08-002220 Georgine Assante vs. Windsor Place At Berkshire (Lakes) Status: Closed Recommended Order on Monday, September 15, 2008.

Summary: Respondent did not discriminate against a female resident with an alleged handicap, who hung non-conforming window treatments. Recommend fees and costs awarded totaling $7,424.00 and $680.88.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

GEORGINE ASSANTE, )

)

Petitioner, )

)

vs. ) Case No. 08-2220

)

WINDSOR PLACE AT BERKSHIRE )

(LAKES), )

)

Respondent. )

)

RECOMMENDED ORDER

Administrative Law Judge (ALJ) Daniel Manry conducted the

final hearing of this case for the Division of Administrative

Hearings (DOAH) on July 24, 2008, in Naples, Florida.

APPEARANCES

For Petitioner: Georgine Assante, pro se

148 West 68th Street, Apartment 5B

New York, New York 10023

For Respondent: Susan M. McLaughlin, Esquire

Condo & HOA Law Group, LLC

2030 McGregor Boulevard

Fort Myers, Florida 33901

STATEMENT OF THE ISSUES

The issues are whether Respondent's enforcement of a

condominium declaration requirement for window treatments is a

discriminatory housing practice based on Petitioner's gender and

alleged handicap, in violation of the Florida Fair Housing Act,

Sections 760.20 through 760.37, Florida Statutes (2007), 1 and, if

not, whether Respondent should be awarded attorney's fees and

costs pursuant to Subsection 120.595(1), Florida Statutes.

PRELIMINARY STATEMENT

On December 18, 2007, Petitioner 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 April 4,

2008. Petitioner requested an administrative hearing by filing

a Petition for Relief (Petition) with the Commission on May 2,

2008. The Commission referred the Petition to DOAH to conduct

an administrative hearing.

At the hearing, Petitioner testified and submitted no

exhibits for admission into evidence. Petitioner actually

submitted 15 exhibits, but the documents were original

documents, and Petitioner did not deliver the originals to the

ALJ. Pursuant to the agreement of the parties, the ALJ allowed

Petitioner five calendar days from the date of the hearing to

file copies of the original documents. Petitioner did not file

copies of her exhibits. Respondent filed a written motion for

attorney's fees and costs; presented the testimony of two

witnesses, including counsel for Respondent who testified

concerning her fees; and submitted six exhibits.

The identity of the witnesses and exhibits, and the rulings

regarding each, are reported in the Transcript of the hearing

filed with DOAH on August 22, 2008. Petitioner and Respondent

filed their respective proposed recommended orders on

September 8 and August 26, 2008.

FINDINGS OF FACT

1. Petitioner owns a condominium in Windsor Place at

Berkshire (Lakes)(Windsor Place). Windsor Place is a covered

multifamily dwelling unit, and Petitioner’s condominium is a

dwelling, defined in Subsections 760.22(2) and (4),

respectively.

2. Petitioner is a female, aged 65. Petitioner does not

have a handicap defined in Subsection 760.22(7). Petitioner

suffered physical injury from a bicycle accident in 1990 and has

a surgically rebuilt tibial plateau, but a preponderance of the

evidence does not support a finding that the injury

substantially limits one or more major life activities.

3. Petitioner walks approximately 1.5 miles to the grocery

store and carries her groceries back to her dwelling unit.

Petitioner uses her key to access the Condominium pool and swims

in the pool. Petitioner attended the hearing and represented

herself with no apparent physical or mental difficulty.

4. A preponderance of the evidence does not support a

finding that Petitioner established a prima facie case of

discrimination on the basis of Petitioner’s gender. Rather, a

preponderance of the evidence shows that Respondent has

legitimate non-discriminatory reasons for requiring Petitioner

to comply with the Declaration of Condominium and has not

subjected Petitioner to disparate treatment.

5. Section 27.1 of the Declaration of Condominium

prohibits window coverings in any dwelling unit except interior

draperies, curtains, shades, or shutters that have a neutral-

colored backing. Beginning sometime in 1997, Petitioner has

displayed various items in her windows including rags,

unidentifiable “shiny things,” towels, bed sheets, a car floor

mat, window stickers, items resembling garbage bags, and window

wallpaper.

6. Petitioner claims her alleged handicap prevents

Petitioner from standing on a ladder to hang appropriate window

treatments. Respondent’s representatives purchased standard

window treatments and offered to install them in Petitioner’s

condominium at no cost to Petitioner. Petitioner refused and

has continued to hang non-conforming window treatments in

violation of the relevant condominium declaration.

7. Respondent seeks attorney's fees in this proceeding

pursuant to Section 120.595. Pursuant to Subsection

120.595(1)(c), this Recommended Order finds that Petitioner has

participated in this proceeding for an improper purpose.

8. Petitioner participated in this proceeding for a

frivolous purpose within the meaning of Subsection

120.595(1)(e)1. The evidence submitted by Petitioner presented

no justiciable issue of fact or law.

9. Petitioner was her only witness. Her testimony was

vague and ambiguous, lacked precision, and was not specific as

to material facts. Cross-examination of Respondent's witnesses

may be fairly summarized as consisting of comments on the

answers to questions and argument with the witnesses.

Petitioner repeatedly disregarded instructions from the ALJ not

to argue with witnesses and not to comment on the testimony of a

witness. The ALJ allowed Petitioner five days after the date of

the hearing to provide copies of her exhibits, and Petitioner

did not submit any exhibits for admission into evidence.

10. Respondent is the prevailing party in this proceeding,

and Petitioner is the non-prevailing party. Petitioner has

participated in two or more similar proceedings involving

Respondent, the same dwelling unit, and the same factual issue

of whether the window treatments utilized by Petitioner violate

the relevant condominium declaration. In the previous

proceedings, Petitioner did not establish either the factual or

legal merits of her position. The factual and legal position of

Petitioner in this proceeding is substantially the same as her

position in the previous proceedings.

11. Respondent fined Petitioner for early violations of

the relevant condominium declaration, and Petitioner paid the

fine. However, Respondent had to fine Petitioner for subsequent

violations, and Petitioner refused to pay those fines.

12. Respondent obtained counsel and filed a Petition for

Condominium Arbitration with the Department of Business and

Professional Regulation, Division of Florida Land Sales,

Condominiums, and Mobile Homes. The Department issued a Summary

Final Order dated September 17, 2002.

13. Petitioner refused to comply with the Summary Final

Order. Rather, Petitioner filed a Fair Housing Complaint with

the Commission. That complaint contained substantially similar

allegations as those at issue in this proceeding. The

Commission issued a detailed Determination of No Reasonable

Cause in February 2004.

14. Petitioner filed a complaint against Respondent with

the Department of Agriculture. The Department dismissed the

complaint.

15. During the holiday season in December 2006,

representatives for Respondent informed Petitioner that

Respondent intended to seek legal recourse in court if

Petitioner continued to violate the relevant condominium

declaration. Petitioner continued to hang nonconforming items

in her windows including shiny objects, garbage bags, and

decals.

16. In March 2007, Respondent filed suit in County Court

for Collier County, Florida, to enforce the Summary Final Order

issued in 2002. Respondent was unable to serve Petitioner until

sometime in November 2007. Petitioner filed the complaint at

issue in this proceeding on December 12, 2007.

17. Respondent seeks attorney's fees totaling $7,424.00

and costs totaling $680.88. The hours, hourly rate of $285, and

the items of costs are detailed in the attorney’s affidavit and

attached exhibits. The amount of fees and costs are reasonable

and appropriate, and Respondent is awarded fees and costs in the

amounts requested pursuant to Subsection 120.595(1)(d).

CONCLUSIONS OF LAW

18. DOAH has jurisdiction over the subject matter of and

the parties to this proceeding. §§ 760.20 through 760.37 and

§§ 120.569, 120.57(1), and 120.595, Fla. Stat. (2008). DOAH

provided the parties with adequate notice of the formal hearing.

19. Petitioner has the burden of proof in this proceeding.

Petitioner must submit evidence sufficient to establish a prima

facie case of discrimination. 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).

For reasons stated in the Findings of Fact, Petitioner did not

present a prima facie case of discrimination or disparate

treatment.

20. A determination of whether a party participates in a

proceeding for an improper purpose is a finding of fact. See

Burke v. Harbor Estates Associates, Inc. , 591 So. 2d 1034, 1037

(Fla. 1st DCA 1991)(applying former Subsection 120.59(6), the

predecessor to current Subsection 120.595(1)(e)1.); accord State

of Florida v. Hart , 677 So. 2d 385, 386 (Fla. 4th DCA 1996);

Dolphins Plus v. Residents of Key Largo Ocean Shores, Clarence

C. Hobdy and State of Florida, Department of Environmental

Regulation , 598 So. 2d 324 (Fla. 3d DCA 1992). The fact-finder

may rely on permissible inferences based on the facts and

circumstances in the proceeding. Burke , 591 So. 2d at 1037.

The absence of direct evidence of intent does not convert the

issue to a question of law. Id.

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 and requiring Petitioner to

pay attorney's fees and costs in the amounts awarded herein.

DONE AND ENTERED this 15th day of September, 2008, 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]

www.doah.state.fl.us

Filed with the Clerk of the

Division of Administrative Hearings

this 15th day of September, 2008.

ENDNOTE

1/ References to subsections, sections, and chapters are to

Florida Statutes (2007) unless otherwise stated.

COPIES FURNISHED :

Denise Crawford, Agency Clerk

Florida Commission on Human Relations

2009 Apalachee Parkway, Suite 100

Tallahassee, Florida 32301

Susan M. McLaughlin, Esquire

Condo & HOA Law Group, LLC

2030 McGregor Boulevard

Fort Myers, Florida 33901

Georgine Assante

148 West 68th Street, Apartment 5B

New York, New York 10023

Larry Kranert, 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.