The Issue Whether Respondent, Cambridge Management Inc., engaged in housing discriminatory practice in violation of the Florida Fair Housing Act, as amended, sections 760.20 through 760.37, Florida Statutes (2010).1/
Findings Of Fact In 2009-2010, Ms. Elizabeth Sherlock and her nine-year-old son, Luke Sherlock, rented a home from Ms. Sheryl Whitaker. The home was located in the Wedgewood II at Pelican Strand located in Collier County, Florida. The lease was from June 1, 2008, until June 1, 2010. Cambridge Management is the Master Association for the condominium association for the Strand properties. Cambridge Management did not rent or lease the home to Ms. Sherlock. Ms. Sherlock testified that the homeowner's association cited her for violations of the homeowner's association covenants, based on her son engaging in normal childhood activities such as climbing trees, archery, playing in the street and the community clubhouse. Ms. Sherlock testified that she was told in April 2010 that her lease would not be renewed, because her son had run across a sand trap on the golf course during a rain storm. According to Ms. Sherlock, Cambridge Management discriminated against her and her son by denying them access to their rented home.2/ Further, Ms. Sherlock testified that her son suffered severe traumatic stress, based on the security officers denying them access to their home. Finally, Ms. Sherlock testified that the decision not to continue renting to her caused her to move from the home and resulted in financial hardship. Ms. Sherlock's Petition for Relief summarily states that Respondents violated the Florida Fair Housing Act through "discriminatory terms, conditions, privileges or services, and facilities." The Petition for Relief does not contain any specific factual allegation against Respondents. The record does not support Ms. Sherlock's testimony that Cambridge Management engaged in any discriminatory practice or that it retaliated against her and her son in violation of the Florida Fair Housing Act. Mr. LeClaire is a security guard for the Wedgewood at Pelican Strand. Mr. LeClaire testified that on June 24, 2010, at approximately 9:00 p.m., he had stopped Ms. Sherlock at the gate because his supervisor had told him that Ms. Sherlock may not be a current resident. After confirming that she was still a current resident, Mr. LeClaire allowed Ms. Sherlock to access her home through the gate. Although Mr. LeClaire's supervisor had told him that Ms. Sherlock may not be a current resident, no one from Cambridge Management had told Mr. LeClaire to deny Ms. Sherlock access to her rented home. Mr. Weaver is also a security guard for the Wedgewood at Pelican Strand. Mr. Weaver testified that on July 2, 2010, at approximately 9:00 p.m., he stopped Ms. Sherlock at the gatehouse to determine whether or not she was a current resident. Mr. Weaver credibly testified that he stopped Ms. Sherlock because he did not recognize her as a resident. After he verified that she was a current resident, Mr. Weaver allowed Ms. Sherlock into the community. Mr. Weaver credibly testified that he delayed her at most three minutes. Mr. Charles Sherlock is Ms. Sherlock's father. Mr. Sherlock resides in Naples, Florida, during the winter. He testified about the close relationship that he enjoys with his grandson Luke. According to Mr. Sherlock, Luke felt that it was his fault that he and Ms. Sherlock had been evicted from Ms. Whitaker's home, and had to move to Minnesota. Mr. Sherlock further testified that he had to pay for Ms. Sherlock's move to Minnesota, and that he would like to be reimbursed for the costs. Ms. Rubele is an officer with Wackenhut Security, and she testified about the Wackenhut Standard Operating Procedure for the Strand, and testified that Wackenhut's contact person for security was Ms. Brandy K. Callahan of Cambridge Property Management. Prior to the final hearing, Ms. Sherlock voluntarily dismissed, with prejudice, her claims against Respondents, Wedgewood at Pelican Strand Neighborhood Association, et al., and Newell Property Management, et al., and voluntarily dismissed Respondent, Sheryl Whitaker.
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 of dismissal of the Petition for Relief. DONE AND ENTERED this 7th day of June, 2011, in Tallahassee, Leon County, Florida. S THOMAS P. CRAPPS 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 7th day of June, 2011.
Findings Of Fact Based on the undisputed facts included in pleadings filed in this proceeding and on the documentary evidence attached to the Association's Renewed Motion to Dismiss, the following findings of fact are made: On or about April 16, 1999, Ms. Thornhill filed a complaint with the Department of Housing and Urban Development, in which she accused the Association of housing discrimination on the basis of handicap and coercion. The complaint was apparently based on the Association's attempts to make Ms. Thornhill remove a set of steps leading from the terrace of her apartment. In June 1999, the Association filed a civil lawsuit against Ms. Thornhill in the Circuit Court of the 11th Judicial Circuit in and for Miami-Dade County, styled Admiral Farragut Condominium Association v. Maria Thornhill, Case No. 99-15567 CA 22. On or about September 21, 1999, Ms. Thornhill, through her attorney, filed Defendant, Maria Thornhill's Answer to Complaint. Included in the answer was a Counterclaim filed by Ms. Thornhill, through her attorney, against the Association, in which she sought injunctive relief and damages against the Association pursuant to Section 760.35(1) and (2), Florida Statutes. 1/ She asserted in the Counterclaim that she had filed a discrimination complaint against the Association with the Department of Housing and Urban Development, which had been referred to the Commission and that this complaint was still pending before the Commission. Ms. Thornhill alleged in the Counterclaim that the Association had engaged in housing discrimination against her on the basis of her handicap because it had refused to accommodate her disability by giving her permission to retain the steps she had installed leading from the terrace of her apartment. Ms. Thornhill also alleged that the Association had "authorized or acquiesced in a series of actions intended as harassment and retribution" against Ms. Thornhill for having filed a housing discrimination complaint. The factual and legal bases on which Ms. Thornhill requests relief in the Petition for Relief filed with the Commission and in the Counterclaim filed in circuit court are virtually identical.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Florida Commission on Human Relations enter a final order dismissing the administrative complaint filed by Maria T. Thornhill to enforce rights granted by the Florida Fair Housing Act, Sections 760.30 through 760.37, Florida Statutes. DONE AND ENTERED this 7th day of November, 2000, in Tallahassee, Leon County, Florida. PATRICIA HART MALONO 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 7th day of November, 2000.
The Issue Whether Respondent discriminated against Petitioners in violation of the Florida Fair Housing Act (Florida FHA); and, if so, the relief to which Petitioners are entitled.
Findings Of Fact Sun Lake is an apartment complex located in Lake Mary, Florida. Ms. Pollock is the property manager of Sun Lake, and has been employed in this capacity for approximately seven years. Mr. Green is an African-American male. The brothers leased and resided in an apartment at Sun Lake from 2012 through July 31, 2017. Mr. Green asserted that Jude is disabled, however, no other evidence to support that assertion was provided. Mr. Green alleged that Respondent failed to provide Petitioners accommodations that were requested in December 2016: change their apartment locks to the brothers’ “own private locks”; stop the trash service pick-up to the brothers’ apartment; and establish a community garden within the Sun Lake property. It is undisputed that Respondent ceased the trash service pick-up, but the evidence was insufficient to support whether the apartment locks were or were not changed. There was insufficient evidence to support a finding of fact regarding the establishment of a community garden within the Sun Lake property.5/ Mr. Green suggested a December 2016 police report was fraudulent because a name on the report was incorrect, and he had not filed a police complaint regarding noise above their apartment. The evidence was insufficient to support a finding of fact on this allegation. Mr. Green admitted to withholding rent on several occasions as a method to have the requested accommodations secured. Ms. Pollack confirmed there was a valid lease agreement between Sun Lake and Petitioners. Further, she provided that Respondent did, in fact, stop the trash service pick-up to their apartment as Petitioners requested. Ms. Pollack lacked specific knowledge regarding whether Petitioners’ apartment door locks were changed, but offered that Respondent must maintain an apartment key. This is done in order to secure access to each apartment in a timely manner for health and safety reasons. Respondent’s maintenance staff would not enter any apartment without a specific request for service. Ms. Pollack provided the multiple dates on which Petitioners’ rental payments were late. Petitioners and Respondent became involved in eviction proceedings in circuit court. At some point, Petitioners and Respondent entered a settlement stipulation that Petitioners would vacate their apartment earlier than their lease agreement, and pay the rental fees and other associated fees to Respondent. Following Mr. Green’s testimony, and both the direct and cross-examination testimony of Respondent’s sole witness, Ms. Pollock, Mr. Green moved to dismiss the case. No credible evidence was presented that Respondent discriminated against Petitioners in any fashion.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a final order be entered by the Florida Commission on Human Relations dismissing Petitioners’ Petition for Relief in its entirety. DONE AND ENTERED this 21st day of May, 2019, in Tallahassee, Leon County, Florida. S LYNNE A. QUIMBY-PENNOCK Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 21st day of May, 2019.
The Issue The issues are whether Respondent engaged in a discriminatory housing practice by allegedly excluding Petitioner from participating in a homeowner’s meeting on January 14, 2009, or ejecting Petitioner from the meeting, based on Petitioner’s religion and alleged handicap, in violation of Section 760.37 and Subsections 760.23(2), 760.23(8), 760.23(8)(2)(b), and 784.03(1)(a)(l), Florida Statutes (2008),1 and, if not, whether Respondent is entitled to attorney fees and costs pursuant to Section 120.595, Florida Statutes (2009).
Findings Of Fact Respondent is a condominium association defined in Section 718.103, Florida Statutes. Respondent manages a condominium development, identified in the record as Tregate East Condominiums (Tregate). Tregate is a covered multifamily dwelling within the meaning of Subsection 760.22(2), Florida Statutes. Petitioner is a Jewish male whose age is not evidenced in the record. A preponderance of the evidence presented at the final hearing does not establish a prima facie case of discrimination on the basis of religion, ethnicity, medical, or mental disability, or perceived disability. Rather, a preponderance of the evidence shows that Respondent did not discriminate against Petitioner in the association meeting on January 14, 2009. In particular, the fact-finder reviewed the videotape of the entire meeting that took place on January 14, 2009. The meeting evidenced controversy, acrimony, and differences of opinion over issues confronting the homeowners present. However, the video tape did not establish a prima facie case of discrimination based on Petitioner’s religion, ethnicity, or alleged handicap. Respondent seeks attorney’s fees in this proceeding pursuant to Section 120.595, Florida Statutes (2009). Pursuant to Subsection 120.595(1)(c), Florida Statutes (2009), this Recommended Order finds that Petitioner has participated in this proceeding for an improper purpose. Petitioner participated in this proceeding for a frivolous purpose within the meaning of Subsection 120.595(1)(e)1., Florida Statutes (2009). The evidence submitted by Petitioner presented no justiciable issue of fact or law. Petitioner provided no evidence to support a finding that he suffers from a handicap defined in Subsection 760.22(7), Florida Statutes. Petitioner claims to have a disability based on migraine headaches but offered no medical evidence to support a finding that Petitioner suffers from migraine headaches or any medical or mental disability. Petitioner’s testimony was vague and ambiguous, lacked precision, and was not specific as to material facts. Petitioner called four other witnesses and cross-examined Respondent’s witnesses. Petitioner’s examination of his witnesses and cross-examination of Respondent’s witnesses may be fairly summarized as consisting of comments on the answers to questions and argument with the witnesses. Petitioner repeatedly disregarded instructions from the ALJ not to argue with witnesses and not to comment on the testimony of a witness. Petitioner offered no evidence or legal authority that the alleged exclusion from the homeowners meeting on January 14, 2009, was prohibited under Florida’s Fair Housing Act.3 Petitioner offered no evidence that he is a “buyer” or “renter” of a Tregate condominium within the meaning of Section 760.23, Florida Statutes. Rather, the undisputed evidence shows that Petitioner is not a buyer or renter of a Tregate condominium. Petitioner attended the homeowners meeting on January 14, 2009, pursuant to a power of attorney executed by the owner of the condominium. If a preponderance of the evidence were to have shown that the owner’s representative had been excluded from the meeting, the harm allegedly prohibited by the Fair Housing Act would have been suffered vicariously by the condominium owner, not the non-owner and non-renter who was attending the meeting in a representative capacity for the owner. The condominium owner is not a party to this proceeding. A preponderance of the evidence does not support a finding that Petitioner has standing to bring this action. Petitioner was neither an owner nor a renter on January 14, 2009. Petitioner’s only legal right to be present at the meeting was in a representative capacity for the owner. The alleged exclusion of Petitioner was an alleged harm to the principal under the Fair Housing Act. Respondent is the prevailing party in this proceeding, and Petitioner is the non-prevailing party. Petitioner has participated in two or more similar proceedings involving Respondent. The parties resolved those proceedings through settlement. The resolution is detailed in the Determination of No Cause by the Commission and incorporated herein by this reference. Respondent seeks attorney’s fees totaling $3,412.00 and costs totaling $1,001.50. No finding is made as to the reasonableness of the attorney fees costs because Respondent did not include an hourly rate and did not submit an affidavit of fees and costs. However, the referring agency has statutory authority to award fees costs in the final order pursuant to Subsection 760.11(7), Florida Statutes.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Florida Commission on Human Relations enter a final order dismissing the Petition for Relief and requiring Petitioner to pay reasonable attorney’s fees and costs in the amounts to be determined by the Commission after hearing further evidence on fees and costs in accordance with Subsection 760.11(7), Florida Statutes. DONE AND ENTERED this 15th day of April, 2010, in Tallahassee, Leon County, Florida. S DANIEL MANRY 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 15th day of April, 2010.
The Issue Whether Respondent, IMT-LB Central Florida Portfolio, LLC (Respondent), committed a discriminatory practice in violation of Chapter 760, Florida Statutes (2009).1
Findings Of Fact Respondent owns and/or operates a residential rental property located at 4400 Martin’s Way, Orlando, Florida. The property, identified in this record as Village Park Apartments (Village Park), consisted of a two-story, multi-building, multi- apartment complex. Sometime in late October 2009, Petitioner leased an apartment at Village Park. Petitioner’s apartment was on the second floor and no other apartments were above his. Petitioner’s lease agreement required that Petitioner obtain and provide public utilities for his apartment. Although Petitioner claims he did not timely receive a copy of his lease in order to be on notice of this provision, the record is clear that after Petitioner became aware of the provision, he did not obtain public utilities for the apartment. Shortly after Petitioner received a bill for utility service for his apartment from Respondent in December 2009, Petitioner complained to governmental authorities about conditions at the apartment complex. With regard to the conditions of his living unit, Petitioner maintained there was a roof leak, a vanity pipe leak, and a non-working toilet. Ms. Johnson, an inspector for the City, came out to Village Park and inspected the unit. She found that the toilet and vanity required repair. She further determined that Respondent would need to get a certified roofing person to verify the condition of the roof, and to certify to the City that the roof was water tight. It was Ms. Johnson’s position that water damage was evident on the ceiling in Petitioner’s unit, and that Respondent would need to get a certified roofing person to verify the condition of the roof, as well as someone to restore the interior of Petitioner’s unit by repairing and/or painting the ceiling. An inspector from the Orange County Health Department also visited Village Park concerning a complaint about rats at the dumpster. Respondent timely addressed the rodent issue and the property is under contract with an extermination company that provides appropriate rodent deterrence. Respondent timely repaired the vanity leak and the toilet issue in Petitioner’s apartment. The roof issue, however, was not quickly resolved. Initially, Petitioner refused to allow Respondent into the unit to repair the ceiling. Ms. Johnson advised Petitioner that he would have to allow Respondent entry in order for them to be able to fix the ceiling and restore it to an appropriate condition. According to Ms. Johnson, the ceiling in Petitioner’s unit did not collapse as alleged by Petitioner. Ms. Johnson also noted that there was debris around the dumpster at Village Park. She was favorably impressed with the speed with which the maintenance crew cleaned up the mess at the dumpster site. Despite some delays in getting the roof inspection completed to Ms. Johnson’s satisfaction, all issues with Petitioner’s unit were resolved to the City’s satisfaction. Concurrent with the repair timeline to Petitioner’s unit, Respondent filed an eviction proceeding against Petitioner. That action progressed through the court, through mediation, and resulted in a stipulated settlement agreement. The Landlord/Tenant Stipulation was executed on January 27, 2010, and provided, in pertinent part: Defendant [Petitioner] agrees to place utilities in his own name at OUC no later than Feb. 3, 2010. * * * Defendant agrees to allow Plaintiff [Respondent] to enter his apartment for repairs on Feb. 1, 2010 between 9:00 a.m. and 5:00 p.m. Petitioner failed to abide by the terms of the stipulation. Ultimately the court issued a Final Judgment for Possession and Writ of Possession for Petitioner’s unit. Petitioner's claim that the eviction process was retaliation for the complaints made to the county and city authorities, belies the fact that Petitioner failed to honor the terms of the lease, and the stipulation reached in the eviction proceeding. Petitioner’s race was not directly or indirectly involved in any manner. Nor was Petitioner treated less favorably than a similarly situated party not of Petitioner’s race.
The Issue The issue is whether Respondents committed an act of discrimination based upon disability against Petitioner in violation of the Florida Fair Housing Act.
Findings Of Fact Petitioner claimed to be living in his grandfather’s condominium at Respondent, Oceana II North Oceanfront Condominium Association, Inc. (“Oceana II”), 9900 South Ocean Drive, Apartment 4, Jensen Beach, Florida 34957, pursuant to a month-to-month lease under which he paid $1,000.00 monthly. Petitioner neither produced a written lease nor provided testimony from his grandfather, the putative owner of the condominium, of the existence of such lease. Petitioner also offered no competent evidence (e.g., cancelled checks, receipts, etc.) that he had made any payments under the alleged lease, whether written or oral. At the time of hearing, Petitioner was living in Texas and had no immediate plans to return to Florida or his grandfather’s condominium. Oceana II is a condominium homeowners’ association created and authorized under chapter 718, Florida Statutes. Respondent, Tiffany Ferguson, is the community association manager for Oceana II and the corporate representative for Oceana II for purposes of this hearing. Petitioner testified that his claim of discrimination came about because his car was parked in a disabled space with an expired disability placard. He was informed by Respondents or their agents that his vehicle must be moved to a parking lot away from the entrance to the building in which he was staying. He claims to have told Respondents’ agents that he could not park that far away from “his” unit due to a disability. Petitioner presented no competent evidence that any fine or suspension was ever levied by Respondents on him. Petitioner presented no competent evidence that any of Petitioner’s vehicles were ever towed by Respondents. Petitioner presented no competent evidence that Respondents treated any other person outside of the protected class any more favorably than Petitioner was treated with respect to the rule requiring a current license plate. Petitioner brought several different vehicles, one of which had an expired Maryland tag, onto Oceana II’s premises. Despite the fact that he worked on many of these disabled vehicles, Petitioner presented no competent evidence that Respondents in any way caused Petitioner to purchase such vehicles, which may have needed repair or had issues obtaining a license plate. Petitioner presented no competent evidence that Petitioner attempted to purchase or lease a unit in the condominium and was denied by Respondents due to a disability. Petitioner presented no competent evidence that Petitioner had any lease at any time for his grandfather’s unit which Petitioner testified was a family vacation unit. Petitioner presented no competent evidence that Petitioner provided any information in response to Respondents’ request for information as to an alleged disability, the disability-related need for an accommodation, and how any accommodation was necessary to ameliorate any alleged disability. Petitioner admitted he received Respondents’ email which said no fines would be imposed. Petitioner admitted he received Respondents’ request for additional information to make a meaningful review from Respondents’ counsel. Petitioner admitted he refused to provide the additional information requested by Respondents (through counsel) to make a meaningful review of an accommodation request on October 20, 2020. Petitioner admitted he voluntarily removed the original vehicle (a Pontiac Sunbird) while it had a valid license plate. Petitioner admitted at hearing that he brought in other vehicles at a later time--a green van, a white Saturn, and a gray van--onto the property without plates on purpose to provoke a response and engineer a hearing under section 718.303(3)(b), which pertains to the rights and obligations of condominium associations in levying fines against owners or occupants. He was attempting to set up a claim by intentionally not showing license plates because he wanted a hearing. Petitioner admitted he never tried to register the green van or the gray van with the Florida Department of Motor Vehicles (“DMV”). Petitioner admitted the white Saturn has a current plate, not a Florida plate, and it is currently located in Texas. The white Saturn did not display a plate while on the condominium property. Petitioner admitted he refused to answer on Fifth Amendment grounds whether he ever displayed a plate on any of the vehicles. Petitioner admitted he left Florida in early February and lives in Texas, in San Marco near San Antonio. Petitioner could not renew the Maryland tag on the Sunbird because the VIN (vehicle identification number) on the registration was missing a digit, yet he admitted he has no evidence of any efforts to fix the VIN on the Sunbird with the Maryland DMV.
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 for relief, finding both that he has failed to make a prima facie case of housing discrimination and that, because he resides in Texas and has no ownership or legal claim to the condominium in Florida, his claim is moot. DONE AND ENTERED this 10th day of June, 2021, in Tallahassee, Leon County, Florida. S ROBERT S. COHEN Administrative Law Judge 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 10th day of June, 2021. COPIES FURNISHED: Tammy S. Barton, Agency Clerk Florida Commission on Human Relations 4075 Esplanade Way, Room 110 Tallahassee, Florida 32399-7020 J. Henry Cartwright, Esquire Fox McCluskey Bush Robison, PLLC 3461 Southeast Willoughby Boulevard Post Office Drawer 6 Stuart, Florida 34995 John Sebastian Quick Apartment 4 9900 South Ocean Drive Jensen Beach, Florida 34957 Cheyanne M. Costilla, General Counsel Florida Commission on Human Relations 4075 Esplanade Way, Room 110 Tallahassee, Florida 32399-7020
The Issue Whether Petitioner's Petition for Relief from a Discriminatory Housing Practice (Petition for Relief) filed against Respondents should be granted by the Florida Commission on Human Relations (Commission).
Findings Of Fact Based on the evidence adduced at the final hearing and the record as a whole, the following findings of fact are made: The Parties Petitioner is a 75-year-old woman who lives with her 13-year-old granddaughter, Jeanna Moretti, in a fourth-floor apartment (apartment number 408B) in Building B of the Santa Monica Condominium development (Santa Monica). Santa Monica is a 75-unit multi-family condominium development, with elevatored buildings, located in Hollywood, Florida. Petitioner has lived at Santa Monica since 1990. Jeanna has resided with her for the past ten years. There are other children (under 18 years of age), besides Jeanna, who live at Santa Monica. The Santa Monica Condominium Association, Inc. (Association) is vested with the authority to manage and oversee the condominium property at Santa Monica. Its authority includes the power to regulate the use of the common elements. Among the areas over which it is empowered to exercise control are the catwalks, elevators, trash and storage rooms, pool area, and parking lots. The Association is governed by a board of directors. Until recently, Ray Milewski was on the Association's board of directors and served as its president. Among those who served on the board with Mr. Milewski were Frank Garcia and Gretchen Powell. Mr. Milewski, who is approximately 55 years of age, lives on the same floor as Petitioner (in apartment number 411B). He shares his apartment with his girlfriend, Arlene Kelleher. Petitioner's and Ray Milewski's Acrimonious Relationship Since the time he assumed the presidency of the Association, Mr. Milewski has had a fractious relationship with Petitioner and Jeanna. In his dealings with Petitioner and Jeanna, Mr. Milewski has conducted himself in a manner that has upset them. He has been rude to them and called them unflattering, derisive, and vulgar names. Some of the name-calling directed at Jeanna has come in response to her whistling in his presence. He has entered Petitioner's apartment without permission when the front door was open. He has walked back and forth on the catwalk outside of Petitioner's kitchen window seemingly trying to listen in to what was going on in the apartment, and he has made nasty comments to Petitioner through the window. Petitioner and Jeanna, for their part, have acted in a manner that has irritated Mr. Milewski and others in the development. The Arbitration Proceeding On March 31, 2002, when Mr. Milewski was still president of the Association, the Association filed with the Department of Business and Professional Regulation, Division of Land Sales, Condominiums, and Mobile Homes (Department), a petition for arbitration, pursuant to Section 718.1255, Florida Statutes, accusing Petitioner of engaging in disruptive conduct in violation of Article XV of Santa Monica's Declaration of Condominium. The case was docketed as Department Case No. 02- 4691. An arbitration hearing in Department Case No. 02-4691 was held on June 27, 2002, in accordance with the procedures set forth in Florida Administrative Code Rule 61B-45.039.2 The arbitrator, Richard M. Coln, Esquire, issued his Final Order in Department Case No. 02-4691 on July 31, 2002. Arbitrator Coln's Final Order contained the following "findings of fact": The Santa Monica Condominium is a condominium within the meaning of Fla. Stat § 718.104. The Santa Monica Condominium Association, Inc., is the entity responsible for the administration and operation of the Santa Monica Condominium. Maria O'Connor, the respondent, is the fee simple owner of unit 408B and has resided in the unit since 1990. The respondent presently resides in the unit with her granddaughter, Jeanna Moretti. The petitioner presented the testimony of Ray Milewski, President of the association's board of directors and owner of unit 411B. Mr. Milewski's unit is located on the same floor as the respondent's. Mr. Milewski lives with his girlfriend, Arlene Kelleher, and has resided in the unit since 1990. Based upon the testimony of all witnesses presented, it is clear that there is a great deal of hostility and animosity existing between Mr. Milewski and the respondent. Mr. Milewski testified that the respondent has, virtually on a day-to-day basis, whistled in an overly irritating fashion at him, his girlfriend, and occasionally at an employee of the association. Mr. Milewski further testified that Mrs. O'Connor's granddaughter, Jeanna, also whistles in order to harass him. Mr. Milewski described the whistle as a loud piercing sound repeated without melody or tune. The petitioner presented the testimony of Lynn Moore, the owner of unit 308B. Ms. Moore's unit is located directly below the respondent's unit. Ms. Moore has resided in the condominium with her two children for approximately five years. Ms. Moore testified that she and respondent had been friends in the past but were not presently on a friendly basis with one another. Ms. Moore testified that one evening she heard the respondent and her granddaughter having a fight. This fight was later reported to the Department of Children and Families (DCF) and an investigation of the incident took place. No further action was ever taken by DCF. Since the report to DCF, the amicable relationship between the respondent and Ms. Moore has ended. Ms. Moore testified that she observed the respondent whistle at Mr. Milewski on one occasion. Ms. Moore described the whistle as a shrill noise without any discernable rhythm or melody. After the relationship between Ms. Moore and the respondent soured, the [sic] Ms. Moore testified that she often heard loud banging and scraping coming from the respondent's unit. These noises occurred most frequently on Monday mornings from 9:00 a.m. to noon. Because of Ms. Moore's occupation as a flight attendant, Ms. Moore normally sleeps from 9:00 a.m. to noon on Monday mornings. Ms. Moore testified that the respondent was aware of her work schedule and her routine of sleeping in on Monday mornings after returning from her weekend flight schedule. Ms. Moore testified that as a result of the animosity and problems that have developed between her and the respondent, she has sold her unit and is moving out of the condominium. The petitioner presented the testimony of Mr. Steve Godfrey who is the tenant of unit 409B, which is the unit located directly next door to Mrs. O'Connor's. Mr. Godfrey's brother and sister-in-law, who reside part-time in England are the owners of unit 409B. As a result of a broken pipe in the Godfrey unit that caused damage to the respondent's unit, animosity between the respondent and Mr. Godfrey has developed. Mr. Godfrey testified that he has witnessed the respondent's granddaughter whistle at him in an effort to be a nuisance. Mr. Godfrey further testified that he has repeatedly heard noises coming from the respondent's unit that sounded like a chair being dragged across the floor. The respondent testified that she sometimes whistles while she does house work. The respondent denies whistling to intentionally harass Mr. Milewski. Respondent and her granddaughter both testified that they had been practicing whistling because Jeanna's school choir was having a program involving whistling. The respondent demonstrated at the hearing her ability to whistle, which consisted of her blowing air through her lips without making any audible sound. The petitioner presented the testimony of Paul Marotta. Mr. Marotta is employed by the association to do maintenance of the condominium property. Mr. Marotta testified that he has observed the respondent, and her granddaughter, whistling in an irritating fashion at himself, Mr. Milewski and Arlene Kelleher. Mr. Marotta further testified that the respondent tries to get people angry and has received complaints that she bangs on the floors and walls in an effort to irritate other residents. The respondent presented the testimony of Joseph Moretti, the respondent's son. He stated that his mother had a habit of whistling when doing dishes. On February 13, 2002, a letter was sent to the respondent notifying her of the complained of behavior and demanding that she and her granddaughter cease these behaviors. Arbitrator Coln's Final Order also contained the following "conclusions of law"3: The testimony of the witnesses was that the respondent exhibits a great deal of animosity towards other unit owners, tenants, and association employees, which manifests as disruptive behavior. The testimony presented by the petitioner supports the claim that the respondent actively engages in conduct that is intended to disturb, annoy, and interfere with other unit owners or occupants. Article XV of the Declaration of Condominium provides in pertinent part that: "No immoral, improper, offensive or unlawful use shall be made of any unit or of the common elements or of the limited common elements or any part thereof. . . . No unit owner shall do . . . any act . . . which might . . . interfere with owners or occupants of other units or annoy them by unreasonable noises." The arbitrator finds that the testimony of the association's witnesses on this issue of the respondent's alleged conduct to be credible. All of the witnesses, called by the petitioner, described the respondent's whistling and other behaviors in similar fashion and described similar encounters with her. Additionally, the testimony of the respondent and her granddaughter that they did not engage in the behavior complained of was not credible and was not supported by other evidence. At the hearing, the respondent was unable to produce sound when demonstrating her ability to whistle. The testimony of respondent's own witnesses, her son and granddaughter, was that she often whistled while she did work or other chores. Neither witness described the respondent's whistling as inaudible or as having any similarity to the whistle she demonstrated at the hearing. Based upon the totality of the evidence submitted, the arbitrator finds that the respondent, and her granddaughter, engaged in the conduct complained of in violation of the above referenced provisions of the declaration. The respondent raises the following defenses: That the dispute was between her and another unit owner and not between her and the association. Selective enforcement. That the respondent's conduct was speech protected by the 1st Amendment to the Constitution. Regarding the first defense, the petitioner presented the testimony of several witnesses, each testified that the respondent engaged in conduct that was harassing and annoying to them. The association is responsible for enforcing the rules and regulations for the condominium. Since the testimony presented demonstrates that the respondent's conduct affects more than one occupant or unit owner, and is occurring throughout the community, the dispute is one that involves the association and its obligation to enforce the rules and regulations of the community. The respondent claims that the association is selectively enforcing the rules and regulations of the condominiums [sic] against her. The respondent has produced no evidence that the association has allowed other unit owners to engage in similar behavior towards other unit owners and tenants and not sought to enforce the association's rules and regulations against them See e.g., Scarfore v. Culverhouse, 443 So. 2d 122 (Fla. 2d DCA 1983) (In order to show arbitrary or selective enforcement it must be shown that the other violations permitted by the board are comparable to the type of violation involved in the instant action). Accordingly, since the respondent has failed to demonstrate a comparable violation of Article XV of the declaration the defense of selective enforcement fails. The respondent's last defense is that her conduct is protected by the 1st Amendment to the Constitution. The First Amendment provides, in pertinent part, that "Congress shall make no law . . . abridging the freedom of speech or the press " U.S. Const. Amend. 1. The Fourteenth Amendment extends the First Amendment's prohibition on the abridgment of freedom of speech to states and their political subdivisions. The right to free speech, however, is not absolute at all times and under all circumstances. The Supreme Court has established several categories of speech, typically regarded as harmful, which are deemed not to be protected by the First Amendment. These categories are obscenity, advocacy of imminent lawless behavior, defamation, fighting words and fraudulent misrepresentation. See R.A.V. v. City of St. Paul, Minn., 112 S. Ct. 2638 (1992); New York v. Ferber, 102 S. Ct. 3348 (1982); Chaplinsky v. New Hampshire, 62 S. Ct. 766 (1942). First, it should be noted that the respondent's acts of whistling, dragging a chair across the floor, and banging upon the wall, is not speech, it is conduct. Conduct, as established by the evidence in this matter, which is designed to harass, annoy, and irritate others without any legitimate purpose. Where the purpose of the conduct is the personal abuse of another, the conduct is not communication that falls under the protection of the 1st Amendment. See Cantell v. Connecticut, 80 S. Ct. 900, 906 (1942). Since the action in this matter, neither involves state action nor speech, the defense that the respondent's behavior is protected by the 1st Amendment must fail. Accordingly, the respondent has violated Article XV of the declaration of condominium by whistling at other unit owners, tenants, and association employees and by making noises in an irritating and annoying fashion without legitimate purpose which obstructs or interferes with other unit owners or occupants of other units or annoys them by unreasonable noises. Based upon the foregoing, it is ORDERED and ADJUDGED that the respondent has violated Article XV of the declaration of condominium.. The respondent shall immediately cease whistling in the face of other unit owners, tenants, or association employees, banging on the walls of her unit, dragging chairs across her floor, and any other actions which are intended to annoy, irritate, or harass others. Neither shall she encourage her granddaughter or any other person to engage in such behaviors. The respondent shall in the future comply with the provisions of Article XV. The following advisements regarding the "right to trial de novo" and "attorney's fees" were set out in Arbitrator Coln's Final Order: RIGHT TO TRIAL DE NOVO PURSUANT TO SECTION 718.1255, FLORIDA STATUTES THIS DECISION SHALL BE BINDING ON THE PARTIES UNLESS A COMPLAINT FOR TRIAL DE NOVO IS FILED BY AN ADVERSELY AFFECTED PARTY IN A COURT OF COMPETENT JURISDICTION IN THE CIRCUIT IN WHICH THE CONDOMINIUM IS LOCATED WITHIN 30 DAYS OF THE DATE OF MAILING OF THIS ORDER. THIS FINAL ORDER DOES NOT CONSTITUTE FINAL AGENCY ACTION AND IS NOT APPEALABLE TO THE DISTRICT COURTS OF APPEAL. ATTORNEY'S FEES As provided by s. 718.1255, F.S., the prevailing party in this proceeding is entitled to have the other party pay its reasonable costs and attorney's fees. Rule 61B-45.048, F.A.C., requires that a party seeking an award of costs and attorney's fees must file a motion seeking the award not later than 45 days after rendition of this final order. The motion must be actually received by the Division within this 45-day period and must conform to the requirements of rule 61B-45.048, F.A.C. The filing of an appeal of this order does not toll the time for the filing of a motion seeking prevailing costs and attorney's fees. Arbitrator Coln's Final Order was mailed to the parties to the arbitration on July 31, 2002. On September 3, 2002, the Association moved for an award of attorney's fees and costs in Department Case No. 02- 4691. On October 7, 2002, Arbitrator Coln issued an order in Department Case No. 02-4691 awarding the Association $8,660.00 in attorney's fees and costs and directing Petitioner to pay this sum to the Association within 30 days of the date of the order. Arbitrator Coln issued an Amended Final Order Awarding Attorney's Fees and Costs in Department Case No. 02-4691 on October 16, 2002. This amended order left unchanged the amount of the attorney's fees and costs award Petitioner was required to pay the Association (but required that payment be made within 30 days of this amended order). Petitioner's Physical Ailments Petitioner has knee and back problems as a result of injuries she has suffered. She broke her kneecap in 1985 and now has a "trick knee." She has injured her back on more than one occasion. Her last back injury occurred in 1992, when she fell on her buttocks after her knee "gave out." The injury was a serious one. She was in a "body brace" for four months (from December 1992, to April 1993), during which time she used a walker. Petitioner is able to, and does, walk without a cane or other aid or support. When the elevator in her building is not working, Petitioner has to walk up and down the stairs to get to and from her apartment. She is able to traverse the stairs, albeit slowly. Although she considers herself to be disabled, at no time material to the instant case did Petitioner advise Respondents that she had a disability or impairment. Mr. Milewski did see Petitioner in a "body brace" and using a walker following her most recent back injury, but this was more than decade ago, well before the events that are the subject of the instant case. While Mr. Milewski called Petitioner various offensive names, in engaging in such name-calling, he did not make reference to any physical impairment or use other language suggesting that he regarded Petitioner as being physically handicapped or disabled. Parking All Santa Monica unit owners, including Petitioner (who drives a 1992 Nissan Sentra), have an assigned parking space. Petitioner's assigned parking space is directly behind her apartment in the parking area in back of the building. Petitioner is able to walk (unaided) from her assigned parking space to the entrance to her building even when carrying items from her car. Petitioner likes the location of her assigned parking space because she is able to see her car, when it is parked there, by simply looking out a window in the rear of her apartment. Petitioner has never requested that she be reassigned another parking space (closer to the entrance of her building or elsewhere). Despite the fact that there are potholes in the pavement right behind her assigned parking space that fill up with water when it rains, Petitioner has not had, nor expressed, any desire to change assigned parking spaces. In addition to the parking area where Petitioner's assigned parking space is located, there is also a parking area in front of Petitioner's building, which has both assigned and guest parking spaces. Among these parking spaces in front of the building is a handicapped parking space (on each side of which is a non- handicapped, assigned parking space). From the time she moved into her apartment at Santa Monica in 1990, until mid-April of 2002, Petitioner, without incident, on occasion, parked in the handicapped parking space temporarily (never overnight) when the weather was inclement and she needed to carry groceries from her car to her apartment. On these occasions, she was never asked to move her car from the handicapped parking space. Petitioner's car has a handicapped sticker on it.4 On or about April 17, 2002, as she had done on previous occasions, Petitioner parked in the handicapped parking space after a trip to the grocery store. Shortly after entering her apartment with the groceries she had purchased, Petitioner heard a knock on the door. It was Joseph Gauck, who worked as the property manager for the Association. He asked Petitioner if she had seen the new sign in front of the handicapped parking space that indicated it was a "guest only" handicapped parking space. Petitioner replied that she had not. Mr. Gauck told her that she needed to move her car and that, although he was giving her only a warning this time, the next time she parked in this space, her car would be towed. Petitioner did as she was told. When she went down to move her car, she confirmed that the sign in front of the handicapped parking space now read "guest only." Use of the Pool Santa Monica has a pool available for use by everyone living in the development, however, children under 14 years of age must be accompanied by an adult when in the pool area. Petitioner understands the need for this rule requiring adult supervision and does not question the rule's reasonableness or its legality. Her complaint is that, in September 2002, the Association erroneously accused her of allowing Jeanna to go to the pool without adult supervision (in violation of the rule), while making no accusations against other unit owners who were actually guilty of violating the rule. The accusation with which she takes issue came in the form of a letter, dated September 6, 2002, that she received from Mr. Gauck. The letter read as follows: It has been brought to our attention that your granddaughter has been allowed to go to the pool unattended and unsupervised. This is a violation of the community rules, which specify that all children under 14 years of age must be accompanied by an adult. This rule is posted at the pool and is contained in your community documents. Unsupervised children at the pool are not only a danger to themselves but represent a major liability to the community and to you, as the party responsible for her well being. Please make sure that you accompany your granddaughter at all times when she is at the pool. Otherwise, her use of the pool will be prohibited. Petitioner responded by writing the following letter, dated September 7, 2002, to Mr. Gauck, explaining that it was another child, not Jeanna, who had been in the pool without adult supervision on the date in question: In answer to your letter of Sept. 6, 2002, Mrs. Chrabus, apt. # 216 and her mother who was visiting were going to the pool. My granddaughter Jeanna and Mrs. Chrabas' daughter were waiting. Meanwhile Mrs. Chrabas' daughter took it upon herself to enter the pool, my granddaughter did not as I told her not to. When Mrs. Chrabas' mother who is well over 14 yrs. went into the pool is when Jeanna entered. In fact Jeanna left before they did. I looked over the catwalk over the pool two times and both Mrs. Chrabas' mother and then Mrs. Chrabas were in the pool. My granddaughter has excellent supervision, and we both understand the rules and have always followed them. Few days prior to this there were at least four kids, neighbors at the pool yelling and screaming, diving in. Did anyone see or hear this? I did. My granddaughter's well-being is my most interest. In respect to you, I know you need to do your job. Petitioner received no other letter concerning this matter from Mr. Gauck or any one else on behalf of the Association. Jeanna was never forbidden by the Association from using the pool. Petitioner, however, "kept [Jeanna] out of the pool for a long time" following this exchange of letters (taking Jeanna to the beach, instead, to swim). Jeanna and Board Member Gretchen Powell One day in November 2002, as Petitioner, Jeanna, and Petitioner's friend, Lillie Charles, were unloading groceries from Petitioner's car after they had returned to Santa Monica from a trip to the grocery store, Ms. Powell walked by and said hello to Jeanna. Not receiving any response to her greeting, Ms. Powell told Jeanna, "Kiss my ass." Ms. Powell also spit on the ground before angrily walking away. Jeanna's Christmas Decorating Before the Christmas holiday in 2002, Jeanna painted a "Santa Clause face" and wrote Merry Christmas on the outside of the living room window of Petitioner's apartment (which faces the catwalk). As Jeanna was finishing up, Mr. Milewski passed by and called Jeanna a "retard." A short time later, Mr. Milewski was joined on the catwalk outside of Petitioner's apartment by Ms. Powell and Mr. Garcia. The three stood there laughing. It appeared to Petitioner, who was looking out the kitchen window (which also faces the catwalk, where Mr. Milewski, Ms. Powell, and Mr. Garcia were standing), that the three of them were laughing at the work Jeanna had done. Damage to the Hood of Petitioner's Car In or around April of 2003 (after Petitioner had filed with the Commission and HUD the housing discrimination complaints described in the Preliminary Statement of this Recommended Order), Ms. Powell telephoned Petitioner and left a message advising Petitioner that a tree adjacent to the parking area behind Petitioner's building was going to be cut down and suggesting that Petitioner not leave her car in her assigned parking space while this work was being done. Although Petitioner did not think her car was close enough to the tree to be in harm's way, in an abundance of caution, she moved the car to a guest parking space further away from the tree. When Petitioner went to her car to move it back to her assigned parking space after the tree-cutting work was done, she noticed, for the first time, that there were places on the hood of the car where the paint was "bubbled" and discolored. Since this April 2003, incident, there has been additional "bubbling" and discoloration that Petitioner has discovered on the hood of her car, further marring its appearance.5 Chewed Gum in Keyhole of Petitioner's Mailbox and Elsewhere In or around the summer of 2003, on more than one occasion, there was chewed gum placed in the keyhole of Petitioner's mailbox. There were other occasions where Petitioner found wax and matchsticks in the keyhole. During the summer of 2003, Petitioner also started finding chewed gum placed on the catwalk outside the entrance to her apartment. She also discovered chewed gum on the outside sill of her kitchen window, on the kitchen window screen, and on the screen door at the entrance to her apartment. After Petitioner wrote a letter to Mr. Milewski about the chewed gum outside her apartment, the Association's "maintenance man," Paul Marotta, came by "to clean up the mess."6 Jeanna's Bicycle The trash room in Petitioner's building also serves as a storage area for bicycles. Jeanna has a bicycle that she stores in the trash room. On one occasion, when Petitioner went into the trash room to retrieve the bicycle for Jeanna, the bicycle was in the back of the room behind other bicycles that Petitioner was unable to move. Petitioner asked that Jeanna's bicycle be moved to the front of the room, where it had been previously, so that it would be accessible to Petitioner and Jeanna. When Petitioner returned to the trash room, Jeanna's bicycle was again in the front of the room near the door, but the bicycle now had "dirty plastic bags" tied to its handlebars.7 Comments Regarding Moving It has been suggested to Petitioner and Jeanna that they move from the development. Such suggestions have been made by Mr. Garcia and Ms. Powell. Petitioner has responded to these suggestions by indicating that she has no intention of moving. Election of a New Association Board of Directors Petitioner was not alone in her displeasure with the way Mr. Milewski and his fellow board members discharged their responsibilities on behalf of the Association. A dissident group of unit owners circulated the following letter to other unit owners in or around the fall of 2003: Dear Santa Monica Condominium Owner, We are a group of Owner-Residents and we would like to share with you some concerns we have regarding the upcoming elections. As you know, the Board of Directors is being elected soon for the upcoming year. We have decided to jointly write this letter so that you realize that this is a common concern and does not come from 1 or 2 unhappy individuals. Most of us make a point to attend the meetings when we can, and we try and stay informed and up to date with our community. We like to get involved with our "neighborhood" and contribute to the common effort of making Santa Monica a safe, attractive and pleasant place to reside. As owners, we are also interested in the values of our homes and that the value of our community increases as well as our lifestyles. There are many things we would like to address in the upcoming year that will make a positive difference to our homes and property. We feel that the management of our monthly maintenance could be better handled and we think that at present, the business of running the building does not benefit the entire community. Frankly speaking, the warmth is gone. While we are all equal owners, you may or may not be currently calling Santa Monica your home and are probably unaware of this change in the "community climate." We are primarily interested in turning Santa Monica back into the friendly, thriving community it once was. If you are renting your unit, this will benefit you, as a happy renter is more likely to remain renting your property. Many of the rules and regulations under which we live have become restrictive and outdated. They are being selectively enforced with such vigor and ferocity that we have become uncomfortable in our own community. We want to work together as neighbors and friends again. We want to feel as though we are a community where people may live and work in peace and not worry about when the next selective and arbitrary enforcement of a rule is going to shake up our lives and make us all afraid to even use our own common areas. We, the letter writers, are mostly longtime residents and we range in ages from our mid-twenties on up to our seventies. We are a diverse group of residents. We are professionals, or are retired and we are all responsible adults. We are asking that you vote for the following people in the next election. We want to turn Santa Monica around and get it back on the right track, The following individuals want to accomplish this as well. Our Board of Directors is currently set up for 5 individuals. We are recommending the following people For Your Consideration: * * * With these people on the Board of Directors, you may be assured they will all work with one thing in mind. To serve the entire Santa Monica Community. They have no self- serving interest in being Board Members with the exception that they want their residence to be a more pleasant and more efficiently run place to live. They are willing to work for you and with you and they will give some of their free time in the interest of all residents. We hope you agree and we are asking that you vote for 5 of the 6 people that we have offered for your consideration. Thank you for you time and for your votes. We appreciate your help in turning Santa Monica into a Community that Cares. The dissidents were successful in their efforts to oust Mr. Milewski and his fellow board members from power. Under the new board, Petitioner feels like things are "normal again." The new board members have told her that they have no problem with her humming while in her kitchen with the window open (something Mr. Milewski forbade her from doing when he was in office). They have also told her that it is okay for her to temporarily park in the handicapped parking space. Ultimate Findings The record evidence is insufficient to establish that Respondents in any way discriminated against Petitioner on the basis of handicap or familial status or that they took any retaliatory action against her for filing housing discrimination complaints with the Commission and HUD.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Commission issue a final order finding that Respondents are not guilty of any "discriminatory housing practice" and dismissing Petitioner's Petition for Relief based on such finding. DONE AND ENTERED this 30th day of March, 2004, in Tallahassee, Leon County, Florida. S STUART M. LERNER Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 30th day of March, 2004.
The Issue Whether Respondent is liable to Petitioner for discrimination in the sale or rental of housing because of Petitioner’s alleged disability, in violation of the Florida Fair Housing Act.
Findings Of Fact In June 2016, Gaudina and Grand Lifestyle executed a document, entitled “GLC III/LLLP Lease – Basic Rental Agreement or Residential Lease” (lease), in which Gaudina leased from Grand Lifestyle a residence at 3346 East Dale Street, Leesburg, Florida, in the Lakeside Village mobile home park (premises). The lease provided that Gaudina pay to Grand Lifestyle $656.00 per month to lease the premises. The lease further provided that at the end of three consecutive years of living at the premises, Grand Lifestyle would provide Gaudina the option of purchasing the premises for $1,000.00. Gaudina testified that his primary residence is in Colorado, but that he wished to lease the premises so that he had a residence when he visited his wife, who lived nearby in Lake County, Florida. As he did not reside permanently at the premises in Leesburg, Gaudina subleased the premises to another individual, possibly in violation of the lease. That individual reported to Gaudina numerous issues with the premises, which Gaudina testified he brought to the attention of Grand Lifestyle.2/ Both parties testified that they sought various remedies in other courts concerning these issues. The undersigned finds that these issues are not relevant to Gaudina’s allegations concerning discrimination under the Florida FHA. Gaudina testified that he possesses a disability that requires use of an emotional support animal. The only evidence Gaudina submitted in support of this contention was a letter, dated February 24, 2015, from Emilia Ripoll, M.D. (Ripoll), located in Boulder, Colorado, and a “Health Care Provider Pet Accomodation Form,” also from Ripoll. This letter states: Mr. Jan Gaudina is currently my patient and has been under my care since 1998. I am intimately familiar with his history and with the functional limitations imposed by his medical condition. Due to his diagnosis of bladder cancer and bilateral ureter cancer, Jan has certain emotional limitations including stress which may cause his cancer to recur. In order to help alleviate these difficulties, and to enhance his ability to cope and live independently, I have prescribed Jan to obtain his pet for emotional support. The presence of this animal is necessary for the mental health of Jan. The Health Care Accomodation Form prescribed the use of Gaudina’s dog, a golden retriever, as an emotional support animal. Gaudina did not present the testimony of Ripoll or any other health care provider concerning his alleged disability. The letter and form, which are inadmissible hearsay that Gaudina failed to corroborate with admissible non-hearsay evidence, attempt to establish that Gaudina required an emotional support animal to prevent a recurrence of cancer. The undersigned cannot consider these documents to support a finding that Gaudina is disabled and in need of an emotional support animal. See Fla. Admin. Code R. 28-106.213(3).3/ Therefore, the undersigned finds that Gaudina has failed to establish that he suffers from a disability that requires the accommodation of his golden retriever as an emotional support animal. Principe, the owner of Grand Lifestyle, testified that the prospectus for the premises restricted pet ownership to pets that weigh less than 20 pounds. The parties acknowledged that a golden retriever weighs in excess of 20 pounds. Principe testified that, during a telephone conversation, Gaudina asked whether he could bring his golden retriever to the premises, but never mentioned his alleged disability. Principe also testified that he asked Gaudina whether Gaudina’s golden retriever was a trained service dog. Gaudina testified that his golden retriever was not a “service dog,” as defined under section 413.08, Florida Statutes.4/ Principe further testified that Gaudina rarely visited the premises. Gaudina testified that, in total, he visited the premises in Leesburg three or four times over the period of approximately one year. Gaudina presented no credible evidence that he qualifies as a person who is disabled for the purposes of the Florida FHA. Further, there is no competent, persuasive evidence in the record upon which the undersigned could make a finding of discrimination in the sale or rental of housing because of Petitioner’s alleged disability, in violation of the Florida FHA.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Florida Commission on Human Relations issue a final order finding that Petitioner, Jan Gaudina, did not prove that Respondent, Grand Lifestyle Communities III/IV, LLLP, committed discrimination in the sale or rental of housing because of Petitioner’s alleged disability, in violation of the Florida Fair Housing Act, and dismissing his Petition for Relief. DONE AND ENTERED this 18th day of January, 2019, in Tallahassee, Leon County, Florida. S ROBERT J. TELFER III 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 18th day of January, 2019.
