The Issue The issue in this case is whether the Respondent committed an unlawful housing practice by discriminating against the Petitioner on the basis of race, in violation of the Florida Fair Housing Act, sections 760.20 through 760.37, Florida Statutes.
Findings Of Fact Petitioner, Dr. Rubye Johnson, is an African-American woman and, thus, is a member of a class protected under the Florida Fair Housing Act, sections 760.20 through 760.37, Florida Statutes. Respondent, Canongate Condominium Apartments No. One, Inc., is the condominium association responsible for operation of the Canongate Condominium Apartments No. One ("Canongate"). Petitioner is a resident of Canongate and currently resides in Unit 201. She previously owned and lived in Canongate Unit 207, the unit at issue in this proceeding.3 She no longer owns Unit 207. Petitioner could not recall precisely when she became a resident of Canongate.4 She testified that when she became a resident of Canongate she was a renter, and she rented Unit 207. The evidence indicates that she likely moved into Unit 207 sometime before February 4, 2000. On February 4, 2000, the Association voted to amend Canongate's Declaration of Condominium, Article VII, Paragraph G, Section i. This amendment (the "2000 Amendment") prohibits the leasing or rental of units in Canongate. Existing leases and tenants as of the amendment's effective date were grandfathered for the balance of the lease term; however, no lease extensions or renewals were allowed. Institutional mortgagees' existing rights under the Declaration of Condominium were expressly preserved. At some point after Petitioner began renting Unit 207, the unit owner told her that due to the 2000 Amendment, she either would have to purchase the unit or move out in five years' time. The owner told her he thought the 2000 Amendment was approved because Respondent's Board of Directors ("Board") did not want any more black residents in the building.5 Petitioner purchased Unit 207 in or about 2004. When she purchased the unit, she was aware of the 2000 Amendment. She acknowledged that the 2000 Amendment prohibits the leasing or rental of units in Canongate without regard to race or gender. Petitioner testified that when she came home one day, Laura Ochacher, who had owned Unit 210, approached her about renting one of her units. Ms. Ochacher told Petitioner that Unit 210 was the subject of foreclosure and that her family was being evicted. Petitioner saw the eviction notice. Ms. Ochacher told Petitioner that Canongate property manager Marsha Allen had found a company to purchase Unit 210, and that the company had allowed them to remain in and rent Unit 210. Through examining a document printed out from the Miami-Dade County Property Appraiser's Office website, Petitioner learned that Lansdowne Real Estate Holdings, LLC ("Lansdowne") owned Unit 210. From this information, Petitioner surmised that Lansdowne had purchased Unit 210 and rented it to the Ochachers. She believed that Ms. Allen and the Board were complicit in what she viewed as a rental arrangement that violated the 2000 Amendment. Her belief was based on her knowledge of the screening and approval process entailed in purchasing a unit in Canongate. Petitioner did not independently investigate the matters that Ms. Ochacher relayed to her. She did not ask Ms. Allen whether she had found a company to purchase Unit 210; whether Unit 210 was, in fact, being rented; or whether she or the Board knew of and allowed rental of the unit. Petitioner understood Lansdowne to be a land company that bought and sold land on a large scale. She did not know whether Lansdowne is white, black, or of any other race. Petitioner also heard rumors from other Canongate residents that other units were being rented. She identified these units as 618, 520, 602, 105, 309, 106, 115, 120, 315, 515, 313, 410, 430, 503, 514, "and perhaps more." She did not identify who told her about these units, nor did she independently investigate whether the units were, in fact, being rented. Following her discussion with Ms. Ochacher, Petitioner decided to ask the Board whether she could rent Unit 207. She sent a communication to the Board, dated April 11, 2009, entitled "Issues and Concerns."6 Item 12 of this communication states: 12. It is rumored that there are renters in the building and that the board of directors are [sic] sanctioning these arrangements. Is this true? If so, under what circumstance would the board of director's [sic] sanctions [sic] renters in the building? If not, do you have a clue how this perception has been generated? Petitioner's testimony regarding whether she had actually requested permission from the Board to rent her unit was inconsistent. In her deposition, she testified that she viewed the statement in Item 12 as a request to rent Unit 207, but conceded that the request was "implied." At the final hearing, she acknowledged that her statement in Item 12 did not constitute a specific request, but stated that she previously had sent letters asking to rent the unit. She was unable to recall any specific letters she sent, when she sent them, or to whom the letters were sent. No such letters were proffered or admitted into evidence. Petitioner claimed that she had orally asked Ms. Allen and various Board members, on numerous occasions, whether she could rent her unit. However, she could not recall who, other than Ms. Allen, she ostensibly had asked, nor did she recall the substance or details of such conversations. Petitioner testified that, "by the way they acted," she knew she was not allowed to rent her unit. She stated that she also had been informed, orally and in writing, that she could not rent her unit. However, she could not recall who informed her, or any details of those discussions. She did not provide any evidence of written refusal to allow her to rent her unit. Petitioner testified that she had discussed with Marsha Allen her concern that white unit owners were allowed to rent their units, while she was not. She acknowledged that no one had ever told her she was not allowed to rent her unit because she is black. Canongate property manager Marsha Allen testified on behalf of Respondent. Ms. Allen's duties as property manager include overseeing the day-to-day operation of Canongate, reporting to the Board, and serving as Respondent's records custodian. Ms. Allen testified that rental of units in Canongate is prohibited under the 2000 Amendment. She testified that neither she nor the Board have allowed Canongate owners to rent their units, and that whenever owners have asked, they have been denied permission because of the rental prohibition. Ms. Allen testified that none of the units Petitioner identified was, in fact, being rented. Ms. Allen stated that Petitioner never had asked her whether she could rent her unit. She was not aware of Petitioner ever having asked the Board or any Board member whether she could rent her unit. Ms. Allen did not interpret Item 12 of Petitioner's April 11, 2009, communication as constituting a request for permission to rent her unit. Ms. Allen also stated that she never had discussed Canongate's rental policy with Petitioner, and she never had refused a request from Petitioner to rent her unit. She testified that she never had been directed by the Board or any Board member to refuse to allow Petitioner to rent her unit. Ms. Allen testified that Petitioner never had complained to her that she was being discriminated against by not being allowed to rent her unit, while white owners were allowed to rent theirs. Lansdowne sent a letter dated October 30, 2008, to Ms. Allen. The letter asked her to inform the Board that Lansdowne had acquired title to Unit 210 through foreclosure and that they were entering into an agreement with the borrower, Laura Ochacher, to continue her occupancy for 12 months, during which she could redeem the property by paying the foreclosure judgment. The letter stated: "[t]his should not be considered a rental arrangement." The letter explained that Lansdowne had paid the past due assessments for the unit and would pay outstanding legal fees once the Board approved the occupancy agreement. Upon receiving the letter, Ms. Allen reviewed the Canongate Declaration of Condominium, specifically, Article VII, Paragraph H., to ensure that the occupancy agreement for Unit 210 did not violate the 2000 Amendment's rental prohibition. Article VII, Paragraph H., provides that if the mortgagee of a condominium unit subject to an institutional mortgage given as security becomes the owner of the unit, the owner has the unqualified right to sell, lease, or otherwise dispose of the unit. Ms. Allen determined that, based on this provision, the occupancy agreement did not violate the 2000 Amendment. Ms. Allen consulted with Respondent's legal counsel, who independently verified that the occupancy agreement did not violate the 2000 Amendment. Respondent also presented the testimony of Joyce Meade, who has served as Respondent's president since 2008. Ms. Meade's duties as President include enforcing Respondent's condominium documents, overseeing the Board, conducting meetings, and supervising Canongate's property manager. Ms. Meade testified that Petitioner did not ask her for permission to rent her unit. She also testified that, to the best of her knowledge, Petitioner did not ask the Board for permission to rent her unit, and the Board did not specifically refuse. Ms. Meade testified that had Petitioner asked to rent her unit, she would not have been allowed because all rental requests are refused due to the 2000 Amendment. Ms. Meade testified that Petitioner never complained to her that she was being discriminated against because she was not allowed to rent her unit, while white owners were allowed to rent theirs. She also was not aware of any such complaints by Petitioner to the Board. Determinations of Ultimate Fact Petitioner failed to present persuasive evidence that she requested Respondent's permission to rent Unit 207. Petitioner subjectively may have believed that she requested permission in Item 12 of her April 11, 2009, communication, but that item cannot reasonably be read to constitute such a request. Item 12 merely asks if there are renters in Canongate and the circumstances under which the Board would allow renters. No other items in the April 11, 2009, communication constitute a request to rent the unit. Petitioner did not present any evidence that she submitted other written requests to rent her unit, and her testimony that she had orally requested to rent her unit was unpersuasive. Respondent's witnesses credibly testified that Petitioner had never requested, orally or in writing, to rent her unit. Petitioner also failed to establish that her request to rent her unit was refused. Her testimony on this point was unclear, imprecise, and unpersuasive, and she provided no evidence of written refusal to allow her to rent her unit. By contrast, Respondent's witnesses testified unequivocally that they had not refused to allow Petitioner to rent her unit. They also credibly testified that Petitioner never had complained to them that she was refused permission to rent her unit because she is black, while white owners were allowed to rent theirs. Petitioner did not establish that she was qualified and able to rent out her unit. The uncontroverted evidence established that the Canongate Declaration of Condominium prohibits leasing or rental of units. Accordingly, Petitioner could not have been allowed to rent her unit, even if had she asked. Petitioner did not present any competent substantial evidence establishing that Respondent allows similarly situated white unit owners to rent their units, while refusing to allow Petitioner to rent hers. Petitioner's testimony that Lansdowne was a purchaser and that the occupancy agreement for Unit 210 actually constituted a rental arrangement was merely her personal opinion, unsupported by any competent substantial evidence. Respondent showed that Lansdowne is an institutional mortgagee that took title through foreclosure and, therefore, was not similarly situated to Petitioner and the other owners who had purchased their units. Moreover, Petitioner presented no evidence that Lansdowne was white. In sum, there is no competent substantial evidence in the record to support a finding of unlawful housing discrimination.
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 finding Canongate Condominium Apartments No. One, Inc., not liable for housing discrimination and awarding no relief. DONE AND ENTERED this 9th day of August, 2011, in Tallahassee, Leon County, Florida. S CATHY M. SELLERS 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 9th day of August, 2011.
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.
Findings Of Fact 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. 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. 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. 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. 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. 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. 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. 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. 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. The parties voluntarily executed a Conciliation Agreement that provided, in pertinent part: 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. 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. 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. 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. 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.
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
Findings Of Fact At all times relevant to this case, the Respondent, Pebble Springs Condominium Association of Bradenton, Inc., was the condominium association for Pebble Springs Condominium VI in Bradenton, Florida. Matthew Ford is and, at all times relevant to this complaint, was a unit owner at Pebble Springs Condominium VI and a member of the condominium association. Matthew Ford requested to inspect the Respondent's records, hereafter described in paragraph 4 and referred to as Exhibits A and B, which were prepared and provided by the law firm of Becker, Poliakoff and Streitfeld, P.A., to the Respondent as a bill for legal services rendered in the Respondent's suit against Ford. At the time that Ford made his request for Inspection of the Respondent's records pursuant to Section 718.111(7), Florida Statutes, he was the defendant in a circuit court lawsuit in which the Respondent was plaintiff. Said court case is currently on appeal. Joint Exhibits A and B constitute the entirety of said law firm's bill to the Respondent. Joint Exhibit B describes each instance of attorney's service to the Respondent and the amount of time attributed to said service. The parties stipulate that the information contained in the document sought by Ford is the same as that reported in Exhibit B. The data in Exhibit B is reported in four columns, as follows: date, attorney, time, and actions. The information listed under "actions" includes the following listings: (03/14/83) Telephone conversation with bank officers and association officers re unfreezing of association funds. (03/14/83) Preparation for meeting with board members and witnesses; preparation of counterclaim. (03/14/83) Research concerning mandamus and other injunctive relief; preparation of counterclaim. (03/15/83) . . . preparation of counterclaim and motions to strike. (03/16/83) Preparation of counter-claim; . . . filing of counterclaim and coordination of service. (04/06/83) Preparation of motion to dismiss or for more definite statement and motion to strike on behalf of firm and Daniel J. Lobeck. (04/07/83) Memorandum to Alan E. Tannenbaum re Murley contempt of court order. (04/08/83) Receipt and review of motion to dismiss filed on behalf of board by insurance counsel; . . . (04/12/83) Preparation of motion to hold [deleted in exhibit] in contempt. (04/13/53) Correspondence to auto owners; correspondence to [deleted]; amendment of motion for contempt; setting of contempt hearing. (04/15/83) Review of motion to appoint special master and notice of bearing; telephone conference with Alan Tannenbaum re same. (04/18/83) Conference with Daniel J. Lobeck re: motion to appoint receiver. (04/19/83) Preparation of proposed order dismissing motion to appoint special master; research and preparation for hearing on motion; hearing on motion; telephone conferences with clients re hearing and order. Ford's request as to Joint Exhibit B was refused by the Respondent, which did provide him with Joint Exhibit A which states the sum due for legal services together with stated costs and total balance due. The Respondent also provided for Ford's inspection the Respondent's ledgers and checkbooks, which displayed the sums paid each month by the Respondent to the law firm. In the course of the litigation between the Respondent and Ford, Ford sought the production of documents from the Respondent as evidenced by Exhibit C. In the context of the hearing for attorney fees in the litigation between the Respondent and Ford, the Respondent has offered to provide Ford with the information which he had previously sought. During March or April 1983, Ford filed a complaint with the Petitioner alleging that he was being denied access to the Respondent's books and records contrary to Section 718.111(7), Florida Statutes. The Petitioner conducted an investigation of Ford's complaint, which resulted in the issuance by the Petitioner of a Notice to Show Cause to the Respondent issued May 9, 1983. The Respondent requested a formal hearing by petition dated June 1, 1983, which request was granted.
Recommendation Having found the Respondent not guilty of the allegations contained in the Administrative Complaint, it is recommended that the Administrative Complaint filed against Respondent be dismissed. DONE and RECOMMENDED this 5th day of March, 1984, in Tallahassee, Leon County, Florida. STEPHEN F. DEAN, Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 5th day of March, 1984. COPIES FURNISHED: Karl M. Scheuerman, Esquire Department of Business Regulation 725 South Bronough Street Tallahassee, Florida 32301 Daniel J. Lobeck, Esquire 1343 Main Street, Suite 204 Sarasota, Florida 33577 Gary Rutledge, Secretary Department of Business Regulation 725 South Bronough Street Tallahassee, Florida 32301
Findings Of Fact Barkwood Square Condominium was developed by Mr. John Nell (Respondent). The declaration of condominium was filed on May 23, 1980, and transfer of control from Respondent to the condominium association took place at a meeting held on June 30, 1981. At the time of turnover, Bieder Management Company was Respondent's agent for the operation, maintenance and management of Barkwood Square. Bieder was accepted as the association's agent at turnover and continued in this capacity until February, 1982. No documents were produced at the transfer meeting, and all records and accounts then in existence remained in the hands of Bieder. In February, 1982, the condominium association became dissatisfied with Bieder and replaced it with Hotz Management Company. The records turned over to Hotz by Bieder at that time were incomplete, and the association then sought the assistance of Petitioner to obtain complete records and a financial accounting. Through its investigation in 1982, Petitioner and the condominium association obtained all records available. The testimony of Petitioner's investigator and two of the unit owners (who are also condominium association directors) established that no review of the financial records of the association had ever been conducted by an independent certified public accountant (CPA). The testimony of the unit owners-directors established that Respondent had not delivered any of the following items to the association within 60 days of turnover: Original or certified copy of the declaration of condominium. A certified copy of the articles of incorporation of the association. A copy of the bylaws. Minutes of association meetings. Resignation of officers and directors resulting from change of control. The investigation revealed that Respondent owes $4,138.32 in contributions to the condominium association. Respondent concedes that he owes this amount, which is based on common expenses incurred in excess of assessments to unit owners between July and October, 1980. Respondent paid certain association expenses with personal funds and was later reimbursed. Respondent concedes this procedure was not in keeping with good accounting practices. Respondent also failed to keep or turn over to the association the financial records pertaining to the period when he did not employ a management agent.
Recommendation Based on the foregoing, it is RECOMMENDED that Petitioner enter a Final Order directing Respondent to take the corrective action discussed herein as authorized by Subsection 718.501(1)(d)(2), F.S., and assessing a civil fine in the amount of $1,500 as authorized by Subsection 718.501(1)(d)4, F.S. DONE and ENTERED this 27th day of July, 1983, in Tallahassee, Florida. R. T. CARPENTER, Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 27th day of July, 1983. COPIES FURNISHED: Helen C. Ellis, Esquire Department of Business Regulation 725 South Bronough Street Tallahassee, Florida 32301 N. Staten Bitting, Jr., Esquire 3835 Central Avenue Post Office Box 15339 St. Petersburg, Florida 33733 E. James Kearney, Director Division of Florida Land Sales and Condominiums Department of Business Regulation 725 South Bronough Street Tallahassee, Florida 32301 Gary R. Rutledge, Secretary Department of Business Regulation 725 South Bronough Street Tallahassee, Florida 32301
