STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

CAROL GOLD, )

)

Petitioner, )

)

vs. )

) LARRY SHEEHAN AND TOM GRIFFIS, )

)

Respondents. )

Case No. 03-2669

)

RECOMMENDED ORDER

On October 22, 2003, an administrative hearing in this case was held in Sarasota, Florida, before William F. Quattlebaum, Administrative Law Judge, Division of Administrative Hearings.

APPEARANCES

For Petitioner: Carol Gold, pro se

3917 Woodrow Street

Sarasota, Florida 34233

For Respondents: Larry Sheehan, pro se

Tom Griffis, pro se 1801 Glengary Street

Sarasota, Florida 34685 STATEMENT OF THE ISSUE

The issue in the case is whether the Respondents discriminated against the Petitioner on the basis of familial status in the sale of her condominium.

PRELIMINARY STATEMENT

By Housing Discrimination Complaint filed with the Florida Commission on Human Relations, Carol Gold (Petitioner) alleged that she was the subject of discrimination on the basis of familial status in the sale of her condominium. By Determination of No Reasonable Cause dated June 12, 2003, the Florida Commission on Human Relations (FCHR) advised the Petitioner that the case had been dismissed. The Petitioner filed a Petition for Relief, which the FCHR forwarded to the Division of Administrative Hearings for further proceedings.

At the hearing, the Petitioner testified on her own behalf and had Exhibits numbered 1 through 3 admitted into evidence.

The Respondents testified on their own behalf.

No transcript of the hearing was filed. The Petitioner filed a post-hearing document that has been treated as a Proposed Recommended Order.

All citations are to Florida Statutes (2003) unless otherwise indicated.

FINDINGS OF FACT

1. At all times material to this case, the Petitioner was the owner of a condominium unit located at 3350 Thornwood Road within the Crooked Creek condominium development in Sarasota, Florida.

2. In May 2003, the Petitioner decided to sell her unit.

3. At the time of the Petitioner's sale, Respondent Larry Sheehan was president of the Crooked Creek Owner's Association.

4. At the time of the Petitioner's sale, Respondent Tom Griffis was the manager of the Crooked Creek Owner's Association.

5. The Petitioner received more than one offer to purchase her unit. The Petitioner claims that one of the offers came from a prospective buyer who had a child under the age of 14.

6. Section XI(d) of the Crooked Creek Declaration of Condominium provides as follows:

   No children under the age of 14 shall occupy units, except for temporary houseguests and visitors. A "temporary" occupant shall mean one that occupies such Unit for no more than 30-days in any one calendar year.

   Permission for a longer period of occupancy (but no more than 90 days) may be given by the Board of Directors.

   
   

7. The Petitioner asserts that the alleged prospective buyer withdrew the offer to purchase the unit based on the cited Section of the Declaration of Condominium. The prospective buyer did not testify at the hearing.

8. There is no evidence that the alleged prospective buyer had any discussion about the cited Section of the Declaration of Condominium with either of the Respondents. There is no evidence that the Petitioner discussed the cited Section with either of the Respondents, either before her unit was offered

   for sale or during the transaction with the alleged prospective buyer.

9. The evidence establishes that there are children living in the Crooked Creek condominium development. There is no evidence that the condominium association enforces the cited Section of the Declaration of Condominium. There is no evidence that there has been any attempt to enforce the cited Section in this case by the Respondents or by any other party.

10. The Petitioner sold her condominium unit to another buyer. For reasons that are unclear, the buyer who purchased the Petitioner's unit made the offer to the Petitioner and was approved for purchase by the condominium's board of directors prior to the date of the contract from the prospective buyer who allegedly withdrew the offer. In any event, there is no evidence that the Petitioner suffered any damage, financial or otherwise, based on the allegedly withdrawn offer.

    CONCLUSIONS OF LAW

    
    

11. The Division of Administrative Hearings has jurisdiction over the parties to and subject matter of this proceeding. Sections 120.569 and 120.57(1).

12. The Petitioner asserts that she was discriminated against on the basis of familial status in the sale of her condominium unit. Section 760.23(2) 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 therewith, because of race, color, national origin, sex, handicap, familial status, or religion.

    
    

13. Section 760.22(5) defines familial status to mean those situations where "an individual who has not attained the age of 18 years is domiciled with: (a) A parent or other person having legal custody of such individual; or (b) A designee of a parent or other person having legal custody, with the written permission of such parent or other person."

14. Although there is an exception to the prohibition against discrimination on the basis of familial status under certain circumstances related to designation of a community under Section 760.29(4) as "housing for older persons," the parties agree that the Crooked Creek condominium is not a community designated as "housing for older persons."

15. The Petitioner has the burden of establishing by a preponderance of the evidence that the Respondents discriminated against her in the sale of her condominium unit. Sections 120.57(1)(j) and 760.34(5). In this case, the burden has not been met.

16. The evidence fails to establish that either of the Respondents discriminated against the Petitioner in the sale of her condominium unit. There is no evidence that the Petitioner

    and either of the Respondents discussed this matter at any time prior to the sale of her condominium unit. There is no evidence that the Petitioner or the alleged prospective buyer inquired of the Respondents as to whether the cited Section of the Declaration of Condominium was being or would be enforced.

    There is no evidence that any attempt was made by any party to enforce the provision of the condominium document.

17. Although the Petitioner asserts that she "lost a sale" because the cited Section in the Declaration of Condominium, given the timing of the sales transaction by which the property was sold, there is no credible evidence that the Petitioner was damaged in any way by any actions of the Respondents.

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 Petition for Relief filed by Carol Gold in this case.

DONE AND ENTERED this 7th day of November, 2003, in Tallahassee, Leon County, Florida.

S

WILLIAM F. QUATTLEBAUM

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 7th day of November, 2003.

COPIES FURNISHED:

Denise Crawford, Agency Clerk Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100

Tallahassee, Florida 32301

Carol Gold

3917 Woodrow Street

Sarasota, Florida 34233

Larry Sheehan Tom Griffis

1801 Glengary Street

Sarasota, Florida 34685

Cecil Howard, General Counsel Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100

Tallahassee, Florida 32301

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: 03-002669

Orders for Case No: 03-002669