The Issue Whether Respondent, Bosshardt Property Management, LLC (“Bosshardt”), violated the Fair Housing Act as alleged in the Housing Charge of Discrimination.
Findings Of Fact The following Findings of Fact are made based on the exhibits and testimony offered at the final hearing. Ms. Rabalais is the owner of Lot 198 at Salt Springs Resort, a Florida recreational vehicle condominium established pursuant to chapter 718, Florida Statutes. As an owner of a lot in Salt Springs Resort, she is a member of SSRA, the homeowner’s association. Bosshardt is a Florida corporation providing community association management services and was the Community Association Manager (“CAM”) for SSRA from September 2013 until August 31, 2019. Bosshardt acted as the agent, and at the direction of SSRA, managed the business related to the property, including enforcement of SSRA rules and decisions of the Board of Directors. The CAM is the general point of contact for the association. The CAM would collect on bills and collect payments for assessment and manage the property. Petitioner contends Respondent subjected her to retaliation beginning after the filing of Petitioner’s HUD complaint. In support of her position, Petitioner points to alleged harassment by Ms. Noble, the failure to maintain her lawn and repaint her lot number, and removal of one of her posts from the townhall webpage. Throughout the hearing, Ms. Rabalais raised allegations about incidents that occurred before December 20, 2018, which is 365 days prior to the filing of her Complaint of Discrimination dated December 20, 2019. However, some of the facts will be discussed herein to help supplement and explain the alleged continued discrimination and to provide a more detailed record of Ms. Rabalais’s complaints. Golf Cart Incident Petitioner alleges that Bosshardt was responsible for housing discrimination and harassment arising out of an April 17, 2018, confrontation between Petitioner and Sharon Noble, a lot owner and former SSRA board member. Ms. Rabalais identified Ms. Noble as one of the worst of her neighbors who disliked her. At some point before Ms. Rabalais filed the complaint of discrimination, Ms. Noble and Ms. Rabalais were good friends. While there is a dispute regarding the nature of the relationship, at some point the friendship deteriorated. In 2016, a dispute arose between Ms. Rabalais and Ms. Noble over Ms. Rabalais’s intent to file a lawsuit against SSRA and Ms. Noble’s refusal to assist her. The dispute was referenced in emails between Ms. Rabalais and Ms. Noble and through Ms. Noble’s testimony at hearing. Ms. Noble acknowledged at the hearing that she and Ms. Rabalais were no longer friends. On April 17, 2018, Sharon Noble was driving her golf cart on the road in front of Ms. Rabalais’s lot. She stopped her cart to send a text message to someone. At around the same time, Ms. Rabalais attempted to enter her drive way. Ms. Rabalais was unable to enter the drive way as two carts could not drive on the road side by side. Ms. Rabalais began to blow her horn so Ms. Noble circled around behind Ms. Rabalais’s golf cart to allow her to drive pass her. Ms. Noble then finished her text message and left the area. Ms. Noble credibly testified that she did not attempt to intimidate Ms. Rabalais. Ms. Noble believed the incident was intentional and as a result, she wrote an incident report documenting the incident. Ms. Noble reported the incident to the SSRA. Jane Jorden was in Ms. Rabalais’s golf cart and witnessed the incident. She recalled that Ms. Noble was recording Ms. Rabalais’s lot and blocking the driveway with her golf cart. Ms. Rabalais became upset after Ms. Noble drove her cart behind her. Ms. Rabalais went to the guard gate to report the incident and call the police. Tom, one of the employees working at the guard gate, completed a report regarding the incident. Tom did not testify at the hearing and, thus, his statement about the incident is not relied upon for a finding of fact. It is simply used to supplement the testimony offered at the hearing. Tom did not observe the incident but rather reported that the police were called and took statements from Ms. Noble and Ms. Rabalais. SSRA sent Ms. Rabalais a letter advising her to contact the police if she is concerned about her safety. While Ms. Rabalais believes that she was subjected to discrimination and retaliation by Respondent by way of the actions of Ms. Noble, the fact is that Ms. Noble, and more importantly Bosshardt, was in no position to deny Ms. Rabalais access to common services and facilities under SSRA’s control. To the extent Ms. Rabalais believed her fellow neighbors disliked her or were not nice to her, that activity is not actionable as unlawful housing discrimination. The greater weight of the evidence establishes that the incident with Ms. Noble was a personal dispute that was not due to housing discrimination facilitated at the direction of Bosshardt. Lost Assessment Payment Between July 1, 2018, and October 1, 2018, a quarterly assessment accrued. Ms. Rabalais’s check with a send date of September 28, 2018, was mailed to Bosshardt using an address that was previously known to be Bosshardt’s address. However, the assessment check payment was returned and the label affixed to the envelope indicated that the mail was returned to sender, was not deliverable as addressed, and was unable to be forwarded. In order to qualify as a candidate for a position on the SSRA Board of Directors, all assessments must be paid before a designated date. As a result of the assessment check not being delivered before the deadline to declare candidacy, Ms. Rabalais did not meet the criteria to run for the Board. Ms. Rabalais alleges in her complaint that Bosshardt engaged in a discriminatory act by not accepting her payment so she could not run for the Board of Directors. There is no sufficient evidence to support this allegation. Although there was testimony from Ms. Nelson that there were suspicious circumstances surrounding delivery of the check, the evidence offered at hearing does not demonstrate that Bosshardt engaged in nefarious or discriminatory actions regarding the assessment payment. The greater weight of the evidence, however, established that the check was returned undelivered. Failure to Maintain Property and Paint Lot Number Ms. Rabalais alleged in her Complaint that Respondent failed to maintain her lawn and failed to repaint her lot number as it did for other lot owners. There was no clear indication that the conduct occurred on or after December 20, 2018. Generally, all lot owners received basic services. An exception would be if the lot owner has a “no trespassing” sign on the property. Diane Suchy worked as the designated CAM for SSRA. She testified that maintenance staff were employees of SSRA and worked at the direction of Bosshardt. They maintained common areas and the lawns of individual lot owners. The maintenance team also repaints the lot numbers as needed. Gary Gensberg, the maintenance supervisor, testified that he maintained Ms. Rabalais's lawn and conducted weed maintenance as needed. He also recalled that Ms. Rabalais did not have a large area that required maintenance. Regarding the lot numbers, they would be repainted if it was not visible. Ms. Rabalais's lot number was visible at the time in question. Mr. Gensberg credibly testified that he was never given instructions to not maintain Ms. Rabalais's lot. Despite the maintenance team maintaining Ms. Rabalais property as needed, the evidence established that Ms. Rabalais posted no trespassing signs on her property for an unknown period of time. Furthermore, there was no evidence to support a finding that if Ms. Rabalais’s lawn was not maintained or her lot number was not repainted, it was result of discrimination based on disability or retaliation. Townhall Facebook Group Page Gary Griffith, the Bosshardt president at the time of the allegations alleged in the Complaint, testified about the lot owners’ Facebook group page. Mr. Griffith testified that Bosshardt did not manage the Facebook group page. Rather, Mr. Foster, Brenda Harvey, and other lot owners, were administrators on the account. Thus, Bosshardt made no determination regarding who could post or remove posts from the account. The page had rules for posting including, the exclusion of posts that were argumentative, contained unfounded allegations, or attacked the Board of Directors. On February 4, 2019, Ms. Rabalais posted a message about her experience with litigation with SSRA and Bosshardt. At the end of that message she wrote, “SSRA/Bosshardt has caused a homeowner to kill himself and ruined many owners’ lives ….” The administrators determined the post was unsubstantiated and threatening and failed to comply with the guidelines established for the page. As a result, the post was removed. Based on the evidence offered at hearing, Bosshardt was not involved with removal of Ms. Rabalais’s February 4, 2019, post. Therefore, there was no evidence to establish that Bosshardt discriminated against Ms. Rabalais when her post was removed from the Town Hall page. Expert Testimony Petitioner offered the testimony of Gary Solomon, Ph.D., as an expert regarding HOA syndrome. He works as a professor at the College of Southern Nevada. HOA syndrome is not a recognized clinical disorder, and there are no peer-reviewed articles offered to support Dr. Solomon’s opinion. Despite his purported knowledge about HOA syndrome, he was unable to provide a basis for his conclusions. Dr. Solomon had not read the SSRA rules or policies and procedures; and he had no understanding of Florida condominium law. He was also unable to provide an opinion regarding whether Ms. Rabalais had suffered from HOA syndrome. Based on the evidence offered at hearing, Dr. Solomon was not accepted as an expert in this matter.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Florida Commission on Human Relations enter a final order dismissing the Petition for Relief. DONE AND ENTERED this 5th day of April, 2021, in Tallahassee, Leon County, Florida. S YOLONDA Y. GREEN 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 5th day of April, 2021. COPIES FURNISHED: Tammy S. Barton, Agency Clerk Florida Commission on Human Relations 4075 Esplanade Way, Room 110 Tallahassee, Florida 32399-7020 John McDonough, Esquire Meier, Bonner, Muszynski, O'Dell & Harvey Suite 2000 260 Wekiva Springs Road Longwood, Florida 32779 Scarlett Rabalais Post Office Box 5224 Salt Springs, Florida 32134 Cheyanne Costilla, General Counsel Florida Commission on Human Relations 4075 Esplanade Way, Room 110 Tallahassee, Florida 32399-7020
The Issue Whether Respondent, Palm Frond Condominium Association, discriminated against Petitioner, Hugo M. Villagra, in violation of the Florida Fair Housing Act.
Recommendation Based on Petitioner’s Notice of Voluntary Dismissal, it is RECOMMENDED that a final order be entered by the Florida Commission on Human Relations dismissing the Petition for Relief filed by Petitioner. DONE AND ENTERED this 15th day of September, 2015, in Tallahassee, Leon County, Florida. S LYNNE A. QUIMBY-PENNOCK 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 15th day of September, 2015.
The Issue The issues in this case are whether Respondent, Lakeview of Largo Condominium Association, Inc., et al. (Lakeview or Respondent), violated chapter 70, Pinellas County Code of Ordinances, as alleged in the discrimination complaint (Complaint) filed by Francis Dandrea (Mr. Dandrea or Petitioner); and, if so, what relief should be granted.
Findings Of Fact The following Findings of Fact are based on the relevant stipulated facts and the oral and documentary evidence adduced at the final hearing. The parties agree that the Federal Act (42 U.S.C. 3601 et seq.), the Florida Fair Housing Act (sections 760.20 through 760.37, Florida Statutes, (2019)),2 and “the Pinellas County Code mirror one another, so the same legal arguments apply to all counts of the Complaint.”(*) The Lakeview campus consists of 12 to 14 acres of land and six residential buildings with approximately 60 condominiums in each building, for a total of 312 units. There are laundry facilities (a washer/dryer unit) on each floor for residents to use. Residents are not allowed to use laundry facilities found on the different floors of each building, but must use the facilities on their floor. If the laundry facilities on their floor are in use, 1 At the hearing, the parties jointly offered an additional exhibit, Exhibit Q, which was admitted into evidence. 2 Unless stated otherwise, all Florida statutory citations will be to the 2019 version of the Florida Statutes. No legislative changes have been made to sections 760.20 through 760.37 since 2013. residents must wait until the laundry facilities are available. In 2004, Petitioner was 71 years old, and his wife, Dolores Dandrea, was 70 years old when they purchased Lakeview Condominium No. 6113. On April 13, 2004, Petitioner and Mrs. Dandrea executed the following statement: I have read the frequently asked questions and answer sheet and understand my responsibilities as an owner.3 Lakeview’s Rules and Regulations (the “Rules”), Section VIII, paragraph three provides: “No new washer or dryer installations will be permitted within the units as of January 1, 1994 Upon the sale of the unit, washers and/or dryers within the unit must be removed.”(*) The Rules do not provide who (buyer or seller) is to remove the washer and dryer upon sale of a condominium unit. (*) Petitioner and Mrs. Dandrea resided in Condominium No. 6113 for nine years. In those nine years, Petitioner testified he had never thought about the Rules, specifically about the washer/dryer unit, as they were “very close” or “right next door” to the first floor laundry facility. In 2013, Condominium No. 6110 was listed for sale. Petitioner either knew or became aware that there was a washer/dryer unit in that condominium, a main purchasing point for Petitioner. On March 29, 2013, Petitioner executed an “AS IS” residential contract for the sale and purchase of Condominium No. 6110. The contract clearly listed additional personal property included in the sale: refrigerator(s); microwave oven; washer; dryer; and blinds. It is undisputed that the washer/dryer unit was installed prior to the Dandrea’s purchase of Condominium No. 6110. (*) An “Estoppel Letter”4 requested by the title company provided there were no violations against Condominium No. 6110 at the time of the sale. 3 As part of Lakeview’s screening process, all new residents have to acknowledge a “55+ Community Frequently Asked Questions and Answer Sheet DBR Form 33-032.” 4 The “Estoppel Letter” provides that the buyers are “Francis and Dolores D’Andrea”. Petitioner and Mrs. Dandrea moved from Condominium No. 6113 into Condominium No. 6110 in late April or early May 2013. A washer/dryer unit was in Condominium No. 6110, as specified in the purchase agreement. Petitioner’s current unit (Condominium No. 6110) is a dwelling within the meaning of the Act, 42 U.S.C.§ 3602(b), because it is within a multi-unit building occupied as a residence by several families. (*) On October 24, 2018, Lakeview’s community association manager, Frank Fundora, notified Petitioner and Mrs. Dandrea of their non-compliance with the Rules regarding the presence of the washer/dryer unit in Condominium No. 6110. (*) On January 22, 2019, Mr. Fundora, on behalf of Lakeview, sent the Dandreas a letter that “required” them to attend a Lakeview Compliance Committee hearing to explain their position as it related to the washer/dryer unit in their condominium. The hearing was held on February 6, 2019.5 On February 21, 2019, Mr. Fundora, on behalf of Lakeview, advised the Dandreas that they were found in non-compliance of the Rules by the Compliance Committee. (*) That violation was reported to the Lakeview Board of Directors (Board), who requested the washer/dryer unit be removed from Condominium No. 6110 within 14 days of the letter. Additionally, the Dandreas were notified that the non-compliance (the failure to remove the washer/dryer unit) would lead to a monetary fine of up to $100 per day to a maximum of $1,000. (*) The Dandreas did not remove the washer/dryer unit from Condominium No. 6110. On March 14, 2019, Mr. Fundora, on behalf of Lakeview, notified the Dandreas of the fine assessment of $100 per day for the violation of the 5 The January 22, 2019, letter provided the hearing would be on February 5, 2019, however the February 21, 2019, Lakeview letter to the Dandreas provided the hearing took place on February 6, 2019. Rules, up to a maximum of $1,000 fine, consistent with chapter 718, Florida Statutes. The fine was placed on Petitioner's account in an amount of $1,000 on March 22, 2019. (*) Petitioner, via letter to the Board dated April 19, 2019,6 requested a reasonable accommodation from the Rules pursuant to the Act. (*) The letter provides7: Dear Sirs, I respectfully request a conversation with you asap [sic] about reasonable accommodations at our condo complex…[sic] I am enclosing letters from our doctors stating that we should not get rid [of] our washer/dryer due to our medical complications and conditions. Respectfully, Francis Dandrea Along with the April 19, 2019, reasonable accommodation request, Petitioner submitted supporting documentation from medical professionals setting forth the medical conditions of both Petitioner and Mrs. Dandrea as the basis for the reasonable accommodation request. (*) The parties stipulated that the medical documentation below was provided in Petitioner’s request for a reasonable accommodation. That documentation provided: 11/06/2018 To whom it may concern, Francis Dandrea suffers from generalized arthritis in addition to medical diagnoses of emphysema and intermittent atrial fibrillation. His wife is limited functionally by polymyalgia rheumatic. Removing the washer/dryer from their condo would creat [sic] a physical hardship and is not recommended. 6 The certified letter was “signed for” by Mr. Fundora on April 22, 2019. 7 This letter was written in all capital letters. The text is provided in sentence format. Please share this communication with the patient. Signed by: /es/ JOHN H HULL, MD GERIATRICS & EXTENDED CARE 11/07/2018 05:41 Analog Pager: [Omitted] Digital Pager: [Omitted] And: 12/12/2018 To Whom It May Concern: Mrs. Dolores D’Andrea is under my medical care for 5 years. She asked me to write this letter. She has multiple medical conditions. It came to my attention that recently washer and dryer was [sic] required to be removed from her unit. Patient has urinary incontinence. It is absolutely important for her to have washer and dryer nearby, so she can wash her clothes because of frequent accidents. Also she has polymyalgia rheumatica, and it is very difficult for her to walk down the hall to a washer and dryer units that located down the hall in apartment area. [sic] It would be medically necessary for her to have washer and dryer in her apartment. If any questions, please feel free to call my office 727-584-7706. Sincerely, Helen Brvenik, M.D. Petitioner testified to his multiple infirmities: osteoarthritis; atrial fibrillation; and a bulging disc. Petitioner also provided that he had had surgery on both knees (“not replacements”), and he had to give up golf three years ago. Petitioner also testified that his wife has neurological problems, including double vision for which she had surgery, and anxiety issues. On April 24, 2019, two days after receipt of Petitioner’s request for a reasonable accommodation, Mr. Fundora, on behalf of the Lakeview Board, informed the Dandreas that Lakeview had denied the requested accommodation. Further, the Board voted to give the Dandreas until May 8, 2019, to comply with the Rules by removing the washer/dryer unit. If the Dandreas refused to do so, their right to use the common recreational facilities would be suspended. (*) Petitioner did not remove the washer/dryer unit, and on May 8, 2019, Lakeview suspended Petitioner's rights to the common recreational facilities. (*) Petitioner filed the Complaint against Lakeview with the PCOHR on May 13, 2019. (*) On September 8, 2019, the PCOHR issued a Determination of Reasonable Cause and Charge of Discrimination. (*) Those individuals who testified at the hearing either are friends of Petitioner, serve (or have served) on Lakeview’s Board, or are employed by Lakeview. However, none of them are health care professionals, and their observations are just that, observations without any medical training or knowledge of Petitioner’s health issues. Mr. Fundora testified that Lakeview did not have a process in place for the type of reasonable accommodation requested by Petitioner. However, Lakeview had, in the past, received reasonable accommodation requests for emotional support animals, large vehicles, and motorcycles. Those requests have been handled on a case-by-case basis.8 A request for additional medical information to support or discredit the requested accommodation for Petitioner (or Mrs. Dandrea) was never sought. There is no dispute that Lakeview objected to the Dandreas retaining the washer/dryer unit. Lakeview’s denial of the request for a reasonable accommodation within two days of the request appears to be solely based on observations made by non-medically trained residents or Board members who 8 At least one request for an emotional support animal was approved, while another was denied when the supporting documentation was found to be fabricated. had seen Petitioner (and Mrs. Dandrea) walking around the Lakeview complex at some time. These witnesses attempted to give opinions from their observations, yet they were not qualified to do so as they did not know if the requested accommodation was medically necessary. Lakeview has not articulated a legitimate, non-discriminatory reason for withholding the reasonable accommodation request. The preponderance of the evidence demonstrates that having the washer/dryer unit within Petitioner’s condominium is a reasonable accommodation; and necessary to afford Petitioner (and Mrs. Dandrea) the opportunity to the use and enjoy their home.
The Issue The issue is whether the Florida Commission on Human Relations (FCHR) properly dismissed this matter for lack of jurisdiction.
Findings Of Fact Petitioner, as a first-time home buyer, applied for and was pre-approved by Cendant Mortgage Corporation d/b/a/ Century 21 Mortgage for a mortgage loan. The loan, in the amount of $28,687.00, was to be insured by the Federal Housing Administration (FHA). In February 2003, Respondent agreed to sell Petitioner his home. They agreed that Petitioner would pay Respondent $29,000.00 for the house. Respondent subsequently stated in writing that he agreed to sell his house to Petitioner for that amount. On March 5, 2003, Petitioner signed a form entitled No Brokerage Relationship Disclosure. The form made it clear that Century 21 Prime Property Resources, Inc., a local real estate agency, and its associates did not have a brokerage relationship with Petitioner. There is no evidence that the professional services of a licensed real estate agent was involved at all in this case. However, the local Century 21 real estate office gratuitously sent a few documents on Petitioner's behalf by facsimile transmission to Century 21 Mortgage in New Jersey. Respondent did not use the sales facilities or services of Century 21 for any purpose. On March 7, 2003, Cheryl Barnes, a certified appraiser, completed an appraisal of the property. The U.S. Department of Housing and Urban Development and/or FHA required the appraisal in order for Petitioner to receive the loan insured by FHA. Neither Petitioner nor Respondent was required to pay for the appraisal. In a letter dated March 10, 2003, Century 21 Mortgage advised Petitioner that the closing date was scheduled for April 16, 2003. The letter enclosed additional forms that Petitioner needed to complete in order to close the loan. The Housing Department, Division of Planning and Development, in Sumter County, Florida, sent Petitioner a letter dated March 19, 2003. The letter advised Petitioner that she was eligible for an award of Supplemental Household Income Protection funds to cover the down payment and closing costs on the loan. Subsequently, Respondent refused to sign any papers related to the sale of the house. The loan could not be closed without Respondent's cooperation. Petitioner had placed $250 in an escrow account with Century 21 Mortgage. The mortgage broker refunded all of the money in the escrow account to Petitioner after Respondent refused to sign any more paperwork. Finally, there is no evidence of the following: (a) that Respondent owned more than three single-family houses at any one time; (b) that Respondent sold more than one single- family home within any 24-month period; (c) that Respondent had an interest in the proceeds from the sale or rental of more than three single-family houses at any one time; and (d) the sale of the subject house did not involve the posting, mailing, or publication of any written notice.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED: That FCHR enter a final order dismissing the Petition for Relief. DONE AND ENTERED this 5th day of January, 2005, in Tallahassee, Leon County, Florida. S SUZANNE F. HOOD Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 5th day of January, 2005. COPIES FURNISHED: Cecil Howard, General Counsel Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301 Denise Crawford, Agency Clerk Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301 Susan M. Parker 3840 East County Road 478 Apartment D-30 Webster, Florida 33597 Paul Moore 2396 County Road 608 Bushnell, Florida 33513
The Issue Whether Respondents Orion Real Estate Services (Orion) and the Housing Authority of the City of Winter Park (Housing Authority) subjected Petitioner April Williams to discriminatory housing practices based on her race (African American, non-Hispanic), in violation of the Florida Fair Housing Act, chapter 760, part II, Florida Statutes (2019) (FHA).1
Findings Of Fact Ms. Williams, an African American female, lives in an apartment in the Meadows, a low-income housing complex located in Winter Park, Florida. The Housing Authority is a governmental entity that provides low- income housing through federal funds provided by the United States Department of Housing and Urban Development. It contracts with outside companies to manage the properties it owns. The Housing Authority owns the Meadows. Orion is a real estate services company that manages residential properties for landlords and investors. At the time relevant to these proceedings, Orion managed the Meadows for the Housing Authority. Ms. Williams had to climb up a stairwell to reach her unit. Her apartment was located above one unit and next to another. She shared a front porch with her next-door neighbor. The Meadows housed 300 residents during the relevant time period. Of those residents, 264 identified themselves as "Black" and 280 identified themselves as "Ethnic." There was no testimony or evidence as to how many identified as Hispanic. The Housing Authority claims it took no action against Ms. Williams, and therefore cannot be liable for discrimination. The Community Manager for the Meadows, LiMarys Rivera, testified she was an employee of Orion. However, she issued documentation on letterhead titled "The Housing Authority of the City of Winter Park." Ms. Rivera's signature line states that her title is "Property Manager Agent for the Winter Park Housing Authority." As such, the undersigned finds Ms. Rivera was a dual agent for both Orion and the Housing Authority. Ms. Rivera testified that once she received a complaint against a tenant, regardless of who made the complaint, it was standard procedure to first reach out to the alleged violator by telephone as a courtesy, and then if there was a subsequent complaint to send out a written "Notice to Cure" or "Notice of Material Non-Compliance with Opportunity to Cure and Proposed Adverse Action" (non-compliance notice) to that tenant. Respondents provided numerous non-compliance notices to tenants regarding various types of complaints. Ms. Rivera testified these non- compliance notices were issued to tenants of all races, and both Hispanic and non-Hispanic tenants. Over the course of a year to 18 months, Ms. Williams had made somewhere between 20 and 29 complaints against her next-door neighbor and her downstairs neighbor. Ms. Williams described both of these neighbors as Hispanic. Ms. Williams complained that her next-door neighbor was noisy and would smoke (and allow guests to smoke) on the front porch even though her building was designated as a non-smoking area. Ms. Williams also complained that the downstairs neighbor left items on the stairwell causing a hazard. These items included pizza boxes, shoes, rugs, and bags of trash. As a result of these complaints, both of Ms. Williams's neighbors were issued non-compliance notices. The downstairs neighbor received a non- compliance notice for leaving pizza boxes, trash, and the other objects outside her front door. Similarly, the next-door neighbor received a non-compliance notice for smoking in her apartment and common areas. Additionally, Respondents issued community flyers to all the tenants in the Meadows reminding them of basic rules, including not smoking, not leaving trash and debris outside, and keeping front porches clean. Ms. Williams also complained to Respondents that workmen who were performing maintenance in her unit were speaking Spanish. She requested that Respondents provide workmen that speak only English while on the Meadows property. At some point, Ms. Williams's neighbors made noise complaints against her. Respondents did not initially issue a non-compliance notice to Ms. Williams because she and her neighbors had numerous complaints against each other. Instead, Ms. Rivera attempted to hold a conciliation or mediation meeting with all of them. Ms. Williams refused. She did not see the point of the meeting, and believed Ms. Rivera would take the neighbors' side because Ms. Rivera, like the neighbors, was Hispanic. After Ms. Williams refused to meet, Respondents issued her a non- compliance notice for excessive noise. There was no evidence that she was required to pay any fees or fines as a result of the non-compliance notice against her. Ms. Williams testified she felt Ms. Rivera gave preferential treatment to Hispanics. When asked how they were treated better, Ms. Williams testified that her neighbors were not evicted despite the complaints made against them. Ms. Williams admitted, however, that Respondents did not evict her either.
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 dismissing the Petition for Relief filed by April Williams. DONE AND ENTERED this 21st day of August, 2020, in Tallahassee, Leon County, Florida. S HETAL DESAI 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 21st day of August, 2020. COPIES FURNISHED: Tammy S. Barton, Agency Clerk Florida Commission on Human Relations 4075 Esplanade Way, Room 110 Tallahassee, Florida 32399-7020 (eServed) Ricardo L. Gilmore, Esquire Saxon, Gilmore, Carraway and Gibbons, P.A. 201 East Kennedy Boulevard, Suite 600 Tampa, Florida 33602 (eServed) Kevin Fulton, Esquire Fulton Strahan Law Group, PLLC 7676 Hillmont Street, Suite 191 Houston, Texas 77040 (eServed) April Williams 746 Margaret Square Winter Park, Florida 32789 (eServed) Cheyanne Costilla, General Counsel Florida Commission on Human Relations 4075 Esplanade Way, Room 110 Tallahassee, Florida 32399 (eServed)
The Issue The issues are whether Respondent engaged in a discriminatory housing practice by allegedly excluding Petitioner from participating in a homeowner’s meeting on January 14, 2009, or ejecting Petitioner from the meeting, based on Petitioner’s religion and alleged handicap, in violation of Section 760.37 and Subsections 760.23(2), 760.23(8), 760.23(8)(2)(b), and 784.03(1)(a)(l), Florida Statutes (2008),1 and, if not, whether Respondent is entitled to attorney fees and costs pursuant to Section 120.595, Florida Statutes (2009).
Findings Of Fact Respondent is a condominium association defined in Section 718.103, Florida Statutes. Respondent manages a condominium development, identified in the record as Tregate East Condominiums (Tregate). Tregate is a covered multifamily dwelling within the meaning of Subsection 760.22(2), Florida Statutes. Petitioner is a Jewish male whose age is not evidenced in the record. A preponderance of the evidence presented at the final hearing does not establish a prima facie case of discrimination on the basis of religion, ethnicity, medical, or mental disability, or perceived disability. Rather, a preponderance of the evidence shows that Respondent did not discriminate against Petitioner in the association meeting on January 14, 2009. In particular, the fact-finder reviewed the videotape of the entire meeting that took place on January 14, 2009. The meeting evidenced controversy, acrimony, and differences of opinion over issues confronting the homeowners present. However, the video tape did not establish a prima facie case of discrimination based on Petitioner’s religion, ethnicity, or alleged handicap. Respondent seeks attorney’s fees in this proceeding pursuant to Section 120.595, Florida Statutes (2009). Pursuant to Subsection 120.595(1)(c), Florida Statutes (2009), this Recommended Order finds that Petitioner has participated in this proceeding for an improper purpose. Petitioner participated in this proceeding for a frivolous purpose within the meaning of Subsection 120.595(1)(e)1., Florida Statutes (2009). The evidence submitted by Petitioner presented no justiciable issue of fact or law. Petitioner provided no evidence to support a finding that he suffers from a handicap defined in Subsection 760.22(7), Florida Statutes. Petitioner claims to have a disability based on migraine headaches but offered no medical evidence to support a finding that Petitioner suffers from migraine headaches or any medical or mental disability. Petitioner’s testimony was vague and ambiguous, lacked precision, and was not specific as to material facts. Petitioner called four other witnesses and cross-examined Respondent’s witnesses. Petitioner’s examination of his witnesses and cross-examination of Respondent’s witnesses may be fairly summarized as consisting of comments on the answers to questions and argument with the witnesses. Petitioner repeatedly disregarded instructions from the ALJ not to argue with witnesses and not to comment on the testimony of a witness. Petitioner offered no evidence or legal authority that the alleged exclusion from the homeowners meeting on January 14, 2009, was prohibited under Florida’s Fair Housing Act.3 Petitioner offered no evidence that he is a “buyer” or “renter” of a Tregate condominium within the meaning of Section 760.23, Florida Statutes. Rather, the undisputed evidence shows that Petitioner is not a buyer or renter of a Tregate condominium. Petitioner attended the homeowners meeting on January 14, 2009, pursuant to a power of attorney executed by the owner of the condominium. If a preponderance of the evidence were to have shown that the owner’s representative had been excluded from the meeting, the harm allegedly prohibited by the Fair Housing Act would have been suffered vicariously by the condominium owner, not the non-owner and non-renter who was attending the meeting in a representative capacity for the owner. The condominium owner is not a party to this proceeding. A preponderance of the evidence does not support a finding that Petitioner has standing to bring this action. Petitioner was neither an owner nor a renter on January 14, 2009. Petitioner’s only legal right to be present at the meeting was in a representative capacity for the owner. The alleged exclusion of Petitioner was an alleged harm to the principal under the Fair Housing Act. Respondent is the prevailing party in this proceeding, and Petitioner is the non-prevailing party. Petitioner has participated in two or more similar proceedings involving Respondent. The parties resolved those proceedings through settlement. The resolution is detailed in the Determination of No Cause by the Commission and incorporated herein by this reference. Respondent seeks attorney’s fees totaling $3,412.00 and costs totaling $1,001.50. No finding is made as to the reasonableness of the attorney fees costs because Respondent did not include an hourly rate and did not submit an affidavit of fees and costs. However, the referring agency has statutory authority to award fees costs in the final order pursuant to Subsection 760.11(7), Florida Statutes.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Florida Commission on Human Relations enter a final order dismissing the Petition for Relief and requiring Petitioner to pay reasonable attorney’s fees and costs in the amounts to be determined by the Commission after hearing further evidence on fees and costs in accordance with Subsection 760.11(7), Florida Statutes. DONE AND ENTERED this 15th day of April, 2010, 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 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 15th day of April, 2010.
The Issue Whether Respondents engaged in a discriminatory housing practice against Petitioner in violation of the Florida Fair Housing Act (Sections 760.20 through 760.37, Florida Statutes).
Findings Of Fact Respondent, Caribe Co-Operative Club Apartments, Inc. (Caribe Club), is a Florida not-for-profit corporation and a co-operative association that owns the apartment complex at issue in this proceeding located in Lake Worth, Florida. There are twenty-one apartments in the Caribe Club. The apartments constituting the Caribe Club are subject to duly-enacted bylaws and to a form proprietary lease. These documents govern the management of the co-operative association and specify the terms and conditions of each tenancy. An existing lease cannot be transferred until the transaction has been approved by the stockholders of the Caribe Club. If the transaction is approved, the prospective lessee is required to purchase a share of stock in the cooperative association and execute the form proprietary lease. The existing lessee and the proposed transferee are required to apply to the board of directors for approval of the proposed transaction. The board is then required to convene a meeting of the stockholders, at which the proposed transaction is discussed and the prospective lessee may be interviewed. Thereafter, a vote by secret ballot is taken, with each apartment having one vote. A two-thirds affirmative vote of the stockholders voting at the meeting is required for approval of the proposed transaction. Petitioner agreed to purchase the apartment at the Caribe Club owned by Phyllis McAuliffe for the sum of $13,500. As required by the bylaws of the Caribe Club, Petitioner and Ms. McAuliffe requested approval of the proposed transfer and Petitioner submitted her personal financial information in addition to the application. For approximately a year before she decided to purchase the McAuliffe lease, Respondent lived in the Caribe Club apartment leased by Quentin Mason, her boyfriend. After she and Ms. McAuliffe had come to terms, but before she submitted her request for approval to the board of directors, Petitioner painted and cleaned the McAuliffe apartment. In addition, she replaced a door. At all times pertinent to this proceeding, the Caribe Club had a president, two vice-presidents, a secretary, and a treasurer. These officers constituted the board of directors. Francis A. Phillip, Jr., the president of the Caribe Club, reviewed Petitioner's application and her supporting financial information. As required by the bylaws, Mr. Phillip called a special meeting of the stockholders for January 22, 1996, to consider the application. After her financial information was determined to be in order, Petitioner was briefly interviewed and then excused from the meeting. The only discussion of the proposed transfer consisted of Fernand Roy making a statement against the transaction and Mr. Mason giving a response. The proposed transaction was rejected by the vote by secret ballot that followed. Of the twelve voting stockholders at the meeting, seven voted against the transaction and five voted in favor. To the knowledge of the witnesses who testified, this was the first occasion that a prospective transfer had been rejected. The following stockholders were present at the meeting: Mr. and Mrs. Brooks (with one vote), Mr. Mason, Mr. and Mrs. Todd (with one vote), Mrs. Knutson, Mrs. Loomis, Mrs. Mack, Mrs. Senn, Mrs. Lambert, Mrs. Tognacci, Mr. Phillip, Mr. Reed, and Mr. Roy. At the formal hearing, there was competent evidence as to how five stockholders voted and the reasons of those who voted against the transaction. Mr. Mason and Mr. Reed voted for the transaction. Mr. Roy, Ms. Senn, and Mr. Phillip voted against the transaction. The Petitioner did not establish by competent evidence how the other individual stockholders voted or the reason for their votes. 1/ Fernand Roy participated in the stockholder meeting as a voting stockholder. Mr. Roy and Petitioner's boyfriend, Mr. Mason, had a long-standing feud. Mr. Roy did not want Petitioner to become a stockholder because she would then be able to support Mr. Mason's positions on various issues pertaining to management of the Caribe Club. Florence Senn participated in the stockholder meeting as a voting stockholder. Ms. Senn voted against the proposed transaction because she did not like the fact that Petitioner and Mr. Mason had been living together without the benefit of marriage. Ms. Senn did not discuss her position on the matter with anyone prior to the vote being taken. Ms. Senn told Petitioner before the vote was taken that if the stockholders rejected her application it would be because she was Mr. Mason's girlfriend. Ms. Senn was of the opinion following the vote that most of the stockholders who voted against the transaction did so because they did not like Mr. Mason. Mr. Phillip participated in the stockholder meeting as the presiding officer and as a voting stockholder. Mr. Phillip voted against the proposed transaction because he believed that Petitioner's entering the McAuliffe unit to paint, clean, and make repairs before the stockholders had approved the transaction evidenced an unwillingness on her part to comply with the bylaws and rules and regulations of the Caribe Club. Mr. Phillip testified that he had told Petitioner not to work in the apartment before the transaction was approved, but that she did so anyway. Before the meeting, Mr. Phillip mentioned to one or two other stockholders that Petitioner was working on the McAuliffe apartment, but he did not discuss his position on the transaction with anyone prior to the vote being taken. The evidence did not establish that any stockholder voted against the proposed transaction based on Petitioner's age, national origin, sex, handicap, familial status, or religion. 2/
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Florida Commission on Human Relations enter a final order dismissing Petitioner's discriminatory housing complaint and Petition for Relief. DONE AND ENTERED this 20th day of May, 1999, in Tallahassee, Leon County, Florida. CLAUDE B. ARRINGTON Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 20th day of May, 1999.
The Issue The issue for determination in this matter is whether Respondents engaged in acts of housing discrimination against Petitioners on the basis of race in violation of the Florida Fair Housing Act.
Findings Of Fact Petitioners, Donald Travis and Lisa Harrell, are a bi-racial couple (Mr. Travis is African-American and, therefore, belongs to a class of persons subject to protection under Florida's Fair Housing Act, Sections 760.20 through 760.37, Florida Statutes, and Ms. Harrell is white). They have two sons who are bi-racial (one is African-American and white, the other is white and Asian). Petitioners lived in Apartment 163 at 10075 West Highway 98, Pensacola, Florida 32506. Respondents, John and Anne Cutler, are the owners of two four-plex apartments at 10075 West Highway 98, Pensacola, Florida 32506, including the unit occupied by Petitioners that gave rise to this matter. They are both retired educators who own and operate their apartment rental business in their retirement. In their teaching and professional careers, both have instructed students of various races and national origins. Petitioner, Donald Travis, is a veteran of Desert Storm and has been treated for Post Traumatic Stress Disorder. He regularly takes medications to treat anxiety and depression. On April 4, 2008, Petitioners moved into Apartment 163, which had been recently painted, carpeted, and had a new ceiling fan and light installed in the living room. Everything went smoothly between Petitioners and Respondents for several months. Mr. Cutler had to unplug the downstairs toilet with a plunger a few times, but everything else seemed to be in working order. Both Mr. and Ms. Cutler considered Petitioners to be good tenants. As summer approached, Mr. Travis asked Mr. Cutler about installing a screen door for the sliding glass doors. This could not be done without replacing the entire sliding glass doors. When Apartment 131 became vacant, its screen door was moved to Petitioners' apartment. The screen door had a slit in it, which Ms. Cutler repaired with tape. When Apartment 132 became vacant, the good screen door from that apartment was used to replace the taped one in Petitioners' apartment. Respondents tried to keep everything in working order in Petitioners' apartment. When Petitioners' refrigerator door would not close, Respondents replaced the refrigerator. Respondents thought Petitioners were happy with their apartment. Petitioners called Respondents about a plumbing leak and said feces was running down the wall. The leak and pipe were fixed by B & G Plumbing. Petitioners were shown the water shut-off valve in case of future leaks. Petitioners believe that Respondents treated them differently from other tenants in the apartment buildings. Petitioners believe that other tenants were allowed to keep pets in their apartments while they were not. Respondents allowed tenants who had pets when they purchased the apartments to keep them, but banned pets on all future rentals. The rent for Petitioners' apartment, including water, sewer, and garbage, was $650.00. Petitioners always paid their rent on time. Petitioners asked to be moved into a better unit since they believed their unit was inferior to others in the complex. Petitioners wanted to move into Apartment 162 which, in their opinion, was in much better shape than their unit. Respondents offered to put new carpet into Apartment 162 before Petitioners moved in, but they refused. Petitioners decided to leave the apartment because they believed the maintenance was not properly performed. On December 5, 2008, the day Petitioners made known their desire to leave the apartment, Mr. Travis confronted Mr. Cutler. Mr. Cutler offered Apartment 132 to Petitioners because it was ready for occupancy after its occupants had moved out. Apartment 133 would soon be ready, and was also offered to Petitioners. Mr. Travis angrily refused to move into any apartments in the two four-plexes. He yelled at Mr. Cutler and told him he hated him. This exchange was witnessed by a neighbor, Gary Denton. Mr. Cutler offered to let Petitioners move out without penalty, and agreed to return their $650.00 deposit. Petitioners accepted the offer and received the deposit in full as well as a waiver of the first five days' rent for December and an additional four days of rent to allow them time to pack and move. Petitioners accused Respondents of renting one four-plex to whites only and the other to minorities. At the time Petitioners moved out, both four-plexes had tenants of different races. As of the date of the hearing, five of the six total units rented were to non-white tenants. Only one was rented to a white couple.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Florida Commission on Human Relations enter a final order dismissing the Petition for Relief. DONE AND ENTERED this 25th day of November, 2009, in Tallahassee, Leon County, Florida. S ROBERT S. COHEN 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, 2009. COPIES FURNISHED: John Cutler Anne Cutler 5970 Limestone Road Pensacola, Florida 32504 Donald Travis Lisa Harrell 1008 West Young Street Pensacola, Florida 32501 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
The Issue Whether Petitioners, Miryam Hathaway and Benjamin Hathaway, were subject to a discriminatory housing practice by Respondents, Gerlinde 1 All statutory references are to Florida Statutes (2019), unless otherwise noted. Wermuth and Horst Wermuth, based on a handicap, in violation of Florida's Fair Housing Act.
Findings Of Fact Petitioners own a condominium in Parkway Villas Condominiums ("Parkway Villas") located in Bradenton, Florida. Petitioners have lived in Parkway Villas since 2012. Parkway Villas, as described by Petitioner, Mrs. Hathaway, is a "nice elderly community" of 225 units.5 Parkway Villas is governed by the Parkway Villas Condominium Association, Inc. (the "Association"), a homeowners' association formed in approximately 1970. At the final hearing, Mrs. Hathaway testified that she suffers from a physical disability from a work injury that occurred many years ago. Supporting this claim, Mrs. Hathaway produced several medical records documenting an issue with her right shoulder and elbow, specifically acromioclavicular ("AC") joint arthropathy, which includes tendinosis, tendinopathy, and a partial tendon tear. Mrs. Hathaway asserts that this 3 By requesting a deadline for filing post-hearing submissions beyond ten days after the transcript filing date, the 30-day time period for filing the recommended order was waived. See Fla. Admin. Code R. 28-106.216(2). 4 Petitioners subsequently filed a document on September 10, 2020, which was not considered. 5 Petitioner Benjamin Hathaway did not participate in the final hearing. Nor did Petitioners produce any evidence regarding the discrimination claim he is pursuing against Respondents, or a specific disability from which he suffers. Consequently, when evaluating Petitioners’ allegations and cause of action in this FHA matter, any reference to "Petitioners" only concerns the representations and testimony of Miryam Hathaway. condition causes her chronic pain, and she has difficulty lifting more than five pounds with her right arm. Mrs. Hathaway also expressed that she suffers from depression, high blood pressure, and hypertension. Mrs. Hathaway claims that from approximately January 2018 through July 2019, Respondents (the "Wermuths") discriminated against her based on her disability by denying her the use and enjoyment of certain community amenities (the Association's pool), and then failing to make a reasonable accommodation to enable her to use those amenities.6 The Wermuths also reside in Parkway Villas. Gerlinde Wermuth is currently President of the Association's Board of Directors. Mrs. Wermuth served as Board President during all times relevant to Petitioners' FHA claim. Horst Wermuth is Gerlinde Wermuth's husband. Mr. Wermuth, however, has never served or held any position on the Association Board. The Association's Board of Directors has seven members. All Board members are residents of Parkway Villas. All Board action requires at least four affirmative votes of its members. The Board may not take any action without a quorum of four members. Petitioners point to Mrs. Wermuth as the primary perpetrator of the alleged wrongdoing based on her position as Board President. Petitioners contend that Mrs. Wermuth has severely abused her authority and mistreated Mrs. Hathaway for years. Petitioners' issues raised in this matter began in April 2016. That month, Petitioners applied to the Board for approval to enlarge the patio 6 Petitioners also alleged in their complaint filed with the Commission that Mrs. Hathaway, who is from Columbia, South America, was discriminated against based on her race and national origin, as well as retaliation. However, no evidence in the record supports a claim that the Wermuths took any actions or supported any Board decisions that were motivated by Mrs. Hathaway’s race or national origin or in retaliation for a protected activity. Petitioners further allege that the Wermuths committed a number of non-FHA indiscretions, which are not considered in this administrative proceeding, including abuse of power, defamation, elder abuse, emotional distress, extortion, intimidation, and invasion of privacy. outside their back door. Petitioners included with their application specific plans, diagrams, and measurements to allow the Board to determine whether the patio would fit within the community's aesthetics. The Board approved the patio construction on May 1, 2016, and Petitioners proceeded to construct their patio. On December 14, 2017, several Board members and unit owners, including Mrs. Wermuth, trooped across the Parkway Villas property inspecting the community for potential "Carport/Patio Violations." According to Mrs. Wermuth, the Board regularly surveys the grounds to ensure consistent compliance with the Association's Policies, Rules, and Regulations ("Association Rules"). Petitioners, as residents and owners of a Parkway Villas dwelling, are members of the Association and subject to the Association Rules. The survey revealed approximately 60 potential violations of the Association Rules. Thereafter, the Board determined that 23 of those potential violations warranted sending the unit owner a notice letter. Included on this list was Petitioners' unit (#115), about which was recorded "patio not approved." The Board determined that Petitioners' newly constructed patio departed from the plans that the Board reviewed and approved in May 2016.7 Following a Special Board Meeting held on January 5, 2018, the Board notified Petitioners of their findings. The Board warned Petitioners that they faced a fine of up to $1,000 unless they brought "their patio up to the agreed upon specifications." Petitioners were advised that they could appear before the Board's Compliance Committee on January 31, 2018, "to explain why you feel a fine should not be imposed." 7 Association Rules, General Rules number 3, states: "Villa owners must obtain written Board approval before constructing add-ons, patios, or making any alterations to the common element." On January 31, 2018, the Compliance Committee, of which Mrs. Wermuth is not a member, convened to review the status of the 23 violations identified in the survey done the previous December. By the time of the meeting, Petitioners were the only unit owners who had not voluntarily corrected their violation. At the Compliance Committee meeting, Petitioners acknowledged that the patio they constructed differed from the design they submitted in April 2016. Primarily, their patio exceeded the dimensions shown in the previous design and exceeded standard dimensions acceptable to the Board. The Board allowed Petitioners until March 31, 2018, to adjust the size of their patio. The Board also offered to work with Petitioners to bring their patio into compliance. At the final hearing, Mrs. Hathaway readily agreed that Mrs. Wermuth was very helpful in this process. Mrs. Hathaway relayed that Mrs. Wermuth made several welcomed suggestions advising how Petitioners could arrange their plants, and how to adjust uneven stone pavers. In the meantime, on February 1, 2018, Mrs. Hathaway requested a private meeting with three Board members, including Mrs. Wermuth. During this gathering, Mrs. Hathaway revealed that Petitioners had installed an "emergency" half bathroom in their condominium in January 2016 without the Board's knowledge. The Board later learned that the construction of the bathroom involved cutting through the concrete foundation of Petitioners' unit to connect the bathroom's pipes and plumbing to the Association's sewer system, as well as other significant plumbing and electrical work. Further, Petitioners never obtained the appropriate permits from Manatee County for the project, and the bathroom was constructed by an unlicensed contractor. In addition, Petitioners had taken a number of broken chunks of concrete from the unit's foundation and were using them as "decorative stones" around the plants on their patio, which the Association Rules prohibit. On March 12, 2018, the Board voted to impose three separate fines on Petitioners for violating Association Rules, one for installing a bathroom without Board approval, one for constructing the patio contrary to the approved design, and one for placing the concrete chunks, as well as hanging wind chimes, adjacent to their patio.8 The Board also suspended Petitioners from using the community common areas, which included the laundry room, the clubhouse, the exercise facilities, the showers, and the pool. On March 28, 2018, the Compliance Committee met during a Special Board Meeting to consider Petitioners' multiple violations. During the meeting, the Compliance Committee found that Petitioners, as of that date, had properly reduced the size of their patio. The Compliance Committee also recognized that Petitioners had removed the concrete chunks and wind chimes from their patio area. Thereafter, the Compliance Committee voted to eliminate all fines imposed for those two violations. Regarding the bathroom, however, the Compliance Committee concluded that the unapproved installation was too significant to overlook. The Compliance Committee was concerned that the structural alterations and plumbing necessary to construct Petitioners' new bathroom might have compromised the unit's infrastructure and potentially damaged the neighbor's adjoining unit. Consequently, the Compliance Committee upheld a fine of $1,000 for that violation. Mrs. Wermuth abstained from any vote on the matter. In addition to the $1,000 fine, the Board upheld the suspension of Petitioners' use of Association amenities and common areas, including the clubhouse, exercise room, laundry room, and community pool. The suspension was to remain in effect until Petitioners paid the $1,000 fine and until Manatee County inspected the bathroom's construction and deem it sufficient 8 The Parkway Villas Combined Amended and Restated Declaration of Condominium, section 9.3, directs that: "The Villa Owner shall be required to inform the Board in writing of any electrical, plumbing, or structural changes." for permitting, as well as Petitioners' payment, in full, of any outstanding fine (the $1,000). The Board decided that any unauthorized use of the common areas by Petitioners during the suspension period would result in additional fines. The Board formally notified Petitioners of its decision by letter dated March 29, 2018, and signed by Mrs. Wermuth. The letter expressly stated that any violation of the suspension from using the common areas "will be considered a separate finable violation of the association's condominium documents," which would have to be paid in full prior to restitution of full use. Sometime around March 2018, Petitioners took steps to have their bathroom appropriately inspected. Unlike her experience with the patio modifications, however, Mrs. Hathaway testified that Mrs. Wermuth was most unhelpful in this process. Mrs. Hathaway charged that Mrs. Wermuth ordered her to obtain inspections from both an electrician and a plumber. Based on this imperative, Petitioners proceeded to pay an electrician, a plumber, as well as a professional engineer to inspect their bathroom. They also contacted Manatee County to acquire the appropriate building permits. Petitioners ultimately secured several reports confirming that the bathroom was competently constructed, as well as a Certificate of Completion from Manatee County indicating that the bathroom complied with applicable building code requirements. (The evidence adduced at the final hearing was unclear as to exactly when Petitioners presented the results of these inspections to the Board. Mrs. Hathaway urged that she provided all the information to the Board before the March 29, 2018, Board meeting, and produced a bill from a plumber dated March 8, 2018. However, the building permit Petitioners received from Manatee County was not issued until April 3, 2018. More significantly, as described below, the Board did not consider the inspection results until well over a year later in July 2019.) On April 2, 2018, Petitioners paid the $1,000 fine to the Board for the unapproved construction of their half bathroom. Petitioners subsequently appeared before the Board in April and May 2018, to contest paying the fine, as well as the imposition of the suspension. Notably, at neither of these meetings did Petitioners specifically request an accommodation to allow Mrs. Hathaway to use the community pool while their dispute was pending the Board's review. Neither did they express Mrs. Hathaway's desire to use the pool in relation to a disability. Following Petitioners' payment of the $1,000 fine in April 2018, Mrs. Hathaway began using the pool. (In fact, the evidence indicates that she never stopped using the pool.) However, because the Board had not yet conducted its review of the bathroom inspections and permits, her suspension from accessing the common areas remained in effect. The Board later addressed Petitioners' violations during a meeting on April 23, 2018. At that time, the Board noted that Petitioners had not provided any paperwork demonstrating that their new bathroom had been proficiently constructed. Therefore, the Board moved to require Petitioners to have a licensed plumber inspect the connection between their bathroom and the Association's sewer line, and also to have a licensed electrician inspect the electrical work. Thereafter, Mrs. Wermuth, in her role as Board President, directed the Board Secretary to prepare a letter notifying Petitioners that, while the inspections remained outstanding, they faced a "$50 per day fine for violating the suspension from use of the clubhouse and pool areas." The letter, dated April 25, 2018, also alerted Petitioners that their current fine totaled $500, and further warned Petitioners that if they persisted "in using the pool and clubhouse areas before [the Board has] removed the suspension and approved your half-bath project, the fine may increase to the maximum of $1,000. The suspension will not be lifted until fines are paid in full." At the final hearing, Mrs. Wermuth explained that the Board imposed the fine to motivate Petitioners to comply with the Board's request as quickly as possible. However, once Petitioners proved that their bathroom adhered to Association Rules, Mrs. Wermuth represented that the Board fully intended to set aside the penalties. Despite her suspension, Mrs. Hathaway continued to regularly (perhaps daily) use the Association pool. Mrs. Hathaway explained that several medical professionals had advised her that the joint pain in her right shoulder and arm would benefit from physical therapy in the pool. To support her testimony, Mrs. Hathaway produced a doctor's letter from May 2017, which recommended that she "would benefit from use of the community pool to assist in her joint pain therapy." A year later in May 2018, Mrs. Hathaway visited a local hospital emergency room complaining of pain. Upon her discharge, the physician told her that using the pool "would assist with [her] joint pain therapy." Mrs. Hathaway credibly testified that, in May 2018, she provided both the doctor's letter and the discharge instructions to a member of the Association Board (not Mrs. Wermuth). However, Mrs. Hathaway admitted that, other than passing on these two documents, she did not communicate directly or indirectly with any Board member about her disability or health. Neither does the evidence establish that Mrs. Hathaway furnished these documents to the Board for the Board's consideration. More pertinently, Mrs. Hathaway conceded she never directly delivered these documents to either Mrs. or Mr. Wermuth. During her testimony, Mrs. Hathaway also described an incident on October 20, 2018, when she was exercising in the pool. (Mrs. Hathaway was still suspended from accessing the community's common areas.) That day, another Parkway Villas Board member (not Mrs. Wermuth) "viciously" yelled at her and demanded to know why she was using the pool when she was not allowed to be there. When Mrs. Hathaway did not exit the pool in a timely fashion, the resident called the Manatee County Sheriff's Office, who responded to the scene. The sheriff registered the complaint, but did not arrest Mrs. Hathaway. Petitioners never paid the fine for Mrs. Hathaway's unauthorized use of the pool during her suspension, which eventually reach the maximum amount of $1,000. Mrs. Hathaway explained that Petitioners felt that paying anything beyond the initial fine of $1,000 for the unapproved bathroom installation was "extortion" and simply not fair. Finally, on June 26, 2019, Petitioners sent a letter to the Board requesting the Board reconsider the outstanding sanction. The letter, addressed to Mrs. Wermuth, specifically expressed: [W]e would like to know when the sanctions no to use pool – fitness – laundry – comun [sic] areas that you ordered last year 3-26/18 after we paid $1,000 fine and present to you all the documentation from Manatee County 3-26/18 following the regulation's to instaled [sic] 1/2 bath on January 2016 and was approved with all Professional Plumbing – Electrician etc. On July 1, 2019, the Board held a Special Board Meeting to consider Petitioners' request. During the meeting, the Board determined that Petitioners had presented sufficient proof that their bathroom was installed in a professional manner and complied with all necessary building code and Manatee County permitting requirements. The Board also acknowledged that Petitioners had produced a Certificate of Completion from Manatee County and had paid the maximum $1,000 fine for the initial violation. Therefore, the Board voted to rescind the suspension of Petitioners' use of the pool, as well as all fines associated with Mrs. Hathaway's repeated violation of the suspension. Mrs. Wermuth presided over the meeting. However, she once again abstained from the vote. The Board notified Petitioners of its decision by letter, dated July 1, 2019, which stated that, "Any pending fines or suspensions to the Association's Common Elements are rescinded." The Board also posted its action on the Association website. In addition, the Board emailed the meeting minutes of the vote to the Parkway Villas residents and placed a copy of the minutes on the community bulletin board in the clubhouse. With Petitioners' right to access the Association's common areas reinstated, Mrs. Hathaway has been free to use the pool since July 2019. Despite the July 2019 publication of the Board's vote to lift Petitioners' suspension, at the final hearing Mrs. Hathaway complained that she has experienced a number of confrontations with other Parkway Villas residents who still believe that she is barred from using the pool. Mrs. Hathaway declared that she has been told to leave the pool; she has been yelled at in the laundry room; and, most significantly, "many people attack me, attacking us, at the pool." Mrs. Hathaway expounded that confrontations such as the one on October 20, 2018, are not uncommon. She proclaimed that, "people start to attack us because Mrs. Wermuth talk to everyone, she circulate all the information to all the residents." Mrs. Hathaway relayed that Parkway Villa residents have reported her to the Manatee County Sheriff's Office approximately seven times since March 2018. Mrs. Hathaway asserted that she has implored Mrs. Wermuth to re-notify the residents that the Board has rescinded Petitioners' suspension. However, Mrs. Wermuth allegedly has refused to do so. Therefore, as part of the relief for her FHA claim, Mrs. Hathaway desires all harassment related to her use of the pool to stop. Because Mrs. Hathaway believes that Mrs. Wermuth is responsible for imposing the sanctions in the first place, she asserts that Mrs. Wermuth should be ordered to spread the word that Petitioners are no longer prohibited from using the common areas. Accordingly, Mrs. Hathaway seeks an administrative order directing Mrs. Wermuth to inform all Parkway Villas residents that Petitioners are no longer forbidden from using the pool. Mrs. Hathaway also alleged several other instances of harassment by Respondents including: December 2017, Bicycle Incident: Mrs. Hathaway complained that Mr. Wermuth rode his bicycle too close to her as she walked down a sidewalk. Mrs. Hathaway described the incident as intentionally intimidating. Pictures of Petitioners' Unit: Mrs. Hathaway complained that Mr. Wermuth photographed her villa and complained about its condition. (This activity prompted Mrs. Hathaway to initiate a small claims court action against him.) Mrs. Hathaway's Use of the Laundry Room: Mrs. Hathaway claimed that in March 2018, Mr. Wermuth harassed her while she was doing laundry. Mrs. Hathaway claims that Mr. Wermuth took pictures of her in the laundry room and raised his voice at her. In addition to this FHA matter, Petitioners initiated several unrelated, but parallel, legal actions against Respondents in or about February 2018. These matters involved separate complaints in Manatee County small claims court against both Mrs. and Mr. Wermuth. In particular, on February 8, 2018, Mrs. Hathaway sued Mrs. Wermuth for discrimination, retaliation, intimidation, and harassment based on a "fine for no violations." See Miryam Hathaway v. Gerlinde Wermuth, Twelfth Judicial Circuit in and for Manatee County, Florida, Case No. 2018 SC 679. On April 5, 2018, Mrs. Hathaway sued both Mr. and Mrs. Wermuth for "harassment issues." See Miryam Hathaway v. Horst and Gerlinde Wermuth, Twelfth Judicial Circuit in and for Manatee County, Florida, Case No. 2018 SC 1509. These civil matters were dismissed in December 2018.9 However, Mrs. Wermuth was awarded over $20,000 in attorney's fees and costs spent in defending the matter against Mrs. Hathaway. At the final hearing, Respondents denied that they ever took any action against Petitioners based on Mrs. Hathaway's disability. They also rejected any allegation that they ever participated in a decision that refused or failed to accommodate Petitioners' alleged disability. Mrs. Wermuth testified that, while she did serve as Board President throughout the time of Petitioners' fines and suspension, she does not personally administer, control, or manage the Association. Further, as an individual Board member, she does not have the authority to unilaterally penalize a unit owner who has violated Association Rules. Neither can she personally suspend a unit owner's common use rights. Similarly, she does not have the power to reinstate the use of the Association's common elements, or grant any request for a disability accommodation, however reasonable. Regarding the Board's decision to impose the suspension on Petitioners, Mrs. Wermuth maintained that as a Board member, she must participate in the Board's actions to enforce the Association Rules. Mrs. Wermuth asserted that the Board does so in a consistent, fair, and uniform manner to all Parkway Villas residents. Regarding Petitioners' specific allegations, Mrs. Wermuth denied that she had any knowledge that either Petitioner suffered from a disability. She further denied any knowledge of a request from Mrs. Hathaway to use the pool for the express purpose of treating her shoulder pain. On the contrary, 9 In granting the Wermuths’ motion to dismiss, the judge noted that Mrs. Hathaway’s "claim surrounds a sequence of events that have occurred between approximately December 2017 to April 2018, wherein [Mrs. Hathaway] believes the Defendants have harassed, discriminated against, and intimidated her by approaching her, yelling at her, 'stalking' her, taking photos of her, and participating in the HOA board’s decisions denying her request to replace her patio, fining her for failing to bring her patio up to agreed-upon specifications, and suspending her common area privileges. [Mrs. Hathaway] claims that these events have caused her medical issues." Mrs. Wermuth expressed that, throughout the time period covered by Petitioners' complaint, she has seen Mrs. Hathaway physically active around the community. Mrs. Wermuth has observed Mrs. Hathaway walking, exercising in the pool, hosting a Latin dancing party, and taking part in exercise classes in the clubhouse. Mrs. Wermuth vigorously refuted the allegation that any of the Board's enforcement actions against Petitioners were administered unfairly. On the contrary, Mrs. Wermuth asserted that the fines and suspension were necessary to enforce the Association Rules, as well as to ensure that Petitioners adhere to them. Mrs. Wermuth explained that, in her experience, suspending a resident's access to the common areas is the most effective method to bring about compliance with Association Rules. Mrs. Wermuth further declared that none of the Board's actions regarding Petitioners were based on her personal feelings. Instead, Mrs. Wermuth recused herself from most of the Board's decisions addressing Petitioners' issues and consistently voted to "abstain." For his part, Mr. Wermuth testified that he does not hold, nor has he ever held, any decision-making authority with the Association or its Board. He has never served as a member of the Board or worked as an Association agent, committee member, or employee. Mr. Wermuth expressed that he has never made, nor has he ever had the power to make, housing determinations affecting Petitioners. Neither has he ever had any responsibility to determine Petitioners' access to community facilities. Petitioners did not present any evidence establishing that Mr. Wermuth participated in any vote of the Board to impose the fines or suspension on Petitioners. Further, as with his wife, Mr. Wermuth attested that he had no knowledge of any disabilities claimed by Petitioners prior to learning of their Petition filed with the Commission. On the contrary, he too has observed Mrs. Hathaway walking around the community, exercising in the pool, and using the fitness equipment in the Association's clubhouse. Mrs. Hathaway admitted that she had not spoken to Mr. Wermuth about her health or disability. Neither did she present any evidence that she requested an accommodation from him, or that he played any role in the Board's suspension of her use of the community pool. As to Mrs. Hathaway's complaints of other transgressions: Bicycle Incident: Mr. Wermuth did not recall ever riding his bicycle too close to Mrs. Hathaway while she was walking on a sidewalk. He specifically denied that he ever intentionally rode by her in an attempt to threaten or intimidate her. Mr. Wermuth offered that if his bicycle ever did pass too close to Mrs. Hathaway, it would have been unintentional and had nothing to do with her disability. Pictures of Petitioners' Unit: Regarding Mrs. Hathaway's complaint that he once photographed her villa, Mr. Wermuth testified that he frequently takes pictures of the Parkway Villas community as part of an ongoing scrapbook of his homes and neighborhoods. Mr. Wermuth stated that during the incident in question, he was simply taking pictures of the community's Christmas lights. He denied that he ever intended to agitate Petitioners. Similarly, no evidence shows that Mr. Wermuth photographed Petitioners' condominium based on Mrs. Hathaway's disability or some discriminatory animus. Mrs. Hathaway admitted that Christmas lights were strung up next to her unit at the time. Based on the competent substantial evidence in the record, the preponderance of the evidence does not establish that the Wermuths discriminated against Petitioners (Mrs. Hathaway) based on a handicap, or failed to provide a reasonable accommodation for the same. Accordingly, Petitioners failed to meet their burden of proving that the Wermuths committed unlawful discrimination in violation of the FHA.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Florida Commission on Human Relations issue a final order determining that Respondents, Gerlinde Wermuth and Horst Wermuth, did not commit a discriminatory housing practice against Petitioners and dismissing their Petition for Relief. 14 See Gooden v. Internal Rev. Serv., 679 Fed. Appx. 958, 966 (11th Cir. 2017)("[G]eneral allegations, based on mere speculation and hunches, in no way establish that any alleged [discriminatory activity] was race-, gender-, or disability based."). 15 Similarly, Mrs. Hathaway’s complaints about Mr. Wermuth riding his bicycle too close to her on the sidewalk or taking pictures of the side of her villa, at most, reflect a misunderstanding between neighbors, not a discriminatory housing practice. DONE AND ENTERED this 5th day of October, 2020, in Tallahassee, Leon County, Florida. S J. BRUCE CULPEPPER 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 5th day of October, 2020. COPIES FURNISHED: Tammy S. Barton, Agency Clerk Florida Commission on Human Relations 4075 Esplanade Way, Room 110 Tallahassee, Florida 32399-7020 (eServed) Miryam Hathaway Benjamin Hathaway Post Office Box 15103 Sarasota, Florida 34277 Kimberly Valashinas, Esquire McGuinness & Cicero 3000 Bayport Drive, Suite 560 Tampa, Florida 33607 (eServed) Cheyanne Costilla, General Counsel Florida Commission on Human Relations 4075 Esplanade Way, Room 110 Tallahassee, Florida 32399 (eServed)
Findings Of Fact Based on the undisputed facts included in pleadings filed in this proceeding and on the documentary evidence attached to the Association's Renewed Motion to Dismiss, the following findings of fact are made: On or about April 16, 1999, Ms. Thornhill filed a complaint with the Department of Housing and Urban Development, in which she accused the Association of housing discrimination on the basis of handicap and coercion. The complaint was apparently based on the Association's attempts to make Ms. Thornhill remove a set of steps leading from the terrace of her apartment. In June 1999, the Association filed a civil lawsuit against Ms. Thornhill in the Circuit Court of the 11th Judicial Circuit in and for Miami-Dade County, styled Admiral Farragut Condominium Association v. Maria Thornhill, Case No. 99-15567 CA 22. On or about September 21, 1999, Ms. Thornhill, through her attorney, filed Defendant, Maria Thornhill's Answer to Complaint. Included in the answer was a Counterclaim filed by Ms. Thornhill, through her attorney, against the Association, in which she sought injunctive relief and damages against the Association pursuant to Section 760.35(1) and (2), Florida Statutes. 1/ She asserted in the Counterclaim that she had filed a discrimination complaint against the Association with the Department of Housing and Urban Development, which had been referred to the Commission and that this complaint was still pending before the Commission. Ms. Thornhill alleged in the Counterclaim that the Association had engaged in housing discrimination against her on the basis of her handicap because it had refused to accommodate her disability by giving her permission to retain the steps she had installed leading from the terrace of her apartment. Ms. Thornhill also alleged that the Association had "authorized or acquiesced in a series of actions intended as harassment and retribution" against Ms. Thornhill for having filed a housing discrimination complaint. The factual and legal bases on which Ms. Thornhill requests relief in the Petition for Relief filed with the Commission and in the Counterclaim filed in circuit court are virtually identical.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Florida Commission on Human Relations enter a final order dismissing the administrative complaint filed by Maria T. Thornhill to enforce rights granted by the Florida Fair Housing Act, Sections 760.30 through 760.37, Florida Statutes. DONE AND ENTERED this 7th day of November, 2000, in Tallahassee, Leon County, Florida. PATRICIA HART MALONO Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (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 7th day of November, 2000.
