On July 21, 2021, an evidentiary hearing was held by Zoom web conference before Administrative Law Judge Yolonda Y. Green of the Division of Administrative Hearings (DOAH).
For Petitioner: Christa N. Bartok, pro se
For Respondent: Sharon D. Regan, Esquire
The issue is whether Respondents discriminated against Petitioner, Christa Bartok, on the basis of her disability, in violation of the Fair Housing Act (FHA).
On August 7, 2020, Ms. Bartok filed a housing discrimination complaint with the Florida Commission on Human Relations (FCHR), alleging that Respondents, Bayou Breeze Condominium Association, et al. (Bayou Breeze or the Association) discriminated against her based upon a disability, in violation of the FHA. Ms. Bartok’s complaint alleges:
Complainant Christa Bartok attempted to purchase a home located at 300 Bayou Boulevard, Unit 106, Pensacola, FL (Escambia County). Complainant identified herself as a person with a non-visible disability that needs the assistance of an Emotional Support Animal (ESA). Complainant belongs to a class of persons whom the Fair Housing Act (the Act) protects from unlawful discrimination because of disability. The property is subject to the rules and regulations of Respondent Bayou Breeze Condominium, Pensacola Executive House Condominium, Inc. (Respondent COA), and managed through Respondent Charles D. Cross, President.
Complainant alleges, in early June 2020, she began [sic] attempted to purchase a unit in the community. Complainant stated on June 24, 2020, she submitted her application to the community, and she also submitted a doctor’s letter requesting an accommodation to have her ESA, and three references attesting that her ESA is non- aggressive. Complainant alleges on July 2, 2020, she was issued an email from Respondent Cross denying her ESA from the community. Complainant alleges the email further stated that the HOA only accepts dogs under 20lbs, and unless she was able to carry her dog in and out of the building, her ESA would not be approved. Complainant alleges Respondent Cross further stated that the association has never accepted ESA’s or service animals, and they never will. Complainant alleges on July 10, 2020, she attempted to contact Respondent COA to rectify the situation, but they refused to respond. As a result,
the Complainant has been unable to close on her unit out of fear that her ESA will not be approved. Complainant believes the Respondents discriminated against her based on her disability in violation of the Act.
On April 22, 2021, FCHR issued a “Notice of Determination of No Cause,” and a “Determination (No Cause)” finding that there was no reasonable cause to establish that Respondents committed a discriminatory housing practice against Ms. Bartok.
On May 16, 2021, Ms. Bartok filed a Petition for Relief from Discriminatory Housing Practice with FCHR, maintaining her allegations that Respondents discriminated against her. FCHR transmitted the case to DOAH on May 27, 2021, for assignment to an Administrative Law Judge for a final evidentiary hearing. The undersigned scheduled this matter for final hearing on July 21, 2021.
The undersigned commenced the hearing as scheduled. During preliminary matters, the undersigned heard argument from both parties regarding Respondents’ motion to dismiss, which the undersigned denied.1 The undersigned also heard argument from the parties on Petitioner’s Emergency Motion for Continuance, which was also denied.2
Petitioner testified on her own behalf and presented the testimony of Simone Sands and Greg Thomas. Petitioner offered Exhibits 1 and 2 with subparts, which were admitted into evidence. Respondents presented the
testimony of Phyllis Trimaur (Bayou Breeze property manager) and Charles D. Cross (Association President). Respondents offered Exhibits R-A through R-G, which were admitted into evidence.
The parties did not order a transcript of the hearing. At the close of the hearing, the parties requested additional time to submit post-hearing submittals, which the undersigned granted. Both parties filed post-hearing submittals. Although Respondents filed a “Final Recommendation to the Commission,” it will be considered Respondents’ Proposed Recommended Order. The undersigned has considered both post-hearing submittals in preparation of this Recommended Order.
Unless otherwise indicated, all statutory references are to the codification of the Florida Statutes in effect at the time of the alleged discriminatory acts.
Based on evidence offered at hearing and testimony of witnesses, as well as the facts agreed upon in the Pre-hearing Stipulation, the following Findings of Fact are found:
Bayou Breeze is a residential condominium association in Pensacola, Florida.
Ms. Bartok was a prospective buyer of a condominium unit from its owner, a Bayou Breeze resident. The address of the unit was 300 Bayou Boulevard, Unit 106, Pensacola, Florida.
Ms. Bartok is a person with a non-visible disability, which she described as anxiety, emotional distress disorder, and an autoimmune disease. Ms. Bartok was also the owner of a dog named Moni, weighing more than 40 pounds. She identified Moni as her emotional support dog.
At all times material to this matter, Ms. Bartok was represented by Simone Sands, a real estate broker. The seller of Unit 106 was represented by
Greg Thomas, also a realtor. The communication regarding all aspects of the sale of the property was through the two realtors.
At the time of executing the contract, Bayou Breeze3 Bylaws provided, in pertinent part,
Pets. Pets shall be kept or maintained in and about the condominium property only if unit owner is granted a conditional license to maintain one pet by the Association. Such a license will be granted subject to the following conditions and reservations:
A. Acceptable Pets. The only pets to be maintained on condominium property shall be dogs under twenty (20) pounds when fully grown, cats and small birds.
In addition, the Declaration of Condominium Paragraph XVI provided, in pertinent part,
Approval of Purchasers, Lessees and Transferees
No unit owner shall sell, lease or otherwise convey a unit, nor shall any sale, lease, conveyance or transfer of a unit other than by foreclosure or by devise or operation of law on account of the death of the unit owner, be effective unless the board of directors of the Association shall have approved the identity of the proposed purchaser, lessee or transferee in writing. Application of a proposed purchaser, lessee or transferee shall be in writing and on a form to be provided by the Association and shall be accompanied by two letters of recommendation. Any such application not rejected within 10 days after receipt by the Association or an officer thereof shall be deemed to have been approved. The costs for the submission of an application shall not exceed $100. …
3 The association name changed from Pensacola Executive House Condominium Association, Inc. to its current name.
Right of First Refusal
Should an Owner wish to sell or transfer his Unit, he shall deliver to the Association an Owner’s written notice containing a copy of the executed purchase agreement between buyer and seller, which agreement shall be executed subject to the Associations [sic] waiver of its right of first refusal and consent to the sale or transfer. The Owner shall also submit to the Association, within five (5) days from receipt of any request from the Association, any supplemental information as may be required by the Association.
Ms. Bartok received the declarations and bylaws. However, a list of items to be submitted to the Association for sale of a property was provided to the owner, which included: letter of intent to sell, application for sale/transfer, two letters of recommendation, background check, and contract for sale. The list of items provided to the owner was not provided to
Ms. Bartok.
On June 20, 2020, Ms. Bartok executed a residential contract for purchase of Unit 106. A term that Ms. Bartok included in the contract provided, in pertinent part: “contingent upon buyer receiving HOA approval for her emotional support dog which is over condo weight restrictions but meets Fair Housing Act requirements for HOA waiver.”4
Ms. Bartok also provided a letter with her contract dated June 15, 2020, from her treating physician, Timothy Tuel, M.D., of Baptist Health Care. The letter stated:
Dear Christa,
I do believe you have several medical conditions that would benefit from a properly trained emotional support animal. Please contact me if you have other questions.
4 Ms. Bartok executed a counteroffer for the property on June 24, 2020, which did not change the term regarding approval of her ESA.
Although, the letter does not specifically identify Ms. Bartok’s disability, it references her “medical conditions,” and that she could benefit from having an ESA.
In addition to the contract and letter from Dr. Tuel, Ms. Bartok provided a completed application, two letters of recommendation, and a receipt for training for her dog.5 Ms. Bartok did not provide a completed background check because Mr. Thomas had advised Ms. Sands that the “HOA manager does it.” In addition, on June 30, 2020, in response to Ms. Sands’ text of, “good morning any reply from HOA,” Mr. Thomas
indicated, “[n]o, not yet they’re doing background check.” Thus, Ms. Bartok had a reasonable belief that she could rely upon Mr. Thomas’ statement that the HOA was facilitating the background check and there was no need to provide the information at that time.
Ms. Trimaur, the property manager for the Association, has managed Bayou Breeze condominiums for more than 11 years, and generally, receives all applications for sale or transfers of units at Bayou Breeze. She received the application materials Ms. Bartok submitted for the sale of Unit 106, which included the sales contract, letter from Dr. Tuel, reference letters, and the receipt for pet training sessions. Although Ms. Trimaur stated that it was difficult to read the digital copy of the letter from Dr. Tuel, she recalled that there was reference to Ms. Bartok’s “medical condition.” Ms. Trimaur also testified that Mr. Thomas told her that Ms. Bartok requested a waiver of the pet policy. Ms. Trimaur did not receive the financial or criminal background information with Ms. Bartok’s application packet.
Ms. Trimaur submitted the application materials to Mr. Cross for review. She testified that she also had verbal discussions about the dog with Mr. Cross.
5 The receipt for training referenced “Beginner Training-for Moni” and was scheduled to begin on July 25, 2020.
Mr. Cross, the president of the association, reviewed a copy of the application materials. He testified that Ms. Trimaur bypassed normal approval process by submitting the packet without the background checks due to COVID-19.
As the Association president, Mr. Cross is required to review all application materials to determine whether the Association elects to exercise its right of first refusal. Mr. Cross testified that he reviewed the contract. However, he testified that he did not recall reading Ms. Bartok’s term that the acceptance was contingent upon approval of her emotional support dog. Mr. Cross did not state that there were pages missing or that there was anything that would prevent him reviewing the contract in its entirety.
Mr. Cross testified that he reviewed the recommendation letters,6 which noted the size of Petitioner’s dog. He also spoke to Ms. Trimaur about the dog.
After review of the application materials that Ms. Bartok submitted, Mr. Cross sent a letter to Anai, the owner of Unit 106, on July 2, 2021. The letter stated:
Dear Anai,
The association is in receipt of your request to sell your condominium unit 106 Bayou Breeze Condominiums, 300 Bayou Breeze, Pensacola, Fla.
As you know there are specific requirements a potential new purchaser of a condominium must meet, according to the Bayou Breeze Declaration of Condominiums, Articles of Incorporation, By-Laws and Rules and Regulations, before they will be eligible to purchase a Condominium at the said premises.
Section X of the By-Laws states the following: Pets. Pets shall be kept or maintained in and about the
6 The recommendations were not offered into evidence in this case.
condominium property only if a unit owner is granted a conditional license to maintain one pet by the association. Such a license will be granted subject to the following conditions and reservations:
Section A clearly states that a dog weighting [sic] 20 pounds or less that was fully grown could qualify. Section D. states that the dog must be carried in the arms when taken in and out of the building.
The information that you have submitted so far is primarily the request for the Association to waive its pet restrictions in accordance to the By-Laws, section X of the Condominium Governing Laws. Unfortunately, that is something that we cannot do.
Don’t get me wrong, I love dogs. I, at one time lived at Bayou Breeze but had to move because I wanted a dog. I have been the president of this association for 29 years. Over the years the association has had many requests much like your potential buyer’s request to waive our rules. We are well aware of the HUD laws as well as the American Disability Act. We have, unfortunately been to court several times on this issue. We have never waived the pet requirements.
Even though we have not received all of the background information and detailed documentation that is necessary for the Association to approve a purchase of this unit, I am notifying you that the Association cannot except [sic] this application, because of the current situation that you have presented.
Sincerely Charles D. Cross
President, Bayou Breeze Condominium Association 300 Bayou Breeze, Pensacola, Fl. 32501
Mr. Cross acknowledged in his written position statement that
Ms. Bartok submitted a request for waiver for an ESA. He testified that he did not deny the request for an ESA because it was not clear to him that the request was for an ESA. Both Mr. Cross and Ms. Trimaur testified that
Ms. Bartok’s request for an ESA was not accepted because the materials provided were incomplete, i.e. that the application did not include the financial and criminal background check. Both Ms. Trimaur and Mr. Cross testified that other tenants of Bayou Breeze have been approved for ESAs.
The letter from Mr. Cross to Anai is inconsistent with Mr. Cross’ testimony. First, the letter signed by Mr. Cross clearly states that he is aware of the request for a “pet waiver” and stated that he is “well aware of the HUD laws as well as the American Disability Act. … We have never waived the pet requirements.”
Second, the letter states that “Even though we have not received the background information, … the Association cannot except [sic] the application, because of the current situation that you have presented.” At hearing, Mr. Cross testified that he expected to receive more information. If the application packet was incomplete and Mr. Cross expected to receive additional information, it would follow that Mr. Cross would specify in writing to Anai the items that were needed to complete the application. That did not happen in this case. The letter makes no reference that additional information could be provided or what information was necessary.
Last, Mr. Cross claimed the letter to Anai was not a denial letter. However, it clearly stated that the request to waive the pet restriction was something the Association could not do and has never done, even when involving the ADA.
The undersigned finds that the statements in the letter together with the term in the contract seeking a waiver and Ms. Bartok’s letter from her physician demonstrates that Respondents had notice of Ms. Bartok’s request for a reasonable accommodation pursuant to the ADA. The undersigned also
finds that Respondent’s letter of July 2, 2020, was a denial of Ms. Bartok’s application for purchase of Unit 106 based on her request for a reasonable accommodation, a waiver for her ESA.
Ms. Bartok testified that she believed the July 2, 2020, letter was a denial of her application. Believing she could not purchase the property, she canceled the contract on the same date.
After Ms. Bartok canceled the contract, believing that the Association improperly denied her request for a “pet waiver” for her ESA, she submitted a letter dated July 8, 2020, requesting a reasonable accommodation for her disability. That letter included another letter from Dr. Tuel, to the Association, which stated, in pertinent part:
Dear Housing Association:
Christa Bartok is my patient and has been under my care since April 7, 2020. I am intimately familiar with her history and with the functional limitations imposed by her disability. She meets the definition of disability under the Americans with Disabilities Act, the Fair Housing Act, and Rehabilitation Act of 1973.
Due to [intentionally omitted] illness, Christa Bartok has certain limitations regarding performing some life activities. [Intentionally omitted] can be a direct effect of a chronic illness. In order to help alleviate these difficulties, and to enhance his/her ability to live independently and to fully use and enjoy the dwelling unit you own and/or administer, I am prescribing an emotional support animal that will assist Christa Bartok in coping with his/her disability. Her dog Monroe (Moni) qualifies as an emotional support animal under the guidelines put forth by the Fair Housing Act and The American’s [sic] with Disabilities Act. …
Ms. Bartok credibly testified that she submitted the letter with attachments to Mr. Cross’ email address. She submitted a second request for reconsideration of the Association’s decision on July 10, 2021. Ms. Bartok did not receive a response to her letters. Although Mr. Cross confirmed his email at the final hearing, he denied receiving Ms. Bartok’s emailed requests for reasonable accommodation. The undersigned credits Ms. Bartok’s testimony on the issue of whether the emails were sent to Mr. Cross.
Ms. Bartok testified that after she canceled the contract, she purchased another home. She asserts that she incurred costs for the difference in the amount of the mortgage she has paid since the denial letter was issued, the difference in costs for HOA dues, and the loss associated with extending her rental agreement prior to purchasing her new home.
Ms. Bartok did not provide any supporting documents to demonstrate her loss that she asserts she incurred as a result of Respondent’s discriminatory actions.
Ultimate Findings of Fact
The evidence demonstrates that Ms. Bartok established that she suffers from anxiety, emotional distress disorder, and an autoimmune disease, and therefore, she has proved by a preponderance of the evidence that she is disabled within the meaning of the FHA.
Ms. Bartok’s additional term included in her application for sale and the request for accommodation submitted following rejection of her application, was sufficient to demonstrate by a preponderance of the evidence that the Association was on notice that Ms. Bartok sought the “pet waiver” as a reasonable accommodation for her ESA.
The undersigned finds the preponderance of evidence supports a
finding that approving Ms. Bartok’s dog as an ESA was a reasonable accommodation that would assist Ms. Bartok by providing emotional support; and Respondents refused the requested accommodation.
There is not sufficient evidence to establish that the Association has articulated a legitimate, non-discriminatory reason for withholding approval of Ms. Bartok’s ESA. Therefore, Ms. Bartok established by a preponderance of evidence that Respondents discriminated against her based on her disability, by failing to approve a request for a reasonable accommodation (approving Ms. Bartok’s ESA) in violation of the FHA.
CONCLUSIONS OF LAW
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.
The FHA prohibits discriminating against a person on the basis of a “handicap,” or disability, by refusing to make reasonable accommodations when necessary to afford the person equal opportunity to use and enjoy a dwelling. Bhogaita v. Altamonte Heights Condo. Ass’n, Inc., 765 F.3d 1277, 1285 (11th Cir. 2014). See § 760.23(9)(b), Fla. Stat.
Section 760.27 provides in pertinent part:
760.27(2) REASONABLE ACCOMMODATION
REQUESTS.—To the extent required by federal law, rule, or regulation, it is unlawful to discriminate in the provision of housing to a person with a disability or disability-related need for, and who has or at any time obtains, an emotional support animal. A person with a disability or a disability- related need must, upon the person’s request and approval by a housing provider, be allowed to keep such animal in his or her dwelling as a reasonable accommodation in housing, and such person may not be required to pay extra compensation for such animal. …
* * *
To the extent required by federal law, rule, or regulation, it is unlawful to discriminate in the provision of housing to a person with a disability or
disability-related need for, and who has or at any time obtains, an emotional support animal. A person with a disability or a disability-related need must, upon the person’s request and approval by a housing provider, be allowed to keep such animal in his or her dwelling as a reasonable accommodation in housing, and such person may not be required to pay extra compensation for such animal.
The FHA is patterned after Title VII of the Civil Rights Act of 1968, as amended by the Fair Housing Act of 1988. As such, discriminatory acts prohibited under the federal FHA are also prohibited under the FHA, and federal case law interpreting the federal FHA is applicable to proceedings brought under the FHA. See Brand v. Fla. Power Corp., 633 So. 2d 504, 509 (Fla. 1st DCA 1994) (noting that “the Florida statute will take on the same constructions as placed on its federal prototype.”).
In proceedings brought under the FHA, the complainant has the burden to prove a prima facie case of discrimination by a preponderance of the evidence. § 760.34(5), Fla. Stat.; Fla. Dep’t of Transp. v. J.W.C. Co.,
396 So. 2d 778 (Fla. 1st DCA 1981). A “preponderance of the evidence” means the “greater weight” of the evidence, or evidence that “more likely than not” tends to prove the fact at issue. Gross v. Lyons, 763 So. 2d 276, 289 n.1
(Fla. 2000).
Discrimination under the FHA includes a refusal to make a reasonable accommodation for persons with a handicap or disability. See City of Edmunds v. Oxford House, Inc., 514 U.S. 725, 729-30 (1995). A successful failure to accommodate claim has four elements. To prevail, Ms. Bartok must prove that: (a) she is disabled within the meaning of the FHA; (b) she requested a reasonable accommodation; (c) the requested accommodation was necessary to afford her an opportunity to use and enjoy her dwelling; and
Respondents refused to make the accommodation. Schwarz v. City of Treasure Island, 544 F.3d 1201, 1218-19 (11th Cir. 2008).
Ms. Bartok has established, and Respondents did not dispute, that Ms. Bartok is disabled within the meaning of the FHA.
Ms. Bartok also has established that she requested a reasonable accommodation when she submitted her application packet for the purchase of Unit 106, and when the request for the pet waiver was communicated to Mr. Cross and Ms. Trimaur.
The next question to answer is whether Ms. Bartok’s dog, Moni, who purportedly fulfills the role of an ESA for Ms. Bartok, is a reasonable accommodation under the FHA. As the Eleventh Circuit explained:
Once a provider knows of an individual’s request for accommodation, the provider has “an opportunity to make a final decision … which necessarily includes the ability conduct a meaningful review” to determine whether the FHA requires the requested accommodation.
Bhogaita, 765 F.3d at 1286 (quoting Prindable v. Ass’n of Apt. Owners, 304 F. Supp. 2d 1245, 1258 (D. Hawaii 2003), aff’d sub nom. DuBois v. Ass’n of Apt. Owners, 453 F.3d 1175 (9th Cir. 2005)). As outlined in the Findings of Fact above, the July 2, 2020, letter from Mr. Cross demonstrates that Respondents had an opportunity to conduct a meaningful review of the requested accommodation.
Although the FHA does not define reasonable accommodation, the Eleventh Circuit has held that an accommodation is unreasonable if: (a) it would impose an undue financial and administrative burden on the housing provider; or (b) it would fundamentally alter the nature of the provider’s operations. See Schwarz, 544 F.3d at 1220.
The Secretary of Housing and Urban Development (HUD), who has
“the authority and responsibility for administering [the FHA],” 42 U.S.C.
§ 3608(a), may “make such rules and regulations as may be necessary to carry out his functions, powers, and duties.” 42 U.S.C. § 3535(d). HUD issued a final rule in 2008 that provides that accommodations to allow an ESA are
generally reasonable. The rule further states, “emotional support animals provide very private functions for persons with mental and emotional disabilities. Specifically, emotional support animals by their very nature, and without training, may relieve depression and anxiety, and help reduce stress induced pain in persons with certain medical conditions affected by stress.” Pet Ownership for the Elderly & Pers. with Disab., 73 F.R. 683834-01, 2018 WL 4690497 (Oct. 27, 2008). While Respondents’ “Rules and Regulations” contained a “20 lb-pet only” rule, which Respondents cited in their July 2, 2020, letter, one federal court looking at a companion federal regulation to the federal FHA held:
[T]his regulation specifically provides that it is unlawful for a housing provider with a no-pets policy to refuse to permit a blind person to live in a dwelling unit with a seeing eye dog. Because an essential element of both [the federal FHA and companion regulation] is that the accommodation is reasonable, it follows that allowing a disabled person to keep a dog in a housing unit with a no pets policy is a reasonable accommodation.
Sabal Palm Condos. of Pine Island Ridge Ass’n v. Fischer, 6 F. Supp. 3d 1272, 1281 (S.D. Fla. 2014).
Similarly, in Castillo Condominium Association v. U.S. Department of Housing and Urban Development, 821 F.3d 92, 98 (1st Cir. 2016), the First Circuit determined that a condominium association failed to reasonably accommodate a tenant when it refused to allow the tenant to keep an emotional support dog despite a “no pets” by-law. While Ms. Bartok was not an existing tenant, she was entitled to the same protection under the FHA as a potential buyer of Unit 106. Thus, the undersigned concludes that Respondents’ “20 lb-pet policy” does not provide a legal basis to refuse
Ms. Bartok, a disabled individual, a waiver of the pet policy for her ESA as a reasonable accommodation.
Respondents contended that Ms. Bartok’s application was not accepted because it did not include all supporting documents (financial and criminal background checks). However, the letter clearly states they could not waive the “pet policy requirements,” even when the issue involved a request pursuant to the ADA. The evidence presented failed to establish that
Ms. Bartok’s accommodation was unreasonable.
The undersigned concludes that Ms. Bartok established her requested accommodation, that Moni be permitted to be her ESA, was reasonable. Based on the July 2, 2020, letter, Respondents denied the requested accommodation. Accordingly, the undersigned concludes that Respondents violated the FHA by failing to grant the requested accommodation.
Division of Administrative Hearings this 8th day of October, 2021.
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.
