STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

JAN GAUDINA,

vs.

Petitioner,

Case No. 18-4024

GRAND LIFESTYLE COMMUNITIES III/LV, LLLP,

Respondent.

/

RECOMMENDED ORDER

On January 4, 2019, Administrative Law Judge Robert J. Telfer III, of the Florida Division of Administrative Hearings (Division) conducted a duly-noticed hearing by video teleconference sites in Tallahassee and West Palm Beach, Florida.

APPEARANCES

For Petitioner: Jan Gaudina, pro se

729 Oriole Drive

Lafayette, Colorado 80026

For Respondent: Ralph Principe, Qualified Representative Grand Lifestyles Communities III/IV, LLLP 5450 Essex Court

West Palm Beach, Florida 33405 STATEMENT OF THE ISSUE

Whether Respondent is liable to Petitioner for discrimination in the sale or rental of housing because of Petitioner’s alleged disability, in violation of the Florida Fair Housing Act.

PRELIMINARY STATEMENT

On March 15, 2018, Petitioner Jan Gaudina (Gaudina) filed a charge of housing discrimination with the U.S. Department of Housing and Urban Development (HUD), alleging that Respondent Grand Lifestyle Communities III/IV, LLLP (Grand Lifestyle) violated the federal Fair Housing Act (federal FHA). Gaudina’s charge stated:

Complainant Jan Guadina possesses a disability that requires use of an emotional support animal (ESA). Therefore, Complainant belongs to a class of persons whom the Fair Housing Act (“the Act”) protects from unlawful discrimination by virtue of disability. Complainants [sic] alleged that he leased a dwelling at “Lakeside Village Mobile Home Park” located at 3346 East Dale St, Leesburg, FL 34788; which is owned and managed by GRAND LIFESTYLE COMMUNITIES III/LV, LLLP.

Complainants [sic] alleged that he leased a unit at the Respondents Mobile Home park 6/15/2016. Complainant alleged that he told Respondent that he had a Golden Retriever for an ESA he needed due to a disability.

Complainant further alleged that Respondent told him that he could not bring his ESA to his home and that only small dogs are allowed. Complainant further alleged that he reiterated that he needed his ESA and Respondent told him only registered service dogs are allowed on property. As such, Complainant believes that Respondent failed to make a reasonable accommodation in a discriminatory manner based on Complainants’ [sic] disability.

HUD forwarded the charge to the Florida Commission Human Relations (FCHR), which treated it as a complaint under the

Florida Fair Housing Act (Florida FHA), pursuant to sections 760.20 through 760.37, Florida Statutes.

On June 27, 2018, FCHR issued a “Notice of Determination of No Cause,” finding that there was no reasonable cause to believe that Grand Lifestyle had committed a discriminatory housing practice against Gaudina.

On July 30, 2018, Gaudina filed a Petition for Relief with FCHR, again alleging that Grand Lifestyle had committed a discriminatory housing practice against him. FCHR transmitted the Petition to the Division and assigned the undersigned Administrative Law Judge (ALJ) to conduct an evidentiary hearing. Gaudina sought, and the undersigned granted, two continuances of the final hearing.

The undersigned conducted the final hearing on January 4, 2019. Gaudina testified on his own behalf via telephone from Colorado, and the undersigned admitted Petitioner’s Exhibits 1 through 11 into evidence.1/ Ralph Principe (Principe), the owner and Qualified Representative for Grand Lifestyle, testified on Respondent’s behalf, and the undersigned admitted Respondent’s Exhibits 1, 5, and 6 into evidence.

The parties did not order a transcript of the final hearing.

As stated at the final hearing, the undersigned provided the parties 10 days from the date of the final hearing to submit their proposed recommended orders. On January 11, 2019, Gaudina

timely submitted a Proposed Recommended Order, which the undersigned has considered in the preparation of this Recommended Order. Grand Lifestyle did not submit a proposed recommended order.

All statutory references are to the 2018 codification of the Florida Statutes unless otherwise indicated.

FINDINGS OF FACT

1. In June 2016, Gaudina and Grand Lifestyle executed a document, entitled “GLC III/LLLP Lease – Basic Rental Agreement or Residential Lease” (lease), in which Gaudina leased from Grand Lifestyle a residence at 3346 East Dale Street, Leesburg, Florida, in the Lakeside Village mobile home park (premises).

2. The lease provided that Gaudina pay to Grand Lifestyle

   
   

   $656.00 per month to lease the premises. The lease further provided that at the end of three consecutive years of living at the premises, Grand Lifestyle would provide Gaudina the option of purchasing the premises for $1,000.00.

3. Gaudina testified that his primary residence is in Colorado, but that he wished to lease the premises so that he had a residence when he visited his wife, who lived nearby in Lake County, Florida.

4. As he did not reside permanently at the premises in Leesburg, Gaudina subleased the premises to another individual, possibly in violation of the lease. That individual reported to

   
   

   Gaudina numerous issues with the premises, which Gaudina testified he brought to the attention of Grand Lifestyle.2/ Both parties testified that they sought various remedies in other courts concerning these issues. The undersigned finds that these issues are not relevant to Gaudina’s allegations concerning discrimination under the Florida FHA.

5. Gaudina testified that he possesses a disability that requires use of an emotional support animal. The only evidence Gaudina submitted in support of this contention was a letter, dated February 24, 2015, from Emilia Ripoll, M.D. (Ripoll), located in Boulder, Colorado, and a “Health Care Provider Pet Accomodation Form,” also from Ripoll. This letter states:

   Mr. Jan Gaudina is currently my patient and has been under my care since 1998. I am intimately familiar with his history and with the functional limitations imposed by his medical condition.

   
   

   Due to his diagnosis of bladder cancer and bilateral ureter cancer, Jan has certain emotional limitations including stress which may cause his cancer to recur. In order to help alleviate these difficulties, and to enhance his ability to cope and live independently, I have prescribed Jan to obtain his pet for emotional support. The presence of this animal is necessary for the mental health of Jan.

   
   

   The Health Care Accomodation Form prescribed the use of Gaudina’s dog, a golden retriever, as an emotional support animal.

   
   

6. Gaudina did not present the testimony of Ripoll or any other health care provider concerning his alleged disability. The letter and form, which are inadmissible hearsay that Gaudina failed to corroborate with admissible non-hearsay evidence, attempt to establish that Gaudina required an emotional support

   animal to prevent a recurrence of cancer. The undersigned cannot consider these documents to support a finding that Gaudina is disabled and in need of an emotional support animal. See Fla.

   Admin. Code R. 28-106.213(3).3/ Therefore, the undersigned finds that Gaudina has failed to establish that he suffers from a disability that requires the accommodation of his golden retriever as an emotional support animal.

7. Principe, the owner of Grand Lifestyle, testified that the prospectus for the premises restricted pet ownership to pets that weigh less than 20 pounds. The parties acknowledged that a golden retriever weighs in excess of 20 pounds.

8. Principe testified that, during a telephone conversation, Gaudina asked whether he could bring his golden retriever to the premises, but never mentioned his alleged disability. Principe also testified that he asked Gaudina whether Gaudina’s golden retriever was a trained service dog. Gaudina testified that his golden retriever was not a “service dog,” as defined under section 413.08, Florida Statutes.4/

   
   

9. Principe further testified that Gaudina rarely visited the premises. Gaudina testified that, in total, he visited the premises in Leesburg three or four times over the period of approximately one year.

10. Gaudina presented no credible evidence that he qualifies as a person who is disabled for the purposes of the Florida FHA. Further, there is no competent, persuasive evidence in the record upon which the undersigned could make a finding of discrimination in the sale or rental of housing because of Petitioner’s alleged disability, in violation of the Florida FHA.

    CONCLUSIONS OF LAW

    
    

11. The Division has jurisdiction over the subject matter and the parties to this proceeding in accordance with

    sections 120.569, 120.57(1), and 760.35(3)(b), Florida Statutes.

    
    

12. The Florida FHA makes it unlawful to discriminate against any disabled or handicapped person in connection with a housing rental or sale. See § 760.23(1), Fla. Stat. (“It is

    unlawful to sell or rent . . . or otherwise to make unavailable or deny a dwelling to any person because of . . . handicap.”).

13. To prevail in a failure-to-accommodate claim, Gaudina must establish that: (1) he is a person with a disability within the meaning of the Florida FHA; (2) he requested a reasonable accommodation for the disability; (3) the requested accommodation was necessary to afford him an opportunity to use and enjoy the

    
    

    dwelling; and (4) Grand Lifestyle 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).5/

14. Gaudina failed to establish that he is a person with a disability within the meaning of the Florida FHA. On this basis alone, the undersigned recommends that the FCHR dismiss his Petition for Relief.

15. Additionally, Gaudina failed to present sufficient evidence that he requested a reasonable accommodation for his alleged disability, or that the requested accommodation was necessary to afford him an opportunity to use and enjoy the dwelling. For these reasons as well, the undersigned recommends that the FCHR dismiss Petitioner’s Petition for Relief.

RECOMMENDATION

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 Petitioner, Jan Gaudina, did not prove that Respondent, Grand Lifestyle Communities III/IV, LLLP, committed discrimination in the sale or rental of housing because of Petitioner’s alleged disability, in violation of the Florida Fair Housing Act, and dismissing his Petition for Relief.

DONE AND ENTERED this 18th day of January, 2019, in Tallahassee, Leon County, Florida.

S

ROBERT J. TELFER III

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 18th day of January, 2019.

ENDNOTES

1/ The undersigned excluded Petitioner’s Exhibit 12, which purported to be the “Sworn Affidavit of Jan Gaudina,” dated January 3, 2019, in light of Gaudina’s presence at the hearing and decision to testify on his own behalf.

2/ For example, Gaudina testified that the premises had issues with the heating system, electrical system, and was found to be in violation of the Lake County code/ordinance requirements.

These issues have nothing to do with Gaudina’s allegations concerning his alleged disability and need for an emotional support animal.

3/ Casting aside the hearsay issue, the undersigned would find that such a diagnosis and prescription, without some scientific substantiation, are not credible.

4/ Section 413.08(1)(d), Florida Statutes, defines a “service animal” as “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 . . . .” Section 413.08(6)(b)

provides that “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 accomodations provided for in this section . . . .” Again, Gaudina testified that his golden retriever was a not a service animal.

5/ The Florida FHA is generally patterned after the federal FHA,

42 U.S.C. § 13601, et seq. See Bhogaita v. Altamonte Heights Condo. Ass’n, 765 F.3d 1277, 1285 (11th Cir. 2014)(“The [federal FHA] and the Florida Fair Housing Act are substantively identical, and therefore the same legal analysis applies to each.”).

COPIES FURNISHED:

Tammy S. Barton, Agency Clerk

Florida Commission on Human Relations Room 110

4075 Esplanade Way

Tallahassee, Florida 32399-7020 (eServed)

Jan G. Gaudina 729 Oriole Drive

Lafayette, Colorado 80026 (eServed)

Ralph Principe

Grand Lifestyle Communities III/LV, LLLP 5450 Essex Court

West Palm Beach, Florida 33405

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.

Docket for Case No: 18-004024

Orders for Case No: 18-004024