhill's refusal to abide voluntarily by the Association's By-Laws and rules and regulations29 and her "personal[] and professional[]" harassment of "numerous owners."30 Ms. Morgan advised that "[d]ue to the actions of the owner of Apartment 105 (Maria Thornhill), we find it necessary to prepare for legal remedy."
On or about April 13, 1999, Ms. Thornhill filed her Housing Discrimination Complaint with the FCHR accusing the Association and various Board members with discrimination on the basis of a handicap because of the Board's refusal to give
Ms. Thornhill its approval for her to keep the steps. Building and Zoning Code violations
Based on a complaint, personnel from the City of Coral Gables Building and Zoning Department conducted an inspection of Ms. Thornhill's apartment on April 16, 1999, and found that the steps off the balcony constituted a violation of the provision of the City of Coral Gables Building and Zoning Code prohibiting exterior construction and/or alterations without a permit.
Ms. Thornhill received three notices of violation regarding the steps. Because she did not remove the steps within the time specified in the violation notices, a hearing was held before the Code Enforcement Board on June 21, 1999. The Code Enforcement Board imposed a fine, effective July 11, 1999, in the amount of $100.00 per day until the violation was corrected. It was explained to Ms. Thornhill at the hearing before the Code Enforcement Board that she needed the Association's approval before the City of Coral Gables would issue a permit for the steps.
Although the steps were removed in December 2000,
Ms. Thornhill failed to remove wood attached to the exterior of her balcony, and she, therefore, continued to be in violation of the Building and Zoning Code. As of August 8, 2003, the fine imposed against Ms. Thornhill with regard to the steps and wood on the exterior of her apartment totaled $213,075.00, and, as of September 19, 2003, the fine continued to accrue at the rate of
$100.00 per day.
A fine of $250.00 per day was imposed on Ms. Thornhill by the Code Enforcement Board at Ms. Thornhill's June 21, 1999, hearing because she was found guilty of having replaced a metal guardrail in the wall of her apartment's balcony with a gate both without a permit and without installing a self-locking latch, both violations of the City of Coral Gables Building and
Zoning Code. Ms. Thornhill brought the gate into compliance on August 23, 1999, but a total fine of $14,575.00 accrued before the gate was brought into compliance.31
Finally, a fine of $150.00 per day was imposed on Ms. Thornhill by the Code Enforcement Board at Ms. Thornhill's
June 21, 1999, hearing because she was found guilty of operating a business out of her apartment, in violation of the City of Coral Gables Building and Zoning Code. Ms. Thornhill provided an address change for her company to a post office box within the time provided in the order of the Code Enforcement Board, and no fine was levied for this violation.
All of these violations were cited as a result of inspections done by City of Coral Gables code enforcement officers in response to complaints made to the Department of Building and Zoning.32
Boat docks and ladder
A boat dock with seven boat slips is located on the canal that borders the Condominium. Six of the boat slips are subject to leases that are assigned to the owners of certain apartments in the Condominium, and one of the boat slips belongs to the Association.33 Ms. Thornhill does not own an apartment to which a boat slip lease is attached.
In January 1999, after she closed on her apartment, Ms. Thornhill first made a formal request for space to dock her
boat in the part of the boat dock that belongs to the Association. Ms. Morgan, as president of the Board, placed her name on the waiting list for dock space. The list is arranged in chronological order from the date of the request, and
Ms. Morgan advised Ms. Thornhill that two people were ahead of her.34
Ms. Thornhill owned a 16-foot Zodiac inflatable boat.
Because she did not have a boat slip, Ms. Thornhill asked
Luis Pereda, who owns an apartment to which a boat slip lease is attached, for permission to tie up her boat. Mr. Pereda refused Ms. Thornhill's request, but she nonetheless tied her boat in his boat slip for seven years. Ms. Thornhill refused to move the boat even though Mr. Pereda told her she was not supposed to use his space.35
Ms. Thornhill also installed a ladder on the dock in space owned by the Association without the Association's permission. The Association requested a number of times through the years that Ms. Thornhill remove the ladder from the Association dock area, but she refused to do so.36
Ms. Thornhill's boats
On or about April 10, 1999, Ms. Thornhill reported to the City of Coral Gables police that someone had deflated the front inflatable chambers of her boat while it was tied to the
Association's boat dock. The police report indicated that, while the front chambers were deflated, there were "[n]o signs of punctures or holes observed." On or about June 21, 2000, Ms. Thornhill again found the front chambers of her boat deflated. Ms. Thornhill's inflatable boat, which she had owned for seven years, sank shortly in or about June 2000.37
In time, Ms. Thornhill purchased a new 18-foot boat, and she again requested permission to dock her boat in the Association's dock space. The Association's Board refused her request because the Association's boat slip was assigned to another apartment owner. Ms. Thornhill nonetheless docked her boat next to Raymond Khachab's boat, on a portion of the dock belonging to the Association.38
Parking in the Condominium driveway
The Condominium has two driveways and a parking garage in which each apartment is assigned one parking place for the exclusive use of the resident(s). One of the driveways is a circular driveway located on the north side of the green space in the center of the Condominium property, and the other driveway is located on the south side of the green space. Both driveways provided egress and ingress to the Condominium property and parking garage.
It had long been the custom at the Condominium to allow parking in the north, circular driveway on an "honor
system." People understood that they could park there for short periods of time but that the north driveway was not to be used for permanent parking.
Ms. Thornhill had two cars, and she parked her second car, a 1980 Mercedes Benz that she considers a collector's item, in the Condominium's north driveway. The car was parked for long periods of time, and was covered with a car cover.
The driveway in which Ms. Thornhill parked her Mercedes Benz was used for deliveries and maintenance and emergency vehicles seeking access to the Condominium apartments, and the location of Ms. Thornhill's car made it difficult and sometimes impossible for service vehicles to maneuver through the driveway.
At the Board meeting on April 27, 1999, Ms. Morgan addressed complaints from owners and residents about people permanently parking their cars in the Condominium driveway, and, at the Board meeting on June 9, 1999, Ms. Morgan reported that the police had advised her that they would tow any cars they found parked in the Condominium's north driveway.39
When Douglas King, a painting contractor hired by the Association to paint the exterior of the Condominium buildings, was preparing to begin work in or about May or June 1999, he posted a notice that anyone whose car was parked in the north driveway should move the car so he would have access to bring in
his painting equipment. Ms. Thornhill had not moved her car when Mr. King was ready to pressure wash the building before painting it, and she refused to move her car during the entire 30-to-40 days Mr. King and his crew of three workers painted the Condominium building. Mr. King and his crew were forced to work around her Mercedes Benz, which was parked in the driveway and impaired his access to the building.
At some time that is not specified in the record, the Board enacted a rule prohibiting parking in the Condominium's north driveway and making the driveway a tow-away zone, with exceptions for vendors making deliveries, people who needed to park for a few minutes to run back into their apartments to get something, or short-term parking for a handicapped visitor who needed access to the elevator. The Board enacted this rule on the advice of legal counsel because the Board had asked
Ms. Thornhill a number of times to move her Mercedes Benz out of the driveway, and Ms. Thornhill had refused to do so.
In a letter dated March 29, 2001, from the Association, Ms. Thornhill was advised that residents were not allowed to store vehicles in the driveway and that she was to remove her car before April 3, 2001, or the car would be towed. Ms. Thornhill did not move her Mercedes Benz from the driveway, and it was towed. Ms. Thornhill's was the only car to be towed from the driveway.40
Association lawsuit against Ms. Thornhill
On June 29, 1999, the Association filed a civil lawsuit against Ms. Thornhill in the circuit court in Miami-Dade County seeking injunctive relief and damages against
Ms. Thornhill. The case was styled Admiral Farragut Condominium Association, Inc., v. Maria Thornhill, Case No. 99-15567 CA 22. The Association's Board of Directors decided to file the lawsuit because they had made numerous attempts to gain Ms. Thornhill's cooperation and agreement to abide by the Association's rules and regulations and By-Laws and had been informed by persons living in the Condominium that they would take action against the Board if it did not act to enforce the By-Laws and rules and regulations.41
Ms. Thornhill's attorney filed Defendant, Maria Thornhill's Answer to Complaint and Ms. Thornhill's Counterclaim against the Association on or about September 21, 1999. In the Counterclaim, Ms. Thornhill alleged that the Association had "authorized or acquiesced [in] a series of actions intended as harassment and retribution against Defendant [Ms. Thornhill] for filing her HUD Complaint" and that the Association refused to accommodate her disability. Ms. Thornhill requested injunctive relief requiring the Association to accommodate her disability and award her damages and attorney's fees and costs pursuant to Section 760.35(1) and (2), Florida Statutes.
In an order entered August 24, 2000, Judge Gerald Hubbart, the judge assigned to Case No. 99-15567 CA 22, granted the Association's Motion for Summary Judgment and dismissed
Ms. Thornhill's Counterclaim against the Association, with prejudice.
After a trial, Judge Hubbart entered Findings of Fact, Conclusions of Law & Final Judgment dated October 26, 2000, in which he granted the Association's prayer for permanent injunctive relief and awarded damages against Ms. Thornhill.42 Judge Hubbart's judgment includes findings of fact under the headings "The Wooden Steps"; "The Ladder Attached to the Dock"; "Operating a Business from a Residence"; "Interference With Vendors Hired by the Association"; and "Defendant's Conduct Toward AFCA and Its Residents." The following is a summary of Judge Hubbart's findings and conclusions:
The Wooden Steps: Judge Hubbart found that
Ms. Thornhill maintained steps leading to the Association's common property from her balcony; re-installed the steps without the Association's approval after she had agreed to remove the steps as a condition of obtaining the Association's approval to purchase Apartment 105; "steadfastly" refused to remove the steps despite repeated requests by the Association and its attorneys; and defied the City of Coral Gables by failing to remove the steps after being cited for a violation of city
ordinances and accruing a fine on a daily basis. Judge Hubbart concluded that the "continued presence of the balcony steps constitutes a violation of the Declaration of Condominium and, separately, the Rules and Regulations of the AFCA"; ordered
Ms. Thornhill to permanently remove the steps within 72 hours after the issuance of the final judgment and not to install or reinstall the steps; ordered that, if Ms. Thornhill failed to remove the steps as ordered, the Association could treat the steps as abandoned property and remove them; and ordered that, if Ms. Thornhill reinstalled the steps, the Association could treat them as abandoned property and remove them.
The Ladder Attached to the Dock: Judge Hubbart found that Ms. Thornhill caused a ladder to be secured to the Association's dock, which is common property of the Condominium; that Ms. Thornhill refused to remove the ladder after repeated requests to do so; that the Association removed the ladder and placed it under Ms. Thornhill's balcony, whereupon she reinstalled the ladder on the dock. Judge Hubbart concluded that the "continued presence of Defendant's ladder on the AFCA dock constitutes a violation of the Declaration of Condominium; ordered Ms. Thornhill to permanently remove the ladder within 72 hours after the issuance of the final judgment; ordered
Ms. Thornhill not to reinstall the ladder on the dock; and ordered that the Association could treat the ladder as abandoned
property if Ms. Thornhill did not remove it within the time specified or if she reinstalled the ladder.
Operating a Business from a Residence: Judge Hubbart found from the evidence presented at the trial that
Ms. Thornhill operated her business, Sheet Suspenders, Inc., from her residence in Apartment 105 of the Condominium. Judge Hubbart concluded that the "continued use of Defendant's residence to operate and conduct her business constitutes a violation of the Declaration of Condominium" and "a violation of applicable city ordinances," and he ordered Ms. Thornhill to cease operating her business from her residence within 7 days of the date of the final judgment.
Interference with Vendors Hired by the Association and Defendant's Conduct Toward AFCA and Its Residents: Judge Hubbart found that the Association had presented substantial evidence that Ms. Thornhill interfered with the Association's efforts to have the Condominium building painted by refusing to move her automobile out of the Association's driveway and interfering, disrupting, and delaying the work of the painters to the extent that the Association felt it necessary to hire off-duty police officers to "ensure the safety of the painters and to restore some semblance of order to the property." Judge Hubbart also found that evidence presented at the trial reflects "a demonstrated unwillingness on the part of the Defendant to
conform her conduct to the applicable Declaration of Condominiums and the Rules and Regulations of the Association. As well, evidence reflects Defendant's belief that she does not have to do so." Judge Hubbart ordered Ms. Thornhill to obey the requirements of the Declaration of Condominiums and the Rules and Regulations of the Association; ordered her not to interfere with "contractors, vendors or personnel retained, employed or hired by AFCA to do work for AFCA and/or on the Condominium Association grounds; and ordered her not to interfere with "the orderly administration of the Condominium Association, including
. . . actions taken by the AFCA to enforce the terms of this judgment."
In the October 26, 2000, final judgment, Judge Hubbart also awarded the Association damages against Ms. Thornhill in the amount of $907.50 for the cost of hiring "police protection for the Painters," and he retained jurisdiction to award reasonable attorneys' fees and costs to the Association as the prevailing party, pursuant to Section 718.303, Florida Statutes.
As authorized in Judge Hubbart's final judgment, on December 8, 2000, the Association removed the set of steps that was attached to Ms. Thornhill's balcony with chains and padlocks and removed the ladder that was attached to the Association dock with chains and padlocks.43 Ms. Morgan, Dr. Khachab, and the Association's attorney were present, as well as an off-duty
police officer hired to stand by while a contractor hired by the Association removed the steps and the ladder.44
On April 2, 2001, Judge Hubbart entered a Final Order on Plaintiff's Motion to Tax Attorneys' Fees and Costs Pursuant to this Court's Findings of Fact, Conclusions of Law & Final Judgment and an Order on Costs in Case No. 99-15567 CA 22.45 Judge Hubbart awarded the Association taxable costs in the amount of $2.058.35 and attorneys' fees and expert witness fees totaling $97,741.00, with interest accruing at the rate of
11% per year. Judge Hubbart also retained jurisdiction to consider attorneys' fees and costs resulting from post-judgment proceedings.
A Writ of Execution was issued on the judgment, and the Association's attorneys began their efforts to collect on the judgment.46
On or about April 5, 2001, pursuant to the Writ of Execution issued on the judgment, law enforcement personnel seized Ms. Thornhill's Mercedes Benz and the boat she had purchased to replace the inflatable Zodiac boat that had sunk.47
On February 8, 2002, Judge Hubbart entered a Final Judgment Against Sheet Suspenders, Inc., Granting Discovery Against Maria Thornhill, Order Requiring Delivery of Defendant's Rolex Watch, and Order Denying Sheriff's Sale of Condominium Homestead. Judge Hubbart based his final judgment against Sheet
Suspenders on the findings of fact that Sheet Suspenders, Inc., paid all of Ms. Thornhill's personal expenses and that
Ms. Thornhill was not working or receiving a W-2 for wages; he concluded that, as a matter of law, this evidence established a prima facie case that Ms. Thornhill was using Sheet Suspenders as her "alter ego."48 The assets of Sheet Suspenders, Inc. were subsequently seized to satisfy the judgment for attorneys' fees and costs.
Judge Hubbart also ordered Ms. Thornhill to turn over her Rolex watch to John Sutton, the Association's attorney, in the order of February 8, 2002. Ms. Thornhill failed to do so, and Judge Hubbart found her in contempt of court in an order dated April 16, 2002, and again required her to pay $4,000.00 or turn over the Rolex watch.
Finally, Judge Hubbart entered judgments of garnishment against SunTrust Bank in the amount of $887.30 and against First Bank of Miami in the amount of $2,160.77 on March 4, 2002, and January 14, 2003, respectively.49
Summary Discrimination
The evidence presented by Ms. Thornhill is not sufficient to establish that the Respondents, acting as members of the Association's Board of Directors, discriminated against her on the basis of a handicap by refusing to approve her
request to keep the set of steps leading from her balcony to the pool/patio area. First, the evidence presented by Ms. Thornhill is not sufficient to establish that she was handicapped in 1998- 1999 or up to and including September 19, 2003, the last day of the final hearing in these cases. The only creditable evidence that Ms. Thornhill presented was her uncorroborated testimony that, because she had back surgery in 1987 and suffered from back pain and numbness in her right foot after the surgery, she could not walk long distances, bend, jump, run, or engage in the same physical activities as others.50 Ms. Thornhill's description of her physical limitations does not constitute sufficiently persuasive evidence to establish that she was substantially limited in any major life activity. This is not to say that, as a matter of fact, Ms. Thornhill was not handicapped. Rather, Ms. Thornhill failed to prove by the greater weight of the evidence that she was handicapped.51
Even had Ms. Thornhill presented evidence sufficient to prove that she was handicapped during the times relevant to these proceedings, the evidence she presented is insufficient to establish that the modification she requested, and, in fact, made to her apartment without the Board's approval, was necessary for her to have access to and enjoyment of her apartment equal to that of the other Condominium apartment owners and residents. Ms. Thornhill testified that the steps
were installed for her safety shortly after the December 1995 fire in her apartment as an emergency exit from her apartment. The greater weight of the evidence establishes, however, that the steps were first installed almost two years after the fire, in October 1997, and that Ms. Thornhill used the steps as a back exit from her apartment into the pool/patio area. From this, it may be reasonably inferred that Ms. Thornhill installed the steps for her own convenience and justified them after-the-fact as providing an emergency exit from her balcony.
Moreover, even if Ms. Thornhill used the steps only as an emergency exit from her apartment, she failed to present any evidence establishing that it was necessary under the applicable fire code for her to have a third exit from her apartment or, for that matter, that it was necessary for her to have a permanent emergency exit from her balcony. The only evidence Ms. Thornhill presented to establish that the balcony exit was necessary as an emergency exit, other than her own testimony, was a letter from the fire marshal of the Coral Gables Fire Department in which he stated that the Fire Department had no objection to her exceeding the fire code's requirements regarding means of egress from her apartment. This letter fails to support Ms. Thornhill's contention that the steps were a necessary emergency exit from her apartment.
Finally, it is uncontroverted that Ms. Thornhill installed the steps in the Condominium's common elements, which is property belonging to all of the Association members that may not be altered without the approval of the Association's Board and apartment owners. To the extent that Ms. Thornhill's request that she be allowed to maintain the steps leading from her balcony to the pool/patio area can be interpreted as a request for an accommodation in the Association's rules, she has, for the reasons set forth above, failed to prove that she was entitled to such an accommodation.
Retaliation
The evidence presented by Ms. Thornhill is not sufficient to establish that, by filing and maintaining a civil lawsuit against her in the Miami-Dade County circuit court, the Respondents discriminated or retaliated against Ms. Thornhill for filing her April 13, 1999, Housing Discrimination Complaint against the Association and the Respondents. First, the evidence presented by Ms. Thornhill is not sufficient to establish that the members of the Association's Board named as Respondents to Ms. Thornhill's retaliation claim directed the Association's attorneys to file a lawsuit against Ms. Thornhill to threaten or intimidate her or to interfere with her right to complain of discrimination. Rather, the greater weight of the evidence establishes that the Association filed and maintained
the lawsuit against Ms. Thornhill in an effort to require her to abide by the Association's Declaration of Condominium, its By- Laws, and its rules and regulations. The Association prevailed in its lawsuit; it was authorized in Judge Hubbart's final judgment to remove the steps and the dock ladder if
Ms. Thornhill failed to do so, and it was authorized to execute on Judge Hubbart's award of attorneys' fees and costs against both Ms. Thornhill and Sheet Suspenders, Inc. The actions taken by the Association pursuant to Judge Hubbart's judgments and orders did not constitute retaliation against Ms. Thornhill for filing a discrimination complaint with the FCHR.
Finally, Ms. Thornhill believes that she was regularly singled out by the Association's Board members and treated differently from any other owners or residents of the Condominium and that she was consistently the victim of unlawful discrimination and retaliation perpetrated by the Association's Board members and others in league with the Respondents.
Ms. Thornhill presented no evidence, however, to establish that the Respondents treated Ms. Thornhill any differently than it treated other Condominium residents and prospective purchasers. At the time Ms. Thornhill was seeking the Board's approval to purchase Apartment 105, the Association's rules required all prospective purchasers of an apartment to submit an application and pay a processing fee; when Ms. Thornhill requested dock
space, the Board followed its usual procedure and placed her name of the waiting list for dock space; at the time
Ms. Thornhill's car was towed from the Condominium driveway, she had parked the car in the driveway for a very long time, estimated in terms of weeks rather than minutes or hours, even though the residents of the Condominium were allowed to park in the driveway only for very short periods of time.
Any of the Respondents who may have complained to the City of Coral Gables Zoning and Building Department about
Ms. Thornhill's activities were entitled to do so as long as they had a good faith belief that Ms. Thornhill's activities involved a violation of the building and zoning code, and these complaints cannot be considered discriminatory or retaliatory. The evidence establishes that Ms. Thornhill was cited for a violation as a result of each complaint made to the Building and Zoning Department.
Ms. Thornhill failed to present any persuasive evidence to establish that her Zodiac inflatable boat was deliberately sunk, and she has offered no evidence to establish the identity of any person who might have deliberately sunk the boat. Ms. Thornhill has, therefore, failed to establish that the fact that the boat sank constituted discrimination and retaliation against her.
The evidence presented by Ms. Thornhill is not sufficient to prove with the requisite degree of certainty that Mr. King, the painter, discriminated against her on the basis of a handicap or retaliated against her because she filed the
April 13, 1999, Housing Discrimination Complaint with the FCHR.52
Ms. Thornhill failed to adduce any evidence to establish that Tom Lott committed any act that could be construed as discrimination against her on the basis of a handicap or retaliation against her for filing a housing discrimination complaint with the FCHR.
CONCLUSIONS OF LAW
The Division of Administrative Hearings has jurisdiction over the subject matter of this proceeding and of the parties thereto pursuant to Sections 120.569 and 120.57(1), Florida Statutes (2003).
These cases involve Ms. Thornhill's charges that the Respondents discriminated against her on the basis of a handicap and that the Respondents retaliated against her for filing a housing discrimination complaint with the FCHR. Ms. Thornhill, therefore, has the burden of proving by a preponderance of the evidence that the Respondents unlawfully discriminated and retaliated against her. See § 120.57(1)(j), Fla. Stat.(2003)("Findings of fact shall be based upon a preponderance of the evidence, except in penal or licensure
disciplinary proceedings or except as otherwise provided by statute, . . ."); § 760.34(5), Fla. Stat.(2003)("In any proceeding brought pursuant to this section or s. 760.35, the burden of proof is on the complainant.").
DOAH Case No. 00-3014: Discrimination against Ms. Thornhill on the basis of handicap
Sections 760.20 through 760.37, Florida Statutes, are known collectively as the Florida Fair Housing Act.
Section 760.23(8), Florida Statutes (1999), makes it
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:
(a) That buyer or renter.
Section 760.23(9), Florida Statutes (1999), provides as follows:
For purposes of subsections (7) [not relevant to these proceedings] and (8), discrimination includes:
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.
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.
In order to prevail on her claim of discrimination, Ms. Thornhill must prove (1) that she is handicapped as defined in the Florida Fair Housing Act; (2) that the Respondents knew or reasonably should have known of her handicap; (3) that she requested a reasonable modification to her apartment or a reasonable accommodation under the Association's rules and regulations necessary to afford her an equal opportunity to use and enjoy her apartment; and (4) that the Respondents refused to provide the necessary reasonable modification or reasonable accommodation. See United States v. California Mobile Home Park Management Co., 107 F.3d 1374, 1380 (9th Cir. 1997).53 Based on the findings of fact herein, it is concluded that Ms. Thornhill failed to prove by a preponderance of the evidence that the Respondents discriminated against her on the basis of a handicap when, acting in their capacity as members of the Association's Board of Directors, they, or any one of them, refused to approve Ms. Thornhill's request that she be allowed to keep the steps leading from the balcony of her apartment to the pool/patio area of the Condominium.
"Handicap" is defined in Section 760.22(7), Florida Statutes (1999), in pertinent part, as follows:
"Handicap" means:
A person has a physical or mental impairment which substantially limits one or
more major life activities, or he or she has a record of having, or is regarded as having, such physical or mental impairment.
Ms. Thornhill failed to prove that she had a physical impairment that substantially limited one or more of her major life activities in 1998-1999 and up to and including September 19, 2003, when the final hearing was concluded. Ms. Thornhill proved that she had surgery on her back in 1987 and that she has numbness in her right foot, but she did not present expert testimony regarding her medical condition and physical limitations. Ms. Thornhill's uncorroborated testimony about her physical limitations is not sufficient evidence to prove that she was handicapped as defined in Section 760.22(7)(a).54
Even if Ms. Thornhill had proven that she was handicapped, she failed to prove by a preponderance of the evidence that the steps leading from her balcony were necessary to her full enjoyment of her apartment. The court in Gavin v. Spring Ridge Conservancy, Inc. 934 F. Supp. 685, 687 (D. Maryland 1995), observed that "the duty to make a reasonable accommodation does not simply spring from the fact that the handicapped person . . . wants such an accommodation made." The court held that a more stringent requirement must be met to prove unlawful discrimination under the federal Fair Housing Act Amendment:
Significantly, the statute does not talk in terms of accommodations and/or modifications that are simply convenient to a handicapped individual's use or enjoyment of the property. Rather, discrimination occurs when the handicapped individual has been deprived of the right to make a reasonable modification, or if there has not been a reasonable accommodation, that is necessary to full enjoyment of the premises or an equal opportunity to use and enjoy a dwelling as is afforded to non-handicapped persons.
Id. Even assuming that Ms. Thornhill were handicapped, the greater weight of the evidence establishes that the use of the steps as a back exit from her apartment to the pool/patio area was not necessary for her full use and enjoyment of her apartment, but, rather, constituted a convenience for
Ms. Thornhill that was not enjoyed by other residents of the Condominium, and the Respondents, as members of the Association's Board of Directors, were not required to give such a preference to Ms. Thornhill. See Sporn v. Ocean Colony Condominium Ass'n, et al., 173 F. Supp. 2d 244, 250 (D. New Jersey 2001)(accommodation should not extend preference to handicapped residents relative to other residents rather than afford handicapped residents equal opportunity to use and enjoy their dwelling).
DOAH Case No. 02-1056: Retaliation against Ms. Thornhill for filing a Housing Discrimination Complaint
Section 760.37, Florida Statutes (1999), provides:
It is unlawful to coerce, intimidate, threaten, or interfere with any person in the exercise of, or on account of her or his having exercised, or on account of her or his having aided or encouraged any other person in the exercise of any right granted under ss. 760.20-760.37. This section may be enforced by appropriate administrative or civil action.
In order to prove that the Respondents are liable for retaliation, Ms. Thornhill must prove that that the Respondents coerced, intimidated, threatened, or interfered with her exercise of a right under the Florida Fair Housing Act; discriminatory animus is inherent in a retaliation claim. See
Gourlay v. Forest Lake Estates Civic Association of Port Richey, Inc., 276 F. Supp. 2d 1222, 1235 (M.D. Fla. 2003)("Under the Eleventh Circuit's interpretation, it appears that liability [for retaliation] exists if a plaintiff can demonstrate that:
a defendant coerced, intimidated, threatened, or interfered;
with a; (a) plaintiff's exercise of a right under
Sections 3603-3606 [of the federal Fair Housing Act Amendments];
plaintiff's enjoyment of a housing right after exercise of that right; or (c) plaintiff's aid or encouragement to a protected person to exercise or enjoy a housing right; (3) because of a discriminatory animus.")(citing Sofarelli v. Pinellas County, 931 F.2d 718, 721-23 (11th Cir. 1991)). The Respondents can be liable for retaliation against Ms. Thornhill even though she has failed to prove that the Respondents
violated Section 760.23(8) and (9), Florida Statutes. See id. at 721.
For the reasons stated below and based on the findings of fact herein, it is concluded that Ms. Thornhill has failed to prove by a preponderance of the evidence that the Respondents are guilty of retaliation against her for filing her April 13, 1999, Housing Discrimination Complaint with the FCHR.
Ms. Thornhill's evidence was insufficient to prove that the Respondents retaliated against her by reporting her to the City of Coral Gables Building and Zoning Department; by refusing to give her dock space; by requiring her to pay a fee and to submit an application requesting approval to purchase her apartment; by sinking her inflatable boat; or by towing her car from the Condominium driveway.
Ms. Thornhill also failed to prove that the Respondents could be held liable for retaliating against her because of the lawsuit for injunctive relief or for the actions taken to enforce the final judgment against Ms. Thornhill and to collect the attorneys' fees and costs awarded the Association. Generally, a person's right to petition the government is protected by the Noerr-Pennington doctrine:
While the Noerr-Pennington doctrine originally arose in the antitrust context, it is based on and implements the First Amendment right to petition and therefore,
with one exception [involving labor law],
. . . applies equally in all contexts.
* * *
The Noerr-Pennington doctrine ensures that those who petition the government for redress of grievances remain immune from liability for statutory violations, notwithstanding the fact that their activity might otherwise be proscribed by the statute involved. See Professional Real Estate Investors, Inc. v. Columbia Pictures Indus., Inc., 508 U.S. 49, 56, 113 S.Ct. 1920, 123
L.Ed.2d 611 (1963). Noerr-Pennington is a label for a form of First Amendment protection; to say that one does not have Noerr-Pennington immunity is to conclude that one's petitioning activity is unprotected by the First Amendment. With respect to petitions brought in the courts, the Supreme Court has held that a lawsuit is unprotected only if it is a "sham" -- i.e., "objectively baseless in the sense that no reasonable litigant could realistically expect success on the merits." Id. at 60, 113 S.Ct. 1920.
* * *
Applying these principles to the present case, it follows that the plaintiffs' state- court lawsuit could have amounted to a discriminatory housing practice only in the event that (1) no reasonable litigant could have realistically expected success on the merits, and (2) the plaintiffs filed the suit for the purpose of coercing, intimidating, threatening, or interfering with a person's exercise of rights protected by the FHA [Fair Housing Act]. . . .
Objective baselessness is the sine qua non of any claim that a particular lawsuit is not deserving of First Amendment protection.
White v. Lee, 227 F.3d 1214, 1231-1232 (9th Cir. 2000).
The greater weight of the evidence in this case supports the conclusion that the lawsuit filed against
Ms. Thornhill by the Association was protected by the Noerr- Pennington doctrine because the lawsuit was not objectively baseless. The Respondents had a legitimate basis for deciding to file the lawsuit: They sought, on behalf of the Association, an injunction requiring Ms. Thornhill to abide by the Association's rules and regulations. The Association not only prevailed in the lawsuit, but the Respondents had an objectively reasonable expectation of success on the merits when they authorized the Association's attorneys to file the lawsuit.
Under the test outlined by the court in White, the lawsuit is protected by the First Amendment, and the Respondents are, therefore, immune from liability for violations of
Section 760.37, Florida Statutes (1999). Cf. United States v. Wagner, 940 F. Supp 972, 980 (N.D. Texas 1996)(defendants' lawsuit not protected by First Amendment because lawsuit sought to exclude handicapped residents by prohibiting establishment of group home for disabled and because lawsuit had no reasonable basis in law or fact).
The Association was authorized in the judgment against Ms. Thornhill to remove the steps and the ladder to the dock, and these activities are protected and cannot be the basis for holding the Respondents liable for retaliation against
Ms. Thornhill. Likewise, the Association was awarded attorneys' fees and costs pursuant to Section 718.303, Florida Statutes, as the prevailing party in a lawsuit to enforce the Association's Declaration of Condominium, By-Laws, and rules and regulations, and the efforts to execute on the judgment for attorneys fees, including obtaining a judgment against Sheet Suspenders, are protected and cannot be the basis for holding the Respondents liable for retaliation against Ms. Thornhill.
The evidence presented by Ms. Thornhill to support her claims of discrimination and retaliation consisted primarily of statements, in memoranda and police reports that she introduced into evidence and in her testimony and other statements made during the hearing, of her subjective beliefs and conclusions that the Respondents singled her out, discriminated and retaliated against her, and engaged fraud and other wrongdoing. Subjective beliefs and conclusions based on such beliefs, however, do not constitute legally sufficient evidence to support charges of intentional discrimination and retaliation. See Gavin, 934 F. Supp. at 687.
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 Maria T. Thornhill's
Petition for Relief in DOAH Case No. 00-3014 and her Urgent - Petition for Relief in DOAH Case No. 02-1056.
DONE AND ENTERED this 27th day of February 2004, in Tallahassee, Leon County, Florida.
S
PATRICIA HART MALONO
Administrative Law Judge
Division of Administrative Hearings The DeSoto Building
1230 Apalachee Parkway
Tallahassee, Florida 32399-3060
(850) 488-9675 SUNCOM 278-9675
Fax Filing (850) 921-6847 www.doah.state.fl.us
Filed with the Clerk of the Division of Administrative Hearings this 27th day of February 2004.
ENDNOTES
1/ There are numerous spelling and grammatical errors in Ms. Thornhill's petition, but only some of the more obvious errors have been designated with "[sic]."
2/ Mr. Lott was called as a witness by the Respondents, and he testified that, although he was on the Association's Board of Directors at one time, he was not a member of the Board when issues came up regarding Ms. Thornhill's compliance with Association rules and regulations. During Ms. Thornhill's cross-examination of Mr. Lott, the undersigned asked
Ms. Thornhill why she had named Mr. Lott as a Respondent in DOAH Case No. 02-1056. Ms. Thornhill replied that Mr. Lott had participated in retaliatory actions that the Board allegedly took against her. Ms. Thornhill did not specify the actions in which Mr. Lott participated, and nothing in his or
Ms. Thornhill's testimony links him to any action that could be
considered retaliation for Ms. Thornhill's filing a discrimination complaint with the FCHR.
3/ As with the Petition for Relief in DOAH Case No. 00-3014, there are numerous spelling and grammatical errors in
Ms. Thornhill's petition, but only some of the more obvious errors have been designated with "[sic]."
4/ Ms. Thornhill also subpoenaed Caridad Garrido, in-house counsel of Union Planters Bank, and Leo Benitez, an attorney representing Union Planters Bank in a lawsuit against
Ms. Thornhill to recover under a promissory note that obligated her to make payments to Union Planters Bank on a loan for the purchase of a boat. Ms. Garrido and Mr. Benitez both appeared at the final hearing on May 21, 2001, but, on motion, the subpoenas were quashed on the ground that the lawsuit by Union Planters Bank against Ms. Thornhill was not logically related to the discrimination and retaliation claims at issue in these proceedings.
5/ The Respondents did not request that Segments D, K, Q, R, S, or T be stricken from Petitioner's Exhibit 33, and the remaining videotape segments, while of questionable relevance in proving facts material to these proceedings, have not been stricken from the evidentiary record because Ms. Thornhill has been allowed the widest latitude possible in the presentation of evidence to support her discrimination and retaliation claims against the Respondents. It should be noted, however, that Segment B is a videotape of a television broadcaster reporting on the controversy between Ms. Thornhill and the Association over the three steps leading from her balcony to the condominium pool/patio area. In the segment, the reporter makes statements that are based on the assumption that facts in dispute in this proceeding are true, and a legal "opinion" is rendered by a person identified as an attorney specializing in condominium law regarding the proper resolution of Ms. Thornhill's discrimination claim. These portions of Segment B constitute hearsay evidence, see § 90.801, Fla. Stat. (2003), and, because the statements of the reporter and the opinion of the attorney do not supplement or explain other evidence and would not be admissible over objection in a civil action, these portions of Segment B cannot form the basis for findings of fact that the matters asserted in the reporter's statements or in the attorney's opinion are true. See § 120.57(1)(c), Fla. Stat. (2003).
Few, if any, findings of fact have been based on the videotape segments in Petitioner's Exhibit 33. All of the audio portions of the videotape segments are hearsay, and fall within the limitation set forth in Section 120.57(1)(c), Florida Statutes (2003), discussed above. In addition, the audio in some of the videotape segments is unintelligible; some of the statements made have no discernable relevance to the issues presented in these cases; and the significance of some of the statements made cannot be evaluated because the videotape segments do not include sufficient context.
6/ Two documents sent separately by Ms. Thornhill were combined into Petitioner's Exhibit 63, and, as a result, there is no document marked as Petitioner's Exhibit 62.
7/ Section 90.801, Florida Statutes (2003), provides, in pertinent part, as follows:
(1) The following definitions apply under this chapter:
A "statement" is:
An oral or written assertion; or
Nonverbal conduct of a person if it is intended by the person as an assertion.
A "declarant" is a person who makes a statement.
"Hearsay" is a statement, other than one made by the declarant while testifying at the trial or hearing, offered in evidence to prove the truth of the matter asserted.
8/ There was no transcript filed of the proceedings that took place on May 22, 2002. No substantive matters were addressed on May 22, 2002, because Ms. Thornhill announced that she had hired an attorney and, during a telephone conference with
Ms. Thornhill's new attorney, a continuance of the hearing was requested and granted.
9/ The court reporter was transcribing from the Tallahassee, Florida, video teleconference location and had difficulty hearing the parties who were located at the Miami, Florida,
video teleconference site. In her letter filed October 20, 2003, Ms. Thornhill identified several clerical errors in the transcript:
Page 11, line 11: should be "judgment" not "judge";
Page 12, line 25: should say to "present" not "attend";
Page 14, line 15: is "theft" not "death";
Page 14, line 17: should read "was finally sunk";
Page 126, line 5: is "Luis" not "Reese";
Page 26, line 9: should read "at that time" not "at a time";
Page 26, line 17: should read "to the association" not "with the association";
Page 28, lines 7 through 9: is "raids" not "rates";
Page 31, line 5: should read "that I have gone" not "that I have done."
The undersigned has reviewed the transcript of the September 19, 2003, hearing, and these corrections are hereby incorporated into the transcript as errata.
10/ After several hours of hearing on September 19, 2003, the parties and the undersigned realized that the hearing had been conducted with no court reporter present to transcribe the proceedings. The undersigned had assumed that, in accordance with the request of the clerk of the FCHR, a court reporter was present at the video teleconference site in Miami, Florida, and Ms. Thornhill and counsel for the Respondents assumed that the court reporter was present with the undersigned at the video teleconference site in Tallahassee, Florida.
With the agreement of the parties, the undersigned transcribed her notes of the proceedings on September 19, 2003, and sent them to Ms. Thornhill and counsel for the Respondents for their review and comments. On November 19, 2003, upon reviewing the comments of Ms. Thornhill and counsel for the Respondents, the Notes of Video Teleconference Hearing September 19, 2003, was amended, and this document, as amended, shall, with the agreement of the parties, be considered the reconstruction of the record of that portion of the hearing on September 19, 2003, that was not transcribed by a court reporter.
11/ As set forth in the Order Consolidating Cases entered this date, the undersigned will enter only one Recommended Order for both DOAH Case No. 00-3014 and DOAH Case No. 02-1056. The
consolidation of these cases for purposes of this Recommended Order will avoid duplication and unnecessary confusion in the presentation of the findings of facts and conclusions of law.
12/ Petitioner's Exhibit 9.
13/ Ms. Thornhill's representations and testimony during the hearing regarding the approximate date on which the steps were first placed adjacent to the gate of her balcony were inconsistent. Ms. Thornhill stated that the steps were in place on October 7, 1997. (Transcript of May 21, 2002, hearing at 66.) Ms. Thornhill stated that the steps were a birthday gift given to her soon after the December 1995 fire in her apartment. (Transcript of July 23, 2002, hearing at page 64.) She also stated that the steps were given to her as a surprise in October of the "next year" following the fire. (Transcript of May 21, 2002, hearing at page 136.)
The finding of fact that the steps first appeared in October 1997 is based on the admission in paragraph 5 of the Counterclaim Ms. Thornhill filed in the circuit court action styled Admiral Farragut Condominium Association, Inc., v. Maria Thornhill, Case No. 99-15567 CA 22, that the steps were placed at the edge of her balcony on or about October 7, 1997.
Respondents Exhibit 7, as corroborated by Ms. Thornhill's statement during the May 21, 2002, hearing noted above.
14/ Ms. Thornhill testified only that she had injured her back in an accident on St. Maarten and that she had back surgery as a result of the injury. The information as to the date and nature of the surgery was extracted from the medical history
Ms. Thornhill provided to Joseph Traina, M.D., a neurosurgeon, who performed an independent medical examination of
Ms. Thornhill on January 28, 1994. See Petitioner's Exhibit 34. Those portions of Dr. Traina's January 28, 1994, Neurosurgical Consultation report that include Ms. Thornhill's description of her medical history would be admissible over objection in a civil action and, therefore, may form the basis for a finding of fact herein. See § 90.803(4)(Hearsay Exceptions; Statements for purposes of medical diagnosis and treatment) and § 120.57(1)(c), Fla. Stat. (2003).
15/ In his report of Neurological Consultation dated January 28, 1994, Dr. Traina points out an inconsistency between
Ms. Thornhill's description of her medical history and her medical records. Ms. Thornhill reported to Dr. Traina during
the January 28, 1994, examination that she stayed at bed-rest for months after her back surgery and that "she could not walk and she had to learn to walk again using a walker." Dr. Traina observed in his report, however, that "Dr. Berti's office note from June 1, 1987, describes a return office visit in which the patient [Ms. Thornhill] was walking independently, not requiring the use of a cane anymore." This information is also inconsistent with Ms. Thornhill's testimony at the hearing that she was bedridden for a year after her back surgery, was paralyzed from the waist down, and had to teach herself to walk again.
16/ Section 11.2. of the Declaration of Condominium requires that the Association approve "the transfer of ownership" of the apartments and may not unreasonably withhold the approval.
Section 11.2.b.(1) of the Declaration of Condominium provides that, "[I]f the proposed transaction is a sale, then within
30 days after receipt of such notice and information [notice of intent to sell and information concerning the intended purchaser] the Association must either approve or disapprove the proposed transaction."
17/ Ms. Thornhill testified that the rules were changed when she decided to buy Apartment 105 and that she was singled out and discriminated against because she was required to go through an application and screening process that no one else was required to go through and to pay a fee that no one else was required to pay. Ms. Thornhill supported this contention with her uncorroborated assertions, first, that Deane Huntley was approved to purchase an apartment three months before she purchased her apartment and that "[h]e did not have to go through anything that I had to go through, no screening, no hundred dollars," and, second, that Ms. Watkins wanted to buy Apartment 105. Not only is this unsubstantiated testimony insufficient to prove that Ms. Thornhill was the only prospective purchaser that had to go through a screening and approval process and pay a fee to obtain approval to purchase Apartment 105, it is insufficient to prove that Ms. Thornhill she was singled out and treated differently on the basis of a handicap.
18/ The document, which is attached to Petitioner's Exhibit 2, appears to contain excerpts from the Code of Federal Regulations, but there is not enough information provided in the document to confirm its source.
19/ Although Dr. Berti's letter is attached to Petitioner's Exhibit 2, which is Ms. Thornhill's February 2, 1999, memorandum, Dr. Berti's letter is dated February 15, and, therefore, must have been provided to the Board separately.
20/ See Petitioner's Exhibits 53 and 54. Ms. Thornhill did not present persuasive evidence to prove the truth of the allegations she made in the memoranda, particularly those leveled in Petitioner's Exhibit 53 against Laura Khachab and Daphne O'Sullivan.
Petitioner's Exhibit 54 is a memorandum dated February 19, 1999, from Ms. Thornhill to the Board and to the owners and residents of all the units in the Condominium in which
Ms. Thornhill states in part:
I had one simple request "to keep my steps out back" due to the circumstances outlined in continuous memo's [sic] from me to the "Board". I was willing to work things out with the Board before the filing of this [discrimination] Complaint until
YOUR FRIENDLY "ANONYMOUS CALLER"
decided to "snitch" on me for work being done inside my apartment. This action has caused me time, money, delays, anxiety, stress and sleeplessness. Therefore I found it my "civic duty" to report all who I am aware of, that have done work on their apartments INCLUDING the "Board of Directors" for having work done on this building without visible permits etc. and by hiring a handyman without a license to work on electrical, plumbing etc.
What does this mean to you?………TIME, MONEY (ALLOT [sic] OF IT) & FROM NOW ON ANYONE WANTING TO PICK UP A HAMMER & NAIL WILL HAVE TO GET A "PERMIT" AND MORE!!!!
I believe that all owners should "get involved" as to the practices of the "PRESENT" Board of Directors.
I WILL NEVER AGAIN BE TOLD "THAT I SHOULDN'T HAVE BOUGHT HERE BECAUSE "I HAD A PROBLEM" WHICH REQUIRED THE STEPS OUT BACK!!!!!!!!
So, anyone who is not happy or has a problem with me, I AM WILLING TO BUY OUT!!!! of
course, as a distress sale!
21/ Ms. Thornhill contended that Cheryl Culberson, an apartment owner and former resident of the Condominium, made modifications in the common elements to accommodate her wheelchair-bound mother without having to provide a doctor's letter or other documentation and had not been penalized as she was being penalized. In 1993, Ms. Culberson, who resided in the Condominium at the time, was given permission to use a temporary wheelchair ramp to move her mother, who had suffered a massive stroke that paralyzed her right side, into and out of the pool/patio area. Ms. Culberson kept the ramp in her car because she used it when she took her mother to the hospital and to her residence in Islamorada, Florida. When Ms. Culberson wanted to move her mother into the pool/patio area, she would set up the ramp between the steps of the breezeway and the patio; when her mother left the pool/patio area, Ms. Culberson would fold up the ramp and place it back in her car. Because the ramp remained in the common elements of the Condominium only while
Ms. Culberson's mother was in the pool/patio area and was removed after each visit, this accommodation is distinguishable from the one requested by Ms. Thornhill and does not support Ms. Thornhill's argument that she was discriminated against on the basis of a handicap.
22/ Ms. Thornhill charged that Ms. Watkins fraudulently revised the Association rules governing the process for obtaining the Association's approval for the purchase or lease of an apartment without going through the proper procedures and post-dated the rules to August 1998. Ms. Thornhill's claim that Ms. Watkins devised new rules and post-dated them to August 1998 is contradicted by Petitioner's Exhibit 17, which are handwritten minutes of the Association's Board meeting of May 30, 1998, indicating that the Board "reviewed the procedures for new tenants a/o [and/or] owner of a unit," confirmed "grandfathering" of the tenant/owner screening process "in accordance with Rules and Regulations of 199[?]," and voted to impose a fee for the screening process. (Ms. Thornhill claimed
in her testimony that these minutes were fabricated after-the- fact.)
On March 22, 1999, Ms. Thornhill completed an "Information Needed for Filing a Complaint" with the Dade County State Attorney's Office, charging the Association with fraud and discrimination that she claimed occurred on March 9 or 10, 1999, and was witnessed by all those present at the Annual Meeting of the Association. Apparently she was referring in the complaint to her contention that Ms. Watkins post-dated rules and regulations that were first made available to the apartment owners at the March 9, 1999, meeting. There is no evidence that the State's Attorney instituted any action against the Association on the basis of Ms. Thornhill's complaint.
23/ There is no evidence of record that Ms. Thornhill had filed a HUD complaint prior to April 13, 1999.
24/ Excerpts from a videotape of the March 16, 1999, meeting, taken by Ms. Thornhill's associate, are included in Petitioner's Exhibit 33, and item D is an edited version of this incident.
On March 17, 1999, Ms. Thornhill filed a complaint with the Coral Gables police alleging that Ms. Morgan had battered her by grabbing her arm, causing bruises. Ms. Morgan was interviewed at the State's Attorney's office as a result of the battery charged by Ms. Thornhill, but she was never charged with battery as a result of the Ms. Thornhill's complaint.
25/ See endnote 23, supra.
26/ Ms. Thornhill speculates that it was a Board member or owner of an apartment at the Condominium.
27/ The area under the balcony is part of the Condominium's common elements, and the Association repeatedly asked
Ms. Thornhill to remove the materials from under the balcony.
28/ The letter was received into evidence as Petitioner's Exhibit 35, even though it was not authenticated and even though, because it is hearsay, it cannot form the basis for a finding of fact. See § 120.57(1)(c), Fla. Stat. (2003).
29/ In the memorandum, Ms. Morgan specifically pointed out Ms. Thornhill's conversion of the "balcony's original ironwork design into a gate which provided direct access to the pool/patio"; the installation by Ms. Thornhill of the steps
leading from the balcony gate to the pool/patio, her written agreement to remove the steps when she was seeking Association approval to purchase Apartment 105, and her subsequent re- installation of the steps and request to install permanent steps; and Ms. Thornhill's refusal to halt, during extensive remodeling begun after she purchased Apartment 105, "an invasion of areas outside the interior of the unit [Apartment 105]. i.e. into the structure and foundation of the building," without the Association's permission or the proper permits from the City of Coral Gables.
30/ Several of the Respondents testified that Ms. Thornhill was aggressive, confrontational, and threatening in her dealings with Board members when the Board advised her that she must remove the steps leading from her balcony as a condition of receiving the Board's approval for her purchase of Apartment 105 and after the Board refused her February 2, 1999, request for the Board's approval to keep the steps.
31/ After the owner of the other garden apartment in the Condominium was also cited for transforming the iron guardrail into a gate without a permit and for failing to have a self- latching gate, the owner had the gate soldered shut.
32/ Dr. Khachab reported Ms. Thornhill to the Code Enforcement Department when he discovered that persons working on
Ms. Thornhill's apartment renovations had apparently cut through a support beam running across the garage because he was worried that the building's structure had been weakened. A code enforcement officer employed by the City of Coral Gables came out in response to Dr. Khachab's complaint, and issued a notice of violation to Ms. Thornhill because her permit was not sufficient to cover the work that was being done on the renovation of her apartment. Ms. Thornhill immediately obtained the correct permit, and the work on her apartment continued.
33/ When a person buys an apartment to which a boat slip is attached, the purchaser receives an assignment of the lease at closing. The total sales price for those apartments to which a boat slip lease is attached includes a price for the apartment and a price for the boat slip lease. Ms. Thornhill contends that the issue of the boat slips and the leases assigned to certain of the apartments at the Condominium are relevant to the issues of discrimination and retaliation. Ms. Thornhill asserted that the retaliation against her started after she began asking questions about the boat slips and learned about
the boat slip leases. Ms. Thornhill believes that the boat slip leases are illegal and that "[p]eople have been pocketing money for the past 18 years when it is the association property," and she also believes that the existence of the boat slip leases was deliberately hidden from her.
The legality of the boat slip leases was litigated by the Association in 1983, and a Summary Final Judgment was entered on May 20, 1983, in which the court permanently enjoined the Association from attempting to cancel the respective boat slip leases of the plaintiffs, who owned certain apartments in the Condominium. Ms. Thornhill contends that the judgment was obtained only because false and fabricated information was given to Judge Hickey in the 1983 action. As was explained to
Ms. Thornhill during the hearing, the Division of Administrative Hearings has no jurisdiction to determine the legality of the boat slip leases.
34/ In or about September 2000, Ms. Thornhill sent a check to the company that the Association's Board of Directors had hired to manage the Condominium. The manager returned her check because Ms. Thornhill intended it to be rent on dock space, but no dock space had been assigned to her.
At the time of the hearing on September 19, 2003,
Ms. Thornhill is the second person on the list for dock space, and she will be given dock space as soon as it is her turn.
35/ Ms. Thornhill insisted, even in the face of Mr. Pereda's repeated denials under oath, that Mr. Pereda had given her permission to tie her boat in part of his boat slip.
36/ At the July 1999 Board meeting, the Board voted again to request that Ms. Thornhill remove her ladder from the boat dock. Ms. Thornhill did not present evidence to controvert the testimony of Ms. Culberson, who was a member of the Board at that time and in her first year of law school, that she was awakened by a telephone call from Ms. Thornhill one night shortly after this meeting, during which Ms. Thornhill told
Ms. Culberson that her ladder was missing and made statements that Ms. Culberson perceived as threats. After Ms. Culberson was admitted to the Florida Bar in December 2001, Ms. Thornhill filed a complaint against her with the Florida Bar Association, which was ultimately dismissed.
37/ Ms. Thornhill believes that the boat was sunk by one of the apartment owners at the Condominium, although she presented no evidence to prove this contention. Dr. Khachab speculated during his testimony that the boat could have been deflated as a result of rubbing up against the barnacles that encrusted the concrete pilings of the boat dock.
38/ Dr. Khachab owns an apartment to which a boat slip lease is attached.
39/ Petitioner's Exhibit 33, items K and Q.
40/ Ms. Thornhill contends that the Association's action in having her car towed from the driveway demonstrates that the Association singled her out and discriminated against her.
There is no allegation or evidence in the record that
Ms. Thornhill needed or requested assignment of a parking place in the driveway of the Condominium to accommodate a handicap.
41/ During the spring of 1999, before the Association filed its complaint against Ms. Thornhill, Ms. Thornhill and the Association participated in arbitration. The subject matter of the arbitration proceeding and the significance of the arbitration proceeding to these proceedings were not made clear in the record.
42/ Ms. Thornhill claimed that the civil proceeding against her was a "kangaroo court" and a "joke." She asserted, among other things, that Judge Hubbart was biased against her and in collusion with one of the Association's attorneys; that Judge Hubbart refused to take her illness and medications into consideration and conducted the trial in spite of
Ms. Thornhill's telling him she was not capable of going through a trial; that Judge Hubbart dismissed her attorney and refused to allow her time to get another attorney; and that Judge Hubbart did not let her put on a defense or have a jury trial.
The undersigned explained numerous times that she did not have the authority to overturn the judgment of a circuit court judge. Ms. Thornhill claimed at the hearing on July 24, 2003, that she had never seen the Findings of Fact, Conclusions of Law & Final Judgment entered October 26, 2000. Ms. Thornhill did, however, appeal the final judgment, but the Third District Court of Appeal dismissed her appeal.
43/ On December 19, 2000, Laura Khachab, Dr. Khachab's wife and a Respondent in these cases, saw a man preparing to install a
ladder on the Association's dock. The man told Ms. Khachab that Ms. Thornhill had instructed him to install the ladder.
Ms. Khachab called the police and showed them a copy of Judge Hubbart's judgment ordering the removal of the steps.
Ms. Thornhill told the police that it was okay to replace the ladder because she had gotten a permit for the ladder from the City of Coral Gables. Ms. Thornhill did not, however, replace the ladder.
44/ Ms. Thornhill claimed that Dr. Khachab was so impatient that he pitched in and helped remove the steps and that he stole
$5,000.00 worth of marble that was under her balcony and two planters that she had placed in the pool/patio area. She offered no evidence to support these allegations.
45/ Ms. Thornhill testified that she never received notice of the hearing on the motion for attorneys' fees or a copy of the judgment awarding the Association attorneys' fees.
Ms. Thornhill appealed the order, but the appeal was dismissed by the Third District Court of Appeal.
46/ The Association's attorney petitioned the court on or about April 4, 2001, for a "break order" allowing officers of the Metro-Dade Police Department to forcibly enter Ms. Thornhill's residence to seize items of personal property, including electronics, china, DVDs, jewelry, and computer. Judge Hubbart denied the motion as being unsupported by legal authority and of "dubious constitutionality." See Petitioner's Exhibit 24.
47/ Ms. Thornhill testified that police came unannounced to take her Mercedes Benz and her new boat. Ms. Thornhill also testified that, when she came out of her apartment to see what was going on, there were 25 policemen and people everywhere.
Ms. Thornhill claimed that the police mistreated her; that a policeman threw her to the ground; that a man who had identified himself as the sheriff sat on her back for at least 15 minutes, even though she told him about her back surgery; and that she was handcuffed, arrested, and taken to jail.
Ms. Thornhill argued that the police treatment of her was retaliation against her by the Board, because the Board supported the actions taken against her. She did not, however, provide any evidence corroborating her account of the events on the day her car and boat were seized, and her testimony alone is insufficient to prove that events happened as she described. In addition, Ms. Thornhill provided no evidence beyond mere
speculation that, even if the events happened as she described, the Association's Board of Directors were in control of or in collusion with the law enforcement officers.
Ms. Thornhill speculated that Dr. Khachab was in collusion with Union Planters Bank, who held the note on the boat. The evidence presented by Ms. Thornhill to support this theory is that she heard that the boat was sold for $20.00 and that a Condominium apartment owner told her that Dr. Khachab "was very happy telling the association that he was coming into $20,000 very soon and it had to do with that boat." This evidence is not sufficient to establish any conspiracy between Dr. Khachab and Union Planters Bank to retaliate against her.
Ms. Thornhill asserted that Dr. Khachab and Jorge Zerpa retaliated against her by arranging to have the City of Coral Gables Marine Patrol arrest her on August 25, 2002, when she was out on the water in her son's boat with her son and other relatives. Ms. Thornhill contended that "[t]hey [Dr. Khachab and Mr. Zerpa] were setting it up in civil court, in Hubbart's court, three months prior." Ms. Thornhill presented no evidence to support this theory, and Ms. Thornhill's testimony is not sufficiently persuasive to establish that Dr. Khachab and
Mr. Zerpa caused her to be arrested.
48/ Respondents' Exhibit 14.
49/ On February 6, 2003, at 3:42 p.m., the Florida Secretary of State filed an Electronic Judgment Lien Certificate, in which the Association was identified as the judgment creditor and
Ms. Thornhill as the judgment debtor. The certificate establishes that the amount due under the judgment in Case Number 99-15567 CA 22 was $100,706.85. Ms. Thornhill introduced into evidence an Electronic Judgment Lien that was filed a few minutes earlier, at 3:12 p.m. on February 6, 2003, in which Raymond Khachab was identified as the judgment creditor.
Ms. Thornhill claims that Dr. Khachab filed as the judgment creditor to discriminate against her and retaliate against her. It is clear from the evidence presented, however, that the first certificate was erroneous and was subsequently corrected.
50/ Ms. Thornhill offered into evidence as proof of her handicap an affidavit dated July 28, 1999, that Dr. Berti purportedly provided to the FCHR in response to a request from Matthew B. Clement, the FCHR investigator investigating Ms. Thornhill's
claim of discrimination. See Petitioner's Exhibits 10 and 15. This affidavit is hearsay that, on the record herein, would not be admissible over objection in a civil action and, therefore, cannot be used as the basis of a finding of fact pursuant to Section 120.57(1)(c), Florida Statutes (2003).
Ms. Thornhill also offered as evidence of her handicap what she identified as three pages from the records of the FCHR investigation of her discrimination claim. The first two pages include what appear to be notes of a telephone conversation with Dr. Berti on January 4, 2000, regarding Ms. Thornhill's medical condition and limitations and the third page appears to be an excerpt from a report summarizing Ms. Thornhill's discrimination complaint and the FCHR investigation of the complaint. There is handwriting on the documents that Ms. Thornhill identified as her handwriting. The three-page composite exhibit was received into evidence as Petitioner's Exhibit 11, but the undersigned explained to Ms. Thornhill that the entire exhibit was hearsay, that the summary of the conversation with Dr. Berti was hearsay within hearsay, and that nothing contained in the document could be the basis of a finding of fact that she was handicapped. See
§ 120.57(1)(c), Fla. Stat. (2003). Ms. Thornhill was advised when Petitioner's Exhibit 11 was received into evidence that she needed to present testimony to establish that she was handicapped, as that term is used in the Florida Fair Housing Act.
Ms. Thornhill also offered into evidence as proof of her handicap a 12-page composite exhibit consisting of undated Patient Teaching Instructions relating to Percocet, Flexeril, and Sprains; the report of a Neurosurgical Consultation performed on Ms. Thornhill by Dr. Joseph Traina on January 28, 1994; a report of a Neurosurgical Consultation performed on Ms. Thornhill by Dr. Traina on July 30, 2002; and several reports of Radiologic Consultation dated July 25, 2002. This composite exhibit was received into evidence as Petitioner's
Exhibit 34, a portion of which has been discussed in endnotes 13 and 14, supra. With the exception of the statements
Ms. Thornhill made to Dr. Traina for the purpose of medical diagnosis and treatment, the information in these documents is hearsay. Ms. Thornhill failed to present any foundation to establish that the documents would between admissible over objection in a civil action, and, except as noted in endnote 13, supra, nothing in Petitioner's Exhibit 34 may form the basis of a finding of fact herein. See § 120.57(1)(c), Fla. Stat. (2003).
Even if the documents comprising Petitioner's Exhibit 34 could form the basis for a finding a fact, the report of the July 2, 2002, neurological consultation indicates only that Ms. Thornhill was examined by Dr. Traina for back pain associated with a fall on the street five days previously and that Dr. Traina's impression from his examination of
Ms. Thornhill was that she had "lower back pain after a fall." This would not be sufficient to prove that Ms. Thornhill was handicapped in July 2002. Additionally, even if they could form the basis for a finding of fact, the results of Dr. Traina's examination of Ms. Thornhill and the diagnosis and the treatment plan he developed at the January 1994 Neurosurgical Consultation are not relevant to establish that Ms. Thornhill had a handicap in 1999, when she asked the Association's Board for an permission to keep the steps.
Finally, there is no evidence that Ms. Thornhill presented Dr. Berti's affidavit of July 1999 or the reports of the Neurosurgical Consultations prepared by Dr. Traina to the Board at any time to support of her request that she be allowed to keep the steps leading from her balcony to the pool/patio area of the Condominium.
51/ In spite of being advised several times that Dr. Berti's February 15, 1999, letter; Dr. Berti's July 28, 1999, affidavit; and Dr. Traina's July 10, 2002, Neurological Consultation report were hearsay and could not, of themselves, support a finding of fact that she was handicapped, Ms. Thornhill did not present the testimony of a physician to establish her handicap at the
May 2002, hearing, the July 2003, continuation of the hearing, or the September 19, 2003, continuation of the hearing.
52/ Ms. Thornhill named Mr. King as a Respondent in DOAH Case No. 02-1056, accusing him of having discriminated and retaliated against her, either on behalf of the Association or on his own behalf. Ms. Thornhill accused Mr. King of, among other things, damaging her Mercedes Benz; flooding the interior of her apartment; threatening her life and her son's life; being responsible for a bucket of mud thrown in her front door; screaming obscenities at her in Spanish; and causing the potted plants and sliding glass doors on her balcony to be painted white. Ms. Thornhill also accused Deane Huntley of having hired Mr. King to attack her, and she claimed that Mr. King was told by the Board to harass her.
Mr. King denied doing any of these things, and he accused Ms. Thornhill of calling the City of Coral Gables police and making false accusations against him on numerous occasions, such as that he was trying to break into her apartment and that he had put a bomb under her car, and of continually harassing him on the job. Mr. King testified that he did not speak Spanish but that he might have "said something to her" when she was videotaping "three feet from [his] face" while he was working on the third floor of the apartment building and was suspended 60 feet off the ground. Mr. King also testified that Ms. Thornhill told him he had better "get paid up front, because when she
[Ms. Thornhill] was done, she would own the building.
According to Mr. King, the Association's Board members did not tell him to discriminate or retaliate against Ms. Thornhill but, rather, told him to stay away from Ms. Thornhill and to avoid any conflict with her. Mr. King denied having any knowledge that Ms. Thornhill was disabled or that she had filed a discrimination complaint against the Association. Judge Hubbart found in his final judgment that Ms. Thornhill's interference in the work of the painters became so serious that the Association hired an off-duty City of Coral Gables police officer to provide protection for Mr. King and his crew.
At the May 21, 1999, hearing, Ms. Thornhill played a portion of a CD that included a videotape showing close-ups of Mr. King's face as he was saying something that was indecipherable. Although Ms. Thornhill stated at the May 21, 1999, hearing that she intended to offer this into evidence to prove that Mr. King had threatened her life, the CD that was offered and received into evidence as Petitioner's Exhibit 33 does not contain the videotape segment shown at the hearing. In addition, Mr. King could not recall whether he had prepared Petitioner's Exhibit 13, which is a two-page, undated typewritten statement with his name typed on the bottom but no signature; since this document was not authenticated and is hearsay, it has not been relied upon in preparing these findings of fact.
53/ The court in Dornbach v. Holley, 854 So. 2d 211, 213 (Fla. 2d DCA 2002), found that "[t]he Florida Legislature essentially codified the Federal [Fair Housing] Act [Amendments of 1988] when it enacted the Florida Fair Housing Act" and that "the application of the FHAA by the federal courts [is] instructive
and persuasive" in the application of the Florida Fair Housing Act.
54/ Even if Ms. Thornhill had satisfied her burden of proof regarding a handicap, the Board was not required to grant her request to keep the steps without requiring some proof that she was disabled. Even though Ms. Thornhill repeatedly told Association's Board members, apartment owners, and residents of the Condominium that she was disabled as a result of a back injury and surgery, Ms. Thornhill had been observed engaging in relatively strenuous physical activities. Under these circumstances, the Board was justified in requesting documentation from a physician that Ms. Thornhill was legally handicapped prior to approving her request and in refusing the request when Ms. Thornhill failed to provide the necessary documentation. See Jankowski Lee & Assoc. v. Cisneros, 91 F.3d 891, 895 (7th Cir. 1996)("If a landlord is skeptical of a tenant's alleged disability . . . it is incumbent upon the landlord to request documentation.")
COPIES FURNISHED:
Maria T. Thornhill
6815 Edgewater Drive, No. 105 Coral Gables, Florida 33133
John R. Sutton, Esquire Sutton & Montoto
7721 Southwest 62nd Avenue, Suite 101 South Miami, Florida 33143
Estate of Pat Godard
6815 Edgewater Drive, No. 307 Coral Gables, Florida 33133
Doug King
15604 Southwest 73rd Court Miami, Florida 33157
Cecil Howard, General Counsel Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100
Tallahassee, Florida 32301
Denise Crawford, Agency Clerk Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100
Tallahassee, Florida 32301
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.
| Issue Date | Document | Summary |
|---|---|---|
| May 20, 2005 | Mandate | |
| May 04, 2005 | Opinion | |
| Aug. 11, 2004 | Agency Final Order | |
| Feb. 27, 2004 | Recommended Order | Petitioner failed to prove that Respondents discriminated against her on the basis of handicap and failed to prove that Respondents retaliated against her by filing a lawsuit. The lawsuit was not objectively baseless and was protected by First Amendment. |
| Apr. 18, 2002 | Other | |
| Feb. 11, 2002 | Remanded from the Agency | |
| Apr. 23, 2001 | Other | |
| Mar. 15, 2001 | Agency Miscellaneous | |
| Nov. 07, 2000 | Recommended Order | Petition for Relief should be dismissed because Petitioner filed discrimination action against Respondent in civil court and is, therefore, foreclosed from proceeding in administrative forum. |
