Upon due notice, and by specific stipulations of the parties, this cause came on for a disputed-fact hearing by telephonic conference call on August 18, 2009.
c/o Ronald D. Clifton, Jr. Summer Trees South HOA, Inc.
1326 South Ridgewood Avenue, No. 14 Daytona Beach, Florida 32114
Whether Respondent Homeowners Association discriminated against Petitioner on the basis of Petitioner's handicap/disability (deafness).
Petitioner filed a Charge of Discrimination/Failure to Accommodate with the Florida Commission on Human Relations (FCHR) on or about October 17, 2008. FCHR entered a Determination: No Cause on January 6, 2009. Petitioner timely- filed her Petition for Relief, and on or about February 20, 2009, the cause was referred to the Division of Administrative Hearings (DOAH).
DOAH's file reflects all pleadings, orders, and notices intervening before the final hearing on August 18, 2009.
After examination, Kathy Marcley was accepted as Respondent's Qualified Representative.
The parties had previously stipulated to the use of American Sign Language (ASL) interpreters supplied by the telephone company, and in the course of final hearing, two such persons were sequentially examined under oath by the undersigned, pursuant to Section 90.606, Florida Statutes. Each interpreter was sequentially accepted by the parties and the undersigned and sworn-in by the undersigned as interpreters for the final hearing.
Petitioner testified on her own behalf and had no exhibits admitted in evidence. Kathy Marcley testified on behalf of Respondent and had Exhibits R-1, R-2, and R-3 admitted in evidence.
No court reporter was present. No recording of the hearing was made. No transcript was provided.
At the close of evidence, the undersigned explained the parties' right to file proposed recommended orders within 10 days of final hearing. Respondent waived filing a proposed recommended order. Petitioner reserved the right to file a proposed recommended order within 10 days. Petitioner timely- filed a Proposed Recommended Order in letter-form, which has been considered. Respondent's late-filed letter-proposal has not been considered.
Petitioner and her husband are deaf. Deafness constitutes a handicap pursuant to Chapter 760, Florida Statutes. Petitioner reads and writes and is gainfully employed.
Petitioner and her husband are homeowners of an individual home in a subdivision of Daytona Beach, Florida. They pay annual fees to Respondent Homeowners Association for a variety of services, including maintenance of the common areas of the subdivision.
Respondent Homeowners Association's day-to-day business is conducted by Kathy Marcley of the Office of Clifton Financial Services, Inc. However, the Homeowners Association has its own by-laws and elected Board.
Petitioner's home is equipped with a flashing light and vibrator system to alert Petitioner and her husband to either someone ringing the doorbell or calling on the telephone. Petitioner uses an interpreter for the deaf supplied by the telephone company when she uses the telephone, so that she can understand, and be understood by, hearing persons on the other end of the telephone line.
A branch and/or palm fronds hung over the fence surrounding Petitioner's yard.
It is un-refuted that the offensive tree(s), from which the offending branch and/or fronds protrude, is planted on common ground.
"Tony," is a landscaper and independent vendor hired by the Homeowners Association to care for the common areas of the subdivision. He also does independent work on private property when paid for that purpose by homeowners.
On June 13, 2008, Petitioner's husband asked Tony to cut a branch that hung over the fence into the couple's private backyard. Petitioner's husband did not understand when Tony orally explained why he could not cut the branch.
According to Ms. Marcley, because the tree from which the offensive branch grew was on the subdivision's "common ground," Tony could not cut its branch without prior approval of the Homeowners Association's Board.
After his conversation with Tony, Petitioner's husband woke her. Petitioner and her husband got in their truck and went to another home in the subdivision where Tony was cutting grass. What they did not know, or at least what they failed to understand from Tony's oral explanation at the time they accosted him, was that Tony was cutting another homeowner's grass on that homeowner's property and was being paid by that homeowner, not by the Homeowners Association.
Apparently, after a few minutes, during which Tony tried to explain orally that he could not cut the tree that was of concern to Petitioner without Board approval, Tony gave up trying to communicate with Petitioner, and returned to his private employment.
Tony then started up his lawn mower, which spewed grass shavings into the open passenger window and over Petitioner. Petitioner was very offended by this situation, believing that Tony had deliberately caused the mess. She was also hurt that Tony had seemed to her to be agitated, upset, and angry, although due to her handicap, she was not sure what he was saying.
Later, Petitioner telephoned and complained to Kathy Marcley about Tony's behavior; she wanted Tony disciplined by the Homeowner's Association. Ms. Marcley listened to Petitioner's complaint, said she would check on it, and asked
Petitioner to call back. Petitioner considered Ms. Marcley rude and/or nonresponsive and/or abrupt and/or discriminatory towards deaf people, but these are purely Petitioner's subjective feelings.1/ Ms. Marcley's testimony is credible that, at the time of this phone call, she was alone in the office, trying to answer three telephones, and had already spent more than half- an-hour taking Petitioner's complaint when she terminated their call.
Later on June 13, 2008, Tony and a member of the Association's Board inspected the problem in Petitioner's yard, but did not contact Petitioner or her husband.
The next day, Petitioner called back to Ms. Marcley.
Despite some disagreement between Petitioner and Ms. Marcley about the length of this second conversation, it is un-refuted that Petitioner was offended that Ms. Marcley, having spoken to Tony, seemed to Petitioner to be "taking his side."
Ms. Marcley was unable to convince Petitioner that Petitioner's dispute with Tony had occurred at a time he was not even working for the Homeowners Association. Petitioner persisted in requesting that the Association require and pay Tony to trim the branches, fronds, etc., protruding over her fence or cut down the trees on common ground.
Ms. Marcley told Petitioner that Petitioner would have to come to a Board meeting to get permission for the Homeowners'
Association contract vendor (Tony) to prune or cut a tree or bushes on common ground.
At the instruction of the Board member who had inspected Petitioner's yard and the offending tree(s),
Ms. Marcley sent Petitioner a letter, dated June 20, 2008, stating:
After an inspection of the tree in the common area by your home, a member of the Board of Directors has instructed this Office to inform you that you have their permission to trim the above-referenced tree to the extent that it does not encumber your property.
Petitioner admitted receiving the foregoing letter and further admitted that she had never written back.
Either in the second phone call and/or subsequent phone calls, Ms. Marcley explained to Petitioner that Petitioner or her husband could cut the parts of the common tree that extended over their private property, in essence stating or restating what Ms. Marcley had written to Petitioner on behalf of the Board on June 20, 2008.
Either in the second or in a subsequent phone call, Ms. Marcley again advised Petitioner that Petitioner needed to come to a Board meeting and present her case if she wanted to have the Homeowners Association pay its vendor, Tony, to cut plant material originating on common ground. In the same phone call, Petitioner informed Ms. Marcley that Petitioner was deaf
and that it would do no good for Petitioner to come to a Board meeting unless the Board provided her with an ASL interpreter for the deaf. Petitioner further informed Ms. Marcley that the Homeowners Association was required by the Americans with Disabilities Act (ADA) to provide and pay for such an interpreter for Petitioner at any Board meeting.
Ms. Marcley initially disagreed that the Board was obligated to pay for an interpreter. The conversation then became heated, with Ms. Marcley denying any responsibility to pay for an interpreter and suggesting to Petitioner that Petitioner bring someone with her to the meeting who could communicate for Petitioner via writing notes, or that Petitioner provide her own ASL interpreter, or that Petitioner bring one of her neighbors to interpret for her, since the neighbor understood Petitioner. However, ultimately, Ms. Marcley told Petitioner that if Petitioner would contact her again and tell Ms. Marcley which Board meeting Petitioner wanted to attend so as to present her case for having Tony cut the tree(s) at the expense of the Association, Ms. Marcley would look into the matter and see what the Board could do about providing an interpreter for that particular meeting.
There is no corroboration that Petitioner was treated any differently than any non-hearing-impaired person with regard to tree trimming.
With regard to obtaining an interpreter at Association expense, Petitioner never notified Ms. Marcley as to which Board meeting she wanted to attend or when she would need an interpreter.
The Homeowners Association operates from the dues of all members. Petitioner did not put on any affirmative evidence that the cost of the special trimming she wanted was feasible for the Association to bear or that the cost of an interpreter for even one meeting was feasible for the Association.
On or about August 26, 2008, Petitioner filed a discrimination complaint with the Housing and Urban Development Agency. Her complaint to FCHR followed on October 17, 2008.
CONCLUSIONS OF LAW
The Division of Administrative Hearings has jurisdiction over the parties and subject matter of this cause, pursuant to Sections 120.569 and 120.57(1), Florida Statutes (2009).
Petitioner qualifies as a handicapped person pursuant to Section 760.22(7)(a) Florida Statutes, but Petitioner has not established that Respondent Homeowners Association qualifies as an appropriate Respondent under Section 760.23(2) or (8)(a), Florida Statutes, the only two provisions which could relate to the circumstances of this case.
Assuming, arguendo, but not ruling, that the Homeowners Association's provision of certain "services" as part of dues paid by Petitioner, renders the Association an appropriate Respondent in this cause, Petitioner still has not proven that the Association committed any actionable discrimination.
Petitioner sought to be treated differently than any other member of the Homeowners Association, by requesting that more and different free landscaping services be provided to her than were being provided to any other homeowner in the subdivision. This request was not for an accommodation in support of her disability/handicap. This request was simply that she wanted special treatment by having a tree rooted in common ground trimmed at the Association's expense. She, herself, could have trimmed the offending branches that hung over her private property, but despite written approval by the Association for her to trim the branches herself, she persisted in asking for a special benefit.
Petitioner's problem with Tony apparently occurred when he was not working for the Board. Due to Petitioner's handicap, she and Tony did not understand each other. However, this lack of communication cannot be laid at the Homeowners Association's door, because Tony was not then acting for the Association, and because the Association had received no prior
request to interpret the impromptu meeting between Tony and Petitioner.
Petitioner next sought to have her trimming desires met by Board action (a vote at a public meeting), but she did not take the necessary steps to make a presentation and motion to the Board in order to obtain those services.
Respondent, in the person of Ms. Marcley, did not deny or unreasonably delay Petitioner's request for a reasonable accommodation. Respondent and/or Ms. Marcley only required that Petitioner go through the usual procedures of presenting her proposal to the Board of the Homeowners Association at a public meeting so that an informed vote of the Board might be taken.
On this score, Petitioner provided no evidence that any non- handicapped person was ever granted a similar special privilege without a presentation and Board vote.
Respondent was willing to allow Petitioner to bring an ASL interpreter or a note-taker to attend all Board meetings so as to assist Petitioner, due to her handicap. However, Petitioner felt the ASL interpreter should be provided for her, without charge, by the Homeowners Association. Petitioner did not even give Ms. Marcley a date she wanted to appear before the Board, so that Ms. Marcley could investigate any legal obligation the Board might have, under the ADA or other laws, to provide an interpreter; to determine if the Association had
sufficient funds to make such an accommodation for Petitioner; to determine whether any other accommodation via some other type of sign language interpreter could reasonably be made; or to determine if an informal interpreter could be obtained.
Petitioner simply did not follow through to get a final answer of "yes" or "no" from Respondent's management authority concerning the provision of an interpreter.
If Petitioner had given Ms. Marcley a date that she wished to present her case to the Board of the Homeowners Association, and if, at that point, Ms. Marcley had refused to permit an interpreter and/or had refused to pay for an interpreter, then Petitioner might have established a prima
facie case. As it is, Petitioner did not even present a prima facie case.
RECOMMENDED that the Petition for Relief and the underlying Complaint/Charge be dismissed.
DONE AND ENTERED this 18th day of September, 2009, in Tallahassee, Leon County, Florida.
ELLA JANE P. DAVIS
Filed with the Clerk of the Division of Administrative Hearings this 18th day of September, 2009.
1/ The interpreter, whom Petitioner alleged told Petitioner that Ms. Marcley "sounded" angry, did not testify.
c/o Ronald D. Clifton, Jr. Summer Trees South HOA, Inc.
1326 South Ridgewood Avenue, No. 14 Daytona Beach, Florida 32114
Larry Kranert, General Counsel Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100
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.
