The Issue Whether Respondent violated Subsections 475.25(1)(b), (1)(d)1, and (1)(e), Florida Statutes, and, if so, what discipline should be imposed.
Findings Of Fact Based on the oral and documentary evidence presented at the final hearing, the following findings of facts are made: Petitioner is a state government licensing and regulatory agency charged with the responsibility and duty to prosecute Administrative Complaints pursuant to the laws of the State of Florida, in particular, Section 20.165 and Chapters 120, 455, and 475, Florida Statutes, and the rules promulgated pursuant thereto. Respondent is and was at all times material hereto a licensed Florida real estate salesperson, issued license number 0530788 in accordance with Chapter 475, Florida Statutes. The last license issued to Respondent was an involuntary inactive salesperson at 2156 Turnberry Drive, Oviedo, Florida 32764. On or about April 13, 2000, an Administrative Law Judge entered a Recommended Order finding Respondent guilty of violations of Subsections 721.11(4)(a), (h), (j), and (k), Florida Statutes (1995), by making oral misrepresentations in his sales pitch to timeshare purchasers. On or about June 15, 2000, the Department of Business and Professional Regulation, Division of Florida Land Sales, Condominiums, and Mobile Homes, issued a Final Order adopting the Findings of Fact and Conclusions of Law of the Administrative Law Judge and rejecting all of Respondent's exceptions. In the Final Order, the Department of Business and Professional Regulation, Division of Florida Land Sales, Condominiums and Mobile Homes, ordered Respondent to cease and desist from any further violations of Chapter 721, Florida Statutes, and ordered Respondent to pay a penalty of $28,000. As of September 24, 2002, Respondent had failed to pay the penalty pursuant to the terms of the Final Order of the Department of Business and Professional Regulation, Division of Florida Land Sales, Condominiums, and Mobile Homes. On or about July 22, 2000, a uniform disciplinary citation was issued to Respondent for failing to notify the Florida Real Estate Commission of his current mailing address or any change of the current mailing address in violation of Rule 61J2-10.038, Florida Administrative Code. Pursuant to proper authority, the Florida Real Estate Commission penalized Respondent $100 for the violation. At the time he received the uniform disciplinary citation, Respondent was advised as follows: "You have a total of 60 days from the date this citation was served upon you to pay the fine and costs specified. This citation automatically becomes a Final Order of the board if you do not dispute this citation within 30 days of the date this citation was served upon you. As a Final Order, the fine and costs shall be due to the board within 30 days of the date of the Final Order. After this citation has become a Final Order, failure to pay the fines and costs specified constitutes a violation of a Final Order of the board and may subject you to further disciplinary action." On or about August 22, 2002, the citation became a Final Order. As of September 24, 2002, Respondent had failed to pay the penalty pursuant to the terms of the Final Order of the Florida Real Estate Commission. Respondent had more than 20 years' experience selling timeshare units as a salesman, sales manager or sales director; he had worked in sales at various Central Florida timeshare resorts since 1979. Between July 1995 and March 1997, Respondent was employed as a salesman and sales director by Vocational Corporation, the owner/developer of Club Sevilla, a timeshare resort property. On October 24, 1995, Respondent participated in a sales presentation to Raymond and Charlene Sindel at Club Sevilla, which resulted in their purchase of a timeshare. During the sales presentation, Respondent made the following false, deceptive and misleading statements which induced the Sindels to purchase the timeshare: (1) the Sindels would become members of Interval International, a timeshare exchange program, in which they could exchange their timeshare and/or utilize another timeshare for $79 or $99 a week 52 weeks per year; and (2) representatives of Tri Realty would sell their existing timeshare before the end of the year. On October 24, 1995, Respondent participated in a sales presentation to Clarence and Maxine Shelt at Club Sevilla, which resulted in their purchase of a timeshare. During the sales presentation, Respondent made the following false, deceptive and misleading statement which induced the Shelts to purchase the timeshare: the Shelts would become members of Interval International, a timeshare exchange program, in which they could exchange their timeshare and or utilize another timeshare for $79 a week 52 weeks per year. On June 26, 1996, Respondent participated in a sales presentation to Eugene and Mildred Plotkin and their son, Daniel, at Club Sevilla, which resulted in the purchase by Eugene and Mildred Plotkin of a timeshare. During the sales presentation, Respondent made the following false, deceptive and misleading statements which induced the Plotkins to purchase the timeshare: (1) a timeshare owned by the Plotkins in Las Vegas, Nevada, would be sold within two months; (2) the Plotkins would receive a low-interest credit card with which they would finance the purchase of the Club Sevilla timeshare and that their Las Vegas timeshare would be sold quickly enough that they would not have to pay any interest on the credit card; and (3) the Plotkins would become members of Interval International, a timeshare exchange program, in which they could utilize another timeshare anywhere for $149 a week. On July 26, 1996, Respondent participated in a sales presentation to Robert and Susan Bailey at Club Sevilla, which resulted in their purchase of a timeshare. During the sales presentation, Respondent made the following false, deceptive and misleading statements which induced the Baileys to purchase the timeshare: (1) they would receive a low-interest credit card within ten days with a $20,000 credit limit with which they could finance the timeshare purchase; and (2) the Baileys would receive a prepaid 52-week membership in Interval International, a timeshare exchange program. In September 1996, Respondent participated in a sales presentation to Thomas and Betty Prussak at Club Sevilla, which resulted in the purchase of a timeshare. During the sales presentation, Respondent made the following false, deceptive and misleading statements which induced the Prussaks to purchase the timeshare: (1) timeshares owned by the Prussaks in Westgate and Club Sevilla were valued at $12,000 each and that these timeshare units would be sold if the Prussaks purchased a new timeshare unit at Club Sevilla; (2) that the new Club Sevilla timeshare unit would be a "floating" unit (could be used anytime); and (3) that the new Club Sevilla timeshare would be rented and that the Prussaks or their daughter would be able to take "getaway" weeks and stay at any RCI timeshare for $149 per week. On December 11, 1996, Respondent participated in a sales presentation to Larry and Carla Eshleman at Club Sevilla, which resulted in their purchase of a timeshare. During the sales presentation, Respondent made the following false, deceptive and misleading statements which induced the Eshlemans to purchase the timeshare: (1) the Eshlemans would receive a low-interest credit card with which they could finance the timeshare purchase; (2) the Eshlemans would become members of Interval International, a timeshare exchange program, in which they could exchange their timeshare and utilize another timeshare for $149 a week; and (3) the timeshare the Eshlemans owned prior to their purchase of the Club Sevilla timeshare would be sold in three months or would be rented for $1,650 per week.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is hereby RECOMMENDED that Petitioner enter a final order finding that Respondent violated Subsections 475.25(1)(b) and (e), Florida Statutes, and that Respondent's license as a real estate salesperson be revoked, that he be fined $2,000 and be required to pay the costs of the investigation and prosecution of the case. DONE AND ENTERED this 3rd day of December, 2002, in Tallahassee, Leon County, Florida. JEFF B. CLARK 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 3rd day of December, 2002. COPIES FURNISHED: Christopher J. Decosta, Esquire Department of Business and Professional Regulation 400 West Robinson Street, Suite N-308 Hurston Building, North Tower Orlando, Florida 32801 William S. Walsh 13079 South Taylor Creek Road Christmas, Florida 32709 Hardy L. Roberts, III, General Counsel Department of Business and Professional Regulation Northwood Centre 1940 North Monroe Street Tallahassee, Florida 32399-2202 Buddy Johnson, Director Division of Real Estate Department of Business and Professional Regulation 400 West Robinson Street Post Office Box 1900 Orlando, Florida 32802-1900 Nancy P. Campiglia, Chief Attorney Department of Business and Professional Regulation 400 West Robinson Street Post Office Box 1900 Orlando, Florida 32802-1900
The Issue The issue in this case is whether Respondent unlawfully discriminated against Petitioner in connection with Petitioner’s employment by Respondent on the basis of his national origin.
Findings Of Fact Petitioner Leneve Plaisime (“Plaisime”), whose country of origin is Haiti, was employed as a busboy and room service attendant at the Marriott Key Largo Bay Resort (“Marriott”)1 from 1995 to 1997. On September 13, 1997, upon returning to work after a vacation of several weeks, Plaisime was fired by a manager named Eric Sykas who said to him: “There is no job for you because the owner says he’s not interested in Haitians.”2 This statement was overheard by a co-worker of Plaisime’s named Fito Jean, who testified at the final hearing, corroborating Plaisime’s account.3 In around the middle of October 1997 (approximately one month after his discharge), Plaisime found a new job at Tak Security Corporation (“Tak”). Evidence introduced by Plaisime shows that he earned $7,862.52 at Marriott in 1997, which reflects an average monthly wage of about $925. Had he worked the entire year at Marriott, Plaisime would have earned a total of approximately $11,100. In contrast, working for Tak in 1998 Plaisime earned $11,396 (or approximately $950 per month)——a 2.7% increase in his annual income. There is no evidence showing what Plaisime’s likely income would have been in 1998 had he remained in the employ of Marriott. Ultimate Factual Determinations Marriott discharged Plaisime because of his national origin. Thus, Marriott committed an unlawful employment practice in violation of Section 760.10(1)(a), Florida Statutes. The actual economic loss that Plaisime suffered as a result of Marriott’s unlawful discrimination against him was one month’s pay, or $925.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the FCHR enter a final order declaring that Marriott discharged Plaisime on the basis of his national origin, in violation of Section 760.10(1)(a), Florida Statutes; prohibiting Marriott from committing further such violations; and awarding Plaisime $925 to relieve the effects of the unlawful discrimination that Marriott perpetrated against him. DONE AND ENTERED this 14th day of February, 2003, in Tallahassee, Leon County, Florida. JOHN G. VAN LANINGHAM 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 14th day of February, 2003.
The Issue Whether Respondent discriminated against Petitioner on the basis of physical disability.
Findings Of Fact On May 8, 1998, Brill, June Faris, Allen Watson, and Alice Corbett arrived at the Ocean View Villas, a motel in Deerfield Beach, Florida. Ms. Faris is Brill's daughter. Mr. Watson is a friend of Ms. Faris. Ms. Corbett is a paid caretaker for Brill, who had had a stroke and was confined to a wheelchair. Ocean view is owned and operated by Ramona and John Jakubaez. Brill and her party checked in without incident and paid for their stay in advance on Brill's VISA credit card. Mr. Jakubaez was aware that Brill was in a wheelchair when they checked into the motel. Brill used a portable toilet chair because her wheelchair would not fit through the bathroom door. She also wore disposable diapers as a precautionary measure. Ms. Corbett placed pads on the mattress and on the sitting chair in Brill's room in case of accidents. When Mr. Jakubaez and his wife cleaned Brill's room, they noticed the presence of the toilet chair and became worried that Brill might soil the room. Ms. Jakubaez stated: Well we saw Ms. Brill sitting in her wheelchair. She had diapers on and all kinds of pads around her and she seemed to be very disoriented. We couldn't communicate with her, but she was there and she had someone to take care of her. Around 11 o'clock on the morning of May 9, 1998, Brill and her party were having breakfast on the patio at the motel, when the water sprinklers came on. The sprinklers were scheduled to come on automatically for two hours beginning at 9 a.m. Because the sprinklers were wetting them, they left the patio area. Ms. Faris wheeled her mother out to the front of their rooms so that Brill could get some sun. Mr. Jakeubaez came by and asked whether it was a good idea for Brill to be sitting outside. Ms. Corbett went to do some laundry at the motel's laundry facilities which were available for the motel guests to use. While Ms. Corbett was doing the laundry, which included the pads that Brill used, Ms. Jakubaez came to the laundry area and told Ms. Corbett that she could not use the laundry facilities because the clothes stank. Other motel guests were using the laundry facilities at the same time as Ms. Corbett, and Ms. Jakubaez did not tell them they could not use the laundry equipment. Ms. Faris and Mr. Watson left Brill with Ms. Corbett and went to the beach. While Ms. Faris and Mr. Watson were away, Mr. Jakubaez came to Brill's room and told Ms. Corbett that he did not want Brill to soil his mattress and chair. Brill was sitting in the chair at the time. Ms. Corbett told Mr. Jakubaez that she had the chair padded and showed him the mattress with no urine stains. Ms. Corbett helped Brill out of the chair into her wheelchair and showed Mr. Jakubaez the chair, which was undamaged. Brill began to cry at this point. Mr. Jakubaez told Ms. Corbett to tell Ms. Faris that she had to pay an additional $100 if they continued to stay at the motel. After Mr. Jakubaez left the room, Brill continued to cry until she fell asleep. When Ms. Faris returned from the beach, Ms. Corbett relayed what Mr. Jakubaez had said about an additional $100 payment. Ms. Faris and Mr. Watson went to the motel office to speak to Mr. Jakubaez. When Ms. Faris confronted Mr. Jakubaez, he indicated that he wanted her to pay an additional $300 as a damage deposit should Brill damage the room with her incontinence. Ms. Faris explained that her mother was not incontinent. Mr. Jakubaez further told Ms. Faris that Brill belonged in a nursing home and should not be on a vacation. Mr. Jakubaez told her that he did not know why they had a person like Brill staying in a hotel. When Mr. Jakuabez told Ms. Faris that they would have to leave if she did not pay the $300, Ms. Faris asked who would determine if she got the $300 back. Mr. Jakubaez replied that he would get a third party to inspect the room after they vacated it. Ms. Faris would not agree to pay the additional $300 and called the police. The police declined to become involved because it appeared to be a civil matter. Brill and her party left Ocean View in late afternoon of May 9, 1998, and went to the Suez Motel in Miami Beach, Florida, where they checked in and stayed through May 12, 1998. The cost of the rooms at the Suez Motel totaled $426.63. When Brill left Ocean View, there was no damage to the carpet, mattress, or chair because of incontinence. Ms. Faris bought groceries for their use during their stay at Ocean View. Because of the groceries, she was unable to get the wheelchair in the car when they left Ocean View. The wheelchair was placed on the top of the car, and the movement of the wheelchair during the trip to the Suez Motel damaged the top of the car. No evidence was presented as to the amount of the damage.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a final order be entered finding that Ocean View Villas discriminated against Isabell C. Brill based on her physical disability and awarding her $1,426.63 in damages. DONE AND ENTERED this 22nd day of November, 2000, in Tallahassee, Leon County, Florida. Susan B. Kirkland 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 22nd day of November, 2000. COPIES FURNISHED: June B. Faris c/o Isabel C. Brill 11017 Howland Drive Reston, Virginia 20191 Mark M. Heinish, Esquire Ritter, Chusid, Bivona & Cohen, LLP 7000 West Palmetto Park Road Boca Raton, Florida 33433 Dana A. Baird, General Counsel Florida Commission on Human Relations 325 John Knox Road, Building F Suite 240 Tallahassee, Florida 32303-4149 Sharon Moultry, Agency Clerk Florida Commission on Human Relations 325 John Knox Road, Building F Tallahassee, Florida 32303-4149
Findings Of Fact Biscayne Boulevard through the municipality of Miami, Florida, is a state highway, State Road 5 (U.S. 1,) which is operated and maintained by the State of Florida through its Department of Transportation. The state owns the right of way areas adjacent to Biscayne Boulevard. The Petitioner, Marina Park Associates ("Marina Park") is the owner of the Marina Park Hotel (the "Hotel") located at 340 Biscayne Boulevard, Miami, Florida. The Hotel is situated adjacent to the Department's right of way. Petitioner has applied to the Department of Transportation for approval to construct a canopy extending from the entrance of the Hotel over the state's right of way adjacent to Biscayne Boulevard. There is an existing canopy in front of the Hotel which was installed approximately 11 years ago. At the time the existing canopy was installed, the Hotel obtained a permit from the city. However, it does not appear that the State Department of Transportation was ever notified or considered the application for the existing canopy. Petitioner is seeking to replace the existing canopy with a new improved canopy at approximately the same location. The Hotel recently underwent renovations and the Petitioner is seeking to make the property more attractive by installing a new canopy. The plans for the proposed canopy were submitted by Petitioner to Respondent. Those plans indicate that the proposed canopy would violate at least three aspects of the Respondent's rules regarding canopies over state right of way areas. These rules were adopted to establish uniform safety standards, to limit or prevent obstruction of the sidewalks and to further emergency vehicle access. There is no provision in the rules for variances or exceptions to these requirements. While the evidence established that there are several obstructions along the right of way which contravene these rules, there is no evidence that the Department has ever approved such obstacles. The plans for the proposed canopy do not provide for a set back of at least two feet from the outside edge of the canopy to the face of the curb as required by the existing rules. This defect can be cured quite easily by adjusting the length of the canopy. However, the other problems with the canopy cannot be cured so easily. The Hotel has a recessed entrance. The proposed canopy would extend into the recessed area. As a result, there will not be a nine foot clearance between the bottom of the canopy and the sidewalk as required in the existing rules. Even more importantly, the building design provides insufficient support to cantilever the canopy out from the entraceway without columns. Therefore, the proposed canopy requires supports at the end of the canopy on the sidewalk. The existing rules prohibit any such supports and there is no provision for a variance from this requirement. Canopy supports extending below the nine foot clearance are prohibited because of the resulting obstruction of the sidewalk impairing pedestrian traffic and inhibiting access from passenger vehicles parked on the roadway. The existing canopy is apparently not in compliance with all of the provisions of the Respondent's rules. Respondent never reviewed or permitted the existing canopy nor has it cited the existing canopy for being in violation of the rules. There is no provision in the rules to grandfather in an existing canopy and/or to replace or improve an existing canopy.
Recommendation Based upon the foregoing findings of fact and conclusions of law, it is RECOMMENDED that the Department of Transportation enter a Final Order finding Petitioner's proposed canopy does not meet the requirements of Rule 14-43 and denying Petitioner's request for a variance by means of through application for a special permit. DONE AND ORDERED in Tallahassee, Leon County, Florida, this 24th day of June, 1991. J. STEPHEN MENTON Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the D Division of Administrative Hearings this 24th day of June, 1991. APPENDIX The Respondent has filed a Proposed Recommended Order. The following constitutes my rulings on the proposed findings of fact submitted by the parties. The Respondent's Proposed Findings of Fact Proposed Finding Paragraph Number in the Findings of Fact of Fact Number in the Recommended Order Where Accepted or Reason for Rejection. Adopted in substance in Findings of Fact 1. Adopted in substance in Findings of Fact 2. Adopted in substance in Findings of Fact 3. Adopted in substance in Findings of Fact 7, 8 and 9. Adopted in substance in Findings of Fact 9. Adopted in substance in Findings of Fact 4. COPIES FURNISHED: Russell A. Waldon Assistant General Counsel Department of Transportation Haydon Burns Building 605 Suwanee Street, M.S. #58 Tallahassee, FL 32399 M. L. Dayton Marina Park Associates 340 Biscayne Boulevard Miami, FL 33132 John Reilly Miami Awning Company 282 Northwest 36th Street Miami, FL 33127 Ben G. Watts, Secretary Department of Transportation Haydon Burns Building 605 Suwanee Street Tallahassee, FL 32399-0458 Thornton J. Williams, General Counsel Department of Transportation 562 Haydon Burns Building Tallahassee, FL 32399-0458
The Issue Whether Respondents discriminated and retaliated against Petitioner because of her disability, in violation of the Florida Fair Housing Act; and, if so, the relief to which Petitioner is entitled. More specifically, the issues raised in this case are (1) whether Petitioner’s dog was a “service animal” pursuant to section 413.08, Florida Statutes (2018)1/; (2) whether Respondents took adverse action against Petitioner because of her disability; and (3) whether Respondents retaliated against Petitioner by not renewing her lease after she filed a housing discrimination complaint.
Findings Of Fact The parties stipulated at the final hearing that Petitioner suffers from anxiety and neck issues; and she qualifies as a person who is disabled for the purposes of the Florida FHA. Parties and Property Respondent Pelican Bay is a residential community owned and operated by Sun Homes. Respondent Cheryl Merrifield is the manager of Pelican Bay and an employee of Sun Homes. On June 24, 2016, Petitioner entered into a Manufactured Home Option to Purchase Agreement with Sun Homes (Agreement). The Agreement gave Petitioner a two-year period to lease the manufactured home located on Lot 56 of the Pelican Bay residential community. The Agreement allows the purchase of the home, but not the Lot in Pelican Bay. The Agreement contained a “rent to own” component which also allowed Petitioner to be credited 50% of her first year’s lease payments, and 25% of her second year’s lease payments towards the purchase of the manufactured home. Under the terms of the Agreement, after the first two years, the Petitioner would not accrue any credits toward the purchase of the home. The Agreement clearly anticipated that if Petitioner was to exercise the option to purchase, she would do so within two years. The Agreement refers to separate “Home Lease” and “Site Lease” agreements, but neither was admitted into evidence. Petitioner moved into the property in July 2016 with her five-pound Chihuahua, Buttons. At the time she moved into Pelican Bay, Petitioner informed Respondents she suffered from anxiety and needed Buttons for psychological and emotional support. As a result Pelican Bay waived the pet deposit and fees for Button. Petitioner claims she was discriminated against because she had a service dog and cites the following incidents: (1) in July 2016, she was prohibited from bringing Buttons into the Pelican Bay Clubhouse (Clubhouse) during a Fourth of July neighborhood party; (2) in November 2016, she was told that Buttons could not be in the kitchen or on the furniture in the Clubhouse and must be on a leash and controlled at all times during a Thanksgiving event; and (3) she was harassed by her neighbors and Pelican Bay staff for having the dog in the pool area. Petitioner also alleges she was retaliated against for filing a housing discrimination complaint when Pelican Bay did not renew her lease in July 2018. Respondents dispute Petitioner’s version of the facts and deny that their actions were discriminatory. Buttons As an initial matter, there is a factual dispute as to whether Buttons is a “service animal” for the purposes of the Florida FHA. Although it is unclear when Buttons became her service animal, Petitioner had Buttons as a pet prior to being prescribed a service animal for her anxiety by her psychologist, Dr. Donna Marks. Dr. Marks is certified in addiction therapy, psychoanalysis, and Gestalt psychology. She has no training in orthopedics or treating back and neck injuries. Dr. Marks has been treating Petitioner for anxiety intermittently since 2009. In 2014, Petitioner began regular twice a week therapy sessions with Dr. Marks. Thereafter, Dr. Marks prescribed a “psychological service animal” for Petitioner’s anxiety disorder. In a letter dated January 21, 2016, to allow Buttons to ride on an airplane, Dr. Marks wrote: Ms. Taylor has been seen by me and I am familiar with her history and with function limitations and needs imposed by an anxiety order. In order to help alleviate these difficulties and to enhance her ability to function independently, I have prescribed Ms. Taylor to obtain a psychological service animal. The presence of this animal is necessary for her emotional health because it will mitigate the symptoms she experiences and a preferable alterative to medication. (emphasis added). Later, after Petitioner moved into Pelican Bay, Dr. Marks changed her prescription for Petitioner from a “psychological service animal” to a “service animal.” Although no written prescription of this change was admitted into evidence, Dr. Marks claimed she made this change due to Petitioner’s neck and back surgeries. On cross-examination, however, Dr. Marks admitted she altered the prescription for Petitioner’s convenience. Petitioner had reported to her that she was having difficulty at Pelican Bay and was not allowed to take Buttons to neighborhood events. Dr. Marks felt a “service animal” would have more access than an “emotional support animal.” When asked what service Buttons provides or tasks Buttons performs for Petitioner, both Petitioner and Dr. Marks testified Buttons calms Petitioner and keeps her from becoming anxious. In addition, Petitioner testified she has difficulty turning her neck and needs Buttons to warn Petitioner when people are approaching and warn people not to come to close to her. Buttons does this by barking. Buttons did not go through any professional training to learn to keep Petitioner calm or how to bark. Dr. Marks was not involved in training Buttons, made no recommendations on how Buttons should be trained, and did not know of a training protocol for teaching animals anxiety-reducing techniques or conduct. Petitioner claimed she trained Buttons by giving it treats when it behaved the way she wanted, but admits she did not follow any specialized training program. Buttons is registered with the United States Animal Registry (USAR) as an “Emotional Support Dog” and a “Service Dog.” Based on her USAR identification and letters from Dr. Marks, Buttons has been allowed to accompany Petitioner at restaurants, the hospital, and on airplanes. Petitioner, however, provided no evidence of the requirements for registering Buttons with the USAR registry. For example, there was no evidence of an USAR application or questionnaire; nor was there evidence Buttons had been evaluated or tested by USAR as part of the registration process.3/ As explained below, the undersigned finds Buttons is not a “service dog” for purposes of the Florida FHA. Fourth of July In early July 2016, a Fourth of July potluck celebration was held in the Clubhouse. When Petitioner arrived at the Clubhouse with her potluck contribution she was told by Reni Thompson that she could not bring Buttons into the area where the food was being served. Upon hearing this, Petitioner immediately left the Clubhouse and did not participate in the event. The uncontroverted evidence established the celebration was not sponsored by Pelican Bay, nor was staff in attendance. Instead it was arranged by the Pelican Bay Home Owner’s Association (HOA). Although Petitioner testified Ms. Thompson told her she was an HOA board member, Ms. Merrifield testified Ms. Thompson was not on the HOA board, nor was Ms. Thompson a Pelican Bay employee. Other than Petitioner’s hearsay there is no evidence that Ms. Thompson was a board member. Moreover, the HOA was not affiliated with or managed by Pelican Bay, nor were its board members employees of Pelican Bay. As such, any conduct by Ms. Thompson cannot be imputed onto Pelican Bay. Regardless, when Ms. Merrifield received Petitioner’s complaint about what had occurred at the Fourth of July incident, she immediately arranged a meeting with Petitioner. Ms. Merrifield also met separately with Ms. Thompson to inform Ms. Thompson that Petitioner should be allowed in the Clubhouse with Buttons. The undersigned finds Respondents are not liable for Ms. Thompson’s conduct, and took corrective measures once it learned of the incident. Thanksgiving Restrictions on Buttons On November 1, 2017, Ms. Merrifield sent an email titled “Thanksgiving Dinner Nov. 23” to the residents of Pelican Bay. That email stated as follows: Attached to this email is what Sandy Weidner is posting in the Clubhouse today. If anyone is interested please go and sign up. She also has a list of what will be needed if anyone wants to help with the side dishes. The email then listed the side dishes that were needed and contact information for Sandy Weidner for any questions. The evidence established the event was not sponsored by Pelican Bay (although it was contributing the turkey) and Ms. Weidner was not a Pelican Bay employee. Instead of contacting Ms. Weidner, Petitioner emailed Ms. Merrifield and asked, Cheryl, Is this an Event that Buttons, “My Service Dog” and I will be welcomed to without anyone rejecting us or harassment?” Ms. Merrifield replied, In response to your request we understand your dog is an emotional support animal. It may be with you in the clubhouse. It may not go in the kitchen, it may not be put on furniture. It must be on a leash and controlled at all times. It is unclear whether this response deterred Petitioner from attending the Thanksgiving event. Nonetheless, the undersigned finds Ms. Merrifield’s actions did not constitute a violation of the Florida FHA. Pool Incidents In July 2017, Pelican Bay staff received a complaint from residents that Buttons was in the community pool, in violation of the community pool rules. Later, Ms. Merrifield spoke to Petitioner who admitted she had taken Buttons in the pool. Ms. Merrifield told Petitioner Buttons was not allowed inside the pool and should not be left in the pool area unrestrained. Petitioner later researched the issue and agreed she would not take Buttons in the pool in the future. In August 2017, Josephine Hillier, a Sun Homes employee, received another complaint from residents that Buttons was in the pool. When Ms. Hillier investigated the complaint she did not see the dog in the pool, but did find Petitioner with Buttons in the pool area. At the time, Petitioner denied Buttons was in the pool and claimed Ms. Hillier’s questioning was harassment in violation of housing discrimination laws. At the hearing, Petitioner testified that after researching and learning Buttons could not be in the pool, she continued to sit in the pool with Buttons on her shoulder. Petitioner did not consider this to be a violation of the pool rules as long as Buttons was not in the water. She also allowed Buttons to sit on the pool furniture unrestrained while she was in the pool, because her veterinarian told her Buttons was too small for a leash. Regardless, Pelican Bay took no further action against Petitioner regarding Buttons being in the pool. Petitioner complains Respondents repeatedly questioned her about Buttons being in the pool. Ms. Merrifield testified she was aware of two complaints of Petitioner letting Buttons in the pool; Ms. Hillier testified she was aware of two complaints about Buttons being in the pool, one of which she investigated. The undersigned finds that although Petitioner may have been approached by residents with complaints about Buttons, Respondents only spoke with her about Buttons being in the pool twice. The undersigned finds Pelican Bay’s conduct in questioning Petitioner about Buttons being in the pool, and warning her Buttons must be restrained did not constitute harassment. As explained below, this was justified under the circumstances. Non-Renewal of Purchase Agreement On March 20, 2018, Sun Homes sent an unsigned form letter to Petitioner stating her lease would not be renewed and that she would be required to vacate the property on or before June 30, 2018. Petitioner believes she received this letter because she filed a complaint of housing discrimination. The Agreement allowing the option to purchase the home anticipates a lease period of two years, although a longer period is not prohibited. Respondents asked Petitioner after the first year if she was planning to exercise her option to buy the home. At that time, June 2017, she declined because she felt it was too expensive and did not make financial sense. Petitioner did not take any steps toward exercising her option to purchase the home at the end of the second year because she was recovering from neck and back surgeries, her son was living with her, and she was not financially able to purchase it. Ms. Merrifield testified that it was common business practice to not allow renters to remain in Pelican Bay for more than two years. Sun Homes’ business model was to sell the manufactured homes; it was not interested in long-term rental relationships. The evidence established Petitioner was not the only resident that received the form non-renewal letter. The renters in the homes on Lot 48 and Lot 30 also received similar letters. Ms. Merrifield was unaware of whether these other residents had disabilities, but neither had made any kind of housing complaints. Based on the evidence and testimony presented at the final hearing, Petitioner did not demonstrate, by a preponderance of the evidence, that Respondents discriminated against her based on her disability or retaliated 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 finding that Respondents, Pelican Bay Communities, LLC, and Cheryl Merrifield, did not commit a discriminatory housing practice against Petitioner, Paula C. Taylor, and dismiss her Petition for Relief. DONE AND ENTERED this 14th day of November, 2018, 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 14th day of November, 2018.
The Issue Whether Respondent, Eve Management, Inc./KA and KM Development, Inc., denied Petitioners full and equal enjoyment of the goods and services offered at its place of public accommodation, in violation of sections 509.092 and 760.08, Florida Statutes (2011).1/
Findings Of Fact Parties and Jurisdiction Petitioners are African Americans who reside in the State of Ohio, who visited Orlando, Florida, in June 2011 and stayed at Lake Eve Resort beginning on June 21, 2011. Respondent, Eve Management, Inc./KA and KM Development, Inc., was the owner of Lake Eve Resort, located at 12388 International Drive, Orlando, Florida, at all times relevant hereto. Each Petitioner filed a Complaint of Discrimination with the Commission as follows: Jessica Austin – July 20, 2012 Denise Austin – July 21, 2012 Tracie Austin – January 18, 2013 (Amended Complaint)2/ Bonlydia Jones – July 11, 2012 James Austin – July 31, 2012 Dionne Harrington – August 1, 2012 Esther Hall – January 28, 2013 (Amended Complaint)3/ Boniris McNeal – March 27, 2013 Summer McNeal – March 27, 2013 Derek McNeal – March 27, 2013 In each Complaint, the Petitioner alleges that the most recent date of discrimination is June 22, 2011. On June 21, 2012, Petitioners Esther Hall, Summer McNeal, Boniris McNeal, Derek McNeal, and Dionne Harrington, each filed a Technical Assistance Questionnaire (TAQ) with the Commission. Each TAQ is signed by the named Petitioner, is stamped received by the Commission on June 21, 2012, and contains the specific facts alleged to be an act of discrimination in the provision of public accommodation by Respondent. Allegations of Discrimination On or about May 23, 2011, Petitioner, Boniris McNeal, entered into a Standard Group Contract with Lake Eve Resort (the Resort) to reserve 15 Resort rooms for five nights at a discounted group rate beginning June 21, 2011.4/ The rooms were to accommodate approximately 55 members of her extended family on the occasion of the Boss/Williams/Harris family reunion. Petitioners traveled from Ohio to Orlando via charter bus, arriving at the Resort on the evening of June 21, 2011. Erika Bell, a relative of Petitioners, drove a rental car from Ohio to Orlando. She did not arrive in Orlando until June 22, 2011. Petitioners checked in to the Resort without incident. However, one family member, John Harris, was informed that the three-bedroom suite he had reserved for his family was not available due to a mistake in reservations. He was offered two two-bedroom suites to accommodate his family. Petitioner, Boniris McNeal, dined off-property on the evening of June 21, 2011, to celebrate her wedding anniversary. Petitioner, Bonlydia Jones, left the Resort property shortly after check-in to shop for groceries. Petitioners, Dionne Harrington and Esther Hall, were very tired after the long bus trip and went to bed early on June 21, 2011. Petitioner, Denise Austin, arrived in Orlando with the family on June 21, 2011. On the morning of June 22, 2011, Ms. Jones received a call from Mr. Harris, informing her that the Resort management wanted to speak with them about his room. That morning, Ms. Jones and Mr. Harris met with two members of Resort management, Amanda Simon and Marie Silbe. Mr. Harris was informed that he needed to change rooms to a three-bedroom suite, the accommodation he had reserved, which had become available. Mr. Harris disputed that he had to change rooms and argued that he was told at check-in the prior evening he would not have to move from the two two-bedroom suites he was offered when his preferred three-bedroom suite was not available. After some discussion, it was agreed that Mr. Harris would move his family to an available three-bedroom suite. The Resort provided an employee to assist with the move. Following the meeting with management, Ms. Jones went to the pool, along with Ms. Harrington and other members of the family. After a period of time which was not established at hearing, Mary Hall, one of Ms. Harrington’s relatives, came to the pool and informed Ms. Harrington that the family was being evicted from the Resort. Ms. Harrington left the pool and entered the lobby, where she observed police officers and members of Resort management. She approached a member of management and was informed that she and her family were being evicted from the Resort and must be off the property within an hour. Ms. Harrington left the lobby and returned to her room, where her mother, Ms. Hall was sleeping. Ms. Harrington informed Ms. Hall that the family was being evicted from the Resort and instructed Ms. Hall to pack her belongings. Ms. Jones’ cousin, Denise Strickland, came to the pool and informed her that the family was being evicted from the Resort. Ms. Jones entered the lobby where she was approached by a member of management, who introduced herself as the general manager and informed her that the family was being evicted. Ms. Jones requested a reason, but was informed by a police officer that the owners did not have to give a reason. In the lobby, Ms. Jones observed that an African- American male was stopped by police and asked whether he was with the Boss/Williams/Harris reunion. He was not a family member. Ms. Jones observed that no Caucasian guests were approached in the lobby by management or the police. Ms. Austin was on a trolley to lunch off-property on June 22, 2011, when she received a call from her cousin, Ms. Strickland. Ms. Strickland informed Ms. Austin that the family was being evicted from the Resort and she needed to return to pack her things. Ms. Austin returned to the property, where she was escorted to her room by a security guard and asked to pack her belongings. Ms. McNeal was en route to rent a car and buy groceries on June 22, 2011, when she received a call from Ms. Strickland informing her that the family was being evicted and that she needed to return to the Resort to pack her belongings. Upon her arrival at the Resort, Ms. McNeal entered the lobby. There, she was approached by Resort staff, asked whether she was with the Boss/Williams/Harris reunion, and informed that the Resort could not honor the reservations and the family was being evicted. Ms. McNeal observed that Caucasian guests entering the lobby were not approached by either the police or Resort management. Ms. McNeal was escorted to her room by both a police officer and a member of management and instructed to be out of the room within 30 minutes. Ms. McNeal inquired why they were being evicted, but was told by a police officer that the Resort was not required to give a reason. Erika Bell received a call from her mother, Ms. Austin, while en route to the Resort on June 22, 2011. Ms. Austin informed Ms. Bell that the family was being evicted from the Resort and asked her to call the Resort and cancel her reservation. Respondent gave no reason for evicting Petitioners from the property. Respondent refunded Petitioners’ money.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Florida Commission on Human Relations issue a final order: Finding that Respondent, Eve Management, Inc./KA and KM Development, Inc., committed an act of public accommodation discrimination in violation of sections 509.092 and 760.08, Florida Statutes (2011), against Petitioners Jessica Austin, Denise Austin, Tracie Austin, James Austin, Bonlydia Jones, Esther Hall, Boniris McNeal, Derek McNeal, Summer McNeal, and Dionne Harrington; and Prohibiting any future acts of discrimination by Respondent. DONE AND ENTERED this 28th day of May, 2014, in Tallahassee, Leon County, Florida. S SUZANNE VAN WYK Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 28th day of May, 2014.
