STATE OF FLORIDA
DIVISION OF ADMINISTRATIVE HEARINGS
FLORIDA COMMISSION ON HUMAN ) RELATIONS and IVAN AND )
REBECA GABOR, )
)
Petitioners, )
)
vs. ) Case No. 98-0391
) BAY COUNTRY CLUB CONDOMINIUM ) ASSOCIATION, )
)
Respondent. )
)
RECOMMENDED ORDER
Pursuant to notice, a final hearing was held in this case on September 28, 1999, in Miami, Florida, before Patricia Hart Malono, a duly-designated administrative law judge of the Division of Administrative Hearings.
APPEARANCES
For Petitioner: Evelyn Davis Golden, Esquire
Florida Commission on Human Relations
325 John Knox Road Building F, Suite 240
Tallahassee, Florida 32303-4149
For Respondent: Alvin N. Weinstein, Esquire
Arthur J. Morburger, Esquire Weinstein, Bavly & Moon, P.A.
19 West Flagler Street, Suite 920 Miami, Florida 33130
STATEMENT OF THE ISSUE
Whether the Respondent discriminated against the daughter of the Petitioners Ivan and Rebeca Gabor in violation of Florida's Fair Housing Act, Section 760.23(8) and (9), Florida Statutes, by refusing to allow her to keep a dog in the condominium apartment owned by her parents.
PRELIMINARY STATEMENT
On June 28, 1996, Ivan and Rebeca Gabor ("Gabors") filed a Housing Discrimination Complaint with the Department of Housing and Urban Development and with the Florida Commission on Human Relations ("Commission"), alleging that Bay Country Club Condominium Association ("Association") was discriminating against their daughter because of her handicap. In the complaint, the Gabors asserted that their daughter is a diabetic, that one of her physicians indicated she needed a service dog to help her deal with her diabetes, and that the Association refused to allow them to keep their daughter's dog.
In a Notice of Determination: Cause and Issuance of an Administrative Charge dated December 12, 1997, the Association was notified by the Commission that reasonable cause had been found to believe that a discriminatory housing practice had occurred with respect to the Gabors' daughter. In the Legal Concurrence: Cause attached to the Notice of Determination, the Commission noted that the Association's response to the charge
was that its rules, as set forth in the Amendment to Declaration of Condominiums, prohibit the keeping of pets other than tropical fish and caged birds. After completing its investigation, the Commission concluded that the Gabors had demonstrated a prima facie case of discrimination, that the Association articulated non-discriminatory reasons for its action, but that the Gabors had shown that the articulated reasons were pretextual.
Both the Gabors and the Association requested a formal administrative hearing, and the Commission referred this case to the Division of Administrative Hearings for assignment of an administrative law judge. The final hearing in this case was originally scheduled for July 21, 1998. After several continuances at the request of one or the other of the parties, the final hearing was held on September 28, 1999.
At the hearing, the Commission and the Gabors presented the testimony of Rebeca Gabor and Ivan Gabor; Petitioners' Exhibits
1 through 8, and 10 were offered and received into evidence.
Petitioners' Exhibit 7 consists of the transcript and videotaped deposition of Dr. Robin Nemery; Petitioners' Exhibit 8 consists of the transcript and videotaped deposition of Dr. Alan Delamater taken by counsel for the Commission; and Petitioners' Exhibit 10 consists of the transcript of the deposition of
Dr. Alan Delamater taken by counsel for the Association. The
Association presented the testimony of Lila Kauffman, Esther Perlstein, and Arnold Klein; Respondent's Exhibit 1 was offered and received into evidence. Respondent's Exhibit 1 consists of the transcript and videotaped deposition of Dr. Margaret Eidson.
The transcript of the proceeding was filed with the Division of Administrative Hearings, and, after several requests for extensions of time were granted, the parties timely filed proposed findings of fact and conclusions of law, which have
been duly considered.
FINDINGS OF FACT
Based on the oral and documentary evidence presented at the final hearing and on the entire record of this proceeding, the following findings of fact are made:
The Florida Commission on Human Relations is the state agency charged with investigating complaints of discriminatory housing practices and enforcing Florida's Fair Housing Act, Sections 760.20 through .37, Florida Statutes. Section 760.30, Florida Statutes. In 1981, the Florida Fair Housing Act was declared the substantial equivalent of the Federal Fair Housing Act, 42 U.S.C. Section 3601 et seq. Consequently, since 1981, the Commission has been charged with investigating fair housing complaints filed with the Commission and with the Department of Housing and Urban Development.
The Bay Country Club Condominium Association is an association composed of the owners of eighty condominium units in the Bay Country Club Condominium, which is located in North Miami Beach, Florida. The by-laws of the Association prohibit all pets other than tropical fish and domesticated caged birds. 1/ This policy has been consistently enforced.
Ivan and Rebeca Gabor live in Unit 11D of the Bay Country Club condominium with their daughter, Jessica, who was seven and one-half years old at the time of the final hearing.
On or about April 13, 1995, when she was three and one- half years old, Jessica was diagnosed with Juvenile Diabetes Type I. As a result of her insulin-dependent diabetes, Jessica's blood sugar must be monitored several times each day, and the correct amount of insulin must be administered to ensure that Jessica's blood sugar is at the appropriate level. In March 1999, Jessica was fitted with an insulin pump. Prior to that time, Jessica's blood sugar was monitored by drawing blood from the tip of her finger, and her insulin was administered by injection.
It was very difficult for Jessica to adjust to the routine necessary to control her diabetes. She ran away from her mother and hid when it was time to test her blood sugar, and she screamed and cried as her finger was pricked, which, in the beginning, was three to five times a day. The number of insulin
shots Jessica received each day depended on the level of her blood sugar; in February and March 1996, she received injections of insulin three to four times a day, and later, before she began using an insulin pump, she received injections of insulin four or five times a day.
In a letter dated May 17, 1995, Dr. Jorge Serrat, one of the pediatric endocrinologists following Jessica's diabetes, wrote a letter to the Association in which he explained that it was "crucially important" to maintain Jessica in good spirits because "emotional states are closely linked to one's glycemic (glucose) profile." Dr. Serrat stated that a "small pet (cat, dog, etc.) would do wonders" for Jessica.
The Gabors did not pass on this letter or approach the Association until February 26, 1996. At that time, they wrote a letter advising the Association that, on the advice of Jessica's doctor, they were going to purchase a small dog, which they would keep in the apartment. The Gabors requested that the Association notify them in writing within three days if it objected to the purchase of the dog; and the Gabors stated in the letter that they would purchase the dog if they heard nothing within this time frame. A week later, having received no response from the Association, the Gabors bought a White Eskimo puppy, which, as a breed, does not exceed twelve-to thirteen pounds. The Gabors were aware at the time they
purchased the dog that one of the Association's by-laws prohibited dogs and cats in the building.
In a letter dated March 20, 1996, the Association's attorney responded to the Gabors' request that they be allowed to buy a dog for Jessica. The Gabors were advised that they were prohibited from having a dog in their condominium by "Article 10.1(a)(1)," which allows only "tropical fish and domesticated caged birds." The Gabors were further advised to remove the dog from the premises within seven days, and the attorney suggested that they "do so in order to avoid unnecessary litigation and the imposition of costs and attorney's fees."
In a letter dated March 23, 1996, addressed to "my Bay Country Club Neighbors," Mr. Gabor requested that Jessica be allowed to keep the dog.
In a letter dated June 24, 1996, the Association's attorney requested that the Gabors provide all of Dr. Serrat's medical records on Jessica so the Association could have the records reviewed. The attorney advised the Gabors that, if they failed to respond to the request, he would file suit against them on behalf of the Association.
On June 28, 1996, the Gabors filed the Housing Discrimination Complaint that is the subject of this action.
They did not provide Jessica's medical records to the Association until this proceeding commenced.
Jessica attends a private religious school, where she is enrolled in the second grade; she is doing well in school. Mrs. Gabor takes Jessica to school every morning so that she arrives before 8:00 a.m. She rides the school bus home from school each day, and she is met at the door of the condominium building by either Mrs. Gabor, the housekeeper, or her grandmother. Jessica is always supervised by an adult.
Prior to the time she received an insulin pump, Jessica would arise at approximately 6:30 a.m., when her parents would test her blood sugar level. She would receive an insulin injection between 7:00 a.m. and 7:30 a.m., before she left for school. Jessica's blood sugar level was tested by the school nurse before lunch and before Jessica left school for the day; the nurse told Jessica how much insulin she needed and the amount of food and type of food she could consume. Jessica's blood sugar was tested before she engaged in school activities such as gymnastics, and she missed some school field trips when her parents were not able to find someone who could travel with her and be responsible for caring for her. When she attended birthday parties, she would have her blood sugar tested before she could have a piece of birthday cake.
Some children will not socialize with Jessica because they think her disease is contagious.
Jessica has gone to camp, and she vacations with her parents. On two occasions, the family cut vacations short because of difficulty in controlling Jessica's blood sugar levels.
Jessica has lost time at school when she goes to the doctor, and her parents sometimes keep her at home when she is not feeling well.
The insulin pump that has been used to treat Jessica's diabetes since March 1999 is used to regulate the level of blood sugar through a continuous flow of insulin into the body. A one-inch needle is inserted into the stomach, under the skin, and the needle must be changed every other day. The insulin pump is attached to the needle, and insulin is introduced into the body through a catheter. The pump is designed to introduce a prescribed amount of insulin into the body.
The amount of insulin provided by the pump must sometimes be adjusted to sustain the blood sugar level set by Jessica's doctors. Jessica's teachers watch her throughout the day and take her to the school nurse if they observe her looking confused, upset, or nervous, all of which can be a sign that Jessica's blood sugar is either too low or too high. The school nurse tests Jessica's blood sugar to determine if the amount of
insulin needs to be adjusted and supervises Jessica when she resets the amount of insulin provided by the pump.
Now that she uses the insulin pump, Jessica has more spontaneity in her life because her blood sugar levels are more predictable.
Jessica has had her dog for approximately three years, and is very attached to the dog. Mrs. Gabor normally takes the dog out for walks, and it is her practice to carry the dog in her arms until it is outside the building. She does not get on the elevator with the dog when it is occupied. Sometimes, the dog escapes from the apartment into the hallway.
Jessica's parents believe that the dog helped Jessica adjust to her diabetes by providing a distraction from the needles and finger pricks.
Dr. Robin Nemery practices pediatric endocrinology and is the physician who primarily treats Jessica for her diabetes. Dr. Nemery describes insulin-dependent diabetes as "a God awful, lousy disease" and noted that the Gabors and Jessica had a particularly difficult time accepting Jessica's diagnosis. Jessica exhibited numerous behavioral problems when she was first diagnosed, and it was a very stressful time for the entire family. Overall, however, the Gabors have managed to exert very good control over Jessica's blood sugar, although, as with any diabetic, her blood sugar levels fluctuate from day to day and
for many reasons. Jessica has had several severe hypoglycemic episodes and, at one time, her blood sugar levels fluctuated significantly from one day to the next. These conditions were successfully treated by adjusting Jessica's diet and the amount of insulin she received. Now that Jessica is using an insulin pump, her blood sugar levels are very consistent; on many days, her levels are perfect.
Although there is no scientific study that specifically addresses the efficacy of pet companion therapy for children with diabetes, Dr. Nemery concurs with Dr. Serrat's initial assessment that a dog helps Jessica adjust to the difficulties of living with insulin-dependent diabetes.
In Dr. Nemery's opinion, the dog has made a tremendous impact on Jessica's quality of life, and Jessica will benefit medically if she keeps the dog. Although Dr. Nemery has no scientific basis for this opinion, she believes that the dog has definitely improved Jessica's quality of life, both psychologically and physically. When Jessica first got the dog, she engaged in "play therapy" with the dog, pretending to test the dog and give the dog injections. The dog provides Jessica with companionship and comfort, which reduces her stress. This is important because emotional stress has a tremendous impact on a diabetic's overall physical well being because stress affects blood sugar levels. 2/ In addition, the dog has motivated
Jessica to be physically active when she plays with the dog outside. Jessica is encouraged to exercise as much as possible because physical activity has a positive effect on controlling blood sugar levels.
Although Dr. Nemery believes that Jessica's diabetes is better because of the dog, she cannot state with a reasonable degree of medical certainty that Jessica's diabetes would be worse today had she not gotten the dog, nor can Dr. Nemery state with a reasonable degree of medical certainty that Jessica requires the assistance of a "service" pet to improve her quality of life. Dr. Nemery is of the opinion that, because she is attached to the dog, Jessica would be very upset if she were to have to give up the dog and that it would be difficult to keep Jessica's blood sugar levels under control over the short term.
Dr. Alan Delamater is a clinical psychologist specializing in pediatric health psychology, particularly the behavioral and psychological aspects of insulin-dependent diabetes. Dr. Delamater has worked with Jessica and her family since February 1999, when Dr. Nemery referred the Gabors to
Dr. Delamater because they were having behavioral problems with Jessica. Dr. Nemery was interested in learning if Jessica's behavior problems were related to fluctuations in her blood sugar levels because, although Jessica's blood sugar levels
were, on average, very good, she was experiencing wide daily fluctuations.
In Dr. Delamater's experience, children with insulin- dependent diabetes are like other children in many respects, although they have a higher risk of behavioral and emotional problems. In general, however, with proper treatment, diabetic children can do anything that other children can do.
Dr. Delamater categorized Jessica's behavior problems as "compliance problems" and "behavior management problems" that are typical of the types of behavior problems sometimes exhibited by young children. In assessing Jessica,
Dr. Delamater determined that she has some sub-clinical, but fairly significant, problems in the areas of attention, hyperactivity, and impulsivity. 3/ Some of Jessica's behavior problems are related to her diabetes, such as her resistance to having the site of her insulin pump changed, and some of her problems are related to her general behavior.
Jessica's cognitive abilities are in the high average range for verbal ability and in the average range for non-verbal ability.
As part of his assessment of the Gabor family,
Dr. Delamater determined that Mrs. Gabor is experiencing fairly high overall stress levels related to the responsibilities of parenting Jessica.
Dr. Delamater has been providing behavioral family therapy to the Gabors, focusing on effective behavioral management strategies to gain Jessica's cooperation. In his opinion, Jessica's behavior problems are "probably" not caused by fluctuating blood sugar levels.
Dr. Delamater briefly discussed Jessica's dog with Jessica during her first visit in February 1999. He spoke with her in greater detail about the dog on August 4, 1999, when Jessica told him that the dog was like a sister or a daughter. Dr. Delamater thinks Jessica has a normal, very affectionate, emotional bond with her dog and feels the same attachment to her pet as other pet owners feel for their pets.
Dr. Delamater is aware of scientific studies that show that pets have a therapeutic effect on certain physical problems, in particular hypertension, and that some studies indicate that pets contribute to the quality of life and mental health and well being of spinal cord patients. Dr. Delamater is not aware of any studies that show a relationship between pets and control of diabetes. Dr. Delamater believes that, in general, a child who loves a pet would experience some stress reduction.
Based on the historical report he took from the Gabors, things "were a lot easier for everybody" after Jessica got the dog, possibly because it provided a distraction for her,
because it was a comfort to her, and because she was able to role-play with the dog.
In Dr. Delameter's opinion, if Jessica were forced to give up her dog, she would have a reaction that "would be emotionally stressful and probably traumatic," which would take a very long time to resolve. In Dr. Delamater's opinion as a health psychologist specializing in diabetic children, there is a high probability that, if Jessica experiences the stress of giving up her dog, it will be difficult to control her diabetes.
Dr. Margaret Eidson, a board-certified pediatric endocrinologist, reviewed records showing Jessica's average blood sugar readings for the period from July 1995 until April 1998. In Dr. Eidson's opinion, the readings were never "bad." They showed improvement from July 1995 until
October 1996, when the readings were the lowest; the readings showed stabilization from October 1996 to April 1997, then deterioration from April 1997 to April 1998, when the level was the same as it had been in July 1995.
Dr. Eidson considers the treatment Jessica has received for her insulin-dependent diabetes to be excellent.
In general, the only restriction put on diabetic children is to control their diet to some extent.
Dr. Eidson could not say, within a reasonable degree of medical certainty, that a dog would improve a diabetic
child's quality of life, either generally or specifically with regard to Jessica. Dr. Eidson does not, however, object to Dr. Nemery's recommendation that Jessica have a small dog.
Lila Kauffman is a resident of Bay Country Club Condominium. She is allergic to animals, and she coughs and sneezes and loses her breath when she is in the presence of animals. Ms. Kauffman was once hospitalized after she stayed in the home of a friend who had a poodle for a pet. She has lived in Bay Country Club Condominium since 1978 and was very careful to inquire whether animals were allowed in the building before she purchased her unit.
Ms. Kauffman first learned that the Gabors had a dog when she stepped on the elevator and saw someone in the elevator carrying a dog. She immediately stepped off the elevator because she was afraid she would have a reaction to the dog.
Ms. Kauffman then complained to the president of the Association about the dog. Since she registered her complaint, she has seen the dog once, in the lobby of the condominium, when it was being held in the arms of a person who was talking with the security guard. Ms. Kauffman walked away and did not suffer any adverse reaction the two times she has been near the dog.
Esther Perlstein is a resident of Bay County Club Condominium. She lives on the same floor as the Gabors, and her unit is about twenty-five feet from the Gabors' unit, although
she does not have to walk past the Gabors' unit to reach the elevator. Ms. Perlstein is afraid of dogs because her husband was once bit by a dog. She has encountered the dog in the hallways several times, but the worst incident occurred one day when she came home from shopping and the dog ran towards her barking and growling. She stomped her feet, and the dog backed away. When she started to yell, Jessica came out of the apartment, picked up the dog, and started to cry as she took the dog back into the apartment. Ms. Perlstein told Jessica, in essence, "to keep the dog away from" her. 4/
The other incidents in which Ms. Perlstein observed the dog in the hallway were not as bad as this incident. According to Ms. Perlstein, the dog ran out of the apartment and then ran back in, "and that was the end of it."
Ms. Perlstein complained about the dog to the Association.
Summary
The evidence presented by the Commission is sufficient to establish that Jessica's insulin-dependent diabetes is a physical impairment and that this impairment is corrected through Jessica's use of insulin to regulate her blood sugar.
The evidence presented by the Commission is not sufficient to establish that Jessica is handicapped because there is no evidence that she is substantially limited in any
major life activities as a result of her physical impairment. The Commission failed to present evidence to establish any restrictions on Jessica's activities as a result of the diabetes.
CONCLUSIONS OF LAW
The Division of Administrative Hearings has jurisdiction over the subject matter of this proceeding and of the parties pursuant to Sections 120.569 and .57(1), Florida Statutes (1997).
The gravamen of the Commission's charge against the Association is that it committed a discriminatory housing practice under Sections 760.23(8) and (9), Florida Statutes, which provide:
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 handicap of:
That buyer or renter;
A person residing in or intending to reside in that dwelling after it is sold, rented, or made available; or
Any person associated with the buyer or renter.
For purposes of subsections (7) and (8), discrimination includes:
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
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.
The specific issue presented is whether the Association committed an unlawful discriminatory housing under
Sections 760.8(c) and (9)(b), Florida Statutes, by refusing to make an exception to its by-laws to allow Jessica Gabor to keep a dog in the condominium apartment she shares with her parents.
In all respects material to this action, the language in Sections 760.23(8) and (9), Florida Statutes, is identical to that in Title 42, Section 3604(f)(2) and (3), United States Code, which is part of the federal Fair Housing Act Amendment of 1988. 5/ Accordingly, Florida courts and administrative tribunals should construe Sections 760.23(8) and (9), Florida Statutes, in the same manner has the federal courts have construed Title 42, Section 3604(f)(2) and (3), United States Code, "insofar as such interpretation is harmonious with the spirit and policy of the Florida legislation." Brand v. Florida Power Corporation, 633 So. 2d 504, 509-510 (Fla. 1st DCA 1994).
The Commission requested a hearing before the Division of Administrative Hearings pursuant to its authority under Section 760.35(3)(a), Florida Statutes (1995). Section 760.34(5), Florida Statutes, provides that "[I]n any proceeding
brought pursuant to this section or s. 760.35, the burden of proof is on the complaining party."
51. In Barth v. Gelb, 2 F.3d 1180, 1185 (D.C. Cir. 1993),
the court concluded that handicapped discrimination arising under Section 504 of the federal Rehabilitation Act of 1973 should be governed by the traditional allocation of the burden of production. In so holding, the court stated:
These cases deal with objective claims that may be tested through the application of traditional burdens of proof. [A]
plaintiff must establish that (a) he is handicapped but, (b) with reasonable accommodation (which he must describe), he is (c) able to perform "the essential functions" of the position he holds or seeks. . . . As in the usual case, it would then be up to the employer to refute that evidence. The burden, however, remains with the plaintiff to prove his case by a preponderance of the evidence.
Id. at 1187(citations omitted). See also Willis v. Conopco, 108
F.3d 282, 286 (11th Cir. 1997)(concluding that the allocation of the burden of production and persuasion set forth in Barth is appropriate for an ADA plaintiff, as well). 6/
The traditional framework adopted by the court in Barth is also the appropriate framework to apply in this case. 7/ The elements of the prima facie case of unlawful discrimination at issue herein are set out in Section 760.23(9)(b). To paraphrase the court in Barth, the Commission
has the burden of proving (1) that Jessica is handicapped and
(2) that it is necessary for the Association to make an accommodation in its rules in order for Jessica to have an opportunity equal to that of the other residents to use and enjoy the condominium apartment she shares with her parents and that (3) a waiver by the Association of the provision in the by- laws prohibiting dogs in Bay Country Club Condominium is a reasonable accommodation. The Association's burden of production is to produce evidence refuting the evidence presented by the Commission.
"Handicap" is defined in Section 760.22, Florida Statutes, as follows:
(7) "Handicap" means:
A person has a physical or mental impairment which substantially limits one or more major life activities, or he or she has a record of having, or is regarded as having, such physical or mental impairment; or
A person has a developmental disability as defined in s. 393.063.
This definition is virtually identical to the definitions found in the federal Fair Housing Act; Title 42, Section 3602(h), United States Code ("handicap"); the Americans with Disabilities Act, Title 42, Section 12102(2)(A), United States Code ("disability"); and the Rehabilitation Act, Title 29,
Section 705(9)(B), United States Code ("disability").
Regardless of whether the term "handicap" or the term "disability" is used, each of these laws provides relief only to
a person with a physical impairment that substantially limits a major life activity.
The United States Supreme Court has recently addressed the definition of "disability" in the context of a case brought pursuant to the Americans with Disabilities Act. In Sutton v.
United Airlines, 527 U.S. 471, 119 S.Ct. 2139, 2143, 114 L. Ed.
2d 450 (1999), the Court held that "the determination of whether an individual is disabled should be made with reference to measures that mitigate the individual's impairment."
The Court in Sutton assumed, without deciding, that the regulations enacted by the Equal Employment Opportunities Commission were valid, including the definition of "physical impairment" set forth in Title 29, Section 1630(h)(1), Code of Federal Regulations. The following is the definition of physical impairment recognized by the Court in Sutton, in
relevant part: "[A] 'physical impairment' includes '[a]ny physiological disorder, or condition, cosmetic disfigurement, or anatomical loss affecting one or more of the following body systems: . . . endocrine.'" 119 S.Ct. at 2145.
The Court in Sutton relied as well on the definitions of "substantially limits" and "major life activities" contained in the regulations of the Equal Employment Opportunities Commission, as follows:
Id.
The term "substantially limits" means, among other thing, "[u]nable to perform a major life activity that the average person in the general population can perform;" or "[s]ignificantly restricted as to the condition, manner, or duration under which the average person in the general population can perform that same major life activity" (Citation omitted.) Finally, "[m]ajor [l]ife [a]ctivities means functions such as caring for oneself, performing manual tasks, walking, seeing, hearing, speaking, breathing, learning, and working."
(Citation omitted.)
The Court in Sutton observed that, in determining whether a person with a physical impairment is disabled under the Americans with Disabilities Act, the proper inquiry is whether the person is substantially limited in one or more major life activities, when the impairment is corrected or mitigated through the use of medication or corrective devices. According to the Court, the Americans with Disabilities Act requires that this determination be made for each individual with an impairment:
A person whose physical or mental impairment is corrected by medication or other measures does not have an impairment that presently "substantially limits" a major life activity. To be sure, a person whose physical or mental impairment is corrected by mitigating measures still has an impairment, but if the impairment is corrected it does not "substantially limi[t]" a major life activity.
119 S.Ct. 2146-47. See also Albertson's, Inc. v. Kirkingburg,
527 U.S. 555, 119 S.Ct. 2162, 2168, 144 L. Ed. 2d 518 (1999)("By
transforming 'significant restriction' into 'difference,' the court undercut the fundamental statutory requirement that only impairments causing 'substantial limitat[ions]' in individuals' ability to perform major life activities constitute disabilities.").
The Court in Sutton used diabetes as an example of an
impairment that must be subjected to an individualized inquiry to determine if it amounts to a disability:
The agency guidelines' directive that persons be judged in their uncorrected or unmitigated state runs directly counter to the individualized inquiry mandated by the ADA. The agency approach would often require courts and employers to speculate about a person's condition and would, in many cases, force them to make a disability determination based on general information about how an uncorrected impairment usually affects individuals, rather than on the individual's actual condition. For instance, under this view, courts would almost certainly find all diabetics to be disabled, because if they failed to monitor their blood sugar levels and administer insulin, they would almost certainly be substantially limited in one or more major life activities. A diabetic whose illness does not impair his or her daily activities would therefore be considered disabled simply because he or she has diabetes.
Thus, the guidelines approach would create a system in which persons often must be treated as members of a group of people with similar impairments, rather than as
individuals. This is contrary to both the letter and the spirit of the ADA.
Id. at 2147. Prior to the issuance of the opinion in Sutton, the courts in Moore v. City of Overland Park, 950 F. Supp. 1081
(D. Kan. 1996), and Schluter v. Industrial coils, Inc., 928 F. Supp. 1437 (W.D. Wis. 1996), considered the cases of two individuals with insulin-dependent diabetes and concluded in both cases that the individuals were not disabled because their diabetes, when corrected with medication, did not substantially limit their major life activities.
Based on the facts as found herein, the Commission has not proven by a preponderance of the evidence that Jessica is handicapped as that term is defined in Section 760.22(7), Florida Statutes. Jessica's insulin-dependent diabetes is a physical impairment, but that impairment is corrected through the use of insulin in the appropriate dosages. In its corrected state, Jessica's diabetes does not limit her ability to perform any of the major life activities contemplated under federal or Florida law. Accordingly, the Commission has failed to prove that the Association is required by Section 760.23(8) and (9), Florida Statutes, to make an exception to its regulation prohibiting pets to allow Jessica to keep her dog, even assuming that the dog is necessary to allow Jessica equal opportunity to use and enjoy her home.
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 Notice of Determination charging the Bay Country Club Association with a violation of the Florida Fair Housing Act.
DONE AND ENTERED this 17th day of February, 2000, in Tallahassee, Leon County, Florida.
PATRICIA HART MALONO
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 www.doah.state.fl.us
Filed with the Clerk of the Division of Administrative Hearings this 17th day of February, 2000.
ENDNOTES
1/ Joint Amended Stipulated Response to Prehearing Order and Order for Status Report, filed September 1, 1998.
2/ Extreme emotional stress can cause diabetics to go into a state of ketoacidosis, which can be life-threatening if not treated timely or properly.
3/ Although certain aspects of Jessica's diagnoses are similar to attention deficit hyperactivity disorder, she has not been diagnosed with this disorder.
4/ Ms. Perlstein told Jessica, in essence, "to keep the dog away from" her; Ms. Perlstein cannot remember if she told Jessica that her dog was "dead meat" because she was upset at the time and doesn't recall what she said to Jessica.
5/ Under the federal statute, 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 handicap of--
that person; or
a person residing in or intending to reside in that dwelling after it is so sold, rented, or made available; or
any person associated with that person.
For purposes of this subsection, discrimination includes--
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 except that, in the case of a rental, the landlord may where it is reasonable to do so condition permission for a modification on the renter agreeing to restore the interior of the premises to the condition that existed before the modification, reasonable wear and tear excepted.
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.
6/ Although the courts in Willis and Barth addressed claims of discrimination for failure to make reasonable accommodation for the handicapped under the Americans with Disabilities Act and Section 504 of the Rehabilitation Act of 1973, respectively, the goal and language of these provisions are similar to those of the federal and Florida Fair Housing Acts. For instance, in
Shapiro v. Cadman Towers, 51 F.3d 328, (2d Cir. 1995), the court stated, in considering a claim of handicap discrimination under the federal Fair Housing Act Amendments:
Section 504 [of the Rehabilitation Act] prohibits federally-funded programs from discriminating on the basis of handicap and requires such programs to reasonably accommodate an otherwise-qualified individual's handicaps. The legislative history of Section 42 U.S.C. Section 3604(f) [encompassing Sections 760.23(8) and (9), Florida Statutes] plainly indicates that its drafters intended to draw on case law developed under Section 504, a provision also specifically directed at eradicating discrimination against handicapped individuals.
See also United States v. California Mobile Home Park Management Co.; cf. Willis v. Conopco (reasonable accommodation claims under the ADA evaluated under the same standards as claims under Section 504 of the Rehabilitation Act).
7/ In its proposed recommended order, the Commission identified the burden of proof and the order of the production of evidence applicable in this case as that established by the United States Supreme Court in McDonnell-Douglass Corp. v. Green, 411 U.S.
792, 93 S.Ct. 1817, 36 L. Ed. 2d 668 (1978), as refined by the Court in Texas Department of Community Affairs v. Burdine, 450 U.S. 248, 101 S.Ct. 1089, 67 L. Ed. 2d 207 (1981), and in St.
Mary's Honor Center v. Hicks, 509 U.S. 502, 113 S.Ct. 2742, 125
L. Ed. 2d 407 (1993). In these three cases, the Court dealt with Title VII employment discrimination claims, and in McDonnell-Douglass and Burdine, the Court developed a three-step allocation of the burden of production of evidence. As summarized by the court in Barth v. Gelb, 2 F.3d at 1185 (D.C. Cir. 1993):
Burdine places on the plaintiff an initial burden of producing sufficient evidence to support a prima facie case of discrimination. If the plaintiff establishes a prima facie case, the burden shifts to the defendant, which must then produce evidence of an articulable non- discriminatory reason for the challenged
action. If the defendant produces such a reason, the plaintiff then bears the ultimate burden of persuading the trier of fact that the reason was pretextual and that intentional discrimination had in fact occurred.
The purpose of the three-step allocation of the burden of production of evidence in McDonnell-Douglass and Burdines is to assist the plaintiff in proving unlawful discrimination when proof of discriminatory intent or motivation is required.
Because the Court recognized that it is very difficult to prove discriminatory intent or motivation, the prima facie case of discrimination prescribed in McDonnell-Douglass and Burdine requires only that the plaintiff establish that he or she is a member of the protected class and has been denied the benefits available under the law. See St. Mary's Honor Center, 113 S.Ct at 2746-49; Barth v. Gelb, 2 F.3d at 1185-86.
Several federal courts have adopted and applied the McDonnell- Douglass/Burdine allocation of the burden of production used in Title VII employment discrimination cases to cases involving discrimination arising under the federal Fair Housing Act and the 1988 amendments that, inter alia, prohibited discrimination against the handicapped. However, as illustrated by Barth and Willis, a different approach has emerged in the context of discrimination claims involving reasonable accommodation for the handicapped.
COPIES FURNISHED:
Alvin N. Weinstein, Esquire Arthur J. Morburger, Esquire Weinstein, Bavly & Moon, P.A. 920 Biscayne Building
19 West Flagler Street Miami, Florida 33130
Ivan and Rebeca Gabor 17720 North Bay Road Apartment 110
North Miami Beach, Florida 33160
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.
| Issue Date | Proceedings |
|---|---|
| Jun. 30, 2004 | Order Accepting Petitioner`s Exceptions to the Administrative Law Judge`s Recommended Order and Remanding Case for Further Consistent Findings filed. |
| Jan. 08, 2001 | Response to Petitioner`s Exceptions to Recommended Order filed. |
| Mar. 13, 2000 | (Respondent) Objections to Petitioner`s Motion for Extension of Time to "File Exceptions" filed. |
| Feb. 17, 2000 | Recommended Order sent out. CASE CLOSED. Hearing held 9/28/99. |
| Feb. 02, 2000 | Letter to Judge Malono from A. Weinstein (RE: notice of errors in Proposed Findings) filed. |
| Feb. 01, 2000 | (Petitioner) Notice of Withdrawal filed. |
| Jan. 31, 2000 | (A. Weinstein) Proposed Findings of Fact, Conclusions of Law, and Recommended Order (For Judge Signature) filed. |
| Jan. 21, 2000 | Petitioner`s Proposed Recommended Order (For Judge Signature) filed. |
| Jan. 20, 2000 | Order Extending Time for Filing Proposed Recommended Orders sent out. (parties shall file their proposed recommended orders by 1/31/00) |
| Jan. 14, 2000 | (Respondent) Motion for Extension of Time filed. |
| Jan. 10, 2000 | Second Amended Order Extending Time for Filing Proposed Recommended Orders sent out. (proposed orders shall be filed by 1/21/00) |
| Jan. 03, 2000 | Petitioners` Second Motion for Extension of Time to File Proposed Recommended Order (filed via facsimile). |
| Dec. 30, 1999 | Respondent`s Motion for Extension of Time to Submit a Proposed Recommended Order filed. |
| Dec. 03, 1999 | Amended Order Extending Time for Filing Proposed Recommended Orders sent out. (proposed recommended orders shall be filed by 1/3/99) |
| Nov. 30, 1999 | Order Extending Time for Filing Proposed Recommended Orders sent out. (proposed orders shall be filed by 1/3/2000) |
| Nov. 23, 1999 | Petitioners` Motion for Extension of Time to File Proposed Recommended Order filed. |
| Nov. 19, 1999 | (A. Weinstein) Motion for Extension of Time to Submit a Proposed Recommended Order of Fact filed. |
| Nov. 04, 1999 | Transcript filed. |
| Nov. 01, 1999 | Letter to Judge Malono from A. Weinstein Re: Transcript filed. |
| Sep. 28, 1999 | CASE STATUS: Hearing Held. |
| Sep. 07, 1999 | (3) Subpoena ad Testificandum (E. Golden); (3) Return of Service filed. |
| Sep. 07, 1999 | (E. Golden) Amended Notice of Taking Videotaped Deposition (as to videographer only) filed. |
| Sep. 03, 1999 | Order Denying Motion for Protective Order sent out. |
| Aug. 31, 1999 | Petitioners` Motion for Protective Order (filed via facsimile). |
| Aug. 30, 1999 | Subpoena ad Testificandum; Return of Service (A. Weinstein) filed. |
| Aug. 27, 1999 | (E. Golden) Notice of Taking Videotaped Deposition filed. |
| Aug. 26, 1999 | (A. Weinstein) Re-Notice of Taking Deposition (As to time only) filed. |
| Aug. 25, 1999 | (Respondent) (2) Notice of Taking Deposition filed. |
| Aug. 20, 1999 | Respondent`s Supplemental Witness List filed. |
| Aug. 16, 1999 | (E. Golden) Amendment to Petitioners` Witness List filed. |
| Jul. 26, 1999 | (A. Weinstein) Re-Notice of Taking Videotaped Deposition (This cancels depo previously set for 8/3/99 at 2:00 p.m.) filed. |
| Jul. 20, 1999 | Order sent out. (because the 7/14/99 order continued and rescheduled the final hearing, the pleadings under consideration are moot and require no further comment) |
| Jul. 15, 1999 | (Respondent) Notice of Taking Videotaped Deposition; Respondent`s Motion to Strike Petitioner`s Counsel`s Motion to Strike filed. |
| Jul. 14, 1999 | Order Granting Continuance and Re-scheduling Hearing sent out. (hearing set for September 28 and 29, 1999; 9:00am; Miami) |
| Jul. 13, 1999 | (Respondent) Response to Petitioner`s Objection to Respondent`s Motion for Continuance filed. |
| Jul. 12, 1999 | Petitioner`s Motion to Strike (filed via facsimile). |
| Jun. 29, 1999 | Petitioner`s Objection to Respondent`s Motion for Continuance (filed via facsimile). |
| Jun. 23, 1999 | Respondent`s Motion for Continuance filed. |
| May 21, 1999 | Order Re-scheduling Hearing sent out. (hearing set for August 18 and 19, 1999; 9:00am; Miami) |
| May 14, 1999 | Petitioner`s Status Report (filed via facsimile). |
| Apr. 28, 1999 | Order Granting Continuance and Cancelling Hearing sent out. (parties shall file status report by 5/14/99) |
| Apr. 21, 1999 | Petitioner`s Motion for Continuance of Formal Hearing filed. |
| Mar. 23, 1999 | Letter to Official Reporting Service from B. Ladrie sent out. (requesting services of court reporter) |
| Jan. 14, 1999 | Order Rescheduling Hearing sent out. (hearing set for May 4-5, 1999; 10:30am; Miami) |
| Dec. 21, 1998 | Petitioners` Response to Order Requiring Status Report (filed via facsimile). |
| Dec. 08, 1998 | Subpoena ad Testificandum (A. Weinstein); Return of Service filed. |
| Dec. 03, 1998 | Order Granting Continuance, Cancelling Hearing, and Requiring Status Report sent out. (12/4/98 hearing cancelled; parties to file status report by 12/18/98) |
| Dec. 03, 1998 | (A. Weinstein) Subpoena ad Testificandum; Return of Service filed. |
| Dec. 01, 1998 | (Respondent) Motion for Relief and/or Continuance (filed via facsimile). |
| Nov. 30, 1998 | (A. Weinstein) 4/Subpoena ad Testificandum filed. |
| Nov. 30, 1998 | (Defendant) Notice of Taking Video Deposition for Trial filed. |
| Nov. 24, 1998 | Petitioner`s Exhibits (filed via facsimile). |
| Oct. 28, 1998 | (E. Golden) Notice of Service and Filing of Response to Respondents` Interrogatories; Interrogatories filed. |
| Oct. 09, 1998 | Order Granting in Part and Denying in Part Respondent`s Motion to Compel sent out. |
| Oct. 06, 1998 | Respondent`s Answer to Petitioner`s Response to Second Motion to Compel (filed via facsimile). |
| Oct. 01, 1998 | Petitioner`s Response to Respondent`s Second Motion to Compel filed. |
| Sep. 23, 1998 | Respondent`s Motion to Compel filed. |
| Sep. 22, 1998 | Letter to Court Reporter from Judge`s Secretary (re: confirmation of court reporting services to be rendered) sent out. |
| Sep. 21, 1998 | Order Denying Motion to Compel sent out. |
| Sep. 21, 1998 | Order Rescheduling Hearing sent out. (hearing set for 12/4/98; 9:00am; Miami) |
| Sep. 10, 1998 | (Petitioner) Notice of Service and Filing of Response to Respondents` Interrogatories (filed via facsimile). |
| Sep. 04, 1998 | Respondent`s Motion to Compel filed. |
| Sep. 01, 1998 | Amended Joint Stipulated Response to Prehearing Order and Order for Status Report (filed via facsimile). |
| Aug. 04, 1998 | (E. Golden) Notice of Absence From Jurisdiction filed. |
| Jul. 22, 1998 | (Respondent) Notice of Service of Interrogatories to Petitioners filed. |
| Jul. 22, 1998 | (Respondent) Notice of Taking Deposition Duces Tecum for Up to Date Medical Records; (3) Subpoena Duces Tecum filed. |
| Jul. 20, 1998 | (Respondent) Notice of Serving Sworn Answers to Interrogatories filed. |
| Jul. 16, 1998 | Joint Stipulated Response to Prehearing Order filed. |
| Jul. 16, 1998 | Order Denying Motion for Order Compelling Discovery, Granting Continuance, and Canceling Hearing sent out. (parties to file status report by 7/31/98) |
| Jul. 15, 1998 | (Respondent) Notice of Serving Unsworn Answers to Interrogatories filed. |
| Jul. 10, 1998 | (Respondent) Notice of Taking Deposition; (2) Subpoena for Deposition; (2) Return of Service filed. |
| Jul. 09, 1998 | Petitioner`s Motion for Continuance (filed via facsimile). |
| Jul. 09, 1998 | Petitioner`s Motion to Compel Response to Interrogatories (filed via facsimile). |
| Jul. 06, 1998 | (Respondent) Stipulation filed. |
| Jun. 09, 1998 | (Respondent) Notice of Taking Deposition ** Duces Tecum **; Subpoena Duces Tecum; Return of Service filed. |
| May 14, 1998 | (2) Subpoena Duces Tecum (from A. Weinstein); (2) Return of Service; Notice of Taking Deposition ** Duces Tecum ** filed. |
| May 05, 1998 | (Petitioner) Notice of Propounding Interrogatories filed. |
| Apr. 01, 1998 | Notice of Hearing by Video sent out. (Video Final Hearing set for 7/21/98; 9:00am; Miami & Tallahassee) |
| Apr. 01, 1998 | Letter to Court Reporter from Judges` Secretary sent out. (re: services for hearing) |
| Apr. 01, 1998 | Prehearing Order sent out. |
| Feb. 10, 1998 | Joint Stipulated Response to Initial Order (filed via facsimile). |
| Jan. 28, 1998 | Initial Order issued. |
| Jan. 21, 1998 | Notice Of Request For Formal Hearing; Complaint; Notice Of Determination: Cause And Issuance Of An Administrative Charge; Legal Concurrence: Cause; Record Of Disposition filed. |
| Issue Date | Document | Summary |
|---|---|---|
| Apr. 19, 2001 | Remanded from the Agency | |
| Feb. 17, 2000 | Recommended Order | Florida Commission on Human Relations failed to prove by a preponderance of evidence that child was disabled. Florida`s Fair Housing Act does not apply, and Notice of Determination should be dismissed. |
