STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

MIRIAM. S. MARTINEZ, )

)

Petitioner, )

)

vs. ) Case No. 04-1971

) ALICIA LOPEZ, TEMPO CONDOMINIUM ) ASSOCIATION, and ONEIDA MORENA, )

)

Respondents. )

_________________________________)

RECOMMENDED ORDER

Pursuant to notice a formal hearing was held in this case on August 19, 2004, in Miami, Florida, before J. D. Parrish, a designated Administrative Law Judge of the Division of Administrative Hearings.

APPEARANCES

For Petitioner: Miriam S. Martinez, pro se

4301 Northwest 18th Street Miami, Florida 33126

For Respondents: Carlos Caso, Esquire

1300 Coral Way, Suite 301

Miami, Florida 33145 STATEMENT OF THE ISSUE

The issue in this case is whether the Respondents committed a violation of Florida's Fair Housing Act by engaging in discrimination against this Petitioner.

PRELIMINARY STATEMENT

This case began with a complaint of discrimination filed

by the Petitioner, Miriam S. Martinez, against the Respondents, Alicia Lopez, Tempo Condominium Association, and Oneida Morena (Respondents), with the Florida Commission on Human Relations. The Petitioner alleged that the Respondents committed unlawful acts of discrimination by conducting condominium association meetings in Spanish, by failing to timely repair an elevator needed by the Petitioner due to her physical handicap, and by committing acts of vandalism on the Petitioner's property.

On April 26, 2004, the Florida Commission on Human Relations entered its Determination of No Reasonable Cause and the Petitioner was afforded an opportunity to file a Petition for Relief. She did so timely and reasserted the various acts of discrimination committed by the Respondents. The Petition for Relief was forwarded to the Division of Administrative Hearings for formal proceedings on June 4, 2004.

Thereafter, the matter was scheduled for formal hearing.

At the hearing the Petitioner testified in her own behalf. Petitioner's Exhibits A, B, G, H, I, K, L, M, N, O, P, Q, R, S, and T were admitted into evidence. The Respondents presented testimony from Oneida Morena, Alicia Lopez, Lisa Collins, and Marta Clement. The Respondent's Exhibit 1 was also received in evidence.

The only relief sought by Petitioner in this cause

(confirmed at the formal hearing) is a written apology from the Respondents and an agreement that Mrs. Lopez will refrain from bothering her.

A transcript of the proceedings was not ordered. The parties requested, and were granted, 15 days within which to file proposed recommended orders. Based upon an extension granted the parties were to file proposed recommended orders no later than September 3, 2004. Neither party timely filed proposed recommended orders. However, the Petitioner's Proposed Recommended Order (filed September 13, 2004) has been considered in the preparation of this order. The Respondents did not file a proposal.

FINDINGS OF FACT

1. At all times material to the allegations of this case, the Petitioner resided at Tempo Condominiums in a unit owned by her parents. It is undisputed the Petitioner has resided there since 1985.

2. The Respondent, Alicia Lopez, is an officer of the Tempo Condominium Association. Ms. Lopez resides at the Tempo Condominium property.

3. The Respondent, Oneida Morena, is the property manager employed by a company retained by the Tempo Condominium Association to operate the day-to-day operations of the condominium.

4. The Tempo Condominium Association presumably governs the condominiums within the Tempo Condominium complex. The complex is comprised of multiple buildings having multiple floors. The

   number of individual dwelling units within the complex was not established in this record.

5. The Petitioner suffers from a debilitating disease that makes walking and movement painful and difficult. Although her parents originally owned three units within the Tempo Condominium complex (one of which was on the ground floor), the Petitioner resides in a second story unit. The parents have sold the other two units.

6. The Petitioner relies on the elevator to transport her up and down between floors. When the Petitioner first moved into the Tempo Condominium complex she did not require the use of the elevator. As her illness progresses she becomes more and more dependent on the elevator.

7. When the elevator is out of service, the Petitioner must use the stairway. Climbing up and down the stairs causes her great physical discomfort.

8. The Petitioner does not believe the Respondents take adequate action to assure that the elevator is timely repaired. On one occasion it took several days for the elevator to come back into use.

9. In truth, the elevator is old and prone to fail.

   
   

   When notified of the specific breakdown complained of by this Petitioner (and reported to a local television investigative unit), Ms. Morena attempted to have the elevator timely

   repaired only to discover that parts were not locally available. When the parts came in, the elevator was repaired. The Respondents did not intentionally damage the elevator or delay the repair. Other residents, besides this Petitioner, rely on the elevator for ease of transport between floors.

10. The Tempo Condominium Association conducts its meetings in Spanish and English. Persons attending the meetings are assured that the information presented will be translated for those who require either Spanish or English.

11. Notices for meetings are printed and posted in both Spanish and English.

12. The Petitioner was the victim of numerous acts of vandalism while a resident at the condominium. Unfortunately, the Petitioner did not witness any of the acts. The Petitioner is unable to describe the perpetrator(s). The Respondents denied any involvement in the acts complained of.

    CONCLUSIONS OF LAW

    
    

13. The Division of Administrative Hearings has jurisdiction over the parties to and the subject matter of these proceedings. §§ 120.569, and 120.57(1), Fla. Stat.

14. The Petitioner bears the burden of proof in this case to establish that the Respondents committed acts of discrimination in violation of the Florida Fair Housing Act. She has failed to meet that burden.

15. Section 760.23, Florida Statutes, provides, in pertinent part:

    1. 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:

       (a) That buyer or renter;

       * * *

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

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

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

    3. Covered multifamily dwellings as defined herein which are intended for first occupancy after March 13, 1991, shall be designed and constructed to have at least one building entrance on an accessible route unless it is impractical to do so because of the terrain or unusual characteristics of the site as determined by commission rule. Such buildings shall also be designed and constructed in such a manner that:

       (a) The public use and common use portions of such dwellings are readily accessible to and usable by handicapped persons.

16. With regard to the elevator repair at issue in this case, the Respondents established that they took prompt action to repair the elevator. It is unfortunate that the Petitioner had to use the stairway but the short delay in the repair was not the result of an act or omission of the Respondents. Further, the expense of replacing the elevator would in all likelihood require action from the condominium board as the property manager would not typically be authorized to incur such an expense without prior approval. Further, there is no evidence that would establish the replacement of the elevator would have taken less time than the repair.

17. It is evident that the Petitioner and individuals at the condominium do not harmoniously share the common spaces of the condominium complex. The numerous acts of vandalism against the Petitioner cannot, however, be attributed to the Respondents absent some evidence. No one witnessed the incidents. The sole allegation regarding peeled paint on the Petitioner's door was promptly scheduled for repair. The Petitioner has not offered evidence linking these Respondents to any specific act.

18. The Petitioner seeks an apology. The undersigned does not have the authority to compel such relief. Clearly the Respondents could have saved themselves and the State of Florida the expenses of conducting an administrative hearing

had an apology been issued, but absent their willingness to do so, there is no legal authority to compel such relief from the undersigned.

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 denying the Petitioner's claim.

S

DONE AND ENTERED this 24th day of September, 2004, in Tallahassee, Leon County, Florida.

___________________________________

J. D. PARRISH 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 24th day of September, 2004.

COPIES FURNISHED:

Cecil Howard, General Counsel

Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100

Tallahassee, Florida 32301

Derick Daniel, Executive Director 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

Miriam S. Martinez

4301 Northwest 18th Street, No. 209

Miami, Florida 33126

Carlos Casa, Esquire

1300 Coral Way, Suite 301

Miami, Florida 33145

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: 04-001971

Orders for Case No: 04-001971