The Issue Should the renewal of Petitioners' family foster home license for the 1995- 96 license year be denied?
Findings Of Fact Upon consideration of the oral and documentary evidence adduced at the hearing, the following relevant findings are made: At all times pertinent to this proceeding, the Department was the agency in the State of Florida responsible for the initial licensing and relicensure of family foster homes and foster parents. Petitioners Carmen Torres and Angel Torres (Petitioners) were licensed by the Department as foster parents and issued a Certificate of License, Certificate Number 0894-13-3, to operate the C and F Foster Home located at 801 North Anoka Avenue, Avon Park, Highlands County, Florida. The license was issued for a period of one year beginning August 12, 1994, and ending on August 12, 1995, unless renewed, extended, withdrawn, or revoked for cause. Sometime prior to August 12, 1995, the procedure set forth in Rule 10M- 6.020, Florida Administrative Code, for relicensing Petitioners was initiated by the Department. During the relicensing process, allegations of bizarre punishment and improper confinement of foster children were made against Petitioners. Based on these allegations, the Department denied Petitioners the renewal of their family foster home license, but the Department failed to notify Petitioners of that decision. Therefore, Petitioners were not given a point of entry to contest the Department's decision. After Petitioners' family foster home license expired on August 12, 1995, Petitioners contacted the Department's Bartow, Florida office by telephone to inquire as to why their family foster home license had not been renewed. In response to the Petitioners' telephone inquiry, the Department, by letter dated April 30,1996, advised Petitioners that their family foster home license had lapsed on August 12, 1995. The letter also advised Petitioners that their family foster home license had been denied primarily on the basis of "substantiated allegations of bizarre punishment and improper confinement of foster children," and further advised Petitioners of their right to contest that decision. C. S., a 12-year old foster child that was placed with Petitioners for approximately a week sometime around April 1995, testified that he was treated "pretty good" by the Torres; that although he was required to watch television a "lot" on a screened-in porch, he did not consider himself being improperly confined because he was allowed to leave the porch to use the bathroom and to eat. The Torres kept the children on the porch so that the Torres could maintain contact with the children while they worked in the home. C. S. also testified that he was not particularly "crazy" about the food prepared by Petitioners because it contained peppers and onions. C. S.'s younger brother, B. S., and younger sister, A. S., both foster children, were also placed with Petitioners at the same time. C. S. did not remember any of them being mistreated or punished in any fashion. The Department failed to present evidence to show that Petitioners punished the foster children placed under their care in a bizarre manner or any other manner, or that they improperly confined foster children placed under their care, or mistreated foster children placed under their care, notwithstanding the testimony of Liz Peralta (Torres) to the contrary, which I find totally lacking in credibility. It was obvious that this witness, a former daughter-in-law, had an "axe to grind" with Petitioners. Selma T. Sanford-Huber, a Department employee responsible for licensing foster parents and family foster homes, testified that she was in Petitioners' home around April 23, 1995, for the purpose of relicensing. Huber further testified that due to the allegations, all foster children were removed from Petitioners' home on May 5, 1995, and that no other foster children were to be placed in Petitioners' home during the investigation. Although Huber testified that she was concerned about the foster children in Petitioners' home, she was unable to present evidence of anything specific that would justify her concern for the children and require the denial of the renewal of Petitioners' family foster home license for the 1995-96 license year. It is clear from the evidence, or from the lack of evidence, that the Department has failed to prove the allegations set forth in its Notice of Denial dated April 30, 1996. Likewise, it is clear from the record that but for the allegations of "bizarre punishment and improper confinement" the Petitioners' family foster home license would have been renewed for the 1995-96 license year. However, that license would have expired on August 12, 1996, and there is no evidence that the procedure for relicensing Petitioners for the year 1996-97 is in progress or has been accomplished.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law it is, accordingly, recommended that Petitioners' family foster home license be renewed for the 1995-96 license year which ended on August 12, 1996. It is further recommended that should Petitioners wish to renew their family foster home license for the 1996-97 license year, which began on August 12, 1996, then the Department shall, in full cooperation with Petitioners, proceed with all due haste to complete the relicensing procedures outlined in Rule 10M-6.020, Florida Administrative Code. Upon completion of those procedures, should the Department's decision be to deny Petitioners renewal of their family foster home license for the 1996-97 license year, then the Department should immediately notify Petitioners of its decision and advise them of their right to a hearing to contest the denial. RECOMMENDED this 29th day of October, 1996, at Tallahassee, Florida. WILLIAM R. CAVE 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) 921-66847 Filed with the Clerk of the Division of Administrative Hearings this 29th day of October, 1996. COPIES FURNISHED: Gregory D. Venz, Agency Clerk Department of Health and Rehabilitative Services Building 2, Room 204X 1317 Winewood Boulevard Tallahassee, Florida 32399-0700 Richard Doran General Counsel Department of Health and Rehabilitative Services 1317 Winewood Boulevard, Room 201 Tallahassee, Florida 32399-0700 Angel and Carmen Torres 801 North Anoka Avenue Avon Park, Florida 33825 Jack Emory Farley, Esquire Department of Health and Rehabilitative Services 270 Bartow Municipal Airport Bartow, Florida 33830
The Issue The issue is whether Respondent, Walt Disney Parks and Resorts US, Inc. (Disney), a place of public accommodation, violated section 760.08, Florida Statutes, by denying Petitioner, a handicapped individual, access to its property because his service animal was unleashed.
Findings Of Fact Background Disney is a public accommodation whose principal business activity consists of the ownership, operation, and management of theme entertainment parks, resorts, and related facilities located in the Orlando area. The theme parks include Magic Kingdom Park, Epcot, Animal Kingdom Park, and Hollywood Studios. Petitioner is a 50-year-old male who resides in Winter Garden. In 2004, while living in Illinois, Petitioner was severely injured when a large truck rear-ended his motor vehicle. In 2007, he was declared permanently disabled due to leg and spinal injuries suffered in the accident. As a result of these injuries, he walks only short distances with the aid of a walking device or cane. For longer distances, he normally uses a motorized scooter. Petitioner moved to Florida around 2012 to escape the cold weather in Illinois. He testified that he and his family have always enjoyed visiting Disney theme parks and other non- Disney tourist attractions in the area, and this was one of the primary reasons he moved to the Orlando area. Until this dispute arose, he was a Disney Annual Passholder, which allowed him multiple admissions to the theme parks at a discounted rate. Although Petitioner says he used the pass to access the theme parks on numerous occasions, other than those at issue in this case, there is no credible evidence that he was allowed to enter the parks with an unleashed service animal on any occasion. The Service Animal In early 2013, Petitioner decided to acquire a service animal to assist him while ambulating inside and outside his home. He purchased Lily, an eight-week-old, female Dogo Argentino, which is a large, white muscular dog developed in Argentina primarily for the purpose of big-game hunting. A strong, powerful dog with a large bite, it is one of the deadliest breeds in the world and is banned in some European countries. Lily resembles a pit bull in appearance and weighs almost 100 pounds. In contrast, a mature male Dogo Argentino weighs around 150 pounds, but does not look like a pit bull. Petitioner testified that he wanted his service animal to look like a pit bull, so he chose a female even though a male is easier to train. Although purchased in early 2013, Lily did not begin service training until April 2014, or one month before Petitioner's first claim of discrimination at the Epcot theme park. Petitioner selected Southland Dog Training (Southland) as Lily's trainer. Lily was the first Dogo Argentino Southland had trained to be a service animal. Not surprisingly, Southland has an indemnity provision in its training agreements to protect itself from liability in the event a dog that has gone through the training program ends up harming someone. And even though Lily was given training on interacting safely with children in a crowded setting, and never exhibited aggression during its training sessions, Southland does not guarantee the dog will not harm someone. In fact, Southland's owner admitted that "[a]ny and every dog has the propensity to be aggressive, it's in their genes[,]" and "[a]ny breed of dog can be aggressive." A dog's propensity to be aggressive was also confirmed by Disney's canine expert, Bob Gailey, a professional police dog and civilian dog trainer who has trained between 20,000 and 30,000 dogs over a 65-year career, including Dogo Argentinos, and conducts seminars on dog training and safety issues. He explained that no amount of training can guarantee that a dog will not bite someone with or without provocation. For obvious safety reasons, he emphasized that service animals must be kept on a leash while in crowded public areas, such as a Disney theme park. Mr. Gailey noted that "freakish incidents" can and do occur, and that even trained dogs, such as Lily, need to be on a leash to protect the safety of others. In fact, Mr. Gailey pointed out that he has been bitten around 100 times by trained dogs, without any provocation, including some whose owners say they have never bitten anyone. He added that due to a Dogo's large bite, it could "definitely" kill a child. Thus, Disney has a real and legitimate safety concern, and not one based on mere speculation, that allowing unleashed service animals on its property poses a potential safety threat to other guests, especially children. To address this concern, Disney has adopted a policy for service animals, described below. Lily has been trained to perform the following tasks: open doors; push handicap buttons; retrieve items; and pull Petitioner out of a body of water. However, Petitioner can perform some of these tasks on his own, such as pushing handicap buttons and picking up items. Petitioner contends that forcing him to keep Lily on a leash or harness at all times could result in the leash becoming tangled in the scooter's wheels. However, Mr. Gailey established that besides being trained to perform all functions on a leash, service animals can be taught how to avoid getting their leashes tangled up with the wheels. Being leashed or tethered will not interfere with Lily performing her assigned tasks. Petitioner's Limitations Petitioner has had multiple surgeries related to his accident, the last one on his left shoulder on February 2, 2010. At a follow-up appointment, Petitioner's surgeon noted that he "has full range of motion, minimal pain at the end ranges of forward flexion [and] 4+/5 strength in all planes " Pet'r Ex. 21, at 00484. In plainer terms, this means that he has nearly normal strength and full range of motion in his left shoulder, with minimal pain. Petitioner does not dispute the doctor's findings. Although his right shoulder and arm are not at normal strength for an adult male, there are no serious medical issues with either, and Petitioner acknowledged that there are no physical limitations in using them. In fact, Petitioner uses his right arm to drive and steer his motorized scooter. When walking short distances, Petitioner uses a cane with his right arm, sometimes with Lily, other times without her. When Lily accompanies him, she provides balance and stability on his left side. When riding in his motorized scooter accompanied by Lily, Petitioner normally steers with one hand and grips a leash or harness attached to Lily with his other hand. The dog usually walks in front, or to the side, of the scooter. However, when the dog is in the follow position off-leash, Petitioner cannot see Lily and thus is unable to control her, even if she is wearing an electronic collar. As the Southland trainer explained, if the owner cannot see the dog, then they do not know what the dog is doing. Petitioner admits that he cannot maintain control of his service animal at all times without holding a leash or harness. In both his Petition for Relief and testimony at hearing, Petitioner acknowledged that except for "an extended period of time," his disability does not prevent him from being able to hold and use a leash or harness on Lily. This was confirmed by his wife. Despite the injury to his left shoulder, he has held and used a leash or harness with that arm. The greater weight of evidence supports a finding that Petitioner is able to hold a leash with his hand, at least for short or moderate periods of time, or that a leash can be easily tethered to his wrist or a mobility device on the scooter. A contention that the leash may become entangled in the scooter's wheels has been rejected for the reasons stated in Finding of Fact 8. Disney's Policy on Service Animals Disney theme parks are typically crowded and noisy. On any given day, tens of thousands of guests, including large numbers of young children, frequent the parks. Service animals are routinely granted access to the theme parks. However, Disney park rules provide that "[s]ervice animals must be under the control of the owner at all times and should remain on a leash or in a harness." Resp. Ex. 1, p. 2. The requirement is not just that the dog wear a harness, but rather that the harness is being used. For the reasons expressed above, there are legitimate safety concerns that underpin this rule. State and federal law require that a visitor seeking entrance to a public accommodation with a service animal must have the animal on a leash, harness, or other tether, unless either the handler is unable because of a disability to use a harness, leash, or other tether, or the use of one of those restraints would interfere with the animal's safe, effective performance of work or tasks, in which case the service animal must be otherwise under the handler's control, such as voice control, signals, or other effective means. See § 413.08(3)(a), Fla. Stat.; 28 C.F.R. § 36.302(c)(4). Disney contends that its policy conforms to both state and federal law. The Charges The Complaint, filed on February 3, 2015, alleges that on May 4, 2014, Petitioner was denied admission to Epcot because his dog was unleashed; on August 27, 2014, he was asked to leave Downtown Disney because Lily was unleashed; on October 9, 2014, he was denied admission to Magic Kingdom because Lily was unleashed; and on December 5, 2014, he was denied admission to Animal Kingdom due to Lily being unleashed. However, no evidence was presented concerning the visit to Magic Kingdom in October 2014, and that charge has been disregarded. The testimony concerning Petitioner's other three visits to the theme parks is sharply in dispute. The undersigned has accepted as being the most credible the following version of events. Epcot Visit in May 2014 On May 4, 2014, Petitioner visited Epcot with his wife, daughter, and service animal. As Petitioner entered the International Gateway in his motorized scooter, Lily was unleashed and sitting near the bag check area in front of the park, which was around ten or 15 feet from Petitioner. A main entrance cast member is a Disney employee trained on park rules who observes guests entering the park. A cast member noticed that Lily was off-leash, which was against park rules, and stopped Petitioner, informing him that he must have the dog on a leash before entering the park. Petitioner refused to do so. Petitioner's contention that the cast member had a belligerent and hostile attitude during the encounter is not credited. Even assuming arguendo this is true, treating a guest in a rude and hostile manner does not equate to discrimination by the public accommodation. See, e.g., Lizardo v. Denny's, Inc., 270 F. 3d 94, 102 (2d Cir. 2001). While Petitioner spoke with a second cast member, Lily was unleashed and untethered, approximately ten to 15 feet away from him near a half-wall by the entrance to the park. During the 30-minute encounter, there was little, if any, attention being paid to Lily, who had no physical tether to prevent her from wandering off. A cast member then contacted Jim Beeson, Epcot's Operations Manager, who arrived to speak with Petitioner and apologized for the delay in having to walk from another area of the park. Petitioner informed Mr. Beeson that he was unable to hold a leash and needed to have his service dog untethered. During his conversation with Petitioner, Mr. Beeson observed Petitioner talking with his hands and did not see any indication that Petitioner was unable to hold a leash. He also observed that there was no leash on Lily, unlike any service dog he had encountered while working at Disney. Mr. Beeson further observed that Lily was not always by Petitioner's side, she tried to get up and wander off several times during the conversation, and she did not respond to voice commands. In fact, Mr. Beeson noticed that Petitioner's wife continually had to push the dog back so that it would not leave. Based on his 33 years of experience at Disney, which includes observing numerous guests with service animals, Mr. Beeson concluded that Petitioner could not maintain control over his dog with voice and hand signals. At no time during the interaction did Lily perform any tasks for Petitioner. In Mr. Beeson's opinion, he questioned whether Lily was even qualified as a service animal. After speaking with Mr. Beeson for approximately 30 minutes, Petitioner decided to leave the park. Disney did not deny Petitioner access to the park on account of his disability, or simply because of Lily's breed. Nor was he treated differently than any other guest with a service animal. Rather, Disney's action was motivated solely by concerns for the safety of the other guests. Had he agreed to place a leash on Lily, Petitioner would have been admitted to the park. Downtown Disney Visit in August 2014 On August 27, 2014, a guest notified a Downtown Disney security cast member of concerns about a large, unleashed dog on the property, which turned out to be Lily. Security control radioed the duty manager, Dan McManus, who arrived on the scene less than ten minutes later. When he arrived, Mr. McManus saw Petitioner, accompanied by his wife, speaking with the security cast member. Petitioner told Mr. McManus that he was unable to hold a leash due to his disability. According to Mr. McManus, he did not see any indication that Petitioner was unable to hold a leash, as he observed Petitioner waving a large binder and flipping through pages of what he claimed were American with Disabilities Act (ADA) guidelines. Mr. McManus is familiar with ADA guidelines as he frequently encounters guests with service animals on the property. He noted that during his seven years at Downtown Disney, he has observed service animals of all different shapes and sizes on the property. However, Mr. McManus explained that these service animals are always on a leash or tether, and that if a guest is in a wheelchair or electric scooter, the guest may hold a leash, the leash may be tethered or attached to the scooter or wheelchair, or another member of the party may hold the leash for the guest. Petitioner refused to comply with any of those options. Mr. McManus again informed Petitioner that Disney's policy required that service animals be on a leash. He noticed that Lily was wearing some sort of a shock collar, but did not recall the dog wearing a harness. At no time during the interaction did Lily perform any tasks for Petitioner, who had informed Mr. McManus that Lily helps open doors for him. Before Mr. McManus arrived, Petitioner telephoned the Orange County Sheriff's Office and requested that a deputy sheriff be sent to the theme park, presumably to observe the encounter. Petitioner's conversation with Mr. McManus ended when two deputy sheriffs arrived on the property. At that point, Mr. McManus went back to his office to check with the Services for Guests with Disabilities Department to inquire whether an electronic collar would satisfy the leash requirement for service dogs. He was told to adhere to the Disney policy and require that the dog be on a leash. Before Mr. McManus returned, Petitioner departed the premises. Disney did not deny Petitioner access to the park on account of his disability or because of Lily's breed, and he was not treated differently than any other guest with a service animal. Had Petitioner used a leash or harness for Lily, he would not have been approached or stopped during his visit to Downtown Disney. Animal Kingdom Visit in December 2014 On December 5, 2014, Petitioner visited Animal Kingdom with his wife and mother. He was stopped at the front entrance because Lily was not leashed or tethered. Larry Hetrick, a guest service manager at the park, was called over to speak to Petitioner. When Mr. Hetrick arrived, Petitioner was speaking with two security employees. No other Disney personnel were present. Petitioner's perceived fear that Disney personnel were "waiting" for him when he approached the park is unfounded. Petitioner explained his interpretation of federal laws and civil cases to Mr. Hetrick but never said why Lily could not be on a leash. Contrary to Petitioner's testimony, Mr. Hetrick did not tell him that Disney's policies superseded federal law, and he patiently listened to Petitioner's summary of the law while examining his paperwork. At no time during the encounter did Lily perform any service animal tasks. Ten minutes later, the duty manager for Animal Kingdom arrived and the three spoke for another ten minutes or so. When Petitioner told them that he intended to file a legal action against Disney, the conversation ended. He was not told that he "had to leave the premises." Disney did not deny Petitioner access to the park on account of his disability or because of Lily's breed. Moreover, he was not treated differently than any other guest with a service animal. Had Petitioner complied with Disney's policy, he would have been able to access the park.
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, with prejudice, the Petition for Relief. DONE AND ENTERED this 26th day of April, 2016, in Tallahassee, Leon County, Florida. S D. R. ALEXANDER 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 26th day of April, 2016. COPIES FURNISHED: Tammy Barton, Agency Clerk Florida Commission on Human Relations 4075 Esplanade Way, Suite 110 Tallahassee, Florida 32399-7020 (eServed) Cheyanne M. Costilla, General Counsel Florida Commission on Human Relations 4075 Esplanade Way, Suite 110 Tallahassee, Florida 32399-7020 (eServed) Geoffrey E. Parmer, Esquire Dogali Law Group, P.A. Suite 1100 101 East Kennedy Boulevard Tampa, Florida 33602-5146 (eServed) Jeremy M. White, Esquire Kaye Scholer, LLP The McPherson Building 901 15th Street, Northwest Washington, D.C. 20005-2300 (eServed)
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 the Florida Commission on Human Relations (“the Commission”) has jurisdiction over Petitioner’s claim against Respondent.
Findings Of Fact The Commission conducted an investigation of GHA’s allegations. That investigation determined that GHA had not been acting as Ms. Duff’s attorney and that the assistance provided to Ms. Duff was mostly clerical in nature. The investigation also determined that GHA suffered no harm related to housing. As a result, the Commission determined that it had no jurisdiction over GHA’s claim. On November 18, 2016, the Commission issued a “Notice of Determination of No Jurisdiction.” In addition to notifying GHA of its decision, the Commission advised GHA that it could challenge its determination by requesting an administrative hearing. GHA filed a Petition for Relief with the Commission on January 30, 2017, and took issue with the Commission’s determination that it lacked jurisdiction over this matter. With regard to the Commission’s determination that GHA was not Ms. Duff’s attorney, GHA stated the following: Patrick Coleman did admit that he was not an attorney, however Patrick Coleman confirmed on several occasions that he and GHA have in fact been Ms. Kelly Duff’s representative by means of a Power of Attorney since May 11, 2016. Please see the attached Power of Attorney signed by Ms. Duff. Patrick Coleman of GHA admitted to not performing traditional phone testing or in person testing at the respondent[‘s] property – that is correct. However, GHA has stated that their Testing Investigation process included an investigation of the respondent’s housing process, including: the Concord Rental Agreement, the Service Animal Addendum, an in depth review of the Concord Rents website and their published documents, and a review of the Reserve at Brookhaven website followed by a review of their published materials. It was GHA’s investigation, recovery, and scrutiny of the Service Animal Responsibility Addendum that uncovered the potentially discriminatory language which prompted an inquiry regarding the Respondent’s policy addressing assistance animals in the pool area. As for the Commission’s determination that GHA’s assistance to Ms. Duff was mostly clerical in nature, GHA stated that it assisted Ms. Duff with protecting her “Fair Housing Rights” in the following ways: (1) interviewed Ms. Duff in order to verify that she was a bona fide victim of discrimination; (2) provided Ms. Duff with fair housing education via a webinar; (3) wrote two reasonable accommodation requests for Ms. Duff; (4) worked with Ms. Duff’s physician in order to draft a letter describing Ms. Duff’s disability and her need for an assistance animal; (5) wrote, reviewed, and approved all written communications from Ms. Duff to Respondent; (6) interviewed Ms. Duff’s employer; (7) wrote and filed Ms. Duff’s fair housing complaint; and (8) represented Ms. Duff during every phone interview conducted by the Commission. The Commission referred the instant case to the Division of Administrative Hearings (“DOAH”) on January 30, 2017. On February 14, 2017, the undersigned sua sponte issued an “Order to Show Cause” requiring GHA to “show cause on or before March 1, 2017, why the instant case should not be dismissed based on a lack of standing.” GHA did not file any response to the Order to Show Cause.
Recommendation Based on the foregoing, it is RECOMMENDED that a final order be entered by the Florida Commission on Human Relations dismissing Gratus Housing Advocates’ Petition for Relief due to a lack of jurisdiction. DONE AND ENTERED this 22nd day of March, 2017, in Tallahassee, Leon County, Florida. S G. W. CHISENHALL 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 March, 2017. COPIES FURNISHED: Tammy S. Barton, Agency Clerk Florida Commission on Human Relations Room 110 4075 Esplanade Way Tallahassee, Florida 32399 (eServed) Cheyanne Costilla, General Counsel Florida Commission on Human Relations 4075 Esplanade Way, Room 110 Tallahassee, Florida 32399 (eServed) Patrick Coleman Gratus Housing Advocates, Inc. 3513 Provine Road Mckinney, Texas 75070 Brookhaven Development Land LTD Suite 101 700 West Morse Boulevard Winter Park, Florida 32789 Andrew Kemp-Gerstel, Partner 44 West Flagler Street Miami, Florida 33130 (eServed)
The Issue The issue is whether Respondent, The Pines at Warrington, LP, et al., and Pinnacle, and American Management Service Company (The Pines), discriminated against Petitioner, Susan M. Walters (Ms. Walters), because of her disability and gender in violation of the Florida Fair Housing Act, Sections 760.20- 760.37, Florida Statutes.
Findings Of Fact Ms. Walters, during times pertinent, suffered from schizophrenia, chronic differentiated type alcohol abuse, and a personality disorder. The Pines is an apartment community consisting of 160 units. The community is managed by Pinnacle, a subsidiary of American Management Services, LLC. Approximately 90 percent of the residents at The Pines are women. Ms. Walters completed a detailed application for residency in The Pines with Joy John (Ms. John), the facility's leasing specialist. Ms. Walters signed the application on October 24, 2007. She entered into a lease for a term of one year on October 31, 2007. During the course of these events, Ms. Walters did not claim a disability or mention that she was disabled. No one in management at The Pines perceived Ms. Walters to be disabled. During the application and contract process, Ms. Walters was provided with copies of the rules and regulations governing residents of The Pines. The lease required Ms. Walters to provide management at The Pines 60 day's notice, if she wanted to vacate the premises. In or around February 2008, Ms. Walters acquired a dog. She informed management at The Pines, and in accordance with the lease agreement, began making payments toward the required pet deposit. During April 2008, Ms. John and Dawn Chapman, Property Manager, received complaints about Ms. Walters' dog. The dog's barking was disturbing residents of The Pines. Four to five complaints were received each week during April. Ms. John and Ms. Chapman advised Ms. Walters of the complaints and provided her with suggestions as to how to ameliorate the problem. Nevertheless, the barking continued. On May 13, 2008, Ms. Walters was provided a "Seven Day Notice of Noncompliance with Opportunity to Cure," addressing the dog issue. It informed Ms. Walters that she must prevent the dog from disturbing other tenants. It further informed her that if the problem continued, she might be evicted. Another week of barking precipitated a "Seven Day Notice of Noncompliance with Possible Lease Termination Following." This was dated May 21, 2008, and signed by Dawn Chapman. The notice again made clear to Ms. Walters that if the barking continued she might be evicted. These notices were often given to other residents of The Pines when their barking dogs annoyed other tenants. Many of the residents of The Pines were minorities. One of them, Rhonda Lavender, complained about Ms. Walters because she put up a sign in a stairwell that included the word "nigger." Another resident, a disabled man who lived in the unit above her, complained that she "lambasted him" because he dropped a boot and it made a loud noise. Others complained about her coming out of the door to her apartment and screaming. None of the residents, who complained about Ms. Walters' barking dog, or her other offensive actions, mentioned her gender or that she was disabled. At no time during the residency of Ms. Walters at The Pines did she provide Ms. John or Ms. Chapman information with regard to having a disability. The only evidence of a disability presented at the hearing was a form Ms. Walters referred to as "a doctor's release for medical records," signed by an unidentified "physician." It was also agreed that Ms. Walters received payments based on a disability from the U.S. Social Security Administration. However, no evidence was adduced that indicated Ms. Walters was limited in one or more major life activities. Ms. Walters' rent payment for June was due June 5, 2008, but was not paid. On June 6, 2008, a "Three Day Notice- Demand for Payment of Rent or Possession" was affixed to the door of her apartment. The notice demanded payment of the sum of $518.00 or delivery of possession of the premises. The notice informed Ms. Walters that eviction proceedings would ensue if she did not pay in three days. By June 6, 2008, however, Ms. Walters had determined that she was going to vacate the premises. She told Ms. Chapman that she would pay her June rent on June 20, 2008, but this was a prevarication because Ms. Walters had no intention of paying any more rent. On or about July 4, 2008, Petitioner vacated her apartment. She placed her keys in the drop box designated for rental payments. The rent for June was never paid. Ms. Walters testified under oath that during her occupancy of the dwelling her bank card went missing. She stated that on another occasion $20 went missing from her apartment and that subsequently $10 disappeared. She said the fire alarm rang once for two hours. She said she was disturbed by noisy neighbors and a loud maintenance man. She said that once after returning from her job she discovered a glass plate in her apartment that had been shattered. She did not reveal any of these allegations to management at The Pines when they occurred, if they did occur. Ms. Walters claimed that someone entered her apartment in May and sprayed a chemical that encouraged her dog to defecate inside the apartment. She said she could not check her mail because management at The Pines had locked her out of her mailbox. She said someone came in and scratched her Teflon frying pan and burned up her microwave oven. She did not make these allegations to management at The Pines when they occurred, if they did occur. Even if one believes that her property was violated, and evidence to that effect was thin, there is no indication at all that anyone involved in managing The Pines was involved. Moreover, no adverse action was taken toward Ms. Walters. Two notices about barking dogs and a written demand that she pay rent do not amount to an adverse action.
Recommendation Based upon the Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Petition for Relief of Susan M. Walters be dismissed. DONE AND ENTERED this 16th day of October, 2009, in Tallahassee, Leon County, Florida. S HARRY L. HOOPER 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 16th day of October, 2009. COPIES FURNISHED: Dawn Chapman The Pines at Warrington 4101 West Navy Boulevard Pensacola, Florida 32507 Angela North Olgetree, Deakins, Nash, Smoak & Stewart, P.C. 301 Congress Avenue, Suite 1150 Austin, Texas 78701 Susan M. Walters 1112 Bartow Avenue Pensacola, Florida 32507 Monica Jerelle Williams, Esquire Ogletree, Deakins, Nash, Smoak, and Stewart, P.C. 100 North Tampa Street, Suite 3600 Tampa, Florida 33602 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
Findings Of Fact At all times pertinent to the allegations herein, Petitioner was licensed as an Adult Foster Home Care facility located at 512 26th Avenue, West in Bradenton, Florida. At some time during the period of concern here, the facility was relocated to another building at 927 51st Avenue, East in Bradenton, and it was this new facility for which Petitioner applied for licensure on March 9, 1990. In December, 1989, Joanne MacWinney, an Adult Protective Investigator, visited the residence in question operated by Mr. Hileman. While she was there, she observed a rust colored dog enclosed in a cage within the yard which, itself, was enclosed by a metal fence. The dog was pacing at the time, and she spoke with Mr. Hileman about it. He indicated it had been a trained K-9 attack dog but was defective and it was going to be removed from that location in the near future. He admitted that if the dog were to be let loose, it would attack and not back off. He also stated that evening, it was brought into the house past the residents, but would not be a hazard to them if they did not make any fast moves. Considering this to be a safety violation, Ms. MacWinney reported this. In February, 1990, Ms. MacWinney again went to the Hileman home to see the dog. At this time, Petitioner indicated he had gotten rid of the dog she had seen on her previous visit, but he now owned another. This new dog was a control dog and Hileman gave a demonstration of this control. According to Ms. MacWinney, the dog was well behaved and she petted it, and she was impressed with its demeanor. She did not, therefore, request that the animal be removed. In fact, it is Department policy to encourage appropriate type dogs in homes where aged persons are being cared for. Somewhat later, however, Ms. MacWinney received a report from the Manatee County Health Department that the dog had bitten a child on the property. The child was the Petitioner's four year old grandson. Petitioner relates that the bite was by a different animal at a different location and the child got mixed up. There being no evidence to contradict this, other than Mr. Benfield's report of April 4, 1990, which is third hand hearsay evidence, Petitioner's version of the incident is accepted. On April 11, 1990, Ms. Kessler, the Supervisor of the Department's District Six Aging and Adult Services Division, wrote to Mr. Hileman and advised him of the information they had regarding the dog in question, subsequent to the rabies investigation report, and pointing out that not only had the dog allegedly bitten his grandson, but also had bitten someone else previously. By this letter, Ms. Kessler advised Petitioner to either remove the dogs from the premises or his license to operate the foster home would be terminated. The animals were not moved, and on June 4, 1990, Mr. Hileman was notified by letter that his application for license at the new facility would be denied. This new license, if granted, would change the residential makeup of the facility. The new residents would be younger mental health and retardation clients, and the Department felt that under the circumstances, considering the nature of this type of client, volatile dogs such as Petitioner might maintain on the premises would not be consistent with the safety and welfare of the residents. Ms. Kessler has had numerous conversations with Mr. Hileman in which he defended the dogs as nonviolent, but he has never explained why he wants that type of dog around a foster home. The answer is quite simple. He also operates a dog security service from the property on which the residence is maintained. In the opinion of the Department's representatives, the dogs present a risk to the proposed clientele. At the present time, it is the Department's position that even if the dogs were no longer located at the facility, the license would not be issued because Mr. Hileman has not shown the proper attitude and stability for issuance of a license. He is not cooperative with authority and the nature of his proposed clients, (aged and adult retards), is such that they need special treatment. Mr. Benfield is the rabies control administrator with the Manatee County Health Department and his job is to investigate some 700 animal bites per year. In fulfilling this duty, he tries to determine if the bite is with or without provocation, and his experience indicates that most dog bites are as a result of provocation. In this course of his career, he has also investigated approximately 12 bites by K-9 trained dogs. Mr. Benfield prepared three reports of dog bite regarding animals owned by an individual named Carl Hileman. The first, dated January 4, 1988, dealt with a black German Shepherd which allegedly bit a 7 year old female on the left leg in Bradenton. Even though the owner's name is the same, the individual in question is Petitioner's son, and the dog was not one owned by Petitioner. However, in March, 1990, a white German shepherd, owned by Petitioner, was alleged to have attacked a pedestrian on the walk outside Petitioner's place of business. The dog was reportedly unleashed, with Petitioner when it struck at the woman who, Petitioner claims, struck at the dog with her purse first, thereby provoking the animal. There is no evidence to support or explain the alleged attack, and under the circumstances, the only direct evidence on the matter comes from Petitioner. His version, therefore, is accepted. After this incident, Mr. Benfield quarantined the dog at Petitioner's residence, but when he went back 10 days later to release the animal, the house was vacant and the dog was gone. Petitioner had moved and had failed to notify the Health Department on the change in location of the animal. This was unlawful. In April, 1990, a doctor, further unidentified, reported that the same dog had bitten Petitioner's 4 year old grandson. Again, the animal was quarantined at Petitioner's residence, but the quarantine was lifted when the dog was found to be free of disease. Petitioner claims the boy was confused and the bite was by a different animal at a different location. No evidence was presented to the contrary, and in light of the fact that Mr. Benfield is unable to determine if the bite was provoked or not, it is found that this incident is not relevant to the issues here. According to Petitioner's neighbor, Mr. Bunker, the Petitioner's dogs are noisy and have threatened him whenever he works near the fence separating the properties. He has complained several times to the Petitioner about the continuing barking, but in response, Petitioner has claimed the dogs are highly trained, dangerous dogs who could tear the enforcement officer apart. At the present time, Mr. Hileman has 3 adult dogs and 5 puppies on the property. Bunker, though not an expert, is of the opinion that the white dog is vicious but it is found not to be so. He also claims Hileman has reported warned his wife of danger from the dogs and he may have done this. Mr. Hileman has more dogs than those which are kept at the residence. The dangerous guard dogs are kept elsewhere and the only animals kept on the premises are those who are completely subject to his control. He claims they are no threat to anyone, even a visitor, and will only attack when directed to do so. He believes the white dog, to which Bunker referred and which was involved with the lady outside his business, is harmless. Any dogs at home which are less so are kept restrained at all times. On October 9, 1989, at approximately 12:15 PM, the Florida Protective Services System received abuse report No. 89- 104860, pertaining to F.S.. This report dealt with alleged improper management of F.S.'s financial matters, (exploitation) during and subsequent to the time she was a resident at Petitioner's Genesis Home, located at 1375 East Hardin, in Bradenton. Specifically, the report alleged that Social Security checks intended for F.S.'s support and maintenance received between December, 1988 and May, 1989, by the Genesis Home, payee for her benefit, were not given to her or, subsequent to her transfer to another facility, to that facility for the payment of her upkeep. The report was investigated by Mr. McLaughlin and was, based on his inquiry, classified by him as "confirmed." A subsequent committee review of the classification conducted at District Six headquarters concluded the classification was correct and should not be changed. The District Administrator concurred. Genesis Homes is owned by Petitioner, Carl Hileman.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is, therefore: RECOMMENDED that a Final Order be entered by the Department of Health and Rehabilitative Services denying Petitioner's application for a license to operate an Adult Foster Home Care facility in Bradenton, Florida. RECOMMENDED this 29 day of October, 1990, in Tallahassee, Florida. ARNOLD H. POLLOCK, 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 29 day of October, 1990. APPENDIX TO RECOMMENDED ORDER IN CASE NO. 90-4571 The following constitutes my specific rulings pursuant to 120.59(2), Florida Statutes, on all of the Proposed Findings of Fact submitted by the parties to this case. FOR THE PETITIONER: None Submitted FOR THE RESPONDENT: Accepted and incorporated herein. Accepted and incorporated herein. Accepted. First and second sentences accepted. Third sentence is uncorroborated hearsay testimony and cannot, by itself, support a Finding of Fact. Not supported by record. Accepted, but the dog in question has been removed from the property. First paragraph accepted and incorporated herein. Second paragraph accurately reflects Mr. Benfield's testimony, but he was not present at the scene. Issue resolved in favor of Petitioner. Accepted. Accepted. COPIES FURNISHED: John Schnering, Esquire 812 Eighth Avenue West Palmetto, Florida 34221 Raymond R. Deckert, Esquire Department of Health and Rehabilitative Services Room 520C 4000 W. Dr. Martin Luther King, Jr. Blvd. Tampa, Florida 33614 John Miller General Counsel DHRS 1323 Winewood Blvd. Tallahassee, Florida 32399-0700 Sam Power Agency Clerk DHRS 1323 Winewood Blvd. Tallahassee, Florida 32399-0700
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
