vs.
Respondents.
Case No. 20-4308
A final hearing was held in this matter before Robert S. Cohen, Administrative Law Judge (“ALJ”) with the Division of Administrative Hearings (“DOAH”), on December 3, 2020, via Zoom Conference.
4495 Southwest 67th Terrace, No. 207
Gursky Ragan, P.A.
The issue is whether Respondents committed an act of discrimination based upon familial status against Petitioners in violation of the Florida Fair Housing Act.
On January 23, 2020, Petitioners filed a Housing Discrimination Complaint with the Florida Commission on Human Relations (“FCHR”), alleging that Respondents, The Collins Condominium Association, Inc. (“Association”), and Manny Blanco, president of the Association (collectively “Respondents”), violated the Florida Fair Housing Act based upon familial status of Petitioners for refusing to allow them to construct and maintain a barrier between their swimming pool level condominium terrace and the pool deck and pool itself. On August 26, 2020, following an investigation of Petitioners’ complaint, FCHR issued a Notice of Determination of No Cause, finding that no violation of the Florida Fair Housing Act had occurred and notifying Petitioners of their rights to file a Petition for Relief with DOAH.
Petitioners filed their Petition for Relief on September 25, 2020, and the matter was referred to DOAH for assignment of an ALJ to conduct a hearing involving disputed issues of material fact. The hearing was duly noticed and conducted on December 3, 2020.
At the hearing, Petitioner, Fernando Riveiro, testified on his and Co- Petitioner’s behalf and offered Petitioners’ Exhibits A through E, which were admitted into evidence. Respondents called Board President Manny Blanco to testify and offered Respondents’ Exhibits A, C through E, and M, which were admitted into evidence.
No transcript of the proceedings was ordered by the parties. Petitioners filed two emails and a status report, which are accepted as partial summaries of testimony offered by Mr. Riveiro at hearing. Respondents did not make a post-hearing submittal.
Based upon the testimony and evidence offered at hearing, the exhibits admitted into evidence, and the relevant case law, the undersigned makes the following findings of fact and conclusions of law. All references to the Florida Statutes are to the 2020 codification.
Petitioners own Unit L-105 at The Collins, located at 6917 Collins Avenue, Miami Beach, Florida 33141.
Petitioners have a three-year-old daughter who resides with them and claim membership, for purposes of alleging discrimination under the Florida Fair Housing Act, in the class of familial status.
Petitioners have exclusive use of their private patio, a limited common element, adjacent to their ground floor unit, subject to the terms and conditions, as well as the rules of the Association.
This patio is in close proximity to the Association’s ungated common swimming pool.
Unlike most of the condominiums on floors above the pool area, Petitioners’ unit does not have a glass protective barrier on their patio, or any barrier whatsoever installed outside their unit by the Association.
All of the units located above Petitioners’ unit that have balconies that are raised from the pool’s surface in heights varying between the second floor and many floors above, without a glass barrier at the end of the balconies, would have a significant and dangerous drop to the pool level for anyone stepping over the edge.
Petitioners owned Unit L-105 for 13 years before having a daughter, now three years old, which changed their status to familial for the past three years.
Petitioners sought to have the Association allow them to install a glass barrier between their patio and the ungated pool in order to end their claim
of discrimination based upon familial status and protect their daughter from accidentally falling into the pool if left unattended on the patio.
Respondents refused to install or allow the installation of a glass barrier on Petitioners’ patio, citing that it would not conform with the rules and regulations of the condominium association concerning the common elements of the condominium.
Petitioners installed what they called a “temporary” fence around their patio. The fence involved the drilling of holes into the concrete surface of the pool deck and installing posts and netting into the holes to create a fencelike barrier.
Claiming this was not approved and not in conformance with the rules and regulations for the common elements of the condominium, the Association brought in workers who removed the fence, the posts, and filled in the holes that had been drilled into the concrete. The Association billed Petitioners $1,200 for having the removal and repair work done for the unapproved installation of the fence.
At some point, after the fencing had been removed, Petitioners moved out of their condominium unit, but remain the owners of it.
At the time of the hearing, Petitioners had pending in circuit court an action regarding the pool fence. No further details were given regarding the nature of the action and relief sought.
Mr. Riveiro testified that he and his wife are willing to bear the cost, including any needed permits, parts, labor, and inspections for installing a temporary fence that will protect their daughter from accidentally falling into the pool.
Mr. Blanco, the Association’s board president, who has served on the board of the Association for 15 or more years, testified that, during his tenure, the board has never discriminated against persons for any reason, including based upon their familial status.
Respondents offered several solutions to Petitioners, including allowing a temporary fence that could be easily removed, but did not involve drilling holes in the common area of the pool deck.
According to the local code enforcement officials, all that is required for garden or pool level doors that open to an “ungated pool” are door alarms to alert the occupants when the door is opened from inside or out.
Mr. Riveiro testified that he could not use door alarms and keep his doors open to enjoy the breeze and fresh air because, after a time, the alarms sounded to remind the occupants the door has been left open. Because of this, Petitioners were not satisfied with setting up an internal fence that would keep their daughter from running out the door. An internal fence was superfluous since always keeping the doors closed avoids the need for a fence, but restricts Petitioners full use and enjoyment of their unit.
If the residents wanted fences to be installed on the pool level, they would have to be uniform in design and function. Because this would be considered a material alteration to the common elements, 75 percent of the unit owners would have to vote in favor of such a change.
A material alteration to the common elements was neither requested by Petitioners nor voted upon by the Association’s unit owners upon request from any individual, family, or the Association board itself.
CONCLUSIONS OF LAW
DOAH has personal and subject matter jurisdiction in this proceeding pursuant to sections 120.569 and 120.57(1), Florida Statutes.
Under the Florida Fair Housing Act, it is unlawful to discriminate in the sale or rental of housing. Specifically, section 760.23(2), Florida Statutes, prohibits the following acts and practices:
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.
Section 760.23(2) is patterned after section 804(b) of the federal Fair Housing Act. See 42 U.S.C. § 3604(b). Accordingly, the same legal analysis applies to each, see, e.g., Philippeaux v. Apartment Investment and Management Co., 598 Fed. Appx. 640, 643 (11th Cir. 2015), and the decisions of federal courts interpreting and applying the analogous federal laws provide persuasive guidance in determining whether a violation of the federal Fair Housing Act has occurred. See Dornbach v. Holley, 854 So. 2d 211, 213 (Fla. 2d DCA 2002).
The burden of proving that Respondents engaged in unlawful housing discrimination belongs to Petitioners. See, e.g., Loren v. Sasser, 309 F.3d 1296, 1302 (11th Cir. 2002).
In cases involving a claim of housing discrimination, the complainant has the initial burden of proving a prima facie case of discrimination by a preponderance of the evidence. Generally speaking, a prima facie case comprises circumstantial evidence of discriminatory animus, such as proof that the charged party treated persons outside of the protected class, who were otherwise similarly situated, more favorably than the complainant was treated. Failure to establish a prima facie case of discrimination ends the inquiry. See Ratliff v. State, 666 So. 2d 1008, 1012 n.6 (Fla. 1st DCA 1996), aff’d, 679 So. 2d 1183 (Fla. 1996)(citing Arnold v. Burger Queen Sys., 509 So. 2d 958 (Fla. 2d DCA 1987)).
If, however, the complainant sufficiently establishes a prima facie case, the burden then shifts to the charged party to articulate some legitimate, nondiscriminatory reason for its action. If the charged party satisfies this burden, then the complainant must establish by a preponderance of the evidence that the reason asserted by the charged party is, in fact, merely a pretext for discrimination. See Massaro v. Mainlands Section 1 & 2 Civic Ass’n, Inc., 3 F.3d 1472, 1476 n.6 (11th Cir. 1993), cert.
denied, 513 U.S. 808, 115 S. Ct. 56, 130 L. Ed. 2d 15 (1994)(“Fair housing discrimination cases are subject to the three-part test articulated in McDonnell Douglas Corp. v. Green, 411 U.S. 792, 93 S. Ct. 1817, 36 L. Ed. 2d 668 (1973).”); Sec’y, U.S. Dep’t of HUD, on behalf of Herron v. Blackwell,
908 F.2d 864, 870 (11th Cir. 1990)(“We agree with the ALJ that the three- part burden of proof test developed in McDonnell Douglas [for claims brought under Title VII of the Civil Rights Act] governs in this case [involving a claim of discrimination in violation of the federal Fair Housing Act].”).
A majority of courts considering the issue have found that 42 U.S.C.
§ 3604(b) is limited to discrimination in provision of services as they are connected to the acquisition or sale and rental of housing. Savannah Club Worship Serv., Inc. v. Savannah Club Homeowners’ Ass’n, Inc., 456 F. Supp. 2d 1223, 1228-29 (S.D. Fla. 2005); see also Cox v. City of Dallas, Tex.,
430 F.3d 734 (5th Cir. 2005).
In Florida, communities such as the Association are governed by the Florida Homeowners’ Association Act, chapter 720, Florida Statutes. Under section 720.301(2), common areas are defined as follows:
”Common area” means all real property within a community which is owned or leased by an association or dedicated for use or maintenance by the association or its members, including, regardless of whether title has been conveyed to the association:
Real property the use of which is dedicated to the association or its members by a recorded plat; or
Real property committed by a declaration of covenants to be leased or conveyed to the association.
It follows that, along with purchasing a unit within a community governed by chapter 718, Florida Statutes, the Condominium Act, come rights and privileges associated with membership within the community.
Association members have rights to use designated common areas as an incident of their ownership. If those rights are denied based upon discriminatory conduct, such deprivation would be actionable under the Fair Housing Act. Savannah Club, 456 F. Supp. 2d at 1230; see also Massaro v.
Mainlands Section 1 & 2 Civic Ass’n, 3 F.3d at 1472.
“Condominium ownership and residency is unique in that condominium owners agree to ‘for the good of the majority, restrict [] rights residents would otherwise have were they living in private separate residence.’” Neuman v. Grandview at Emerald Hills, Inc., 861 So. 2d 494, 497 (Fla. 4th DCA 2003). The Neuman court describes how unit owners in a condominium give up certain of their fee rights and hand over the regulation of the units to an association in order to best maintain the entire community. “In exchange, unit owners know that their neighbors will maintain their property in a suitable fashion, and that the common areas will be kept in proper order for the use and enjoyment of all the residents.” Id., as quoted in Savannah Club, 456 F. Supp. 2d at 1231.
Applying the McDonnell Douglas, 411 U.S. at 802, three-prong test to this particular matter, for Petitioners to meet their initial burden of establishing a prima facie case of discrimination, they must show here that:
(1) they are aggrieved parties; (2) they have suffered an injury because of the alleged discrimination; and (3) they were denied, on the basis of familial status, the provision of services protected by the Florida Fair Housing Act, which were available to other homeowners. Using the Savannah Club case as an analogous application of the three-prong test in the context of a condominium governed by a homeowners’ association, the third element “only applies to those deprivations in the provision of services which cause a complete denial of access to such services.” 456 F. Supp. 2d at 1232.
In this matter, Petitioners, while alleging that their full use and enjoyment of their poolside unit in the condominium was restricted by the refusal of Respondents to allow the installation of a permanent fence on their
patio, they were not denied the use of any services provided by Respondents for the use and enjoyment of all owners. Petitioners did not claim that they were denied use of the pool and its surrounding area. Petitioners acknowledged that an alarm was made available to warn them if their toddler opened the door to leave the unit and make her way to the pool.
Petitioners acknowledged that they could put up a fence within their unit to protect their child from leaving, but found the fact that the door alarm would periodically sound to be a burdensome inconvenience.
Petitioners failed to satisfy the three prongs of the McDonnell Douglas test for discrimination, since the evidence offered at hearing failed to prove that Respondents had completely deprived them of access to services available to the other unit owners, namely, full use of the pool and its accompanying amenities. The burden, therefore, never shifted to Respondents to articulate a legitimate, nondiscriminatory reason for their conduct. Nevertheless, the Association’s president testified at length that they followed the condominium documents that govern the use by all unit owners of the common elements and amenities of the condominium. Petitioners were neither singled out for disparate treatment based upon a discriminatory reason or any improper reason whatsoever. The condominium documents prohibit the installation of any structures, railings, or fences without the express approval of the Association. As testified to by Mr. Blanco, such a request must be formally made and approved by 75 percent of the Association’s members. This process was neither followed nor accomplished.
Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Florida Commission on Human Relations enter a final order finding Respondents not liable for housing discrimination and dismissing Petitioners’ Petition for Relief.
DONE AND ENTERED this 22nd day of April, 2021, in Tallahassee, Leon County, Florida.
ROBERT S. COHEN
Division of Administrative Hearings this 22nd day of April, 2021.
Tammy S. Barton, Agency Clerk
Darrin Gursky, Esquire Gursky Ragan, P.A.
Cheyanne Costilla, General Counsel Florida Commission on Human Relations 4075 Esplanade Way, Room 110
4495 Southwest 67th Terrace, No. 207
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.
