STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

RECOMMENDED ORDER

A final hearing was held in this matter before Robert S. Cohen, Administrative Law Judge (“ALJ”) with the Division of Administrative Hearings (“DOAH”), on April 22, 2021, via Zoom Conference.

APPEARANCES

For Petitioner: John Sebastian Quick, pro se

Apartment 4

9900 South Ocean Drive Jensen Beach, Florida 34957

For Respondents: J. Henry Cartwright, Esquire

Fox McCluskey Bush Robison, PLLC 3461 Southeast Willoughby Boulevard Post Office Drawer 6

Stuart, Florida 34995

STATEMENT OF THE ISSUE

The issue is whether Respondents committed an act of discrimination based upon disability against Petitioner in violation of the Florida Fair Housing Act.

PRELIMINARY STATEMENT

A complaint was filed with the Florida Commission on Human Relations (“FCHR”) on September 24, 2020, alleging that Petitioner was injured by a discriminatory act. Petitioner alleged that Respondents are responsible for discriminatory terms, conditions, privileges, or services and facilities.

Following an investigation, FCHR issued a “Determination (No Cause)” on December 7, 2020, finding that there is no reasonable cause to believe that a discriminatory housing practice occurred in violation of section 760.23(2), Florida Statutes. Petitioner filed a timely Petition for Relief on December 28, 2020, via email with FCHR.

A hearing via Zoom conference was first set for March 17, 2021. Due to medical issues, a continuance of the hearing was requested by Petitioner. On April 13, 2021, Respondents filed a Suggestion of Failure to File Response Under Order Continuing Final Hearing and Request for Order Dismissing Matter as Moot. Petitioner filed a response to that motion on April 16, 2021. The undersigned denied the motion on that same date. Upon notice, the rescheduled hearing had been set for and was held on April 22, 2021.

At hearing, Petitioner appeared pro se and testified on his own behalf. He offered no exhibits at hearing. Respondents designated Ms. Tiffany Ferguson, a named Respondent, as the condominium association’s corporate representative, and she testified in that capacity. Respondents offered Exhibits 9, 11, 20, 21, and 26, all of which were admitted into evidence.

No transcript of the hearing was ordered by either party. Respondents filed a proposed Order on April 22, 2021, Final Hearing, which the undersigned will treat as a Proposed Recommended Order. Petitioner filed a document entitled “Complainant’s Supplemental Submissions” on April 26, 2021, which the undersigned accepts as his Proposed Recommended Order.

Only the first three pages of Petitioner’s post-hearing submittal shall be considered by the undersigned since the remaining seven pages appear to be late-filed exhibits that were neither listed in an exhibit list by Petitioner nor offered into evidence where he could be cross-examined on them by counsel for Respondents at hearing. Those exhibits are hereby stricken from consideration by the undersigned in his writing of the Recommended Order. Other than the stricken portion of Petitioner’s submittal, the remainder of the document, as well as the Proposed Recommended Order from Respondents and the exhibits accepted into the record at hearing have been duly considered in the preparation of this Recommended Order.

All citations to the Florida Statutes are to the 2020 version.

FINDINGS OF FACT

1. Petitioner claimed to be living in his grandfather’s condominium at Respondent, Oceana II North Oceanfront Condominium Association, Inc. (“Oceana II”), 9900 South Ocean Drive, Apartment 4, Jensen Beach, Florida 34957, pursuant to a month-to-month lease under which he paid $1,000.00 monthly. Petitioner neither produced a written lease nor provided testimony from his grandfather, the putative owner of the condominium, of the existence of such lease. Petitioner also offered no competent evidence (e.g., cancelled checks, receipts, etc.) that he had made any payments under the alleged lease, whether written or oral.

2. At the time of hearing, Petitioner was living in Texas and had no immediate plans to return to Florida or his grandfather’s condominium.

3. Oceana II is a condominium homeowners’ association created and authorized under chapter 718, Florida Statutes.

4. Respondent, Tiffany Ferguson, is the community association manager for Oceana II and the corporate representative for Oceana II for purposes of this hearing.

5. Petitioner testified that his claim of discrimination came about because his car was parked in a disabled space with an expired disability placard. He was informed by Respondents or their agents that his vehicle must be moved to a parking lot away from the entrance to the building in which he was staying. He claims to have told Respondents’ agents that he could not park that far away from “his” unit due to a disability.

6. Petitioner presented no competent evidence that any fine or suspension was ever levied by Respondents on him.

7. Petitioner presented no competent evidence that any of Petitioner’s vehicles were ever towed by Respondents.

8. Petitioner presented no competent evidence that Respondents treated any other person outside of the protected class any more favorably than Petitioner was treated with respect to the rule requiring a current license plate.

9. Petitioner brought several different vehicles, one of which had an expired Maryland tag, onto Oceana II’s premises. Despite the fact that he worked on many of these disabled vehicles, Petitioner presented no competent evidence that Respondents in any way caused Petitioner to purchase such vehicles, which may have needed repair or had issues obtaining a license plate.

10. Petitioner presented no competent evidence that Petitioner attempted to purchase or lease a unit in the condominium and was denied by Respondents due to a disability.

11. Petitioner presented no competent evidence that Petitioner had any lease at any time for his grandfather’s unit which Petitioner testified was a family vacation unit.

12. Petitioner presented no competent evidence that Petitioner provided any information in response to Respondents’ request for information as to an alleged disability, the disability-related need for an accommodation, and how any accommodation was necessary to ameliorate any alleged disability.

13. Petitioner admitted he received Respondents’ email which said no fines would be imposed.

14. Petitioner admitted he received Respondents’ request for additional information to make a meaningful review from Respondents’ counsel.

15. Petitioner admitted he refused to provide the additional information requested by Respondents (through counsel) to make a meaningful review of an accommodation request on October 20, 2020.

16. Petitioner admitted he voluntarily removed the original vehicle (a Pontiac Sunbird) while it had a valid license plate.

17. Petitioner admitted at hearing that he brought in other vehicles at a later time--a green van, a white Saturn, and a gray van--onto the property without plates on purpose to provoke a response and engineer a hearing under section 718.303(3)(b), which pertains to the rights and obligations of condominium associations in levying fines against owners or occupants. He was attempting to set up a claim by intentionally not showing license plates because he wanted a hearing.

18. Petitioner admitted he never tried to register the green van or the gray van with the Florida Department of Motor Vehicles (“DMV”).

19. Petitioner admitted the white Saturn has a current plate, not a Florida plate, and it is currently located in Texas. The white Saturn did not display a plate while on the condominium property.

20. Petitioner admitted he refused to answer on Fifth Amendment grounds whether he ever displayed a plate on any of the vehicles.

21. Petitioner admitted he left Florida in early February and lives in Texas, in San Marco near San Antonio.

22. Petitioner could not renew the Maryland tag on the Sunbird because the VIN (vehicle identification number) on the registration was missing a digit, yet he admitted he has no evidence of any efforts to fix the VIN on the Sunbird with the Maryland DMV.

    CONCLUSIONS OF LAW

23. DOAH has personal and subject matter jurisdiction in this proceeding pursuant to sections 120.569, 120.57(1), and 760.35(5), Florida Statutes.

24. Under the Florida Fair Housing Act, it is unlawful to discriminate in the sale or rental of housing. Specifically, section 760.23(2) 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.

    
    

25. 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).

26. The burden of proving that Respondents engaged in unlawful housing discrimination belongs to Petitioner. See, e.g., Loren v. Sasser, 309 F.3d 1296, 1302 (11th Cir. 2002).

27. 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)).

28. 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, 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].”).

29. 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).

30. Petitioner failed entirely to present any evidence that otherwise similarly-situated persons (whether in a protected class or not) were treated more favorably on the rule regarding a valid license plate by Respondents. Petitioner failed to present any evidence on this issue at all.

31. Petitioner further claimed that Respondents should have accommodated him because he was “administratively handicapped” because

    the DMV would not register his Sunbird until he corrected the VIN issue in the state that he purchased it, i.e. Maryland.

32. With regard to a request for an accommodation under the Fair Housing Act, Respondents have a right to a meaningful review. Sun Harbor Homeowners’ Ass’n, Inc. v. Bonura, 95 So. 3d 262 (Fla. 4th DCA 2012):

    [C]ourts have long recognized that a defendant has the right, in response to a demand for an accommodation, to perform a meaningful review of the request to determine if it is statutorily required. See Schwarz v. City of Treasure Island, 544 F.3d 1201, 1219 (11th Cir. 2008); see also Overlook Mut. Homes, Inc. v. Spencer, 415 Fed. Appx. 617, 621 (6th Cir. 2011) (“A housing provider

    ... is entitled to seek information from an allegedly disabled person in order to establish the existence of the disability and the necessity of the accommodation.”). As the Eleventh Circuit explained in Schwarz:

    
    

    [T]he duty to make a reasonable accommodation does not simply spring from the fact that the handicapped person wants such an accommodation made. Defendants must instead have been given an opportunity to make a final decision with respect to Plaintiffs’ request, which necessarily includes the ability to conduct a meaningful review of the requested accommodation to determine if such an accommodation is required by law.

    
    

    Schwarz, 544 F.3d at 1219 (quoting Prindable [v. Ass’n of Apt. Owners of 2987 Kalakaua], 304 F. Supp. 2d [1245,] at 1258 [(D. Haw. 2003)]).

    
    

33. In Sun Harbor, 95 So. 3d at 270:

    In Hawn v. Shoreline Towers Phase 1 Condo. Ass’n, Inc., 347 Fed. Appx. 464 (11th Cir. 2009), the Eleventh Circuit affirmed summary judgment in favor of defendant on the issue of defendant’s knowledge of plaintiff’s disability because plaintiff’s letter included “unclear explanations as to the nature and extent of his disability” and he refused

    to comply with subsequent requests for reasonable documentation, preventing defendant from conducting a meaningful review. Id. at 468.

    
    

34. In Sun Harbor, the plaintiff failed to respond to documentation requests as to the disability-related need for the accommodation that was being requested. In the instant matter, Petitioner admits there is nothing visibly wrong with him and admits that he did not initially claim to be disabled. When Respondents sought to conduct a meaningful review in the instant case, Petitioner refused to respond to requests for documentation as to the existence of the disability, the disability-related need, or how the requested accommodation ameliorates a disability.

35. Petitioner’s refusal prevented Respondents from conducting a meaningful review. Petitioner’s refusal is fatal to his accommodation claims.

36. Section 718.303(3)(b) was raised by Petitioner as requiring a hearing before the board of Oceana II, which, he testified, was not made available to him. The statute, by its plain text, which is unambiguous, provides that after a board has “levied” a fine or suspension, a hearing required to be held with 14 days’ notice before a fine or suspension is “imposed.” The statute further provides, in plain text, that the role of the committee in such a hearing is limited to approval or disapproval of the levied fine or suspension:

    (b) A fine or suspension levied by the board of administration may not be imposed unless the board first provides at least 14 days’ written notice to the unit owner and, if applicable, any occupant, licensee, or invitee of the unit owner sought to be fined or suspended, and an opportunity for a hearing before a committee of at least three members appointed by the board who are not officers, directors, or employees of the association, or the spouse, parent, child, brother, or sister of an officer, director, or employee. The role of the committee is limited to determining whether to confirm or reject the fine or suspension levied by the board. If the committee does not approve the proposed fine or suspension by majority vote, the

    fine or suspension may not be imposed. If the proposed fine or suspension is approved by the committee, the fine payment is due 5 days after the date of the committee meeting at which the fine is approved. The association must provide written notice of such fine or suspension by mail or hand delivery to the unit owner and, if applicable, to any tenant, licensee, or invitee of the unit owner.

    
    

37. Petitioner was informed that no fine would be imposed on August 17, 2020. Despite this fact, Petitioner filed his claim with FCHR a month later, on September 24, 2020. After filing his FCHR claim, Petitioner then tried to set up and manufacture claims by intentionally bringing additional vehicles onto the property without plates. Petitioner presented no evidence that any of the subsequent vehicles, i.e., the white Saturn and the two vans described above had any obstacles to registration or obtaining a license plate.

38. Petitioner failed to offer any evidence that a fine or suspension was ever levied by Respondents on Petitioner or the unit owner (his grandfather) or that any of the vehicles were ever towed from the property. In short, Petitioner failed to offer any competent evidence that a hearing was ever required under the statute.

39. Petitioner presented no evidence whatsoever as to any quantifiable damages nor did he have any attorney appear on his behalf. Therefore, he proved no entitlement to damages or fees, if the undersigned were to find a violation of the Fair Housing Act.

40. In conclusion, Petitioner failed to demonstrate a prima facie case, by a preponderance of the evidence, that a discriminatory housing practice had occurred. Moreover, by virtue of the fact that he no longer even lives in the condominium, whether as a guest or a tenant (unproven by competent evidence), his claim of discrimination is moot.

41. The mootness doctrine is “a corollary to the limitation on the exercise of judicial power to the decision of justiciable controversies.” Merkle v. Guardianship of Jacoby, 912 So. 2d 595, 600 (Fla. 2d DCA 2005). In general,

    an appellate court will dismiss a case if the issues raised have become moot. Casiano v. State, 310 So. 3d 910 (Fla. 2021). As the Florida Supreme Court made clear almost 30 years ago, if the issues alleged have ceased to exist, a case is moot and will be dismissed:

    A case is “moot” when it presents no actual controversy or when the issues have ceased to exist. Black’s Law Dictionary 1008 (6th ed. 1990). A moot case generally will be dismissed.

    
    

    Godwin v. State, 593 So. 2d 211, 212 (Fla. 1992).

42. It is frequently the case in housing discrimination claims that the claims for relief become moot by virtue of the claimant moving to another dwelling. Here, Petitioner does not live in the condominium, nor is he a tenant or an owner. His dwelling is in Texas. He has failed to demonstrate any competent evidence as to any damages and has never appeared through an attorney for which any claims for fees might be made. Petitioner’s claims are moot.

RECOMMENDATION

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 dismissing Petitioner’s claim for relief, finding both that he has failed to make a prima facie case of housing discrimination and that, because he resides in Texas and has no ownership or legal claim to the condominium in Florida, his claim is moot.

DONE AND ENTERED this 10th day of June, 2021, in Tallahassee, Leon County, Florida.

S

ROBERT S. COHEN

Administrative Law Judge 1230 Apalachee Parkway

Tallahassee, Florida 32399-3060

(850) 488-9675

www.doah.state.fl.us

Filed with the Clerk of the

Division of Administrative Hearings this 10th day of June, 2021.

COPIES FURNISHED:

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: 21-000050

Orders for Case No: 21-000050