STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

MARCELLA AND LILIANA ZAMBRANO,

vs.

Petitioners,

Case No. 13-4335

VERSAILLES PLAZA CONDO ASSOCIATION, INC.,

Respondent.

/

RECOMMENDED ORDER

This case came before Administrative Law Judge Darren A. Schwartz for final hearing on May 9, 2014, in Miami, Florida.

APPEARANCES

For Petitioners: David A. Boyer, Esquire

Molly J. Paris, Esquire Disability Rights Florida Suite 104

1930 Harrison Street

Hollywood, Florida 33010 For Respondent: (No appearance)

STATEMENT OF THE ISSUES

Whether Respondent Versailles Plaza Condo Association, Inc., ("Respondent") failed to provide reasonable accommodations for Petitioner Marcella Zambrano's disability in violation of Florida's Fair Housing Act, and, if so, the relief that is appropriate.

PRELIMINARY STATEMENT

On March 15, 2013, Petitioners Marcella and Liliana Zambrano ("Petitioners" when referred to collectively) filed a fair housing discrimination complaint with the United States Department of Housing and Urban Development ("HUD"), alleging that Respondent discriminated against them by failing to provide reasonable accommodations for Marcella Zambrano's disability.

The Florida Commission on Human Relations ("FCHR") is a state agency charged with investigating fair housing discrimination complaints. After its investigation of Petitioners' complaint, FCHR issued a Notice of Determination of No Cause on

October 2, 2013.

Dissatisfied with FCHR's determination, Petitioners filed a Petition for Relief with FCHR on November 1, 2013, alleging that Respondent violated Florida's Fair Housing Act by failing to accommodate Marcella Zambrano's disability in the following ways:

1. failing to provide an accessible parking space closer to the entrance of the condominium building in which Petitioners reside; and 2) failing to allow Marcella Zambrano's school bus to enter the complex. On November 8, 2013, FCHR referred this matter to the Division of Administrative Hearings ("DOAH") to assign an Administrative Law Judge to conduct the final hearing.

   The final hearing was initially set for January 10, 2014, in Miami, Florida, but was continued at the request of Respondent,

   
   

   and rescheduled for March 7, 2014. Subsequently, Petitioners requested a continuance of the March 7 hearing, and the matter was rescheduled for final hearing on May 9, 2014, in Miami, Florida.

   At the final hearing, Petitioners presented the testimony of Liliana Zambrano and Helbert Zambrano, and offered Exhibits 2 through 11, all of which were admitted into evidence. Respondent did not appear at the final hearing despite being duly noticed of the hearing through notice sent to its counsel.1/

   The Transcript of the final hearing was filed on May 23, 2014. Petitioners timely filed a Proposed Recommended Order, which was given consideration in the preparation of this Recommended Order. Respondent did not file a proposed recommended order.

   FINDINGS OF FACT

   
   

   1. Petitioner Marcella Zambrano ("Marcella") is a 28-year- old-female, who is mentally retarded and suffers from cerebral palsy.

   2. Marcella weighs 260 pounds, has the mental age of a two-year-old, cannot speak, has difficulty walking, and frequently falls down when she attempts to walk. Marcella attended the final hearing in a wheelchair, and she has obvious physical and cognitive impairments.

      
      

   3. Marcella requires the use of a wheelchair due to her very limited mobility. She cannot be left alone for very long, and she is unable to wheel herself in a wheelchair.

   4. Petitioner Liliana Zambrano is Marcella's mother and primary caregiver. Liliana Zambrano weighs 135 pounds, and pushes Marcella in the wheelchair. The wheelchair weighs approximately forty pounds, and it is difficult for Liliana Zambrano to transport Marcella in the wheelchair.

   5. Petitioners reside in a third-floor unit at the Versailles Plaza Condominium in Miami, Florida. Respondent is the condominium association for the condominium complex.

   6. Petitioner Liliana Zambrano has two assigned parking spots for her unit within the complex's resident parking lot. Petitioners reside in the last unit on the far-east side of the residential building in which their unit is located.

   7. There is only one entrance from the parking lot into the condominium building in which Petitioners' unit is located. The entrance to the building is located in the middle of the building.

   8. The distance from Petitioners' assigned parking spot to the entrance of the building is approximately 50 yards. The distance from the entrance of the building to Petitioners' unit is approximately another 50 yards. Thus, the total distance from

      
      

      the assigned resident parking spot to Petitioners' unit is approximately 100 yards.

   9. Marcella attends a day program at the Association for Retarded Citizens ("ARC") from 9:00 a.m. to 2:00 p.m., three days a week. In order to get to the program, a bus arrives at the front of the condominium complex to pick her up.

   10. A gate is located at the front of the condominium complex. The bus stops to pick Marcella up just outside the

       gate.

       
       

   11. In order to get Marcella to the bus in the mornings,

       
       

       Liliana Zambrano must push her in the wheelchair from their apartment through the entrance of the building, then from the entrance of the building through the parking lot, and then from the parking lot through the front gate.

   12. Once Petitioners reach the gate, Liliana Zambrano must activate a hand-held remote-controlled device for the gate to open. When the gate opens, Liliana Zambrano must then push Marcella's wheelchair to get her out of the complex and to the bus. No ramp is located in the vicinity of the gate. This mode of transporting Marcella is repeated in the opposite direction in the afternoons when the bus returns to the complex to drop Marcella off from the ARC program.

   13. Petitioners requested that Respondent provide them a reasonable accommodation due to Marcella's handicap by

       
       

       re-assigning at least one of their parking spots closer to the entrance of the building. Petitioners further requested that Respondent provide them a reasonable accommodation for Marcella's handicap by allowing the ARC bus to enter the building's

       drive-way to drop her off in the afternoons.

       
       

   14. Respondent offered Petitioners a new parking spot outside the fenced-in condominium parking lot in an area typically reserved for visitors of the complex.

   15. In order to transport Marcella to and from the parking space proposed by Respondent as an accommodation, Liliana Zambrano would be required to push Marcella's wheelchair through a spring-loaded gate that will not open or close automatically. Moreover, Petitioners would have to negotiate two curbs, which are each five to six inches high. Furthermore, the space is in a high traffic area directly in front of a fire hydrant.

   16. As to the request regarding access for the bus, Respondent refused to allow the bus to enter the complex through the gate.

   17. The evidence adduced at the final hearing established that Marcella is a handicapped person because she has physical and mental impairments which substantially limit one or more life activities, and she has developmental disabilities.

   18. The evidence adduced at the hearing established that Respondent knew of Marcella's handicap, that reasonable

       
       

       accommodations were requested and are necessary to afford Petitioners an equal opportunity to use and enjoy the dwelling and facilities, and that Respondent refused to provide the reasonable accommodations for Marcella's disability by failing to assign Liliana Zambrano a designated accessible parking spot closer to the entrance of the building and by failing to allow the ARC bus to enter the complex.

   19. Respondent failed to articulate legitimate, non-discriminatory reasons for its actions.

       CONCLUSIONS OF LAW

       
       

   20. DOAH has personal and subject matter jurisdiction in this proceeding pursuant to sections 120.569 and 120.57(1), Florida Statutes.

   21. Florida's Fair Housing Act is codified in sections 760.20-760.37, Florida Statutes (2013), and prohibits discriminatory housing practices. A "discriminatory housing practice" means an act that is unlawful pursuant to sections 760.23(2),(8), and (9), Florida Statutes. Section 760.23(2), Florida Statutes, provides:

       (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.

       
       

   22. Sections 760.23(8) and (9), Florida Statutes, further

       
       

       provide:

       
       

       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 a 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 subsections (7) and (8), discrimination includes:

          
          

          1. 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 modification may be necessary to afford such person full enjoyment of the premises; or

             
             

          2. 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.

       
       

   23. A person is handicapped if he or she 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"; or a person with "a developmental disability as defined in s. 393.063." § 760.22(7) Fla. Stat.(2013).

       
       

   24. Florida's Fair Housing Act is patterned after the Federal Fair Housing Act. Federal court decisions interpreting the Federal Fair Housing Act provide guidance in determining whether a violation of Florida's Fair Housing Act has occurred. Dornbach v. Holley, 854 So. 2d 211, 213 (Fla. 2nd DCA 2002);

       Solodar v. Old Port Cove Lake Point Tower Condo. Ass'n., 2013 U.S. Dist. LEXIS 104996, *25, n.7 (S.D. Fla. 2013).

   25. Petitioners have the burden of proving by a preponderance of the evidence that Respondent violated Florida's Fair Housing Act by failing to provide a reasonable accommodation for Marcella's disability. U.S. Dep't of Hous. and Urban Dev. v. Blackwell, 908 F.2d 864, 870 (11th Cir. 1990).

   26. In evaluating fair housing reasonable accommodation claims, courts apply the burden shifting analysis developed in McDonnell Douglas Corporation v. Green, 411 U.S. 792, 802-804 (1973). Under this approach, Petitioners must first establish a prima facie case of discrimination. If Petitioners establish a prima facie case, the burden shifts to Respondent to articulate a legitimate, non-discriminatory reason for its action. If Respondent satisfies its burden, Petitioners must then prove that the legitimate reasons asserted by Respondent are a mere pretext for discrimination. Secretary, HUD on behalf of Herron v. Blackwell, 908 F.2d 864, 870 (11th Cir. 1990); Savanna Club

       Worship Serv. v. Savanna Club Homeowners' Ass'n., 456 F. Supp. 2d

       
       

       1223, 1231 (S.D. Fla. 2005); Vassar v. Gulfbelt Props., L.L.C.,

       
       

       2011 U.S. Dist. LEXIS 36241, *8-11 (S.D. Ala. 2011).

       
       

   27. To establish a prima facie case of failure to provide a reasonable accommodation under the Federal Fair Housing Act, Petitioners must show that: 1) Marcella suffers from a handicap;

2. a reasonable accommodation was requested; 3) that such accommodation is necessary to afford her an opportunity to use and enjoy the dwelling and facilities; and 4) the Respondent refused to make the requested accommodation. Solodar v. Old Port Cove Lake Point Tower Condo. Ass'n., 2013 U.S. Dist. LEXIS

104996, *25 (S.D. Fla. 2013). Whether an accommodation is reasonable is highly fact-specific, requiring a case-by-case determination by the trier of fact. Loren v. Sasser, 309 F.3d 1296, 1302 (11th Cir. 2002); Solodar, 2013 U.S. Dist. LEXIS

104996, *26 (S.D. Fla. 2013).

1. Significantly, the Federal Fair Housing Act regulations provide a specific example of a requirement to provide a closer parking space as a reasonable accommodation for a mobility impaired resident of an apartment complex. 24 C.F.R. § 100.204 provides, in pertinent part:

   § 100.204 Reasonable accommodations.

   
   

   1. It shall be unlawful for any person to refuse to make reasonable accommodations in rules, policies, practices, or services, when such accommodations may be necessary to afford a handicapped person equal opportunity

      
      

      to use and enjoy a dwelling unit, including public and common use areas.

      
      

   2. The application of this section may be illustrated by the following examples:

      
      

      * * *

      
      

      Example (2): Progress Gardens is a 300 unit apartment complex with 450 parking spaces which are available to tenants and guests of Progress Gardens on a first come first served basis. John applies for housing in Progress Gardens. John is mobility impaired and is unable to walk more than a short distance and therefore requests that a parking space near his unit be reserved for him so that he will not have to walk very far to get to his apartment. It is a violation of §100.204 for the owner or manager of Progress Gardens to refuse to make this accommodation. Without a reserved parking space, John might be unable to live in Progress Gardens at all or, when he has to park in a space far from his unit, might have great difficulty getting from his car to his apartment unit. The accommodation is necessary to afford John an equal opportunity to use and enjoy a dwelling. The accommodation is reasonable because it is feasible and practical under the circumstances.

      
      

2. In accordance with Example (2), many courts have recognized that landlords and condominium associations must provide handicapped residents with reasonable accommodations in the form of designated parking spaces closer to their unit so as to allow them equal use and enjoyment of their dwelling and facilities. Jacobs v. Concord Vill. Condo. X Ass'n., 2004 U.S. Dist. LEXIS 4876, *7-8 (S.D. Fla. 2004); Astralis Condo. Ass'n v.

   Sec'y, United States Dep't of Hous. & Urban Dev., 620 F.3d 62, 68

   
   

   (1st Cir. 2010)(requested accommodation was reasonable to allow the complainants equal use and enjoyment of their residence -- prima facie case established); Shapiro v. Cadman Towers, Inc., 51

   F.3d 328 (2nd Cir. 1995)(finding that modification of the defendant's "first come/first served" parking policy for awarding indoor parking spaces on the ground floor was likely a required reasonable accommodation because of the tenant's handicap); Hubbard v. Samson Management Corp., 994 F. Supp. 187 (S.D.N.Y.

   1988)(handicapped tenant established prima facie case of failure to provide reasonable accommodation on request for a free parking space near her unit); Gittleman v. Woodhaven Condo. Ass'n., Inc., 972 F. Supp. 894 (D.N.J. 1997)(upholding failure to accommodate claim by a handicapped unit owner for a special parking space).

3. As discussed in the Findings of Fact above, Petitioners proved that Marcella suffers from a handicap and that Respondent knew of the handicap. Petitioners also proved that requests were made to Respondent for accommodations for a parking space closer to the building entrance, and to allow bus entry onto the premises. Petitioners proved that these accommodations are necessary to afford Petitioners an equal opportunity to use and enjoy the dwelling and facilities.

4. Currently, Petitioners have a parking place that forces them to have one of the farthest distances to walk. In order to get to their assigned parking space, Petitioners must leave their

   
   

   unit; travel the full length of the building inside; take an elevator down three floors; and then once outside, travel back the same way and distance to the end of the parking lot. This approximately 100 yard walk is made even more difficult and dangerous due to the difference in size between Marcella and Liliana Zambrano, and Liliana Zambrano's difficulty in controlling Marcella's movements.

5. Petitioners proved that Respondent denied their reasonable accommodation requests. The parking spot proposed by Respondent is inaccessible. It is outside of the condominium resident parking, along a curb that is customarily used by visitors. In order to push Marcella in her wheelchair from this spot, Liliana Zambrano would have to navigate two curbs and negotiate a spring-loaded gate. Furthermore, the spot is in front of a fire hydrant, and in a high traffic area.

6. As to the bus access, Petitioners established that it is very difficult to move Marcella to and from the location of the bus. Allowing the ARC buc to enter the facility is necessary for Petitioners to use and enjoy their dwelling. Respondent denied Petitioners' request.

7. Respondent did not appear at the final hearing.

   
   

   Therefore, no rebuttal case was made.

   
   

8. Section 760.35(3)(b) authorizes administrative hearings on allegations of discriminatory housing practices. Section

   
   

   760.35(3)(b) provides that, if the administrative law judge finds a discriminatory housing practice, he or she shall issue a recommended order "prohibiting the practice and recommending affirmative relief from the effects of the practice, including quantifiable damages and reasonable attorney's fees and costs."

9. In the present case, Petitioners failed to present any evidence of quantifiable damages.

10. Petitioners are entitled to an award of their reasonable attorney's fees and costs incurred in bringing this action.2/

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a final order be entered by FCHR requiring that Respondent:

1. provide Petitioners with an accessible parking space closer to the entrance of the building;

2. allow the ARC bus to enter the complex through the gate;

   
   

   and

   
   

3. award Petitioners' counsel their reasonable attorney's

fees and costs incurred in bringing this action. If there is a dispute regarding the amount of attorneys' fees and costs, remand this matter to the Division of Administrative Hearings for the purpose of determining the amount of reasonable attorneys' fees and costs.

DONE AND ENTERED this 6th day of June, 2014, in Tallahassee,

Leon County, Florida.

S

DARREN A. SCHWARTZ

Administrative Law Judge

Division of Administrative Hearings The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-3060

(850) 488-9675

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

Filed with the Clerk of the Division of Administrative Hearings this 6th day of June, 2014.

ENDNOTES

1/ The final hearing was scheduled to commence at 9:00 a.m., on May 7, 2014. By 9:17 a.m., Respondent had still not appeared so the undersigned commenced the hearing. The hearing lasted approximately one hour.

2/ Petitioners request that Respondent be required to pay "the statutorily authorized fine." Petitioners do not cite any authority for this proposition, and the undersigned is unaware of any authority for the relief sought.

COPIES FURNISHED:

Versailles Plaza Condominium Association, Inc.

c/o Daniel Azel

Guardian Properties, LLC Number 171

8770 Southwest 72nd Street Miami, Florida 33173

David A. Boyer, Esquire Molly J. Paris, Esquire Disability Rights Florida Suite 104

1930 Harrison Street

Hollywood, Florida 33010

Violet Denise Crawford, Agency Clerk Florida Commission on Human Relations Suite 100

2009 Apalachee Parkway

Tallahassee, Florida 32301

Versailles Plaza Condominium Association, Inc.

c/o Registered Agent, Property Management Services

8299 Coral Way

Miami, Florida 33155

Gregorio Gonzalez

Versailles Plaza Condominium Association, Inc.

No. 101

1820 West 53rd Street Hialeah, Florida 33012

Property Management Services Corporation

c/o Registered Agent Julio A. Gonzalez-Portuondo

8299 Coral Way

Miami, Florida 33155

Herbert Barroso

Property Management Services Corporation

8299 Coral Way

Miami, Florida 33155

Cheyanne Costilla, General Counsel Florida Commission on Human Relations Suite 100

2009 Apalachee Parkway

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: 13-004335

Orders for Case No: 13-004335