STATE OF FLORIDA
DIVISION OF ADMINISTRATIVE HEARINGS
MARIA O'CONNOR, )
)
Petitioner, )
)
vs. ) Case No. 03-4844
)
SANTA MONICA CONDOMINIUM )
ASSOCIATION, INC., ) RAY MILEWSKY, AND FRANK GARCIA, )
)
Respondents. )
)
RECOMMENDED ORDER
Pursuant to notice, a hearing was conducted in this case pursuant to Sections 120.569 and 120.57(1), Florida Statutes, on February 24, 2004, by video teleconference at sites in Fort Lauderdale and Tallahassee, Florida, before Stuart M. Lerner, a duly-designated Administrative Law Judge of the Division of Administrative Hearings.
APPEARANCES
For Petitioner: Maria O'Connor, pro se
1425 Arthur Street, No. 408
Hollywood, Florida 33020
For Respondents: Charles F. Otto, Esquire
3990 Sheridan Street, Suite 109
Hollywood, Florida 33021
STATEMENT OF THE ISSUE
Whether Petitioner's Petition for Relief from a Discriminatory Housing Practice (Petition for Relief) filed against Respondents should be granted by the Florida Commission on Human Relations (Commission).
PRELIMINARY STATEMENT
On November 7, 2002, Petitioner filed a signed and dated (October 28, 2002) housing discrimination complaint with the Commission. The complaint was docketed by the Commission as Case Number 22-91564E. It read as follows:
Complainants
Maria O'Connor
1425 Arthur Street, #408
Hollywood, FL 33020
Other Aggrieved Persons
Grand Daughter
The following is alleged to have occurred or is about to occur:
Discriminatory terms, conditions, privileges in services and facilities
The alleged violation occurred because of:
Handicap and Familial Status
Address and location of the property in question (or if no property is involved, the city and state where the discrimination occurred):
1425 Arthur Street, #408
Hollywood, FL 33020
Respondent(s)
Santa Monica Condominium Association Ray Milewski-President
1425 Arthur Street, Apt. #411
Hollywood, FL 33020
The following is a brief and concise statement of the facts regarding the alleged violation:
I am handicapped, a guardian of a minor, and a member of a protected class. My Grand-daughter and I are being treated unfairly by the President of the Condominium Association, Ray Milewski. He has told new tenants to "watch out for me," and he has called my 12 year old Grand-daughter derogatory names.
The disabled parking spot was covered up by him, and replaced with a guest only sign, when I asked him about the sign, since I need to have a handicapped parking spot for my disability, he told me to "drop dead." I feel that we are being treated this way because of my Grand-daughter[']s age and because of my disability. I feel that this is a violation of the Fair Housing Act as amended.
The most recent date on which the alleged discrimination occurred:
September 30, 2002
Types of Federal Funds identified: None
The acts alleged in this complaint, if proven, may constitute a violation of the following:
Sections 804b of Title VIII of the Civil Rights Act of 1968 as amended by the Fair Housing Act of 1988
Florida Statutes 760.23(2)
On or after December 31, 2002, Petitioner filed a signed and dated (December 31, 2002) housing discrimination complaint with the United States Department of Housing and Urban Development, Office of Fair Housing and Equal Opportunity (HUD). The complaint was docketed by HUD as Case Number 04-03-0223-8.
It was identical to the complaint that Petitioner had filed with the Commission, except for items 2, 4, 6, and 10, which read as follows:
2. Other Aggrieved Persons
None
4. The alleged violation occurred because of:
Handicap.
It is alleged that the respondent coerced, intimidated, threatened, or interfered with a person in the exercise or enjoyment of fair housing rights or assisting another in enjoying such rights.
6. Respondent(s)
Ray Milewski
Santa Monica Condominium Association 1425 Arthur Street, Apt. #411
Hollywood, FL 33020
Representing Ray Milewski:
Charles Otto, Esq.
Phone: 954-962-3138 Fax:
Frank Garcia
Santa Monica Condo Assn. 1425 Arthur Street
Hollywood, FL 33020
10. The acts alleged in this complaint, if proven, may constitute a violation of the following:
Sections 804b of Title VIII of the Civil Rights Act of 1968 as amended by the Fair Housing Act of 1988
This complaint was "dual-filed" with the Commission.
On September 19, 2003, following the completion of its investigation of Petitioner's allegations of housing discrimination, the Commission issued a Determination of No Reasonable Cause.
Petitioner, on October 20, 2003, filed with the Commission a Petition for Relief. In her petition, Petitioner identified "Santa Monica Condo. Ass. Inc., Ray Milewski & Frank Garcia" as the Respondents and alleged that they had "violated the Florida Fair Housing Act, as amended, in the [following] manner":
Granddaughter and I told to move. Granddaughter called derogatory names. Has
made my granddaughter afraid to use catwalks. Allows others to go to pool area & sit, swim and enjoy, not my granddaughter. Has called me names in granddaughter's presence. Gum and trash thrown at my door which Ray Milewski has walked around not sending man to clean as he would do for other owners. Others can fight on cat walk including Board members. We are told to shut up if we hum.
On December 24, 2003, the Commission referred the matter to the Division of Administrative Hearings (Division) for the assignment of a Division Administrative Law Judge to conduct a hearing on the allegations in Petitioners' Petition for Relief. Along with a written Transmittal of Petition, the Commission sent the Division the Commission's Determination of No Reasonable Cause and the complaint Petitioner had filed with HUD. The Commission's Transmittal of Petition listed in its style Ray Milewski and Frank Garcia, but not the Santa Monica Condominium Association, Inc., as respondents. The Santa Monica Condominium Association, Inc., however, has been denominated as a respondent by Petitioner, and the style of this Recommended Order so reflects.
As noted above, the final hearing in this case was held on February 24, 2004. Seven witnesses (all called by Petitioner) testified at the hearing: Lillie Charles, Stephen Moretti, Debra Conde, Genoveva Barragan, Jeanna Moretti, Jolene Moretti, and Petitioner. In addition, 16 exhibits (Petitioner's Exhibits
1, 2, 3, 4, 5, 6, 8a, 8b, 9, 10, 11, 12, and 13, and
Respondents' Exhibits 1, 2, and 3) were offered and received into evidence.
Following the conclusion of the evidentiary portion of the hearing on February 24, 2004, the undersigned established a March 16, 2004, deadline for the filing of proposed recommended orders.
On March 15, 2004, Petitioner filed a post-hearing submittal, which read as follows:
In accordance with your request, below is a list of my recommendations that I would like you to address:
Use of the disabled parking space whenever necessary.
Any/and all harassment toward me and my grand-daughter is to be stopped.
Compensation for emotional distress caused by the respondent. The amount to be determined by the Court.
Compensation for emotional distress to my grand-daughter caused by the respondents.
The amount to be determined by the Court.
Reimbursement for attorney fees paid to Charles Otto, representing the Santa Monica Condominium Association, Inc. in the amount of $8,666.00[], together with Philips, Eisinger, Kass & Brown in the total amount of $6,975.84, and Steven Mason in the amount of $1,800.00, based on the decision of the arbitrator. Please see attached cancelled check[s].[1]
Reimbursement for costs, i.e., photocopies, postage and long distance phones.
Payment for property damage to motor vehicle due to retaliation whenever the court denied any/all motions.
Respondent filed their Proposed Recommended Order on March 16, 2004.
FINDINGS OF FACT
Based on the evidence adduced at the final hearing and the record as a whole, the following findings of fact are made: The Parties
Petitioner is a 75-year-old woman who lives with her 13-year-old granddaughter, Jeanna Moretti, in a fourth-floor apartment (apartment number 408B) in Building B of the Santa Monica Condominium development (Santa Monica).
Santa Monica is a 75-unit multi-family condominium development, with elevatored buildings, located in Hollywood, Florida.
Petitioner has lived at Santa Monica since 1990.
Jeanna has resided with her for the past ten years.
There are other children (under 18 years of age), besides Jeanna, who live at Santa Monica.
The Santa Monica Condominium Association, Inc. (Association) is vested with the authority to manage and oversee the condominium property at Santa Monica. Its authority
includes the power to regulate the use of the common elements. Among the areas over which it is empowered to exercise control are the catwalks, elevators, trash and storage rooms, pool area, and parking lots.
The Association is governed by a board of directors.
Until recently, Ray Milewski was on the Association's board of directors and served as its president. Among those who served on the board with Mr. Milewski were Frank Garcia and Gretchen Powell.
Mr. Milewski, who is approximately 55 years of age, lives on the same floor as Petitioner (in apartment number 411B). He shares his apartment with his girlfriend, Arlene Kelleher.
Petitioner's and Ray Milewski's Acrimonious Relationship
Since the time he assumed the presidency of the Association, Mr. Milewski has had a fractious relationship with Petitioner and Jeanna.
In his dealings with Petitioner and Jeanna, Mr.
Milewski has conducted himself in a manner that has upset them.
He has been rude to them and called them unflattering, derisive, and vulgar names. Some of the name-calling directed at Jeanna has come in response to her whistling in his presence.
He has entered Petitioner's apartment without permission when the front door was open.
He has walked back and forth on the catwalk outside of Petitioner's kitchen window seemingly trying to listen in to what was going on in the apartment, and he has made nasty comments to Petitioner through the window.
Petitioner and Jeanna, for their part, have acted in a manner that has irritated Mr. Milewski and others in the development.
The Arbitration Proceeding
On March 31, 2002, when Mr. Milewski was still president of the Association, the Association filed with the Department of Business and Professional Regulation, Division of Land Sales, Condominiums, and Mobile Homes (Department), a petition for arbitration, pursuant to Section 718.1255, Florida Statutes, accusing Petitioner of engaging in disruptive conduct in violation of Article XV of Santa Monica's Declaration of Condominium. The case was docketed as Department Case No. 02- 4691.
An arbitration hearing in Department Case No. 02-4691 was held on June 27, 2002, in accordance with the procedures set forth in Florida Administrative Code Rule 61B-45.039.2 The arbitrator, Richard M. Coln, Esquire, issued his Final Order in Department Case No. 02-4691 on July 31, 2002.
Arbitrator Coln's Final Order contained the following "findings of fact":
The Santa Monica Condominium is a condominium within the meaning of Fla. Stat
§ 718.104. The Santa Monica Condominium Association, Inc., is the entity responsible for the administration and operation of the Santa Monica Condominium.
Maria O'Connor, the respondent, is the fee simple owner of unit 408B and has resided in the unit since 1990. The respondent presently resides in the unit with her granddaughter, Jeanna Moretti.
The petitioner presented the testimony of Ray Milewski, President of the association's board of directors and owner of unit 411B. Mr. Milewski's unit is located on the same floor as the respondent's. Mr. Milewski lives with his girlfriend, Arlene Kelleher, and has resided in the unit since 1990.
Based upon the testimony of all witnesses presented, it is clear that there is a great deal of hostility and animosity existing between Mr. Milewski and the respondent.
Mr. Milewski testified that the respondent has, virtually on a day-to-day basis, whistled in an overly irritating fashion at him, his girlfriend, and occasionally at an employee of the association. Mr. Milewski further testified that Mrs. O'Connor's granddaughter, Jeanna, also whistles in order to harass him. Mr. Milewski described the whistle as a loud piercing sound repeated without melody or tune.
The petitioner presented the testimony of Lynn Moore, the owner of unit 308B. Ms. Moore's unit is located directly below the
respondent's unit. Ms. Moore has resided in the condominium with her two children for approximately five years.
Ms. Moore testified that she and respondent had been friends in the past but were not presently on a friendly basis with one another. Ms. Moore testified that one evening she heard the respondent and her granddaughter having a fight. This fight was later reported to the Department of Children and Families (DCF) and an investigation of the incident took place. No further action was ever taken by DCF. Since the report to DCF, the amicable relationship between the respondent and Ms. Moore has ended.
Ms. Moore testified that she observed the respondent whistle at Mr. Milewski on one occasion. Ms. Moore described the whistle as a shrill noise without any discernable rhythm or melody.
After the relationship between Ms. Moore and the respondent soured, the [sic] Ms. Moore testified that she often heard loud banging and scraping coming from the respondent's unit. These noises occurred most frequently on Monday mornings from 9:00
a.m. to noon. Because of Ms. Moore's occupation as a flight attendant, Ms. Moore normally sleeps from 9:00 a.m. to noon on Monday mornings. Ms. Moore testified that the respondent was aware of her work schedule and her routine of sleeping in on Monday mornings after returning from her weekend flight schedule.
Ms. Moore testified that as a result of the animosity and problems that have developed between her and the respondent, she has sold her unit and is moving out of the condominium.
The petitioner presented the testimony of Mr. Steve Godfrey who is the tenant of
unit 409B, which is the unit located directly next door to Mrs. O'Connor's. Mr. Godfrey's brother and sister-in-law, who reside part-time in England are the owners of unit 409B. As a result of a broken pipe in the Godfrey unit that caused damage to the respondent's unit, animosity between the respondent and Mr. Godfrey has developed.
Mr. Godfrey testified that he has witnessed the respondent's granddaughter whistle at him in an effort to be a nuisance. Mr.
Godfrey further testified that he has repeatedly heard noises coming from the respondent's unit that sounded like a chair being dragged across the floor.
The respondent testified that she sometimes whistles while she does house work. The respondent denies whistling to intentionally harass Mr. Milewski. Respondent and her granddaughter both testified that they had been practicing whistling because Jeanna's school choir was having a program involving whistling.
The respondent demonstrated at the hearing her ability to whistle, which consisted of her blowing air through her lips without making any audible sound.
The petitioner presented the testimony of Paul Marotta. Mr. Marotta is employed by the association to do maintenance of the condominium property. Mr. Marotta testified that he has observed the respondent, and her granddaughter, whistling in an irritating fashion at himself, Mr. Milewski and Arlene Kelleher. Mr. Marotta further testified that the respondent tries to get people angry and has received complaints that she bangs on the floors and walls in an effort to irritate other residents.
The respondent presented the testimony of Joseph Moretti, the respondent's son. He stated that his mother had a habit of whistling when doing dishes.
On February 13, 2002, a letter was sent to the respondent notifying her of the complained of behavior and demanding that she and her granddaughter cease these behaviors.
Arbitrator Coln's Final Order also contained the following "conclusions of law"3:
The testimony of the witnesses was that the respondent exhibits a great deal of animosity towards other unit owners, tenants, and association employees, which manifests as disruptive behavior. The testimony presented by the petitioner supports the claim that the respondent actively engages in conduct that is intended to disturb, annoy, and interfere with other unit owners or occupants. Article XV of the Declaration of Condominium provides in pertinent part that:
"No immoral, improper, offensive or unlawful use shall be made of any unit or of the common elements or of the limited common elements or any part thereof. . . . No unit owner shall do . . . any act . . . which might . . . interfere with owners or occupants of other units or annoy them by unreasonable noises."
The arbitrator finds that the testimony of the association's witnesses on this issue of the respondent's alleged conduct to be credible. All of the witnesses, called by the petitioner, described the respondent's whistling and other behaviors in similar fashion and described similar encounters with her. Additionally, the testimony of the respondent and her granddaughter that they did not engage in the behavior complained of was not credible and was not supported by other evidence. At the hearing, the respondent was unable to produce sound when demonstrating her ability
to whistle. The testimony of respondent's own witnesses, her son and granddaughter, was that she often whistled while she did work or other chores. Neither witness described the respondent's whistling as inaudible or as having any similarity to the whistle she demonstrated at the hearing.
Based upon the totality of the evidence submitted, the arbitrator finds that the respondent, and her granddaughter, engaged in the conduct complained of in violation of the above referenced provisions of the declaration.
The respondent raises the following defenses:
That the dispute was between her and another unit owner and not between her and the association.
Selective enforcement.
That the respondent's conduct was speech protected by the 1st Amendment to the Constitution.
Regarding the first defense, the petitioner presented the testimony of several witnesses, each testified that the respondent engaged in conduct that was harassing and annoying to them. The association is responsible for enforcing the rules and regulations for the condominium.
Since the testimony presented demonstrates that the respondent's conduct affects more than one occupant or unit owner, and is occurring throughout the community, the dispute is one that involves the association and its obligation to enforce the rules and regulations of the community.
The respondent claims that the association is selectively enforcing the rules and regulations of the condominiums [sic] against her. The respondent has produced no evidence that the association has allowed
other unit owners to engage in similar behavior towards other unit owners and tenants and not sought to enforce the association's rules and regulations against them See e.g., Scarfore v. Culverhouse, 443 So. 2d 122 (Fla. 2d DCA 1983) (In order to show arbitrary or selective enforcement it must be shown that the other violations permitted by the board are comparable to the type of violation involved in the instant action). Accordingly, since the respondent has failed to demonstrate a comparable violation of Article XV of the declaration the defense of selective enforcement fails.
The respondent's last defense is that her conduct is protected by the 1st Amendment to the Constitution. The First Amendment provides, in pertinent part, that "Congress shall make no law . . . abridging the freedom of speech or the press "
U.S. Const. Amend. 1. The Fourteenth Amendment extends the First Amendment's prohibition on the abridgment of freedom of speech to states and their political subdivisions. The right to free speech, however, is not absolute at all times and under all circumstances. The Supreme Court has established several categories of speech, typically regarded as harmful, which are deemed not to be protected by the First Amendment. These categories are obscenity, advocacy of imminent lawless behavior, defamation, fighting words and fraudulent misrepresentation. See R.A.V. v. City of St. Paul, Minn., 112 S. Ct. 2638 (1992); New York v. Ferber, 102 S. Ct. 3348 (1982); Chaplinsky v. New Hampshire, 62 S. Ct. 766 (1942).
First, it should be noted that the respondent's acts of whistling, dragging a chair across the floor, and banging upon the wall, is not speech, it is conduct.
Conduct, as established by the evidence in this matter, which is designed to harass, annoy, and irritate others without any
legitimate purpose. Where the purpose of the conduct is the personal abuse of another, the conduct is not communication that falls under the protection of the 1st Amendment. See Cantell v. Connecticut, 80
S. Ct. 900, 906 (1942). Since the action in this matter, neither involves state action nor speech, the defense that the respondent's behavior is protected by the 1st Amendment must fail.
Accordingly, the respondent has violated Article XV of the declaration of condominium by whistling at other unit owners, tenants, and association employees and by making noises in an irritating and annoying fashion without legitimate purpose which obstructs or interferes with other unit owners or occupants of other units or annoys them by unreasonable noises.
Based upon the foregoing, it is ORDERED and ADJUDGED that the respondent has violated Article XV of the declaration of condominium.. The respondent shall immediately cease whistling in the face of other unit owners, tenants, or association employees, banging on the walls of her unit, dragging chairs across her floor, and any other actions which are intended to annoy, irritate, or harass others. Neither shall she encourage her granddaughter or any other person to engage in such behaviors. The respondent shall in the future comply with the provisions of Article XV.
The following advisements regarding the "right to trial de novo" and "attorney's fees" were set out in Arbitrator Coln's Final Order:
RIGHT TO TRIAL DE NOVO
PURSUANT TO SECTION 718.1255, FLORIDA STATUTES THIS DECISION SHALL BE BINDING ON THE PARTIES UNLESS A COMPLAINT FOR TRIAL DE
NOVO IS FILED BY AN ADVERSELY AFFECTED PARTY IN A COURT OF COMPETENT JURISDICTION IN THE CIRCUIT IN WHICH THE CONDOMINIUM IS LOCATED WITHIN 30 DAYS OF THE DATE OF MAILING OF THIS ORDER. THIS FINAL ORDER DOES NOT CONSTITUTE FINAL AGENCY ACTION AND IS NOT APPEALABLE TO THE DISTRICT COURTS OF APPEAL.
ATTORNEY'S FEES
As provided by s. 718.1255, F.S., the prevailing party in this proceeding is entitled to have the other party pay its reasonable costs and attorney's fees. Rule 61B-45.048, F.A.C., requires that a party seeking an award of costs and attorney's fees must file a motion seeking the award not later than 45 days after rendition of this final order. The motion must be actually received by the Division within this 45-day period and must conform to the requirements of rule 61B-45.048, F.A.C. The filing of an appeal of this order does not toll the time for the filing of a motion seeking prevailing costs and attorney's fees.
Arbitrator Coln's Final Order was mailed to the parties to the arbitration on July 31, 2002.
On September 3, 2002, the Association moved for an award of attorney's fees and costs in Department Case No. 02- 4691.
On October 7, 2002, Arbitrator Coln issued an order in Department Case No. 02-4691 awarding the Association $8,660.00 in attorney's fees and costs and directing Petitioner to pay this sum to the Association within 30 days of the date of the order.
Arbitrator Coln issued an Amended Final Order Awarding Attorney's Fees and Costs in Department Case No. 02-4691 on October 16, 2002. This amended order left unchanged the amount of the attorney's fees and costs award Petitioner was required to pay the Association (but required that payment be made within
30 days of this amended order).
Petitioner's Physical Ailments
Petitioner has knee and back problems as a result of injuries she has suffered.
She broke her kneecap in 1985 and now has a "trick knee."
She has injured her back on more than one occasion.
Her last back injury occurred in 1992, when she fell on her buttocks after her knee "gave out." The injury was a serious one. She was in a "body brace" for four months (from December 1992, to April 1993), during which time she used a walker.
Petitioner is able to, and does, walk without a cane or other aid or support.
When the elevator in her building is not working, Petitioner has to walk up and down the stairs to get to and from her apartment. She is able to traverse the stairs, albeit slowly.
Although she considers herself to be disabled, at no time material to the instant case did Petitioner advise Respondents that she had a disability or impairment.
Mr. Milewski did see Petitioner in a "body brace" and using a walker following her most recent back injury, but this was more than decade ago, well before the events that are the subject of the instant case.
While Mr. Milewski called Petitioner various offensive names, in engaging in such name-calling, he did not make reference to any physical impairment or use other language suggesting that he regarded Petitioner as being physically handicapped or disabled.
Parking
All Santa Monica unit owners, including Petitioner (who drives a 1992 Nissan Sentra), have an assigned parking space.
Petitioner's assigned parking space is directly behind her apartment in the parking area in back of the building.
Petitioner is able to walk (unaided) from her assigned parking space to the entrance to her building even when carrying items from her car.
Petitioner likes the location of her assigned parking space because she is able to see her car, when it is parked
there, by simply looking out a window in the rear of her apartment.
Petitioner has never requested that she be reassigned another parking space (closer to the entrance of her building or elsewhere).
Despite the fact that there are potholes in the pavement right behind her assigned parking space that fill up with water when it rains, Petitioner has not had, nor expressed, any desire to change assigned parking spaces.
In addition to the parking area where Petitioner's assigned parking space is located, there is also a parking area in front of Petitioner's building, which has both assigned and guest parking spaces.
Among these parking spaces in front of the building is a handicapped parking space (on each side of which is a non- handicapped, assigned parking space).
From the time she moved into her apartment at Santa Monica in 1990, until mid-April of 2002, Petitioner, without incident, on occasion, parked in the handicapped parking space temporarily (never overnight) when the weather was inclement and she needed to carry groceries from her car to her apartment. On these occasions, she was never asked to move her car from the handicapped parking space.
Petitioner's car has a handicapped sticker on it.4
On or about April 17, 2002, as she had done on previous occasions, Petitioner parked in the handicapped parking space after a trip to the grocery store. Shortly after entering her apartment with the groceries she had purchased, Petitioner heard a knock on the door. It was Joseph Gauck, who worked as the property manager for the Association. He asked Petitioner if she had seen the new sign in front of the handicapped parking space that indicated it was a "guest only" handicapped parking space. Petitioner replied that she had not. Mr. Gauck told her that she needed to move her car and that, although he was giving her only a warning this time, the next time she parked in this space, her car would be towed. Petitioner did as she was told. When she went down to move her car, she confirmed that the sign in front of the handicapped parking space now read "guest only." Use of the Pool
Santa Monica has a pool available for use by everyone living in the development, however, children under 14 years of age must be accompanied by an adult when in the pool area.
Petitioner understands the need for this rule requiring adult supervision and does not question the rule's reasonableness or its legality.
Her complaint is that, in September 2002, the Association erroneously accused her of allowing Jeanna to go to the pool without adult supervision (in violation of the rule),
while making no accusations against other unit owners who were actually guilty of violating the rule.
The accusation with which she takes issue came in the form of a letter, dated September 6, 2002, that she received from Mr. Gauck. The letter read as follows:
It has been brought to our attention that your granddaughter has been allowed to go to the pool unattended and unsupervised. This is a violation of the community rules, which specify that all children under 14 years of age must be accompanied by an adult. This rule is posted at the pool and is contained in your community documents.
Unsupervised children at the pool are not only a danger to themselves but represent a major liability to the community and to you, as the party responsible for her well being.
Please make sure that you accompany your granddaughter at all times when she is at the pool.
Otherwise, her use of the pool will be prohibited.
Petitioner responded by writing the following letter, dated September 7, 2002, to Mr. Gauck, explaining that it was another child, not Jeanna, who had been in the pool without adult supervision on the date in question:
In answer to your letter of Sept. 6, 2002, Mrs. Chrabus, apt. # 216 and her mother who was visiting were going to the pool. My granddaughter Jeanna and Mrs. Chrabas' daughter were waiting. Meanwhile Mrs.
Chrabas' daughter took it upon herself to enter the pool, my granddaughter did not as I told her not to. When Mrs. Chrabas'
mother who is well over 14 yrs. went into the pool is when Jeanna entered. In fact Jeanna left before they did. I looked over the catwalk over the pool two times and both Mrs. Chrabas' mother and then Mrs. Chrabas were in the pool. My granddaughter has excellent supervision, and we both understand the rules and have always followed them. Few days prior to this there were at least four kids, neighbors at the pool yelling and screaming, diving in. Did anyone see or hear this? I did. My granddaughter's well-being is my most interest. In respect to you, I know you need to do your job.
Petitioner received no other letter concerning this matter from Mr. Gauck or any one else on behalf of the Association.
Jeanna was never forbidden by the Association from using the pool. Petitioner, however, "kept [Jeanna] out of the pool for a long time" following this exchange of letters (taking Jeanna to the beach, instead, to swim).
Jeanna and Board Member Gretchen Powell
One day in November 2002, as Petitioner, Jeanna, and Petitioner's friend, Lillie Charles, were unloading groceries from Petitioner's car after they had returned to Santa Monica from a trip to the grocery store, Ms. Powell walked by and said hello to Jeanna. Not receiving any response to her greeting, Ms. Powell told Jeanna, "Kiss my ass." Ms. Powell also spit on the ground before angrily walking away.
Jeanna's Christmas Decorating
Before the Christmas holiday in 2002, Jeanna painted a "Santa Clause face" and wrote Merry Christmas on the outside of the living room window of Petitioner's apartment (which faces the catwalk). As Jeanna was finishing up, Mr. Milewski passed by and called Jeanna a "retard." A short time later, Mr. Milewski was joined on the catwalk outside of Petitioner's apartment by Ms. Powell and Mr. Garcia. The three stood there laughing. It appeared to Petitioner, who was looking out the kitchen window (which also faces the catwalk, where Mr. Milewski, Ms. Powell, and Mr. Garcia were standing), that the three of them were laughing at the work Jeanna had done.
Damage to the Hood of Petitioner's Car
In or around April of 2003 (after Petitioner had filed with the Commission and HUD the housing discrimination complaints described in the Preliminary Statement of this Recommended Order), Ms. Powell telephoned Petitioner and left a message advising Petitioner that a tree adjacent to the parking area behind Petitioner's building was going to be cut down and suggesting that Petitioner not leave her car in her assigned parking space while this work was being done.
Although Petitioner did not think her car was close enough to the tree to be in harm's way, in an abundance of
caution, she moved the car to a guest parking space further away from the tree.
When Petitioner went to her car to move it back to her assigned parking space after the tree-cutting work was done, she noticed, for the first time, that there were places on the hood of the car where the paint was "bubbled" and discolored.
Since this April 2003, incident, there has been additional "bubbling" and discoloration that Petitioner has discovered on the hood of her car, further marring its appearance.5
Chewed Gum in Keyhole of Petitioner's Mailbox and Elsewhere
In or around the summer of 2003, on more than one occasion, there was chewed gum placed in the keyhole of Petitioner's mailbox. There were other occasions where Petitioner found wax and matchsticks in the keyhole.
During the summer of 2003, Petitioner also started finding chewed gum placed on the catwalk outside the entrance to her apartment. She also discovered chewed gum on the outside sill of her kitchen window, on the kitchen window screen, and on the screen door at the entrance to her apartment.
After Petitioner wrote a letter to Mr. Milewski about the chewed gum outside her apartment, the Association's "maintenance man," Paul Marotta, came by "to clean up the mess."6
Jeanna's Bicycle
The trash room in Petitioner's building also serves as a storage area for bicycles.
Jeanna has a bicycle that she stores in the trash room.
On one occasion, when Petitioner went into the trash room to retrieve the bicycle for Jeanna, the bicycle was in the back of the room behind other bicycles that Petitioner was unable to move.
Petitioner asked that Jeanna's bicycle be moved to the front of the room, where it had been previously, so that it would be accessible to Petitioner and Jeanna.
When Petitioner returned to the trash room, Jeanna's bicycle was again in the front of the room near the door, but the bicycle now had "dirty plastic bags" tied to its handlebars.7 Comments Regarding Moving
It has been suggested to Petitioner and Jeanna that they move from the development.
Such suggestions have been made by Mr. Garcia and Ms.
Powell.
Petitioner has responded to these suggestions by indicating that she has no intention of moving.
Election of a New Association Board of Directors
Petitioner was not alone in her displeasure with the way Mr. Milewski and his fellow board members discharged their responsibilities on behalf of the Association.
A dissident group of unit owners circulated the following letter to other unit owners in or around the fall of
2003:
Dear Santa Monica Condominium Owner,
We are a group of Owner-Residents and we would like to share with you some concerns we have regarding the upcoming elections. As you know, the Board of Directors is being elected soon for the upcoming year.
We have decided to jointly write this letter so that you realize that this is a common concern and does not come from 1 or 2 unhappy individuals. Most of us make a point to attend the meetings when we can, and we try and stay informed and up to date with our community. We like to get involved with our "neighborhood" and contribute to the common effort of making Santa Monica a safe, attractive and pleasant place to reside. As owners, we are also interested in the values of our homes and that the value of our community increases as well as our lifestyles.
There are many things we would like to address in the upcoming year that will make a positive difference to our homes and property. We feel that the management of our monthly maintenance could be better handled and we think that at present, the business of running the building does not benefit the entire community.
Frankly speaking, the warmth is gone. While we are all equal owners, you may or may not be currently calling Santa Monica your home and are probably unaware of this change in the "community climate." We are primarily interested in turning Santa Monica back into the friendly, thriving community it once was. If you are renting your unit, this will benefit you, as a happy renter is more likely to remain renting your property.
Many of the rules and regulations under which we live have become restrictive and outdated. They are being selectively enforced with such vigor and ferocity that we have become uncomfortable in our own community.
We want to work together as neighbors and friends again. We want to feel as though we are a community where people may live and work in peace and not worry about when the next selective and arbitrary enforcement of a rule is going to shake up our lives and make us all afraid to even use our own common areas. We, the letter writers, are mostly longtime residents and we range in ages from our mid-twenties on up to our seventies. We are a diverse group of residents. We are professionals, or are retired and we are all responsible adults.
We are asking that you vote for the following people in the next election. We want to turn Santa Monica around and get it back on the right track, The following individuals want to accomplish this as well. Our Board of Directors is currently set up for 5 individuals. We are recommending the following people For Your Consideration:
* * *
With these people on the Board of Directors, you may be assured they will all work with one thing in mind. To serve the entire Santa Monica Community. They have no self-
serving interest in being Board Members with the exception that they want their residence to be a more pleasant and more efficiently run place to live. They are willing to work for you and with you and they will give some of their free time in the interest of all residents.
We hope you agree and we are asking that you vote for 5 of the 6 people that we have offered for your consideration.
Thank you for you time and for your votes. We appreciate your help in turning Santa Monica into a Community that Cares.
The dissidents were successful in their efforts to oust Mr. Milewski and his fellow board members from power.
Under the new board, Petitioner feels like things are "normal again."
The new board members have told her that they have no problem with her humming while in her kitchen with the window open (something Mr. Milewski forbade her from doing when he was in office).
They have also told her that it is okay for her to temporarily park in the handicapped parking space.
Ultimate Findings
The record evidence is insufficient to establish that Respondents in any way discriminated against Petitioner on the basis of handicap or familial status or that they took any retaliatory action against her for filing housing discrimination complaints with the Commission and HUD.
CONCLUSIONS OF LAW
DOAH has jurisdiction over the subject matter of this proceeding and of the parties hereto pursuant to Chapter 120, Florida Statutes.
Florida's Fair Housing Act (Act) is codified in Sections 760.20 through 760.37, Florida Statutes.
Section 760.22, Florida Statutes, defines various terms used in the Act. It provides, in pertinent part, as follows:
As used in ss. 760.20-760.37, the term: . . . .
* * *
"Dwelling" means any building or structure, or portion thereof, which is occupied as, or designed or intended for occupancy as, a residence by one or more families, and any vacant land which is offered for sale or lease for the construction or location on the land of any such building or structure, or portion thereof.
"Familial status" is established when an individual who has not attained the age of 18 years is domiciled with:
A parent or other person having legal custody of such individual; or
A designee of a parent or other person having legal custody, with the written permission of such parent or other person.
"Family" includes a single individual.
"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
"Person" includes one or more individuals, corporations, partnerships, associations, labor organizations, legal representatives, mutual companies, joint- stock companies, trusts, unincorporated organizations, trustees, trustees in bankruptcy, receivers, and fiduciaries.
* * *
Among other things, the Act makes certain acts "discriminatory housing practices" and gives the Commission the authority, if it finds (following an 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[8] and reasonable attorney's fees and costs."
§ 760.35(3)(b), Fla. Stat.
To obtain such relief from the Commission, a person who claims to have been injured by a "discriminatory housing practice" must "file a complaint within 1 year after the alleged discriminatory housing practice occurred." § 760.34(2), Fla.
Stat.; however, "an otherwise time-barred claim may be considered timely if it and a timely-filed claim are treated as a single claim directed at continuing discriminatory conduct, part of which occurred within the statutory filing period." LeBlanc v. City of Tallahassee, 2003 WL 1485063 (N.D. Fla.
2003).
The "discriminatory housing practices" prohibited by the Act include those described in Section 760.23(2), 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 therewith, because of race, color, national origin, sex, handicap, familial status, or religion.
Race, color, national origin, sex, handicap, familial status, or religion-based harassment that creates a hostile housing environment constitutes a "discriminatory housing practice" prohibited by Section 760.23(2), Florida Statutes. "[A] [hostile housing environment] claim is actionable when the offensive behavior unreasonably interferes with use and enjoyment of the premises. The harassment must be sufficiently severe or pervasive to alter the conditions of the housing arrangement. It is not sufficient if the harassment is isolated or trivial. Casual or isolated manifestations of a discriminatory environment . . . may not raise a cause of
action." Honce v. Vigil, 1 F.3d 1085, 1090 (10th Cir. 1993)(citations and internal quotations omitted).
"Discriminatory intent may be established through direct or indirect circumstantial evidence." Johnson v. Hamrick, 155 F. Supp. 2d 1355, 1377 (N.D. Ga. 2001).
"Direct evidence is evidence that, if believed, would prove the existence of discriminatory intent without resort to inference or presumption." King v. La Playa-De Varadero Restaurant, No. 02-2502, 2003 WL 435084 (Fla. DOAH 2003)(Recommended Order).
"Direct evidence of intent is often unavailable." Shealy v. City of Albany, Ga., 89 F.3d 804, 806 (11th Cir. 1996). For this reason, those who claim to be victims of discrimination "are permitted to establish their cases through inferential and circumstantial proof." Kline v. Tennessee Valley Authority, 128 F.3d 337, 348 (6th Cir. 1997).
Where a complainant attempts to prove intentional discrimination using circumstantial evidence, a "shifting burden framework" is applied. "Under this framework, the [complainant] has the initial burden of establishing a prima facie case of discrimination. If [the complainant] meets that burden, then an inference arises that the challenged action was motivated by a discriminatory intent. The burden then shifts to the [respondent] to 'articulate' a legitimate, non-discriminatory
reason for its action. If the [respondent] successfully articulates such a reason, then the burden shifts back to the [complainant] to show that the proffered reason is really pretext for unlawful discrimination." Schoenfeld v. Babbitt,
168 F.3d 1257, 1267 (11th Cir. 1999)(citations omitted.); see also Massaro v. Mainlands Section 1 and 2 Civic Association,
Inc., 3 F.3d 1472, 1476 n.6 (11th Cir. 1993)("Fair housing discrimination cases are subject to the three-part test articulated in McDonnell Douglas Corp. v. Green, 411 U.S. 792, 93 S. Ct. 1817, 36 L.Ed.2d 668 (1973)."); and Secretary of the
United States Department of Housing and Urban Development on Behalf of Herron v. Blackwell, 908 F.2d 864, 870 (11th Cir. 1990)("We agree with the ALJ that the three-part burden of proof test developed in McDonnell Douglas [for claims brought under Title VII of the Civil Rights Act] governs in this case [involving a claim of discrimination in violation of the federal Fair Housing Act].")
Proof that, in essence, amounts to no more than mere speculation and self-serving belief on the part of the complainant concerning the motives of the respondent is insufficient, standing alone, to establish a prima facie case of intentional discrimination. See Lizardo v. Denny's, Inc., 270 F.3d 94, 104 (2d Cir. 2001)("The record is barren of any direct evidence of racial animus. Of course, direct evidence of
discrimination is not necessary. However, a jury cannot infer discrimination from thin air. Plaintiffs have done little more than cite to their mistreatment and ask the court to conclude that it must have been related to their race. This is not sufficient.")(citations omitted.); Reyes v. Pacific Bell, 21 F.3d 1115 (Table), 1994 WL 107994 *4 n.1 (9th Cir. 1994)("The
only such evidence [of discrimination] in the record is Reyes's own testimony that it is his belief that he was fired for discriminatory reasons. This subjective belief is insufficient to establish a prima facie case."); Little v. Republic Refining
Co., Ltd., 924 F.2d 93, 96 (5th Cir. 1991)("Little points to his own subjective belief that age motivated Boyd. An age discrimination plaintiff's own good faith belief that his age motivated his employer's action is of little value."); Elliott
v. Group Medical & Surgical Service, 714 F.2d 556, 567 (5th Cir. 1983)("We are not prepared to hold that a subjective belief of discrimination, however genuine, can be the basis of judicial relief."); Jackson v. Waguespack, 2002 WL 31427316 (E.D. La.
2002)("[T]he Plaintiff has no evidence to show Waguespack was motivated by racial animus. Speculation and belief are insufficient to create a fact issue as to pretext nor can pretext be established by mere conclusory statements of a Plaintiff that feels she has been discriminated against. The Plaintiff's evidence on this issue is entirely conclusory, she
was the only black person seated there. The Plaintiff did not witness Defendant Waguespack make any racial remarks or racial epithets."); Sporn v. Ocean Colony Condominium Association, 173
F. Supp. 2d 244, 251 (D. N.J. 2001)("This evidence, even when viewed in the light most favorable to Plaintiffs, amounts to nothing more than repeated statements of Plaintiffs' subjective beliefs of discrimination and is therefore insufficient to survive summary judgment."); Coleman v. Exxon Chemical Corp.,
162 F. Supp. 2d 593, 622 (S.D. Tex. 2001)("Plaintiff's conclusory, subjective belief that he has suffered discrimination by Cardinal is not probative of unlawful racial animus."); Cleveland-Goins v. City of New York, 1999 WL 673343 (S.D. N.Y. 1999)("Plaintiff has failed to proffer any relevant evidence that her race was a factor in defendants' decision to terminate her. Plaintiff alleges nothing more than that she 'was the only African-American male [sic] to hold the position of administrative assistant/secretary at Manhattan Construction.' (Compl.¶ 9.) The Court finds that this single allegation, accompanied by unsupported and speculative statements as to defendants' discriminatory animus is entirely insufficient to make out a prima facie case or to state a claim under Title VII."); Umansky v. Masterpiece International Ltd., 1998 WL 433779 (S.D. N.Y. 1998)("Plaintiff proffers no support for her allegations of race and gender discrimination other than
her own speculation and assumptions. The Court finds that plaintiff cannot demonstrate that she was discharged in circumstances giving rise to an inference of discrimination, and therefore has failed to make out a prima facie case of race or gender discrimination."); Gavin v. Spring Ridge Conservancy, Inc., 934 F. Supp. 685, 687 (D. Md. 1995)("Turning first to the plaintiff's claims of intentional discrimination and retaliation, there is no evidence at all, other than perhaps the plaintiff's own subjective beliefs, of intentional discrimination or retaliation. Such beliefs are, of course, insufficient to show an intentional discriminatory animus."); and Lo v. F.D.I.C., 846 F. Supp. 557, 563 (S.D. Tex. 1994)("Lo's
subjective belief of race and national origin discrimination is legally insufficient to support his claims under Title VII.").
The "discriminatory housing practices" prohibited by the Act also include those described in Section 760.23(8)(a), Florida Statutes, which provides that "[i]t 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: [t]hat buyer or renter." According to Section 760.23(9)(b), Florida Statutes, "[f]or purposes of subsection[] . . . (8), discrimination includes: . . . 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." To be guilty of having refused to make a reasonable accommodation for a handicapped complainant, as described in Section 760.23(9)(b), Florida Statutes, a respondent must have been presented with a request by or on behalf of the complainant that it make such an accommodation. Cf. Tsombanidis v. West Haven Fire Department, 352 F.3d 565, 579 (2d Cir. 2003)("A governmental entity must know what a plaintiff seeks prior to incurring liability for failing to affirmatively grant a reasonable accommodation [under the federal Fair Housing Act]."); Progressive Mine Workers v. National Labor Relations Board, 187 F.2d 298, 304 (7th Cir. 1951)("There was no finding that the company had refused to reinstate them, as evidently there could not be in the absence of a request by the employees."); Winfield Mutual Housing Corporation v. Middlesex Concrete Products & Excavating Corporation, 120 A.2d 655, 657 (N.J. App. 1956)("There could not be a refusal in the absence of a request, express or implied, for performance, . . . ."); and Application of Spanierman, 58 N.Y.S.2d 10, 11 (N.Y. Sup. Ct.
1945)("There can be no 'refusal' in the absence of a request for the statement.")
"Accommodations required under [Section 760.23(9)(b), Florida Statutes] must be both reasonable and necessary to
afford the handicapped individual an equal opportunity to use and enjoy a dwelling. An accommodation is reasonable when it imposes no fundamental alteration in the nature of a program or undue financial and administrative burdens. Whether a requested accommodation is required by law is highly fact-specific, requiring case-by-case determination. [Tribunals] generally balance the burdens imposed on the [respondent] by the contemplated accommodation against the benefits to the [complainant]. In determining whether the reasonableness requirement has been met, a [tribunal] may consider the accommodation's functional and administrative aspects, as well as its costs. " Groner v. Golden Gate Gardens Apartments, 250 F.3d 1039, 1044 (6th Cir. 2001)(citations and internal quotation marks omitted.). It is the complainant who has the "burden of proving that a proposed accommodation is reasonable." Loren v. Sasser, 309 F.3d 1296, 1302 (11th Cir. 2002).
To establish a "discriminatory housing practice" based on the failure to make a required accommodation that a complainant has requested, the complainant must also show: "(1) he suffers from a handicap, (2) [respondent(s)] knew of the handicap, (3) accommodation of the handicap is necessary to afford [the complainant] an equal opportunity to use and enjoy the housing in question, and (4) [respondent(s)] refused to make such an accommodation." Schanz v. Village Apartments, 998 F.
Supp. 784, 791 (E.D. Mich. 1998). It is not sufficient to show that the refused accommodation is simply "convenient or desired." Rather, it must be "necessary." Bachman v. Swan Harbour Association, 653 N.W.2d 415, 429 (Mich. App. 2002). "[T]he duty to make a reasonable accommodation does not simply spring from the fact that the handicapped person . . . wants such an accommodation made." Gavin v. Spring Ridge Conservancy, Inc., 934 F. Supp. at 687. "Further, an accommodation should not extend a preference to disabled [unit occupants] relative to other [occupants], as opposed to affording them equal opportunity, and accommodations that go beyond affording a[n] [occupant] with a disability an opportunity to use and enjoy a dwelling are not required." Bachman v. Swan Harbour Association, 653 N.W.2d at 429.
Another "discriminatory housing practice" prohibited by the Act is described in Section 760.37, Florida Statutes, which provides:
It is unlawful to coerce, intimidate, threaten, or interfere with any person in the exercise of, or on account of her or his having exercised, or on account of her or his having aided or encouraged any other person in the exercise of any right granted under ss. 760.20-760.37. This section may be enforced by appropriate administrative or civil action.
To establish a violation of Section 760.37, Florida Statutes, a complainant must prove that the respondent "coerced,
intimidated, threatened, or interfered with her exercise of a right under the Florida Fair Housing Act; discriminatory animus is inherent in a retaliation claim." Thornhill v. Watkins, Nos. 00-3014 and 02-1056, 2004 WL 395861 *28 (Fla. DOAH February 27,
2004)(Recommended Order). A complainant claiming to be a victim of retaliation for filing a housing discrimination complaint need not prove the merits of that underlying complaint to prevail on the retaliation claim. Id.
Regardless of the type of "discriminatory housing practice" being alleged, "preponderance of the evidence" is the standard of proof the complainant must meet (at the administrative hearing) to prove his or her case.
§ 120.57(1)(j), Fla. Stat. ("Findings of fact shall be based upon a preponderance of the evidence, except in penal or licensure disciplinary proceedings or except as otherwise provided by statute,[9] ").
In the instant case, Petitioner has alleged that, in violation of the Act, Respondents have discriminated against her on the basis of handicap and familial status, and she has also suggested (albeit not in any formal complaint filed with HUD or the Commission) that, in further violation of the Act, Respondents have retaliated against her for seeking administrative relief from these alleged "discriminatory housing practices."10
Petitioner did not meet her burden of proving, by a preponderance of the evidence, that Respondents engaged in any such discriminatory or retaliatory conduct in violation of the Act.
In support of her handicap discrimination claim, it was incumbent on Petitioner, as a threshold matter, to establish that, at the time of the alleged discrimination, she had a "handicap," as that term is defined in Section 760.22(7), Florida Statutes. She failed to do so. While the evidentiary record reveals that she then had (as she still does) knee and back problems, there is no indication that these, or any other problems she may have had, substantially limited, at the time in question, any major life activity, including walking, which she was able to do (even up and down stairs) without any assistive device (albeit perhaps not as quickly and not with the same ease as she did before the onset of her knee and back problems). See Wimberly v. Securities Technology Group, Inc., 2004 WL 330103,
--- So. 2d ----, 29 Fla. L. Weekly D421b (Fla. 4th DCA Feb. 18, 2004)(no substantial limitation on major life activity where individual "had a slight limp and moved slower than he previously did"), and cases cited therein; Talk v. Delta Airlines, Inc., 165 F.3d 1021, 1025 (5th Cir. 1999)("It is clear . . . that moderate difficulty experienced while walking does not rise to the level of a disability. Talk asserts that
she 'walk[s] with a limp and move[s] at a significantly slower pace than the average person.' She also claims that extreme cold causes her difficulty in walking. We note, however, that Talk had earlier requested transfers to Boston and New York, cities with cold winter climates. Talk's special orthopedic shoe, she admits, allows her to 'maintain[] full mobility.' We find that, although Talk experiences some impairment to her ability to walk, it does not rise to the level of a substantial impairment . . . ."); Penny v. United Parcel Service, 128 F.3d 408, 415 (6th Cir. 1997)("moderate difficulty or pain experienced while walking" does not "constitute[] a substantial limitation on a person's ability to walk"), and cases cited therein; Puoci v. City of Chicago, 81 F. Supp. 2d 893, 896-97 (N.D. Ill. 2000)("Puoci claims that he is substantially limited in the life activity of walking. He walks with a limp, he has pain and discomfort when walking on soft surfaces, his right leg and right thigh go numb when he walks, and he can only walk for
1 1/2 miles without pain. Puoci, however, walks without assistance of a cane or crutch, and he is not subject to medical restrictions on walking. In addition, there is no evidence that his difficulty walking interferes with his ability to care for himself. Puoci's difficulties with walking do not constitute a disability. . . . Puoci's limitations constitute only moderate restrictions. Because he is not substantially limited in his
ability to walk, this disability claim fails as a matter of law."), and cases cited therein.11 Neither does the evidentiary record establish that, at any material time, Petitioner had a record of having, or was regarded as having, such a limitation. The absence of proof that she was "handicap[ped]," within the meaning of the Act, is fatal to any claim that Respondents engaged in handicap discrimination against her (by acts of harassment prohibited by Section 760.23(2), Florida Statutes, or by refusing to make a "reasonable accommodation" of the type described in Section 760.23(9)(b), Florida Statutes12). Cf.
Rogers v. International Marine Terminals, Inc., 87 F.3d 755, 758 (5th Cir. 1996)("As a threshold requirement in an ADA claim, the plaintiff must, of course, establish that he has a disability."); Jasany v. U.S. Postal Service, 755 F.2d 1244, 1248 (6th Cir. 1985)("To assert a claim that he was discriminated against because of a physical handicap, Jasany must satisfy the threshold requirement that he is a handicapped person as defined by the statute."); Fischer v. Ameritech, 2001 WL 1135805 *8 (N.D. Ill. 2001)("No matter the type of discrimination alleged, whether it be disparate treatment or failure to provide a reasonable accommodation, a plaintiff proceeding on such a claim must first establish that she was 'a qualified individual with a disability.'"); Peake v. Dalton, 1998 WL 34078425 *1 (W.D. Ky.
1998)("To assert a claim that he was discriminated against
because of a physical handicap, Peake must satisfy the threshold requirement that he is a handicapped person as defined by the statute.").
Petitioner did establish that, at all times material to the instant case, she was protected under the Act from discrimination on the basis of "familial status," as that term is defined in Section 760.22(5), Florida Statutes; however, she failed to prove that there was any nexus between the alleged discriminatory acts about which she has complained in this case13 and her familial status.
Likewise, although she has also enjoyed the protection of Section 760.37, Florida Statutes, by virtue of her having sought relief under the Act, she has presented no evidence showing that Respondents have engaged in any conduct in retaliation for her having exercised this protected right.
Petitioner may suspect that she and Jeanna have been victims, at the hands of Respondents, of discriminatory and retaliatory conduct in violation of the Act, but her suspicions, unaccompanied as they are by any persuasive proof connecting the complained-of conduct with any status or activity of hers protected by the Act, are insufficient to prove that the acts in question constituted "discriminatory housing practices."
In view of the foregoing, no "discriminatory housing practice" should be found to have occurred and Petitioner's Petition for Relief should therefore be dismissed.
Based on the foregoing Findings of Fact and Conclusions of Law, it is
RECOMMENDED that the Commission issue a final order finding that Respondents are not guilty of any "discriminatory housing practice" and dismissing Petitioner's Petition for Relief based on such finding.
DONE AND ENTERED this 30th day of March, 2004, in Tallahassee, Leon County, Florida.
S
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 www.doah.state.fl.us
Filed with the Clerk of the Division of Administrative Hearings this 30th day of March, 2004.
ENDNOTES
1 None of these "attached cancelled checks" was offered or received into evidence at hearing. Because they are outside the
scope of the evidentiary record in this case, these documents cannot provide a basis for any finding of fact. See General Development Utilities, Inc. v. Hawkins, 357 So. 2d 408, 409 (Fla. 1978)("The Commission selected a ratio which nowhere appears in the record, apparently fabricating one for the company based on information it has compiled for water companies generally. The arbitrary selection of this ratio as a 'fact' comes from outside the record of the proceeding and plainly violates the notions of agency due process which are embodied in the administrative procedure act."); and Section 120.57(1)(j), Florida Statutes ("Findings of fact . . . shall be based exclusively on the evidence of record and on matters officially recognized."). In any event, even if these documents were considered part of the evidentiary record (on which findings of fact could be based), the outcome of the instant case would still be the same.
2 Florida Administrative Code Rule 61B-45.039 provides as follows:
Hearings shall be open to the public. However, the arbitrator shall exclude any observer, witness or party who is disruptive to the conduct of the hearing.
Each party shall have the right to present evidence, cross-examine the other party's witnesses, enter objections, and to rebut the evidence presented against the party.
The arbitrator is authorized to administer oaths. Oral testimony shall be taken only upon oath or affirmation.
Unless otherwise ordered by the arbitrator, the petitioner shall present its evidence and witnesses, then the respondent shall present its evidence and witnesses.
Evidence.
An arbitration proceeding is less formal than a court proceeding, and the formal rules of evidence applicable to court proceedings do not generally apply. Any
relevant evidence shall be admitted if it is the kind of evidence on which reasonable, prudent persons rely in the conduct of their affairs. Reliable, relevant evidence may be presented by the parties. Facts are to be proved through the testimony of witnesses under oath at the final hearing and through documents admitted into evidence at the request of a party. Hearsay evidence (i.e., statements not made at the final hearing under oath) may be used to supplement or explain other evidence, but shall not be sufficient in itself to support a finding, unless the hearsay evidence would be admissible over objection in a civil action. The rules of privilege shall be effective to the same extent that they are recognized in civil actions. Irrelevant and unduly repetitious evidence shall be excluded.
All exhibits shall be identified as petitioner's exhibits, respondent's exhibits, or as joint exhibits and shall be so marked in the order received and made a part of the record.
Documentary evidence may be received in the form of a photocopy.
The arbitrator shall afford the parties an opportunity to submit proposed findings of fact, conclusions of law, and proposed orders, or legal briefs or memoranda on the issues, within a time designated by the arbitrator after the final hearing.
3 The parties in the instant case are bound by the findings made by Arbitrator Coln. See Section 718.1255(4)(k), Florida Statutes ("An arbitration decision is final in those disputes in which the parties have agreed to be bound. An arbitration decision is also final if a complaint for a trial de novo is not filed in a court of competent jurisdiction in which the condominium is located within 30 days. The right to file for a trial de novo entitles the parties to file a complaint in the appropriate trial court for a judicial resolution of the dispute."); see also Yacht Club Southeastern, Inc. v. Sunset
Harbour North Condominium Association, Inc., 843 So. 2d 917, 919 (Fla. 3d DCA 2003)(unit owners "real parties in interest" in action brought by condominium association); Porter v.
Saddlebrook Resorts, Inc., 679 So. 2d 1212, 1214 (Fla. 2d 1996)("The doctrine of collateral estoppel prevents identical parties or those in privity with parties from relitigating issues that have previously been litigated and determined."); R.D.J. Enterprises, Inc. v. Mega Bank, 600 So. 2d 1229, 1231 (Fla. 3d DCA 1992)("In dealing with the identities of the parties, collateral estoppel requires that the 'real parties in interest' be identical."); Kidder Electric of Florida, Inc. v. U.S. Fidelity & Guaranty Co., 530 So .2d 475, 476 n.1("[T]he relationship between the contractor, as principal on the payment bond, and the surety is such that the surety will be bound by the arbitration determination although not a party to the arbitration proceeding. Therefore, the mutuality rule is met and both the surety and the subcontractors (who are parties to the arbitration proceeding) will, by the doctrine of collateral estoppel, be bound in the bond action by the determination in the arbitration proceeding.")(citation omitted.); Tahoe Sierra Preservation Council, Inc. v. Tahoe Regional Planning Agency,
322 F.3d 1064, 1082 (9th Cir. 2003)("One of the relationships that has been deemed 'sufficiently close' to justify a finding of privity is that of an organization or unincorporated association filing suit on behalf of its members."); and Greenblatt v. Drexel Burnham Lambert, Inc., 763 F.2d 1352, 1360 (11th Cir. 1985)("When an arbitration proceeding affords basic elements of adjudicatory procedure, such as an opportunity for presentation of evidence, the determination of issues in an arbitration proceeding should generally be treated as conclusive in subsequent proceedings, just as determinations of a court would be treated."). However, even if Arbitrator Coln's findings were deemed to have no preclusive effect and were ignored, there would be no difference in the ultimate disposition of the instant case, given the insufficiency of Petitioner's evidentiary presentation.
4 The evidentiary record does not reveal how, when, or from whom Petitioner obtained the sticker; nor does it reveal the sticker's size, what it looks like, or where it is located on the car.
5 It is impossible to discern from the evidentiary record the cause of, and the person(s), if any, responsible for, the "bubbling" and discoloration on the hood of Petitioner's car.
6 The identity of the person who vandalized Petitioner's mailbox and the outside of her apartment cannot be ascertained from the evidentiary record. Petitioner suspects that Mr. Marotta was the culprit and that he also was responsible for the damage done to the hood of her car (speculating that Mr. Marotta did these things to her because she had not given him a Christmas present). Petitioner's mere suspicion and speculation, however, are insufficient to support a finding of fact placing the blame for these occurrences on Mr. Marotta.
7 Why these "dirty plastic bags" were tied to the handlebars of Jeanna's bicycle, and who was responsible for placing them there, are questions that the evidentiary record leaves unanswered.
8 Such "quantifiable damages" do not include damages for emotional injuries. See Metropolitan Dade County Fair Housing and Employment Appeals Board v. Sunrise Village Mobile Home Park, Inc., 511 So. 2d 962, 966 (Fla. 1987)("[W]e hold that section 11A-7(5)(f)(ii) of the instant ordinance is unconstitutional to the extent that it authorizes administrative awards of common law damages for such nonquantifiable injuries as humiliation, embarrassment, and mental distress."); Broward County v. La Rosa, 505 So. 2d 422, 424 n.5 (Fla. 1987)("We see a significant distinction between administrative awards of quantifiable damages for such items as back rent or back wages and awards for such nonquantifiable damages as pain and suffering or humiliation and embarrassment."); and Hotelera Naco, Inc. v. Chinea, 708 So. 2d 961, 962 (Fla. 3d DCA 1998)("We also conclude that the trial court erred in allowing the jury to award damages for mental anguish and loss of dignity, and awarding appellee, Maria E. Chinea, attorney's fees. The ordinance in effect at the time the cause of action arose only allowed for the award of quantifiable damages."). Accordingly, even if Petitioner were able to establish that Respondents are guilty of having engaged in "discriminatory housing practices" against her, she would not be entitled to receive the "[c]ompensation for emotional distress" she has asked (in her March 15, 2004, post-hearing submittal) to be awarded.
9 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 complainant," but neither it, nor any other provision in the Act, prescribes a standard of proof the complainant must meet.
10 In their Proposed Recommended Order, Respondents list the issue of "whether Petitioner has been the subject of retaliatory conduct by Respondents" as one of "[t]he issues [to be decided] in the [instant] case. They do not argue that, because of the absence of a formal complaint filed by Petitioner alleging she was the victim of unlawful retaliation, this issue is not ripe for resolution.
11 A case of particular note cited in Wimberly, Penny and Puoci is Kelly v. Drexel University, 94 F.3d 102, 105-06 (3d Cir. 1996), wherein the Third Circuit Court of Appeals stated, in pertinent part, the following:
As we have indicated, in granting summary judgment the district court held that Kelly failed to establish a prima facie case of disability discrimination because the court found that he was not disabled for the purposes of the ADA. Kelly, 907 F. Supp. at 873-74. We first address this holding. A plaintiff has a "disability" for the purposes of the ADA if he (1) has "a physical or mental impairment that substantially limits one or more of the major life activities of such individual";
has "a record of such an impairment"; or
is "regarded as having such an impairment." 42 U.S.C. § 1202(2); 29 C.F.R.
§ 1630.2(g). Kelly does not claim that he was fired based on a record of disability, so we focus on the first and third definitions. Br. at 36-37. In addition, Drexel does not dispute that Kelly suffers from an impairment that causes him to walk with a limp or that walking is a major life
activity. Br. at 12 n. 8. Thus, the burden rests with Kelly to show that his injury "substantially limits" his ability to walk.
The ADA does not define "major life activities." Bolton v. Scrivner, Inc., 36 F.3d 939, 942 (10th Cir. 1994), cert.
denied, 513 U.S. 1152, 115 S. Ct. 1104, 130
L.Ed.2d 1071 (1995). The EEOC regulations, however, provide, that an individual is substantially limited in a major life
activity if he is "[u]nable to perform a major life activity that the average person in the general population can perform" or is "[s]ignificantly restricted as to the condition, manner or duration under which [he] can perform a particular major life activity as compared to the condition, manner, or duration under which the average person in the general population can perform that same major life activity." 29 C.F.R. § 1630.2(j). In relevant part, the regulations suggest considering "[t]he nature and severity of the impairment." 29
C.F.R. § 1630.2(j)(2)(i). Kelly admits that he is able to walk so the question presented is whether he adduced sufficient evidence from which a factfinder reasonably could conclude that the nature and severity of his injury significantly restricted his ability to walk as compared with an average person in the general population.
When asked during his deposition about the limitations on his walking, Kelly stated that he believed that he could not walk "more than a mile or so" and that he "certainly couldn't jog." App. at 467. He also stated that when climbing stairs, "I have to pace myself slower, and I would, naturally, hold onto the rail." Id. Dr.
Z.B. Friedenberg, M.D., Kelly's treating physician, submitted the following statement:
"Mr. Kelly has been under my care since December of 1987, for severe problems with his right hip joint.
The diagnosis on this patient was severe post-traumatic degenerative joint disease of the right hip and protrusio acetabulum of the right hip joint.
The patient's condition causes him great difficulty in walking around."
App. at 334. Kelly, however, presented no evidence that he required any special devices like a cane or crutches to aid him in walking. The district court held "as a matter of law that [Kelly's] trouble climbing stairs, which requires him to move slowly and hold the handrail, does not substantially limit his ability to walk." Kelly, 907 F. Supp. at 874. We will affirm the district court's holding in this regard.
Another notable case, which was cited in Penny and Puoci, is Stone v. Entergy Services, Inc., 1995 WL 368473 *4 (E.D. La. 1995), wherein it was held that, "[a]lthough plaintiff [could not] walk briskly, and ha[d] some trouble climbing
stairs, . . . his ability to walk [was] not substantially limited nor significantly restricted" and therefore he did "not have a physical impairment that substantially limit[ed] a major life activity."
12 For Petitioner, using the "guest only" handicapped parking space in front of her building, in addition to her assigned parking space, was a mere convenience, rather than something that was necessary to enable her to experience the full enjoyment of the premises on an equal footing with those residents of the development not having physical impairments similar to hers.
13 As noted above, the acts about which Petitioner has complained do not include the Association's requiring children under 14 years of age to be accompanied by an adult when in the pool area of the development, which she acknowledges is a reasonable and prudent policy.
COPIES FURNISHED:
Cecil Howard, General Counsel Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100
Tallahassee, Florida 32301
Denise Crawford, Agency Clerk Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100
Tallahassee, Florida 32301
Maria O'Connor
1425 Arthur Street, No. 408
Hollywood, Florida 33020
Charles F. Otto, Esquire
3990 Sheridan Street, Suite 109
Hollywood, Florida 33021
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 | Document | Summary |
|---|---|---|
| Sep. 22, 2004 | Agency Final Order | |
| Mar. 30, 2004 | Recommended Order | Petitioner failed to meet her burden of proving that she was a victim of housing discrimination based on handicap and familial status. |
