STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

ELIZABETH C. O'DONNELL, )

)

Petitioner, )

)

vs. )

)

BARBARA BROWN AND NAPLES ) ESTATES HOMEOWNERS ASSOCIATION, )

)

Respondents. )

Case No. 01-4346

)

RECOMMENDED ORDER

Pursuant to notice, a formal hearing was conducted in this case on January 8, 2002, in Naples, Florida, before Lawrence P. Stevenson, a duly-designated Administrative Law Judge of the Division of Administrative Hearings.

APPEARANCES

For Petitioner: Elizabeth C. O'Donnell, pro se

486 Maplewood Lane Naples, Florida 34112

For Respondents: Lee Jay Colling, Esquire

Lee Jay Colling & Associates, P.A. 682 Maitland Avenue

Altamonte Springs, Florida 32701 STATEMENT OF THE ISSUES

The issues presented for decision are whether Respondents discriminated against Petitioner Elizabeth C. O'Donnell because of her disability in violation of the Fair Housing Act.

PRELIMINARY STATEMENT

On June 26, 2001, Petitioner filed a Housing Discrimination Complaint (the "Complaint") against Respondents, alleging that she was disabled within the meaning of the Fair Housing Act, Sections 804 and 818 of Title VIII of the Civil Rights Act of 1968, as amended (codified at 42 U.S.C. Sections 3604 and 3617). The Complaint alleged that Respondents had been unwilling to accommodate Petitioner's disabling condition. The Complaint was originally filed with the Federal Department of Housing and Urban Development pursuant to 42 U.S.C. Subsection 3610(a)(1)(A), and referred to the Florida Commission on Human Relations (the "Commission") pursuant to 42 U.S.C. Subsection 3610(f).

The Commission conducted an investigation of the Complaint.

By letter dated September 21, 2001, the Commission notified Petitioner of its determination that reasonable cause did not exist to believe that a discriminatory housing practice had occurred, and that the Complaint would be dismissed. The Commission's letter provided notice of Petitioner's right to pursue judicial and administrative remedies.

Petitioner timely filed her Petition for Relief with the Commission. On November 7, 2001, the Commission referred the matter to the Division of Administrative Hearings for assignment of an Administrative Law Judge to conduct a formal

administrative hearing. The case was scheduled for hearing on December 13, 2001. Respondents' motion for continuance was granted, and the case was rescheduled for January 8, 2002.

At the final hearing, Petitioner testified on her own behalf and presented the testimony of William Bible, Sr.; Ralph Pica; Gordon Weidler; Morton Stein; and Pauline Tuttle, all residents of Naples Estates Mobile Home Park. Petitioner's Exhibit 1 was admitted into evidence.

Respondents presented the testimony of Barbara Brown, the president of Naples Estates Homeowners Association; Carol Kujawa, a Naples Estates resident and board member of the homeowners association; Robert St. Pierre, a Naples Estates resident and informal adviser to the homeowners association; and Jack Setser, a Naples Estates resident. Respondents' Exhibits 1 through 7 were admitted into evidence.

No transcript of the final hearing was ordered. At the close of the hearing, the parties agreed that their proposed recommended orders would be filed no later than January 23, 2002. Neither party filed a proposed recommended order.

FINDINGS OF FACT

Based on the oral and documentary evidence adduced at the final hearing and the entire record in this proceeding, the following findings of fact are made:

1. The Commission is the state agency charged with investigating complaints of discriminatory housing practices and enforcing Florida’s Fair Housing Act, Sections 760.20 through 760.37, Florida Statutes. The Commission is charged with investigating fair housing complaints filed with the Commission and with the federal Department of Housing and Urban Development ("HUD") under the federal Fair Housing Act, 42 U.S.C. Section 3601 et seq.

2. Petitioner, Elizabeth C. O'Donnell, is a resident of the Naples Estates Mobile Home Park ("Naples Estates") in Naples. She lives there with her husband, Roger O'Donnell.

3. Respondent Barbara Brown is president of the Naples Estates Homeowners Association, Inc.

4. Respondent, Naples Estates Homeowners Association, Inc. (the "Association"), is a not-for-profit Florida corporation formed pursuant to the homeowners association section of Chapter 723, Florida Statutes, the Mobile Home Act. Section 723.075, Florida Statutes.

5. The Association owns no real property, has no interest directly or indirectly in real property, and receives no income other than the dues paid by its members. The dues are remitted voluntarily; the Association has no power to impose liens or otherwise enforce collection. The Association owns some personal property, such as the television in the Naples Estates

   clubhouse, but exercises no control over the real property of Naples Estates.

6. Naples Estates is owned by Naples Estates Limited Partnership, a Florida limited partnership whose principals and officers reside in California. Naples Estates is operated by Cal-Am Properties, Inc., a management company.

7. Residents of Naples Estates own their mobile homes and pay rent to the owners for spaces in the park and use of the common areas.

8. Petitioner alleged that she suffers from a disability in that she is hearing impaired, and that she needs to tape record the Association's monthly meetings so that she can listen to them with the aid of headphones. She alleged that the Association denied her request, thus impeding her ability to participate in the Association's meetings. She alleged that this denial constituted a failure to provide a reasonable accommodation under the Fair Housing Act.

9. The evidence admitted at the hearing established that the Association is involved in civil litigation with the owners of Naples Estates, the details of which are of no import to this case. The evidence also established that a faction of the Naples Estates residents, including Petitioner, oppose the Association's pursuit of this litigation.

10. The Association has forbidden members to tape record its monthly meetings, for fear that the tapes would be passed on to the owners of Naples Estates and reveal litigation strategy. The Association secretary tape records the meetings. Residents are allowed to listen to the tapes, but not to copy them.

11. The Association offered to make the tapes available at Petitioner's convenience, and to allow Petitioner to play them on her own equipment, provided the tapes were not taken outside the custody of the Association secretary. If Petitioner was uncomfortable listening to the tapes in the secretary's home, then the secretary would make the tapes available to her in the Naples Estates clubhouse. Petitioner rejected this offer, insisting that she needed her own tapes.

12. Petitioner offered no medical evidence to establish her disability. Several Naples Estates residents testified that they have regularly interacted with Petitioner and never knew she was hearing impaired. Ms. Brown observed Petitioner at several Association meetings. Petitioner sat in the back of the room and never complained that she could not hear. However, based upon the undersigned's observation of Petitioner at the hearing, it is found that she is hearing impaired to some degree.

    CONCLUSIONS OF LAW

    
    

13. The Division of Administrative Hearings has jurisdiction in this proceeding pursuant to Subsection 120.57(1), Florida Statutes.

14. Petitioner's Complaint alleges that Respondents failed to accommodate her disability.

15. Subsection 760.23(2), Florida Statutes, provides:

    
    

    It is unlawful to discriminate against any person in the terms, conditions, or privileges of sale or rental of a dwelling, or in the provision of services or facilities in connection therewith, because of race, color, national origin, sex, handicap, familial status, or religion.

    
    

16. Subsection 760.23(8), Florida Statutes, provides:

    
    

    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:

    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.

17. Subsection 760.23(9), Florida Statutes, provides, in relevant part:

    For purposes of subsections (7) and (8), discrimination includes:

    
    

    * * *

    (b) 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.

    
    

18. 42 U.S.C. Subsection 3604(f)(3)(B) defines unlawful discrimination to include a refusal to make reasonable accommodations in rules, policies, practices, or services, when such accommodations may be necessary to afford a handicapped person equal opportunity to use and enjoy a dwelling.

19. To establish a prima facie case of failure to make a reasonable accommodation under 42 U.S.C. § 3604(f)(3), Petitioner must show:

    1. that he suffers from a handicap;

       
       

    2. that Sentinel knew of the handicap;

       
       

    3. that an accommodation of the handicap was necessary to afford Petitioner an equal opportunity to use and enjoy the housing in question; and

       
       

    4. Sentinel refused to make such an accommodation.

    
    

    Schanz v. Village Apartments, 998 F. Supp. 784, 791 (E.D. Mich. 1998); U.S. v. California Mobile Home Park Mgmt Co., 107 F.3d 1374, 1380 (9th Cir. 1997).

20. Petitioner's claim that the Association improperly failed to make a "reasonable accommodation" in violation of state and federal housing law fails at the threshold because it

    does not relate to her use and enjoyment of a dwelling. The Association is a voluntary membership organization lacking any power to interfere with Petitioner's use and enjoyment of her dwelling. The requested accommodation is unrelated to "the terms, conditions, or privileges of sale or rental of a dwelling, or . . . the provision of services or facilities in connection therewith." In short, Petitioner's claim does not invoke the terms of the state or federal Fair Housing Act.

21. Even if her claim were colorable under the Fair Housing Act, Petitioner failed to establish that the Association denied her an accommodation. All residents, whether handicapped or not, are forbidden to tape record Association meetings. The Association itself tapes the meetings, and allows any resident to listen to the tapes. The Association specifically offered to make the tapes available to Petitioner at the location of her choosing. Petitioner failed to demonstrate why this arrangement was unreasonable or constituted discrimination on the basis of her handicap.

22. Section 760.22, Florida Statutes, provides in relevant part:

    (7) "Handicap" means:

    
    

    1. 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

       
       

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

    
    

    This definition is virtually identical to those found in the federal Fair Housing Act, 42 U.S.C. Subsection 3602(h)(defining "handicap"); the Americans with Disabilities Act, 42 U.S.C. Subsection 12102(2)(A)(defining "disability"); and the Rehabilitation Act, 29 U.S.C. Subsection 705(9)(B)(defining "disability"). Under the term "handicap" or "disability," each of these laws provides relief only to a person with an impairment that substantially limits a major life activity.

23. The United States Supreme Court has 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."

24. 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:

    The term "substantially limits" means, among other things, "[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.]

    
    

    Sutton, 119 S. Ct. at 2145.

    
    

25. 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 "disability" exists only where an impairment "substantially limits" a major life activity, not where it "might," "could," or "would" be substantially limiting if mitigating measures were not taken. 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.

    Id. at 2146-47. See also Albertson's, Inc. v. Kirkingburg, 527 U.S. 555, 119 S. Ct. 2162, 2168, 144 L. Ed. 2d 518 (1999)(Error

    for lower court to hold that a "mere difference" in ability met the statutory definition: "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.")

26. In the instant case, the evidence established that Petitioner suffered from some unspecified degree of hearing impairment. The evidence was insufficient to establish that Petitioner was substantially limited in her ability to perform a major life activity and therefore disabled in terms of the relevant statutes. Thus, Petitioner's claim fails to meet the first prong of the prima facie "reasonable accommodation" test set forth in the cases applying 42 U.S.C. Subsection 3604(f)(3).

27. Even if the evidence had been sufficient to demonstrate that Petitioner suffered from a disability, Petitioner did not present persuasive evidence that the Association or its agents were aware of her disability, thus failing to meet the second prong of the "reasonable accommodation" test. The testifying witnesses were unaware, and in some cases skeptical, that Petitioner was hearing impaired.

28. Petitioner's claim also fails to meet the third and fourth prongs of the "reasonable accommodation" test. Petitioner failed to demonstrate how the accommodation of tape recording meetings of a voluntary homeowners association was necessary to afford her an equal opportunity to use and enjoy the housing in question. As noted above, the Association made reasonable efforts to accommodate Petitioner's handicap by offering its own tapes of the meetings to Petitioner for listening at her convenience.

RECOMMENDATION

Upon the foregoing Findings of Fact and Conclusions of Law, it is recommended that the Florida Commission on Human Relations enter a final order dismissing Petitioner's Complaint and Petition for Relief.

DONE AND ENTERED this 4th day of February, 2002, in Tallahassee, Leon County, Florida.

LAWRENCE P. STEVENSON

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 4th day of February, 2002.

COPIES FURNISHED:

Elizabeth C. O'Donnell

486 Maplewood Lane Naples, Florida 34112

Lee Jay Colling, Esquire

Lee Jay Colling & Associates, P.A. 682 Maitland Avenue

Altamonte Springs, Florida 32701

Denise Crawford, Agency Clerk Florida Commission on Human Relations

325 John Knox Road Building F, Suite 240

Tallahassee, Florida 32303-4149

Cecil Howard, 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.

Docket for Case No: 01-004346

Orders for Case No: 01-004346