The Issue Did Respondent, Winter Haven Housing Authority (Authority), discriminate against Petitioner, Donald Bayer, in the sale or rental of housing on account of a disability?
Findings Of Fact Mr. Bayer is visually impaired. At all material times he was a resident of Lakeside Terrace Senior Apartment Homes (Lakeside) in Winter Haven, Florida, operated by the Authority. On March 3, 2017, while in Lakeside’s management office to pay his rent, Mr. Bayer asked the property manager, Bersy Sanchez, to help him complete an application for a section 8 housing subsidy. Because it was early in the month, Ms. Sanchez was very busy collecting rents for Lakeside’s 84 units. She was the only employee in the office. Ms. Sanchez and Mr. Bayer disagree about the exact content of their conversation. Considering the witnesses’ demeanor and the areas about which there is no disagreement, Ms. Sanchez’ testimony was more credible and persuasive. In addition, they agree that Ms. Sanchez told Mr. Bayer she was too busy to assist him that day but would assist him if he returned to the office the following day. (Tr 61 & 62). According to Mr. Bayer, Ms. Sanchez said, “Will you come back tomorrow?” (Tr 19). Mr. Bayer did not return to the office to complete the application the next day or any day afterwards. He explained his decision like this: “I – if I would have went back the next day I would have given away my complaint that she had violated my rights because maybe she would have helped me fill out the application. I’m not giving away a free violation of my rights, and that’s why I did not go back.” (Tr 61). By any measure, Ms. Sanchez’ offer to assist Mr. Bayer the next day was a reasonable accommodation for his visual disability. Mr. Bayer’s explanation for refusing to return the next day demonstrates intent to secure an advantage over the Authority.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Florida Commission on Human Relations dismiss the Petition for Relief of Petitioner, Donald Bayer. DONE AND ENTERED this 6th day of May, 2019, in Tallahassee, Leon County, Florida. S JOHN D. C. NEWTON, II 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 6th day of May, 2019.
The Issue The issue in this case is whether a portion of Florida Administrative Code Rule 67-48.0072 is an invalid exercise of delegated legislative authority.
Findings Of Fact The Petitioner is a limited partnership and developer of affordable housing in Florida. The Petitioner is seeking to construct a 116-unit affordable housing family apartment complex ("Elmwood Terrace") in Fort Myers, Lee County, Florida. The Petitioner has standing to initiate and participate in this proceeding. The Respondent is a public corporation organized under Chapter 420, Florida Statutes (2010), to administer state programs that provide financial support to developers seeking to construct affordable housing. Such support is provided through a variety of mechanisms, including the use of federal tax credits. The federal tax credit program was created in 1986 to promote the construction and operation of privately-developed affordable housing. The tax credits relevant to this proceeding provide a dollar-for-dollar credit against federal tax liabilities for a period of ten years. The Respondent is the designated Florida agency responsible for distribution of the federal tax credits. The tax credits are awarded pursuant to a "Qualified Allocation Plan" (QAP) that must be annually approved by the Governor and adopted as an administrative rule by the Respondent. As a matter of course, developers receiving the federal tax credits sell them through syndicators for discounted cash. The sale of the tax credits generates debt-free cash equity for developers. Developers seeking financial support to build affordable housing units submit applications to the Respondent during an annual competitive process known as the "Universal Cycle." Every three years, the Respondent commissions a study (the "Shimberg Report"), which measures, within each Florida county, the number of "cost-burden" renters earning 60 percent or less of an area's median income (AMI) who pay more than 40 percent of their income in rent. The AMI is determined by the federal government. The cost-burden households are further classified into four groups: families, the elderly, farm workers, and commercial fishermen. The Shimberg Report also assesses needs related to homeless people in the state. Developers seeking to obtain affordable housing financing are required to set aside a portion of the proposed units for income-limited residents. Access to affordable housing units is generally targeted towards persons receiving no more than 60 percent of the AMI. The Universal Cycle process allows the Respondent to target specific housing deficiencies in terms of geographic availability and population demographics and to preserve the stock of existing affordable housing. During the Universal Cycle process, the Respondent identifies areas where additional affordable housing is unnecessary, to discourage additional development in weak markets and to encourage development in those locations where there is a lack of access to affordable housing. The Respondent classifies areas where there is little need for additional affordable housing as "Location A" areas. Each application filed during the Universal Cycle is evaluated, scored, and competitively ranked against other applications filed during the same Universal Cycle. After the Respondent completes the competitive ranking of the applications submitted in the Universal Cycle, the applicants are provided with an opportunity to review and comment on the evaluation and scoring of the proposals. Applicants may also cure defects in their own proposals. After the close of the review and comment period, the Respondent publishes a revised competitive ranking of the proposals. Developers may challenge the second ranking through an administrative hearing. After the second ranking process is final, developers achieving an acceptable score receive preliminary funding commitments and proceed into a "credit underwriting" evaluation process. The credit underwriting process is governed by Florida Administrative Code Rule 67-48.0072. The Respondent selects an independent credit underwriter who reviews each proposal according to requirements set forth by administrative rule (the "Credit Underwriting Rule"). The cost of the credit underwriting review is paid by the developer. The credit underwriter considers all aspects of the proposed development, including financing sources, plans and specifications, cost analysis, zoning verification, site control, environmental reports, construction contracts, and engineering and architectural contracts. The responsibility for the market study is assigned by the credit underwriter to an independent market analyst. The credit underwriter prepares a report for each applicant invited into the process. The reports are submitted to the Respondent's nine-member, statutorily-created Board of Directors (Board). The Board approves or denies each application for financial support. The Petitioner applied for funds for the Elmwood Terrace project during the 2007 Universal Cycle. The Petitioner's application received a perfect score, maximum points, and was allocated tax credits in the amount of $1,498,680. The Petitioner thereafter entered the credit underwriting process. The credit underwriting analysis was performed by Seltzer Management Group (SMG). SMG contracted with a market analyst, Vogt, Williams & Bowen Research, Inc. (VWB), to prepare the required market study. The affordable units at Elmwood Terrace were initially intended for persons receiving incomes no more than 60 percent of the AMI. The VWB research indicated that the Elmwood Terrace project would adversely affect the existing affordable housing developments, if the Elmwood Terrace units were available to the 60 percent AMI population. The existing affordable housing developments, also serving the 60 percent AMI population, included two developments that had participated in the Respondent's "Guarantee Fund" program, addressed elsewhere herein. VWB determined that the impact of the Elmwood Terrace project on the existing developments could be ameliorated were some of the Elmwood Terrace units targeted during "lease-up" to persons at income levels of not more than 50 percent of the AMI. The lease-up period is the time required for a new development to reach anticipated occupancy levels. The issue was the subject of discussions between the Petitioner, VWB, and SMG. To resolve the anticipated negative impact on the existing affordable housing developments, the Petitioner agreed to target the 50 percent AMI population. In September 2008, the credit underwriter issued his report and recommended that the Petitioner receive the previously-allocated tax credits. On September 22, 2008, the Respondent's Board accepted the credit underwriting report and followed the recommendation. In the fall of 2008, after the Petitioner received the tax credits, the nation's economic environment deteriorated considerably. As a result, the syndicator with whom the Petitioner had been working to sell the tax credits advised that the sale would not occur. The Petitioner was unable to locate an alternate purchaser for the tax credits. The Petitioner considered altering the target population of the project in an attempt to attract a buyer for the tax credits, and there were discussions with the Respondent about the option, but there was no credible evidence presented that such an alteration would have resulted in the sale of the Petitioner's tax credits. Lacking a buyer for the tax credits, the Petitioner was unable to convert the credits to cash, and they were of little value in providing funds for the project. The Petitioner was not alone in its predicament, and many other developers who received tax credits in the 2007 and 2008 Universal Cycles found themselves unable to generate cash through the sale of their tax credits. In early 2009, Congress adopted the American Recovery and Reinvestment Act of 2009 (PL 111-5), referred to herein as ARRA, which incorporated a broad range of economic stimulus activities. Included within the ARRA was the "Tax Credit Exchange Program" that provided for the return by the appropriate state agency of a portion of the unused tax credits in exchange for a cash distribution of 85 percent of the tax credit value. The State of Florida received $578,701,964 through the Tax Credit Exchange Program. The ARRA also provided additional funds to state housing finance agencies through a "Tax Credit Assistance Program" intended to "resume funding of affordable housing projects across the nation while stimulating job creation in the hard-hat construction industry." On July 31, 2009, the Respondent issued a Request for Proposals (RFP 2009-04) to facilitate the distribution of the ARRA funds. The Respondent issued the RFP because the 2009 QAP specifically required the Respondent to allocate the relevant federal funds by means of a "competitive request for proposal or competitive application process as approved by the board." The 2009 QAP was adopted as part of the 2009 Universal Cycle rules. Projects selected for funding through the RFP would be evaluated through the routine credit underwriting process. Participation in the RFP process was limited to developers who held an "active award" of tax credits as of February 17, 2009, and who were unable to close on the sale of the credits. The RFP included restrictions against proposals for development within areas designated as "Location A." Although the location of the Elmwood Terrace project had not been within an area designated as "Location A" during the 2007 Universal Cycle process, the Respondent had subsequently designated the area as "Location A" by the time of the 2009 Universal Cycle. The RFP also established occupancy standards for projects funded under the RFP that exceeded the standards established in the Universal Cycle instructions and an evaluation process separate from the Universal Cycle requirements. Although the restrictions in the RFP would have automatically precluded the Petitioner from being awarded funds, the Petitioner submitted a response to the RFP and then filed a successful challenge to the RFP specifications (DOAH Case No. 09-4682BID). In a Recommended Order issued on November 12, 2009, the Administrative law Judge presiding over the RFP challenge determined that certain provisions of the RFP, including the automatic rejection of Location A projects, the increased occupancy standards, and the RFP evaluation criteria, were invalid. The Respondent adopted the Recommended Order by a Final Order issued on December 4, 2009, and invited the Petitioner into the credit underwriting process by a letter dated December 9, 2009. The credit underwriter assigned to analyze the Petitioner's project was SMG, the same credit underwriter that performed the original analysis of the Petitioner's project during the 2007 Universal Cycle. SMG retained Meridian Appraisal Group, Inc. (Meridian), to prepare the required market study. The Respondent was not consulted regarding the SMG decision to retain Meridian for the market analysis. The decision to retain Meridian for the market analysis was entirely that of SMG. The Respondent did not direct SMG or Meridian in any manner regarding the assessment or evaluation of any negative impact of the proposed project on existing affordable housing developments. Meridian completed the market study and forwarded it to SMG on January 26, 2010. The Meridian market analysis included a review of the relevant data as well as consideration of the actual economic conditions experienced in Lee County, Florida, including the extremely poor performance of the existing housing stock, as well as significant job losses and considerable unemployment. The Meridian market analysis determined that the Elmwood Terrace development would have a negative impact on two existing affordable housing apartment developments that were underwritten by the Respondent through a Guarantee Fund created at Section 420.5092, Florida Statutes, by the Florida Legislature in 1992. The existing Guarantee Fund properties referenced in the SMG recommendation are "Bernwood Trace" and "Westwood," both family-oriented apartment developments within five miles of the Elmwood Terrace location. The Guarantee Fund essentially obligates the Respondent to satisfy mortgage debt with the proceeds of Florida's documentary stamp taxes, if an affordable housing development is unable to generate sufficient revenue to service the debt. Because the Guarantee Fund program essentially serves to underwrite the repayment of mortgage debt for a "guaranteed" affordable housing development, the program increases the availability, and lowers the cost, of credit for developers. The Guarantee Fund program has participated in the financing of more than 100 projects, most of which closed between 1999 and 2002. Since 2005, the Respondent has not approved any additional Guarantee Fund participation in any affordable housing developments. The Respondent's total risk exposure through the Guarantee Fund is approximately 750 million dollars. Prior to October 2008, no claims were made against the Guarantee Fund. Since November 2008, there have been eight claims filed against the Guarantee Fund. Affordable housing financing includes restrictions that mandate the inclusion of a specific number of affordable housing units. Such restrictions are eliminated through foreclosure proceedings, and, accordingly, access to affordable housing units can be reduced if a development fails. Presuming that the eight claims pending against the Guarantee Fund eventually proceeded through foreclosure, as many as 2,300 residential units could be deducted from the stock of affordable housing. When there is a claim on the Guarantee Fund, the Respondent has to assume payment of the mortgage debt. The claims are paid from the Guarantee Fund capital, which is detrimental to the Respondent's risk-to-capital ratio. The risk-to-capital ratio is presently four to one. The maximum risk-to-capital ratio acceptable to rating agencies is five to one. The eight claims against the Guarantee Fund have ranged between ten and 18 million dollars each. The Respondent's bond rating has declined because of the eight claims. A continued decline in the Respondent's bond rating could result in documentary stamp tax receipts being used for payment of Guarantee Fund claims and directed away from the Respondent's programs that are intended to support the creation of affordable housing. In an effort to prevent additional claims against the Guarantee Fund, the Respondent has created the "Subordinate Mortgage Initiative" to provide assistance in the form of two- year loans to troubled Guarantee Fund properties. When preparing the 2010 market study, Meridian did not review the VWB market analysis performed as part of the 2007 application. Although the Petitioner has asserted that Meridian should have reviewed the 2007 VWB analysis, there is no evidence that Meridian's decision to conduct an independent market study without reference to the prior market review was inappropriate. On February 8, 2010, SMG issued a recommendation that the Petitioner's funding request be denied "because of the proposed development's potential financial impacts on developments in the area previously funded by Florida Housing and an anticipated negative impact to the two Guarantee Fund properties located within five miles of the proposed development." There is no evidence that the Meridian analysis was inadequate or improperly completed. There is no evidence that the SMG's reliance on the Meridian analysis was inappropriate. For purposes of this Order, the Meridian analysis and the SMG credit underwriting report have been accepted. Elmwood Terrace, a newer development with newer amenities, would compete for residents with the Bernwood Trace and Westwood developments. The financing for Bernwood Trace and Westwood was premised on projections that the affordable housing units would be leased to the 60 percent AMI population; however, the developments have been unable to maintain full occupancy levels, even though a number of units in the two properties are leased at reduced rates based on 50 percent AMI income levels. A rent reduction implemented by an existing development, whether based on economic conditions or resulting from competition, constitutes a negative impact on the development. There is no credible evidence that the occupancy rates are attributable to any difficulty in management of the two developments. It is reasonable to conclude that the leasing issues are related to economic conditions present in Lee County, Florida. In January 2010, VWB conducted an alternative market analysis. The VWB analysis was not provided to SMG or to the Respondent at any time during the credit underwriting process. Based on the 2010 VWB analysis, the Petitioner asserted that economic conditions in Lee County, Florida, have improved since the first credit underwriting report was completed in 2008 and that the improvement is expected to continue. There is no noteworthy evidence that economic conditions have improved or will significantly improve in the Lee County, Florida, market in the predictable future, and the VWB analysis is rejected. The Petitioner offered to mitigate any negative impact on the Guarantee Fund properties by committing affordable units to 50 percent AMI income levels. Given the existing economic and rental market conditions in Lee County, Florida, the evidence fails to establish that the offer would actually alleviate the negative impact on the affected Guarantee Fund developments. The 2010 VWB analysis states that there is substantial unmet demand for housing at 50 percent AMI and that there will be no impact on the Guarantee Fund units if the Elmwood Terrace units were set aside for such individuals. There is no credible evidence that there is a substantial and relevant unmet affordable housing demand in Lee County, Florida. The VWB analysis is rejected. Following the completion of each annual Universal Cycle process, the Respondent actively solicits feedback from developers and the public and then amends the Universal Cycle requirements to address the issues raised, as well as to reflect existing affordable housing needs and general concerns of the Board. The amendments are applicable for the following Universal Cycle. In 2009, the Respondent amended subsection (10) of the Credit Underwriting Rule as part of the annual revisions to the Universal Cycle process. The relevant amendment (referred to by the parties as the "Impact Rule") added this directive to the credit underwriter: The Credit Underwriter must review and determine whether there will be a negative impact to Guarantee Fund Developments within the primary market area or five miles of the proposed development, whichever is greater. The amendment was prompted by the Respondent's experience in the fall of 2008 when considering two separate applications for affordable housing financing. The potential negative impact of a proposed development on an existing Guarantee Fund property was central to the Board's consideration of one application, and the Board ultimately denied the application. In the second case, the Board granted the application, despite the potential negative impact on a competing development that was not underwritten by the Guarantee Fund. The intent of the language was to advise developers that the existence of Guarantee Fund properties within the competitive market area would be part of the credit underwriting evaluation and the Board's consideration. Notwithstanding the language added to the rule, the credit underwriter is charged with reviewing the need for additional affordable housing. Even in absence of the added language, consideration of any negative impact to competing developments based on inadequate need for additional affordable housing would be appropriate. In rendering the 2010 credit underwriting report on Elmwood Terrace, the credit underwriter complied with the directive. Prior to determining that the Petitioner's funding application should be denied, the Respondent's Board was clearly aware of the Petitioner's application, the credit underwriting report and market analysis, and the economic conditions in Lee County, Florida. There is no credible evidence of any need for additional affordable housing in Lee County, Florida. There is no credible evidence that the Lee County, Florida, market can sustain the addition of the units proposed by the Petitioner without adversely affecting the financial feasibility of the existing Guarantee Fund developments. The Board was aware that the Elmwood Terrace development could attract residents from the nearby Guarantee Fund properties and that local economic conditions threatened the financial viability of the properties. Given current economic conditions, approval of the application at issue in this proceeding would reasonably be expected to result in a negative impact to existing affordable housing developments. The protection of Guarantee Fund developments is necessary to safeguard the resources used to support the creation and availability of affordable housing in the state.
Findings Of Fact Based upon the evidence adduced at hearing, the following findings are made: The position of Executive Director of the Sanford Housing Authority became available on July 31, 1981, upon the resignation of Lewis B. Cox, a white male who had held the position for approximately eighteen months. His letter of resignation was dated July 13, 1981. By her letter dated July 27, 1981, addressed to Joseph Caldwell, Chairman, Petitioner informed the Respondent of her application for the vacancy. At the time she had been employed by Respondent for approximately nine and a half years as Social Services Director and as Director of Management. Lewis Cox's letter of resignation included his recommendation that Petitioner be promoted as his successor. (Petitioner's Exhibit #1) Petitioner is a black female. Respondent is a public agency responsible for various housing and community development programs, including rentals to low and moderate income individuals. It receives government subsidies, primarily from the United States Department of Housing and Urban Development, and is also supported by rental income. Its governing body is a five-member board of commissioners which during the relevant period consisted of the following: Joseph Caldwell, Chairman (Black, Male) Eliza Pringle, Vice-Chairperson (Black, female) Mary Whitney, Commissioner (Black, female) J. Wain Cummings, Commissioner (White, male) Leroy Johnson, Commissioner (Black, male). On August 13, 1981, at the meeting following Lewis Cox's resignation as Acting Executive Director, the Board appointed Petitioner as Acting Director. No one was appointed to fill her position of Director of Management and she continued to serve in both capacities until the regular Executive Director was finally appointed. This process took approximately fourteen months, from July 31, 1981, until September 29, 1982. As Acting Director, the Petitioner advertised the vacancy by placing notices in the local paper and in professional newsletters. Over one hundred applications or resumes were received. At the suggestion of the Board attorney, the commissioners were each provided copies of all resumes and each selected his or her five top candidates. This was later narrowed to a list of six candidates to be interviewed. Petitioner was the only female candidate on the list. On January 7, 1982, the Board met to appoint an Executive Director. Two separate votes were taken at the meeting and both yielded the same result: Petitioner received two votes and three other candidates received one vote each; none received a majority. On January 16, 1982, the Board met and voted again. Again, the votes were taken twice, with the same result: Petitioner received two votes, Thomas Wilson III received two votes and Willie King, Sr. received one vote. Willie King was designated "second choice" by three commissioners. On January 29, 1982, the Board voted to appoint Willie King, Sr. as Executive Director. While he was not the first choice of any commissioner, he received four votes as second choice. None of the first choice candidates received a majority. (Petitioner's Exhibits #3 - 7, Minutes of Meetings of the Housing Authority of the City of Sanford) Willie King, Sr. declined the appointment. Thus, the process continued with interviews, discussions, and failure to reach a decision, until September 29, 1982, when the Board met, interviewed Elliott Smith, Coordinator of the C.E.T.A Youth Employment Program, and voted again. He was appointed Executive Director after receiving a three-vote majority. At the same meeting Petitioner was commended for her service and for having saved the Housing Authority money by filling two positions. She was then informed that she would resume her position as Director of Management. (Petitioner's Exhibit #10, Minutes of meeting) At the time of final hearing, she was still in that position. Petitioner's lengthy service with the Housing Authority gave her experience in virtually every aspect of the agency's housing programs. The grant programs were primarily handled by the Executive Director. Elliott L. Smith, at the time of his appointment as Executive Director, had no experience in housing programs. He did, however, have approximately seven years experience as coordinator of the Comprehensive Employment and Training Program (C.E.T.A.) for the Seminole County School Board in Sanford, Florida. This is a federal grant program. He also had administrative experience as a supervisor in a mill. (Respondent's Exhibit #1) The advertisements for the position did not require housing program experience, but rather emphasized the need for management experience and familiarity with federal, state, and local programs, and government regulations. (Petitioner's Exhibits #13 and #14). It must be noted that Petitioner's Exhibit #13, an invoice and the text of classified ad in the Evening Herald, was received into evidence without objection. However, the date on the invoice is January 9, 1980, and apparently relates to a prior recruiting effort rather than the 1981 vacancy. It is presumed that since it, like Petitioner's Exhibit #14, was submitted as an example of the recruitment ads, the requirements for the position did not substantially change. Both candidates, Petitioner and Mr. Smith, met the minimum requirements for the position. The Housing Authority has a personnel policy which is recommended by the Executive Director and adopted by the Board. The policy in effect during the relevant period provided very general guidance to the Board in making its appointment: one sentence on the merit system, a nondiscrimination clause and the statement that, "Vacated or newly established positions shall be filled to the fullest extent consistent with efficient operations, by the promotion of qualified, employees." (Petitioner's Exhibit #11). The commissioners, most of whom were newly appointed, had their individual notions of what qualifications the Executive Director should have. No specific objective criteria were developed to assist them in the selection process beyond the policy referred above and the minimum requirements in the vacancy notices. The common, overall goal of the Board, however, was to restore respectability to the Housing Authority. The Sanford black community was split into factions and this impacted the Board which consisted of a majority of black commissioners. The majority of tenants were also black. Relations between the tenants and staff were strained and a negative audit from the U.S. Department of HUD (U. S. Department of Housing and Urban Development) had just been received. Staff morale was low. A previous Executive Director, Thomas Wilson, III who served from 1972 until 1980, was fired by the Board amid rumors of financial mismanagement of the block grant program. This was the same Thomas Wilson who was considered a serious contender for the position when his successor, Lewis Cox, resigned. (See paragraph 4, above). During the recruitment and hiring process, the commissioners received intense pressure from the various factions in the community supporting various candidates or urging certain qualifications. Amid the procedural and political chaos surrounding the hiring, several notable rumors or controversies emerged. One such rumor was that Commissioner Cummings had made a statement to the effect that Petitioner had done a good job, but that it was a job for a man and he could not vote for her. He denies that statement and any prejudice against the Petitioner on account of her sex or race. He alleges that he voted against her because she was so closely connected to Thomas Wilson, having worked directly under him during his controversial tenure as Executive Director. Commissioner Whitney also denied in her testimony at the hearing that she heard the statement from Mr. Cummings. This testimony conflicts with her signed statement dated February 1, 1982, received into evidence, over objection, as Petitioner's Exhibit #16. On cross- examination, she denied having drafted the statement and could not remember who brought it to her to be signed. The statement is not a sworn statement. Commissioner Whitney consistently voted for hiring the Petitioner. Commissioner Eliza Pringle did not hear the alleged statement by Commissioner Cummings either, but she generated a controversy on her own. At some point during review of the applications, she commented that photographs would be nice since they would reveal whether the applicant was male or female. She explained that the comment was a flippant remark on some of the names of the applicants. She denied any sexist animus. She stated that the Petitioner is related to her through some distant cousins who, in turn, are related to the McCoys, a prominent black family connected to one of the black Sanford factions. One of the McCoys held two terms on the Housing Authority Board. Commissioner Pringle did not wish to fuel the factionalism by hiring a relative. She supported Elliot Smith because, as a former school teacher, she was familiar with his C.E.T.A work in the schools, and felt he could make a contribution to the community. Commissioner Leroy Johnson voted for Thomas Wilson to be hired back to his former position. He thought Wilson needed another chance and had the best experience. Later, when Elliot Smith was interviewed, he supported Smith because of his skills in working with people and in writing federal grants. Elliott Smith was a contender late in the hiring process because his C.E.T.A. position was eliminated. No woman has ever been Executive Director of the Sanford Housing Authority. Petitioner conceded, however, that even if Lewis Cox had been a woman he would have been hired because of his strong financial background. Willie King, the candidate who was offered the appointment, but declined, also had a background in financial affairs. As protracted as the process was, a common bond of frustration joined all the commissioners in their search for an Executive Director. Like a deus ex machina, Elliott Smith appeared on the scene at the eleventh hour, fourteen months after the vacancy was created, and obtained the three votes necessary for a majority. By those who voted for him, he was viewed as having the necessary skills without the close ties to the Housing Authority which appeared to taint the other leading candidates.
Recommendation Based upon the foregoing, it is recommended that the Human Relations Commission enter a final order finding that Respondent did not discriminate against Petitioner and denying Petitioner's claim for relief. DONE and ORDERED this 20th day of January, 1986, in Tallahassee, Florida. MARY CLARK, Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 20th day of January, 1986. APPENDIX TO FINAL ORDER IN CASE NO. 84-2640 The following constitutes my specific rulings pursuant to Section 120.59(2), Florida Statutes, on all of the Proposed Findings of Fact submitted by the parties to this case. Rulings on Proposed Findings of Fact Submitted by the Petitioner Adopted in substance in paragraphs 1 and 3. Adopted in paragraph 1. Adopted in paragraph 1. The statement that all prior Executive Directors had been males is adopted in paragraph 13. Adopted in paragraph 3. Adopted in paragraph 5. Rejected as being contrary to the evidence. Adopted in paragraph 1 and 4. Adopted in substance in paragraphs 6 and 7. Adopted in paragraph 4. Adopted in paragraphs 4 and 5. Adopted in substance in paragraph 3. Adopted in substance in paragraph 5. Rejected as contrary to the evidence. Adopted in part in paragraph 9. The first sentence regarding the absence of any objective standards is too broad to be consistent with the evidence. Rejected as being unsupported by competent substantial evidence. See paragraph 8 and 9. Adopted in paragraph 8. Rejected as being unnecessary. Rulings on Proposed Findings of Fact Submitted by the Respondent Rejected as unnecessary and immaterial. Adopted in paragraphs 1 and 3. Adopted in paragraph 1. Adopted in paragraph 3. Adopted in paragraph 5, except that Smith was appointed on September 29, 1982, rather than September 19th. Adopted in substance in paragraph 9 and 13. Adopted in substance in paragraph 13. Rejected as unnecessary. Adopted in paragraph 11, except the final sentence, which is unnecessary. Adopted in substance in paragraph 4. Adopted in paragraph 13. Rejected as cumulative and unnecessary. Rejected as contrary to the weight of the evidence, although it is accepted that black politics is one factor in the decision-making function of the board. See paragraph 9. Adopted in paragraph 10. Adopted in substance in paragraph 10. Adopted in part in paragraph 11. The last sentence is rejected as being inconsistent with the weight of the evidence. Adopted in substance in paragraph 12. Adopted in substance in conclusions of law, paragraph 8. COPIES FURNISHED: Dana Baird, Esquire Florida Commission on Human Relations 325 John Knox Road Building F, Suite 240 Tallahassee, Florida 32303 Betsy Howard, Clerk Human Relations Commission 325 John Knox Road Building F, Suite 240 Tallahassee, Florida 32303 Donald A. Griffin Executive Director 325 John Knox Road Building F, Suite 240 Tallahassee, Florida 32303 Harry L. Lamb, Esquire 621 N. Fern Creek Avenue Orlando, Florida 32803 Ned N. Julian, Esquire Post Office Box 1330 Sanford, Florida 32771
The Issue Whether Respondents, Donna and Randy Morrison, managers of Hillside Mobile Home Park, discriminated against Petitioners, Linda Parah and Andrew Loveland, Sr., by failing to make reasonable accommodation for Petitioners' service animal necessary to afford equal opportunity to use and enjoy the rental premises in violation of the Fair Housing Act, Sections through 760.37, Florida Statutes (2004).1
Findings Of Fact Based upon observation of the witnesses' demeanor and manner while testifying, character of the testimony, internal consistency, and recall ability; documentary materials received in evidence; stipulations by the parties; and evidentiary rulings during the proceedings, the following relevant and material facts are found: On June 24, 2004, Andrew Loveland, Sr., made application for tenancy at Hillside Mobile Home Park, Inc. (Hillside), 39515 Bamboo Lane, Zephyrhills, Florida 33542, when he completed and signed Respondents' "Application for Tenancy" form. The prospective tenants listed were Andrew Loveland, Sr., and Linda Parah. Ms. Parah did not sign the application. As of June 24, 2005, Petitioners listed their then-current address as 5824 23rd Street, Lot 1, Zephyrhills, Florida 33542. The application for tenancy form listed Ms. Parah as one of the persons to reside in the rental dwelling and, as such, was a "person associated with the intended renter," Mr. Loveland. The tenancy application signed by Mr. Loveland contained the following acknowledgement: [U]nder penalty of perjury, I declare that I have read the foregoing and the facts alleged are true to the best of my knowledge and belief. I hereby acknowledge that I have received a copy of the Prospectus and Rules and Regulations of Hillside Mobile Home Park, Inc. Mr. Loveland, though present at the proceeding, chose not to challenge his written acknowledgment of receiving a copy of the Prospectus and the Rules and Regulations of Hillside, and the undersigned accordingly finds that Mr. Loveland received a copy of the Prospectus and the Rules and Regulations of Hillside on June 24, 2004, and was fully informed of his duties and obligations as a tenant of Hillside therein contained. On June 24, 2004, neither Mr. Loveland nor Ms. Parah informed or advised management of any medical disability(s) suffered, requiring companionship (living in the trailer) of a dog (comfort or service). Petitioners did not, at that time, request Respondents to make any reasonable accommodations for any mental and/or physical disability(s) that required the presence of their service dog in the rented premises. No copy of management's park prospectus or rules was offered in evidence, and, accordingly, a finding of receipt thereof is made, but no findings herein are based on the specific content therein. On or after June 24, 2004, Petitioners and their dog occupied the leased premises 6528 Pecan Drive, Hillside Mobile Home Park, Zephyrhills, Florida 33542. The credible evidence of record convincingly demonstrated management had knowledge that Petitioners and several other park tenants owned dogs. Tenants, often times together, walked their dogs about the trailer park in sight of management and other residents. Based upon the above, it is concluded that management was or should have been aware that other tenants, including Petitioners, had dogs in the trailer park. On October 21, 2004, management, by and through its attorney, by certified mail, made demand upon Petitioners to cure noncompliance within seven days (October 28, 2004) or vacate premises for noncompliance with the park prospectus or rules, to wit: You have been driving your golf cart behind and between mobiles. Residents must govern themselves in a manner that does not unreasonably disturb or annoy other residents. We have had several complaints regarding this issue. Please drive and walk on the streets only. (Emphasis added) Ms. Parah acknowledged the golf car incident, explaining that Mr. Loveland occasionally drove his golf cart through the trailer park and not always on the walkways during the evening hours. She insisted, however, that after receipt of the October 21, 2004, notice to cease from management, Mr. Loveland discontinued driving his golf cart behind and between mobile homes during the evenings and nights and, during the day, restricted his cart driving to only the park roadways. By letter dated November 5, 2004, to Mr. Loveland, Respondents issued a "Notice of Termination of Tenancy," for failure to correct the (October 21, 2004, notice of violation-- driving golf cart) within seven days. Accordingly, his tenancy was to be terminated 35 days from the postmarked date of delivery of the notice. On November 11, 2004, S. D. Hostetler, a tenant whom management did not call to testify, allegedly filed the following hand-written complaint letter to management: On 11-3-04 at around 3 am I was awaken by a loud sound. I got up to see what it was and it was an older red golf cart going through the camping section, it must not have a muffler on it, that morning I did complain to the management about some one going around the Park that early in the morning with such a noisey [sic] scooter. I later found out it was Andrew Loveland. The above-written document was not notarized; the author was not made available and subject to cross-examination. This document therefore is unsupported hearsay and insufficient to support and establish the factual content therein to wit: "[O]n 11-3-04 around 3 a.m., Mr. Loveland was driving his golf cart through the camping section and, thus, failed to correct the October 21, 2004, notice of violation--driving golf cart, within 7 days." This complaint did, however, establish the fact that management received a complaint about Mr. Loveland from another tenant after having given him notice to cease and desist. On November 18, 2004, two weeks after the golf cart notice of noncompliance termination, Respondents, by certified mail delivered on November 22, 2004, made demand upon Petitioners to cure noncompliance within seven days or vacate premises for a second noncompliance with the park prospectus or rules, to wit: "(A) You have a dog and dogs are not allowed in the park." The November 22, 2004, copy of the notice to cure noncompliance was received by Mr. Loveland as evidenced by a copy of a U.S. Certified Mail delivery receipt signed by Mr. Loveland. In the December 13, 2004, letter from Attorney Schlichte addressed to Andrew Loveland (only), Re: Notice of Termination of Tenancy (reference November 18, 2004, 1st Notice of Rule Violation; i.e. you have a dog and dogs not allowed), Petitioners were given 30 days to vacate the premises. It is significant and noted that as of December 13, 2004, Ms. Parah had not made a demand or request upon management for "reasonable accommodations for her service animal necessary to afford the Petitioner an equal opportunity to use and enjoy the rental premises," as alleged in the administrative complaint. Ultimate Factual Determinations On February 28, 2005, 76 days after receipt of management's December 13, 2004, first Notice of Rule Violation (no dog allowed) and filing of Eviction Compliant in Pasco County Court,2 Petitioners made their first written request to management for reasonable accommodation under the American Disabilities Act as follows: Dear Sir: I am requesting reasonable accommodation under the American with Disability Act to have rules and regulations of the Park (Hillside) sent to me. On my pet. I have documentation from my physician Joseph Nystrom, M.D. on my service, my comfort dog. And this can be furnished upon request! Rules and Regulations were not clear to fact that Mr. Andrew Loveland, Sr. never had them unless you can show pictures on the grass 10/21/2004. I feel that your violating Mr. Loveland and my civil right under fair housing rules. [sic] Please acknowledge our reasonable accommodation as stated above by Tuesday of next week 3/8/2005. Accordingly, Linda Alan Parah Andrew Alton Loveland, Sr. cc: C.J. Miles Deputy Dir. Fair Housing Continu [sic], Inc., 1-888-264-5619. Having provided a copy of the Prospectus and the Rules and Regulations of Hillside on June 24, 2004, to Mr. Loveland, management's refusal to provide a second copy was a reasonable nondiscriminatory business decision. The offer to provide "documentation from my physician Joseph Nystrom, M.D. on my service, my comfort dog," imposed no obligation upon management to accept such offer. Within the totality of circumstances then present, ignoring Petitioners' offer to provide medical and/or willingness statements regarding their medical, physical, and mental disabilities, requiring the presence of a service/comfort dog by Respondents, is not found to have been discriminatory. On or about May 19, 2005, Pasco County Court entered Final Judgment of Eviction against Andrew Loveland and Unknown Tenant (i.e. Linda Parah). The Pasco County Sheriff's Office, pursuant to Final Judgment of Eviction for Removal of Tenant entered by the Pasco County Court, evicted Petitioners from Respondents' rented premises of Hillside, 39515 Bamboo Lane, Zephyrhills, Florida 33542. Petitioners submitted an abundance of credible evidence relating to their physical and mental health conditions. As to Mr. Loveland, Dr. Nystrom's written and signed notation concluded that Mr. Loveland's condition required: "Motorized wheelchair multi-level spinal stenosis- medically necessary and due to his illness, the presence of his little Dog is medically necessary." The document contained hearsay evidence to which counsel for Respondents did not raise an objection and is, thus, accepted by the undersigned. This document was dated after the date Mr. Loveland received his second notice regarding failure to correct and the filing of the complaint for eviction. As to Ms. Parah, Tracey E. Smithey, M.D., East Pasco Medical Group, reported her medical conclusion stating in part that: "Linda Parah, was seen in my office on 11-20-03, 01-19-04 and today (April 8, 2004). She had been diagnosed with Bipolar Disorder, Depressed type. She is prescribed Paxi, Xanax, and Ambien. She has been referred for psychotherapy also." Dr. Smithey did not include in her written document that Ms. Parah had to have a dog for her condition. Dr. Smithey, as had Dr. Nystrom, signed the document. The document contained hearsay evidence to which counsel for Respondents did not raise an objection and is, thus, accepted by the undersigned. Had Petitioners made their request for reasonable accommodations and presented their medical reports, evidencing their medical conditions and limitations, to include the need of Mr. Loveland for his comfort dog, to Respondents on or before June 24, 2004, or even as late as on or about November 18, 2004, Petitioners would have, arguably, established the requisite basis for finding of a request for reasonable accommodation. There is, however, insufficient evidence of record to support a finding that Petitioners, Mr. Loveland nor Ms. Parah, made a reasonable accommodation request to Respondents for the housing of the comfort dog for Mr. Loveland. The sequence of dated events and documented evidence is an inference that after receiving the notice to vacate for the two alleged rule violation(s), Petitioners did not make a request for reasonable accommodation to management for Mr. Loveland's dog, but rather offered to provide medical support of Mr. Loveland's need for a comfort dog should Respondents request such proof. Respondents were under no duty or obligation to do so and did not make such a request.3 Petitioners failed to establish that either Mr. Loveland or Ms. Parah: (1) made a request for reasonable accommodation based upon the demonstrated disability of Mr. Loveland; (2) the animal in question was a medically required service (comfort dog) animal for Mr. Loveland; (3) the requested accommodation was necessary to permit full enjoyment by Mr. Loveland of the rental premises; and (4) thereafter, management denied their reasonable accommodation request for Mr. Loveland. In short, and based upon the findings of fact herein, Respondent did not unlawfully discriminate against Petitioners; rather, management terminated Petitioners' tenancy for legitimate, nondiscriminatory reasons, to wit: off-road driving of a golf cart and unapproved dog within the rental unit in violation of park rules and regulations after written notice to correct the noted violations. Management's Counsel's Motion for Attorney's Fees and Costs There is not a scintilla of evidence to substantiate a finding that Petitioner, Mr. Loveland, who did not testify, knew or should have known that his claim and defense presented during this proceeding was not supported by material facts. Likewise, Respondent made no query of Ms. Parah (referred to in the eviction complaint as "unnamed tenant") that elicited statements or acknowledgements from which reasonable inference could be drawn to demonstrate that within the situational circumstances Ms. Parah knew or should have known the claim herein made was not supported by material facts.4
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that the Commission enter a final order: Dismissing Petitioners', Linda Parah and Andrew Loveland's, Petition for Relief; and Denying Respondents' counsel's motion for an award of attorney's fees and costs. DONE AND ENTERED this 16th day of March, 2006, in Tallahassee, Leon County, Florida. S FRED L. BUCKINE 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 16th day of March, 2006.
The Issue Whether the Respondent, Department of Children and Families (DCF), may impose a moratorium for new residents at The Haven Center, Inc., for those who are enrolled in the Developmental Services Home and Community-Based Services Waiver Program (DS Waiver).
Findings Of Fact The Respondent is the state agency charged with the responsibility of regulating residential facilities that provide DS waiver services. Sunrise Opportunities, Inc., Sunrise Communities, Inc., and The Haven Center, Inc., are members of the Sunrise group of providers that serve individuals with developmental disabilities. Sunrise Opportunities, Inc., is a charitable, tax-exempt entity that provides residential and day treatment services to individuals under the DS Waiver program. The Haven Center, Inc., owns seven homes located on 23+/- acres in Miami-Dade County, Florida. The homes located at The Haven Center, Inc., are operated by Sunrise Opportunities, Inc. Such homes have been monitored and reviewed by the DCF on numerous occasions. The reviews or inspections have never revealed a significant deficiency. Moreover, historically the DCF has determined that residents at The Haven Center, Inc., have received a high quality of care. For some unknown time the parties were aware of a need to move individuals residing at The Haven Center into community homes in the greater South Miami-Dade County area. Concurrently, it was planned that individuals in substandard housing would then be moved into The Haven Center. This "transition plan" as it is called in the record would be accomplished as improvements were completed to the Sunrise properties. That the parties anticipated the transition plan would be implemented as stated is undisputed. Because it believed the transition plan had been agreed upon and would be followed, Sunrise Opportunities, Inc., incurred a considerable debt and expended significant expenses to purchase and improve homes in the South Miami-Dade County area. Additionally, DS Waiver participants were moved from The Haven Center to the six-person homes in South Miami-Dade County. In fact, over fifty percent of The Haven Center residents have made the move. In contrast with the transition plan, only 12 individuals were allowed to move into The Haven Center. Instead, DCF notified the Petitioners of a moratorium prohibiting the placement of DS Waiver residents into The Haven Center. This moratorium, represented to be "temporary," is on-going and was unabated through the time of hearing. The moratorium prompted the instant administrative action. Upon notice of DCF's intention to impose a moratorium on The Haven Center, the Petitioners timely challenged such agency action. DCF based the moratorium upon an Order Approving Settlement Agreement entered in the case of Prado-Steiman v. Bush, Case No. 98-6496-CIV-FERGUSON, by United States District Judge Wilkie D. Ferguson, Jr. on August 8, 2001. The Petitioners had objected to the approval of the Settlement Agreement in Prado-Steiman but the court overruled the objectors finding they, as providers of services to the DS Waiver residents, did not have standing in the litigation. The Prado-Steiman case was initiated by a group of disabled individuals on behalf of the class of similarly situated persons who claimed the State of Florida had failed to meet its responsibility to such individuals under Federal law. Without detailing the case in its totality, it is sufficient for purposes of this case to find that the Prado-Steiman Settlement Agreement imposed specific criteria on the State of Florida which were to be met according to the prospective plan approved and adopted by the court. At the time the Prado-Steiman case was filed, The Haven Center was licensed as a residential habilitation center. After the Settlement Agreement was executed by the parties in Prado-Steiman, but before the court entered its Order Approving Settlement Agreement, the licensure status of The Haven Center changed. Effective June 1, 2001, The Haven Center became licensed as seven group homes together with a habilitation center. Pertinent to this case are specific provisions of the Prado-Steiman Settlement Agreement (Agreement). These provisions are set forth below. First, regarding group home placements, the Agreement provides that: The parties agree that they prefer that individuals who are enrolled in the Waiver [DS Waiver] live and receive services in smaller facilities. Consistent with this preference, the parties agree to the following: The Department [DCF] will target choice counseling to those individuals, [sic] enrolled on the Waiver who presently reside in residential habilitation centers (where more than 15 persons reside and receive services). The focus of this choice counseling will be to provide information about alternative residential placement options. The Department will begin this targeted choice counseling by December 1, 2000, and will substantially complete the choice counseling by December 1, 2001. * * * 4. The Department and the Agency [Agency for Health Care Administration] agree that, in the residential habilitation centers, if a vacancy occurs on or after the date this agreement is approved by the Court, the Department will not fill that vacancy with an individual enrolled on the Waiver. (Emphasis added) None of the individually licensed group homes at The Haven Center is authorized to house more than 15 persons. All of the group home licenses at The Haven Center were approved before the Prado-Steiman Court approved the Agreement. The Agreement also provides that the parties: . . . have agreed that the Court may retain jurisdiction of this litigation until December 31, 2001, at which time this case will be dismissed with prejudice. The Plaintiffs may seek to continue the jurisdiction of the Court and to pursue any of the relief requested in this lawsuit only if they can show material breach as evidenced by systemic deficiencies in the Defendants' implementation of the Plan of Compliance. In any motion to continue the jurisdiction of the Court, Plaintiffs must demonstrate that alleged breaches and any proposed cure were fully disclosed to the state defendants consistent with the "Notice and Cure" provisions set forth below in paragraphs 7-10 below, that the action requested by the plaintiffs is required by existing law, and the State Defendants have refused to take action required by law. Such relief may not be sought after the scheduled dismissal of the litigation. Absent the allegation of material breach in a pending motion, the Court will dismiss this lawsuit with prejudice on December 31, 2001. (Emphasis added) Also pertinent to this case, the Agreement provides: 19. The parties' breach, or alleged breach, of this Agreement (or of the terms contained herein) will not be used by any party as a basis for any further litigation. "Systemic problems or deficiencies" is defined by the Agreement to mean: problems or deficiencies which are common in the administration of the Waiver, inconsistent with the terms of this Stipulated Agreement, and in violation of federal law. Isolated instances of deficiencies or violations of federal law, without evidence of more pervasive conduct, are not "systemic" in nature. State otherwise, a problem or deficiency is systemic if it requires restructuring of the Florida Developmental Services Home and Community-Based Services Waiver program itself in order to comply with the provisions of federal law regarding the Waiver; but that it is not "systemic" if it only involves a substantive claim having to do with limited components of the program, and if the administrative process is capable of correcting the problem. After the Agreement was adopted the Respondent advised Petitioners to continue with the transition plan. On or about September 1, 2001, the Petitioners and the Respondent entered into contracts for the group homes operated at The Haven Center. Each home is properly licensed, has honored its contracts to provide services to disabled individuals, and has complied with state licensure laws. A licensed Residential Habilitation Center may not have a licensed capacity of less than nine. Advocacy issued a letter dated March 8, 2002, that alleged systemic problems constituting material breaches of the Agreement. Among the cited alleged deficiencies is the failure of the state to ensure . . . that locally-licensed providers receiving waiver funds for providing group- home services in fact are providing services in that setting rather than in institutional settings. Examples include: a) A former residential habilitation center known as Haven is now licensed as a group home in District 11 (Miami/Dade) and receives HCBS waiver funds. There is no evidence that The Haven Center is providing services in any setting other than as licensed by the Respondent. That is, there is no evidence it is not operating as individually licensed group homes. Further, Advocacy had actual knowledge of the instant administrative action. In short, it did not attempt to participate in the Petitioners' challenge to the moratorium. DCF has imposed a moratorium on no other licensed group home in the State of Florida. The group homes at The Haven Center are the sole targets for this administrative decision.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Respondent, Department of Children and Family Services, enter a Final Order lifting the moratorium on placements of DS Waiver participants at The Haven Center's group homes. DONE AND ENTERED this 3rd day of June, 2002, in Tallahassee, Leon County, Florida. J. D. PARRISH 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 June, 2002. COPIES FURNISHED: Paul Flounlacker, Agency Clerk Department of Children and Family Services 1317 Winewood Boulevard Building 2, Room 204B Tallahassee, Florida 32399-0700 Josie Tomayo, General Counsel Department of Children and Family Sevices 1317 Winewood Boulevard Building 2, Room 204 Tallahassee, Florida 32399-0700 Veronica E. Donnelly, Esquire Office of the Attorney General The Capitol, Plaza Level 01 Tallahassee, Florida 32399-1050 Steven M. Weinger, Esquire Kurzban, Kurzban, Weinger & Tetzeli, P.A. 2650 Southwest 27th Avenue, Second Floor Miami, Florida 33133
The Issue Whether Respondents Alfred Homes and Felicia Homes Foster1 subjected Petitioner Nidia Cruz to discriminatory housing practices based on Ms. Cruz’s national origin, in violation of the Florida Fair Housing Act, chapter 760, part II, Florida Statutes (FHA).
Findings Of Fact Ms. Cruz, who is Hispanic in national origin, rented and occupied a mobile home at lot #9 in Pine Grove Trailer Park (Pine Grove), in an unincorporated area adjacent to Fernandina Beach, Florida. Respondent Alfred Homes owns Pine Grove. His daughter, Respondent Felicia Homes Foster, oversees the business operations of Pine Grove. Ms. Foster lives in a mobile home at Pine Grove, and owns two other mobile homes that are rental units. Ms. Cruz rented one of these mobile homes from Ms. Foster. The remaining mobile homes in Pine Grove are owner-occupied, with those owners renting their lots from Respondents. Neither party could produce a lease between Respondents and Petitioner concerning the mobile home. Based on the parties’ testimony and other evidence presented at the final hearing, the undersigned finds that Petitioner’s tenancy for the mobile home commenced on or about October 15, 2016, for an approximately one-year term ending November 30, 2017. Respondents charged a $500 security deposit, and $600 per month for rent, which included water and sanitary sewer that Pine Grove’s well and septic system provided. Ms. Cruz was responsible for electrical services to the mobile home. After the expiration of the lease on November 30, 2017, the parties did not renew the lease, and Ms. Cruz continued to occupy the mobile home under a month-to-month agreement, until she vacated the mobile home on or about September 29, 2018. Ms. Cruz sought out Respondents to rent a mobile home, as her previous landlord had terminated the lease for her previous residence because of her unauthorized possession of pets. Ms. Foster informed Ms. Cruz that she had an available mobile home to rent, but as the previous tenants had just moved out, she needed to make repairs to the mobile home before it could be occupied. Ms. Cruz requested to move in immediately while the Respondents repaired the mobile home, because she and her daughter were, at that point, homeless. Respondents employed Michael Hamilton to repair and provide maintenance work to the mobile homes in Pine Grove. Mr. Hamilton worked for Respondents on weekends, as he had a full-time job during the week. Within approximately one month of Ms. Cruz moving into her mobile home, Mr. Hamilton made the needed repairs to its interior, including replacing the refrigerator, carpet, commode, and door locks. After moving into the mobile home, Ms. Cruz was involved in an incident at a nearby McDonald’s restaurant with an employee. That employee, Theresa McKenzie, was a tenant of Pine Grove and resided in lot #10, which was adjacent to Ms. Cruz’s mobile home. Ms. Cruz and her daughter, Ms. Burgos, complained to Ms. Foster that Ms. McKenzie and her co-tenant Earnest Roberts made loud, harassing, and defamatory statements about Ms. Cruz and her national origin. Respondents, individually, warned Ms. McKenzie and Mr. Roberts to refrain from calling Ms. Cruz and Ms. Burgos names. The feud between Ms. Cruz and Ms. McKenzie was interrupted when Ms. Cruz was arrested on November 18, 2016. Ms. Cruz was charged with, among other offenses, aggravated stalking arising from a violation of an order of protection and filing a false police report. The victim of these offenses was a previous landlord from whom Ms. Cruz had rented a room. While in pretrial detention, a psychologist evaluated Ms. Cruz, and determined her to be incompetent to proceed in the criminal proceeding. The trial court subsequently committed Ms. Cruz to a mental health facility, and she pled guilty to filing a false police report. The trial court sentenced Ms. Cruz to a split sentence of two years with special conditions, which included enrollment into the mental health court program. After acceptance into the mental health court program, Ms. Cruz was released from the Nassau County Jail. On February 13, 2017, Ms. Foster hand delivered a letter to Ms. McKenzie and Mr. Roberts, which warned them that if they did not refrain from verbal attacks against Ms. Cruz, Respondents would evict them from Pine Grove and obtain a no trespassing order. Chris Cummings, who was a Pine Grove resident at lot #4, testified he was aware of the incident at McDonald’s involving Ms. Cruz and Ms. McKenzie, as his wife also worked at that McDonald’s. Mr. Cummings observed, but could not hear, Ms. Cruz and Ms. McKenzie “squaring off” against each other. Mr. Cummings recounted that he observed Ms. Cruz lift her skirt and bend over, in a manner that he interpreted to mean that Ms. McKenize could kiss her rear end. In August 2017, Hurricane Irma caused a large branch from a pine tree to fall on top of Ms. Cruz’s mobile home, puncturing the exterior metal skin of the mobile home’s roof, which allowed water to intrude into the interior of the mobile home. The water intrusion caused significant damage to the ceilings, walls, and floor coverings of the mobile home. It is undisputed that Hurricane Irma inflicted serious damage to the mobile home, and that Ms. Cruz resorted to using buckets to catch water leaking from the roof. Shortly after Hurricane Irma passed, Mr. Hamilton placed a tarp over the top of the mobile home to stop the water intrusion. He then began repairs to Ms. Cruz’s mobile home over the course of several weekends, which included removing and replacing damaged sheet rock, patching the metal roof, and installing new carpet and linoleum flooring. Mr. Hamilton testified that Ms. Cruz, on several occasions, frustrated his ability to complete these repairs by denying him entry into the mobile home. Ms. Cruz presented evidence that her mobile home required extensive repairs upon moving in, and that it sustained severe damage from Hurricane Irma. However, she presented no credible evidence to rebut the testimony that Mr. Hamilton, on behalf of Respondents, completed all necessary repairs. Additionally, Ms. Cruz presented no credible evidence that Respondents treated her differently than other Pine Grove tenants in responding to and completing any necessary repairs to other tenant’s mobile homes. Neither the passage of time, incarceration, nor the trauma of Hurricane Irma, ended the feud between Ms. Cruz and Ms. McKenzie. The Nassau County Sheriff’s Office had regular call-outs to Pine Grove regarding Ms. Cruz and Ms. McKenzie. The feud escalated when, on January 4, 2018, Ms. McKenzie filed a petition for an injunction for protection against Ms. Cruz, and the circuit court entered a temporary injunction that same day. The next day, January 5, 2018, Ms. Cruz and Ms. Burgos each filed petitions for an injunction for protection against Ms. McKenzie. Then, on January 16, 2018, Ms. Cruz sought a petition for an injunction for protection against Mr. Roberts, which the circuit court granted, as a temporary injunction, that same day. On January 17, 2018, the circuit court held a hearing on the petition against Ms. Cruz and Ms. Burgos’s petition against Ms. McKenzie, and on January 18, 2018, granted a final injunction in each case. On January 18, 2018, Ms. Burgos filed a petition for an injunction for protection against Mr. Roberts, which the circuit court denied. On January 24, 2018, the circuit court heard Ms. Cruz’s petitions against Ms. McKenzie and Mr. Roberts; the circuit court denied the injunction against Ms. McKenzie, but granted a final injunction against Mr. Roberts. On January 29 and February 9, 2018, the circuit court entered orders to show cause in Ms. Burgos’s injunction against Ms. McKenzie, and after hearing argument, dismissed them on February 15, 2018. Despite these multiple injunction proceedings, Ms. Cruz and Ms. McKenzie continued their feud. On January 22, 2018, Ms. Cruz was arrested for violation of the protection order in favor of Ms. McKenzie. Ms. Cruz’s arrest triggered a violation of her felony probation. While in pretrial detention, she was again evaluated by a psychologist, who determined her to be incompetent to proceed. The circuit court committed Ms. Cruz to a mental health facility. She subsequently returned to court and pled guilty to a violation of probation. The circuit court sentenced Ms. Cruz to a split sentence of time served, reinstated probation, and extended probation with an added special condition for 12 months. Ms. Cruz was released from the Nassau County Jail on July 27, 2018. On July 31, 2018, Ms. Foster hand delivered a notice to terminate the lease, stating that the lease will end on August 31, 2018, and that Ms. Cruz should vacate the mobile home no later than September 1, 2018. Ms. Cruz and Ms. Burgos continued to hold over in the mobile home until they moved out on September 29, 2018. Ms. Cruz failed to provide any credible evidence that Respondents, or Mr. Hamilton, made any disparaging statements to Ms. Cruz regarding her national origin. Ms. Cruz failed to provide any credible evidence that Respondents treated her less favorably than other tenants with regard to her feud with Ms. McKenzie. Put differently, Ms. Cruz failed to provide any credible evidence that Respondents treated any other tenant disputes differently than the way they treated the dispute between Ms. Cruz and Ms. McKenzie. Ms. Foster attempted to intervene on behalf of Ms. Cruz to end the feud, when she hand-delivered the letter to Ms. McKenzie on February 13, 2017, that threatened eviction. The credible evidence presented demonstrated that Ms. Cruz often created or exacerbated this feud, which ultimately led to her incarceration. Ms. Cruz failed to provide any credible evidence that Respondents’ decision to end the month-to-month holdover of the lease of the mobile home was based on her national origin, or that Respondents treated Ms. Cruz differently than any other tenants who resided at Pine Grove in ending the month-to-month holdover of a lease.
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 Nidia Cruz’s Petition for Relief. DONE AND ENTERED this 1st day of July, 2020, in Tallahassee, Leon County, Florida. S ROBERT J. TELFER III 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 1st day of July, 2020. COPIES FURNISHED: Tammy S. Barton, Agency Clerk Florida Commission on Human Relations Room 110 4075 Esplanade Way Tallahassee, Florida 32399-7020 (eServed) Nidia Cruz Post Office Box 1923 Callahan, Florida 32011 (eServed) James Pratt O'Conner, Esquire James Pratt O'Conner, P.A. Post Office Box 471 Fernandina Beach, Florida 32035 (eServed) Cheyanne Costilla, General Counsel Florida Commission on Human Relations Room 110 4075 Esplanade Way Tallahassee, Florida 32399-7020 (eServed)
The Issue Did the action of Respondent, in denying Petitioner the use of an emotional support dog in her condominium unit for her son, violate a legal duty to reasonably accommodate the needs of her son, A.C.?
Findings Of Fact The undersigned makes the following findings of relevant and material facts: Facts From Pre-hearing Stipulation Filed June 20, 2016 Petitioner was aware that the Association had a "no pet" policy and signed a document acknowledging same. Petitioner was sent a letter on February 24, 2014, from the Association's then property manager advising Petitioner that the Association had been advised that a dog was being kept in their unit, and reminding Petitioner of the Association's no pet policy. A Fines Committee hearing was scheduled for March 10, 2014, in regard to Petitioner's violation of the no pet policy. Petitioner was not issued a fine for violating the pet policy. Prior to the Fines Committee hearing, Petitioner made her first claim that her son had a disability and required an emotional support animal. Prior to the Fines Committee hearing, Petitioner made her first request to the Association for a reasonable accommodation. The Association's Board of Directors scheduled an interview with Petitioner on April 30, 2014, wherein Petitioner would be able to explain her request for a reasonable accommodation, the need for the emotional support animal, and her son's disability. The Association advised Petitioner, prior to the scheduled interview, that Petitioner may provide the Association with any documents Petitioner believes support her position. An interview and/or meeting occurred on April 30, 2014, between Petitioner, her husband, Yovani Cabreriza, Petitioner's attorney, and certain members of the Board of Directors, along with the Association's attorney, to discuss Petitioner's request for an accommodation. The Association determined that Petitioner was not in need of a reasonable accommodation and requested that the dog be removed via written correspondence dated May 19, 2014. The Association again requested that the subject dog be removed via written correspondence dated May 22, 2015, and advised Petitioner that an arbitration action would follow if the dog was not removed. A Petition for Arbitration was filed on June 4, 2015. Petitioner's response to the arbitration petition was filed on September 14, 2015. The arbitrator issued an order striking the complainants' defense and requiring proof of filing a Fair Housing Complaint. Petitioner filed her housing complaint with FCHR and Housing and Urban Development on November 2, 2015. On March 8, 2016, the FCHR housing investigator issued a "Notice of Determination of No Cause," concluding that reasonable cause does not exist to believe that a discriminatory housing practice has occurred. On April 8, 2016, FCHR received a Petition for Relief from an Unlawful Housing Practice from Petitioner. Findings of Fact From the Hearing This case involves a family who lives at Respondent's condominium complex, Arlen House Condominium, located at 300 Bayview Drive, Sunny Isles Beach, Florida 33160. Petitioner owns condominium unit PH05. Petitioner resides at this location with her husband and minor son, A.C. Petitioner's son was 11 years old in 2014. Her son has suffered from an anxiety disorder since he was a young boy. A.C.'s anxiety disorder problem became worse in 2012. He cried every morning and did not want to go to school. Apparently, he had difficulty breathing during anxiety or panic attacks. His mother described him as being "completely withdrawn" at school.1/ To help her son cope with his anxiety problem, Petitioner bought him a small dog, Jake, in the latter part of 2012. When she bought the dog, she knew that the condominium had a "no pet policy," but failed to alert the condominium or request permission to keep the dog.2/ In early 2014, the Association discovered that the dog was being kept in violation of the Association's rules and regulations. It notified Petitioner in writing on February 24, 2014, and told her to remove the animal. Resp. Ex. 2(e). March 10, 2014, Meeting Petitioner met with the Association's Fine Committee on March 10, 2014. During the meeting, Petitioner presented, for the first time, a letter or letters from the child's doctor, Rasciel Socarras, M.D.3/ Resp. Ex. 2(f). After the meeting before the Fine Committee, counsel for the Association sent Petitioner's counsel a letter dated March 21, 2014. Resp. Ex. 2(g). Essentially, the letter reiterated the "no pet policy" and concluded that Petitioner had failed to demonstrate to the Fine Committee that her son had a disability that substantially limited a major life activity or that an accommodation was necessary to afford him an equal opportunity to use and enjoy their condominium unit. The letter also requested a meeting to help the Association "conduct a meaningful review of your client's request for an accommodation."4/ Prior to the next meeting between the parties on April 30, 2014, counsel for the Association sent a letter to Petitioner's counsel dated April 18, 2014. In that letter, counsel requested copies of any and all documents that may support the boy's disability and need for an accommodation, including but not limited to the medical records that demonstrate his disability.5/ April 30, 2014, Meeting As arranged, Petitioner and her husband, along with their legal counsel, met with the Board of Directors on April 30, 2014. At the meeting, Petitioner explained her son's anxiety problem.6/ Although the record was not clear on this point, based on the evidence and the reasonable inferences drawn from the evidence, the undersigned concludes that the two (2) letters (dated and undated) from Dr. Socarras were reviewed and discussed during the April 30, 2014, meeting with Petitioner.7/ The board members asked Petitioner several questions about her son's condition. Petitioner informed the Board of Directors that her son was not on any medication to treat his anxiety, nor was he receiving any mental health counseling or therapy. Petitioner told the Board of Directors that she had diagnosed the child as having problems with anxiety. The Board of Directors also asked her how her son was performing in school and learned that he was enrolled in the gifted learning program at his school.8/ As a result of the meeting, the Board of Directors concluded: (1) that it did not have enough information to determine whether the child was limited in his ability to live in the unit; (2) that he had a disability; or (3) that the pet was medically necessary for him. As a follow-up to that meeting, on May 19, 2014, the Association's counsel sent a letter to Petitioner. The letter outlined the Board of Directors' position and speaks for itself. See Resp. Ex. 2(i). The letter stated in relevant part: At this time, the Board of Directors can neither approve your request for an accommodation nor can it provide an exception to its "no pet" policy. You have been unable to provide information that supports that your son suffers from a physical or mental impairment that substantially limits one or more of his daily activities. There has been no documentation to support that your son has been diagnosed or treated for a disability. More importantly, you have not provided relevant information that your son has a disability or that the dog helps alleviate any identified symptoms. The letter concluded by demanding that the dog, Jake, be removed from the condominium unit no later than Monday, June 2, 2014.9/ Nearly a year of "radio silence" passed with no activity by either party. The Association did not check on the removal of the pet, and Petitioner did not remove the dog despite the demand by the Association. A year later, on May 15, 2015, the Association acted and sent another letter to Petitioner demanding that she remove the pet. Again, Petitioner did not remove the pet. On June 4, 2015, the Association filed a petition for mandatory non-binding arbitration with the Florida Department of Business and Professional Regulation. Ultimately, the arbitrator entered an order on November 19, 2015, staying the arbitration case until the resolution of the discrimination complaint filed by Petitioner with FCHR. Based on the evidence presented, the undersigned concludes that during the meeting on April 30, 2014, with the Board of Directors, that other than the letter(s) from Dr. Socarras, and an identification certificate for their pet dog Jake, there was no other medical information or documentation provided by Petitioner to assist Respondent in reviewing and evaluating her request for the accommodation to keep Jake in the unit.10/ As a related topic, the Board of Directors had previously approved service animals for at least two (2) other residents.11/ One resident had suffered a stroke and needed assistance to walk. Another resident had a serious medical condition and was allowed to keep a service animal which was trained to detect the onset of the person's medical condition. In both instances, the Board of Directors followed the same process followed in Petitioner's case. Letters were sent and meetings were held. However, in the cases where a service animal was approved, the Board of Directors requested and was provided medical records which it relied upon to conclude that a service animal was needed as a reasonable accommodation. Prior to this hearing before DOAH, the Board of Directors had not been informed, and no claim was made, that "learning" was a major life activity that was substantially impaired by A.C.'s anxiety.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Florida Commission on Human Relations enter a final order dismissing Petitioner's complaint for discrimination. DONE AND ENTERED this 31st day of August, 2016, in Tallahassee, Leon County, Florida. S ROBERT L. KILBRIDE Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 31st day of August, 2016.
The Issue Whether Petitioners, Kim and Coby Lantz, should be granted a license as a family foster home.
Findings Of Fact Based on the testimony and evidence received at the hearing, the following findings are made: Respondent is the state agency responsible for licensing and regulating family foster homes. Petitioners are applicants for a family foster home license. In February 2004, Petitioners initially sought to adopt a child, but, subsequently, changed the application to provide foster care for children. As part of the process, Petitioners attended an orientation conducted by Respondent's family services counselor and completed a screening questionnaire. As part of the application process, applicants are required to complete the Model Approach for Parenting (MAP) training, which includes classes to better prepare prospective foster and adoptive parents for the placement of children in their homes. The purpose is to ensure, prior to placement, that prospective parents work effectively as a team with each other and with Respondent. It is also important that they know and understand their rights and obligations that a stable environment be created for the children. As part of the MAP training and evaluation, prospective foster parents are required to complete a thorough background and history form. They are asked to give a complete life history, including prior relationships, marriages, customs, and culture. Both Petitioners completed the form. Petitioner Coby Lantz has been very supportive of his wife's desire to obtain a family foster home license and to provide care for foster children. He provided sufficient information in order for Respondent to complete his portion of the family assessment. Petitioner Coby Lantz completed the MAP training during this period. Petitioner Kim Lantz was given credit for completing the MAP training while married to her second husband, Darrell Palmer. Petitioner Kim Lantz completed the Adult's Personal Profile (for prospective mothers), consisting of 17 pages, plus a five-page, hand-written "Life Story." On page five of the profile, she was specifically asked to complete information on previous intimate relationships and former marriages. Petitioner Kim Lantz listed only one former marriage. She indicated she was married to Darrell Palmer from November 18, 2000, until his death on September 12, 2001. However, Petitioner Kim Lantz was, in fact, married to Robert D. Haynes in June 1991, separated two years later, and the final decree of divorce was entered on October 10, 1995. Petitioner Kim Lantz's explanation of this omission, while testifying at the hearing, was that she and her first husband married shortly after college. She stated, "[i]t was a high school sweetheart thing . . . he was not abusive to me. He did drink. We just grew apart. We divorced. That was it. It was like a guy I dated. He's not really anything to comment about. I moved on " These responses, along with other parts of her testimony, indicate that Petitioner Kim Lantz tends to suppress unpleasant memories from her past and to not deal with them effectively. Also, Petitioner Kim Lantz has not given a credible explanation of her complete omission of any reference to Haynes in her profile or "Life Story." In addition, it was only with excessive prodding that Petitioner produced a Certificate of Divorce from Haynes. These omissions and vague explanations have prevented Respondent from completing a thorough family assessment as required by Florida law. Petitioner Kim Lantz's second marriage to Darrell Palmer ended tragically on November 12, 2001. She was present with her husband in their apartment when local law enforcement came to their door. The law enforcement officers were seeking to determine the origin of bomb threats made to a local Dillard's department store. Apparently, they wanted to interview her, who was employed there at the time, and Palmer, a former employee. When Palmer, who was preparing a meal in the kitchen, opened the door with a kitchen knife in his hands, he was shot and killed by law enforcement. Petitioner was emotionally devastated by this event. At her parents urging, she returned to their home in upstate New York, where she received love and support from her family and her church. Petitioner Kim Lantz testified that she was diagnosed with post-traumatic stress disorder and received mental health counseling for two years and, also, received medication for this condition. However, Petitioners have provided only sketchy information concerning her current mental health status. While still in New York, Petitioners met at a church function, dated, and married and eventually moved to Cocoa, Florida. During the course of Respondent's family assessment, it was determined, in late March 2005, that Petitioner Kim Lantz was terminated at her place of employment, a daycare facility, on February 28, 2005. She failed to report this event and attempted to withhold this fact from Respondent. Her explanation to Respondent's investigator and her testimony at the hearing is not credible and amounts to a willful or intentional misstatement.
Recommendation Based on the foregoing Findings of Facts and Conclusions of Law, it is RECOMMENDED that Petitioners, Kim and Coby Lantz's application for a family foster home license be denied. DONE AND ENTERED this 28th day of October, 2005, in Tallahassee, Leon County, Florida. S DANIEL M. KILBRIDE 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 28th day of October, 2005. COPIES FURNISHED: Richard Cato, Esquire Department of Children and Family Services 400 West Robinson Street, Suite S-1106 Orlando, Florida 32801-1782 Kim Lantz Coby Lantz 6983 Dahlia Drive Cocoa, Florida 32927 Gregory Venz, Agency Clerk Department of Children and Family Services 1317 Winewood Boulevard Building 2, Room 204B Tallahassee, Florida 32399-0700 Josie Tomayo, General Counsel Department of Children and Family Services 1317 Winewood Boulevard Building 2, Room 204 Tallahassee, Florida 32399-0700
