STATE OF FLORIDA COMMISSION ON HUMAN RELATIONS

J AMES HENKEL, HUD No. 04-14-0613-8

Petitioner, FCHR Case No. 2014H0201

v. 14-4215

HARBOUR POINTE OF PERDIDO KEY CONDOMINIUM ASSOCIATION, INC.,

FCHR Order No. 15-037

Respondent.

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FINAL ORDER FINDING DISCRIMINATORY HOUSING PRACTICE S OCCURRED AND AWARDING AFFIRMATIV E RELIE F

Preliminary Matters

Petitioner James Henkel filed a housing discrimination complaint pursuant to the Fair Housing Act, Sections 760.20 - 760.37, Florida Statutes (2012), alleging that Respondent, Harbour of Perdido Key Condominium Association, Inc., committed discriminatory housing practices by failing to accommodate Petitioner's disability by making modifications that created inaccessible routes entries to public and common use areas at the condominium where Petitioner resided.

The allegations set forth in the complaint were investigated, and, on August 26, 2014, the Executive Director issued a determination finding that there was no reasonable cause to believe that a discriminatory housing practice had occurred.

Petitioner filed Petition for Relief from a Discriminatory Housing Practice, and the case was transmitted to the Division of Administrative Hearings for the conduct of a formal proceeding.

An evidentiary hearing was held on December 2014, in Pensacola, Florida, before Administrative Law Judge James H. Peterson, III.

Judge Peterson issued a Recommended Order of dismissal, dated March

The Commission panel designated below considered the record of this matter and determined the action to be taken on the Recommended Order.

Findings of Fact

We the Administrative Law Judge's findings of fact to be supported by competent substantial evidence, except for the finding of fact set out at Recommended Order, 13.

The finding of fact set out at Recommended Order, states, "In sum, Petitioner failed to show that Respondent discriminated against him because of his disability."

Filed June 10, 2015 3:07 PM Division of Administrative Hearings

We find this finding of fact to be contradictory to the findings of fact set out at Recommended Order, 4 and 5, which, in our view, as discussed below in the Conclusions of Law section of this Order, are specific findings of discriminatory housing practices. Therefore, Recommended Order, is not supported by competent substantial evidence.

We adopt the Administrative Law Judge's findings of fact as set out in Recommended Order, 1 through 12 and reject the finding of fact set out at Recommended Order, 13.

Conclusions of Law

We find the Administrative Law Judge's conclusions of law as set out at Recommended Order, through 25, and 27 to be in error.

Recommended Order, 4, states, "The subject entrance and exit doors have opening pressures that vary, but are usually out of compliance with applicable Florida and Federal standards for handicap access. However, despite Petitioner's allegations, the evidence does not support a finding that any of the door closers that are out of compliance have been altered since ownership of the Condominium was transferred and Respondent became responsible for management and of the Condominium." The Administrative Law Judge concluded that although the door pressures were out of compliance, Respondent did not install the doors and the evidence is insufficient to show that Respondent altered the doors since it took over the operations, and, therefore, the facts did not support a finding that Respondent was responsible for remedying the door pressures. Recommended Order, 21 and 22.

In support of this, the Administrative Law Judge cites Harding v. Orlando Apartments, LLC, et 748 F.3d Cir. 2014), in which the Court found that a subsequent owner was not liable to remedy the initial failure to comply with the Fair Housing Act's design-and-construction guidelines by the designers and builders.

In the case before us, however, there is no allegation that the Condominium in question was initially out of compliance with the applicable design-and-construction guidelines when it was built.

Recommended Order, 5, states, "At one point in time, Respondent altered the pool gate in a manner inconsistent with the Federal Housing Authority (FHA) Design Manual. Respondent, however, has since made alterations to the pool gate to make it compliant and has a pending work order for additional changes, at Respondent's expense, designed to make the pool gate's key pad even more accessible to Petitioner."

The Joint Statement of the Department of Housing and Urban Development and the Department of Justice, Accessibility (Design and Construction) Requirements for Covered Multifamily Dwellings Under the Fair Housing Act, April 30, Questions and Answers, Answer to Question 21, states, "Original and subsequent owners of covered multifamily buildings that were designed and constructed in compliance with the Fair

Housing Act's design and construction requirements must maintain the accessible features so that the building continues to meet the Act's requirements'" (emphasis added).

The Joint Statement of the Department of Housing and Urban Development and the Department of Justice, Accessibility (Design and Construction) Requirements for Covered Multifamily Dwellings Under the Fair Housing Act, April 30, Questions and Answers, Answer to Question 40, states, "A case of discrimination may be established by showing that the housing does not meet HUD's guidelines..."

Based on the foregoing, we conclude that Respondent engaged in discriminatory housing practices since, as stated in Recommended Order, 4, "[t]he subject entrance and exit doors have opening pressures that vary, but are usually out of compliance with applicable Florida and Federal standards for handicap access," and since, as stated in Recommended Order, 5, "[a]t one point in time, Respondent altered the pool gate in a manner inconsistent with the Federal Housing Authority (FHA) Design Manual."

In correcting conclusions of law set out at Recommended Order, through 24, relating to door pressures on the referenced entrance and exit doors, and the conclusion of law at Recommended Order, % 25, relating to the pool gate access, suggesting that no discriminatory housing practice occurred because the gate has been brought into compliance, we conclude: (1) that the conclusions of law being modified are conclusions of law over which the Commission has substantive jurisdiction, namely conclusions of law stating what must be demonstrated to establish a violation of Florida's Fair Housing Act; (2) that the reason the corrections are being made by the Commission is that the conclusions of law as stated run contrary to the applicable guidance provided by The

Joint Statement of the Department of Housing and Urban Development and the Department of Justice, Accessibility (Design and Construction) Requirements for Covered Multifamily Dwellings Under the Fair Housing Act, April 30, and (3) that in making these modifications the conclusions of law being substituted are as or more reasonable than the conclusions of law which have been rejected. See, Section

Florida Statutes (2014).

We reject the Administrative Law Judge's conclusions of law set out at Recommended Order, 21 through 25, and 27 (Recommended Order, 27, states "In sum, Petitioner failed to establish that Respondent discriminated against Petitioner based upon Petitioner's handicap.").

We adopt the Administrative Law Judge's conclusions of law set out at Recommended Order, 14 through 20, and 26.

Exceptions

Neither of the parties filed exceptions to the Administrative Law Judge's Recommended Order.

Affirmative Relief

We find that Respondent has committed discriminatory housing practices as set out in the Conclusions of Law and Findings of Fact sections of this Order.

Respondent, Harbour Pointe of Perdido Key Condominium Association, Inc., is hereby ORDERED:

1. to cease and desist from discriminating further in the manner it has been found to have unlawfully discriminated against Petitioner (Section 760.35 (2)(b), Florida

   (2014));

2. to fix / maintain at its expense the entrance and exit doors referred to in Recommended Order, so they have opening pressures in compliance with "applicable Florida and Federal standards for handicap access"; and

3. to maintain at its expense access to the pool gate referenced in Recommended Order, 5, "in a manner consistent with the Federal Housing Authority (FHA) Design Manual".

The parties have the to seek judicial review of this Order. The Commission and the appropriate District Court of Appeal must receive notice of appeal within days of the date this Order is filed with the Clerk of the Commission. Explanation of the right to appeal is found in Section 120.68, Florida Statutes, in the Florida Rules of Appellate Procedure

DONE AND ORDERED this of

FOR THE FLORIDA COMMISSION RELATIONS:

Commissioner Gilbert M . Singer, Panel Chairperson; Commissioner Tony Jenkins; and

Commissioner Rebecca Steele

Filed this of in Tallahassee,

Clerk

Commission on Human Relations 4075 Esplanade Way, Room Tallahassee, FL 32399

(850) 488-7082

Copies furnished to:

James Henkel

Ethel Wingate Drive, Apt. 609 Pensacola, FL 32507

Harbour Pointe of Key Condominium Association, Inc.

c/o Jay L. Roberts, Esq. Becker and Poliakoff Paradise Village, Suite 7

348 Miracle Strip Parkway Southwest Fort Walton Beach, FL 32548

James H. Peterson, III, Administrative Law Judge, DOAH James Mallue, Legal Advisor for Commission Panel

I HEREBY CERTIFY that a the foregoing has been mailed to the above

Clerk of the

Florida Commission on Human Relations

Docket for Case No: 14-004215

Orders for Case No: 14-004215