STATE OF FLORIDA
DIVISION OF ADMINISTRATIVE HEARINGS
ROBIN YEAGER, )
)
Petitioner, )
)
vs. ) Case No. 02-2628
) DEVELOPMENT CONSULTANTS, INC.,1 )
)
Respondent. )
)
RECOMMENDED ORDER
Pursuant to notice, a formal hearing was held in this case on January 22, 2003; February 20, 2003; and March 28, 2003, by video teleconference, with the parties appearing in Fort Lauderdale, Florida, before Patricia Hart Malono, a duly- designated Administrative Law Judge of the Division of Administrative Hearings, who presided in Tallahassee, Florida.
APPEARANCES
For Petitioner: Robin Yeager, pro se
1731 Northeast 27th Drive Wilton Manor, Florida 33334
For Respondent: Cheryl Levin, Esquire
4694 Northwest 103rd Avenue Sunrise, Florida 33351
STATEMENT OF THE ISSUE
Whether the Respondent violated the Florida Fair Housing Act as alleged in the Petition for Relief filed with the Florida Commission on Human Relations on June 21, 2002.
PRELIMINARY STATEMENT
On or about March 19, 2002, Robin Yeager filed a Housing Discrimination Complaint with the Florida Commission on Human Relations ("FCHR"), in which she alleged that Kenneth Rodgers, the Cypress Bend II Condominium Association, Inc. ("Association"), and Development Consultants, Inc. ("DCI"), had discriminated against her based on familial status and disability in violation of the Florida Fair Housing Act. On May 22, 2002, the FCHR issued a Determination of No Reasonable Cause based on a finding that, after investigation, there was no reasonable cause to believe that a discriminatory housing practice had occurred.
On June 21, 2002, Ms. Yeager filed a Petition for Relief with the FCHR, in which she alleged that Mr. Rodgers, the Association, and DCI, revoked her parking privileges, denied her membership and continued residency in the condominium, and treated her unfairly because she was a single mother and disabled. Ms. Yeager also alleged that Mr. Rodgers, the Association, and DCI, had retaliated against her after she complained of discrimination by requiring her to pay a second residential application fee. The FCHR transmitted the Petition for Relief to the Division of Administrative Hearings for assignment of an administrative law judge.
On December 21, 2002, Ms. Yeager filed a Notice of Voluntary Dismissal with Prejudice as to Mr. Rodgers and the Association. The dismissal was filed in accordance with the terms of a Full Waiver of All Claims, General Release, and Confidential Settlement Agreement entered into on or about December 19, 2002, by Ms. Yeager and Mr. Rodgers and the Association, settling both DOAH Case No. 02-2628 and a pending circuit court action. An Order Dismissing Respondents Kenneth P. Rodgers and the Cypress Bend II Condominium Association, Inc., was entered on January 21, 2003.
After several continuances for good cause, the final hearing was begun on January 23, 2003. Because the hearing was not completed on January 23, 2003, it was continued on
February 20, 2003, and on March 28, 2003.
On January 15, 2003, DCI filed a Motion for Summary Judgment and Motion for Award of Attorney's Fees and Costs. On January 16, 2003, Ms. Yeager filed a response in opposition to the motion. DCI's motions were denied in a ruling made at the final hearing, on the following grounds: The scope of the undersigned's jurisdiction when a case involves a disputed issue of fact is to conduct a final hearing and to enter a recommended order including findings of fact and conclusions of law, which is submitted to the responsible agency; the responsible agency then enters a final order in the case. See Sections 120.569(1)
and 120.57(1)(a), (k), and (l), Florida Statutes (2002). Jurisdiction is appropriately relinquished to the agency only upon entry of a recommended order or upon a determination that there are no disputed issues of fact to be resolved in a hearing conducted pursuant to Section 120.57(1), Florida Statutes (2002). See Section 120.57(1)(i) and (k), Florida Statutes (2002). DCI failed to establish in its Motion for Summary Judgment that there were no disputed issues of fact to be decided; jurisdiction in the case, therefore, could not appropriately be relinquished to the FCHR for entry of a final order. Because the Motion for Summary Judgment was denied, the Motion for Attorney's Fees and Costs was denied.
On January 21, 2003, Ms. Yeager filed a Motion to Strike Witnesses and Motion to Strike Exhibits. Ms. Yeager sought to exclude the witnesses and exhibits identified in DCI's Unilateral Pre-hearing Stipulation, which was filed on
January 21, 2003, on the grounds that DCI did not adhere to the requirements of the Order of Pre-Hearing Instructions entered July 12, 2002, by disclosing its exhibits and witnesses 15 days prior to the final hearing. At the final hearing, Ms. Yeager argued that she would be prejudiced if DCI were allowed to call its witnesses without her having the opportunity to depose them. DCI responded that it had provided Ms. Yeager with a copy of its proposed stipulation, including its witnesses and exhibits, via
ail and United States Mail on January 15, 2003, and that, in any event, Ms. Yeager had not disclosed her witnesses and exhibits at the time the final hearing was convened on
January 23, 2003. Ms. Yeager's motions to strike were denied at the final hearing, but she was advised that, if she considered it necessary to depose DCI's witnesses in order to cross-examine them effectively, arrangements would be made for her to do so prior to cross-examination.
At the final hearing, Ms. Yeager testified in her own behalf and presented the testimony of the following witnesses: Tom Keating, Al Stein, Robert Norell, Daniel F. Tordella, and Laurel B. Little; Petitioner's Exhibits 1 through 18 were offered and received into evidence.2 DCI presented the testimony of Carl T. Miller, Andrew Meyrowitz, and Kenneth P. Rodgers, and Respondent's Exhibits 1 through 3 were offered and received into evidence.
No transcript of this proceeding was filed with the Division of Administrative Hearings. Both parties timely submitted proposed findings of fact and conclusions of law, which have been considered in the preparation of this Recommended Order.
FINDINGS OF FACT
Based on the oral and documentary evidence presented at the final hearing and on the entire record of this proceeding, the following findings of fact are made:
Robin Yeager is a 38-year-old single mother of a young son. In an order entered September 21, 2001, Ms. Yeager was found eligible for Social Security Disability Insurance Benefits, effective retroactively to December 14, 1998, because of a severe impairment caused by obstructive lung disease secondary to toxin exposure. As a result of the damage to her lungs, Ms. Yeager is not able to walk comfortably even for short distances.
During the times material to these proceedings, Ms. Yeager resided at 2214 Cypress Bend Drive, Number 107, Building 1, of the Cypress Bend II Condominium.
A Board of Directors elected by members of the Association governs Cypress Bend II Condominium. The Board of Directors enacts rules governing the owners and renters of the apartments, including rules governing parking on condominium property and screening applicants to purchase or lease apartments. At the times material to this proceeding,
Mr. Rodgers was the President of the Association and acted on behalf of the Association's Board of Directors.
During the times material to this proceeding, DCI provided property management services to the Association. The management agreement between DCI as property manager and the Association, was executed on February 13, 2001, and included the following terms relevant to this proceeding:
2. Under the personal and direct supervision of the Board of Directors of the Association, the Manager shall render services and perform duties as described and attached hereto and incorporated herein as Exhibit A, with the following additions:
* * *
c. Process all applications for Resales and/or Rentals, including coordinating for screening interviews with the appointed committee, [and] reviewing applications to be sure they are completed, . . .
* * *
Operate the Association property according to the overall plan of the Association consistent with the direction of the Board of Directors and the approved budget. The Manager shall make every reasonable effort to see that all members are informed with respect to such rules, regulations, and notices as may be promulgated by the Association from time to time. The Manager shall be expected to perform such other acts and deeds as are reasonable, necessary and proper in the discharge of its duties under this agreement.
At the times material to this proceeding, Carl T. Miller was employed by DCI and was the property manager for
Cypress Bend II Condominium. He worked out of DCI's Pompano Beach, Florida, office. Mr. Miller's function was to carry out the instructions of the Board of Directors, as conveyed to him by Mr. Rodgers, the Association's President, and to ensure that the Association's rules were enforced.
Ms. Yeager became a resident of Cypress Bend II Condominium on August 15, 2000, under a one-year lease with
B.A.R.S. Inc., the principals of which were Leona and A.L. Stein. Pursuant to the Association's rules, Ms. Yeager submitted an Application for Residency, appeared before the Association Screening/Welcoming Committee ("Screening Committee"), and was approved for residency before she moved into Cypress Bend II Condominium as Mr. and Mrs. Stein's new tenant. It was noted on the lease that $2,150.00 was due from Ms. Yeager before she moved into the apartment; this amount included a $100.00 "application fee" to cover the costs of processing the Application for Residency.
Ms. Yeager and her son resided in the apartment leased from the Steins until July 2001 without any significant dissention or disagreements with Mr. Rodgers or the staff of DCI.
The difficulties leading to the instant proceeding
began on or about July 9, 2001, when Ms. Yeager found that the parking decal required to park in a resident's space at the
Cypress Bend II Condominium had been removed from her car and a "will tow" notice had been posted on the car.3
In accordance with the Association's rules,4 all residents of the Cypress Bend II Condominium, both apartment owners and tenants, are assigned parking spaces near their apartments, and they are given parking decals to place on their cars so that the cars will not be towed as unauthorized vehicles. There are also parking places reserved for guests, which are some distance away from the apartments; guest passes must be placed on cars parking in the spaces reserved for guests.
Before DCI was hired as Cypress Bend II Condominium's property manager, Mr. Rodgers was very involved in the "minutia" of regulating the parking situation at Cypress Bend II Condominium, and he typically issued parking decals to the residents of the apartments and parking passes to their guests. As President of the Association, Mr. Rodgers initiated a program whereby he identified all of the cars issued parking decals by their tag numbers and kept a log of the spaces to which each car was assigned. The security company employed by the Association was under orders from Mr. Rodgers to have all unauthorized cars towed from the Cypress Bend II Condominium parking lot.
When she first became a resident of Cypress Bend II Condominium in August 2000, Mr. Rodgers assigned Ms. Yeager a
resident's parking space immediately adjacent to the apartment she was leasing, and he issued a parking decal for the Ford Explorer that she was driving at the time. Ms. Yeager's parking space was located eight or ten steps from the front door of her apartment.
In January 2001, Ms. Yeager began dating a man who owned two Bentley automobiles. Ms. Yeager's friend gave her the white Bentley to drive, and Mr. Rodgers told her to use the parking decal for the Explorer on the Bentley. Ms. Yeager also occasionally drove her friend's other Bentley and parked it in her assigned space when her Bentley was in the shop for repairs. Ms. Yeager apparently placed the parking decal issued for the Explorer on whichever Bentley she happened to be driving so she could park in her assigned space without being towed.
DCI assumed responsibility for managing Cypress Bend II Condominium in February 2001, and one of its
responsibilities was to issue parking decals and guest parking passes in accordance with the Association's rules. If the Board of Directors, through the Association's President, directed DCI to refuse to issue a replacement decal to a tenant or owner who was creating a problem, DCI would be compelled by the terms of its management agreement with the Association to follow these directions. Even though Mr. Rodgers turned over the primary responsibility for issuing parking decals to DCI, he continued
to be involved in decisions regarding the issuance of parking decals in his capacity as President of the Association, and he apparently continued to issue parking decals in some circumstances.
In April 2001, Ms. Yeager drove either the white Bentley or a red Ford Expedition that was also owned by her friend. Mr. Rodgers issued Ms. Yeager a parking decal for the Bentley and told her to put the parking decal for the Explorer on the red Expedition so that she could park either one of these cars in her assigned space. Ms. Yeager was given permission by Mr. Rodgers to tape the parking decal to the Bentley's windshield rather than affixing it permanently, and Ms. Yeager used the Bentley parking decal if she was driving a car other than the Bentley or the red Expedition.
On July 9, 2001, when Ms. Yeager found that the parking decal had been removed from the back window of the white Bentley,5 she went to DCI's office in Pompano Beach, Florida, and requested a new parking decal. Ms. Yeager gave Mr. Miller's staff documentation, including her driver's license, the registration for the Bentley, and a picture of the car.
The receptionist in DCI's Pompano Beach office routinely processed requests for parking decals. One of the Association's rules provided that, with the exception of rental cars, parking decals were available only for cars registered to
an owner or a lawful tenant of an apartment in Cypress Bend II Condominium.
The receptionist conferred with Mr. Miller and told him that Ms. Yeager was parking several different vehicles in her parking space. Ms. Yeager was refused a new parking decal because she did not own the white Bentley that she was driving and parking in her assigned space.
On July 10, 2001, Ms. Yeager went back to DCI's office with Mrs. Stein, and Ms. Yeager again requested a replacement parking decal. She took with her a letter written by her attorney, dated July 10, 2001, and addressed to DCI, in which he advised that Ms. Yeager was a lawful resident of Cypress Bend II Condominium and that DCI should carry out its duties as property manager and issue the parking pass and decal. Ms. Yeager was again refused a parking decal.
Ms. Yeager continued to demand that she be issued a parking decal for the space previously assigned to her near her apartment; DCI continued to refuse to issue the parking decal, based on directions from Mr. Rodgers6; and Ms. Yeager continued to park in her usual space near her apartment.
Ms. Yeager was repeatedly advised that her car would be towed if she parked a car in that space without a parking decal.
On August 15, 2001, the day after her original lease expired, DCI issued Ms. Yeager a guest-parking pass, at
Mr. Rodgers' direction, that allowed her to park only in the guest parking area, which was more than 75 feet from her apartment. This guest pass was valid for 2 weeks, with a one- week extension available.
In mid-August, Ms. Yeager obtained a Mazda that was registered in her name. By this time, however, another process had been set in motion that further frustrated Ms. Yeager's efforts to obtain a parking decal allowing her to park her car in the space in front of the apartment she was leasing from
Mr. Stein.
On July 25, 2001, Ms. Yeager and Mrs. Stein, for
B.A.R.S. Inc., executed a lease renewal on the apartment for a three-month term, to begin at the end of the existing lease, that is, on August 14, 2001, and to end on November 14, 2001. The lease included an option for Ms. Yeager to purchase the apartment for $79,900.00 that was valid only for the three months of the lease term. It was noted on the lease that
$2,150.00 was due from Ms. Yeager before she moved into the apartment; this amount included a $100.00 "application fee."
The Association's rules require that all prospective purchasers of apartments apply for approval to reside in Cypress Bend II Condominium even if they have been previously approved
for residency as tenants. The Association's Screening Committee reviews applications for residency submitted by prospective purchasers, and the members of the committee vote to accept or reject the application. The rejection of an application for residency means that the apartment owner cannot sell the apartment to the person who has been rejected.
One of DCI's responsibilities as property manager for the Association was to process applications for residency in Cypress Bend II Condominium. The proposed tenant or purchaser would submit the application to DCI, and DCI's staff would ensure that all of the necessary paperwork had been provided. DCI would also order a background investigation of the applicant. DCI would then submit the application packet to the Screening Committee for its consideration. DCI had no further role in the approval or rejection of prospective tenants or owners. The Board of Directors would usually notify the applicant of the outcome of the Screening Committee decision.
In a letter dated August 8, 2001, Mr. Miller notified Mr. Stein that Ms. Yeager's renewal lease had to be submitted for approval to the Board of Directors and that Ms. Yeager would need to pay an application fee because the renewal lease contained an option for Ms. Yeager to purchase the apartment. Under the Association's rules, even existing tenants were
required to submit a new Application for Residency if there was an option to purchase in the renewal lease.
The July 25, 2001, renewal lease with the option to purchase was submitted to the Screening Committee, accompanied by an Application for Residency signed by Ms. Yeager and dated August 14, 2001. In her application, Ms. Yeager indicated that she was not employed but was receiving "SSD," or Social Security Disability Insurance Benefits. There was no information provided on the application regarding the nature of her disability.
Ms. Yeager was not asked to appear before the committee, and she was never informed in writing of the decision of the Screening Committee. Rather, in a letter to Mr. Stein dated August 17, 2001, Mr. Rodgers notified Mr. Stein, as the apartment's owner, of the Screening Committee's rejection of Ms. Yeager for residency in Cypress Bend II Condominium:
[T]he Lease Contract between you and Ms. Robin Yeager is invalid for the following reasons:
Ms. Yeager has submitted an incomplete Application for Residency, and has repeatedly refused to complete that application stating that Cypress Bend II rules do not apply to her.
Accordingly, her Application for Residency has been rejected by our Screening Committee and the undersigned, not to be reconsidered.[7]
I also wish to advise you to apprise Ms. Yeager that she is never to try to
contact this writer at anytime except by
U.S. Mail. No telephone communication with her will be tolerated.
Even though Mr. Rodgers had declared Ms. Yeager's renewal lease invalid, neither DCI nor the Association could evict her because only the apartment's owner could evict a tenant. Mr. Miller, therefore, reminded Mr. Stein in a letter dated August 22, 2001, that he had previously been informed that Ms. Yeager's application for a lease renewal had "been rejected by the screening committee for cause" and that she was "residing at Cypress Bend II Condominium without benefit of a lease."
Mr. Miller requested that Mr. Stein advise him of his plans to evict Ms. Yeager.
On August 22, 2001, Ms. Yeager caused several letters to be sent via facsimile to DCI. One letter, written by
Ms. Yeager's attorney and addressed to "TO WHOM IT MAY CONCERN," informed the reader that a federal administrative law judge had announced at an administrative hearing on May 16, 2001, that Ms. Yeager was entitled to receive Social Security Disability Insurance Benefits. Ms. Yeager did not provide DCI with any medical documentation of her disability or disclose the nature of her disability to anyone at DCI because she believed that she should not have to divulge this personal information to DCI.
In a letter to Mr. Miller dated August 24, 2001, Ms. Yeager requested that Mr. Miller tell her why her Application for Residency was rejected and would not be reconsidered. In addition, she stated: "I would also like to
know why I can not [sic] obtain a Permit Parking sticker for the duration of my Lease that is valid through Nov. 15, 2001."
It was Mr. Miller's understanding from conversations with Mr. Rodgers that, after the Screening Committee's decision on August 17, 2001, rejecting Ms. Yeager's Application for Residency, Ms. Yeager was residing in Cypress Bend II Condominium without a valid lease and was, therefore, no longer a "valid" tenant. Because only tenants and owners are entitled to a resident's parking decal under the Association's rules, Ms. Yeager was not entitled to a parking decal allowing her to park in the space near her apartment.
Mr. Miller, therefore, responded to Ms. Yeager's inquiries in a letter dated August 24, 2001, as follows:
The reason your application for residency was not approved has been conveyed to
Mr. Al Stein, your former landlord. It is my understanding you are now in residency without a valid lease. That is the reason you will not be afforded any further parking permits.
In addition to his understanding of the Association's rules, Mr. Miller also refused to issue a parking decal to
Ms. Yeager because Mr. Rodgers instructed him not to do so. At
the time, Mr. Rodgers was aware that Ms. Yeager had a disability, but it was his position that everyone was required to abide by the rules of the Association, including a person with a disability.
At some time prior to September 6, 2001, Mr. Miller told Mr. Stein that the July 25, 2001, renewal lease for
Ms. Yeager's apartment was invalid because it contained an option to purchase and the Screening Committee had rejected Ms. Yeager as a prospective purchaser of the apartment.
Ms. Yeager and Mrs. Stein, therefore, crossed out references in the renewal lease to "option to purchase" and signed the changes. Ms. Yeager and Mr. Stein took the amended renewal lease to DCI's Pompano Beach office and gave it to Mr. Miller, together with a completed Application for Residency, which was signed by Ms. Yeager and dated September 6, 2001.
The Screening Committee either rejected or did not consider Ms. Yeager's September 6, 2001, Application for Residency with respect to the amended renewal lease. According to Mr. Rodgers, even after the references to "option to purchase" were deleted from the renewal lease, there was something in the body of the lease that indicated that
Ms. Yeager could possibly purchase the apartment, so the amended renewal lease was unacceptable.8
Mr. Stein did not evict Ms. Yeager from the apartment, and Ms. Yeager continued living there, and, presumably, parking in the space near her apartment without a parking decal, until mid-October 2001, when she moved to Cypress Bend I Condominium.
On October 1, 2001, Ms. Yeager went to DCI's office with documentation for a Kia automobile that she owned,9 and she again requested that she be issued a parking decal.
Ms. Yeager's request was denied, and, in a letter dated October 1, 2001, Mr. Miller explained the basis for the denial:
Your landlord has previously been advised that the screening committee rejected you for residency at Cypress Bend Two.
Additionally, the Association Attorney has determined that you do not have a valid lease. Since this is the present situation, you obviously are not entitled to any parking passes whatsoever.
In a letter dated October 1, 2001, Mr. Miller advised Mr. Stein that, because Ms. Yeager continued to reside in his apartment without a valid lease, the Association was in a position to bring suit against him to force him to evict
Ms. Yeager from the apartment.
On or about October 4, 2001, Ms. Yeager was, for some reason not clear from the record, given a guest pass so she could park the Kia in the guest parking area. On October 6, 2001, while she was in the process of moving to Cypress Bend I
Condominium and without any warning, Ms. Yeager's Kia was towed from the space she had been using since August 2000.
On or about October 10, 2001, a suit was filed in circuit court on Ms. Yeager's behalf against Association, DCI, and Mr. Rodgers.
Beginning in July 2001, a great deal of rancor developed between Ms. Yeager and Mr. Rodgers and Mr. Miller and between Mr. Stein and Mr. Miller:
On August 17, 2001, Mr. Rodgers made it clear in his letter to Mr. Stein that he would not communicate with
Ms. Yeager by telephone, and he asked Mr. Stein to advise
Ms. Yeager that she was to communicate with him only by "U.S. Mail."
According to Mr. Miller, Ms. Yeager caused a commotion, used profanity, and was abusive to members of DCI's staff during several visits when she was trying to persuade DCI to issue a resident's parking decal, and Mr. Miller requested on August 16, 2001, that Ms. Yeager submit any requests she might have of DCI in writing and addressed to him.
Sometime after the Screening Committee rejected
Ms. Yeager's Application for Residency, Tom Keating, the father of Ms. Yeager's son, overheard on Ms. Yeager's speaker phone an angry conversation between Ms. Yeager and Mr. Miller during
which Mr. Keating heard Mr. Miller say that he did not care if she was disabled, he would not issue her a parking pass.
Mr. Keating observed that Mr. Miller did not seem to like Ms. Yeager.
In late August 2001, when Mr. Stein and Ms. Yeager went to the DCI office with the amended renewal lease, Mr. Stein's perception was that Mr. Miller treated them rudely and refused to issue Ms. Yeager a parking decal.
Mr. Rodgers resented Mr. Stein's "trying to run things his way" and considered the rejection of Ms. Yeager's Application for Residency a means of not letting Mr. Stein do so.
Summary
The evidence presented by Ms. Yeager is not sufficient to establish that DCI discriminated against her because she was a single mother of a young child or because she was disabled.10 Although the evidence is uncontroverted that Ms. Yeager was, at the times pertinent to this proceeding, the single mother of a young child and suffered from a disability that affected her ability to walk even short distances, Ms. Yeager has failed to produce any persuasive evidence establishing that DCI treated her differently from the way it treated other residents who were married or single without children or who were not disabled. DCI refused to issue Ms. Yeager a parking decal in accordance
with the Association's rules and the directions of the Association's President, Mr. Rodgers, as required by its management agreement with the Association.
Ms. Yeager failed to produce any evidence establishing that DCI participated in any substantive way in the decision- making process of the Association's Screening Committee when it rejected Ms. Yeager's August 2001 Application for Residency. DCI did nothing more than submit Ms. Yeager's application to the Screening Committee, notify Mr. Stein of his obligation to evict Ms. Yeager, and explain to Ms. Yeager that she would not be issued a parking decal because she did not have a valid lease to live in the Cypress Bend II Condominium apartment.
Ms. Yeager did not establish by the greater weight of the evidence that DCI discriminated against her by failing to issue her a parking decal to accommodate her disability. Nothing in DCI's management agreement with the Association gave it the authority to deviate from the Association rules or to ignore an instruction from the Association's President. The Association's Board of Directors, not DCI, had the authority to waive its rules relating to the issuance of parking decals.
Ms. Yeager presented no evidence establishing that DCI harassed or intimidated her or took any action against her in retaliation for her filing a discrimination complaint.
Ms. Yeager filed a complaint against the Association, DCI, and
Mr. Rodgers in circuit court on or about October 10, 2001, when she was in the process of moving out of the Cypress Bend II Condominium apartment or had already done so.
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 (2002).
Section 760.23, Florida Statutes (2001), part of Florida's Fair Housing Act, provides in pertinent part:
(2) It is unlawful to discriminate against any person in the terms, conditions, or privileges of sale or rental of a dwelling, or in the provision of services or facilities in connection therewith, because of race, color, national origin, sex, handicap, familial status, or religion.
* * *
It is unlawful to discriminate against any person in the terms, conditions, or privileges of sale or rental of a dwelling or in the provision of services or facilities in connection with such dwelling, because of a handicap of:
(a) That buyer or renter
* * *
For purposes of subsections (7) and (8), discrimination includes:
* * *
((b) 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.
Section 760.37, Florida Statutes (2001), 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.
Ms. Yeager, as the Petitioner herein, has the burden of proving by a preponderance of the evidence that DCI violated the Florida Fair Housing Act. See Sections 760.34(5) and 120.57(1)(j), Florida Statutes (2001).
Based on the findings of fact herein, Ms. Yeager has failed to prove by a preponderance of the evidence that DCI discriminated against her because of her status as a single mother or because of her disability with respect to its refusal to issue Ms. Yeager a parking decal. Not only did Ms. Yeager fail to show that any actions of Mr. Miller or the staff of DCI were motivated by discriminatory animus toward her because of her familial status or her disability, but the greater weight of the evidence establishes that DCI was at all times acting in accordance with the rules of the Association and the
instructions of the Association's President in denying Ms. Yeager a parking decal. Cf. Marthon v. Maple Grove
Condominium Association and Alpha Property Management, Inc.,
101 F.Supp. 2d 1041, 1052-53 (N.D. Ill. 2000)(Allegation that property management company did more than follow rules and orders may, if proven, result in a jury finding that property management company guilty of discriminatory acts.)
Based on the findings of fact herein, Ms. Yeager has failed to prove by a preponderance of the evidence that DCI was involved in the decision of the Association Screening Committee to reject her August 2001 Application for Residency or in the determination conveyed to Ms. Yeager by Mr. Rodgers that her lease was invalid. The greater weight of the evidence proves only that DCI received Ms. Yeager's Application for Residency and passed it on to the Screening Committee and that DCI advised Ms. Yeager and Mr. Stein of the consequences of her residing at Cypress Bend II Condominium without a valid lease.
Based on the findings of fact herein, Ms. Yeager has failed to prove by a preponderance of the evidence that DCI discriminated against her by refusing to issue her a parking decal in contravention of the Association's rules and the instructions of the Association's President. DCI had no authority to make such an accommodation, and Ms. Yeager should have submitted her request to the Association's Board of
Directors. See Marthon, 101 F.Supp 2d at 1053-54(Property management company cannot be guilty of failing to provide reasonable accommodation because it had no power to make requested accommodation.)
Finally, based on the findings of fact herein,
Ms. Yeager has failed to prove by a preponderance of the evidence that DCI took any action against her in retaliation for her exercising her right under the Florida Fair Housing Act to file a discrimination complaint.
Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Florida Commission on Human Relations enter a final order dismissing the Petition for Relief filed by Robin Yeager.
DONE AND ENTERED this 30th day of May, 2003, in Tallahassee, Leon County, Florida.
_ PATRICIA HART MALONO
Administrative Law Judge
Division of Administrative Hearings The DeSoto Building
1230 Apalachee Parkway
Tallahassee, Florida 32399-3060
(850) 488-9675 SUNCOM 278-9675
Fax Filing (850) 921-6847 www.doah.state.fl.us
Filed with the Clerk of the Division of Administrative Hearings this 30th day of May, 2003.
ENDNOTES
1/ As noted below in the Preliminary Statement, Mr. Rodgers and the Cypress Bend II Condominium Association were dismissed as Respondents in this action by order entered January 21, 2003.
Their names, nonetheless, continued to appear on orders of the Division of Administrative Hearings as Respondents in this case. This error has been corrected.
2/ Petitioner's Exhibits 10 and 11, consisting of invoices and an affidavit respecting attorneys fees, were rejected at the final hearing on February 20, 2003, as hearsay evidence that was not admissible over objection in a civil action and that would not explain or supplement other evidence in the record. See Section 120.57(1)(c), Florida Statutes (2002). On March 28, 2003, Ms. Yeager presented the testimony of the attorneys, and Petitioner's Exhibits 10 and 11 were received into evidence.
3/ Ms. Yeager did not present any evidence as to the identity of the person responsible for removing the parking decal and posting the warning on the car.
4/ Neither party offered a copy of the Association rules into evidence. The evidence regarding the rules was presented exclusively through the testimony Mr. Miller and Mr. Rodgers, which was not controverted by Ms. Yeager.
5/ At the time, the red Expedition was in the shop for repairs.
6/ Mr. Rodgers recalls discussing Ms. Yeager's requests for a parking decal with Mr. Miller, though he could not recall when he had these discussions or whether he told Mr. Miller to refuse to issue Ms. Yeager a parking decal for the white Bentley. The discussion Mr. Rodgers had with Mr. Miller did, however, include reference to the fact that Ms. Yeager did not own any of the cars she was parking in her parking space.
7/ As interpreted by Mr. Rodgers, the rejection of an Application for Residency submitted by an existing tenant who wished to purchase an apartment in Cypress Bend II Condominium resulted in the invalidation of the tenant's lease, and the apartment owner would be required to evict the tenant. To the best of Mr. Miller's knowledge, this happened only to
Ms. Yeager.
8/ During his testimony at the final hearing, Mr. Rodgers articulated yet another reason that Ms. Yeager's Application for Residency was rejected. Mr. Rodgers testified that Mr. Stein did not present Ms. Yeager's lease to the Screening Committee in the "right way." Mr. Rodgers explained: "Al Stein was trying to run things his way, and I wouldn't let him."
9/ The Mazda that Ms. Yeager acquired in August 2001 was stolen, and she replaced it with a Kia.
10/ The only evidence that Ms. Yeager presented regarding her claim that she was discriminated against on the basis of her familial status was hearsay: Ms. Yeager testified that
Mr. Miller told her that Mr. Rodgers did not like single mothers and that that could have been one reason the Screening Committee rejected her Application for Residency in August 2001, and
Mr. Keating testified that another single mother living in Cypress Bend II Condominium told him she had been harassed.
COPIES FURNISHED:
Denise Crawford, Agency Clerk Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100
Tallahassee, Florida 32301
Cheryl Levin, Esquire
4694 Northwest 103rd Avenue Sunrise, Florida 33351
Robin Yeager
1731 Northeast 27th Drive Wilton Manors, Florida 33334
Cecil Howard, General Counsel 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 |
|---|---|---|
| Nov. 19, 2003 | Agency Final Order | |
| May 30, 2003 | Recommended Order | Petitioner failed to prove that property management company for condiminiums discriminated against her on basis of familial status and/or disability or failed to provide accommodation for her disability. Petition should be dismissed. |
