STATE OF FLORIDA
DIVISION OF ADMINISTRATIVE HEARINGS
LILIAN BREZINER, | ) ) | |||
Petitioner, | ) ) | |||
vs. | ) | Case | No. | 08-4152 |
) | ||||
POINTE EAST THREE CONDOMINIUM | ) | |||
CORPORATION. | ) ) | |||
Respondent. | ) | |||
| ) |
RECOMMENDED ORDER
This case came before Administrative Law Judge June C. McKinney of the Division of Administrative Hearings for final hearing on January 28, 2009, in Miami, Florida, and on March 4, 2009, by video teleconference at sites in Tallahassee and Miami, Florida.
APPEARANCES
For Petitioner: Lilian Breziner, pro se
2920 Pointe East Drive, Apt. N-508 Aventura, Florida 33160
For Respondent: Scott R. Shapiro, Esquire
Glazer & Associates, P.A. One Emerald Place
3113 Stirling Road, Suite 201
Hollywood, Florida 33312 STATEMENT OF THE ISSUE
The issue in this case is whether Respondent unlawfully discriminated against Petitioner in violation of the Fair
Housing Act by refusing to allow her to keep a dog in her condominium as an accommodation.
PRELIMINARY STATEMENT
In a Housing Discrimination Complaint filed on March 25, 2008, and subsequently investigated by the Florida Commission on Human Relations (hereinafter "Commission") Lillian Breziner (hereinafter "Breziner" or "Petitioner") charged that Point East Three Condominium Corporation, Inc.(hereinafter "Point East" or "Respondent") failed to make a reasonable accommodation and unlawfully discriminated against Petitioner by not allowing her to keep her dog in her condominium unit as an accommodation because she was disabled.
The Commission investigated Petitioner's claim and on July 14, 2008, issued a notice setting forth its determination that reasonable cause did not exist to believe that a discriminatory housing practice had occurred. Thereafter, Petitioner filed a Petition for Relief, which the Commission sent to the Division of Administrative Hearings (hereinafter "DOAH") on August 21, 2008.
At the final hearing, Breziner testified on her own behalf and presented two witnesses, Richard Walsh and Marilyn Miller. Petitioner's Exhibits 1 through 12 were offered and admitted in evidence. Respondent offered Exhibits 1 through 3 during its
cross-examination of Petitioner and three exhibits were received into evidence. Respondent did not otherwise present a case.
The January 28, 2009, Transcript of the proceeding was filed with the DOAH. Both parties filed timely Proposed Recommended Orders, which have been duly considered. The new allegations and documents filed by Petitioner on April 4, 2009, were stricken and not considered in this matter.
Unless otherwise indicated, citations to the Florida Statutes refer to the 2007 Florida Statutes.
FINDINGS OF FACTS
On April 5, 2006, Petitioner purchased a condominium (hereinafter "condo") at Point East Three Condominium Association, Inc. She has resided in Unit N-508 continuously since she purchased the condo. Breziner was provided the Association's Declaration of Condominium and Rules and Regulations, which both prohibited unit owners from keeping pets in their units.
Point East is the entity responsible for operating and managing the condo property in which Breziner's unit is located. Breziner signed the association rules when she moved into the condo. At all times relevant to this proceeding, Respondent had a no pets written policy.
Section 10.3 of the Declaration states in relevant
part:
No animals, birds, fish, reptiles, amphibians or pets of any nature and description shall be raised, bred, or kept in any apartment, the limited common elements or the common elements.
Point East's rules that Breziner signed state in relevant part:
6. I understand that there is a restriction on pets and that I may not bring a pet, nor may any guest, visitor or tenant bring a pet into POINT EAST THREE CONDOMINIUM nor acquire one, either temporarily or permanently after occupancy.
Petitioner's son gave her an American Cocker Spaniel dog after she moved into the condo. She keeps the dog in her unit. The dog is named Oossa. Breziner took the dog to
10 classes for 10 weeks, and the dog was trained to be obedient, sit, to listen to her, to walk near her, and not to eat food from the street. Oossa received a diploma from the local Pet Smart store for completion of the training.
Oossa did not receive any training as an emotional support animal and has not been trained to perform tasks to assist with a disability. However, Petitioner paid $107.00 to Goldstar German Shepherds: All Breed Dog Training & Service Dogs training facility in Nevada to receive a certificate that says Oossa is a service animal.
The certificate states:
Goldstar dog training is a private entity not affiliated with the Dept. of Justice or
any other state or Federal Agency. Goldstar dog training is not empowered to make legal decisions pertaining to your rights. Should you encounter issues pertaining to access for your service animal, use the number above to contact the United States Department of Justice (Disability Rights Section).
Breziner is a holocaust survivor and on July 10, 1998, she was robbed, beaten and left to die. The incident caused her to be unconscious for several days and have major surgery. From the assault, she also lost her business.
On July 18, 2007, Petitioner by letter requested a meeting with Point East regarding her dog. She indicated that she had a doctor's note for the dog. On July 19, 2007, Breziner requested that Point East allow her to keep her dog as a service dog under Section 413.08, Florida Statutes. On September 6, 2007, Point East sent Petitioner a letter notifying her of a violation of Section 10.3 of the Declaration of Condominium and informed Petitioner that she needed to remove the dog.
On September 28, 2008, Petitioner provided Point East with documentation asserting emotional and physical disabilities and a request to keep her dog as a reasonable accommodation. Petitioner wants to keep the dog because Oossa provides companionship and comfort, which makes Petitioner happy. In addition, the dog has motivated Breziner to be more active. Breziner has an emotional bond with her dog.
Petitioner saw Dr. Judith Chavin on July 3, 2006, and was given a prescription that stated: "Please allow Ms. Lillian Breziner to have her dog at her home. The dog is beneficial to her health." Dr. Cauvin also wrote a letter on September 27, 2007, that stated that "[i]t would be tragic if Mrs. Breziner were to lose her dog. I believe that her depression would be worse and that would impact on her mental and physical well being."
On July 10, 2008, Dr. Vindimir Derenoncount, a family medical doctor, filled out a Medical Certification form for Petitioner. He noted that "I am a Physician temporarily covering the clinic which Mrs. Breziner attends. The following information has been gathered from her chart . . ."suffers from chronic severe depression and anxiety . . . partially deaf in l[eft] ear."1 Derenoncount did not independently diagnose or evaluate Breziner.
Marilyn Miller, Breziner's Holocaust Survivor Case Manager, has known Breziner for nine years. She visits Petitioner's home and tracks her status. She works with Breziner because she is a holocaust survivor. Miller testified that she does not diagnose patients because she is a social worker. However, she reviewed Breziner's records and testified that the records indicate that she has anxiety and depression.
Breziner takes antidepressant and anxiety medicine daily prescribed by her primary care doctor. Prior to
January 12, 2009, Breziner's dosage of Celexa prescription was 20mm. The doctor increased it on January 27, 2009, to 30mm and to 40mm on Febraury 12, 2009.
On September 11, 2008, Dr. Jose Rivas did a psychiatric evaluation on Breziner. He referred Petitioner to Richard Walsh at Bayview Center for Mental Health, Inc., for individual counseling regarding her multiple losses. Walsh is a licensed clinical social worker but has no advanced degrees in medicine. He agrees with the multiple diagnoses Breziner received prior to seeing him of post traumatic stress syndrome, anxiety and depression.
Breziner's depression and anxiety do not substantially limit any life activities. She goes everywhere and takes Oossa with her to stores and restaurants. Breziner is capable and performs all life activities she chooses. Oassa is Breziner's companion.
CONCLUSIONS OF LAW
The Division of Administrative Hearings has jurisdiction over the subject matter of this proceeding and of the parties pursuant to Sections 120.569 and 120.57(1), Florida Statutes (2008).
Petitioner has the burden of proving that Respondent violated either of the Acts2 by failing to waive its no pets policy as a reasonable accommodation. See Florida Department of Transportation v. J.W. C. Company, Inc., 396 So. 2d 778 (Fla. 1st DCA 1981).
Florida recognizes handicap-based housing discrimination. Section 760.23(8)(b), Florida Statutes provides:
(8) 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:
* * *
(b) A person residing in or intending to reside in that dwelling after it is sold, rented, or made available; or . . . .
42 U.S.C.A. Section 3602(h) provides, in pertinent part, the following definition of the term "handicap" for purposes of the Federal Act:
"Handicap" means, with respect to a person--
a physical or mental impairment which substantially limits one or more of such person's major life activities,
a record of having such an impairment, or
being regarded as having such an impairment . . .
Handicap" is defined in the Florida Act in Section 760.22(7)(a), Florida Statutes, as follows:
(7) "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;
42 U.S.C.A. Section 3604(f)(3)(B), provides that the following constitutes housing discrimination within the meaning of the Federal Act:
(f)(3)(B) a refusal to make reasonable accommodations in rules, policies, practices, or services, when such accommodations may be necessary to afford such person equal opportunity to use and enjoy a dwelling . . .
The Florida Act has a similar provision. Section 760.23(9), Florida Statutes, provides as follows:
For purposes of subsections (7) and (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.
Breziner asserts that Oosa is a service animal under Section 413.08, Florida Statutes. Section 413.08(1)(b)(d), Florida Statutes, defines service animal as follows:
(d) "Service animal" means an animal that is trained to perform tasks for an individual with a disability. The tasks may include, but are not limited to, guiding a person who is visually impaired or blind,
alerting a person who is deaf or hard of hearing, pulling a wheelchair, assisting with mobility or balance, alerting and protecting a person who is having a seizure, retrieving objects, or performing other special tasks. A service animal is not a pet.3
To prevail in this proceeding under either the Federal or Florida Act, Petitioner has the burden of proving (1) that she is handicapped, and (2) that it is necessary for the Association to make an accommodation in its rules to allow Oossa in Petitioner's unit so that Breziner has an opportunity equal to that of the other residents to use and enjoy the condominium apartment.
Based on the facts as found herein, Petitioner failed to prove that she suffers from a handicap within the meaning of both Acts. Breziner's anxiety and depression do not limit her ability to perform any of the major life activities contemplated under the Acts and therefore, Breziner is not a member of the handicapped class that is protected from discrimination by the Acts. Accordingly, Petitioner's failure to establish membership of a protected class ends any further inquiry regarding discrimination.
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 Petitioner's Petition for Relief.
DONE AND ENTERED this 29th day of April, 2009, in Tallahassee, Leon County, Florida.
S
JUNE C. McKINNEY
Administrative Law Judge
Division of Administrative Hearings The DeSoto Building
1230 Apalachee Parkway
Tallahassee, Florida 32399-3060
(850) 488-9675
Fax Filing (850) 921-6847 www.doah.state.fl.us
Filed with the Clerk of the Division of Administrative Hearings this 29th day of April, 2009.
ENDNOTES
1/ Petitioner did not assert her partially deaf left ear as grounds for the accommodation in this matter.
2/ For ease of reference, the Florida Fair Housing Act will be referred to as the Florida Act and the Federal Fair Housing Act will be referred to as the Federal Act. Collectively, they will be referred to as the Acts.
3/ Oosha is not a service animal under Florida Statutes since the cocker spaniel has not been trained to perform any special tasks for an individual with a disability or handicap. The Goldstar certificate clarifies that such certification is not controlling over state and federal laws.
COPIES FURNISHED:
Denise Crawford, Agency Clerk
Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100
Tallahassee, Florida 32301
Scott R. Shapiro, Esquire Glazer & Associates, P.A. One Emerald Place
3113 Stirling Road, Suite 201
Hollywood, Florida 33312
Lilian Breziner
2920 Pointe East Drive, Apt. N-508 Aventura, Florida 33160
Larry Kranert, General Counsel Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100
Tallahassee, Florida 32301
NOTICE OF RIGHT TO SUBMIT EXCEPTIONS
All parties have the right to submit written exceptions within
15 days from the date of this Recommended Order. Any exceptions to this Recommended Order should be filed with the agency that will issue the Final Order in this case.
| Issue Date | Document | Summary |
|---|---|---|
| Jul. 01, 2009 | Agency Final Order | |
| Apr. 29, 2009 | Recommended Order | Petitioner failed to prove that condominium association discriminated against her in violation of the Fair Housing Act by refusing to allow her to keep a dog in her condo as an accomodation for a handicap. |
