The Issue Whether the Respondent discriminated against the Petitioner on the basis of handicap, in violation of the Florida Fair Housing Act, Section 760.20, et seq., Florida Statutes (2009).1
Findings Of Fact Based on the oral and documentary evidence presented at the final hearing and on the entire record of this proceeding, the following findings of fact are made: Mr. Wergeles is a 61-year-old man who, at the times pertinent to this proceeding, resided in Unit 223 of the Tregate East Condominium development. The Tregate East Condominium development contains 62 units and two elevators and is governed by the Association. The unit in which Mr. Wergeles resided at the times pertinent to this proceeding was located on the second floor of one of the two apartment buildings comprising the Tregate East Condominium development. At one time, Mr. Wergeles was the co-owner of Unit 223 of the Tregate East Condominium with Janice Scudder. At the times pertinent to this proceeding, however, he lived in the apartment pursuant to an agreement with Ms. Scudder that he would pay her one-half of expenses, including one-half of the mortgage, one-half of the condominium fees, and one-half of the utilities. At the times pertinent to this proceeding, a group of ladies played cards in the condominium clubhouse on Friday nights. The easiest route to the clubhouse bathrooms, which were accessed by doors on the outside of the clubhouse wall, was through a side door of the clubhouse, which was adjacent to the bathrooms. The side door locked automatically, and, once outside, a person could re-enter the clubhouse by the side door only by entering a code on a key pad that was old and worn. Although there was a light attached to the corner of the clubhouse, the light did not illuminate the area around the side door or the bathrooms. Because it was very difficult to see the numbers on the key pad, the ladies left the side door open whenever someone needed to use the restroom, which caused concern because of the lack of security. To remedy this situation, Lingo Electric, Inc. ("Lingo Electric"), installed a light above the side door of the condominium clubhouse on August 26, 2009, at the request of the Association. The purpose of the light was to provide illumination in the area of the side door and the clubhouse bathrooms. The light installed by Lingo Electric was a 70 watt high pressure sodium photo cell light with a clear plastic lens, and it had a sensor that caused the light to come on only at night. The light was not, and could not be, shielded because a cover would cause the plastic lens to melt. The light was located about 50 feet from Mr. Wergeles' apartment. Although the light did not shine directly into Mr. Wergeles' bedroom window, the amount of illumination coming through the bedroom window increased after the light was installed, even when the vertical blinds on the bedroom window were closed. The amount of illumination coming into the apartment's lanai, which was essentially a balcony that extended a few feet out from his apartment, also increased after the light was installed. This increased illumination disrupted Mr. Wergeles' sleep. Early on the morning of August 27, 2009, Mr. Wergeles left a voice mail message at the offices of the Association's attorneys, Kevin T. Wells, P.A., requesting that the Association remove the light. In a letter dated August 28, 2009, David C. Meyer, Esquire, of the Kevin T. Wells, P.A. law firm, wrote to Mr. Wergeles on behalf of the Association and notified him that his verbal request that the light be removed was rejected. In a letter dated August 30, 2009, directed to the President of the Association and sent by certified mail, Mr. Wergeles stated: As you are aware a floodlight was installed over the Clubroom side door by Lingo Electric on August 26. 2009. This light is defused and is shining directly into my bedroom and lanai. I am asking Tregate East Condominium Association, Inc. to block all light that is coming in my bedroom and lanai from this floodlight. I have had serious problems sleeping for many years that are directly related to my disability.[3] As you are aware I am disabled and this light coming in my bedroom and lanai are exacerbating my sleeping problem. There is a security light almost directly above this floodlight that covers the entire area. The floodlight that is over the clubroom side door is defused and multiplies the light that is emitted from it. Your immediate attention to the resolution to this situation would be greatly appreciated.[4] At some point subsequent to Mr. Wergeles' request that the light be blocked from his window and lanai, the Association, through its attorney, requested that Mr. Wergeles provide detailed information regarding his medical condition from his treating physician, and he was asked to sign a release so that the Association could obtain his medical records. In response to the Association's request, Mr. Wergeles provided a letter dated September 24, 2009, from "Scott B. Elsbree," written on the letterhead of Gulf Coast Medical Specialists, PLLC, and directed to "To Whom It May Concern." The letter stated in pertinent part: Mr. Wergeles has been under my care since October 2006. He is physically disabled, and he has severe sleep problems. He requires a healthy and appropriate sleep environment, away from loud noises and bright lights. Any accommodation you can make in that regard would be greatly appreciated.[5] The letter contained no designation identifying Mr. Elsbree as a licensed health care professional, and his name did not appear on the letterhead of Gulf Coast Medical Specialists, PLLC. Mr. Wergeles also provided the Association with a letter confirming that he had received Social Security disability benefits since January 2000. On September 14, 2009, a code enforcement officer employed by Sarasota County, Florida, issued a Notice of Code Violation and Order to Correct Violation, in which the Association was ordered to correct all exterior lighting to ensure that it was "concealed behind an opaque surface and recessed within an opaque housing" such that "it shall not be visible from any street right-of-way or adjacent properties."6 The Order directed the Association to correct any violations on or before October 14, 2009. Sometime between September 14, 2009, and October 14, 2009, when the Sarasota County code enforcement officer inspected the Tregate East Condominium property, Lingo Electric removed the original light from over the side door of the clubhouse and replaced it with one conforming to the Sarasota County Code.7 According to Mr. Wergeles, he had problems sleeping before the light over the side door of the clubhouse was installed, and the light made these problems worse. He related that he felt terrible because of the lack of sleep, was clumsy, and had migraine headaches and stomach problems. Mr. Wergeles described his sleeping problems as severe from the time the light was installed until it was removed and replaced with a shaded light. Mr. Wergeles vacated Unit 223 of the Tregate East Condominium development on or about November 6, 2009. Mr. Wergeles stated that the only relief he requested as a result of his complaint against the Association was a "fair shake." He did not claim any quantifiable damages arising out of his complaint of discrimination on the basis of handicap. In addition to the complaint in the instant case, Mr. Wergeles filed discrimination complaints against the Association with the federal Department of Housing and Urban Development and/or the FCHR in 2006, 2007, and 2009. In all four complaints, Mr. Wergeles alleged, among other things, that the Association had discriminated against him on the basis of handicap.8 Summary and findings of ultimate fact The creditable evidence presented by Mr. Wergeles was insufficient to support a finding of fact that he was handicapped at the times pertinent to this proceeding. In his testimony, Mr. Wergeles stated only that he was disabled. He provided no further explanation, referring instead to the letter from Mr. Elsbree and to the letter from the Social Security Administrative affirming that he had received disability payments since January 2000. The letter from Mr. Elsbree contained no information about his medical credentials or the nature of the care he provided to Mr. Wergeles. In addition, even assuming that Mr. Elsbree was a licensed physician who had treated Mr. Wergeles for a medical condition, there is no information in the letter from which it can be determined that Mr. Wergeles had a "handicap" for purposes of sustaining a claim of discrimination under the Florida Fair Housing Act. The letter stated only that Mr. Wergeles "is physically disabled," a statement that provides no indication of the nature of Mr. Wergeles' medical condition or the manner in which it substantially limited a major life activity.9 Furthermore, although Mr. Elsbree asserted that Mr. Wergeles had "severe sleep problems," the sleep problems were described as a condition from which Mr. Wergeles suffered in addition to his disability.10 The letter from the Social Security Administration affirming that Mr. Wergeles received disability benefits does not include any information beyond the mere fact that he was found eligible for disability benefits. It, therefore, provides no more basis for determining the nature and extent of Mr. Wergeles' asserted disability than Mr. Elsbree's letter stating that Mr. Wergeles "is physically disabled." Even assuming that the evidence presented by Mr. Wergeles was sufficient to support a finding of fact that he was handicapped, he failed to present sufficient credible evidence to support a finding of fact that the Association, or any member of the Board of Directors, knew or should have known that he was disabled. The only creditable evidence Mr. Wergeles presented on this point established merely that, prior to filing the complaint at issue in the instant case, he filed complaints against the Association in 2006, 2007, and 2009 alleging that it had discriminated against him on the basis of, among other things, a handicap. Mr. Wergeles did not present any evidence establishing that the Association conceded that he was handicapped with respect to any of these complaints or that there had been a final administrative or judicial adjudication that he was handicapped. Because Mr. Wergeles failed to present any creditable evidence establishing that he was handicapped, he failed to establish that the accommodation he requested of the Association, removal of the light over the side door of the clubhouse, was necessary.
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 the Petition for Relief filed by James Wergeles. DONE AND ENTERED this 3rd day of November, 2010, in Tallahassee, Leon County, Florida. S PATRICIA M. HART Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 3rd day of November, 2010.
The Issue Whether Respondents have violated Florida's Fair Housing Act by refusing to rent an apartment to Petitioner because of her mental disability and familial status. If so, whether Petitioner should be granted the relief she has requested.
Findings Of Fact Based upon the evidence adduced at hearing and the record as a whole, the following findings of fact are made: Petitioner is a single parent. She has three sons, aged 10, 12, and 14. At all times material to the instant case, her sons have lived with her in the same household. At all times material to the instant case, Petitioner has suffered from phobias and from anxiety and panic attacks. At all times material to the instant case, Petitioner has received social security disability benefits from the federal government based upon her mental disability. Summer Lakes is a rental apartment community in Oakland Park, Florida. Petitioner lived in an apartment at Summer Lakes with her three sons from June of 1994 to January of 1995. During the period of her tenancy, Petitioner experienced financial problems. As a result, she had difficulty making her rent payments. In January of 1995, she was evicted from her Summer Lakes apartment for nonpayment of rent. Following her eviction, she and her sons lived with her mother in her mother's house (where Petitioner and her sons still live). Petitioner's financial situation improved following her eviction. By August 12, 1996, she had been able to save a substantial sum of money. On or about that date (August 12, 1996), Petitioner returned to Summer Lakes to inquire about again renting an apartment in the community. Flags outside the rental office indicated that apartments were available for rent. Upon entering the rental office, Petitioner was greeted by Vicki Atkinson (now Keating), Summer Lakes' manager. Summer Lakes had had another manager when Petitioner had lived there previously. Petitioner filled out an application to lease an apartment in the community and handed it to Ms. Atkinson. She also presented to Ms. Atkinson various documents in an effort to show that she would be financially able to make the required rent payments. Among these documents were bank statements which reflected that Petitioner had approximately $25,000 in the bank. Petitioner, in addition, showed Ms. Atkinson paperwork Petitioner had received from the federal government regarding her social security disability benefits. The paperwork indicated that Petitioner had been awarded these benefits (monthly payments of $910.00) based upon the finding that she had a mental disability. Immediately after reviewing the paperwork, Ms. Atkinson told Petitioner, "We don't want your kind here." Petitioner pleaded with Ms. Atkinson to let her rent an apartment in the Summer Lakes community. She even offered to have someone co-sign her lease. Ms. Atkinson was unmoved. Claiming that Petitioner's income was insufficient, she refused to rent an apartment to Petitioner. Her refusal was actually based upon her desire not to rent to a person with a mental disability. In refusing to rent an apartment to Petitioner, Ms. Atkinson was acting on behalf of the owner of Summer Lakes, Pittco Summer Lakes Associates, Ltd. (Pittco). Pittco no longer owns Summer Lakes and Ms. Atkinson no longer is its manager. Pittco sold Summer Lakes to SummerLake Oakland Park, Ltd., on or some time before July 1, 1998.
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 that, although Ms. Atkinson and Pittco committed a "discriminatory housing practice" by refusing to rent an apartment to Petitioner because of Petitioner's mental disability and familial status, the Commission is without authority to grant the relief Petitioner has requested. DONE AND ENTERED this 1st day of October, 1998, in Tallahassee, Leon County, Florida. STUART M. LERNER Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 Filed with the Clerk of the Division of Administrative Hearings this 1st day of October, 1998.
The Issue Whether Respondent, IMT-LB Central Florida Portfolio, LLC (Respondent), committed a discriminatory practice in violation of Chapter 760, Florida Statutes (2009).1
Findings Of Fact Respondent owns and/or operates a residential rental property located at 4400 Martin’s Way, Orlando, Florida. The property, identified in this record as Village Park Apartments (Village Park), consisted of a two-story, multi-building, multi- apartment complex. Sometime in late October 2009, Petitioner leased an apartment at Village Park. Petitioner’s apartment was on the second floor and no other apartments were above his. Petitioner’s lease agreement required that Petitioner obtain and provide public utilities for his apartment. Although Petitioner claims he did not timely receive a copy of his lease in order to be on notice of this provision, the record is clear that after Petitioner became aware of the provision, he did not obtain public utilities for the apartment. Shortly after Petitioner received a bill for utility service for his apartment from Respondent in December 2009, Petitioner complained to governmental authorities about conditions at the apartment complex. With regard to the conditions of his living unit, Petitioner maintained there was a roof leak, a vanity pipe leak, and a non-working toilet. Ms. Johnson, an inspector for the City, came out to Village Park and inspected the unit. She found that the toilet and vanity required repair. She further determined that Respondent would need to get a certified roofing person to verify the condition of the roof, and to certify to the City that the roof was water tight. It was Ms. Johnson’s position that water damage was evident on the ceiling in Petitioner’s unit, and that Respondent would need to get a certified roofing person to verify the condition of the roof, as well as someone to restore the interior of Petitioner’s unit by repairing and/or painting the ceiling. An inspector from the Orange County Health Department also visited Village Park concerning a complaint about rats at the dumpster. Respondent timely addressed the rodent issue and the property is under contract with an extermination company that provides appropriate rodent deterrence. Respondent timely repaired the vanity leak and the toilet issue in Petitioner’s apartment. The roof issue, however, was not quickly resolved. Initially, Petitioner refused to allow Respondent into the unit to repair the ceiling. Ms. Johnson advised Petitioner that he would have to allow Respondent entry in order for them to be able to fix the ceiling and restore it to an appropriate condition. According to Ms. Johnson, the ceiling in Petitioner’s unit did not collapse as alleged by Petitioner. Ms. Johnson also noted that there was debris around the dumpster at Village Park. She was favorably impressed with the speed with which the maintenance crew cleaned up the mess at the dumpster site. Despite some delays in getting the roof inspection completed to Ms. Johnson’s satisfaction, all issues with Petitioner’s unit were resolved to the City’s satisfaction. Concurrent with the repair timeline to Petitioner’s unit, Respondent filed an eviction proceeding against Petitioner. That action progressed through the court, through mediation, and resulted in a stipulated settlement agreement. The Landlord/Tenant Stipulation was executed on January 27, 2010, and provided, in pertinent part: Defendant [Petitioner] agrees to place utilities in his own name at OUC no later than Feb. 3, 2010. * * * Defendant agrees to allow Plaintiff [Respondent] to enter his apartment for repairs on Feb. 1, 2010 between 9:00 a.m. and 5:00 p.m. Petitioner failed to abide by the terms of the stipulation. Ultimately the court issued a Final Judgment for Possession and Writ of Possession for Petitioner’s unit. Petitioner's claim that the eviction process was retaliation for the complaints made to the county and city authorities, belies the fact that Petitioner failed to honor the terms of the lease, and the stipulation reached in the eviction proceeding. Petitioner’s race was not directly or indirectly involved in any manner. Nor was Petitioner treated less favorably than a similarly situated party not of Petitioner’s race.
Findings Of Fact The Lake Breeze Motel sign was erected in 1968 or before and was issued tags for the years including 1971. Up to and including the year 1971 Petitioner sent notices to the owner of the sign that renewal of the permit was required and Respondent remitted the appropriate fee for each of those years. No further notices that the permit had to be renewed was received from Petitioner in subsequent years. In 1976 Respondent was told by another sign owner that the sign needed a current tag and he applied to Petitioner for a permit. This application was denied by Petitioner. Respondent verbally (over the telephone) told Petitioner's sign representative that he desired a hearing on the denial but nothing further was forthcoming from Petitioner until the Notice of Alleged Violation dated 16 May 1978 was issued. The Lake Breeze Motel sign is located on U.S. 27 some 9.4 miles south of the Polk County line. U.S. 27 is a federal-aid primary highway. Approximately 400 feet from Respondent's sign, and on the same side of the highway is a sign owned by Highway Display which is currently permitted. The Highway Display sign was erected in 1972, some 4 years after Respondent's sign was initially permitted. The Lake Breeze Motel is located approximately 6 miles off U.S. 27 and the sign is essential to provide motorists directions from U.S. 27 to the motel.
The Issue Whether Rule 61B-23.003(9), Florida Administrative Code, is an invalid exercise of delegated legislative authority.
Findings Of Fact Upon consideration of the oral and documentary evidence adduced at the hearing, the following relevant findings of fact are made: Petitioner, Michael Gertinisan, is a unit owner and member of the Bay Hills Village Condominium Association, Inc. (Association). The Association is responsible for the operation of the Bay Hills Village Condominium. Petitioner purchased his unit in December, 1992. Prior to December, 1992, the Petitioner had leased the unit for a number of years. The Bay Hills Village Condominium is a mobile home park condominium where each unit is comprised of a parcel of vacant land upon which is placed a mobile home. Transfer of control of the Association from the developer to the unit owners, other than the developer, pursuant to Section 718.301, Florida Statutes, has not occurred. However, unit owners, other than the developer, are entitled to elect a representative to the board of administration of the Association in an upcoming election. The declaration of condominium for Bay Hills Village Condominium was recorded in the public records in 1985. A number of units were sold to purchasers in 1985. At the time Bay Hill Village Condominium was created and the declaration of condominium recorded in the public records in 1985, the controlling statute, Chapter 718, Florida Statutes, contained no maximum period of time during which the developer was entitled to control the operation of the Association through its ability to elect a majority of the board of administration. The developer of a condominium is statutorily entitled to control the affairs of the condominium association for a period set forth in the statutes. This right to control the affairs of the condominium association for the period set forth in the statutes is a substantive vested right. With the right to control the condominium association, comes the attendant rights, including but not limited to, the right to: (a) adopt a budget meeting the marketing needs of the developer; (b) enter in to contracts with related entities providing for maintenance and management of the condominiums; (c) control ingress and egress on and over the condominium property to move construction equipment; (d) adopt board policies relating to the renting of units in the condominium; (e) adopt board policies regarding placement of "For Sale" signs on the condominium property and to model its units; (f) maintain the property in accordance with the developer's need to conduct an ongoing sales program; and (g) change the size and configuration of units in the condominium to meet the needs of the developer's marketing campaign. In those situations where the developer still exercises control over the condominium association, the aforestated rights of the developer would be substantively impaired by a retroactive application of Section 718.301(1)(e), Florida Statutes, as created by Chapter 91-103, Section 12, Laws of Florida, to condominiums in existence prior to the affective date of the Chapter 91-103, Section 12, Laws of Florida.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is, accordingly, ORDERED that the Petitioner failed to establish that Rule 61B-23.003(9), Florida Administrative Code, is an invalid exercise of delegated legislative authority and the relief sought by the Petitioner is DENIED. DONE AND ORDERED this 14th day of January, 1994, in Tallahassee, Florida. WILLIAM R. CAVE Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 14th day of January, 1994. APPENDIX TO FINAL ORDER, CASE NO. 93-6214RX The following constitutes my specific rulings, pursuant to Section 120.59(2), Florida Statutes, on all the proposed findings of fact submitted by the parties in this case. Petitioner's Proposed Findings of Fact: The Petitioner elected to not file any proposed findings of fact. Respondent's Proposed Findings of Fact: Proposed findings of fact 1, 2, 3, 4, 5, 6, 8 and 9 are adopted in substance as modified in Findings of Fact 1, 2, 3, 4, 5, 6, 7 and 8, respectively. Proposed finding of fact is unnecessary. COPIES FURNISHED: Michael Gertinisan 10506 Bay Hills Circle Thonotosassa, Florida 33592 Karl M. Scheuerman, Esquire Department of Business and Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399-1007 Henry M. Solares, Director Division of Florida Land Sales Condominiums and Mobile Homes 1940 North Monroe Street Tallahassee, Florida 32399-0792 Jack McRay, Acting General Counsel Department of Business and Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399-0792
The Issue Whether Respondent discriminated against Petitioners in violation of the Florida Fair Housing Act (Florida FHA); and, if so, the relief to which Petitioners are entitled.
Findings Of Fact Sun Lake is an apartment complex located in Lake Mary, Florida. Ms. Pollock is the property manager of Sun Lake, and has been employed in this capacity for approximately seven years. Mr. Green is an African-American male. The brothers leased and resided in an apartment at Sun Lake from 2012 through July 31, 2017. Mr. Green asserted that Jude is disabled, however, no other evidence to support that assertion was provided. Mr. Green alleged that Respondent failed to provide Petitioners accommodations that were requested in December 2016: change their apartment locks to the brothers’ “own private locks”; stop the trash service pick-up to the brothers’ apartment; and establish a community garden within the Sun Lake property. It is undisputed that Respondent ceased the trash service pick-up, but the evidence was insufficient to support whether the apartment locks were or were not changed. There was insufficient evidence to support a finding of fact regarding the establishment of a community garden within the Sun Lake property.5/ Mr. Green suggested a December 2016 police report was fraudulent because a name on the report was incorrect, and he had not filed a police complaint regarding noise above their apartment. The evidence was insufficient to support a finding of fact on this allegation. Mr. Green admitted to withholding rent on several occasions as a method to have the requested accommodations secured. Ms. Pollack confirmed there was a valid lease agreement between Sun Lake and Petitioners. Further, she provided that Respondent did, in fact, stop the trash service pick-up to their apartment as Petitioners requested. Ms. Pollack lacked specific knowledge regarding whether Petitioners’ apartment door locks were changed, but offered that Respondent must maintain an apartment key. This is done in order to secure access to each apartment in a timely manner for health and safety reasons. Respondent’s maintenance staff would not enter any apartment without a specific request for service. Ms. Pollack provided the multiple dates on which Petitioners’ rental payments were late. Petitioners and Respondent became involved in eviction proceedings in circuit court. At some point, Petitioners and Respondent entered a settlement stipulation that Petitioners would vacate their apartment earlier than their lease agreement, and pay the rental fees and other associated fees to Respondent. Following Mr. Green’s testimony, and both the direct and cross-examination testimony of Respondent’s sole witness, Ms. Pollock, Mr. Green moved to dismiss the case. No credible evidence was presented that Respondent discriminated against Petitioners in any fashion.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a final order be entered by the Florida Commission on Human Relations dismissing Petitioners’ Petition for Relief in its entirety. DONE AND ENTERED this 21st day of May, 2019, in Tallahassee, Leon County, Florida. S LYNNE A. QUIMBY-PENNOCK 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 21st day of May, 2019.
The Issue Whether Petitioners, Miryam Hathaway and Benjamin Hathaway, were subject to a discriminatory housing practice by Respondents, Gerlinde 1 All statutory references are to Florida Statutes (2019), unless otherwise noted. Wermuth and Horst Wermuth, based on a handicap, in violation of Florida's Fair Housing Act.
Findings Of Fact Petitioners own a condominium in Parkway Villas Condominiums ("Parkway Villas") located in Bradenton, Florida. Petitioners have lived in Parkway Villas since 2012. Parkway Villas, as described by Petitioner, Mrs. Hathaway, is a "nice elderly community" of 225 units.5 Parkway Villas is governed by the Parkway Villas Condominium Association, Inc. (the "Association"), a homeowners' association formed in approximately 1970. At the final hearing, Mrs. Hathaway testified that she suffers from a physical disability from a work injury that occurred many years ago. Supporting this claim, Mrs. Hathaway produced several medical records documenting an issue with her right shoulder and elbow, specifically acromioclavicular ("AC") joint arthropathy, which includes tendinosis, tendinopathy, and a partial tendon tear. Mrs. Hathaway asserts that this 3 By requesting a deadline for filing post-hearing submissions beyond ten days after the transcript filing date, the 30-day time period for filing the recommended order was waived. See Fla. Admin. Code R. 28-106.216(2). 4 Petitioners subsequently filed a document on September 10, 2020, which was not considered. 5 Petitioner Benjamin Hathaway did not participate in the final hearing. Nor did Petitioners produce any evidence regarding the discrimination claim he is pursuing against Respondents, or a specific disability from which he suffers. Consequently, when evaluating Petitioners’ allegations and cause of action in this FHA matter, any reference to "Petitioners" only concerns the representations and testimony of Miryam Hathaway. condition causes her chronic pain, and she has difficulty lifting more than five pounds with her right arm. Mrs. Hathaway also expressed that she suffers from depression, high blood pressure, and hypertension. Mrs. Hathaway claims that from approximately January 2018 through July 2019, Respondents (the "Wermuths") discriminated against her based on her disability by denying her the use and enjoyment of certain community amenities (the Association's pool), and then failing to make a reasonable accommodation to enable her to use those amenities.6 The Wermuths also reside in Parkway Villas. Gerlinde Wermuth is currently President of the Association's Board of Directors. Mrs. Wermuth served as Board President during all times relevant to Petitioners' FHA claim. Horst Wermuth is Gerlinde Wermuth's husband. Mr. Wermuth, however, has never served or held any position on the Association Board. The Association's Board of Directors has seven members. All Board members are residents of Parkway Villas. All Board action requires at least four affirmative votes of its members. The Board may not take any action without a quorum of four members. Petitioners point to Mrs. Wermuth as the primary perpetrator of the alleged wrongdoing based on her position as Board President. Petitioners contend that Mrs. Wermuth has severely abused her authority and mistreated Mrs. Hathaway for years. Petitioners' issues raised in this matter began in April 2016. That month, Petitioners applied to the Board for approval to enlarge the patio 6 Petitioners also alleged in their complaint filed with the Commission that Mrs. Hathaway, who is from Columbia, South America, was discriminated against based on her race and national origin, as well as retaliation. However, no evidence in the record supports a claim that the Wermuths took any actions or supported any Board decisions that were motivated by Mrs. Hathaway’s race or national origin or in retaliation for a protected activity. Petitioners further allege that the Wermuths committed a number of non-FHA indiscretions, which are not considered in this administrative proceeding, including abuse of power, defamation, elder abuse, emotional distress, extortion, intimidation, and invasion of privacy. outside their back door. Petitioners included with their application specific plans, diagrams, and measurements to allow the Board to determine whether the patio would fit within the community's aesthetics. The Board approved the patio construction on May 1, 2016, and Petitioners proceeded to construct their patio. On December 14, 2017, several Board members and unit owners, including Mrs. Wermuth, trooped across the Parkway Villas property inspecting the community for potential "Carport/Patio Violations." According to Mrs. Wermuth, the Board regularly surveys the grounds to ensure consistent compliance with the Association's Policies, Rules, and Regulations ("Association Rules"). Petitioners, as residents and owners of a Parkway Villas dwelling, are members of the Association and subject to the Association Rules. The survey revealed approximately 60 potential violations of the Association Rules. Thereafter, the Board determined that 23 of those potential violations warranted sending the unit owner a notice letter. Included on this list was Petitioners' unit (#115), about which was recorded "patio not approved." The Board determined that Petitioners' newly constructed patio departed from the plans that the Board reviewed and approved in May 2016.7 Following a Special Board Meeting held on January 5, 2018, the Board notified Petitioners of their findings. The Board warned Petitioners that they faced a fine of up to $1,000 unless they brought "their patio up to the agreed upon specifications." Petitioners were advised that they could appear before the Board's Compliance Committee on January 31, 2018, "to explain why you feel a fine should not be imposed." 7 Association Rules, General Rules number 3, states: "Villa owners must obtain written Board approval before constructing add-ons, patios, or making any alterations to the common element." On January 31, 2018, the Compliance Committee, of which Mrs. Wermuth is not a member, convened to review the status of the 23 violations identified in the survey done the previous December. By the time of the meeting, Petitioners were the only unit owners who had not voluntarily corrected their violation. At the Compliance Committee meeting, Petitioners acknowledged that the patio they constructed differed from the design they submitted in April 2016. Primarily, their patio exceeded the dimensions shown in the previous design and exceeded standard dimensions acceptable to the Board. The Board allowed Petitioners until March 31, 2018, to adjust the size of their patio. The Board also offered to work with Petitioners to bring their patio into compliance. At the final hearing, Mrs. Hathaway readily agreed that Mrs. Wermuth was very helpful in this process. Mrs. Hathaway relayed that Mrs. Wermuth made several welcomed suggestions advising how Petitioners could arrange their plants, and how to adjust uneven stone pavers. In the meantime, on February 1, 2018, Mrs. Hathaway requested a private meeting with three Board members, including Mrs. Wermuth. During this gathering, Mrs. Hathaway revealed that Petitioners had installed an "emergency" half bathroom in their condominium in January 2016 without the Board's knowledge. The Board later learned that the construction of the bathroom involved cutting through the concrete foundation of Petitioners' unit to connect the bathroom's pipes and plumbing to the Association's sewer system, as well as other significant plumbing and electrical work. Further, Petitioners never obtained the appropriate permits from Manatee County for the project, and the bathroom was constructed by an unlicensed contractor. In addition, Petitioners had taken a number of broken chunks of concrete from the unit's foundation and were using them as "decorative stones" around the plants on their patio, which the Association Rules prohibit. On March 12, 2018, the Board voted to impose three separate fines on Petitioners for violating Association Rules, one for installing a bathroom without Board approval, one for constructing the patio contrary to the approved design, and one for placing the concrete chunks, as well as hanging wind chimes, adjacent to their patio.8 The Board also suspended Petitioners from using the community common areas, which included the laundry room, the clubhouse, the exercise facilities, the showers, and the pool. On March 28, 2018, the Compliance Committee met during a Special Board Meeting to consider Petitioners' multiple violations. During the meeting, the Compliance Committee found that Petitioners, as of that date, had properly reduced the size of their patio. The Compliance Committee also recognized that Petitioners had removed the concrete chunks and wind chimes from their patio area. Thereafter, the Compliance Committee voted to eliminate all fines imposed for those two violations. Regarding the bathroom, however, the Compliance Committee concluded that the unapproved installation was too significant to overlook. The Compliance Committee was concerned that the structural alterations and plumbing necessary to construct Petitioners' new bathroom might have compromised the unit's infrastructure and potentially damaged the neighbor's adjoining unit. Consequently, the Compliance Committee upheld a fine of $1,000 for that violation. Mrs. Wermuth abstained from any vote on the matter. In addition to the $1,000 fine, the Board upheld the suspension of Petitioners' use of Association amenities and common areas, including the clubhouse, exercise room, laundry room, and community pool. The suspension was to remain in effect until Petitioners paid the $1,000 fine and until Manatee County inspected the bathroom's construction and deem it sufficient 8 The Parkway Villas Combined Amended and Restated Declaration of Condominium, section 9.3, directs that: "The Villa Owner shall be required to inform the Board in writing of any electrical, plumbing, or structural changes." for permitting, as well as Petitioners' payment, in full, of any outstanding fine (the $1,000). The Board decided that any unauthorized use of the common areas by Petitioners during the suspension period would result in additional fines. The Board formally notified Petitioners of its decision by letter dated March 29, 2018, and signed by Mrs. Wermuth. The letter expressly stated that any violation of the suspension from using the common areas "will be considered a separate finable violation of the association's condominium documents," which would have to be paid in full prior to restitution of full use. Sometime around March 2018, Petitioners took steps to have their bathroom appropriately inspected. Unlike her experience with the patio modifications, however, Mrs. Hathaway testified that Mrs. Wermuth was most unhelpful in this process. Mrs. Hathaway charged that Mrs. Wermuth ordered her to obtain inspections from both an electrician and a plumber. Based on this imperative, Petitioners proceeded to pay an electrician, a plumber, as well as a professional engineer to inspect their bathroom. They also contacted Manatee County to acquire the appropriate building permits. Petitioners ultimately secured several reports confirming that the bathroom was competently constructed, as well as a Certificate of Completion from Manatee County indicating that the bathroom complied with applicable building code requirements. (The evidence adduced at the final hearing was unclear as to exactly when Petitioners presented the results of these inspections to the Board. Mrs. Hathaway urged that she provided all the information to the Board before the March 29, 2018, Board meeting, and produced a bill from a plumber dated March 8, 2018. However, the building permit Petitioners received from Manatee County was not issued until April 3, 2018. More significantly, as described below, the Board did not consider the inspection results until well over a year later in July 2019.) On April 2, 2018, Petitioners paid the $1,000 fine to the Board for the unapproved construction of their half bathroom. Petitioners subsequently appeared before the Board in April and May 2018, to contest paying the fine, as well as the imposition of the suspension. Notably, at neither of these meetings did Petitioners specifically request an accommodation to allow Mrs. Hathaway to use the community pool while their dispute was pending the Board's review. Neither did they express Mrs. Hathaway's desire to use the pool in relation to a disability. Following Petitioners' payment of the $1,000 fine in April 2018, Mrs. Hathaway began using the pool. (In fact, the evidence indicates that she never stopped using the pool.) However, because the Board had not yet conducted its review of the bathroom inspections and permits, her suspension from accessing the common areas remained in effect. The Board later addressed Petitioners' violations during a meeting on April 23, 2018. At that time, the Board noted that Petitioners had not provided any paperwork demonstrating that their new bathroom had been proficiently constructed. Therefore, the Board moved to require Petitioners to have a licensed plumber inspect the connection between their bathroom and the Association's sewer line, and also to have a licensed electrician inspect the electrical work. Thereafter, Mrs. Wermuth, in her role as Board President, directed the Board Secretary to prepare a letter notifying Petitioners that, while the inspections remained outstanding, they faced a "$50 per day fine for violating the suspension from use of the clubhouse and pool areas." The letter, dated April 25, 2018, also alerted Petitioners that their current fine totaled $500, and further warned Petitioners that if they persisted "in using the pool and clubhouse areas before [the Board has] removed the suspension and approved your half-bath project, the fine may increase to the maximum of $1,000. The suspension will not be lifted until fines are paid in full." At the final hearing, Mrs. Wermuth explained that the Board imposed the fine to motivate Petitioners to comply with the Board's request as quickly as possible. However, once Petitioners proved that their bathroom adhered to Association Rules, Mrs. Wermuth represented that the Board fully intended to set aside the penalties. Despite her suspension, Mrs. Hathaway continued to regularly (perhaps daily) use the Association pool. Mrs. Hathaway explained that several medical professionals had advised her that the joint pain in her right shoulder and arm would benefit from physical therapy in the pool. To support her testimony, Mrs. Hathaway produced a doctor's letter from May 2017, which recommended that she "would benefit from use of the community pool to assist in her joint pain therapy." A year later in May 2018, Mrs. Hathaway visited a local hospital emergency room complaining of pain. Upon her discharge, the physician told her that using the pool "would assist with [her] joint pain therapy." Mrs. Hathaway credibly testified that, in May 2018, she provided both the doctor's letter and the discharge instructions to a member of the Association Board (not Mrs. Wermuth). However, Mrs. Hathaway admitted that, other than passing on these two documents, she did not communicate directly or indirectly with any Board member about her disability or health. Neither does the evidence establish that Mrs. Hathaway furnished these documents to the Board for the Board's consideration. More pertinently, Mrs. Hathaway conceded she never directly delivered these documents to either Mrs. or Mr. Wermuth. During her testimony, Mrs. Hathaway also described an incident on October 20, 2018, when she was exercising in the pool. (Mrs. Hathaway was still suspended from accessing the community's common areas.) That day, another Parkway Villas Board member (not Mrs. Wermuth) "viciously" yelled at her and demanded to know why she was using the pool when she was not allowed to be there. When Mrs. Hathaway did not exit the pool in a timely fashion, the resident called the Manatee County Sheriff's Office, who responded to the scene. The sheriff registered the complaint, but did not arrest Mrs. Hathaway. Petitioners never paid the fine for Mrs. Hathaway's unauthorized use of the pool during her suspension, which eventually reach the maximum amount of $1,000. Mrs. Hathaway explained that Petitioners felt that paying anything beyond the initial fine of $1,000 for the unapproved bathroom installation was "extortion" and simply not fair. Finally, on June 26, 2019, Petitioners sent a letter to the Board requesting the Board reconsider the outstanding sanction. The letter, addressed to Mrs. Wermuth, specifically expressed: [W]e would like to know when the sanctions no to use pool – fitness – laundry – comun [sic] areas that you ordered last year 3-26/18 after we paid $1,000 fine and present to you all the documentation from Manatee County 3-26/18 following the regulation's to instaled [sic] 1/2 bath on January 2016 and was approved with all Professional Plumbing – Electrician etc. On July 1, 2019, the Board held a Special Board Meeting to consider Petitioners' request. During the meeting, the Board determined that Petitioners had presented sufficient proof that their bathroom was installed in a professional manner and complied with all necessary building code and Manatee County permitting requirements. The Board also acknowledged that Petitioners had produced a Certificate of Completion from Manatee County and had paid the maximum $1,000 fine for the initial violation. Therefore, the Board voted to rescind the suspension of Petitioners' use of the pool, as well as all fines associated with Mrs. Hathaway's repeated violation of the suspension. Mrs. Wermuth presided over the meeting. However, she once again abstained from the vote. The Board notified Petitioners of its decision by letter, dated July 1, 2019, which stated that, "Any pending fines or suspensions to the Association's Common Elements are rescinded." The Board also posted its action on the Association website. In addition, the Board emailed the meeting minutes of the vote to the Parkway Villas residents and placed a copy of the minutes on the community bulletin board in the clubhouse. With Petitioners' right to access the Association's common areas reinstated, Mrs. Hathaway has been free to use the pool since July 2019. Despite the July 2019 publication of the Board's vote to lift Petitioners' suspension, at the final hearing Mrs. Hathaway complained that she has experienced a number of confrontations with other Parkway Villas residents who still believe that she is barred from using the pool. Mrs. Hathaway declared that she has been told to leave the pool; she has been yelled at in the laundry room; and, most significantly, "many people attack me, attacking us, at the pool." Mrs. Hathaway expounded that confrontations such as the one on October 20, 2018, are not uncommon. She proclaimed that, "people start to attack us because Mrs. Wermuth talk to everyone, she circulate all the information to all the residents." Mrs. Hathaway relayed that Parkway Villa residents have reported her to the Manatee County Sheriff's Office approximately seven times since March 2018. Mrs. Hathaway asserted that she has implored Mrs. Wermuth to re-notify the residents that the Board has rescinded Petitioners' suspension. However, Mrs. Wermuth allegedly has refused to do so. Therefore, as part of the relief for her FHA claim, Mrs. Hathaway desires all harassment related to her use of the pool to stop. Because Mrs. Hathaway believes that Mrs. Wermuth is responsible for imposing the sanctions in the first place, she asserts that Mrs. Wermuth should be ordered to spread the word that Petitioners are no longer prohibited from using the common areas. Accordingly, Mrs. Hathaway seeks an administrative order directing Mrs. Wermuth to inform all Parkway Villas residents that Petitioners are no longer forbidden from using the pool. Mrs. Hathaway also alleged several other instances of harassment by Respondents including: December 2017, Bicycle Incident: Mrs. Hathaway complained that Mr. Wermuth rode his bicycle too close to her as she walked down a sidewalk. Mrs. Hathaway described the incident as intentionally intimidating. Pictures of Petitioners' Unit: Mrs. Hathaway complained that Mr. Wermuth photographed her villa and complained about its condition. (This activity prompted Mrs. Hathaway to initiate a small claims court action against him.) Mrs. Hathaway's Use of the Laundry Room: Mrs. Hathaway claimed that in March 2018, Mr. Wermuth harassed her while she was doing laundry. Mrs. Hathaway claims that Mr. Wermuth took pictures of her in the laundry room and raised his voice at her. In addition to this FHA matter, Petitioners initiated several unrelated, but parallel, legal actions against Respondents in or about February 2018. These matters involved separate complaints in Manatee County small claims court against both Mrs. and Mr. Wermuth. In particular, on February 8, 2018, Mrs. Hathaway sued Mrs. Wermuth for discrimination, retaliation, intimidation, and harassment based on a "fine for no violations." See Miryam Hathaway v. Gerlinde Wermuth, Twelfth Judicial Circuit in and for Manatee County, Florida, Case No. 2018 SC 679. On April 5, 2018, Mrs. Hathaway sued both Mr. and Mrs. Wermuth for "harassment issues." See Miryam Hathaway v. Horst and Gerlinde Wermuth, Twelfth Judicial Circuit in and for Manatee County, Florida, Case No. 2018 SC 1509. These civil matters were dismissed in December 2018.9 However, Mrs. Wermuth was awarded over $20,000 in attorney's fees and costs spent in defending the matter against Mrs. Hathaway. At the final hearing, Respondents denied that they ever took any action against Petitioners based on Mrs. Hathaway's disability. They also rejected any allegation that they ever participated in a decision that refused or failed to accommodate Petitioners' alleged disability. Mrs. Wermuth testified that, while she did serve as Board President throughout the time of Petitioners' fines and suspension, she does not personally administer, control, or manage the Association. Further, as an individual Board member, she does not have the authority to unilaterally penalize a unit owner who has violated Association Rules. Neither can she personally suspend a unit owner's common use rights. Similarly, she does not have the power to reinstate the use of the Association's common elements, or grant any request for a disability accommodation, however reasonable. Regarding the Board's decision to impose the suspension on Petitioners, Mrs. Wermuth maintained that as a Board member, she must participate in the Board's actions to enforce the Association Rules. Mrs. Wermuth asserted that the Board does so in a consistent, fair, and uniform manner to all Parkway Villas residents. Regarding Petitioners' specific allegations, Mrs. Wermuth denied that she had any knowledge that either Petitioner suffered from a disability. She further denied any knowledge of a request from Mrs. Hathaway to use the pool for the express purpose of treating her shoulder pain. On the contrary, 9 In granting the Wermuths’ motion to dismiss, the judge noted that Mrs. Hathaway’s "claim surrounds a sequence of events that have occurred between approximately December 2017 to April 2018, wherein [Mrs. Hathaway] believes the Defendants have harassed, discriminated against, and intimidated her by approaching her, yelling at her, 'stalking' her, taking photos of her, and participating in the HOA board’s decisions denying her request to replace her patio, fining her for failing to bring her patio up to agreed-upon specifications, and suspending her common area privileges. [Mrs. Hathaway] claims that these events have caused her medical issues." Mrs. Wermuth expressed that, throughout the time period covered by Petitioners' complaint, she has seen Mrs. Hathaway physically active around the community. Mrs. Wermuth has observed Mrs. Hathaway walking, exercising in the pool, hosting a Latin dancing party, and taking part in exercise classes in the clubhouse. Mrs. Wermuth vigorously refuted the allegation that any of the Board's enforcement actions against Petitioners were administered unfairly. On the contrary, Mrs. Wermuth asserted that the fines and suspension were necessary to enforce the Association Rules, as well as to ensure that Petitioners adhere to them. Mrs. Wermuth explained that, in her experience, suspending a resident's access to the common areas is the most effective method to bring about compliance with Association Rules. Mrs. Wermuth further declared that none of the Board's actions regarding Petitioners were based on her personal feelings. Instead, Mrs. Wermuth recused herself from most of the Board's decisions addressing Petitioners' issues and consistently voted to "abstain." For his part, Mr. Wermuth testified that he does not hold, nor has he ever held, any decision-making authority with the Association or its Board. He has never served as a member of the Board or worked as an Association agent, committee member, or employee. Mr. Wermuth expressed that he has never made, nor has he ever had the power to make, housing determinations affecting Petitioners. Neither has he ever had any responsibility to determine Petitioners' access to community facilities. Petitioners did not present any evidence establishing that Mr. Wermuth participated in any vote of the Board to impose the fines or suspension on Petitioners. Further, as with his wife, Mr. Wermuth attested that he had no knowledge of any disabilities claimed by Petitioners prior to learning of their Petition filed with the Commission. On the contrary, he too has observed Mrs. Hathaway walking around the community, exercising in the pool, and using the fitness equipment in the Association's clubhouse. Mrs. Hathaway admitted that she had not spoken to Mr. Wermuth about her health or disability. Neither did she present any evidence that she requested an accommodation from him, or that he played any role in the Board's suspension of her use of the community pool. As to Mrs. Hathaway's complaints of other transgressions: Bicycle Incident: Mr. Wermuth did not recall ever riding his bicycle too close to Mrs. Hathaway while she was walking on a sidewalk. He specifically denied that he ever intentionally rode by her in an attempt to threaten or intimidate her. Mr. Wermuth offered that if his bicycle ever did pass too close to Mrs. Hathaway, it would have been unintentional and had nothing to do with her disability. Pictures of Petitioners' Unit: Regarding Mrs. Hathaway's complaint that he once photographed her villa, Mr. Wermuth testified that he frequently takes pictures of the Parkway Villas community as part of an ongoing scrapbook of his homes and neighborhoods. Mr. Wermuth stated that during the incident in question, he was simply taking pictures of the community's Christmas lights. He denied that he ever intended to agitate Petitioners. Similarly, no evidence shows that Mr. Wermuth photographed Petitioners' condominium based on Mrs. Hathaway's disability or some discriminatory animus. Mrs. Hathaway admitted that Christmas lights were strung up next to her unit at the time. Based on the competent substantial evidence in the record, the preponderance of the evidence does not establish that the Wermuths discriminated against Petitioners (Mrs. Hathaway) based on a handicap, or failed to provide a reasonable accommodation for the same. Accordingly, Petitioners failed to meet their burden of proving that the Wermuths committed unlawful discrimination in violation of the FHA.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Florida Commission on Human Relations issue a final order determining that Respondents, Gerlinde Wermuth and Horst Wermuth, did not commit a discriminatory housing practice against Petitioners and dismissing their Petition for Relief. 14 See Gooden v. Internal Rev. Serv., 679 Fed. Appx. 958, 966 (11th Cir. 2017)("[G]eneral allegations, based on mere speculation and hunches, in no way establish that any alleged [discriminatory activity] was race-, gender-, or disability based."). 15 Similarly, Mrs. Hathaway’s complaints about Mr. Wermuth riding his bicycle too close to her on the sidewalk or taking pictures of the side of her villa, at most, reflect a misunderstanding between neighbors, not a discriminatory housing practice. DONE AND ENTERED this 5th day of October, 2020, in Tallahassee, Leon County, Florida. S J. BRUCE CULPEPPER 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 5th day of October, 2020. COPIES FURNISHED: Tammy S. Barton, Agency Clerk Florida Commission on Human Relations 4075 Esplanade Way, Room 110 Tallahassee, Florida 32399-7020 (eServed) Miryam Hathaway Benjamin Hathaway Post Office Box 15103 Sarasota, Florida 34277 Kimberly Valashinas, Esquire McGuinness & Cicero 3000 Bayport Drive, Suite 560 Tampa, Florida 33607 (eServed) Cheyanne Costilla, General Counsel Florida Commission on Human Relations 4075 Esplanade Way, Room 110 Tallahassee, Florida 32399 (eServed)
The Issue The issue is whether Petitioner has a disability (handicap), and, if so, was denied a reasonable accommodation for his disability by Respondents, in violation of the Florida Fair Housing Act (FFHA), as amended.
Findings Of Fact The record in this discrimination case is extremely brief and consists only of a few comments by Mr. Homer, cross- examination by Respondents' counsel, and Respondents' exhibits. Petitioner resides at Golfside Villas, a condominium complex located in Winter Park, Florida. At hearing, Petitioner asserted that he suffers from a disability, narcolepsy, but he offered no competent evidence to support this claim. Thus, he does not fall within the class of persons protected against discrimination under the FFHA. Golfside is the condominium association comprised of unit owners that is responsible for the operation of the common elements of the property. Hara is the corporate entity that administers the association, while Mr. Michaud, a Hara employee, is the community manager. In September 2016, Mr. Homer became involved in a dispute with Golfside over late fees being charged to his association account and issues concerning ongoing repairs for water damage to his unit that were caused by flooding several years earlier. Because some of his telephone calls were not answered by "Lorie" (presumably a member of management staff), on September 23, 2016, Mr. Homer sent an email to Mr. Michaud, the community manager, expressing his displeasure with how his complaints were being handled. He also pointed out that "I have a disability." The email did not identify the nature of the disability, and it did not identify or request an accommodation for his alleged disability. There is no evidence that Respondents knew or should have known that Mr. Homer had a disability or the nature of the disability. Also, there is no evidence that narcolepsy is a physical impairment "which substantially limits one or more major life activities" so as to fall within the definition of a handicap under the FFHA. See § 760.22(7)(a), Fla. Stat. Here, Petitioner only contends that at times it causes him to speak loudly or yell at other persons. As a follow-up to his email, on September 26, 2016, Mr. Homer spoke by telephone with Mr. Michaud and reminded him to look into the complaints identified in his email. If a request for an accommodation ("work with me") was ever made, it must have occurred at that time, but no proof to support this allegation was presented. Mr. Homer acknowledged that he was told by Mr. Michaud that in the future, he must communicate by email with staff and board members rather than personally confronting them in a loud and argumentative manner. On September 26, 2016, Mr. Michaud sent a follow-up email to Mr. Homer informing him that he must "work with my staff, without getting loud or upset, no matter how frustrated you may be at the time." The email also directed staff to answer Mr. Homer's questions regarding repairs for water damage to his unit, to "look into some late charges on his account," and to "work with Mr. Homer to help him get both his unit and his account in order." On November 15, 2016, Mr. Homer filed his Complaint with the FCHR alleging that on September 26, 2016, Golfside, Hara, and Mr. Michaud had violated the FFHA by "collectively" denying his reasonable accommodation request. Later, a Petition for Relief was filed, which alleges that Gulfside and Hara (but not Mr. Michaud) committed the alleged housing violation. However, the findings and conclusions in this Recommended Order apply to all Respondents.
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 the Petition for Relief, with prejudice. DONE AND ENTERED this 14th day of December, 2017, in Tallahassee, Leon County, Florida. S D. R. ALEXANDER 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 14th day of December, 2017. COPIES FURNISHED: Tammy S. Barton, Agency Clerk Florida Commission on Human Relations Room 110 4075 Esplanade Way Tallahassee, Florida 32399-7020 (eServed) John Homer Unit 609 1000 South Semoran Boulevard Winter Park, Florida 32792-5503 Candace W. Padgett, Esquire Vernis & Bowling of North Florida, P.A. 4309 Salisbury Road Jacksonville, Florida 32216-6123 (eServed) Cheyanne M. Costilla, General Counsel Florida Commission on Human Relations 4075 Esplanade Way, Suite 110 Tallahassee, Florida 32399-7020 (eServed)
