The Issue Whether Petitioners, Charles and Andrea Abraham, were subject to a discriminatory housing practice by Respondent, Sandy Cove 3 Association, Inc., based on their national origin, in violation of Florida's Fair Housing Act. 1 All statutory references are to Florida Statutes (2020), unless otherwise noted.
Findings Of Fact Sandy Cove 3 ("Sandy Cove") is a small development of condominiums located in Sarasota, Florida. Sandy Cove was built in 1973 and consists of 16 units. Sandy Cove is governed and operated by the Association. Petitioners own a two-bedroom condominium in Sandy Cove. Petitioners purchased their unit (#220) in 2009. They primarily use their condominium as rental property. At the final hearing, Petitioner Charles Abraham testified that he and his wife, Andrea, reside primarily in Maryland and Hungary. The focus of this dispute centers on a corkscrew of copper water pipes that runs from the top of the water heater in Petitioners' condominium into the primary water pipes within the unit's walls. This matter specifically concerns who should pay to replace these pipes. Each party believes that the other side should bear the costs. In their initial housing discrimination complaint filed with the Commission, Petitioners attribute the Association's refusal to replace the copper pipes in their condominium to discrimination based on their national origin (Hungarian). At the final hearing, Mr. Abraham testified that, sometime in 2016, Petitioners noticed that the water pipes connected to their water heater were beginning to show ominous signs of age and wear. The bends and joints of several pipe sections had turned green and were developing a buildup of corrosion. Petitioners felt that the pipes were a "disaster" waiting to happen. Mr. Abraham stated that initially he attempted to repair the pipes himself by applying glue to several connections. However, because he noticed a small amount of water leakage "from time to time," he believed that the pipes were in real danger of cracking or popping open. In 2018, Petitioners turned to the Association for assistance in fixing the potential plumbing problem. On November 28, 2018, Petitioners wrote the Association requesting it to repair their pipes. Thereafter, according to Mr. Abraham, the parties exchanged "around 100 emails" discussing how the pipes should be fixed, and who should pay for the repairs. Eventually, in the summer of 2019, Sandy Cove management contacted Daniel's Plumbing Service to inspect Petitioners' plumbing situation. On July 29, 2019, a plumber from Daniel's Plumbing Service examined Petitioners' water heater and the pipes attached to it. Following his inspection, the plumber wrote on the service invoice: Arrived and found corrosion on copper adapters to water heater. Water heater is 30 gallon electric that is 19 years old. Water heater should be replaced. Relief valve is 1/2" which should be changed to 3/4". Gate valve to water heater is no good and also needs to be replaced. No leaks at this time. The plumber then added: Notes-Dylan from management said to pick up-no further work is to be done at this time. He said work that is to be done is homeowners responsibility. Mr. Abraham testified that, after the plumbing inspection, the Association informed him that the pipes located inside his condominium were his responsibility as the unit owner, not the Association's responsibility. Mr. Abraham declared that the Association has refused to pay to replace the copper pipes in his unit. Mr. Abraham claimed that the Association's response was contrary to what he had seen and heard regarding the water pipes in other units. He insisted that the Association has paid to replace pipes for other condominium owners within Sandy Cove. Mr. Abraham specifically believed that in 2016, the Association repaired or replaced pipes with similar issues in units 115, 116, 117, 215, and 216. To support his position, Mr. Abraham relayed that, in 2017, the Association collected a special assessment from every unit owner specifically to cover the plumbing issues at Sandy Cove. Mr. Abraham recounted that he personally paid the Association $2,100. Consequently, Petitioners were quite frustrated that, after paying the Association several thousand dollars specifically for Sandy Cove plumbing problems, the Association refused his request for assistance to fix his own copper pipes. Seeking to confirm the necessary repairs, Petitioners hired two additional plumbers to inspect the water pipes in their unit. A plumber from Michael Douglas Plumbers visited Petitioners' condominium on September 9, 2020, and documented the following: Proposal to replace copper piping in water heater closet (very corroded and recommend replacing) * * * All piping from wall to water heater to be in PEX with new ballvalves Water heater is 20 yrs old 30 gal low (30 amp breaker) recommended replacement. * * * Replacement will cost … $1511.76 … this price includes replacing pipes as well. Petitioners also introduced the testimony of Robert DeForge, the current Operations Manager for Daniels Plumbing Service. Mr. DeForge was not the plumber who inspected Petitioners' water heater in July 2019. However, as a Master Plumber with over 30 years of plumbing experience, he credibly expounded on the description written on the July 29, 2019, invoice. Mr. DeForge explained that copper pipes are no longer favored within the plumbing industry. Instead, the current industry standard is to use PVC pipes (polyvinyl chloride – a synthetic plastic) for cold water pipes and CPVC pipes for hot water (CPVC is designed to handle a hotter temperature range). Regarding the status of Petitioners' pipes, Mr. DeForge confirmed that copper pipes can corrode over time. Following his review of a photograph of Petitioners' copper pipes and water heater, Mr. DeForge opined that the corrosion about which Petitioners complain did not result from a water leak, but is due to electrolysis from metal on metal contact (galvanized pipe to copper pipe). Mr. DeForge further remarked that corrosion can lead to water leaks, which will require the pipes to be replaced. At that point, if Petitioners are experiencing leaking pipes, Mr. DeForge would recommend that the current copper pipes be replaced with PVC/CPVC pipes. Mr. DeForge also commented that a pipe replacement job would likely increase the size of the pipes connected to the water heater. The 1/2" copper pipes currently attached to Petitioners' water heater would be replaced with 3/4" PVC/CPVC pipes. Mr. DeForge added that the pipes could be replaced without having to displace Petitioners' current water heater. The procedure would require an adapter to connect the 3/4" PVC pipe to the 1/2" relief valve affixed atop the existing water heater. Addressing the cost of the plumbing services to rectify the problem, Mr. DeForge testified that simply replacing the pipes above the water heater will cost about $150. To replace everything (new pipes and new water heater), the plumbing services would cost approximately $1,000 to $1,200. Mr. Abraham expressed that Petitioners' ultimate goal is to have the Association pay to replaced the copper pipes in his unit. Regarding the water heater, Mr. Abraham stated that he understands that the old water heater is his responsibility as the unit owner. Therefore, Petitioners are prepared to bear that expense. That being said, Mr. Abraham asserts that the water heater is functioning perfectly fine at present. Therefore, the only problem that needs to be remedied at this moment is the condition of the aging copper pipes. In doing so, however, Mr. Abraham added that the current plumbing situation is complicated by the fact that, to install new PVC/CPVC pipes, the relief valve connecting the water heater to the (new) pipes should be replaced. And, if the relief valve must be replaced, then Mr. Abraham asserts that the water heater should be replaced, as well. Mr. Abraham estimates that the entire service job will cost between $1,500 and $2,000. John Meuschke testified on behalf of the Association. Mr. Meuschke currently serves as president of the Association's board of directors, a position he has held for over 11 years. He also owns a unit in Sandy Cove. Mr. Meuschke stated that, generally, the Association assumes all financial responsibility for maintaining and repairing the "common elements" within Sandy Cove. Mr. Meuschke explained that the "common elements" consist of everything outside the individual condominium units. Conversely, the individual owners are responsible for the maintenance and repair costs for issues occurring inside their units' walls. Regarding Petitioners' specific complaint, Mr. Meuschke recounted that the Association received Petitioners' 2018 correspondence regarding a water leak in their unit. Mr. Meuschke advised, however, that the Association declined to pay for the requested repairs because the copper pipes which Petitioners sought to replace were located inside Petitioners' unit, directly above the water heater to be precise. Accordingly, Mr. Meuschke contended that Petitioners were responsible for any costs associated with the pipes' repair or replacement. Conversely, Mr. Meuschke stated that if the water pipes were leaking inside the walls that divide the separate units, the Association would have assumed financial responsibility for any plumbing costs. Because the inspection by Daniels Plumbing Service revealed, "no leaks at this time," however, Mr. Meuschke asserted that nothing indicated that the Association should pay for any repairs involving Petitioners' copper pipes. Further, replacing a unit's water heater is the sole responsibility of each condominium owner, because it too is located within the confines of an individual unit at Sandy Cove. To support the Association's position, Mr. Meuschke referenced the Declaration of Condominium of Sandy Cove 3 (the "Declaration"). In determining who is financially responsible for repairs, Mr. Meuschke pointed to Article 6, entitled Maintenance, Alteration and Improvement, which provides: By the Association. The Association shall maintain, repair and replace at the Association's expense: All portions of a Unit, except interior surfaces, contributing to the support of the Unit, which portions shall include but not be limited to load- bearing columns and load-bearing walls. All … plumbing, … and other facilities for the furnishing of utility services contained in the portions of a Unit maintained by the Association, and all such facilities contained within a Unit that service part or parts of the Condominium other than the Unit within which contained. * * * By the Unit Owner. The responsibility of the Unit Owner shall be as follows: To maintain, repair, and replace, at his expense, all portions of his Unit except portions to be maintained, repaired and replaced by the Association. Such shall be done without disturbing the rights of other Unit Owners. * * * 6.5) Common Elements, By the Association. The maintenance and operation of the common elements shall be the responsibility of the Association as a common expense. Mr. Meuschke pithily explained that a unit owner owns everything from the paint on the Unit's walls inward, and the Association is responsible for everything from the walls out. Mr. Meuschke also voiced that the Association collects a monthly assessment from each condominium owner in Sandy Cove. This money is designated for the Association's annual operating budget. The assessments also pay for the upkeep of the Sandy Cove "common elements," as well as any necessary repairs of the same. Mr. Meuschke relayed that occasionally the Association imposes a special assessment against the unit owners to generate additional funds for the Association's operating budget. Pertinent to Petitioners' dispute, in March 2017, the Association levied an additional charge on all Sandy Cove condominiums. Mr. Meuschke confirmed that owners of one-bedroom units were assessed in the amount of $1,908, and two-bedroom units (including Petitioners) were tasked to pay an additional $2,100. The purpose of the Special Assessment was to replenish the Association's reserves, as well as pay for several unexpected plumbing issues. Mr. Meuschke explained that these plumbing issues concerned the original cast iron pipes that ran within the walls between the units. Several of these pipes had deteriorated and burst causing a number of active leaks. Because the cast iron pipes were not located inside the individual units, the Association considered them "common elements" and assumed the repair/replacement costs as an Association responsibility. None of the special assessment funds, however, were designated for repairs to Petitioners' unit or to pipes inside any other unit. To conclude, Mr. Meuschke steadfastly refuted Petitioners' allegation that the Association's decision regarding Petitioners' request for plumbing repairs was unfair. He specifically rejected Petitioners' claim that the Association took any action against Petitioners, or denied them services, based on their national origin. On the contrary, Mr. Meuschke asserted that the Association would have made the same decision regarding any unit owners' request to replace the copper pipes above the water heater located inside the boundaries of their condominium. Mr. Meuschke maintained that the Association's common and consistent practice has been to only pay to repair plumbing issues located in the Sandy Cove "common elements." Mr. Meuschke maintained that the Association has never paid to replace pipes or repair plumbing problems that have occurred inside an individual unit. Instead, the unit owner has always been responsible for that repair or maintenance activity. Petitioners offered no evidence to prove otherwise. Based on the competent substantial evidence in the record, the preponderance of the evidence does not establish that the Association discriminated against Petitioners based on their national origin. Accordingly, Petitioners failed to meet their burden of proving that the Association committed unlawful discrimination in violation of the FHA.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Florida Commission on Human Relations issue a final order determining that Respondent, Sandy Cove 3 Association, Inc., did not commit a discriminatory housing practice against Petitioners and dismissing their Petition for Relief. 4 See, e.g., Gooden v. Internal Rev. Serv., 679 Fed. Appx. 958, 966 (11th Cir. 2017)(“[G]eneral allegations, based on mere speculation and hunches, in no way establish that any alleged [discriminatory activity] was race-, gender-, or disability based.”). DONE AND ENTERED this 10th day of February, 2021, in Tallahassee, Leon County, Florida. COPIES FURNISHED: Charles Abraham Andrea Abraham Post Office Box 162 Highland, Maryland 20777 Brett Stolson Argus Property Management, Inc. 2477 Stickney Point Road, Suite 118A Sarasota, Florida 34231 Robert Braland 4413 Claybrooke Drive Lothian, Maryland 20711 S J. BRUCE CULPEPPER Administrative Law Judge 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 10th day of February, 2021. Tammy S. Barton, Agency Clerk Florida Commission on Human Relations 4075 Esplanade Way, Room 110 Tallahassee, Florida 32399-7020 Paul Edward Olah, Esquire Law Offices of Wells Olah, P.A. 1800 Second Street, Suite 808 Sarasota, Florida 34236 Cheyanne Costilla, General Counsel Florida Commission on Human Relations 4075 Esplanade Way, Room 110 Tallahassee, Florida 32399
The Issue The issue presented for determination in this proceeding is whether the City of Bartow is entitled to a renewal of its operating permit to discharge into the Peace River effluent from its sewage treatment plant at the design capacity of 2.75 million gallons per day.
Findings Of Fact Upon consideration of the oral and documentary evidence adduced at the hearing, the following facts are found: Petitioner owns and operates a sewage treatment plant located at 2505 East Wabash Avenue in Bartow, which discharges effluent into the Peace River. On April 13, 1977, petitioner applied to respondent for a renewal of its operating permit, with the plant designed to treat and discharge a maximum of 2.75 million gallons of wastewater per day. By letter dated May 11, 1977, respondent notified petitioner of its intent to enter a final order denying the permit application for the reason that petitioner's proposed discharge at design capacity (2.75 mgd) would reduce the quality of the Peace River below its established classification. The respondent was specifically concerned with the deleterious impact which operation of petitioner's plant at design flow would have upon the level of dissolved oxygen in the Peace River. The May 11, 1977, letter also set a wasteload allocation which would have to be met by petitioner's plant in order not to depress the water quality of the Peace River below established levels. The allocations were later revised to provide for secondary treatment with nitrification. As noted above, these allocations were challenged in a Section 120.56, Florida Statutes, proceeding. By final order entered on September 14, 1978, it was held that said wasteload allocations did not constitute a rule within the meaning of Chapter 120 and thus were not subject to an attack of invalidity on the ground that they were not adopted pursuant to the rulemaking requirements of Section 120.54, Florida Statutes. The Peace River is classified as a Class III water body. This classification contains criteria designed to promote the use of the water for recreational purposes, including swimming, and for the maintenance of a well- balanced fish and wildlife population. Rule 17-3.09, Florida Administrative Code. In Class III waters, the concentration of dissolved oxygen is not to average less than 5 milligrams per liter (mg/l) in a 24 hour period and should never be less than 4 mg/l. Water quality problems exist in the Peace River even where no sewage treatment plants are discharging, and the River does not consistently meet the dissolved oxygen standards for Class III waters. At low flow conditions, the dissolved oxygen content in the River ranges from two to three mg/l up to six to seven mg/l. Sewage treatment plant effluent contains components known as total Kjeldahl nitrogen (TKN) and biochemical oxygen demand (BOD5). When these components decay they use up free dissolved oxygen, thereby depressing dissolved oxygen levels. In order to maintain the desirable dissolved oxygen (DO) level, it is necessary to control the amount of oxygen demanding substances such as TKN and BOD5 entering the receiving waters. The limitation on the concentration of such effluent components which must be met to assure that water quality standards will not be depressed below the level set for a given classification are known as wasteload allocations. Wasteload allocations are calculated by the respondent for each sewage treatment plant and industrial discharger which discharge effluent into the surface waters of the state. They are determined by use of a mathematical computer model based upon the physical, biological and chemical characteristics of the receiving body of water. In this case, the water system modeled was a segment of the Peace River extending from approximately 1.4 miles above petitioner's discharge point to approximately 46 miles downstream. The respondent conducted two surveys during low flow conditions in November of 1976. During low flow conditions, tributary input is minimal and nonpoint contributions are almost negligible. Point source contributions such as sewage treatment plants and industrial dischargers have their greatest impact during low flow conditions. Based upon the model run by respondent, respondent predicted that the operation of petitioner's plant at design capacity (2.75 mgd) would have a significant deleterious impact upon dissolved oxygen during low flow conditions. Specifically, respondent found that petitioner's discharge causes a DO drop of one milligram per liter at a point less than five miles from the petitioner's point of discharge and a drop from 2 1/2 mg/l to zero from mile ten through fifteen. Much of the testimony presented by the petitioner at the hearing was directed to the reliability of the data used by respondent in its model. Petitioner presented evidence tending to illustrate that nonpoint sources in the River's tributaries are the cause of the depressed DO in the Peace River. However, as noted above, the respondent's model utilized low flow conditions wherein such sources are almost nonexistent. The evidence further tends to illustrate that several coefficient values utilized by the respondent in its model resulted in a less restrictive allocation for petitioner. Even on the date of the hearing, Respondent's witnesses were satisfied and confident that there were no technical inaccuracies in the model used to develop the wasteload allocations for petitioner's plant. Petitioner adduced no conclusive evidence that any of the data or assumptions made by the respondent were erroneous. The petitioner's plant presently discharges about 1.44 million gallons of wastewater per day. This meant that Bartow is presently operating at approximately 50 percent of its capacity. On a monthly average, petitioner's treatment level is well in excess of ninety percent. Five years from now, in 1983, petitioner projects that its flow will approximate 1.7 million gallons per day. It is predicted that petitioner will not reach its design capacity of 2.75 million gallons per day for twenty years. As, noted above, the respondent's model predicted dissolved oxygen violations based upon the design capacity of 2.75 mgd, for which the petitioner applied. The respondent ran no intermediate low alternatives to predict how close to design capacity the petitioner could come before a violation occurred. Nor did respondent find present DO violations directly attributable to petitioner's discharge. In order to meet the wasteload allocations calculated by the respondent, it will be necessary for petitioner to make capital expenditures approximating $1,676,400.00. This figure is for a discharge of about 1.9 mgd. Such an expenditure would result in an increase to consumers of about 50 percent per month. The least expensive means of disposing of effluent would be for petitioner to recycle it to area phosphate mining companies, and not to discharge into the Peace River at all.
Recommendation Based upon the findings of fact and conclusions of law recited herein, it is recommended that the application of the petitioner to discharge effluent into the Peace River at design capacity (2.75 million gallons per day) be denied. It is further recommended that petitioner submit to the respondent a revised application which clearly indicates the amount of discharge expected for the permit period, and that respondent review said application anew. Respectfully submitted and entered this 4th day of October, 1978, in Tallahassee, Florida. DIANE D. TREMOR, Hearing Officer Division of Administrative Hearings Room 530, Carlton Building Tallahassee, Florida 32304 (904) 488-9675 COPIES FURNISHED: William S. Blakeman Campbell, Dunlap, Coward and Blakeman Post Office Box 916 Lakeland, Florida 33802 Louis F. Hubener Twin Towers Office Bldg. 2600 Blair Stone Road Tallahassee, Florida 32301 Mr. Jay W. Landers Secretary, Department of Environmental Regulation 2600 Blair Stone Road Tallahassee, Florida 32301
