The Issue Whether Respondent, Century Realty Funds, Inc., violated the Florida Fair Housing Act, Chapters 760.20 through 760.37, Florida Statutes (2006), by failing to install a poolside chairlift as requested by Petitioner.
Findings Of Fact Based on the oral and documentary evidence presented at the formal hearing and on the entire record of this proceeding, the following Findings of Fact are made: Petitioner is physically disabled and protected for the purposes of the Florida Fair Housing Act. Respondent is the owner of Plantation Landings Mobile Home Park ("Plantation Landings") in Haines City, Florida. Plantation Landings is a 55-year-old and older community. It owns and leases the lots to the owner-tenants of Plantation Landings. Because Respondent owns the Plantation Landings real estate and the subject swimming pool, it has the sole discretion to approve the requested improvements. The swimming pool area is handicap accessible. It is a public swimming pool and regulated by the State of Florida, Department of Health. It was built approximately 30 years ago; there are no known existing construction plans for the pool. The swimming pool is surrounded by a wheelchair-accessible path, and the pool itself has two separate sets of handrails; one for the deep end and one for the shallow end. There are steps leading into the shallow end of the pool and a ladder leading into the deep end. The swimming pool does not have a poolside chairlift. The swimming pool area is not supervised by life guards. Plantation Landings does not provide any supportive services to its residents, such as counseling, medical, therapeutic, or social services. The owner-tenants of Plantation Landings are members of the Plantation Landings Mobile Home Park Homeowners' Association ("Homeowners' Association"), which is a voluntary homeowners' association. Petitioner and his wife are members of the Homeowners' Association. Petitioner and his wife purchased a home in Plantation Landings and leased a lot from Respondent on February 8, 2001, pursuant to a Lease Agreement of the same date. Petitioner is a paraplegic and is able to move about by wheelchair. He is able to access the swimming pool common area in his wheelchair. However, he is not able to get in and out of the pool by himself. He has attempted to get into the swimming pool with the assistance of other residents. He would like to be able to have access into the swimming pool without relying upon the assistance of other residents so that he can exercise. In April 2003, Petitioner discussed the feasibility of installing a poolside chairlift at the swimming pool with Respondent's agent. Petitioner offered to pay for the poolside chairlift and installation at his own expense. On April 1, 2003, Petitioner submitted a written request to Respondent requesting that Respondent install a poolside chairlift. Petitioner delivered his April 1, 2003, written request, literature, and video regarding the poolside chairlift to Respondent's agent. The request did not include any specifications or engineered drawings, nor did it state the proposed location for the poolside chairlift. The poolside chairlift initially proposed by Petitioner was the Model IGMT, which was an in-ground manually-operated lift with a 360-degree seat rotation. In its consideration of Petitioner's request, Respondent determined that the design and construction of the pool and the surrounding common areas were in compliance with all state and federal statutes and regulations and that the pool area and common areas to the pool were accessible by wheelchair. Respondent determined that it was not required to install a poolside chairlift for access into the pool. Respondent also learned that the IGMT model was not Americans With Disabilities Act compliant. It was Respondent's conclusion that the poolside chairlift was cost-prohibitive and a dangerous hazard. When Petitioner returned to Plantation Landings in November 2003, he was advised of Respondent's decision not to provide the requested poolside chairlift. In March 2004, Petitioner requested the assistance of James Childs, president of the Homeowners' Association, for the purpose of making a second request to Respondent for the installation of a poolside chairlift. On March 7, 2004, Mr. Childs, on Petitioner's behalf, wrote Respondent requesting a poolside chairlift. On May 3, 2004, Respondent wrote Mr. Childs denying the request. Over the several years Petitioner has resided in Plantation Landings, he has requested modifications to accommodate wheelchair accessibility. These requests included modifications to the ramp at the front of the clubhouse, modifications adding an additional wheelchair ramp to the back of the clubhouse for access into the clubhouse, and modifications to the handicap parking spaces in front of the clubhouse. All of Petitioner's requests for modifications were honored. In May 2006, Petitioner, again with the assistance of Mr. Childs, made a third request to install a poolside chairlift. This third request was identical to his two prior requests made in 2003 and 2004. This request was denied by letter on April 27, 2006. On December 23, 2006, Petitioner filed a Complaint with the U.S. Department of Housing and Urban Development alleging that Respondent had discriminated against him on the basis of his disability by refusing to allow him to install a poolside chairlift at his own expense.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Florida Commission on Human Relations enter a final order dismissing with prejudice the Petition for Relief for failure to establish an unlawful discriminatory act by Respondent, or, alternatively, that the claim is time-barred and that the Commission lacks jurisdiction to consider the Petition for Relief. DONE AND ENTERED this 15th day of February, 2008, in Tallahassee, Leon County, Florida. S JEFF B. CLARK 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 February, 2008.
The Issue The issue is whether any of the respondents is guilty of unlawful discrimination against Petitioner in the rental of a dwelling, in violation of section 760.23(2), Florida Statutes (2018).
Findings Of Fact At all material times, Petitioner has been an individual with a disability because he is infected with the human immunodeficiency virus (HIV). He is required regularly to take medication to control the disease. At all material times, Respondent Scandinavian Properties, LLC (Respondent Scandinavian) has owned a small complex of rental units in Miami Beach consisting of one or more Airbnb units at the back of the property and two duplex units at the front of property in a two-story building. This case involves one of the two-bedroom, one-bath duplexes with the address of 7910 Byron Avenue, Unit 1 (Unit 1), which was the ground-floor duplex. At all material times, Respondent Renes has been a managing principal of Respondent Scandinavian, and Respondent Bourguigne has been an employee of a property management company retained by Respondent Scandinavian to manage the complex. In an effort to find a suitable rental unit, Petitioner employed the services of a real estate broker or associate, who contacted Respondent Renes to discuss the rental of Unit 1, which had just undergone extensive renovations of two years' duration. Petitioner was recovering from recent surgery, so, as a favor to the real estate agent, Respondent Renes agreed to rent Unit 1 to Petitioner with a background check, but not the customary face-to-face meeting that Respondent Renes required with prospective tenants. Thus, Respondent Renes had limited, if any, contact with Petitioner during the lease negotiations. Petitioner and Respondent Scandinavian entered into a 12-month lease commencing November 1, 2018 (Lease). The Lease prohibited keeping any pets, smoking "in the Premises," creating any "environmental hazards on or about the Premises," keeping any flammable items "that might increase the danger of fire or damage" on the premises without the consent of Respondent Scandinavian, destroying, defacing, damaging, impairing or removing any part of the premises belonging to Respondent Scandinavian, and making any alterations or improvements to the premises without the consent of Respondent Scandinavian, although Petitioner was allowed to hang pictures and install window treatments. The Lease required Petitioner to ensure that all persons on the premises acted in a manner that did not "unreasonably disturb any neighbors or constitute a breach of the peace" and permitted Respondent Scandinavian to adopt or modify rules for the use of the common areas and conduct on the premises. The Lease assigned to Petitioner the responsibility for maintaining smoke detectors, locks, keys, and any furniture in the unit. The Lease permitted "[o]ccasional overnight guests," who could occupy the premises for no more than seven nights per month, and required written approval for anyone else to occupy the premises. Among the rules of the complex was a prohibition against disabling smoke detectors. However, without reference to the Lease provision applicable to pets, one rule allowed one dog or one cat. Another rule assured that management would help tenants gain access to their units when locked out. Within a few weeks of the commencement of the Lease, Petitioner's visitors violated two provisions of the Lease by smoking outside and allowing a dog to run loose in the common area. Respondent Renes or Bourguigne advised Petitioner of the violations, which do not appear to have resulted in any penalties. Admitting to the presence of the dog, Petitioner testified only that the video of the dog violation, if not also the smoking violation, led him to believe that he was being watched. Petitioner's complaint of individual surveillance became an ongoing issue--in his mind. The minimal staffing and small area occupied by the small complex, as a practical matter, both precluded individual operation of cameras to trace the movements of Petitioner and his visitors in the common area and facilitated the surveillance of all, or nearly all, of the common area with relatively few cameras. The evidence fails to support Petitioner's claim that the respondents at any time conducted video surveillance particularly of Petitioner or his visitors. Subsequently, Respondent Renes or Bourguigne advised Petitioner that someone had been shouting his name outside the gate of the complex during the evening hours. This incident is not prohibited by the Lease because the person, while perhaps acquainted with Petitioner, was not his invitee onto or about the premises. Nonetheless, Petitioner's sole reported reaction to this disturbance was to demand a copy of any video--and complain when the respondents failed to comply with his demand. Another of Petitioner's visitors parked a car outside the gate in a space reserved for occupants of the Airbnbs. When, evidently in the presence of Petitioner, Respondent Bourguigne confronted the visitor, the visitor replied that he had only been parked there for 20 minutes. Respondent Bourguigne stated that she had seen the car parked in the spot for 43 minutes. Again, Petitioner's sole response was not to deal with the violation, but to complain about surveillance, evidently of the parking area. The most serious violations of the Lease were discovered on January 28, 2019, when Respondent Renes conducted an inspection of Unit 1. Respondent Renes inspected all rental units of the complex every two or three months to check for safety issues that could imperil tenants or the complex itself. In her inspection, Respondent Renes found that Petitioner had disconnected the smoke alarms and encased them in plastic tape to render them inoperative. She also found that Petitioner had crowded the unit with furniture to the point of impeding egress and constituting a fire hazard. Although not involving safety issues, Respondent Renes found that Petitioner had attached screws to metal doors and kitchen cabinets, damaging these new fixtures. Additionally, Respondent Renes noted the presence of a cat. As noted above, the rules conflicted with the Lease as to the presence of a single dog or cat. In any event, by this time, the respondents were aware that the cat, as well as a human, routinely shared Unit 1 with Petitioner, and the respondents had impliedly consented to these cohabitations. Again, Petitioner's reaction to the Lease violations found by Respondent Renes on January 28 was not to address the problems. Instead, he objected to the inspection as singling him out. By letter delivered to Petitioner on February 14, 2019, Respondent Scandinavian advised that he was in violation of the Lease for allowing an unauthorized person and a cat to occupy the unit, for wrapping the smoke detectors in plastic, for damaging the unit's fixtures by attaching screws into the metal doors and kitchen cabinets, and by cluttering the interior of the unit so as to impede internal movement. The letter demands that Petitioner correct the violations within seven days, or else Respondent Scandinavian would terminate the lease. Respondent Bourguigne's main involvement with this case involves an incident that occurred on the evening of February 15, 2019, when Petitioner locked his keys in his unit and was unable to unlock the door or otherwise enter the unit. Petitioner called the office, but Respondent Bourguigne, who responds to such requests during her normal working hours of Monday through Friday from 9:00 a.m. to 5:00 p.m., did not receive the call until the following morning when she listened to messages. Respondent Bourguigne promptly called Respondent Renes for guidance, and Respondent Renes directed her to summon the complex's handyman, who, as soon as he could, which was 1:00 p.m. on February 16, drove to the complex and opened Unit 1 for Petitioner. Rather than call a locksmith when the respondents failed to respond immediately to his call to the office, Petitioner and a companion attempted to break into Unit 1 with a screwdriver at about 1:30 a.m. Although unaware of the lockout, Respondent Renes learned of the attempted break-in through an automated security system, so she called the police, who reported to the scene and, after briefly interrogating Petitioner, determined that no crime had taken place. Petitioner wrongly concluded that Respondent Renes had been watching him in real time and called the police, knowing that the apparent perpetrator was really Petitioner and no crime was taking place. While locked out of his unit, Petitioner had also sent emails to Respondent Renes. In one of them sent on February 16, Petitioner advised for the first time that he was diagnosed with HIV and dependent on medication that was locked in his unit. Respondent Renes testified that she did not see these emails until days later. At minimum, it is clear that, prior to February 16, no respondent was on notice of Petitioner's disability, so the seven-day notice letter delivered two days earlier could not have been motivated by a discriminatory intent. Despite the seven-day deadline contained in the letter of February 14, by email or text dated February 21, Petitioner advised Respondent Renes that, by 2:00 p.m. on February 22, he "will have remedied each of the … listed [violations]." This was one day past the deadline. Because Petitioner failed timely to meet the conditions of the February 14 seven-day notice letter, Respondent Scandinavian commenced an eviction proceeding on February 22 and, after a hearing, obtained a judgment ordering the eviction of Petitioner. Petitioner failed to prove any discriminatory intent on the part of any of the respondents in their dealings with him, any incidental discriminatory effect in their acts and omissions, or any failure or refusal to accommodate Petitioner's disability. To the contrary, as to discrimination, Respondent Renes chose to forego eviction and instead give Petitioner a chance timely to remedy the Lease violations; when Petitioner failed to do so, Respondent Scandinavian proceeded to evict Petitioner. Nor has any act or omission of any respondent had a discriminatory incidental effect on Petitioner. Lastly, the availability of Respondents Renes and Bourguigne or other employees of Respondent Scandinavian to open units to locked-out tenants and occupants was reasonable and in no way constituted a failure to accommodate Petitioner's disability, for which Petitioner never requested or, on these facts, needed an accommodation.
Recommendation It is RECOMMENDED that the Florida Commission on Human Relations enter a final order finding the respondents not guilty of the charges set forth in the Petition for Relief. DONE AND ENTERED this 13th day of January, 2021, 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 13th day of January, 2021. COPIES FURNISHED: Tammy S. Barton, Agency Clerk Florida Commission on Human Relations 4075 Esplanade Way, Room 110 Tallahassee, Florida 32399-7020 (eServed) Philip Kim, Esquire Pensky & Kim, P.A. 12550 Biscayne Boulevard, Suite 401 North Miami, Florida 33181 (eServed) Jack Wilson 17560 Atlantic Boulevard, Apartment 515 Sunny Isles Beach, Florida 33160 (eServed) Cheyenne Costilla, General Counsel Florida Commission on Human Relations 4075 Esplanade Way, Room 110 Tallahassee, Florida 32399-7020 (eServed)
The Issue The issues in this case are whether Respondents unlawfully discriminated against Petitioners on the basis of race, or retaliated against them for exercising a protected right, or both, in violation of the Florida Fair Housing Act.
Findings Of Fact Because no evidence was admitted into the record at the final hearing, the undersigned cannot make any findings of fact. § 120.57(1)(j), Fla. Stat. (“Findings of fact shall be based … exclusively on the evidence of record and on matters officially recognized.”).
Recommendation Based on the foregoing Conclusions of Law, it is RECOMMENDED that the Florida Commission on Human Relations enter a final order finding Respondents not liable for housing discrimination and awarding Petitioners no relief. DONE AND ENTERED this 27th day of October, 2020, in Tallahassee, Leon County, Florida. S JOHN G. VAN LANINGHAM 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 27th day of October, 2020. COPIES FURNISHED: Antonio Carraway Whang Carraway 1406 Southwest Osprey Cove Port St. Lucie, Florida 34986 (eServed) Jillian Sidisky, Esquire Stefanie S. Copelow, Esquire Cole, Scott & Kissane, P.A. 222 Lakeview Avenue, Suite 120 West Palm Beach, Florida 33401 (eServed) Tammy S. Barton, Agency Clerk Florida Commission on Human Relations 4075 Esplanade Way, Room 110 Tallahassee, Florida 32399 (eServed) Cheyanne Costilla, General Counsel Florida Commission on Human Relations 4075 Esplanade Way, Room 110 Tallahassee, Florida 32399 (eServed)
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.
Findings Of Fact Petitioner herein is the State of Florida, Department of Business Regulation, Division of Florida Land Sales Condominiums and Mobile Homes. One Respondent in this matter is Tanwin Corporation (hereinafter "Tanwin") the developer of two residential condominiums known as Vista Del Lago Condominium I and Vista Del Lago Condominium II, located in West Palm Beach, Florida. The other Respondent is Vista Del Lago Condominium Association, Inc. (hereinafter "Association"), the condominium association for Vista Del Lago Condominiums I and II. Transition from developer control of the Association has not occurred, and at all times pertinent hereto, Respondent Tanwin has in fact controlled the operation of the Respondent Association. The Declaration of Condominium for Vista Del Lago Condominium I (hereinafter "Condo I") was recorded in the public records on December 12, 1980. The Declaration of Condominium for Vista Del Lago Condominium II (hereinafter "Condo II") was recorded in the public records on March 11, 1982. Condo I contains 16 units; and Condo II contains 18 units. Herbert and Judith Tannenbaum are the President and Secretary, respectively, of both Tanwin and the Association and are members of the Association's Board of Directors. The developer-controlled Association failed to provide a proposed budget of common expenses for Condo I for the fiscal year 1982. The developer-controlled Association failed to provide a proposed budget of common expenses for Condo I and Condo II for 1983 until the unit owner meeting in March or April of 1983. The budget provided at that time contained no provision for reserves. Although the document alleged to be the 1983 proposed budget admitted in evidence as Petitioner's Exhibit numbered 17 does contain an allocation for reserves, Petitioner's Exhibits numbered 17 is not the 1983 budget disseminated to unit owners at the annual meeting in 1983. In addition, the 1983 budget was received by the unit owners at the meeting at which the proposed budget was to be considered and not prior to the budget meeting. Statutory reserves were not waived during the period December, 1980 through December, 1983. The "start-up" budgets contained as exhibits to the Declarations of Condominium indicate that reserves were to be collected from unit owners at the rate of $15 per month per unit at least during the first year commencing December of 1980 with the first closing. Hence, reserves were not waived December, 1980 through December, 1981. From November, 1981 through December, 1983, no vote to waive reserves was taken by the unit owners. Although reserves were discussed at the 1983 meeting, no vote was taken during the period in question including 1983, to waive reserves. The developer as owner of unsold units; has failed to pay to the Association monthly maintenance for common expenses during the period December, 1980 through December, 1983. The developer Tanwin has, in the nature of an affirmative defense, alleged the existence of a guarantee of common expenses pursuant to Section 718.116(8), Florida Statutes, which purportedly ran from the inception of the condominiums to date. Accordingly, the initial issue for resolution is whether the developer pursuant to statute guaranteed common expenses. Section 718.116(8)(b) provides that a developer may be excused from payment of common expenses pertaining to developer-owned units for that period of time during which he has guaranteed to each purchaser in the declaration of condominium, purchase contract or prospectus, or by an agreement between the developer and a majority of unit owners other than the developer, that their assessments for common expenses would not increase over a stated dollar amount during the guarantee period and the developer agrees to pay any amount necessary for common expenses not produced by the assessments at the guaranteed level receivable from other unit owners, or "shortfall". Actual purchase agreements were admitted in evidence. Respondents seek to label certain unambiguous language in the purchase contracts as a guarantee. This language, uniform throughout all those contracts as well as the form purchase contract filed with Petitioner except that of Phillip May, provides as follows: 9. UNIT ASSESSMENTS. The Budget included in the Offering Circular sets forth Seller's best estimation of the contemplated expenses for operating and maintaining the Condominium during its initial year. Purchaser's monthly assessment under the aforementioned Budget is in the amount of $109.00. Until Closing of Title, Seller has the right (without affecting Purchaser's obligation to purchase in accordance with the provisions hereof, to modify the estimated Budget and assessments periodically if then current cost figures indicate that an updating of estimates is appropriate). [Emphasis added]. That portion of the purchase agreement set forth above does not constitute a guarantee. Instead, the purchase agreement simply includes a best estimation of expenses for the initial year. It does not govern assessments after the expiration of one year, and even as to the initial year, the language in the contract sets forth only a "best estimation" and not a guarantee that the assessments would not increase during the "guarantee period." Phillip May's purchase agreement reflects that he purchased his unit in August of 1983; after condominium complaints had been filed by the unit owners with the Florida Division of Land Sales Condominiums and Mobile Homes. His purchase agreement has been altered from the purchase agreement of earlier purchasers in that his purchase agreement expressly, by footnote contains a one- year guarantee running from closing. The guarantee contained in his purchase agreement was presented by the developer without any request from Mr. May for the inclusion of a guarantee in his purchase agreement. The guarantee language in this purchase agreement is useful for the purpose of comparing the language with those portions of the pre-complaint contracts which Respondents assert contain or constitute a guarantee. Similarly it is determined that no guarantee of common expenses exists in the Declarations of Condominium for Condo I and II or in the prospectus for Condo II. While Respondents seek to assert the existence of a guarantee in those documents, the portions of those unambiguous documents which according to Respondents contain a guarantee, have no relation to a guarantee or do not guarantee that the assessments for common expenses would not increase. Respondent Tanwin also seeks to prove the existence of an oral guarantee which was allegedly communicated to purchasers at the closing of their particular condominium units. However, purchasers were told by Herbert or Judith Tannenbaum only that assessments should remain in the amount of $109 per month per unit unless there existed insufficient funds in the Association to pay bills. This is the antithesis of a guarantee. During a guarantee period the developer in exchange for an exemption from payment of assessments on developer- owned units agrees to pay any deficits incurred by the condominium association. Accordingly, no guarantee was conveyed at the closing of condominium units. Further Respondent Tanwin's additional contention that an oral guarantee arose when the condominiums came into existence is plainly contradicted by the express language throughout the condominium documents and purchase agreements that there exist no oral representations and that no reliance can be placed on any oral representations outside the written agreements. Further, prior to December, 1983, no reference was ever made by the developer either inside or outside of unit owner meetings as to the existence of the alleged guarantee. Moreover, a comparison between on the one hand, the 1981 and 1982 financial statements prepared in March of 1983, and on the other hand, the 1983 financial statements, clearly reveals that even the accountant for Tanwin was unaware of the existence of a guarantee during the period in question. While the 1983 statements, prepared in 1984 after unit owners filed complaints with Petitioner contain references to a developer guarantee, the 1981 and 1982 statements fail to mention a guarantee. Instead, included in the 1981 and 1982 statements of the Association are references under the current liabilities portion of the balance sheets for those years, to a "Due to Tanwin Corporation" liability in the amounts of $2,138 for 1981 and $2,006 for 1982. Petitioner through Ronald DiCrescenzo, the C.P.A. for Tanwin, established that at a minimum, the $2,006 figure reflected in the 1982 balance sheet was in fact reimbursed to Tanwin. Section 7D-18.05(1),(c), Florida Administrative Code, entitled "Budgets" and effective on July 22, 1980, was officially recognized prior to the final hearing in this cause. That section requires each condominium filing to include an estimated operating budget which contains "[a] statement of any guarantee of assessments or other election and obligation of the developer pursuant to Section 718.116(8); Florida Statutes." The estimated operating budgets for Condo I and Condo II do not include a statement of any guarantee of assessments or other election or obligation of the developer. The testimony of Herbert Tannenbaum with regard to an oral (or written) guarantee is not credible. He first testified that an oral guarantee was communicated to purchasers at the closing of each unit. In contrast, Tannenbaum also testified that the first discussion he had regarding a guarantee occurred with his attorney after the filing of the Notice to Show Cause in this action. Tannenbaum further testified that he did not understand what a guarantee was until after this case had begun and was unaware of the existence of any guarantee prior to consulting with his attorney in regard to this case. Moreover, Ronald DiCrescenzo, the C.P.A. for Tanwin testified that it was Tannenbaum who informed DiCrescenzo of the existence of a guarantee but DiCrescenzo was unable or unwilling to specify the date on which this communication occurred. Respondent Tanwin also seeks to establish the existence of a guarantee through Petitioner's Exhibit numbered 5 which is a document signed by less than the majority of unit owners even including Tannenbaum and his son, and signed on an unknown date during 1984. The document provides: The undersigned Unit Owners at the Vista Del Lago Condominium do not wish to give up the benefits of the developer's continuing guarantee which has been in effect since the inception of the condominium and agreed to by a majority of unit owners and whereby the developer has continuously guaranteed a maintenance level of no more than $109.00 per month per unit, until control of the condominium affairs is turned over to the unit owners in accordance with Florida's Condominium law. According to Respondent Tanwin, Petitioner's Exhibit numbered 5 constitutes a memorandum signed by unit owners evidencing their belief that a continuous guarantee of the developer has been in effect. First, however, this document was never admitted into evidence for that purpose; rather the document was admitted only to establish the fact that a unit owner had signed the document. Second, this document, unlike the purchase agreements or other condominium documents is ambiguous and is not probative of the existence of a guarantee. Instead, the evidence is overwhelming that the document was prepared by the developer in the course of this litigation for use in this litigation. Moreover, unit owner testimony is clear regarding what Mr. and Mrs. Tannenbaum disclosed to unit owners as the purpose for the document when soliciting their signatures, to- wit: that the document was a petition evidencing the unit owners' desire that their monthly maintenance payments not be increased and that prior confusion as to whether reserves had been waived needed resolution. Respondent Tanwin did pay assessments on some developer-owned units during the period December, 1980 through December, 1983, a fact which is inconsistent with its position that a guarantee existed. Noteworthy is the statement by Ronald DiCrescenzo, the C.P.A. for Tanwin, in his August 16, 1983, letter to Herbert Tannenbaum wherein it is stated: "It is my understanding that you are doing the following: . . .[Playing maintenance assessments on units completed but not sold." It is inconceivable that a developer during a "guarantee period" would pay assessments on some developer units as the purpose of the statutory guarantee is to exempt the developer from such assessments. The assessments for common expenses of unit owners other than the developer have increased during the purported guarantee period. At least some, if not all, unit owners paid monthly assessments of $128 - $130 for at least half of 1984. This fact is probative of the issue of whether a guarantee existed because unit owner assessments must remain constant during a guarantee period. At the Spring 1984 meeting chaired by Mr. Tannenbaum a vote was taken for the first time as to whether reserves should be waived. Although only 21 owners were present in person or by proxy; the vote was tabulated as 12 in favor and 12 opposed. Mr. Tannenbaum, therefore, announced an increase in monthly maintenance payments to fund reserves. Thereafter owners began paying an increased assessment. The fact that the developer-controlled Association collected increased assessments from unit owners during 1984, and had up to the time of the final hearing in this cause made no effort to redistribute those funds suggests that the developer-controlled Association and the developer considered themselves to be under no obligation to keep maintenance assessments at a constant level. There was no guarantee of assessments for common expenses by Tanwin from December, 1980, through at least December, 1983. Since there was no guarantee during the time period in question, Respondent Tanwin is liable to the Respondent Association for the amount of monthly assessments for common expenses on all developer-owned units for which monthly assessments have not been paid. In conjunction with the determination that Tanwin owes money to the Association (and not vice versa), Respondent Tanwin attempted to obtain an offset by claiming the benefit of a management contract between either Tannenbaum or Tanwin and the Association. No such management contract exists, either written or oral. Although a management contract is mentioned in one of the condominium documents there is no indication that one ever came into being, and no written contract was even offered in evidence. Likewise, no evidence was offered to show the terms of any oral contract; rather, Tannenbaum admitted that he may never have told any of the unit owners that there was a management contract. Tannenbaum's testimony is consistent with the fact that no budget or financial statement reflects any expense to the Association for a management contract with anyone. Likewise, the "budget" contained within Condo II's documents recorded on March 11, 1982, specifically states that any management fee expense was not applicable. Lastly, Tannenbaum's testimony regarding the existence of a management contract is contrary to the statement signed by him on February 10, 1981, which specifically advised Petitioner that the Association did not employ professional management. To the extent that Respondent Tanwin attempted to establish some quantum meruit basis for its claim of an offset, it is specifically found that no basis for any payment has been proven for the following reasons: Tannenbaum had no prior experience in managing a condominium, which is buttressed by the number of violations of the condominium laws determined herein; Tannenbaum does not know what condominium managers earn; no delineation was made as to specific duties performed by Tannenbaum on behalf of the Association as opposed to those duties performed by Tannenbaum on behalf of Respondent Tanwin; since there was no testimony as to duties performed for the Association, there was necessarily no testimony as to what duties were performed on behalf of the Association in Tannenbaum's capacity as President of the Association and member of the Association's Board of Directors as opposed to duties allegedly performed as a "manager." Tannenbaum's testimony as to the value of his "services" ranged from $10,000 to $15,000 a year to a lump sum of $60,000; it is interesting to note that the value of his services alone some years exceeded the Association's annual budget. Respondent Tanwin has failed to prove entitlement to an offset amount, either pursuant to contract or based upon quantum meruit. The financial statements of the Association--including balance sheets, statements of position, and statements of receipts and expenditures--for 1980-81 and for 1982 reveal consolidation of the records for Condo I and Condo II in these statements. Additionally, DiCrescenzo admitted that separate accounting records were not maintained for each condominium and Herbert Tannenbaum also admitted to maintaining consolidated records. Accordingly, the developer- controlled Association failed to maintain separate accounting records for each condominium it manages. The By-Laws of the Association provide: SECTION. 7. Annual Audit. An audit of the accounts of the Corporation shall be made annually by a Certified Public Accountant - and a copy of the Report shall be furnished to each member not later than April 1st of the year following the year in which the Report was made. The financial statement for 1981 bears the completion date of February 9, 1983. The 1982 financial statement contains a completion date of March 1, 1983. Both the 1981 and the 1982 statements were delivered to the unit owners in March or April, 1983. Accordingly, Respondents failed to provide the 1981 financial report of actual receipts and expenditures in compliance with the Association's By-Laws. As set forth hereinabove, statutory reserves were not waived during the period of December, 1980 through December, 1983. Being a common expense, reserves must be fully funded unless waived annually. In the instant case, Respondents, rather than arguing that reserves had in fact been fully funded, sought to prove that reserves had been waived during the years in question. The fact that reserves were not fully funded is established by reviewing the financial statements. In accordance with the start-up budgets, reserves were initially established at the level of $15.00 per unit per month. Therefore, during 1981, for Condo I containing sixteen units, the Association's reserve account should contain 16 multiplied by $15.00 per month multiplied by 12 months, or $2,880. Since the Declaration of Condominium for Condo II was not recorded until March 11, 1982, assessments for common expenses including allocations to reserves, were not collected from Condo II during 1981. Therefore, the balance in the reserve account as reflected in the balance sheet for the year 1981 should be no less than $2,880. The actual balance reflected in this account is $2,445. Both Tannenbaum and DiCrescenzo testified that most of the balance in that account was composed of purchaser contributions from the closing of each condominium unit "equivalent to 2 months maintenance to be placed in a special reserve fund" as called for in the purchase contracts. Tannenbaum further admitted that instead of collecting $15.00 per month per unit for reserves, the money that would have gone into the reserve account was used "to run the condominium." Similarly, for the year ending 1982, the balance in the reserve account also reflects that reserves were not being funded. First, the amount of reserves which should have been set aside in 1981 of $2,880 is added to the total amount of reserves which should have been collected for 1982 for Condo I ($2880), giving a total figure of $5,760. To this figure should be added the reserves which should have been collected from units in Condo II during 1982. This figure is derived by multiplying the total number of units in Condo II, 18 units, by $15.00 per unit multiplied by 8 months (since Condo II was recorded in March of 1982) to yield a figure for Condo II of $2,160. Adding total reserve assessments for Condo I and II, $2,160 plus $5,760 equals $7,920 the correct reserve balance at the close of 1982. The actual balance for the period ended December 31, 1982, is reflected to be $4,138. Similarly, the amount of reserves required for Condos I and II as of December 31, 1983, can be calculated using the same formula. Although the 1983 financial statement prepared in 1984 reflects the existence of a funded reserve account, both DiCrescenzo and Tannenbaum admitted there was no separate reserves account set up during the time period involved herein. Statutory reserves were not waived and were not fully funded for the period of December, 1980 through December, 1983. All parties hereto presented much evidence, unsupported by the books and records of the corporations, for the determination herein of the amounts of money owed by Respondent Tanwin to the Association to bring current the total amount which Tanwin should have been paying to the Association from the inception of each condominium for monthly maintenance on condominium units not yet sold by the developer, together with the amount owed by Tanwin to the Association so that a separate reserve account can be established and fully funded for all years in which the majority of unit owners including the developer have not waived reserves. No findings of fact determining the exact amount Tanwin owes to the Association will be made for several reasons: first, the determination of that amount requires an accounting between the two Respondents herein which is a matter that can only be litigated, if litigation is necessary, in the circuit courts of this state; second, the determination of the amount due between the private parties hereto is not necessary for the determination by Petitioner of the statutory violations charged in the Amended Notice to Show Cause; and third, where books and records exist; one witness on each side testifying as to conclusions reached from review of those records, even though the witnesses be expert, does not present either the quantity or the quality of evidence necessary to trace the income and outgo of specific moneys through different corporate accounts over a period of time, especially where each expert opinion is based upon questionable assumptions. It is, however, clear from the record in this cause that Respondent Tanwin owes money to the Respondent Association and further owes to the Respondent Association an accounting of all moneys on a specific item by item basis.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law it is, therefore, RECOMMENDED that a Final Order be entered: Finding Respondent Tanwin Corporation guilty of the allegations contained in Counts 1-7 of the Amended Notice to Show Cause; Dismissing with prejudice Count 8 of the Amended Notice to Show Cause; Assessing against Respondent Tanwin Corporation a civil penalty in the amount of $17,000 to be paid by certified check made payable to the Division of Florida Land Sales, Condominiums and Mobile Homes within 45 days from entry of the Final Order herein; Ordering Respondents to forthwith comply with all provisions of the Condominium Act and the rules promulgated thereunder; And requiring Tanwin Corporation to provide and pay for an accounting by an independent certified public accountant of all funds owed by the developer as its share of common expenses on unsold units and the amount for which Tanwin is liable in order that the reserve account be fully funded, with a copy of that accounting to be filed with Petitioner within 90 days of the date of the Final Order. DONE and RECOMMENDED this 9th day of August, 1985, at Tallahassee, Florida. LINDA M. RIGOT, Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 9th day of August, 1985. COPIES FURNISHED: Karl M. Scheuerman, Esquire Thomas A. Bell, Esquire Department of Business Regulation 725 South Bronough Street Tallahassee, Florida 32301 Joseph S. Paglino, Esquire 88 Northeast 79th Street Miami, Florida 33138 E. James Kearney, Director Department of Business Regulation Division of Florida Land Sales Condominiums and Mobile Homes 725 South Bronough Street Tallahassee, Florida 32301 Richard B. Burroughs, Jr., Secretary Department of Business Regulation 725 South Bronough Street Tallahassee, Florida 32301 ================================================================= AGENCY FINAL CONSENT ORDER ================================================================= STATE OF FLORIDA DEPARTMENT OF BUSINESS REGULATION DIVISION OF FLORIDA LAND SALES, CONDOMINIUMS AND MOBILE HOMES DEPARTMENT OF BUSINESS REGULATION, DIVISION OF FLORIDA LAND SALES, CONDOMINIUMS AND MOBILE HOMES, Petitioner, CASE NO. 84-0437 DOCKET NO. 84001MVC TANWIN CORPORATION and VISTA DEL LAGO CONDOMINIUM ASSOCIATION, INC. Respondents. / FINAL CONSENT ORDER The Division of Florida Land Sales, Condominiums and Mobile Homes, (hereinafter the Division), Vista Del Lago Condominium Inc., (hereinafter the Association), and Tanwin Corporation, (hereinafter Tanwin), hereby stipulate and agree to the terms and issuance of this Final Consent Order as follows: WHEREAS, the Division issued a Notice to Show Cause directed to Respondents and, WHEREAS, after issuance of the Recommended Order in this cause, the parties amicably conferred for the purpose of achieving a settlement of the case, and WHEREAS, Tanwin is desirous of resolving the matters alleged in the Notice to Show Cause without engaging in further administrative proceedings or judicial review thereof, NOW, THEREFORE, it is stipulated and agreed as follows:
The Issue The issue for resolution in this proceeding is whether Respondent committed the violations alleged in the Notice to Show Cause: Failure to deliver to the association a review of financial records for the required period. Section 718.301(4)(c) F.S. (1981). Failure to fund reserves. Section 718.112(2)(k) F.S. (1981). Failure to turn over converter reserves. Section 718.301(4)(d) F.S. (1981). Charging the association $10,000 for management services without documentation of the contract for the services. Section 718.115(1) F.5. (1981). If it is determined that violations occurred, the remaining issue is what corrective action and civil penalties are appropriate.
Findings Of Fact The parties have stipulated to the following facts: Batura Enterprises, Inc. (Batura) is the developer, as defined in Section 718.103(13) F.S., of a residential conversion condominium known as English Park, in Melbourne, Florida. The condominium association for English Park was incorporated on December 2, 1980. The declaration of condominium for English Park was recorded in the public records on January 22, 1981. Turnover of control of the condominium association from control by the developer to control by unit owners other than the developer pursuant to Section 718.301 F.S., occurred on May 31, 1982. (Joint exhibit #1.) A review of financial statements dated January 19, 1983, was delivered to the condominium association. The review covers a ten-month period commencing August 1, 1981, and ending May 31, 1982. (Joint Exhibit #4.) A supplemental turnover review, performed during the course of this litigation and signed on February 7, 1987, covers the period from incorporation of the condominium association on December 2, 1980, through July 31, 1981. (Joint exhibit #6.) The function of the review is to provide an accounting during the time that the developer is responsible for the association, and to insure that assessments are charged and collected. (Testimony of Eric Larsen, C.P.A., qualified without objection as an expert in condominium accounting.) The proposed operating budget included $15,248.00 for an annual reserve account ($1,270 per month). (Joint exhibit *5, p. 83.) Based on this, the reserve account from the creation of the condominium, January 22, 1981, until the date of turnover, May 31, 1982 should have been $20,688.71 (sixteen months and nine days). The "election period" provided in Section 718.116(8)(a) F.S. (1979) is addressed in the Condominium documents, p. 31: F. Common Expenses payable by the Developer. Until the sale of the first Unit in the Condominium, Developer shall be solely responsible for all expenses of the Condominium. Following the first closing, the Unit Owner in whom title shall have been vested shall be responsible for his proportionate share of Common Expenses, based upon his percentage interest in the Common Elements. The Developer shall be excused from payment of the share of the Common Expenses and Assessments relating to the unsold units after the recording of this Declaration for a period of time which shall terminate on the first day of the fourth calendar month following the month in which the closing of the sale of the first unit occurs. The Developer shall pay the portion of expenses incurred during that period which exceeds the amount assessed against other Unit Owners. (Joint Exhibit #5.) The first units were sold in April 1981. (Joint Exhibit #2, p. 2). Therefore, the "election period" ended on August 1, 1981. The turnover review does not reflect the existence of the $20,688.71 reserve fund at the time of turnover on May 31, 1982. Instead, it reflects a certificate of deposit in the amount of $18,795.00 that was created as a "reserve for transition operations". This was derived from initial payments made by the owners to the association to provide working capital for the start- up phase. (Joint Exhibit #4., testimony of Philip Batura.) These "initial assessments" are addressed in the condominium documents: G. Initial Assessments. When the initial Board, elected or designated pursuant to these By-laws, takes office, it shall determine the budget as defined in this Section for the period cornencing 30 days after their election or designation and ending on the last day of the fiscal year in which their election or designation occurs. Assessment shall be levied against the Unit Owners during said period as provided in this Article. The Board will levy an "initial assessment" against the initial purchaser at the time he settles on his purchase contract. Such initial assessment shall be in an amount equal to two months regular assessments, and shall be utilized for commencing the business of the Association and providing the necessary working fund for it. In addition, the initial purchaser shall pay the pro-rated portions of the monthly assessments for the remaining balance of the month in which closing takes place. The initial assessment and other assessments herein provided shall be paid by each subsequent purchaser of a Unit; no Unit Owner shall be entitled to reimbursement from the Association for payment of the initial assessment. Developer shall not be liable to pay any initial assessment. (Emphasis added) (Joint Exhibit #5, p. 31.) Based on the above, it is apparent that none of the $18,975.00 was contributed by the developer. Between April 1, 1981, and August 1, 1981, 60 percent of the units were sold. (Testimony of Philip Batura. Joint exhibit #4, attachment C.) Therefore at any given point in time between those dates, at least 40 percent of the units were in the hands of the developer. Between August 1, 1981 and turnover at the end of May 1982, an additional 30 percent of the units were sold, for a total of 90 percent. (Testimony of Philip Batura.) This means a minimum of 10 percent of the units were in the hands of the developer at any point between those dates. While Philip Batura claims that reserves were waived by a majority of members pursuant to Section 718.1l2(2)(k), F.S. (1981), he produced no evidence of that. He admitted that the action is not reflected in association minutes. (Joint Exhibit #1.) Reserves are included in the proposed budget filed with the condominium documents. (Joint Exhibit #5.) Reserves are noted in the supplemental financial review provided by the developer: ENGLISH PARK CONDOMINIUM ASSOCIATION, INC. NOTES TO FINANCIAL STATEMENTS (UNAUDITED) (SEE ACCOUNTANT'S REVIEW REPORT) JULY 31, 1981. NOTE 1 SUMMARY OF SIGNIFICANT ACCOUNTING POLICIES RESERVES - The Association's policy is to currently fund all expected replacements and major repairs of commonly owned assets. Should restricted funds available to meet future replacements and major repairs prove to be insufficient, the Association's Declaration provides that special assessments may be made against the unit owners. * * * (Joint Exhibit #6.) The purpose for a reserve account is to insure that funds are available in the future for replacements and deferred maintenance on the common elements. (Testimony of Eric Larsen) In addition to the statutorily-required reserves for exterior painting, roof replacement and repaving, the English Park proposed budget includes reserves for the swimming pool and "townhome hot water tanks". According to Philip Batura the budget was not amended prior to turnover. A separate reserve was required at the time of turnover because this was a condominium converted from apartments. (Testimony of Philip Batura) The only converter reserve applicable was a reserve for roofing in the amount of $6,114.00. (Joint exhibit #2, p. 2 of 11.) The Respondent has admitted its failure to turn over this reserve, but claims the obligation is offset by $10,000 in management fees which it asserts the association owes. (Joint Exhibit #1, p. 2 of 6.) Philip Batura is President of Batura Enterprises, Inc. He was elected or designated to the association board of directors at some point prior to turnover and remained on the board at turnover as he still owned some units. He mostly ran the association until the turnover in May 1982. (Testimony of Philip Batura.) Batura claims that there was an oral agreement for management services for $1,000.00 per month, commencing on August 1, 1981, between the association and Batura Enterprises, Inc. He said this was never paid by the association as there was not enough income to cover the costs of operation. The financial review covering the period August 1, 1981 to May 30, 1982, addresses the accrual of a management fee of $10,000, "...per the proposed operating budget which was recorded in the original declaration." (Joint Exhibit #4.) It is unclear where this figure was derived, as the budget does not reflect a $1,000.00 per month expense line item for management services. Included in the condominium documents is a proposed contract between the association and Eussel G. Hurren for management services. Both the fee and the term of the contract are left blank. The contract form that was filed is not signed, nor was a contract with this individual ever signed. (Testimony of Philip Batura.) The Declaration of Condominium permits a contract with a professional managing agent, including the developer. (Joint - Exhibit #5, p. 25.) No competent evidence was adduced by either party that this provision was ever fulfilled.
Recommendation Final hearing in the above-styled action was held on February 10, 1987, in Cocoa, Florida, before Mary Clark, Hearing Officer of the Division of Administrative Hearings. The parties were represented as follows: For Petitioner: Karl M. Scheuerman, Esquire Department of Business Regulation 725 South Bronough Street Tallahassee, Florida 32399-1007 For Respondent: James S. Cheney, Esquire Post Office Drawer 10959 Melbourne, Florida 32902-1959
The Issue Whether Respondent, in providing housing or related services to Petitioner, failed to make reasonable accommodations for Petitioner’s disability.
Findings Of Fact Respondent is a Florida corporation doing business pursuant to chapter 718, Florida Statutes, as Daytona Beach Riverhouse Condominium Association. Respondent is responsible for the day-to-day operations and management of Daytona Beach Riverside Condominiums. In May 2009, Petitioner rented Daytona Beach Riverhouse Condominium Unit B-103 from a third party who owns the unit. In that same month, Petitioner signed an application for lease/purchase with Respondent, which contains an acknowledgment of his receipt of the condominium association’s rules and regulations, declaration of condominium, and by-laws. There is also a pet registration form attached to the application which identifies one pet, a Jack Russell named “Peanut.” See Exhibit P-1. Petitioner alleges that he has a brain injury that requires him to have a dog as a service animal to assist him in his daily living. At the final hearing, Petitioner provided his own testimony to support his claim of a brain injury and need for a service dog. Petitioner’s testimony in that regard was unrebutted and is therefore credited. In addition, Respondent’s manager, Mary Cash, acknowledged receiving a letter from Petitioner’s doctor advising that Petitioner had a brain injury and needed a service dog. Petitioner otherwise, however, failed to prove the allegations of the Complaint. According to the Complaint, Respondent failed to make reasonable accommodation by refusing to allow Petitioner to use his two service animals (dogs) required because of Petitioner’s disability. At the final hearing, Petitioner did not submit any evidence indicating that Respondent failed to allow him to have one or more service dogs. Instead, Petitioner admitted that he lives in the condominium with two dogs, a service dog and a pet. Rather than submitting evidence in support of his Complaint, during the final hearing, Petitioner testified that Respondent, through employees, discriminated against him by harassing his dogs, entering his condominium unit without his permission, and moving or hiding his personal property within the unit. According to Petitioner, the personal property that Respondent moved in his condominium included his medications, a showerhead, a light in his dining room, and one of his dogs that he later found shut inside his walk-in closet. Respondent, through the testimony of Mary Cash, denied the allegations of the Complaint and testified that none of Respondent’s agents or employees had ever entered Petitioner’s condominium without his permission or moved any of Petitioner’s personal property. The testimony of the other witnesses besides Petitioner corroborated Mary Cash’s testimony. Mary Cash’s testimony is credited over Petitioner’s. While Petitioner may have believed that Respondent was harassing his dogs and going into his apartment, the undersigned finds that Petitioner’s testimony in that regard was based on mere speculation. Other than his own testimony, Petitioner did not present any witness or evidence which supported his allegations against Respondent. The letter dated May 21, 2010, from Mary Cash to Petitioner, is written on behalf of Respondent. The letter discussed issues related to Petitioner’s two dogs causing disturbances. The letter also notified Petitioner that Respondent did not have a key to his top door lock and did not have a telephone number to reach Petitioner. The letter does not support the Complaint or any other allegation raised by Petitioner in this proceeding. In sum, Petitioner failed to submit evidence to support of his claim that Respondent failed to make reasonable accommodation for his disability.
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 Complaint and Petition for Relief. DONE AND ENTERED this 25th day of March, 2011, in Tallahassee, Leon County, Florida. S JAMES H. PETERSON, 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 25th day of March, 2011. 1/ Mary Cash is Respondent’s manager. At the final hearing, Ms. Cash testified on behalf of Respondent. 2/ Unless otherwise indicated, all references to the Florida Statutes are to the 2010 version. COPIES FURNISHED: Jerry McIntire 719 South Beach Street, B-103 Daytona Beach, Florida 32114 D. Michael Clower, Esquire 322 Silver Beach Avenue Daytona Beach, Florida 32118 Denise Crawford, Agency Clerk Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301 Larry Kranert, General Counsel Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301
