The Issue Whether Respondent unlawfully discriminated against Petitioner by failing to reasonably accommodate her handicap, in violation of Florida?s Fair Housing Act.
Findings Of Fact Petitioner is the owner of Unit No. 710 (“Unit”) in the Sixth Moorings Condominium, located in Miami, Florida. Petitioner lived there for approximately 11 years. She is not currently living in the Unit. Respondent is the condominium association responsible for the operation and management of the Sixth Moorings Condominium. In early 2010, Petitioner suffered a stroke and underwent heart surgery. It is undisputed that as a result of her illness, Petitioner is “handicapped” for purposes of the Fair Housing Act.4/ Petitioner spent several months in hospitals and nursing homes recovering from her stroke and surgeries. When she was released from these facilities, she did not resume living in the Unit. She testified that this was because she could not go up a curb or steps, and because the condominium?s elevator frequently was out of order.5/ She moved into a ground floor apartment a few blocks away from the Sixth Moorings Condominium. Petitioner is not able to perform many basic tasks, such as grocery shopping, driving, cleaning her apartment, taking out the garbage, or retrieving her mail. Consequently, she decided to invite her nephew, Charles Alsberg, to move into the Unit, where he would be only a few minutes away from the apartment in which she was residing, and thus could serve as her caretaker. Alsberg moved into the Unit in or around August 2010. Petitioner did not reside in the Unit with Alsberg. She testified that even though he is a family member, she would not live in the Unit with him because she is “an elderly woman from a different generation and [she] would not live with a young man unless he was [her] biological son.” In late 2010, Respondent?s President, John Koble, contacted Petitioner about Alsberg living in her Unit. Petitioner asked Koble to allow Alsberg to reside in the Unit so that he could serve as her caretaker, but Koble told her that because she was not residing there, Alsberg was considered an unauthorized guest in violation of the condominium?s restrictive covenants, and that he therefore must move out. Nonetheless, Alsberg continued to reside in the Unit for several more months, until he became ill and was hospitalized. Following his release in August 2011, Alsberg returned to live in the Unit. At this point, Respondent——this time, through counsel——sent Petitioner a letter stating that she was violating the restrictive covenant prohibiting unauthorized guests, and demanding that Alsberg vacate the unit. On September 13, 2011, Petitioner?s attorney sent a response letter requesting that, due to restrictions on Alsberg?s activity as a result of his illness, he be allowed to remain in the Unit for approximately 60 days. By correspondence dated September 15, 2011, Respondent agreed to allow Alsberg to remain in the Unit through November 12, 2011. At hearing, Petitioner acknowledged that Respondent granted her request to allow Alsberg to stay there during his recuperation. Notwithstanding this agreement, Alsberg did not vacate the Unit until sometime in early 2012, several months after the November 12, 2011 deadline. During this time, Respondent sent numerous pieces of correspondence that Petitioner characterized as “harassing” and “threatening,” regarding enforcement of the condominium?s covenants and rules. Alsberg finally vacated the Unit after Respondent sent a “final notice” letter. Currently, Alsberg is residing in an apartment approximately four blocks from Petitioner?s apartment and is serving as her caretaker. Koble testified that he was sympathetic to Petitioner?s circumstances, but it was imperative that Respondent consistently enforce the restrictive covenants for the benefit of all unit owners. Koble noted that other unit owners also wanted to allow unauthorized guests to live in their units, and that if Respondent relaxed enforcement of the covenant for Petitioner, it would be forced to do so for others. The undersigned credits this testimony. Koble also testified, credibly, that if Petitioner were residing in her unit, Respondent would have granted an accommodation of the covenant to allow Alsberg to live there for the purpose of serving as her caretaker.6/ The evidence establishes that Petitioner did not request any accommodation from Respondent that was necessary for her equal opportunity to use and enjoy the Unit; rather, the purpose of Petitioner?s request that Respondent not enforce the restrictive covenant against her was to enable her nephew to live in the Unit.
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 finding no unlawful discrimination by Respondent and dismissing the Petition for Relief. DONE AND ENTERED this 29th day of May, 2012, in Tallahassee, Leon County, Florida. S CATHY M. SELLERS Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 29th day of May, 2012.
The Issue The issue for determination is whether Respondent committed a discriminatory housing practice against Petitioner in violation of the Fair Housing Act.
Findings Of Fact No dispute exists that Ms. Ndimbie is handicapped for purposes of the Fair Housing Act. She has more than one mental illness diagnosis, including Schizoid Personality Disorder, Schizotypal Personality Disorder, Obsessive-Compulsive Personality Disorder, with two of her symptoms being that she “relates poorly with others” and that she “lacks insight into the feelings of others and when she feels accosted, she becomes angry and reacts, often inappropriately.” BCCD was a Florida not-for-profit organization. Its mission was to provide affordable housing for individuals with mental illnesses. BCCD acts as a landlord for its tenants, who have difficulty finding affordable housing due to having a mental illness. A prerequisite to being a tenant at BCCD was to have a mental illness, and, therefore, all of BCCD’s tenants had a mental illness. On an annual basis, BCCD contracted with and received funds from the Florida Department of Children and Families, hereinafter DCF. The funding from DCF supplements rent received from the tenants. On June 29, 2001, the Executive Director of BCCD, Nancy Merolla, entered into an annual contract with DCF for the period of July 1, 2001, through June 30, 2002, hereinafter Annual Contract. Exhibit A of the Annual Contract provided in pertinent part: The [BCCD] will provide housing stipends to ensure safe, accessible and affordable housing opportunities to low income individuals of Broward County, who are disabled with a mental illness and/or co- occurring disorders. . . . Each tenant, who resided in housing provided by BCCD, was required to receive case management. However, BCCD did not provide case management services for its tenants. The tenants received case management services from sources outside of BCCD. DCF assigned case managers and, therefore, assigned case managers for Ms. Ndimbie. Case management services were provided to Ms. Ndimbie by Henderson Mental Health Clinic Even though Ms. Ndimbie maintains that BCCD was required to provide case management services, the evidence demonstrates that BCCD was not required to provide such services. DCF was having difficulty finding housing for Ms. Ndimbie due to her mental challenges and requested the assistance of BCCD. On October 30, 2001, Ms. Ndimbie and Ms. Merolla, on behalf of BCCD, executed a month-to-month lease agreement, hereinafter Lease, for an apartment unit at 334 Northwest 43rd Street, Oakland Park, Florida. The Lease provided, among other things, that the total rent payable was $570 per month; that Ms. Ndimbie’s portion of the rent was $115 per month; and that the portion paid by the Public Housing Agency, under the Shelter Plus Care Program of HUD was $455. The Lease, which identified Ms. Ndimbie as the Tenant and BCCD as the Landlord, was effective November 28, 2001. An addendum to the Lease was a Tenant Agreement. Ms. Ndimbie was under the Shelter Plus Program, which provided for a single occupant to be entitled to a one-bedroom unit. However, BCCD only had a two-bedroom unit available. The Tenant Agreement provided, among other things, that Ms. Ndimbie was “being temporarily allowed to stay in [a two-bedroom unit] until a one bedroom unit [became] available with [BCCD].” On or about November 28, 2001, Ms. Ndimbie moved into the two-bedroom unit. At some point in time after Ms. Ndimbie moved into the two-bedroom unit, BCCD and the other tenants, who were Ms. Ndimbie’s neighbors, began to have problems with her behavior. The other tenants filed complaints with BCCD regarding her behavior. In March 2002, after input from Ms. Ndimbie, her case manager, and DCF, BCCD conducted a meeting with Ms. Ndimbie and the complaining tenants in an effort to reconcile the differences. An agreement was reached regarding resolution of the differences. However, the problems, regarding Ms. Ndimbie’s behavior, continued. The tenants were filing petitions for injunctions for protection against her, and she was filing the same petitions against the tenants. In particular, the continuous problems resulted in one neighbor, Luis Colon, obtaining an injunction for protection against Ms. Ndimbie on May 2, 2002.3 A circuit court ordered, among other things, that she was not to have any contact with Mr. Colon and not to go within 15 feet of Mr. Colon’s unit (apartment). Ms. Ndimbie contends that BCCD represented Mr. Colon at the injunction hearing as his case manager. However, the evidence demonstrates that BCCD was not his case manager at the injunction hearing, but only responded to the presiding judge’s inquiries. Subsequently, on May 23, 2002, the injunction for protection was amended. The circuit court ordered, among other things, that the Ms. Ndimbie was not to go within 500 feet of Mr. Colon’s unit. The amended injunction for protection was effective on midnight, May 31, 2002. Ms. Ndimbie’s unit was less than 500 feet from Mr. Colon’s unit, and, therefore, the effect of the amended injunction for protection was to prevent Ms. Ndimbie from residing in her unit after midnight, May 31, 2002. BCCD offered Ms. Ndimbie an alternative unit at another location. Ms. Ndimbie viewed the apartment building where the alternative unit would be located and found that it was being renovated. She did not believe that it would be timely completed. Further, Ms. Ndimbie inquired of law enforcement regarding criminal activity within the surrounding geographical area of the alternative unit. It was reasonable for her to gather such information. She was informed by law enforcement that there was drug activity in the surrounding area. Based upon the construction activity at the alternative unit, coupled with her belief that the alternative unit would not be timely completed, and upon the history of drug activity in the surrounding area, Ms. Ndimbie decided that she would not accept the alternative unit. Even though the alternative unit was being renovated, the evidence demonstrates that it was to be completed before the effective date of the amended injunction for protection, i.e., midnight, May 31, 2002. Consequently, Ms. Ndimbie’s belief that the alternative unit was not going to be timely completed was not reasonable. Additionally, even though the surrounding area of the alternative unit had a history of drug activity, no evidence was presented that the alternative unit had been determined to be not suitable for leasing under the Annual Contract between DCF and BCCD. As a result, the alternative unit remained an available unit under the Annual Contract. Ms. Ndimbie refused to accept and move into the alternative unit. No other housing was found for Ms. Ndimbie by midnight, May 31, 2002. Her belongings were placed in a storage unit. Another tenant with mental illness moved into the alternative unit. Subsequently, Ms. Ndimbie moved into a hotel. With DCF’s approval, BCCD provided her with $1,000 to assist her with the cost of the hotel room.
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 finding that Broward County Community Development Corporation, Inc. did not commit a discriminating housing practice against Joyce Ndimbie in violation of the Fair Housing Act. DONE AND ENTERED this 29th day of January, 2010, in Tallahassee, Leon County, Florida. ERROL H. POWELL 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 29th day of January, 2010.
The Issue The issue in this case is whether Respondent discriminated against Petitioner based on race regarding the renting of an apartment.
Findings Of Fact Respondent owns more than 25 residential rental properties in the State of Florida, including the duplex located at 8472 and 8474 Barrancas Street, Navarre, Florida, which he purchased approximately three years ago. In January 2011, Respondent placed an advertisement in the newspaper for the rental of both sides of the duplex, and put a "For Rent" sign in the front yard. On January 27, 2010, Respondent entered into a lease agreement for the rental of Unit 8472 with Jeffery White, who is Caucasian. Respondent had to evict Mr. White for non-payment of rent. Mr. White was cited for leaving garbage and other things stacked around the home. When he moved out around August 2010, Mr. White left Unit 8472 filthy on the inside and out. Petitioner, Karen Davis, was the next person to have a lease on this property, approximately five months later. On January 7, 2011, Ms. Davis, who is African-American, was looking to rent a home and saw Respondent's advertisement in the newspaper for the duplex on Barrancas Street. Ms. Davis called Respondent and set up an appointment to view the duplex the same day. Ms. Davis and her mother, Sylvienne Pearson, arrived at the property before Respondent, so they walked around the duplex and looked through the windows while they waited. Respondent showed Unit 8472 to Mses. Davis and Pearson. They learned that the hot water heater had insulation coming out of it, the front door knob did not have a lock, the refrigerator was pulled out from the wall, and the unit appeared not to have been cleaned or prepared for a new tenant since the last tenant had moved out. A storage room in the back of the duplex had to be pried open because it was filled with furniture that had been left by a previous tenant. There was garbage around the outside. Respondent indicated that the home was available "as is." Unit 8472 needed to be cleaned and a hole in the door repaired. Respondent told Ms. Davis that he would deduct the reasonable cost of having the carpet cleaned from the rent. Ms. Pearson asked if they could take a look at the adjoining unit, 8474, which she learned was also available to rent. Respondent told Ms. Pearson that the carpet was damaged, and he would not show it to them because he was not going to rent it until the repairs had been made. After viewing Unit 8472, Ms. Davis called her friend, Brigitte Brahms, who is Caucasian and works part-time as a real estate agent. Ms. Brahms did a search on the property and determined that there was not a lien or foreclosure on it. Ms. Davis described to Ms. Brahms that the front door lock was not working, a lot of belongings were left from a previous tenant, garbage was in the yard, the hot water heater had insulation coming out of it, and that Respondent was not willing to fix any of these items. Respondent's only qualification for a potential tenant in his rental properties is that the tenant has some money. Once Ms. Davis presented Respondent with $350, he determined that she was qualified, and agreed to sign the lease with her. He told Ms. Davis that she would save $80 if she moved into Unit 8272 right away. After Ms. Davis signed the lease and gave him $350, Respondent gave Ms. Davis the keys to the unit. Ms. Davis told Respondent that she did not have all the money required for the rent, and that she would have to get some of it from her family. The next morning, January 8, 2011, Ms. Davis called Respondent to ask to see Unit 8474. Respondent's wife answered the telephone and indicated that Unit 8474 had already been promised to someone else. A short time later, Ms. Brahms, posing as a potential tenant, called Respondent, and asked about the availability of Unit 8474. Respondent indicated that it was available, and Ms. Brahms told him that she would call back later. Ms. Davis went to Ms. Brahm's house and called Respondent again on speakerphone while Ms. Brahms listened. Respondent again told Ms. Davis that Unit 8474 was not available because it had already been rented, and he would not show it to her. An hour later, Ms. Brahms called Respondent to verify that Unit 8474 was available, and Respondent offered to show it to her the same day. Mses. Davis, Pearson, and Brahms went to the duplex before the appointment with Respondent and walked around Unit 8472 so Ms. Brahms would be able to compare it with Unit 8474. Ms. Brahms noted that Unit 8474 was in much better condition than Unit 8272; everything was cleaned up; the unit had been vacuumed; the kitchen was set up properly; the storage unit was empty; and there was no garbage left out in the yard. The carpet was stained and there was a small strip of carpet that was missing between the master bedroom and the living room, but Respondent did not indicate that he would change the carpet or make any repairs. The problems with Unit 8474 were minor in comparison with the problems with Unit 8472, and Unit 8474 was in much better condition than Unit 8472. Respondent did not tell Ms. Brahms that there was anything that had to be repaired before he would rent Unit 8474 to her, and he did not indicate that it was being held for someone else. Instead, when Ms. Brahms asked if Unit 8474 was available to rent, Respondent indicated that she could rent it that very day. January 8, 2011, knowing that Respondent had shown Unit 8474 to Ms. Brahms after refusing to show it to her, Ms. Davis told Respondent that she was no longer interested in renting Unit 8472; tried to return the key to him; and requested a refund of the $350 deposit. Respondent refused, so Ms. Davis sent the key to him in a letter on January 13, 2011, again requesting the refund of the $350 deposit. Respondent has never returned Ms. Davis' $350 deposit. Ms. Davis never actually moved into the duplex. After she decided not to rent Unit 8472 from Respondent, he next rented the unit to a Caucasian on February 25, 2011, then later to another Caucasian followed by a Hispanic tenant. Towards the end of January 2011, Ms. Davis located another rental and moved in on February 1, 2011. Since she never moved into Respondent's duplex, she paid $80 to keep her furniture in storage for a month until she found a new place to live. She paid a $400 deposit and a $300 pet fee for two dogs. Respondent provided several reasons for not showing Unit 8474 to Ms. Davis. Respondent testified that Ms. Davis never asked to see Unit 8474. Instead, he alleges that she simply asked if it was empty, to which Respondent indicated that it was empty and available for rent, but that the unit needed several repairs, and it had not been cleaned. However, Respondent later testified that the previous tenants had left Unit 8474 in such a condition that it only required minor "TLC" from him and was ready to be rented. Additionally, Respondent admitted that he was willing to show Unit 8474 to Rita Davis (no relation to Petitioner), who is Caucasian, despite the fact that he had not repaired the carpet or cleaned Unit 8474. Respondent stated that he had agreed to hold Unit 8474 for an unidentified person until Monday, January 10, 2011, but admitted that he had not received a deposit to hold the unit. Respondent explained that many times he has allowed his tenants to transfer to another one of his properties, even months later, without penalty or charges of any kind. Respondent admitted he did tell Ms. Brahms that Unit 8474 was available for rent and showed it to her, but states that had she actually offered to rent it, he would have told her that it still needed work that she would have had to complete herself. Also, she would only have been allowed to rent that unit if the other person for whom he was holding it did not come up with a deposit. Respondent testified that if a prospective tenant is likely to get into one of his rental properties and tear it up, he will not rent to that person. No evidence was produced to prove that Ms. Davis had a prior record of not caring for apartments or places where she lived.
Recommendation Based upon the Findings of Fact and Conclusions of Law, RECOMMENDED that the Florida Commission on Human Relations enter a final order finding that Respondent discriminated against Karen Davis in violation of section 760.23(1) and (4), Florida Statutes; prohibiting further unlawful housing practices by Respondent; and directing that Respondent submit a cashier's check to Karen Davis within 10 business days from the date of the final order in the amount of $430.00. DONE AND ENTERED this 18th day of May, 2012, 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 18th day of May, 2012. COPIES FURNISHED: Denise Crawford, Agency Clerk Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301 Paul Tinsley 3014 Shearwater Drive Navarre, Florida 32566 Cheyanne Michelle Costilla, Esquire Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301 Lawrence F. Kranert, Jr., General Counsel Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301
