STATE OF FLORIDA
DIVISION OF ADMINISTRATIVE HEARINGS
PAULA TAYLOR,
vs.
Petitioner,
Case No. 18-3915
PELICAN BAY COMMUNITIES, LLC, ET. AL,
Respondent.
/
RECOMMENDED ORDER
Administrative Law Judge Hetal Desai of the Division of Administrative Hearings, held a hearing in this matter in Sebastian, Florida, on October 9, 2018.
APPEARANCES
For Petitioner: Paula C. Taylor, pro se
For Respondents: James J. Parks, Qualified Representative
Jaffe, Raitt, Heuer & Weiss, P.C. Suite 2500
27777 Franklin Road
Southfield, Michigan 48034 STATEMENT OF THE ISSUES
Whether Respondents discriminated and retaliated against Petitioner because of her disability, in violation of the Florida Fair Housing Act; and, if so, the relief to which Petitioner is entitled. More specifically, the issues raised in this case are
(1) whether Petitioner’s dog was a “service animal” pursuant to section 413.08, Florida Statutes (2018)1/; (2) whether Respondents
took adverse action against Petitioner because of her disability; and (3) whether Respondents retaliated against Petitioner by not renewing her lease after she filed a housing discrimination
complaint.
PRELIMINARY STATEMENT
Petitioner filed a Charge of Discrimination on July 27, 2017, with the U.S. Department of Housing and Urban Development (HUD) alleging Pelican Bay Communities, LLC (Pelican Bay) and Cheryl Merrifield had violated the federal Fair Housing Act (federal FHA).2/ Petitioner specifically alleged Respondents discriminated against her based on her disability by refusing to allow her service dog, Buttons, attend a Fourth of July celebration in the community clubhouse of the residential development where she lived. The Charge was forwarded to the Florida Commission on Human Relations (FCHR), and treated as a complaint under the Florida Fair Housing Act (Florida FHA), pursuant to sections 760.20 to 760.37, Florida Statues.
Petitioner received a “Notice of Determination of No Cause” issued by FCHR on June 27, 2018, finding there was no reasonable cause to believe Respondents had committed a discriminatory housing practice against her and that she was accommodated when it allowed her to have an “emotional support animal” in the residential development.
On July 23, 2018, Petitioner filed a Petition for Relief with FCHR again alleging discriminatory housing practices and an additional claim of retaliation that Respondents had not renewed her lease. The Petition was transmitted to the Division of Administrative Hearings (DOAH), and assigned to an administrative law judge to conduct an evidentiary hearing.
A pre-hearing teleconference was held on October 3, 2018.
During that hearing the parties discussed the sequence of presentations, the burdens of proof, evidentiary issues, requests for a court reporter, and other practical matters relating to the final hearing.
The final hearing was held on October 9, 2018. At the final hearing, Petitioner testified on her own behalf and presented the testimony of her psychologist, Dr. Donna Marks; and Petitioner’s Exhibits 1 through 16 were admitted into evidence. Respondents presented the testimony of Cheryl Merrifield and Josephine Hillyer; and Respondents’ Exhibits 4, 6 through 8, 11, and 23 through 26 were admitted into evidence.
The parties waived their right to have the hearing recorded and, therefore, there is no transcript of the hearing. At the close of the hearing, the parties were advised of a ten-day timeframe following the hearing to file post-hearing submittals. Respondents filed a Proposed Recommended Order; and Petitioner filed a “Response to Statement for Case” on October 15, 2018, a
“Final Statement” on October 18, 2018, and “Objections to Respondent’s Counsel of False Allegations in Final Responses” on October 19, 2018. The undersigned reviewed all of these post- hearing submittals in preparation of this Recommended Order. The rendering of this Recommended Order was delayed because of the unexpected closure of the Division of Administrative Hearings’ Tallahassee office from October 9 to October 12, 2018, caused by Hurricane Michael.
FINDINGS OF FACT
The parties stipulated at the final hearing that Petitioner suffers from anxiety and neck issues; and she qualifies as a person who is disabled for the purposes of the Florida FHA.
Parties and Property
Respondent Pelican Bay is a residential community owned and operated by Sun Homes. Respondent Cheryl Merrifield is the manager of Pelican Bay and an employee of Sun Homes.
On June 24, 2016, Petitioner entered into a Manufactured Home Option to Purchase Agreement with Sun Homes (Agreement).
The Agreement gave Petitioner a two-year period to lease the manufactured home located on Lot 56 of the Pelican Bay residential community. The Agreement allows the purchase of the home, but not the Lot in Pelican Bay.
The Agreement contained a “rent to own” component which also allowed Petitioner to be credited 50% of her first year’s lease payments, and 25% of her second year’s lease payments towards the purchase of the manufactured home. Under the terms of the Agreement, after the first two years, the Petitioner would not accrue any credits toward the purchase of the home. The Agreement clearly anticipated that if Petitioner was to exercise the option to purchase, she would do so within two years.
The Agreement refers to separate “Home Lease” and “Site Lease” agreements, but neither was admitted into evidence.
Petitioner moved into the property in July 2016 with her five-pound Chihuahua, Buttons. At the time she moved into Pelican Bay, Petitioner informed Respondents she suffered from anxiety and needed Buttons for psychological and emotional support. As a result Pelican Bay waived the pet deposit and fees for Button.
Petitioner claims she was discriminated against because she had a service dog and cites the following incidents: (1) in July 2016, she was prohibited from bringing Buttons into the Pelican Bay Clubhouse (Clubhouse) during a Fourth of July neighborhood party; (2) in November 2016, she was told that Buttons could not be in the kitchen or on the furniture in the Clubhouse and must be on a leash and controlled at all times during a Thanksgiving event; and (3) she was harassed by her
neighbors and Pelican Bay staff for having the dog in the pool area. Petitioner also alleges she was retaliated against for filing a housing discrimination complaint when Pelican Bay did not renew her lease in July 2018. Respondents dispute Petitioner’s version of the facts and deny that their actions were discriminatory.
Buttons
As an initial matter, there is a factual dispute as to whether Buttons is a “service animal” for the purposes of the Florida FHA.
Although it is unclear when Buttons became her service animal, Petitioner had Buttons as a pet prior to being prescribed a service animal for her anxiety by her psychologist, Dr. Donna Marks.
Dr. Marks is certified in addiction therapy, psychoanalysis, and Gestalt psychology. She has no training in orthopedics or treating back and neck injuries.
Dr. Marks has been treating Petitioner for anxiety intermittently since 2009. In 2014, Petitioner began regular twice a week therapy sessions with Dr. Marks. Thereafter, Dr. Marks prescribed a “psychological service animal” for Petitioner’s anxiety disorder. In a letter dated January 21,
2016, to allow Buttons to ride on an airplane, Dr. Marks wrote:
Ms. Taylor has been seen by me and I am familiar with her history and with function
limitations and needs imposed by an anxiety order. In order to help alleviate these difficulties and to enhance her ability to function independently, I have prescribed Ms. Taylor to obtain a psychological service animal. The presence of this animal is
necessary for her emotional health because it will mitigate the symptoms she experiences and a preferable alterative to medication. (emphasis added).
Later, after Petitioner moved into Pelican Bay,
Dr. Marks changed her prescription for Petitioner from a “psychological service animal” to a “service animal.” Although no written prescription of this change was admitted into evidence, Dr. Marks claimed she made this change due to Petitioner’s neck and back surgeries. On cross-examination, however, Dr. Marks admitted she altered the prescription for Petitioner’s convenience. Petitioner had reported to her that she was having difficulty at Pelican Bay and was not allowed to take Buttons to neighborhood events. Dr. Marks felt a “service animal” would have more access than an “emotional support animal.”
When asked what service Buttons provides or tasks Buttons performs for Petitioner, both Petitioner and Dr. Marks testified Buttons calms Petitioner and keeps her from becoming anxious.
In addition, Petitioner testified she has difficulty turning her neck and needs Buttons to warn Petitioner when people
are approaching and warn people not to come to close to her. Buttons does this by barking.
Buttons did not go through any professional training to learn to keep Petitioner calm or how to bark. Dr. Marks was not involved in training Buttons, made no recommendations on how Buttons should be trained, and did not know of a training protocol for teaching animals anxiety-reducing techniques or conduct. Petitioner claimed she trained Buttons by giving it treats when it behaved the way she wanted, but admits she did not follow any specialized training program.
Buttons is registered with the United States Animal Registry (USAR) as an “Emotional Support Dog” and a “Service Dog.” Based on her USAR identification and letters from
Dr. Marks, Buttons has been allowed to accompany Petitioner at restaurants, the hospital, and on airplanes. Petitioner, however, provided no evidence of the requirements for registering Buttons with the USAR registry. For example, there was no evidence of an USAR application or questionnaire; nor was there evidence Buttons had been evaluated or tested by USAR as part of the registration process.3/
As explained below, the undersigned finds Buttons is not a “service dog” for purposes of the Florida FHA.
Fourth of July
In early July 2016, a Fourth of July potluck celebration was held in the Clubhouse. When Petitioner arrived at the Clubhouse with her potluck contribution she was told by Reni Thompson that she could not bring Buttons into the area where the food was being served. Upon hearing this, Petitioner immediately left the Clubhouse and did not participate in the event.
The uncontroverted evidence established the celebration was not sponsored by Pelican Bay, nor was staff in attendance. Instead it was arranged by the Pelican Bay Home Owner’s Association (HOA). Although Petitioner testified Ms. Thompson told her she was an HOA board member, Ms. Merrifield testified Ms. Thompson was not on the HOA board, nor was Ms. Thompson a Pelican Bay employee. Other than Petitioner’s hearsay there is no evidence that Ms. Thompson was a board member. Moreover, the HOA was not affiliated with or managed by Pelican Bay, nor were its board members employees of Pelican Bay. As such, any conduct by Ms. Thompson cannot be imputed onto Pelican Bay.
Regardless, when Ms. Merrifield received Petitioner’s complaint about what had occurred at the Fourth of July incident, she immediately arranged a meeting with Petitioner.
Ms. Merrifield also met separately with Ms. Thompson to inform
Ms. Thompson that Petitioner should be allowed in the Clubhouse with Buttons.
The undersigned finds Respondents are not liable for Ms. Thompson’s conduct, and took corrective measures once it learned of the incident.
Thanksgiving Restrictions on Buttons
On November 1, 2017, Ms. Merrifield sent an email titled “Thanksgiving Dinner Nov. 23” to the residents of Pelican Bay. That email stated as follows:
Attached to this email is what Sandy Weidner is posting in the Clubhouse today. If anyone is interested please go and sign up. She also has a list of what will be needed if anyone wants to help with the side dishes.
The email then listed the side dishes that were needed and contact information for Sandy Weidner for any questions. The evidence established the event was not sponsored by Pelican Bay (although it was contributing the turkey) and Ms. Weidner was not a Pelican Bay employee.
Instead of contacting Ms. Weidner, Petitioner emailed Ms. Merrifield and asked,
Cheryl,
Is this an Event that Buttons, “My Service Dog” and I will be welcomed to without anyone rejecting us or harassment?”
Ms. Merrifield replied,
In response to your request we understand your dog is an emotional support animal. It may be with you in the clubhouse. It may not
go in the kitchen, it may not be put on furniture. It must be on a leash and controlled at all times.
It is unclear whether this response deterred Petitioner from attending the Thanksgiving event. Nonetheless, the undersigned finds Ms. Merrifield’s actions did not constitute a violation of the Florida FHA.
Pool Incidents
In July 2017, Pelican Bay staff received a complaint from residents that Buttons was in the community pool, in violation of the community pool rules. Later, Ms. Merrifield spoke to Petitioner who admitted she had taken Buttons in the pool. Ms. Merrifield told Petitioner Buttons was not allowed inside the pool and should not be left in the pool area unrestrained. Petitioner later researched the issue and agreed she would not take Buttons in the pool in the future.
In August 2017, Josephine Hillier, a Sun Homes employee, received another complaint from residents that Buttons was in the pool. When Ms. Hillier investigated the complaint she did not see the dog in the pool, but did find Petitioner with Buttons in the pool area. At the time, Petitioner denied Buttons was in the pool and claimed Ms. Hillier’s questioning was harassment in violation of housing discrimination laws.
At the hearing, Petitioner testified that after researching and learning Buttons could not be in the pool, she
continued to sit in the pool with Buttons on her shoulder. Petitioner did not consider this to be a violation of the pool rules as long as Buttons was not in the water. She also allowed Buttons to sit on the pool furniture unrestrained while she was in the pool, because her veterinarian told her Buttons was too small for a leash. Regardless, Pelican Bay took no further action against Petitioner regarding Buttons being in the pool.
Petitioner complains Respondents repeatedly questioned her about Buttons being in the pool. Ms. Merrifield testified she was aware of two complaints of Petitioner letting Buttons in the pool; Ms. Hillier testified she was aware of two complaints about Buttons being in the pool, one of which she investigated. The undersigned finds that although Petitioner may have been approached by residents with complaints about Buttons, Respondents only spoke with her about Buttons being in the pool twice.
The undersigned finds Pelican Bay’s conduct in questioning Petitioner about Buttons being in the pool, and warning her Buttons must be restrained did not constitute harassment. As explained below, this was justified under the circumstances.
Non-Renewal of Purchase Agreement
On March 20, 2018, Sun Homes sent an unsigned form letter to Petitioner stating her lease would not be renewed and
that she would be required to vacate the property on or before June 30, 2018. Petitioner believes she received this letter because she filed a complaint of housing discrimination.
The Agreement allowing the option to purchase the home anticipates a lease period of two years, although a longer period is not prohibited. Respondents asked Petitioner after the first year if she was planning to exercise her option to buy the home. At that time, June 2017, she declined because she felt it was too expensive and did not make financial sense.
Petitioner did not take any steps toward exercising her option to purchase the home at the end of the second year because she was recovering from neck and back surgeries, her son was living with her, and she was not financially able to purchase it.
Ms. Merrifield testified that it was common business practice to not allow renters to remain in Pelican Bay for more than two years. Sun Homes’ business model was to sell the manufactured homes; it was not interested in long-term rental relationships.
The evidence established Petitioner was not the only resident that received the form non-renewal letter. The renters in the homes on Lot 48 and Lot 30 also received similar letters. Ms. Merrifield was unaware of whether these other residents had disabilities, but neither had made any kind of housing complaints.
Based on the evidence and testimony presented at the final hearing, Petitioner did not demonstrate, by a preponderance of the evidence, that Respondents discriminated against her based on her disability or retaliated in violation of the FHA.
CONCLUSIONS OF LAW
The Division of Administrative Hearings has jurisdiction over the parties and the subject matter of this proceeding pursuant to sections 120.569, 120.57(1), and 760.35(3)(b).
The Florida FHA makes it unlawful to discriminate against any disabled or handicapped person in connection with a housing rental. See section 760.23(1), Fla. Stat (“It is
unlawful to refuse to sell or rent. . . or otherwise to make unavailable or deny a dwelling to any person because of . . . handicap.”).
Additionally, Florida provides special protections for persons with disabilities that utilize service animals. Section 413.08, states in relevant part:
(6) An individual with a disability is entitled to rent, lease, or purchase, as other members of the general public, any housing accommodations offered for rent, lease, or other compensation in this state, subject to the conditions and limitations established by law and applicable alike to all persons.
* * *
(b) An individual with a disability who has a service animal or who obtains a service animal is entitled to full and equal access to all housing accommodations provided for in this section, and such a person may not be required to pay extra compensation for such animal. However, such a person is liable for any damage done to the premises or to another person on the premises by the animal. A housing accommodation may request proof of compliance with vaccination requirements. (emphasis added).
To prevail on a failure-to-accommodate claim, Petitioner must establish: (1) she is a person with a disability within the meaning of the FHA; (2) she requested a reasonable accommodation for the disability; (3) the requested accommodation was necessary to afford the plaintiff an opportunity to use and enjoy the dwelling; and (4) the defendant refused to make the accommodation. See Hunt v. Aimco Props., L.P., 814 F.3d 1213, 1225 (11th Cir. 2016); Bone v. Vill. Club, Inc., 223 F. Supp. 3d 1203, 1210-11 (M.D. Fla. 2016).4/
Here, the parties stipulated to the first element -- that Petitioner had a disability. Regarding the second and third elements, there was sufficient evidence to find Petitioner requested an accommodation when she asked that Buttons be allowed to live with her and that she needed Buttons to be able to use the amenities at Pelican Bay.
There is not sufficient evidence, however, that Pelican Bay refused to accommodate Petitioner or discriminated against her because of her anxiety or use of Buttons.
Section 413.08, defines “service animal” as follows:
(d) “Service animal” means an animal that is trained to do work or perform tasks for an individual with a disability, including a physical, sensory, psychiatric, intellectual, or other mental disability. The work done or tasks performed must be directly related to the individual’s disability and may include, but are not limited to, guiding an individual who is visually impaired or blind, alerting an individual who is deaf or hard of hearing, pulling a wheelchair, assisting with mobility or balance, alerting and protecting an individual who is having a seizure, retrieving objects, alerting an individual to the presence of allergens, providing physical support and assistance with balance and stability to an individual with a mobility disability, helping an individual with a psychiatric or neurological disability by preventing or interrupting impulsive or destructive behaviors, reminding an individual with mental illness to take prescribed medications, calming an individual with post traumatic stress disorder during an anxiety attack, or doing other specific work or performing other special tasks. The
crime-deterrent effect of an animal’s presence and the provision of emotional support, well- being, comfort, or companionship do not constitute work or tasks for purposes of this definition. (emphasis added).
Based on this definition, Buttons does not qualify as a “service dog” in Florida. First, although there is little doubt Buttons provides Petitioner emotional support, comfort, and companionship to alleviate Petitioner’s anxiety, the undersigned rejects the assertion Buttons provides any discernable service or performs any tasks with regards to the neck and back injuries suffered by Petitioner. There was no evidence any medical
provider (i.e. surgeon, doctor, or physical therapist) treating Petitioner for her orthopedic injuries prescribed or suggested the use of a service animal. Dr. Marks, who has no knowledge about orthopedic medicine, essentially admitted she suggested adding the physical aspect of the prescription for the sake of Petitioner’s convenience, not because Petitioner needed Buttons as an accommodation for her neck injuries.
Second, although “alerting a person” and “calming an individual . . . during an anxiety attack” are tasks mentioned in the statutory definition, there was no evidence Buttons was trained to perform these tasks or services for Petitioner. The evidence established Petitioner owned Buttons before she was prescribed a service dog, and there simply is no evidence that Buttons received any type of specialized training. The undersigned rejects the assertion that giving a dog a treat when it barks qualifies as training under the statute. As such, there is no evidence that sets Buttons apart from a pet. See Baughman
v. City of Elkhart, Tx., 2018 U.S. Dist. LEXIS 50241, at *21 (finding plaintiff failed to establish her lemur was trained to perform tasks benefitting her in day-to-day tasks); Newberger v. La. Dep't of Wildlife & Fisheries, 2012 U.S. Dist. LEXIS 116356,
at *4 (E.D.La. Aug. 17, 2012) (holding plaintiff’s monkey was not a service animal because it provided comfort to the plaintiff, as
opposed to performing day-to-day tasks related to a plaintiff's disability).5/
Finally, the undersigned finds Buttons falls into the category of the disclaimer in section 413.08(1)(d), that “the provision of emotional support, well-being, comfort, or companionship do not constitute work or tasks for purposes of this definition.”
Even if Buttons did qualify as a “service dog” under Florida law, there is no evidence Pelican Bay improperly prevented Petitioner access to any of the communal areas. Regarding the pool, Florida Administrative Rule 64E-9.004 prohibits service animals from public pools. It states in relevant part:
(4) Food, beverages, glass containers, and animals are prohibited in the pool. Individuals with a disability and service animal trainers may be accompanied by a service animal, as defined in Chapter 413.08, F.S., but the service animal is not allowed to enter the pool water or onto the drained area of an interactive water feature (IWF) in order to prevent a direct threat to the health of pool patrons.
Petitioner may not have technically violated this rule by holding Buttons while she sat in the pool, but she certainly pushed the limits of what is allowable. Respondents’ questioning of Petitioner regarding having Buttons in the pool was not in violation of the Florida FHA.
Ms. Merrifield also was correct in requiring Buttons to “be on a leash and controlled at all times.” Even if Buttons was
a “service animal,” it was not free to walk on Clubhouse tables or sit on pool chairs unleashed without Petitioner. Section
413.08 requires a “service animal” to “be under the control of its handler and must have a harness, leash, or other tether.” Although there are exceptions for persons who cannot use a leash, and for service animals that perform tasks that would be difficult to perform on a leash, there was no evidence these exceptions applied.
Regarding the Clubhouse events, Petitioner is correct that if Buttons was a “service animal,” it would be able to accompany her “in all areas the public are normally permitted.”
§413.08(3). However, Respondents cannot be liable for the actions by neighbors or the HOA during the Thanksgiving and Fourth of July events even if they were held in Pelican Bay property. See Haynes v. Wilder Corp. of Del., 721 F. Supp. 2d 1218 (M.D. Fla. 2010).
In Haynes, a disabled plaintiff sued the owner/operator
of the recreational vehicle (RV) resort where she resided alleging violations of federal FHA. Id. at 1220. The residents
of the RV resort formed a neighborhood association which planned social activities for the RV resort's residents. Id. at 1221.
The Haynes plaintiff, like Petitioner, alleged she was harassed because of her disability and was not able to participate in bingo tournaments and pool tournaments held in the common areas
of her RV Park. The Haynes court rejected the housing
discrimination claim noting the owner/defendant could not be liable for neighborhood association events.
Haynes utterly fails to present evidence of the defendant's control over the Neighborhood Association's pool tournaments and bingo nights. The record lacks evidence that either the Neighborhood Association or the defendant "manifested assent" to an agency relationship. Restatement (Third) of Agency
§ 1.01 (2006). Although the defendant advertises the Neighborhood Association's events, Haynes presents no evidence that the defendant scheduled, organized, or otherwise controlled any event of the Neighborhood Association. The mere fact that the organized events benefit the defendant's rental property fails to create an agency; mutual benefit alone remains insufficient.
See, e.g., Restatement (Third) of Agency § 1.01 cmt. (g) (2006).
Id. at 1225. Moreover, the Haynes court held “bingo nights and
pool tournaments are not services ‘in connection with’ the sale or rental of a dwelling” and, therefore, there was no violation of the Federal FHA. Id. at 1226 ("The FHA was passed to ensure fairness and equality in housing ... not to become some all purpose civility code regulating conduct between neighbors." Gourlay v. Forest Lake Estates Civic Ass'n of Port Richey, Inc., 276 F.Supp. 2d 1222, 1232 n. 14 (M.D. Fla. 2003)).
Turning to the retaliation claim, Petitioner must establish a prima facie case by providing sufficient evidence of the following: (1) she engaged in a protected activity, (2) Respondents subjected her to an adverse action, and (3) a causal
link exists between the protected activity and the adverse action. Philippeaux v. Apartment Inv. & Mgmt. Co., 598 F. App'x 640, 644 (11th Cir. 2015); Fisher v. SP One, Ltd., 559 F. App'x 873, 878
(11th Cir. 2014). If Petitioner establishes her prima facie case, the burden then shifts to Respondents to articulate a non- discriminatory reason for the challenged action. Cleveland v.
Home Shopping Network, Inc., 369 F.3d 1189, 1193 (11th Cir. 2004). If Respondents satisfy this burden, Petitioner may demonstrate that the stated reason is a pretext for unlawful animus. Id.
Here, Petitioner has established a prima facie case.
There was evidence she engaged in protected activity by asserting what she believed was her right to have Buttons at Pelican Bay, and that Pelican Bay did not renew her lease shortly thereafter.
Respondents have sufficiently shown that they did not renew Petitioner’s lease for a purely business reason: Petitioner did not intend to exercise her option to purchase the home. Petitioner was not the only tenant who was provided the non- renewal form letter, and the language in the Agreement supports Respondent’s non-retaliatory reason for the non-renewal. Because Petitioner did not provide any evidence establishing this reason was a pretext, her retaliation claim fails.
Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Florida Commission on Human
Relations issue a final order finding that Respondents, Pelican Bay Communities, LLC, and Cheryl Merrifield, did not commit a discriminatory housing practice against Petitioner, Paula
C. Taylor, and dismiss her Petition for Relief.
DONE AND ENTERED this 14th day of November, 2018, in Tallahassee, Leon County, Florida.
S
HETAL DESAI
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 14th day of November, 2018.
ENDNOTES
1/ Unless otherwise stated, all statutory and administrative rule references are to the 2018 versions.
2/ Petitioner also named Rennie Thompson and Sun Communities, Inc. (Sun Homes) as Respondents in the original Charge, but not in the Petition of Relief. Sun Communities is the corporate parent of Pelican Bay.
3/ The parties did not cite to, nor could the undersigned find any federal or Florida government sanctioned certification process or registry for service animals. See generally 28 C.F.R. § 36.104.
4/ Generally, the Florida FHA is patterned after the federal Fair Housing Act found in 42 U.S.C. § 3601, et seq. See Savannah Club Worship Serv. v. Savannah Club Homeowners’ Ass’n, 456 F. Supp.
2d 1223, 1224 n.1 (S.D. Fla. 2005); see also Bhogaita v. Altamonte Heights Condo. Ass'n, 765 F.3d 1277, 1285 (11th Cir. 2014)(“The [Federal Fair Housing Act] and the Florida Fair Housing Act are substantively identical, and therefore the same legal analysis applies to each.”).
5/ One important distinction between the federal and Florida FHA is Florida’s definition of “service animal” follows the definition in the American with Disabilities Act (ADA), and not the federal Fair Housing Act. The ADA limits the definition of “service animal” to “any dog [or miniature horse]” that is trained to do work or perform tasks, whereas the federal Fair Housing Act does not require an “assistance animal” to be individually trained or certified. Compare 28 C.F.R. § 35.104;
28 C.F.R. § 36.104 with Pet Ownership for the Elderly and Persons With Disabilities, 73 Fed. Reg. 63834,63835 (U.S. H.U.D., October 27, 2008). Like section 413.08, the ADA requires service animals to be trained, and emotional support animals are expressly precluded from qualifying as service animals.
COPIES FURNISHED:
Tammy S. Barton, Agency Clerk
Florida Commission on Human Relations Room 110
4075 Esplanade Way
Tallahassee, Florida 32399-7020 (eServed)
Paula C. Taylor Apartment 404
1400 Villiage Boulevard
West Palm Beach, Florida 33409 (eServed)
James J. Parks
Jaffe, Raitt, Heuer & Weiss, P.C. Suite 2500
27777 Franklin Road
Southfield, Michigan 48034 (eServed)
Registered Agent NRAI Services, Inc. Pelican Bay Communities, LLC
Sun Communities, Inc.
1200 South Pine Island Road Plantation, Florida 33324
Cheryl Merrifield 8600 US Highway 1
Micco, Florida 32976
Cheyanne Costilla, General Counsel Florida Commission on Human Relations Room 110
4075 Esplanade Way
Tallahassee, Florida 32399-7020 (eServed)
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.
| Issue Date | Document | Summary |
|---|---|---|
| Feb. 06, 2019 | Agency Final Order | |
| Nov. 14, 2018 | Recommended Order | Petitioner failed to prove that Respondent failed to accommodate her, discriminated against her on the basis of her disability, or retaliated against her in violation of the Florida Fair Housing Act. |
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