The Issue What affirmative relief, if any, should be granted petitioner for an unlawful (sexually discriminatory) employment practice engaged in by respondent, her employer? Background On March 8, 1983, after probable cause was found and efforts to conciliate were unsuccessful, Barbara S. Dunford ("petitioner") filed with the Florida Commission on Human Relations ("Commission") a petition for relief from an unlawful employment practice allegedly engaged in by respondent Holiday Inns, Inc. ("Holiday Inn") , her former employer. On March 18, 1983, the Commission mailed a notice to Holiday Inn notifying it that the petition had been filed. The notice referred to the Commission's procedural rules and advised that an answer to the petition must be filed within 20 days of the date the notice was mailed. No answer to the petition has been filed. On March 18, 1983, this case was referred to the Division of Administrative Hearings for assignment of a hearing officer to conduct Section 120.57 proceedings. Hearing was set by Hearing Officer Marvin Chavis for March 4, 1983, then--on petitioner's unopposed motion, reset for July 20, 1983. Subsequently, Holiday Inn filed an unopposed motion for continuance, and hearing was reset for October 10, 1983. In October, both parties requested a continuance to allow for further settlement negotiations. The case was thus continued, again, and reset for December 27, 1983. At hearing on December 27, 1983, petitioner failed to appear, due to an apparent misunderstanding. The hearing was then continued and, ultimately, reset for July 25, 1984. In the meantime, Hearing Officer Chavis ended his employment with the Division of Administrative Hearings, and this case was transferred to the undersigned. At the outset of hearing on July 25, 1984, Holiday Inn stipulated that respondent was terminated from her employment in November, 1981, and that her termination constituted an unlawful employment practice under the Human Rights Act of 1977, now codified as Sections 760.01-760.10, Florida Statutes (1983). Thus the sole issue for the determination is what affirmative relief, if any, petitioner is entitled to under the statute. Both parties presented evidence on this issue. Petitioner testified in her own behalf and Petitioner's Exhibit No. 1 was received into evidence. Holiday Inn presented the testimony of Tom Davis, who, in 1981 was the Director of Human Resources for Holiday Inn's Orlando Region. No transcript of the hearing has been filed. The parties filed proposed findings of fact by August 28, 1984. Those proposed findings incorporated in this recommended order are adopted; otherwise they are rejected as unsupported by the weight of the evidence or as unnecessary to resolution of the issue presented. Based on the evidence adduced at hearing, the following facts are determined:
Findings Of Fact Underlying Facts of Unlawful Employment Practice Holiday Inn stipulates that it unlawfully terminated petitioner on November 17, 1981, and that her termination constituted an unlawful employment practice under the Human Rights Act of 1977. In effect, Holiday Inn has admitted the truth of the underlying material allegations of fact contained in the Petition for Relief filed by petitioner in March, 1983. This same result would have been compelled in any event. Commission Rule 22T-9.08(4), Florida Administrative Code, requires the filing of an answer within 20 days of service of the petition. Holiday Inn failed to file an answer to the petition. By operation of this rule, failure to file a timely answer is "deemed to constitute an admission to the material facts alleged in the petition." 22T-9.08(4)(d), Fla.Admin.Code. Those allegations of material fact, contained in the petition for relief, now deemed, admitted, are set forth below: Complainant [petitioner] began employment in the position of Maid with Respondent [Holiday Inn] in May, 1981 [at the Holiday Inn at 626 Lee Road and I-4, Orlando, Florida]. Mr. Stephen Holmes began employment in the position of Houseman, in July, 1981. Both Complainant and Mr. Holmes were supervised by Ms. Helen Gilboy, Respondent's Executive Housekeeper. Ms. Gilboy was delegated the authority to take disciplinary action against her sub- ordinates. Complainant reported to Ms. Gilboy that Mr. Holmes was sexually [sic] harassing her by continuously making unwelcome sexual advances, placing his hands on her, showing her sexually lews [sic] pictures, and telling her sexually offensive jokes. No action was taken by Respondent or its agent, Ms. Gilboy, prior to Complainant's termination, to investigate these allegations or to ensure in the future that the work environment would be free from sexual harassment. Two co-workers of Complainant, Ms. Mary Morse and Ms. Brenda Foster, substantiated Complainant's allegations regarding sexual harassment by Mr. Holmes during working hours, and Ms. Morse substantiated Complainant's state- ment that Complainant reported such incidents to Ms. Gilboy but that no corrective action was taken. On November 15, 1981, Complainant requested that she be permitted to leave work early because she was upset by Mr. Holmes' sexually offensive conduct towards her. The assistant Housekeeper, Ms. Terri Longhorn, granted Complainant's request to leave work early. complainant was not scheduled to work on November 16, 1981. When Complainant reported for work on November 17, 1981, Ms. Gilboy informed Complainant [sic] that she voluntarily terminated her employment when she left work early on November 15, 1981, without permission. Respondent's policy provides that an employee who is absent three consecutive days without permission is subject to immediate dismissal for cause. According to Respondent's policy, even if Complainant left work early without permission Complainant's actions would not provide sufficient cause for dismissal. Complainant would not have left work early on November 15, 1981, but for the fact that Mr. Holmes had created a hostile working environment for Complainant and Complainant's requests for corrective action went unheeded by Respondent. Complainant's actions in leaving work early were reasonable under the circumstances. (Petition for Relief, dated March 8, 1983) II Affirmative Relief In November and December, 1981, Tom Davis, in his capacity as Regional (Orlando) Human Resources Director for Holiday Inn, investigated petitioner's complaint of sexual discrimination and wrongful termination. On or about December 7, 1981, and January 5 or 9, 1982, he met petitioner at his office to discuss her accusations. Holiday Inn contends that, on both occasions, Mr. Davis--based on his existing knowledge of petitioner's work environment or his investigation of her allegations--admitted the validity of her complaint and offered to reinstate her to her position, pay her full back pay and benefits, and discipline the two offending male employees. Holiday Inn asserts that she, on both occasions, rejected the offer. This contention is rejected as self serving, uncorroborated, and inconsistent with the tone and content of Mr. Davis' letter to the petitioner, dated January 8, 1982. In that letter, Mr. Davis states that he had investigated petitioner's complaint and contacted the witnesses whom she had listed. His letter is defensive in tone, admits to no wrongdoing by Holiday Inn or its employees, and conveys no offer of restatement. He concludes, in effect, that her recollection of the alleged incidents is uncorroborated and not supported by his findings. He downplays the seriousness of the alleged improprieties but indicates that those employees involved were disciplined for their behavior. His assertion--in the letter-- that petitioner's complaint was, essentially, unfounded, conflicts with his later testimony at hearing that, when petitioner filed her initial complaint, he suspected and later confirmed that her allegations were true. Petitioner filed her complaint of sex discrimination on April 15, 1982. On June 17, 1982, petitioner, Mr. Davis, and Alvin Frasier, an employee of the Commission on Human Relations, met at Mr. Frasier's Orlando office to discuss petitioner's complaint. At that meeting, Mr. Davis offered to reinstate petitioner to her former position, with full back pay and benefits. Petitioner rejected the offer, insisting that the offending employees be fired. Her insistence was based on her desire to retaliate against them and see that they "were punished." Mr. Davis indicated to him that both male employees had been reprimanded and put on "final notice," which meant that if either employee committed a similar offense, he would be fired. (One of them, Steve Holmes, subsequently committed a similar offense and was fired.) Under these circumstances, the disciplinary action taken against the two employees was reasonable and constituted a good faith attempt by Holiday Inn to prevent the reoccurrence of such infractions. Mr. Davis' offer of reinstatement is admitted by petitioner. Between November 17, 1981 (when petitioner was wrongfully terminated) through June 17, 1982 (when the offer of reinstatement and back pay was made) petitioner attempted to secure and hold other employment. During that period, she received $750.00 in unemployment compensation and earned $100.00 delivering trucks for Don Mealey Chevrolet, an automobile dealer in Orlando. At the time she was fired by Holiday Inn, she was receiving a salary of $140.00 a week based on a 40-hour work week. Accordingly, between November 17, 1981, and June 17, 1982, petitioner suffered a net loss of salary--due to her unlawful termination- -of $3,070.00. (28 weeks X $140.00 $3,920.00; $3,920.00 - $850.00 $3,070.00) Petitioner is obligated to pay her attorney, Howard L. Garrett, a reasonable attorney's fee for his representation throughout this proceeding.
Recommendation Based on the foregoing, it is RECOMMENDED: That the Commission on Human Relations issue an order requiring Holiday Inn Offer to reinstate petitioner to her former or a substantially equivalent position; Pay petitioner $3,070.00 in back pay; Pay petitioner a reasonable attorney's fee, the amount to be determined in supplementary proceedings; Cease end desist from again engaging in unlawful employment practices of this nature. DONE and ENTERED this 21st day of September, 1984, in Tallahassee, Florida. R. L. CALEEN, JR. Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 323,01 (904) 88-9675 Filed with the Clerk of the Division of Administrative Hearings this 21st day of September, 1984.
The Issue Whether Respondent, Eve Management, Inc./KA and KM Development, Inc., denied Petitioners full and equal enjoyment of the goods and services offered at its place of public accommodation, in violation of sections 509.092 and 760.08, Florida Statutes (2011).1/
Findings Of Fact Parties and Jurisdiction Petitioners are African Americans who reside in the State of Ohio, who visited Orlando, Florida, in June 2011 and stayed at Lake Eve Resort beginning on June 21, 2011. Respondent, Eve Management, Inc./KA and KM Development, Inc., was the owner of Lake Eve Resort, located at 12388 International Drive, Orlando, Florida, at all times relevant hereto. Each Petitioner filed a Complaint of Discrimination with the Commission as follows: Jessica Austin – July 20, 2012 Denise Austin – July 21, 2012 Tracie Austin – January 18, 2013 (Amended Complaint)2/ Bonlydia Jones – July 11, 2012 James Austin – July 31, 2012 Dionne Harrington – August 1, 2012 Esther Hall – January 28, 2013 (Amended Complaint)3/ Boniris McNeal – March 27, 2013 Summer McNeal – March 27, 2013 Derek McNeal – March 27, 2013 In each Complaint, the Petitioner alleges that the most recent date of discrimination is June 22, 2011. On June 21, 2012, Petitioners Esther Hall, Summer McNeal, Boniris McNeal, Derek McNeal, and Dionne Harrington, each filed a Technical Assistance Questionnaire (TAQ) with the Commission. Each TAQ is signed by the named Petitioner, is stamped received by the Commission on June 21, 2012, and contains the specific facts alleged to be an act of discrimination in the provision of public accommodation by Respondent. Allegations of Discrimination On or about May 23, 2011, Petitioner, Boniris McNeal, entered into a Standard Group Contract with Lake Eve Resort (the Resort) to reserve 15 Resort rooms for five nights at a discounted group rate beginning June 21, 2011.4/ The rooms were to accommodate approximately 55 members of her extended family on the occasion of the Boss/Williams/Harris family reunion. Petitioners traveled from Ohio to Orlando via charter bus, arriving at the Resort on the evening of June 21, 2011. Erika Bell, a relative of Petitioners, drove a rental car from Ohio to Orlando. She did not arrive in Orlando until June 22, 2011. Petitioners checked in to the Resort without incident. However, one family member, John Harris, was informed that the three-bedroom suite he had reserved for his family was not available due to a mistake in reservations. He was offered two two-bedroom suites to accommodate his family. Petitioner, Boniris McNeal, dined off-property on the evening of June 21, 2011, to celebrate her wedding anniversary. Petitioner, Bonlydia Jones, left the Resort property shortly after check-in to shop for groceries. Petitioners, Dionne Harrington and Esther Hall, were very tired after the long bus trip and went to bed early on June 21, 2011. Petitioner, Denise Austin, arrived in Orlando with the family on June 21, 2011. On the morning of June 22, 2011, Ms. Jones received a call from Mr. Harris, informing her that the Resort management wanted to speak with them about his room. That morning, Ms. Jones and Mr. Harris met with two members of Resort management, Amanda Simon and Marie Silbe. Mr. Harris was informed that he needed to change rooms to a three-bedroom suite, the accommodation he had reserved, which had become available. Mr. Harris disputed that he had to change rooms and argued that he was told at check-in the prior evening he would not have to move from the two two-bedroom suites he was offered when his preferred three-bedroom suite was not available. After some discussion, it was agreed that Mr. Harris would move his family to an available three-bedroom suite. The Resort provided an employee to assist with the move. Following the meeting with management, Ms. Jones went to the pool, along with Ms. Harrington and other members of the family. After a period of time which was not established at hearing, Mary Hall, one of Ms. Harrington’s relatives, came to the pool and informed Ms. Harrington that the family was being evicted from the Resort. Ms. Harrington left the pool and entered the lobby, where she observed police officers and members of Resort management. She approached a member of management and was informed that she and her family were being evicted from the Resort and must be off the property within an hour. Ms. Harrington left the lobby and returned to her room, where her mother, Ms. Hall was sleeping. Ms. Harrington informed Ms. Hall that the family was being evicted from the Resort and instructed Ms. Hall to pack her belongings. Ms. Jones’ cousin, Denise Strickland, came to the pool and informed her that the family was being evicted from the Resort. Ms. Jones entered the lobby where she was approached by a member of management, who introduced herself as the general manager and informed her that the family was being evicted. Ms. Jones requested a reason, but was informed by a police officer that the owners did not have to give a reason. In the lobby, Ms. Jones observed that an African- American male was stopped by police and asked whether he was with the Boss/Williams/Harris reunion. He was not a family member. Ms. Jones observed that no Caucasian guests were approached in the lobby by management or the police. Ms. Austin was on a trolley to lunch off-property on June 22, 2011, when she received a call from her cousin, Ms. Strickland. Ms. Strickland informed Ms. Austin that the family was being evicted from the Resort and she needed to return to pack her things. Ms. Austin returned to the property, where she was escorted to her room by a security guard and asked to pack her belongings. Ms. McNeal was en route to rent a car and buy groceries on June 22, 2011, when she received a call from Ms. Strickland informing her that the family was being evicted and that she needed to return to the Resort to pack her belongings. Upon her arrival at the Resort, Ms. McNeal entered the lobby. There, she was approached by Resort staff, asked whether she was with the Boss/Williams/Harris reunion, and informed that the Resort could not honor the reservations and the family was being evicted. Ms. McNeal observed that Caucasian guests entering the lobby were not approached by either the police or Resort management. Ms. McNeal was escorted to her room by both a police officer and a member of management and instructed to be out of the room within 30 minutes. Ms. McNeal inquired why they were being evicted, but was told by a police officer that the Resort was not required to give a reason. Erika Bell received a call from her mother, Ms. Austin, while en route to the Resort on June 22, 2011. Ms. Austin informed Ms. Bell that the family was being evicted from the Resort and asked her to call the Resort and cancel her reservation. Respondent gave no reason for evicting Petitioners from the property. Respondent refunded Petitioners’ money.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Florida Commission on Human Relations issue a final order: Finding that Respondent, Eve Management, Inc./KA and KM Development, Inc., committed an act of public accommodation discrimination in violation of sections 509.092 and 760.08, Florida Statutes (2011), against Petitioners Jessica Austin, Denise Austin, Tracie Austin, James Austin, Bonlydia Jones, Esther Hall, Boniris McNeal, Derek McNeal, Summer McNeal, and Dionne Harrington; and Prohibiting any future acts of discrimination by Respondent. DONE AND ENTERED this 28th day of May, 2014, in Tallahassee, Leon County, Florida. S SUZANNE VAN WYK Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 28th day of May, 2014.
The Issue The issues in this case are, one, whether Respondent unlawfully discriminated against Petitioner on the basis of her alleged handicap in violation of the Florida Fair Housing Act; and, two, whether Respondent subjected Petitioner to acts of coercion or retaliation as a result of Petitioner's exercise, or attempted exercise, of a protected housing right.
Findings Of Fact Petitioner Maria Thornhill ("Thornhill") owns and lives in a unit in the Admiral Farragut Condominium Apartments. Respondent Admiral Farragut Condominium Association, Inc. ("AFCA"), manages the property of which Thornhill's condominium is a part. This case continues a dispute between Thornhill and AFCA which began in 1997, when Thornhill——without first securing AFCA's permission——installed three wooden steps leading from her rear balcony down to a patio located about 30 inches below. AFCA disapproved of the steps and directed Thornhill to remove them, which was done long ago. In the past, Thornhill has alleged, among other things, that AFCA and its individual directors unlawfully discriminated against her in denying her many requests to reinstall the steps, which she claims are needed as a reasonable accommodation for her handicap.2 Consequently, the parties have been pitted against each other for years in one legal proceeding after another, in various forums including DOAH. Thornhill has lost many battles in this protracted litigation——and consequently been ordered to pay tens of thousands of dollars in sanctions, court costs, and attorney's fees. Still, she presses on. In this case, Thornhill argues, as she has for more than a decade, that she needs to attach steps to her rear balcony because she is physically unable to traverse the 30 inches which separate the balcony from the ground and hence would be trapped if a fire were to block both of the unit's two doors to the outside. Not for the first time, Thornhill alleges here that AFCA discriminated against her on the basis of handicap when it denied her request(s), the most recent of which was made in January 2004, for approval of the steps. In addition to her claim involving the steps, Thornhill alleges that AFCA has discriminated or retaliated against her, in some unspecified way(s), in connection with a boat slip, which she is, evidently, "next in line" to rent, once the lease expires under which another unit owner currently enjoys the right to use the slip. Finally, Thornhill contends that, in its efforts to collect the various money judgments it has been awarded, AFCA has retaliated against her unlawfully. Determinations of Ultimate Fact With regard to the steps, Thornhill presented no evidence suggesting that such a modification is reasonable, nor any proof that installation of such steps is necessary to ameliorate the effects of her particular handicap. There is no evidence that any of AFCA's decisions concerning the boat slip were motivated in any way by discriminatory animus directed toward Thornhill. There is likewise no evidence that AFCA ever undertook to execute or otherwise enforce the judgments it has obtained against Thornhill because of discriminatory animus. In sum, there is not a shred of competent, persuasive evidence in the record, direct or circumstantial, upon which a finding of any sort of unlawful housing discrimination, coercion, or retaliation could possibly be made. Ultimately, therefore, it is determined that AFCA did not commit any prohibited act.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the FCHR enter a final order finding AFCA not liable for housing discrimination and awarding Thornhill no relief. DONE AND ENTERED this 20th day of January, 2010, in Tallahassee, Leon County, Florida. JOHN G. VAN LANINGHAM Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 20th day of January, 2010.
The Issue Whether Petitioner has been the subject of discrimination in a public accommodation due to a disability.
Findings Of Fact Petitioner, Cari Anderson, is a veteran of the Iraq War and has Post Traumatic Stress Disorder (PTSD). Her PTSD is sufficiently severe so as to constitute a disability under Florida law. Because of her disability, Petitioner keeps with her two small poodle-type service dogs that help her remain calm. Petitioner also trains such service dogs. On April 5, 2009, Petitioner was visiting her friend, Michelle Clas-Williams, at her home in Panama City, Florida. During her visit at around 2:00 in the morning, Petitioner, along with her friend, and her friend’s daughter, decided to go shopping at the Wal-Mart store in Callaway, Florida. Petitioner brought along her two service animals to the Callaway Wal-Mart. Neither of the dogs wore any identification as service dogs; and therefore, could not be readily identified as such. Upon arrival, Petitioner and her friend obtained separate shopping carts. Petitioner placed her two dogs on the bottom of the shopping cart, on a towel. Petitioner and her shopping companions entered the main part of the store. No one from Wal-Mart stopped Petitioner from entering the store. Both she and her friend spent the next 20- 30 minutes shopping throughout the Callaway Wal-Mart store where surveillance cameras intermittently monitored their passage through the store. None of the surveillance footage has sound. As a consequence, the surveillance footage of Petitioner’s visit does not add support for either party’s version of the events in this case. During her time in the store, Petitioner walked freely throughout the aisles and was not prevented from shopping at the Callaway store. On at least two separate occasions, individual employees politely informed Petitioner that she could not have her dogs in the store. However, on each such occasion Petitioner explained to the employee that her dogs were service animals. The employees responded positively and Petitioner continued her shopping. There was no evidence that these employees communicated with Wal-Mart management. As Petitioner and her friend approached the checkout lines, the Customer Service Manager, Monica Amis, noticed Petitioner’s two dogs in her shopping cart. Ms. Amis walked up to Petitioner and said, “Ma’am those dogs cannot be in the store.” Before Ms. Amis could ask anything else, including whether the dogs were service animals, Petitioner erupted into a loud vocal tirade stating among other things, “You don’t tell me what the fuck to do. I can do what I want. I’m sick of Wal- Mart’s shit you think you own the world.” Ms. Amis could not get a word in and could not calm Petitioner down. Petitioner demanded the store manager be called and demanded that some papers which “proved” her dogs were service animals be looked at. Within minutes of first approaching Petitioner, Ms. Amis instructed the cashier to process Petitioner’s purchases. She then walked away and called the store manager. The better evidence did not demonstrate that Ms. Amis was rude or profane with Petitioner. The evidence did demonstrate that Ms. Amis’ actions in approaching and interacting with Petitioner were clearly reasonable and did not constitute discrimination against Petitioner. Shortly after Ms. Amis’ call, the store manager, Gary Wright, approached the front of the store. He could hear Petitioner yelling. He was very concerned about her behavior and the disturbance she was making. He approached her at the cash register. Mr. Wright asked Petitioner to calm down so he could speak with her. As she was paying for her items, Petitioner continued to yell loudly and use profanity. She was permitted to complete her transaction and no one from Wal-Mart interfered with her ability to do so. However, Petitioner remained belligerent, loud, and profane. Petitioner believed that her rights were being violated and that Ms. Amis and the manager could not tell her that her dogs could not accompany her in the store and if they inquired about them, they could only ask one specific question about whether her dogs were service dogs under an alleged agreement Wal-Mart recently entered into with the federal government. Petitioner’s beliefs about the meaning and scope of this alleged agreement, which was not introduced into evidence, is simply misplaced and does not establish any of the actions by either Ms. Amis or Mr. Wright as discriminatory acts. Like Ms. Amis, Mr. Wright could not get a word in. He understandably became exasperated with Petitioner and the conversation devolved with Mr. Wright telling Petitioner on at least two occasions to “shut up” and “shut the fuck up.” He also told her that he did not think poodles were service animals, but old-lady dogs. In the meantime, Petitioner was yelling about her papers and that Mr. Wright needed to look at them. Mr. Wright simply wanted Petitioner to leave the store. He also told her that he had no problems with the service dogs being in the store, but if she did not calm down, he would have to call the Bay County Sherriff’s office. Given Petitioner’s loud and irrational behavior it was reasonable for Mr. Wright to ask Petitioner to leave the store. When Mr. Wright informed Petitioner that he was calling the Sheriff’s office, Petitioner stated that she was glad they were coming. She wanted their assistance. Mr. Wright walked away and called the Sheriff’s office. There was no evidence that Mr. Wright made a false report to the Sheriff’s office. Additionally, Petitioner called 911 to confirm that an officer was en-route. Likewise, given Petitioner’s continued behavior and her assent to the call, it was reasonable for Mr. Wright to call the Sheriff’s office. Notably, the entire interaction between Petitioner, Ms. Amis, and Mr. Wright took less than 10 minutes. After completing her purchase, Petitioner remained at the checkout lane while her friend, who was in another checkout lane, paid for her merchandise. Petitioner continued yelling, using profanity, and causing a disturbance. Then Deputy, now Investigator, VanStrander arrived outside of Wal-Mart’s east entrance doors and was met by Mr. Wright. Mr. Wright informed Investigator VanStrander that Petitioner was making a scene and being very loud and disruptive. Indeed, Investigator VanStrander could hear Petitioner yelling while he was outside the store and she was inside the store. Mr. Wright did not ask the officer to arrest Petitioner. Once both Petitioner and her friend had completed their purchases, they began walking toward the exit, with Petitioner continuing to yell. Investigator VanStrander entered the store and was immediately approached by Petitioner who was screaming and “cussing like a sailor.” Investigator VanStrander instructed Petitioner that she needed to leave the store. He also informed her that she would be arrested if she did not comply. Petitioner did not immediately follow his instructions. Instead she attempted to argue her position and show the officer her papers. He again instructed her to leave and motioned to the door. He did not block the doorway as Petitioner claimed that he did. She again did not immediately comply and within seconds the officer arrested Petitioner. With little to no struggle she was handcuffed, placed into custody, and charged with disorderly conduct and resisting an officer without violence. Petitioner’s interaction with the deputy while in the store lasted less than 5 minutes. Importantly, the evidence clearly demonstrated that the decision to arrest Petitioner was made by Investigator VanStrander. Respondent was not responsible for the actions of the officer or for Petitioner's behavior which led to her arrest. Given these facts, 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 Petitioner’s Complaint of Discrimination and Petition for Relief. DONE AND ENTERED this 1st day of November, 2011, 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 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 1st day of November, 2011. COPIES FURNISHED: Denise Crawford, Agency Clerk Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301 Amy Harrison Turci, Esquire Ford & Harrison LLP 225 Water Street, Suite 710 Jacksonville, Florida 32202 Cari Anderson Post Office Box 371792 Las Vegas, Nevada 89137 Larry Kranert, General Counsel Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301
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.
The Issue Whether Respondents violated the Florida Fair Housing Act as alleged in the Petition for Relief filed with the Florida Commission on Human Relations.
Findings Of Fact Petitioner, a 59-year-old male, alleges that he is a disabled and non-violent person, who was "illegally" evicted from an apartment unit in the Lakeside Apartment complex. At all times relevant to this proceeding, Respondents, Stephen McCormick and Scott Leonard (Lakeside Apartment Management or Respondents) were the owner and manager, respectively, of Lakeside Apartments. On August 9, 2005, Petitioner submitted a Rental Application and Information Release Form for Lakeside Apartments located at 4715 Land O'Lakes Boulevard, Land O'Lakes, Florida. On the application, Petitioner indicated that he would be the only person living in the apartment. Petitioner also noted that his dog would also be occupying the apartment. Petitioner's application did not indicate that he had any disability. However, at the time he submitted his rental application, he told the owner or manager of Lakeside Apartments that he had a mental disability. Petitioner's application was approved, and, on March 12, 2006, he moved into a one bedroom apartment on the second floor of Lakeside Apartments. The apartment that Petitioner occupied provided him with a "lake view." On or about June 2007, Petitioner was involved in a car accident. Two or three months later, Petitioner was involved in a second accident. In or about the fall of 2007, after the car accident, Petitioner requested that the manager assign him a first-floor apartment due to the problem with his ankles, presumably sustained in the car accident. This was an oral, not written request. At the time he made the oral request, and at no time thereafter, did Petitioner provide documentation of any type of disability, including one related to problems with his ankles. Moreover, Petitioner failed to provide a medical certification from a physician verifying that Petitioner's requested accommodation (i.e., assign him to a first-floor apartment) was necessary for his disability. The management of Lakeside Apartments began eviction proceedings against Petitioner in or about the spring of 2008. An order was issued on May 28, 2008. Petitioner moved out of Lakeside Apartments on or about May 31, 2008. The eviction action against Petitioner was initiated after Petitioner repeatedly exhibited inappropriate and disruptive behavior on the Lakeside Apartment property, as well violated the terms of his lease. Petitioner's conduct included the following: (1) driving on the Lakeside Apartment property while intoxicated; (2) calling "911" 17 times for no reason between April 1 through 9, 2008, resulting in the police being dispatched to the property; and (3) being disrespectful and causing disturbances with other tenants. Numerous tenants complained to Lakeside Apartment Management about Petitioner's inappropriate conduct on the property, including his drinking and being loud and disruptive. Petitioner violated the terms of his lease by having three unauthorized people living in his apartment unit. Even after eviction proceedings were underway, Petitioner was arrested for spitting on another tenant. In another incident, Petitioner's dog bit the manager at the Lakeside Apartment complex. Both of these incidents occurred on the Lakeside Apartment complex premises. After being evicted, Petitioner requested that Lakeside Apartment Management return his $400.00 security deposit. Lakeside Apartment Management refused to return Petitioner's $400.00 due to the condition of the apartment when Petitioner moved out. Upon inspecting the apartment unit after Petitioner moved, management found that the apartment had been damaged (i.e., holes in the walls) and was not cleaned. Petitioner failed to establish that his eviction was for any reason other than his disruptive and inappropriate conduct on the Lakeside Apartment premises. Moreover, Petitioner failed to establish that the Lakeside Apartment management's refusal to return $400.00 of his security deposit was for any reason other than the condition of the apartment unit when Petitioner moved out.
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 and Petition for Relief. DONE AND ENTERED this 5th day of March, 2009, in Tallahassee, Leon County, Florida. S CAROLYN S. HOLIFIELD 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 5th day of March, 2009.
