07-000498 Robert Cowden vs. Charles Clotfelter And King`s Gate Club, Inc. Status: Closed Recommended Order on Tuesday, June 5, 2007.

Summary: The Petition for Relief and claim of housing discrimination should be denied because the accommodation that Petitioner requested was unrelated to his handicap and he had an equal opportunity to use and enjoy the housing without the accommodation.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

ROBERT COWDEN , )

)

Petitioner , )

)

vs. ) Case No. 07 - 0498

)

CHARLES CLOTFELTER AND KING'S )

GATE CLUB, INC. , )

)

Respondent s . )

)

RECOMMENDED ORDER

The final hearing in this case was conducted by telephone

conference by Administrative Law Judge Bram D. E. Canter of the

Division of Administrative Hearings (DOAH) on April 5, 2007.

APPEARANCES

For Petitioner: Robert Cowden, pro se

31 Castle D rive

Nokomis, Florida 34275

For Respondents : Robert E. Turffs, Esquire

Robert E. Turffs, P.A.

1444 First Street , Suite B

Sarasota, Florida 34236

STATEMENT OF THE ISSUE

Whether Petitioner Robert Cowden was the subject of housing

discrimination by Respondents based on Mr. Cowden's physical

handicap , in violation of Florida 's Fair Housing Act.

PRELIMINARY STATEMENT

Petitioner Robert Cowden and his mother, Alice Cowden,

filed a complaint with the Florida Commission on Human Relation s

(Commission) on July 17, 2006, alleging that Robert Cowden was

discriminated against by Respondents because of his physical

disability, Acquired Immune Deficiency Syndrome (AIDS). More

specifically Petitioner alleged that Respondents failed to make

reas onable accommodation for his disability by allowing him to

visit his mother in an adult mobile home community in excess of

the community's rules that restrict visitation by persons under

the age of 55.

The case was referred by the Commission to DOAH showin g

both Robert Cowden and Alice Cowden as Petitioners. However,

the evidence presented at the final hearing established that no

allegation was ever made that Alice Cowden was the subject of

discrimination. Therefore, the style of the case has been

changed for this Recommended Order to remove Alice Cowden as a

Petitioner. In addition, the evidence shows that Petitioner's

complaint against Charles Clotfelter was in his capacity as

general manager of King's Gate Club, which is operated by King's

Gate Club, I nc. Therefore, King's Gate Club, Inc. , has been

added to the case style as a Respondent.

The Commission investigated the complaint and determined

that there was no reasonable cause to believe that a

discriminatory housing practice had occurred in violatio n of

state and federal law. Petitioner disagreed with the

Commission' s determination and filed a Petition for Relief. The

case was forwarded to DOAH to conduct a de novo hearing on the

matter.

At the hearing, Petitioner testified on his own behalf and

of fered the testimony of his mother, Alice Cowden. Petitioner's

Exhibit s 1 and 2 w ere admitted into evidence. Respondents

presented the testimony of Harlan Domber and Charles Clotfelter.

Respondents Exhibits 1 through 29 were admitted into evidence.

The final hearing was recorded by a court reporter, but a

transcript was not filed with DOAH.

Respondents filed a Proposed Recommended Order and

Petitioner filed a letter. Attached to Petitioner's letter was

a letter from another resident of King's Gate Club. The

attached letter was not admitted into evidence, but remains in

the record.

FINDINGS OF FACT

1. Petitioner has AIDS, which qualifies him as a person

with a handicap under state and federal fair housing laws.

2. Petitioner's mother, Alice Cowden, is a resident of

King's Gate Club in Venice, Florida.

3 . Charles Clotfelter is the general manager of King's

Gate Club. King's Gate Club is an adult mobile home community

operated by King's Gate Club , Inc. The Articles of

Incorporation for King's Gate Club , Inc., specify that permanent

occupants shall be 55 years old or older. No permanent

occupancy is permitted for persons under the age of 55 unless an

exemption is granted at the sole discretion of the b oard of

d irectors and only if granting the exemption will not result in

less than 80 percent of the mobile homes in the community having

at least one resident aged 55 or older.

4. The rules of King's Gate Club require residents to

limit visits by adult guests under age 55 to a maximum of 120

days within an y consecutive 12 - month period.

5. Petitioner is an adult, but less than 55 years old. In

2005 and 2006, Petitioner was a frequent visitor at his mother's

home in King's Gate Club. Several times i n 2006, Respondents

informed Petitioner's mother that Peti tioner's visits had

exceeded the community's visitation rule. Mr. Clotfelter, the

manager of King's Gate Club, also discussed the visitation rule

issue with Petitioner.

6 . On May 7 , 2006, Mr. Clotfelter sent a letter to

Ms. Cowden requesting that Petitio ner either vacate the premises

or become a member of King's Gate Club. As a member , Petitioner

would no t be subject to the visitation rule. Becoming a member

requires a $120 application fee and includes a "background

check."

7. In June 2006, Petitioner first informed Mr. Clotfelter

that Petitioner had AIDS.

8. On July 13, 2006, a certified letter was sent to

Ms. Cowden by Harlan Domber, the attorney for King's Gate Club,

Inc., informing her that Petitioner's visits exceeded the limits

stated in the rule s. Mr. Domber advised Ms. Cowden that

Petitioner must vacate her premises or she and Petitioner must

apply to make Petitioner a co - owner of the mobile home.

9 . Instead, Petitioner responded by filing a complaint

with the Commission. Petitioner claims th at Respondents w ere

required to allow him to visit his mother at King's Gate Club as

often as he wanted as a reasonable accommodation for his

disability.

10. Petitioner testified that he takes medications and

receives treatments for his AIDS, but that he h as no physical

limitation that requires him to use any assistive device, such

as a wheelchair, or assistive technology. He also testified

that he does not need the care of his mother for his disability.

1 1. P etitioner never requested that King's Gate Club

provide any particular accommodation for his disability. Based

on his understanding of the f air h ousing l aws, Petitioner

assumed that when he informed Mr. Clotfelter that he had AIDS,

Mr. Clotfelter would understand that King's Gate Club could not

requir e Petitioner to comply with the visitation rule. As

explained in the Conclusions of Law, Petitioner 's understanding

of the law was mistaken.

1 2. Nevertheless, following Petitioner's complaint to the

Commission, the board of directors of King's Gate Club d ecided

not to enforce its visitation rule against Petitioner , and he

now visits his mother at King's Gate Club as often as he wishes.

This action by the board does not make the case moot, however,

because the board could change its position.

CONCLUSIONS O F LAW

1 3. DOAH has jurisdiction over the parties to and the

subject matter of this proceeding pursuant to Section 120.569,

and Subsections 120.57(1) and 760.11(7) Florida Statutes (2006). 1

1 4. Under Florida’s Fair Housing Act ("the Act"), Sections

760.20 t hrough 760.37, Florida Statutes, it is unlawful to

discriminate in the sale or rental of housing. Subsection

760.23(1), Florida Statutes, states in pertinent part:

It is unlawful to . . . make unavailable or

deny a dwelling to any person because of

race, color, national origin, sex, handicap,

familial status, or religion.

1 5. Subsection 760.22(7)(a), Florida Statutes, defines

"handicap" as "a physical or mental impairment which

substantially limits one or more major life activities."

Respondents argue t hat Petitioner does not have a handicap as

defined in the Act , because Petitioner admits to having no

current physical impairment as a result of AIDS.

16. In interpreting and applying the Act, t he Commission

and the Florida courts regularly seek guidance f rom federal

court decisions interpreting similar provisions of federal fair

housing laws. Federal court decisions have recognized persons

with AIDS to have a handicap subject to the protections of the

Fair Housing Amendment Act of 1988 , 42 U.S.C. § 3601, et seq .

(FHAA). See , e.g. , McGary v. City of Portland , 386 F.3d 1259

(9th Cir. 2004). The undersigned declines to resolve whether

under Florida law , some persons with AIDS are protected by the

housing laws and others are not, based on the degree of the

d isease's debilitating effects on the person . This case can be

resolved by focusing on the question of what physical

limitations Petitioner had because of his AIDS and whether

Respondents failed to make reasonable accommodation for those

physical limitatio ns.

1 7. Subsection 760.23(9), Florida Statutes, states in

relevant part that discrimination in housing includes:

(b) A refusal to make reasonable

accommodation in rules, policies, practices,

or services, when such accommodations may be

necessary to affor d such person equal

opportunity to use and enjoy a dwelling.

1 8. In cases involving a claim of housing discrimination,

the complainant has the burden of proving a prima facie case of

discrimination by a preponderance of the evidence. To establish

a prima facie case of failure to make a reasonable accommodation

under the similar provision of federal law, 42 U.S.C. Section

3604 (f)(3) (B) , Petitioner must show:

a) that he suffers from a handicap;

b) that Respondent knew of the handicap;

c) that an accomm odation of the handicap

was necessary to afford Petitioner an equal

opportunity to use and enjoy the housing in

question; and

d) that Respondent refused to make such an

accommodation .

See U.S. v. California Mobile Home Park Mgmt. , 107 F.3d 1374,

1380 (9 th Cir. 1997) ; Schantz v. Village Apartments , 998

F. Supp. 784, 791 (E.D. Mich. 1998).

1 9. F ailure to establish a prima facie case of

discrimination ends the inquiry. See Ratliff v. State , 666

So. 2d 1008, 1013 , n.7 (Fla. 1st DCA 1996), aff’d , 679 So. 2d,

1183 (Fla. 1996).

20. If, however, the complainant establishes a prima facie

case, the burden then shifts to the r espondent to articulate

some legitimate, nondiscriminatory reason for its action. If

the r espondent satisfies this burden, then the complain ant must

establish by a preponderance of the evidence that the reason

asserted by the r espondent 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.

den ied , 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)).

21. Petitioner did not m eet his burden to establish a

prima facie case of discrimination. Petitioner failed to prove

that King's Gate Club, Inc. , refuse d to permit him to visit his

mother under the same terms and conditions of visitation that

were applicable to all guests . Peti tioner also failed to prove

that he required an accommodation in order to have an equal

opportunity to use and enjoy his mother's home in King's Gate

Club.

22. By his own admissions, Petitioner is not in need of an

accommodation to overcome a physical limi tation. 2 Persons with

handicaps are a protected class, not a privileged class.

Petitioner is not seeking protection of his right to an equal

opportunity to visit his mother. He is seeking the privilege of

having greater visitation rights than other gues ts at King's

Gate Club. The Act does not require King's Gate Club, Inc., to

grant him such a privilege.

23. Fo r the reasons set forth above, the actions of

Respondent s that Petitioner complained of do not constitute

discrimination under the Act. Theref ore , the Petition for

Relief should be dismissed.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of

Law, it is

RECOMMENDED that the Petition for Relief be dismissed.

DONE AND ENTERED this 5th day of June , 2007 , in

Tallahassee, Leon County, Florida.

S

BRAM D. E. CANTER

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 (8 50) 921 - 6847

www.doah.state.fl.us

Filed with the Clerk of the

Division of Administrative Hearings

this 5th day of June , 2007 .

ENDNOTE S

1/ All references to the Florida Statutes are to the 2006

codification.

2/ Petitioner 's request for the accommodat ion was apparently

based only on his personal financial needs. Some federal court

decisions strongly suggest that the FHAA does not contemplate

financial or economic accommodations. Salute v. Stratford

Greens Garden Apartments , 136 F.3d 293, 302 (2d Cir. 1998). See

also Schantz v. Village Apartments , 998 F. Supp. 784 (E.D. Mich.

1998)(Landlord's no co - signer policy did not have to be waived

to accommodate a person with a disability.) In any event,

Petitioner did not show a connection between his finan cial needs

and his disability.

COPIES FURNISHED :

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

Harlan Domber, Esquire

3900 Clark Road, Suite L - 1

Sarasota, Florida 34233

Robert E. Turffs, Esquire

Robert E. Turffs, P.A.

1444 First Street , Suite B

Sarasota, Florida 34236

Robert Cowden

31 Cas tle Drive

Nokomis, Florida 34275

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 age ncy that

will issue the Final Order in this case.