03-002845 Florida Commission On Human Relations On Behalf Of Sheila Swasey vs. Celina Hills Property Owner`s Association, Inc. Status: Closed Recommended Order on Monday, December 1, 2003.

Summary: Petitioner`s son is disabled and the Association`s action requiring compliance by Petitioner with the fencing regulation constitutes discrimination on the basis of handicapp. Recommended that a final order prohibiting further discrimination be entered.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

FLORIDA COMMISSION ON HUMAN )

RELATIONS ON BEHALF OF SHEILA )

SWASEY, )

)

Petitioner, )

)

vs. ) Case No. 03 - 2845

)

CELINA HILLS PROPERTY OWNER’S )

ASSOCIATION, INC., )

)

Respondent. )

)

RECOMMENDED ORDER

Administrative Law Judge Don W. Davis of the Division of

Administrative Hearings (DOAH) conducted the final hearing in

this case on October 16, 2003, in Inverness, Florida.

APPEARANCES

For Peti tioner: William J. Tait, Jr., Esquire

Florida Commission On Human Relations

2009 Apalachee Parkway, Suite 100

Tallahassee, Florida 32301 - 4830

For Respondent: Barry A. Postman, Esquire

Cole, Scott & Kissane, P.A.

Pacific Nat ional Bank Building

1390 Brickell Avenue, Third Floor

Miami, Florida 33131

STATEMENT OF THE ISSUES

The issue for determination is whether Celina Hills

Property Owner’s Association (the Association) violated the Fair

Housing Act, in its enforc ement of the Association’s deed

restrictions. The Association refused to allow a homeowner

within the Association’s community to put a fence around the

front of the homeowner's property to accommodate the disability

of the homeowner's son. A secondary is sue, if the Association

violated the Fair Housing Act, is whether the Association's

action is sufficient to permit the award of damages to the

Florida Commission on Human Relations (FCHR) for frustration of

agency purposes in this matter.

PRELIMINARY STAT EMENT

On February 20, 2003, Complainant and mother to Brad

Swasey, Sheila Swasey, filed a complaint with the U.S.

Department of Housing and Urban Development (HUD) alleging that

the Association discriminated against her, and her son, on the

basis of a han dicap in violation of Section 804(f) of Title VIII

of the Civil Rights Act of 1968, as amended by the Fair Housing

Act of 1988, and Section 760.23, Florida Statutes.

An investigation of the complaint was made by FCHR. On

June 18, 2003, FCHR issued a det ermination that there was

reasonable cause to believe that a discriminatory housing

practice had occurred in violation of Section 760.23, Florida

Statutes. FCHR’s efforts to conciliate the case failed as

stated in its Notice of Failure of Conciliation ent ered on

July 30, 2003. Afterwards, the Complainant elected to have FCHR

act on her behalf pursuant to Section 760.35(3)(a), Florida

Statutes, and FCHR Rule 60Y - 7.001(8)(b)7, Florida Administrative

Code.

On July 30, 2003, FCHR petitioned for relief on be half of

the Complainant.

The case was referred to DOAH to conduct a formal hearing

on the matter. On August 29, 2003, Administrative Law Judge Don

W. Davis issued a Notice of Hearing setting forth the date, time

and place for the hearing. At the hearin g, FCHR presented six

witnesses and offered six exhibits. The Association presented

two witnesses and offered nine exhibits. Ruling was reserved

upon admissibility of the Association's Exhibit 3 and upon

review of the matter, admissibility of Exhibit 3 i s denied on

the basis of relevancy. The other eight exhibits offered by the

Association were accepted into evidence at the final hearing.

The transcript was filed on October 30, 2003. Both parties

filed Proposed Recommended Orders which have been review ed,

utilized and addressed to the extent possible in the preparation

of this Recommended Order.

FINDINGS OF FACT

1. Sheila and Fred Swasey purchased a home in the Celina

Hills Community in 2001, where they currently reside. When they

purchased their hom e, the Swaseys had full knowledge that the

home was part of a homeowner’s association which had certain

deed restrictions and covenants. The Swaseys furthermore

understood that they were subject to the deed restrictions, and

at the time of purchase, had n o concerns regarding such

restrictions. One such restriction was that they could not have

a fence in the front yard of their property.

2. The Swaseys have a 22 - year - old, mentally retarded son,

named Brad. The Swasey’s son has the mental capacity of a t wo -

year - old, certain gait difficulties, and by stipulation of the

parties, qualifies under the applicable Fair Housing Act as a

handicapped individual in that he has physical and mental

impairments that substantially limit one or more major life

activities .

3. The Association is a not - for - profit corporation

organized in the mid 70's for the sole purpose of operating and

maintaining the Celina Hills Community. Every home owner in

Celina Hills is a member of the Association, and is subject to

the deed res trictions, and covenants that attach to each of the

properties within the Association. The Association is operated

by a board of directors, which consists of volunteer homeowners,

and is charged with the responsibility of enforcing the

covenants, restrict ions and other governing documents of the

Association. The Association, through its officers, was fully

aware of Brad's disability.

4. As established by testimony of two of Brad’s doctors,

Brad has the mental capacity of a young child approximately two

to three years old. Although in the short term his mental

capacity has stabilized and will probably not improve, his long -

term capacity will be accelerated in regard to dementia, making

him much harder to control or exhibit control. The supervisor

of Br ad’s sheltered workshop testified that, based on her

observations, she believes he has the mental capacity of less

than a two or three year old.

5. Brad has recently, within the last 3 years, grown

dramatically (from 5’3”/160 pounds to 6’2”/240 pounds) an d,

although he walks with a wide gait and has trouble walking on

uneven surfaces, has become significantly harder to control and

catch. His parents are in their fifties, and increasingly,

subject to the health deficits imposed by the process of aging.

6 . Brad’s doctors have advised the Swaseys to have Brad

spend time outside, breathe fresh air and get exercise. Brad’s

parents’ testimony and observation of Brad at the final hearing

establishes that he has the capacity of a two - year - old, but with

no fear and no understanding of dangers that confront him in

life. Further, he has only recently exhibited a predilection to

run towards the street and trucks and cars that attract his

attention. Brad is attracted to trucks and cars, especially

yellow school bu ses and blue mail trucks, and attempts to run

towards them when possible.

7. With regard to motorists going up the hill on the

street in front of the Swaseys and Brad’s home, visibility from

the road to the yard (and yard to the road) is poor and cars on

the street drive fast. The Swaseys’ home is located in the

middle of the block and not at an intersection.

8. The decision of the Swaseys to fence their front yard

results in the provision of the best setting for Brad to fully

enjoy the premises and gain needed fresh air and exercise. This

choice by the Swaseys also provides better observation for them

over Brad and more shade and opportunities for him to observe

surrounding life and activities. Such a fence would protect

Brad from running into the stre et and provide his parents an

opportunity to allow Brad some “independence” while still being

under their direct supervision when they work in the front yard.

The fence would also keep him from running away from them into

the street before they can catch him.

9. Such a front yard fence requires an accommodation from

the Association in order to build higher than the Association's

allowable three feet and also along the required county set - back

line for fences. The Swaseys' backyard has severe slopes,

co ntains the screened - in pool and is generally unusable as an

outside area for Brad because of his walking disability.

Nevertheless, his parents also plan to fence the side and back -

yards as well, which requires only the standard approval as to

style, mater ial and installation and no accommodation. Should

they fence just the back and side yard, however, a problem would

result in the form of entry problems, since the only direct

entry to the backyard is through the pool area. Such an entry

would redirect Br ad’s attention to areas of the home and yard

where the pool is located. Unfortunately, the backyard alone

would not allow Brad full enjoyment because of the nature of the

property (uneven with major slopes) and his walking disability.

Further, direct obs ervation of Brad would be difficult in some

areas, if not impossible.

10. On April 8, 2003, Brad's mother submitted a written

request to the Association for a fence on the front, side and

backyards. She also indicated that they would have the fence

remove d if they ever sold the house.

11. On May 1, 2003, the Association's Board of Directors

had a meeting at which Brad's father presented the request of he

and his wife. Simply put, their request was to erect a front

fence in a wooden picket style and an ele ctric wood - faced gate

for the front of the property (more in keeping with the

covenants and restrictions placed on the property). As affirmed

by Brad's father at the final hearing, he has no desire to

denigrate property values in the community due to his own home

investment. This summarizes the request of Brad's parents for

need of an accommodation from the Association.

12. The relevant restriction for which an accommodation

was requested is found on page 6 of the Celina Hill’s Property

Owners Handbook (J anuary 2002 edition) which provides:

No fence or wall shall be erected or

maintained in the front beyond the front

building setback line. No wire, chain link,

or cyclone is permitted on any lot. No

fence or hedge over three (3) feet in height

shall be pe rmitted along the front. No

fence or hedge shall be erected or

maintained which shall: i) unreasonably

restrict or obstruct sight lines at corners

and at intersections or driveways with

streets; ii) detract from the overall

appearance of the property (the use of rough

hewn woods or natural plantings as fencing

and screening materials is encouraged); or

iii) stand greater than four (4) feet in

height.

13. The Swaseys met all conditions, except for the deed

restriction, in their request for a front yard fen ce.

14. As established by witnesses for the Swaseys, inclusive

of the school bus driver who frequently drives a school bus by

the Swaseys' property, there are no safety concerns about the

proposed front yard fence obscuring motorists' view since it is

not going to be at an intersection.

15. On May 24, 2003, the Association denied the Swaseys'

request stating that, “We cannot authorize your request for a

fence of any style in your front yard, the Celina Hills

Homeowners manual makes clear that no fence ca n be installed

beyond the front setback line and that setback line is the front

of your house.”

16. In the same letter, the Association indicated it had

no problem with the Swaseys' pursuing fencing the side and

backyards since there was no deed restricti on and only a style,

materials and installation review.

17. On June 18, 2003, FCHR issued a determination that

there was reasonable cause to believe that the Association was

engaging in a discriminatory housing practice in violation of

Section 760.23, Flor ida Statutes.

18. FCHR’s efforts to conciliate the case failed as stated

in its Notice of Failure of Conciliation on July 30, 2003.

19. FCHR also placed into evidence its calculation of

damages, in addition to attorney’s fees and costs to be

determined upo n completion of the case, for “frustration of

agency purpose.” These damages were calculated at $1,035.40

consisting of $358.70 for 20.6 investigative hours; $600.00 for

legal review and advisor hours; $66.70 in direct travel costs;

and $10.00 in photogra phic development costs.

CONCLUSIONS OF LAW

20. The Division of Administrative hearings has

jurisdiction over the parties to, and the subject matter of

these proceedings. Sections 120.56 and 120.57(1), Florida

Statutes.

21. Pursuant to 42 U.S.C. 3604(f)(3) (B) and Section

760.23(9)(b), Florida Statutes, it is discriminatory to refuse a

request for reasonable accommodations in rules, policies and

practices, when such accommodations are needed to afford a

disabled person an equal opportunity to use and enjoy a

dwelling. 42 U.S.C. 3604(f)(3)(A) and § 760.23(9)(a), Fla.

Stat. It is also considered discriminatory to refuse to permit,

at the expense of the handicapped person, reasonable

modifications, if such modifications are necessary to afford

such person full enjoyment of the premises.

22. To establish discrimination, the Petitioner and

Complainant (the Swaseys in this case) must prove the following

elements: 1) The Complainant has a handicap or is a person

associated with a handicapped person; 2) The Respond ent (the

Association in this proceeding) knows of the handicap or should

be reasonably expected to know of the handicap; 3) Modification

of the existing premises or accommodation of the handicap is

necessary to afford the Complainant an equal opportunity t o use

and enjoy a dwelling; and 4) The Respondent refused permission

for such modifications, or refused to make such accommodation.

HUD v. Ocean Sands, Inc ., Fair Housing - Fair Lending Reporter

¶ 25,055 (HUDALJ, September 3, 1993).

23. Once the Complain ant has demonstrated the above

elements, the Respondent has the burden of proving the requested

modification/accommodation is unreasonable. See United States

v. Freer, 864 F. Supp. 324 at 326 (W.D.N.Y. 1994); Hovsons, Inc.

v. Township of Brick , 89 F.3d 10 96 at 1103 (3rd Cir. 1996);

United States v. California Mobile Home Park Management Co . , 29

F.3d 1413 at 1421 (9th Cir. 1994). To establish that the

accommodation sought by the Swaseys was not reasonable, the

Association would be required to prove that it could not have

allowed the Swaseys to build a fence in their front yard,

“without imposing undue financial and administrative burdens,”

Southeastern Community College v. Davis , 442 U.S. 397 at 410,

412 (1979) or require “changes, adjustments, or modific ations

to existing programs that would be substantial, or that would

constitute fundamental alterations in the nature of the

program,” Alexander v. Choate , 469 U.S. 287 at 301 (1985).

24. There is no disputed fact that the Swaseys’ son, Brad,

is handicappe d within the meaning of the Fair Housing Act; that

his mother can act on his behalf; and that the Respondent was

aware of his disability.

25. The Swaseys through their Petitioner, FCHR, have

demonstrated the need to build a front yard fence in order to

pro vide for Brad’s safety and an opportunity for him to use and

enjoy his dwelling. This modification is necessary and requires

an accommodation from the Association. Brad is not aware of

dangers imposed by the street in front; therefore, a fenced area

is n eeded for his safety. Because of his walking problems and

wide gait, Brad has difficulty ambulating on uneven surfaces

which, among other reasons, makes the backyard not conducive to

meeting his need for fresh air and an outdoor environment in

order to fu lly enjoy his premises.

26. The Association argues that no accommodation is

necessary and that the Swaseys can fence the back and side yards

to provide for Brad’s well - being and enjoyment of his premises

requiring only the approval of style, materials and

installation.

27. The Association mistakenly relies on Loren v. Sasser ,

309 F.3d 1296 (11th Cir. 2002) to argue that the fact that the

Complainant could build a fence on the side and backyards and

that is all that is necessary to support the Association's

denial of the requested accommodation to build a fence in the

front yard. In Sasser , Id ., the Appellant requested permission

to build a front yard fence on a corner lot and represented, at

1302, “that the front yard provides a more scenic space for her

tim e outside than other parts of the lot.” The Complainant

failed to show that the front yard fence was necessary. The

Respondent in the case also pointed out, at 1299, that there

were also safety concerns because the fence might inhibit

visibility of drive rs at that intersection. The record in that

case and the one in this case are dramatically different. Not

only are there no safety factors here as to the front yard

fence, but evidence was presented to show that fencing only the

side and backyards would not allow Brad Swasey full enjoyment of

the premises. There is substantial evidence to show that the

front yard fence is necessary to protect and ensure the safety

of Brad Swasey in order to allow him “full enjoyment of the

premises” and to afford him “eq ual opportunity to use and enjoy

a dwelling. . .” 42 U.S.C. § 3604 (f)(3) (A)&(B); Fla. Stat.

§ 760.23(9)(a)&(b) (identical statutory wording).

28. The Association has denied the requested modification

and accommodation based solely on their covenant agai nst a front

yard fence in front of the set - back line and over three feet

high. See Dornbach v. Holley , 84 So. 2d 211 at 214 (Fla. 2nd

DCA, 2002) where a refusal to waive deed restrictions to allow a

group home for four to six developmentally disabled adul ts

constituted discrimination.

29. FCHR on behalf of the Petitioner/Complainant in this

case has met its burden of demonstrating that its requested

modification/accommodation case was both necessary and

reasonable. Further, the evidence establishes that the

Association has acted in an unreasonable fashion.

30. The Association/Respondent has failed to show any

basis for finding that the requested modification/accommodation

by the Complainant for a fence in the front yard is

unreasonable. The Swaseys have said they do not want to

denigrate property values and will remove the fence should they

sell the house. In reality, the presence of Brad in the house

is the only justification for the fence. Eventually, as his

parents age further or pass away, institut ionalization of Brad

will have to occur.

31. FCHR has also requested damages for “frustration of

agency mission,” in addition to attorney’s fees and direct costs

associated with this case. While current case law recognizes

that a Fair Housing Agency ha s standing to recover certain types

of damages, the Association's conduct has not been so egregious

in this matter as to require resort to such damages. Under the

facts of this case, such an action would cast a chilling effect

on the rights of individuals to exercise their right to due

process. Accordingly, the request of FCHR for damages is

denied.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of

Law, it is

RECOMMENDED:

That the Florida Commission on Human Relations enter an

order finding Respondent guilty of a discriminatory housing

practice against the Complainant and her son in violation of

Section 760.23 (7) and (9), Florida Statutes; prohibiting

further unlawful housing practices by Respondent; and allowing

the building of an esthetically acceptable fence in the front

yard as necessary to provide containment and safety for Brad

Swasey to use and enjoy his dwelling, with the proviso that such

fence be removed when Brad is no longer a regular resident in

the Swasey home.

DO NE AND ENTERED this 1st day of December, 2003, in

Tallahassee, Leon County, Florida.

S

DON W. DAVIS

Administrative Law Judge

Division of Administrative Hearings

The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Flo rida 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 1st day of December, 2003.

COPIES FURNISHED :

Barry A. Postman, Esquire

Cole, Scott & K issane, P.A.

Pacific National Bank Building

1390 Brickell Avenue

Miami, Florida 33131

Sheila Swasey

2125 East Celina Street

Inverness, Florida 34453

William J. Tait, Jr., Esquire

Florida Commission on Human Relations

2009 Apalachee Parkway, Suite 100

Ta llahassee, Florida 32301 - 4830

Denise Crawford, Agency Clerk

Florida Commission on Human Relations

2009 Apalachee Parkway, Suite 100

Tallahassee, Florida 32301

Cecil Howard, General Counsel

Florida Commission on Human Relations

2009 Apalachee Parkway, S uite 100

Tallahassee, Florida 32301

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 should be filed with the agency that

will issue the final order in this case.