TERRY O. YODER,
vs.
Respondent.
) Case No. 07-2538
Pursuant to notice, a formal hearing was held in this case in Haines City, Florida, on December 3, 2007, before Jeff B. Clark, a duly-designated Administrative Law Judge of the Division of Administrative Hearings.
For Petitioner: Terry O. Yoder, pro se
Peterson & Myers, P.A. Post Office Box 24628 Lakeland, Florida 33802
Whether Respondent, Century Realty Funds, Inc., violated the Florida Fair Housing Act, Chapters 760.20 through 760.37, Florida Statutes (2006), by failing to install a poolside chairlift as requested by Petitioner.
On June 1, 2007, Petitioner, Terry Yoder, timely filed a Petition for Relief from a Housing Discriminatory Practice alleging that Respondent, Century Realty Funds, Inc., violated the Florida Fair Housing Act, as amended, because "Respondent denied a reasonable modification of our Park swimming pool deck to allow for installation of a poolside chairlift for physically challenged (disabled) persons."
On May 11, 2007, Petitioner had been mailed a Notice of Determination, "No Cause," by the Florida Commission on Human Relations ("Commission"), which indicated that "the FCHR has determined that reasonable cause does not exist to believe that a discriminatory housing practice has occurred."
On June 7, 2007, the Commission forwarded the Petition for Relief to the Division of Administrative Hearings requesting assignment of an Administrative Law Judge to conduct proceedings required by law and to submit a recommended order to the Commission. On June 8, 2007, an Initial Order was sent to both parties. Based on the parties' response to the Initial Order, the case was scheduled for final hearing on August 1, 2007. On July 16, 2007, Petitioner requested a continuance; as a result, on August 2, 2007, the case was rescheduled for December 3, 2007.
On November 29, 2007, Respondent filed an extensive Response to Petition for Relief. On December 3, 2007, at the onset of the final hearing, Respondent filed a Motion to Dismiss for Lack of Subject Matter Jurisdiction. Ruling on the Motion to Dismiss for Lack of Subject Matter Jurisdiction was reserved and will be dealt with in this Recommended Order.
The final hearing took place as rescheduled on December 3, 2007. Petitioner presented seven witnesses: himself; Lee Holmes; Greg Gilbert; James Childs; Barbara D'Arpini; Lee Pratt; and David Blamer. Petitioner offered two exhibits, which were received into evidence and marked Petitioner's Exhibits 1 and 2. Respondent presented four witnesses: John Berns, who was qualified as an expert witness on pool construction; Ronald Baxley; Timothy Sease; and Donald Sutherland. Respondent offered five exhibits, which were received into evidence and marked Respondent's Exhibits 4, 5, 11, 12, and 13.
Neither party ordered a transcript of the final hearing.
The parties agreed to file proposed recommended orders by January 10, 2008. Respondent filed an unopposed motion for extension of time to file the proposed recommended orders to January 25, 2008. Both parties timely submitted Proposed Recommended Orders.
All references are to 2006 Florida Statutes, unless otherwise indicated.
Based on the oral and documentary evidence presented at the formal hearing and on the entire record of this proceeding, the following Findings of Fact are made:
chairlift. The swimming pool area is not supervised by life guards.
Plantation Landings does not provide any supportive services to its residents, such as counseling, medical, therapeutic, or social services.
The owner-tenants of Plantation Landings are members of the Plantation Landings Mobile Home Park Homeowners' Association ("Homeowners' Association"), which is a voluntary homeowners' association. Petitioner and his wife are members of the Homeowners' Association.
Petitioner and his wife purchased a home in Plantation Landings and leased a lot from Respondent on February 8, 2001, pursuant to a Lease Agreement of the same date.
Petitioner is a paraplegic and is able to move about by wheelchair. He is able to access the swimming pool common area in his wheelchair. However, he is not able to get in and out of the pool by himself. He has attempted to get into the swimming pool with the assistance of other residents. He would like to be able to have access into the swimming pool without relying upon the assistance of other residents so that he can exercise.
In April 2003, Petitioner discussed the feasibility of installing a poolside chairlift at the swimming pool with Respondent's agent. Petitioner offered to pay for the poolside chairlift and installation at his own expense.
On April 1, 2003, Petitioner submitted a written request to Respondent requesting that Respondent install a poolside chairlift. Petitioner delivered his April 1, 2003, written request, literature, and video regarding the poolside chairlift to Respondent's agent. The request did not include any specifications or engineered drawings, nor did it state the proposed location for the poolside chairlift. The poolside chairlift initially proposed by Petitioner was the Model IGMT, which was an in-ground manually-operated lift with a 360-degree seat rotation.
In its consideration of Petitioner's request, Respondent determined that the design and construction of the pool and the surrounding common areas were in compliance with all state and federal statutes and regulations and that the pool area and common areas to the pool were accessible by wheelchair. Respondent determined that it was not required to install a poolside chairlift for access into the pool. Respondent also learned that the IGMT model was not Americans With Disabilities Act compliant. It was Respondent's conclusion that the poolside chairlift was cost-prohibitive and a dangerous hazard.
When Petitioner returned to Plantation Landings in November 2003, he was advised of Respondent's decision not to provide the requested poolside chairlift.
In March 2004, Petitioner requested the assistance of James Childs, president of the Homeowners' Association, for the purpose of making a second request to Respondent for the installation of a poolside chairlift. On March 7, 2004,
Mr. Childs, on Petitioner's behalf, wrote Respondent requesting a poolside chairlift. On May 3, 2004, Respondent wrote
Mr. Childs denying the request.
Over the several years Petitioner has resided in Plantation Landings, he has requested modifications to accommodate wheelchair accessibility. These requests included modifications to the ramp at the front of the clubhouse, modifications adding an additional wheelchair ramp to the back of the clubhouse for access into the clubhouse, and modifications to the handicap parking spaces in front of the clubhouse. All of Petitioner's requests for modifications were honored.
In May 2006, Petitioner, again with the assistance of Mr. Childs, made a third request to install a poolside chairlift. This third request was identical to his two prior requests made in 2003 and 2004. This request was denied by letter on April 27, 2006.
On December 23, 2006, Petitioner filed a Complaint with the U.S. Department of Housing and Urban Development alleging that Respondent had discriminated against him on the
basis of his disability by refusing to allow him to install a poolside chairlift at his own expense.
CONCLUSIONS OF LAW
The Division of Administrative Hearings has subject matter jurisdiction over timely-filed claims pursuant to Subsections 760.35(3)(a) and 120.57(1) and Section 120.569, Florida Statutes (2007).
Subsection 760.34(5), Florida Statutes, provides that "[i]n any proceeding brought pursuant to this section or
s. 760.35, the burden of proof is on the complaining party." Petitioner has the burden of proving the allegations of his Petition for Relief by a preponderance of the evidence.
The Florida Civil Rights Act of 1992, as amended (Chapter 760, Florida Statutes), was patterned after Title VII of the Civil Rights Act of 1964 and Federal case law interpreting Title VII is applicable to cases arising under the Florida Act. Green v. Burger King Corp., 728 So. 2d 369 (Fla. 3d DCA 1999); Laborers' Int'l Union of N. Am., Local 478 v.
Burroughs, 522 So. 2d 852 (Fla. 3d DCA 1987); School Board of Leon County v. Hargis, 400 So. 2d 103 (Fla. 1st DCA 1981).
Pertinent to the issue presented for determination are the following portions of the Florida Fair Housing Act, Subsections 760.23(8)(b) and (9)(a), Florida Statutes:
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:
* * *
(b) A person residing in or intending to reside in that dwelling after it is sold, rented, or made available;
* * *
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 . . . .
The burden of proof and the order of production in this case was established by the United States Supreme Court in McDonnell-Douglass Corp. v. Green, 411 U.S. 792, 93 S. Ct. 1817,
36 L. Ed. 2d 668 (1978), as refined by the Court in Texas Department of Community Affairs v. Burdine, 450 U.S. 248, 101
S. Ct. 1089, 67 L. Ed. 2d 207 (1981), and in St. Mary's Honor Center v. Hicks, 509 U.S. 502, 113 S. Ct. 2742, 125 L. Ed. 2d
407 (1993). In these three cases, the Court developed a three-step allocation of the burden of production.
Under the McDonnell Douglas model, the petitioner bears the initial burden of establishing a prima facie case of
discrimination. Proof of a prima facie case under McDonnell Douglas raises a presumption that the respondent's decision was motivated by discrimination. St. Mary's Honor Center v. Hicks,
509 U.S. 502, 506 (1993). Demonstrating a prima facie case is not onerous; it requires only that Petitioner establish facts adequate to permit an inference of discrimination. McDonnell, supra, at 802.
The purpose of the three-step allocation of the burden of production is to assist Petitioner in proving unlawful discrimination when proof of discriminatory intent or motivation is required. Because the Court recognized that it is very difficult to prove discriminatory intent or motivation, the prima facie case of discrimination prescribed in McDonnell- Douglas and Burdine requires only that Petitioner establish that he or she is a member of the protected class and has been denied the benefits available under the law. See St. Mary's Honor Center, 113 S. Ct. at 2746-49; Barth v. Gelb, 2 F.3d 1180,
1185-86 (D.C App. 1993). In Barth v. Gelb, the Court concluded that in the context of discrimination claims involving reasonable accommodations for the handicapped, including reasonable modifications, the traditional allocation of the burden of production should be followed. In so holding, the court stated:
These cases deal with objective claims that may be tested through the application of traditional burdens of proof . . . [A] plaintiff must establish that (a) he is handicapped but, (b) with reasonable accommodation (which he must describe), he is (c) able to perform "the essential functions' of the position he holds or seeks. . . As in the usual case, it would then be up to the employer to refute the evidence. The burden, however, remains with the plaintiff to prove his case by a preponderance of the evidence.
Id. at 1187.
Once the presumption of discriminatory intent is raised, Respondent is able to rebut it by introducing admissible evidence of a reason, which if believed by the trier of fact, supports a finding that discrimination was not the cause of the challenged action. Grigsby v. Reynolds Metals Co., 821 F.2d 590, 594 (11th Cir. 1987); and Equal Opportunities Employment
Commission v. Navy Federal Credit Union, 424 F.3d 397, 405 (4th Cir. 2005). Respondent is required only to produce admissible evidence, which would allow the trier of fact rationally to conclude that the decision complained of had not been motivated by discriminatory animus. Texas Department of Community Affairs v. Burdine, 450 U.S. 248, 257 (1981). Respondent need not persuade the court that it was actually motivated by the proffered reasons . . . [I]t is sufficient if the evidence raises a genuine issue of fact as to whether it discriminated against the plaintiff. Id. at 254. This burden is
characterized as "exceedingly light." Perryman v. Johnson Products Co., Inc., 698 F.2d 1138, 1142 (11th Cir. 1983).
Where Respondent meets this burden, Petitioner has the opportunity to demonstrate that Respondent's articulated reason for the adverse action is a mere pretext for discrimination. McDonnell Douglas Corp. v. Green, supra, at 804; Roberts v.
Gadsden Memorial Hospital, 835 F.2d 793, 796 (11th Cir. 1988). This demonstration merges with Petitioner's ultimate burden of showing that Respondent intentionally discriminated against Petitioner. St. Mary's Honor Center v. Hicks, 509 U.S. 502, 511 (1993); Pignato v. American Trans Air, Inc., 14 F.3d 342, 347 (7th Cir. 1994). Put another way, once Respondent succeeds in carrying its intermediate burden of production, the ultimate issue in the case becomes whether Petitioner has proven that Respondent intentionally discriminated against him because of his disability. Turnes v. AmSouth Bank, N.A., 36 F.3d 1057, 1061 (11th Cir. 1994). Once Respondent produces evidence of a legitimate, nondiscriminatory reason for the challenged action, any presumption of discrimination arising out of the prima facie case "drops from the case." See Krieg v. Paul Revere Life Ins. Co., 718 F.2d 998, 1001 (11th Cir. 1983), cert. denied, 466 U.S.
929 (1984); Navy Federal Credit Union, 424 F.3d at 405. The ultimate burden remains upon Petitioner to prove that Respondent intentionally discriminated against him. Burdine, supra,
at 256. Stated another way, "the ultimate question in a desperate treatment case is not whether Petitioner established a prima facie case or demonstrated a pretext, but 'whether the defendant intentionally discriminated against the plaintiff.'" Pashoian v. GTE Directories, 208 F. Supp. 2d 1293 (M.D. Fla.
2002).
The elements of the prima facie case of unlawful discrimination are set out in Subsection 760.23(9)(a), Florida Statutes, and the relevant case law, some of which is cited hereinabove. Accordingly, Petitioner has the burden of proving that (1) Respondent refused to permit, (2) at Petitioner's expense, (3) a modification of the common elements of Plantation Landings which is reasonable, and (4) necessary for Petitioner to fully enjoy the premises. Respondent must then produce evidence refuting the prima facie presumption of discriminatory intent.
There is no issue regarding the fact that Petitioner is protected by the Florida Fair Housing Act, nor that Respondent refused to install the poolside chairlift as requested.
Before discussing the remaining evidence and law, the Respondent's Motion to Dismiss for lack of Subject Matter Jurisdiction will be addressed.
Motion to Dismiss for lack of Subject Matter Jurisdiction
Petitioner's Housing Discrimination Complaint filed with the U.S. Department of Housing and Urban Development on January 29, 2007 (amended February 28, 2007), alleges that in a May 15, 2006, letter to Respondent, he requested and offered to pay for a poolside chairlift. He further alleges that Respondent's refusal to install the chairlift was an act of discrimination and that the most recent date of the discrimination was October 19, 2006. The Commission's Notice of Determination, "No Cause," is the genesis of the Petition for Relief which occasions this action and is predicated on the appropriateness of Petitioner's Housing Discrimination Complaint.
The evidence revealed that Petitioner's first written request for a poolside chairlift was dated April 1, 2003. This request was denied in November 2003. His second written request, communicated through the president of the Homeowners' Association, was made on March 7, 2004. On May 3, 2004, Respondent denied, by letter, this request. A third request, verbal, was made in the Spring of 2006 and denied by letter dated April 27, 2006. A fourth request was made by Petitioner's letter dated May 15, 2006.
Subsection 760.34(2), Florida Statutes, states, in pertinent part:
A complaint under subsection (1) must be filed within 1 year after the alleged discriminatory housing practice occurred. The complaint must be in writing and shall state the facts upon which the allegations of a discriminatory housing practice are based. . . .
Respondent's denials of Petitioner's request for a poolside chairlift occurred in November 2003; May 3, 2004; and April 27, 2006. The controlling statute clearly requires that the complaint must be filed within one year of the alleged discriminatory act. The Petition for Relief is time-barred; it should have been filed in November 2004 (not January 2007) to meet the statutory jurisdictional requirement. The continuing series of denials of essentially the same request does not extend the requirement that the complaint be filed within one year of the discriminatory act. Burnam v. Amoco Container Co., 755 F.2d 893 (11th Cir. 1985); Collins v. United Airlines, Inc., 514 F.2d 594, 596 (9th Cir. 1975).
Claim Of Discrimination
Assuming, arguendo, that the claim had been filed within the statutory one year requirement and that the Commission had jurisdiction, Petitioner has not proved discriminatory intent in Respondent's denial of the requested accommodation.
The Fair Housing Amendment Act ("FHA") was enacted by Congress as a means of preventing housing discrimination based
upon race, color, religion, and national origin. The FHA states that 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 except that, in the case of a rental, the landlord may where it is reasonable to do so condition permission for a modification on the renter agreeing to restore the interior of the premises to the condition that existed before the modification, reasonable wear and tear excepted 42 U.S.C. 3604(f)(3)(A).
While the intent of the FHA is to end unnecessary exclusion of handicapped persons from the American mainstream, "a reasonable accommodation does not entail an obligation to do everything humanly possible to accommodate a disabled person." Bronk v. Ineichen, 54 F.3d 425, 429 (7th Cir. 1995). "[T]he FHA does not protect against Rules which merely make living in an area less desirable." See Savanna Club Worship Service, Inc. v. Savanna Club Homeowners' Association, Inc., 456 F. Supp. 2d 1223, 1232 (S.D. Fla. 2005). The FHA is not to be "interpreted as requiring that housing providers provide a broad range of services to persons with handicaps that the housing provider does not normally provide as part of its housing. . . [A] housing provider is not required to provide supportive services, e.g., counseling, medical, or social services that fall outside
the scope of the services that the housing provider offers to residents." 54 Fed. Reg. 3232 (1989). A housing provider is also not required to make modifications or accommodations which would fundamentally change the nature of its program. See 54 Fed. Reg. 3232 (1989) ("A housing provider is required to make modifications in order to enable a qualified applicant with handicaps to live in the housing, but is not required to offer housing of a fundamentally different nature. The test is whether, with appropriate modifications, the applicant can live in the housing that the housing provider offers; not whether the applicant could benefit from some other type of housing that the housing provider does not offer."). Further, the FHA was not intended to impose any new liability requirements on owners of managers of housing. 54 Fed. Reg. at 3249 (recognizing the absence of any "provisions of the Fair Housing Amendments Act or its legislative history that indicates that Congress sought to impose any new liability on the owners and managers of housing.").
Under the FHA, Petitioner has the burden of proving that a proposed modification is reasonable and necessary for equal enjoyment of the premises. See Loren v. Sasser, 309 F.3d 1296 (11th Cir. 2002); Wis. Community Servs. v. City of
Milwaukee, 465 F.3d 737 (7th Cir. 2006); Groner v. Golden Gate Gardens Apartments, Midwest Management, Inc., 250 F.3d 1039 (6th
Cir. 2001). The test is whether the modification is reasonable and necessary to afford Petitioner an equal opportunity to use and enjoy the dwelling. 24 C.F.R. § 100.203(a). The Supreme Court has emphasized that in considering a "reasonable modification" claim, "an individualized inquiry must be made to determine whether a specific modification for a particular person's disability would be reasonable under the circumstances, as well as necessary for that person and yet at the same time, not work a fundamental alteration. See Southeastern Community College v. Davis, 442 U.S. 397, 99 S. Ct. 2361, 60 L. Ed. 2d 980 (1979).1/
The U.S. Department of Housing and Urban Development ("HUD") is the agency charged with enacting regulations to interpret the FHA. Meyer v. Holley, 537 U.S. 280, 123 S. Ct. 824, 154 L. Ed. 2d 753 (2003). HUD's regulations provide some guidance as to what constitutes a reasonable modification under the FHA. In its regulations instituting the FHA, HUD provides a total of two examples of reasonable modifications:
Example (1): A tenant with a handicap asks his or her landlord for permission to install grab bars in the bathroom at his or her own expense. It is necessary to reinforce the walls with blocking between studs in order to affix the grab bars. It is unlawful for the landlord to refuse to permit the tenant, at the tenant's own expense, from making the modifications necessary to add the grab bars. . .
Example (2): An applicant for rental housing has a child who uses a wheelchair. The bathroom door in the dwelling unit is too narrow to permit the wheelchair to pass. The applicant asks the landlord for permission to widen the doorway at the applicant's own expense. It is unlawful for the landlord to refuse to permit the applicant to make the modification. . . .
24 C.F.R. § 100.203(c).
HUD's reasonable modification examples do not entail significant modifications to the dwelling, nor do they place significant expense on the landlord in altering the dwelling, nor pose enhanced risks to others.
HUD did not intend to require modifications that went beyond providing access to the dwelling, amenities, and the common areas. See Fair Housing Accessibility Guidelines ("Guidelines"), 56 Fed. Reg. 9472, 9515 (1991); Supplemental Notice: Questions and Answers About the Guidelines (1994) ("A swimming pool must be located on an accessible route, but there is no requirement that an accessible route be provided into the pool"); and Fair Housing Design Manual, Diagram 2.14. The Guidelines provide in pertinent part:
[T]he Department has decided not to change the specifications for recreational facilities, including swimming pools, as provided by the Option One guidelines, since there are no generally accepted standards covering such facilities. Thus, access to the pool area of a swimming facility is expected, but not specialized features for
access into the pool (e.g., hoists, or ramps into the water).
56 Fed. Reg. at 9515.
These Guidelines were the direct result of Congress' directives to HUD to provide technical assistance in the implementation of the requirements of design and construction set forth in 42 U.S.C. §§ 3604(f)(3)(C) and (f)(5)(C). While the guidelines are not mandatory, 56 Fed. Reg. at 9472, the Guidelines are "intended to provide a safe harbor for compliance with accessibility requirements of the Fair Housing Amendments Act. . . . Builders and developers may choose to depart from the Guidelines, and seek alternate ways to demonstrate that they have met the requirements of the [FHA]." Id. at 9473. The FHA itself provides one such alternative. HUD's own Guidelines explicitly exclude "access into the pool" as a required modification. This provides authoritative evidence that such specialized and substantial modifications are not required under the FHA, as HUD is the agency charged with enacting regulations to interpret the FHA.
Petitioner's request for a poolside chairlift to provide him access into pool is not a "reasonable modification," as defined under Title VIII of the Civil Rights Act of 1968, a/k/a The Fair Housing Amendments Act (42 U.S.C. § 3601, et seq.
(1968). Under Florida law, discrimination covered under the
Florida Fair Housing Act is defined the same as discrimination prohibited by the FHA. Petitioner failed to establish by a preponderance of evidence that his request is a "reasonable modification," that is, an accommodation contemplated by law or that Respondent's refusal to accede to his request was motivated by discrimination. Consequently, Petitioner's claim fails under the Florida Fair Housing Act.
RECOMMENDED that the Florida Commission on Human Relations enter a final order dismissing with prejudice the Petition for Relief for failure to establish an unlawful discriminatory act by Respondent, or, alternatively, that the claim is time-barred and that the Commission lacks jurisdiction to consider the Petition for Relief.
DONE AND ENTERED this 15th day of February, 2008, in Tallahassee, Leon County, Florida.
JEFF B. CLARK
Filed with the Clerk of the Division of Administrative Hearings this 15th day of February, 2008.
334 (2d Cir. 1995); City of Edmonds v. Washington State Building Code Council, 18 F.3d 802 (9th Cir. 1994).
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
Andrea Teves Smith, Esquire Peterson & Myers, P.A. Post Office Box 24628 Lakeland, Florida 33802
Terry O. Yoder
Terry O. Yoder
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.
