Findings Of Fact Background Respondents, John F. and Chere Kuller, were minority partners in a limited partnership which developed and constructed a seventeen unit condominium project known as Bahia East Condominium (project).2 Thee precise location of the project was not disclosed, but it is in the Fort Walton Beach area. Respondents, as developers, are subject to the regulatory requirements of petitioner, Department of Business Regulation, Division of Florida Land Sales, Condominiums and Mobile Homes (Division). The project was completed in 1979, and its declaration was filed on September 28, 1979. Units immediately went on sale. Financing for these units we" arranged with a Pensacola lending institution, and based upon that institution's commitment, contracts for the sale of all seventeen units were executed by prospective buyers. When the institution experienced financial problems and could not honor its commitment, none of the buyers purchased units. Because of this, the first sale did not occur until October 4, 1980. A developer is required to adhere to a number of Division requirements, including the payment of monthly assess meets on developer-owned units, funding a repair reserve, and furnishing annual financial statements to all unit owners. This proceeding stems from a complaint filed by certain unit owners after the developers relinquished control of the project to the homeowners' association on May 11, 1984. Prior to that time, respondents controlled the board of directors of said association, and were responsible for the keeping of its books and records. Count I - Monthly Assessments As a general rule, a developer is not liable for the payment of monthly assessments on all unsold units until the first calendar date of the fourth month following the sale of the first unit. This ninety day grace period is commonly referred to as the election period. However, the developer may be excused from future payments if the developer guarantees to each purchaser that the monthly assessment will not increase, for a certain period of time, and obligates himself during this period of time to pay all common expenses incurred above the amount of assessments received from unit owners. In the case at bar, there was no written or oral guarantee by respondents to freeze the monthly assessments. This was confirmed through testimony of a unit owner, and evidenced by a monthly assessment increase that took effect in March, 1984, or prior to the turnover date. Between October, 1980 and March, 1984, the cost of the monthly assessment varied with the size of the unit, and ranged from $27.50 for the smallest unit, to $55.00 for a two bedroom, one bath unit, to $82.50 for the largest unit. Since no guarantee was made, respondents were obligated to begin paying assessments on their unsold units in February, 1981. However, they failed to do so. Instead, they calculated their other expenses in maintaining the project, and credited the amount of monthly assessments owed against these other expenses. Since other expenses always exceeded the amount of assessments owed, no funds were ever specifically earmarked into the monthly assessment account. Had such assessments been paid from February, 1981 through May 11, 1984, which is the turnover date, respondents' obligation would have been $15,948.64. This amount was derived from records given by respondents to the association at turnover and was not credibly contradicted. Count II - Reserves The complaint charges that respondents "failed to submit reserves annually nor fund reserves as required." According to Division requirements, a developer is required to establish and fund a reserve to cover future repairs from the date of declaration until the end of the election period. These funds are then turned over to the association. Beginning after the election period, a developer is required to establish and fund a reserve account in an amount prescribed by the project's declaration. In this case, the project's recorded declaration provided that the reserve had to equal 10% of the total annual monthly assessments paid by unit owners. Therefore, respondents were required to establish a reserve no later than February, 1981, and to fund it by setting aside 10% of the total monthly assessments. Such an account was timely established by respon- dents at a Pensacola bank in January, 1981 in the amount of $480. This amount was spent within three or four months on repairs to an air-conditioner generator and the purchase of reserved parking signs. No additional funds were placed in the reserve account after January, 1981. Each year a projected annual budget was prepared by the developers which included an amount for the reserve, but no funds were ever actually set aside for that purpose. Although this requirement can be waived by vote of the association, respondents conceded that the funding requirement was never waived. Respondents justified their course of action on the theory the association account into which the assessments were placed was running a deficit, and the developers had already guaranteed to cover all expenses. However, this procedure is not sanctioned by statute or rule. According to uncontradicted testimony, had appropriate reserves been funded as required, respondents would have funded $4,770.56 from February, 1981 until the turnover. Count III - Annual Financial Statements The final count involves an allegation that respondents "failed to furnish unit owners with an annual financial statement for the years 1980, 1981, 1982 and 1983." According to Division requirements, all non-developer unit owners must be furnished a copy of the project's "annual financial statement" each year. This document must be prepared and distributed by mail or personal delivery. Respondents claimed that this was done. However, petitioner presented the testimony of two unit owners for the purpose of showing that such statements were not distributed as required. One unit owner, William C. Naftel, received the 1982 statement, but could not recall one way or the other whether he received statements in the years 1981, 1983 and 1984. A second unit owner, Max C. Bolton, Jr., testified he "may have" received such a statement in 1982, but did not receive one for the years 1980, 1981 and 1983. Mitigation This project was respondents' first and only development venture in Florida. Respondents' lack of compliance with Division requirements did not appear to the undersigned to be intentional. Rather, it stemmed from a combination of poor outside advice and a failure on their part to make diligent inquiry as to what precise obligations the statutes and Division rules imposed upon them from an accounting and legal standpoint. At hearing, respondents claimed they have lost a considerable amount of money on the project, which amount far outweighs any claims advanced by the agency.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that respondents be found guilty of violating Subsections 718.115(2), 718.112(2)(k); and 718.111(13), Florida Statutes (1985), and that a $2,500 civil penalty be imposed; to be paid within thirty days from date of final order. DONE and ORDERED this 3rd day of June, 1986, in Tallahassee, Florida. DONALD R. ALEXANDER, Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 Filed with the Clerk of the Division of Administrative Hearings this 3rd day of June, 1986.
The Issue The issue is whether the Petition for Relief was timely filed.
Findings Of Fact In August 2011, Petitioner filed a "Housing Discrimination Complaint" ("Complaint") with the United States Department of Housing and Urban Development and/or FCHR. In the Complaint, Petitioner alleged that Respondent was "discriminating against her because of her disability" by refusing to accept her service animal and by locking her out of the condominium lobby on multiple occasions. On September 21, 2011, FCHR issued a "Notice of Determination of No Cause," which it served on Petitioner by U.S. Mail on the same date. The Notice advised Petitioner, in relevant part, as follows: The Florida Commission on Human Relations (FCHR) and the Department of Housing and Urban Development (HUD) administer the Fair Housing Act (the Act). The FCHR completed its investigation of the subject complaint, which was filed under the Act. Informal efforts to resolve the case during the investigation were unsuccessful. Based on the evidence obtained during the Investigation, the FCHR has determined that reasonable cause does not exist to believe that a discriminatory housing practice has occurred. Accordingly, the above-referenced complaint is hereby dismissed. * * * The parties are further advised that the Complainant may request that a formal administrative proceeding be conducted. The request (i.e., Petition for Relief) must be filed with the FCHR within 30 days of the date of service of this Notice and should be in compliance with the provisions of rule 60Y-8.001 and Chapter 60Y-4, Florida Administrative Code, entitled General Procedures. A Petition for Relief form is enclosed Failure of Complainant to timely file a Petition will result in dismissal of the complaint within the purview of Rule 60Y-2.004(2)(g). (Emphasis added). Subsequently, on Monday, October 24, 2011——after the 30-day deadline, which fell on Friday, October 21, 2011——FCHR received a completed "Petition for Relief" form from Petitioner.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that FCHR issue a final order dismissing the Petition for Relief with prejudice. DONE AND ENTERED this 29th day of November, 2011, in Tallahassee, Leon County, Florida. S EDWARD T. BAUER 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 29th day of November, 2011.
The Issue Whether Respondents engaged in a discriminatory housing practice against Petitioner in violation of the Florida Fair Housing Act (Sections 760.20 through 760.37, Florida Statutes).
Findings Of Fact Respondent, Caribe Co-Operative Club Apartments, Inc. (Caribe Club), is a Florida not-for-profit corporation and a co-operative association that owns the apartment complex at issue in this proceeding located in Lake Worth, Florida. There are twenty-one apartments in the Caribe Club. The apartments constituting the Caribe Club are subject to duly-enacted bylaws and to a form proprietary lease. These documents govern the management of the co-operative association and specify the terms and conditions of each tenancy. An existing lease cannot be transferred until the transaction has been approved by the stockholders of the Caribe Club. If the transaction is approved, the prospective lessee is required to purchase a share of stock in the cooperative association and execute the form proprietary lease. The existing lessee and the proposed transferee are required to apply to the board of directors for approval of the proposed transaction. The board is then required to convene a meeting of the stockholders, at which the proposed transaction is discussed and the prospective lessee may be interviewed. Thereafter, a vote by secret ballot is taken, with each apartment having one vote. A two-thirds affirmative vote of the stockholders voting at the meeting is required for approval of the proposed transaction. Petitioner agreed to purchase the apartment at the Caribe Club owned by Phyllis McAuliffe for the sum of $13,500. As required by the bylaws of the Caribe Club, Petitioner and Ms. McAuliffe requested approval of the proposed transfer and Petitioner submitted her personal financial information in addition to the application. For approximately a year before she decided to purchase the McAuliffe lease, Respondent lived in the Caribe Club apartment leased by Quentin Mason, her boyfriend. After she and Ms. McAuliffe had come to terms, but before she submitted her request for approval to the board of directors, Petitioner painted and cleaned the McAuliffe apartment. In addition, she replaced a door. At all times pertinent to this proceeding, the Caribe Club had a president, two vice-presidents, a secretary, and a treasurer. These officers constituted the board of directors. Francis A. Phillip, Jr., the president of the Caribe Club, reviewed Petitioner's application and her supporting financial information. As required by the bylaws, Mr. Phillip called a special meeting of the stockholders for January 22, 1996, to consider the application. After her financial information was determined to be in order, Petitioner was briefly interviewed and then excused from the meeting. The only discussion of the proposed transfer consisted of Fernand Roy making a statement against the transaction and Mr. Mason giving a response. The proposed transaction was rejected by the vote by secret ballot that followed. Of the twelve voting stockholders at the meeting, seven voted against the transaction and five voted in favor. To the knowledge of the witnesses who testified, this was the first occasion that a prospective transfer had been rejected. The following stockholders were present at the meeting: Mr. and Mrs. Brooks (with one vote), Mr. Mason, Mr. and Mrs. Todd (with one vote), Mrs. Knutson, Mrs. Loomis, Mrs. Mack, Mrs. Senn, Mrs. Lambert, Mrs. Tognacci, Mr. Phillip, Mr. Reed, and Mr. Roy. At the formal hearing, there was competent evidence as to how five stockholders voted and the reasons of those who voted against the transaction. Mr. Mason and Mr. Reed voted for the transaction. Mr. Roy, Ms. Senn, and Mr. Phillip voted against the transaction. The Petitioner did not establish by competent evidence how the other individual stockholders voted or the reason for their votes. 1/ Fernand Roy participated in the stockholder meeting as a voting stockholder. Mr. Roy and Petitioner's boyfriend, Mr. Mason, had a long-standing feud. Mr. Roy did not want Petitioner to become a stockholder because she would then be able to support Mr. Mason's positions on various issues pertaining to management of the Caribe Club. Florence Senn participated in the stockholder meeting as a voting stockholder. Ms. Senn voted against the proposed transaction because she did not like the fact that Petitioner and Mr. Mason had been living together without the benefit of marriage. Ms. Senn did not discuss her position on the matter with anyone prior to the vote being taken. Ms. Senn told Petitioner before the vote was taken that if the stockholders rejected her application it would be because she was Mr. Mason's girlfriend. Ms. Senn was of the opinion following the vote that most of the stockholders who voted against the transaction did so because they did not like Mr. Mason. Mr. Phillip participated in the stockholder meeting as the presiding officer and as a voting stockholder. Mr. Phillip voted against the proposed transaction because he believed that Petitioner's entering the McAuliffe unit to paint, clean, and make repairs before the stockholders had approved the transaction evidenced an unwillingness on her part to comply with the bylaws and rules and regulations of the Caribe Club. Mr. Phillip testified that he had told Petitioner not to work in the apartment before the transaction was approved, but that she did so anyway. Before the meeting, Mr. Phillip mentioned to one or two other stockholders that Petitioner was working on the McAuliffe apartment, but he did not discuss his position on the transaction with anyone prior to the vote being taken. The evidence did not establish that any stockholder voted against the proposed transaction based on Petitioner's age, national origin, sex, handicap, familial status, or religion. 2/
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Florida Commission on Human Relations enter a final order dismissing Petitioner's discriminatory housing complaint and Petition for Relief. DONE AND ENTERED this 20th day of May, 1999, in Tallahassee, Leon County, Florida. CLAUDE B. ARRINGTON 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 20th day of May, 1999.
The Issue Whether Respondent discriminated against Petitioner on the basis of his familial status, violating Subsection 760.23(2), Florida Statutes (2008).1 If discriminatory conduct has been proven, whether quantifiable damages, or other allowable remedies, have been proven under Subsection 760.35(3)(b), Florida Statutes.
Findings Of Fact Petitioner is a Caucasian male, who claims to be a person in a familial status that is entitled to protection under the Florida FHA. Petitioner has based his claim on the fact that he and his fiancée, Victoria Leonard, are the parents of three daughters who reside together in Unit C-233, Golf Crest Condominiums, 4050 Golden Gate Parkway, Naples, Florida. Respondent is a Florida corporation. In 1994, Respondent recorded an Amended and Restated Declaration of Condominium of Golf Crest of Naples (Declaration) in the Public Records of Lee County, Florida, at Official Record Book 1966, Page 2216. The first sentence of Subsection 12.1 of the Declaration states, “Each unit shall be occupied by not more than two (2) persons at any time, as a residence and for no other purpose.” Petitioner acquired title to Unit C-233 by warranty deed dated February 29, 2000. The deed states “subject to easements and restrictions of record, if any, which are specifically not extended or reimposed hereby.” Upon acquiring the unit, Petitioner moved in by himself. In September 2000, Leonard moved into the unit with him. In October 2001, twin daughters were born to Petitioner and Leonard. In September 2004, Petitioner, Leonard, and their twin daughters moved out of the unit and leased it to a tenant, which was approved by Respondent. In August 2006, Petitioner and Leonard gave birth to a third daughter. On July 4, 2008, Petitioner, Leonard, and their three daughters moved back into the unit. On July 14, 2008, the property manager for Respondent, Sue Johnson, delivered a covenant violation letter to Petitioner. It advised him of the two-person per unit rule. On October 29, 2008, Robert W. McClure, attorney for Respondent, sent a final covenant violation letter to Petitioner regarding the two-person per unit rule. The letter demanded that the violation stop immediately. It also stated that if it did not stop within 30 days from the date of the letter, Respondent would take legal action and seek injunctive relief to enforce the covenant violation. Petitioner sought an exemption from the rule from Respondent’s Board, but was denied. Respondent has not sought to enforce this rule prior to July 2008. Petitioner, on November 10, 2008, filed a complaint of discrimination with the FCHR. Petitioner’s unit can be described as follows: the air-conditioned inside portion of the unit is approximately 22.9 feet long and 13.4 feet wide, for a total of 306 square feet. It contains a kitchen and bathroom in the front of the unit. The living area of the unit consists of one room containing queen-size bunk beds, a couch, ottoman, television and stand, computer and stand, and an armoire. There is no separation of the living area and sleeping area. To the rear of the unit is a screened outdoor lanai approximately five feet by 14 feet. The Golf Crest of Naples property consists of three buildings: Building A containing 28 units, Building B containing 12 units, and Building C containing 12 units. The buildings were originally a motel until converted to condominiums. All units within Building C are uniform in size and a have a length of 22.9 feet and width of 13.4 feet, equaling 306 square feet. Larry Raab, current board member of Respondent and past president, stated his opinion that, given the size of the units, the two-person rule was reasonable to protect the well- being of the occupants. Further, he testified Respondent has never, during his membership on the board beginning in 2001, denied occupancy to any prospective buyer or tenant whose family consisted of an adult and child and had no knowledge of any discriminatory activity. Property Manager Sue Johnson testified that she has been manager of Respondent since 2004. During that time, she was involved in the approval process for both new buyers and tenants. To her knowledge, Respondent had never refused to allow the sale or rental of a unit to an adult and child, and no one on Respondent’s board had ever exhibited any indication to her that he or she did not wish to have children in the community. Radolfo Barrenechie testified that he is a member of the Board of Directors and its current president. He currently owns six units in Golf Crest and has owned as many as ten units since 2004. All units were rented for investment purposes and not for personal use. He stated, during his ownership of the units, two were occupied by tenants consisting of an adult and minor child. He had purchased one of the units with such tenants existing and for whom he did not need to seek approval from the Board. As to the second unit, the adult and child became tenants after he acquired ownership, and Board approval was required. The approval was granted. The two-person rule is reasonable given the size of the units. Respondent does not discriminate against children who live on the property.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Florida Commission on Human Relations issue a final order denying the relief sought and dismissing the petition filed in this matter. DONE AND ENTERED this 17th day of June, 2009, in Tallahassee, Leon County, Florida. S DANIEL M. KILBRIDE 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 17th day of June, 2009.
The Issue The issue is whether the Florida Commission on Human Relations (FCHR) properly dismissed this matter for lack of jurisdiction.
Findings Of Fact Petitioner, as a first-time home buyer, applied for and was pre-approved by Cendant Mortgage Corporation d/b/a/ Century 21 Mortgage for a mortgage loan. The loan, in the amount of $28,687.00, was to be insured by the Federal Housing Administration (FHA). In February 2003, Respondent agreed to sell Petitioner his home. They agreed that Petitioner would pay Respondent $29,000.00 for the house. Respondent subsequently stated in writing that he agreed to sell his house to Petitioner for that amount. On March 5, 2003, Petitioner signed a form entitled No Brokerage Relationship Disclosure. The form made it clear that Century 21 Prime Property Resources, Inc., a local real estate agency, and its associates did not have a brokerage relationship with Petitioner. There is no evidence that the professional services of a licensed real estate agent was involved at all in this case. However, the local Century 21 real estate office gratuitously sent a few documents on Petitioner's behalf by facsimile transmission to Century 21 Mortgage in New Jersey. Respondent did not use the sales facilities or services of Century 21 for any purpose. On March 7, 2003, Cheryl Barnes, a certified appraiser, completed an appraisal of the property. The U.S. Department of Housing and Urban Development and/or FHA required the appraisal in order for Petitioner to receive the loan insured by FHA. Neither Petitioner nor Respondent was required to pay for the appraisal. In a letter dated March 10, 2003, Century 21 Mortgage advised Petitioner that the closing date was scheduled for April 16, 2003. The letter enclosed additional forms that Petitioner needed to complete in order to close the loan. The Housing Department, Division of Planning and Development, in Sumter County, Florida, sent Petitioner a letter dated March 19, 2003. The letter advised Petitioner that she was eligible for an award of Supplemental Household Income Protection funds to cover the down payment and closing costs on the loan. Subsequently, Respondent refused to sign any papers related to the sale of the house. The loan could not be closed without Respondent's cooperation. Petitioner had placed $250 in an escrow account with Century 21 Mortgage. The mortgage broker refunded all of the money in the escrow account to Petitioner after Respondent refused to sign any more paperwork. Finally, there is no evidence of the following: (a) that Respondent owned more than three single-family houses at any one time; (b) that Respondent sold more than one single- family home within any 24-month period; (c) that Respondent had an interest in the proceeds from the sale or rental of more than three single-family houses at any one time; and (d) the sale of the subject house did not involve the posting, mailing, or publication of any written notice.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED: That FCHR enter a final order dismissing the Petition for Relief. DONE AND ENTERED this 5th day of January, 2005, in Tallahassee, Leon County, Florida. S SUZANNE F. HOOD 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 5th day of January, 2005. COPIES FURNISHED: Cecil Howard, General Counsel Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301 Denise Crawford, Agency Clerk Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301 Susan M. Parker 3840 East County Road 478 Apartment D-30 Webster, Florida 33597 Paul Moore 2396 County Road 608 Bushnell, Florida 33513
The Issue The issue in this case is whether Respondents, Liang Jian and Doinghui Lee (Owners), discriminated against Petitioner, Gabriel Sauers (Sauers), through actions of the Owners’ representative, Joseph Palmer (Palmer), on the basis of Sauers' purported handicap in violation of the Florida Fair Housing Act.
Findings Of Fact Sauers is a young Caucasian male with purported disabilities, including post-traumatic stress disorder, ADHD, Oppositional Defiance Disorder, and others. He is a high school graduate, having received his education in an exceptional student education class. Sauers did not testify as to whether he is currently employed. He receives food stamps and Supplemental Security Income from the Social Security Administration. That income appears to be his sole means of support. The Owners (who did not appear at the final hearing) are Asians. The property at issue (referred to herein as the Apartments) is a multi-family residential building located at 419 North Wild Olive Avenue. At all times relevant hereto, Sauers was residing in Apartment #7, an efficiency apartment. In October 2012, Sauers rented a one-bedroom apartment from the Owners. Palmer was the manager of the Apartments and handled the negotiations with Sauers for the apartment. After a short time living in the apartment, Sauers asked to rent the efficiency apartment instead of the apartment he had originally leased. There was a difference of about $100 per month in rent between the two apartments. On or about November 1, 2012, Sauers moved into the efficiency apartment, i.e., Apartment #7. Sauers had inspected the apartment and did not list any concerns on his written lease agreement. After living for a short time in the efficiency, Sauers asked for a different refrigerator because the one in the efficiency was too small. He asked that the refrigerator from his prior apartment be moved down to the efficiency or that one be purchased for the efficiency as a replacement. Palmer told Sauers that he (Sauers) could purchase a refrigerator and Palmer would give him a $100 credit on his rent. Sauers never purchased a refrigerator and Palmer did not take any further action on Sauers’ request. While living in the efficiency, Sauers heard loud music being played in one of the other apartments on a regular basis. Sauers’ efficiency was in a building other than where the other apartments were located, but it was in close proximity. Sauers also reported seeing drug transactions taking place around the Apartments. He reported his findings to Palmer, but Palmer just told him to call the police. Sauers called the police on multiple occasions. Sauers had arguments and disagreements with other residents residing in the apartment complex. He admitted that his psychological conditions caused him to argue with other residents from time to time, but said he was singled out by some residents. Sauers raised complaints about the presence of palmetto bugs and roaches in his efficiency. However, the entire complex was under an extermination contract and Ryan’s Pest Control came out regularly to spray for insects. Some invoices and statements from Ryan’s were offered into evidence, but Sauers maintains they only address a few days of his residence at the Apartments. It is likely there were bugs in the efficiency; it is also true that Palmer and the Owners attempted to minimize the problem by having regular pest control service. The stove/oven in the efficiency was improperly grounded when Sauers moved in. He received several electrical shocks when touching the stove. Palmer was made aware of the problem and contracted with Parks Electric Company to remedy the situation. On April 25, 2013, the stove was rewired to alleviate the electrical problem. The Owners had a policy in place that tenants would pay their rent by way of a certified check or money order. Sauers often requested and was allowed to pay in cash. Sauers complained frequently to Palmer about the condition of the efficiency, the dangerous environment around the apartment complex, and other real or imagined problems. Sauers’ father, who helped Sauers move into the apartment complex and notified Palmer about some of Sauers’ disabilities, agreed that the area around the Apartments seemed unsafe. The father, a large man, was accosted on one of his visits to the Apartment, by some unknown person. Sometimes Sauers’ mother would call Palmer to ask questions or raise concerns. She was never able to reach him via telephone, but Palmer returned her calls--to Sauers’ father’s phone--on many occasions. It is abundantly clear that Sauers and Palmer do not get along well. When Sauers was absent from his apartment for several weeks in the summer of 2013, Palmer assumed that the efficiency had been abandoned. He placed a three-day notice on the door of the efficiency, telling Sauers he had to pay the rent which was due or that eviction proceedings would be commenced. When notified that Sauers did not plan to return to the apartment, Palmer went in--only to find that the efficiency was filthy and required significant cleaning. Sauers claims discrimination on the part of the Owners because Palmer had asked him to vacate the apartment at one point in time. The suggestion, made by Palmer, was based on Palmer’s perception that Sauers was extremely unhappy living at the apartment complex. Sauers failed to show that any other residents at the complex were treated differently or that Sauers was denied any reasonable accommodations for his needs.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a final order be entered by the Florida Commission on Human Relations dismissing the Petition for Relief filed by Gabriel Sauers in its entirety. DONE AND ENTERED this 9th day of May, 2014, in Tallahassee, Leon County, Florida. S R. BRUCE MCKIBBEN Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 9th day of May, 2014. COPIES FURNISHED: Violet Denise Crawford, Agency Clerk Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301 Michael Paul Kelton, Esquire Paul, Elkind and Branz 142 East New York Avenue Deland, Florida 32724 Gabriel P. Sauers Unit 1 1111 Ocean Shore Boulevard Ormond Beach, Florida 32176 Cheyanne Costilla, General Counsel Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301
The Issue Whether Petitioners, Kimberly and Richard Interrante, were subject to a discriminatory housing practice by Respondent, Trevesta Homeowners 1 All statutory references are to Florida Statutes (2020), unless otherwise noted. Association, Inc., based on a disability, in violation of Florida's Fair Housing Act.
Findings Of Fact Trevesta is a community of homes located in Palmetto, Florida. Trevesta is subject to rules and regulations of the Association. Petitioners own a home in Trevesta. Petitioners purchased their house in 2018. Living with Petitioners is Jonathan Austin. Jonathan is not related to Petitioners, but is currently in a relationship with Petitioners' daughter. Jonathan suffers from several mental health conditions including anxiety, bipolar disorder, and similar mood-related disabilities.3 Ms. Interrante, who testified on behalf of Petitioners, disclosed that Jonathan's mental issues are related to a benign brain tumor. Ms. Interrante further explained that, based on his mental health conditions, Jonathan suffers from severe anxiety and has difficulty coping with stress. During tense situations, Jonathan struggles to communicate, think clearly, or focus on tasks. Because of the high anxiety he experiences, Jonathan is not employed. Consequently, although Jonathan is now a young adult, he spends most of his time inside Petitioners' home. Respondent does not dispute that Jonathan suffers from a mental disability. 2 By requesting a deadline for filing post-hearing submissions beyond ten days after the final hearing, the 30-day time period for filing the recommended order was waived. See Fla. Admin. Code R. 28-106.216(2). 3 A person has a disability (or "handicap") under both the Florida and F0ederal Fair Housing Act if he or she has "a physical or mental impairment which substantially limits one or more major life activities." § 760.22(3)(a), see also 42 USC §3602(h). To help cope with anxiety and stress, Jonathan relies on the comfort he receives from his cat named "Ace." Ace is Jonathan's registered Emotional Support Animal. Ace is a Tuxedo cat with a black and white coat. Jonathan adopted Ace as a kitten. Ace is now five years old. Ms. Interrante expressed that Ace "absolutely" helps Jonathan manage his mental anxiety. Jonathan offered that Ace keeps him grounded. Ace's presence has also helped reduce the amount of medication Johnathan takes. Ace lives with Petitioners (and Jonathan) in their home. Ace is an indoor cat and freely roams around the house. The entryway to Petitioners' house currently consists of a single front door. The front door opens onto a small 6' by 6' alcove that leads to a walkway that runs along the front yard. The impetus for Petitioners' action is Jonathan's fear that Ace will escape through their front door. At the final hearing, Jonathan testified that he experiences overwhelming anxiety the moment he hears the front door open. Jonathan voiced that he worries daily about Ace's safety. He remains on constant guard against the possibility that Ace will unexpectedly slip away from the house. Ms. Interrante expressed that Jonathan's concern with Ace breaking free from their home is real. Ace's natural curiosity causes him to watch the front door. Once in the past, Ace actually crept through the front door and outside into the alcove. Ace was caught before he ventured further. Ace has never fully escaped from Petitioners' house. Ms. Interrante expressed that if Ace escaped, Jonathan would suffer an extremely traumatic emotional reaction. Therefore, to help alleviate Johnathan's distress, Petitioners seek to modify their front entranceway to ensure that Ace remains in the house. Petitioners specifically desire to construct a "two-door" entry system. Basically, Petitioners hope to either install a screen door onto the front door, or to screen in the front alcove and affix a separate screen door. Petitioners believe that the addition of a secondary barrier will prevent Ace from slipping through the (single) front door when it is ajar. Ms. Interrante urged that the modification will ease Jonathan's mental distress. Jonathan will be comforted knowing that when one door is opened, the other will always be closed. That way, Ace would not unexpectedly dart into the wild. Ms. Interrante testified that Petitioners are willing to bear all the costs to install a screened door and/or enclosure. On April 6, 2020, Petitioners submitted an Architectural Modification Request Form to the Association seeking approval for an "addition or modification" to their "entry way enclosure." With their request, Petitioners attached plans for a screened-in enclosure, with a separate door, to be installed within the overhanging roof structure outside their front door. Petitioners also included information documenting Jonathan's disability. Petitioners wrote that, "we need this modification because without it [Jonathan] is unable to fully use and enjoy his home to the same degree as people without disabilities." On April 9, 2020, the Association's Property Manager, Allan Heinze, notified Petitioners that the Association would not approve their request to modify their front door because "your listed alteration is not permitted in Tevesta HOA. Front screen enclosure[s] are not permitted per the guidelines." On May 6, 2020, the Association's Design Review Committee formally denied Petitioners' request stating that "[s]creened enclosures are not permitted." In follow up correspondence with Petitioners, the Association's attorney explained that Petitioners' request lacked documentation establishing "a relationship between the disability and the need for the accommodation." The attorney further stated that this information could come in the form of a "statement or opinion of a physician, therapist, counselor, etc." At the final hearing, Ms. Interrante conveyed that she has tried to obtain support for the modification from a psychiatrist or mental health counselor. She relayed, however, that Jonathan's current psychiatrist, Dr. Brock Hollett, who evaluated Jonathan in the spring of 2020, resisted her request to personally appear at the hearing over concerns that his testimony would interfere with his doctor-patient relationship with Jonathan. Instead, Ms. Interrante offered several letters which she represented Dr. Hollett prepared on Jonathan's behalf. In a letter dated June 21, 2020, Dr. Hollett wrote that, in his opinion: Jonathan could benefit from having a screen door placed on his front door. Following the final hearing, Petitioners filed an additional letter they received in April 2020 from Wendy Fisher, Licensed Clinical Social Worker, a behavioral health consultant who had examined Jonathan. Ms. Fisher expressed that Ace "is necessary for the emotional health of Jonathan because his cat's company will provide support and will mitigate the symptoms that his [sic] is experiencing." Ms. Fisher further advised that: I strongly recommend that Jonathan's cat be allowed to reside with him in his home in his community and that accommodations can be made to allow him to do so. Ms. Fisher did not address the specific modifications Petitioners seek for their front entrance.4 Jonathan confirmed that he has discussed his anxiety over losing Ace with a mental health counselor. Jonathan represented that his counselor 4 The written letters from Dr. Hollett and Ms. Fisher are out-of-court statements and clearly hearsay. See § 90.801(1)(c), Fla. Stat. Under the Administrative Procedure Act, "[h]earsay evidence may be used for the purpose of supplementing or explaining other evidence, but it shall not be sufficient in itself to support a finding unless it would be admissible over objection in civil actions." § 120.57(1)(c), Fla. Stat. Consequently, the undersigned makes no findings that modifying Petitioners' front door is necessary for Jonathan to fully enjoy the premises based solely on Dr. Hollett's and/or Ms. Fisher's written comments. agreed that his anxiety and stress would benefit from additional security on the front door. Finally, in response to questions at the final hearing, both Ms. Interrante and Jonathan were extremely skeptical that they could train Ace not to approach the front door when it is opened. They declared that their prior attempts to train Ace did not prove successful. Further, while Ms. Interrante agreed that her back door opens onto a screened-in porch with a "two-door" entry system, she asserted that it was impractical for family or friends to only enter or exit her home through the rear door. Moreover, Ms. Interrante doubted that redirecting foot traffic to the back door would alleviate Jonathan's fixation on the possibility that Ace might escape through their front door. To explain its decision, the Association presented the testimony of Allan Heinze, Property Manager for Trevesta. Mr. Heinze acknowledged that the Association received Petitioners' modification request on April 6, 2020. Mr. Heinze recounted that he made the initial decision on April 9, 2020, to deny the request due to the fact that the Association's governing rules and regulations do not permit front screen enclosures on any houses within the community. Mr. Heinze explained that, upon buying a house in Trevesta, homeowners become subject to the Association's Architectural Guidelines, Standards & Criteria (the "Guidelines"). The Guidelines specifically state: Q. Front Entryway/Storm Doors: Screen enclosures, storm doors or screen doors are not allowed for front entrances. Wicker, wood or wrought iron tables and chairs may be used in the front porch/entryway. Plastic stackable furniture is not permitted. Mr. Heinze further testified that, following his initial denial, the Association attempted to resolve Petitioners' modification request. Mr. Heinze relayed that the Association's attorney contacted Petitioners, via email, to discuss the details of their request. Mr. Heinze remarked that, based on his understanding of the concerns of the Association's legal counsel, Petitioners failed to articulate a sufficient "nexus" between the specific modification they sought and Jonathan's disability. Mr. Heinze explained that the Association was interested in any information that would substantiate (1) Jonathan's disability; (2) the modification Jonathan needs to address his disability; and (3) how that specific modification would improve Jonathan's life. Mr. Heinze asserted that the Association is ready and willing to consider any information and/or documentation Petitioners provide from a qualified medical provider. However, without details that establish the necessary nexus between Jonathan's disability and Petitioners' need for a screened enclosure outside their front door, Mr. Heinze maintained that the Association did not possess enough evidence to justify deviating from the Association's Guidelines. Regarding the letters from Jonathan's mental health professionals, Mr. Heinze commented that, while they show that Jonathan might "benefit" from having a screened-in front door, the written statements did not adequately demonstrate why a "two-door" system is medically necessary for Jonathan to fully enjoy Petitioners' home. Finally, despite the Association's denial of Petitioners' request to modify their front door, Mr. Heinze admitted that there are a few similar front entranceway enclosures in the Trevesta community. However, Mr. Heinze asserted that the Association never approved these additions. On the contrary, the homeowners who altered their front doors or alcoves did so in direct violation of the Association's Guidelines. Mr. Heinze exclaimed that, to his knowledge, the Association has never approved a formal request from a homeowner to enclose a front entryway. Based on the competent substantial evidence in the record, the preponderance of the evidence does not establish that the Association discriminated against Petitioners by failing to permit them to modify their home based on a disability. 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 concluding that Respondent, Trevesta Homeowners Association, Inc., did not commit a discriminatory housing practice against Petitioners and dismissing their Petition for Relief. DONE AND ENTERED this 8th day of March, 2021, in Tallahassee, Leon County, Florida. COPIES FURNISHED: Kimberly Interrante Richard Interrante 6530 Devesta Loop Palmetto, Florida 34221 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 8th day of March, 2021. Scott H. Jackman, Esquire Cole, Scott and Kissane, P.A. 4301 West Boy Scout Boulevard, Suite 400 Tampa, Florida 33607 Tammy S. Barton, Agency Clerk Florida Commission on Human Relations 4075 Esplanade Way, Room 110 Tallahassee, Florida 32399-7020 Cheyanne Costilla, General Counsel Florida Commission on Human Relations 4075 Esplanade Way, Room 110 Tallahassee, Florida 32399 (850) 488-7082, Extension 1006
The Issue Whether Respondent committed the unlawful employment practice alleged in the Charge of Discrimination filed with the Florida Commission on Human Relations (FCHR) and, if so, the relief that should be granted.
Findings Of Fact At all relevant times, Petitioners resided in an apartment in Eastwind Apartments, a HUD multifamily development in Marathon, Florida. MHA manages Eastwind Apartments. Monroe County Housing Corporation has an ownership interest in Eastwind Apartments. Ms. Vogt is the housing manager of Eastwind Apartments. Mr. Castillo is the executive director of MHA. The lease between Petitioners and MHA contains the following provision: "The Tenant agrees to permit the Landlord, his/her agents or other persons, when authorized by the Landlord, to enter the unit for the purposes of making reasonable repairs and authorized inspections." On September 18 and October 14, 2009, Ms. Vogt provided notices to all residents of Eastwind Apartments of upcoming inspections. The notices contained the following: ". . . there is still not a pet policy. If you have a pet, make sure it is confined and not loose anywhere in the apartment. The inspector can walk into any room and look around and your pet cannot be loose or locked in a room." On December 2, 2009, a maintenance man reported to Ms. Vogt that he was hesitant to enter the Petitioners' apartment because of the presence of a pit bull dog in the apartment. On December 2, 2009, Ms. Vogt hand-delivered an NOLV to Petitioner Alberto Pis based on the presence of the dog in the apartment. The NOLV instructed Petitioners to remove the dog from the apartment by December 5, 2009. The NOLV was written in English. There was not a Spanish translation of the NOLV. Ms. Vogt is fluent in English, but she is not fluent in Spanish. Mr. Pis could not read the NOLV in English. Mr. Pis became upset when Ms. Vogt asked him to sign that he had received the NOLV. Petitioners allege that Ms. Vogt's demand that Mr. Pis sign for the receipt of the NOLV constituted an act of discrimination. Petitioners have an adult son and an adult daughter who are fluent in Spanish and English. The adult daughter translated the NOLV to her parents on December 2, 2009, after Ms. Vogt had returned to her office. On December 14, 2009, Ms. Vogt hand-delivered a second NOLV to Petitioner Alberto Pis. This NOLV advised that keeping the dog in the apartment was a lease violation. The second NOLV was written in English. There was not a Spanish translation of the second NOLV. At all times relevant, MHA had an employee in the office at Eastwind Apartments who was fluent in Spanish and English. Elio Pis is a student at a school in Miami, but lives in the apartment leased by his parents from time to time. The dog in the apartment belongs to Elio Pis. Elio Pis, acting on behalf of himself and his parents, complained to Mr. Castillo about the NOLVs. At first, Mr. Castillo refused to discuss the matter with Elio Pis because Mr. Castillo thought that Elio Pis resided in Miami, not in the subject apartment. Mr. Castillo discussed the matter with Elio Pis after he learned that Elio Pis resided in the apartment from time to time. Petitioners allege that Mr. Castillo's refusal to promptly investigate their complaints constituted an act of discrimination. On February 8, 2010, Mr. Castillo wrote the following letter to Petitioner Alberto Pis: Following a phone conversation with your son regarding a Lease Violation issued on December 2, 2009, I conducted a review of the incident and actions taken by the Eastwind staff. The review indicates that on December 2nd, maintenance staff attempted to respond to a request for maintenance in your unit (work order) and was scared off by the presence of a dog in the unit. Based on this information, the Housing Manager issued you a lease violation. Additionally, on December 14, 2009, numerous tenants received what was intended to be a courtesy notice but was titled "Lease Violation", one of which you received. This second notice was rescinded on December 17, 2009. With regard to the initial lease violation issued, the Housing Manager perhaps over- reacted out of concern for the safety and well-being of the employee and others. The employee, while relaying the incident to a fellow employee, was noticeably shaken. I have asked the Housing Manager to also rescind the December 2nd Lease Violation. Staff is currently finalizing a revised Pet Policy that will allow for pets at Eastwind Apartments with restrictions and limitations. Residents will be notified of this change as the process is completed. On behalf of the Housing Authority, I apologize for any inconvenience to you and your family. The two NOLVs were rescinded before Petitioners filed their initial Complaint of Discrimination with HUD on March 19, 2010. Petitioners have been allowed to keep the dog in their apartment. Petitioners complained that certain repairs have not been made to their apartment. There was no evidence that similar repairs had been made to apartments rented by non- Hispanic tenants. There was no evidence that the terms and conditions of Petitioners' tenancy at Eastwind Apartments were different from the terms and conditions of any other tenant.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is hereby RECOMMENDED that the Florida Commission on Human Relations enter a final order dismissing Petitioners' Amended Petition for Relief. DONE AND ENTERED this 14th day of February, 2011, in Tallahassee, Leon County, Florida. S CLAUDE B. ARRINGTON 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 14th day of Februray, 2011. COPIES FURNISHED: 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 Franklin D. Greenman, Esquire Greenman and Manz 5800 Overseas Highway, Gulfside Village, Suite 40 Marathon, Florida 33050 Alberto Pis and Maria Soto 240 Sombrero Beach Road, Apartment A-4 Marathon, Florida 33050
