05-003364 Florida Commission On Human Relations, On Behalf Of Diana Arguinzoni Del Toro vs. Waterford Crossing Community Association, Inc. Status: Closed Recommended Order on Friday, January 13, 2006.

Summary: Petitioner failed to prove housing discrimination because it did not prove that the officer of the homeowners` association, whose sexual advance had been rebuffed, was responsible for the improper towing of the resident`s car two years after the event.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

FLORIDA COMMISSION ON HUMAN )

RELATIONS, ON BEHALF OF )

DIANA ARGUINZONI DEL TORO, )

)

Petitioner, )

)

vs. ) Case No. 05 - 3364

)

WATERFORD CROSSING COMMUNITY )

ASSOCIATION, INC. , )

)

Respondent. )

______________________________)

RECOMMENDED ORDER

Robert E. Meale, Administrative Law Judge of the Division

of Administrative Hearings, conducted the final hearing in

Fort Lauderdale, Florida, on December 5, 2005.

APPEARANCE S

For Petitioner: Vicki Denise Johnson

Florida Commission on Human Relations

2009 Apalachee Parkway, Suite 100

Tallahassee, Florida 32301

For Respondent: Thomas F. Luken

1290 East Oakland Park Boulevard

Suite 200

Fort Lauderdale, Florida 33334

STATEMENT OF THE ISSUE

The issue is whether Respondent has committed unlawful

housing discrimination against Petitioner.

PRELI MINARY STATEMENT

By Petition for Relief dated September 13, 2005, Petitioner

alleged that Respondent committed an unlawful housing practice

against Petitioner. The petition alleges that Respondent is a

corporation consisting of the owners of 81 townhomes in the

development known as Waterford Crossing in Broward County,

Florida. The petition alleges that each resident receives one

resident parking sticker and one guest parking sticker and that

cars bearing either sticker may lawfully be parked on the

prop erty, but cars bearing neither sticker may be towed. The

petition alleges that, from time to time, based on residents'

complaints, Respondent orders the towing of illegally parked

cars, and William Shaw, one of the members of Respondent's Board

of Directo rs, has personally directed the tow truck operator to

remove specific cars.

The petition alleges that Diana Arguinzoni del Toro is a

single female, who has owned and resided in a townhouse at

Waterford Crossing since 1997. The petition alleges that

Mr. S haw made a sexual advance to Ms. del Toro in the summer of

2002, but she rebuffed him. The petition alleges that, on

March 25, 2004, Sal's Towing towed Ms. del Toro's car from a

guest - parking area, ostensibly because it lacked a parking

sticker. The peti tion alleges that Mr. Shaw selectively

enforced the parking regulations against Ms. del Toro because

she had rebuffed his sexual advance.

On March 16, 2005, Petitioner issued a Notice of

Determination: Cause and Issuance of an Administrative Charge.

At the hearing, Petitioner called seven witnesses and

offered into evidence 19 exhibits: Petitioner Exhibits 1 - 19.

Respondent called two witnesses and offered into evidence eight

exhibits: Respondent Exhibits 1 - 6 and 15 - 16. All exhibits were

admitted exce pt Petitioner Exhibit 6, which was proffered.

The parties did not order a transcript. Each party filed a

proposed recommended order by December 15, 2005.

FINDINGS OF FACT

1. Waterford Crossing is a development comprising 80

townhomes in Broward County, Florida. Respondent is a

homeowners' association consisting of the owners of the 80

townhomes. Respondent is governed by the homeowners and their

elected Board of Directors and the officers appointed by the

Board. At all relevant times, William Shaw has been the Vice

President of Respondent.

2. Diana Arguinzoni del Toro is a female who purchased a

townhome at Waterford Crossing in 1997 and has lived there

continuously since that time. At all relevant times, Mr. Shaw

resided in a townhome across the str eet from the townhome of

Ms. del Toro.

3. Parking is limited at Waterford Crossing. Illegally

parked cars, which may consist of vehicles parked outside of

marked parking areas or vehicles in marked parking areas, but

without the appropriate permit, pose a serious problem. At

times, emergency vehicles have been unable to access parts of

Waterford Crossing due to illegally parked vehicles.

4. From time to time, Respondent hires a towing company to

tow illegally parked vehicles from Waterford Crossing.

Im mediately after so - called "towing nights," residents and

guests tend to comply with applicable parking rules, but, over

time, compliance lessens. When the number of parking complaints

rises sufficiently, Respondent hires a towing company to conduct

anothe r "towing night."

5. It is unnecessary to consider in detail the parking

rules of Waterford Crossing. On the evening of March 24, 2004,

Ms. del Toro's car was legally parked, as the parking rules have

been applied, in a guest space near her townhome. Th is happened

to be a "towing night," although this fact was unknown to

Ms. del Toro. As is its practice, Respondent's Board of

Directors advised an employee of its property manager to conduct

a towing night, and the property manager requested the towing

co mpany to tow illegally parked vehicles from Waterford Crossing

that night.

6. The diligence and care exercised by the towing company

in conducting towing nights left something to be desired.

Routinely, the company would tow fewer than all of the vehicles

illegally parked at Waterford Crossing, as it proceeded to other

sites to serve the towing needs of more profitable customers.

From time to time, the company would tow a legally parked

vehicle, such as a vehicle parked in a marked space and bearing

a sui table parking permit.

7. On the evening in question, towing company's lack of

diligence and care combined to result in the towing of Ms. del

Toro's car, despite the fact that it bore a suitable parking

permit and was legally parked, and in the failure t o tow other

vehicles that were illegally parked. The removal of Ms. del

Toro's car resulted from the failure of the tow truck operator

to notice her parking sticker. The failure to remove illegally

parked vehicles resulted from the operator's decision to begin

and end towing night with the removal of Ms. del Toro's car.

8. Ms. del Toro attributed the improper towing of her car

to Mr. Shaw because, in the summer of 2002, he had made an

unwelcome sexual advance to her while in her home. At that

time, whil e they were alone, Mr. Shaw twice pulled the front of

her blouse, in the vicinity of her breasts, in an apparent

attempt to embrace or kiss her. Ms. del Toro firmly rebuffed

him, and she and Mr. Shaw, who had previously maintained a

neighborly relationshi p, no longer spoke to each other.

9. Ms. del Toro subsequently perceived another instance of

discriminatory treatment in the maintenance of her landscaping,

but the evidence provides no basis to attribute this to

Mr. Shaw. The evidence does not link Mr. Shaw to any

shortcomings in the maintenance of vegetation on Ms. del Toro's

lot, as compared to the maintenance of vegetation on the lots of

other owners.

10. Similarly, there is no more basis to attribute the

towing incident to Mr. Shaw than to the inc ompetence of the tow

truck operator, which was later fired by the property manager

due to its inability to tow sufficient vehicles on "towing

nights." Mr. Shaw was at work at Miami International Airport on

the night of the towing incident. Additionally, the passing of

nearly two years between the unwelcome sexual advance and the

claimed retribution -- without earlier proved instances of

retribution by Mr. Shaw -- militates strongly against the

interpretation of the towing incident offered by Ms. del Toro

and shared by Petitioner.

11. However, Mr. Shaw's longtime status as an officer of

Respondent, his unwelcome sexual advance, and his personal

involvement in at least one previous "towing night," coupled

with the incompetence of the towing company in improperl y

removing Ms. del Toro's car, constitute a reasonable basis in

law and fact supporting the theory of Ms. del Toro and

Petitioner that Mr. Shaw had discriminated against Ms. del Toro,

Although their theory proved unsupported by the evidence,

Petitioner's c ommencement of this proceeding was substantially

justified, so as to preclude the award of attorney's fees

against Petitioner.

CONCLUSIONS OF LAW

12. The Division of Administrative Hearings has

jurisdiction over the subject matter. §§ 120.569, 120.57(1 ),

and 760.35(3)(a), Fla. Stat.

13. Section 760.23(2), Florida Statutes, provides:

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 therewith, because

of race, color, national origin, sex,

handicap, familial status, or religion.

14. Section 760.37, Florida Statutes, provides:

It is unlawful to coerce, intimidate,

threaten, or interfere with any person in

the exercise of, o r on account of her or his

having exercised, or on account of her or

his having aided or encouraged any other

person in the exercise of any right granted

under ss. 760.20 - 760.37. This section may

be enforced by appropriate administrative or

civil action.

15. Petitioner has proved that Mr. Shaw made an unwelcome

sexual advance upon Ms. del Toro, but has failed to prove the

discriminatory act that it alleged ensued from his rejection by

Ms. del Toro. Ms. del Toro's car should not have been towed,

but he r car was improperly towed due to the incompetence of the

towing company, not any act of Mr. Shaw.

16. Respondent is not entitled to an award of attorney's

fees and costs, pursuant to Section 57.111(4)(a), Florida

Statutes, because the actions of Petition er were substantially

justified due to the facts set forth above. It is thus

unnecessary to consider whether special circumstances also

preclude the award of fees and costs under Section 57.111,

Florida Statutes.

RECOMMENDATION

It is

RECOMMENDED that th e Florida Commission on Human Relations

enter a final order dismissing the Petition for Relief.

DONE AND ENTERED this 13th day of January, 2006, in

Tallahassee, Leon County, Florida.

S

_______________ ____________________

ROBERT E. MEALE

Administrative Law Judge

Division of Administrative Hearings

The DeSoto Building

123 0 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 13th day of January, 2006.

COPIES FURNISHED:

Cecil Howard, General Counsel

Florida Commission on Human Relations

2009 Apalachee Parkway, Suite 100

Tallahassee, Florida 32301

Denise Crawford, Agency Clerk

Florida Commission on Human Relations

2009 Apalachee Parkway, Suite 100

Tallahassee, Florida 32301

Vicki Denise Johnson

Attorney for Petitioner

Florida Commission on Human Relations

2009 Apalachee Parkway, Suite 100

Tallahassee, Florida 32301

Thomas F. Luken

Attorney and Counselor at Law

1290 East Oakland Park Boulevard

Suite 200

Fort Lauderdale, Florida 33334

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

All parties hav e 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.