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 Whether Respondent discriminated against Petitioner in the terms, conditions, or privileges of rental of a dwelling; or provision of services or facilities in connection therewith, in violation of the Florida Fair Housing Act (“the Act”), section 760.23, Florida Statutes (2019).
Findings Of Fact Petitioner is a female residing in Tallahassee, Florida, who purports to have diagnoses of depression, attention-deficit/hyperactivity disorder (“ADHD”), and a learning disability. Petitioner offered no evidence regarding how her diagnoses affect her daily life. Petitioner originally signed a lease with Respondent to rent apartment F201 at Sabal Court Apartments, 2125 Jackson Bluff Road, Tallahassee, Florida, from November 1, 2017, to October 31, 2018. Petitioner moved into the apartment with her two minor children on November 2, 2017. Petitioner testified her two minor children also have ADHD. On October 24, 2018, Petitioner renewed her lease for the apartment for the term of November 1, 2018, through October 31, 2019. Petitioner testified that, during the term of both leases, she experienced problems with the apartment; including mold in the bathroom, bed bugs, ants, roaches, spiders, and cracked flooring. Most distressing to Petitioner was the air conditioning unit, which Petitioner alleges was filthy and failed to cool the apartment. Petitioner testified she submitted several requests for the unit to be serviced, but it was never repaired to good working condition. Petitioner complained that the apartment was too hot—frequently reaching temperatures in excess of 80 degrees—for her and her children to sleep at night. On August 7, 2019, Petitioner executed a lease renewal form, requesting to renew her lease for an additional 12 months—through October 31, 2020. On September 23, 2019, Respondent posted a Notice of Non-Renewal of Lease (“Notice”) on Petitioner’s apartment door. The Notice notified Petitioner that her tenancy would not be renewed and that she was expected to vacate the premises on or before October 31, 2019. Petitioner testified that she did not know why her lease was non- renewed, but believed it to be additional mistreatment of her and her family by Respondent. In response to the undersigned’s question why Petitioner believed Respondent’s treatment of her to be related to her handicap, or that of her children, Petitioner replied that she does not believe that the non-renewal of her lease, or other issues with Respondent’s management, was based on either her handicap or that of her children.
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 Petition for Relief from a Discriminatory Housing Practice No. 202021115. DONE AND ENTERED this 11th day of May, 2020, 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 11th day of May, 2020. COPIES FURNISHED: Tammy S. Barton, Agency Clerk Florida Commission on Human Relations Room 110 4075 Esplanade Way Tallahassee, Florida 32399-7020 (eServed) Dastha L. Crews Apartment A 2125 Pecan Lane Tallahassee, Florida 32303 (eServed) Joni Henley, Assistant Manager Sabal Court Apartments 2125 Jackson Bluff Road Tallahassee, Florida 32304 Todd A. Ruderman Green Oaks Tampa, LLC Suite 218 3201 West Commercial Boulevard Fort Lauderdale, Florida 33309 Cheyanne Costilla, General Counsel Florida Commission on Human Relations Room 110 4075 Esplanade Way Tallahassee, Florida 32399-7020 (eServed)
The Issue Whether Respondent unlawfully discriminated against Petitioner by failing to reasonably accommodate her handicap, in violation of Florida?s Fair Housing Act.
Findings Of Fact Petitioner is the owner of Unit No. 710 (“Unit”) in the Sixth Moorings Condominium, located in Miami, Florida. Petitioner lived there for approximately 11 years. She is not currently living in the Unit. Respondent is the condominium association responsible for the operation and management of the Sixth Moorings Condominium. In early 2010, Petitioner suffered a stroke and underwent heart surgery. It is undisputed that as a result of her illness, Petitioner is “handicapped” for purposes of the Fair Housing Act.4/ Petitioner spent several months in hospitals and nursing homes recovering from her stroke and surgeries. When she was released from these facilities, she did not resume living in the Unit. She testified that this was because she could not go up a curb or steps, and because the condominium?s elevator frequently was out of order.5/ She moved into a ground floor apartment a few blocks away from the Sixth Moorings Condominium. Petitioner is not able to perform many basic tasks, such as grocery shopping, driving, cleaning her apartment, taking out the garbage, or retrieving her mail. Consequently, she decided to invite her nephew, Charles Alsberg, to move into the Unit, where he would be only a few minutes away from the apartment in which she was residing, and thus could serve as her caretaker. Alsberg moved into the Unit in or around August 2010. Petitioner did not reside in the Unit with Alsberg. She testified that even though he is a family member, she would not live in the Unit with him because she is “an elderly woman from a different generation and [she] would not live with a young man unless he was [her] biological son.” In late 2010, Respondent?s President, John Koble, contacted Petitioner about Alsberg living in her Unit. Petitioner asked Koble to allow Alsberg to reside in the Unit so that he could serve as her caretaker, but Koble told her that because she was not residing there, Alsberg was considered an unauthorized guest in violation of the condominium?s restrictive covenants, and that he therefore must move out. Nonetheless, Alsberg continued to reside in the Unit for several more months, until he became ill and was hospitalized. Following his release in August 2011, Alsberg returned to live in the Unit. At this point, Respondent——this time, through counsel——sent Petitioner a letter stating that she was violating the restrictive covenant prohibiting unauthorized guests, and demanding that Alsberg vacate the unit. On September 13, 2011, Petitioner?s attorney sent a response letter requesting that, due to restrictions on Alsberg?s activity as a result of his illness, he be allowed to remain in the Unit for approximately 60 days. By correspondence dated September 15, 2011, Respondent agreed to allow Alsberg to remain in the Unit through November 12, 2011. At hearing, Petitioner acknowledged that Respondent granted her request to allow Alsberg to stay there during his recuperation. Notwithstanding this agreement, Alsberg did not vacate the Unit until sometime in early 2012, several months after the November 12, 2011 deadline. During this time, Respondent sent numerous pieces of correspondence that Petitioner characterized as “harassing” and “threatening,” regarding enforcement of the condominium?s covenants and rules. Alsberg finally vacated the Unit after Respondent sent a “final notice” letter. Currently, Alsberg is residing in an apartment approximately four blocks from Petitioner?s apartment and is serving as her caretaker. Koble testified that he was sympathetic to Petitioner?s circumstances, but it was imperative that Respondent consistently enforce the restrictive covenants for the benefit of all unit owners. Koble noted that other unit owners also wanted to allow unauthorized guests to live in their units, and that if Respondent relaxed enforcement of the covenant for Petitioner, it would be forced to do so for others. The undersigned credits this testimony. Koble also testified, credibly, that if Petitioner were residing in her unit, Respondent would have granted an accommodation of the covenant to allow Alsberg to live there for the purpose of serving as her caretaker.6/ The evidence establishes that Petitioner did not request any accommodation from Respondent that was necessary for her equal opportunity to use and enjoy the Unit; rather, the purpose of Petitioner?s request that Respondent not enforce the restrictive covenant against her was to enable her nephew to live in the Unit.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Florida Commission on Human Relations enter a Final Order finding no unlawful discrimination by Respondent and dismissing the Petition for Relief. DONE AND ENTERED this 29th day of May, 2012, in Tallahassee, Leon County, Florida. S CATHY M. SELLERS Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 29th day of May, 2012.
The Issue Whether Respondents discriminated against Petitioner in the provision of housing, or services in connection therewith, in violation of the Florida Fair Housing Act (“the Act”).
Findings Of Fact Petitioner, Pedro Tamayo, suffers from anxiety, depression, memory loss, and complex regional pain syndrome (“RPD”). Respondent, Avtec, is a residential construction contractor, doing business in Palm Bay, Florida. On November 10, 2018, Petitioner executed a Contract for Sale and Purchase (“Contract”) with Avtec to construct a residential structure on property owned by Petitioner on Raleigh Road Southeast in Palm Bay, Florida. The specific floor plan chosen by Petitioner was the Citation 4 Plus. Avtec executed the Contract on November 12, 2018. The Contract covers clearing of property for construction, materials and color selections by the buyer, and the buyer’s right to reverse the floor plan, among other terms. When Petitioner entered into the Contract, he simultaneously chose many of the options available to customize the Citation 4 Plus, such as impact windows, an exterior pedestrian door in the garage, and a front septic system. Among the options Petitioner chose was 36-inch (36”) doors for the master bedroom entrance, closet, and master bathroom entrance. Petitioner has no obvious physical disability and does not require use of a wheelchair or walker. Construction Setback The Contract does not address the construction setbacks from the property lines. Setbacks are governed by local government codes and Avtec is required to follow those codes. On November 30, 2018, Petitioner met with his sales agent, Sean McCarry, at the Avtec showroom, to discuss some of the options he had chosen for his new home. They specifically discussed plumbing issues for the master bathroom, 36” wide doors in the master bedroom, placement of the septic tank, the concrete culverts for the driveway, and a 45-foot (45’) setback of the home from the property line. While the standard setback for a home with a front septic tank is 38’ to 40’, Petitioner indicated he wanted to build an aluminum carport, which required additional setback footage. Respondent Amicucci stepped into the meeting with Petitioner and Mr. McCarry to address Petitioner’s request for mitered ends on the culvert pipe. Mr. Amicucci was not present when Petitioner requested a 45’ setback. Mr. McCarry verbally agreed to “take care of” the setback requested by Petitioner. Petitioner’s selection of 36” doorways for the master bedroom, and a front septic system were reduced to writing and included in the Contract, signed by both parties, as an Option to Sales Agreement. Petitioner executed five addenda to the Contract between November 30, 2018, and May 1, 2019, including optional upgrades and a modification to the design of the sidewalk. On July 23, 2019, Petitioner and Avtec executed a change order to include the mitered ends of the culvert pipe. No part of the Contract, any addenda thereto, or any change order, addresses Petitioner’s request for a 45’ setback. Section 28 of the Contract provides that “NO OTHER AGREEMENTS exist between the BUYER and SELLER except as set forth in this Agreement. This Agreement shall not be modified except by an instrument in writing executed by both BUYER and SELLER.” Section 29 of the Contract contains the following statement in red underlined text: No representative of Seller has authority to make any verbal statements that modify or change the terms or conditions of this contract. Buyer represents that buyer has read and understands this entire contract. Buyer also represents that buyer is not relying on any verbal statement, promise, or condition not specifically set forth in this contract. It is acknowledged that builder is relying on these representations and would not enter into this contract without this understanding. Section 20 of the Contract specifically provides, “Once the rough plumbing is installed, absolutely NO CHANGES will be allowed.” Petitioner’s new home was built 40’ from the property line, rather than 45’ as Petitioner requested. Sometime after the rough plumbing was installed and the foundation was poured, Petitioner complained to Avtec that his home was not built with a 45’ setback as promised by Mr. McCarry. On August 22, 2019, Avtec, through its Director of Corporate Development, responded in writing to Petitioner’s complaint. Avtec apologized that the home was not built to the setback he had communicated to Mr. McCarry, and referred to the Contract terms that exclude any verbal agreements. Avtec offered to release Petitioner from his contract, refund his deposit of $6,250, and give Petitioner $30,000 for the property after selling it to another buyer. On November 13, 2019, Petitioner signed a “Final Acceptance of Completion” of the construction of his home. Fill Dirt On March 8, 2019, Petitioner drove by the construction site and noted that the fill dirt being used was “contaminated” with tree branches and other material. He drove to the model home to discuss the issue with Mr. McCarry. Mr. McCarry contacted Mr. Amicucci, who agreed to meet Petitioner at the property to inspect the fill and address Petitioner’s concerns. Petitioner and Mr. Amicucci testified to two very different versions of the events at the construction site that day. Petitioner testified that, when Mr. Amicucci arrived, he got out of his vehicle, visibly upset, and raised his voice and cursed at Petitioner regarding his lack of knowledge of proper fill material. Petitioner testified, specifically that: I feared that [Mr. Amicucci] would physically attack me by his aggressive demeanor and I immediately froze. I could not comprehend how a paying customer could be treated this way by raising concerns for the foundation of my home. I am not a builder. [Mr. Amicucci] simply needed to explain the common practice of standard fill. Since March 8th, 2019, my quality of life has not been the same. I have severe anxiety due to the memories of that day and suffer constant nightmares. I feel as [sic] my life can be in danger and, therefore, live in a state of high alert. My daily life has been disrupted. Simply having to drive by Avtec showroom due to my normal routine routes triggers flashbacks of that day. Mr. Amicucci testified that when he arrived at the property, Petitioner was upset and aggressive toward him, demanding that the fill be removed from his property. Mr. Amicucci reassured Petitioner that the fill was all good soil and that it would be root-raked before it was spread for the foundation. Mr. Amicucci explained the root-raking process and the equipment used therefor. Nevertheless, Petitioner insisted that Mr. Amicucci go with him to another construction site to show him the type of fill he wanted used on his property. Mr. Amicucci accompanied Petitioner to the specific construction site, which was not an Avtec project, and Mr. Amicucci identified the fill being used there as a hard white shell material. Mr. Amicucci assured Petitioner that the brown sandy soil imported to his property would be better for the sod and plants Petitioner would be using to landscape the property. Mr. Amicucci testified that, at the end of the meeting, Petitioner extended his hand and said, “[l]ook, that all sounds good. I just want to start back over. Are we good?” Mr. Amicucci shook Petitioner’s hand and assured him that they “were good.” Mr. Amicucci’s testimony regarding the events that occurred on March 8, 2019, is accepted as more credible and reliable than Petitioner’s. Knowledge of Petitioner’s Disability Mr. Amicucci testified that he was not aware that Petitioner had any kind of disability until the Complaint was filed against him and Avtec. Petitioner testified that his disability was revealed to Mr. Amicucci on November 30, 2018, during a meeting at the Avtec showroom to discuss the various options selected by Petitioner when he signed the contract. Petitioner testified that Mr. Amicucci asked him what he did for a living and Petitioner told him that he was retired and disabled from the City of Hialeah. He testified that Mr. Amicucci was further on notice because Petitioner always wears a glove to improve circulation in his right hand and that he can hardly sign his name, which would have been apparent to Mr. Amicucci at the November 30, 2018 meeting. Finally, Petitioner alleges Mr. Amicucci should have been aware of his disability because he requested 36” ADA-compliant door widths for the master bedroom. Mr. Amicucci did not recall Petitioner telling him he was disabled or seeing Petitioner wearing a glove. He did recall seeing Petitioner wearing a sling of some sort and inquiring whether he had been injured. He recalled Petitioner telling him it was related to an old injury. Mr. Amicucci was not present for any discussion about the 36” doorways. Assuming, arguendo, that he was present for that discussion, a request for 36” doorways alone is not proof of a disability. Many buyers upgrade to larger doorways to accommodate larger furniture or in anticipation of needing a walker or wheelchair access in the future. Furthermore, requesting ADA-compliant doorways is irrelevant to Petitioner’s claim that he has emotional disabilities and chronic pain. The evidence does not support a finding that Mr. Amicucci knew of Petitioner’s disabilities of anxiety, depression, memory loss, and RPD. No other witness was offered on behalf of Avtec. There is no evidence to support a finding that Avtec had knowledge of Petitioner’s disability through any other employee.
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 Petition for Relief from a Discriminatory Housing Practice No. 202022149. DONE AND ENTERED this 22nd day of December, 2020, 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 22nd day of December, 2020. COPIES FURNISHED: Mike Amicucci Suite 3 590 Malabar Road Palm Bay, Florida 32909 Tammy S. Barton, Agency Clerk Florida Commission on Human Relations Room 110 4075 Esplanade Way Tallahassee, Florida 32399-7020 (eServed) Pedro Tamayo 987 Raleigh Road Southeast Palm Bay, Florida 32909 (eServed) Rebecca E. Rhoden, Esquire Lowndes, Drosdick, Doster, Kantor & Reed, P.A. 215 North Eola Drive Orlando, Florida 32801 (eServed) Lawrence F. Sietsma Avtec Homes, Inc. et al 2860 North Riverside Drive Indialantic, Florida 32903 Cheyanne Costilla, General Counsel Florida Commission on Human Relations Room 110 4075 Esplanade Way Tallahassee, Florida 32399-7020 (eServed)
The Issue The issue is whether Respondent engaged in a discriminatory housing practice, within the meaning of and in violation of the Florida Fair Housing Act, Sections 760.20 through 760.37, Florida Statutes (2005), by requiring Petitioners to submit a second application for the approval of a condominium purchase.
Findings Of Fact It is undisputed that Petitioner, Allan Kangas, has no handicap and is not a disabled person. At the conclusion of Petitioners' case-in-chief, Mr. Kangas testified that he has no handicap. The undersigned, sua sponte, entered an ore tenus order on the record dismissing the case brought by Mr. Kangas. Petitioner, Anna Kangas, is an elderly female and the mother of Mr. Allan Kangas and Mr. Sheldon Kangas, the latter being the representative in this proceeding for the named Petitioners. It is undisputed that Mr. Sheldon Kangas is not handicapped, but that Mrs. Kangas is handicapped, within the meaning of Section 760.22(7), Florida Statutes (2005), because of Alzheimer's disease. Respondent is a condominium association lawfully incorporated as a Florida corporation (Association). Respondent must operate in accordance with the Articles of Incorporation, By-Laws, and Declaration of Condominium (condominium documents). The condominium documents require the Association to approve each purchase of a condominium. On December 8, 2005, Mr. Sheldon Kangas and Mrs. Anna Kangas contracted with Ms. Mary Cox to purchase condominium unit 15, located at 23 Hatchett Creek Road. Ms. Cox is a real estate agent and a co-owner of unit 15. Ms. Cox notified Ms. Pat Williamson, Association Secretary, of the prospective purchase. For the reasons stated herein, Respondent did not discriminate against the prospective purchasers, but approved the purchase of condominium unit 18 in a timely manner after the purchasers changed their purchase contract from unit 15 to unit 18. The prospective purchasers completed an application for approval of the purchase of unit 15 sometime between December 8 and 10, 2005. The Association conducted a meeting to approve the proposed purchase on December 10, 2005. During the meeting on December 10, 2005, the purchasers informed the Association that they wished to purchase unit 18, located at 29 Hatchett Creek Road, rather than unit 15. Unit 18 was owned by Mr. Brian Isaac. Ms. Cox did not object to releasing the purchasers from the contract for the purchase of unit 15. The Association informed the purchasers that a new application for unit 18 would be required. The purchasers completed a new application under protest. At a meeting conducted on January 3, 2006, the Association approved the application for the purchase of unit 18. The purchase of unit 18 closed on January 25, 2006. The purchasers seek reimbursement of living expenses incurred for hotel rooms and meals during the delay caused by the requirement for a second application. The purchasers are not entitled to reimbursement. The purchase of unit 18 was the first time the Association had required a second application. However, it was also the first time a purchaser had changed his or her choice of units after submitting an application. The Association did not discriminate against Mrs. Kangas because of her handicap. The record evidence contains no justifiable issue of law or fact to support the alleged discrimination.
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 2nd day of January 2007, in Tallahassee, Leon County, Florida. S DANIEL MANRY Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 Filed with the Clerk of the Division of Administrative Hearings this 2nd day of January 2007. COPIES FURNISHED: Cecil Howard, General Counsel Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301 Denise Crawford, Agency Clerk Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301 David G. Muller, Esquire Becker & Poliakoff, P.A. 630 South Orange Avenue, Third Floor Sarasota, Florida 34236 Shelden Kangas Allan Kangas 4578 Manor Drive Sarasota, Florida 34233
The Issue Whether Petitioner was the subject of discriminatory housing practices based on his race or his handicap, in violation of the Florida Fair Housing Act, chapter 760, Part II, Florida Statutes.
Findings Of Fact At all times relevant to this cause, Petitioner was a tenant of a rental apartment located at 284 South First Street, Apartment 6, Macclenny, Florida (the Apartment). Petitioner?s tenancy was established by a lease agreement with a final effective date of November 24, 2009. Petitioner moved out of the apartment on May 3, 2012. Respondent is a Florida Limited Liability Company. Among its other holdings, Respondent owns four 4-plex units located on First Street, Second Street, and Third Street in Macclenny, one of which includes the Apartment. The racial make-up of the tenants occupying Respondent?s apartments in the vicinity is roughly 50 percent African-American and 50 percent Caucasian. Petitioner is African-American. Petitioner has an unspecified mental condition. He takes medications for management of his symptoms, and receives periodic visits from Ms. Gadsby to ensure that he is complying with his medication regimen. Petitioner does not receive disability benefits from the Social Security Administration. Petitioner holds a bachelor?s degree in criminal justice from Benedict College in South Carolina. As part of the application for rental of the Apartment, Petitioner was asked “[h]ave you been arrested or had criminal charges filed against you? (If yes, please list them).” In response to the application question, Petitioner answered “yes Trepass [sic.].” The trespass charge was related to a misdemeanor incident that occurred at an unspecified time in Fort Lauderdale, Florida. Petitioner failed to disclose a felony conviction for an incident that had occurred in South Carolina. Petitioner stated that he thought the requirement to disclose criminal charges applied only to charges arising from incidents having occurred in Florida. However, nothing in the application can be read to support that limitation. As such, Petitioner materially falsified his lease application. Petitioner cut hair for members of his church, neighbors, family, and friends at the Apartment, and had done so for the two-and-one-half years of his tenancy. He equipped the Apartment with a barber chair and a small waiting area. He accepted “donations” of food, clothes, and cash for his services. The cash receipts were used to pay his electric and water bills, among other things. Thus, despite its small scale and limited clientele, Petitioner operated what can only be described as a barbershop from the Apartment. The Lease Agreement between Petitioner and Respondent provides that the Apartment was not to be used “for any other purpose than as a private dwelling unit.” The Lease Agreement also provides that Petitioner was to comply with all applicable building and housing codes. The Macclenny Code of Ordinances, Part III, Section 4-105, provides that home occupations are subordinate and incidental to a residential neighborhood, but that certain occupations, including barbershops, “shall not be considered as home occupations under any circumstance.” Thus, Petitioner?s operation of a barbershop from the Apartment was a violation of the Lease Agreement. There were no apparent landlord/tenant disputes involving Petitioner?s tenancy until late 2011. Mr. Stivender testified that he began to receive periodic complaints from tenants in the area regarding the Apartment, including cars being parked on the grass and in the road, loud music, and people milling about the premises. He testified that at least one tenant advised Respondent that she was afraid to venture out of her apartment due to the number of people in the area. The testimony of Mr. Stivender regarding complaints of other tenants would be hearsay if taken for the truth of the matters asserted. However, the undersigned accepts his testimony as evidence, not of the facts surrounding the alleged complaints, but of a non-discriminatory reason for actions to be described herein, most notably the events of March 6, 2012. At the end of October 2011, Petitioner was cited by Respondent for having more than one car regularly parked at the Apartment. Petitioner?s car was not in running condition. The other cars parked at the Apartment belonged to friends or relatives. Petitioner subsequently sold his vehicle, and would borrow his father?s or his cousin?s car when needed. The incident caused bad feelings between the parties. On November 1, 2011, Respondent sent a notice to each of its tenants in Macclenny. Although the notice was precipitated by the complaints against Petitioner and Respondent?s observations of activities in and around the Apartment, the notice was not limited to Petitioner. The notice cited provisions of the common lease agreement regarding the use of the premises and tenant conduct, and advised that excessive noise, driving on the grass, and “loitering” would be cause for eviction. The notice further advised that the landlord would “be patrolling the area on a regular basis at night to check for violations.” On March 6, 2012, Mr. Ferreria was driving by the Apartment at approximately 10:30 p.m. There were, along with Petitioner and his daughter, three guests at the Apartment, Bianca Gaines-Givens, Jacoby Givens, and Misty Lee. They were playing music on an electronic keyboard. Mr. Ferreria stopped his car on the side of the road. He called his property manager, Mr. Stivender, and advised him that he was going to go speak with Petitioner about the noise coming from the Apartment. Mr. Stivender works for a gas company, and was at work routing gas trucks. Mr. Stivender advised that he was going to come to the Apartment, and asked Mr. Ferreria to wait for him before speaking with Petitioner. Ms. Gaines-Givens and Mr. Jacoby Givens left the Apartment after Mr. Ferreria?s arrival in the neighborhood, and noticed Mr. Ferreria sitting in his vehicle. They drove away from the Apartment, but decided to return shortly thereafter. By the time they returned, Mr. Ferreria and Mr. Stivender were leaving. Thus, they did not witness the confrontation described herein. After Ms. Gaines-Givens and Mr. Jacoby Givens drove off, Mr. Ferreria, disregarding Mr. Stivender?s request, went to the Apartment and knocked on the door. It was, by then, approximately 10:45 p.m. When Petitioner answered the door, the two immediately began a heated discussion over the music and the cars. Ms. Lee went to the back of the Apartment when Mr. Ferreria arrived. She heard yelling, but heard nothing of a racial nature. Shortly after Mr. Ferreria arrived at the Apartment, Mr. Stivender arrived on the scene. Mr. Stivender is a solidly built man, and could be an intimidating presence under the right circumstances. These were the right circumstances. Mr. Stivender physically moved Mr. Ferreria out of the way, and came between Mr. Ferreria and Petitioner. He was primed for a confrontation. He had his hand in his pocket, but testified convincingly that he was not armed.1/ He and Petitioner had a loud and angry exchange of words, and Mr. Stivender forcefully suggested to Petitioner that it would probably be best if he moved out of the Apartment. After Mr. Stivender appeared on the scene, Ms. Lee came out from the back of the Apartment. She recognized Mr. Stivender as Respondent?s “office manager.” She noted that Mr. Stivender had his hand in his pocket, and was talking loudly and pointing his finger in Petitioner?s face. Ms. Lee went outside and spoke with Mr. Ferreria. She testified that Mr. Ferreria indicated that some of the neighbors were afraid of Petitioner because of the noise and the number of people who hung around the Apartment. The confrontation ended with Mr. Ferreria and Mr. Stivender leaving the premises. The police were not called. The next morning, Petitioner called Ms. Gadsby. Petitioner frequently called Ms. Gadsby when he was feeling “stressed.” She went to see him that morning, and testified that he was very upset over the events of the previous evening. She returned that afternoon for a “well-check,” and he was doing better. On March 15, 2012, Petitioner called the Baker County Sheriff?s Office to report the March 6, 2012, incident. A deputy went to the Apartment, spoke with Petitioner and Ms. Lee, took their sworn statements, and prepared an offense report. The description of the incident as reflected in the report, including statements made by Petitioner and Ms. Lee, did not contain any account of racial threats or epithets, or any allegation of discriminatory intent based on race or handicap.2/ Other than Mr. Stivender?s statement made in the heat of the March 6 argument, Respondent made no effort to evict or otherwise remove Petitioner from the Apartment. On March 31, 2012, Petitioner noticed water coming from behind a wall of the Apartment. He called Respondent, and Mr. Stivender came to the Apartment to inspect. Mr. Stivender first suspected that the air-conditioning unit was leaking. The air conditioner was turned off and Mr. Stivender left, intending to contact an air-conditioning repair service. By 6:00 p.m. on March 31, 2012, the rate of the leak was such that it was determined that a water pipe had burst under the foundation of the Apartment. Petitioner did not know where the shut-off valve was located, and was unable to stop the flow, which began to cover the floor in several rooms of the Apartment. Mr. Stivender returned to the Apartment, and determined that a car owned by one of Petitioner?s guests was parked on the grass, and was over the meter box with the shut- off valve. The car was moved, and the water turned off. Respondent called a plumber to fix the pipe. Since the pipe was under the foundation, and in order to avoid breaking up the slab, the repair was accomplished by re-routing the pipe in the wall of the Apartment. The repair entailed cutting an access hole in the drywall. That hole was not immediately repaired. Respondent also called Servpro to perform water cleanup services. The standing water was vacuumed up, and large fans and dehumidifiers were placed in the Apartment to dry it out. While the repairs and drying activities were ongoing, Respondent paid for Petitioner and his daughter to stay in a motel in Macclenny. They were there for three to four days. Respondent paid Petitioner?s power bill for the days that Petitioner was unable to use the Apartment. Petitioner returned to the Apartment, and stayed there for some time. He was upset that the access hole for the pipe repair had not been closed up, and that the baseboards had not been replaced in some areas. On April 9, 2012, Petitioner wrote to Respondent about the effects of the water leak. After thanking Respondent for the “compassion” shown to Petitioner and his family during the event, he complained about the damage to his personal property resulting from the water leak, and an odor “suggesting the presence of mold.” He stated his belief that his daughter?s preexisting asthma was aggravated by the smell in the Apartment. In his April 9, 2012, letter, Petitioner also stated that “due to my mental health condition, I am on prescribed medicine that has now been adjusted to assist me through this stressful situation.” Petitioner?s statement, which was not accompanied by any form of medical evidence, was not sufficient to place Respondent on notice that Petitioner had a record of having, or was regarded as having, any form of mental disability. Mr. Stivender testified that no one ever advised Respondent that Petitioner had a mental disability, and that Respondent had no such knowledge. The April 9, 2012, letter being insufficient on its own to convey such information, Mr. Stivender?s testimony is credited. On May 3, 2012, Petitioner moved out of the Apartment. He had been served with no eviction notice or other written request to vacate. Petitioner gave no notice to Respondent, but dropped off his key at Mr. Ferreria?s business on the day he moved out. Mr. Stivender testified that Petitioner left the Apartment in a filthy, deplorable condition. As a result, Respondent withheld Petitioner?s $400.00 security deposit to offset the costs of returning the Apartment to rentable condition. Petitioner testified that the Apartment was not in poor condition when he moved out, and that some of the damage was the result of the pipe leak. However, Petitioner did not testify, or even suggest, that the decision to withhold the deposit was the result of any racial hostility or animus, or of any reaction to his handicap. Petitioner failed to introduce any evidence that he was treated differently under similar circumstances than were tenants of Respondent who were not African-American, or who did not have comparable mental disabilities. Ultimate Findings of Fact There was no competent, substantial evidence adduced at the hearing that Respondent undertook any act pertaining to Petitioner?s occupancy of the Apartment based on Petitioner?s race. Petitioner failed to prove that Respondent knew of Petitioner?s mental disability or handicap, or that Respondent regarded Petitioner as having any such mental disability or handicap. Petitioner failed to prove that Petitioner?s race or handicap caused or contributed to the March 6, 2012, confrontation. Rather, the evidence demonstrates that the confrontation resulted from noise, issues with cars and parking, and complaints directed to Petitioner by other tenants. Petitioner failed to prove that he was ready, willing, and able to continue to rent the Apartment, but that Respondent refused to allow him to do so. Petitioner failed to prove that Respondent took any action to evict him from the Apartment, or to otherwise intentionally interfere with Petitioner?s occupancy of the premises. To the contrary, the evidence supports a finding that Respondent took reasonable and appropriate steps to repair and remediate the Apartment after the water line break, and provided no-cost accommodations to Petitioner while the Apartment was not habitable. The repairs may not have been completed to Petitioner?s satisfaction, but any such deficiency was not the result of discrimination against Petitioner based on his race or his handicap. Petitioner failed to prove that Respondent?s decision to withhold his security deposit was based on Petitioner?s race or handicap. In sum, 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 race or his handicap.
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. 2013H0034. DONE AND ENTERED this 7th day of February, 2013, 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 7th day of February, 2013.
The Issue The issue in this case is whether Respondent, Center Lake Owner's Association, Inc. ("Center Lake"), discriminated against Petitioner, James Schweim ("Schweim"), on the basis of his purported disability in violation of the Florida Fair Housing Act.
Findings Of Fact Schweim is a white male who at all times material hereto resided at Center Lake. Schweim provided some evidence of his medical condition at final hearing, but did not affirmatively establish a disability, per se. Notwithstanding that fact, a review of the facts will be made concerning the merits of Schweim's claim. Center Lake is the homeowner's association for the Center Lake subdivision located in Manatee County. The association has been in existence since 1986. The subdivision is subject to various deed restrictions as set forth in the Declaration of Covenants, Conditions and Restrictions for Centre1/ Lake, recorded at O.R. Book 1168, Page 1508, in the public records of Manatee County, Florida. Of significance to this proceeding, Section 11 of the deed restrictions is relevant. Section 11, as it will be referred to herein, states in whole: Vehicles. No vehicle of a subdivision resident shall be parked in the subdivision except on a paved driveway, or inside a garage. No vehicle shall at anytime be parked on grass or other vegetation. No trucks or vehicles which are used for commercial purposes, other than those present on business, nor any trailers, may be parked in the subdivision unless inside a garage and concealed from public view. Boats, boat trailers, campers, vans, motorcycles and other recreational vehicles and any vehicle not in operable condition or validly licensed shall be permitted in the subdivision only if parked inside a garage and concealed from public view. No maintenance or repair of any boat or vehicle shall be permitted upon any Lot except within an enclosed garage. Beginning some time in 2004, Schweim and Center Lake commenced a dispute concerning Schweim's alleged violation of the provisions of Section 11. Specifically, Schweim was accused of parking a recreational vehicle (the "RV") on his property in violation of the deed restriction. There is no dispute between the parties that Schweim owns a 23-foot recreational vehicle, which is kept on his property (at 3550 65th Avenue Circle East). As a result of the 2004 dispute, the parties entered into a Settlement Stipulation signed by Center Lake and its attorneys on December 6 and 7, 2004, respectively. Schweim's attorney signed the document on November 24, 2004; Schweim and his wife signed on that same date. The Settlement Stipulation was admitted into evidence at the final hearing. Schweim asserted that the version of the Settlement Stipulation entered into evidence was not the version he signed, but the most persuasive evidence is that it is the same version. Schweim does not agree that all the terms and conditions in the Settlement Stipulation were extant at the time he signed, but he could not produce a copy of any other version of the document for comparison. In the Settlement Stipulation, Schweim agreed to move the RV from his property and not to bring it onto the property except for loading or unloading. In exchange, Center Lake agreed to voluntarily dismiss its then-pending lawsuit against Schweim. Despite the resolution of the aforementioned lawsuit, Schweim did not remove his RV from his property. Instead, Schweim kept the RV on the property and, ultimately, filed a discrimination action against Center Lake because of their efforts to have him remove the RV. That action is the subject of the instant proceeding. Schweim does not dispute that he is keeping the RV on his property in violation of the deed restrictions. Rather, Schweim suggests that he should be allowed to do so on three bases: One, that he is proposing a fence on his property that will cover the RV and make it hidden from view from the street; Two, that there are other residents of the subdivision who are also in violation of the deed restrictions; and, three, that he is disabled and needs the RV parked on his property to accommodate his disability. As to his first reason, Schweim's proposal is simply that, a proposal. There is no evidence that the fence proposed by Schweim would satisfy the requirements of the deed restriction. Further, Center Lake has no confidence, based on its history with Schweim, that he would follow through with the proposal. There is some evidence that other residents in the area appear to be in violation of the deed restrictions. However, there was no evidence presented at final hearing that those residents had refused to move their vehicles upon filing of a complaint. That is, the homeowner's association tends not to take any action unless a homeowner files a formal complaint concerning a violation. In Schweim's case, several complaints were filed as to his RV. There was also some discussion at final hearing as to the appropriate licensure for the RV. Any vehicle not properly licensed is not allowed to be parked in the subdivision based on the deed restrictions. However, Schweim says the license is currently up-to-date and that is no longer an issue. Concerning Schweim's disability, he presented the following facts: At age 23, Schweim suffered a gunshot wound to his abdomen, causing long-term damage; In 1991, Schweim had a ruptured disc; Surgical fusion of his disc was performed in 2002 and again in 2004; In 2009, Schweim underwent a lumbar fusion. As a result of those events, Schweim has what he describes as an acute medical condition limiting his ambulatory abilities. At the final hearing, Schweim negotiated the hearing room slowly and with some difficulty. Judy Schweim, a nurse, testified that she transports Schweim to doctor's appointments and other medical situations. At times, Schweim's back will "go out," and she is responsible for getting him to medical treatment as soon as possible. Schweim produced evidence that he has received a Florida parking permit for disabled persons. The application for the permit indicates his condition as "severe limitation in a person's ability to walk due to an arthritic, neurological, or orthopedic condition." A doctor's order dated May 6, 2004, indicates that it is "medically necessary for [Schweim] to have ready access to a walk-in vehicle to accommodate his disability." An August 19, 2010, memo from Dr. Tally at the Neuro Spinal Associates, P.A., and a September 27, 2010, memo from the Dolphin Medical Group, state essentially the same thing. None of the hearsay documents were sufficient to establish a disability, per se. Schweim says that his disability makes it necessary for him to have the RV parked in his yard so that, when necessary, he can use it to get medical treatment. Schweim says that when his back goes out, he needs a vehicle that he can walk into while standing up. He cannot sit down into an automobile at those times. The incidences of Schweim's debilitating back pain only occur every couple of years. When not experiencing that pain, Schweim is able to drive his red car, described by neighbors as a "hot rod," without any problem. Schweim drove a motorcycle for years, but says he has not driven it for quite some time. Schweim said that an ambulance was not a viable option for him when he has the back pain, because the ambulance will not take him where he needs to go, i.e., straight to a particular doctor, rather than the emergency room. There is no competent evidence to support that contention. Schweim candidly admits that the only time he needs the RV is when he has an episode with his back and that such episodes are few and far between. And while it is true that an episode may occur at any time, there is insufficient evidence to support Schweim's claim that the RV is integral to him receiving prompt and appropriate medical care.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a final order be entered by the Florida Commission on Human Relations dismissing the Petition for Relief filed by Petitioner, James Schweim, in its entirety. DONE AND ENTERED this 7th day of July, 2011, in Tallahassee, Leon County, Florida. R. BRUCE MCKIBBEN 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 7th day of July, 2011.
The Issue The issue in this case is whether Respondent unlawfully discriminated against Petitioner on the basis of her religion or national origin in violation of the Florida Fair Housing Act.
Findings Of Fact Petitioner Tal Simhoni ("Simhoni"), a Jewish woman who identifies the State of Israel as her place of national origin, at all times relevant to this action owned Unit No. 212 in Mimo on the Beach I Condominium (the "Condominium"), which is located in Miami Beach, Florida. She purchased this unit in 2009 and a second apartment (Unit No. 203) in 2010. Simhoni has resided at the Condominium on occasion but her primary residence, at least as of the final hearing, was in New York City. The Condominium is a relatively small community consisting of two buildings comprising 28 units. Respondent Mimo on the Beach I Condominium Association, Inc. ("Association"), a Florida nonprofit corporation, is the entity responsible for operating and managing the Condominium and, specifically, the common elements of the Condominium property. Governing the Association is a Board of Directors (the "Board"), a representative body whose three members, called "directors," are elected by the unit owners. Simhoni served on the Board for nearly seven years. From July 2010 until April 2011, she held the office of vice- president, and from April 2011 until June 1, 2017, Simhoni was the president of the Board. Simhoni's term as president was cut short when, in May 2017, she and the other two directors then serving with her on the Board were recalled by a majority vote of the Condominium's owners. The Association, while still under the control of the putatively recalled directors, rejected the vote and petitioned the Department of Business and Professional Regulation, Division of Condominiums, Timeshares, and Mobile Homes ("DBPR"), for arbitration of the dispute. By Summary Final Order dated June 1, 2017, DBPR upheld the recall vote and ordered that Simhoni, Marisel Santana, and Carmen Duarte be removed from office, effective immediately. The run-up to the recall vote entailed a campaign of sorts to unseat Simhoni, which, as might be expected, caused friction between neighbors. Without getting into details that aren't important here, it is fair to say that, generally speaking, the bloc opposed to Simhoni believed that she had poorly managed the Condominium, especially in connection with the use of Association funds. Some of Simhoni's critics were not shy about voicing their opinions in this regard, which—— understandably——led to hard feelings. Simhoni vehemently disputes the charges of her critics and, clearly, has not gotten over her recall election defeat, which she blames on false, unfair, and anti-Semitic accusations against her. This is a case of alleged housing discrimination brought under Florida's Fair Housing Act (the "Act"). Specifically, Simhoni is traveling under section 760.23(2), Florida Statutes, which makes it "unlawful to discriminate against any person in the terms, conditions, or privileges of sale or rental of a dwelling, or in the provision of services or facilities in connection therewith, because of race, color, national origin, sex, handicap, familial status, or religion." (Emphasis added). The applicable law will be discussed in greater detail below. The purpose of this brief, prefatory mention of the Act is to provide context for the findings of fact that follow. The principal goal of section 760.23(2) is to prohibit the denial of access to housing based on discriminatory animus. Simhoni, however, was not denied access to housing. She is, in fact, a homeowner. Contrary to what some might intuit, the Act is not an all-purpose anti-discrimination law or civility code; it does not purport to police personal disputes, quarrels, and feuds between neighbors, even ugly ones tinged with, e.g., racial or religious hostility. To the extent the Act authorizes charges based on alleged post-acquisition discrimination, such charges must involve the complete denial of services or facilities that are available in common to all owners as a term or condition of ownership——the right to use common areas, for example, pursuant to a declaration of condominium. Moreover, the denial of access to common services or facilities logically must result from the actions of a person or persons, or an entity, that exercises de facto or de jure control over access to the services or facilities in question. This is important because, while Simhoni believes that she was subjected to anti-Semitic slurs during her tenure as Board president, the fact is that her unfriendly neighbors——none of whom then held an office on the Board——were in no position to (and in fact did not) deny Simhoni access to common services and facilities under the Association's control, even if their opposition to her presidency were motivated by discriminatory animus (which wasn't proved). As president of the Board, Simhoni wound up on the receiving end of some uncivil and insensitive comments, and a few of her neighbors seem strongly to dislike her. Simhoni was hurt by this. That impolite, even mean, comments are not actionable as unlawful housing discrimination under section 760.23(2) is no stamp of approval; it merely reflects the relatively limited scope of the Act. Simhoni has organized her allegations of discrimination under six categories. Most of these allegations do not implicate or involve the denial of common services or facilities, and thus would not be sufficient to establish liability under the Act, even if true. For that reason, it is not necessary to make findings of fact to the granular level of detail at which the charges were made. The Mastercard Dispute. As Board president, Simhoni obtained a credit card for the Association, which she used for paying common expenses and other Association obligations such as repair costs. In applying for the card, Simhoni signed an agreement with the issuer to personally guarantee payment of the Association's account. It is unclear whether Simhoni's actions in procuring this credit card were undertaken in accordance with the Condominium's By-Laws, but there is no evidence suggesting that Simhoni was forced, encouraged, or even asked to co-sign the Association's credit agreement; she seems, rather, to have volunteered. Simhoni claims that she used personal funds to pay down the credit card balance, essentially lending money to the Association. She alleges that the Association has failed to reimburse her for these expenditures, and she attributes this nonpayment to anti-Semitism. There appears to be some dispute regarding how much money, if any, the Association actually owes Simhoni for common expenses. The merits of her claim for repayment are not relevant in this proceeding, however, because there is insufficient persuasive evidence in the record to support a finding that the Association has withheld payment based on Simhoni's religion or national origin. Equally, if not more important, is the fact that Simhoni's alleged right to reimbursement is not a housing "service" or "facility" available in common to the Condominium's owners and residents. Nonpayment of the alleged debt might constitute a breach of contract or support other causes of action at law or in equity, but these would belong to Simhoni as a creditor of the Association, not as an owner of the Condominium. In short, the Association's alleged nonpayment of the alleged debt might give Simhoni good legal grounds to sue the Association for, e.g., breach of contract or money had and received——but not for housing discrimination. The Estoppel Certificate. On September 20, 2017, when she was under contract to sell Unit No. 212, Simhoni submitted a written request to the Association for an estoppel certificate, pursuant to section 718.116(8), Florida Statutes. By statute, the Association was obligated to issue the certificate within ten business days——by October 4, 2017, in this instance. Id. The failure to timely issue an estoppel letter results in forfeiture of the right to charge a fee for preparing and delivering the certificate. § 718.116(8)(d), Fla. Stat. The Association missed the deadline, issuing the certificate one-week late, on October 11, 2017; it paid the prescribed statutory penalty for this tardiness, refunding the preparation fee to Simhoni as required. Simhoni attributes the delay to anti-Semitism. It is debatable whether the issuance of an estoppel letter is the kind of housing "service" whose deprivation, if based on religion, national origin, or another protected criterion, would support a claim for unlawful discrimination under the Act. The undersigned will assume for argument's sake that it is such a service. Simhoni's claim nonetheless fails because (i) the very statute that imposes the deadline recognizes that it will not always be met and provides a penalty for noncompliance, which the Association paid; (ii) a brief delay in the issuance of an estoppel letter is not tantamount to the complete deprivation thereof; and (iii) there is, at any rate, insufficient persuasive evidence that the minimal delay in issuing Simhoni a certificate was the result of discriminatory animus. Pest Control. Pest control is not a service that the Association is required to provide but, rather, one that may be provided at the discretion of the Board. During Simhoni's tenure as Board president, apparently at her urging, the Association arranged for a pest control service to treat all of the units for roaches, as a common expense, and the apartments were sprayed on a regular basis. If the exterminator were unable to enter a unit because, e.g., the resident was not at home when he arrived, a locksmith would be summoned to open the door, and the owner would be billed individually for this extra service. After Simhoni and her fellow directors were recalled, the new Board decided, as a cost-control measure, to discontinue the pest control service, allowing the existing contract to expire without renewal. Owners were notified that, during the phaseout, the practice of calling a locksmith would cease. If no one were home when the pest control operator showed up, the unit would not be sprayed, unless the owner had left a key with the Association or made arrangements for someone else to open his door for the exterminator. By this time, Simhoni's principal residence, as mentioned, was in New York. Although she knew that the locksmith option was no longer available, Simhoni failed to take steps to ensure that the pest control operator would have access to her apartment when she wasn't there. Consequently, Simhoni's unit was not sprayed on some (or perhaps any) occasions during the phaseout. Simhoni blames anti-Semitism for the missed pest control visits, but the greater weight of the evidence fails to support this charge. Simhoni was treated the same as everyone else in connection with the pest control service. Moreover, Simhoni was not completely deprived of access to pest control, which would have been provided to her if she had simply made arrangements to permit access to her unit. Short-term Rentals. Article XVII of the Condominium's Declaration of Condominium ("Declaration"), titled Occupancy and Use Restrictions, specifically regulates leases. Section 17.8 of the Declaration provides, among other things, that the Association must approve all leases of units in the Condominium, which leases may not be for a term of less than one year. In other words, the Declaration prohibits short-term, or vacation, rentals, which are typically for periods of days or weeks. Short-term rentals can be lucrative for owners, especially in places such as Miami Beach that attract tourists who might be interested in alternatives to traditional hotel lodgings. On the flip side, however, short-term rental activity is not necessarily welcomed by neighboring residents, who tend to regard transients as being insufficiently invested in preserving the peace, quiet, and tidy appearance of the neighborhood. At the Condominium, the question of whether or not to permit short-term rentals has divided the owners into competing camps. Simhoni is in favor of allowing short-term rentals. Accordingly, while she was Board president, the Association did not enforce the Declaration's prohibition of this activity. (It is possible, but not clear, that the Association was turning a blind eye to short-term rentals even before Simhoni became a director.) This laissez-faire approach did not sit well with everyone; indeed, dissatisfaction with short-term rentals provided at least some of the fuel for the ultimately successful recall effort that cost Simhoni her seat on the Board. After Simhoni and the rest of her Board were removed, the new directors announced their intent to enforce the Declaration's ban on short-term rentals. Simhoni alleges that the crackdown on short-term rentals was an act of religion-based housing discrimination. Her reasoning in this regard is difficult to follow, but the gist of it seems to be that the Association is selectively enforcing the ban so that only Simhoni and other Jewish owners are being forced to stop engaging in short-term rental activity; that the prohibition is having a disparate impact on Jewish owners; or that some owners are harassing Simhoni by making complaints about her to the City of Miami Beach in hopes that the City will impose fines against her for violating municipal restrictions on short-term rentals. The undersigned recognizes that a neutral policy such as the prohibition of short-term rentals conceivably could be enforced in a discriminatory manner, thus giving rise to a meritorious charge under the Act. Here, however, the evidence simply does not support Simhoni's contentions. There is insufficient evidence of disparate impact, disparate treatment, selective enforcement, harassment, or discriminatory animus in connection with the Association's restoration of the short-term rental ban. To the contrary, the greater weight of the evidence establishes that the Association is trying to stop short-term rentals at the Condominium for a perfectly legitimate reason, namely that a majority of the owners want section 17.8 of the Declaration to be given full force and effect. The Feud with Flores. Simhoni identifies Mr. and Ms. Flores as the worst of her antagonists among her neighbors. As advocates of the recall, these two were fierce critics of Simhoni. The Floreses reported Simhoni to the City of Miami Beach for engaging in short-term rentals without the required business tax receipt, in violation of the municipal code. At a code enforcement hearing, Mr. Flores gave Simhoni the finger. None of this, however, amounts to housing discrimination because the Floreses' actions did not completely deprive Simhoni of common facilities or services, even if such actions were motivated by anti-Semitism, which the greater weight of the evidence fails to establish. Indeed, there is no persuasive evidence that the Floreses ever had such control over the Condominium's facilities or services that they could have denied Simhoni access to them. Simhoni argues in her proposed recommended order, apparently for the first time, that the Floreses' conduct created a "hostile housing environment." Putting aside the legal problems with this belatedly raised theory, the Floreses' conduct was not sufficiently severe and pervasive, as a matter of fact, to support a "hostile environment" claim. Nor is there sufficient persuasive evidence in the record to support a finding that the Floreses acted in concert with the Board to harass Simhoni, or that the Board acquiesced to the Floreses' conduct. Roof Repairs. Simhoni alleges that the Association failed to repair the area of the roof over her unit, which she claims was damaged in Hurricane Irma, and that the Association has refused to make certain repairs inside her unit, which she asserts sustained interior water damage as a result of roof leaks. Simhoni asserts that, using Association funds, the Association not only repaired other portions of the roof, but also fixed interior damages similar to hers, for the benefit of non-Jewish owners. The greater weight of the persuasive evidence shows, however, that the roof over Simhoni's unit is not damaged, and that the Association never instructed the roofing contractor not to make needed repairs. Simhoni, in short, was not denied the service of roof repairs. As for the alleged damage to Simhoni's unit, section 7.1 of the Declaration provides that repairs to the interior of a unit are to be performed by the owner at the owner's sole cost and expense. The evidence fails to establish that the interior damage of which Simhoni complains falls outside of her duty to repair. Because this is a housing discrimination case, and not a legal or administrative proceeding to enforce the terms of the Declaration, it is neither necessary, nor would it be appropriate, for the undersigned to adjudicate fully the question of whether the Association is obligated to repair Simhoni's unit as a common expense. Here, it is sufficient to find (and it is found) that section 7.1 of the Declaration affords the Association a legitimate, nonpretextual, nondiscriminatory reason to refuse, as it has, to perform the interior repairs that Simhoni has demanded.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Florida Commission on Human Relations enter a final order finding the Association not liable for housing discrimination and awarding Simhoni no relief. DONE AND ENTERED this 26th day of February, 2019, in Tallahassee, Leon County, Florida. S JOHN G. VAN LANINGHAM Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 26th day of February, 2019.
The Issue 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 Petitioners have been subjected to illegal discriminatory treatment by Respondent in violation of the Florida Fair Housing Act.
Findings Of Fact Petitioners' complaint, which was dismissed by FCHR on March 24, 2003, resulted from a Housing Discrimination Complaint dual-filed with FCHR and HUD. Petitioners seek to become landlords under the Federal government's Section 8 Program, administered in the Ocala area by Respondent. It is the responsibility of Respondent to receive applications from owners of properties, like Petitioners, who are willing to rent those properties to economically adversely-affected individuals. Respondent then inspects the properties and determines a rental allowance or the amount of supplemental Federal money to be paid the landowner for the rental of a specific property, thereby allowing the economically deprived person a place to live. Petitioners claim that Respondent has discriminated against them by refusing to allow Petitioners to participate in the Section 8 program; specifically, by not making reasonable rent determinations and delaying inspections which are preliminary to a determination of a rental rate. Petitioners did not offer evidence of any specific acts of race-based discrimination. Nor did Petitioners cite any specific information concerning disparate treatment of landlords in the Section 8 program based on race. Further, Petitioners were unable to cite any statistical information that could reasonably lead to the inference that Respondent engaged in wide-spread discrimination. Petitioners’ race-based claims were not supported by any specific information about disparate treatment by Respondent. Petitioners contested the amount of rent which Respondent determined to be applicable to the subject property. As long as the amount of rent was contested, Respondent could not make a rent determination for the Petitioners' properties. A letter to Petitioners from Respondent, dated October 9, 2002, provided Petitioners with notice that Respondent had been advised by its attorney that it could not make a rent determination while the HUD complaint was pending. The letter further stated that should Petitioners withdraw their complaint, their application would be processed.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED: That a Final Order be entered dismissing the Petition for Relief. DONE AND ENTERED this 15th day of September, 2003, in Tallahassee, Leon County, Florida. S DON W. DAVIS 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 September, 2003. COPIES FURNISHED: Denise Crawford, Agency Clerk Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301 David E. Midgett, Esquire Ocala Housing Authority 2800 East Silver Springs Boulevard Suite 205 Ocala, Florida 34470 Larry Williams Monica Williams Post Office Box 01322 Miami, Florida 33101-3221 Cecil Howard, General Counsel Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301
