The Issue Whether Respondents discriminated against Petitioner, Nisrine Smith, on the basis of her disability, in violation of the Florida Fair Housing Act (FHA), chapter 760, part II, Florida Statutes; and, if so, the appropriate penalty.
Findings Of Fact Respondent Ocean Towers is a residential condominium facility in Volusia County, Florida, with numerous condominium units. Respondent Sentry managed Ocean Towers during the time period relevant to the instant matter, but it no longer serves as the manager of Ocean Towers. Ms. Smith leased a furnished condominium unit from its owner and resided at Ocean Towers, beginning in January 2019. Ms. Smith paid monthly rent to the condominium unit’s owner, which also included all utility charges. Ms. Smith is a person with a nonvisible disability, which she described as post-traumatic stress disorder, depression, and anxiety, who requires the use of an emotional support animal (ESA).3 On September 8, 2019, Ms. Smith brought an approximately 14-week- old female Rottweiler puppy named Vida to live with her at Ocean Towers. At that time, the “Daytona Beach Ocean Towers Rules & Regulations” provided, in part, as follows: Respondents’ Proposed Recommended Order concedes certain dispositive facts, and also includes contradictory factual findings—both within the Proposed Recommended Order itself, as well as when compared to evidence presented—that the undersigned considered and discusses in this Recommended Order. 3 Both Petitioner’s Proposed Recommended Order, as well as Respondents’ Proposed Recommended Order (which, as discussed in footnote 2 above, is largely duplicative of Petitioner’s Proposed Recommended Order), assert—in identical fashion—that Ms. Smith has a disability and requires the use of an ESA. While the evidence at the final hearing was not entirely clear on this point (a point which resulted in FCHR finding no reasonable cause), Respondents, in their Proposed Recommended Order, concede this point. The undersigned has thus based this Finding of Fact on this stipulation. Confusingly, other “original” or “nonduplicated” portions of Respondents’ Proposed Recommended Order state that Ms. Smith never provided documentation to it that she had a disability, which required an ESA, but Respondents have clearly conceded this particular factual finding in their Proposed Recommended Order. PETS: Guests may not have pets in the building. All authorized small pets except certified service dogs must be carried while in public areas of the building and garage. Unless inside units, pets must be on a leash and owners are responsible for cleaning up after their pet while on [Daytona] Towers property. Ms. Smith had not informed Ocean Towers about Vida’s arrival prior to bringing her to Ocean Towers. On September 12, 2019, Maria Montgomery, who was the administrative assistant for Ocean Towers, emailed Ms. Smith concerning Vida. The email stated that “new pets are to be firstly reported to the office and rules apply as I am sure you are aware.” It further states that “Service animal or companion pets all need to have registered papers copied to the office[,]” and further states “[w]e do not need to know ‘why’ if it is a companion animal-we just need to have the authorization on file for Security, etc. in the event someone asks why an animal not in the ‘normal’ pet description of 20 pounds or less is living in the building ” Ms. Montgomery’s September 12, 2019, email to Ms. Smith was likely precipitated by Ocean Towers resident Ms. Honeycutt, who was also the condominium association president in 2019. Ms. Honeycutt—who has been paralyzed since birth and uses a wheelchair—testified that she encountered Ms. Smith and Vida on two occasions. On the first occasion, in an elevator, Ms. Honeycutt testified that Vida jumped on her lap. On the second occasion, in the condominium lobby, Ms. Honeycutt testified that Vida again jumped on her lap, but that she was able to move away from Vida. Mr. Zehrung, who was the manager at Ocean Towers in 2019 (and employed by Sentry), testified that he received numerous complaints from other tenants about an unleashed Rottweiler, and was aware of Ms. Honeycutt’s encounters with the dog as well. After determining that Ms. Smith was the owner of the dog, he informed her of the Ocean Towers “Rules and Regulations” concerning pets; he stated that Ms. Smith did not initially tell him that Vida was an ESA, but did so about one week after this conversation. In response to Ms. Montgomery’s email request, Ms. Smith provided Ocean Towers with a letter, dated September 17, 2019, from the “Medical & Psychiatric Clinic of Florida, Inc.,” from “Yessica Sanchez, Office Coordinator, ARNP.” That letter stated: Ms. Nisrine Smith is currently being treated at the Medical & Psychiatric Institute of Florida, Inc. Ms. Smith presently has her pet Rottweiler, also known as Vida, with her in her apartment. It would be beneficial for her to have her pet if the apartment complex allows her to keep it. The September 17, 2019, letter, which is not from a treating physician, makes no reference to whether Ms. Smith has a disability, and further makes no reference to her dog as an ESA, but rather refers to the dog as a “pet.” Ms. Smith testified that, after submitting the September 17, 2019, letter to Ocean Towers, she felt everything would be “okay,” and that she would be able to keep Vida as an ESA. However, she testified that she was “rudely treated” by other residents, including comments about the dog’s size, and the Ocean Towers rules that require a resident to carry their pet while in the lobby and indoor common areas. Ms. Smith felt that she was being discriminated against by Ocean Towers because of Vida’s dog breed, Rottweiler. Both Ms. Honeycutt and Mr. Zehrung testified that the September 17, 2019, letter that Ms. Smith submitted to Ocean Towers was not a sufficient request for an ESA. They both testified that had Ms. Smith submitted an appropriate “ESA letter” with “correct documentation,” Ocean Towers would have allowed Ms. Smith to keep Vida at Ocean Towers. Mr. Zehrung testified that there were three or four other tenants of Ocean Towers who had ESA’s, with “documentation.” On September 19, 2019, Ocean Towers, through its attorney, sent, via certified and regular mail, a letter to Ms. Smith and the owners of the condominium unit, that stated, in pertinent part: It is our understanding that your current tenant has a rottweiler within the unit. Said possession of the dog in the unit in common elements of the Association is a violation of the governing documents of the Association. * * * The Association received a letter from your tenant indicating that the rottweiler is an emotional support animal; however, regardless if it is an emotional support animal, the Association will not permit this animal to reside at the property because it is a dangerous breed on the Association’s insurance and only small animals are permitted. The dog is not a service animal, and therefore must be removed from the property by September 30, 2019. Furthermore, prior to the removal of the pet from the property, the owner must carry the pet when the pet is not within their unit, the dog must be on a leash, the dog may not be in the common elements of the Association and must only use the facilities that are designated for relieving pet waste. At no point is this dog allowed to be not on a leash or not hand-carried. In the event that the dog is not removed by September 30, 2019, the Association will file before the Department of Business and Professional Regulation a petition for injunctive relief seeking the permanent removal of the dog. In the event that this is necessary, the Association will be entitled to recover their reasonable attorney’s fees and cost. The September 19, 2019, letter from Ocean Towers to Ms. Smith directly contradicts the testimony of Ms. Honeycutt and Mr. Zehrung in two important ways: (a) it admits that Ms. Smith’s September 17, 2019, letter was a request for an ESA; and (b) it denies Ms. Smith’s request (“regardless if is an emotional support animal”), based on the dog’s breed, labeling it a “dangerous breed on the Association’s insurance[.]”4 The undersigned further notes that the September 19, 2019, letter from Ocean Towers makes no reference to any incident of Vida jumping on Ms. Honeycutt, or any other incident of alleged aggressive behavior of Vida. Although Ms. Honeycutt’s testimony that Vida jumped on her lap on two occasions is credited, Respondents failed to present any other credible evidence that Vida was an “aggressive animal,” or whether Vida posed any direct threat to the safety of the residents of Ocean Towers, as Respondents contend in their Proposed Recommended Order. Additionally, Respondents did not present any evidence that demonstrated that a rottweiler was forbidden under any insurance policy that covered the Respondents. Ms. Smith testified that she felt that Ocean Towers and its residents discriminated against and harassed her, and as a result, she decided to move out of her condominium unit the weekend of September 21 to 23, 2019. She testified that she received the September 19, 2019, letter during the weekend that she moved out. 4 The September 19, 2019, letter also contradicts numerous proposed findings of fact in Respondents’ Proposed Recommended Order which contest whether Ocean Towers ever received “proper documentation” of Ms. Smith’s request for an ESA. Respondents’ Proposed Recommended Order states that the September 19, 2019, letter, and a September 25, 2019, letter “were silent as to the need of an ESA and neither letter addressed that Smith suffered from a disability that would entitle Smith to have an ESA animal[,]” and, ultimately, that “Towers did not discriminate against Smith because Smith never provided documentation to the Association that she had a disability that required her to have an Emotional Support Animal.” Resp. Proposed Recommended Order at p. 5, ? H. The undersigned notes that the September 19, 2019, letter, which contradicts these proposed findings, was written by Ms. Kirian, who is counsel of record in this matter, and who authored the Proposed Recommended Order. Additionally, as stated in note 3 above, Respondents concede, in their Proposed Recommended Order (which is identical to Petitioner’s Proposed Recommended Order on this point), that Ms. Smith “is a person with a non-visible disability who requires the use of an Emotional Support Animal (ESA).” Resp. Proposed Recommended Order, p. 3, ? A. After moving out, on September 25, 2019, Ms. Smith provided another letter from the “Medical & Psychiatric Institute of Florida, Inc.,” from “Asad H. Kahn, M.D.,” to Ocean Towers, which stated: Attention: Current Housing Manager Ms. Nasrine [SIC] Smith is currently receiving treatment at our office for psychiatric condition. She has a pet dog. It would not be emotionally beneficial for her to lose her pets at this point. We do not have any opinion on risk of safety of the residential area due to the animal. The safety of the area needs to be assessed by the security of the housing project. Ms. Smith testified that after moving out, she was able to purchase a home. She contends that she incurred moving expenses when she vacated Ocean Towers, and that her current monthly mortgage payments, which do not include utilities, are more expensive than her previous rental payments at Ocean Towers. However, Ms. Smith did not present any persuasive evidence that quantified any damages she contends that she incurred as a result of Respondents’ discriminatory housing practices. The undersigned finds that Ms. Smith established, by a preponderance of the evidence, that Respondents discriminated against her based on her disability, by failing to provide a reasonable accommodation—an ESA—in violation of the FHA.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, the undersigned hereby RECOMMENDS that the Florida Commission on Human Relations issue a final order granting Nisrine Smith’s Petition for Relief, in part, as follows: (a) finding that Respondents engaged in a discriminatory housing practice based on Ms. Smith’s disability, by failing to provide a reasonable accommodation to Ms. Smith in the form of an ESA; (b) ordering Respondents to prohibit the practice of denying reasonable accommodations to individuals and tenants who request a reasonable accommodation on the basis of their disability; and (c) ordering Respondents to pay for the reasonable attorney’s fees and costs incurred by Ms. Smith’s counsel in this proceeding. DONE AND ENTERED this 30th day of March, 2021, in Tallahassee, Leon County, Florida. COPIES FURNISHED: Tammy S. Barton, Agency Clerk S ROBERT J. TELFER III 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 30th day of March, 2021. Nisrine Smith Florida Commission on Human Relations Room 110 4075 Esplanade Way Tallahassee, Florida 32399-7020 Joseph John St. Angelo, Esquire Community Legal Services of Mid-Florida 122 East Colonial Drive, Suite 200 Orlando, Florida 32801 Laura Qualatone Daytona Beach Ocean Towers, Inc 4188 South Atlantic Avenue New Smyrna Beach, Florida 32169 5143 Taylor Avenue Port Orange, Florida 32127 Marlene Kirtland Kirian, Esquire South Milhausen, P.A. Gateway Center 1000 Legion Place, Suite 1200 Orlando, Florida 32801 Cheyanne Costilla, General Counsel Florida Commission on Human Relations Room 110 4075 Esplanade Way Tallahassee, Florida 32399-7020
The Issue The issue in this case is whether Respondent, Zion's Hope, Inc., d/b/a Holy Land Experience (hereinafter "HLE"), discriminated against Petitioners, James Gantz and Bette Gantz, by refusing Petitioners entry into HLE due to the Gantzes's disability, i.e., being hard of hearing and requiring the service of hearing ear dogs.
Findings Of Fact Zion's Hope, Inc., is a Florida not-for-profit corporation formed in 1989. It is a religious entity with a Section 501(c)3 designation under the U.S. Tax Code as a bona fide charitable organization. HLE is a privately-owned religious theme park operated by Zion's Hope. Religious services are conducted at HLE seven days a week. HLE is located at 4655 Vineland Road, Orlando, Florida. The public, upon payment of an admission fee, is invited into HLE on a daily basis. James and Bette Gantz are an elderly married couple who reside for part of each year in North Port, Florida. Both James and Bette are hard of hearing and have suffered from this affliction for many years. James and Bette each have a certified hearing ear dog which accompanies them almost everywhere they go. The dogs were present at the final hearing. On March 19, 2010, James and Bette accompanied by their service dogs and Bette's sister, Lois Wilcox, decided to visit HLE. Upon arrival, they were told that the HLE parking lot was full, but that additional parking was available across the street. James dropped off Bette, the dogs, and Lois in front of the HLE entrance, then went to park the car across the street. When Bette, Lois, and the dogs approached the ticket window to purchase admission into HLE, they talked to one of the employees about the service dogs to make sure the dogs could accompany them inside. The employee opted to call her superior, Jane Wilcox (no relation to Lois), to make a determination about the dogs. Jane Wilcox testified that she approached Bette and Lois in the lobby area, i.e., an enclosed area akin to a hotel lobby, which housed the ticket windows. Bette and Lois said they were never inside a building at HLE; rather, the discussions that occurred happened outside on the sidewalk area. It seems most likely from the evidence that the conversation commenced inside the lobby and then continued outside. Jane Wilcox did a cursory examination of the dogs and decided they did not appear to be service dogs. She also determined that the dogs appeared to be "frisky" in nature and were not like other service dogs she had seen. It was her practice to make a determination as to whether an animal was a service animal or not by asking reasonable questions. This is the way she handles each of the 100 or so cases a year in which guests show up with animals. Jane Wilcox has not had any formal training from the Commission or other regulatory entity regarding service dogs. She was given on-the-job training by her predecessor and has studied written materials on the subject. Her experience in this area is somewhat extensive during her three and a-half year tenure at HLE. After Jane Wilcox made an initial visual determination that the dogs appeared to be pets, Bette attempted to advise her that the dogs were certified and had certification documents on the capes they were wearing. Bette and James had taken the dogs into numerous other businesses and had been asked many times for proof of the dogs' certification. Thus, they kept the certification documents on the dogs at all times. Jane Wilcox refused to look at the certification documents because she has been provided bogus certification documents on occasion. That being the case, she did not put any stock in documents that were presented to her by guests. Rather, it was her normal practice to ask questions of the owners and to visually examine the animals. Based on the answers and her observation, Jane Wilcox would come to a conclusion about the animal in question. The discussion between Jane Wilcox and Bette became somewhat heated once Jane Wilcox made her initial determination about the dogs. Bette was talking loudly, but she is prone to do that because of her hearing impairment. Jane Wilcox viewed Bette as being very excited and possibly offended by the refusal to admit the dogs into HLE. After a few moments, Jane Wilcox determined that communication with Bette had broken down to the point that further conversation was useless. At that point, she called for security assistance.1/ It appears that the matter could have been resolved to everyone's satisfaction had the conversation not degenerated into a contentious debate between the parties. However, it is impossible to ascertain from the facts submitted whether one party or the other was more responsible for the verbal melee. Therefore, no finding can be made as to that point. The security officer who arrived took Bette and Lois to his small security building, where they were joined by James. The security officer said that Jane Wilcox was within her rights to refuse their admission into HLE with the service dogs. He advised them that there was a facility nearby that would care for the dogs while the guests were at HLE. The security officer allegedly told the Gantzes that HLE was a private facility and not subject to federal or state law regarding disabled persons. He also supposedly said that HLE considers dogs like those belonging to the Gantzes as pets, rather than service animals. According to Bette, this "colored" security officer would not listen to her or allow her to talk. A Caucasian guard, however, allegedly told Bette that maybe the dogs should be allowed into HLE, but he was overruled by the first guard. The Gantzes then asked the security officer to call the local (Orlando) police, which he did. When the police officer arrived, he advised the Gantzes that he could not force HLE to admit the dogs, but that he would write up a report. The report written by the police officer indicates that "security officer Santis" called in the request for assistance. It is not clear from the evidence at final hearing which of the two aforementioned security officers was Santis. The incident narrative in the police report simply states: Contact was made with all parties. 'Gantz' were acc[ompanied] by certified service dogs for hearing along with proper documentation. Upon Mngt request to leave, did so without incident. The Gantzes and Lois Wilcox opted not to board the dogs at the nearby facility. Rather, they left HLE and, ultimately, filed a complaint against Zion's Hope with the Commission. HLE does have a policy of admitting service animals inside the attraction. However, as a private religious facility, it does not believe that it has to do so, i.e., it does not believe it is governed by the Americans with Disabilities Act. Of the 100 or so service animals appearing for admission each year, about 70 percent of them are admitted. The others are boarded or the owners opt not to enter HLE. HLE does have a strict policy disallowing pets from admission to the park. Inasmuch as Jane Wilcox found the animals with the Gantzes to be pets, they were denied admission on that basis.
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 Petitions for Relief filed by James Gantz and Bette Gantz in their entirety. DONE AND ENTERED this 31st day of March, 2011, 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 31st day of March, 2011.
The Issue Whether Respondent, a place of public accommodation, violated Chapter 760 and Section 413.08, Florida Statutes (2006), by failing to accommodate Petitioner, an individual with a disability.
Findings Of Fact Based on the oral and documentary evidence presented at the formal hearing and on the entire record of this proceeding, the following Findings of Fact are made: Petitioner, Ricky Krell, is physically disabled and entitled to the protection of the Florida Civil Rights Act. Respondent is the owner of Dustin's Barbeque, which is a structure for public accommodation. On June 5, 2007, Petitioner, accompanied by his wife and his service dog, Zsa-Zsa, visited Respondent restaurant for the purpose of eating therein. Petitioner and his wife were seated and ordered their meal without incident. Zsa-Zsa was on a leash which was several feet in length, long enough to allow the dog to "sniff" other customers and food. Zsa-Zsa began "sniffing" contiguous customers and their food. The lease was stretched across the aisle between tables. On one occasion, a waitress almost tripped over the leash. Respondent's employees, who were familiar with service dogs having been in the restaurant, opined that the dog did not conduct itself as a trained service dog. As a result of the dog's activities and concern for the health and safety of other customers and employees, Respondent's on-site manager requested that Petitioner control the dog. Petitioner was unwilling or unable to control the dog, and the dog's inappropriate conduct continued. As a result, the manager asked Petitioner to take the dog outside. Petitioner would have been able to complete his meal if he had been able to control the dog or he had opted to take the dog outside and return to his meal without the dog. Petitioner refused the request to take the dog outside and became loud and used profanity. Petitioner finished his meal. The request that Petitioner remove the dog from the restaurant was reasonable under the existing circumstance and did not reflect a discriminatory act against Petitioner. The City of Melbourne police were called and when the officer arrived, she issued a trespass warning to Petitioner and his wife.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Florida Commission on Human Relations enter a final order dismissing with prejudice the Petition for Relief for failure to establish an unlawful discriminatory act by Respondent. DONE AND ENTERED this 25th day of November, 2008, in Tallahassee, Leon County, Florida. S JEFF B. CLARK Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 25th day of November, 2008. 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 Katherine Hurst Miller, Esquire Kelly V. Parsons, Esquire Cobb Cole 150 Magnolia Avenue Post Office Box 2491 Daytona Beach, Florida 32115-2491 Ricky Krell 1889 Cedarwood Drive Melbourne, Florida 32935
The Issue Whether Petitioner is handicapped within the meaning of the Florida Fair Housing Act (Sections 760.20 – 760.37, Florida Statutes) or the Federal Fair Housing Act (42 USCA § 3601 et seq.).1 Whether Respondent discriminated against Petitioner in violation of either Act by refusing to waive its no pets policy, which would require Petitioner to remove his “emotional support animals” (two cats) from his condominium unit. Whether Respondent retaliated against Petitioner for his refusal to remove his cats from his condominium unit.
Findings Of Fact At all times relevant to this proceeding, Petitioner owned and resided in Unit 206 of the condominium building managed by Respondent. Petitioner is a male, born February 5, 1951. Respondent is the Board of Directors of the condominium building in which Petitioner resides. At all times relevant to this proceeding, Respondent had the following written policy (the no pets policy), which it routinely enforced2: 12. No Unit [sic] owner or lessee shall acquire a pet to be maintained in his or her unit, or shall such persons already possessing pets replace them when such pets die or are otherwise disposed of. No unit owner or lessee shall keep visiting pets in their unit. Petitioner bought Unit 206 in January 1999 and has since then lived alone in that unit with two cats. These cats have received no special training and have no special attributes. These cats were born to a cat that Petitioner and his late mother kept as a pet. Since his mother’s death in 1996, Petitioner has viewed these cats as his surrogate family. Respondent and Petitioner have engaged in a dispute regarding Petitioner’s alleged violation of its no pets policy that began in 1999 and is on-going. This dispute has involved multiple forums, with the current proceeding being the latest development. Respondent has received complaints from other residents of the condominium building that an unpleasant odor comes from Petitioner’s unit and that fleas have been found in the vicinity of his unit. On December 23, 2003, Dr. Seth Gottlieb, Petitioner’s physician, wrote the following: “To: Whom It May Concern:” William Kleinschmidt is a patient of mine. Mr. Kleinschmidt has a long-time severe physical disability and it is medically necessary that he his [sic] emotional support companion animals – his cats, to control the frequency and severity of his physical disability. By letter to Respondent’s president dated January 10, 2004, Petitioner asserted the following: While I realize that the Board and I disagree as to the interpretation of the condominium rules regarding pets, as my interpretation is based on the plain reading of the language within the common meaning of the said words, is that if a potential unit owner already has pets, they are acceptable and that no replacement pets will be brought in after the purchase. I may add that as a pre-condition to purchase of my unit, the board DID [sic] agree to my companion animals for my physical disability – the witnesses are both the buyer and the seller real estate brokers and others. I am requesting a special waiver of the pet rules as the board currently views them be made in my situation due to my disability. Please find attached a letter from my physician Seth Gottlieb, M.D., certifying that my companion animals are “medically necessary” for my disability. Please advise me in writing whether or not we have a special waiver as a reasonable accommodation. Although Respondent had been trying to force Petitioner to remove his cats from his unit since 1999, the letter of January 10, 2004, was the first time that Petitioner asserted that he was disabled and it was the first time he requested a waiver of the no pets policy to accommodate his disability. Prior to that letter, Respondent did not know and had no reason to know that Petitioner believed himself to be disabled. On April 19, 2004, Dr. Gottlieb wrote the following: “To: Whom It May Concern:” William Kleinschmidt is my patient, who has a significant emotional disability, as well as a long history of significant asthma. His asthma unfortunately has not been currently under good control. William clearly has a significant emotional component to his asthma, that is, his asthma is easily exacerbated by emotional triggers. William has companion animals which greatly help his emotional status. If he is not able to keep these companion animals there is a great likelihood that the emotional distress this will bring will significantly worsen his asthma. Therefore, it is medically necessary for William to have these emotional support animals to control the severity and frequency of his asthmatic disability. Dr. Gottlieb has no special training in psychiatry or psychology, and he did not treat or diagnose Petitioner’s anxiety. Dr. Gottlieb recommended to Petitioner that Petitioner seek professional help from a clinical psychologist or a psychiatrist. Petitioner refused to follow that recommendation. Petitioner has multiple allergens, one of which is cat dander. Dr. Gottlieb recommended to Petitioner that Petitioner seek professional help from an allergist. Petitioner refused to follow that recommendation. Dr. Gottlieb’s letters of December 23, 2003, and April 19, 2004, were written at Petitioner’s request and were based on statements made to him by Petitioner and on his observations of Petitioner. Dr. Gottlieb testified that he had never known Petitioner to be without his cats and he had no way of knowing what the consequences would be if Petitioner was unable to keep his cats. Dr. Gottlieb’s testimony does not establish that it is medically necessary for Respondent to waive its no pets policy as a reasonable accommodation of Petitioner’s handicapping conditions. Petitioner is a person with a handicap within the meaning of the Acts.3 At all times relevant to this proceeding, Petitioner has suffered from persistent asthma and emotional problems. There was no expert testimony as to the nature and extent of Petitioner’s emotional problems, but it is clear from the evidence that his emotional problems are debilitating. Petitioner is receiving no treatment for his emotional problems. Petitioner is receiving treatment from Dr. Gottlieb for his asthma. His asthma responds to medication prescribed by Dr. Gottlieb, but his asthma is not controlled by that medication and he suffers periodic asthma attacks of undetermined frequency and severity. Petitioner failed to establish that his two untrained cats are necessary for him to have equal opportunity to use and enjoy his dwelling within the meaning of either of the Acts. Petitioner’s cats are pets and while they undoubtedly provide emotional support as any pet should, they are not service animals4 and they have no special training that would enable them to assist Petitioner to overcome limitations imposed by his handicaps. Whether Petitioner’s cats help him avoid anxiety attacks, which could, in turn, trigger an asthma attack, is speculative. Petitioner asserts that two incidents prove that Respondent harassed him and retaliated against him because of his refusal to remove his cats from his unit. The first incident occurred in 2001 while Respondent was attempting to serve Petitioner with a subpoena during an arbitration proceeding. Because Respondent had difficulty serving a subpoena on Petitioner, Respondent had the arbitrator issue an order authorizing Respondent to have a locksmith open the door to Petitioner’s unit so the subpoena could be left in the unit. On September 21, 2001, Respondent hired a locksmith who unlocked the front door to Petitioner’s unit by drilling the lock on the door. A representative of Respondent thereafter entered Petitioner’s unit and left the subpoena for Petitioner inside the unit. An armed police officer was present when the door was opened and when Respondent’s representative entered the unit, left the subpoena, and exited the unit. These events occurred before Respondent had any reason to believe that Petitioner considered himself disabled or that he considered his cats to be emotional support animals. Respondent established that it was acting on advice of counsel and pursuant to the arbitrator’s order on September 21, 2001. Petitioner failed to establish that the events of September 21, 2001, were done to harass him or retaliate against him for asserting his rights under either Act. The second incident occurred in October 2003, when Respondent failed to give Petitioner proper credit for a maintenance assessment Petitioner had made. As a result of the error, Respondent wrote Petitioner a dun letter which reminded Petitioner that the failure to pay maintenance assessments could result in the imposition of a lien against his unit. Respondent failed to properly credit Petitioner’s payment as the result of a bookkeeping error. Respondent corrected the error as soon as Respondent’s bookkeeper discovered it. Soon thereafter, Respondent provided a written explanation of the error to Petitioner and apologized to him for the error. Petitioner failed to establish that the events of October 23, 2003, were done to harass him or retaliate against him for asserting his rights under either Act.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the FCHR enter a final order dismissing Petitioner’s Petition for Relief. DONE AND ENTERED this 25th day of, May 2005, 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 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 25th day of May, 2005.
The Issue The issue is whether respondent committed a violation of the Fair Housing Act as alleged in the petition for relief filed on August 21, 1996.
Findings Of Fact Based upon all of the evidence, the following findings of fact are determined: Petitioner, Melanie A. Hils, resides in Jacksonville, Florida. She is disabled by virtue of “birth defects in (her) legs,” and she receives a monthly disability check from the Social Security Administration, her sole income. Respondent, Advantage Property Management, Inc., is a Subchapter S corporation owned by Vernon L. Dean and is engaged in the business of managing residential rental properties in Jacksonville, Florida. In this case, petitioner contends that respondent, through the actions of its owner, violated the Fair Housing Act while she was a tenant in a property managed by respondent. Respondent denies the allegation. A preliminary investigation by the Commission on Human Relations (Commission) resulted in a Determination of No Reasonable Cause. The facts underlying this controversy are not lengthy but they are sharply in dispute. Petitioner first met Dean in March 1993 when she executed a lease agreement with him to rent an apartment at 1614 LaRue Avenue. She stayed in that apartment until April 30, 1994, when she moved into her husband’s mobile home. On June 8, 1995, petitioner signed a one-year lease with respondent to rent a one-bedroom apartment located at 2905 Downing Street. She agreed to pay $285.00 per month, including water. Shortly after she moved into the apartment, the hot water heater became inoperative, and petitioner called respondent’s office manager, Barbara, to request that a repair be made. The water heater was repaired by a local plumbing service on June 20, 1995. In her petition for relief, petitioner alleged that Dean made four unannounced visits to her apartment between June 12 and July 5, 1995. At hearing, however, she claimed that, without notice or invitation, he visited her on five occasions between the same dates, and they spoke for approximately thirty minutes each time. Petitioner says that respondent visited her to see if she “got moved in okay,” say “hello,” check the breaker on the water heater, “see if (her) hot water heater had been fixed,” and on the last visit, to “pick up her rent check” for July. On each of those occasions, she says they discussed a variety of subjects, ranging from music to boating, but nothing offensive or of a sexual nature. Except for a visit to check the water heater breaker, respondent denies that he ever visited the apartment. Assuming, however, that these visits occurred as described, they still did not constitute sexual harassment or rise to a level of being so pervasive or severe as to alter the terms, conditions or privilege of her tenacy. Petitioner also says that respondent, while in an excited state and breathing irregularly, telephoned her early one Sunday morning suggesting that she ”have sex with him.” Respondent denies that such a call ever occurred, and his testimony is accepted on this issue. On July 5, petitioner says respondent appeared at her front door and asked for the July rent check. She described him as having “a very angry look on his face.” Petitioner’s contention that respondent followed her into the bedroom when she was writing a rent check and “took (her) glasses off,” but nothing more, is not deemed to be credible. Indeed, petitioner did not even allege this occurred in her complaints filed with HUD and the Commission. On August 29, 1995, petitioner gave respondent thirty days’ notice on her lease. She did so after receiving a telephone call from an unidentified person who said nothing but played a song with lyrics which “frightened” her. There is no evidence that respondent was the person who made the call. Although she remained in the apartment until at least the end of September, petitioner acknowledged that Dean never returned to the apartment after July 5. Given the totality of the circumstances, it is found that a hostile housing environment based on sexual harassment did not occur. Accepting petitioner’s allegation that respondent made five unwelcome visits to her apartment, such visits were not so severe or pervasive as to alter the terms, conditions or privilege of petitioner’s tenency. Petitioner has requested quantifiable damages, fees and costs occasioned by her leaving respondent’s apartment. When she gave thirty days notice before the expiration of her lease, she lost her $200.00 deposit. She also incurred moving expenses of $150.00. She then signed a seven-month lease on an apartment on Oak Street for $260.00 per month, but later found it unsatisfactory because of foul odors and repairs which were never fixed by the landlord. When she terminated that lease before its expiration, she lost her $260.00 security deposit. On December 5, 1995, she moved into the Kings Inn at Regency, a motel, for which she paid a weekly rent of approximately $161.50. She departed the motel on July 8, 1996, and moved into an apartment in the Riverside area, where she has lived since July 1996. Petitioner asks for the difference between the rent paid at Downing Street and the higher rents she has paid since that time, plus any lost security deposits. In addition, she has incurred costs to pursue this action, including fees for a deposition and transcript. She has also asked for the payment of a “civil penalty” to the Jacksonville Area Legal Aid, Inc., which represented her in this action, and for damages for the “emotional distress suffered due to Respondent’s sexual harassment.”
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that the Commission on Human Relations enter a final order denying the petition for relief.DONE AND ENTERED this 6th day of May, 1997, in Tallahassee, Florida. DONALD R. ALEXANDER Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675, SUNCOM 278-9675 Fax Filing (904) 921-6847 COPIES FURNISHED: Migdalia Figueroa, Esquire 126 West Adams Street Jacksonville, Florida 32202 Vernon Dean Filed with the Clerk of the Division of Administrative Hearings this 6th day of May, 1997. Advantage Property Management, Inc. 1974 Fulton Place Jacksonville, Florida 32207 Sharon Moultry, Clerk Commission on Human Relations Building F, Suite 240 325 John Knox Road Tallahassee, Florida 32303-4149 Dana A. Baird, Esquire Commission on Human Relations Building F, Suite 240 325 John Knox Road Tallahassee, Florida 32303-4149
The Issue Did the action of Respondent, in denying Petitioner the use of an emotional support dog in her condominium unit for her son, violate a legal duty to reasonably accommodate the needs of her son, A.C.?
Findings Of Fact The undersigned makes the following findings of relevant and material facts: Facts From Pre-hearing Stipulation Filed June 20, 2016 Petitioner was aware that the Association had a "no pet" policy and signed a document acknowledging same. Petitioner was sent a letter on February 24, 2014, from the Association's then property manager advising Petitioner that the Association had been advised that a dog was being kept in their unit, and reminding Petitioner of the Association's no pet policy. A Fines Committee hearing was scheduled for March 10, 2014, in regard to Petitioner's violation of the no pet policy. Petitioner was not issued a fine for violating the pet policy. Prior to the Fines Committee hearing, Petitioner made her first claim that her son had a disability and required an emotional support animal. Prior to the Fines Committee hearing, Petitioner made her first request to the Association for a reasonable accommodation. The Association's Board of Directors scheduled an interview with Petitioner on April 30, 2014, wherein Petitioner would be able to explain her request for a reasonable accommodation, the need for the emotional support animal, and her son's disability. The Association advised Petitioner, prior to the scheduled interview, that Petitioner may provide the Association with any documents Petitioner believes support her position. An interview and/or meeting occurred on April 30, 2014, between Petitioner, her husband, Yovani Cabreriza, Petitioner's attorney, and certain members of the Board of Directors, along with the Association's attorney, to discuss Petitioner's request for an accommodation. The Association determined that Petitioner was not in need of a reasonable accommodation and requested that the dog be removed via written correspondence dated May 19, 2014. The Association again requested that the subject dog be removed via written correspondence dated May 22, 2015, and advised Petitioner that an arbitration action would follow if the dog was not removed. A Petition for Arbitration was filed on June 4, 2015. Petitioner's response to the arbitration petition was filed on September 14, 2015. The arbitrator issued an order striking the complainants' defense and requiring proof of filing a Fair Housing Complaint. Petitioner filed her housing complaint with FCHR and Housing and Urban Development on November 2, 2015. On March 8, 2016, the FCHR housing investigator issued a "Notice of Determination of No Cause," concluding that reasonable cause does not exist to believe that a discriminatory housing practice has occurred. On April 8, 2016, FCHR received a Petition for Relief from an Unlawful Housing Practice from Petitioner. Findings of Fact From the Hearing This case involves a family who lives at Respondent's condominium complex, Arlen House Condominium, located at 300 Bayview Drive, Sunny Isles Beach, Florida 33160. Petitioner owns condominium unit PH05. Petitioner resides at this location with her husband and minor son, A.C. Petitioner's son was 11 years old in 2014. Her son has suffered from an anxiety disorder since he was a young boy. A.C.'s anxiety disorder problem became worse in 2012. He cried every morning and did not want to go to school. Apparently, he had difficulty breathing during anxiety or panic attacks. His mother described him as being "completely withdrawn" at school.1/ To help her son cope with his anxiety problem, Petitioner bought him a small dog, Jake, in the latter part of 2012. When she bought the dog, she knew that the condominium had a "no pet policy," but failed to alert the condominium or request permission to keep the dog.2/ In early 2014, the Association discovered that the dog was being kept in violation of the Association's rules and regulations. It notified Petitioner in writing on February 24, 2014, and told her to remove the animal. Resp. Ex. 2(e). March 10, 2014, Meeting Petitioner met with the Association's Fine Committee on March 10, 2014. During the meeting, Petitioner presented, for the first time, a letter or letters from the child's doctor, Rasciel Socarras, M.D.3/ Resp. Ex. 2(f). After the meeting before the Fine Committee, counsel for the Association sent Petitioner's counsel a letter dated March 21, 2014. Resp. Ex. 2(g). Essentially, the letter reiterated the "no pet policy" and concluded that Petitioner had failed to demonstrate to the Fine Committee that her son had a disability that substantially limited a major life activity or that an accommodation was necessary to afford him an equal opportunity to use and enjoy their condominium unit. The letter also requested a meeting to help the Association "conduct a meaningful review of your client's request for an accommodation."4/ Prior to the next meeting between the parties on April 30, 2014, counsel for the Association sent a letter to Petitioner's counsel dated April 18, 2014. In that letter, counsel requested copies of any and all documents that may support the boy's disability and need for an accommodation, including but not limited to the medical records that demonstrate his disability.5/ April 30, 2014, Meeting As arranged, Petitioner and her husband, along with their legal counsel, met with the Board of Directors on April 30, 2014. At the meeting, Petitioner explained her son's anxiety problem.6/ Although the record was not clear on this point, based on the evidence and the reasonable inferences drawn from the evidence, the undersigned concludes that the two (2) letters (dated and undated) from Dr. Socarras were reviewed and discussed during the April 30, 2014, meeting with Petitioner.7/ The board members asked Petitioner several questions about her son's condition. Petitioner informed the Board of Directors that her son was not on any medication to treat his anxiety, nor was he receiving any mental health counseling or therapy. Petitioner told the Board of Directors that she had diagnosed the child as having problems with anxiety. The Board of Directors also asked her how her son was performing in school and learned that he was enrolled in the gifted learning program at his school.8/ As a result of the meeting, the Board of Directors concluded: (1) that it did not have enough information to determine whether the child was limited in his ability to live in the unit; (2) that he had a disability; or (3) that the pet was medically necessary for him. As a follow-up to that meeting, on May 19, 2014, the Association's counsel sent a letter to Petitioner. The letter outlined the Board of Directors' position and speaks for itself. See Resp. Ex. 2(i). The letter stated in relevant part: At this time, the Board of Directors can neither approve your request for an accommodation nor can it provide an exception to its "no pet" policy. You have been unable to provide information that supports that your son suffers from a physical or mental impairment that substantially limits one or more of his daily activities. There has been no documentation to support that your son has been diagnosed or treated for a disability. More importantly, you have not provided relevant information that your son has a disability or that the dog helps alleviate any identified symptoms. The letter concluded by demanding that the dog, Jake, be removed from the condominium unit no later than Monday, June 2, 2014.9/ Nearly a year of "radio silence" passed with no activity by either party. The Association did not check on the removal of the pet, and Petitioner did not remove the dog despite the demand by the Association. A year later, on May 15, 2015, the Association acted and sent another letter to Petitioner demanding that she remove the pet. Again, Petitioner did not remove the pet. On June 4, 2015, the Association filed a petition for mandatory non-binding arbitration with the Florida Department of Business and Professional Regulation. Ultimately, the arbitrator entered an order on November 19, 2015, staying the arbitration case until the resolution of the discrimination complaint filed by Petitioner with FCHR. Based on the evidence presented, the undersigned concludes that during the meeting on April 30, 2014, with the Board of Directors, that other than the letter(s) from Dr. Socarras, and an identification certificate for their pet dog Jake, there was no other medical information or documentation provided by Petitioner to assist Respondent in reviewing and evaluating her request for the accommodation to keep Jake in the unit.10/ As a related topic, the Board of Directors had previously approved service animals for at least two (2) other residents.11/ One resident had suffered a stroke and needed assistance to walk. Another resident had a serious medical condition and was allowed to keep a service animal which was trained to detect the onset of the person's medical condition. In both instances, the Board of Directors followed the same process followed in Petitioner's case. Letters were sent and meetings were held. However, in the cases where a service animal was approved, the Board of Directors requested and was provided medical records which it relied upon to conclude that a service animal was needed as a reasonable accommodation. Prior to this hearing before DOAH, the Board of Directors had not been informed, and no claim was made, that "learning" was a major life activity that was substantially impaired by A.C.'s anxiety.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Florida Commission on Human Relations enter a final order dismissing Petitioner's complaint for discrimination. DONE AND ENTERED this 31st day of August, 2016, in Tallahassee, Leon County, Florida. S ROBERT L. 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 31st day of August, 2016.
The Issue Whether the Petitioners' application for relicensure of their foster home should be approved.
Findings Of Fact At all times material to this case, Charles and Linda Grillo ("Grillos") operated a foster home licensed by the Department of Health and Rehabilitative Services ("DHRS"). The DHRS is the state agency charged with responsibility for licensure of foster parents and foster homes and with regulating and enforcing the standards of care of children placed in such foster homes. The Grillos were first licensed as a foster home in 1989 and have been relicensed annually until, by letter dated August 11, 1992, the DHRS informed that the Grillos that their foster home would not be relicensed. The letter identified the specific grounds for the agency's decision. Prior to licensure as a foster parent, and annually thereafter, the DHRS requires that each person execute a document entitled "Agreement to Provide Foster Care for Dependent Children." The Grillos executed the document for all years during which they were licensed. Paragraph number 7 of the agreement provides that the foster parents "will cooperate in arrangements made by the Department for visits with the child by his parent(s) or other relative(s)." Paragraph number 8 of the agreement provides that the foster parents "will cooperate with the Department in plans for the child, such as adoption placement, transfer to another foster home, or return to parent(s) or other relative(s)." Paragraph number 9 of the agreement provides that the foster parents "will accept dependent children into our home for care only from the Department and will make no plans for boarding other children or adults." Paragraph number 10 of the agreement provides that the foster parents "will accept...board payment per month on behalf of the child in accordance with the Department's established payment schedule for dependent children." One of the reasons cited by the DHRS for the decision to deny the Grillos relicensure as a foster home was their "[f]ailure to timely inform HRS that a foster child (T.F., DOB: 11/3/87) had an accident and was taken to an emergency room for examination and treatment." On September 25, 1991, a foster child residing with the Grillos received minor scrapes when attempting to close an automobile door. The Grillos took the child to the emergency room for examination, but the examination revealed no serious trauma. On the evening of the incident and on subsequent days, Mrs. Grillo made repeated unsuccessful attempts to contact Mary Nunley (the child's case worker) at her office and her home in order to let an agency representative know about the incident. Mrs. Grillo left messages requesting that Ms. Nunley return the call, however the messages did not make clear the reason for the calls and did not indicate that the foster child had been injured and taken to the hospital. On October 17, 1991, Ms. Nunley visited the Grillos home and noticed that T.F.'s face was discolored as if it had been injured. Ms. Nunley inquired as to the cause and was told that the child had fallen on the driveway while closing the car door. Mrs. Grillo also suggested that the child had fallen while learning to swim in an unidentified pool. Ms. Nunley apparently asked no further questions related to the accident. There is evidence that another foster parent in close contact with Ms. Nunley often spoke, and on the day of the incident or immediately thereafter, informed Ms. Nunley of the injury to the boy. Ms. Nunley does not recall the conversations and testified that she was unaware of the child's examination at the emergency room until after a child neglect report was received and an investigation was initiated. The evidence fails to establish that the Grillos explicitly disclosed the details of the incident, including the examination at the hospital emergency room, to Ms. Nunley. Mrs. Grillo feared that the children (whom she hoped to adopt) would be removed from her home by the DHRS. The children were, in fact, subsequently removed from their home by a DHRS protective services investigator, apparently based, at least in part, on the failure to fully disclose the details of the accident of September 25. As further grounds for denial of the relicensure application, the DHRS states that the "[f]oster parents had a poor working relationship with the birth mother of one of their foster children (D.R., DOB: 8/2/89)". Because reunification of children with natural parents is the primary goal of foster care, it is important that licensed foster parents cooperate with the agency's plans for such reunification. There were instances when, during visitation between the birth mother and the child, the child would be removed from the mother and would be taken by one of the Grillos or their other children. The mother was occasionally denied the opportunity to feed or bathe the child, who she sometimes found in an unclean condition. On two separate occasions, one of the Grillos asked the birth mother for money, once for diapers and then to pay a utility bill after the Grillos electrical service was cut off. Although there is no evidence that the Grillos were not focused on what they believed to be the best interests of the child, they became too attached to the child. The Grillos were not cooperative with the child's birth mother and the DHRS plan to reunify the child with the birth mother, despite the fact that the birth mother complied with the requirements of the performance agreement which outlined the objectives which the birth mother was required to meet before the child could be returned and which was designed to permit her an opportunity to regain custody of the child. The DHRS letter, citing additional support for the denial of the relicensure application, states that "[y]ou allowed your adult son, Charles Grillo, Jr., to return to your home after being advised that you could not continue to be licensed if he resided in your home. In addition you have allowed numerous unrelated individuals to reside in your home without the knowledge and permission of HRS." The evidence establishes that the Grillos were told that DHRS officials were extremely concerned about the continued residence of their son Charles, Jr., in the home. Charles, Jr., had been involved in personal and legal difficulties which the DHRS asserted were not in the best interest of the foster children residing with the Grillos. There is no evidence which suggest that the DHRS position in the matter was unreasonable. Although Charles, Jr., initially moved from the residence, he subsequently returned. The Grillos did not notify the DHRS that he had again taken up residence in their home. The evidence is unclear as to if and when the Grillos were told that their foster home would not continue to be licensed if their son, Charles, Jr., resided in the structure. However, it is reasonable to expect, given the nature of the discussions which clearly did occur, that the Grillos were aware of the DHRS concern. The Grillos have now moved to one half of a duplex apartment, the other half of which will be occupied by their son. This arrangement does not constitute reasonable compliance with the DHRS policy. The evidence further establishes that the Grillos opened their doors to numerous neighborhood teenagers who were in need of shelter due to family turmoil. The Grillos also permitted an unrelated adult who had been involved in legal difficulties which the DHRS asserted were not in the best interest of the foster children to reside in their household. There is no evidence which suggest that the DHRS position in the matter was unreasonable. The DHRS asserted that their inability to control temporary residents with access to the home and its inhabitants adversely affected the DHRS ability to protect the foster children placed in the home. There is no evidence which suggest that the DHRS position in this matter was unreasonable. Further, the Grillos intend to continue to permit such teenage children to reside in their home when the Grillos see fit to do so. In the DHRS letter of denial, the agency further noted that "[p]ast circumstances show that there is a significant level of distrust between you and HRS. Constructive communication is difficult, if not impossible. However, it is not possible to fulfill the functions of substitute care parents without a good working relationship with HRS." There is evidence that a substantial level of mistrust exists between DHRS officials and the Grillos. Witnesses identified instances of miscommunication between the Grillos and the DHRS officials responsible for the foster care program. At hearing, such miscommunication continued to exist and indicates that reestablishment of trust is highly unlikely. Although the letter denying the application for relicensure cites specific violations of Florida Administrative Code provisions which the agency asserted warranted denial of the application, such rules were generally not in existence at the time of the alleged violations. However, the Grillos have clearly failed to comply with the requirements set forth in the provisions of the "Agreement to Provide Foster Care for Dependent Children" noted previously herein.
Recommendation Based on the foregoing, it is hereby RECOMMENDED that the Department of Health and Rehabilitative Services enter a Final Order DENYING relicensure of the Grillo Foster Home. DONE and RECOMMENDED this 2nd day of March, 1993 in Tallahassee, Florida. WILLIAM F. QUATTLEBAUM Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 2nd day of March, 1993. COPIES FURNISHED: Robert L Powell, Agency Clerk Department of Health and Rehabilitative Services 1323 Winewood Boulevard Tallahassee, Florida 32399-0700 John Slye, General Counsel Department of Health and Rehabilitative Services 1323 Winewood Boulevard Tallahassee, Florida 32399-0700 Charles & Linda Grillo 6677 Fiesta Way North Fort Myers, Florida 33919 Eugenie Rehak, Esquire DHRS District Eight Post Office Box 06085 Fort Myers, Florida 33906
The Issue The issue is whether Respondent engaged in a discriminatory housing practice, in violation of the Florida Fair Housing Act, Sections 760.20 through 760.37, Florida Statutes (2008),1 by revoking an accommodation which allowed Petitioner to have a support dog in his condominium on the alleged ground that the support dog presents a health hazard for Petitioner’s neighboring condominium resident.
Findings Of Fact Petitioner is a resident owner of a condominium in Embassy House Condominiums (Embassy House). Embassy House is a covered, multifamily dwelling unit within the meaning of Subsection 760.22(2). Petitioner’s condominium is a dwelling defined in Subsection 760.22(4). Respondent is the entity responsible for implementing the rules and regulations of the condominium association. Relevant rules and regulations prohibit residents from keeping dogs in their condominiums. Sometime after July 17, 2008, Respondent granted Petitioner’s written request to keep a support dog in his condominium as an accommodation based on Petitioner’s handicap. Respondent does not dispute that Petitioner is a handicapped person within the meaning of Subsection 760.22(7). Petitioner’s handicap includes cancer and depression. After Respondent granted permission for Petitioner to keep a support dog in his condominium, Petitioner purchased a small dog that weighs less than 15 pounds. Respondent now proposes to revoke permission for Petitioner to keep the support dog. The sole grounds for the proposed revocation is that the female resident of the condominium adjacent to Petitioner’s, identified in the record as Ms. Madeline O’Connell, allegedly is allergic to pet dander. A preponderance of the evidence does not support a finding that the support dog presents a health hazard to Ms. O’Connell. Neither Ms. O’Connell nor her physician, who is not identified in the record, testified. The admitted “sole basis” of Respondent’s position is a note from an unidentified, alleged physician that Respondent did not submit for admission into evidence. Respondent identified the note through the testimony of a lay witness, but never submitted the note for admission into evidence. The lay witness for Respondent identified the note as the note provided to him by Ms. O’Connell. The remainder of the testimony of the lay witness consists of statements by Ms. O’Connell to the lay witness concerning the alleged allergy of Ms. O’Connell. If the evidence were to show that Ms. O’Connell is allergic to pet dander, the support dog is a breed that does not have dander. The support dog is hypoallergenic. If the evidence were to show that the support dog were not hypoallergenic, adequate measures have been implemented to protect Ms. O’Connell from any threat to her health. The air conditioning vents that feed cool air from Petitioner’s condominium into the common lobby for the two condominium units have been sealed. The interior of the condominium units are cooled by separate air conditioning units. The trier of fact finds the paucity of testimony concerning the alleged health hazard to Ms. O’Connell to be less than credible and persuasive. Ms. O’Connell makes no effort to protect herself from exposure to the support dog. On at least three occasions, Ms. O’Connell voluntarily exposed herself to the support dog to make confrontational comments to Petitioner about the support dog.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Commission enter a final order upholding the Petition for Relief and dismissing the proposed revocation of the accommodation for Petitioner to keep a support dog in his condominium. DONE AND ENTERED this 25th day of June, 2009, in Tallahassee, Leon County, Florida. S DANIEL MANRY Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 25th day of June, 2009.
