STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

CATHERINE HALL,

Petitioner,

vs.

VILLAGES OF WEST OAKS HOA,

Respondent.

)

)

)

)

) Case No. 07-3368

)

)

)

)

)

RECOMMENDED ORDER

Pursuant to notice, a formal hearing was held in this case on September 17, 2007, in Orlando, Florida, before Jeff B. Clark, a duly-designated Administrative Law Judge of the Division of Administrative Hearings.

APPEARANCES

For Petitioner: Catherine Hall, pro se

584 Neuman Village Court Ocoee, Florida 34761

For Respondent: Ron M. Campbell, Esquire

Cole, Scott & Kissane, P.A. 1645 Palm Beach Lakes Boulevard Second Floor

West Palm Beach, Florida 33401-2204 STATEMENT OF THE ISSUE

Whether Respondent violated the Florida Fair Housing Act as alleged in the Petition for Relief filed with the Florida Commission on Human Relations on July 9, 2007.

PRELIMINARY STATEMENT

On or about March 16, 2007, Petitioner, Catherine Hall, filed a Housing Discrimination Complaint with the Florida Commission on Human Relations ("FCHR"), in which she alleged that Respondent, Villages of West Oaks Homeowners Association, Inc. ("Association"), through its officers and property management company, Southwest Property Management, had discriminated against her based on her sex and familial status in violation of the Florida Fair Housing Act. On June 15, 2007, the FCHR issued a Determination of No Reasonable Cause based on a finding that, after investigation, there was no reasonable cause to believe that a discriminatory housing practice had occurred.

On July 9, 2007, Petitioner filed a Petition for Relief with the FCHR, in which she alleged that she was denied an opportunity to serve on the homeowners' association Board of Directors because of the "number of complaints" and threats of a lien being placed on her "house to keep them from moving until things met their approval." This information is contained in a handwritten three-page attachment to the Petition for Relief.

On July 19, 2007, FCHR transmitted the Petition for Relief to the Division of Administrative Hearings for assignment of an Administrative Law Judge.

On July 20, 2007, an Initial Order was sent to both parties. Based on the response to the Initial Order, on August 6, 2007, the case was scheduled for final hearing on September 19, 2007, in Orlando, Florida.

At the final hearing, Petitioner testified in her own behalf and presented the testimony of Victoria Laney.

Petitioner's Exhibits 1 through 4 were offered and received into evidence. Respondent presented the testimony of Gary Comstock and Eric Bowles. Respondent's Exhibits 1 through 5, 7 and 8 were offered and received into evidence.

No transcript of this proceeding was filed with the Division of Administrative Hearings. Both parties timely submitted Proposed Findings of Fact and Conclusions of Law, which have been considered in the preparation of this Recommended Order.

All references are to Florida Statutes (2006), unless otherwise noted.

FINDINGS OF FACT

Based on the oral and documentary evidence presented at the final hearing and on the entire record of this proceeding, the following Findings of Fact are made:

1. Petitioner is a single, widowed mother of two minor sons. She belongs to a protected class under the Florida Fair Housing Act because of her sex and familial status.

2. During the times material to these proceedings, Petitioner owned and resided at 1779 Cambridge Village Court, Ocoee, Florida, within the Villages of West Oaks. As a fee interest owner of a lot within the Villages of West Oaks, she is a member of Respondent homeowners' association.

3. Respondent, a not-for-profit corporation, is managed by a Board of Directors drawn from the homeowners' association members elected by members of the homeowners' association as dictated by its Articles of Incorporation and By-Laws.

4. The Board of Directors employed Southwest Property Management to assist the Board of Directors in the management of the homeowners' association, to carry out the instructions of the Board of Directors in the management of the homeowners' association, and to ensure that the homeowners' association's rules were enforced.

5. During the times material to this proceeding, Gary Comstock, an employee of Southwest Property Management, inspected the residences of the Villages of West Oaks to insure compliance with the Covenants, Conditions, and Restrictions of the Villages of West Oaks and Villages of West Oaks Architectural Standards.

6. The above-mentioned Covenants, Conditions, Restrictions and Architectural Standards contain "general restrictions" that address the appearance of the residential lots within the

   Villages of West Oaks. For example, Article IV, Section 1(f), of the Covenants, Conditions, and Restrictions reads, in pertinent part, "All lots shall be maintained and landscaped to a standard suitable for this type development." The Architectural Standards Manual further defines landscaping standards by dictating the minimum and maximum height and type of lawn grass and provides additional, more specific, landscaping guidelines. However, these landscaping guidelines include the following: "All lots shall be landscaped and in keeping with the general conformity and harmony of the Villages of West Oaks." As a result, the landscaping rules and guidelines are vague.

7. Petitioner was a member of the Board of Directors and Architectural Review Board that created the referenced Villages of West Oaks Architectural Standards Manual in September 2004.

8. Between February 29, 2004, and January 10, 2006, Southwest Property Management sent Petitioner nine letters that addressed purported "disrepair of your home," "covenant violations," "need for lawn replacement," "miscellaneous items on porch," and "miscellaneous items in driveway."

9. During the same general period of time, a significant number of homeowners' association members, female and male (Mr. or Mrs.), apparent single female (Ms.), and apparent

   married couples (Mr. and Mrs.), received similar letters addressing purported violations similar to those of Petitioner.

10. Petitioner urges that she was discriminated against because of her sex and the fact the she had two teenage boys. Petitioner alleges that this discrimination was manifest in her receipt of the complaints regarding the maintenance of her home and yard. The sheer volume of similar letters to other homeowners and visual evidence received does not support this contention. Admittedly, the "landscape rules and guidelines" require subjective assessment, but there isn't any evidence of discrimination based on sex or familial status.

11. In 2006, the Board of Directors sought volunteers to offer themselves as candidates for board positions. Petitioner offered herself as a candidate at a meeting. Apparently, there was then a discussion among Petitioner, board members and other meeting attendees that Petitioner was not qualified to serve on the board because of her extensive history of violations of the homeowners' association rules. The testimony is conflicting as to whether Petitioner withdrew her name from consideration. The homeowners' association's controlling documents do not contemplate the selection process undertaken at this meeting, nor is there a basis in these documents for disqualification based on a history of violation of homeowners' association rules, except for failure to pay assessments.

12. If this prohibition from candidacy for the Board of Directors reflects discrimination, the discrimination is based on Petitioner's purported failure to comply with homeowners' association rules, not because of her sex or familial status.

13. There is no persuasive evidence that the homeowners' association, either by a member of the Board of Directors or an employee of the property management, threatened to place a lien on Petitioner's property.

    CONCLUSIONS OF LAW

    
    

14. The Division of Administrative Hearings has jurisdiction over the subject matter of this proceeding and of the parties thereto pursuant to Section 120.569 and Subsection 120.57(1), Florida Statutes (2007).

15. Section 760.23, Florida Statutes, part of the Florida Fair Housing Act, provides, in pertinent part:

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

    
    

16. Petitioner has the burden of proving by a preponderance of the evidence that Respondent violated the Florida Fair Housing Act. See §§ 760.34(5) and 120.57(1)(j), Fla. Stat.

17. The Petition for Relief is essentially a rebuttal of the determination of no cause by the FCHR and reflects a general disenchantment with the way the Board of Directors and the property management organization did business.

18. In the two years following her tenure on the homeowners' association Board of Directors in 2003-2004, Petitioner was notified of a series of purported rule violations. Petitioner alleges that her sex and familial status are the basis of these allegations of rule violations. The evidence reveals that other homeowners, regardless of sex or familial status, were the subject of the same notification.

19. This series of purported rule violations is the basis for not considering Petitioner's offer of further service on the board. While not a basis for disqualification in the governing documents of the homeowners' association, it does not support a claim of discrimination based on sex or familial status.

20. Based on the Findings of Fact herein, Petitioner has failed to prove by a preponderance of the evidence that Respondent discriminated against her because of her sex or familial status.

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 Catherine Hall.

DONE AND ENTERED this 18th day of October, 2007, in Tallahassee, Leon County, Florida.

S

JEFF B. CLARK

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 18th day of October, 2007.

COPIES FURNISHED:

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

Tallahassee, Florida 32301

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

Tallahassee, Florida 32301

Catherine Hall

584 Neuman Village Court Ocoee, Florida 34761

Ron M. Campbell, Esquire Cole, Scott & Kissane, P.A.

1645 Palm Beach Lakes Boulevard Second Floor

West Palm Beach, Florida 33401-2204

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: 07-003368

Orders for Case No: 07-003368