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 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 The issue is whether Respondent violated the provisions of Florida’s Fair Housing Act, Section 760.20-760.37, Florida Statutes (2002) (the Fair Housing Act), by evicting Petitioners and thereby allegedly breaching a rental agreement, as more fully described in the Petition for Relief. (References to statutory sections and chapters are to Florida Statutes (2002.)
Findings Of Fact Petitioners are Hispanic. The parties agree that Mrs. Villamizar is handicapped by a mental disability of an undocumented nature. Respondent works full-time as a fireman, and he has managed real estate on a part-time basis for over 15 years. Sometime in August, 2001, Petitioners rented an apartment from Respondent pursuant to a verbal rental agreement. The apartment is identified in the record as Apartment 5 (the apartment). The apartment is one of several in a building located at 1484 Northwest 15th Avenue, Miami, Florida 33125 (the building). Petitioners rented the apartment in conjunction with a rent subsidy program administered by Volunteers of America. Petitioners resided in the apartment as their primary residence until approximately February 23, 2003. At that time, Respondent evicted Petitioners pursuant to a court order issued by the County Court In and For Dade County, Florida (the County Court). Respondent evicted Petitioners for nondiscriminatory reasons. Mr. Villamizar threatened Respondent, abused alcohol and drugs, and was involved in approximately 12 police incident reports at the building. After Respondent painted the outside of the building, Mr. Villamizar painted the apartment door, the railing, and an exterior wall with a different color. Mr. Villamizar also painted, "Fuck the fire department" on the outside of the apartment.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Commission enter a final order dismissing the Petition for Relief. DONE AND ENTERED this 27th day of October, 2003, 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 27th day of October, 2003. COPIES FURNISHED: Cecil Howard, General Counsel Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301 Michelle Jackson, Acting Agency Clerk Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301 Gerardo and Rodica Villamizar Post Office Box 010461 Miami, Florida 33130 Eddie Gomez 17835 Southwest 10th Court Pembroke Pines, Florida 33029
