The Issue Whether Respondent, Century Realty Funds, Inc., violated the Florida Fair Housing Act, Chapters 760.20 through 760.37, Florida Statutes (2006), by failing to install a poolside chairlift as requested by Petitioner.
Findings Of Fact Based on the oral and documentary evidence presented at the formal hearing and on the entire record of this proceeding, the following Findings of Fact are made: Petitioner is physically disabled and protected for the purposes of the Florida Fair Housing Act. Respondent is the owner of Plantation Landings Mobile Home Park ("Plantation Landings") in Haines City, Florida. Plantation Landings is a 55-year-old and older community. It owns and leases the lots to the owner-tenants of Plantation Landings. Because Respondent owns the Plantation Landings real estate and the subject swimming pool, it has the sole discretion to approve the requested improvements. The swimming pool area is handicap accessible. It is a public swimming pool and regulated by the State of Florida, Department of Health. It was built approximately 30 years ago; there are no known existing construction plans for the pool. The swimming pool is surrounded by a wheelchair-accessible path, and the pool itself has two separate sets of handrails; one for the deep end and one for the shallow end. There are steps leading into the shallow end of the pool and a ladder leading into the deep end. The swimming pool does not have a poolside chairlift. The swimming pool area is not supervised by life guards. Plantation Landings does not provide any supportive services to its residents, such as counseling, medical, therapeutic, or social services. The owner-tenants of Plantation Landings are members of the Plantation Landings Mobile Home Park Homeowners' Association ("Homeowners' Association"), which is a voluntary homeowners' association. Petitioner and his wife are members of the Homeowners' Association. Petitioner and his wife purchased a home in Plantation Landings and leased a lot from Respondent on February 8, 2001, pursuant to a Lease Agreement of the same date. Petitioner is a paraplegic and is able to move about by wheelchair. He is able to access the swimming pool common area in his wheelchair. However, he is not able to get in and out of the pool by himself. He has attempted to get into the swimming pool with the assistance of other residents. He would like to be able to have access into the swimming pool without relying upon the assistance of other residents so that he can exercise. In April 2003, Petitioner discussed the feasibility of installing a poolside chairlift at the swimming pool with Respondent's agent. Petitioner offered to pay for the poolside chairlift and installation at his own expense. On April 1, 2003, Petitioner submitted a written request to Respondent requesting that Respondent install a poolside chairlift. Petitioner delivered his April 1, 2003, written request, literature, and video regarding the poolside chairlift to Respondent's agent. The request did not include any specifications or engineered drawings, nor did it state the proposed location for the poolside chairlift. The poolside chairlift initially proposed by Petitioner was the Model IGMT, which was an in-ground manually-operated lift with a 360-degree seat rotation. In its consideration of Petitioner's request, Respondent determined that the design and construction of the pool and the surrounding common areas were in compliance with all state and federal statutes and regulations and that the pool area and common areas to the pool were accessible by wheelchair. Respondent determined that it was not required to install a poolside chairlift for access into the pool. Respondent also learned that the IGMT model was not Americans With Disabilities Act compliant. It was Respondent's conclusion that the poolside chairlift was cost-prohibitive and a dangerous hazard. When Petitioner returned to Plantation Landings in November 2003, he was advised of Respondent's decision not to provide the requested poolside chairlift. In March 2004, Petitioner requested the assistance of James Childs, president of the Homeowners' Association, for the purpose of making a second request to Respondent for the installation of a poolside chairlift. On March 7, 2004, Mr. Childs, on Petitioner's behalf, wrote Respondent requesting a poolside chairlift. On May 3, 2004, Respondent wrote Mr. Childs denying the request. Over the several years Petitioner has resided in Plantation Landings, he has requested modifications to accommodate wheelchair accessibility. These requests included modifications to the ramp at the front of the clubhouse, modifications adding an additional wheelchair ramp to the back of the clubhouse for access into the clubhouse, and modifications to the handicap parking spaces in front of the clubhouse. All of Petitioner's requests for modifications were honored. In May 2006, Petitioner, again with the assistance of Mr. Childs, made a third request to install a poolside chairlift. This third request was identical to his two prior requests made in 2003 and 2004. This request was denied by letter on April 27, 2006. On December 23, 2006, Petitioner filed a Complaint with the U.S. Department of Housing and Urban Development alleging that Respondent had discriminated against him on the basis of his disability by refusing to allow him to install a poolside chairlift at his own expense.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Florida Commission on Human Relations enter a final order dismissing with prejudice the Petition for Relief for failure to establish an unlawful discriminatory act by Respondent, or, alternatively, that the claim is time-barred and that the Commission lacks jurisdiction to consider the Petition for Relief. DONE AND ENTERED this 15th day of February, 2008, 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 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 15th day of February, 2008.
The Issue The issues are whether Respondent engaged in a discriminatory housing practice, in violation of the Florida Fair Housing Act, Sections 760.20 through 760.37, Florida Statutes (2007),1 by refusing to grant an accommodation which would have allowed Ms. Rose Marie Owens to keep a comfort cat in her condominium, and, if so, the amount of damages suffered by Ms. Owens.
Findings Of Fact Ms. Owens was a resident owner of a condominium in Longboat Harbour Condominiums (Longboat Harbour) during the alleged unlawful housing practice. Ms. Owens was a seasonal resident of the condominium from sometime in July 1987 through March 2007. Ms. Owens still owns the condominium at Longboat Harbour with Mr. Hank Airth, her husband. However, Ms. Owens and Mr. Airth purchased a second condominium after the alleged unlawful housing practice, and Ms. Owens and Mr. Airth no longer reside in the Longboat Harbour condominium. Longboat Harbour is a covered, multifamily dwelling unit within the meaning of Subsection 760.22(2). The Longboat Harbour condominium owned by Ms. Owens and Mr. Airth was a dwelling defined in Subsection 760.22(4) at the time of the alleged unlawful housing practice. Respondent is the entity responsible for implementing the rules and regulations of the Longboat Harbour condominium association. Relevant rules and regulations prohibit residents from keeping cats in their condominiums. Sometime in May 2006, Ms. Owens requested Respondent to permit her to keep a comfort cat, identified in the record as “KPooh,” as an accommodation for an alleged handicap. Respondent refused the requested accommodation, and this proceeding ensued. In order to prevail in this proceeding, Petitioner must first show that Ms. Owens is handicapped. Neither Petitioner nor Ms. Owens made a prima facie showing that Ms. Owens is handicapped within the meaning of Subsection 760.22(7). Cross-examination of Ms. Owens showed that Ms. Owens suffers from a cardiovascular ailment, osteoarthritis, and a trigeminal nerve condition. Surgery performed sometime in the 1990s improved the nerve condition. After the surgery, all of the medical conditions of Ms. Owens have been successfully treated with various medications, with no significant modification of the medications before and after Ms. Owens acquired KPooh in 2000. The testimony of Ms. Owens during cross-examination shows that Ms. Owens has never been diagnosed as suffering from depression. Nor does that testimony show that Ms. Owens has ever been diagnosed with panic disorders or panic attacks. Finally, the testimony of Ms. Owens during cross-examination shows that Ms. Owens has never been diagnosed with an emotional or psychiatric condition. A preponderance of the evidence does not show that any of the health problems suffered by Ms. Owens substantially limits one or more major life activities. Nor does Respondent regard Ms. Owens as having a physical or mental impairment. Ms. Owens and others testified concerning the medical conditions of Ms. Owens. None of that testimony showed that the medical conditions substantially limit one or more major life activities for Ms. Owens. Mr. Airth drives the vehicle for Ms. Owens most of the time and prepares most of the meals at home. However, Mr. Airth performs both life activities because he wishes to perform them. Neither Mr. Airth nor Ms. Owens testified that Ms. Owens is unable to perform either life activity. Part of the therapy medically prescribed for Ms. Owens is a special bicycle for exercises that will improve some of the medical conditions of Ms. Owens. However, as Ms. Owens testified, “I have not submitted to that . . . [because] I hate exercise.” Ms. Owens admits that exercise therapy would improve some of her medical conditions. Ms. Owens first took possession of KPooh in 2000. KPooh was a stray cat that showed up at the primary residence of Ms. Owens and Mr. Airth in Maryland. KPooh was hungry. Ms. Owens gave KPooh food and adopted KPooh. Petitioner attempts to evidence the alleged handicap of Ms. Owens, in relevant part, with two letters from the primary care physician for Ms. Owens. Each letter was admitted into evidence without objection as Petitioner’s Exhibits 3 and 4. The first letter, identified in the record as Petitioner’s Exhibit 3, is dated May 4, 2006. The text of the letter states in its entirety: Mrs. Owens has been a patient of mine since 1990. I know her very well. It is my opinion that she would suffer severe emotional distress if she were forced to get rid of her cat. I request an exception to the “No Pet” rule in her particular case. I understand that the cat is confined to her home, and that it is not allowed outside to disturb other residents. Petitioner’s Exhibit 3 (P-3). The first letter contains no diagnosis of an existing physical or mental impairment. Nor does the first letter evidence a limitation of a major life activity that is caused by a physical or mental impairment. The first letter opines that Ms. Owens, like many pet owners, would suffer severe emotional distress if she were required to get rid of her pet. However, the letter contains no evidence that the potential for severe emotional distress, if it were to occur, would substantially limit one or more major life activities for Ms. Owens. The second letter, identified in the record as Petitioner’s Exhibit 4, is dated January 2, 2007. The text of the letter consists of the following three paragraphs: Mrs. Rose Marie Owens is my patient. She has been under my care since 1990. I am very familiar with her history and with her functional limitations imposed by her medical conditions. She meets the definition of disability under the various Acts passed by the Congress of the United States since 1973. Mrs. Owens has certain limitations related to stress and anxiety. In order to help alleviate these limitations, and to enhance her ability to live independently, and to use and enjoy fully the unit she owns at Longboat Harbour Condominium, I have prescribed her cat, K-Pooh, as an emotional support animal. This should assist Mrs. Owens to cope with her disability. I am familiar with the literature about the therapeutic benefits of assistance animals for people with disabilities. Should you have questions concerning my recommendation for an emotional support animal for Mrs. Owens, please contact me in writing. P-4. The second letter does not identify a specific physical or mental impairment. The letter does not disclose what health conditions comprise Ms. Owens “medical conditions.” The letter does not describe the “functional limitations” that the doctor concludes, as a matter of law, satisfy the legal definition of a disability. Nor does the letter specify what major life activities are limited by the patient’s medical conditions. The second letter opines that KPooh will enhance the ability of Ms. Owens to live independently. The letter does not opine that KPooh is necessary for Ms. Owens to live independently. There is no evidence that KPooh is trained as a service animal. The two letters from the primary care physician of Ms. Owens are conclusory and invade the province of the trier- of-fact. The two letters do not provide specific and precise factual accounts of the medical conditions of Ms. Owens and the limitations that those conditions impose on major life activities. The two letters deprive the fact-finder of the opportunity to review and evaluate the specific and precise facts underlying the medical and legal opinions reached by the doctor. The two letters deprive the ALJ of the opportunity to independently decide the legal significance of any medical findings, which are not disclosed in either of the letters.2 Petitioner called as one of its witnesses a member of the Board of Directors (Board) for Respondent who had recommended that the Board approve the accommodation requested by Ms. Owens. Petitioner presumably called the witness, in relevant part, to bolster the two letters from the treating physician for Ms. Owens. The witness testified that his recommendation placed great weight on the fact that the doctor who authored the two letters is a psychiatrist. The undisputed fact is that the doctor specializes in internal medicine, not psychiatry. Petitioner attempted to show that Respondent’s stated reasons for denial of the accommodation were a pretext. Petitioner relied on evidence that arguably showed Respondent did not adequately investigate the alleged handicap of Ms. Owens before denying her request for an accommodation. Respondent made adequate inquiry into the alleged handicap when Ms. Owens requested an accommodation. Respondent requested a letter from the treating physician, which resulted in the letter that became Petitioner’s Exhibit 3. Finding that letter less than instructive, Respondent requested a second letter that became Petitioner’s Exhibit 4. Respondent properly determined that letter to be inadequate. In any event, this proceeding is not an appellate review of the past conduct of Respondent. This proceeding is a de novo proceeding. Counsel for Respondent fully investigated the medical conditions and alleged handicap of Ms. Owens prior to the final hearing. The investigation included pre-hearing discovery through interrogatories and requests for medical records.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Commission enter a final order dismissing the Petition for Relief. DONE AND ENTERED this 26th day of June, 2009, in Tallahassee, Leon County, Florida. S DANIEL MANRY Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 26th day of June, 2009.
The Issue Whether the Respondent discriminated against the Petitioner on the basis of handicap, in violation of the Florida Fair Housing Act, Section 760.20, et seq., Florida Statutes (2009).1
Findings Of Fact Based on the oral and documentary evidence presented at the final hearing and on the entire record of this proceeding, the following findings of fact are made: Mr. Wergeles is a 61-year-old man who, at the times pertinent to this proceeding, resided in Unit 223 of the Tregate East Condominium development. The Tregate East Condominium development contains 62 units and two elevators and is governed by the Association. The unit in which Mr. Wergeles resided at the times pertinent to this proceeding was located on the second floor of one of the two apartment buildings comprising the Tregate East Condominium development. At one time, Mr. Wergeles was the co-owner of Unit 223 of the Tregate East Condominium with Janice Scudder. At the times pertinent to this proceeding, however, he lived in the apartment pursuant to an agreement with Ms. Scudder that he would pay her one-half of expenses, including one-half of the mortgage, one-half of the condominium fees, and one-half of the utilities. At the times pertinent to this proceeding, a group of ladies played cards in the condominium clubhouse on Friday nights. The easiest route to the clubhouse bathrooms, which were accessed by doors on the outside of the clubhouse wall, was through a side door of the clubhouse, which was adjacent to the bathrooms. The side door locked automatically, and, once outside, a person could re-enter the clubhouse by the side door only by entering a code on a key pad that was old and worn. Although there was a light attached to the corner of the clubhouse, the light did not illuminate the area around the side door or the bathrooms. Because it was very difficult to see the numbers on the key pad, the ladies left the side door open whenever someone needed to use the restroom, which caused concern because of the lack of security. To remedy this situation, Lingo Electric, Inc. ("Lingo Electric"), installed a light above the side door of the condominium clubhouse on August 26, 2009, at the request of the Association. The purpose of the light was to provide illumination in the area of the side door and the clubhouse bathrooms. The light installed by Lingo Electric was a 70 watt high pressure sodium photo cell light with a clear plastic lens, and it had a sensor that caused the light to come on only at night. The light was not, and could not be, shielded because a cover would cause the plastic lens to melt. The light was located about 50 feet from Mr. Wergeles' apartment. Although the light did not shine directly into Mr. Wergeles' bedroom window, the amount of illumination coming through the bedroom window increased after the light was installed, even when the vertical blinds on the bedroom window were closed. The amount of illumination coming into the apartment's lanai, which was essentially a balcony that extended a few feet out from his apartment, also increased after the light was installed. This increased illumination disrupted Mr. Wergeles' sleep. Early on the morning of August 27, 2009, Mr. Wergeles left a voice mail message at the offices of the Association's attorneys, Kevin T. Wells, P.A., requesting that the Association remove the light. In a letter dated August 28, 2009, David C. Meyer, Esquire, of the Kevin T. Wells, P.A. law firm, wrote to Mr. Wergeles on behalf of the Association and notified him that his verbal request that the light be removed was rejected. In a letter dated August 30, 2009, directed to the President of the Association and sent by certified mail, Mr. Wergeles stated: As you are aware a floodlight was installed over the Clubroom side door by Lingo Electric on August 26. 2009. This light is defused and is shining directly into my bedroom and lanai. I am asking Tregate East Condominium Association, Inc. to block all light that is coming in my bedroom and lanai from this floodlight. I have had serious problems sleeping for many years that are directly related to my disability.[3] As you are aware I am disabled and this light coming in my bedroom and lanai are exacerbating my sleeping problem. There is a security light almost directly above this floodlight that covers the entire area. The floodlight that is over the clubroom side door is defused and multiplies the light that is emitted from it. Your immediate attention to the resolution to this situation would be greatly appreciated.[4] At some point subsequent to Mr. Wergeles' request that the light be blocked from his window and lanai, the Association, through its attorney, requested that Mr. Wergeles provide detailed information regarding his medical condition from his treating physician, and he was asked to sign a release so that the Association could obtain his medical records. In response to the Association's request, Mr. Wergeles provided a letter dated September 24, 2009, from "Scott B. Elsbree," written on the letterhead of Gulf Coast Medical Specialists, PLLC, and directed to "To Whom It May Concern." The letter stated in pertinent part: Mr. Wergeles has been under my care since October 2006. He is physically disabled, and he has severe sleep problems. He requires a healthy and appropriate sleep environment, away from loud noises and bright lights. Any accommodation you can make in that regard would be greatly appreciated.[5] The letter contained no designation identifying Mr. Elsbree as a licensed health care professional, and his name did not appear on the letterhead of Gulf Coast Medical Specialists, PLLC. Mr. Wergeles also provided the Association with a letter confirming that he had received Social Security disability benefits since January 2000. On September 14, 2009, a code enforcement officer employed by Sarasota County, Florida, issued a Notice of Code Violation and Order to Correct Violation, in which the Association was ordered to correct all exterior lighting to ensure that it was "concealed behind an opaque surface and recessed within an opaque housing" such that "it shall not be visible from any street right-of-way or adjacent properties."6 The Order directed the Association to correct any violations on or before October 14, 2009. Sometime between September 14, 2009, and October 14, 2009, when the Sarasota County code enforcement officer inspected the Tregate East Condominium property, Lingo Electric removed the original light from over the side door of the clubhouse and replaced it with one conforming to the Sarasota County Code.7 According to Mr. Wergeles, he had problems sleeping before the light over the side door of the clubhouse was installed, and the light made these problems worse. He related that he felt terrible because of the lack of sleep, was clumsy, and had migraine headaches and stomach problems. Mr. Wergeles described his sleeping problems as severe from the time the light was installed until it was removed and replaced with a shaded light. Mr. Wergeles vacated Unit 223 of the Tregate East Condominium development on or about November 6, 2009. Mr. Wergeles stated that the only relief he requested as a result of his complaint against the Association was a "fair shake." He did not claim any quantifiable damages arising out of his complaint of discrimination on the basis of handicap. In addition to the complaint in the instant case, Mr. Wergeles filed discrimination complaints against the Association with the federal Department of Housing and Urban Development and/or the FCHR in 2006, 2007, and 2009. In all four complaints, Mr. Wergeles alleged, among other things, that the Association had discriminated against him on the basis of handicap.8 Summary and findings of ultimate fact The creditable evidence presented by Mr. Wergeles was insufficient to support a finding of fact that he was handicapped at the times pertinent to this proceeding. In his testimony, Mr. Wergeles stated only that he was disabled. He provided no further explanation, referring instead to the letter from Mr. Elsbree and to the letter from the Social Security Administrative affirming that he had received disability payments since January 2000. The letter from Mr. Elsbree contained no information about his medical credentials or the nature of the care he provided to Mr. Wergeles. In addition, even assuming that Mr. Elsbree was a licensed physician who had treated Mr. Wergeles for a medical condition, there is no information in the letter from which it can be determined that Mr. Wergeles had a "handicap" for purposes of sustaining a claim of discrimination under the Florida Fair Housing Act. The letter stated only that Mr. Wergeles "is physically disabled," a statement that provides no indication of the nature of Mr. Wergeles' medical condition or the manner in which it substantially limited a major life activity.9 Furthermore, although Mr. Elsbree asserted that Mr. Wergeles had "severe sleep problems," the sleep problems were described as a condition from which Mr. Wergeles suffered in addition to his disability.10 The letter from the Social Security Administration affirming that Mr. Wergeles received disability benefits does not include any information beyond the mere fact that he was found eligible for disability benefits. It, therefore, provides no more basis for determining the nature and extent of Mr. Wergeles' asserted disability than Mr. Elsbree's letter stating that Mr. Wergeles "is physically disabled." Even assuming that the evidence presented by Mr. Wergeles was sufficient to support a finding of fact that he was handicapped, he failed to present sufficient credible evidence to support a finding of fact that the Association, or any member of the Board of Directors, knew or should have known that he was disabled. The only creditable evidence Mr. Wergeles presented on this point established merely that, prior to filing the complaint at issue in the instant case, he filed complaints against the Association in 2006, 2007, and 2009 alleging that it had discriminated against him on the basis of, among other things, a handicap. Mr. Wergeles did not present any evidence establishing that the Association conceded that he was handicapped with respect to any of these complaints or that there had been a final administrative or judicial adjudication that he was handicapped. Because Mr. Wergeles failed to present any creditable evidence establishing that he was handicapped, he failed to establish that the accommodation he requested of the Association, removal of the light over the side door of the clubhouse, was necessary.
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 filed by James Wergeles. DONE AND ENTERED this 3rd day of November, 2010, in Tallahassee, Leon County, Florida. S PATRICIA M. HART 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 November, 2010.
The Issue Whether Respondents retaliated against Petitioner Rita Lynar, in violation of the Florida Fair Housing Act, chapter 760, part II, Florida Statutes (FHA); and, if so, the appropriate penalty.
Findings Of Fact Respondent Westminster Communities, Inc., owns and operates several retirement communities across Florida. The Westminster property in this matter is Respondent Asbury Arms North, Inc., which is located in Cocoa, Florida. Respondent Joseph Downs is the administrator for Westminster’s Cocoa site, and manages its facilities. Ms. Lynar is a resident of Asbury Arms North, Inc. Ms. Lynar previously filed a housing discrimination complaint on August 17, 2017, against Respondents that claimed that Respondents violated the FHA, and contending that Respondents retaliated against her. After FCHR notified Ms. Lynar that no reasonable cause existed to believe that Respondents committed a discriminatory housing practice on February 9, 2018, she filed a Petition for Relief with FCHR. FCHR transmitted the Petition for Relief to the Division on March 6, 2018. The Division’s case number for this matter is 18-1314. ALJ J. Bruce Culpepper conducted a two-day final evidentiary hearing in DOAH Case No. 18-1314 on September 11, 2018, and January 9, 2019. On July 10, 2019, ALJ Culpepper issued a Recommended Order, which concluded that Ms. Lynar failed to meet her burden of proving that Respondents committed a discriminatory housing practice in violation of the FHA, and recommended that FCHR dismiss Ms. Lynar’s Petition for Relief. On October 1, 2019, FCHR entered a Final Order that adopted ALJ Culpepper’s Findings of Fact and Conclusions of Law, and dismissed Ms. Lynar’s Petition for Relief. See Lynar v. Westminster Retirement Communities Foundation, Inc., et al., Case No. 18-1314 (Fla. DOAH July 10, 2019; FCHR Oct. 1, 2019)(Lynar II). As previously noted in the undersigned’s March 18, 2020, Order Denying Respondent’s Motion to Dismiss Based on Res Judicata and Collateral Estoppel and Motion for Sanctions and Attorney Fees, and Extending Time to Respond to Initial Order, the undersigned specifically precluded any attempt by Ms. Lynar to relitigate any matter resolved (or that could have been resolved) in Lynar II in the instant matter. Thus, in the instant matter, the undersigned only considered any alleged acts that occurred after the final hearing in Lynar II commenced, i.e., after September 11, 2018, as possible evidence of FHA retaliation.1 November 7, 2018, Incident and Lease Termination On November 8, 2018—after the commencement of the final hearing in Lynar II, and while that matter remained pending—Ms. Lynar was involved in an incident at Asbury Arms North. Pastor Adkins, who was conducting a regular morning Bible study meeting on November 8, 2018, in the fellowship room, which is a common area in the Asbury Arms North building that has multiple entranceways, noticed Ms. Lynar walk through the fellowship room “at a very fast pace” on multiple occasions that morning. Upon her first pass through the fellowship room, he heard Ms. Lynar screaming in front of Mr. Downs’s office and pounding on his office door. Pastor Adkins did not see Ms. Lynar scream or pound, but heard it. Pastor Adkins next observed Ms. Lynar pass through the fellowship room again, and she went towards her apartment. Then, approximately a minute or two later, she rushed back through the fellowship room, went to the same area in front of Mr. Downs’s office, and began screaming and 1 Additionally, Ms. Lynar, in 2014, filed a charge of discrimination against Respondents, alleging an FHA violation. After receiving a No Cause Determination from FCHR, she filed a Petition with FCHR, alleging gender discrimination. FCHR transmitted that Petition to the Division, which assigned it DOAH Case No. 15-2796 (Lynar I). ALJ Culpepper also conducted a partial hearing in that matter but, on December 15, 2015, the parties filed a Stipulation for Dismissal. Consistent with the undersigned’s March 18, 2020, ruling, the undersigned did not consider any alleged acts that occurred prior to September 11, 2018, in the instant matter. pounding on the same office door. He also heard Ms. Lynar screaming at Ms. Brooks, who was located in close proximity to Mr. Downs’s office. He described Ms. Lynar’s behavior that morning as “unhinged.” Pastor Adkins testified that these incidents disrupted his Bible study meeting for approximately 10 minutes. Ms. Brooks, who is an administrative assistant at Asbury Arms North, works at a desk in that building’s front lobby. Her desk was around the corner from Mr. Downs’s office. She worked at the front desk on the morning of November 7, 2018, and recalled that she heard Ms. Lynar “pounding” on Mr. Downs’s office door; she described it as “[v]ery intentional and very loud.” Ms. Brooks walked around the corner to observe Ms. Lynar, and testified that Ms. Lynar began screaming at her. Ms. Brooks testified that she said nothing to Ms. Lynar, and that Ms. Lynar eventually left. Ms. Brooks then entered Mr. Downs’s office, where there were two other residents and a certified occupational specialist, and explained to Mr. Downs what had transpired outside of his office. Ms. Brooks was inside of Mr. Downs’s office when Ms. Lynar began screaming and pounding on his office door a second time. Ms. Brooks testified that Ms. Lynar’s conduct that morning frightened her. Mr. Downs, the administrator of Westminster’s property in Cocoa, including Asbury Arms North, testified that on the morning of November 7, 2018, he was on a telephone call, but heard a loud pounding on his door, and ended his call. He testified that Ms. Brooks came to his office to explain what had happened, and during this explanation, Ms. Lynar began pounding on the door and screaming again. After answering the door, he stated that Ms. Lynar stormed off. The undersigned observed a video recording of the first of the two “screaming and pounding” incidents that occurred the morning of November 7, 2018. Although the video recording did not also have an audio recording of this incident, it appeared to the undersigned that Ms. Lynar clearly approached an office door and, with her hand and fist, intentionally pounded on the office door. Additionally, Respondents introduced into evidence only one of the two “pounding and screaming” incidents, explaining that the video of the other/second incident was unavailable. On November 20, 2018, Asbury Arms North, Inc., hand-delivered to Ms. Lynar a “Notice of Termination of Tenancy,” which stated, in part: YOU ARE HEREBY NOTIFIED that your tenancy … is terminated, effective at the end of the day on December 20, 2018. You must vacate the premises at or before that time. THIS TERMINATION is based on your material noncompliance with the Lease Agreement, including one or more substantial violations of the Lease Agreement. The specific reason for this termination is as follows: On the morning of November 7, 2018 you committed a substantial violation of the lease by causing a loud commotion by acting aggressive and erratic, banging repeatedly on the office door, and yelling at staff and other residents, including Receptionist Josephine Brooks and Administrator Joe Downs. Your actions were threatening, intimidating, harassing, and violent. Your actions interfered with the quiet and peaceful enjoyment of the other residents living in the apartment property by causing a commotion and disrupting a bible study being conducted by Chaplain Don Adkins and approximately 15 residents. Your actions also disrupted the management of Westminster Asbury by staff. Your actions scared staff and other residents, and have caused continuing fear among staff and other residents. The Lease Agreement contains the following requirement regarding resident conduct: Conduct Residents … will not engage in, or participate in, such conduct which interferes with the quiet and peaceful enjoyment of the other residents living in the apartment property. No act of a resident and/or guest which threatens, intimidates, is deemed as harassing others, is physically violent with or without injury to another person and/or property, or has unacceptable social conduct, will be tolerated. Any such act will be considered a violation of the Community Policies and the Lease. No act of intimidation, harassment, verbal abuse, physical threat or violence, or social misconduct of, or to, and [sic] employee of this apartment property by any person will be tolerated. Any such act is considered a noncompliance of the Lease Agreement and will result in termination of the Lease. Your above-described actions on November 7, 2018 violate the foregoing conduct requirements, in that you engaged in conduct that interfered with the quiet and peaceful enjoyment of the other residents, you intimidated other residents, and you intimidated, harassed, and verbally abused employees of the property. Your actions, pursuant to the Lease, are a noncompliance and have resulted in termination of the Lease. BE ADVISED that if you remain in the leased unit after the date specified for termination, the Landlord may seek to enforce the termination only by bringing a judicial action at which time you may present any defenses. Thereafter, on December 22, 2018, Asbury Arms North, Inc., filed a Complaint for possession of real property, and damages, in county court in Brevard County, Florida. Ms. Lynar testified that she has been the subject of previous eviction actions with Asbury Arms North, Inc., and had never previously received a Notice of Termination. She stated that Asbury Arms North, Inc., delivered this while she was with friends in the fellowship room, and believed this was inappropriate and retaliation for participation in Lynar II. Ms. Lynar testified that she did knock on Mr. Downs’s door, to (again) complain about a group of residents she contends engage in bullying and harassment. She contends that instead of doing something about the bullying and harassment, Asbury Arms North, Inc., instituted the eviction action in Brevard County Court, again, in retaliation for her participation in Lynar II.2 Other Alleged Bases for FHA Retaliation Ms. Lynar testified that she believed Respondents’ decision to issue the Notice of Termination and commence eviction proceedings against her was also in retaliation for her assisting another Asbury Arms North, Inc., resident, Sudhir Kotecha, in bringing an FHA discrimination claim against Respondents. Respondents had also commenced an eviction action against Mr. Kotecha during this time period. Mr. Kotecha’s attorney, Nicholas Vidoni, testified at the final hearing concerning the deposition of Mr. Downs in that eviction proceeding, in which Ms. Lynar (who was not a party to that eviction matter, but was a party to the December 22, 2018, pending eviction matter involving Asbury Arms North, Inc.) attempted to attend. Mr. Downs’s attorney objected, and filed a Motion to Terminate or Limit Examination, requesting that Ms. Lynar not be present for the deposition because of the pending eviction matter and the pending Lynar II matter (in both of which, Mr. Vidoni represented Ms. Lynar), and other reasons. Mr. Vidoni testified that the county judge granted the Motion to Terminate or Limit Examination, in part, and barred Ms. Lynar from attending Mr. Downs’s deposition. Additionally, during this time period, Ms. Lynar testified that Respondents sought to have the county judge assigned to the eviction case 2 The issue of bullying and harassment at the hands of certain residents of Asbury Arms North, Inc., was fully considered and rejected as grounds for a violation of the FHA in Lynar II. removed, because Ms. Lynar allegedly had contact with the county judge at a restaurant. Mr. Vidoni confirmed that Respondents indeed filed such a motion, but did not testify as to its resolution, and Ms. Lynar presented no further evidence about it. Ms. Lynar testified that the actions of Respondents in paragraphs 20 and 21 above are further evidence of Respondents retaliating against her for participation in Lynar II. Ms. Lynar also contends that Mr. Downs reached out to the Department of Housing and Urban Development (HUD), which subsidizes her apartment at Asbury Arms North, Inc., to discuss the non-renewal of Ms. Lynar’s lease in 2014, as an additional form of retaliation. Mr. Downs testified that Respondents had initiated an eviction proceeding in 2014, and that he recalled discussing with a HUD official whether Asbury Arms North, Inc., should renew Ms. Lynar’s lease; Mr. Downs testified that the HUD official questioned why Ms. Lynar’s lease would be renewed if Asbury Arms North, Inc., was in the process of evicting her. This conversation occurred well before the actions that resulted in Lynar II occurred, and are irrelevant. Ms. Lynar failed to provide any credible evidence that Respondents’ decision to issue the Notice of Termination, and subsequently commence eviction proceedings in county court, was retaliation for her participation in Lynar II, in violation of the FHA. The undersigned further finds that the actions that occurred during the Kotecha eviction proceeding, and Mr. Downs’s conversation with a HUD official, are not credible evidence of FHA retaliation.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, the undersigned hereby RECOMMENDS that the Florida Commission on Human Relations issue a final order dismissing Rita Lynar’s Petition for Relief. DONE AND ENTERED this 4th day of January, 2021, in Tallahassee, Leon County, Florida. S ROBERT J. TELFER III Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 4th day of January, 2021. COPIES FURNISHED: Tammy S. Barton, Agency Clerk Florida Commission on Human Relations 4075 Esplanade Way, Room 110 Tallahassee, Florida 32399-7020 (eServed) Stephen G. Henderson, Esquire Henderson Legal Group 5419 Village Drive Viera, Florida 32955 (eServed) Rita Lynar 1200 Clearlake Road #2114 Cocoa, Florida 32922 (eServed) Cheyanne Costilla, General Counsel Florida Commission on Human Relations 4075 Esplanade Way, Room 110 Tallahassee, Florida 32399-7020 (eServed)
The Issue The issue in this proceeding is whether Respondents committed discriminatory housing practices against Petitioners based on their familial status.
Findings Of Fact The Petitioners appeared but presented no evidence.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the FCHR enter a final order dismissing the Petition for Relief. DONE AND ENTERED this 3rd day of October, 2008, in Tallahassee, Leon County, Florida. S SUSAN B. HARRELL 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 October, 2008.
The Issue Whether Respondents engaged in a discriminatory housing practice against Petitioner in violation of the Florida Fair Housing Act (Sections 760.20 through 760.37, Florida Statutes).
Findings Of Fact Respondent, Caribe Co-Operative Club Apartments, Inc. (Caribe Club), is a Florida not-for-profit corporation and a co-operative association that owns the apartment complex at issue in this proceeding located in Lake Worth, Florida. There are twenty-one apartments in the Caribe Club. The apartments constituting the Caribe Club are subject to duly-enacted bylaws and to a form proprietary lease. These documents govern the management of the co-operative association and specify the terms and conditions of each tenancy. An existing lease cannot be transferred until the transaction has been approved by the stockholders of the Caribe Club. If the transaction is approved, the prospective lessee is required to purchase a share of stock in the cooperative association and execute the form proprietary lease. The existing lessee and the proposed transferee are required to apply to the board of directors for approval of the proposed transaction. The board is then required to convene a meeting of the stockholders, at which the proposed transaction is discussed and the prospective lessee may be interviewed. Thereafter, a vote by secret ballot is taken, with each apartment having one vote. A two-thirds affirmative vote of the stockholders voting at the meeting is required for approval of the proposed transaction. Petitioner agreed to purchase the apartment at the Caribe Club owned by Phyllis McAuliffe for the sum of $13,500. As required by the bylaws of the Caribe Club, Petitioner and Ms. McAuliffe requested approval of the proposed transfer and Petitioner submitted her personal financial information in addition to the application. For approximately a year before she decided to purchase the McAuliffe lease, Respondent lived in the Caribe Club apartment leased by Quentin Mason, her boyfriend. After she and Ms. McAuliffe had come to terms, but before she submitted her request for approval to the board of directors, Petitioner painted and cleaned the McAuliffe apartment. In addition, she replaced a door. At all times pertinent to this proceeding, the Caribe Club had a president, two vice-presidents, a secretary, and a treasurer. These officers constituted the board of directors. Francis A. Phillip, Jr., the president of the Caribe Club, reviewed Petitioner's application and her supporting financial information. As required by the bylaws, Mr. Phillip called a special meeting of the stockholders for January 22, 1996, to consider the application. After her financial information was determined to be in order, Petitioner was briefly interviewed and then excused from the meeting. The only discussion of the proposed transfer consisted of Fernand Roy making a statement against the transaction and Mr. Mason giving a response. The proposed transaction was rejected by the vote by secret ballot that followed. Of the twelve voting stockholders at the meeting, seven voted against the transaction and five voted in favor. To the knowledge of the witnesses who testified, this was the first occasion that a prospective transfer had been rejected. The following stockholders were present at the meeting: Mr. and Mrs. Brooks (with one vote), Mr. Mason, Mr. and Mrs. Todd (with one vote), Mrs. Knutson, Mrs. Loomis, Mrs. Mack, Mrs. Senn, Mrs. Lambert, Mrs. Tognacci, Mr. Phillip, Mr. Reed, and Mr. Roy. At the formal hearing, there was competent evidence as to how five stockholders voted and the reasons of those who voted against the transaction. Mr. Mason and Mr. Reed voted for the transaction. Mr. Roy, Ms. Senn, and Mr. Phillip voted against the transaction. The Petitioner did not establish by competent evidence how the other individual stockholders voted or the reason for their votes. 1/ Fernand Roy participated in the stockholder meeting as a voting stockholder. Mr. Roy and Petitioner's boyfriend, Mr. Mason, had a long-standing feud. Mr. Roy did not want Petitioner to become a stockholder because she would then be able to support Mr. Mason's positions on various issues pertaining to management of the Caribe Club. Florence Senn participated in the stockholder meeting as a voting stockholder. Ms. Senn voted against the proposed transaction because she did not like the fact that Petitioner and Mr. Mason had been living together without the benefit of marriage. Ms. Senn did not discuss her position on the matter with anyone prior to the vote being taken. Ms. Senn told Petitioner before the vote was taken that if the stockholders rejected her application it would be because she was Mr. Mason's girlfriend. Ms. Senn was of the opinion following the vote that most of the stockholders who voted against the transaction did so because they did not like Mr. Mason. Mr. Phillip participated in the stockholder meeting as the presiding officer and as a voting stockholder. Mr. Phillip voted against the proposed transaction because he believed that Petitioner's entering the McAuliffe unit to paint, clean, and make repairs before the stockholders had approved the transaction evidenced an unwillingness on her part to comply with the bylaws and rules and regulations of the Caribe Club. Mr. Phillip testified that he had told Petitioner not to work in the apartment before the transaction was approved, but that she did so anyway. Before the meeting, Mr. Phillip mentioned to one or two other stockholders that Petitioner was working on the McAuliffe apartment, but he did not discuss his position on the transaction with anyone prior to the vote being taken. The evidence did not establish that any stockholder voted against the proposed transaction based on Petitioner's age, national origin, sex, handicap, familial status, or religion. 2/
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 dismissing Petitioner's discriminatory housing complaint and Petition for Relief. DONE AND ENTERED this 20th day of May, 1999, in Tallahassee, Leon County, Florida. CLAUDE B. ARRINGTON 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 May, 1999.
The Issue The issue in this case is whether Respondent, Community Housing Initiative, Inc. (Respondent), committed a discriminatory housing practice against Petitioner, Karen Lee Krason (Petitioner), in violation of Chapter 760, Florida Statutes (2008).
Findings Of Fact On or about June 11, 2009, Petitioner filed a Housing Discrimination Complaint with the Commission. Pursuant to the Commission's procedure, an investigation of the matter was completed that resulted in a Notice of Determination of No Cause. Essentially, the Commission found that based upon the allegations raised by Petitioner there was no cause from which it could be found that Respondent had violated the Florida Fair Housing Act. Thereafter, Petitioner elected to file a Petition for Relief to challenge the determination and to seek relief against Respondent for the alleged violation. The Commission then forwarded the matter to DOAH for formal proceedings. DOAH issued a Notice of Hearing that was provided to all parties at their addresses of record. The postal service did not return the notices as undelivered. It is presumed the parties received notice of the hearing date, time, and location. Petitioner did not appear at the hearing.
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 dismissing Petitioner's claim of discrimination. DONE AND ENTERED this 4th day of February, 2010, in Tallahassee, Leon County, Florida. S J. D. PARRISH 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 4th day of February, 2010. COPIES FURNISHED: Karen Lee Krason 1715 Erin Court Northeast Palm Bay, Florida 32905 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 COPIES FURNISHED BY CERTIFIED MAIL Nicole Tenpenny, Registered Agent Community Housing Initiative, Inc. 3033 College Wood Drive Melbourne, Florida 32941 (Certified No. 91 7108 2133 3935 7995 3000) Nicole Tenpenny, Registered Agent Community Housing Initiative, Inc. Post Office Box 410522 Melbourne, Florida 32941-0522 (Certified No. 91 7108 2133 3935 7995 2997) Michael Rogers, Officer/Director Community Housing Initiative, Inc. 1890 Palm Bay Road, Northeast Palm Bay, Florida 32905 (Certified No. 91 7108 2133 3935 7995 2980)
The Issue The issue in this case is whether Respondent committed a discriminatory housing practice against Petitioner on the basis of a handicap.
Findings Of Fact Petitioner formerly resided in Montrose Apartments at 563 West Montrose Street, Apartment 18, Clermont, Florida. Petitioner alleges that he is a handicapped/disabled person by virtue of a mental disability, who was "illegally" evicted from Montrose Apartments because of his handicap/disability. At all times relevant to this proceeding Francisco Guzman, Jr., owned and managed Montrose Apartments. Mr. Guzman was unaware of Petitioner's alleged handicap/disability. At no time during Petitioner's tenancy at Montrose Apartments did Petitioner notify management of the apartment complex that he had a handicap/disability. Furthermore, Petitioner never provided management with documentation verifying that he had a handicap/disability. Petitioner alleged that in early 2009, he requested that Respondent make plumbing repairs in his apartment unit and that Respondent refused to comply with those requests. He further alleged that Respondent did not take his maintenance requests seriously and treated other tenants at Montrose Apartments more favorably than he was treated. Petitioner admitted that he did not pay rent for his Montrose Apartment unit in March and April 2009. According to Petitioner, he withheld the rent because Respondent failed to make the requested plumbing repairs. In correspondence from him to a "Ms. Smith," Mr. Guzman indicated that on "Sunday [March] 22, 2009," he had posted a three-day notice on Petitioner's apartment, because he had not paid his March 2009 rent. Also, Mr. Guzman acknowledged that he had not been able to repair Petitioner's bathroom sink because he had been unable to gain access to Petitioner's apartment. Finally, Mr. Guzman indicated that he believed Petitioner was "avoiding [him] since he is unable to pay the rent." Petitioner did not pay rent for his Montrose Apartment unit in March and April 2009, even after Respondent notified him several times that the rent was past due and should be paid. Respondent began eviction proceedings against Petitioner in or about late April or early May 2009, by filing a Complaint for Eviction ("Eviction Complaint") with the County Court of Lake County, Florida. The Eviction Complaint was assigned Case No. 2009-CC001534. Respondent filed the Eviction Complaint against Petitioner after, and because, he did not pay the March and April 2009 rent for his Montrose Apartment unit. On May 5, 2009, a Final Judgment for Possession and Writ of Possession were entered against Petitioner. The Writ of Possession was served on Petitioner and enforced. On or about May 8, 2009, the apartment unit previously rented to Petitioner was turned over to Mr. Guzman. Petitioner alleges and asserts that: (1) he is disabled/handicapped due to a mental disability; (2) he was evicted because of his handicap/disability; and (3) Respondent knew Petitioner was handicapped/disabled. Nevertheless, Petitioner presented no competent evidence to support his claim.
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 Luis Bermudez' Complaint and Petition for Relief. DONE AND ENTERED this 26th day of February, 2010, 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 26th day of February, 2010.
Findings Of Fact Based on the undisputed facts included in pleadings filed in this proceeding and on the documentary evidence attached to the Association's Renewed Motion to Dismiss, the following findings of fact are made: On or about April 16, 1999, Ms. Thornhill filed a complaint with the Department of Housing and Urban Development, in which she accused the Association of housing discrimination on the basis of handicap and coercion. The complaint was apparently based on the Association's attempts to make Ms. Thornhill remove a set of steps leading from the terrace of her apartment. In June 1999, the Association filed a civil lawsuit against Ms. Thornhill in the Circuit Court of the 11th Judicial Circuit in and for Miami-Dade County, styled Admiral Farragut Condominium Association v. Maria Thornhill, Case No. 99-15567 CA 22. On or about September 21, 1999, Ms. Thornhill, through her attorney, filed Defendant, Maria Thornhill's Answer to Complaint. Included in the answer was a Counterclaim filed by Ms. Thornhill, through her attorney, against the Association, in which she sought injunctive relief and damages against the Association pursuant to Section 760.35(1) and (2), Florida Statutes. 1/ She asserted in the Counterclaim that she had filed a discrimination complaint against the Association with the Department of Housing and Urban Development, which had been referred to the Commission and that this complaint was still pending before the Commission. Ms. Thornhill alleged in the Counterclaim that the Association had engaged in housing discrimination against her on the basis of her handicap because it had refused to accommodate her disability by giving her permission to retain the steps she had installed leading from the terrace of her apartment. Ms. Thornhill also alleged that the Association had "authorized or acquiesced in a series of actions intended as harassment and retribution" against Ms. Thornhill for having filed a housing discrimination complaint. The factual and legal bases on which Ms. Thornhill requests relief in the Petition for Relief filed with the Commission and in the Counterclaim filed in circuit court are virtually identical.
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 administrative complaint filed by Maria T. Thornhill to enforce rights granted by the Florida Fair Housing Act, Sections 760.30 through 760.37, Florida Statutes. DONE AND ENTERED this 7th day of November, 2000, in Tallahassee, Leon County, Florida. PATRICIA HART MALONO 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 7th day of November, 2000.
The Issue The issue is whether Respondents committed an act of discrimination based upon disability against Petitioner in violation of the Florida Fair Housing Act.
Findings Of Fact Petitioner claimed to be living in his grandfather’s condominium at Respondent, Oceana II North Oceanfront Condominium Association, Inc. (“Oceana II”), 9900 South Ocean Drive, Apartment 4, Jensen Beach, Florida 34957, pursuant to a month-to-month lease under which he paid $1,000.00 monthly. Petitioner neither produced a written lease nor provided testimony from his grandfather, the putative owner of the condominium, of the existence of such lease. Petitioner also offered no competent evidence (e.g., cancelled checks, receipts, etc.) that he had made any payments under the alleged lease, whether written or oral. At the time of hearing, Petitioner was living in Texas and had no immediate plans to return to Florida or his grandfather’s condominium. Oceana II is a condominium homeowners’ association created and authorized under chapter 718, Florida Statutes. Respondent, Tiffany Ferguson, is the community association manager for Oceana II and the corporate representative for Oceana II for purposes of this hearing. Petitioner testified that his claim of discrimination came about because his car was parked in a disabled space with an expired disability placard. He was informed by Respondents or their agents that his vehicle must be moved to a parking lot away from the entrance to the building in which he was staying. He claims to have told Respondents’ agents that he could not park that far away from “his” unit due to a disability. Petitioner presented no competent evidence that any fine or suspension was ever levied by Respondents on him. Petitioner presented no competent evidence that any of Petitioner’s vehicles were ever towed by Respondents. Petitioner presented no competent evidence that Respondents treated any other person outside of the protected class any more favorably than Petitioner was treated with respect to the rule requiring a current license plate. Petitioner brought several different vehicles, one of which had an expired Maryland tag, onto Oceana II’s premises. Despite the fact that he worked on many of these disabled vehicles, Petitioner presented no competent evidence that Respondents in any way caused Petitioner to purchase such vehicles, which may have needed repair or had issues obtaining a license plate. Petitioner presented no competent evidence that Petitioner attempted to purchase or lease a unit in the condominium and was denied by Respondents due to a disability. Petitioner presented no competent evidence that Petitioner had any lease at any time for his grandfather’s unit which Petitioner testified was a family vacation unit. Petitioner presented no competent evidence that Petitioner provided any information in response to Respondents’ request for information as to an alleged disability, the disability-related need for an accommodation, and how any accommodation was necessary to ameliorate any alleged disability. Petitioner admitted he received Respondents’ email which said no fines would be imposed. Petitioner admitted he received Respondents’ request for additional information to make a meaningful review from Respondents’ counsel. Petitioner admitted he refused to provide the additional information requested by Respondents (through counsel) to make a meaningful review of an accommodation request on October 20, 2020. Petitioner admitted he voluntarily removed the original vehicle (a Pontiac Sunbird) while it had a valid license plate. Petitioner admitted at hearing that he brought in other vehicles at a later time--a green van, a white Saturn, and a gray van--onto the property without plates on purpose to provoke a response and engineer a hearing under section 718.303(3)(b), which pertains to the rights and obligations of condominium associations in levying fines against owners or occupants. He was attempting to set up a claim by intentionally not showing license plates because he wanted a hearing. Petitioner admitted he never tried to register the green van or the gray van with the Florida Department of Motor Vehicles (“DMV”). Petitioner admitted the white Saturn has a current plate, not a Florida plate, and it is currently located in Texas. The white Saturn did not display a plate while on the condominium property. Petitioner admitted he refused to answer on Fifth Amendment grounds whether he ever displayed a plate on any of the vehicles. Petitioner admitted he left Florida in early February and lives in Texas, in San Marco near San Antonio. Petitioner could not renew the Maryland tag on the Sunbird because the VIN (vehicle identification number) on the registration was missing a digit, yet he admitted he has no evidence of any efforts to fix the VIN on the Sunbird with the Maryland DMV.
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 claim for relief, finding both that he has failed to make a prima facie case of housing discrimination and that, because he resides in Texas and has no ownership or legal claim to the condominium in Florida, his claim is moot. DONE AND ENTERED this 10th day of June, 2021, in Tallahassee, Leon County, Florida. S ROBERT S. COHEN 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 10th day of June, 2021. COPIES FURNISHED: Tammy S. Barton, Agency Clerk Florida Commission on Human Relations 4075 Esplanade Way, Room 110 Tallahassee, Florida 32399-7020 J. Henry Cartwright, Esquire Fox McCluskey Bush Robison, PLLC 3461 Southeast Willoughby Boulevard Post Office Drawer 6 Stuart, Florida 34995 John Sebastian Quick Apartment 4 9900 South Ocean Drive Jensen Beach, Florida 34957 Cheyanne M. Costilla, General Counsel Florida Commission on Human Relations 4075 Esplanade Way, Room 110 Tallahassee, Florida 32399-7020
