04-003873 William Kleinschmidt vs. Three Horizons North Condominiums, Inc. Status: Closed Recommended Order on Wednesday, May 25, 2005.

Summary: Respondent is not required to waive, as reasonable accommodation, its no pets policy for Petitioner, who has two pet cats .

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

WILLIAM KLEINSCHMIDT, )

)

Petitioner, )

)

vs. ) Case No. 04 - 3873

)

THREE HORIZONS NORTH )

CONDOMINIUMS, INC., )

)

Respondent. )

)

RECOMMENDED ORDER

Pu rsuant to notice, a final hearing was conducted on

March 31, 2005, in Miami, Florida, before Claude B. Arrington, a

duly - designated Administrative Law Judge of the Division of

Administrative Hearings (DOAH).

APPEARANCES

For Petitioner: William Klei nschmidt, pro se

1470 Northeast 125th Terrace

Apartment 206

North Miami, Florida 33161

For Respondent: Krista A. Fowler, Esquire

Cole, Scott & Kissane, P.A.

1390 Brickell Avenue, Third Floor

Miami, Florida 33131

STATEMENT OF THE ISSUE S

Whether Petitioner is handicapped within the meaning of the

Florida Fair Housing Act (Sections 760.20 – 760.37, Florida

Statutes) or the Federal Fair Housing Act (42 USCA § 3601 et

seq .) . 1 Whether Respondent discriminated against Petitioner in

violation of either Act by refusing to waive its no pets policy,

which would require Petitioner to remove his “emotional support

animals” (two c ats) from his condominium unit. Whether

Respondent retaliated against Petitioner for his refusal to

remove his cats from his condominium unit.

PRELIMINARY STATEMENT

On April 15, 2004, Petitioner filed a complaint of housing

discrimination against Resp ondent with the United States

Department of Housing and Urban Development (HUD). The HUD

complaint alleged that Petitioner is handicapped within the

meaning of the Florida Act and the Federal Act, that his two

cats are “emotional support animals” that are necessary to

ameliorate his handicapping conditions, and that Respondent

failed to make a reasonable accommodation of his handicapping

conditions by refusing to waive its no pets policy. HUD

referred Petitioner’s complaint to the Florida Commission on

Hu man Relations (FCHR), which assigned staff to investigate and

evaluate Petitioner’s complaint. On September 28, 2004, FCHR

issued a document styled “Determination Of No Reasonable Cause”

which concluded that reasonable cause does not exist to believe

that a discriminatory housing practice had occurred.

Petitioner thereafter filed a “Petition for Relief” with

FCHR that was subsequently referred to DOAH and underpins this

proceeding. In addition to the charge of discrimination

premised on Respondent’s all eged failure to reasona bly

accommodate his handicapped conditions, Petitioner charged that

Respondent retaliated against him on two occasions because he

refused to remove his two cats from his unit as ordered by

Respondent.

At the final hearing, Petitioner presented the testimony of

Ruth Pearson, who is an officer and director of the corporate

Respondent. In addition, Petitioner offered 28 sequentially

numbered exhibits, but only the following numbered Petitioner

Exhibits were admitted into evidence: 1, 6 , 8, 9, 11, 12, 14,

17, 18, 19, 21, 25, 26, 27, and 28. Petitioner’s Exhibit 26, a

composite, is the deposition of Petitioner’s physician.

Petitioner’s Exhibit 27 is the deposition of Petitioner.

Respondent presented the testimony of Petitioner’s neighb or and

offered two exhibits, both of which were admitted into evidence.

A transcript of the proceedings was filed April 20, 2005.

The parties filed Proposed Recommended Orders which have been

duly - considered by the undersigned in the preparation of this

Recommended Order.

FINDINGS OF FACT

1. At all times relevant to this proceeding, Petitioner

owned and resided in Unit 206 of the condominium building

managed by Respondent. Petitioner is a male, born February 5,

1951.

2. Respondent is the Board of Dir ectors of the condominium

building in which Petitioner resides. At all times relevant to

this proceeding, Respondent had the following written policy

(the no pets policy), which it routinely enforced 2 :

12. No Unit [sic] owner or lessee shall

acquire a pet to be maintained in his or her

unit, or shall such persons already

possessing pets replace them when such pets

die or are otherwise disposed of. No unit

owner or lessee shall keep visiting pets in

their unit.

3. Petitioner bought Unit 206 in Janu ary 1999 and has

since then lived alone in that unit with two cats. These cats

have received no special training and have no special

attributes. These cats were born to a cat that Petitioner and

his late mother kept as a pet. Since his mother’s death in

1996, Petitioner has viewed these cats as his surrogate family.

4. Respondent and Petitioner have engaged in a dispute

regarding Petitioner’s alleged violation of its no pets policy

that began in 1999 and is on - going. This dispute has involved

multi ple forums, with the current proceeding being the latest

development.

5. Respondent has received complaints from other residents

of the condominium building that an unpleasant odor comes from

Petitioner’s unit and that fleas have been found in the vici nity

of his unit.

6. On December 23, 2003, Dr. Seth Gottlieb, Petitioner’s

physician, wrote the following : “To: Whom It May Concern:”

William Kleinschmidt is a patient of mine.

Mr. Kleinschmidt has a long - time severe

physical disability and it is m edically

necessary that he his [sic] emotional

support companion animals – his cats, to

control the frequency and severity of his

physical disability.

7. By letter to Respondent’s president dated January 10,

2004, Petitioner asserted the following:

Wh ile I realize that the Board and I

disagree as to the interpretation of the

condominium rules regarding pets, as my

interpretation is based on the plain reading

of the language within the common meaning of

the said words, is that if a potential unit

owner already has pets, they are acceptable

and that no replacement pets will be brought

in after the purchase.

I may add that as a pre - condition to

purchase of my unit, the board DID [sic]

agree to my companion animals for my

physical disability – the witness es are both

the buyer and the seller real estate brokers

and others.

I am requesting a special waiver of the

pet rules as the board currently views them

be made in my situation due to my

disability.

Please find attached a letter from my

physician Set h Gottlieb, M.D., certifying

that my companion animals are “medically

necessary” for my disability.

Please advise me in writing whether or not

we have a special waiver as a reasonable

accommodation.

8. Although Respondent had been trying to force Pet itioner

to remove his cats from his unit since 1999, the letter of

January 10, 2004, was the first time that Petitioner asserted

that he was disabled and it was the first time he requested a

waiver of the no pets policy to accommodate his disability.

Prio r to that letter, Respondent did not know and had no reason

to know that Petitioner believed himself to be disabled.

9. On April 19, 2004, D r. Gottlieb wrote the following:

“To: Whom It May Concern:”

William Kleinschmidt is my patient, who

has a sign ificant emotional disability, as

well as a long history of significant

asthma. His asthma unfortunately has not

been currently under good control. William

clearly has a significant emotional

component to his asthma, that is, his asthma

is easily exacerba ted by emotional triggers.

William has companion animals which

greatly help his emotional status. If he is

not able to keep these companion animals

there is a great likelihood that the

emotional distress this will bring will

significantly worsen his ast hma. Therefore,

it is medically necessary for William to

have these emotional support animals to

control the severity and frequency of his

asthmatic disability.

10. Dr. Gottlieb has no special training in psychiatry or

psychology, and he did not treat or diagnose Petitioner’s

anxiety. Dr. Gottlieb recommended to Petitioner that Petitioner

seek professional help from a clinical psychologist or a

psychiatrist. Petitioner refused to follow that recommendation.

11. Petitioner has multiple allergens, one of which is cat

dander. Dr. Gottlieb recommended to Petitioner that Petitioner

seek professional help from an allergist. Petitioner refused to

follow that recommendation.

12. Dr. Gottlieb’s letters of December 23, 2003, and

April 19, 2004, were wri tten at Petitioner’s request and were

based on statements made to him by Petitioner and on his

observations of Petitioner. Dr. Gottlieb testified that he had

never known Petitioner to be without his cats and he had no way

of knowing what the consequences would be if Petitioner was

unable to keep his cats. Dr. Gottlieb’s testimony does not

establish that it is medically necessary for Respondent to waive

its no pets policy as a reasonable accommodation of Petitioner’s

handicapping conditions.

13. Petitio ner is a person with a handicap within the

meaning of the Acts. 3 At all times relevant to this proceeding,

Petitioner has suffered from persistent asthma and emotional

problems. There was no expert testimony as to the nature and

extent of Petitioner’s em otional problems, but it is clear from

the evidence that his emotional problems are debilitating.

Petitioner is receiving no treatment for his emotional problems.

Petitioner is receiving treatment from Dr. Gottlieb for his

asthma. His asthma responds to m edication prescribed by

Dr. Gottlieb, but his asthma is not controlled by that

medication and he suffers periodic asthma attacks of

undetermined frequency and severity.

14. Petitioner failed to establish that his two untrained

cats are necessary for h im to have equal opportunity to use and

enjoy his dwelling within the meaning of either of the Acts.

Petitioner’s cats are pets and while they undoubtedly provide

emotional support as any pet should, they are not service

animals 4 and they have no special training that would enable them

to assist Petitioner to overcome limitations imposed by his

handicaps. Whether Petitioner’s cats help him avoid anxiety

attacks, which could, in turn, trigger an asthma attack, is

speculative.

15. Petitioner asserts that t wo incidents prove that

Respondent harassed him and retaliated against him because of

his refusal to remove his cats from his unit. The first

incident occurred in 2001 while Respondent was attempting to

serve Petitioner with a subpoena during an arbitrati on

proceeding. Because Respondent had difficulty serving a

subpoena on Petitioner, Respondent had the arbitrator issue an

order authorizing Respondent to have a locksmith open the door

to Petitioner’s unit so the subpoena could be left in the unit.

On Se ptember 21, 2001, Respondent hired a locksmith who unlocked

the front door to Petitioner’s unit by drilling the lock on the

door. A representative of Respondent thereafter entered

Petitioner’s unit and left the subpoena for Petitioner inside

the unit. An armed police officer was present when the door was

opened and when Respondent’s representative entered the unit,

left the subpoena, and exited the unit. These events occurred

before Respondent had any reason to believe that Petitioner

considered himself disabled or that he considered his cats to be

emotional support animals. Respondent established that it was

acting on advice of counsel and pursuant to the arbitrator’s

order on September 21, 2001. Petitioner failed to establish

that the events of Septem ber 21, 2001, were done to harass him

or retaliate against him for asserting his rights under either

Act.

16. The second incident occurred in October 2003, when

Respondent failed to give Petitioner proper credit for a

maintenance assessment Petitioner h ad made. As a result of the

error, Respondent wrote Petitioner a dun letter which reminded

Petitioner that the failure to pay maintenance assessments could

result in the imposition of a lien against his unit. Respondent

failed to properly credit Petition er’s payment as the result of

a bookkeeping error. Respondent corrected the error as soon as

Respondent’s bookkeeper discovered it. Soon thereafter,

Respondent provided a written explanation of the error to

Petitioner and apologized to him for the error. Petitioner

failed to establish that the events of October 23, 2003, were

done to harass him or retaliate against him for asserting his

rights under either Act.

CONCLUSIONS OF LAW

17. The Division of Administrative Hearings has

jurisdiction over the s ubject matter and the parties to this

case pursuant to Sections 120.569 and 120.57(1), Florida

Statutes.

18. Petitioner has the burden of proving that Respondent

violated either Act by failing to waive its no pets policy as a

reasonable accommodation of h is handicap. See Florida

Department of Transportation v. J. W. C. Company, Inc. , 396 So.

2d 778 (Fla. 1st DCA 1981). Petitioner failed to meet that

burden.

19. 42 U.S.C.A. Section 3602(h) provides, in pertinent

part, the following definition of the term “handicap” for

purposes of the Federal Act:

(h) “Handicap” means, with respect to a

person --

(1) a physical or mental impairment which

substantially limits one or more of such

person’s major life activities,

(2) a record of having such an

impair ment, or

(3) being regarded as having such an

impairment ...

20. The Florida Act has a similar definition. Section

760.22(7)(a), Florida Statutes, provides as follows:

(7) “Handicap” means:

(a) A person [who] has a physical or

mental impairme nt which substantially limits

one or more major life activities, or he or

she has a record of having, or is regarded

as having, such physical or mental

impairment . . .

21. 42 U.S.C.A. Section 3604(f)(3)(B), provides that the

following constitutes housin g discrimination within the meaning

of the Federal Act:

(f)(3)(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. . . .

22. The Florida Act has a similar provision. Section

760.23(9)(b), Florida Statutes, provides as follows:

(9(b) A refusal to make reasonable

accommodations in rules, policies,

practices, or services, when such

accommodations may b e necessary to afford

such person equal opportunity to use and

enjoy a dwelling.

23. To prevail in this proceeding under either Act,

Petitioner would have to prove that he is handicapped within the

meaning of that Act, that his requested accommodation is

necessary to afford him the equal opportunity to use and enjoy

his unit, and that his requested accommodation is reasonable.

24. Petitioner proved that he is handicapped within the

meaning of both Acts.

25. Petitioner failed to prove that his request ed

accommodation is necessary to afford him the equal opportunity

to use and enjoy his unit within the meaning of either Act.

There was no direct linkage between being able to keep his cats

and being able to use and enjoy his unit. Any such linkage was,

at best, speculative. Compare Bryant Woods Inn, Inc. v. Howard

County, Md. , 124 F. 3d 597 (4th Cir. 1997). Because Petitioner

refused to seek evaluation and treatment from a psychologist or

a psychiatrist, there was no expert testimony as to what would

oc cur if Petitioner had to remove his cats from his unit. 5

26. Because Petitioner failed to prove that his requested

accommodation is necessary, he was unable to prove that the

requested accommodation was reasonable under either Act.

27. Petitioner’s cl aims of retaliation are without merit.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of

Law, it is RECOMMENDED that the FCHR enter a final order

dismissing Petitioner’s Petition for Relief.

DONE AND ENTERED this 25 th day of, May 2005, in

Tallahassee, Leon County, Florida.

S

___________________________________

CLAUDE B. ARRINGTON

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 25th day of May , 2005.

ENDNOTES

1 / All references to Florida Statutes are to Florida Statutes

(2004). All references t o U.S.C.A. are to the version published

as of the date of this Recommended Order. For ease of

reference, the Florida Fair Housing Act will be referred to as

the Florida Act and the Federal Fair Housing Act will be

referred to as the Federal Act. Collecti vely, they will be

referred to as the Acts.

2 / At the formal hearing, Petitioner argued that Respondent

waived its no pets policy prior to his closing on his unit. In

support of his waiver argument, Petitioner introduced a tape of

a message left on his telephone answering machine by his real

estate salesperson. The message was, at best, misleading. The

greater weight of the credible evidence established that

Petitioner knew of Respondent’s no pets policy prior to the

closing on his unit, but he did no t tell Respondent that he had

two cats. Respondent did not know about Petitioner’s cats prior

to closing, and it did not waive its no pets policy.

Petitioner’s waiver argument is rejected as being contrary to

the greater weight of the credible evidence. In addition to his

waiver argument, Petitioner argued that the no pets policy was

not enforceable against him based on his construction of the

policy. Petitioner’s arguments based on his construction of

Respondent’s no pets policy are rejected as being w ithout merit.

3 / In reaching this finding, the undersigned has considered that

Petitioner has been able to perform the activities of daily

living without assistance when he was not in the throes of an

asthma attack, but that his ability to do so has be en impaired,

primarily by his untreated emotional disorder. The undersigned

has also considered that he has been unable to work for the past

25 years and he has been accepted as being disabled by both the

Social Security Administration and Medicaid.

4 / The term “service animal” is not defined by the Federal Act

or its accompanying regulations. As used herein, the term is

meant to include an animal individually trained to do work or

perform tasks for the benefit of an individual with a

disability. Thi s definition, taken from Section 2 of the

Americans with Disabilities Act, 42 U.S.C.A. Section 1210, et

seq ., was relied upon by the court in Prindable v. Assoc of Apt.

Owners of 2987 Kalakaua, 304 F. Supp. 2d 1245 (D. Hawaii 2003),

a case with facts analo gous to the pending matter.

5 / For the same reason, there was no expert testimony as to

whether there are better ways for Petitioner to control his

anxiety than relying on his two cats.

COPIES FURNISHED:

Denise Crawford, Agency Clerk

Florida Commiss ion on Human Relations

2009 Apalachee Parkway, Suite 100

Tallahassee, Florida 32301

Krista A. Fowler, Esquire

Cole, Scott & Kissane, P.A.

1390 Brickell Avenue

Miami, Florida 33131

William Kleinschmidt

1470 Northeast 125th Terrace, Apartment 206

North M iami, Florida 33161

Cecil Howard, General Counsel

Florida Commission on Human Relations

2009 Apalachee Parkway, Suite 100

Tallahassee, Florida 32301

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

All parties have the right to submit written exceptions within

1 5 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.