06-002251 William Kleinschmidt vs. Three Horizons North Condominium, Inc. Status: Closed Recommended Order on Tuesday, November 21, 2006.

Summary: Petitioner failed to prove that Respondent had unlawfully discriminated against him on the basis of national origin, religion, or handicap in violation of the Florida Fair Housing Act.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

WILLIAM KLEINSCHMIDT, ) )

)

Petitioner, )

) Case No. 06-2251

vs. )

)

THREE HORIZONS NORTH )

CONDOMINIUM, INC., )

)

Respondent. )

RECOMMENDED ORDER

This case came before Administrative Law Judge John G.

Van Laningham for final hearing by video teleconference on

October 9, 2006, at sites in Tallahassee and Miami, Florida.

APPEARANCES

For Petitioner: William Kleinschmidt, pro se

1470 Northeast 125th Terrace, Apt. 206

North Miami, Florida 33161

For Respondent: Krista A. Fowler, Esquire

Cole, Scott & Kissane, P.A.

1390 Brickell Avenue

Miami, Florida 33131

STATEMENT OF THE ISSUES

The issues in this case are, one, whether Respondent

unlawfully discriminated against Petitioner on the basis of his

national origin, religion, or handicap in violation of the

Florida Fair Housing Act; and, two, whether Respondent subjected

Petitioner to acts of intimidation, coercion, or retaliation as

a result of Petitioner's exercise, or attempted exercise, of a

protected housing right.

PRELIMINARY STATEMENT

In a Housing Discrimination Complaint filed with the U.S.

Department of Housing and Urban Development on December 6, 2005,

and subsequently investigated by the Florida Commission on Human

Relations ("FCHR"), Petitioner William Kleinschmidt alleged that

Respondent Three Horizons North Condominium, Inc., had

unlawfully used coercion, intimidation, or other means to

interfere with his exercise of protected housing rights. The

FCHR investigated Petitioner's claim and, on February 14, 2006,

issued a notice setting forth its determination that reasonable

cause did not exist to believe that a discriminatory housing

practice had occurred. Thereafter, Petitioner filed a Petition

for Relief, which the FCHR transmitted to the Division of

Administrative Hearings on July 6, 2006.

At the final hearing on October 9, 2006, Petitioner called

four witnesses: Lisa Ann Southerland, David H. Rogel, Jacquelin

Cue, and Ruth H. Pearson. Petitioner moved three exhibits,

identified as Petitioner's Exhibits 1 through 3, into evidence.

Respondent did not present a case.

The "two-volume" final hearing transcript was filed on

October 19, 2006. 1 Thereafter, Respondent timely filed a

proposed recommended order, which has been considered.

Petitioner filed a notice declaring his "inability" to submit a

proposed recommended order.

Unless otherwise indicated, citations to the Florida

Statutes refer to the 2005 Florida Statutes.

FINDINGS OF FACT

1. Petitioner William Kleinschmidt ("Kleinschmidt") owns a

unit in the Three Horizons North Condominium. He purchased his

condominium in 1999 and has resided there continuously since

that time.

2. Respondent Three Horizons North Condominiums, Inc.

("Three Horizons"), manages the property of which Kleinschmidt's

condominium is a part.

3. Kleinschmidt and Three Horizons have been involved in a

long-standing feud stemming from Kleinschmidt's possession of

cats in violation of the condominium's "no pets" policy. Three

Horizons has tried since 1999 to compel Kleinschmidt's

compliance with the "no pets" policy. The dispute over

Kleinschmidt's cats came to a head last year, when a formal

administrative hearing was held on Kleinschmidt's first housing

discrimination complaint against Respondent. See Kleinschmidt

v. Three Horizons Condominium, Inc. , 2005 Fla. Div. Adm. Hear.

LEXIS 883, DOAH Case No. 04-3873 (May 25, 2005), adopted in

toto , FCHR Order No. 05-097 (Fla.Com'n Hum.Rel. Aug. 23,

2005)(Kleinschmidt I ). Among other allegations, Petitioner

charged in Kleinschmidt I that Three Horizons had unlawfully

refused to waive the "no pets" policy to permit his possession

of "service animals" (i.e. cats) as an accommodation of his

emotional handicap. Kleinschmidt lost that case.

4. Kleinschmidt presently alleges that Three Horizons has

discriminated against him on the basis of handicap, national

origin, and religion. The undersigned has had some difficulty

making sense of Kleinschmidt's allegations. As far as the

undersigned can tell, Kleinschmidt alleges that: (1) members of

the condominium association's board of directors (and especially

the board's treasurer, Ruth Pearson, whose German ancestry

Kleinschmidt assumes makes her a Nazi sympathizer hostile to

Jewish persons such as himself) have made disparaging comments

about him; (2) when he applied to purchase his condominium back

in 1999, Three Horizons charged him a $100 screening fee, which

should have been only $75; (3) Three Horizon's agents illegally

broke into his unit on September 21, 2000, and again on

September 21, 2001, stealing personal property each time; (4)

before he purchased his unit, Three Horizons agreed to waive the

"no pets" policy, which agreement Respondent now refuses to

honor; and (5) Three Horizons has engaged in ongoing (but

unspecified) acts of intimidation, coercion, and retaliation.

5. There is not a shred of competent, persuasive evidence

in the record, direct or circumstantial, upon which a finding of

any sort of unlawful housing discrimination could possibly be

made. Ultimately, therefore, it is determined that Three

Horizons did not commit any prohibited act.

CONCLUSIONS OF LAW

6. The Division of Administrative Hearings has personal

and subject matter jurisdiction in this proceeding pursuant to

Sections 120.569, and 120.57(1), Florida Statutes.

7. Three Horizons has interposed two affirmative defenses,

which, taken together, probably suffice to dispose of this case,

in large measure at least. These defenses——the statute of

limitations and res judicata——will be discussed first, followed

by a discussion of the merits.

8. Section 760.34(2), Florida Statutes, provides that a

written complaint alleging a violation of the Florida Fair

Housing Act ("FFHA") must be filed with the FCHR "within 1 year

after the alleged discriminatory housing practice occurred."

This statute of limitations is similar to its counterpart in the

Florida Civil Rights Act ("FCRA"), see Section 760.11(1), and

hence should be given a similar interpretation. See Belletete

v. Halford , 886 So. 2d 308, 310 (Fla. 4th DCA 2004).

9. Under Section 760.11(1), Florida Statutes, as under

Section 760.34(2), any person aggrieved by an unlawful

discriminatory practice may file a complaint with the FCHR

within 365 days after the alleged violation. Failure to do so

bars the claim under the FCRA. See Greene v. Seminole Elec. Co-

op, Inc. , 701 So. 2d 646, 648 (Fla. 5th DCA 1997)(As a statute

of limitations, Section 760.11(1) bars claims arising from acts

that occurred more than one year before the charge was filed.);

see also St. Petersburg Motor Club v. Cook , 567 So. 2d 488, 489

(Fla. 2d DCA 1990). 2 The undersigned concludes, therefore, that

the failure to file a complaint within one year after the

occurrence of an alleged discriminatory housing practice bars

any state-law claim based on that practice.

10. Many (or all) of Kleinschmidt's allegations concern

matters that occurred——if they occurred——more than one year

prior to December 6, 2005, which date, it is undisputed, is the

earliest filing date that could apply in this case. There is,

moreover, no credible, persuasive evidence of any "continuing

violation" that might arguably have fallen within the

limitations period. See , e.g. , Havens Realty Corp. v. Coleman ,

455 U.S. 363, 380, 102 S. Ct. 1114, 71 L. Ed. 2d 214 (1982).

Thus, it is concluded that, even if Kleinschmidt had offered

proof of some or all of his allegations (which he did not), his

claims largely, if not entirely, would be time-barred and

subject to dismissal with prejudice for that reason.

11. On the subject of issue preclusion, as the Florida

Supreme Court has instructed, "[i]t is now well settled that res

judicata may be applied in administrative proceedings." Thomson

v. Department of Environmental Regulation , 511 So. 2d 989, 991

(Fla. 1987). Res judicata includes the principle of estoppel by

judgment, which holds that parties who previously have litigated

a different cause of action are estopped (i.e. barred) from

"litigating in [a later] suit issues——that is to say points and

questions——common to both causes of action and which were

actually adjudicated in the prior litigation." Deep Lagoon Boat

Club, Ltd. v. Sheridan , 784 So. 2d 1140, 1142 n.4 (Fla. 2d DCA

2001).

12. The parties to the present action are the very same

parties who faced each other in Kleinschmidt I , where the issues

stemmed from Kleinschmidt's allegations that Three Horizons had

retaliated against him (there, allegedly, for refusing to remove

cats from his condominium in compliance with the association's

"no pets" policy) and had engaged in discriminatory practices in

connection with its attempts to enforce the "no pets" policy.

In that previous case, after conducting a formal hearing on

March 31, 2005, Administrative Law Judge Arrington issued a

Recommended Order, dated May 25, 2005, in which he urged the

FCHR to dismiss Kleinschmidt's petition as unfounded in fact and

law. On August 23, 2005, the FCHR adopted Judge Arrington's

Recommended Order, issuing a Final Order dismissing

Kleinschmidt's petition.

13. At least some of Kleinschmidt's allegations in this

case are identical to charges he made in Kleinschmidt I . For

example, it was determined in the earlier case that the "break

in" which Kleinschmidt alleges occurred on September 21, 2001,

did not constitute an unlawful act of housing discrimination.

See Kleinschmidt I , 2005 Fla. Div. Adm. Hear. LEXIS 883, at *9-

*10. It was found, as well, that no pre-purchase agreement to

waive the "no pets" policy had been made. Id. at *14-*15 n.2.

To the extent that Kleinschmidt's present allegations are

attempts merely to revisit issues previously litigated and

decided, the instant case is subject to dismissal with

prejudice.

14. But even if some aspects (or all) of Kleinschmidt's

case were able to survive Three Horizon's affirmative defenses,

Kleinschmidt still would not be entitled to relief because his

claims are without merit, for the alternative, and independently

dispositive, reasons set forth below.

15. Under the FFHA, it is unlawful to discriminate in the

sale or rental of housing. Although Kleinschmidt has not

identified the particular provisions of the FFHA under which he

purports to travel, it is reasonably clear that he is attempting

to assert discrimination claims pursuant to Section 760.23,

Florida Statutes, and interference or coercion claims in

accordance with Section 760.37, Florida Statutes.

16. Upon examination of the specific acts of unlawful

discrimination and other prohibited practices enumerated in

Section 760.23, it is concluded that the following (and only the

following) provisions are or might be implicated by

Kleinschmidt's allegations:

(1) It is unlawful to refuse to sell or

rent after the making of a bona fide offer,

to refuse to negotiate for the sale or

rental of, or otherwise to make unavailable

or deny a dwelling to any person because of

race, color, national origin, sex, handicap,

familial status, or religion.

(2) 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.

* * *

(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;

(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.

17. For purposes of subsection (8) above, the term

"discrimination" 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 premises;

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.

§ 760.23(9), Fla. Stat.

18. Any claims that Kleinschmidt might be asserting under

Section 760.23(1) and Section 760.23(2), Florida Statutes, can

be disposed of summarily because, for reasons that need not be

explored in detail here, neither of these provisions creates a

cause of action for a homeowner ; rather, each protects (a)

persons seeking to purchase or lease a dwelling and (b) tenants.

See Lawrence v. Courtyards at Deerwood Ass'n , 318 F. Supp. 2d

1133, 1142-43 (S.D.Fla. 2004); Delawter-Gourlay v. Forest Lake

Estates Civic Ass'n of Port Richey, Inc. , 276 F. Supp. 2d 1222,

1229-34 (M.D.Fla. 2003), vacated because of settlement, 2003

U.S. Dist. LEXIS 26080 (M.D.Fla. Sept. 16, 2003).

Alternatively, in any event, Kleinschmidt did not prove any

facts that could conceivably establish a basis for relief under

either of these statutes, even if they applied to him as a

homeowner, which they do not.

19. On the other hand, post-purchase claims of handicap -

based housing discrimination are cognizable under Section

760.23(8), according to its plain terms. Thus, as a homeowner

with a handicap 3 , Kleinschmidt could, in theory, state a legally

sufficient claim alleging that, because of his handicap, Three

Horizons discriminated against him either by denying him

services or facilities in connection with his dwelling, refusing

to make reasonable accommodations for his handicap, or both.

20. But, in actuality, this case, unlike Kleinschmidt I ,

does not involve any claims (that the undersigned can perceive)

arising out of an alleged refusal to make reasonable

accommodations for Kleinschmidt. Nor has Kleinschmidt accused

Three Horizons of having denied him the use of any facilities

associated with his dwelling. Therefore, if Kleinschmidt has a

claim for housing discrimination based on handicap, it must

involve some sort of denial of, or delay in providing, services.

21. In cases involving a claim of housing discrimination

on the basis of handicap, the complainant has the initial burden

of proving a prima facie case of discrimination by a

preponderance of the evidence. Generally speaking, a prima

facie case comprises circumstantial evidence of discriminatory

animus, such as proof that the charged party treated persons

outside of the protected class, who were otherwise similarly

situated, more favorably than the complainant was treated. 4

Failure to establish a prima facie case of discrimination ends

the inquiry. See Ratliff v. State , 666 So. 2d 1008, 1012 n.6

(Fla. 1st DCA), aff'd , 679 So. 2d 1183 (1996)(citing Arnold v.

Burger Queen Systems , 509 So. 2d 958 (Fla. 2d DCA 1987)).

22. If, however, the complainant sufficiently establishes

a prima facie case, the burden then shifts to the charged party

to articulate some legitimate, nondiscriminatory reason for its

action. If the charged party satisfies this burden, then the

complainant must establish by a preponderance of the evidence

that the reason asserted by the charged party is, in fact,

merely a pretext for discrimination. See Massaro v. Mainlands

Section 1 & 2 Civic Ass'n, Inc. , 3 F.3d 1472, 1476 n.6 (11th

Cir. 1993), cert. denied , 513 U.S. 808, 115 S.Ct. 56, 130

L.Ed.2d 15 (1994)("Fair housing discrimination cases are subject

to the three-part test articulated in McDonnell Douglas Corp. v.

Green , 411 U.S. 792, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973).");

Secretary, U.S. Dept. of Housing and Urban Development, on

Behalf of Herron v. Blackwell , 908 F.2d 864, 870 (11th Cir.

1990)("We agree with the ALJ that the three-part burden of proof

test developed in McDonnell Douglas [for claims brought under

Title VII of the Civil Rights Act] governs in this case

[involving a claim of discrimination in violation of the federal

Fair Housing Act].").

23. To make out a prima facie case for denial of services,

Kleinschmidt needed to show that he: (1) belongs to a protected

class; (2) is qualified to receive the services in question; (3)

was denied or delayed services by Three Horizons; and (4) was

treated less favorably by Three Horizons than were similarly

situated persons outside of the protected class. See , e.g. ,

Jackson v. Comberg , 2006 U.S. Dist. LEXIS 66405, *15 (M.D.Fla.

Aug. 22, 2006).

24. Kleinschmidt failed to identify anyone outside of the

protected class whom Three Horizons allegedly treated more

favorably. For that reason alone, whatever claim Kleinschmidt

might have been attempting to assert under Section 760.23(8)

never had a chance. Id. Kleinschmidt's failure to make out a

prima facie case of discrimination ended the inquiry. Because

the burden never shifted to Three Horizons to articulate a

legitimate, nondiscriminatory reason for its conduct, it was not

necessary to make any findings of fact in this regard.

25. Turning to Kleinschmidt's claim under Section 760.37,

Florida Statutes, which "regulates discriminatory conduct

before, during, or after a sale or rental of a dwelling,"

liability would exist only if Kleinschmidt could demonstrate

that, because of discriminatory animus,

[Three Horizons] coerced, intimidated,

threatened, or interfered [with: (a) his]

exercise of a right under [the FFHA]; (b)

[his] enjoyment of a housing right after

exercise of that right; or (c) [his] aid or

encouragement to a protected person to

exercise or enjoy a housing right[.]

Delawter-Gourlay v. Forest Lake Estates Civic Ass'n of Port

Richey, Inc. , 276 F. Supp. 2d 1222, 1235 (M.D.Fla.

2003)(citation and footnote omitted), vacated because of

settlement, 2003 U.S. Dist. LEXIS 26080 (M.D.Fla. Sept. 16,

2003). Kleinschmidt, however, proved none of the foregoing

elements. Thus, Three Horizons is not liable under Section

760.37, Florida Statutes.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of

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

Three Horizons not liable for housing discrimination and

awarding Kleinschmidt no relief.

DONE AND ENTERED this 21st day of November, 2006, in

Tallahassee, Leon County, Florida.

___________________________________

JOHN G. VAN LANINGHAM

Administrative Law Judge

Division of Administrative Hearings

The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-3060

[phone] SUNCOM 278-9675

Fax Filing [phone]

www.doah.state.fl.us

Filed with the Clerk of the

Division of Administrative Hearings

this 21st day of November, 2006.

ENDNOTES

1 / Both "volumes" are contained in one transcript; the second

"volume," which begins on page 150, comprises the afternoon

session of the one-day final hearing.

2 / Although § 760.11(1) "states that a complaint 'may' be filed

with the [FCHR], it is clear that such a complaint must be filed

either with the [FCHR] or its federal counterpart by anyone who

wishes to pursue either a lawsuit or an administrative

proceeding under the act." Ross v. Jim Adams Ford, Inc. , 871

So. 2d 312, 315 (Fla. 2d DCA 2004). In Belletete , the Ross

court's interpretation of § 760.11(1) was found to be equally

applicable to § 760.34, Fla. Stat. See 886 So. 2d at 310.

3 / The undersigned accepts the finding of fact, made in

Kleinschmidt I , that Kleinschmidt is a person with a "handicap"

as that term is defined in the FFHA. See 2005 Fla. Div. Adm.

Hear. LEXIS 883, at *8, *13.

4 / Alternatively, the complainant's burden may be satisfied with

direct evidence of discriminatory intent. See Trans World

Airlines, Inc. v. Thurston , 469 U.S. 111, 121, 105 S.Ct. 613,

621, 83 L.Ed.2d 523 (1985)("[T]he McDonnell Douglas test is

inapplicable where the plaintiff presents direct evidence of

discrimination" inasmuch as "[t]he shifting burdens of proof set

forth in McDonnell Douglas are designed to assure that the

'plaintiff [has] his day in court despite the unavailability of

direct evidence.'").

COPIES FURNISHED :

William Kleinschmidt

1470 Northeast 125th Terrace, Apt. 206

North Miami, Florida 33161

Krista A. Fowler, Esquire

Cole, Scott & Kissane, P.A.

1390 Brickell Avenue

Miami, Florida 33131

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, Suite 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.