STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

FLORIDA COMMISSION ON HUMAN RELATIONS ON BEHALF OF SHEILA SWASEY,

Petitioner,

vs.

CELINA HILLS PROPERTY OWNER’S ASSOCIATION, INC.,

Respondent.

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) Case No. 03-2845

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RECOMMENDED ORDER

Administrative Law Judge Don W. Davis of the Division of Administrative Hearings (DOAH) conducted the final hearing in this case on October 16, 2003, in Inverness, Florida.

APPEARANCES

For Petitioner: William J. Tait, Jr., Esquire

Florida Commission On Human Relations 2009 Apalachee Parkway, Suite 100

Tallahassee, Florida 32301-4830

For Respondent: Barry A. Postman, Esquire

Cole, Scott & Kissane, P.A. Pacific National Bank Building 1390 Brickell Avenue, Third Floor Miami, Florida 33131

STATEMENT OF THE ISSUES

The issue for determination is whether Celina Hills Property Owner’s Association (the Association) violated the Fair Housing Act, in its enforcement of the Association’s deed

restrictions. The Association refused to allow a homeowner within the Association’s community to put a fence around the front of the homeowner's property to accommodate the disability of the homeowner's son. A secondary issue, if the Association violated the Fair Housing Act, is whether the Association's action is sufficient to permit the award of damages to the Florida Commission on Human Relations (FCHR) for frustration of agency purposes in this matter.

PRELIMINARY STATEMENT

On February 20, 2003, Complainant and mother to Brad Swasey, Sheila Swasey, filed a complaint with the U.S. Department of Housing and Urban Development (HUD) alleging that the Association discriminated against her, and her son, on the basis of a handicap in violation of Section 804(f) of Title VIII of the Civil Rights Act of 1968, as amended by the Fair Housing Act of 1988, and Section 760.23, Florida Statutes.

An investigation of the complaint was made by FCHR. On June 18, 2003, FCHR issued a determination that there was reasonable cause to believe that a discriminatory housing practice had occurred in violation of Section 760.23, Florida Statutes. FCHR’s efforts to conciliate the case failed as stated in its Notice of Failure of Conciliation entered on

July 30, 2003. Afterwards, the Complainant elected to have FCHR act on her behalf pursuant to Section 760.35(3)(a), Florida

Statutes, and FCHR Rule 60Y-7.001(8)(b)7, Florida Administrative Code.

On July 30, 2003, FCHR petitioned for relief on behalf of the Complainant.

The case was referred to DOAH to conduct a formal hearing on the matter. On August 29, 2003, Administrative Law Judge Don

1. Davis issued a Notice of Hearing setting forth the date, time and place for the hearing. At the hearing, FCHR presented six witnesses and offered six exhibits. The Association presented two witnesses and offered nine exhibits. Ruling was reserved upon admissibility of the Association's Exhibit 3 and upon review of the matter, admissibility of Exhibit 3 is denied on the basis of relevancy. The other eight exhibits offered by the Association were accepted into evidence at the final hearing.

   The transcript was filed on October 30, 2003. Both parties filed Proposed Recommended Orders which have been reviewed, utilized and addressed to the extent possible in the preparation of this Recommended Order.

   FINDINGS OF FACT

   
   

   1. Sheila and Fred Swasey purchased a home in the Celina Hills Community in 2001, where they currently reside. When they purchased their home, the Swaseys had full knowledge that the home was part of a homeowner’s association which had certain deed restrictions and covenants. The Swaseys furthermore

      understood that they were subject to the deed restrictions, and at the time of purchase, had no concerns regarding such restrictions. One such restriction was that they could not have a fence in the front yard of their property.

   2. The Swaseys have a 22-year-old, mentally retarded son, named Brad. The Swasey’s son has the mental capacity of a two- year-old, certain gait difficulties, and by stipulation of the parties, qualifies under the applicable Fair Housing Act as a handicapped individual in that he has physical and mental impairments that substantially limit one or more major life activities.

   3. The Association is a not-for-profit corporation organized in the mid 70's for the sole purpose of operating and maintaining the Celina Hills Community. Every home owner in Celina Hills is a member of the Association, and is subject to the deed restrictions, and covenants that attach to each of the properties within the Association. The Association is operated by a board of directors, which consists of volunteer homeowners, and is charged with the responsibility of enforcing the covenants, restrictions and other governing documents of the Association. The Association, through its officers, was fully aware of Brad's disability.

   4. As established by testimony of two of Brad’s doctors, Brad has the mental capacity of a young child approximately two

      to three years old. Although in the short term his mental capacity has stabilized and will probably not improve, his long- term capacity will be accelerated in regard to dementia, making him much harder to control or exhibit control. The supervisor of Brad’s sheltered workshop testified that, based on her observations, she believes he has the mental capacity of less than a two or three year old.

   5. Brad has recently, within the last 3 years, grown dramatically (from 5’3”/160 pounds to 6’2”/240 pounds) and, although he walks with a wide gait and has trouble walking on uneven surfaces, has become significantly harder to control and catch. His parents are in their fifties, and increasingly, subject to the health deficits imposed by the process of aging.

   6. Brad’s doctors have advised the Swaseys to have Brad spend time outside, breathe fresh air and get exercise. Brad’s parents’ testimony and observation of Brad at the final hearing establishes that he has the capacity of a two-year-old, but with no fear and no understanding of dangers that confront him in life. Further, he has only recently exhibited a predilection to run towards the street and trucks and cars that attract his attention. Brad is attracted to trucks and cars, especially yellow school buses and blue mail trucks, and attempts to run towards them when possible.

   7. With regard to motorists going up the hill on the street in front of the Swaseys and Brad’s home, visibility from the road to the yard (and yard to the road) is poor and cars on the street drive fast. The Swaseys’ home is located in the middle of the block and not at an intersection.

   8. The decision of the Swaseys to fence their front yard results in the provision of the best setting for Brad to fully enjoy the premises and gain needed fresh air and exercise. This choice by the Swaseys also provides better observation for them over Brad and more shade and opportunities for him to observe surrounding life and activities. Such a fence would protect Brad from running into the street and provide his parents an opportunity to allow Brad some “independence” while still being under their direct supervision when they work in the front yard. The fence would also keep him from running away from them into the street before they can catch him.

   9. Such a front yard fence requires an accommodation from the Association in order to build higher than the Association's allowable three feet and also along the required county set-back line for fences. The Swaseys' backyard has severe slopes, contains the screened-in pool and is generally unusable as an outside area for Brad because of his walking disability. Nevertheless, his parents also plan to fence the side and back- yards as well, which requires only the standard approval as to

      style, material and installation and no accommodation. Should they fence just the back and side yard, however, a problem would result in the form of entry problems, since the only direct entry to the backyard is through the pool area. Such an entry would redirect Brad’s attention to areas of the home and yard where the pool is located. Unfortunately, the backyard alone would not allow Brad full enjoyment because of the nature of the property (uneven with major slopes) and his walking disability. Further, direct observation of Brad would be difficult in some areas, if not impossible.

   10. On April 8, 2003, Brad's mother submitted a written request to the Association for a fence on the front, side and backyards. She also indicated that they would have the fence removed if they ever sold the house.

   11. On May 1, 2003, the Association's Board of Directors had a meeting at which Brad's father presented the request of he and his wife. Simply put, their request was to erect a front fence in a wooden picket style and an electric wood-faced gate for the front of the property (more in keeping with the covenants and restrictions placed on the property). As affirmed by Brad's father at the final hearing, he has no desire to denigrate property values in the community due to his own home investment. This summarizes the request of Brad's parents for need of an accommodation from the Association.

   12. The relevant restriction for which an accommodation was requested is found on page 6 of the Celina Hill’s Property Owners Handbook (January 2002 edition) which provides:

       No fence or wall shall be erected or maintained in the front beyond the front building setback line. No wire, chain link, or cyclone is permitted on any lot. No fence or hedge over three (3) feet in height shall be permitted along the front. No fence or hedge shall be erected or maintained which shall: i) unreasonably restrict or obstruct sight lines at corners and at intersections or driveways with streets; ii) detract from the overall appearance of the property (the use of rough hewn woods or natural plantings as fencing and screening materials is encouraged); or

       iii) stand greater than four (4) feet in height.

       
       

   13. The Swaseys met all conditions, except for the deed restriction, in their request for a front yard fence.

   14. As established by witnesses for the Swaseys, inclusive of the school bus driver who frequently drives a school bus by the Swaseys' property, there are no safety concerns about the proposed front yard fence obscuring motorists' view since it is not going to be at an intersection.

   15. On May 24, 2003, the Association denied the Swaseys' request stating that, “We cannot authorize your request for a fence of any style in your front yard, the Celina Hills Homeowners manual makes clear that no fence can be installed

       beyond the front setback line and that setback line is the front of your house.”

   16. In the same letter, the Association indicated it had no problem with the Swaseys' pursuing fencing the side and backyards since there was no deed restriction and only a style, materials and installation review.

   17. On June 18, 2003, FCHR issued a determination that there was reasonable cause to believe that the Association was engaging in a discriminatory housing practice in violation of Section 760.23, Florida Statutes.

   18. FCHR’s efforts to conciliate the case failed as stated in its Notice of Failure of Conciliation on July 30, 2003.

   19. FCHR also placed into evidence its calculation of damages, in addition to attorney’s fees and costs to be determined upon completion of the case, for “frustration of agency purpose.” These damages were calculated at $1,035.40 consisting of $358.70 for 20.6 investigative hours; $600.00 for legal review and advisor hours; $66.70 in direct travel costs; and $10.00 in photographic development costs.

       CONCLUSIONS OF LAW

       
       

   20. The Division of Administrative hearings has jurisdiction over the parties to, and the subject matter of these proceedings. Sections 120.56 and 120.57(1), Florida Statutes.

   21. Pursuant to 42 U.S.C. 3604(f)(3)(B) and Section 760.23(9)(b), Florida Statutes, it is discriminatory to refuse a request for reasonable accommodations in rules, policies and practices, when such accommodations are needed to afford a disabled person an equal opportunity to use and enjoy a dwelling. 42 U.S.C. 3604(f)(3)(A) and § 760.23(9)(a), Fla. Stat. It is also considered discriminatory to refuse to permit, at the expense of the handicapped person, reasonable modifications, if such modifications are necessary to afford such person full enjoyment of the premises.

   22. To establish discrimination, the Petitioner and Complainant (the Swaseys in this case) must prove the following elements: 1) The Complainant has a handicap or is a person associated with a handicapped person; 2) The Respondent (the Association in this proceeding) knows of the handicap or should be reasonably expected to know of the handicap; 3) Modification of the existing premises or accommodation of the handicap is necessary to afford the Complainant an equal opportunity to use and enjoy a dwelling; and 4) The Respondent refused permission for such modifications, or refused to make such accommodation. HUD v. Ocean Sands, Inc., Fair Housing-Fair Lending Reporter

       ¶ 25,055 (HUDALJ, September 3, 1993).

       
       

   23. Once the Complainant has demonstrated the above elements, the Respondent has the burden of proving the requested

       modification/accommodation is unreasonable. See United States v. Freer, 864 F. Supp. 324 at 326 (W.D.N.Y. 1994); Hovsons, Inc.

       v. Township of Brick, 89 F.3d 1096 at 1103 (3rd Cir. 1996); United States v. California Mobile Home Park Management Co., 29 F.3d 1413 at 1421 (9th Cir. 1994). To establish that the accommodation sought by the Swaseys was not reasonable, the Association would be required to prove that it could not have allowed the Swaseys to build a fence in their front yard, “without imposing undue financial and administrative burdens,” Southeastern Community College v. Davis, 442 U.S. 397 at 410,

       412 (1979) or require “changes, adjustments, or modifications to existing programs that would be substantial, or that would constitute fundamental alterations in the nature of the program,” Alexander v. Choate, 469 U.S. 287 at 301 (1985).

   24. There is no disputed fact that the Swaseys’ son, Brad, is handicapped within the meaning of the Fair Housing Act; that his mother can act on his behalf; and that the Respondent was aware of his disability.

   25. The Swaseys through their Petitioner, FCHR, have demonstrated the need to build a front yard fence in order to provide for Brad’s safety and an opportunity for him to use and enjoy his dwelling. This modification is necessary and requires an accommodation from the Association. Brad is not aware of dangers imposed by the street in front; therefore, a fenced area

       is needed for his safety. Because of his walking problems and wide gait, Brad has difficulty ambulating on uneven surfaces which, among other reasons, makes the backyard not conducive to meeting his need for fresh air and an outdoor environment in order to fully enjoy his premises.

   26. The Association argues that no accommodation is necessary and that the Swaseys can fence the back and side yards to provide for Brad’s well-being and enjoyment of his premises requiring only the approval of style, materials and installation.

   27. The Association mistakenly relies on Loren v. Sasser,

       
       

       309 F.3d 1296 (11th Cir. 2002) to argue that the fact that the Complainant could build a fence on the side and backyards and that is all that is necessary to support the Association's denial of the requested accommodation to build a fence in the front yard. In Sasser,Id., the Appellant requested permission to build a front yard fence on a corner lot and represented, at 1302, “that the front yard provides a more scenic space for her time outside than other parts of the lot.” The Complainant failed to show that the front yard fence was necessary. The Respondent in the case also pointed out, at 1299, that there were also safety concerns because the fence might inhibit visibility of drivers at that intersection. The record in that case and the one in this case are dramatically different. Not

       only are there no safety factors here as to the front yard fence, but evidence was presented to show that fencing only the side and backyards would not allow Brad Swasey full enjoyment of the premises. There is substantial evidence to show that the front yard fence is necessary to protect and ensure the safety of Brad Swasey in order to allow him “full enjoyment of the premises” and to afford him “equal opportunity to use and enjoy a dwelling. . .” 42 U.S.C. § 3604 (f)(3) (A)&(B); Fla. Stat.

       § 760.23(9)(a)&(b) (identical statutory wording).

       
       

   28. The Association has denied the requested modification and accommodation based solely on their covenant against a front yard fence in front of the set-back line and over three feet high. See Dornbach v. Holley, 84 So. 2d 211 at 214 (Fla. 2nd DCA, 2002) where a refusal to waive deed restrictions to allow a group home for four to six developmentally disabled adults constituted discrimination.

   29. FCHR on behalf of the Petitioner/Complainant in this case has met its burden of demonstrating that its requested modification/accommodation case was both necessary and reasonable. Further, the evidence establishes that the Association has acted in an unreasonable fashion.

   30. The Association/Respondent has failed to show any basis for finding that the requested modification/accommodation by the Complainant for a fence in the front yard is

       unreasonable. The Swaseys have said they do not want to denigrate property values and will remove the fence should they sell the house. In reality, the presence of Brad in the house is the only justification for the fence. Eventually, as his parents age further or pass away, institutionalization of Brad will have to occur.

   31. FCHR has also requested damages for “frustration of agency mission,” in addition to attorney’s fees and direct costs associated with this case. While current case law recognizes that a Fair Housing Agency has standing to recover certain types of damages, the Association's conduct has not been so egregious in this matter as to require resort to such damages. Under the facts of this case, such an action would cast a chilling effect on the rights of individuals to exercise their right to due process. Accordingly, the request of FCHR for damages is denied.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of Law, it is

RECOMMENDED:

That the Florida Commission on Human Relations enter an order finding Respondent guilty of a discriminatory housing practice against the Complainant and her son in violation of Section 760.23 (7) and (9), Florida Statutes; prohibiting

further unlawful housing practices by Respondent; and allowing the building of an esthetically acceptable fence in the front yard as necessary to provide containment and safety for Brad Swasey to use and enjoy his dwelling, with the proviso that such fence be removed when Brad is no longer a regular resident in the Swasey home.

DONE AND ENTERED this 1st day of December, 2003, in Tallahassee, Leon County, Florida.

S

DON W. DAVIS

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 1st day of December, 2003.

COPIES FURNISHED:

Barry A. Postman, Esquire Cole, Scott & Kissane, P.A. Pacific National Bank Building 1390 Brickell Avenue

Miami, Florida 33131

Sheila Swasey

2125 East Celina Street Inverness, Florida 34453 William J. Tait, Jr., Esquire

Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100

Tallahassee, Florida 32301-4830

Denise Crawford, Agency Clerk Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100

Tallahassee, Florida 32301

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.

Docket for Case No: 03-002845

Orders for Case No: 03-002845