vs. ) Case No. 05-0381
Respondent. )
Pursuant to notice, a formal hearing was held in this case on April 28, 2005, in Miami, Florida, before Errol H. Powell, a designated Administrative Law Judge of the Division of Administrative Hearings.
For Respondent: Carlos A. Triay, Esquire
Carlos A. Triay, P.A. Post Office Box 227010 Miami, Florida 33122
The issue for determination is whether Respondent discriminated against Petitioner in violation of the Fair Housing Act by failing to make reasonable accommodations for Petitioner's handicap.
Humberto Botero filed a fair housing discrimination complaint against Calusa Club Village Property Owners Association (Calusa Club) with the Florida Commission on Human Relations (FCHR) on June 4, 2004. Mr. Botero alleged that Calusa Club discriminated against him through its failure to make a reasonable accommodation for his handicap by denying the change of his parking space to another location at Calusa Club, with the most recent discrimination occurring on April 30, 2004. On January 19, 2005, the FCHR issued a Determination of No Reasonable Adverse Cause (No Cause) determining that no reasonable cause existed to support a discriminatory housing practice.
On January 27, 2005, Mr. Botero filed a Petition for Relief from a housing discriminatory practice with FCHR against Calusa Club alleging, among other things, that the parking space designated to him by Calusa Club failed to provide him sufficient space to get in and out of his vehicle due to his handicap. On January 31, 2005, FCHR referred this matter to the Division of Administrative Hearings.
At hearing, Mr. Botero testified in his own behalf and entered five exhibits (Petitioner's Exhibits numbered 1-5) into evidence. Calusa Club presented the testimony of one witness
and entered one exhibit (Respondent's Exhibit numbered 1) into evidence.
A transcript of the hearing was ordered. At the request of the parties, the time for filing post-hearing submissions was set for more than ten days following the transcript. The Transcript, consisting of one volume, was filed on May 17, 2005. Subsequently, the parties were provided an extension of time to file their post-hearing submissions. Only Calusa Club filed a post-hearing submission. Mr. Botero chose not to file a post- hearing submission. Calusa Club's post-hearing submission was considered in the preparation of this Recommended Order.
Mr. Botero has a Ph.D. in engineering.
Due to a medical mishap, involving the administration of anesthesia, Mr. Botero suffers from narcolepsy. His narcolepsy is controlled by medication.
Narcolepsy is a medical disorder which causes
Mr. Botero to have sudden and uncontrollable, though brief, attacks of deep sleep, and he becomes unintelligible and unable to move. His condition gives him a warning before an attack occurs, and he has a small window period of time, approximately five to seven minutes, of reaction time. A narcolepsy attack for him lasts approximately three to four minutes.
Mr. Botero is handicapped.
Even though Mr. Botero suffers from narcolepsy, he has been licensed by the State of Florida to drive a vehicle and has a handicap parking permit. If his disorder presents itself when he is operating a vehicle, the small window period of reaction time allows him to maneuver his vehicle to a safe spot and park before the narcolepsy attack occurs.1 If he is not driving, but is parked when his disorder presents itself, Mr. Botero needs additional space to exit his vehicle or for someone to remove him from his vehicle.
Calusa Club was constructed in 1980 and consists of several condominium buildings. Each condominium building has a homeowner’s association and is also referred to as a community.
The developer of Calusa Club assigned reserved parking spaces for each condominium unit. As a result, each condominium owner is assigned a reserved parking space. Some handicap parking spaces are reserved and some are available on a first- come, first-serve basis. Only testimony, not written documentation, was presented at hearing evidencing the assignment of reserved parking spaces. The undersigned finds this testimony credible.
Calusa Club is managed by Miami Management, Inc. Miami Management does not have the authority to change the reserved parking spaces assigned to condominium units, including reserved handicapped parking spaces, or to add additional reserved
parking spaces for a condominium unit. Only testimony, not written documentation, was presented at hearing evidencing the assignment of reserved parking spaces. The undersigned finds this testimony credible.
In 1997, Mr. Botero purchased a condominium unit at Calusa Club, unit number E-201. Mr. Botero's condominium association is Calusa Club Condominium D North Association, Inc. His assigned reserved parking space was number 9 (Reserved Space Number 9). At that time, he informed Miami Management, through its property manager for Calusa Club, Kathie Roder,2 that he was handicapped and needed a handicapped parking space close to his community. No reserved handicapped parking spaces were located at Mr. Botero's community. Ms. Roder informed Mr. Botero that no reserved handicapped parking space was available in his community; however, she gave Mr. Botero a non-reserved parking space in his community. Based on the testimony of the Miami Management's current assistant property manager for Calusa Club, Michelle Lopez, which is found to be credible, an inference is made that the parking space given to Mr. Botero by Ms. Roder was a guest parking space.
To Mr. Botero, the parking space given to him was too small dimensionally to accommodate his condition. When he opened the door on the driver's side of his vehicle, Mr. Botero was unable to open the door fully and, therefore, the parking
space given to him failed to provide sufficient space dimensionally for him to exit his vehicle or for someone to remove him from his vehicle. He subsequently requested another parking space.3 Mr. Botero was given another non-reserved parking space, but he again complained that it too was too small dimensionally for the same reason as before. Based on the testimony of Ms. Lopez, which is found to be credible, an inference is made that the second parking space given to
Mr. Botero by Ms. Roder was a guest parking space.
After complaining a third time,4 Ms. Roder moved
Mr. Botero's Reserved Space Number 9 next to the access walkway to his condominium building, which is the current space complained of.
Reserved Space Number 9 measures 78 inches in width; immediately to its left is another reserved space assigned to another condominium unit; immediately to its right is the access walkway to Mr. Botero's condominium building; and immediately to the right of the access walkway is a guest parking space. The width of the Reserved Space Number 9 is the same width of the other parking spaces of his condominium building. Mr. Botero complains that Reserved Space Number 9, even though it is located next to the access walkway to his unit, is also too small dimensionally to accommodate his condition in that, if an attack occurs in the parking space and if a vehicle is in the
parking space next to him, insufficient space exists for him to exit his vehicle or for someone to remove him from his vehicle.
Furthermore, Mr. Botero is unable to back into Reserved Space Number 9 because he is fearful of hitting another vehicle, an object, or someone else if he has a narcolepsy attack while he is backing-up. If he could back-in, the position of his vehicle would give him sufficient space to exit his vehicle or for someone to remove him because the driver's side of his vehicle would be next to the access walkway. Moreover, Mr. Botero would back into Reserved Space Number 9 if it was larger dimensionally because he would then not be fearful of hitting another vehicle, an object, or someone else.
After complaining to Ms. Roder, regarding the re- location of Reserved Space Number 9, she advised him in a letter dated May 5, 2004, among other things, that Calusa Club had provided him a reasonable accommodation and that nothing else could be done. The letter provided, in pertinent part, as follows:
Please be advised that we have contacted our attorney regarding providing you with a Handicapped parking place. We are sorry to report that because our community was built in the early 1980's, we are only required to provide you with "reasonable accommodation". We have done so by moving your reserved space #9 next to your access walkway.
We would not be able to place a handicapped space anywhere near that location.
No evidence was presented to demonstrate that Calusa Club incurred any expense moving Reserved Space Number 9 to the guest parking space to the left of the access walkway. Therefore, an inference is drawn and a finding is made that Calusa Club incurred no expense moving Reserved Space Number 9 to the guest parking space to the left of the access walkway.
No reserved handicapped parking space was or is available at Mr. Botero's community; they were and are all assigned.
In order to widen Reserved Space Number 9, Miami Management would have to take away the reserved parking space assigned to the owner of another condominium unit. Ms. Lopez testified that Miami Management could not take away a reserved parking space assigned to the owner of another condominium unit. The undersigned finds her testimony to be credible.
Ms. Lopez also testified that Miami Management could not "change" a reserved parking space assigned to the owner of a condominium unit. She later testified that Miami Management could not "take away" a reserved parking space assigned to the owner of a condominium unit. No documentation was presented at hearing evidencing Miami Management's lack of authority to "change" or to "take away" a reserved parking space. An inference is drawn and a finding is made that "change" and "take away" have identical meaning as used by Ms. Lopez.
Mr. Botero has had narcolepsy attacks since residing at Calusa Club. His neighbors have had to remove him from his vehicle and park his vehicle in Reserved Space Number 9 for him.
Around 2001, Mr. Botero deeded his condominium unit to his son, a college student. He and his son live together in the unit. Mr. Botero did not inform Calusa Club or his condominium association that he had deeded the condominium unit to his son. Mr. Botero continues to pay the maintenance and condominium association fees. Mr. Botero parks his vehicle in a guest space, while his son parks his (son's) vehicle in Reserved Space Number 9.
Calusa Club learned of Mr. Botero's present arrangement with his son at hearing through Mr. Botero's testimony.
Mr. Botero filed his complaint of discrimination under Florida's Fair Housing Act (Act) with the FCHR on about June 4, 2004.5
CONCLUSIONS OF LAW
The Division of Administrative Hearings has jurisdiction over the subject matter of this proceeding and the parties thereto, pursuant to Sections 760.23, 120.57(1), 120.569, Florida Statutes (2005).
The Act is found at Sections 760.20-760.37, Florida Statutes.
A discriminatory housing practice is defined as "an act that is unlawful under the terms of ss. 760.20-760.37."
§760.22(3), Florida Statutes.
Section 760.23, Florida Statutes, 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:
That buyer or renter;
A person residing in or intending to reside in that dwelling after it is sold, rented, or made available; or
Any person associated with the buyer or renter.
For purposes of subsections (7) 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; or
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.
Handicap is defined to include a person who "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."
§ 760.22(7)(a), Fla. Stat.
Mr. Botero is handicapped as defined by Section 760.22(7)(a), Florida Statutes, and is, therefore, a member of the protected class.
When the Florida Legislature enacted the Act, it essentially codified the United States Fair Housing Amendments Act of 1988 (FHAA). Dornbach v. Holley, 854 So. 2d 211, 213 (Fla. 2nd DCA 2002). The application of the FHAA by the federal courts has been found to be instructive and persuasive by the courts of Florida in considering the application of the Act. Id.
The federal courts have determined that discrimination may exist under the FHAA in either one of three ways: the FHAA
(1) "prohibits intentional discriminatory conduct towards a handicapped person”; (2) "prohibits incidental discrimination, that is, an act that results in making the property unavailable
to a handicapped person”; or (3) "prohibits an act that fails to make a reasonable accommodation that would allow a handicapped person the enjoyment of the chosen residence.” Dornbach, at 213 (citations omitted). Given the similarity of the language and the purpose of the FHAA and the Act, the three approaches to fair housing discrimination is applicable to the Act. Id.
"The [United States] Supreme Court has decided that discrimination under the Fair Housing Act [FHAA] includes a refusal to make a 'reasonable accommodation' for handicapped persons.” Loren v. Sasser, 309 F.3d 1296, 1302 (11th Cir. 2002) (citation omitted). Determining whether a requested accommodation is required by law is "highly fact-specific, requiring case-by-case determination.” Id. (citation omitted).
"Under the Fair Housing Act [FHAA], plaintiffs have the burden of proving that a proposed accommodation is reasonable." Loren, at 1302.
Condominiums are creatures of statute. The Florida Supreme Court has held that, as a result of condominiums being creatures of statute, "courts must look to the statutory scheme as well as the condominium declaration and other documents[6] to determine the legal rights of owners and the association.” (citations omitted) Woodside Village Condominium Association,
Inc. v. Jahren, 806 So. 2d 452 (Fla. 2002).
Condominium ownership and living is restrictive. The Florida Supreme Court held in White Egret Condominium, Inc. v.
Franklin, 379 So. 2d 346, 350 (Fla. 1979), quoting from Hidden Harbour Estates, Inc. v. Norman, 309 So. 2d 180 (Fla. 4th DCA 1975):
nherent in the condominium concept is the principle that to promote the health, happiness, and peace of mind of the majority of the unit owners since they are living in such close proximity and using facilities in common, each unit owner must give up a certain degree of freedom of choice which he might otherwise enjoy in separate, privately owned property. Condominium unit owners comprise a little democratic sub society of necessity more restrictive as it pertains to use of condominium property than may be existent outside the condominium organization.
Mr. Botero has the burden to prove by a preponderance of the evidence that Calusa Club discriminated against him under the Act by failing to provide him with a reasonable accommodation as to his reserved parking space. Loren, at 1302;
§ 760.34(5), Fla. Stat.
A perusal of Florida's condominium statutory provisions does not reveal a provision governing reserved parking spaces for owners of condominium units. Chapter 718;
§§ 718.101-718.622, Fla. Stat.
No documents, such as declaration or bylaws, were presented at hearing as to the governing of reserved parking spaces for owners of condominium units at Calusa Club.
Without the statutory provisions or documents, the undersigned must look to the testimony of the parties.
As an owner of a condominium unit at Calusa Club,
Mr. Botero was entitled to a reserved parking space. Because of his handicap, Mr. Botero requested a reserved handicapped parking space close to his condominium building. Mr. Botero's handicap required a parking space with dimensions akin to a handicapped parking space. However, no reserved handicapped parking spaces were available at his condominium building.
Calusa Club made attempts to comply with Mr. Botero's request by giving his guest parking spaces. But the guest parking spaces were not dimensionally adequate in that all of the parking spaces, except handicapped parking spaces, at his condominium building were the same dimensions.
Calusa Club made a last attempt to comply with
Mr. Botero's request by "moving" his reserved parking space to a parking space to the left of the access walkway to his condominium building, which the testimony demonstrated was a guest parking space. However, moving his reserved parking space next to the access walkway failed to provide Mr. Botero with the additional dimensions that he needed for his handicap. His
handicap made him fearful of backing into the reserved parking space so he would have to drive into the parking space. Driving into the reserved parking space placed his driver's door, not to the right of the access walkway, but to the left of the access walkway, which did not provide him with sufficient space dimensionally to exit his vehicle or for someone to remove him from his vehicle if had a narcolepsy attack. Being able to back into the parking space would have placed the driver's door of his vehicle directly next to the access walkway, which would have provided him with the additional dimensions that he needed for his handicap.
This last attempt did not satisfy Mr. Botero.
Finally, the property manager for Miami Management notified Mr. Botero that the "moving" of his reserved parking space was Calusa Club's "reasonable accommodation" for his handicap and that no handicapped parking space could be placed near his condominium building.
The parking space to the right of the access walkway was also a guest parking space and was, therefore, not reserved. No testimony was presented as to why Mr. Botero's reserved parking space was not or could not be "moved" to that guest parking space. Moving his reserved parking space to that location would have allowed Mr. Botero to drive directly into the parking space, with the driver's door to his vehicle opening
into the access walkway, providing him with the additional dimensions needed for his handicap.
The evidence demonstrates that Calusa Club had the authority to, and did, move Mr. Botero's reserved parking space to a guest parking space. Furthermore, the evidence demonstrates that Calusa Club intentionally refused to make a reasonable accommodation by moving the reserved parking space to three guest parking spaces which failed to reasonably accommodate his handicap, instead of moving the reserved parking space to the guest parking space to the right of the access walkway to Mr. Botero's condominium building. As easily as Calusa Club moved Mr. Botero's reserved parking space to a guest parking space to the left of the access walkway, it could have moved his reserved parking space to the guest parking space to the right of the access walkway.
The expense associated with moving Mr. Botero's reserved parking space to the right of the access walkway, so his driver's door could open into the access walkway, is not cost-prohibited. No evidence was presented to demonstrate that Calusa Club made any expenditures to move the reserved parking space. Therefore, the expense to Calusa Club to move Reserved Space Number 9 would be the same expense incurred by Calusa Club in moving Mr. Botero's reserved parking space to its present location, i.e., no expense.
Examining Mr. Botero's circumstances, the evidence demonstrates that an accommodation is required in his particular situation. Furthermore, the evidence demonstrates that, under Mr. Botero's circumstances, Calusa Club failed and refused to make a reasonable accommodation for his handicap.
The evidence demonstrates that housing discrimination had occurred, that Calusa Club engaged in discrimination under the Act against Mr. Botero.
As to remedy, Section 760.35(3), Florida Statutes, provides in pertinent part:
(b) [I]f the administrative law judge finds that a discriminatory housing practice has occurred or is about to occur, he or she shall issue a recommended order to the commission [FCHR] prohibiting the practice and recommending affirmative relief from the effects of the practice, including quantifiable damages . . . .
A factor to be considered in determining a remedy is the current ownership of the condominium unit. Mr. Botero filed his claim of discrimination under the Act with the FCHR on
June 4, 2004. Around 2001, he deeded his condominium unit to his son. Chapter 718, Florida Statutes, defines the owner of a unit as the "record owner of legal title to a condominium parcel." § 718.103(28), Fla. Stat. Mr. Botero is no longer the owner of the condominium unit. Reserved parking spaces are assigned only to owners of the condominium units. As a result,
at the time that Mr. Botero transferred title to the condominium unit to his son, Mr. Boter was no longer was entitled to a reserved parking space, but his son was. The evidence shows that Mr. Botero's son is parking in the reserved parking space, while Mr. Botero is parking in a guest parking space.
If Mr. Botero were the owner of the condominium unit, a remedy would be to move his reserved parking space to the guest parking space to the right of the access walkway. However, this reasonable accommodation is not a viable remedy due to the change in ownership of the condominium unit.
Pursuant to Section 760.35(3)(b), Florida Statutes, remedies to discriminatory housing practice includes “affirmative relief from the effects of the [discriminatory] practice, including quantifiable damages.” However, the evidence failed to demonstrate that Mr. Botero suffered quantifiable damages.
Reserved Space Number 9 was moved to the left of the access walkway at no expense to Calusa Club, which had the authority to move it. Calusa Club intentionally refused to make a reasonable accommodation for Mr. Botero's accommodation. To allow Calusa Club to escape imposition of remedial action is unconscionable. Reserved Space Number 9 should be moved to the right of the access walkway, which, based on the evidence presented, should have been done by Calusa Club from the
original request by Mr. Botero and which would be at no expense to Calusa Club.
DONE AND ENTERED this 31st day of October, 2005, in Tallahassee, Leon County, Florida.
ERROL H. POWELL
Filed with the Clerk of the Division of Administrative Hearings this 31st day of October, 2005.
1/ Mr. Botero does not drive “very far” from the condominium.
2/ Ms. Roder did not testify at hearing.
3/ The evidence fails to demonstrate when Mr. Botero made his second request.
4/ The evidence fails to demonstrate when Mr. Botero made his third request.
5/ See in the record Mr. Botero's "Housing Discrimination Complaint" dated May 26, 2004, bearing a receipt stamp by the FCHR of June 4, 2004.
Carlos A. Triay, Esquire Carlos A. Triay, P.A. Post Office Box 227010 Miami, Florida 33122
Cecil Howard, General Counsel Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100
Denise Crawford, Agency Clerk Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100
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.
