06-002822 Anna And Allan Kangas vs. Hatchett Creek Mobile Home Park Condominium Association, Inc., Et Al. Status: Closed Recommended Order on Tuesday, January 2, 2007.

Summary: Petitioners submitted no evidence that Respondent refused to approve the sale of a condominium unit to them.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

ANNA AND ALLAN KANGAS, )

)

Petitioners, )

)

vs. ) Case No. 06-2822

)

HATCHETT CREEK MOBILE HOME )

PARK CONDOMINIUM ASSOCIATION, )

Administrative Law Judge (ALJ) Daniel Manry conducted the

formal hearing of this case on December 8, 2006, in Sarasota,

Florida for the Division of Administrative Hearings (DOAH).

APPEARANCES

For Petitioners: Shelden Kangas (POA for Anna Kangas)

Allan Kangas

4578 County Manor Drive

Sarasota, Florida 34233

For Respondents: David G. Muller, Esquire

Becker & Poliakoff, P.A.

630 South Orange Avenue, Third Floor

Sarasota, Florida 34236

STATEMENT OF THE ISSUE

The issue is whether Respondent engaged in a discriminatory

housing practice, within the meaning of and in violation of the

Florida Fair Housing Act, Sections 760.20 through 760.37, Florida

Statutes (2005), by requiring Petitioners to submit a second

application for the approval of a condominium purchase.

PRELIMINARY STATEMENT

On January 27, 2006, Petitioners filed a Housing

Discrimination Complaint with the Florida Commission on Human

Relations (Commission). The Commission issued a Notice of

Determination of No Cause (No Cause Determination) on June 23,

2006. Petitioners requested an administrative hearing by filing

a Petition for Relief with the Commission on July 24, 2006. The

Commission referred the Petition to DOAH to conduct the hearing.

At the hearing, Petitioner presented the testimony of two

witnesses and submitted 22 exhibits for admission into evidence.

Respondent presented the testimony of four witnesses and

submitted seven exhibits for admission into evidence.

The identity of the witnesses and exhibits, and the rulings

regarding each, are reported in the record of the hearing.

Neither party requested a transcript of the hearing.

Respondent filed its proposed recommended order with DOAH on

a date sometime in December 2006 that is not reported in the DOAH

docket. Petitioner did not file a proposed recommended order.

FINDINGS OF FACT

1. It is undisputed that Petitioner, Allan Kangas, has no

handicap and is not a disabled person. At the conclusion of

Petitioners' case-in-chief, Mr. Kangas testified that he has no

handicap. The undersigned, sua sponte, entered an ore tenus

order on the record dismissing the case brought by Mr. Kangas.

2. Petitioner, Anna Kangas, is an elderly female and the

mother of Mr. Allan Kangas and Mr. Sheldon Kangas, the latter

being the representative in this proceeding for the named

Petitioners. It is undisputed that Mr. Sheldon Kangas is not

handicapped, but that Mrs. Kangas is handicapped, within the

meaning of Section 760.22(7), Florida Statutes (2005), because of

Alzheimer's disease.

3. Respondent is a condominium association lawfully

incorporated as a Florida corporation (Association). Respondent

must operate in accordance with the Articles of Incorporation,

By-Laws, and Declaration of Condominium (condominium documents).

The condominium documents require the Association to approve each

purchase of a condominium.

4. On December 8, 2005, Mr. Sheldon Kangas and Mrs. Anna

Kangas contracted with Ms. Mary Cox to purchase condominium unit

15, located at 23 Hatchett Creek Road. Ms. Cox is a real estate

agent and a co-owner of unit 15.

5. Ms. Cox notified Ms. Pat Williamson, Association

Secretary, of the prospective purchase. For the reasons stated

herein, Respondent did not discriminate against the prospective

purchasers, but approved the purchase of condominium unit 18 in a

timely manner after the purchasers changed their purchase

contract from unit 15 to unit 18.

6. The prospective purchasers completed an application for

approval of the purchase of unit 15 sometime between December 8

and 10, 2005. The Association conducted a meeting to approve the

proposed purchase on December 10, 2005.

7. During the meeting on December 10, 2005, the purchasers

informed the Association that they wished to purchase unit 18,

located at 29 Hatchett Creek Road, rather than unit 15. Unit 18

was owned by Mr. Brian Isaac. Ms. Cox did not object to

releasing the purchasers from the contract for the purchase of

unit 15.

8. The Association informed the purchasers that a new

application for unit 18 would be required. The purchasers

completed a new application under protest.

9. At a meeting conducted on January 3, 2006, the

Association approved the application for the purchase of unit 18.

The purchase of unit 18 closed on January 25, 2006.

10. The purchasers seek reimbursement of living expenses

incurred for hotel rooms and meals during the delay caused by the

requirement for a second application. The purchasers are not

entitled to reimbursement.

11. The purchase of unit 18 was the first time the

Association had required a second application. However, it was

also the first time a purchaser had changed his or her choice of

units after submitting an application.

12. The Association did not discriminate against

Mrs. Kangas because of her handicap. The record evidence

contains no justifiable issue of law or fact to support the

alleged discrimination.

CONCLUSIONS OF LAW

13. DOAH has jurisdiction over the subject matter and the

parties in this proceeding. §§ 760.20 through 760.37, and

120.569 and 120.57(1), Fla. Stat. (2005). DOAH provided the

parties with adequate notice of the formal hearing.

14. Petitioners have the burden of proof in this

proceeding. Petitioners must submit evidence sufficient to

establish a prima facie case of discrimination. Once Petitioners

establish a prima facie case, the burden shifts to Respondent to

articulate some legitimate, nondiscriminatory intent or reason

for requiring a second application for approval. See Massaro v.

Mainlands Section 1 and 2 Civic Association, Inc. , 3 F.3d 1472,

1476 n.6 (11th Cir. 1993)(fair housing discrimination is 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 of the United States Department of Housing and Urban

Development on Behalf of Herron v. Blackwell , 908 F.2d 864, 870

(11th Cir. 1990)(three-part burden of proof test in McDonnell

governs claims brought under Title VII of the Civil Rights Act).

15. A prima facie showing of housing discrimination simply

requires Petitioners to show they applied to purchase an

available unit for which they were qualified, their application

had been rejected, and, at the time of such rejection, they had

been members of a class protected by the Act. See Soules v.

United States Department of Housing and Urban Development , 967

F.2d 817, 822 (2d Cir. 1992). Alternatively, Petitioners may

satisfy the requirement for a prima facie showing of

discrimination by presenting direct evidence of discrimination.

See Trans World Airlines, Inc. v. Thurston , 469 U.S. 111, 121,

105 S. Ct. 613, 621, 83 L. Ed. 2d 523 (1985).

16. Petitioners did not present a prima facie case of

discrimination. Petitioners submitted no evidence that

Respondent refused to approve the sale of unit 18 to Petitioners

within the meaning of Subsections 760.23(1) and (7), Florida

Statutes (2005).

17. A preponderance of evidence shows that Respondent had

legitimate non-discriminatory reasons for requiring Petitioners

to submit a second application for approval after Petitioners

changed the prospective purchase from unit 15 to unit 18.

Moreover, the evidence shows that Respondent required a second

application solely for legitimate non-discriminatory reasons.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of

Law, it is

RECOMMENDED that the Commission enter a final order

dismissing the Petition for Relief.

DONE AND ENTERED this 2nd day of January 2007, in

Tallahassee, Leon County, Florida.

S

___________________________________

DANIEL MANRY

Administrative Law Judge

Division of Administrative Hearings

The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-3060

[phone] SUNCOM 278-9675

Fax Filing [phone]

Filed with the Clerk of the

Division of Administrative Hearings

this 2nd day of January 2007.

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

David G. Muller, Esquire

Becker & Poliakoff, P.A.

630 South Orange Avenue, Third Floor

Sarasota, Florida 34236

Shelden Kangas

Allan Kangas

4578 Manor Drive

Sarasota, Florida 34233

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.