STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

LARRY TRESIZE and EDITH TRESIZE, )

)

Petitioners, )

)

vs. ) Case No. 97-4199

)

FAIRMONT HOUSE, INC., and )

WERNER BISCHOFF, )

)

Respondents. )

)

RECOMMENDED ORDER

Pursuant to notice, a Section 120.57(1) hearing was held in this case on December 18, 1997, by video teleconference at sites in Miami and Tallahassee, Florida, before Stuart M. Lerner, a duly designated Administrative Law Judge of the Division of Administrative Hearings.

APPEARANCES

For Petitioners Larry Tresize and Edith Tresize:

Larry Tresize, pro se

2700 Northeast 135th Street Apartment 50

North Miami, Florida 33181 For Respondent Fairmont House, Inc.:

David H. Rogel, Esquire Becker and Poliakoff, P. A. 5201 Blue Lagoon Drive Suite 100

Miami, Florida 33126

For Respondent Werner Bischoff:

James P. Ryan, Esquire Rosenberg, Reisman & Stein, LLP

One Southeast Third Avenue Suite 3050

Miami, Florida 33131

STATEMENT OF THE ISSUES

1. Whether, as alleged by Petitioners in their Petition for Relief, Respondents have committed, and are continuing to commit, a discriminatory housing practice in violation of the provisions of Florida's Fair Housing Act by denying Petitioners approval "to install a 22,500 BTU air conditioner unit in the wall of their [Fairmont House] apartment."

2. If so, what affirmative relief should Petitioners be provided.

PRELIMINARY STATEMENT

In August of 1996, Petitioners filed a discriminatory housing complaint with the Florida Commission on Human Relations (Commission) alleging that Fairmont House, Inc., had "discriminated against [them] on the basis of [Mrs. Tresize's] disability, in violation of the fair housing laws." Petitioners amended their complaint in April of 1997, to add Werner Bischoff as a respondent. On August 19, 1997, following the completion of its investigation of Petitioners' amended complaint, the Commission issued a Determination of No Reasonable Cause.

Petitioners subsequently filed a Petition for Relief with the Commission. On September 8, 1997, the Commission referred the matter to the Division of Administrative Hearings (Division) for the assignment of a Division administrative law judge to conduct a Section 120.57(1) hearing on the allegations in Petitioners' Petition for Relief.

As noted above, the hearing was held on December 18, 1997.

Two witnesses testified at the hearing: Petitioner Larry Tresize and Sherwin Kresshauer, the president of Respondent Fairmont House, Inc. In addition to the testimony of these two witnesses, ten exhibits (Petitioners' Exhibits A, B, B-1, C, and D, Respondent Fairmont House, Inc.'s, Exhibits A, B, C, and D, and Respondent Werner Bischoff's Exhibit A) were offered and received into evidence.

At the conclusion of the evidentiary portion of the hearing, the undersigned announced on the record that proposed recommended orders had to be filed no later than January 7, 1998. Respondent Fairmont House, Inc. and Respondent Werner Bischoff filed their proposed recommended orders on December 24, 1997, and January 7, 1998, respectively. These post-hearing submittals have been carefully considered by the undersigned. To date, Petitioners have not filed any post-hearing submittal.

FINDINGS OF FACT

Based upon the evidence adduced at hearing and the record as a whole, the following findings of fact are made:1

1. Petitioner Larry Tresize and his 91 year-old wife, Edith Tresize, who suffers from osteoporosis and a heart condition and is unable to perform normal activities of daily living without assistance, have resided in Apartment 50 of Fairmont House, a residential cooperative located in North Miami, Florida, since 1982.

2. In January of 1991, the Tresizes sold their interest in the apartment to Werner Bischoff, but continued to occupy the apartment inasmuch as they had "reserved[d] unto themselves a life estate in and to the aforementioned real property with the sole right of possession during the life of the grantor EDITH TRESIZE only, with the proviso that [they] w[ould] pay all maintenance, taxes and assessments and utilities for the subject apartment."

3. Fairmont House, Inc. (Corporation) is a non-profit corporation responsible for the operation of the Fairmont House cooperative.

4. The purpose of the Corporation is stated in Article

   II.A. of its Articles of Incorporation as follows: The general nature of the object of the

   Corporation is to provide for and promote the general welfare, comfort, safety, and mutual friendliness between its members, to provide the facilities necessary to promote such purposes and to maintain, manage and keep in good repair the roof, outer walls of the building, all common ways, and areas within and without the building, common rooms, parking areas, grounds (meaning all grass sod, shrubbery, and general landscaping), sea walls, swimming pool and pool area, fences, common electrical equipment and fixtures situated within the common areas of the building and on the grounds for the use and enjoyment of the members of the corporation.

   . . .

5. In accordance with the provisions of Article III.A. of the Corporation's Articles of Incorporation, "[a]ny person, or persons, individual or corporate, are qualified to become a

   member of this corporation upon securing by purchase, devise, gift, or assignment, any leasehold interest in the [Fairmont House apartments]," provided they are deemed "acceptable" for membership by the Corporation's membership committee.

   
   

6. Pursuant to Article VI.A. of the Corporation's Articles of Incorporation, the "affairs of the [C]orporation [are] managed by a nine (9) member board of governors."

7. The Corporation has adopted Rules and Regulations governing member conduct and activities.

8. Item 5.c. of the Corporation's Rules and Regulations provides that "[m]embers or non-members shall make no alterations to said exterior premises without the consent of the Board of Governors."

9. The apartments in Fairmont House do not have central air conditioning.

10. They are cooled by room air conditioners.

    
    

11. There are both window and "through-the-wall" units.

    
    

    The "through-the-wall" units protrude through openings that were a part of the original design of the building. Subsequent to the building's construction, no additional openings for "through-the- wall" units have been made.

12. When the Tresizes moved into their Fairmont House apartment, there was a "through-the-wall" air conditioning unit

    in one of the apartment's two bedrooms. The Tresizes subsequently removed the unit and closed the opening in the wall through which the unit had protruded.

13. The Tresizes now have three window air conditioning units in their apartment (including one in the bedroom which previously had a "through-the-wall" unit).

    
    

14. In or about April of 1996, the Tresizes contacted their local Sears store to inquire about replacing the window air conditioning unit in the living room of their apartment.

15. Sears sent a "contractor" to the Tresizes' apartment to discuss the matter further with the Tresizes.

16. The Sears "contractor" told the Tresizes that, to comfortably cool their living room, they would need a 22,500 BTU air conditioner. He further advised them that such an air conditioner was too large to install in the living room window and that it would have to be installed, instead, through the wall.

17. The Tresizes authorized the "contractor" to install such a "through-the-wall" unit in their living room.

18. After a building permit from the City of North Miami was obtained, the "contractor" returned to Fairmont House to perform the work necessary to install the unit (Project).

19. The "contractor" was with Larry Tresize on the walkway

    outside the Tresizes' apartment about to drill a hole in the exterior wall outside the Tresizes' living room, when he was approached by three members of the Corporation's Board of Governors, who directed that he not proceed with the Project unless and until the necessary approval was formally obtained from the Corporation's Board of Governors.

20. The "contractor" gathered his tools and left without performing any more work on the Project.

    
    

21. By letter dated April 24, 1996, the Tresizes requested the Corporation's Board of Governors to "grant [them] permission to install a larger air condition[er] in the wall of [their] apartment."

22. The Board of Governors responded by informing the Tresizes that it would not consider their request absent proof that Werner Bischoff approved of the Project.

23. The Tresizes thereafter asked Mr. Bischoff if he would consent to the installation of a "through-the-wall" air conditioning unit in the living room of the Tresizes' apartment.

24. Mr. Bischoff refused to give such consent.

    
    

25. The Project never received the approval of the Board of Governors.

26. One member of the Board of Governors, Sherwin Kresshauer, personally attempted to assist the Tresizes in

    finding an adequate replacement for the window air conditioning unit in the their living room.

27. Mr. Kresshauer measured the space in the window occupied by the air conditioning unit that needed to be replaced (it measured 19 inches by 27 inches) and made arrangements for an air conditioning specialist to visit the Tresizes' apartment and to evaluate the apartment's air conditioning needs and how those needs could be met.

28. Mr. Kresshauer was present when the air conditioning specialist visited the Tresizes' apartment.

29. The air conditioning specialist told the Tresizes that either an 18,000 or 24,000 BTU Goodman air conditioning unit could be installed in the window of their living room (in the 19- inch by 27-inch space occupied by their present unit).

30. When the air conditioning specialist told the Tresizes how much it would cost them, the Tresizes said that they did not want to pay that much.

    CONCLUSIONS OF LAW

    
    

31. Florida's Fair Housing Act (Act) is codified in Sections 760.20 through 760.37, Florida Statutes.

32. Among other things, the Act makes certain acts "discriminatory housing practices" and gives the Commission the authority, if it finds (following a Section 120.57(1) administrative hearing conducted by an administrative law judge) that such a "discriminatory housing practice" has occurred, to

    issue an order "prohibiting the practice" and providing "affirmative relief from the effects of the practice, including quantifiable damages and reasonable attorney's fees and costs." Section 760.35(3)(b), Florida Statutes.

33. The "discriminatory housing practices" prohibited by the Act include those described in Section 760.23(8), Florida Statutes, which provides as follows:

    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 with such dwelling, because of a handicap2 of:

    1. That buyer or renter;

       
       

    2. A person residing in or intending to reside in that dwelling after it is sold, rented, or made available; or

       
       

    3. Any person associated with the buyer or renter.

       
       

       Pursuant to Section 760.23(9), Florida Statutes, such discrimination includes:

       1. A refusal to permit, at the expense of the handicapped person, reasonable modifications of existing premises occupied or to be occupied by such person if such modifications may be necessary to afford such person full enjoyment of the premises; or

          
          

       2. A refusal to make reasonable accommodations in rules, policies, practices, or services, when such accommodations may be necessary to afford such person equal opportunity to use and enjoy a dwelling.3

34. In the instant case, Petitioners have alleged that Respondents have committed, and are continuing to commit, a

    "discriminatory housing practice" of the type described in Section 760.23(9)(a), Florida Statutes, by refusing to grant them permission to install, for the benefit of Mrs. Tresize, a "through-the-wall" air conditioning unit in the living room of their Fairmont House apartment.

35. In accordance with provisions of Section 760.35(3), Florida Statutes, a Section 120.57(1) hearing on these allegations was conducted.

36. At the hearing, Petitioners had the burden of proving by a preponderance of the evidence that Mrs. Tresize is now, and was at all material times to the instant case, a "handicapped person," within the meaning of the Act,4 and that Respondents have refused, and are continuing to refuse, to permit the making, at Petitioners' expense, of a modification to the apartment building in which Petitioners reside, which is reasonable and, in light of Mrs. Tresize's handicap, necessary for her to fully enjoy the premises. Section 760.34(5), Florida Statutes("In any proceeding brought pursuant to . . . s. 760.35, the burden of proof is on the complainant."); Department of Health and Rehabilitative Services v. Career Service Commission, 289 So. 2d

    412 (Fla. 4th DCA 1974)("'As a general rule [except as otherwise provided by statute] the comparative degree of proof by which a case must be established is the same before an administrative tribunal as in a judicial proceeding--that is, A preponderance of the evidence. It is not satisfied by proof creating an

    equipoise, but it does not require proof beyond a reasonable doubt.'"); Florida Commission on Human Relations v. Burgundy I Condominium Association, Inc., Case No. 96-5569 (Fla. DOAH November 12, 1997)(Recommended Order of Administrative Law Judge Patricia Hart Malono)("The elements of the prima facie case of unlawful discrimination are set out in Section 760.23(9)(a).

    Accordingly, the Commission has the burden of proving that (1) the Association refused to permit (2) at the Tobins' expense (3) a modification of the Burgundy I common elements which is reasonable and (4) necessary for Mr. Tobin to fully enjoy the premises.").

37. Petitioners have failed to meet their burden of proof.

    
    

38. Although they have alleged that the installation of a "through-the-wall" unit in their living room is essential for Mrs. Tresize, because of her health problems, to fully enjoy the premises, at hearing they did not present any expert testimony (from either an air conditioning or medical expert) in support of such a claim. The only testimony they presented was that of Mr. Tresize. Although Mr. Tresize testified that he had been told by a Sears "contractor" that he (Mr. Tresize) and his wife needed a "through-the-wall" air conditioning unit to adequately cool their living room, neither the "contractor" nor anyone else possessing sufficient knowledge to render an opinion concerning Petitioners' air conditioning needs testified at hearing. To the extent that it was offered to prove the truth of what the contractor had told

    him, Mr. Tresize's testimony constitutes uncorroborated hearsay evidence that would not be admissible over objection in a civil proceeding. As such, it is not competent substantial evidence upon which a finding of fact may be based. Section 120.569(1)(c), Florida Statutes("Hearsay evidence may be used for the purpose of supplementing or explaining other evidence, but it shall not be sufficient in itself to support a finding unless it would be admissible over objection in civil actions."); Forehand v. School Board of Gulf County, 600 So. 2d 1187, 1191-92 (Fla.

    1st DCA 1992); Doran v. Department of Health and Rehabilitative Services, 558 So. 2d 87, 88 (Fla.1st DCA 1990).

39. Because Petitioners have failed to establish by a preponderance of the record evidence that the modification that they have sought permission to make to the exterior wall of their apartment(outside their living room) is "necessary to afford [Mrs. Tresize] full enjoyment of the premises," within the meaning of Section 760.23(9), Florida Statutes, their discriminatory housing practice complaint and their Petition for Relief (alleging that Respondents violated the Act by refusing to allow them to make such a modification) should be dismissed.

    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 the Tresizes' discriminatory

    housing practice complaint and their Petition for Relief. DONE AND ENTERED this 30th day of January, 1998, in

    Tallahassee, Leon County, Florida.

    
    

    STUART M. LERNER

    Administrative Law Judge

    Division of Administrative Hearings The DeSoto Building

    1230 Apalachee Parkway

    Tallahassee, Florida 32399-3060

    (850) 488-9675 SUNCOM 278-9675

    Fax Filing (850) 921-6847

    
    

    Filed with the Clerk of the Division of Administrative Hearings this 30th day of January, 1998.

    
    

    ENDNOTES

    1 In making these findings, the undersigned has had the opportunity to refer to the transcript of the hearing, with which he was furnished on January 28, 1998.

    2 "Handicap," as used in the Act, means:

    1. A person has a physical or mental impairment which substantially limits one or more major life activities, or he has a record of having, or is regarded as having, such physical or mental impairment.

       
       

    2. A person has a developmental disability as defined in s. 393.063.

3 In all respects material to the instant case, the language used in Section 760.23(8) and (9), Florida Statutes, mirrors that found in 42 U.S.C. Section 3604(f)(2) and (3) of the federal Fair Housing Act Amendment of 1988.

4 Petitioners have not alleged, nor have they proven, that Mr. Tresize is a "handicapped person," within the meaning of the Act.

COPIES FURNISHED:

Larry and Edith Tresize

2700 Northeast 135th Street Apartment 50

North Miami, Florida 33181

David H. Rogel, Esquire Becker and Poliakoff, P. A. 5201 Blue Lagoon Drive Suite 100

Miami, Florida 33126

James P. Ryan, Esquire Rosenberg, Reisman & Stein, LLP One Southeast Third Avenue Suite 3050

Miami, Florida 33131

Sharon Moultry, Clerk

Florida Commission on Human Relations

325 John Knox Road Building F, Suite 240

Tallahassee, Florida 32303-4149

Dana Baird General Counsel

Florida Commission on Human Relations

325 John Knox Road Building F, Suite 240

Tallahassee, Florida 32303-4149

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.

1 In making these findings, the undersigned has had the opportunity to refer to the transcript of the hearing, with which he was furnished on January 28, 1998.

2 "Handicap," as used in the Act, means:

1. A person has a physical or mental impairment which substantially limits one or more major life activities, or he has a record of having, or is regarded as having, such physical or mental impairment.

   
   

2. A person has a developmental disability as defined in s. 393.063.

3 In all respects material to the instant case, the language used in Section 760.23(8) and (9), Florida Statutes, mirrors that found in 42 U.S.C. Section 3604(f)(2) and (3) of the federal Fair Housing Act Amendment of 1988.

4 Petitioners have not alleged, nor have they proven, that Mr. Tresize is a "handicapped person," within the meaning of the Act.

Docket for Case No: 97-004199

Orders for Case No: 97-004199