The Issue The issue for determination is whether Respondent committed a discriminatory housing practice against Petitioner in violation of the Fair Housing Act.
Findings Of Fact No dispute exists that Ms. Ndimbie is handicapped for purposes of the Fair Housing Act. She has more than one mental illness diagnosis, including Schizoid Personality Disorder, Schizotypal Personality Disorder, Obsessive-Compulsive Personality Disorder, with two of her symptoms being that she “relates poorly with others” and that she “lacks insight into the feelings of others and when she feels accosted, she becomes angry and reacts, often inappropriately.” BCCD was a Florida not-for-profit organization. Its mission was to provide affordable housing for individuals with mental illnesses. BCCD acts as a landlord for its tenants, who have difficulty finding affordable housing due to having a mental illness. A prerequisite to being a tenant at BCCD was to have a mental illness, and, therefore, all of BCCD’s tenants had a mental illness. On an annual basis, BCCD contracted with and received funds from the Florida Department of Children and Families, hereinafter DCF. The funding from DCF supplements rent received from the tenants. On June 29, 2001, the Executive Director of BCCD, Nancy Merolla, entered into an annual contract with DCF for the period of July 1, 2001, through June 30, 2002, hereinafter Annual Contract. Exhibit A of the Annual Contract provided in pertinent part: The [BCCD] will provide housing stipends to ensure safe, accessible and affordable housing opportunities to low income individuals of Broward County, who are disabled with a mental illness and/or co- occurring disorders. . . . Each tenant, who resided in housing provided by BCCD, was required to receive case management. However, BCCD did not provide case management services for its tenants. The tenants received case management services from sources outside of BCCD. DCF assigned case managers and, therefore, assigned case managers for Ms. Ndimbie. Case management services were provided to Ms. Ndimbie by Henderson Mental Health Clinic Even though Ms. Ndimbie maintains that BCCD was required to provide case management services, the evidence demonstrates that BCCD was not required to provide such services. DCF was having difficulty finding housing for Ms. Ndimbie due to her mental challenges and requested the assistance of BCCD. On October 30, 2001, Ms. Ndimbie and Ms. Merolla, on behalf of BCCD, executed a month-to-month lease agreement, hereinafter Lease, for an apartment unit at 334 Northwest 43rd Street, Oakland Park, Florida. The Lease provided, among other things, that the total rent payable was $570 per month; that Ms. Ndimbie’s portion of the rent was $115 per month; and that the portion paid by the Public Housing Agency, under the Shelter Plus Care Program of HUD was $455. The Lease, which identified Ms. Ndimbie as the Tenant and BCCD as the Landlord, was effective November 28, 2001. An addendum to the Lease was a Tenant Agreement. Ms. Ndimbie was under the Shelter Plus Program, which provided for a single occupant to be entitled to a one-bedroom unit. However, BCCD only had a two-bedroom unit available. The Tenant Agreement provided, among other things, that Ms. Ndimbie was “being temporarily allowed to stay in [a two-bedroom unit] until a one bedroom unit [became] available with [BCCD].” On or about November 28, 2001, Ms. Ndimbie moved into the two-bedroom unit. At some point in time after Ms. Ndimbie moved into the two-bedroom unit, BCCD and the other tenants, who were Ms. Ndimbie’s neighbors, began to have problems with her behavior. The other tenants filed complaints with BCCD regarding her behavior. In March 2002, after input from Ms. Ndimbie, her case manager, and DCF, BCCD conducted a meeting with Ms. Ndimbie and the complaining tenants in an effort to reconcile the differences. An agreement was reached regarding resolution of the differences. However, the problems, regarding Ms. Ndimbie’s behavior, continued. The tenants were filing petitions for injunctions for protection against her, and she was filing the same petitions against the tenants. In particular, the continuous problems resulted in one neighbor, Luis Colon, obtaining an injunction for protection against Ms. Ndimbie on May 2, 2002.3 A circuit court ordered, among other things, that she was not to have any contact with Mr. Colon and not to go within 15 feet of Mr. Colon’s unit (apartment). Ms. Ndimbie contends that BCCD represented Mr. Colon at the injunction hearing as his case manager. However, the evidence demonstrates that BCCD was not his case manager at the injunction hearing, but only responded to the presiding judge’s inquiries. Subsequently, on May 23, 2002, the injunction for protection was amended. The circuit court ordered, among other things, that the Ms. Ndimbie was not to go within 500 feet of Mr. Colon’s unit. The amended injunction for protection was effective on midnight, May 31, 2002. Ms. Ndimbie’s unit was less than 500 feet from Mr. Colon’s unit, and, therefore, the effect of the amended injunction for protection was to prevent Ms. Ndimbie from residing in her unit after midnight, May 31, 2002. BCCD offered Ms. Ndimbie an alternative unit at another location. Ms. Ndimbie viewed the apartment building where the alternative unit would be located and found that it was being renovated. She did not believe that it would be timely completed. Further, Ms. Ndimbie inquired of law enforcement regarding criminal activity within the surrounding geographical area of the alternative unit. It was reasonable for her to gather such information. She was informed by law enforcement that there was drug activity in the surrounding area. Based upon the construction activity at the alternative unit, coupled with her belief that the alternative unit would not be timely completed, and upon the history of drug activity in the surrounding area, Ms. Ndimbie decided that she would not accept the alternative unit. Even though the alternative unit was being renovated, the evidence demonstrates that it was to be completed before the effective date of the amended injunction for protection, i.e., midnight, May 31, 2002. Consequently, Ms. Ndimbie’s belief that the alternative unit was not going to be timely completed was not reasonable. Additionally, even though the surrounding area of the alternative unit had a history of drug activity, no evidence was presented that the alternative unit had been determined to be not suitable for leasing under the Annual Contract between DCF and BCCD. As a result, the alternative unit remained an available unit under the Annual Contract. Ms. Ndimbie refused to accept and move into the alternative unit. No other housing was found for Ms. Ndimbie by midnight, May 31, 2002. Her belongings were placed in a storage unit. Another tenant with mental illness moved into the alternative unit. Subsequently, Ms. Ndimbie moved into a hotel. With DCF’s approval, BCCD provided her with $1,000 to assist her with the cost of the hotel room.
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 that Broward County Community Development Corporation, Inc. did not commit a discriminating housing practice against Joyce Ndimbie in violation of the Fair Housing Act. DONE AND ENTERED this 29th day of January, 2010, in Tallahassee, Leon County, Florida. ERROL H. POWELL 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 29th day of January, 2010.
The Issue The issue for determination in this matter is whether Respondents engaged in acts of housing discrimination against Petitioners on the basis of race in violation of the Florida Fair Housing Act.
Findings Of Fact Petitioners, Donald Travis and Lisa Harrell, are a bi-racial couple (Mr. Travis is African-American and, therefore, belongs to a class of persons subject to protection under Florida's Fair Housing Act, Sections 760.20 through 760.37, Florida Statutes, and Ms. Harrell is white). They have two sons who are bi-racial (one is African-American and white, the other is white and Asian). Petitioners lived in Apartment 163 at 10075 West Highway 98, Pensacola, Florida 32506. Respondents, John and Anne Cutler, are the owners of two four-plex apartments at 10075 West Highway 98, Pensacola, Florida 32506, including the unit occupied by Petitioners that gave rise to this matter. They are both retired educators who own and operate their apartment rental business in their retirement. In their teaching and professional careers, both have instructed students of various races and national origins. Petitioner, Donald Travis, is a veteran of Desert Storm and has been treated for Post Traumatic Stress Disorder. He regularly takes medications to treat anxiety and depression. On April 4, 2008, Petitioners moved into Apartment 163, which had been recently painted, carpeted, and had a new ceiling fan and light installed in the living room. Everything went smoothly between Petitioners and Respondents for several months. Mr. Cutler had to unplug the downstairs toilet with a plunger a few times, but everything else seemed to be in working order. Both Mr. and Ms. Cutler considered Petitioners to be good tenants. As summer approached, Mr. Travis asked Mr. Cutler about installing a screen door for the sliding glass doors. This could not be done without replacing the entire sliding glass doors. When Apartment 131 became vacant, its screen door was moved to Petitioners' apartment. The screen door had a slit in it, which Ms. Cutler repaired with tape. When Apartment 132 became vacant, the good screen door from that apartment was used to replace the taped one in Petitioners' apartment. Respondents tried to keep everything in working order in Petitioners' apartment. When Petitioners' refrigerator door would not close, Respondents replaced the refrigerator. Respondents thought Petitioners were happy with their apartment. Petitioners called Respondents about a plumbing leak and said feces was running down the wall. The leak and pipe were fixed by B & G Plumbing. Petitioners were shown the water shut-off valve in case of future leaks. Petitioners believe that Respondents treated them differently from other tenants in the apartment buildings. Petitioners believe that other tenants were allowed to keep pets in their apartments while they were not. Respondents allowed tenants who had pets when they purchased the apartments to keep them, but banned pets on all future rentals. The rent for Petitioners' apartment, including water, sewer, and garbage, was $650.00. Petitioners always paid their rent on time. Petitioners asked to be moved into a better unit since they believed their unit was inferior to others in the complex. Petitioners wanted to move into Apartment 162 which, in their opinion, was in much better shape than their unit. Respondents offered to put new carpet into Apartment 162 before Petitioners moved in, but they refused. Petitioners decided to leave the apartment because they believed the maintenance was not properly performed. On December 5, 2008, the day Petitioners made known their desire to leave the apartment, Mr. Travis confronted Mr. Cutler. Mr. Cutler offered Apartment 132 to Petitioners because it was ready for occupancy after its occupants had moved out. Apartment 133 would soon be ready, and was also offered to Petitioners. Mr. Travis angrily refused to move into any apartments in the two four-plexes. He yelled at Mr. Cutler and told him he hated him. This exchange was witnessed by a neighbor, Gary Denton. Mr. Cutler offered to let Petitioners move out without penalty, and agreed to return their $650.00 deposit. Petitioners accepted the offer and received the deposit in full as well as a waiver of the first five days' rent for December and an additional four days of rent to allow them time to pack and move. Petitioners accused Respondents of renting one four-plex to whites only and the other to minorities. At the time Petitioners moved out, both four-plexes had tenants of different races. As of the date of the hearing, five of the six total units rented were to non-white tenants. Only one was rented to a white couple.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Florida Commission on Human Relations enter a final order dismissing the Petition for Relief. DONE AND ENTERED this 25th day of November, 2009, in Tallahassee, Leon County, Florida. S ROBERT S. COHEN 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 25th day of November, 2009. COPIES FURNISHED: John Cutler Anne Cutler 5970 Limestone Road Pensacola, Florida 32504 Donald Travis Lisa Harrell 1008 West Young Street Pensacola, Florida 32501 Denise Crawford, Agency Clerk Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301 Larry Kranert, General Counsel Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301
The Issue The issue in this case is whether Respondents unlawfully discriminated against Petitioner on the basis of her race, religion, or disability in violation of the Florida Fair Housing Act.
Findings Of Fact Parklife is the owner of a mobile home community known as St. Lucie Mobile Village (the “Village”), which comprises approximately 220 homes. For the last 21 years, McGrath has leased a lot in the Village, upon which her double-wide mobile home sits. She is a white woman, approximately 60 years old, who claims to suffer from post-traumatic stress disorder (“PTSD”) and other unspecified anxiety disorders, and to be a practicing Jehovah’s Witness. This is a case of alleged housing discrimination brought under Florida’s Fair Housing Act (the “Act”). McGrath alleges that Parklife has discriminated against her in several ways, which can be classified as selective enforcement, disparate treatment, and retaliation. Specifically, McGrath alleges that Parklife required her to upgrade the skirting around, and also to re-level, her home, while excusing other (predominately Hispanic) residents, whose homes were in comparable condition, from making similar improvements. McGrath alleges that Parklife issued warnings to her for violating the “two vehicle” rule, while allowing other (predominately Hispanic) residents to keep three or more cars on their lots. She alleges that Parklife permitted Hispanic residents to shoot off fireworks and make noise in violation of park rules, depriving her of the peaceful enjoyment of her premises. Finally, McGrath alleges that Parklife commenced a retaliatory eviction proceeding against her for being a whistle blower. McGrath does not dispute that her home needed new skirting and to be leveled, and she admits having violated the two vehicle rule. She claims, nevertheless, that Parklife took action against her on the basis of her race (white), religion (Jehovah’s Witness), disability (PTSD), or some combination of these, as shown by its more lenient treatment of residents outside the protected categories. McGrath’s allegations are legally sufficient to state a claim of housing discrimination. That is, if McGrath were able to prove the facts she has alleged, she would be entitled to relief. She failed, however, to present sufficient, persuasive evidence in support of the charges. It is not that there is no evidence behind McGrath’s claims. She and her witness, Kassandra Rosa, testified that other residents have violated park rules regarding skirting, leveling, and allowable vehicles––seemingly without consequence. To determine whether the circumstances of these other residents were truly comparable to McGrath’s, however, so as to conclude that she was singled out for different treatment, requires more information than the evidence affords. Taken together, McGraths’s testimony and that of Ms. Rosa was simply too vague and lacking in relevant detail to support findings of disparate treatment or selective enforcement on the basis of race, religion, or handicap. Indeed, the persuasive evidence fails to establish that Parklife declined to take appropriate action with regard to similarly-situated violators, or that it otherwise condoned, or acquiesced to, the rulebreaking of such residents. At most, the evidence shows that other residents violated the same rules as McGrath––not that they got off scot-free, which is a different matter. As for the eviction proceeding, which was pending in county court at the time of the final hearing, there is insufficient evidence (if any) to support McGrath’s contention that Parklife is retaliating against her or using the legal process as a pretext for unlawfully depriving her of a dwelling in violation of the Act. In terms of timing, Parklife initiated the eviction proceeding before it became aware that McGrath had filed a complaint of housing discrimination, which tends to undermine the assertion that the eviction was brought to retaliate against McGrath for exercising her rights under the Act. More important is that Parklife has articulated and proved nondiscriminatory grounds for seeking to terminate McGrath’s lease. Residents have complained to the Village’s management that McGrath has harassed her neighbors at various times, in various ways. While there is insufficient nonhearsay evidence in the instant record for the undersigned to make findings as to whether McGrath did, in fact, harass other residents in violation of park rules, Parklife proved by a preponderance of the competent substantial evidence that it was on notice of such alleged misconduct on McGrath’s part. The fact that Parklife had such notice is sufficient to show that its bringing an action to evict McGrath was not merely a pretext for unlawful discrimination against her. Of course, the question of whether Parklife is entitled to terminate McGrath’s tenancy is one that need not, and cannot, be decided in this proceeding. It is determined as a matter of ultimate fact that McGrath has failed to establish by the greater weight of the evidence that Parklife or any of the Respondents, jointly or severally, committed an unlawful housing practice.
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 Parklife not liable for housing discrimination and awarding McGrath no relief. DONE AND ENTERED this 2nd day of November, 2020, in Tallahassee, Leon County, Florida. S JOHN G. VAN LANINGHAM Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 2nd day of November, 2020. COPIES FURNISHED: Tammy S. Barton, Agency Clerk Florida Commission on Human Relations 4075 Esplanade Way, Room 110 Tallahassee, Florida 32399-7020 (eServed) Laney H. McGrath 11500 Southwest Kanner Highway, Lot 317 Indiantown, Florida 34956 (eServed) Teresa Schenk St. Lucie Village Parklife, LLC 11500 Southwest Kanner Highway Indiantown, Florida 34956 (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 case is whether Respondent unlawfully discriminated against Petitioner on the basis of her religion or national origin in violation of the Florida Fair Housing Act.
Findings Of Fact Petitioner Tal Simhoni ("Simhoni"), a Jewish woman who identifies the State of Israel as her place of national origin, at all times relevant to this action owned Unit No. 212 in Mimo on the Beach I Condominium (the "Condominium"), which is located in Miami Beach, Florida. She purchased this unit in 2009 and a second apartment (Unit No. 203) in 2010. Simhoni has resided at the Condominium on occasion but her primary residence, at least as of the final hearing, was in New York City. The Condominium is a relatively small community consisting of two buildings comprising 28 units. Respondent Mimo on the Beach I Condominium Association, Inc. ("Association"), a Florida nonprofit corporation, is the entity responsible for operating and managing the Condominium and, specifically, the common elements of the Condominium property. Governing the Association is a Board of Directors (the "Board"), a representative body whose three members, called "directors," are elected by the unit owners. Simhoni served on the Board for nearly seven years. From July 2010 until April 2011, she held the office of vice- president, and from April 2011 until June 1, 2017, Simhoni was the president of the Board. Simhoni's term as president was cut short when, in May 2017, she and the other two directors then serving with her on the Board were recalled by a majority vote of the Condominium's owners. The Association, while still under the control of the putatively recalled directors, rejected the vote and petitioned the Department of Business and Professional Regulation, Division of Condominiums, Timeshares, and Mobile Homes ("DBPR"), for arbitration of the dispute. By Summary Final Order dated June 1, 2017, DBPR upheld the recall vote and ordered that Simhoni, Marisel Santana, and Carmen Duarte be removed from office, effective immediately. The run-up to the recall vote entailed a campaign of sorts to unseat Simhoni, which, as might be expected, caused friction between neighbors. Without getting into details that aren't important here, it is fair to say that, generally speaking, the bloc opposed to Simhoni believed that she had poorly managed the Condominium, especially in connection with the use of Association funds. Some of Simhoni's critics were not shy about voicing their opinions in this regard, which—— understandably——led to hard feelings. Simhoni vehemently disputes the charges of her critics and, clearly, has not gotten over her recall election defeat, which she blames on false, unfair, and anti-Semitic accusations against her. This is a case of alleged housing discrimination brought under Florida's Fair Housing Act (the "Act"). Specifically, Simhoni is traveling under section 760.23(2), Florida Statutes, which makes it "unlawful to discriminate against any person in the terms, conditions, or privileges of sale or rental of a dwelling, or in the provision of services or facilities in connection therewith, because of race, color, national origin, sex, handicap, familial status, or religion." (Emphasis added). The applicable law will be discussed in greater detail below. The purpose of this brief, prefatory mention of the Act is to provide context for the findings of fact that follow. The principal goal of section 760.23(2) is to prohibit the denial of access to housing based on discriminatory animus. Simhoni, however, was not denied access to housing. She is, in fact, a homeowner. Contrary to what some might intuit, the Act is not an all-purpose anti-discrimination law or civility code; it does not purport to police personal disputes, quarrels, and feuds between neighbors, even ugly ones tinged with, e.g., racial or religious hostility. To the extent the Act authorizes charges based on alleged post-acquisition discrimination, such charges must involve the complete denial of services or facilities that are available in common to all owners as a term or condition of ownership——the right to use common areas, for example, pursuant to a declaration of condominium. Moreover, the denial of access to common services or facilities logically must result from the actions of a person or persons, or an entity, that exercises de facto or de jure control over access to the services or facilities in question. This is important because, while Simhoni believes that she was subjected to anti-Semitic slurs during her tenure as Board president, the fact is that her unfriendly neighbors——none of whom then held an office on the Board——were in no position to (and in fact did not) deny Simhoni access to common services and facilities under the Association's control, even if their opposition to her presidency were motivated by discriminatory animus (which wasn't proved). As president of the Board, Simhoni wound up on the receiving end of some uncivil and insensitive comments, and a few of her neighbors seem strongly to dislike her. Simhoni was hurt by this. That impolite, even mean, comments are not actionable as unlawful housing discrimination under section 760.23(2) is no stamp of approval; it merely reflects the relatively limited scope of the Act. Simhoni has organized her allegations of discrimination under six categories. Most of these allegations do not implicate or involve the denial of common services or facilities, and thus would not be sufficient to establish liability under the Act, even if true. For that reason, it is not necessary to make findings of fact to the granular level of detail at which the charges were made. The Mastercard Dispute. As Board president, Simhoni obtained a credit card for the Association, which she used for paying common expenses and other Association obligations such as repair costs. In applying for the card, Simhoni signed an agreement with the issuer to personally guarantee payment of the Association's account. It is unclear whether Simhoni's actions in procuring this credit card were undertaken in accordance with the Condominium's By-Laws, but there is no evidence suggesting that Simhoni was forced, encouraged, or even asked to co-sign the Association's credit agreement; she seems, rather, to have volunteered. Simhoni claims that she used personal funds to pay down the credit card balance, essentially lending money to the Association. She alleges that the Association has failed to reimburse her for these expenditures, and she attributes this nonpayment to anti-Semitism. There appears to be some dispute regarding how much money, if any, the Association actually owes Simhoni for common expenses. The merits of her claim for repayment are not relevant in this proceeding, however, because there is insufficient persuasive evidence in the record to support a finding that the Association has withheld payment based on Simhoni's religion or national origin. Equally, if not more important, is the fact that Simhoni's alleged right to reimbursement is not a housing "service" or "facility" available in common to the Condominium's owners and residents. Nonpayment of the alleged debt might constitute a breach of contract or support other causes of action at law or in equity, but these would belong to Simhoni as a creditor of the Association, not as an owner of the Condominium. In short, the Association's alleged nonpayment of the alleged debt might give Simhoni good legal grounds to sue the Association for, e.g., breach of contract or money had and received——but not for housing discrimination. The Estoppel Certificate. On September 20, 2017, when she was under contract to sell Unit No. 212, Simhoni submitted a written request to the Association for an estoppel certificate, pursuant to section 718.116(8), Florida Statutes. By statute, the Association was obligated to issue the certificate within ten business days——by October 4, 2017, in this instance. Id. The failure to timely issue an estoppel letter results in forfeiture of the right to charge a fee for preparing and delivering the certificate. § 718.116(8)(d), Fla. Stat. The Association missed the deadline, issuing the certificate one-week late, on October 11, 2017; it paid the prescribed statutory penalty for this tardiness, refunding the preparation fee to Simhoni as required. Simhoni attributes the delay to anti-Semitism. It is debatable whether the issuance of an estoppel letter is the kind of housing "service" whose deprivation, if based on religion, national origin, or another protected criterion, would support a claim for unlawful discrimination under the Act. The undersigned will assume for argument's sake that it is such a service. Simhoni's claim nonetheless fails because (i) the very statute that imposes the deadline recognizes that it will not always be met and provides a penalty for noncompliance, which the Association paid; (ii) a brief delay in the issuance of an estoppel letter is not tantamount to the complete deprivation thereof; and (iii) there is, at any rate, insufficient persuasive evidence that the minimal delay in issuing Simhoni a certificate was the result of discriminatory animus. Pest Control. Pest control is not a service that the Association is required to provide but, rather, one that may be provided at the discretion of the Board. During Simhoni's tenure as Board president, apparently at her urging, the Association arranged for a pest control service to treat all of the units for roaches, as a common expense, and the apartments were sprayed on a regular basis. If the exterminator were unable to enter a unit because, e.g., the resident was not at home when he arrived, a locksmith would be summoned to open the door, and the owner would be billed individually for this extra service. After Simhoni and her fellow directors were recalled, the new Board decided, as a cost-control measure, to discontinue the pest control service, allowing the existing contract to expire without renewal. Owners were notified that, during the phaseout, the practice of calling a locksmith would cease. If no one were home when the pest control operator showed up, the unit would not be sprayed, unless the owner had left a key with the Association or made arrangements for someone else to open his door for the exterminator. By this time, Simhoni's principal residence, as mentioned, was in New York. Although she knew that the locksmith option was no longer available, Simhoni failed to take steps to ensure that the pest control operator would have access to her apartment when she wasn't there. Consequently, Simhoni's unit was not sprayed on some (or perhaps any) occasions during the phaseout. Simhoni blames anti-Semitism for the missed pest control visits, but the greater weight of the evidence fails to support this charge. Simhoni was treated the same as everyone else in connection with the pest control service. Moreover, Simhoni was not completely deprived of access to pest control, which would have been provided to her if she had simply made arrangements to permit access to her unit. Short-term Rentals. Article XVII of the Condominium's Declaration of Condominium ("Declaration"), titled Occupancy and Use Restrictions, specifically regulates leases. Section 17.8 of the Declaration provides, among other things, that the Association must approve all leases of units in the Condominium, which leases may not be for a term of less than one year. In other words, the Declaration prohibits short-term, or vacation, rentals, which are typically for periods of days or weeks. Short-term rentals can be lucrative for owners, especially in places such as Miami Beach that attract tourists who might be interested in alternatives to traditional hotel lodgings. On the flip side, however, short-term rental activity is not necessarily welcomed by neighboring residents, who tend to regard transients as being insufficiently invested in preserving the peace, quiet, and tidy appearance of the neighborhood. At the Condominium, the question of whether or not to permit short-term rentals has divided the owners into competing camps. Simhoni is in favor of allowing short-term rentals. Accordingly, while she was Board president, the Association did not enforce the Declaration's prohibition of this activity. (It is possible, but not clear, that the Association was turning a blind eye to short-term rentals even before Simhoni became a director.) This laissez-faire approach did not sit well with everyone; indeed, dissatisfaction with short-term rentals provided at least some of the fuel for the ultimately successful recall effort that cost Simhoni her seat on the Board. After Simhoni and the rest of her Board were removed, the new directors announced their intent to enforce the Declaration's ban on short-term rentals. Simhoni alleges that the crackdown on short-term rentals was an act of religion-based housing discrimination. Her reasoning in this regard is difficult to follow, but the gist of it seems to be that the Association is selectively enforcing the ban so that only Simhoni and other Jewish owners are being forced to stop engaging in short-term rental activity; that the prohibition is having a disparate impact on Jewish owners; or that some owners are harassing Simhoni by making complaints about her to the City of Miami Beach in hopes that the City will impose fines against her for violating municipal restrictions on short-term rentals. The undersigned recognizes that a neutral policy such as the prohibition of short-term rentals conceivably could be enforced in a discriminatory manner, thus giving rise to a meritorious charge under the Act. Here, however, the evidence simply does not support Simhoni's contentions. There is insufficient evidence of disparate impact, disparate treatment, selective enforcement, harassment, or discriminatory animus in connection with the Association's restoration of the short-term rental ban. To the contrary, the greater weight of the evidence establishes that the Association is trying to stop short-term rentals at the Condominium for a perfectly legitimate reason, namely that a majority of the owners want section 17.8 of the Declaration to be given full force and effect. The Feud with Flores. Simhoni identifies Mr. and Ms. Flores as the worst of her antagonists among her neighbors. As advocates of the recall, these two were fierce critics of Simhoni. The Floreses reported Simhoni to the City of Miami Beach for engaging in short-term rentals without the required business tax receipt, in violation of the municipal code. At a code enforcement hearing, Mr. Flores gave Simhoni the finger. None of this, however, amounts to housing discrimination because the Floreses' actions did not completely deprive Simhoni of common facilities or services, even if such actions were motivated by anti-Semitism, which the greater weight of the evidence fails to establish. Indeed, there is no persuasive evidence that the Floreses ever had such control over the Condominium's facilities or services that they could have denied Simhoni access to them. Simhoni argues in her proposed recommended order, apparently for the first time, that the Floreses' conduct created a "hostile housing environment." Putting aside the legal problems with this belatedly raised theory, the Floreses' conduct was not sufficiently severe and pervasive, as a matter of fact, to support a "hostile environment" claim. Nor is there sufficient persuasive evidence in the record to support a finding that the Floreses acted in concert with the Board to harass Simhoni, or that the Board acquiesced to the Floreses' conduct. Roof Repairs. Simhoni alleges that the Association failed to repair the area of the roof over her unit, which she claims was damaged in Hurricane Irma, and that the Association has refused to make certain repairs inside her unit, which she asserts sustained interior water damage as a result of roof leaks. Simhoni asserts that, using Association funds, the Association not only repaired other portions of the roof, but also fixed interior damages similar to hers, for the benefit of non-Jewish owners. The greater weight of the persuasive evidence shows, however, that the roof over Simhoni's unit is not damaged, and that the Association never instructed the roofing contractor not to make needed repairs. Simhoni, in short, was not denied the service of roof repairs. As for the alleged damage to Simhoni's unit, section 7.1 of the Declaration provides that repairs to the interior of a unit are to be performed by the owner at the owner's sole cost and expense. The evidence fails to establish that the interior damage of which Simhoni complains falls outside of her duty to repair. Because this is a housing discrimination case, and not a legal or administrative proceeding to enforce the terms of the Declaration, it is neither necessary, nor would it be appropriate, for the undersigned to adjudicate fully the question of whether the Association is obligated to repair Simhoni's unit as a common expense. Here, it is sufficient to find (and it is found) that section 7.1 of the Declaration affords the Association a legitimate, nonpretextual, nondiscriminatory reason to refuse, as it has, to perform the interior repairs that Simhoni has demanded.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Florida Commission on Human Relations enter a final order finding the Association not liable for housing discrimination and awarding Simhoni no relief. DONE AND ENTERED this 26th day of February, 2019, in Tallahassee, Leon County, Florida. S JOHN G. VAN LANINGHAM Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 26th day of February, 2019.
The Issue Whether Respondent, Assad F. Malaty, discriminated against Petitioners, Dr. James E. Townsend and his niece, Contessa Idleburg (formerly, Ms. Rogers), in violation of the Florida Fair Housing Act and, if so, the appropriate remedy therefor.
Findings Of Fact Based on the weight of the credible evidence, Dr. Townsend has a qualifying handicap under the FFHA. He suffered a stroke in May 2014, upon which the requested modifications and accommodations were based. The stroke substantially limited one or more major life activities, given his need for using a wheelchair and walker. § 760.22(7)(a), Fla. Stat. Mr. Malaty conceded as much at the hearing.3/ Based on the weight of the credible evidence, Ms. Idleburg has a qualifying handicap under the FFHA. She has a shunt to drain fluid from her brain, has received Supplemental Social Security Income since at least 2014, and also has used a walker. That said, the evidence is undisputed that Petitioners requested the modifications and accommodations solely to assist Dr. Townsend after he suffered the stroke. Thus, Ms. Idleburg’s handicap is not relevant to the claims at issue. Based on the weight of the credible evidence, Petitioners informed Mr. Malaty in May 2014 that Dr. Townsend suffered a stroke and requested that he make several modifications to the Unit, including handrails in the bathroom, and handrails and a ramp at the front door, and to accommodate them by assigning them a parking spot outside the Unit. There is no dispute that the requested modifications and accommodation were never made. Importantly, however, the evidence does not establish that Petitioners’ renewed those requests again before they filed complaints with the Department of Justice in late 2016 and HUD in early 2017.4/ Although Dr. Townsend reminded Mr. Malaty in a December 2016 letter that he had failed to make the requested the modifications, the undersigned finds that letter to be more in the nature of a response to Mr. Malaty’s threat of eviction rather than a renewed request to accommodate them. The weight of the credible evidence also confirms that Petitioners never offered to pay for the handrails, ramp, or signage for the requested parking spot. Indeed, Dr. Townsend testified that he believed Mr. Malaty was responsible for making such modifications as the owner of the Unit. Based on the weight of the credible evidence, the undersigned finds that Mr. Malaty did not evict Petitioners because of their handicaps or their requests for modifications or an accommodation. Mr. Malaty initially threatened to evict them for failing to pay rent in January 2013, reducing their rent in September and December 2016, and failing to take care of the lawn as required in the lease. It had been three years since Petitioners requested the modifications and accommodation due to Dr. Townsend’s stroke and they did not re-raise those issues again until after Mr. Malaty threatened to evict them for failing to pay the rent. The evidence also is clear that Petitioners could have avoided eviction by paying the missed rent by December 29, 2016. But, they failed to do so and then did not pay their rent in January 2017, which ultimately led to Mr. Malaty filing the eviction action.
Conclusions For Petitioners: James E. Townsend, Sr., pro se Contessa Idleburg, pro se Apartment 2101 140 Aida Street Lakeland, Florida 33805 For Respondent: Charlann Jackson Sanders, Esquire Law Office of Charlann Jackson Sanders 2225 East Edgewood Drive, Suite 8 Lakeland, Florida 33803
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 Petitioners’ Petition for Relief. DONE AND ENTERED this 19th day of December, 2019, in Tallahassee, Leon County, Florida. S ANDREW D. MANKO 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 19th day of December, 2019.
The Issue Whether Respondent, in providing housing or related services to Petitioner, failed to make reasonable accommodations for Petitioner’s disability.
Findings Of Fact Respondent is a Florida corporation doing business pursuant to chapter 718, Florida Statutes, as Daytona Beach Riverhouse Condominium Association. Respondent is responsible for the day-to-day operations and management of Daytona Beach Riverside Condominiums. In May 2009, Petitioner rented Daytona Beach Riverhouse Condominium Unit B-103 from a third party who owns the unit. In that same month, Petitioner signed an application for lease/purchase with Respondent, which contains an acknowledgment of his receipt of the condominium association’s rules and regulations, declaration of condominium, and by-laws. There is also a pet registration form attached to the application which identifies one pet, a Jack Russell named “Peanut.” See Exhibit P-1. Petitioner alleges that he has a brain injury that requires him to have a dog as a service animal to assist him in his daily living. At the final hearing, Petitioner provided his own testimony to support his claim of a brain injury and need for a service dog. Petitioner’s testimony in that regard was unrebutted and is therefore credited. In addition, Respondent’s manager, Mary Cash, acknowledged receiving a letter from Petitioner’s doctor advising that Petitioner had a brain injury and needed a service dog. Petitioner otherwise, however, failed to prove the allegations of the Complaint. According to the Complaint, Respondent failed to make reasonable accommodation by refusing to allow Petitioner to use his two service animals (dogs) required because of Petitioner’s disability. At the final hearing, Petitioner did not submit any evidence indicating that Respondent failed to allow him to have one or more service dogs. Instead, Petitioner admitted that he lives in the condominium with two dogs, a service dog and a pet. Rather than submitting evidence in support of his Complaint, during the final hearing, Petitioner testified that Respondent, through employees, discriminated against him by harassing his dogs, entering his condominium unit without his permission, and moving or hiding his personal property within the unit. According to Petitioner, the personal property that Respondent moved in his condominium included his medications, a showerhead, a light in his dining room, and one of his dogs that he later found shut inside his walk-in closet. Respondent, through the testimony of Mary Cash, denied the allegations of the Complaint and testified that none of Respondent’s agents or employees had ever entered Petitioner’s condominium without his permission or moved any of Petitioner’s personal property. The testimony of the other witnesses besides Petitioner corroborated Mary Cash’s testimony. Mary Cash’s testimony is credited over Petitioner’s. While Petitioner may have believed that Respondent was harassing his dogs and going into his apartment, the undersigned finds that Petitioner’s testimony in that regard was based on mere speculation. Other than his own testimony, Petitioner did not present any witness or evidence which supported his allegations against Respondent. The letter dated May 21, 2010, from Mary Cash to Petitioner, is written on behalf of Respondent. The letter discussed issues related to Petitioner’s two dogs causing disturbances. The letter also notified Petitioner that Respondent did not have a key to his top door lock and did not have a telephone number to reach Petitioner. The letter does not support the Complaint or any other allegation raised by Petitioner in this proceeding. In sum, Petitioner failed to submit evidence to support of his claim that Respondent failed to make reasonable accommodation for his disability.
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 Complaint and Petition for Relief. DONE AND ENTERED this 25th day of March, 2011, in Tallahassee, Leon County, Florida. S JAMES H. PETERSON, 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 25th day of March, 2011. 1/ Mary Cash is Respondent’s manager. At the final hearing, Ms. Cash testified on behalf of Respondent. 2/ Unless otherwise indicated, all references to the Florida Statutes are to the 2010 version. COPIES FURNISHED: Jerry McIntire 719 South Beach Street, B-103 Daytona Beach, Florida 32114 D. Michael Clower, Esquire 322 Silver Beach Avenue Daytona Beach, Florida 32118 Denise Crawford, Agency Clerk Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301 Larry Kranert, General Counsel Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301
