The Issue Whether Respondent discriminated against Petitioner because of his race, sex or religion.
Findings Of Fact Respondent owns and operates the Valu-Lodge Motel located at 4810 West Highway 98, Panama City Beach, Florida. The motel offers rooms for rent to the public and is a "transient public lodging establishment" within the meaning of Florida Statutes. Petitioner is a white male. His national origin is American. Although Petitioner’s complaint and petition indicate that Petitioner espouses to be a member of the Church of Christ, there was no evidence presented at the hearing regarding Petitioner’s religion. On September 9, 2004, Petitioner rented a motel room from Respondent at its Panama City Beach motel. The rental term was week to week. At some point, Respondent felt Petitioner had become disruptive to the operation of the hotel and to its guests. On November 25, 2005, Respondent informed Petitioner that it would no longer rent a room to Petitioner and hand-delivered a Notice of Termination of Lease to Petitioner. The Notice stated that Petitioner must vacate the premises by December 1, 2005. Petitioner refused to vacate the motel premises. On December 9, 2005, Respondent hand-delivered a Fifteen Day Notice for Possession of Premises to Petitioner. The Notice indicated that no further rent would be accepted. Petitioner again refused to vacate the premises. Petitioner also did not pay any further rent to Respondent. Respondent filed an eviction proceeding against Petitioner. The first and second eviction proceedings appear to have been dismissed for procedural reasons. However, the third eviction proceeding was successful. During that proceeding, Petitioner had the opportunity to defend against eviction based on the claims of discrimination raised in this matter. However, on June 22, 2007, after hearing, Respondent received a final judgment, awarding the Intown Companies, Inc., $19,213.18 in unpaid rent, plus interest. Respondent also received a Final Judgment of Eviction awarding the Company possession of the premises and court costs. A Writ of Possession was issued on June 25, 2007, and Petitioner vacated the premises on June 27, 2008. There was no evidence presented by Petitioner that demonstrated Respondent discriminated against Petitioner in any manner. There was absolutely no evidence of any racial, nationalistic or religious bias on the part of Respondent. Apparently, Petitioner believes that he is entitled to rent a room from Respondent simply because he is a member of the public and desires to rent a room from Respondent. Neither the facts, nor the law supports Petitioner’s misinformed view of the view of the law. Given the utter lack of evidence presented by Petitioner, the Petition for Relief should be dismissed.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that: The Florida Commission on Human Relations enter a final order dismissing the Petition for Relief. DONE AND ENTERED this 3rd day of September 2008, in Tallahassee, Leon County, Florida. S DIANE CLEAVINGER 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 September 2008. COPIES FURNISHED: Larry Kranert, General Counsel Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301 Denise Crawford, Agency Clerk Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301 David Alan Johnson 20417 Panama City Beach Parkway No. 8 Panama City Beach, Florida 32413 Melton Harrell, Authorized Agent The Intown Companies, Inc. d/b/a Valu Lodge American Motel Management, Inc. 2200 Northlake Parkway S-277 Tucker, Georgia 30084-4023
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 is whether Respondent, Publix Super Markets, Inc. (“Publix”), violated section 760.08, Florida Statutes (2014),1/ by discriminating against Petitioner based on his race, color, sex, and/or handicap.
Findings Of Fact Petitioner is a black male who lives in Deltona, Florida. Despite the assertion in his Public Accommodation Complaint of Discrimination, Petitioner offered no evidence that he has a disability or handicap. Petitioner testified that he had surgery for kidney stones in Daytona Beach on October 20, 2014. Respondent’s urologist prescribed Percocet (oxycodone and acetaminophen), a controlled substance, to control Respondent’s pain. The prescription from Petitioner’s urologist was not placed in evidence. On October 21, 2014, Petitioner went to the emergency room at Fish Memorial Hospital in Orange City and, there, was given a prescription for 12 tablets of Percocet. The prescription directed that the medication be taken once every six hours, meaning that the emergency room physician was prescribing a three-day supply of Percocet. A copy of this prescription was entered into evidence, and the parties agree that this is the prescription that Petitioner later presented to the Publix pharmacy. Petitioner testified that his mother drove him to his surgery and, apparently, to the emergency room. She placed the prescription in her purse for safe keeping. A few days later, when Petitioner wanted to get the prescription filled, his mother could not find the prescription. Petitioner stated that his mother forgot that she had changed purses. When she changed purses again a couple of weeks later, Petitioner’s mother found the prescription. On November 15, 2014, Petitioner presented the emergency room prescription to the pharmacy technician at Publix Store 0667 in Deltona. The technician was aware that the pharmacist gave special scrutiny to emergency room prescriptions. The technician therefore took the prescription directly to the pharmacist, James MacDonald. Mr. MacDonald was the pharmacy manager of Store 0667 and at the time of the events at issue had been a pharmacist for 23 years with no record of discipline against his license. Mr. MacDonald testified that, as a general matter, he performs a prospective drug utilization review on every prescription. Simply put, this process insures that the prescription is for a legitimate medical purpose and that it is being filled for the person who presented it at the pharmacy. Mr. MacDonald stated that he is not required to fill every prescription that is presented to him and that he declines to fill prescriptions seven to ten times per week. The chief reasons for declining to fill prescriptions are the pharmacist’s inability to verify the prescription with the prescribing physician and the pharmacist’s determination that the prescription calls for a type or quantity of a controlled substance that is inappropriate to the patient’s condition. Mr. MacDonald testified that during the two years prior to November 2014, nearby pharmacies at CVS and Walgreens had stopped filling prescriptions for controlled substances, which placed an added burden on Publix to fill these prescriptions. There were several doctors in the area writing prescriptions for large amounts of controlled substances. Mr. MacDonald was also being presented with many prescriptions for controlled substances from people he did not know. All these factors contributed to his caution in filling prescriptions for controlled substances. Mr. MacDonald testified that a prescription from an emergency room visit usually provides for enough medication to get the patient through the emergency period, two or three days, after which the patient is instructed to see his primary care physician. Mr. MacDonald tended to decline to fill emergency room prescriptions that were presented more than a few days after the emergency room visit. When the technician presented him with Petitioner’s prescription, Mr. MacDonald told the technician that he would not fill it because it was more than three weeks old. The technician walked to the front window to convey this response to Petitioner, who did not take it well. Mr. MacDonald could hear Petitioner raising his voice and so went to the front to speak with Petitioner directly. Mr. MacDonald testified that the pharmacy was very busy, that he had customers ahead of Petitioner, and that having to come around and deal personally with Petitioner was putting him even farther behind in his work. Mr. MacDonald explained to Petitioner that the prescription was issued by an emergency room physician and was for a three-day supply of Percocet. He told Petitioner that he would have filled the prescription if he had presented it within a week of his emergency room visit, but that it was now three weeks later and this was clearly no longer an emergency situation. Petitioner testified that he told Mr. MacDonald that the prescription had been misplaced in his mother’s purse. Mr. MacDonald did not recall this explanation. Mr. MacDonald offered to call the emergency room physician and verify the prescription. Petitioner insisted that Mr. MacDonald either call the physician or fill the prescription immediately, and stated that he would not move from the pharmacy window until Mr. MacDonald had complied with his ultimatum. Mr. MacDonald stated that he had customers ahead of Petitioner and could not drop everything to please him at that moment. In light of Petitioner’s persistence, Mr. MacDonald reiterated his refusal to fill the prescription. He handed the prescription back to Petitioner and threatened to call the police if Petitioner did not leave. Petitioner was unmoved. Mr. MacDonald did not call the police but did page the assistant store manager, Christopher Bloyen, to intercede in the situation. Mr. Bloyen testified that he came to the pharmacy. He saw that Petitioner seemed very upset and was speaking very loudly. Petitioner complained that Mr. MacDonald would not fill his prescription. Mr. Bloyen spoke briefly with Mr. MacDonald, who explained why he was refusing to fill the prescription. At the hearing, Mr. Bloyen explained that the pharmacy in any Publix store is an autonomous department and that, as a store manager, he lacks the training or expertise to second- guess the decision of his pharmacist. Publix relies on the professional expertise and discretion of its pharmacists to determine whether or not to fill a prescription. Mr. Bloyen informed Petitioner that he was going to support the decision of Mr. MacDonald not to fill the prescription. At this point, Petitioner left the store. Neither Mr. MacDonald nor Mr. Bloyen had met Petitioner before this incident. Petitioner did not disclose to them that he had any disability or handicap, and none was visibly apparent. Mr. MacDonald testified that his decision not to fill Petitioner’s prescription was not based on Petitioner’s race, color, or sex. In fact, Mr. MacDonald’s initial decision not to fill the prescription was made and announced to the technician before Mr. MacDonald laid eyes on Petitioner. Petitioner’s race, color, sex, and alleged handicap or disability played no part in Mr. MacDonald’s decision not to fill the prescription. Mr. MacDonald did not make any disparaging remarks about Petitioner during their exchange, and no employee of Publix made racially derogatory or racially related comments to Petitioner. Petitioner testified that he was able to get the prescription filled at a Winn-Dixie pharmacy shortly after this incident. Therefore, Petitioner suffered no economic loss or quantifiable damages as a result of Publix’s refusal to fill his prescription. Petitioner testified that he seeks only an apology from Publix. Publix Store 0667 does not contain a restaurant or lunch counter and there is no designated area for customers to consume food on the premises. The store does contain a deli, but the food items sold from the deli are not intended for on- site consumption at Publix. The store has no picnic tables or other seating at which customers might consume food on the premises. Petitioner offered no credible evidence disputing the legitimate, non-discriminatory reasons given by Publix for refusing to fill his prescription. Petitioner offered no credible evidence that the stated reasons for not filling the prescription were a pretext for discrimination based on Petitioner’s race, color, sex, handicap, or disability. Petitioner offered no credible evidence that Publix discriminated against him in violation of section 760.08.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Florida Commission on Human Relations issue a final order finding that Publix Super Markets, Inc., is not a public accommodation under the facts of this case or, in the alternative, that Publix Super Markets, Inc., did not commit any unlawful acts of public accommodation discrimination and dismissing the Petition for Relief filed in this case. DONE AND ENTERED this 2nd day of February, 2016, in Tallahassee, Leon County, Florida. S LAWRENCE P. STEVENSON 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 2nd day of February, 2016.
The Issue The issue is whether Respondent, Steak n Shake Restaurant (“Steak n Shake”), violated section 760.08, Florida Statutes,1/ by discriminating against Petitioner based on his race.
Findings Of Fact Petitioner is a white male who lives in Ormond Beach, Florida. Petitioner testified that he had been a regular customer of the Steak n Shake at 120 Williamson Boulevard in Ormond Beach for about four years. Petitioner entered the restaurant on March 30, 2015, and was seated by server Amanda Hobbs, a black female. Petitioner testified that neither Ms. Hobbs nor any other server would wait on him. He saw Ms. Hobbs take the order of a black couple who came into the restaurant after he did. Petitioner complained to the manager, Mark Regoli, a male of mixed race. Petitioner testified that he told Mr. Regoli that the service had been poor for several months, and complained about not being served on this occasion. Petitioner stated that Mr. Regoli accused him of being “loud,” but explained that he is hearing-impaired and may sometimes speak in a loud voice. Petitioner testified that Mr. Regoli became angry, “got up in my face,” and blocked Petitioner from leaving the restaurant. Petitioner testified that he left the restaurant. It was only later that he learned that the police had been called by someone at Steak n Shake. Counsel for Steak n Shake did not cross-examine Petitioner. Steak n Shake called no witnesses. Steak n Shake’s documentary evidence consisted of hearsay witness statements that cannot be considered in the absence of admissible evidence that the hearsay may be said to supplement or explain. Therefore, Petitioner’s narrative is the only sworn, admissible evidence before this tribunal. Though Petitioner’s testimony was clearly a self-serving version of the events that occurred at the Steak n Shake on March 30, 2015, it is the only version of events that may be considered under the rules of evidence. Petitioner’s testimony lacks complete credibility only when one compares it with the excluded witness statements of the Steak n Shake employees. If one considers Petitioner’s testimony standing alone, as this tribunal must, the worst one can say is that it is one-sided and incomplete. This state of affairs is not the fault of Petitioner, who was under no obligation to tell anything other than his side of the story. Petitioner represented himself and so is not entitled to attorney’s fees. Petitioner may be entitled to an award of costs.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Florida Commission on Human Relations issue a final order: Finding that Respondent, Steak n Shake Restaurant, committed an act of public accommodations discrimination against Petitioner, Virgil W. Phillips; Prohibiting any future acts of discrimination by Respondent; and Awarding Petitioner his costs. DONE AND ENTERED this 29th day of April, 2016, in Tallahassee, Leon County, Florida. S LAWRENCE P. STEVENSON 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 April, 2016.
The Issue Whether Petitioner has been subjected to unlawful discrimination in a public accommodation by Respondent, as alleged in the Amended Public Accommodation Charge of Discrimination filed by Petitioner on July 30, 2003.
Findings Of Fact Petitioner, Rungvichit Yongmahapakorn, was hired by Respondent as an internal auditor in December 1998, then was promoted to vice president of accounting and finance in April 1999. While she worked for Respondent, Petitioner was provided room and board at the hotel. Her employment was terminated by Respondent on May 30, 2003. The circumstances of her termination are not at issue in this proceeding. Respondent, Amtel Group of Florida, Inc., d/b/a Ramada at Amtel Marina, owns and operates a 24-story full service hotel in downtown Fort Myers, Florida, overlooking the Caloosahatchee River. The hotel offers over 400 rooms and suites to guests. Petitioner testified that in May 2003, she visited her native Thailand. She returned to Fort Myers on June 3, 2003, and proceeded to Respondent's hotel, where she learned of her termination. Petitioner testified that the notice of her termination was posted on the door of Room 411, a room dedicated to staff of the hotel in which she had lived for several months. The notice also informed her that she must vacate the hotel's premises immediately. Having nowhere else to go and wishing to have some time to assess her options, Petitioner requested that she be allowed to stay as a paying guest of the hotel. She also complained of mildew in Room 411 and asked for a different room. Hotel staff showed her Room 1621, a non-smoking king guest suite facing the water. The standard rate for this suite was $129.00 per night. During the month of June, the rate actually charged for this room ranged from $89.00 to $119.00, depending on demand. Petitioner rejected Room 1621 claiming that the furniture was dirty and scratched, and the carpet needed cleaning. Ginger Eodice, director of Housekeeping for the hotel, personally cleaned the room. Petitioner did not approve of Ms. Eodice's work. Hotel staff then showed Petitioner Room 1613, another non-smoking king guest suite facing the water. Petitioner claimed that the window screens in this room were dirty and demanded that hotel staff show her another room. Petitioner was told that she could have her choice of Rooms 411, 1621, and 1613. Ms. Eodice testified that all three of the rooms were up to Ramada standards of cleanliness and in good repair. Rooms 1621 and 1613 were provided without incident or complaint to hotel guests before and after Petitioner's stay in the hotel. Petitioner refused to select a room. She was upset and became increasingly loud in the hotel lobby. Hotel staff attempted to mollify her in order not to create a scene in front of other guests, but Petitioner would not calm down. Den Chinsomboon, who was then a manager at the hotel, told Petitioner that she had to choose a room or be escorted from the hotel property. Petitioner continued her tirade, and Mr. Chinsomboon ordered a front desk employee to call the Fort Myers Police Department. The police arrived and told Petitioner that she had to select a room or leave the premises. Petitioner then calmed down and chose to stay in Room 1613. Petitioner paid in advance for ten days' stay in the room totaling $646.10. Upon her checkout on June 12, 2003, Petitioner received a full refund of $646.10 from the hotel. No witness offered any first-hand explanation for the low rate charged or the reason for the full refund. Kevin Matney, the hotel manager who made these decisions, no longer works for Respondent and did not testify at the final hearing. Petitioner testified that, while she was a guest in Room 1613, the hotel's engineering staff used pass keys to enter the room without her permission. Under cross-examination, Petitioner conceded that the engineering staff came to the room at her request to change a light bulb, but she still maintained that they entered without knocking. Several staff members testified that Ramada's firm policy was for staff to knock twice on a guest's door before using the pass key to enter. Petitioner offered no evidence that hotel staff discriminated against her because she was Asian, Thai, or because she was female. The evidence established that the hotel's owners are Thai, as were several other employees at the time. She contended that Mr. Chinsomboon's actions were motivated by the "normal" Thai male's tendency to discriminate against Thai females, but offered no firm evidence to support this bare assertion. Petitioner attempted to show that two white male employees were treated differently after their employment was terminated. At most, Petitioner was able to show that one of these terminated employees was later allowed to hire out the hotel's banquet facilities for a wedding reception. This can hardly be termed disparate treatment, given that Petitioner was allowed to stay at the hotel without charge for ten days after she was terminated. Petitioner alleged discriminatory treatment in the fact that the hotel summoned the police to evict her because she complained about the condition of the rooms she was offered. The weight of the evidence established that Respondent's employees called the police because Petitioner was causing a disturbance and was refusing to select a room. Once Petitioner selected a room, she stayed at the hotel for nine nights without further incident and was not charged for her stay. The evidence established that Petitioner had lived at the hotel since 1998 without complaining about the cleanliness or general repair of her rooms. The evidence established that Petitioner was irate over her termination and that her anger caused her to make unreasonable demands regarding the conditions of the rooms. Hotel staff attempted to satisfy Petitioner's demands, if only to prevent a loud confrontation in the hotel's lobby. There was no credible evidence that any employee of the hotel behaved in a manner that could be termed discriminatory against Petitioner.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law set forth herein, it is RECOMMENDED that the Florida Commission on Human Relations enter a final order dismissing the Petition for Relief. DONE AND ENTERED this 11th day of April, 2005, in Tallahassee, Leon County, Florida. S LAWRENCE P. STEVENSON 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 11th day of April, 2005.
The Issue The issue in this case is whether Respondent unlawfully discriminated against Petitioner on the basis of her religion or national origin in violation of the Florida Fair Housing Act.
Findings Of Fact Petitioner Tal Simhoni ("Simhoni"), a Jewish woman who identifies the State of Israel as her place of national origin, at all times relevant to this action owned Unit No. 212 in Mimo on the Beach I Condominium (the "Condominium"), which is located in Miami Beach, Florida. She purchased this unit in 2009 and a second apartment (Unit No. 203) in 2010. Simhoni has resided at the Condominium on occasion but her primary residence, at least as of the final hearing, was in New York City. The Condominium is a relatively small community consisting of two buildings comprising 28 units. Respondent Mimo on the Beach I Condominium Association, Inc. ("Association"), a Florida nonprofit corporation, is the entity responsible for operating and managing the Condominium and, specifically, the common elements of the Condominium property. Governing the Association is a Board of Directors (the "Board"), a representative body whose three members, called "directors," are elected by the unit owners. Simhoni served on the Board for nearly seven years. From July 2010 until April 2011, she held the office of vice- president, and from April 2011 until June 1, 2017, Simhoni was the president of the Board. Simhoni's term as president was cut short when, in May 2017, she and the other two directors then serving with her on the Board were recalled by a majority vote of the Condominium's owners. The Association, while still under the control of the putatively recalled directors, rejected the vote and petitioned the Department of Business and Professional Regulation, Division of Condominiums, Timeshares, and Mobile Homes ("DBPR"), for arbitration of the dispute. By Summary Final Order dated June 1, 2017, DBPR upheld the recall vote and ordered that Simhoni, Marisel Santana, and Carmen Duarte be removed from office, effective immediately. The run-up to the recall vote entailed a campaign of sorts to unseat Simhoni, which, as might be expected, caused friction between neighbors. Without getting into details that aren't important here, it is fair to say that, generally speaking, the bloc opposed to Simhoni believed that she had poorly managed the Condominium, especially in connection with the use of Association funds. Some of Simhoni's critics were not shy about voicing their opinions in this regard, which—— understandably——led to hard feelings. Simhoni vehemently disputes the charges of her critics and, clearly, has not gotten over her recall election defeat, which she blames on false, unfair, and anti-Semitic accusations against her. This is a case of alleged housing discrimination brought under Florida's Fair Housing Act (the "Act"). Specifically, Simhoni is traveling under section 760.23(2), Florida Statutes, which makes it "unlawful to discriminate against any person in the terms, conditions, or privileges of sale or rental of a dwelling, or in the provision of services or facilities in connection therewith, because of race, color, national origin, sex, handicap, familial status, or religion." (Emphasis added). The applicable law will be discussed in greater detail below. The purpose of this brief, prefatory mention of the Act is to provide context for the findings of fact that follow. The principal goal of section 760.23(2) is to prohibit the denial of access to housing based on discriminatory animus. Simhoni, however, was not denied access to housing. She is, in fact, a homeowner. Contrary to what some might intuit, the Act is not an all-purpose anti-discrimination law or civility code; it does not purport to police personal disputes, quarrels, and feuds between neighbors, even ugly ones tinged with, e.g., racial or religious hostility. To the extent the Act authorizes charges based on alleged post-acquisition discrimination, such charges must involve the complete denial of services or facilities that are available in common to all owners as a term or condition of ownership——the right to use common areas, for example, pursuant to a declaration of condominium. Moreover, the denial of access to common services or facilities logically must result from the actions of a person or persons, or an entity, that exercises de facto or de jure control over access to the services or facilities in question. This is important because, while Simhoni believes that she was subjected to anti-Semitic slurs during her tenure as Board president, the fact is that her unfriendly neighbors——none of whom then held an office on the Board——were in no position to (and in fact did not) deny Simhoni access to common services and facilities under the Association's control, even if their opposition to her presidency were motivated by discriminatory animus (which wasn't proved). As president of the Board, Simhoni wound up on the receiving end of some uncivil and insensitive comments, and a few of her neighbors seem strongly to dislike her. Simhoni was hurt by this. That impolite, even mean, comments are not actionable as unlawful housing discrimination under section 760.23(2) is no stamp of approval; it merely reflects the relatively limited scope of the Act. Simhoni has organized her allegations of discrimination under six categories. Most of these allegations do not implicate or involve the denial of common services or facilities, and thus would not be sufficient to establish liability under the Act, even if true. For that reason, it is not necessary to make findings of fact to the granular level of detail at which the charges were made. The Mastercard Dispute. As Board president, Simhoni obtained a credit card for the Association, which she used for paying common expenses and other Association obligations such as repair costs. In applying for the card, Simhoni signed an agreement with the issuer to personally guarantee payment of the Association's account. It is unclear whether Simhoni's actions in procuring this credit card were undertaken in accordance with the Condominium's By-Laws, but there is no evidence suggesting that Simhoni was forced, encouraged, or even asked to co-sign the Association's credit agreement; she seems, rather, to have volunteered. Simhoni claims that she used personal funds to pay down the credit card balance, essentially lending money to the Association. She alleges that the Association has failed to reimburse her for these expenditures, and she attributes this nonpayment to anti-Semitism. There appears to be some dispute regarding how much money, if any, the Association actually owes Simhoni for common expenses. The merits of her claim for repayment are not relevant in this proceeding, however, because there is insufficient persuasive evidence in the record to support a finding that the Association has withheld payment based on Simhoni's religion or national origin. Equally, if not more important, is the fact that Simhoni's alleged right to reimbursement is not a housing "service" or "facility" available in common to the Condominium's owners and residents. Nonpayment of the alleged debt might constitute a breach of contract or support other causes of action at law or in equity, but these would belong to Simhoni as a creditor of the Association, not as an owner of the Condominium. In short, the Association's alleged nonpayment of the alleged debt might give Simhoni good legal grounds to sue the Association for, e.g., breach of contract or money had and received——but not for housing discrimination. The Estoppel Certificate. On September 20, 2017, when she was under contract to sell Unit No. 212, Simhoni submitted a written request to the Association for an estoppel certificate, pursuant to section 718.116(8), Florida Statutes. By statute, the Association was obligated to issue the certificate within ten business days——by October 4, 2017, in this instance. Id. The failure to timely issue an estoppel letter results in forfeiture of the right to charge a fee for preparing and delivering the certificate. § 718.116(8)(d), Fla. Stat. The Association missed the deadline, issuing the certificate one-week late, on October 11, 2017; it paid the prescribed statutory penalty for this tardiness, refunding the preparation fee to Simhoni as required. Simhoni attributes the delay to anti-Semitism. It is debatable whether the issuance of an estoppel letter is the kind of housing "service" whose deprivation, if based on religion, national origin, or another protected criterion, would support a claim for unlawful discrimination under the Act. The undersigned will assume for argument's sake that it is such a service. Simhoni's claim nonetheless fails because (i) the very statute that imposes the deadline recognizes that it will not always be met and provides a penalty for noncompliance, which the Association paid; (ii) a brief delay in the issuance of an estoppel letter is not tantamount to the complete deprivation thereof; and (iii) there is, at any rate, insufficient persuasive evidence that the minimal delay in issuing Simhoni a certificate was the result of discriminatory animus. Pest Control. Pest control is not a service that the Association is required to provide but, rather, one that may be provided at the discretion of the Board. During Simhoni's tenure as Board president, apparently at her urging, the Association arranged for a pest control service to treat all of the units for roaches, as a common expense, and the apartments were sprayed on a regular basis. If the exterminator were unable to enter a unit because, e.g., the resident was not at home when he arrived, a locksmith would be summoned to open the door, and the owner would be billed individually for this extra service. After Simhoni and her fellow directors were recalled, the new Board decided, as a cost-control measure, to discontinue the pest control service, allowing the existing contract to expire without renewal. Owners were notified that, during the phaseout, the practice of calling a locksmith would cease. If no one were home when the pest control operator showed up, the unit would not be sprayed, unless the owner had left a key with the Association or made arrangements for someone else to open his door for the exterminator. By this time, Simhoni's principal residence, as mentioned, was in New York. Although she knew that the locksmith option was no longer available, Simhoni failed to take steps to ensure that the pest control operator would have access to her apartment when she wasn't there. Consequently, Simhoni's unit was not sprayed on some (or perhaps any) occasions during the phaseout. Simhoni blames anti-Semitism for the missed pest control visits, but the greater weight of the evidence fails to support this charge. Simhoni was treated the same as everyone else in connection with the pest control service. Moreover, Simhoni was not completely deprived of access to pest control, which would have been provided to her if she had simply made arrangements to permit access to her unit. Short-term Rentals. Article XVII of the Condominium's Declaration of Condominium ("Declaration"), titled Occupancy and Use Restrictions, specifically regulates leases. Section 17.8 of the Declaration provides, among other things, that the Association must approve all leases of units in the Condominium, which leases may not be for a term of less than one year. In other words, the Declaration prohibits short-term, or vacation, rentals, which are typically for periods of days or weeks. Short-term rentals can be lucrative for owners, especially in places such as Miami Beach that attract tourists who might be interested in alternatives to traditional hotel lodgings. On the flip side, however, short-term rental activity is not necessarily welcomed by neighboring residents, who tend to regard transients as being insufficiently invested in preserving the peace, quiet, and tidy appearance of the neighborhood. At the Condominium, the question of whether or not to permit short-term rentals has divided the owners into competing camps. Simhoni is in favor of allowing short-term rentals. Accordingly, while she was Board president, the Association did not enforce the Declaration's prohibition of this activity. (It is possible, but not clear, that the Association was turning a blind eye to short-term rentals even before Simhoni became a director.) This laissez-faire approach did not sit well with everyone; indeed, dissatisfaction with short-term rentals provided at least some of the fuel for the ultimately successful recall effort that cost Simhoni her seat on the Board. After Simhoni and the rest of her Board were removed, the new directors announced their intent to enforce the Declaration's ban on short-term rentals. Simhoni alleges that the crackdown on short-term rentals was an act of religion-based housing discrimination. Her reasoning in this regard is difficult to follow, but the gist of it seems to be that the Association is selectively enforcing the ban so that only Simhoni and other Jewish owners are being forced to stop engaging in short-term rental activity; that the prohibition is having a disparate impact on Jewish owners; or that some owners are harassing Simhoni by making complaints about her to the City of Miami Beach in hopes that the City will impose fines against her for violating municipal restrictions on short-term rentals. The undersigned recognizes that a neutral policy such as the prohibition of short-term rentals conceivably could be enforced in a discriminatory manner, thus giving rise to a meritorious charge under the Act. Here, however, the evidence simply does not support Simhoni's contentions. There is insufficient evidence of disparate impact, disparate treatment, selective enforcement, harassment, or discriminatory animus in connection with the Association's restoration of the short-term rental ban. To the contrary, the greater weight of the evidence establishes that the Association is trying to stop short-term rentals at the Condominium for a perfectly legitimate reason, namely that a majority of the owners want section 17.8 of the Declaration to be given full force and effect. The Feud with Flores. Simhoni identifies Mr. and Ms. Flores as the worst of her antagonists among her neighbors. As advocates of the recall, these two were fierce critics of Simhoni. The Floreses reported Simhoni to the City of Miami Beach for engaging in short-term rentals without the required business tax receipt, in violation of the municipal code. At a code enforcement hearing, Mr. Flores gave Simhoni the finger. None of this, however, amounts to housing discrimination because the Floreses' actions did not completely deprive Simhoni of common facilities or services, even if such actions were motivated by anti-Semitism, which the greater weight of the evidence fails to establish. Indeed, there is no persuasive evidence that the Floreses ever had such control over the Condominium's facilities or services that they could have denied Simhoni access to them. Simhoni argues in her proposed recommended order, apparently for the first time, that the Floreses' conduct created a "hostile housing environment." Putting aside the legal problems with this belatedly raised theory, the Floreses' conduct was not sufficiently severe and pervasive, as a matter of fact, to support a "hostile environment" claim. Nor is there sufficient persuasive evidence in the record to support a finding that the Floreses acted in concert with the Board to harass Simhoni, or that the Board acquiesced to the Floreses' conduct. Roof Repairs. Simhoni alleges that the Association failed to repair the area of the roof over her unit, which she claims was damaged in Hurricane Irma, and that the Association has refused to make certain repairs inside her unit, which she asserts sustained interior water damage as a result of roof leaks. Simhoni asserts that, using Association funds, the Association not only repaired other portions of the roof, but also fixed interior damages similar to hers, for the benefit of non-Jewish owners. The greater weight of the persuasive evidence shows, however, that the roof over Simhoni's unit is not damaged, and that the Association never instructed the roofing contractor not to make needed repairs. Simhoni, in short, was not denied the service of roof repairs. As for the alleged damage to Simhoni's unit, section 7.1 of the Declaration provides that repairs to the interior of a unit are to be performed by the owner at the owner's sole cost and expense. The evidence fails to establish that the interior damage of which Simhoni complains falls outside of her duty to repair. Because this is a housing discrimination case, and not a legal or administrative proceeding to enforce the terms of the Declaration, it is neither necessary, nor would it be appropriate, for the undersigned to adjudicate fully the question of whether the Association is obligated to repair Simhoni's unit as a common expense. Here, it is sufficient to find (and it is found) that section 7.1 of the Declaration affords the Association a legitimate, nonpretextual, nondiscriminatory reason to refuse, as it has, to perform the interior repairs that Simhoni has demanded.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Florida Commission on Human Relations enter a final order finding the Association not liable for housing discrimination and awarding Simhoni no relief. DONE AND ENTERED this 26th day of February, 2019, in Tallahassee, Leon County, Florida. S JOHN G. VAN LANINGHAM Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 26th day of February, 2019.
The Issue Whether Respondent, Bosshardt Property Management, LLC (“Bosshardt”), violated the Fair Housing Act as alleged in the Housing Charge of Discrimination.
Findings Of Fact The following Findings of Fact are made based on the exhibits and testimony offered at the final hearing. Ms. Rabalais is the owner of Lot 198 at Salt Springs Resort, a Florida recreational vehicle condominium established pursuant to chapter 718, Florida Statutes. As an owner of a lot in Salt Springs Resort, she is a member of SSRA, the homeowner’s association. Bosshardt is a Florida corporation providing community association management services and was the Community Association Manager (“CAM”) for SSRA from September 2013 until August 31, 2019. Bosshardt acted as the agent, and at the direction of SSRA, managed the business related to the property, including enforcement of SSRA rules and decisions of the Board of Directors. The CAM is the general point of contact for the association. The CAM would collect on bills and collect payments for assessment and manage the property. Petitioner contends Respondent subjected her to retaliation beginning after the filing of Petitioner’s HUD complaint. In support of her position, Petitioner points to alleged harassment by Ms. Noble, the failure to maintain her lawn and repaint her lot number, and removal of one of her posts from the townhall webpage. Throughout the hearing, Ms. Rabalais raised allegations about incidents that occurred before December 20, 2018, which is 365 days prior to the filing of her Complaint of Discrimination dated December 20, 2019. However, some of the facts will be discussed herein to help supplement and explain the alleged continued discrimination and to provide a more detailed record of Ms. Rabalais’s complaints. Golf Cart Incident Petitioner alleges that Bosshardt was responsible for housing discrimination and harassment arising out of an April 17, 2018, confrontation between Petitioner and Sharon Noble, a lot owner and former SSRA board member. Ms. Rabalais identified Ms. Noble as one of the worst of her neighbors who disliked her. At some point before Ms. Rabalais filed the complaint of discrimination, Ms. Noble and Ms. Rabalais were good friends. While there is a dispute regarding the nature of the relationship, at some point the friendship deteriorated. In 2016, a dispute arose between Ms. Rabalais and Ms. Noble over Ms. Rabalais’s intent to file a lawsuit against SSRA and Ms. Noble’s refusal to assist her. The dispute was referenced in emails between Ms. Rabalais and Ms. Noble and through Ms. Noble’s testimony at hearing. Ms. Noble acknowledged at the hearing that she and Ms. Rabalais were no longer friends. On April 17, 2018, Sharon Noble was driving her golf cart on the road in front of Ms. Rabalais’s lot. She stopped her cart to send a text message to someone. At around the same time, Ms. Rabalais attempted to enter her drive way. Ms. Rabalais was unable to enter the drive way as two carts could not drive on the road side by side. Ms. Rabalais began to blow her horn so Ms. Noble circled around behind Ms. Rabalais’s golf cart to allow her to drive pass her. Ms. Noble then finished her text message and left the area. Ms. Noble credibly testified that she did not attempt to intimidate Ms. Rabalais. Ms. Noble believed the incident was intentional and as a result, she wrote an incident report documenting the incident. Ms. Noble reported the incident to the SSRA. Jane Jorden was in Ms. Rabalais’s golf cart and witnessed the incident. She recalled that Ms. Noble was recording Ms. Rabalais’s lot and blocking the driveway with her golf cart. Ms. Rabalais became upset after Ms. Noble drove her cart behind her. Ms. Rabalais went to the guard gate to report the incident and call the police. Tom, one of the employees working at the guard gate, completed a report regarding the incident. Tom did not testify at the hearing and, thus, his statement about the incident is not relied upon for a finding of fact. It is simply used to supplement the testimony offered at the hearing. Tom did not observe the incident but rather reported that the police were called and took statements from Ms. Noble and Ms. Rabalais. SSRA sent Ms. Rabalais a letter advising her to contact the police if she is concerned about her safety. While Ms. Rabalais believes that she was subjected to discrimination and retaliation by Respondent by way of the actions of Ms. Noble, the fact is that Ms. Noble, and more importantly Bosshardt, was in no position to deny Ms. Rabalais access to common services and facilities under SSRA’s control. To the extent Ms. Rabalais believed her fellow neighbors disliked her or were not nice to her, that activity is not actionable as unlawful housing discrimination. The greater weight of the evidence establishes that the incident with Ms. Noble was a personal dispute that was not due to housing discrimination facilitated at the direction of Bosshardt. Lost Assessment Payment Between July 1, 2018, and October 1, 2018, a quarterly assessment accrued. Ms. Rabalais’s check with a send date of September 28, 2018, was mailed to Bosshardt using an address that was previously known to be Bosshardt’s address. However, the assessment check payment was returned and the label affixed to the envelope indicated that the mail was returned to sender, was not deliverable as addressed, and was unable to be forwarded. In order to qualify as a candidate for a position on the SSRA Board of Directors, all assessments must be paid before a designated date. As a result of the assessment check not being delivered before the deadline to declare candidacy, Ms. Rabalais did not meet the criteria to run for the Board. Ms. Rabalais alleges in her complaint that Bosshardt engaged in a discriminatory act by not accepting her payment so she could not run for the Board of Directors. There is no sufficient evidence to support this allegation. Although there was testimony from Ms. Nelson that there were suspicious circumstances surrounding delivery of the check, the evidence offered at hearing does not demonstrate that Bosshardt engaged in nefarious or discriminatory actions regarding the assessment payment. The greater weight of the evidence, however, established that the check was returned undelivered. Failure to Maintain Property and Paint Lot Number Ms. Rabalais alleged in her Complaint that Respondent failed to maintain her lawn and failed to repaint her lot number as it did for other lot owners. There was no clear indication that the conduct occurred on or after December 20, 2018. Generally, all lot owners received basic services. An exception would be if the lot owner has a “no trespassing” sign on the property. Diane Suchy worked as the designated CAM for SSRA. She testified that maintenance staff were employees of SSRA and worked at the direction of Bosshardt. They maintained common areas and the lawns of individual lot owners. The maintenance team also repaints the lot numbers as needed. Gary Gensberg, the maintenance supervisor, testified that he maintained Ms. Rabalais's lawn and conducted weed maintenance as needed. He also recalled that Ms. Rabalais did not have a large area that required maintenance. Regarding the lot numbers, they would be repainted if it was not visible. Ms. Rabalais's lot number was visible at the time in question. Mr. Gensberg credibly testified that he was never given instructions to not maintain Ms. Rabalais's lot. Despite the maintenance team maintaining Ms. Rabalais property as needed, the evidence established that Ms. Rabalais posted no trespassing signs on her property for an unknown period of time. Furthermore, there was no evidence to support a finding that if Ms. Rabalais’s lawn was not maintained or her lot number was not repainted, it was result of discrimination based on disability or retaliation. Townhall Facebook Group Page Gary Griffith, the Bosshardt president at the time of the allegations alleged in the Complaint, testified about the lot owners’ Facebook group page. Mr. Griffith testified that Bosshardt did not manage the Facebook group page. Rather, Mr. Foster, Brenda Harvey, and other lot owners, were administrators on the account. Thus, Bosshardt made no determination regarding who could post or remove posts from the account. The page had rules for posting including, the exclusion of posts that were argumentative, contained unfounded allegations, or attacked the Board of Directors. On February 4, 2019, Ms. Rabalais posted a message about her experience with litigation with SSRA and Bosshardt. At the end of that message she wrote, “SSRA/Bosshardt has caused a homeowner to kill himself and ruined many owners’ lives ….” The administrators determined the post was unsubstantiated and threatening and failed to comply with the guidelines established for the page. As a result, the post was removed. Based on the evidence offered at hearing, Bosshardt was not involved with removal of Ms. Rabalais’s February 4, 2019, post. Therefore, there was no evidence to establish that Bosshardt discriminated against Ms. Rabalais when her post was removed from the Town Hall page. Expert Testimony Petitioner offered the testimony of Gary Solomon, Ph.D., as an expert regarding HOA syndrome. He works as a professor at the College of Southern Nevada. HOA syndrome is not a recognized clinical disorder, and there are no peer-reviewed articles offered to support Dr. Solomon’s opinion. Despite his purported knowledge about HOA syndrome, he was unable to provide a basis for his conclusions. Dr. Solomon had not read the SSRA rules or policies and procedures; and he had no understanding of Florida condominium law. He was also unable to provide an opinion regarding whether Ms. Rabalais had suffered from HOA syndrome. Based on the evidence offered at hearing, Dr. Solomon was not accepted as an expert in this matter.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Florida Commission on Human Relations enter a final order dismissing the Petition for Relief. DONE AND ENTERED this 5th day of April, 2021, in Tallahassee, Leon County, Florida. S YOLONDA Y. GREEN Administrative Law Judge 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 5th day of April, 2021. COPIES FURNISHED: Tammy S. Barton, Agency Clerk Florida Commission on Human Relations 4075 Esplanade Way, Room 110 Tallahassee, Florida 32399-7020 John McDonough, Esquire Meier, Bonner, Muszynski, O'Dell & Harvey Suite 2000 260 Wekiva Springs Road Longwood, Florida 32779 Scarlett Rabalais Post Office Box 5224 Salt Springs, Florida 32134 Cheyanne Costilla, General Counsel Florida Commission on Human Relations 4075 Esplanade Way, Room 110 Tallahassee, Florida 32399-7020
The Issue Whether the Florida Commission on Human Relations and the Division of Administrative Hearings have jurisdiction pursuant to Section 760.34, Florida Statutes, to consider Petitioner's Petition for Relief; and Whether Petitioner timely filed his Petition for Relief with the Florida Commission on Human Relations.
Findings Of Fact Based on the oral and documentary evidence presented at the final hearing, the following Findings of Facts are made: Petitioner contracted to purchase a condominium, "unit 206 in Building 425 at Serravella at Spring Valley" from Respondent. For reasons not relevant to the issues presented for determination, closing was deferred; and on December 22, 2006, Petitioner signed and submitted an "Addendum to Contract" to Respondent that sought "to revise contract closing date to 2/28/2007." Sometime in late December 2006, a telephone conversation took place among Steve Myers, a realtor for Serra Villa, Petitioner, and Barefield. Barefield was in Alabama, and Myers and Petitioner were in Florida on a speakerphone. Barefield advised Petitioner that the addendum would not be accepted by Respondent. Barefield and Petitioner did not speak to each other after this December telephone conversation. All communication was accomplished through third parties. Subsequent to Respondent's refusal to accept Petitioner's addendum, there is lengthy correspondence and litigation involving the parties. For some time after Respondent rejected Petitioner's addendum, Petitioner desired to purchase the condominium and, apparently, indicated so in various offers communicated by his attorneys to Respondent. If an unlawful discriminatory act occurred, the determination of which is not an issue presented for determination, the act occurred in December 2006. Petitioner's Housing Discrimination Complaint dated September 17, 2008, and signed by Petitioner on September 22, 2008, was filed with United States Department of Housing and Urban Development more than one year after the alleged act of discrimination. On November 6, 2008, Petitioner sent a four-page fax transmission to Lisa Sutherland, a FCHR employee, which included a Petition for Relief. On November 13, 2008, Petitioner sent a second fax transmission of seven pages to Lisa Sutherland. Apparently, this second transmission included a Petition for Relief. On December 4, 2008, Petitioner sent a third fax transmission addressed to "Mrs. Crawford/Lisa Sutherland." While the fax transmission cover sheet is dated "11-13-08," the report of transmission shows that this 11-page transmission was sent on "12/04 15:24." The Petition for Relief forwarded by FCHR to DOAH was date-stamped "2008 DEC-4 PM 3:25."
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that FCHR dismiss the Petition for Relief as being time-barred as a result of the late filing of Petitioner, Ricardo Vega's, Housing Discrimination Complaint. DONE AND ENTERED this 27th day of April, 2009, in Tallahassee, Leon County, Florida. S JEFF B. CLARK 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 27th day of April, 2009. COPIES FURNISHED: Denise Crawford, Agency Clerk Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301 Larry Kranert, General Counsel Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301 Richard S. Taylor, Jr., Esquire 531 Dog Track Road Longwood, Florida 32750-6547 Barbara Billiot-Stage, Esquire Law Offices of Barbara Billiot-Stage, PA 5401 South Kirkman Road, Suite 310 Orlando, Florida 32819
The Issue Whether Petitioner was the subject of unlawful discrimination in the provision of services or facilities in connection with his dwelling based on his handicap, and whether Respondent refused to make reasonable accommodations in its rules, policies, practices, or services necessary to afford Petitioner equal opportunity to use and enjoy a dwelling in violation of the Florida Fair Housing Act, chapter 760, Part II, Florida Statutes.
Findings Of Fact Petitioner is a homeowner in the Royal Highlands community in Leesburg, Florida, and has been a member of the RHPOA since moving into his home in April 2001.1/ From September 2010, through February 2011, Petitioner served on the RHPOA Board of Directors. Respondent is a property owners? association, membership in which is limited to property owners in the Royal Highlands residential community in Leesburg, Florida. There are 1,499 homes in the Royal Highlands community. The community is divided into twelve “districts.” Respondent?s Board of Directors (Board) consists of one representative from each of the twelve districts. Meetings of the Board are held monthly, except for August when community activities are typically sparsely attended. Leland Management is a community association management company that provides management services to the RHPOA along with other community associations. Petitioner alleged that he suffers from a disability because he walks with the use of a cane, and that his ability to speak is impaired as a lingering effect of a 2004 neck surgery that involved insertion of an endotracheal tube during and immediately after the procedure. During the month of February 2011, Petitioner was running for reelection to the RHPOA Board of Directors. On the day of the election, and prior to the vote of the membership, Petitioner appeared at the RHPOA meeting to make a final statement and thank his supporters. He walked to the front of the community meeting room, known as the Great Hall, but did not want to take the steps up to the elevated stage for fear that he might lose his balance and fall off. Petitioner was given a microphone and he thanked his supporters from the base of the stage. Afterwards, he walked back to his seat. Petitioner was not reelected to the Board, but continued to attend meetings as a member of the RHPOA. A monthly meeting of the RHPOA was held on July 13, 2011. The agenda included four items, including an item that would authorize the Board of Directors to retain legal counsel in the event a threatened lawsuit was filed against Bob Fitzpatrick, who was then the president of the RHPOA. The nature of the potential lawsuit was not in evidence, except that it involved a complaint filed with the Lake County Sheriff by Petitioner against Mr. Fitzpatrick. Mr. Fitzpatrick recused himself from the vote, since any legal fees would be expended on his behalf as president. John Banahan, then the vice-president of the RHPOA, acted as chair during the consideration and vote on the agenda item. The RHPOA allows members to speak regarding any issue on the agenda. Members must sign a “Sign-Up Sheet to Speak to Agenda Item” for each item on which they wish to be heard. Members are allowed three minutes to speak on each issue for which they have signed up. The minutes regarding a particular agenda item typically reflect only whether a motion was made, who seconded the motion, who voted, and the results of the vote. When there is a significant amount of discussion, the minutes may, as did the minutes for the legal counsel agenda item of the July 13, 2011 meeting, include something no more detailed than “[m]uch discussion, residents and Board Members.” Neither the comments of property owners nor the discussions of the Board members as to an agenda item are recorded in the minutes of meetings of the RHPOA. When Petitioner was on the Board, he would routinely take notes at meetings, and then destroy the notes after the meeting was concluded. That was consistent with the practice described by other testifying members of the Board. Petitioner attended the July 13, 2011 meeting of the RHPOA with his wife. He entered the meeting room on his own power and without difficulty, though he used a cane, signed up at the door to speak on the agenda item regarding the Board?s proposal to retain legal counsel, and took a seat at one of the tables. Petitioner made no request for assistance of any kind at the time he signed up to speak. Stacey Peach attended the July 13, 2012 meeting as a representative of Leland Management. Ms. Peach periodically attends meetings of the various associations served by Leland Management. Her attendance at the July 13, 2012 RHPOA meeting was coincidental. Ms. Peach was seated at a table in front of Petitioner. When it was his turn to speak on the legal counsel agenda item, Petitioner was recognized by Mr. Banahan. Petitioner announced, without assistance of a microphone, that he could not go to the podium. Mr. Banahan noted “confusion” in the audience, but did not realize what was going on with regard to Petitioner?s request to speak on the agenda item, though he understood that Petitioner was unable to come to the podium at the front of the room. Mr. Banahan testified convincingly that he had no problem with Petitioner speaking from his seat. He was aware of at least two other instances in which a microphone was taken to an attendee of a Board meeting so as to allow them to speak while seated, one of which occurred when he was a member of the Board. Ms. Peach heard Petitioner state that he was not able to go to the podium to offer his comments. She thereupon got a portable microphone and handed it to Petitioner. Petitioner asked Ms. Peach if she would speak on his behalf. Petitioner had not spoken with Ms. Peach earlier, and his request caught her off guard. Not knowing what Petitioner wanted her to say, she declined to speak for him. Her refusal was based on surprise and uncertainty, and not on any discriminatory motive. After Ms. Peach declined to speak on Petitioner?s behalf, Petitioner took the microphone provided to him, and offered his comments on the agenda item from his seat. Petitioner testified that as long as the microphone was working, he saw no reason why he would not have been heard. Except for Ms. Hoffman, whose testimony is discussed below, the witnesses who were asked indicated they had no problem hearing what Petitioner had to say, though none could remember the substance. Petitioner testified that he made a specific request of Mr. Banahan to allow someone to speak on his behalf, and that Mr. Banahan refused the request. Petitioner?s testimony was contradicted by Ms. Peach, who was directly involved in the incident; Mr. Norden, who was seated next to Petitioner; Mr. Reichel, who attended the meeting as a Board member; and Mr. Banahan. The greater weight of the evidence establishes that no request for another person to speak on Petitioner?s behalf was made to any member of the Board, and that the only such request was made, without prior notice, to Ms. Peach. Petitioner?s claim that his request was denied by Mr. Banahan was supported only by the testimony of Ms. Hoffman. However, Ms. Hoffman?s testimony was undermined by the fact that her overall account of the incident differed in several significant and material respects from the testimony of other witnesses, including that of Petitioner. For example, Ms. Hoffman indicated that Ms. Peach was not asked to speak for Petitioner, that Petitioner asked someone seated next to him to speak, that Petitioner had difficulty reading his notes, that Petitioner was unable to complete his comments, and that Petitioner?s speech was, at best, marginal. Whether Ms. Hoffman?s description of events was the result of a poor vantage point or of poor memory, it is not credited. Mr. Banahan testified that if Petitioner had been unable to speak, he would have allowed someone to read a statement on his behalf.2/ However, Mr. Banahan testified that he was not asked to make such an accommodation, and that Petitioner was able to comment on the agenda item from his seat. Mr. Banahan?s testimony is credible and is accepted. Mr. Banahan testified that he has known Petitioner from his service as a member of the Board and never perceived him as having a handicap. Mr. Banahan knew that Petitioner walked with a cane. However, Mr. Banahan?s wife walks with a cane and he does not consider her to have a handicap. Petitioner provided Respondent with no medical records, letters from his physicians, or competent evidence of any kind to establish that he had a disability or that he required an accommodation in order to participate in the July 13, 2011 meeting, nor did he produce any such evidence at the hearing. At the hearing, based upon the undersigned's observation, Petitioner had little or no difficulty walking or speaking. Petitioner failed to prove that he has a physical impairment that substantially limits one or more major life activities, or that he was regarded by any director or member of the RHPOA as having any such physical impairment. To the contrary, the greater weight of the evidence demonstrates that Petitioner does not suffer from a handicap as defined in the Fair Housing Act. Ultimate Findings of Fact There was no competent, substantial evidence adduced at the hearing that Petitioner suffered from a handicap that hindered his ability to actively participate in the July 13, 2011 RHPOA meeting. There was no competent, substantial evidence adduced at the hearing that Respondent knew of any alleged handicap or regarded Petitioner as being handicapped. There was no competent, substantial evidence adduced at the hearing that Respondent failed to reasonably accommodate Petitioner when he asserted that he would not be able to walk to the podium. The evidence adduced at the hearing established that Petitioner made no direct request to any member of the RHPOA Board of Directors to allow someone to speak on his behalf. The evidence adduced at the hearing established that Petitioner was able to clearly state his comments on the legal representation agenda item by using the portable microphone provided to him by Ms. Peach. The evidence did not establish that Petitioner was the subject of unlawful discrimination in the provision of services or facilities in connection with his dwelling based on his handicap, or that Respondent refused to make reasonable accommodations in its rules, policies, practices or services necessary to afford Petitioner equal opportunity to use and enjoy his dwelling.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Florida Commission on Human Relations issue a final order dismissing the Petition for Relief filed in FCHR No. 2012H0158. DONE AND ENTERED this 18th day of October, 2012, in Tallahassee, Leon County, Florida. S E. GARY EARLY Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 18th day of October, 2012.
The Issue The issue in this case is whether Respondent unlawfully discriminated against Petitioner because of handicap in violation of the Florida Fair Housing Act.
Findings Of Fact At all relevant times, Petitioner Shelley M. Wright ("Wright") was a graduate student at Florida International University ("FIU") in Miami, Florida. Wright has a physical disability that affects her mobility, and, as a result, she uses a wheelchair or scooter to get around. There is no dispute that Wright falls within a class of persons protected against discrimination under the Florida Fair Housing Act ("FFHA"). Respondent Servitas Management Group, LLC ("SMG"), manages Bayview Student Living ("Bayview"), a privately owned student housing community located on FIU's campus. Bayview's owner, NCCD — Biscayne Properties, LLC, leases (from FIU) the real estate on which the project is situated. Bayview is a recently built apartment complex, which first opened its doors to students for the 2016-2017 school year. On November 20, 2015, Wright submitted a rental application for a single occupancy efficiency apartment in Bayview, fitted out for residents with disabilities. She was charged an application fee of $100.00, as were all applicants, plus a "convenience fee" of $6.45. Much later, Wright would request that SMG refund the application fee, and SMG would deny her request, although it would give her a credit of $6.45 to erase the convenience fee on the grounds that it had been charged in error. Wright complains that this transaction was tainted with unlawful discrimination, but there is no evidence of such, and thus the fees will not be discussed further. Wright's application was approved, and, accordingly, she soon executed a Student Housing Lease Contract ("First Lease") for a term commencing on August 20, 2016, and ending on July 31, 2017. The First Lease stated that her rent would be $1,153.00 per month, and that the total rent for the lease term would be $12,683.00. Because Wright was one of the first students to sign a lease, she won some incentives, namely $500.00 in Visa gift cards and an iPad Pro. The First Lease provided that she would receive a $200.00 gift card upon lease execution and the balance of $300.00 upon moving in. As it happened, Wright did not receive the gift cards in two installments, but instead accepted five cards worth $500.00, in the aggregate, on August 20, 2016. There were two reasons for this. One was that SMG required lease holders to appear in-person to take possession of the gift cards and sign a receipt acknowledging delivery. Wright was unable (or unwilling) to travel to SMG's office until she moved to Miami in August 2016 to attend FIU. The other was that SMG decided not to use gift cards as the means of paying this particular incentive after integrating its rent collection operation with FIU's student accounts. Instead, SMG would issue a credit to the lease holders' student accounts in the amount of $500.00. Wright, however, insisted upon the gift cards, and so she was given them rather than the $500.00 credit. Wright has alleged that the untimely (or inconvenient) delivery of the gift cards constituted unlawful discrimination, but the evidence fails to sustain the allegation, which merits no further discussion. In May 2016, SMG asked Wright (and all other Bayview lease holders) to sign an amended lease. The revised lease made several changes that SMG called "improvements," most of which stemmed from SMG's entering into a closer working relationship with FIU. (One such change was the aforementioned substitution of a $500.00 credit for gift cards.) The amended lease, however, specified that Wright's total rent for the term would be $13,836.00——an increase of $1,153.00 over the amount stated in the First Lease. The explanation was that, in the First Lease, the total rent had been calculated by multiplying the monthly installment ($1,153.00) by 11, which did not account for the 12 days in August 2016 included in the lease term. SMG claimed that the intent all along had been to charge 12 monthly installments of $1,153.00 without proration (even though the tenant would not have possession of the premises for a full 12 months) and thus that the First Lease had erroneously shown the total rent as $12,683.00. As SMG saw it, the revised lease simply fixed this mistake. Wright executed the amended lease on or about May 10, 2016 (the "Second Lease"). Wright alleges that this rent "increase" was the product of unlawful discrimination, retaliation, or both. There is, however, no persuasive evidence supporting this allegation. The same rental amount was charged to all occupants of the efficiency apartments, regardless of their disabilities or lack thereof, and each of them signed the same amended lease document that Wright executed. To be sure, Wright had reason to be upset about SMG's revision of the total rent amount, which was not an improvement from her standpoint, and perhaps she had (or has) legal or equitable remedies available for breach of lease. But this administrative proceeding is not the forum for redressing such wrongs (if any). Relatedly, some tenants received a rent reduction through the amended leases SMG presented in May 2016, because the rates were reduced therein for two- and four-bedroom apartments. As was made clear at the time, however, rates were not reduced on the one-bedroom studios due to their popularity. Wright alleges that she subsequently requested an "accommodation" in the form of a rent reduction, which she argues was necessary because she leased a more expensive studio apartment, not by choice, but of necessity (since only the one- bedroom unit met her needs in light of her disabilities). This claim fails because allowing Wright to pay less for her apartment than every other tenant is charged for the same type of apartment would amount to preferential treatment, which the law does not require. Wright makes two claims of alleged discrimination that, unlike her other charges, are facially plausible. She asserts that the handicapped parking spaces at Bayview are unreasonably far away for her, given her limited mobility. She further asserts that the main entrance doors (and others in the building) do not afford two-way automatic entry, and that as a result, she has difficulty exiting through these doors. The undersigned believes it is possible, even likely, that the refusal to offer Wright a reasonable and necessary accommodation with regard to the alleged parking situation, her problems with ingress and egress, or both, if properly requested, might afford grounds for relief under the FFHA. The shortcoming in Wright's current case is the absence of persuasive proof that she ever presented an actual request for such an accommodation, explaining the necessity thereof, for SMG's consideration. There is evidence suggesting that Wright complained about the parking and the doors, perhaps even to SMG employees, but a gripe, without more, is not equivalent to a request for reasonable accommodation. Determinations of Ultimate Fact There is no persuasive evidence that any of SMG's decisions concerning, or actions affecting, Wright, directly or indirectly, were motivated in any way by discriminatory animus directed toward Wright. There is no persuasive evidence that SMG denied a request of Wright's for a reasonable accommodation at Bayview. In sum, there is no competent, persuasive evidence in the record, direct or circumstantial, upon which a finding of any sort of unlawful housing discrimination could be made. Ultimately, therefore, it is determined that SMG did not commit any prohibited act.
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 SMG not liable for housing discrimination and awarding Wright no relief. DONE AND ENTERED this 27th day of September, 2017, in Tallahassee, Leon County, Florida. S JOHN G. VAN LANINGHAM 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 27th day of September, 2017.
