20-001704 Miryam Hathaway And Benjamin Hathaway vs. Gerlinde Wermuth And Horst Wermuth Status: Closed Recommended Order on Monday, October 5, 2020.

Summary: Petitioners failed to prove that they were subject to unlawful discrimination (failure to make a reasonable accommodation) on the basis of their handicap in violation of Florida?s Fair Housing Act.

Wermuth and Horst Wermuth, based on a handicap, in violation of Florida ' s

Fair Housing Act.

P RELIMINARY S TATEMENT

On December 19, 2018, Petitioners filed a Housing Discrimination

Complaint with the F lorida Commission on Human Relations (the

" Commission " ) alleging that Respondents, Gerlinde Wermuth and Horst

Wermuth, violated the Florida Fair Housing Act ( " FHA " ) by discriminating

against them, based on a handicap. 2

On March 4, 2020, the Commission not ified Petitioners that no reasonable

cause existed to believe that Respondents committed a discriminatory

housing practice.

On March 30, 2020, Petitioners filed a Petition for Relief with the

Commission alleging a discriminatory housing practice. The Comm ission

transmitted the Petition to the Division of Administrative Hearings

( " DOAH " ) to conduct a chapter 120 evidentiary hearing.

The final hearing was held on June 25, 2020. At the final hearing,

Petitioner, Miryam Hathaway, testified on her own behalf. Petitioners '

Exhibits 1 and 13 were admitted into evidence. Respondents Gerlinde

Wermuth and Horst Wermuth both testified. Respondents ' Exhibits E

through I, as well as Respondents ' supplemental exhibits , identified as O and

P, filed on July 15, 2020, with leave of the undersigned, were admitted into

evidence.

2 Petitioners included Parkway Villas Condominium Association , Inc. ("Association") , in their

initial complaint to the Commission. However, on May 11, 2020, Petitioners filed a mo tion to

voluntarily dismiss the Association and proceed only against Respondents in their individual

capacities, which was granted.

A one - volume Transcript of the final hearing was filed with DOAH on

July 21, 2020. At the close of the hearing, the parties were advised of a ten -

day timeframe following DOAH ' s receipt of the hearin g transcript to file post -

hearing submittals. Following the hearing, Respondents requested an

extension of the filing deadline, which was granted. 3 Both parties timely filed

post - hearing submittals , which were duly considered in preparing this

Recommended Order. 4

F INDINGS OF F ACT

1. Petitioners own a condominium in Parkway Villas Condominiums

( " Parkway Villas " ) located in Bradenton, Florida. Petitioners have lived in

Parkway Villas since 2012. Parkway Villas, as described by Petitioner,

Mrs. Hathaway, is a " nice elderly community " of 225 units. 5

2. Parkway Villas is governed by the Parkway Villa s Condominium

Association, Inc. (the " Association " ) , a homeowners ' association formed in

approximately 1970.

3. At the final hearing, Mrs. Hathaway testified that s he suffers from a

physical disability from a work injury that occurred many years ago.

Supporting this claim, Mrs. Hathaway produced several medical records

documenting an issue with her right shoulder and elbow, specifically acromioclavicular ( " AC " ) joint arthropathy, which includes tendinosis,

tendinopathy, and a partial tendon tear. Mrs. Hathaway asserts that this

3 By requesting a deadline for filing post - hearing submissions beyond ten days after the

transcript filing date , the 30 - d ay time period for filing the recommended order was waived.

See Fla. Admin. Code R. 28 - 106.216(2).

4 Petitioner s subsequently filed a document on September 10, 2020 , which was not

considered.

5 Petitioner Benjamin Hathaway did not participate in the fin al hearing. Nor did Petitioners

produce any evidence regarding the discrimination claim he is pursuing against

Respondents, or a specific disability from which he suffers. Consequently, when evaluating

Petitioners’ allegations and cause of action in this F HA matter, any reference to " Petitioners "

only concerns the representations and testimony of Miryam Hathaway.

condition causes her chronic pain, and she has difficulty lifting more than five

pounds with her right arm. Mrs. Hathaway also expressed that she suffers

from depression, high blood pressure, and hypertension.

4. Mrs. Hathaway claims that from approximat ely January 2018 through

July 2019, Respondents (the " Wermuths " ) discriminated against her based on

her disability by denying her the use and e njoyment of certain community

amenities (the Association ' s pool), and then failing to make a reasonable

accommodation to enable her to use those amenities. 6

5. The Wermuths also reside in Parkway Villas. Gerlinde Wermuth is

currently President of the Ass ociation ' s Board of Directors. Mrs. Wermuth

served as Board President during all times relevant to Petitioners ' FHA

claim.

6. Horst Wermuth is Gerlinde Wermuth ' s husband. Mr. Wermuth,

however, has never served or held any position on the Association Board .

7. The Association ' s Board of Directors has seven members. All Board

members are residents of Parkway Villas. All Board action requires at least

four affirmative votes of its members. The Board may not take any action

without a quorum of four members.

8. Petitioners point to Mrs. Wermuth as the primary perpetrator of the

alleged wrongdoing based on her position as Board President. Petitioners contend that Mrs. Wermuth has severely abused her authority and

mistreated Mrs. Hathaway for years.

9. Petition ers ' issues raised in this matter bega n in April 2016. That

month, Petitioners applied to the Board for approval to enlarge the patio

6 Petitioners also allege d in their complaint filed with the Commission that Mrs. Hathaway ,

who is from Columbia, South America, was discrimina ted against based on her race and

national origin, as well as retaliation. However, n o evidence in the record support s a claim

that the Wermuths took any action s or supported any Board decisions that were motivated

by Mrs. Hathaway’s race or national origi n or in retaliation for a protected activity .

Petitioners further allege that the Wermuths committed a number of non - FHA indiscretions,

which are not considered in this administrative proceeding, including abuse of power,

defamation, elder abuse, emotional distress, extortion, intimidation, and invasion of privacy.

outside their back door. Petitioners included with their application specific

plans, diagrams, and measurements to allow t he Board to determine whether

the patio would fit within the community's aesthetics. The Board approved

the patio construction on May 1, 2016, and Petitioners proceeded to construct

their patio.

10. On December 14, 2017, several Board members and unit owne rs,

including Mrs. Wermuth, trooped across the Parkway Villas property

inspecting the community for potential " Carport/Patio Violations. " According

to Mrs. Wermuth, the Board regularly surveys the grounds to ensure

consistent compliance with the Associatio n ' s Policies, Rules, and Regulations

( " Association Rules " ). Petitioners, as residents and owners of a Parkway

Villas dwelling, are members of the Association and subject to the Association

Rules.

11. The survey revealed approximately 60 potential violation s of the

Association Rules. Thereafter, the Board determined that 23 of those potential violations warranted sending the unit owner a notice letter.

Included on this list was Petitioners ' unit (#115), about which was recorded

" patio not approved. " The Boar d determined that Petitioners ' newly

constructed patio departed from the plans that the Boar d reviewed and

approved in May 2016.

7

12. Following a Special Board Meeting held on January 5, 2018, the Board

notified Petitioners of their findings. The Board wa rned Petitioners that they

faced a fine of up to $1,000 unless they brought " their patio up to the agreed

upon specifications. " Petitioners were advised that they could appear before

the Board ' s Compliance Committee on January 31, 2018, " to explain why you

feel a fine should not be imposed. "

7 Association Rules, Gene ral Rules number 3, states : " Villa owners must obtain written

Board approval before constructing add - ons, patios, or making any alterations to the common

element. "

13. On January 31, 2018, the Compliance Committee , of which

Mrs. Wermuth is not a member, convened to review the status of the 23

violations identified in the survey done the previous December. By the time of

the meet ing, Petitioners were the only unit owners who had not voluntarily

corrected their violation.

14. At the Compliance Committee meeting, Petitioners acknowledged that

the patio they constructed differed from the design they submitted in

April 2016. Primaril y, their patio exceeded the dimensions shown in the

previous design and exceeded standard dimensions acceptable to the Board.

15. The Board allowed Petitioners until March 31, 2018, to adjust the size

of their patio. The Board also offered to work with Pet itioners to bring their

patio into compliance. At the final hearing, Mrs. Hathaway readily agreed

that Mrs. Wermuth was very helpful in this process. Mrs. Hathaway relayed

that Mrs. Wermuth made several welcomed suggestions advising how

Petitioners could a rrange their plants, and how to adjust uneven stone

pavers.

16. In the meantime, on February 1, 2018, Mrs. Hathaway requested a

private meeting with three Board members, including Mrs. Wermuth. During this gathering, Mrs. Hathaway revealed that Petitioner s had installed an

" emergency " half bathroom in their condominium in January 2016 without

the Board ' s knowledge.

17. The Board later learned that the construction o f the bathroom

involved cutting through the concrete foundation of Petitioners ' unit to

con nect the bathroom ' s pipes and plumbing to the Association ' s sewer

system, as well as other significant plumbing and electrical work. Further,

Petitioners never obtained the appropriate permits from Manatee County for

the project, and the bathroom was const ructed by an unlicensed contractor.

In addition, Petitioners had taken a number of broken chunks of concrete

from the unit ' s foundation and were using them as " decorative stones " around

the plants on their patio, which the Association Rules prohibit.

18. On March 12, 2018, the Board voted to impose three separate fines on

Petitioners for violating Association Rules, one for installing a bathroom

without Board approval , one for constructing the patio contrary to the

approved design, and one for placing the concrete chunks, as well as hanging

wind chimes, adjacent to their patio . 8 The Board also suspended Petitioners

from using the community common areas, which included the laundry room,

the clubhouse, the exercise facilities, the showers, and the pool.

19. On March 28, 2018, the Compliance Committee met during a Special

Board Meeting to consider Petitioners ' multiple violations. During the

meeting, the Compliance Committee found that Petitioners, as of that date, had properly reduced the size of their patio. The Compliance Committee also

recognized that Petitioners had removed the concrete chunks and wind chimes from their patio area. Thereafter, the Compliance Committee voted to

eliminate all fines imposed for those two violations.

20. Regarding the bathroom , however, the Compliance Committee

concluded that the unapproved installation was too significant to overlook.

The Compliance Committee was concerned that the structural alterations and plumbing necessary to construct Petitioners ' new bathroom might have

compromised the unit ' s infrastructure and potentially damaged the

neighbor ' s adjoining unit. Consequently, the Compliance Committee upheld a

fine of $1,000 for that violation. Mrs. Wermuth abstained from any vote on

the matter.

21. In addition to the $1,00 0 fine, the Board upheld the suspension of

Petitioners ' use of Association amenities and common areas, including the

clubhouse, exercise room, laundry room, and community pool. The suspension

was to remain in effect until Petitioners paid the $1,000 fine a nd until

Manatee County inspected the bathroom ' s construction and deem it sufficient

8 Th e Parkway Villas Combined Amended and Restated Declaration of Condominium, section

9.3, directs that: " The Villa Owner shall be required to inform the Board in writing of any

electrical, plumbing, or structural changes. "

for permitting, as well as Petitioners ' payment, in full, of any outstanding

fine (the $1,000). T he Board decided that any unauthorized use of the

common areas by Petition ers during the suspension period would result in

additional fines.

22. The Board formally notified Petitioners of its decision by letter dated

March 29, 2018, and signed by Mrs. Wermuth. The letter expressly stated

that any violation of the suspension fro m using the common areas " will be

considered a separate finable violation of the association ' s condominium

documents, " which would have to be paid in full prior to restitution of full

use.

23. Sometime around March 2018, Petitioners took steps to have thei r

bathroom appropriately inspected. Unlike her experience with the patio

modifications, however, Mrs. Hathaway testified that Mrs. Wermuth was

most unhelpful in this process. Mrs. Hathaway charged that Mrs. Wermuth

ordered her to obtain inspections from bo th an electrician and a plumber.

24. Based on this imperative, Petitioners proceeded to pay an electrician,

a plumber, as well as a professional engineer to inspect their bathroom. They

also contacted Manatee County to acquire the appropriate building per mits.

Petitioners ultimately secured several reports confirming that the bathroom

was competently constructed, as well as a Certificate of Completion from Manatee County indicating that the bathroom complied with applicable

building code requirements. (The evidence adduced at the final hearing was

unclear as to exactly when Petitioners presented the results of these

inspections to the Board. Mrs. Hathaway urged that she provided all the

information to the Board before the March 29, 2018, Board meeting, and

produced a bill from a plumber dated March 8, 2018. However, the building permit Petitioners received from Manatee County was not issued until

April 3, 2018. More significantly, as described below, the Board did not

consider the inspection results until we ll over a year later in July 2019.)

25. On April 2, 2018, Petitioners paid the $1,000 fine to the Board for the

unapproved construction of their half bathroom. Petitioners subsequently

appeared bef ore the Board in April and May 2018, to contest paying the fine,

as well as the imposition of the suspension. Notably, at neither of these

meetings did Petitioners specifically request an accommodation to allow Mrs.

Hathaway to use the community pool while their dispute was pending the

Board ' s review. Neither did they express Mrs. Hathaway ' s desire to use the

pool in relation to a disability.

26. Following Petitioners ' payment of the $1,000 fine in Ap ril 2018,

Mrs. Hathaway began using the pool. (In fact, the evidence indicates that she

never stopped using the poo l.) However, because the Board had not yet

conducted its review of the bathroom inspections and permits, her suspension

from accessing the common areas remained in effect.

27. The Board later addressed Petitioners ' violations during a meeting on

April 23, 2018. At that time, the Board noted that Petitioners had not

provided any paperwork demonstrating that their new bathroom had been proficiently constructed. Therefore, the Board moved to require Petitioners to have a licensed plumber inspect the connectio n between their bathroom and

the Association ' s sewer line, and also to have a licensed electrician inspect

the electrical work.

28. Thereafter, Mrs. Wermuth, in her role as Board President, directed

the Board S ecretary to prepare a letter notifying Petitio ners that, while the

inspections remained outstanding, they faced a " $50 per day fine for violating

the suspension from use of the clubhouse and pool areas. " The letter, dated

April 25, 2018, also alerted Petitioners that their current fine totaled $500, a nd further warned Petitioners that if they persisted " in using the pool and

clubhouse areas before [the Board has] removed the suspension and approved

your half - bath project, the fine may increase to the maximum of $1,000. The

suspension will not be lifted until fines are paid in full . "

29. At the final hearing, Mrs. Wermuth explained that the Board imposed

the fine to motivate Petitioners to comply with the Board ' s request as quickly

as possible. However, once Petitioners proved that their bathroom adhere d to

Association Rules, Mrs. Wermuth represented that the Board fully intended

to set aside the penalties.

30. Despite her suspension, Mrs. Hathaway continued to regularly

(perhaps daily) use the Association pool. Mrs. Hathaway explained that

several med ical professionals had advised her that the joint pain in her right

shoulder and arm would benefit from physical therapy in the pool.

31. To support her testimony, Mrs. Hathaway produ ced a doctor ' s letter

from May 2017, which recommended that she " would b enefit from use of the

community pool to assist in her joint pai n therapy. " A year later in May 2018,

Mrs. Hathaway visited a local hospital emergency room complaining of pain. Upon her discharge, the physician told her that using the pool " would assist

wi th [her] joint pain therapy. "

32. Mrs. Hathaway credibly testified that, in May 2018, she provided both

the doctor ' s letter and the discharge instructions to a member of the

Association Board (not Mrs. Wermuth). However, Mrs. Hathaway admitted

that, other than passing on these two documents, she did not communicate

directly or indirectly with any Board member about her disability or health.

Neither does the evidence establish that Mrs. Hathaway furnished these

documents to the Board for the Board ' s conside ration. More pertinently,

Mrs. Hathaway conceded she never directly delivered these documents to

either Mrs. or Mr. Wermuth.

33. During her testimony, Mrs. Hathaway also described an incident on

October 20, 2018, when she was exercising in the pool. (Mrs. Hathaway was

still suspend ed from accessing the community ' s common areas.) That day,

another Parkway Villas Board member (not Mrs. Wermuth) " viciously " yelled

at her and demanded to know why she was using the pool when she was not

allowed to be there. Whe n Mrs. Hathaway did not exit the pool in a timely

fashion, the resident called the Manatee County Sheriff ' s Office, who

responded to the scene. The sheriff registered the complaint, but did not

arrest Mrs. Hathaway.

34. Petitioners never paid the fine for Mrs. Hathaway ' s unauthorized use

of the pool during her suspension, which eventually reach the maximum

amount of $1,000. Mrs. Hathaway explained that Petitioners felt that paying

anything beyond the initial fine of $1,000 for the unapproved bathroom instal lation was " extortion " and simply not fair. Finally, on June 26, 2019,

Petitioners sent a letter to the Board requesting the Board reconsider the

outstanding sanction. The letter, addressed to Mrs. Wermuth, specifically

expressed:

[W]e would like to know w hen the sanctions no to

use pool – fitness – laundry – comun [sic] areas

that you ordered last year 3 - 26/18 after we paid

$1,000 fine and present to you all the

documentation from Manatee County 3 - 26/18

following the regulation ' s to instaled [sic] 1/2 bath

on January 2016 and was approved with all

Professional Plumbing – Electrician etc .

35. On July 1, 2019, the Board held a Special Board Meeting to consider

Petitioners ' request. During the meeting, the Board determined that

Petitioners had presented suff icient proof that their bathroom was installed

in a professional manner and complied with all necessary building code and

Manatee County permitting requirements. The Board also acknowledged that

Petitioners had produced a Certificate of Completion from Man atee County

and had paid the maximum $1,000 fine for the initial violation. Therefore,

the Board voted to rescind the suspension of Petitioners ' use of the pool, as

well as all fines associated with Mrs. Hathaway ' s repeated violation of the

suspension. Mrs . Wermuth presided over the meeting. However, she once

again abstained from the vote.

36. The Board notified Petitioners of its decision by letter, dated July 1,

2019, which stated that, " A ny pending fines or suspensions to the

Association ' s Common Elemen ts are rescinded. " The Board also posted its

action on the Association website. In addition, the Board emailed the meeting

minutes of the vote to the Parkway Villas residents and placed a copy of the

minutes on the community bulletin board in the clubhouse .

37. With Petitioners ' right to access the Association ' s common areas

reinstated, Mrs. Hathaway has been free to use the pool since July 2019.

38. Despite the July 2019 publication of the Board ' s vote to lift Petitioners '

suspension, at the final hearing Mrs. Hathaway complained that she has

experienced a number of confrontations with other Parkway Villas residents

who still believe that she is barred from using the pool. Mrs. Hathaway

declared that she has been told to leave the pool; she has been yelled at in the

laundry room; and, most significantly, " many people attack me, attacking us,

at the pool. " M rs. Hathaway expounded that confrontation s such as the one

on October 20, 2018, are not uncommon. She proclaimed that, " people start to

attack us because Mrs. Wermuth talk to everyone, she circulate all the

information to all the residents. " Mrs. Hathaway relayed that Parkway Villa

residents have reported her to the Manatee County Sheriff ' s Office

approximately seven times since March 2018.

39. Mrs. Hatha way asserted that she has implored Mrs. Wermuth to

re - notify the residents that the Board has rescinded Petitioners ' suspension.

However, Mrs. Wermuth allegedly has refused to do so. Therefore, as part of

the relief for her FHA claim, Mrs. Hathaway desires all harassment related

to her use of the pool to stop. Because Mrs. Hathaway believes that

Mrs. Wermuth is responsible for imposing the sanctions in the first place, she

asserts that Mrs. Wermuth should be ordered to spread the word that Petitioners are n o longer prohibited from using the common areas.

Accordingly, Mrs. Hathaway seeks an administrative order directing

Mrs. Wermuth to inform all Parkway Villas residents that Petitioners are no

longer forbidden from using the pool.

40. Mrs. Hathaway also a llege d several other instances of harass ment by

Respondents including:

a. December 2017, Bicycle Incident : Mrs. Hathaway complained that

Mr. Wermuth rode his bicycle too close to her as she walked down a sidewalk.

Mrs. Hathaway described the incident as i ntentionally intimidating.

b. Pictures of Petitioners ' Unit : Mrs. Hathaway complained that

Mr. Wermuth photographed her villa and complained about its condition.

(This activity prompted Mrs. Hathaway to initiate a small claims court action

against him.)

c. Mrs. Hathaway ' s Use of the Laundry Room : Mrs. Hathaway claimed

that in March 2018, Mr. Wermuth harassed her while she was doing laundry.

Mrs. Hathaway claims that Mr. Wermuth took pictures of her in the laundry

room and raised his voice at her.

41. I n addition to this FHA matter, Petitioners initiated several

unrelated, but parallel , legal actions against R espondents in or about

February 2018. These matters involved separate complaints in Manatee

County small claims court against both Mrs. and Mr. Wer mu th. In particular,

on February 8, 2018, Mrs. Hathaway sued Mrs. Wermuth for discrimination,

retaliation, intimidation, and harassment based on a " fine for no violations. "

See Miryam Hathaway v. Gerlinde Wermuth , Twelfth Judicial Circuit in and

for Manate e County, Florida, Case No. 2018 SC 679. On April 5, 2018,

Mrs. Hathaway sued both Mr. and Mrs. Wermuth for " harassment issues. "

See Miryam Hathaway v. Horst and Gerlinde Wermuth , Twelfth Judicial

Circuit in and for Manatee County, Florida, Case No. 2018 S C 1509. These

civil mat ters were dismissed in December 2018. 9 However, Mrs. Wermuth

was awarded over $20,000 in attorney ' s fees and costs spent in defending the

matter against Mrs. Hathaway.

42. At the final hearing, Respondents denied that they ever t ook any

action against Petitioners based on Mrs. Hathaway ' s disability . They also

rejected any allegation that they ever participated in a decision that refused

or failed to accommodate Petitioners ' alleged disability.

43. Mrs. Wermuth testified that, whil e she did serve as Board President

throughout the time of Petitioners ' fines and suspension, she does not

personally administer, control, or manage the Association. Further, as an

individual Board member, she does not have the authority to unilaterally

pen alize a unit owner who has violated Association Rules. Neither can she

personally suspend a unit owner ' s common use rights. Similarly, she does not

have the power to reinstate the use of the Association ' s common elements, or

grant any request for a disabil ity accommodation, however reasonable.

44. Regarding the Board ' s decision to impose the suspension on

Petitioners, Mrs. Wermuth maintained that as a Board member, she must

participate in the Board ' s actions to enforce the Association Rules.

Mrs. Wermuth as serted that the Board does so in a consistent, fair, and

uniform manner to all Parkway Villas residents.

45. Regarding Petitioners ' specific allegations, Mrs. Wermuth denied that

she had any knowledge that either Petitioner suffered from a disability. She further denied any knowledge of a request from Mrs. Hathaway to use the

pool for the express purpose of treating her shoulder pain. On the contrary,

9 In granting the Wermuths’ motion to dismiss, the judge noted that Mrs. Hathaway’s " claim

surrounds a sequence of events that have occurred between approximately December 2017 to

April 2018, wherein [Mrs. Hathaway] believes the Defendants have harassed, discriminated

against, and intimida ted her by approaching her, yelling at her, ' stalking ' her, taking photos

of her, and participating in the HOA board’s decisions denying her request to replace her

patio, fining her for failing to bring her patio up to agreed - upon specifications, and

suspe nding her common area privileges. [Mrs. Hathaway] claims that these events have

caused her medical issues. "

Mrs . Wermuth expressed that , throughout the time period covered by

Petitioners' complaint, she has seen M rs. Hathaway physically active around

the community. Mrs. Wermuth has observed Mrs. Hathaway walking,

exercising in the pool, hosting a Latin dancing party, and taking part in

exercise classes in the clubhouse.

46. Mrs. Wermuth vigorously refuted the alle gation that any of the

Board ' s enforcement actions against Petitioners were administered unfairly.

On the contrary, Mrs. Wermuth asserted that the fines and suspension were

necessary to enforce the Association Rules, as well as to ensure that

Petitioners a dhere to them. Mrs. Wermuth explained that, in her experience,

suspending a resident ' s access to the common areas is the most effective

method to bring about compliance with Association Rules.

47. Mrs. Wermuth further declared that none of the Board ' s act ions

regarding Petitioners were based on her personal feelings. Instead, Mrs. Wermuth recused herself from most of the Board ' s decisions addressing

Petitioners ' issues and consistently voted to " abstain. "

48. For his part, Mr. Wermuth testified that he do es not hold, nor has he

ever held, any decision - making authority with the Association or its Board.

He has never served as a member of the Board or worked as an Association

agent, committee member, or employee. Mr. Wermuth expressed that he has

never made, nor has he ever had the power to make, housing determinations

affecting Petitioners. Neither has he ever had any responsibility to determine Petitioners ' access to community facilities. Petitioners did not present any

evidence establishing that Mr. Wermut h participated in any vote of the

Board to impose the fines or suspension on Petitioners.

49. Further, as with his wife, Mr. Wermuth attested that he had no

knowledge of any disabilities claimed by Petitioners prior to learning of their

Petition filed wit h the Commission. On the contrary, he too ha s observed

Mrs. Hathaway walking around the community, exercising in the pool, and

using the fitness equipment in the Association ' s clubhouse.

50. Mrs. Hathaway admitted that she had not spoken to Mr. Wermuth

ab out her health or disability. Neither did she present any evidence that she

requested an accommodation from him, or that he played any role in the

Board ' s suspension of her use of the community pool.

51. As to Mrs. Hathaway ' s complaints of other transgress ions:

a. Bicycle Incident : Mr. Wermuth did not recall ever riding his bicycle too

close to Mrs. Hathaway while she was walking on a sidewalk. He specifically denied that he ever intentionally rode by her in an attempt to threaten or

intimidate her. Mr. We rmuth offered that if his bicycle ever did pass too close

to Mrs. Hathaway, it would have been unintentional and had nothing to do

with her disability.

b. Pictures of Petitioners ' Unit : Regarding Mrs. Hathaway ' s complaint

that he once photographed her vil la, Mr. Wermuth testified that he

frequently takes pictures of the Parkway Villas community as part of an ongoing scrapbook of his homes and neighborhoods. Mr. Wermuth stated that

during the incident in question, he was simply taking pictures of the commun ity ' s Christmas lights. He denied that he ever intended to agitate

Petitioners. Similarly, no evidence shows that Mr. Wermuth photographed

Petitioners ' condominium based on Mrs. Hathaway ' s disability or some

discriminatory animus. Mrs. Hathaway admitted th at Christmas lights were

strung up next to her unit at the time.

52. Based on the competent substantial evidence in the record, the

preponderance of the evidence does not establish that the Wermuths

discriminated against Petitioners (Mrs. Hathaway) based o n a handicap, or

failed to provide a reasonable accommodat ion for the same. Accordingly,

Petitioners failed to meet their burden of proving that the Wermuths committed unlawful discrimination in violation of the FHA .

C ONCLUSIONS OF L AW

53. The Division of Administrative Hearings has jurisdiction over the

parties and subject matter of this cause pursuant to sections 120.569,

120.57(1), and 760.35(3)(b), Florida Statutes. See also Fla. Admin. Code

R. 60Y - 4.016.

54. Petitioners bring this action alleging th at the Wermuths discriminated

against them in violation of the FHA. Petitioners assert that the Wermuths, in particular Mrs. Wermuth, treated them differently based on their

handicaps. Petitioners specifically complain that the Wermuths r efused to

make " re asonable accommodations " in the application of the Association ' s

rules, policies, practices, or services to Petitioners.

10

55. The FHA is codified in sections 760.20 through 760.37 and makes it

unlawful to discriminate against any person in the provision of services or

facilities in connection with a dwelling because of a handicap. Section 760.23

specifically states, in pertinent part:

(8) It is 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 with such

dwelling, because of a handicap of:

(a) That buyer or renter;

* * *

(9) For purposes of subsections (7) and (8),

discrimination includes:

* * *

(b) A refusal to make reasonable accommodations

in rules, policies, practices, or services, when such accommodations may be necessary to afford such

10 See Sabal Palm Condo . of Pine Island Ridge Ass'n, Inc. v. Fischer , 6 F. Supp. 3d 1272, 1293

(S.D. Fla. 2014) ( Individual board members can be held liable when they have " personally

committed or contributed to a [federal] Fair Housing Act violation. " )

person equal opp ortunity to use and enjoy a

dwelling.

56. The FHA is patterned after the Federal Fair Housing Act found in 42

U.S.C. § 3601, et seq. Discrimination covered under the FHA is the same

discrimination prohibited under the Federal Fair Housing Act. Savannah

Cl ub Worship Serv. v. Savannah Club Homeowners ' Ass ' n , 456 F. Supp. 2d

1223, 1224 n.1 (S.D. Fla. 2005); see also Bhogaita v. Altamonte Heights

Condo. Ass ' n , 765 F.3d 1277, 1285 (11th Cir. 2014)( " The [Federal Fair

Housing Act] and the Florida Fair Housing Act are substantively identical,

and therefore the same legal analysis applies to each. " ). Accordingly, federal

case law involving housing discrimination is instructive in applying and

interpreting the FHA. See Loren v. Sasser , 309 F.3d 1296, 1300 n.9 (11th C ir.

2002). Specifically regarding the subject matter of Petitioner ' s claim, the

statutory language in section 760.23 is very similar to that found in its federal counterpart in 42 U.S.C. § 3604(f).

11

57. To establish a claim under the FHA, the burden of pr oof is on the

complainant. § 760.34(5), Fla. Stat.; see also Sec ' y, U.S. Dep ' t of Hous. &

Urban Dev. ex rel. Herron v. Blackwell , 908 F.2d 864, 870 (11th Cir. 1990);

and Dep ' t of Banking & Fin., Div. of Sec. & Investor Prot. v. Osborne Stern &

11 42 U.S.C. § 3604(f) states: The pertinent language in

(2) To discriminate against any person in the terms,

conditions, or privileges of sale or renta l of a dwelling, or in

the provision of services or facilities in connection with such

dwelling, because of a handicap of —

(A) that person;

* * *

(3) For purposes of this subsection, discrimination includes --

* * *

(B) a refusal to make reasonabl e accommodations in rules, policies, practices, or services, when such accommodations

may be necessary to afford such person equal opportunity to

use and enjoy a dwelling;

Co. , 670 So. 2d 932, 935 (Fla. 1996)( " The general rule is that a party

asserting the affirmative of an issue has the burden of presenting evidence as

to that issue. " ). The preponderance of the evidence standard is applicable to

this matter. § 120.57(1)(j), Fla. Stat.

58. Discrimination may be proven by direct, statistical, or circumstantial

evidence. Valenzuela v. GlobeGround N. Am., LLC , 18 So. 3d 17, 22 (Fla. 3d

DCA 2009). Direct evidence is evidence that, if believed, would prove the

existence of discriminatory inte nt behind the decision without any inference

or presumption. Denney v. City of Albany , 247 F.3d 1172, 1182 (11th Cir.

2001); see also Holifield v. Reno , 115 F.3d 1555, 1561 (11th Cir. 1997). Courts

have held that "' only the most blatant remarks, whose inte nt could be

nothing other than to discriminate ... ' will constitute direct evidence of

discrimination. " Damon v. Fleming Supermarkets of Fla., Inc. , 196 F.3d 1354,

1358 - 59 (11th Cir. 1999).

59. Petitioners presented no direct evidence of housing discrimina tion by

the Wermuths. The evidence and testimony do not establish that the

Wermuths intentionally refused to make accommodations in the Association ' s

rules, policies, practices, or services because of Petitioner ' s disability .

60. Where there is no direct e vidence of discrimination, fair housing cases

are analyzed under the three - part, burden - shifting framework set forth in

McDonnell Douglas Corporation v. Green , 411 U.S. 792 (1973), and Texas

Department of Community Affairs v. Burdine , 450 U.S. 248 (1981). See

Blackwell , 908 F.2d at 870; and Savannah Club , 456 F. Supp. 2d at 1231 - 32.

61. Under this three - part test, Petitioner has the initial burden of

establishing, by a preponderance of the evidence, a prima facie case of unlawful discrimination. McDonnell Douglas , 411 U.S. at 802; Burdine , 450

U.S. at 252 - 53; Burke - Fowler v. Orange C ty. , 447 F.3d 1319, 1323 (11th Cir.

2006); and Valenzuela , 18 So. 3d at 22. For Petitioner to establish a prima

facie case of housing discrimination based on an alleged failure t o make

reasonable accommodations she must prove that: (1) she is " disabled " within

the meaning of the FHA; (2) she requested a " reasonable accommodation " ;

(3) the requested accommodation was necessary to afford her an equal

opportunity to use and enjoy her dwelling; and (4) the Wermuths refused to

make the requested accommodation. Schaw v. Habitat for Humanity of Citrus

Cty., Inc. , 938 F.3d 1259, 1264 (11th Cir. 2019); Sabal Palm Condo . of Pine

Island Ridge Ass ' n, Inc. v. Fischer , 6 F. Supp. 3d 1272, 1281 ( S.D. Fla. 2014);

and Bhogaita , 765 F.3d at 1285.

62. Regarding the second prong of the prima facie case, Petitioner carries

the burden of showing that her proposed accommodation is " reasonable. " U.S.

Airways v. Barnett , 535 U.S. 391, 401 – 02, 122 S.Ct. 15 16, 152 L.Ed.2d 589

(2002). The Supreme Court has explained that a petitioner/plaintiff " need

only show that an ' accommodation ' seems reasonable on its face , i.e.,

ordinarily in the run of cases. " U.S. Airways , 535 U.S. at 401. The

reasonableness inquiry c onsiders " whether the requested accommodation ' is

both efficacious and proportional to the costs to implement it. '" Schaw , 938

F.3d at 1265.

63. If a petitioner ' s request is facially reasonable, the burden shifts to the

respondent, who must prove that the accommodation would nonetheless

impose an " undue burden " or result in a " fundamental alteration " of its

program. Schwarz v. City of Treasure Island , 544 F.3d 1201, 1220 (11th Cir.

2008); Sabal Palm , 6 F. Supp. 3d at 1281 ( A n accommodation " is not

reasonabl e ' if [1] it would impose an undue financial and administrative

burden on the housing provider or [2] it would fundamentally alter the

nature of the provider ' s operations. '" ) . An accommodation requires a

" fundamental alteration " if it would " eliminate an ' essential ' aspect of the

relevant activity, " id . at 1220 – 21. Whether a particular aspect of an activity

is " essential " will turn on the facts of each case. Schwarz , 544 F.3d at 1221;

Schaw , 938 F.3d at 1266.

64. Regarding proof of the third element, Petiti oner s must show that the

requested accommodation is " necessary " to address the need created by the ir

disability . See Bhogaita , 765 F.3d at 1288 ( " [A] ' necessary ' accommodation is

one that alleviates the effects of a disability. " ) . " To show that a requested

accommodation may be necessary, there must be an identifiable relationship,

or nexus, between the requested accommodation and the individual ' s

disability. " Sabal Palm , 6 F. Supp. 3d at 1281 – 82. A reasonable

accommodation is required " only if it ' may be ne cessary to afford [a disabled

resident an] equal opportunity to use and enjoy a dwelling. '" Schwarz , 544

F.3d at 1225. In this context:

" [E]qual opportunity " can only mean that

handicapped people must be afforded the same (or

" equal " ) opportunity to use a nd enjoy a dwelling as

non - handicapped people, which occurs when

accommodations address the needs created by the handicaps . If accommodations go beyond

addressing these needs and start addressing problems not caused by a person ' s handicap, then

the handica pped person would receive not an

" equal, " but rather a better opportunity to use and

enjoy a dwelling, a preference that the plain language of this statute cannot support .

Schwarz , 544 F.3d at 1226.

65. If Petitioners prove a prima facie case, they creat e a presumption of

discrimination. At that point, the burden shifts to the Wermuths to articulate

a legitimate, nondiscriminatory reason for their actions. Burdine , 450 U.S. at

255; s ee also Blackwell , 908 F.2d at 870; Savannah Club , 456 F. Supp. 2d at

123 1 - 32. The reason for the Wermuths ' decision should be clear, reasonably

specific, and worthy of credence. See Dep ' t of Corr. v. Chandler , 582 So. 2d

1183, 1186 (Fla. 1st DCA 1991). The burden on the Wermuths is one of

production, not persuasion, to demonst rate to the finder of fact that its action

was nondiscriminatory. Wilson v. B/E Aerospace, Inc. , 376 F.3d 1079, 1087

(11th Cir. 2004). This burden of production is " exceedingly light. " Holifield ,

115 F.3d at 1564.

66. Finally, if the Wermuths meet their bu rden, the presumption of

discrimination disappears. The burden then shifts back to Petitioners to

prove that the Wermuths ' proffered reason was not the true reason but

merely a " pretext " for discrimination. Combs v. Plantation Patterns , 106 F.3d

1519, 1538 (11th Cir. 1997); Valenzuela , 18 So. 3d at 25.

67. In order to satisfy this final step in the process, Petitioners must show

" either directly by persuading the court that a discriminatory reason more

likely motivated [the Wermuths] or indirectly by showin g that [the

Wermuths ' ] proffered explanation is unworthy of credence. " Burdine , 450

U.S. 248, 256, 101 S. Ct. 1089, 1095. Petitioners must prove that the reasons

articulated were false and that the discrimination was the real reason for the

action. City of Miami v. Hervis , 65 So. 3d 1110, 1117 (Fla. 3d DCA

2011)(citing St. Mary ' s Honor Ctr. v. Hicks , 509 U.S. 502, 515, 113 S. Ct.

2742, 2751 (1993) , 509 U.S. at 515)( " [A] reason cannot be proved to be ' a

pretext for discrimination ' unless it is shown both tha t the reason was false,

and that discrimination was the real reason. " ).

68. Despite the shifting burdens of proof, " the ultimate burden of

persuading the trier of fact that the [Respondents] intentionally discriminated against the [Petitioners] remains at all times with the

[Petitioners]. " Burdine , 450 U.S. at 253; Valenzuela , 18 So. 3d at 22.

69. Turning to Petitioners ' allegations, Mrs. Hathaway claims that the

Wermuths failed to accommodate her disability by refusing to lift the suspension from accessing the Parkway Villas common areas. Over the

course of this dispute, Mrs. Hathaway identified two specific accommodation

requests. First, she desired unrestricted access to the pool to conduct exercises to rehabilitate her shoulder injury. Second, at the fin al hearing,

Mrs. Hathaway voiced that she wants the Wermuths to prevent the

harassment she experiences from other Parkway Villas residents regarding

her use of the pool. Based on the evidence in the record, however, Petitioners failed to establish a prima facie case of a discriminatory housing practice

against the Wermuths regarding each requested accommodation. 12

a. Access to the Community Pool :

70. Petitioners ' discrimination claim fails on Mrs. Hathaway ' s first

accommodation request because the Board ( and, therefore, the Wermuths)

complied with her desire to use the pool by rescinding Petitioners ' suspension

from accessing the Association common areas.

71. In terms of Petitioners ' prima facie case, based on the evidence in the

record, Mrs. Hathaway s at isfactorily established that she has a " handicap "

within the meaning of the FHA. 13 Mrs. Hathaway also sufficiently

demonstrated that she requested use of the pool for the purpose of treating her shoulder and arm injury. Mrs. Hathaway persuasively testified that she

gave the two doctor ' s notes to a Board member in May 2018. These

documents contained enough information to inform the Board that

Mrs. Hathaway ' s use of the pool to " assist with [her] joint pain therapy "

would afford her an equal opportunity to enj oy her dwelling in Parkway

Villas. Further, allowing Mrs. Hathaway to use the pool for the limited purpose of exercise and rehabilitation was " reasonable " under the

circumstances where the Board had imposed other penalties on Petitioners

(fines and restric ted access to the clubhouse), which would (and did)

encourage Petitioners to obtain the proper inspections and permits for their

unapproved bathroom installation.

12 While the basic thrust of Petitioners’ FHA complaint centers on the We rmuths' alle ged

failure to provide a reasonable accommodation (which is not proven), Petitioners also failed

to establish the broader claim that the Wermuths generally discriminated against

Mrs. Hathaway based on her disability.

13 A person has a disability under the federal Fair Housing Act if she has " a physical or

mental impairment which substantially limits one or more of such pe rson’s major life

activities. " 42 U.S.C. § 3602(h); see also Joshua v. City of Gainesville , 768 So. 2d 432, 435

(Fla. 2000) ( " [C] hapter 76 0 is remedial and requires a liberal construction to preserve and

promote access to the r emedy intended by the Legislature. " ) .

72. However, regarding the fourth prong of the prima facie case (refusal to

make the reques ted accommodation), the evidence shows that

Mrs. Hathaway ' s request for access to the Association ' s pool was granted,

despite the fact that Petitioners did not pay the $1,000 fine for using the pool

during the suspension. On July 1, 2019, the Board voted t o lift the sanctions.

73. As far as the delay between the date Mrs. Hathaway provided a Board

member Mrs. Hathaway's doctor ' s notes (May 2018), and the date the Board

rescinded the suspension (July 2019), Petitioners did not prove that the

Board should ha ve addressed her situation prior to July 1, 2019. No evidence

indicates that Petitioners made any sort of formal accommodation request to

the Board until her June 26, 2019, letter asking about the status of the

suspension. (Even then, Petitioners did not s pecifically explain that their

desire to access the pool was to accommodate Mrs. Hathaway's disability.)

Upon consideration of Petitioners ' letter, the Board acted promptly and voted

five days later to rescind the suspension.

74. Furthermore, and more mate rial to this action, the eviden ce shows

that the Wermuths, or, rather , Mrs. Wermuth as Board President, also took

the limited steps within her power to accommodate Mrs. Hathaway ' s request

to use the pool. Initially, the facts establish that Mrs. Wermuth ha d no

individual authority to either bar or restore Mrs. Hathaway ' s access to the

community pool. While she might have presided over Board meetings,

Mrs. Wermuth ' s vote alone could not have rescinded Petitioners ' suspension.

Board action required at least t hree other affirmative votes. (And, in this

case, at least four other votes because Mrs. Wermuth abstained from voting

on Petitioners ' sanctions.) Based on the facts found, the first time

Mrs. Wermuth could have reasonably known that Mrs. Hathaway ' s desire for

the Board to reconsider her suspension might be related to a disability was

following Petitioners ' letter dated June 26, 2019. Although Mrs. Hathaway

provided the two doctor ' s notes to another Board member in May 2018, no

evidence shows that Petitione rs presented the documents to Mrs. Wermuth.

Conversely, both Respondents credibly testified that they were unaware that

Mrs. Hathaway suffered from a disability based on their observation of her

physical activity around the community. Accordingly, Petition ers did not

prove a prima facie case of housing discrimination by Respondents based on

the alleged failure to lift the suspension from use of the pool sooner than July

1, 2019 .

75. Finally, the undersigned notes that even if Petitioners had prove n

their c ase, they have not shown that they would be entitled to any remedy .

Section 760.35(3)(b) directs that, upon finding that a discriminatory housing

practice has occurred, the administrative law judge " shall issue a

recommended order ... prohibiting the pract ice and recommending affirmative

relief from the effects of the practice, including quantifiable damages. " In this

matter, despite facing mounting fines, Mrs. Hathaway never stopped her

(often daily) use of the pool. Further, the Board subsequently waived all fines. Consequently, because Mrs. Hathaway continued to conduct her pool

exercises during the suspension and has had free access to the pool since July 2019, no discriminatory practice exists which the Commission must prohibit,

and no affirmative relie f or quantifiable damages can be identified for which

an award should be made.

b. Preventing Harassment from Other Residents :

76. At the final hearing, Petitioners raised an additional accommodation

request. Mrs. Hathaway implored the Wermuths to prevent the periodic

harassment she receives from other Parkway Villas residents. Mrs. Hathaway, however, failed to establish a prima facie case for this second

request because the evidence does not show that the accommodation she

seeks – that the Wermuths affirm atively act 1) to notify all community

residents that the Board rescinded the suspension, and 2) to stop hostile

encounters regarding Mrs. Hathaway ' s pool use – is " necessary " to give her

an equal opportunity to use and enjoy her dwelling.

77. Petitioners brought this action to obtain an accommodation from the

suspension to allow Mrs. Hathaway to use the pool to help alleviate her

shoulder pain. Mrs. Hathaway ' s additional request for the Wermuths to

provide notice to the community beyond that produced by t he Board in 2019,

however, relates solely to Petitioners ' relationship with their neighbors, not

her disability. While Mrs. Hathaway may have experienced unpleasant

interactions with other residents, no evidence demonstrates that these occasional confronta tions have effectively prevented her from using the pool.

78. Further, no evidence shows that the Wermuths have encouraged,

participated, or been involved in any of these encounters. On the contrary,

enforcing this second accommodation would require the W ermuths to take

steps well beyond those necessary to address or ameliorate the effect of her

handicap. The FHA only requires an accommodation that alleviates the effect

of the disability. See Schaw , 938 F.3d at 1270. To the extent that Petitioners

desire t he Wermuths to take action over and above rescinding the suspension

to the common areas (such as proactively policing personality conflicts within

the community), such an accommodation would place Mrs. Hathaway in a

better position, rather than an " equal " position, within the Parkway Villas

community. She would receive a benefit beyond that available to non -

handicapped persons based on factors unrelated to her actual disability .

Consequently, Petitioners did not establish that the second accommodation

Mrs. Hathaway seeks is " necessary " to afford her " equal " use and enjoyment

of her dwelling. The fact that Mrs. Hathaway may have acrimonious

relationships with other residents regarding her pool use does not, without

more, sustain Petitioners ' housing discrimin ation claim.

79. At its core, Petitioners ' FHA complaint consists of broad assertions

that the Board ' s decisions against their interests were based on

Mrs. Hathaway ' s disability, and were driven by the Wermuths. However, the

evidence and testimony in the r ecord does not, either directly or

circumstantially, link Petitioners ' aggravation with actual discrimination. 14

On the contrary, the Wermuths presented credible and persuasive

explanations for Petitioners ' suspension from accessing the pool (Petitioners '

m ultiple violations of Association Rules), and no evidence shows that

Mrs. Wermuth, in her role as Board President, was personally motivated to

take some action (even if she held any individual authority to take such

action) against Petitioners based on dis criminatory animus. 15 Further, the

Wermuths (and the Board) complied with Petitioners ' request for an

accommodation to use the pool. Consequently, Petitioners failed to meet their

ultimate burden of proving that the Wermuths committed a discriminatory

housi ng practice.

R ECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of Law, it is

RECOMMENDED that the Florida Commission on Human Relations issue a

f inal order determin ing that Respondents, Gerlinde Wermuth and Horst

Wermuth, did not com mit a discriminatory housing practice against

Petitioners and dismiss ing their Petition for Relief.

14 See Gooden v. Internal Rev. Serv. , 679 Fed. Appx. 958, 966 (11th Cir. 2017) ( " [G] eneral

allegations, based on mere speculation and hunches, in no way establish that any alleged

[discriminatory activity] was race - , gender - , or disability based. " ) .

15 Similarly, Mrs. Hathaway’s complaints about Mr. Wermuth riding his bicycle too close to

her on the sidewalk or taking pictures of the side of her villa, at most, reflect a misunderstanding between neighbors, not a discriminatory housing practice.

D ONE A ND E NTERED this 5th day of October , 2020 , in Tallahassee, Leon

County, Florida.

J. B RUCE C ULPEPPER

Administrative Law Judge

Division of Admi nistrative Hearings

The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399 - 3060

(850) 488 - 9675

Fax Filing (850) 921 - 6847

www.doah.state.fl.us

Filed with the Clerk of the

Division of Administrative Hearings

this 5th day of October , 2020 .

C OPIES F URNISHED :

Tammy S. Barton, Agency Clerk

Florida Commission on Human Relations

4075 Esplanade Way , Room 110

Tallahassee, Florida 32399 - 7020

(eServed)

Miryam Hathaway

Benjamin Hathaway

Post Office Box 15103

Sarasota, Florida 34277

Kimberly Valas hinas, Esquire

McGuinness & Cicero

3000 Bayport Drive , Suite 560

Tampa, Florida 33607

(eServed)

Cheyanne Costilla, General Co unsel

Florida Commission on Human Relations

4075 Esplanade Way, Room 110

Tallahassee, Florida 32399

(eServed)

N OTICE OF R IGHT T O S UBMIT E XCEPTIONS

All parties have the right to submit written exceptions within 15 days from

the date of this Recommended Order. Any exceptions to this Recommended

Order should be filed with the agency that will issue the Final Order in this case.