The Issue The issue in this case is whether Respondents, The Fourth Bayshore Condominium Association, Inc. (“Bayshore”), Karl Stemmler (“Stemmler”), and/or Richard Grove (“Grove”), discriminated against Petitioner, Robert Pagano (“Pagano"), on the basis of his physical handicap in violation of the Florida Fair Housing Act.
Findings Of Fact Pagano is a Caucasian male who is handicapped by virtue of medical complications which resulted in the amputation of his left leg in March 2008. He has been confined to a wheelchair since that time. At all times relevant hereto, Pagano was renting a condominium unit at Bayshore. In January 2012, Pagano saw another unit at Bayshore advertised for rent. He called Grove, listed as the owner of the unit, and inquired about renting the property. Grove told Pagano that a key to the unit would be left under a mat between the screen door and front door on January 19, 2012. On that day, Pagano went to inspect the unit, accompanied by a friend, Philip Saglimebene. Upon arrival at the unit, Pagano and his friend began looking for the hidden key, but could not find it. They apparently made some noise while searching for the key, because they were confronted by Stemmler. According to Pagano, Stemmler began asking them in unfriendly terms who they were and what they were doing at the unit. The friend then told Stemmler they were looking for a key so they could go in and inspect the unit as Pagano was interested in renting it from Grove. Stemmler, supposedly identifying himself as a “building representative,” said there was no key to be found. He also reputedly told Pagano and his friend that they would not need a key anyway, “because you are not moving in.” When the friend explained that the unit was for Pagano, not him, Stemmler allegedly said that Pagano was not moving in either because he was an “undesirable.” When asked to explain that comment, Stemmler purportedly said, “He just is; that’s all you need to know.” (None of Stemmler’s comments were verified by competent evidence and, without verification or support, cannot be relied upon to make a finding of fact in this case.) Pagano believes Stemmler’s purported comments were based on the fact that he (Pagano) has long hair and a beard and does not fit into the conventional norm at Bayshore. He also believes that his handicap served as a basis for Stemmler’s alleged comments. There was no credible evidence presented at final hearing to substantiate Pagano’s suppositions. Grove had put his condominium unit up for rent at the beginning of the year. When Pagano called to inquire about it, Grove – who lives out-of-state – notified a friend to leave a key under the mat, as described above. That friend simply forgot to leave a key at the unit on the designated date. Grove knew nothing about Pagano’s interaction with Stemmler. Grove had not spoken to Stemmler prior to the day he and Pagano had their interaction. Stemmler had no authority to speak for Grove or to make a decision concerning to whom Grove would rent his condominium unit. Subsequent to the day Pagano visited the unit, Grove took the unit off the rental market because his wife decided to use the unit to house family and friends rather than renting it out to someone else. It took several weeks for the rental advertisement for the unit to be removed from a locked bulletin board at Bayshore. Grove said that if the unit ever went back on the market, he would call Pagano first about renting it, i.e., Grove had no opposition whatsoever to Pagano’s being a tenant. Van Buren, president of Bayshore, explained that the condominium association utilizes the support of voluntary building representatives to assist with security and minor maintenance at Bayshore. The volunteers, who are generally seasonal residents at Bayshore, do not hold keys to individual units and have no authority to grant or deny an applicant’s request to rent a unit. Stemmler is one of many building representatives who resides part-time at Bayshore. Pagano does not know of any non-handicapped individual who was allowed to rent a unit at Bayshore to the exclusion of himself or any other handicapped person. In fact, Pagano currently resides in another unit at Bayshore; he is already a resident there.
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 the Petition for Relief filed by Robert Pagano in its entirety. DONE AND ENTERED this 5th day of September, 2012, in Tallahassee, Leon County, Florida. S R. BRUCE MCKIBBEN 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 September, 2012.
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 Respondent, Camino Real Village, is the joint venture and developer of a sixty-four unit condominium project known as Camino Real Village V (project) in Boca Raton, Florida. The project consists of two buildings (5751 and 5801) with thirty-two units each. Respondent, B&S Ventures, Inc. (B&S), a Florida corporation, is a partner in the joint venture. The other partner, Middlesex Development Corporation, a California corporation, was not named a respondent in this cause. Although the development consists of at least four separate condominium projects known as Camino Real Villages II, III, IV and V, only Camino Real Village V is in issue in this proceeding. Respondents, as the developer and partner of the joint venture, are subject to the regulatory requirements of petitioner, Department of Business Regulation, Division of Florida Land Sales, Condominiums and Mobile Homes (Division). They are charged with violating various provisions of Chapter 718, Florida Statutes (1985), as set forth in greater detail in the Division's notice to show cause issued on July 17, 1986. The Camino Real project is considered to be a multi-condominium project. This means the development includes more than one condominium project but that all are operated by a common association. The parties agree that the project is not a phase condominium project. Under Division rules and applicable statutes, the developer of a multi-condominium project is required to file with the Division a set of "creating" documents at the inception of the project. The creating documents include, among other things, a prospectus, declaration of condominium, plans and survey, legal description, percentages of common ownership, surplus and expenses, articles of incorporation, by- laws, site plan, restrictions (if any), and the estimated operating budget for the first year. Such documents must be submitted for each condominium within the project. However, where the documents are identical to those submitted for another condominium, the developer may file a "certificate of identical documents" wherein the developer certifies that all disclosure items are identical with items for another condominium within the project which has been previously filed with the Division. After the creating documents are filed, the developer must thereafter file additional documents as new condominiums are constructed and completed. This is generally accomplished by filing an amendment to the original declaration for condominium. The amendment includes a surveyor's certificate attesting that the construction on the project has been completed. The purpose of the later filing is to inform the Division that construction on the new condominium has been substantially completed. On an undisclosed date in 1979, respondents filed their creating documents for certain condominiums in Camino Real Village. On November 19, 1980, they submitted their filing for the creation of Camino Real Village V. These documents were accepted as to "form" on December 11, 1980. They included a certificate of identical document signed by B&S' president which certified certain documents were identical to those previously submitted for Camino Real Village IV, a legal description of the property on which the condominium sits, sketches of the types of units to be built, a typical floor plan for Buildings 5751 and 5801, an estimated operating budget based on sixty-four units and common ownership percentages for each unit in the two buildings. Under Division requirements and state law, the documents should have contained a statement reflecting that the condominium was not substantially completed. 3/ However, they did not, and this omission was not detected by the Division when it reviewed and approved the initial filing. On October 23, 1984 respondents filed the declaration of condominium for Camino Real Village V in the local public records. The documents have been received in evidence as petitioner's composite exhibit 1. They reflected that the percentage of ownership in the common elements for both buildings equaled one hundred percent. Section 3(b) of the declaration provided for the creation of a condominium consisting of two buildings (5751 and 5801) containing thirty- two units each. The documents included a surveyor's certification that Building 5751 was substantially completed. However, as to Building 5801, which was not completed at that time, no statement reflecting its state of completion was filed. It is also noted that the declaration was not filed with the Division as required by law, and the Division did not learn of its existence until sometime later. Since the filing of the declaration, respondents have operated Camino Real Village V as a condominium. On October 23, 1984, respondents executed the closing documents on the sale of the first unit (Unit No. 106 in Building 5751) in Camino Real Village V. The warranty deed was later recorded in the local public records on November 1, 1984, and it is found this is the appropriate date on which the sale of the first unit occurred. This is consistent with the standard practice of parties executing documents prior to closing but not considering a unit sold until the money is actually transferred from the buyer to the seller. This date is significant since it may bear directly upon the date when the developer must begin paying common expenses on developer-owned units. On or about October 24, 1985 a "First Amendment to the Declaration of Camino Real Village V" was recorded by respondents in the local public records. It amended the declaration previously executed on October 23, 1984 and included, among other things, a surveyor's certificate reflecting that Building 5801 had been substantially completed. It also attempted to submit Building 5801 to condominium ownership. Although the amendment and attached documents should have been filed with the Division, respondents neglected to do so. The Division first learned that the documents existed during the course of this proceeding. According to paragraph 15 of the declaration, common expenses can only be assessed by the Association against "each condominium parcel." A condominium parcel is defined in paragraph 4(c) as "the condominium unit, together with an undivided share in the common elements appurtenant thereto." A condominium unit in turn is defined in paragraph 4(a) as "the unit being a unit of space, designated 'condominium unit' on the sketch of survey and plans attached hereto and marked as Exhibit B." The latter exhibit, which is attached to the declaration, contains the plans and survey of the project, the surveyor's certification of substantial completion, and a graphic description of each finished unit within the project. Therefore, the above definitions evidenced an intent that common expenses could be assessed only against completed units. Pursuant to Subsections 718.116(1) and (8), Florida Statutes (1985), a developer is responsible for paying his pro- rata share of common expenses on all developer-owned units. The same law permits the declaration to provide that the developer is relieved of this per-unit obligation until the expiration of a ninety-day period after the first unit is sold. In this case, the declaration had such a provision in paragraph 14. It provided in part as follows: . . . for such time as the Developer continues to be a Unit Owner, but not exceeding ninety (90) days subsequent to the closing of the first condominium unit, the Developer shall only be required to contribute such sums to the common expenses of the Condominium, in addition to the total monthly common expense assessments paid by all other Unit Owners, as may be required for the Condominium Association to maintain the condominium as provided in said Declaration of Exhibits . . . Developer hereby reserves the option to guarantee the level of assessments to unit owners for a specified time interval and thereby limit its obligations to contribute to condominium maintenance in accordance with the provisions of Chapter 718.116(8), Florida Statutes. The parties agree that the monthly assessments for common expenses during the period relevant to this proceeding were as follows: Type A Units $135.20 Type B Units 138.64 Type C Units 163.96 The declaration also provides that ten percent interest must be added to any liability owed. The record reflects, and respondents concede, that such assessments were not paid on any units in Building 5801 until the following dates: Units 100-107 ----------- August 28, 1985 Units 200-207 ----------- September 5, 1985 Units 300-307 ----------- September 10, 1985 Units 400-407 ----------- September 18, 1985 The above dates are exactly ninety days after certificates of occupancy were issued for each of the four floors of Building 5801. Even though assessments were not paid by respondents until those dates, beginning on January 31, 1985 and continuing until such assessments were paid, other unit owners were charged and paid assessments based upon a budget for sixty-four units. As it turned out, the difference between the budget and annual common expenses actually incurred by the project was approximately $32,100, or the amount the Division contends respondents owe. In 1982-84, petitioner conducted an investigation of Camino Real Villages II, III and IV based upon complaints received from a certain unit owner. The complaint concerned allegations that access to association books was denied, that the declaration contained a developer guarantee, that maintenance expenses were not properly paid, and that improper assessments were levied on unit owners. The file was closed in November, 1984 after the Division's enforcement supervisor concluded that the allegations were either "unfounded" or could be resolved through voluntary compliance by the Association. As to the fourth issue, which was an allegation that the developer- controlled Association had improperly assessed unit owners from November, 1980 to January, 1982, the investigative report noted that the developer was "allocating them based on the completed units versus the total units filed for the entire community." The enforcement supervisor concluded that this was "the method chosen by the Association," and "absent specifics in the documents, we lack jurisdiction . . . to question this practice." There is no mention of the term "certificate of occupancy" in the report. However, uncontradicted testimony by respondents reflects that its use of the date of issuance of the certificate of occupancy to determine when assessments became due was the focus of the investigation, and that respondents relied upon those statements in continuing their practice of not paying assessments until ninety days after a certificate of occupancy was issued on a unit. They did so, at least in part, on the theory that the Association did not assume responsibility for expenses until that time. Respondents point out that the filing documents submitted to the Division in November, 1980 were defective in that the surveyor's certificate was incorrect. They go on to suggest that, because of this deficiency, the filing might be invalidated by a court and therefore the statutory assessment provision would not apply. However, no person has ever challenged the validity of the filing, and the general law contains a curative provision for any initial filing errors. They also assert that, if any liability is in fact owed, they are entitled to set-offs for expenses incurred by the developer while the project was being constructed. These include payments for real estate taxes, utility bills, Boca Del Mar Improvement Association, Inc. fees, trash removal, insurance, security service, assessments and maintenance and are itemized in attachments to respondents' exhibit 1. However, there is no rule or statutory provision which authorizes this type of set-off to be applied against common expenses. Therefore, the expenses itemized in respondents' exhibit 1 are deemed to be irrelevant.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that the respondents be found guilty of violating Section 718.116, Florida Statutes (1985), as charged in the notice to show cause, and that they be required to pay the Association for past due common expenses on developer-owned units in Building 5801 as set forth in paragraph 8 of the conclusions of law plus ten percent interest to and including the date of payment. DONE AND ORDERED this 30th day of March, 1988, in Tallahassee, Leon County, Florida. DONALD R. ALEXANDER Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 30th day of March, 1988.
Findings Of Fact Respondent is a licensed real estate salesman and held such license at all times material to this proceeding. She was a salesman with Miller, Cowherd and Kerver, Inc. Realtors (MCK) at the time of the transactions relevant to this proceeding. Complainant Loretta Fram listed her home in Ft. Lauderdale with Respondent and utilized her services as realtor in the purchase of a condominium apartment in Plantation. Another member of the MCK firm had previously prepared a contract for Fram to purchase the same condominium unit, but it was not executed. The first condominium contract included a contingency clause that required return of Fram's $5,000 deposit if she did not sell her house prior to the condominium closing. This clause was not included in the contract prepared by Respondent even though Fram told her she could not make the condominium down payment due at closing without the proceeds from the sale of her house. Respondent assured Fram the house would be sold in time or that she would work something out. Just prior to the scheduled condominium closing, Respondent arranged a 90-day "swing loan" for $15,000, since funds from the house sale were not forthcoming. Without this loan, Fram would not have been able to close on the condominium and may have had to forfeit her deposit. The swing loan interest and fees amounted to $2,030. Fram paid this amount in January, 1980, on Respondent's assurance that she would be reimbursed. Respondent reduced such assurance to writing in a document dated January 8, 1980 (Petitioner's Exhibit 6). However, after three years, Fram has not been reimbursed. At the time Fram attempted to move into her condominium unit, she was refused admittance by the condominium association. Respondent has reasonably relied on an acceptance the association issued in conjunction with the initial contract. The association thereafter held a meeting and ratified its earlier decision to accept Fram.
Recommendation From the foregoing, it is RECOMMENDED that Petitioner enter a Final Order suspending Respondent's license as a real estate salesman for a period of three years. DONE and ENTERED this 12th 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 12th day of July, 1983. COPIES FURNISHED: Joel S. Fass, Esquire 626 Northeast 124th Street North Miami, Florida 33161 Edward Oddo, Esquire 2660 Northwest 32nd Street Boca Raton, Florida 33432 Harold Huff, Executive Director Division of Real Estate Department of Professional Regulation Post Office Box 1900 Orlando, Florida 32802 William M. Furlow, Esquire Department of Professional Regulation Post Office Box 1900 Orlando, Florida 32802 Fred M. Roche, Secretary Department of Professional Regulation 130 North Monroe 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
The Issue Administrative determination of the validity of Rule 7D-17.01(3), Florida Administrative code, pursuant to Section 120.56, Florida Statutes. On January 15, 1981, Petitioner filed its petition with this division seeking a determination of the invalidity of Rule 7D-17.01(3), Florida Administrative Code. Petitioner also filed a motion for consolidation of this case with three other cases involving the same parties, DOAH Cases Nos 81-013, 81-014, 81-015. Those cases deal with Notices to Show Cause issued against Petitioner by Respondent for alleged violation of Chapter 718, Florida Statutes, and Rule 7D-17.01(3), F.A.C. The motion as to consolidation of Cases Nos. 81- 013, 014, and 015 was granted, but the motion was denied as to consolidation of Case No. 81-078RX due to the 30 day time limitation involved in the hearing of cases filed under Section 120.56, F.S. The parties stipulated that the factual allegations contained in paragraphs 1 through 4 of the Petition are true and correct, and agreed that only legal issues remained for determination. The stipulated facts are as follows:
Findings Of Fact This is a proceeding pursuant to section 120.56, Florida Statutes, for the determination of the invalidity of a rule being enforced by the Division of Land Sales and Condominium. The Petitioner is a developer of condominium in the State of Florida subject to the provisions of chapter 718 Florida Statutes. Petitioner has been served with a Notice to Show Cause in a separate docket for closing on the sale of several condominiumminium units in violation of Rule 7D-17.01(3), Florida Administrative Code, and is thereby substantially affected by the workings and enforcement of such rule. Respondent is an agency of the State of Florida empowered by the provisions of Section 718.501, Florida Statutes, to enforce and insure compliance with the provisions of Chapter 718, Florida Statutes, and the rules promulgated thereunder. Petitioner filed a proposed prospectus with the Respondent pertaining to the sale of condominiumminium units located within the Cypress Tree Condominiumminium, Nos. 6 and 7, located at 4141 Northwest 21st Street, Lauderhill, Florida. Respondent thereafter notified Petitioner of several alleged deficiencies in its filing and issued Notices to Show Cause to Petitioner, relative to Cypress Tree Condominiumminium building Nos. 6 and 7, which allege that Petitioner has failed to correct certain alleged deficiencies and has closed on the sale of units in the subject condominium in violation of Rule 7D-17.01(3), Florida Administrative Code.
The Issue Whether La Vita Condominium Association, acting through its Board of Directors, refused to allow Linda C. Andzulis, a member of the association, to fill a vacancy on the board because of her gender, and thereby committed a discriminatory housing practice in violation of the Florida Fair Housing Act?
Findings Of Fact The Parties Linda C. Andzulis is a resident of the La Vita Condominium. As the owner of the condominium unit in which she resides with her husband, Ms. Andzulis is also a member of the La Vita Condominium Association. She has never served on the Association’s Board of Directors, but she has a keen interest in the business of the association. She frequently attends board meetings. Ms. Joan Di Gregorio, past President of the Board sums up Ms. Andzulis’ participation at board meetings: Ms. Andzulis is a “strong individual . . . who has her agenda and she will bring it forward.” Described by some who live at the condominium as an “aggressive woman of integrity,” energetic, very intelligent, even “brilliant,” Ms. Andzulis' views and methods of expressing her views finds opposition among other association members. The La Vita Condominium Association is a Florida not- for-profit corporation. Organized pursuant to Chapter 617, Florida Statutes, the Association operates and administers the condominium officially known as “La Vita, a Condominium.” The condominium is located in Altamonte Springs, Florida. The Board and its HistoryComposition There are five seats on the Association’s board. In January of 1995, (the time at which the main act of discrimination on the basis of gender is claimed by Ms. Andzulis to have been committed by the board,) four of the five seats were filled, all by men: H. C. Roddenberry, then the president, Robert Shorthouse, Tom Anderson and a fourth man who had filled a vacancy on the board the month before but who did not attend the January, 1995 board meeting. At least six women have served on the board over the years, four prior to January, 1995, and two since January of 1995: Rosemary Anderson, Sue Bridwell, Joan di Gregorio, Brenda Herndon, Shirley Turner, and Patricia Schmidt. Several women have served as president of the board, including the board’s current president, Rosemary Anderson. These women have been encouraged to serve on the board by both Mr. Roddenberry and Mr. Shorthouse. In some cases they were not only nominated as candidates for the board by Mr. Roddenberry or Mr. Shorthouse, but were actually recruited to run for the board by either Mr. Roddenberry or Mr. Shorthouse, or both. Of these six female board members, Ms. Schmidt found it necessary to end her service on the board at one point because she was being bothered by a member of the association. There is nothing to indicate that the harassment was on the basis of gender. Furthermore, the harassment was from an individual and not in any way the result of any action by the association or the board, itself. Ms. Schmidt’s experience is all too typical for condominium association board members in this state, particularly when the association is plagued with the intra-association conflict, internal dissension, and turmoil that afflicts La Vita. None of the six women who have served as members of the board, including Ms. Schmidt, recount any trouble with any board member on account of their gender. In fact, all state that they have never been treated by male members of the board in any way other than with courtesy. They have been comfortable serving on the board with the board’s male members and relate that they have been treated “just the same as any other board member.” In short, they report that during their tenures on the board they have been accorded the respect due each and every member willing to be subjected to the rigor of running for the board and, if elected, to assume the demanding, often thankless, task of serving on the association’s board of directors. b. Issues Confronting the Board As is typical of condominium associations in Florida, particularly those with retired residents on fixed incomes, the Board of Directors of the La Condominium Association has faced many tough issues over its lifetime. One of the most difficult issues for the board has been the roofing system at the condominium. Not long after Hurricane Andrew struck South Florida, Central Florida was hit with a number of serious storms. During this time, La Vita Condominium suffered numerous roof leaks. It was difficult to obtain bids from licensed roofing contractors, let alone find a qualified roofing contractor to actually provide necessary repairs and roof replacements, because so many local roofing contractors were in South Florida in response to the tremendous demand for roofing services in the aftermath of Andrew. Roofers who remained in Central Florida were tied up with local business created by the demand for roofing services in the wake of the serious storms of 1992-93. The board of directors did the best it could, including frequently seeking the consult of legal counsel, with a difficult roofing situation. Ms. Andzulis, however, among others, felt the board had not handled the situation properly. She was not shy about bringing her opinion on the matter to the attention of the board at its regularly scheduled meetings. Another difficult problem with which the board has been and continues to be beset is the association’s relationship to the developer of La Vita and the developer’s refusal to pay assessments for “phantom” units, unbuilt units in phases of the condominium not yet constructed. The Board has struggled with the issue for many years. Again, it has sought the advice of counsel and gone to the length of bringing suit against the developer. None of the attempts to resolve the developer’s refusal to pay assessments have borne fruit. As one board member stated, the developer has more attorneys, threatens or commences bankruptcy proceedings and always seems to be “one step ahead” of the board. Just as Ms. Andzulis has not been satisfied with the board’s attempts to address the association’s roofing problems, she has not been satisfied with the association’s attempts to deal effectively with the developer. Again, she has not been shy to make her feelings known at the board meetings. While there are certain members of the Association who support Ms. Andzulis’ views on these matters, her participation at board meetings has reached the point where a number of observers feel that she has monopolized time at the board meetings to the detriment of the board being able to accomplish the business of the association. Achieving Board Membership There are three ways to become a member of a board of directors of a condominium association in Florida. The first and most obvious is by election. The latter two are without election: (a) when time for nomination for candidates in an election closes and the number of nominated candidates do not exceed the number of seats up for election; and, (b) by filling a vacancy on the board that occurs before the expiration of the vacant seat’s term. There is a critical difference between the two ways of taking a seat without election. As explained by Mr. Peter McGrath, who has served as legal counsel to the Board in the past, if there are only as many candidates for election to the board as there are seats, by operation of law, those candidates automatically become members of the board. In other words, the election is dispensed with as unnecessary. The reason for dispensing with an election and seating the candidates automatically is the difficulty many condominium associations have experienced, particularly the longer they have existed and the more intractable the problems they have faced, in finding association members willing to serve on the association’s board. In such a case, any qualified and duly-nominated party willing to serve takes a seat on the board. No one has any power to refuse to seat the candidate. In contrast, Mr. McGrath, as an expert in condominium law, explained that when there is a vacancy on the board mid- term, a person who offers his or her services does not automatically assume the position. The board may legitimately refuse to seat a qualified person who seeks the seat. The reason for the difference in approach when an entirely new board is seated as opposed to when a vacancy mid- term occurs is timing. A board that has been in existence when a vacancy occurs may have embarked on a certain course of action. Or an individual member of the board may have hopes of convincing other members that a certain direction should be pursued. Members of the board are allowed to consider whether a volunteer for board service will support that course or direction. In undertaking consideration of the volunteer’s offer it is legitimate to examine the volunteer’s statements and opinions as to the board’s direction. It is completely legitimate for a board member to vote against a volunteer on the basis that he or she would be an impediment to the board’s adopted course or to the direction the director chooses to pursue and hopes the board will pursue. Ms. Andzulis Expresses Interest in Membership on the Board On July 12, 1994, Ms. Andzulis had a conversation with Mr. Shorthouse, then a member of the board of directors. Ms. Andzulis told Mr. Shorthouse that she hoped to serve on the board since the board had asked for volunteers the previous June 7, following the occurrence of one or more vacancies. Ms. Andzulis left the discussion thinking that Mr. Shorthouse would place her name in nomination at the next board meeting on August 9, 1994. Neither Mr. Shorthouse nor anyone else nominated Ms. Andzulis to fill a vacancy on the board at the August 9, 1994 meeting. Ms. Andzulis did not step up at the meeting to volunteer. The next morning, August 10, 1994, Ms. Andzulis confronted Mr. Shorthouse. At hearing, Ms. Andzulis attempted to prove that Mr. Shorthouse said to her on the morning of August 10, 1994, that the board did not want women on the board. Other than the association’s presentation of Mr. Shorthouse’s testimony, neither party presented any witnesses to this conversation. Ms. Andzulis attempted to prove her version of the conversation through witnesses to a second conversation she had with Mr. Shorthouse following a board meeting months later. She asked these witnesses whether she had stated to Mr. Shorthouse that he had told her during the August 10, 1994 meeting that the board did not want women on the board and Mr. Shorthouse, in the presence of these witnesses, did not deny the accusation. Each of the three witnesses answered in the affirmative. In his testimony, however, Mr. Shorthouse, adamantly denied that he ever made any such statement. Ms. Andzulis, the only person other than Mr. Shorthouse who heard the August 10, 1994 conversation, did not testify at the hearing. This second conversation in the presence of witnesses took place following a board meeting on January 10, 1997. At this meeting, Ms. Andzulis again had hopes that she would be accepted to fill a vacant seat on the board. Prior to the January 10, 1997 board meeting, Ms. Andzulis asked Mr. Roddenberry, then president of the board, if he would meet with her. He agreed. Their meeting took place on January 5, 1996. They discussed Ms. Andzulis’ interest in filling a vacancy on the board. During the discussion Mr. Roddenberry pointed out the many difficulties of serving on the board. He asked Ms. Andzulis, in light of those difficulties, if she was sure she wanted to be on the board. Mr. Roddenberry left the meeting with the expectation that if Ms. Andzulis continued to be interested in being on the board, she would raise her hand during the meeting to indicate her interest. Mr. Roddenberry was hoping against hope that Ms. Andzulis would not volunteer at the meeting. He could not support her candidacy and he did not want her to know that he would vote against her. He did not want her to know because he feared repercussions both to himself and any other board member, repercussions that he believed would be brought by Ms. Andzulis. Ultimately, Mr. Roddenberry was concerned about what might happen to the association and the business of the condominium should Ms. Andzulis’ offer be turned down by the board. Normally at La Vita, when an association member offers to fill a vacancy on the board, the wish is made known at the opening of the meeting and a vote is immediately taken so that if the volunteer is approved by vote of the board then the new director will be able to participate in the business conducted at the meeting. At the January 10, 1995, board meeting this procedure was not followed. It was not followed because Ms. Andzulis did not make her wish to be on the board known at the opening of the meeting and because Mr. Roddenberry was not then certain whether Ms. Andzulis wanted to fill the vacancy or not. As the meeting came to a close, however, Ms. Andzulis raised her hand. For the first time in the meeting, Mr. Roddenberry realized Ms. Andzulis had made up her mind; she wanted to fill the vacancy. Mr. Roddenberry, as president of the board, called for a secret ballot on whether the Board should seat Ms. Andzulis. Unbeknown to Mr. Roddenberry at the time, and apparently to everyone else present (including Ms. Andzulis since she did not make an issue of it at the meeting,) secret votes by a condominium association are in violation of the Condominium Act. Mr. Roddenberry called for the secret ballot, not because he had any intention of violating the condominium law, but because Mr. Roddenberry, for the reasons stated earlier, did not want Ms. Andzulis to know how he would vote. As it turned out, all three board members present voted against seating Ms. Andzulis on the board. The secret nature of the ballot was short-lived. Soon after the result of the vote was announced, it was also announced that all three members of the board present had voted against seating Ms. Andzulis. The March 6, 1996 Emergency Meeting On March 6, 1996, a duly-noticed emergency meeting of the board was convened. Mr. Roddenberry read a statement to all assembled. The statement reviewed Mr. Roddenberry’s tenure as President of the association and his accomplishments. After relating that he had enjoyed the challenges confronting the association and did not regret the time spent participating in the business of the condominium, the statement concluded as follows: Since the January board meeting, the association has had to deal with a homeowner’s onslaught of insurance claims, a complaint filed with the State of Florida, a complaint filed with the board of directors, all of which has significantly increased the amount of time that I must devote to association business . . . The final act of this homeowner was to file a housing discrimination complaint based on sex discrimination against the three board members who voted against her being on the board. I feel that this claim is a malicious attack on my integrity. If this is what a board member must be subjected to, then I respectfully submit my resignation to the Board of Directors effective immediately and I also am withdrawing my name from nomination at the annual meeting. Petitioner’s Ex. No. 8, page 1 of 3. The homeowner to whom Mr. Roddenberry referred in this statement is Ms. Andzulis. Mr. Roddenberry’s resignation was greeted generally by the members of the association with dismay. As a person of considerable business, financial and accounting experience, he had been instrumental while serving on the board in setting up a new accounting system and had been invaluable in many ways to the association in the conduct of its business. He was well- respected and his resignation was a great loss to La Vita. In her Petition for Relief from a Discriminatory Housing Practice, which serves as the foundation of this proceeding, Ms. Andzulis refers to the March 6 emergency meeting as “retaliatory.” The meeting was not retaliatory. It was for Mr. Roddenberry to resign effective immediately, nothing more, nothing less. His resignation, as is evident from the statement read at the meeting, was because of the numerous issues he had had to deal with subsequent to the board’s vote to turn down Ms. Andzulis' offer to fill a vacancy.
Recommendation Based on the foregoing, it is hereby, RECOMMENDED: That the Florida Commission on Human Relations enter a Final Order concluding that the La Vita Condominium Association, through the action of its board or otherwise, did not commit a discriminatory housing practice by refusing to allow Linda C. Andzulis to fill a vacancy on the association’s board of directors. DONE AND ENTERED this 1st day of April, 1997, in Tallahassee, Florida. DAVID M. MALONEY Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (904) 488-9675 SUNCOM 278-9675 Fax Filing (904) 921-6847 Filed with the Clerk of the Division of Administrative Hearings this 1st day of April, 1997. COPIES FURNISHED: Linda M. Skipper, Esquire Paul L. Wean, P.A. 1305 East Robinson Street, Suite C Orlando, Florida 32801 Linda C. Anzulis, pro se 546-202 Via Fontana Drive Altamonte Springs, Florida 32714 Dana Baird, General Counsel Florida Commission on Human Relations 325 John Knox Road Building F, Suite 240 Tallahassee, Florida 32303-4149 Sharon Moultry, Clerk Florida Commission on Human Relations 325 John Knox Road Building F, Suite 240 Tallahassee, Florida 32303-4149
