The Issue Whether Respondent, Eve Management, Inc./KA and KM Development, Inc., denied Petitioners full and equal enjoyment of the goods and services offered at its place of public accommodation, in violation of sections 509.092 and 760.08, Florida Statutes (2011).1/
Findings Of Fact Parties and Jurisdiction Petitioners are African Americans who reside in the State of Ohio, who visited Orlando, Florida, in June 2011 and stayed at Lake Eve Resort beginning on June 21, 2011. Respondent, Eve Management, Inc./KA and KM Development, Inc., was the owner of Lake Eve Resort, located at 12388 International Drive, Orlando, Florida, at all times relevant hereto. Each Petitioner filed a Complaint of Discrimination with the Commission as follows: Jessica Austin – July 20, 2012 Denise Austin – July 21, 2012 Tracie Austin – January 18, 2013 (Amended Complaint)2/ Bonlydia Jones – July 11, 2012 James Austin – July 31, 2012 Dionne Harrington – August 1, 2012 Esther Hall – January 28, 2013 (Amended Complaint)3/ Boniris McNeal – March 27, 2013 Summer McNeal – March 27, 2013 Derek McNeal – March 27, 2013 In each Complaint, the Petitioner alleges that the most recent date of discrimination is June 22, 2011. On June 21, 2012, Petitioners Esther Hall, Summer McNeal, Boniris McNeal, Derek McNeal, and Dionne Harrington, each filed a Technical Assistance Questionnaire (TAQ) with the Commission. Each TAQ is signed by the named Petitioner, is stamped received by the Commission on June 21, 2012, and contains the specific facts alleged to be an act of discrimination in the provision of public accommodation by Respondent. Allegations of Discrimination On or about May 23, 2011, Petitioner, Boniris McNeal, entered into a Standard Group Contract with Lake Eve Resort (the Resort) to reserve 15 Resort rooms for five nights at a discounted group rate beginning June 21, 2011.4/ The rooms were to accommodate approximately 55 members of her extended family on the occasion of the Boss/Williams/Harris family reunion. Petitioners traveled from Ohio to Orlando via charter bus, arriving at the Resort on the evening of June 21, 2011. Erika Bell, a relative of Petitioners, drove a rental car from Ohio to Orlando. She did not arrive in Orlando until June 22, 2011. Petitioners checked in to the Resort without incident. However, one family member, John Harris, was informed that the three-bedroom suite he had reserved for his family was not available due to a mistake in reservations. He was offered two two-bedroom suites to accommodate his family. Petitioner, Boniris McNeal, dined off-property on the evening of June 21, 2011, to celebrate her wedding anniversary. Petitioner, Bonlydia Jones, left the Resort property shortly after check-in to shop for groceries. Petitioners, Dionne Harrington and Esther Hall, were very tired after the long bus trip and went to bed early on June 21, 2011. Petitioner, Denise Austin, arrived in Orlando with the family on June 21, 2011. On the morning of June 22, 2011, Ms. Jones received a call from Mr. Harris, informing her that the Resort management wanted to speak with them about his room. That morning, Ms. Jones and Mr. Harris met with two members of Resort management, Amanda Simon and Marie Silbe. Mr. Harris was informed that he needed to change rooms to a three-bedroom suite, the accommodation he had reserved, which had become available. Mr. Harris disputed that he had to change rooms and argued that he was told at check-in the prior evening he would not have to move from the two two-bedroom suites he was offered when his preferred three-bedroom suite was not available. After some discussion, it was agreed that Mr. Harris would move his family to an available three-bedroom suite. The Resort provided an employee to assist with the move. Following the meeting with management, Ms. Jones went to the pool, along with Ms. Harrington and other members of the family. After a period of time which was not established at hearing, Mary Hall, one of Ms. Harrington’s relatives, came to the pool and informed Ms. Harrington that the family was being evicted from the Resort. Ms. Harrington left the pool and entered the lobby, where she observed police officers and members of Resort management. She approached a member of management and was informed that she and her family were being evicted from the Resort and must be off the property within an hour. Ms. Harrington left the lobby and returned to her room, where her mother, Ms. Hall was sleeping. Ms. Harrington informed Ms. Hall that the family was being evicted from the Resort and instructed Ms. Hall to pack her belongings. Ms. Jones’ cousin, Denise Strickland, came to the pool and informed her that the family was being evicted from the Resort. Ms. Jones entered the lobby where she was approached by a member of management, who introduced herself as the general manager and informed her that the family was being evicted. Ms. Jones requested a reason, but was informed by a police officer that the owners did not have to give a reason. In the lobby, Ms. Jones observed that an African- American male was stopped by police and asked whether he was with the Boss/Williams/Harris reunion. He was not a family member. Ms. Jones observed that no Caucasian guests were approached in the lobby by management or the police. Ms. Austin was on a trolley to lunch off-property on June 22, 2011, when she received a call from her cousin, Ms. Strickland. Ms. Strickland informed Ms. Austin that the family was being evicted from the Resort and she needed to return to pack her things. Ms. Austin returned to the property, where she was escorted to her room by a security guard and asked to pack her belongings. Ms. McNeal was en route to rent a car and buy groceries on June 22, 2011, when she received a call from Ms. Strickland informing her that the family was being evicted and that she needed to return to the Resort to pack her belongings. Upon her arrival at the Resort, Ms. McNeal entered the lobby. There, she was approached by Resort staff, asked whether she was with the Boss/Williams/Harris reunion, and informed that the Resort could not honor the reservations and the family was being evicted. Ms. McNeal observed that Caucasian guests entering the lobby were not approached by either the police or Resort management. Ms. McNeal was escorted to her room by both a police officer and a member of management and instructed to be out of the room within 30 minutes. Ms. McNeal inquired why they were being evicted, but was told by a police officer that the Resort was not required to give a reason. Erika Bell received a call from her mother, Ms. Austin, while en route to the Resort on June 22, 2011. Ms. Austin informed Ms. Bell that the family was being evicted from the Resort and asked her to call the Resort and cancel her reservation. Respondent gave no reason for evicting Petitioners from the property. Respondent refunded Petitioners’ money.
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 Respondent, Eve Management, Inc./KA and KM Development, Inc., committed an act of public accommodation discrimination in violation of sections 509.092 and 760.08, Florida Statutes (2011), against Petitioners Jessica Austin, Denise Austin, Tracie Austin, James Austin, Bonlydia Jones, Esther Hall, Boniris McNeal, Derek McNeal, Summer McNeal, and Dionne Harrington; and Prohibiting any future acts of discrimination by Respondent. DONE AND ENTERED this 28th day of May, 2014, in Tallahassee, Leon County, Florida. S SUZANNE VAN WYK 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 28th day of May, 2014.
The Issue Whether Respondent engaged in an unlawful discriminatory housing practice against Petitioner on the basis of her disability.
Findings Of Fact At all times relevant hereto, Petitioner, Joan Vassar, was an individual participant in a tenant-based voucher arrangement under the Section 8 Housing Program funded by the Department of Housing and Urban Development and administered by the Tallahassee Housing Authority (THA). Petitioner was a resident of The Lakes at San Marcos (The Lakes), an apartment complex located at 4768 Woodville Highway in Tallahassee, Florida. Respondent, CMP CHP San Marcos Ltd. (San Marcos), is the owner of The Lakes, which is managed by a company known as HSI. Petitioner has been diagnosed with fibromyalgia and has suffered multiple strokes. Petitioner is disabled for purposes of the Fair Housing Act. Beginning in August 2009, Petitioner rented apartment 1533 at The Lakes, a one-bedroom apartment on the third floor of building 15. Petitioner’s rent was paid directly to San Marcos by THA pursuant to Petitioner’s one-bedroom housing choice voucher. Petitioner had difficulty climbing the stairs to her third-floor apartment and often took breaks at each landing to rest. There was no elevator at The Lakes as an alternative means of accessing the third floor of building 15. By all accounts, Petitioner’s tenancy at The Lakes was peaceful and without incident. In 2011, Valarie Gosier-Coleman became the assistant manager of The Lakes. Petitioner described Ms. Gosier-Coleman as compassionate toward her. Ms. Gosier-Coleman occasionally disposed of Petitioner’s garbage for her and retrieved Petitioner’s mail. In May 2014, Petitioner reported to Ms. Gosier-Coleman that her health had declined, that she would need a live-in caregiver, and that she wished to move to a two-bedroom, first-floor apartment. On June 4, 2014, in response to Petitioner’s request, Respondent informed Petitioner in writing that two two-bedroom, first-floor apartments--1311 and 1413--would become available beginning August 1, 2014. Apartment 1413 was located in the building next to Petitioner’s existing apartment, and Petitioner indicated she would accept that apartment. HSI requires all occupants of an apartment to complete an application and be approved to rent. Petitioner brought her would-be caregiver to The Lakes to apply for apartment 1413. However, the caregiver was reticent to complete the financial information section of the application. Although she took the incomplete application with her when she left the office, the caregiver never submitted a completed application for the apartment. Shortly thereafter, Petitioner was offered apartment 1116, a one-bedroom first-floor apartment. On July 16, 2014, Petitioner rejected that apartment, sight unseen, as “too far in the back of the complex.” On July 31, 2014, Petitioner renewed her lease for apartment 1533. At that time, she wrote to management, “I do not want a (2) bedroom apt. any place except where I specified for personal reasons. I have been here for 5 years and am very secure and familiar with my neighbors in my building . . . . Plus, my family lives in this same building on the first floor.”1/ No other first-floor apartments became available at The Lakes between August and October 2014. Shortly after renewing her lease, Petitioner informed HSI that she desired to leave The Lakes. Petitioner requested to break her lease, which Respondent allowed. Respondent refunded Petitioner’s deposit in full.
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 22nd day of December, 2015, in Tallahassee, Leon County, Florida. S SUZANNE VAN WYK 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 22nd day of December, 2015.
The Issue The issue is whether the Petition for Relief should be dismissed for lack of jurisdiction.
Findings Of Fact Petitioner alleges in the petition that she was “the victim of racial discrimination and unfair business practice” in August 2007 when she went into Respondent’s store to purchase a cellular phone and one of Respondent’s employees became hostile and yelled racial epithets at her for no apparent reason.2/ The petition refers to Respondent as “a phone store.” The Executive Director of FCHR advised Petitioner in a letter dated October 8, 2008, that FCHR does not have jurisdiction to investigate her discrimination complaint. The letter explained the basis for this determination as follows: The information provided indicates that [Respondent] is strictly a retail store. It is not in the business of providing lodging, selling food for consumption on the premises, and is not a gasoline station or a place of exhibition or entertainment. Moreover, no covered establishment is located within [Respondent]’s actual physical boundaries. Therefore, [Respondent] is not a “public accommodation” as defined [in Section 760.02(11), Florida Statutes]. The petition was filed with FCHR on November 14, 2008.3/ The petition does not allege that Respondent is a “public accommodation” as defined by statute. Rather, as noted above, it characterizes Respondent as “a phone store.” The petition includes two attachments. The first attachment provides a narrative of the alleged discrimination. The second attachment includes excerpts from Sections 760.01 and 760.06, Florida Statutes, and what amounts to legal argument concerning the scope of FCHR’s duties under those statutes and Section 760.07, Florida Statutes. On December 2, 2008, the undersigned entered an Order to Show Cause because the petition did not appear to raise any disputed issues of material fact as to whether Respondent is a “public accommodation.”4/ The Order to Show Cause directed Petitioner to: show cause in writing as to why an Order Closing File or a Recommended Order of Dismissal should not be entered for the reasons set forth above and/or Petitioner shall file an amended petition that identifies the factual basis upon which she contends that Respondent is a “public accommodation” . . . . The Order to Show Cause advised Petitioner that: Failure . . . to allege disputed issues of fact as to whether Respondent is a “public accommodation” will result in the entry of an Order Closing File or a Recommended Order of Dismissal. Petitioner filed a response to the Order to Show Cause on December 16, 2008. The response does not include any factual allegations that would establish that Respondent is anything other than a retail store. The response simply includes what amounts to additional legal argument concerning the scope of FCHR’s jurisdiction. Neither the petition, nor the response to the Order to Show Cause raises factual allegations that, if proven, would establish that Respondent is a “public accommodation” as defined by statute. Moreover, based upon the petition’s characterization of Respondent as “a phone store,” there is no dispute concerning the determination in the Executive Director’s letter that Respondent “is strictly a retail store” and not a “public accommodation.” This is the only material issue as this case is presently postured.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that FCHR issue a final order dismissing the petition with prejudice DONE AND ENTERED this 22nd day of December, 2008, in Tallahassee, Leon County, Florida. S T. KENT WETHERELL, II 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 22nd day of December, 2008.
The Issue The issue is whether Respondent, Publix Super Markets, Inc. (“Publix”), violated section 760.08, Florida Statutes (2014),1/ by discriminating against Petitioner based on his race, color, sex, and/or handicap.
Findings Of Fact Petitioner is a black male who lives in Deltona, Florida. Despite the assertion in his Public Accommodation Complaint of Discrimination, Petitioner offered no evidence that he has a disability or handicap. Petitioner testified that he had surgery for kidney stones in Daytona Beach on October 20, 2014. Respondent’s urologist prescribed Percocet (oxycodone and acetaminophen), a controlled substance, to control Respondent’s pain. The prescription from Petitioner’s urologist was not placed in evidence. On October 21, 2014, Petitioner went to the emergency room at Fish Memorial Hospital in Orange City and, there, was given a prescription for 12 tablets of Percocet. The prescription directed that the medication be taken once every six hours, meaning that the emergency room physician was prescribing a three-day supply of Percocet. A copy of this prescription was entered into evidence, and the parties agree that this is the prescription that Petitioner later presented to the Publix pharmacy. Petitioner testified that his mother drove him to his surgery and, apparently, to the emergency room. She placed the prescription in her purse for safe keeping. A few days later, when Petitioner wanted to get the prescription filled, his mother could not find the prescription. Petitioner stated that his mother forgot that she had changed purses. When she changed purses again a couple of weeks later, Petitioner’s mother found the prescription. On November 15, 2014, Petitioner presented the emergency room prescription to the pharmacy technician at Publix Store 0667 in Deltona. The technician was aware that the pharmacist gave special scrutiny to emergency room prescriptions. The technician therefore took the prescription directly to the pharmacist, James MacDonald. Mr. MacDonald was the pharmacy manager of Store 0667 and at the time of the events at issue had been a pharmacist for 23 years with no record of discipline against his license. Mr. MacDonald testified that, as a general matter, he performs a prospective drug utilization review on every prescription. Simply put, this process insures that the prescription is for a legitimate medical purpose and that it is being filled for the person who presented it at the pharmacy. Mr. MacDonald stated that he is not required to fill every prescription that is presented to him and that he declines to fill prescriptions seven to ten times per week. The chief reasons for declining to fill prescriptions are the pharmacist’s inability to verify the prescription with the prescribing physician and the pharmacist’s determination that the prescription calls for a type or quantity of a controlled substance that is inappropriate to the patient’s condition. Mr. MacDonald testified that during the two years prior to November 2014, nearby pharmacies at CVS and Walgreens had stopped filling prescriptions for controlled substances, which placed an added burden on Publix to fill these prescriptions. There were several doctors in the area writing prescriptions for large amounts of controlled substances. Mr. MacDonald was also being presented with many prescriptions for controlled substances from people he did not know. All these factors contributed to his caution in filling prescriptions for controlled substances. Mr. MacDonald testified that a prescription from an emergency room visit usually provides for enough medication to get the patient through the emergency period, two or three days, after which the patient is instructed to see his primary care physician. Mr. MacDonald tended to decline to fill emergency room prescriptions that were presented more than a few days after the emergency room visit. When the technician presented him with Petitioner’s prescription, Mr. MacDonald told the technician that he would not fill it because it was more than three weeks old. The technician walked to the front window to convey this response to Petitioner, who did not take it well. Mr. MacDonald could hear Petitioner raising his voice and so went to the front to speak with Petitioner directly. Mr. MacDonald testified that the pharmacy was very busy, that he had customers ahead of Petitioner, and that having to come around and deal personally with Petitioner was putting him even farther behind in his work. Mr. MacDonald explained to Petitioner that the prescription was issued by an emergency room physician and was for a three-day supply of Percocet. He told Petitioner that he would have filled the prescription if he had presented it within a week of his emergency room visit, but that it was now three weeks later and this was clearly no longer an emergency situation. Petitioner testified that he told Mr. MacDonald that the prescription had been misplaced in his mother’s purse. Mr. MacDonald did not recall this explanation. Mr. MacDonald offered to call the emergency room physician and verify the prescription. Petitioner insisted that Mr. MacDonald either call the physician or fill the prescription immediately, and stated that he would not move from the pharmacy window until Mr. MacDonald had complied with his ultimatum. Mr. MacDonald stated that he had customers ahead of Petitioner and could not drop everything to please him at that moment. In light of Petitioner’s persistence, Mr. MacDonald reiterated his refusal to fill the prescription. He handed the prescription back to Petitioner and threatened to call the police if Petitioner did not leave. Petitioner was unmoved. Mr. MacDonald did not call the police but did page the assistant store manager, Christopher Bloyen, to intercede in the situation. Mr. Bloyen testified that he came to the pharmacy. He saw that Petitioner seemed very upset and was speaking very loudly. Petitioner complained that Mr. MacDonald would not fill his prescription. Mr. Bloyen spoke briefly with Mr. MacDonald, who explained why he was refusing to fill the prescription. At the hearing, Mr. Bloyen explained that the pharmacy in any Publix store is an autonomous department and that, as a store manager, he lacks the training or expertise to second- guess the decision of his pharmacist. Publix relies on the professional expertise and discretion of its pharmacists to determine whether or not to fill a prescription. Mr. Bloyen informed Petitioner that he was going to support the decision of Mr. MacDonald not to fill the prescription. At this point, Petitioner left the store. Neither Mr. MacDonald nor Mr. Bloyen had met Petitioner before this incident. Petitioner did not disclose to them that he had any disability or handicap, and none was visibly apparent. Mr. MacDonald testified that his decision not to fill Petitioner’s prescription was not based on Petitioner’s race, color, or sex. In fact, Mr. MacDonald’s initial decision not to fill the prescription was made and announced to the technician before Mr. MacDonald laid eyes on Petitioner. Petitioner’s race, color, sex, and alleged handicap or disability played no part in Mr. MacDonald’s decision not to fill the prescription. Mr. MacDonald did not make any disparaging remarks about Petitioner during their exchange, and no employee of Publix made racially derogatory or racially related comments to Petitioner. Petitioner testified that he was able to get the prescription filled at a Winn-Dixie pharmacy shortly after this incident. Therefore, Petitioner suffered no economic loss or quantifiable damages as a result of Publix’s refusal to fill his prescription. Petitioner testified that he seeks only an apology from Publix. Publix Store 0667 does not contain a restaurant or lunch counter and there is no designated area for customers to consume food on the premises. The store does contain a deli, but the food items sold from the deli are not intended for on- site consumption at Publix. The store has no picnic tables or other seating at which customers might consume food on the premises. Petitioner offered no credible evidence disputing the legitimate, non-discriminatory reasons given by Publix for refusing to fill his prescription. Petitioner offered no credible evidence that the stated reasons for not filling the prescription were a pretext for discrimination based on Petitioner’s race, color, sex, handicap, or disability. Petitioner offered no credible evidence that Publix discriminated against him in violation of section 760.08.
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 Publix Super Markets, Inc., is not a public accommodation under the facts of this case or, in the alternative, that Publix Super Markets, Inc., did not commit any unlawful acts of public accommodation discrimination and dismissing the Petition for Relief filed in this case. DONE AND ENTERED this 2nd day of February, 2016, in Tallahassee, Leon County, Florida. S LAWRENCE P. STEVENSON 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 2nd day of February, 2016.
The Issue Whether the Respondent committed a discriminatory housing practice as set out in the Notice of Determination: Cause and Issuance of an Administrative Charge dated August 27, 1996, and, if so, the relief that would be appropriate.
Findings Of Fact Based on the oral and documentary evidence presented at the final hearing and on the entire record of this proceeding, the following findings of fact are made: The Florida Commission on Human Relations is the state agency charged with investigating complaints of discriminatory housing practices and enforcing Florida's Fair Housing Act. Sections 760.30-.35, Florida Statutes. In 1981, the Florida Fair Housing Act was declared the substantial equivalent of the Federal Fair Housing Act, 42 U.S.C. Section 3601 et seq. Consequently, since 1981, the Commission has been charged with investigating fair housing complaints for both itself and the Department of Housing and Urban Development. Burgundy I is one of over 100 buildings comprising King's Point, a condominium complex located in Delray Beach, Florida. Burgundy I is a two-story building, with 24 condominium units on the first floor and 24 units on the second floor. The only access to the second-floor units is by stairs, and there are four stairways leading to the second floor, one on each end of the building and two spaced closer to the center of the building. The owner of a condominium unit in Burgundy I owns the space within the interior walls of the unit and an undivided interest in the common area associated with the building.1 All unit owners are members of the Burgundy I Condominium Association, a not-for-profit corporation governed by a Board of Directors ("Board") elected by the members. The affairs of Burgundy I are governed by the Burgundy I Declaration of Condominium and by the Articles of Incorporation and By-Laws of the Association. Burgundy I is also subject to Florida's Condominium Act, Chapter 718, Florida Statutes. Hyman and Ruth Tobin purchased a condominium unit in Burgundy I in 1981. Mr. and Mrs. Tobin live six months each year in their condominium unit and six months each year in their home in Marblehead, Massachusetts. They generally arrive in Florida in the first part of November and move back to Massachusetts in the first part of May. They have followed this pattern for the past ten years. Mr. and Mrs. Tobin own and reside in unit 419, on the second floor near the center of the Burgundy I building; the only access to their unit is by the stairs. In 1990 or 1991, Mr. Tobin was diagnosed with Parkinson's disease, which has become progressively worse since it was diagnosed. He also has an undiagnosed neuromuscular condition, and, in 1995, he suffered a small stroke. These conditions have resulted in Mr. Tobin's having extreme difficulty ambulating, even with the aid of a cane or a walker; this difficulty is obvious to the casual observer. Mr. Tobin's ability to ambulate is not expected to improve, and the parties have stipulated that Mr. Tobin is handicapped for purposes of Florida's Fair Housing Act. As a result of his handicap, it is very difficult for Mr. Tobin to go up and down the stairs, and he restricts his activities as a result. Although he is supposed to exercise in the swimming pool several times a week, he does not do so because of the difficulty he has negotiating the stairs. On several occasions, he has almost fallen on the stairs. In late 1994 or early 1995, Mrs. Tobin discussed with Jay Carron the feasibility of installing some type of device to assist Mr. Tobin in reaching the second floor of Burgundy I. Mr. Carron is certified by the state to install, maintain, and inspect elevators, and he owns Palm Beach Lifts, Inc., a state- registered elevator company that specializes in installing elevators and wheelchair lifts. Mr. Carron visited Burgundy I several times to evaluate the best means of providing Mr. Tobin access to the second floor of Burgundy I. The Tobins ruled out an elevator because it was too expensive. Mr. Carron investigated the feasibility of installing a chair lift on the stairs but, after taking measurements, decided that it would block egress and would not meet code requirements. He also considered the feasibility of installing a vertical wheelchair lift to the second floor of the building and determined that this alternative would meet Mr. Tobin's needs. He recommended either a hydraulic-drive or a screw-drive, free-standing lift. Mr. Carron has installed approximately 30 wheelchair lifts, and the units he recommended to the Tobins are commonly installed in shopping malls, nursing homes, office buildings, and condominiums, among other commercial and commercial/residential structures. Mr. Carron provided Mrs. Tobin with a copy of the industry standards for vertical wheelchair lifts and a copy of product information on the lift systems he recommended. He also provided her with a copy of his county occupational license, his state certificate of competency, his company's state registration, and his certificate of liability insurance. Both of the lifts Mr. Carron recommended accommodate a wheelchair and two people, although the hydraulic lift is the larger of the two units. A source of 110 to 220 volts of electricity is needed to operate the lift. Both of the lifts are free-standing and rest on a concrete slab that is six feet square. Mrs. Tobin and Mr. Carron discussed three potential locations for the lift: On the garden side of the building near the Tobins' unit; on the parking-lot side on a blank wall outside the bedroom of the unit directly underneath the Tobins' unit; and on the garden side, in the exact center of the building, where there would be convenient access to electricity. Mr. Carron also considered installing the lift so that it would open directly into the Tobins' unit. Regardless of which location is chosen, the lift will alter the common area of Burgundy I. If the lift were to open onto the walkway on the second floor, it would be necessary to cut through the railing to install a door leading from the lift to the walkway; if the lift were to open directly into the Tobins' unit, it would be necessary to cut through the wall of the unit. When he first spoke with Mrs. Tobin two years ago, Mr. Carron estimated that it would cost approximately $12,000 to install a wheelchair lift that would open onto the second-floor walkway. Shortly after she was given this estimate, Mrs. Tobin opened a bank account with her funds in the amount of $20,000 to pay for the installation of the lift and initial maintenance expenses.2 Mrs. Tobin later learned that it would cost approximately $3,000 more to install the lift to open directly into the Tobins' unit. The Tobins have not yet chosen a location for the lift. Mrs. Tobin believes that there will be opposition from many of the unit owners regardless of where the lift is located. In late 1994, Mrs. Tobin spoke informally to her second-floor neighbors about her intention to install a wheelchair lift; at about the same time, Mrs. Tobin told Harry Pulik, the president of the Association, about her proposal. Mr. Pulik's response to the proposal was very negative. Mrs. Tobin felt that he misunderstood what she wanted to do and asked that he call a meeting of the Association's Board of Directors so she could explain the proposal before the board. Mr. Pulik and other board members routinely put items on the agenda for a board meeting with nothing more than a verbal request from a unit owner.3 Notwithstanding this established practice, Mr. Pulik refused to call a board meeting to discuss Mrs. Tobin's request for a wheelchair lift. Sometime in late December 1994, Mr. Pulik attempted to contact the building inspector concerning whether a wheelchair lift could even be installed at Burgundy I; Mrs. Tobin was present when Mr. Pulik telephoned the inspector. He was on Christmas vacation, however, and was scheduled to return on January 3. Mrs. Tobin asked Mr. Pulik on January 4 if he had reached the building inspector. He told her he had not received a return call, and she never heard anything more from him on this matter. Meanwhile, Mrs. Tobin prepared a letter to her neighbors dated December 28, 1994, and hand-delivered it to the owners of Burgundy I condominium units who were in residence; she sent the letter by mail to those owners who were not in residence at the time. In the letter, Mrs. Tobin stated that "we" would like to install a hydraulic wheelchair lift for the use of the tenants of the building, that she and Mr. Tobin would pay for the installation of the lift, and that any neighbor wishing to use the lift could purchase a key for a one-time fee of $2,000 if paid before construction or $2,500 if paid after construction. Mrs. Tobin explained in the letter that the money raised from the key purchases would be used to help defray some of the costs of the lift and to fund on-going costs such as maintenance, utilities, repairs, and insurance. Mrs. Tobin did not send a copy of this letter to the board as a formal proposal, nor did she, at this time, formally advise the board that she wished to install a wheelchair lift. She knew, however, that the members of the board were aware of her plans because they were among the neighbors to whom she sent the December 28 letter. Mrs. Tobin followed up the December 28 letter in the latter part of January 1995 by taking a survey of her neighbors. The survey sheet listed the unit numbers and names of the owners of the Burgundy I condominium units. In the preface to the survey list, Mrs. Tobin wrote: "This is to inform you that we plan to install a wheelchair lift in the Burgundy I condominium, so that my husband and all upstairs participating neighbors can fully enjoy our premises."4 The survey sheet was divided into four columns, and Mrs. Tobin requested that each neighbor initial one column, specifying that "I do not object," "I will participate," or "I do object"; if anyone objected, Mrs. Tobin requested that they state the reason in the fourth column. According to the results of the survey, twenty-four owners did not object, nine second-floor owners stated that they wished to participate, five owners objected, and ten owners refused to sign, could not be reached, or were unsure. A short time after she gathered these responses, Mrs. Tobin had a meeting in her unit with the owners who had indicated that they wished to participate by purchasing a key to the lift. At this meeting, she discussed her proposal in detail. She did not, however, discuss the proposal in detail with any other neighbors. Because no action had been taken on her request for a meeting of the Association's Board of Directors, Mrs. Tobin filed the Housing Discrimination Complaint with the Commission on February 22, 1995.5 This complaint initiated the investigation that resulted in the discrimination charges. On March 3, 1995, a meeting was held with Ron Raible, a representative of Prime Management Group, the company that is under contract with the Association to provide management services to Burgundy I. The meeting was requested by Mrs. Tobin and attended by Mrs. Tobin and by Salvatore Amato, another resident of Burgundy I who has long been interested in installing some type elevator or lift to provide vertical accessibility to the second floor of Burgundy I. Mr. Carron also attended the meeting and gave Mr. Raible a copy of the materials he had earlier presented to Mrs. Tobin. Mr. Raible expressed his satisfaction that these documents were in order. Mr. Carron explained the lift and the process of installation to Mr. Raible. Additionally, Mr. Amato gave Mr. Raible a drawing he had done, which purported to show, to scale, the lift's dimensions in relation to the features of the condominium building at one of the locations under consideration. The drawing is not, however, to scale, and the open area in which the 6' x 6' concrete slab is shown is actually much smaller than it appears in the Amato drawing. Mr. Raible prepared a memorandum to Mr. Pulik dated March 10, 1995, in which he reported on the March 3 meeting. Mr. Raible stated that the issues were discussed in a "very amicable, cooperative, and positive mood"; that the plan was to install a lift not an elevator; that a bank account had been established in the amount of $20,000 to fund installation of the lift; that the results of a survey taken by Mrs. Tobin showed that thirty-two owners did not object to installation of the lift; and that Mr. Carron "was quite informed and apparently has done his homework with respect to the lift and how the county would view the installation along with the counties [sic] requirements." Mr. Raible also reported in this memorandum that the location of the lift was discussed, and Mr. Raible identified the location as between first-floor units 394 and 397.6 Mr. Raible also reported that he discussed financial responsibility for the lift with Mrs. Tobin and that he had made specific suggestions to her regarding access to the lift and responsibility for the costs associated with its operation, "pending conformation [sic] of attorneys from both sides." Finally, Mr. Raible advised Mr. Pulik that he should not act on the wheelchair lift proposal until a response to the discrimination complaint was received from the Commission; that he should not talk about the proposal with any unit owner or with any member of the board in open meeting; and that he should familiarize himself with the information provided by Mr. Carron concerning the lift unit itself. In Mrs. Tobin's view, she presented her formal proposal for the wheelchair lift to Mr. Raible, as an agent for the Association, at the March 3, 1995, meeting, and she had no reason to think that the proposal was not complete because Mr. Raible did not ask her for any additional information at or after the March 3 meeting. As of March 24, 1995, the board still had not met to discuss Mrs. Tobin's request to install a wheelchair lift. On that date, in a letter signed by Mrs. Tobin and seven other condominium owners, Mr. Pulik, in his capacity as president of the Burgundy I Condominium Association, was asked to call a meeting of the Board of Directors of Burgundy I, to be held within ten days of the request, for the purpose of discussing the necessity for installing a vertical wheelchair lift at Burgundy I. On April 2, 1995, a properly noticed board meeting was held by the condominium mailbox for the stated purpose of deciding whether to hire an attorney to advise the board with regard to the complaint filed with the Commission by Mrs. Tobin. The board decided at the meeting to hire the law firm of Sachs and Sax for this purpose. There was, however, no discussion by the board relating to the substance of the request that the Tobins be permitted to install a wheelchair lift. Nonetheless, a survey dated April 2, 1995, was taken of the Burgundy I unit owners, and a majority signed a statement attesting "that we are opposed to the installation of a lift/elevator including the maintenance, insurance expenses, and like expenses including any and all liabilities likely to be incurred." A notice dated April 25, 1995, was posted in which the Association's Board of Directors notified all Burgundy I unit owners of a special board meeting to be held May 18, 1995, to discuss the request for a wheelchair lift. The agenda included on the notice indicated that the purpose of the meeting was to discuss the "discrimination claim," and it was noted that "THE ATTORNEY WILL ATTEND THIS MEETING FOR THE PURPOSE OF DISCUSSION." A detailed "Proposed Agenda for Discussion" included a series of questions under the headings of "Feasibility of Installation of Lift at Burgundy I" and "Procedures for Approval of Lift Installation."7 Mr. and Mrs. Tobin did not attend the May 18 meeting. As they had done every year since 1981, the Tobins had returned to Massachusetts in early May. Because of Mr. Tobin's health, Mrs. Tobin could not leave her husband to travel to Florida for the board meeting. Although there was general discussion of the wheelchair lift at the May 18 board meeting, there was no discussion of the specific items included in the proposed agenda because much of the information could only have been provided by the Tobins. Consequently, no action on the request for installation of a wheelchair lift was taken by the board at the May 18 meeting because the board wanted more information regarding the Tobins' proposal. A board meeting was held March 4, 1997, a month before the final hearing in this case, and Mrs. Tobin and her daughter attended. At least one of the board members asked questions of Mrs. Tobin regarding her proposal, which she refused to answer. Pursuant to paragraphs 2.7 and 9 of the Burgundy I Declaration of Condominium, the owners of all of the units in Burgundy I are liable to pay assessments to cover the common expenses of the condominium and of the Association, and these common expenses include expenses for "insurance, maintenance, operation, repair and replacement of the common elements . . . and other common facilities of the Project." Pursuant to Section 7.5 of the Declaration of Condominium, as amended effective December 31, 1981, the entire membership must approve in writing any alteration to the common elements: Alteration and improvement. After the completion of the improvement included in the common elements contemplated by the Declaration, there shall be no alteration nor further improvement of common elements or acquisition of additional common elements without prior approval in writing by the record owners of all of the units; provided, however, that any alteration or improvement of the common elements or acquisition of additional common elements bearing the approval in writing of the record owners of not less than 50% of the common elements, and which does not interfere with the rights of any owners without their consent, may be accomplished, and the owners who do not approve are not relieved from the cost of the alteration, improvement or acquisition. Pursuant to paragraph 3.3 of the Association's By-laws, a special meeting of the membership of the Association may be called at the request of a majority of the Board of Directors or at the written request of a majority of the unit owners. SUMMARY OF THE EVIDENCE Mr. Tobin is disabled and the evidence presented by the Commission is sufficient to establish that some type of vertical accessibility device is necessary to allow him the full enjoyment of his condominium unit and the facilities at Burgundy I. The evidence presented by the Commission is also sufficient to establish that a wheelchair lift is a reasonable device for providing Mr. Tobin access to and from his second- floor unit. The evidence presented by the Commission is also sufficient to prove that the Association refused to permit the Tobins to install a wheelchair lift at Burgundy I. Installation of a wheelchair lift would necessarily alter a portion of the common elements. Consequently, depending on whether the proposal would potentially interfere with the rights and obligations of any of the unit owners without their consent, the proposal must be approved in writing either by all of the Burgundy I condominium unit owners or by fifty percent of the unit owners. Since the Association's Board of Directors has never formally presented the Tobins' request to the unit owners, the request has technically never been refused. Nonetheless, even if the board thought the Tobins' proposal to install a wheelchair lift was ill-advised or incomplete, the proposal should have been presented to the Association's membership for discussion and a vote at a special membership meeting called for that purpose. The Association's board has not, however, called such a meeting. Therefore, even though it cannot approve the Tobins' request to install a wheelchair lift, the board, acting on behalf of the Association, effectively refused to permit the modification by its inaction. The evidence presented by the Commission is not, however, sufficient to establish that the Tobins' proposal to install a wheelchair lift in the common elements of Burgundy I constitutes a reasonable modification to the premises. The Tobins have not chosen the site where they wish to install the lift. The lift's location is an important factor in determining whether the proposed modification to the condominium premises is reasonable. The installation of a wheelchair lift will affect the Burgundy I unit owners and, most especially, those persons who own units near the lift, and the impact on their rights to enjoy the premises should be considered. The evidence presented by the Commission is, likewise, not sufficient to establish that the modification proposed by the Tobins will be undertaken at their expense. All the unit owners of Burgundy I are responsible for paying their pro rata share of the expenses of maintaining the common elements of the condominium and of any other costs related to their ownership of an undivided interest in the common elements. As a result, for the modification to be at the Tobins' expense, their proposal must shield the unit owners from liability for any of the expenses relating to the installation and operation of the wheelchair lift. Mrs. Tobin testified at the final hearing that she intends to pay the entire cost of installing the lift and stated her willingness to pay for an annual service contract covering minor maintenance, for annual inspections, and for electricity. She also testified that she will purchase whatever insurance is necessary. She believes these costs will be minimal, although she does not know how much insurance will cost. She will not, however, commit to assuming sole responsibility for the expense of major maintenance on the lift because she believes that she cannot afford to pay these costs. Rather, it is, and has been, her plan to offer her neighbors the opportunity to purchase a key allowing access to the lift, with the proceeds from the sale of keys being set aside as a maintenance fund. There is, however, no evidence to establish, for example, that the Tobins will collect enough money from the sale of keys to the lift to create a viable maintenance fund; or that they have a contingency plan for providing for payment of maintenance expenses if the balance in the maintenance fund is insufficient to cover the expenses; or that they have made arrangements for purchasing the service contract and paying for inspections, electricity, and insurance if they cannot afford to pay these costs or if they no longer need the use of the lift.8 In addition, there is no evidence that the Tobins have made provision in their plan to install a wheelchair lift for shielding the Burgundy I unit owners from liability for costs and expenses arising out of the installation and use of the lift. The Commission has, therefore, not sustained its burden of proving that the Association has violated Florida's Fair Act Act.
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 Notice of Determination charging the Burgundy I Condominium Association with a violation of the Florida Fair Housing Act. DONE AND ENTERED this 12th day of November, 1997, in Tallahassee, Leon County, Florida. PATRICIA HART MALONO Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (904) 488-9675 SUNCOM 278-9675 Fax Filing (904) 921-6847 Filed with the Clerk of the Division of Administrative Hearings this 12th day of November, 1997.
The Issue Whether Petitioner received notice of the March 29, 2006, Notice of Hearing that complied with the legal requirements for being provided notice.
Findings Of Fact The Notice of Hearing which scheduled the hearing for March 29, 2006, was issued on February 14, 2006. There is nothing on the docket that indicates that the Notice of Hearing mailed to Petitioner was returned as undeliverable.1/ Michelle Girard-Smith is employed as a receptionist at McLin & Burnsed, P.A., located at 1000 West Main Street, Leesburg, Florida. This is the address on the Notice of Hearing which set the hearing for March 29, 2006. According to Ms. Girard-Smith, Petitioner came to the hearing location on Wednesday, March 22, 2006, one week earlier than the scheduled date for the hearing. Petitioner had the Notice of Hearing in his hand and showed it to Ms. Girard-Smith. She pulled out the conference room calendar and noted that the calendar showed the conference room was scheduled for the hearing on Wednesday, March 29. She pointed out to Petitioner that he was there a week early. While Petitioner acknowledges that he arrived at the hearing location on a date earlier than the scheduled day, he asserts that he arrived on Friday, March 24, 2006. He also asserts that he went back to the hearing location one week later on Friday, March 31, 2006. The undersigned finds the testimony of Ms. Girard-Smith to be more persuasive. She was certain that Petitioner had the Notice of Hearing in his hand when he arrived on March 22, 2006, and that she showed him that he was one week early. Petitioner received actual notice of the March 29, 2006, hearing.
Recommendation Based upon the foregoing Findings of Fact and the Conclusions of Law, it is RECOMMENDED: That the Florida Commission on Human Relations enter a final order dismissing Petitioner's Charge of Public Accommodation Discrimination. DONE AND ENTERED this 18th day of September, 2006, in Tallahassee, Leon County, Florida. S BARBARA J. STAROS 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 18th day of September, 2006.
