NISRINE SMITH,
Petitioner,
vs.
DAYTONA BEACH OCEAN TOWERS, INC. ET AL,
Respondent.
/
Case No. 20-4952
RECOMMENDED ORDER
On March 9, 2021, Administrative Law Judge Robert J. Telfer III, of the Florida Division of Administrative Hearings (Division), conducted an evidentiary hearing pursuant to section 120.57(1), Florida Statutes (2019), in Tallahassee, Florida, via the Zoom web-conference platform.
APPEARANCES
For Petitioner: Joseph John St. Angelo, Esquire
Community Legal Services of Mid-Florida 122 East Colonial Drive, Suite 200
Orlando, Florida 32801
For Respondents1: Marlene Kirtland Kirian, Esquire
South Mihausen, P.A. Gateway Center
1000 Legion Place, Suite 1200
Orlando, Florida 32801
1 Ms. Kirian initially filed a Notice of Appearance in this matter as counsel of record for Respondent Daytona Beach Ocean Towers, Inc. (Ocean Towers). At the final hearing,
Ms. Kirian clarified that an indemnity agreement between Ocean Towers and Respondent Sentry Management, Inc. (Sentry), exists, which allows her to represent both Respondents.
STATEMENT OF THE ISSUES
Whether Respondents discriminated against Petitioner, Nisrine Smith, on the basis of her disability, in violation of the Florida Fair Housing Act (FHA), chapter 760, part II, Florida Statutes; and, if so, the appropriate penalty.
PRELIMINARY STATEMENT
On January 8, 2020, Ms. Smith filed a charge of housing discrimination with the Florida Commission on Human Relations (FCHR), alleging that Respondents discriminated against her based upon a disability, in violation of the FHA. Ms. Smith’s charge stated:
Complainant Nisrine Smith leased a unit located at 2800 N. Atlantic Ave., Unit 807, Daytona Beach (Volusia County) Florida. Complainant is a person with a non-visible disability who requires the use of an Emotional Support Animal (ESA). The property is owned by Victoria and Theron Whidden. The property is subject to the rules and regulations of Respondent Daytona Beach Ocean Towers, Inc. (“Respondent Towers”) and managed by and through Respondents Sentry Management, Inc.
According to Complainant, on September 12, 2019, Complainant received an email from Respondent Towers informing her, “Service animal or companion pets all need to have registered papers copied to the office.” On September 17, 2019, Complainant submitted a letter from her health care provider regarding her need for an ESA, a Rottweiler. On September 19, 2019, Complainant reports she received a letter from the attorney for Respondent Towers regarding an “Unauthorized Rottweiler.” The letter stated that the dog was a violation of association rules. The letter further stated, “The Association received a letter from your tenant indicating that the rottweiler is an emotional support animal; regardless if it is an emotional support animal, the Association will not permit this animal to reside at the property
because it is a dangerous breed on the Association’s insurance and only small dogs are permitted. The dog is not a service animal, and therefore must be removed from the property by September 30, 2019.” Additionally, the letter stated if the “dog” is not removed by September 30, 2019, Respondents will seek permanent removal of the dog. Complainant asserts that she was forced to vacate the subject property with her ESA and find alternate housing.
Complainant believes that Respondents collectively discriminated against her based on disability in violation of the Act.
On October 14, 2020, FCHR issued a “Notice of Determination of No Cause,” finding that there was no reasonable cause to believe that Respondents had committed a discriminatory housing practice against Ms. Smith.
On November 9, 2020, Ms. Smith filed a Petition for Relief from Discriminatory Housing Practice with FCHR, again alleging that Respondents had committed a discriminatory housing practice against her. FCHR transmitted the Petition to the Division and assigned the undersigned Administrative Law Judge (ALJ) to conduct an evidentiary hearing.
The undersigned originally noticed this matter for final hearing on January 12, 2021. On January 11, 2021, Ms. Smith filed an Emergency to Continue, in which Ms. Smith’s recently-engaged counsel requested additional time to prepare for the final hearing, which the undersigned granted that same date. On January 25, 2021, Ocean Towers filed a Motion to Continue, in which its recently-engaged counsel requested additional time to prepare for the final hearing. The undersigned conducted a telephonic status conference on January 29, 2021, and, thereafter set the final hearing for March 9, 2021.
The undersigned conducted the final hearing on March 9, 2021, using the Zoom web-conference platform. Petitioner testified on her own behalf. The
undersigned admitted Petitioner’s Exhibits P1 through P6 into evidence. Christina Honeycutt, an Ocean Towers resident and former President of its condominium association, and Donald Zehrung, the former manager of Ocean Towers and Sentry, testified on behalf of Respondents.
The parties did not order a transcript of the proceedings. Petitioner and Respondent timely submitted proposed recommended orders, which the undersigned has considered in the preparation of this Recommended Order.2
2 Petitioner filed her Proposed Recommended Order on March 15, 2021, which was several days before it was due. Respondents timely filed their Proposed Recommended Order on March 19, 2021. Petitioner, on March 19, 2021, filed an “Objection to the Respondent’s Recommended Order,” contending that Respondents essentially duplicated Petitioner’s Proposed Recommended Order, and merely changed a few of her arguments to reflect a favorable disposition to Respondents. Petitioner’s Objection also noted that Respondents’ Proposed Recommended Order went so far as to duplicate Petitioner’s contention that “Daytona Beach Ocean Towers is responsible for violating the Fair Housing Act. The
undersigned reviewed Respondent’s Proposed Recommended Order, which appears to borrow heavily, in both style and substance, from Petitioner’s Proposed Recommended Order, but notes that it also contains some different proposed facts and proposed conclusions of law.
Then, on March 22, 2021, Respondents filed an Amended Recommended Order, which changed the above-highlighted phrase to “Daytona Beach Ocean Towers is not responsible for violating the Fair Housing Act.” However, the Amended Recommended Order retained, in full, the remainder of the Proposed Recommended Order, including the following puzzling
finding from its predecessor: “Therefore, the Petitioners failed to offer a legitimate discriminatory reason as to why the Association discriminated against Ms. Smith.”
On March 22, 2021, Petitioner filed a Motion to Strike the Amended Recommended Order,
noting that it was untimely. Also, on March 22, 2021, Respondents filed a “Response to
Petitioner’s Urgent Motion,” stating that counsel decided to use its opportunity to “argue off of [Petitioner’s] proposed order” and that it noticed the “typo” when it wrote that Respondents violated the FHA, but that its position was that Respondents did not violate the FHA, and that it would correct this phrase in an amended recommended order.
The undersigned notes that there is no rule or statute that precludes Respondents from
copying Petitioner’s Proposed Recommended Order and simply inserting additional argument or commentary, or “flipping” a proposed finding or conclusion in its favor. While the undersigned might not be impressed with such practice, the undersigned has duly considered the evidence presented, as well as the proposed recommended orders, in the preparation of this Recommended Order, with the understanding that Respondents likely did not intend to confess that they discriminated against Ms. Smith in their sloppy and hastily- prepared Proposed Recommended Order. However, as discussed in subsequent footnotes,
All statutory references are to the 2019 codification of the Florida Statutes (when the alleged discriminatory acts occurred), unless otherwise indicated.
FINDINGS OF FACT
Respondent Ocean Towers is a residential condominium facility in Volusia County, Florida, with numerous condominium units. Respondent Sentry managed Ocean Towers during the time period relevant to the instant matter, but it no longer serves as the manager of Ocean Towers.
Ms. Smith leased a furnished condominium unit from its owner and resided at Ocean Towers, beginning in January 2019. Ms. Smith paid monthly rent to the condominium unit’s owner, which also included all utility charges.
Ms. Smith is a person with a nonvisible disability, which she described as post-traumatic stress disorder, depression, and anxiety, who requires the use of an emotional support animal (ESA).3
On September 8, 2019, Ms. Smith brought an approximately 14-week- old female Rottweiler puppy named Vida to live with her at Ocean Towers. At that time, the “Daytona Beach Ocean Towers Rules & Regulations” provided, in part, as follows:
Respondents’ Proposed Recommended Order concedes certain dispositive facts, and also includes contradictory factual findings—both within the Proposed Recommended Order itself, as well as when compared to evidence presented—that the undersigned considered and discusses in this Recommended Order.
3 Both Petitioner’s Proposed Recommended Order, as well as Respondents’ Proposed Recommended Order (which, as discussed in footnote 2 above, is largely duplicative of Petitioner’s Proposed Recommended Order), assert—in identical fashion—that Ms. Smith
has a disability and requires the use of an ESA. While the evidence at the final hearing was not entirely clear on this point (a point which resulted in FCHR finding no reasonable cause), Respondents, in their Proposed Recommended Order, concede this point. The undersigned has thus based this Finding of Fact on this stipulation. Confusingly, other “original” or “nonduplicated” portions of Respondents’ Proposed Recommended Order state that Ms.
Smith never provided documentation to it that she had a disability, which required an ESA, but Respondents have clearly conceded this particular factual finding in their Proposed Recommended Order.
PETS: Guests may not have pets in the building. All authorized small pets except certified service dogs must be carried while in public areas of the building and garage. Unless inside units, pets must be on a leash and owners are responsible for cleaning up after their pet while on [Daytona] Towers property.
Ms. Smith had not informed Ocean Towers about Vida’s arrival prior to bringing her to Ocean Towers. On September 12, 2019, Maria Montgomery, who was the administrative assistant for Ocean Towers, emailed Ms. Smith concerning Vida. The email stated that “new pets are to be firstly reported to the office and rules apply as I am sure you are aware.” It further states that “Service animal or companion pets all need to have registered papers copied to the office[,]” and further states “[w]e do not need to know ‘why’ if it is a companion animal-we just need to have the authorization on file for Security, etc. in the event someone asks why an animal not in the ‘normal’ pet description of 20 pounds or less is living in the building ”
Ms. Montgomery’s September 12, 2019, email to Ms. Smith was likely precipitated by Ocean Towers resident Ms. Honeycutt, who was also the condominium association president in 2019. Ms. Honeycutt—who has been paralyzed since birth and uses a wheelchair—testified that she encountered Ms. Smith and Vida on two occasions. On the first occasion, in an elevator, Ms. Honeycutt testified that Vida jumped on her lap. On the second occasion, in the condominium lobby, Ms. Honeycutt testified that Vida again jumped on her lap, but that she was able to move away from Vida.
Mr. Zehrung, who was the manager at Ocean Towers in 2019 (and employed by Sentry), testified that he received numerous complaints from other tenants about an unleashed Rottweiler, and was aware of
Ms. Honeycutt’s encounters with the dog as well. After determining that Ms. Smith was the owner of the dog, he informed her of the Ocean Towers “Rules and Regulations” concerning pets; he stated that Ms. Smith did not
initially tell him that Vida was an ESA, but did so about one week after this conversation.
In response to Ms. Montgomery’s email request, Ms. Smith provided Ocean Towers with a letter, dated September 17, 2019, from the “Medical &
Psychiatric Clinic of Florida, Inc.,” from “Yessica Sanchez, Office Coordinator, ARNP.” That letter stated:
Ms. Nisrine Smith is currently being treated at the Medical & Psychiatric Institute of Florida, Inc. Ms. Smith presently has her pet Rottweiler, also known as Vida, with her in her apartment. It would be beneficial for her to have her pet if the apartment complex allows her to keep it.
The September 17, 2019, letter, which is not from a treating physician, makes no reference to whether Ms. Smith has a disability, and further makes no reference to her dog as an ESA, but rather refers to the dog as a “pet.”
Ms. Smith testified that, after submitting the September 17, 2019, letter to Ocean Towers, she felt everything would be “okay,” and that she would be able to keep Vida as an ESA. However, she testified that she was “rudely treated” by other residents, including comments about the dog’s size, and the Ocean Towers rules that require a resident to carry their pet while in the lobby and indoor common areas. Ms. Smith felt that she was being
discriminated against by Ocean Towers because of Vida’s dog breed,
Rottweiler.
Both Ms. Honeycutt and Mr. Zehrung testified that the September 17, 2019, letter that Ms. Smith submitted to Ocean Towers was not a sufficient request for an ESA. They both testified that had Ms. Smith submitted an appropriate “ESA letter” with “correct documentation,” Ocean Towers would have allowed Ms. Smith to keep Vida at Ocean Towers. Mr. Zehrung testified that there were three or four other tenants of Ocean Towers who had ESA’s, with “documentation.”
On September 19, 2019, Ocean Towers, through its attorney, sent, via certified and regular mail, a letter to Ms. Smith and the owners of the condominium unit, that stated, in pertinent part:
It is our understanding that your current tenant has a rottweiler within the unit. Said possession of the dog in the unit in common elements of the Association is a violation of the governing documents of the Association.
* * *
The Association received a letter from your tenant indicating that the rottweiler is an emotional support animal; however, regardless if it is an emotional support animal, the Association will not permit this animal to reside at the property because it is a dangerous breed on the Association’s insurance and only small animals are permitted. The dog is not a service animal, and therefore must be removed from the property by September 30, 2019. Furthermore, prior to the removal of the pet from the property, the owner must carry the pet when the pet is not within their unit, the dog must be on a leash, the dog may not be in the common elements of the Association and must only use the facilities that are designated for relieving pet waste. At no point is this dog allowed to be not on a leash or not hand-carried.
In the event that the dog is not removed by September 30, 2019, the Association will file before the Department of Business and Professional Regulation a petition for injunctive relief seeking the permanent removal of the dog. In the event that this is necessary, the Association will be entitled to recover their reasonable attorney’s fees and cost.
The September 19, 2019, letter from Ocean Towers to Ms. Smith directly contradicts the testimony of Ms. Honeycutt and Mr. Zehrung in two important ways: (a) it admits that Ms. Smith’s September 17, 2019, letter
was a request for an ESA; and (b) it denies Ms. Smith’s request (“regardless if is an emotional support animal”), based on the dog’s breed, labeling it a
“dangerous breed on the Association’s insurance[.]”4
The undersigned further notes that the September 19, 2019, letter from Ocean Towers makes no reference to any incident of Vida jumping on Ms. Honeycutt, or any other incident of alleged aggressive behavior of Vida. Although Ms. Honeycutt’s testimony that Vida jumped on her lap on two occasions is credited, Respondents failed to present any other credible evidence that Vida was an “aggressive animal,” or whether Vida posed any direct threat to the safety of the residents of Ocean Towers, as Respondents contend in their Proposed Recommended Order. Additionally, Respondents did not present any evidence that demonstrated that a rottweiler was forbidden under any insurance policy that covered the Respondents.
Ms. Smith testified that she felt that Ocean Towers and its residents discriminated against and harassed her, and as a result, she decided to move out of her condominium unit the weekend of September 21 to 23, 2019. She testified that she received the September 19, 2019, letter during the weekend that she moved out.
4 The September 19, 2019, letter also contradicts numerous proposed findings of fact in
Respondents’ Proposed Recommended Order which contest whether Ocean Towers ever
received “proper documentation” of Ms. Smith’s request for an ESA. Respondents’ Proposed Recommended Order states that the September 19, 2019, letter, and a September 25, 2019, letter “were silent as to the need of an ESA and neither letter addressed that Smith suffered from a disability that would entitle Smith to have an ESA animal[,]” and, ultimately, that “Towers did not discriminate against Smith because Smith never provided documentation to the Association that she had a disability that required her to have an Emotional Support Animal.” Resp. Proposed Recommended Order at p. 5, ⁋ H. The undersigned notes that the September 19, 2019, letter, which contradicts these proposed findings, was written by
Ms. Kirian, who is counsel of record in this matter, and who authored the Proposed Recommended Order. Additionally, as stated in note 3 above, Respondents concede, in their Proposed Recommended Order (which is identical to Petitioner’s Proposed Recommended Order on this point), that Ms. Smith “is a person with a non-visible disability who requires the use of an Emotional Support Animal (ESA).” Resp. Proposed Recommended Order,
p. 3, ⁋ A.
After moving out, on September 25, 2019, Ms. Smith provided another
letter from the “Medical & Psychiatric Institute of Florida, Inc.,” from “Asad
H. Kahn, M.D.,” to Ocean Towers, which stated:
Attention: Current Housing Manager
Ms. Nasrine [SIC] Smith is currently receiving treatment at our office for psychiatric condition. She has a pet dog. It would not be emotionally beneficial for her to lose her pets at this point. We do not have any opinion on risk of safety of the residential area due to the animal. The safety of the area needs to be assessed by the security of the housing project.
Ms. Smith testified that after moving out, she was able to purchase a home. She contends that she incurred moving expenses when she vacated Ocean Towers, and that her current monthly mortgage payments, which do not include utilities, are more expensive than her previous rental payments at Ocean Towers. However, Ms. Smith did not present any persuasive evidence that quantified any damages she contends that she incurred as a result of Respondents’ discriminatory housing practices.
The undersigned finds that Ms. Smith established, by a preponderance of the evidence, that Respondents discriminated against her based on her disability, by failing to provide a reasonable accommodation—an ESA—in violation of the FHA.
CONCLUSIONS OF LAW
The Division has jurisdiction over the subject matter and the parties to this proceeding in accordance with sections 120.569, 120.57(1),
and 760.35(3)(b), Florida Statutes.
The FHA prohibits discriminating against a person on the basis of a “handicap,” or disability, by refusing to make reasonable accommodations when necessary to afford the person equal opportunity to use and enjoy a
dwelling. Bhogaita v. Altamonte Heights Condominium Ass’n, Inc., 765 F.3d 1277, 1285 (11th Cir. 2014). See § 760.23(9)(b), Fla. Stat.5
The FHA is patterned after Title VII of the Civil Rights Act of 1968, as amended by the Fair Housing Act of 1988. As such, discriminatory acts prohibited under the federal Fair Housing Act are also prohibited under the FHA, and federal case law interpreting the federal Fair Housing Act is applicable to proceedings brought under the FHA. See Brand v. Fla. Power Corp., 633 So. 2d 504, 509 (Fla. 1st DCA 1994)(noting that “the Florida statute will take on the same constructions as placed on its federal prototype.”).
In proceedings brought under the FHA, the complainant has the burden to prove a prima facie case of discrimination by a preponderance of the evidence. § 760.34(5), Fla. Stat.; Fla. Dep’t of Transp. v. J.W.C. Co., 396 So. 2d 778 (Fla. 1st DCA 1981). A “preponderance of the evidence” means the
“greater weight” of the evidence, or evidence that “more likely than not” tends
to prove the fact at issue. Gross v. Lyons, 763 So. 2d 276, 289 n.1 (Fla. 2000).
Discrimination under the FHA includes a refusal to make a reasonable accommodation for persons with a handicap or disability. See City of Edmunds v. Oxford House, Inc., 514 U.S. 725, 729-30 (1995). A successful failure to accommodate claim has four elements. To prevail, Ms. Smith must prove that: (a) she is disabled within the meaning of the FHA; (b) she requested a reasonable accommodation; (c) the requested accommodation was necessary to afford her an opportunity to use and enjoy her dwelling; and
(4) Respondents refused to make the accommodation. Schwarz v. City of Treasure Island, 544 F.3d 1201, 1218-19 (11th Cir. 2008).
5 Both parties, in their (again, fairly duplicative) proposed recommended orders, rely on section 760.27, which became effective July 1, 2020, and which inter alia, provides definitions of “emotional support animal” and “reasonable accommodation requests.” See Ch. 2020-76, Laws of Fla. However, all of the alleged acts of discrimination occurred in 2019; as noted previously, the undersigned shall apply the law in effect at the time of the alleged discrimination. Accordingly, the undersigned does not rely on the more recently-enacted section 760.27 in determining these Conclusions of Law.
Ms. Smith has established, and Respondents concede (both in their proposed recommended orders and the September 19, 2019, letter) that
Ms. Smith is disabled within the meaning of the FHA, and that she requested a reasonable accommodation when she submitted the September 17, 2019, letter.
The next question to answer is whether Vida, a Rottweiler, who purportedly fulfills the role of an ESA for Ms. Smith, is a reasonable accommodation under the FHA. As the Eleventh Circuit explained:
Once a provider knows of an individual’s request for accommodation, the provider has “an opportunity to make a final decision … which necessarily includes the ability conduct a meaningful review” to determine whether the FHA requires the requested accommodation.
Bhogaita, 765 F.3d at 1286 (quoting Prindable v. Ass’n of Apt. Owners, 304 F. Supp. 2d 1245, 1258 (D. Hawaii 2003), aff’d sub nom. DuBois v. Ass’n of Apt. Owners, 453 F.3d 1175 (9th Cir. 2005)). The September 19, 2019, letter from Respondents’ attorney demonstrates that Respondents had an opportunity to conduct a meaningful review of the requested accommodation.
Although the FHA does not define reasonable accommodation, the Eleventh Circuit has held that an accommodation is unreasonable if: (a) it would impose an undue financial and administrative burden on the housing provider; or (b) it would fundamentally alter the nature of the provider’s operations. See Schwarz, 544 F.3d at 1220.
The Secretary of Housing and Urban Development (HUD), who has
“the authority and responsibility for administering [the FHA],” 42 U.S.C.
§ 3608(a), may “make such rules and regulations as may be necessary to carry out his functions, powers, and duties.” 42 U.S.C. § 3535(d). HUD issued a final rule in 2008 that provides that accommodations to allow an ESA are generally reasonable. The rule further states, “emotional support animals
provide very private functions for persons with mental and emotional disabilities. Specifically, emotional support animals by their very nature, and without training, may relieve depression and anxiety, and help reduce stress- induced pain in persons with certain medical conditions affected by stress.” Pet Ownership for the Elderly & Persons With Disabilities, 73 F.R. 683834-01, 2018 WL 4690497 (Oct. 27, 2008). However, this rule also allows for the denial of a reasonable accommodation in the form of an ESA if the “animal’s behavior poses a direct threat and its owner takes no effective action to control the animal’s behavior so that the threat is mitigated or eliminated.” Id. Further, the presumption in favor of reasonable accommodation is such that the FHA “requires the existence of a significant risk—not a remote or
speculative risk.” Id.
While the Respondents’ “Rules and Regulations” contained a “small pet only” rule, which Respondents cited in their September 19, 2019, letter, one federal court looking at a companion federal regulation to the federal Fair Housing Act held:
[T]his regulation specifically provides that it is unlawful for a housing provider with a no-pets policy to refuse to permit a blind person to live in a dwelling unit with a seeing eye dog. Because an essential element of both [the federal FHA and companion regulation] is that the accommodation is reasonable, it follows that allowing a disabled person to keep a dog in a housing unit with a no- pets policy is a reasonable accommodation.
Sabal Palm Condominiums of Pine Island Ridge Ass’n v. Fischer, 6 F. Supp. 3d 1272, 1281 (S.D. Fla. 2014). Thus, the undersigned concludes that Respondents’ small pet policy does not provide a legal basis to refuse a
disabled individual’s request to keep a dog as a reasonable accommodation.
The determination of whether Vida poses a significant risk is an issue of fact. See Warren v. Delvista Towers Condominium Ass’n, 49 F. Supp. 3d
1082, 1088 (S.D. Fla. 2014). As found in paragraph 13, Respondents failed to
establish that Vida was an “aggressive animal,” or that she posed a
significant risk to the residents of Ocean Towers, despite Ms. Honeycutt’s credible testimony that Vida jumped on her lap on two occasions. In their September 19, 2019, letter, Respondents contended that the Rottweiler dog breed was a “dangerous breed on the Association’s insurance,” without any further proof (or reference to any other incident involving Vida), and ordered that Vida be removed from the property in less than two weeks’ time. The evidence presented failed to establish that Ms. Smith’s accommodation was unreasonable.
The undersigned concludes that Ms. Smith established her requested accommodation—Vida, an ESA Rottweiler—was reasonable. And, based on the September 19, 2019, letter, Respondents denied the requested accommodation. Accordingly, the undersigned concludes that Respondents violated the FHA by failing to provide the requested accommodation and are unable to establish that the requested accommodation was unreasonable.
The undersigned has placed substantial weight on the First Circuit case cited by both parties in their (nearly identical) proposed recommended orders. In Castillo Condominium Association v. U.S. Department of Housing and Urban Development, 821 F.3d 92 (1st Cir. 2016), the First Circuit determined that, as here, a condominium association failed to reasonably accommodate a tenant when it refused to allow the tenant to keep an emotional support dog despite a “no pets” bylaw. The Castillo court’s decision generally supports the undersigned’s conclusion that Respondents violated the FHA by failing to provide Ms. Smith’s requested accommodation.
Section 760.35(3)(b) provides, in part:
If the administrative law judge finds that a discriminatory housing practice has occurred or is about to occur, he or she shall issue a recommended order to the commission prohibiting the practice
and recommending affirmative relief from the effects of the practice, including quantifiable damages and reasonable attorney’s fees and costs.
The undersigned concludes that Ms. Smith is entitled to a recommended order to FCHR recommending that it prohibit Respondents’ practice of refusing to provide a requested reasonable accommodation to tenants who have a disability, as well as awarding her reasonable attorney’s fees and costs incurred in this proceeding, but which also determines that Ms. Smith is not entitled to any additional affirmative relief, as she failed to provide sufficient evidence to quantify any such damages. The undersigned is without authority, as requested by Ms. Smith, to issue a civil penalty payable to HUD.
Based upon the foregoing Findings of Fact and Conclusions of Law, the undersigned hereby RECOMMENDS that the Florida Commission on Human Relations issue a final order granting Nisrine Smith’s Petition for Relief, in part, as follows: (a) finding that Respondents engaged in a discriminatory housing practice based on Ms. Smith’s disability, by failing to provide a reasonable accommodation to Ms. Smith in the form of an ESA; (b) ordering Respondents to prohibit the practice of denying reasonable accommodations to individuals and tenants who request a reasonable accommodation on the basis of their disability; and (c) ordering Respondents to pay for the
reasonable attorney’s fees and costs incurred by Ms. Smith’s counsel in this
proceeding.
DONE AND ENTERED this 30th day of March, 2021, in Tallahassee, Leon County, Florida.
COPIES FURNISHED:
Tammy S. Barton, Agency Clerk
S
ROBERT J. TELFER III
Administrative Law Judge 1230 Apalachee Parkway
Tallahassee, Florida 32399-3060
(850) 488-9675
Filed with the Clerk of the
Division of Administrative Hearings this 30th day of March, 2021.
Nisrine Smith
Florida Commission on Human Relations Room 110
4075 Esplanade Way
Tallahassee, Florida 32399-7020
Joseph John St. Angelo, Esquire Community Legal Services of Mid-Florida 122 East Colonial Drive, Suite 200
Orlando, Florida 32801
Laura Qualatone
Daytona Beach Ocean Towers, Inc 4188 South Atlantic Avenue
New Smyrna Beach, Florida 32169
5143 Taylor Avenue
Port Orange, Florida 32127
Marlene Kirtland Kirian, Esquire South Milhausen, P.A.
Gateway Center
1000 Legion Place, Suite 1200
Orlando, Florida 32801
Cheyanne Costilla, General Counsel Florida Commission on Human Relations Room 110
4075 Esplanade Way
Tallahassee, Florida 32399-7020
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 |
|---|---|---|
| Jun. 23, 2021 | Agency Final Order | NISRINE SMITH, HUD Case No. 04-20-0211-8 
 Petitioner, FCHR No. 202023247 
v. DOAH No. 20-4952 
DAYTONA BEACH OCEAN TOWERS, INC. ET. FCHR Order No. 21-040 
AL., 
 Respondent. 
_________________________________/ 
INTERLOCUTORY ORDER AWARDING AFFIRMATIVE RELIEF 
FROM AN UNLAWFUL HOUSING PRACTICE 
AND REMANDING CASE TO ADMINISTRATIVE LAW JUDGE 
FOR ISSUANCE OF RECOMMENDED ORDER REGARDING AMOUNTS OF ATTORNEY’S FEES AND COSTS OWED PETITIONER 
Preliminary Matters 
On January 8, 2020, Petitioner, Nisrine Smith, filed a housing discrimination complaint pursuant to the Fair Housing Act, Sections 760.20 - 760.37, Florida Statutes (2019), alleging that Respondent, Daytona Beach Ocean Towers, Inc. and its Qualified Representative, Sentry Management, Inc., committed discriminatory housing practices against Complainant by discriminating against her on the basis of disability. 
The allegations set forth in the complaint were investigated, and, on October 14, 2020, the Executive Director issued a determination finding that there was no reasonable cause to believe that a discriminatory housing practice had occurred. 
On November 9, 2020, Petitioner filed a Petition for Relief from a Discriminatory Housing Practice, and the case was transmitted to the Division of Administrative Hearings for the conduct of a formal proceeding. 
The evidentiary hearing was originally scheduled for January 12, 2021, but Petitioner filed an “Emergency Motion to Continue” on January 11, 2021, which was granted. 
Respondent filed a Motion to continue on January 25, 2021. 
Administrative Law Judge Robert J. Telfer III held a telephonic status conference on January 29, 2021 and continued the case until March 9, 2021. 
On March 9, 2021, a final evidentiary hearing took place before Judge Telfer in Tallahassee, via the Zoom web-conference platform. 
On March 30, 2021, Judge Telfer issued a Recommended Order, which found that a discriminatory Housing practice occurred. 
The Commission panel designated below considered the record of this matter and determined the action to be taken on the Recommended Order. 
Findings of Fact 
A transcript of the proceeding before the Administrative Law Judge was not filed with the Commission. In the absence of a transcript of the proceeding before the Administrative Law Judge, the Recommended Order is the only evidence for the Commission to consider. See National Industries, Inc. v. Commission on Human Relations, et al., 527 So. 2d 894, at 897, 898 (Fla. 5th DCA 1988). Accord, Coleman v. Daytona Beach, Ocean Center Parking Garage, FCHR Order No. 14-034 (September 10, 2014), Gantz, et al. v. Zion’s Hope, Inc., d/b/a Holy Land Experience, FCHR Order No. 11-048 (June 6, 2011), and Hall v. Villages of West Oaks HOA, FCHR Order No. 08-007 (January 14, 2008). 
We adopt the Administrative Law Judge’s findings of fact. 
Conclusions of Law 
We find the Administrative Law Judge’s application of the law to the facts to result in a correct disposition of the matter. 
We adopt the Administrative Law Judge’s conclusions of law. 
Exceptions 
 Neither party filed exceptions to the Administrative Law Judge’s Recommended Order. 
Affirmative Relief 
 Through our adoption of the Administrative Law Judge’s findings of fact and conclusions of law, as set out above, we find that Respondents engaged in a discriminatory housing practice based on Petitioner’s disability, by failing to provide a reasonable accommodation to Petitioner in the form of an Emotional Support Animal (ESA). We have also adopted the Administrative Law Judge’s recommendations for the remedy of the discrimination. 
 Respondent is hereby ORDERED: 
1.to prohibit the practice of denying reasonable accommodations to individuals and tenantswho request a reasonable accommodation on the basis of their disability;
2.to pay Petitioner attorney’s fees that have been reasonably incurred in this matter byPetitioner; and
3.to pay the Petitioner the amount of costs that have been reasonably incurred in this matterby Petitioner.
 This matter is REMANDED to the Administrative Law Judge for further proceedings to determine the amounts of attorney’s fees and costs owed Petitioner and the issuance of a Recommended Order as to those amounts. 
 DONE AND ORDERED this day of , 2021. 
 FOR THE FLORIDA COMMISSION ON HUMAN RELATIONS: 
Commissioner Darrick McGhee, Panel Chairperson; 
 Commissioner Larry Hart; and 
 Commissioner Jay Pichard 
Filed this day of , 2021, in Tallahassee, Florida. 
________________________________ 
 Clerk 
 Commission on Human Relations 
 4075 Esplanade Way, Room 110 
 Tallahassee, FL 32399 
(850)488-7082
Copies furnished to: 
Nisrine Smith 
c/o Joseph J. St. Angelo, Esquire 
Community Legal Services of Mid Florida 
122 East Colonial Drive, #200 
Orlando, Florida 32801 
Daytona Beach Ocean Towers, Inc. 
c/o Marlene Kirtland Kirian, Esquire 
South Milhausen, P.A. 
Gateway Center 
1000 Legion Place, Suite 1200 
Orlando, Florida 32801 
Robert J. Telfer III, Administrative Law Judge, DOAH 
Sarah Stewart, Legal Advisor for Commission Panel 
 I HEREBY CERTIFY that a copy of the foregoing has been mailed to the above listed addressees this _______ day of , 2021. 
 By: _____________________________ 
Clerk of the Commission 
 Florida Commission on Human Relations |
| Mar. 30, 2021 | Recommended Order | Petitioner established, by a preponderance of the evidence, that Respondents discriminated against her on the basis of her disability, in violation of the FHA. |
