03-002662 Youncy Carter vs. Majestic Gardens Condominium &Quot;C&Quot; Corporation And Majestic Gardens Condominium Association, Inc. Status: Closed Recommended Order on Wednesday, November 19, 2003.

Summary: A handicapped person not denied a reasonable accommodation when the condominium association refused to designate a handicapped-only parking space in front of the unit, which already had one assigned unit in front.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

YOUNCY CARTER, )

)

Petitioner, )

)

vs. ) Case No. 03 - 2662

)

MAJESTIC GARDENS CONDOMINIUM )

"C" CORPORATION and MAJESTIC )

GARDENS CONDOMINIUM )

ASSOCIATION, INC., )

)

Respond ents. )

______________________________)

RECOMMENDED ORDER

Robert E. Meale, Administrative Law Judge of the Division

of Administrative Hearings, conducted the final hearing in

Miami, Florida, on August 7, 2003.

APPEARANCES

For Petitioner: Stewart Lee Karlin

Stewart Lee Karlin, P.A.

315 Southeast 7th Street, Second Floor

Fort Lauderdale, Florida 33301

For Respondent Majestic Gardens Condominium

"C" Corporation:

Roosevelt Walters

Qualified Representative

1509 Northwest 4th Street

Fort Lauderdale, Florida 33311

For Respondent Majestic Gardens Condominium

Association, Inc.:

N o appearance

STATEMENT OF THE ISSUE

The issue is whether Respondents are guilty of housing

discrimination against Petitioner based on disability, in

violation of Section 760.23, Florida Statutes (2003).

PRELI MINARY STATEMENT

On May 29, 2002, Petitioner filed a Housing Discrimination

Complaint with the Florida Commission on Human Relations. The

complaint alleges that Florida Donaldson and Majestic Gardens

Condominium Association denied Petitioner a parking sp ace for

his exclusive use, due to his disability following a stroke. On

July 24, 2002, the Florida Commission on Human Relations entered

a Determination of No Reasonable Cause.

By Petition for Relief filed August 29, 2002, Petitioner

alleged that "Florid a Donaldson/Majestic Gardens Condominium"

discriminated against him, as a stroke victim with decreased

mobility, by refusing to designate a parking space for his

exclusive use, in addition to the parking space already

designated for his wife's exclusive us e.

After the Florida Commission on Human Relations transmitted

the file to the Division of Administrative Hearings to conduct

an evidentiary hearing, the parties consented to a remand to the

Commission to allow them to identify the correct respondents.

A fter doing so, the Commission retransmitted the file to the

Division of Administrative Hearings, pursuant to the above -

stated style.

At the hearing, each party called one witness. Petitioner

offered into evidence two exhibits: Petitioner Exhibits 1 - 2.

Respondent offered into evidence no exhibits. By stipulation,

the parties agreed to the admission seven photographs, which are

designated Joint Composite Exhibit 1. All exhibits were

admitted.

The court reporter filed the transcript on October 24,

2003. The parties filed their P roposed Findings of Fact by the

same date.

FINDINGS OF FACT

1. Petitioner suffered a stroke in September 1997 and was

consequently disabled. His right side was impaired.

Petitioner's right foot drags when he walks, and his right arm

is of limited use. Petitioner is unable to walk long distances

or stand for a significant period of time. To walk at all,

Petitioner requires the use of a cane or a walker. Petitioner

has been in this condition from September 1997 through the date

of the final hearing. At all material times, Petitioner has

possessed a handicapped parking sticker due to these

disabilities.

2. For many years, Petitioner's wife has lived in unit 102

at the Majestic Gardens Condominium, Building "C," Lauderhill,

Florida . Petitioner married his wife shortly before suffering

the stroke and moved into her condominium unit at Majestic

Gardens in December 1997. Petitioner and his wife resided

together at unit 102 until April 2001, when they rented the unit

and moved to a ho use in Miramar.

3. All of the buildings at Majestic Gardens Condominiums

comprise 238 units. Building "C" is a three - story building with

41 units. Each unit in Building "C" is assigned one parking

space. The assigned parking spaces are in close proximity to

the entrances of the units. Building "C" provides nine guest

parking spaces, but the parking is limited at Majestic Gardens,

and these spaces are routinely unavailable.

4. In the case of Petitioner's unit, the assigned space is

less than 15 feet from t he front door to the ground - floor unit.

At all material times, Petitioner's wife has parked her car in

this space. The two spaces to the left of Petitioner's assigned

space, as one faces the unit, are slightly closer to

Petitioner's unit and are designat ed as guest spaces.

5. Both R espondents are jointly responsible for operating

and assigning the parking spaces immediately adjacent to

Building "C." From 1998 through 2001, Petitioner and his wife

tried unsuccessfully to convince R espondents to designate a

parking space in front of their unit as handicapped, so that

Petitioner, who can still drive, could park his car directly in

front of his unit. Respondents refused to designate a

handicapped space because the effect of such a designation would

have been that Petitioner and his wife would have had two spaces

in front of their unit, when all of the other unitowners had

only one space.

6. Respondents have not designated any handicapped parking

adjacent to Building "C." They have designated three

handicappe d spaces at a nearby clubhouse, but, after Petitioner

started parking his car in one of these spaces, Respondent

Majestic Gardens Condominium Association, Inc., informed

Petitioner that these spaces were reserved for use by persons

using the recreation fac ilities. Because Petitioner was not

using the recreation facilities, he could not park in one of

these handicapped spaces. Later, Respondent Majestic Gardens

Condominium Association, Inc., painted over the blue lines and

removed the handicapped - parking s ign, thus allowing all users of

the recreation facilities to park in the three spaces previously

reserved for handicapped users of the recreation facilities. At

that point, the entire eight - building Majestic Gardens complex

lacked any parking designated e xclusively for handicapped use.

7. Relations between the condominium management and

Petitioner and his wife became strained at times. Petitioner

received cautionary notes and threats of towing whenever he

parked his car in a guest space. However, R esponde nts gave

Petitioner's wife the names of persons who might be willing to

rent their assigned parking spaces. Despite several efforts,

Petitioner and his wife were unable to secure another space by

this means.

CONCLUSIONS OF LAW

8. The Division of Administra tive Hearings has

jurisdiction over the subject matter. § 120.57(1), Fla. Stat.

9. Section 760.23, Florida Statutes (2003), provides in

relevant part:

(7) It is unlawful to discriminate in the

sale or rental of, or to otherwise make

unavailable or deny, a dwelling to any buyer

or renter because of a handicap of:

(a) That buyer or renter;

(b) A person residing in or intending to

reside in that dwelling after it is sold,

rented, or made available; or

(c) Any person associated with the buyer

or renter.

(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) Th at buyer or renter;

(b) A person residing in or intending to

reside in that dwelling after it is sold,

rented, or made available; or

(c) Any person associated with the buyer

or renter.

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

discriminatio n includes:

(a) A refusal to permit, at the expense

of the handicapped person, reasonable

modifications of existing premises occupied

or to be occupied by such person if such

modifications may be necessary to afford such

person full enjoyment of the p remises; or

(b) A refusal to make reasonable

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.

10. In Dornbach v. Holley , 854 So. 2d 211 (Fla. 2d DCA

2002), the court held that the Florida Fair Housing Act, which

includes Section 760.23, Florida Statutes, is similar to the

federal Fair Housing Act in that a petitioner may establish

liability in one of three ways: intentional discrimina tory

conduct toward a handicapped person, incidental discrimination,

or failure to make a reasonable accommodation that would allow a

handicapped person to enjoy his or her chosen residence. 854

So. 2d at p. 213.

11. As is clear from Petitioner's proposed rec ommended

order, his theory of the case is that respondents failed to make

a reasonable accommodation by assigning him a handicap - only

parking space in close proximity to the condominium unit that he

and his wife occupied.

12. A similar factual scenario existed in Sporn v. Ocean

Colony Condominium Association , 173 F. Supp. 2d 244 (D.N.J.

2001), where the court held that the condominium association had

not denied the plaintiff a reasonable accommodation. The

condominium association offered the plaintiff an assig ned space

close to his unit, but only if he deeded the space that was

assigned to the unit by the condominium documents. Identifying

the plaintiff's request as a request essentially for two spaces,

the court stated: "[plaintiff's] request for 'reasonable

accommodation' was really a request for accommodation coupled

with a demand for special treatment." Citing the discussion in

Jankowski Lee & Associates v. Cisneros , 91 F.3d 891, 896 (7th

Cir. 1996), the Sporn court noted that the federal Fair Housing

Act "only creates a right to a 'reasonable accommodation'; it

'does not create a right to an assigned handicapped space.'"

173 F. Supp. 2d at p. 250. The Sporn court held that the claim

of denial of reasonable accommodation was without merit.

13. Likewise, Peti tioner's claim that he was denied a

reasonable accommodation is without merit. Petitioner's unit

had a single parking space, as did the other units in the

complex, and Petitioner's space was extremely convenient to his

unit. Petitioner is essentially see king a second space for his

unit, but the law does not entitle him to such preferential

treatment, relative to the other unitowners.

RECOMMENDATION

It is

RECOMMENDED that the Florida Commission on Human Relations

enter a final order dismissing the Petiti on for Relief.

DONE AND ENTERED this 19th day of November, 2003, in

Tallahassee, Leon County, Florida.

S

___________________________________

ROBERT E. MEALE

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 19th day of November, 2003.

COPIES FURNISHED:

Cecil Howard, General Counsel

Florida Commission on Human Relations

2009 Apalachee Parkway, Suite 100

Tallahassee, Florida 32301

Denise Crawford, Age ncy Clerk

Florida Commission on Human Relations

2009 Apalachee Parkway, Suite 100

Tallahassee, Florida 32301

Stewart Lee Karlin

Stewart Lee Karlin, P.A.

315 Southeast 7th Street, Second Floor

Fort Lauderdale, Florida 33301

Roosevelt Walters

Qualified R epresentative

1509 Northwest 4th Street

Fort Lauderdale, Florida 33311

Florida Donaldson

Majestic Gardens Condominium

4045 Northwest 16th Street, Building C

Lauderhill, Florida 33313

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

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 must be filed with the agency that

will issue the final order in this case.