STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

SEBASTIAN B. BARBAGALLO,

Petitioner,

vs.

OCEAN PARK CONDOMINIUM ASSOCIATION,

Respondent.

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) Case No. 11-0469

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RECOMMENDED ORDER

Pursuant to notice, a final hearing was held in this matter on March 17, 2011, before J. D. Parrish, a designated Administrative Law Judge of the Division of Administrative Hearings, in Viera, Florida.

APPEARANCES

For Petitioner: Sebastian B. Barbagallo, pro se

311 Taylor Avenue, G-19

Cape Canaveral, Florida 32920

For Respondent: Joe Teague Caruso, Esquire

Law Office of Caruso, Swerbilow & Camerota, P.A.

190 Fortenberry Road, Suite 107 Merritt Island, Florida 32954-1271

STATEMENT OF THE ISSUE

The issue in this case is whether Respondent committed a discriminatory housing practice in violation of chapter 760,

Florida Statutes (2010). All statutory references will be to Florida Statutes (2010), unless otherwise indicated.

PRELIMINARY STATEMENT

On January 28, 2011, the Florida Commission on Human Relations (FCHR) transmitted to the Division of Administrative Hearings (DOAH) a Petition for Relief filed by Petitioner, Sebastian B. Barbagallo (Petitioner). The petition alleged that Respondent, Ocean Park Condominium Association (Respondent), as management of a condominium complex, had violated provisions of Florida law related to unlawful housing practices. More specifically, Petitioner argues that he and his wife are entitled to accommodations based upon their handicaps and that Respondent has failed or refused to afford them the relief sought.

This case was scheduled for formal hearing for March 17, 2011, and a Notice of Hearing was provided to all parties at their addresses of record. At the hearing, Petitioner testified in his own behalf and offered the testimony of his wife, Elinor Barbagallo. Petitioners submitted a Composite Exhibit 1 that was admitted into evidence. Respondent submitted Exhibits

1 through 2 that were also admitted. Hearsay evidence, although admissible in administrative hearings, may not form the basis for a finding of fact except as provided by law. See

§ 120.57(1)(c), Fla. Stat.

A transcript will not be filed in this cause. The parties were granted ten days' leave within which to file proposed recommended orders. Neither party timely filed a proposed order. This Recommended Order is entered to resolve all outstanding issues pertinent to the case.

FINDINGS OF FACT

1. On or about November 18, 2010, Petitioner filed a Housing Discrimination Complaint. The complaint was the second or third of such complaints filed encompassing the same or similar issue: Petitioner's desire to have a laundry within his personal condominium unit.

2. Pursuant to FCHR procedure, an investigation of the matter was completed that resulted in a Notice of Determination of No Cause. Essentially, FCHR found that based upon the allegations raised by Petitioner, there was no cause from which it could be found that Respondent had violated the Florida Fair Housing Act.

3. Thereafter, Petitioner elected to file a Petition for Relief to challenge the determination and to seek administrative relief against Respondent for the alleged violation. FCHR then forwarded the matter to DOAH for formal proceedings.

4. Petitioner and his wife own and reside in a condominium unit on the second floor of the Ocean Park Condominium complex. The property is located in Brevard County, Florida, and is

   
   

   subject to covenants and restrictions adopted at the time the unit was converted from an apartment to a condominium. There is no elevator to service Petitioner's second-story unit.

5. Previously, the building and all units therein were designed and occupied as rental apartments. Although the property was converted several years ago, the basic structure of the building was not materially changed. The condominium complex has amenities that include a commonly owned laundry facility.

6. At all times material to the allegations of this case, Petitioner knew or should have known that a laundry could not be located within his unit as no owner may lawfully have a laundry. Further, it was evident to Petitioner that his unit was located on the second floor accessed only by stairs at the time he purchased the condominium.

7. Although Petitioner's unit is plumbed and wired for a washer and dryer, the laundry connections were not constructed in accordance with, or approved by, condominium rules and regulations. Should Petitioner attempt to connect a washer and/or dryer within the unit, Respondent would take legal action to enforce the condominium rules and seek an injunction prohibiting the use of the appliances. Respondent does not believe the units were constructed so that each unit could have laundry facilities. Additionally, Respondent will take legal

   
   

   action to remove laundry facilities found in any unit of the complex.

8. Petitioner is 90+ years old and announced that hauling laundry from his second-story unit to the common laundry facility is difficult, if not impossible for him to continue to do. Petitioner has numerous medical conditions that make climbing stairs and carrying laundry very difficult. Additionally, Petitioner's wife has medical issues that preclude her from transferring the laundry down and back to the condominium unit. Although the medical evidence submitted by Petitioner is hearsay, it is accepted that Petitioner and his wife have great difficulty navigating to their second-story unit. It is also accepted that carrying laundry to and from the laundry facilities would be a great burden to them.

9. Petitioner previously filed a complaint against Respondent and asked for relief based upon disability or handicap, since neither he nor his wife can do laundry as prescribed by the condominium. In settlement of the prior complaint with FCHR, Respondent agreed to provide an aide to Petitioner who will carry the laundry down from Petitioner's unit to the condominium laundry, and return the laundry up to the apartment. Petitioner must do the actual work of loading, unloading, and preparing the laundry for return to the unit.

   
   

10. The parties voluntarily executed a Conciliation Agreement that provided, in pertinent part:

    1. It is understood that this Agreement does not constitute an admission on the part of the Respondent that it violated the Fair Housing Act of 1983, as amended.

       
       

    2. Complainant agrees to waive and release any and all claims against the Respondent with respect to any matters which were or might have been alleged in the complaint filed with the Commission or with the United States Secretary of Housing and Urban Development, and agrees not to institute a lawsuit based on the issues alleged in these complaints under any applicable ordinance or statute in any court of appropriate jurisdiction as of the date of this Agreement. Said waiver and release are subject to Respondent’s performance of the premises and representations contained in 1a, 1b, and 2b herein.

       
       

11. After entering into the conciliation agreement, Petitioner, his wife, and Respondent executed a Settlement of Laundry Complaint. Petitioner did not employ a lawyer to give him legal advice before signing the conciliation agreement or the settlement agreement. The settlement outlines the terms upon which Respondent is to provide assistance to Petitioner to facilitate laundry duties.

12. Petitioner claims the only acceptable remedy at this time, is to allow Petitioner to connect a washer and dryer within his unit so that he and his wife may do laundry without leaving their home, and at such times as they may wish to

    
    

    perform the laundry. Petitioner maintains that this remedy will eliminate the expense of paying the aide to assist him and will be an overall savings to the condominium association.

13. Respondent maintains that it is willing to abide by the terms of the settlement agreement previously reached with Petitioner and that the terms of the settlement control the instant case. Further, Respondent asserts no facts support a legal basis for setting aside the agreement. The only changes in circumstances since the execution of the settlement are: Petitioner is older, Petitioner and his wife are more infirm, and Petitioner does not want to have to schedule the laundry as previously agreed, due to medical appointments. With the exception of the number of medical appointments, all of the "changed circumstances" were reasonably foreseeable at the time the settlement was signed.

    CONCLUSIONS OF LAW

    
    

14. 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.

15. Under the Florida Fair Housing Act (the act), it is unlawful to discriminate in housing. More specifically, section 760.23, Florida Statutes, provides in 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. In this matter, Petitioner bears the initial burden of proof to establish a prima facie case of discrimination by a preponderance of the evidence. Generally, once a complainant establishes membership in a protected class and proof that he or she was treated differently than others not in the class, the burden of proof then shifts requiring the offending party to articulate a nondiscriminatory motive or objective for the alleged discriminatory conduct. If, however, the complainant (in this case Petitioner) fails to establish a prima facie case of discrimination, the matter ends. See, e.g., Nat'l Indus., Inc. v. Comm'n on Human Rel., 527 So. 2d 894 (Fla. 5th DCA 1988).

17. In this case, Petitioner's claim fails for a number of reasons. First, Petitioner did not establish that he is handicapped as that term is defined in the act. If Petitioner is not a member of a protected class, any action or inaction taken against his interests would not be discrimination. Being elderly or infirm is not, of itself, a handicap. Assuming the medical reports submitted by Petitioner could support a finding of fact, at best they establish that climbing stairs and carrying laundry is not recommended for Petitioner or his wife.

    
    

    Since Petitioner lives on the second floor of a building that has no elevator, climbing stairs is unavoidable.

18. Second, assuming arguendo that Petitioner is handicapped as contemplated by the act, Petitioner failed to establish that he was treated differently than a non-handicapped person, or that an accommodation must be considered in the specific manner sought. All residents/owners of the condominiums are treated the same. All are prevented from installing laundry facilities within their individual units.

    All are permitted to use the common laundry. Respondent has accommodated Petitioner by providing assistance to transport the laundry to and from the common laundry. This accommodation adequately addresses Petitioner’s issue of climbing stairs and carrying laundry.

19. Finally, the issue presented in this case is identical to the issue previously litigated and resolved by conciliation and settlement agreements. If Petitioner were entitled to an accommodation, the parties have previously negotiated and entered into an agreement as to Respondent's responsibility in this matter. Petitioner may not unilaterally renegotiate the agreement. If Petitioner has a remedy that would allow him to install a washer/dryer within his unit, it is not through this venue.

    
    

20. Instead of seeking legal advice to determine whether there is a civil remedy for the matter, Petitioner has returned to FCHR to impose sanctions against Respondent. It is concluded that Petitioner has failed to meet his burden of proof. Further, the terms of the agreements previously entered into, control and provide for the accommodation that Respondent must

provide.

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 Petitioner's claim of discrimination, but reminding Respondent of the terms of the parties' agreement regarding accommodation for Petitioner's laundry needs.

DONE AND ENTERED this 3rd day of May, 2011, in Tallahassee, Leon County, Florida.

S

J. D. PARRISH

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 3rd day of May, 2011.

COPIES FURNISHED:

Denise Crawford, Agency Clerk

Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100

Tallahassee, Florida 32301

Sebastian Barbagallo

311 Taylor Avenue, Apartment G19 Cape Canaveral, Florida 32920

Joe Teague Caruso, Esquire

The Law Offices of Caruso, Swerbilow & Camerota, P.A.

190 Fortenberry Road, Suite 107 Merritt Island, Florida 32952

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.

Docket for Case No: 11-000469

Orders for Case No: 11-000469