Findings Of Fact Upon consideration of the oral and documentary evidence received at the final hearing, the following relevant facts are found: At approximately 9:30 A.M. on February 10, 1984, petitioner, a black female, telephoned a number listed in the newspaper to inquire about a duplex for rent. She was informed that an apartment was available and that she would need to bring $410.00 which included $200.00 for a security deposit and a monthly rental fee of $210.00. Petitioner informed the lady on the telephone that she would be there to see the apartment around 11:30 A.M. Petitioner went to the bank to get the $410.00 and then drove to the Highlands Apartments rental office. When she drove up in the driveway, a lady came running out and introduced herself as Evelyn Massey. According to the petitioner, Ms. Massey said "I told you on the phone that I had an apartment for you, but I don't have." She went on to explain that another lady had previously paid a deposit on the apartment and had not come back; but, between the time of talking to petitioner that morning and then, the lady had come back and paid the rest of the money and thus had the apartment. Ms. Massey also informed the petitioner that that unit was the only apartment available and that she had no other vacancies. After this incident, petitioner telephoned Laurie J. Turner between 12:30 and 1:00 P.M., told her what had happened and requested her to call the same telephone number petitioner had called and to inquire about an apartment. Ms. Turner, a white female, did call the number given her by petitioner, a gentleman answered the telephone, she inquired about the availability of the apartment in the newspaper and he told her, according to Ms. Turner, that it was still available. Ms. Turner then related this information to petitioner. In response to petitioner's contact with the EOO on February 10, 1984, Jeanette Fenton, the Equal Opportunity Assistant/Fair Housing Administrator, began her investigation and made several telephone calls to the Highlands Apartments on that same day. According to Ms. Fenton, "various responses, contradictory responses, were received as to the availability of apartments there." Ms. Fenton also decided to send a black female and a white female as testers to determine the type of treatment that would be received at the Highlands Apartments. On February 10, 1984, Ms. Fenton called Jeanese Wells, a black female, explained that she had a complaint of discrimination against the Highlands Apartments and requested her to go out there and inquire about an apartment. Ms. Wells telephoned the Highlands Apartments on February 11, 1984, spoke to a woman who did not identify herself and inquired if there was a unit available for rent. The woman indicated that there was and gave Ms. Wells directions to the apartments. When Ms. Wells arrived, a woman named Evelyn showed her an apartment and told her that the charges and terms would be a $350.00 deposit, a $35.00 application fee and a one-year lease. Ms. Wells was also informed that her credit references and previous residences would be checked. When Ms. Wells inquired as to whether anyone else was interested in the apartment, Evelyn replied that she had had several phone calls on it, but no firm commitments. According to Ms. Wells, Evelyn showed no reluctance to lease the apartment to her and "there was no negative interaction between the two of us." Ms. Wells did not describe the apartment she inspected. On the same day, February 11, 1984, Ms. Fenton, a white female, telephoned the number listed in the newspaper, spoke with a female named Evelyn, was informed that a unit was available and was given directions to the Highlands Apartments. Ms. Fenton drove out there and inspected a one-bedroom unit, accompanied by Evelyn. According to Ms. Fenton, Evelyn informed her that the requirements for renting the unit would be a $200.00 deposit, rental payments in the amount of $60.00 a week or $210.00 a month, and a six month's lease. No application fee would be required, but there was an application form which required information regarding employment, credit references and landlord references. Ms. Fenton was told, however, that she could move into the unit that day if she wished, that there were no other apartments that were vacant and that the one-bedroom apartment she was viewing was the one that was advertised in the newspaper. Petitioner submitted her formal housing discrimination complaint to the EOO on February 15, 1984. By letter dated March 1, 1984, the EOO informed Roy Hansen that a complaint involving the Highlands Apartments had been filed and transmitted a copy of the complaint to him. The EOO continued to investigate the matter, found probable cause that a violation of the Fair Housing Ordinance had occurred and attempted conciliation. Petitioner Shorter left Hillsborough County for six to eight months between February 15, 1984 and June of 1985. During the conciliation process, petitioner no longer wished to lease a unit at the Highlands Apartments and desired to settle her complaint for an amount of $10,000.00 in damages as compensation. Mr. Hansen was willing to settle the complaint for $200.00 to avoid the expense of attorney's fees. Petitioner rejected Mr. Hansen's counter- offer and requested a hearing by letter dated June 19, 1985. Ms. Evelyn Massey left the State of Florida shortly after the events which occurred on February 10 and 11, 1984. She did not testify in this proceeding and her whereabouts are unknown. Mr. Ron Massey left Florida around November of 1984 and his whereabouts are likewise unknown. Roy Hansen is a professor of sociology at the University of South Florida, a private consultant and a part- owner of the Highlands Apartments, which contains several complexes and includes 104 separate units. He employed a manager, Ron Massey, to care for the apartments on a day-to-day basis and to handle rentals. One of the reasons Mr. Massey was hired was because he had had prior experience in managing a predominantly black rental complex. In February of 1984, Ron Massey was married to Evelyn Massey and they lived together in one of the Highlands Apartment units which was also utilized as the rental office. While Evelyn Massey did answer the telephone in that office and did show apartments to potential tenants, only Ron Massey was employed as the manager and only he received a salary therefor. Mr. Hansen instructed the Masseys to apply equal criteria to all potential tenants. Out of 104 units, approximately 17 are rented to minorities. The normal deposit required at the Highlands Apartments was $200 or $350 if the tenant had a pet.
Recommendation Based upon the findings of fact and conclusions of law recited herein, it is RECOMMENDED that the housing discrimination complaint filed by Julia M. Shorter on February 15, 1984, be DISMISSED. Respectfully submitted and entered this 11th day of April, 1986, in Tallahassee, Florida. DIANE D. TREMOR, Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32399 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 11th day of April, 1986. COPIES FURNISHED: Julia M. Shorter 8307 Bahia Street Tampa, Florida 33619 George W. Phillips P. O. Box 270504 Tampa, Florida 33688 Amelia G. Brown Assistant County Attorney P. O. Box 1110 Tampa, Florida 33601 Robert W. Saunders, Director Equal Opportunity Office P. O. Box 1110 Tampa, Florida 33601 APPENDIX The proposed findings of fact submitted by the respondent and the intervenor have been approved and/or incorporated in this Recommended Order, except as noted below: Respondent 3. Rejected, contrary to the evidence of record. Intervenor 1. No substantial evidence that Ms. Shorter applied for a "one bedroom apartment." 8. Rejected, not supported by competent substantial evidence.
The Issue Whether, on the basis of her handicap, Respondent discriminated against Petitioner as alleged in Petitioner’s Housing Discrimination Complaint, in violation of the Florida Fair Housing Act (“FFHA”).
Findings Of Fact HABC is a PHA that administers vouchers used in Brevard County, Florida, as part of the HCV Program. Petitioner, Karenlee Krason, began receiving an HCV Program voucher ("voucher") in 2009. In 2019, she rented a two-bedroom house at 407 Ward Road Southwest, Melbourne, Florida, 32980 ("Ward Unit"). HABC granted a reasonable accommodation to Petitioner by approving a second bedroom for her oxygen equipment. On July 30, 2019, Petitioner's landlord notified her in writing that her lease would not be renewed for the Ward Unit. Ms. Alysha Connor, a Section 8 Technician at the HABC, scheduled a relocation appointment on October 9, 2019, to assess Petitioner's plan for finding new housing. HABC issued Petitioner a voucher authorizing her to find new housing within 60 days. HABC is not responsible for finding suitable housing for voucher recipients. However, HABC repeatedly attempted to assist Petitioner in finding a new place to reside. Petitioner notified HABC that she found a place to rent at Las Palmas Apartments, located at 1915 Agora Circle, Unit 101, Palm Bay, Florida 32909 (“Agora Circle Unit"). In an e-mail dated November 5, 2019, Petitioner requested that her voucher include reimbursement for expenses relating to her certified service animal. A Request for Tenancy Approval was submitted for the Agora Circle Unit for a potential move-in date of December 1, 2019. All rental units must meet minimum standards of health and safety and pass a Housing Quality Standard (“HQS”) inspection, as determined by HABC in cooperation with HUD. The Agora Circle Unit failed an inspection conducted by HABC on November 18, 2019. HABC identified the conditions/items needing to be addressed in order to pass inspection. In the meantime, HABC obtained an extension on Petitioner's Ward Unit lease with her landlord. The lease would not expire until December 31, 2019. An additional inspection of the Agora Circle Unit was performed on November 27, 2019, at which time the Agora Circle Unit passed HABC's re- inspection. However, Petitioner communicated to HABC that she no longer wanted to rent the Agora Circle Unit. Petitioner now expressed a desire to rent a unit at 409 Mercury Avenue Southeast, Unit 103, Palm Bay, Florida ("Mercury Unit"). The Mercury Unit passed HABC's inspection on December 11, 2019. However, issues arose with Petitioner refusing to submit an application for her daughter's background check. HABC had offered to pay the required application fee, but the landlord revoked Petitioner's application approval because she failed to comply with the landlord's request for the background check. By this time, Petitioner's lease extension for the Ward Unit had expired, as of December 31, 2019. However, Petitioner was still residing in the unit. On January 9, 2020, HABC attempted to obtain another extension on Petitioner's lease, but the landlord refused the request. Nonetheless Petitioner continued to live in the Ward Unit as she searched for alternative housing. On February 3, 2020, Petitioner's realtor, Bruce Reilly, contacted HABC regarding a unit located at 1642 Lizette Street Southeast, Palm Bay, Florida ("Lizette Unit"). Mr. Reilly inquired whether Petitioner could afford the unit. HABC provided Mr. Reilly its calculations on what Petitioner could qualify for. There were no further communications from Mr. Reilly. During this time, Petitioner's landlord at the Ward Unit provided her with notice to vacate the unit by February 29, 2020. Furthermore, the landlord communicated to HABC that he would no longer accept rent from HABC for the following month. Two days before her deadline to vacate the Ward Unit, Petitioner sent an email to HABC advising that she had located a unit at 3025 Thrush Drive, Unit 101, Melbourne, Florida (''Thrush Unit"). Petitioner advised HABC that the property needed to be inspected the following day. The Request for Tenancy Approval ('"RFTA") packet submitted by Petitioner for the Thrush Unit was incomplete. Although HABC was closed for business on Friday, February 28, 2020, HABC made arrangements for one of its employees to inspect the Thrush Unit that day. In addition, HABC's CEO, Michael Bean, accelerated the process to allow Petitioner to relocate to the Thrush Unit immediately so she would not become homeless. Later that day, Petitioner notified HABC that the Thrush Unit had been rented to another individual. Throughout the relocation process, Petitioner was granted numerous extensions on her voucher. At the end of each year, HABC conducts a mandatory review of the financial information provided by Section 8 voucher recipients through the Enterprise Income Verification (“EIV”) system. EIV provides a comprehensive online system for the determination and verification of various resident information and income that PHAs use to determine rental subsidies. On or about January 2020, EIV reported that Petitioner's daughter was working at Cumberland Farms. Petitioner had failed to disclose this fact. Upon contacting Petitioner to discuss this omission, Petitioner continued to assert that her daughter was not employed. HABC proceeded to investigate this matter further. Throughout its investigation, HABC retrieved employment records from Cumberland Farms. This documentation confirmed that Petitioner’s daughter indeed worked at Cumberland Farms. Moreover, Florida Power and Light billing records disclosed that Petitioner’s daughter no longer resided at the residence occupied by Petitioner. In light of the above revelations, HABC began the process of terminating Petitioner's voucher because she had violated HABC's policies and regulations. Specifically, Petitioner violated HABC’s policy by failing to disclose additional household income and by failing to disclose that her daughter was no longer living at the Ward Unit. On February 3, 2020, HABC emailed Petitioner, outlining its findings, and notifying her that HABC would be terminating her voucher effective March 31, 2020. HABC informed her she had the option to request a hearing before termination. Petitioner elected to have an informal hearing to contest her termination from the program. The informal hearing was held on February 14, 2020. Petitioner appeared by telephone. At the hearing, Petitioner was combative and refused to answer questions posed by Hearing Officer G. Phillip J. Zies. She abruptly ended the telephone call before the conclusion of the hearing. At the hearing, HABC recommended the Hearing Officer not terminate Petitioner's voucher. On the same day as the hearing, the Hearing Officer decided to make Petitioner's status "conditionally eligible" subject to her making arrangements with HABC to stay in the HCV Program within seven (7) days of the hearing. On February 19, 2020, HABC reached out to Petitioner via email providing a list of documents she needed to complete, including: A Retroactive Payment Plan; Nicole Krason’s tax returns from 2017, 2018, and 2019 tax years; Copies of updated driver's licenses from Petitioner and Nicole Krason; and An Updated Lease Agreement from Nicole Krason. As of October 9, 2020, the date of Ms. Disco’s affidavit, Petitioner has failed to provide any of the documents requested above. Notwithstanding Petitioner’s failure to comply with HABC's documentation requests, HABC has extended Petitioner's voucher until December 31, 2020. Petitioner’s voucher originally expired on November 30, 2019, but has been extended through December 31, 2020. During the period of the extension, Petitioner was required to complete her annual recertification in order to remain eligible under the HCV Program. HUD mandates HABC must conduct an annual re-examination of a participant's eligibility for the HCV Program. The purpose of the annual re-examination is to establish that every family's eligibility for assistance is based on their income, as determined in accordance with program rules. During the annual recertification process, Petitioner requested that her daughter be deemed a “live-in aid” so that her daughter's income would not count towards the household income. However, Petitioner declined to continue with this process because she wanted the voucher to transfer to her daughter. According to HUD guidelines, Petitioner's daughter would not qualify as a live-in aide, eligible for rental assistance or occupancy in a subsidized unit, because her daughter had lived as an "other household adult" between 2008 and 2019. HABC's administrative plan does not allow prior, or current, household adults to be live-in aides. Participants must provide information requested by HABC because changes in income or family composition can affect the amount of assistance a tenant is eligible to receive. Those who fail to cooperate in providing such information can have their voucher terminated. On or about July 30, 2020, HABC sent Petitioner an annual recertification packet in order for her to complete the annual recertification process. This packet needed to be completed by September 1, 2020. On September 17, 2020, HABC sent a letter to Petitioner advising her she had not completed the annual recertification packet and that she would need to complete the packet in order to remain eligible under the HCV Program. On September 23, 2020, Petitioner returned the packet, but it was incomplete. Specifically, Petitioner did not provide proper documentation for her out-of-pocket medical expenses. HABC requested the proper documentation be submitted to complete the annual recertification process. Petitioner did provide HABC with a letter from Health First Alliance Group confirming her continued need for medical equipment. Independent of the proceedings before FCHR, HUD also investigated the handling of Petitioner's case by HABC. The scope of HUD’s investigation was to determine whether HABC discriminated against Petitioner in violation of Section 504 of the Rehabilitation Act of 1973, and its implementing regulations found at 24 CFR, Part 8. Section 504 provides that no otherwise qualified individual with disabilities shall, solely on the basis of disability, be excluded from participation in, be denied the benefits of, or otherwise be subjected to discrimination under any program or activity that receives federal financial assistance from HUD. HUD’s investigation led to a finding that there were no reasonable grounds to believe that an unlawful discriminatory housing practice had occurred.
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 dismissing Petitioner’s Petition for Relief. DONE AND ENTERED this 24th day of November, 2020, in Tallahassee, Leon County, Florida. S W. DAVID WATKINS 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 24th day of November, 2020. COPIES FURNISHED: Tammy S. Barton, Agency Clerk Florida Commission on Human Relations Room 110 4075 Esplanade Way Tallahassee, Florida 32399-7020 (eServed) LaShawnda K. Jackson, Esquire Rumberger, Kirk & Caldwell, P.A. Suite 1400 300 South Orange Avenue Orlando, Florida 32801 (eServed) KarenLee Krason c/o General Delivery Melbourne, Florida 32901 (eServed) Francis Sheppard, Esquire Rumberger, Kirk & Caldwell, P.A. Suite 1400 300 South Orange Avenue Orlando, Florida 32801 (eServed) Michael D. Begey, Esquire Rumberger, Kirk & Caldwell, P.A. Suite 1400 300 South Orange Avenue Orlando, Florida 32801 (eServed) Cheyanne Costilla, General Counsel Florida Commission on Human Relations Room 110 4075 Esplanade Way Tallahassee, Florida 32399-7020 (eServed)
The Issue The issues in this case are, one, whether Respondent unlawfully discriminated against Petitioner on the basis of his national origin, religion, or handicap in violation of the Florida Fair Housing Act; and, two, whether Respondent subjected Petitioner to acts of intimidation, coercion, or retaliation as a result of Petitioner's exercise, or attempted exercise, of a protected housing right.
Findings Of Fact Petitioner William Kleinschmidt ("Kleinschmidt") owns a unit in the Three Horizons North Condominium. He purchased his condominium in 1999 and has resided there continuously since that time. Respondent Three Horizons North Condominiums, Inc. ("Three Horizons"), manages the property of which Kleinschmidt's condominium is a part. Kleinschmidt and Three Horizons have been involved in a long-standing feud stemming from Kleinschmidt's possession of cats in violation of the condominium's "no pets" policy. Three Horizons has tried since 1999 to compel Kleinschmidt's compliance with the "no pets" policy. The dispute over Kleinschmidt's cats came to a head last year, when a formal administrative hearing was held on Kleinschmidt's first housing discrimination complaint against Respondent. See Kleinschmidt v. Three Horizons Condominium, Inc., 2005 Fla. Div. Adm. Hear. LEXIS 883, DOAH Case No. 04-3873 (May 25, 2005), adopted in toto, FCHR Order No. 05-097 (Fla.Com'n Hum.Rel. Aug. 23, 2005)(Kleinschmidt I). Among other allegations, Petitioner charged in Kleinschmidt I that Three Horizons had unlawfully refused to waive the "no pets" policy to permit his possession of "service animals" (i.e. cats) as an accommodation of his emotional handicap. Kleinschmidt lost that case. Kleinschmidt presently alleges that Three Horizons has discriminated against him on the basis of handicap, national origin, and religion. The undersigned has had some difficulty making sense of Kleinschmidt's allegations. As far as the undersigned can tell, Kleinschmidt alleges that: (1) members of the condominium association's board of directors (and especially the board's treasurer, Ruth Pearson, whose German ancestry Kleinschmidt assumes makes her a Nazi sympathizer hostile to Jewish persons such as himself) have made disparaging comments about him; (2) when he applied to purchase his condominium back in 1999, Three Horizons charged him a $100 screening fee, which should have been only $75; (3) Three Horizon's agents illegally broke into his unit on September 21, 2000, and again on September 21, 2001, stealing personal property each time; (4) before he purchased his unit, Three Horizons agreed to waive the "no pets" policy, which agreement Respondent now refuses to honor; and (5) Three Horizons has engaged in ongoing (but unspecified) acts of intimidation, coercion, and retaliation. There is not a shred of competent, persuasive evidence in the record, direct or circumstantial, upon which a finding of any sort of unlawful housing discrimination could possibly be made. Ultimately, therefore, it is determined that Three Horizons did not commit any prohibited act.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the FCHR enter a final order finding Three Horizons not liable for housing discrimination and awarding Kleinschmidt no relief. DONE AND ENTERED this 21st day of November, 2006, in Tallahassee, Leon County, Florida. JOHN G. VAN LANINGHAM 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 21st day of November, 2006.
The Issue The issue is whether Respondent has unlawfully discriminated against Petitioner on the basis of her disabilities in connection with her rental of an apartment, in violation of the Florida Fair Housing Act, section 760.23(2), Florida Statutes.
Findings Of Fact Petitioner suffers from bipolar disorder, surgically repaired spinal injuries, and a cardiac condition requiring a pacemaker, as well as unspecified environmental allergies. Petitioner thus has a physical or mental impairment that substantially limits one or more major life activities and has a record of having, or is regarded as having, such physical or mental impairment. At all material times, Respondent has managed Cutler Meadows, which is a Section 8 housing community that is part of the Housing Choice Voucher Program administered by the U.S. Department of Housing and Urban Development. Cutler Meadows is a complex of three three-story buildings comprising 225 apartments: 36 two-bedroom units and 189 one-bedroom units. A maintenance person resides in one of the two-bedroom apartments, so only 35 two-bedroom apartments are available for rent. These units are popular and infrequently become available for rent. By application dated September 5, 2000, Petitioner applied for a one-bedroom apartment at Cutler Meadows. Her application disclosed that Petitioner was disabled. Respondent approved the application, and, in November 2000, Petitioner moved into unit A-108, which is a ground-floor, one-bedroom unit. At the same time, Petitioner's disabled son moved into his own one-bedroom apartment on the third floor of the same building. In March 2010, Petitioner asked to be moved either to a one-bedroom apartment on the third floor or a two-bedroom apartment. Petitioner submitted a physician's note stating that she required a higher floor due to her allergies. A subsequent physician's note asserted that Petitioner's grandson needed to live with her to assist with her activities of daily living. Although her reported medical needs would seem to have required a two-bedroom unit on the third floor, by asking for a unit that satisfied either of these conditions, Petitioner appears to have been content with a higher one-bedroom unit or a lower two-bedroom unit. Prior to Respondent's reassigning Petitioner to another unit, on January 5, 2011, Petitioner's grandson, who had moved in with Petitioner, knifed his father, Petitioner's son, who, as noted above, resided at Cutler Meadows. Respondent commenced a short-lived eviction proceeding against Petitioner, but agreed to drop the matter if the grandson moved out and was not allowed to visit the complex. A couple of weeks after reaching the settlement with Respondent, Petitioner filed an application seeking, again, a two-bedroom unit or a one-bedroom unit on a higher floor. Shortly after filing this application, Petitioner learned that unit A-316, which was vacant, was about to be furnished with new appliances. Petitioner asked to be assigned this apartment, and, two days later, Respondent assigned this apartment to Petitioner. On October 21, 2013, Petitioner requested a two-bedroom apartment. Respondent has a written policy for the assignment of apartments. For the relatively scarce two-bedroom units, Respondent maintains two waiting lists: one for persons with medical needs justifying a two-bedroom unit and one for all other persons. As long as anyone is on the medical-needs waiting list, no one on the other list is assigned a two-bedroom unit. In this case, Respondent implemented its written policy. On receipt of Petitioner's application, Respondent placed her on the medical-needs waiting list, which had four persons ahead of her. Petitioner has failed to prove that any of these persons was not disabled. As each two-bedroom apartment became available, Respondent assigned it to the person at the top of the medical-needs waiting list. When Petitioner reached the top of the list, she received the next available two-bedroom unit, which, in fact, took place in March 2016 when Respondent assigned her a two-bedroom apartment, unit A-224, and Petitioner moved into the apartment. When asked, Petitioner could not say how Respondent discriminated against her on the basis of any of her disabilities. The crux of her case seems to turn on one or two misconceptions. Petitioner complained that a two-bedroom apartment was vacant because its tenant resided in southwest Florida, but she clearly lacked sufficient understanding of the facts of that transaction to establish any wrongdoing on Respondent's part. Petitioner seems to think that other persons, besides the four ahead of her on the medical-needs waiting list, obtained two-bedroom units before she did, but Petitioner has no evidence to support this opinion, which appears to be incorrect. Petitioner badly undermined her own judgment when she complained, at an earlier time, when Respondent assigned a higher one-bedroom apartment to someone whose home had burned, rather than to her. In sum, Petitioner has provided no direct evidence of discrimination, nor any basis whatsoever for an inference of discrimination. Petitioner has failed to provide any evidence even suggestive of unfair treatment of her by Respondent.
Recommendation It is RECOMMENDED that the Florida Commission on Human Relations enter a final order dismissing the Petition for Relief filed on March 22, 2016. DONE AND ENTERED this 21st day of April, 2017, in Tallahassee, Leon County, Florida. S Robert E. Meale 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 April, 2017. COPIES FURNISHED: Tammy S. Barton, Agency Clerk Florida Commission on Human Relations 4075 Esplanade Way, Room 110 Tallahassee, Florida 32399 (eServed) Ann Hervas Apartment A224 11280 Southwest 196th Street Miami, Florida 33157 Andrew L. Rodman, Esquire Jon K. Stage, Esquire Stearns Weaver Miller Weissler Alhadeff and Sitterson, P.A. 150 West Flagler Street, Suite 2200 Miami, Florida 33130 (eServed) Kara S. Nickel, Esquire Stearns Weaver Miller Weissler Alhadeff and Sitterson, P.A. 150 West Flagler Street, Suite 2200 Miami, Florida 33130 (eServed) Cheyanne Costilla, General Counsel Florida Commission on Human Relations 4075 Esplanade Way, Room 110 Tallahassee, Florida 32399 (eServed)
The Issue Whether Respondents, Donna and Randy Morrison, managers of Hillside Mobile Home Park, discriminated against Petitioners, Linda Parah and Andrew Loveland, Sr., by failing to make reasonable accommodation for Petitioners' service animal necessary to afford equal opportunity to use and enjoy the rental premises in violation of the Fair Housing Act, Sections through 760.37, Florida Statutes (2004).1
Findings Of Fact Based upon observation of the witnesses' demeanor and manner while testifying, character of the testimony, internal consistency, and recall ability; documentary materials received in evidence; stipulations by the parties; and evidentiary rulings during the proceedings, the following relevant and material facts are found: On June 24, 2004, Andrew Loveland, Sr., made application for tenancy at Hillside Mobile Home Park, Inc. (Hillside), 39515 Bamboo Lane, Zephyrhills, Florida 33542, when he completed and signed Respondents' "Application for Tenancy" form. The prospective tenants listed were Andrew Loveland, Sr., and Linda Parah. Ms. Parah did not sign the application. As of June 24, 2005, Petitioners listed their then-current address as 5824 23rd Street, Lot 1, Zephyrhills, Florida 33542. The application for tenancy form listed Ms. Parah as one of the persons to reside in the rental dwelling and, as such, was a "person associated with the intended renter," Mr. Loveland. The tenancy application signed by Mr. Loveland contained the following acknowledgement: [U]nder penalty of perjury, I declare that I have read the foregoing and the facts alleged are true to the best of my knowledge and belief. I hereby acknowledge that I have received a copy of the Prospectus and Rules and Regulations of Hillside Mobile Home Park, Inc. Mr. Loveland, though present at the proceeding, chose not to challenge his written acknowledgment of receiving a copy of the Prospectus and the Rules and Regulations of Hillside, and the undersigned accordingly finds that Mr. Loveland received a copy of the Prospectus and the Rules and Regulations of Hillside on June 24, 2004, and was fully informed of his duties and obligations as a tenant of Hillside therein contained. On June 24, 2004, neither Mr. Loveland nor Ms. Parah informed or advised management of any medical disability(s) suffered, requiring companionship (living in the trailer) of a dog (comfort or service). Petitioners did not, at that time, request Respondents to make any reasonable accommodations for any mental and/or physical disability(s) that required the presence of their service dog in the rented premises. No copy of management's park prospectus or rules was offered in evidence, and, accordingly, a finding of receipt thereof is made, but no findings herein are based on the specific content therein. On or after June 24, 2004, Petitioners and their dog occupied the leased premises 6528 Pecan Drive, Hillside Mobile Home Park, Zephyrhills, Florida 33542. The credible evidence of record convincingly demonstrated management had knowledge that Petitioners and several other park tenants owned dogs. Tenants, often times together, walked their dogs about the trailer park in sight of management and other residents. Based upon the above, it is concluded that management was or should have been aware that other tenants, including Petitioners, had dogs in the trailer park. On October 21, 2004, management, by and through its attorney, by certified mail, made demand upon Petitioners to cure noncompliance within seven days (October 28, 2004) or vacate premises for noncompliance with the park prospectus or rules, to wit: You have been driving your golf cart behind and between mobiles. Residents must govern themselves in a manner that does not unreasonably disturb or annoy other residents. We have had several complaints regarding this issue. Please drive and walk on the streets only. (Emphasis added) Ms. Parah acknowledged the golf car incident, explaining that Mr. Loveland occasionally drove his golf cart through the trailer park and not always on the walkways during the evening hours. She insisted, however, that after receipt of the October 21, 2004, notice to cease from management, Mr. Loveland discontinued driving his golf cart behind and between mobile homes during the evenings and nights and, during the day, restricted his cart driving to only the park roadways. By letter dated November 5, 2004, to Mr. Loveland, Respondents issued a "Notice of Termination of Tenancy," for failure to correct the (October 21, 2004, notice of violation-- driving golf cart) within seven days. Accordingly, his tenancy was to be terminated 35 days from the postmarked date of delivery of the notice. On November 11, 2004, S. D. Hostetler, a tenant whom management did not call to testify, allegedly filed the following hand-written complaint letter to management: On 11-3-04 at around 3 am I was awaken by a loud sound. I got up to see what it was and it was an older red golf cart going through the camping section, it must not have a muffler on it, that morning I did complain to the management about some one going around the Park that early in the morning with such a noisey [sic] scooter. I later found out it was Andrew Loveland. The above-written document was not notarized; the author was not made available and subject to cross-examination. This document therefore is unsupported hearsay and insufficient to support and establish the factual content therein to wit: "[O]n 11-3-04 around 3 a.m., Mr. Loveland was driving his golf cart through the camping section and, thus, failed to correct the October 21, 2004, notice of violation--driving golf cart, within 7 days." This complaint did, however, establish the fact that management received a complaint about Mr. Loveland from another tenant after having given him notice to cease and desist. On November 18, 2004, two weeks after the golf cart notice of noncompliance termination, Respondents, by certified mail delivered on November 22, 2004, made demand upon Petitioners to cure noncompliance within seven days or vacate premises for a second noncompliance with the park prospectus or rules, to wit: "(A) You have a dog and dogs are not allowed in the park." The November 22, 2004, copy of the notice to cure noncompliance was received by Mr. Loveland as evidenced by a copy of a U.S. Certified Mail delivery receipt signed by Mr. Loveland. In the December 13, 2004, letter from Attorney Schlichte addressed to Andrew Loveland (only), Re: Notice of Termination of Tenancy (reference November 18, 2004, 1st Notice of Rule Violation; i.e. you have a dog and dogs not allowed), Petitioners were given 30 days to vacate the premises. It is significant and noted that as of December 13, 2004, Ms. Parah had not made a demand or request upon management for "reasonable accommodations for her service animal necessary to afford the Petitioner an equal opportunity to use and enjoy the rental premises," as alleged in the administrative complaint. Ultimate Factual Determinations On February 28, 2005, 76 days after receipt of management's December 13, 2004, first Notice of Rule Violation (no dog allowed) and filing of Eviction Compliant in Pasco County Court,2 Petitioners made their first written request to management for reasonable accommodation under the American Disabilities Act as follows: Dear Sir: I am requesting reasonable accommodation under the American with Disability Act to have rules and regulations of the Park (Hillside) sent to me. On my pet. I have documentation from my physician Joseph Nystrom, M.D. on my service, my comfort dog. And this can be furnished upon request! Rules and Regulations were not clear to fact that Mr. Andrew Loveland, Sr. never had them unless you can show pictures on the grass 10/21/2004. I feel that your violating Mr. Loveland and my civil right under fair housing rules. [sic] Please acknowledge our reasonable accommodation as stated above by Tuesday of next week 3/8/2005. Accordingly, Linda Alan Parah Andrew Alton Loveland, Sr. cc: C.J. Miles Deputy Dir. Fair Housing Continu [sic], Inc., 1-888-264-5619. Having provided a copy of the Prospectus and the Rules and Regulations of Hillside on June 24, 2004, to Mr. Loveland, management's refusal to provide a second copy was a reasonable nondiscriminatory business decision. The offer to provide "documentation from my physician Joseph Nystrom, M.D. on my service, my comfort dog," imposed no obligation upon management to accept such offer. Within the totality of circumstances then present, ignoring Petitioners' offer to provide medical and/or willingness statements regarding their medical, physical, and mental disabilities, requiring the presence of a service/comfort dog by Respondents, is not found to have been discriminatory. On or about May 19, 2005, Pasco County Court entered Final Judgment of Eviction against Andrew Loveland and Unknown Tenant (i.e. Linda Parah). The Pasco County Sheriff's Office, pursuant to Final Judgment of Eviction for Removal of Tenant entered by the Pasco County Court, evicted Petitioners from Respondents' rented premises of Hillside, 39515 Bamboo Lane, Zephyrhills, Florida 33542. Petitioners submitted an abundance of credible evidence relating to their physical and mental health conditions. As to Mr. Loveland, Dr. Nystrom's written and signed notation concluded that Mr. Loveland's condition required: "Motorized wheelchair multi-level spinal stenosis- medically necessary and due to his illness, the presence of his little Dog is medically necessary." The document contained hearsay evidence to which counsel for Respondents did not raise an objection and is, thus, accepted by the undersigned. This document was dated after the date Mr. Loveland received his second notice regarding failure to correct and the filing of the complaint for eviction. As to Ms. Parah, Tracey E. Smithey, M.D., East Pasco Medical Group, reported her medical conclusion stating in part that: "Linda Parah, was seen in my office on 11-20-03, 01-19-04 and today (April 8, 2004). She had been diagnosed with Bipolar Disorder, Depressed type. She is prescribed Paxi, Xanax, and Ambien. She has been referred for psychotherapy also." Dr. Smithey did not include in her written document that Ms. Parah had to have a dog for her condition. Dr. Smithey, as had Dr. Nystrom, signed the document. The document contained hearsay evidence to which counsel for Respondents did not raise an objection and is, thus, accepted by the undersigned. Had Petitioners made their request for reasonable accommodations and presented their medical reports, evidencing their medical conditions and limitations, to include the need of Mr. Loveland for his comfort dog, to Respondents on or before June 24, 2004, or even as late as on or about November 18, 2004, Petitioners would have, arguably, established the requisite basis for finding of a request for reasonable accommodation. There is, however, insufficient evidence of record to support a finding that Petitioners, Mr. Loveland nor Ms. Parah, made a reasonable accommodation request to Respondents for the housing of the comfort dog for Mr. Loveland. The sequence of dated events and documented evidence is an inference that after receiving the notice to vacate for the two alleged rule violation(s), Petitioners did not make a request for reasonable accommodation to management for Mr. Loveland's dog, but rather offered to provide medical support of Mr. Loveland's need for a comfort dog should Respondents request such proof. Respondents were under no duty or obligation to do so and did not make such a request.3 Petitioners failed to establish that either Mr. Loveland or Ms. Parah: (1) made a request for reasonable accommodation based upon the demonstrated disability of Mr. Loveland; (2) the animal in question was a medically required service (comfort dog) animal for Mr. Loveland; (3) the requested accommodation was necessary to permit full enjoyment by Mr. Loveland of the rental premises; and (4) thereafter, management denied their reasonable accommodation request for Mr. Loveland. In short, and based upon the findings of fact herein, Respondent did not unlawfully discriminate against Petitioners; rather, management terminated Petitioners' tenancy for legitimate, nondiscriminatory reasons, to wit: off-road driving of a golf cart and unapproved dog within the rental unit in violation of park rules and regulations after written notice to correct the noted violations. Management's Counsel's Motion for Attorney's Fees and Costs There is not a scintilla of evidence to substantiate a finding that Petitioner, Mr. Loveland, who did not testify, knew or should have known that his claim and defense presented during this proceeding was not supported by material facts. Likewise, Respondent made no query of Ms. Parah (referred to in the eviction complaint as "unnamed tenant") that elicited statements or acknowledgements from which reasonable inference could be drawn to demonstrate that within the situational circumstances Ms. Parah knew or should have known the claim herein made was not supported by material facts.4
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that the Commission enter a final order: Dismissing Petitioners', Linda Parah and Andrew Loveland's, Petition for Relief; and Denying Respondents' counsel's motion for an award of attorney's fees and costs. DONE AND ENTERED this 16th day of March, 2006, in Tallahassee, Leon County, Florida. S FRED L. BUCKINE 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 16th day of March, 2006.
