STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

RECOMMENDED ORDER

Pursuant to notice this cause came on for formal proceeding and hearing before P. Michael Ruff, a duly-designated Administrative Law Judge of the Division of Administrative Hearings. The hearing was conducted in Shalimar, Florida, on November 19, 2008. The appearances were as follows:

APPEARANCES

For Petitioner: Nancy A. Maconi, pro se1/

Post Office Box 6031 Miramar, Florida 32550

For Respondent: John M. Fite, Esquire

Raymond F. Newman, Esquire Post Office Box 2467

Panama City, Florida 32402 STATEMENT OF THE ISSUE:

The issue in this proceeding concerns whether the Petitioner has been the victim of a discriminatory housing

practice, in alleged violation of Sections 760.20 through 760.37, Florida Statutes (2007).

PRELIMINARY STATEMENT

This cause arose upon the filing of a Complaint with the Florida Commission on Human Relations (Commission) by the Petitioner against the above-named Respondent. The Complaint was filed on or about March 26, 2008, and contained allegations that the Petitioner had been harmed by a discriminatory housing practice by the Respondent. The Petitioner alleged that reasonable accommodation for the Petitioner's disability or handicap had not been made by the Respondent. The alleged discrimination took the form of purported failure to grant the Petitioner a designated handicap parking space outside the Petitioner's residential unit. The Respondent denied the allegations and alleged that a designated handicap parking space sign for the Petitioner's unit (unit 11C) had been erected since at least March or April of 2007, remained in place and had been used by the Petitioner exclusively since that time.

After receiving various pertinent documents from the parties, the Commission entered a Notice of Determination of No Cause on June 12, 2008. The Commission therein concluded that reasonable cause did not exist to believe that a discriminatory housing practice had occurred.

The Petitioner thereafter filed a timely Petition for Relief and the Commission transmitted the matter to the Division of Administrative Hearings for formal proceeding. The cause was transmitted to the undersigned Administrative Law Judge and scheduled for hearing.

The cause came on for hearing as noticed. The Petitioner presented two witnesses and six exhibits were admitted into evidence at the hearing. The Respondent presented one witness and had Exhibits 1(a) through 1(b) and Exhibit 2 admitted into evidence. Upon the conclusion of the proceeding the parties exercised their right to submit proposed findings of fact and conclusions of law in the form of proposed recommended orders. Those Proposed Recommended Orders have been considered in the rendition of this Recommended Order.

FINDINGS OF FACT

1. The Petitioner is a physically handicapped person. He resides in a residential unit (Unit 11C) in the Sea Cabins residential complex. The Petitioner is a full-time resident at Sea Cabins and is the owner of unit 11C.

2. The Respondent is a Florida Corporation (not for profit) and is a homeowners association, as defined by Section 720.303, Florida Statutes (2008).

3. Sometime in early May 2007, Nancy Maconi, the Petitioner's wife, placed a number of signs around the Sea

   Cabins property. The Respondent purports that there were approximately 13 signs. One of the signs was a designated handicap parking space sign for unit 11C. It was erected in close proximity to the Petitioner's Sea Cabins unit 11C.

4. Thereafter, the Petitioner sought reimbursement for the cost of the signs from the homeowners association board of directors, the Respondent. The request was denied at a meeting of the board of May 11, 2007, with the minutes reflecting that the Petitioner had not requested nor been granted permission to install any signs, hence the denial at that point. Ms. Maconi testified at the hearing that she had asked the Respondent's manager for permission to install the signs, which the manager, Willa Merriott, denied. The action of the board at the May 11, 2000 meeting, however, is not in dispute.

5. Thereafter, on approximately June 22, 2007, the attorney for the Respondent wrote the Petitioner requesting that the designated handicap parking sign be removed since it had not been authorized by the board, nor had any formal request for the installation of the sign been made. On June 23, 2007, the Petitioner responded to that letter by requesting that the board formally authorize the handicap parking sign. A letter from the Veterans Administration was attached to that letter to the effect that the Petitioner had a service-connected disability.

   The specific nature of the disability was not specified, however.

6. In any event, the Respondent association acquiesced in the handicap parking sign at issue remaining in place and use while it investigated whether the Petitioner was actually entitled to a handicap parking space. The Petitioner was advised by letter of October 11, 2007, by the Respondent, that the handicap parking sign could remain in place while his application was pending.

7. A series of letters then passed between the parties or their representatives in October through December 2007. Pursuant to its policy concerning the granting of handicapped parking spaces and the like, the association sought information on the nature of the Petitioner's disability or handicap. The

   Petitioner countered by taking the position that the association already had enough information upon which to make its decision. In any event, however, through this period, the Petitioner's designated handicapped parking space and sign remained in place in the original location where Ms. Maconi had placed it. The Respondent acquiesced in its presence and in the Petitioner's use of the handicapped space.

8. Counsel for the Respondent received a letter dated January 3, 2008, from Paul E. Brooks, a Podiatrist, revealing for the first time the specifics of the Petitioner's disability.

   That is, he has an orthopedic condition which limits his ability to walk. This letter was received on January 8, 2008, and considered by the board of directors at a special meeting held January 28, 2008. At that meeting the board formally granted the Petitioner's application for a designated handicap parking space and voted to allow the sign already erected by Ms. Maconi to remain permanently in place.

9. Due to a misunderstanding between the board and its counsel as to who should notify the Petitioner of the decision, the Petitioner was not actually notified of the decision until March. By letter of March 17, 2008, counsel for the homeowners' association wrote the Petitioner of the actions of the board

   regarding the sign.

   
   

   CONCLUSIONS OF LAW

   
   

10. The Division of Administrative Hearings has jurisdiction of the subject matter of and the parties to this proceeding. §§ 120.569 and 120.57(1), Fla. Stat. (2008).

11. It has been stipulated that the Petitioner is physically handicapped. The Respondent was not provided sufficient evidence to reach that conclusion, under its policy, until it actually received Dr. Brooks letter in January 2008. Much of the evidence adduced concerns whether the Respondent knew or should have known of the Petitioner's physical handicap and when it should have known it.

12. Under the facts of this case, as established by preponderant evidence, however, the point in time when the Respondent precisely knew of the physical handicap, the precise nature of it and whether the Petitioner was therefore entitled to "reasonable accommodation" is essentially irrelevant or immaterial under the facts. There is no dispute that the Petitioner has had a designated handicap parking space for his exclusive use, with the knowledge of the Respondent and with the related signage erected by Ms. Maconi, from at least early May 2007 and likely some period of time before that. This was known by the Respondent's board and acquiesced in, in terms of the erection of the sign and his exclusive use of it. He had the parking space with the knowledge and acquiescence of the board since well before he requested an accommodation, in the form of the exclusive parking space and sign, by the letter of June 23, 2007.

13. A "discriminatory housing practice" is an act which is unlawful under the terms of Sections 760.20 through 760.37, Florida Statutes, as provided in Section 760.22, Florida Statutes (2007). There is no dispute in this proceeding that the residential complex at issue, Sea Cabins, comes within the definition of "covered multi-family dwellings" and "dwelling" contained in Section 760.22, Florida Statutes.

14. Section 760.23, Florida Statutes, provides in pertinent part as follows:

    Section 760.23 discrimination in the sale or rental of housing and other prohibitive practices.-

    
    

    1. It is unlawful to refuse to sell or rent after the making of a bona fide offer, to refuse to negotiate for the sale or rental of, or otherwise to make unavailable or deny a dwelling to any person because of race, color, national origin, sex, handicap, familial status, or religion.

       
       

    2. It is unlawful to discriminate against any person in 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.

       
       

       * * *

       
       

       1. 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 the handicap of:

          1. That buyer or renter;

          2. A person residing in or intending to reside in that dwelling after it is sold, rented, or made available; or

          3. Any person associated with the buyer or renter.

          
          

       2. For purposes of subsection (7) and (8) discrimination includes:

       
       

       * * *

       
       

       (b) A refusal to make reasonable accommodations and rules, policies, practices, or services, when such

       accommodations may be necessary to afford such person equal opportunity to use and enjoy a dwelling.

       
       

15. The Petitioner herein has the burden of proving by a preponderance of evidence that the Respondent violated the Florida Fair Housing Act. § 760.34(5), Fla. Stat. (2007).

16. The Florida Fair Housing Act is modeled after the federal law in Title VII on this subject, and Florida law will take on the same construction as federal law, provided that the interpretation is harmonious with the spirit and policy of Florida law. See Brand v. Florida Power Corp., 633 So. 2d 504,

    509 (Fla. 1st DCA 1994); and Florida Dept. of Community Affairs v. Bryant, 586 So. 2d 1205, 1209 (Fla. 1st DCA 1991). The well- settled three-part burden of proof test, developed in the opinion in McDonnell-Douglas Corporation v. Green, 411 U.S. 792 (1973), is employed in analyzing cases brought under the Federal Fair Housing Act and, has been applied to the analysis and determination of cases arising under the Florida Fair Housing Act embodied in Chapter 760, Florida Statutes. Tucci v. Ngyuen, DOAH Case No. 07-0497 (February 4, 2008).

17. The McDonnell-Douglas test is as follows:

    
    

    First the plaintiff has the burden of proving a prima facie case of discrimination by a preponderance of the evidence. Second, if the plaintiff sufficiently establishes a prima facie case, the burden shifts to the defendant to articulate some legitimate,

    non-discriminatory reason for its actions.

    Third, if the defendant satisfies his burden the plaintiff has the opportunity to prove by a preponderance of the evidence that the legitimate reasons asserted by the defendant are in fact mere pretext.

    
    

    See United States Department of Housing and Urban Development v.

    
    

    Blackwell, 908 F.2d 864, 870 (11th Cir. 1990), quoting Pollitt

    
    

    v. Bramel, 669 F. Supp. 172, 175 (So. Dist. Ohio 1987). In consideration of the McDonnell-Douglas burden of proof test, it is also true that the ultimate burden of persuasion to establish that the complained-of action by the Respondent is based upon discriminatory motivation remains with the Petitioner. St.

    Mary's Honor Center v. Hicks, 509 U.S. 502 (1993).

    
    

18. In order to establish a prima facie case of discrimination based upon disability regarding the failure to make reasonable accommodation, as envisioned by the Fair Housing Act, the Petitioner must show: (1) that the Petitioner belongs to a class of persons covered by the Fair Housing Act, i.e. a protected class, here the disabled; (2) that the Respondent knew or should have known that the Petitioner belonged to the protected class of handicapped or disabled; (3) that the Petitioner requested that the Respondent make one or more reasonable accommodations in the rules, policies, practices, and procedures or services the Respondent provided or could provide, and whether the accommodation requested was a reasonable accommodation for disability or handicap; (4) whether the

    requested accommodations were necessary to afford the complainant an equal opportunity to use and enjoy the premises; and (5) did the Respondent deny or unreasonably delay the complainant's request?

19. In terms of the prima facie case the Petitioner must advance, to establish a discriminatory action under the Fair Housing Act, there is no question that the Petitioner belongs to a class of persons covered by that act in that the Petitioner is disabled. However, there is no showing by preponderant evidence that the Respondent denied or unreasonably delayed the Petitioner's request for an accommodation for that disability in the form of a designated handicap parking space.

20. The sign and space was shown to be a reasonable accommodation, but it was never denied nor delayed because the Petitioner had already unilaterally acted to install signage designating an exclusive use, handicap parking space for himself, the board became aware of it, sometime in early 2007, and soon thereafter acquiesced in his use of it. Formal approval in accordance with the board's policies came after a letter was received from a medical practitioner, attesting to the precise nature of the disability. This resulted in the formal approval occurring in January 2008. The evidence is clear that the sign remained in place, and the parking space related to it utilized exclusively by the Petitioner, since at

    least early May 2007 to the time of the hearing. The Respondent was aware of it and never attempted to remove the sign, acquiesced in its installation and in the Petitioner's exclusive use of the subject parking space. Even though formal authorization of the sign occurred at the board meeting of January 28, 2008, that does not imply that the Petitioner was denied reasonable accommodation at an earlier date. Indeed, the board was aware of the Petitioner's use of the parking space, and acquiesced in it, even before the Petitioner submitted the request for accommodation on June 23, 2007. Therefore, the Petitioner has not established a prima facie case of discrimination under the Fair Housing Act, in view of the facts established by preponderant evidence in this case.

21. In view of the foregoing it is concluded that a discriminatory housing practice did not occur. Indeed the preponderant evidence shows that the Respondent was acquiescing in the accommodation before it was requested and before the Respondent actually knew that the Petitioner had a disability.

RECOMMENDATION

Having considered the foregoing Findings of Fact, Conclusions of Law, the evidence of record, the candor and demeanor of the witnesses and pleadings and arguments of the parties, it is, therefore,

RECOMMENDED that a final order be entered by the Florida Commission on Human Relations dismissing the subject Petition for Relief in its entirety.

DONE AND ENTERED this 27th day of January, 2009, in Tallahassee, Leon County, Florida.

S

P. MICHAEL RUFF Administrative Law Judge

Division of Administrative Hearings The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-3060

(850) 488-9675 SUNCOM 278-9675

Fax Filing (850) 921-6847 www.doah.state.fl.us

Filed with the Clerk of the Division of Administrative Hearings this 27th day of January, 2009.

ENDNOTE

1/ Ms. Maconi, the Petitioner's spouse was allowed to appear for the Petitioner due to the Petitioner' medical situation, and in the interest of fundamental fairness, without objection.

COPIES FURNISHED:

Denise Crawford, Agency Clerk

Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100

Tallahassee, Florida 32301

Nancy A. Maconi

Post Office Box 6031 Miramar, Florida 32550

John M. Fite, Esquire Raymond F. Newman, Esquire Post Office Box 2467

Panama City, Florida 32402

Larry Kranert, 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: 08-003346

Orders for Case No: 08-003346