08-004498 Bernice F. Buchanan vs. Key West Condominium Association, Inc. Status: Closed Recommended Order on Friday, May 29, 2009.

Summary: Petitioner needs a handicap parking space close to her unit. Respondent discriminated against Petitioner by failing to provide this reasonable accommodation.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

BERNICE F. BUCHANAN, )

)

Petitioner, )

)

vs. ) Case No. 08-4498

)

KEY WEST CONDOMINIUM )

ASSOCIATION, INC., )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, a final hearing was held in this case,

on December 2, 2008, in Sanford, Florida, before Carolyn S.

Holifield, Administrative Law Judge of the Division of

Administrative Hearings.

APPEARANCES

For Petitioner: Bernice Buchanan, pro se

700 Seabrook Court, Unit 103

Altamonte Springs, Florida 32713

For Respondent: Frank Ruggieri, Esquire

Larsen & Associates, P.A.

300 South Orange Avenue, Suite 1200

Orlando, Florida 32801

STATEMENT OF THE ISSUE

The issue in this case is whether Respondent discriminated

against Petitioner because of her disability in violation of the

Florida Fair Housing Act.

PRELIMINARY STATEMENT

On May 7, 2008, Petitioner filed a Housing Discrimination

Complaint (the "Complaint") against Respondent alleging that she

was handicapped within the meaning of the Florida Fair Housing

Act ("FFHA"), Section 804 of Title VIII of the Civil Rights Act

of 1968, as amended (codified at 42 U.S.C. Sections 3604 and

3617). The Complaint also alleged that Respondent had been

unwilling to accommodate Petitioner's disabling condition and

refused to provide her with a handicap parking space in front of

the building in which she lived.

The Complaint was originally filed with the Federal

Department of Housing and Urban Development ("HUD") pursuant to

42 U.S.C. Section 3610(a)(1)(A), and referred to the Florida

Commission on Human Relations ("Commission"), pursuant to

42 U.S.C. Section 3610(f).

The Commission conducted an investigation of the Complaint.

By letter dated July 30, 2008, the Commission notified

Petitioner of its determination that reasonable cause did not

exist to believe that a discriminatory housing practice occurred

and that the Complaint would be dismissed. The Commission's

letter provided notice of Petitioner's right to pursue judicial

and administrative remedies.

Petitioner timely filed her Petition for Relief with the

Commission. On September 16, 2008, the Commission referred the

matter to the Division of Administrative Hearings for assignment

of an Administrative Law Judge to conduct a final hearing.

On November 26, 2008, Respondent filed a Motion for Summary

Final Judgment. The motion was denied in a ruling during the

proceeding.

At hearing, Petitioner testified on her own behalf.

Petitioner's Exhibits 1, 1a, 2, 2a, 3, 6 through 9, 10a, 10b,

and 11 through 17 were admitted into evidence. Respondent

presented no witnesses at the hearing. Respondent's Exhibits 1

through 4 were admitted into evidence and included the

deposition transcripts of Marty Boble, a planning and

development specialist with the City of Altamonte Springs;

Reggie Caruso, deputy building official with the City of

Altamonte Springs; and Petitioner.

No transcript of the final hearing was ordered.

Respondent's Post-Hearing Memorandum and a Proposed Recommended

Order were filed on December 15, 2008.

FINDINGS OF FACT

1. Petitioner, Bernice Buchanan, an 81-year-old female,

lives in a condominium at 700 Seabrook Court, Unit 103,

Altamonte Springs, Florida. The condominium unit was purchased

by Petitioner and is within the Key West Condominiums complex.

2. Respondent, Key West Condominium Association, Inc.

("Key West Association"), a not-for-profit corporation, is

responsible for the operation of Key West Condominiums, which

consists of 60 units.

3. Petitioner has a meniscus tear in her right knee,

arthritis in her right knee and right shoulder, and degenerative

discs in her lumbar and cervical spine.

4. As a result of the degenerative discs, there are no

ligaments between Petitioner's bones in the affected area,

thereby causing the degenerated discs to push on her muscles and

nerves. Moreover, because there are no ligaments in the

affected areas, Petitioner has a problem with balance and must

walk very slowly. Finally, because of Petitioner's degenerative

disc condition, Petitioner has severe pain when she walks, sits,

or lies down.

5. Petitioner's physician, John F. Ryan, M.D., submitted

documentation which stated that Petitioner is not allowed to

lift more than 15 pounds due to her degenerative discs and

severe knee pain. Also, Dr. Ryan indicated that because of the

severe pain in Petitioner's right knee, she is limited in

walking, even moderate distances.

6. Petitioner's degenerative disc condition and knee pain

are permanent disabilities.

7. Petitioner anticipates having surgery that may reduce

or alleviate the pain caused by the degenerative discs. She is

also contemplating having knee replacement surgery which should

help the right knee. However, unless and until Petitioner has

the surgeries, it is impossible to know if those procedures will

alleviate her pain and/or otherwise improve her impaired

mobility issues.

8. While surgery may possibly improve some of Petitioner's

medical conditions, that is not an option with regard to her

arthritis. Petitioner is not aware of any surgery or other

medical procedure that will improve and/or alleviate the pain

she is experiencing due to the arthritis in her knee and

shoulder. Furthermore, there is no evidence that any of her

physicians have recommended any such procedure.

9. Although Petitioner's ability to walk is impaired, she

does not presently use any walking devices such as a cane or

walker.

10. Petitioner's ability to drive is not impacted by her

medical conditions and associated physical impairments. In

fact, Petitioner regularly drives to places such as the grocery

store, church, and to visit family.

11. The Key West Condominium complex has three types of

parking spaces: (1) assigned garage spaces 1 ; (2) unassigned

uncovered non-handicap parking spaces ("regular parking

spaces"); and (3) unassigned uncovered handicap parking spaces

("handicapped parking spaces").

12. Petitioner has an assigned garage space which is

located in a bank of four garages. That assigned parking space

is about ten feet wide.

13. The regular parking spaces are not assigned and may be

used by homeowners, residents and visitors on a "first come,

first serve basis."

14. The handicap parking spaces are not assigned and may

be used by the homeowners and residents of Key West Condominiums

and their visitors who have appropriate handicap decals.

15. There is one handicap parking space located to the

left of the bank of garages where Petitioner's garage space is

located. Also, there are several regular parking spaces to the

right of that garage bank.

16. Because Petitioner's assigned garage is only ten feet

wide, it is difficult for her to enter and exit her small Toyota

sedan when it is parked in the garage. Nonetheless, provided

Petitioner does not have groceries or packages to remove from

her car, the garage space is "adequate." Due to the width of

Petitioner's assigned garage, when Petitioner parks her car in

that space, the car doors cannot be opened wide enough to allow

her to remove groceries or packages from her vehicle. Thus,

when Petitioner has groceries or packages to unload from her

vehicle, in order to unload them, she must park in a space other

than her assigned garage space.

17. When Petitioner has groceries and/or other packages to

unload and carry into her unit, she usually parks in a regular

parking space in front of and close to her condominium unit.

When Petitioner parks in the regular parking spaces, it is

easier for her to unload the groceries from her car and carry

them to her unit.

18. If all of the regular parking spaces in front of her

building are occupied by other vehicles, Petitioner has

sometimes double-parked behind those vehicles. In those

instances, Petitioner would unload the groceries or packages

from her car, take them into her condominium unit, and then

return to her car and park it in her assigned garage.

19. Petitioner no longer double parks behind vehicles

parked in the regular parking spaces when she has groceries

and/or packages to unload from her car and take to her

condominium. The reason is that Petitioner found that double

parking and walking behind parked vehicles to unload her

groceries was dangerous.

20. When Petitioner has groceries or packages to take into

her condominium and no regular parking spaces are available, she

must park across the street and wait until a space becomes

available. In such instances, Petitioner reported that she

sometimes had to wait for up to 25 minutes for an available

space.

21. Petitioner's decreased mobility and impaired ability

to walk, even moderate distances, and her lifting restrictions

significantly impair her ability to retrieve groceries and

packages from her car and carry them into her unit.

22. Petitioner's assigned garage is 47 feet and nine

inches from the front door of her unit.

23. The handicap space to the left of the garage bank is

90 feet from the front door of Petitioner's unit.

24. The regular parking space to the right of the garage

bank, which Petitioner sometimes uses, is 38 feet from

Petitioner's front door.

25. In a letter dated May 15, 2007, Petitioner requested

that the Key West Association provide her with a parking space

close to her unit marked "Handicapped Parking" and designated

only for her. Petitioner noted that she did not need space for

a wheelchair. Finally, Petitioner advised Key West Association

that the request was based on medical reasons.

26. At the time Petitioner wrote the May 15, 2007, letter,

there was a handicap parking space with the painted markings of

a handicap parking space. However, that handicap parking space

did not have a "handicap parking" sign designating that space as

such.

27. In her May 15, 2007, letter, Petitioner advised the

Key West Association that the handicap parking space referenced

in paragraph 29 would not meet her needs because it was too far

for her to carry her groceries.

28. In June 2007, the Key West Association Board of

Directors ("Board"), denied Petitioner's request for the regular

parking space closest to her unit to be designated as a

"handicap parking" space reserved for her use only. 2 Instead,

the Board directed Petitioner to use the handicap parking space

to the left of the garage bank. The Board also notified

Petitioner that it would reinstall the "Handicapped Parking"

sign" 3 at the above-referenced handicap parking space.

29. The Board did not designate the handicap parking space

for Petitioner's exclusive use. Therefore, it could be used by

any Key West Condominium homeowner or resident or their visitors

with a handicap decal.

30. The handicap parking space that the Board made

available for use by Petitioner is located between two garage

banks so that the handicap space is bordered on each side by a

wall of the abutting garage bank.

31. As noted above, the handicap parking space that the

Board told Petitioner to use is 90 feet from the front door of

Petitioner's condominium; this is 52 feet farther than the

regular parking space in front of Petitioner's building.

32. The Board's June 2007, denial letter expressed concern

about the cost of constructing the handicap parking space.

Additionally, the Board noted that construction of a new

handicap parking space would result in the loss of two

non-handicap parking spaces. (This was because two non-handicap

parking spaces were needed to construct one handicap parking

space.)

33. By letter dated September 12, 2007, Petitioner advised

the Key West Association that she was still having problems with

parking. Petitioner reiterated that the handicap parking space,

which the Board had opened for use (by re-installing the

handicap parking sign), was too far for her to carry her

groceries and other items (90 feet from the front door of her

unit). Petitioner also noted that she had the following

problems with the handicap parking space: (1) The handicap

parking space was often occupied by a vehicle with no handicap

decal; (2) Petitioner was required to exit her vehicle on the

side of the parking space next to the wall of the garage bank;

and (3) After exiting the handicap space, she could only access

the sidewalk to her unit by stepping over a curb into the grass

or walking around her car to the other side. 4

34. Based on the problems enunciated in her September 12,

2007, letter, Petitioner again requested a "handicapped parking

space closest to [her] building without having to walk in

between cars." Petitioner wanted the requested handicap parking

space to be for her exclusive use.

35. Along with Petitioner's letter was a note from her

physician, Dr. John Ryan, which supported her request for a

handicap parking space. Dr. Ryan's note stated, "[d]ue to her

[Petitioner's] medical condition, I request that [Petitioner] be

assigned a parking area closest to her building. . . . She

requires a handicap space."

36. There is no evidence that the Key West Association

ever responded in writing to Petitioner's September 12, 2007,

request or asked for additional information about her medical

condition.

37. Reggie Caruso, the deputy building official, is the

principal plan reviewer for new and large construction projects,

including condominium complexes, for the City of Altamonte

Springs, Florida. Mr. Caruso is familiar with the parking

requirements for condominium complexes, and his office enforces

the laws and regulations applicable thereto.

38. Unless otherwise exempt, condominium complexes are

required to have a certain number of handicap parking spaces.

However, except for the public areas, the Key West Association

has the discretion to place the handicap parking spaces wherever

it chooses and/or where such spaces are needed.

39. Section 553.5041, Florida Statutes (2008), 5 regulates

parking spaces for persons with disabilities (i.e., handicap

parking spaces) and applies to Key West Condominiums.

40. Subsection 553.5041(5)(c)1., Florida Statutes,

provides that: (1) handicap parking spaces be no less than 12

feet wide; (2) the parking access aisle be no less than five

feet wide and be placed adjacent to the handicap parking space;

and (3) the access aisle be part of an accessible route to the

building or facility entrance. Also see Sections 11-4.6.2(1)

and 11-4.6.3, Florida Building Code. 6

41. Subsection 553.5041(4), Florida Statutes, provides

that the number of "accessible parking spaces" (handicap parking

spaces) must comply with the parking requirements in Section

4.1.2(5)(a) of the Americans With Disabilities Act ("ADA")

Accessibility Guidelines. These requirements have been adopted

and are in Section 11-4.1.2(5)(a) of the Florida Building Code.

42. The number of handicap parking spaces in the Key West

Condominium complex complies with applicable law, if the

handicap parking space discussed below that does not meet

minimum legal requirements, is counted.

43. Subsection 553.5041(4)(c), Florida Statutes, provides

that "[t]he number of parking spaces for persons who have

disabilities must be increased on the basis of demonstrated and

documented need."

44. In or about mid-November 2008, Mr. Caruso inspected

the handicap parking space that the Board advised Petitioner to

use. That inspection revealed two areas in which that handicap

space and the adjacent access aisle were not in compliance with

Subsection 553.5041(5)(c)1., Florida Statutes, and the Florida

Building Code. 7

45. The first area of non-compliance involves the width of

the handicap parking space and adjacent access aisle. Here, the

handicap parking space, including the adjacent access aisle, is

tapered and has a width that ranges from 16 feet to 18 feet.

Accordingly, at certain points, the handicap parking space,

including the adjacent access aisle, is only 16 feet wide, not

17 feet, the prescribed minimum width.

46. During the inspection, Mr. Caruso observed that a

"fixed" building (a bank of garages) was on each side of the

handicap parking space, including access aisle. Thus,

Mr. Caruso determined that there is no reasonable way to change

the space so that the minimum width of the handicap parking

space and adjacent access aisle is 17 feet at all points as

prescribed in Subsection 553.5041(5)(c)1., Florida Statutes. 8

47. The second area of non-compliance concerns the

requirement that the access aisle be connected to an accessible

route.

48. During his inspection of the handicap parking space,

Mr. Caruso observed that there is no direct route from the

handicap parking space's adjacent access aisle to a sidewalk.

Instead, there is a five-inch high curb which obstructs the

accessible route. Consequently, the access aisle is not

connected to the access route (sidewalk) to the building in

which is located Petitioner's unit or any other building in the

complex.

49. Mr. Caruso testified credibly that to establish an

accessible route from the access aisle (adjacent to the handicap

parking space), part of the five-inch high curb would have to be

removed and the concrete would have to be extended from the

access aisle to the sidewalk.

50. The removal of the curb would result in compliance

with the requirement in Subsection 553.5041(5)(c)1., Florida

Statutes, that the access aisle connect with and is "part of an

accessible route to the building." Also, the removal of the

curb would make the space safe because persons using the space

would no longer have to step over the five-inch high curb to get

to the accessible route.

51. Even if the curb is removed, the parking space,

including access aisles, would still not be in compliance with

law because the space does not meet the minimum width

requirement of 17 feet prescribed in Subsection

553.5041(5)(c)1., Florida Statutes. Moreover, as noted above,

because the handicap parking space is bordered on each side of a

"fixed" building, it cannot reasonably be brought into

compliance.

52. Marty Boble is a planning and development review

specialist for the City of Altamonte Springs. In that position,

he determines compliance as it relates to the number of parking

spaces on-site.

53. In November 2008, Mr. Boble went to the Key West

Condominium complex and inspected the property, including the

above-referenced handicap parking space. He also reviewed the

Key West Condominium plans, which showed the buildings and

parking spaces in the complex.

54. The Florida Building Code requires the Key West

Condominium complex to have two parking spaces per dwelling.

Key West Condominium, which counts its garage spaces as parking

spaces, not only meets the requirement as to number of spaces

per unit, but exceeds it by 20 spaces.

55. To construct a new handicap parking space that

complies with the legally prescribed width requires that two

non-handicap parking spaces be used. Thus, the result of

constructing a new handicap parking space would result in the

loss of two existing regular parking spaces. Nonetheless, Key

West Association would still be in compliance with the Code

requirement of two parking spaces per unit because it currently

has 20 more spaces than required. 9

56. Petitioner's request for a handicap parking space near

her condominium unit is reasonable. In light of her impaired

ability to walk, even moderate distances, and her lifting

restrictions, Petitioner is unable to retrieve groceries and

other packages from her vehicle and take them to her unit.

Without an accommodation for her handicap, Petitioner cannot

have an equal opportunity to use and enjoy her condominium unit.

57. In this case, Petitioner has a disability which

significantly impairs her ability to walk. Thus, Respondent is

required to provide her with a reasonable accommodation.

58. As of the date of this proceeding, Respondent has not

provided any accommodation to Petitioner.

59. The reasonable accommodation that Respondent should

provide is to convert non-handicap or regular parking spaces

into a handicap parking space. This remedy is required due to

the non-compliance issue of the handicap space which cannot be

corrected. 10 By converting two non-handicap or regular parking

spaces to one handicap parking space, Respondent will be able to

construct and provide a handicap parking space that complies

with applicable law and regulations.

60. The accommodation offered by the Key West Association

and its Board is not a reasonable one. As noted above, the

handicap parking space offered to Petitioner did not comply with

the provisions of Subsection 553.5041(5)(c)1., Florida Statutes.

Moreover, the Key West Association failed to take steps to bring

that parking space into partial compliance and to make it safe

for Petitioner's use, although it had more than a year to do so.

Finally, even though it was clearly established that Petitioner

needed a space closer to her unit, the Key West Association and

its Board offered her a space that was not only unsafe and

non-compliant with law, but was further away from her unit.

61. The Declaration of Condominium for Key West provides

that material alterations of common elements, such as regular

parking spaces, require approval of two-thirds of the owners at

a properly noticed meeting. Despite the Key West Association's

position, use of two regular parking spaces to construct a

handicap space is a material alteration, it never called a

meeting for that purpose.

CONCLUSIONS OF LAW

62. The Division of Administrative Hearings has

jurisdiction over the subject matter of and the parties to this

proceeding. §§ 120.569 and 120.57(1), Fla. Stat.

63. The FFHA is set forth in Sections 760.20 through

760.37, Florida Statutes.

64. Section 760.23, Florida Statutes (2007), part of the

FFHA, provides in pertinent part:

(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:

(b) A person residing in or intending to

reside in that dwelling after it is sold,

rented, or made available;

* * *

(9) For purposes of subsections (7) and

(8), discrimination includes:

* * *

(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. [11]

65. Section 760.22, Florida Statutes, provides in relevant

part:

(7) "Handicap" means:

(a) A person has a physical or mental

impairment which substantially limits one or

more major life activities, or he or she has

a record of having, or is regarded as

having, such physical or mental impairment;

or

(b) A person has a developmental disability

as defined in s. 393.063.

66. The Florida Legislature essentially codified the U.S.

Fair Housing Amendments Act of 1988 ("FHAA"), when it enacted

the FFHA. Dornbach v. Holley , 854 So. 2d 211, 213 (Fla. 2d DCA

2002). Therefore, in considering the FFHA, the application of

the FHAA by the federal courts is instructive and persuasive.

Id. The definition of "handicap," as defined in the FFHA, is

virtually identical to those found in the FHAA, 42 U.S.C.

Section 3602(h) (defining "handicap"); the ADA, 42 U.S.C.

Section 12102(2)(A) (defining "disability"); and the

Rehabilitation Act, 29 U.S.C. Section 705(9)(B) (defining

"disability"). Under the term "handicap" or "disability," each

of these laws provides relief only to a person with an

impairment that substantially limits a major life activity.

See § 760.22(7), Fla. Stat. and Id. at 1577-78; see also Godwin

v. State , 593 So. 2d 211, 215, 219 (Fla. 1992).

67. The United States Supreme Court has addressed the

definition of "disability" in the context of a case brought

pursuant to the ADA. Sutton v. United Airlines , 527 U.S. 471,

119 S. Ct. 2139, 2145 (1999), also relied on the definitions of

"substantially limits" and "major life activities" contained in

the regulations of the Equal Employment Opportunities

Commission, as follows:

The term "substantially limits" means, among

other things, "[u]nable to perform a major

life activity that the average person in the

general population can perform;" or

"[s]ignificantly restricted as to the

condition, manner, or duration under which

an individual can perform a particular major

life activity as compared to the condition,

manner, or duration under which the average

person in the general population can perform

that same major life activity" [Citation

omitted.] Finally, "[m]ajor [l]ife

[a]ctivities means functions such as caring

for oneself, performing manual tasks,

walking, seeing, hearing, speaking,

breathing, learning, and working."

[Citation omitted.]

Sutton , 119 S. Ct. at 2145.

68. Petitioner has the burden of proving by a

preponderance of the evidence that Respondents violated the

FFHA. See §§ 760.34(5) and 120.57(1)(j), Fla. Stat. (2007).

69. To establish a prima facie case of housing

discrimination, Petitioner must show:

a) that she suffers from a handicap;

b) that Respondents knew of the handicap;

c) that an accommodation of the handicap

was necessary to afford Petitioner an

equal opportunity to use and enjoy the

housing in question; and

d) Respondent refused to make such an

accommodation.

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

1380 (9th Cir. 1997); Schanz v. Village Apartments , 998 F. Supp.

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

70. Reasonable accommodation claims like this one are

analyzed under a burden-shifting analysis. Therefore, if

Petitioner meets her burden, the Key West Association must show

that the requested accommodation is unreasonable. 12

71. Petitioner established that she is handicapped within

the meaning of the FFHA. The credible, persuasive and

undisputed evidence established that as due to her medical

conditions--degenerative discs and arthritis—-Petitioner has

decreased mobility and is substantially limited in her ability

to walk, as well as the distance she can walk. The undisputed

evidence also established that the medical conditions which

cause Petitioner's decreased mobility and ability to walk are

permanent disabilities.

72. The evidence established that Respondent knew of

Petitioner's handicap. The undisputed evidence established that

Petitioner first notified Respondent, in writing, of her

handicap in May 2007. The undisputed evidence also established

that Petitioner again notified Respondent of her handicap and

submitted a supporting note from her physician.

73. Petitioner has established that an accommodation of

her handicap is necessary to afford her an equal opportunity to

use and enjoy the condominium unit in which she lives.

74. The credible and undisputed evidence established that:

(1) Petitioner is significantly impaired in her ability to walk

and is limited in her ability to lift groceries and other

packages from her car and to carry them to her unit; (2) the

narrow width of Petitioner's currently assigned garage space

makes it difficult for her to get out of her car and impossible,

or nearly impossible, for her to then retrieve groceries and

other packages from her car; and (3) because of her impaired

ability to walk, Petitioner cannot walk even moderate distances.

75. The undisputed evidence established that due to her

impaired ability to walk, it is very difficult for Petitioner to

perform the routine task of removing her groceries and other

packages from her car and carrying them to her condominium unit.

76. To accommodate her handicap, Petitioner requested a

handicap parking space close to her condominium that was

designated for her use. § 553.5041(5)(c)1., Fla. Stat.

77. There is no disputed evidence established that

Respondent denied Petitioner's request for an accommodation.

However, merely denying a requested accommodation does not

establish discrimination under the FFHA.

78. The U.S. Supreme Court has decided that discrimination

under the FFHA, 42 U.S.C. Section 3601, et seq. , includes a

refusal to make a reasonable accommodation for handicapped

persons. Loren v. Sasser , 309 F.3d 1296 (11th Cir. 2002).

Whether a requested accommodation is reasonable is highly

fact-specific, requiring a case-by-case determination. Id. at

1302.

79. Based on the facts in this case, it is concluded that

Petitioner's requested accommodation is a reasonable one.

80. Here, it is undisputed that in June 2007, when

Respondent denied Petitioner's request for an accommodation, it

"re-installed" the handicap parking sign on a space and advised

her that she could use that space. The evidence established

that in September 2007, Petitioner advised Respondent, in

writing, of several problems she had with the handicap parking

space. Two of those problems established by the evidence and

deemed to be relevant are that the parking space was: (1) too

far for her to walk (90 feet from the front door of her unit);

and (2) unsafe in that she had to step over a five-inch high

curb to get to the sidewalk. That these problems existed was

established by credible, persuasive, and undisputed evidence.

81. The evidence established that as a result of the

five-inch curb, the access aisle and access route of the

handicap parking space did not comply with the legally

prescribed requirements. Moreover, the evidence establishes

that the five-inch curb created an unsafe condition for

handicapped users of the space. The evidence showed that the

unsafe situation created by the five-inch curb was obvious and

could be corrected. Yet, as of the date of this proceeding,

which was more than a year after Petitioner reported the

problem, Respondent had taken no action to correct that

situation.

82. The evidence established that the width of the parking

space does not comply with the legal requirements for handicap

parking spaces. The evidence established that this area of

non-compliance cannot be corrected, because the space is

bordered on each side by a fixed building.

83. Petitioner requires space that is wide enough to allow

her to get out of her car without difficulty and to remove her

groceries and other packages from her car. Due to her impaired

ability to walk and her inability to walk even moderate

distances, Petitioner needs a parking space that is close to her

unit. See Jankowski Lee and Associates v. Cisneros , 91 F.3d

891, 895 (7th Cir. 1996) (holding that where tenant needed

larger space close to apartment and had problems finding parking

space, it was reasonable accommodation to provide assigned

space).

84. The FFHA requires the Key West Association to make

reasonable accommodations in its rules and practices so as to

enable Petitioner to use and enjoy her dwelling. As discussed

above, Petitioner is unable to remove groceries or other

packages from her car when she parks in her ten-foot wide

assigned garage space, she is unable to walk, even a moderate

distance due to her impaired ability to walk, and spaces near

her unit are often not available. Based on these facts, it is

clear that Petitioner needs a parking space that is close to her

unit and one that is wide enough to allow her to remove her

groceries and other packages from her vehicle. See Shapiro and

U.S. v. Cadman Towers, Inc. , 51 F.3d 328, 335 (2nd Cir. 1995)

(finding that in view of tenant's difficulties, nearby parking

was a substantial factor in Shapiro's use and enjoyment of her

dwelling.

85. The undisputed evidence established that due to her

decreased mobility and ability to walk, she is only able to walk

moderate distances. Given Petitioner's impaired ability to

walk, the accommodation offered by Respondent (a handicap

parking space that is 90 feet from her unit) is not a reasonable

one.

86. In light of the specific facts, Petitioner's request

for a handicap parking space close to her unit and designated

for her use is a reasonable accommodation. 13

87. Pursuant to Subsection 760.23(9)(b), Florida Statutes,

quoted above, it is discriminatory and illegal to refuse to make

a reasonable accommodation in rules, policies, practices or

services, when an accommodation may be necessary to afford an

equal opportunity to use and enjoy a dwelling.

88. Respondent makes several arguments to justify its

decision to deny Petitioner's request. All have been

considered, but are not persuasive.

89. First, Respondent contends that it would lose two

regular parking spaces if it constructed a new handicap parking

space. This is because two regular spaces are needed to

construct a handicap space that complies with the law. Because

Key West Association has 20 spaces more than is required by law,

there is no harm to Respondent by losing two regular parking

spaces to construct a needed handicap parking space. 14

90. Second, the Key West Association contends that it has

no authority to convert a non-handicap parking space into a

handicap parking space. According to the Key West Association,

because the uncovered non-handicap parking spaces are part of

the common elements of the condominium complex, to convert such

space(s) to a handicap parking space requires a two-thirds vote

of the community. Assuming that this position has merit, there

is no evidence that Respondent has called for such a vote, even

though Petitioner's request for an accommodation initially was

made in 2007. 15

91. Finally, Respondent contends that the Key West

Condominiums has the required number of handicap parking spaces.

Implicit in this position is that Respondent is not required to,

and should not have to, construct any additional handicap

parking spaces. Respondent's position disregards the

requirement in Subsection 553.5041(4)(c), Florida Statutes, that

the number of handicap parking spaces must be increased based on

demonstrated and documented need. Also, Respondent counts as

one of its required handicap parking spaces, a space which the

evidence clearly shows does not comply with Subsection

553.5041(5)(c)1., Florida Statutes. Because, as the evidence

established, one of Key West Condominium's handicap parking

spaces does not meet the legally prescribed requirements, it is

doubtful that such a space should be counted to establish that

the Key West Condominiums have the required number of handicap

spaces.

92. By refusing to make a reasonable accommodation for

Petitioner, Respondent discriminated against her under the FFHA.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of

Law, it is

RECOMMENDED that the Florida Commission on Human Relations

enter a final order:

1. Finding that Respondent, Key West Condominium

Association, Inc., discriminated against Petitioner, Bernice

Buchanan, under the FFHA by refusing to make a reasonable

accommodation for her handicap;

2. Ordering Respondent to cease the discriminatory

practice; and

3. Ordering Respondent to provide a handicap parking space

close to Petitioner's condominium unit.

DONE AND ENTERED this 29th day of May, 2009, in

Tallahassee, Leon County, Florida.

S

CAROLYN S. HOLIFIELD

Administrative Law Judge

Division of Administrative Hearings

The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-3060

[phone]

Fax Filing [phone]

www.doah.state.fl.us

Filed with the Clerk of the

Division of Administrative Hearings

this 29th day of May, 2009.

ENDNOTES

1/ As part of the purchase of certain units, including the one

owned by Petitioner, specific assigned garage parking spaces are

included. Thus, when such a unit is sold, the assigned garage

space for that unit is transferred to the purchaser/new owner.

2/ In its letter, the Board stated that Petitioner's request "to

move the [handicap] space closer to her unit" was considered,

but it was determined that it was not feasible at that time.

According to the letter, "[t]he primary reason is the loss of

two valuable spaces in order to accommodate the single

handicapped space that would only be available to a select few

that have 'Handicapped Permits'."

3/ No evidence was presented as to the reason the "Handicapped

Parking" sign had been previously removed.

4/ Petitioner noted that during the two weeks after the Board

denied her request for a handicap space, there were non-handicap

parking spaces available near her unit in which she parked.

According to Petitioner, after that two-week period, those

non-handicap parking spaces were often occupied and, thus, not

available. Petitioner's letter stated that when all the spaces

near her unit were occupied, she had to park in spaces that were

not close to her unit or in her garage and wait until a space

became available so that she could unload her groceries.

5/ All statutory references are to Florida Statutes (2008),

unless otherwise noted.

6/ Section 11-4.6.2(1) provides:

Each parking space must be no less than

12 feet (3658 mm) wide.

(1) All spaces must be located on an

accessible route no less than 44 inches

(1118 mm) wide so that users will not be

compelled to walk or wheel behind parked

vehicles. . . .

Section 11-4.6.3 provides:

Parking access aisles must be no less than

5 feet (1524 mm) wide and must be part of an

accessible route to the building or facility

entrance. . . .

7/ Mr. Caruso conducted the inspection in preparation for his

deposition which was taken on November 21, 2008. Until that

time, he did not know that this condition existed.

8/ To correct the problem and bring the handicap parking space

into compliance with Subsection 553.5041(5)(c)1., Florida

Statutes, would require that the garage banks on either side of

the parking space or parts thereof be torn down.

9/ Mr. Boble testified that to the extent there is a shortage of

parking spaces, it is because homeowners are using their

assigned garage space for storage and not parking. According to

the Declaration of Condominiums, the garage spaces should be

used for their intended purposes--parking.

10/ The buildings on both sides of the parking spaces make it

impossible to extend the width of the parking space and adjacent

access aisle.

11/ This definition is almost identical to 42 U.S.C. Section

3604(f)(3)(B).

12/ Sharpvisions, Inc. v. Borough of Plum, et al. , 475 F.Supp.2d

514, 526 (W.D. Pa. 2007).

13/ An example of a "reasonable accommodation is provided in

24 C.F.R. Section 100.204(b), Example 2, a regulation

promulgated by HUD. The example set forth in that provision is

as set forth:

Reasonable accommodations.

* * *

(b) The application of this section may be

illustrated by the following examples:

Example (2): Progress Gardens is a 300 unit

apartment complex with 450 parking spaces

which are available to tenants and guests of

Progress Gardens on a first come first

served basis. John applies for housing in

Progress Gardens. John is mobility impaired

and is unable to walk more than a short

distance and therefore requests that a

parking space near his unit be reserved for

him so he will not have to walk very far to

get to his apartment. It is a violation of

Sec. 100.204 for the owner or manager of

Progress Gardens to refuse to make this

accommodation. Without a reserved space,

John might be unable to live in Progress

Gardens at all or, when he has to park in a

space far from his unit, might have great

difficulty getting from his car to his

apartment unit. The accommodation therefore

is necessary to afford John an equal

opportunity to use and enjoy a dwelling.

The accommodation is reasonable because it

is feasible and practical under the

circumstances.

14/ Respondent presented no evidence as to why this

accommodation was an unreasonable one (i.e., cost or shortage of

parking spaces).

15/ Respondent implies that it is Petitioner's responsibility to

seek the unit owners' consent for her requested accommodation.

COPIES FURNISHED :

Larry Kranert, 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

Frank A. Ruggieri, Esquire

Larsen & Associates, P.A.

300 South Orange Avenue

Suite 1200

Orlando, Florida 32801

Bernice F. Buchanan

700 Seabrook Court, Unit 103

Altamonte Springs, Florida 32713

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.