09-000396 Florida Commission On Human Relations On Behalf Of Rose Marie Owens vs. Longboat Harbour Owners Association, Inc. Status: Closed Recommended Order on Friday, June 26, 2009.

Summary: The evidence does not make a prima facie showing that a condominium resident who requested an accommodation to keep a comfort cat in her residence has a handicap, and the Commission should dismiss the petition for relief.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

FLORIDA COMMISSION ON HUMAN )

RELATIONS ON BEHALF OF ROSE )

MARIE OWENS, )

)

Petitioner, )

)

vs. ) Case No. 09-0396

)

LONGBOAT HARBOUR OWNERS )

ASSOCIATION, INC., )

)

Respondent. )

)

RECOMMENDED ORDER

Administrative Law Judge (ALJ) Daniel Manry conducted the

final hearing of this case for the Division of Administrative

Hearings (DOAH) on May 27, 2009, in Sarasota, Florida.

APPEARANCES

For Petitioner: Ebony D. Tucker, Esquire

Florida Commission on Human Relations

2009 Apalachee Parkway, Suite 200

Tallahassee, Florida 32301

For Respondent: Scott H. Jackman, Esquire

Cole, Scott & Kissane, P.A.

Bridgeport Center, Suite 750

5201 West Kennedy Boulevard

Tampa, Florida 33609

STATEMENT OF THE ISSUES

The issues are whether Respondent engaged in a

discriminatory housing practice, in violation of the Florida

Fair Housing Act, Sections 760.20 through 760.37, Florida

Statutes (2007), 1 by refusing to grant an accommodation which

would have allowed Ms. Rose Marie Owens to keep a comfort cat in

her condominium, and, if so, the amount of damages suffered by

Ms. Owens.

PRELIMINARY STATEMENT

On March 25, 2008, Ms. Owens filed a Housing Discrimination

Complaint (Complaint) with the United States Department of

Housing and Urban Development (HUD). The Complaint alleges that

Respondent discriminated against her on the basis of an alleged

handicap in violation of state and federal law.

The Florida Commission on Human Relations (Commission)

investigated the Complaint. On July 28, 2008, the Commission

issued a Notice of Determination of Reasonable Cause (Reasonable

Cause Determination) to believe a discriminatory housing

practice had occurred in violation of Subsection 760.23(a).

Ms. Owens elected to have the Commission act on her behalf

pursuant to Subsection 760.35(3)(a) and Florida Administrative

Code Rule 60Y-7.001(8)(b)7. On January 26, 2009, the Commission

filed a Petition for Relief and referred the matter to DOAH to

conduct an administrative hearing.

At the hearing, Petitioner presented the testimony of three

witnesses and submitted 11 exhibits for admission into evidence.

Respondent called two witnesses and submitted one exhibit for

admission into evidence.

The identity of the witnesses and exhibits, and the rulings

regarding each, are reported in the Transcript of the hearing

filed with DOAH on June 5, 2009. Petitioner and Respondent

timely filed their respective Proposed Recommended Orders on

June 15, 2009.

FINDINGS OF FACT

1. Ms. Owens was a resident owner of a condominium in

Longboat Harbour Condominiums (Longboat Harbour) during the

alleged unlawful housing practice. Ms. Owens was a seasonal

resident of the condominium from sometime in July 1987 through

March 2007. Ms. Owens still owns the condominium at Longboat

Harbour with Mr. Hank Airth, her husband. However, Ms. Owens

and Mr. Airth purchased a second condominium after the alleged

unlawful housing practice, and Ms. Owens and Mr. Airth no longer

reside in the Longboat Harbour condominium.

2. Longboat Harbour is a covered, multifamily dwelling

unit within the meaning of Subsection 760.22(2). The Longboat

Harbour condominium owned by Ms. Owens and Mr. Airth was a

dwelling defined in Subsection 760.22(4) at the time of the

alleged unlawful housing practice.

3. Respondent is the entity responsible for implementing

the rules and regulations of the Longboat Harbour condominium

association. Relevant rules and regulations prohibit residents

from keeping cats in their condominiums.

4. Sometime in May 2006, Ms. Owens requested Respondent to

permit her to keep a comfort cat, identified in the record as

“KPooh,” as an accommodation for an alleged handicap.

Respondent refused the requested accommodation, and this

proceeding ensued.

5. In order to prevail in this proceeding, Petitioner must

first show that Ms. Owens is handicapped. Neither Petitioner

nor Ms. Owens made a prima facie showing that Ms. Owens is

handicapped within the meaning of Subsection 760.22(7).

6. Cross-examination of Ms. Owens showed that Ms. Owens

suffers from a cardiovascular ailment, osteoarthritis, and a

trigeminal nerve condition. Surgery performed sometime in the

1990s improved the nerve condition. After the surgery, all of

the medical conditions of Ms. Owens have been successfully

treated with various medications, with no significant

modification of the medications before and after Ms. Owens

acquired KPooh in 2000.

7. The testimony of Ms. Owens during cross-examination

shows that Ms. Owens has never been diagnosed as suffering from

depression. Nor does that testimony show that Ms. Owens has

ever been diagnosed with panic disorders or panic attacks.

Finally, the testimony of Ms. Owens during cross-examination

shows that Ms. Owens has never been diagnosed with an emotional

or psychiatric condition.

8. A preponderance of the evidence does not show that any

of the health problems suffered by Ms. Owens substantially

limits one or more major life activities. Nor does Respondent

regard Ms. Owens as having a physical or mental impairment.

9. Ms. Owens and others testified concerning the medical

conditions of Ms. Owens. None of that testimony showed that the

medical conditions substantially limit one or more major life

activities for Ms. Owens.

10. Mr. Airth drives the vehicle for Ms. Owens most of the

time and prepares most of the meals at home. However, Mr. Airth

performs both life activities because he wishes to perform them.

Neither Mr. Airth nor Ms. Owens testified that Ms. Owens is

unable to perform either life activity.

11. Part of the therapy medically prescribed for Ms. Owens

is a special bicycle for exercises that will improve some of the

medical conditions of Ms. Owens. However, as Ms. Owens

testified, “I have not submitted to that . . . [because] I hate

exercise.” Ms. Owens admits that exercise therapy would improve

some of her medical conditions.

12. Ms. Owens first took possession of KPooh in 2000.

KPooh was a stray cat that showed up at the primary residence of

Ms. Owens and Mr. Airth in Maryland. KPooh was hungry.

Ms. Owens gave KPooh food and adopted KPooh.

13. Petitioner attempts to evidence the alleged handicap

of Ms. Owens, in relevant part, with two letters from the

primary care physician for Ms. Owens. Each letter was admitted

into evidence without objection as Petitioner’s Exhibits 3

and 4.

14. The first letter, identified in the record as

Petitioner’s Exhibit 3, is dated May 4, 2006. The text of the

letter states in its entirety:

Mrs. Owens has been a patient of mine since

1990. I know her very well. It is my

opinion that she would suffer severe

emotional distress if she were forced to get

rid of her cat. I request an exception to

the “No Pet” rule in her particular case. I

understand that the cat is confined to her

home, and that it is not allowed outside to

disturb other residents.

Petitioner’s Exhibit 3 (P-3).

15. The first letter contains no diagnosis of an existing

physical or mental impairment. Nor does the first letter

evidence a limitation of a major life activity that is caused by

a physical or mental impairment.

16. The first letter opines that Ms. Owens, like many pet

owners, would suffer severe emotional distress if she were

required to get rid of her pet. However, the letter contains no

evidence that the potential for severe emotional distress, if it

were to occur, would substantially limit one or more major life

activities for Ms. Owens.

17. The second letter, identified in the record as

Petitioner’s Exhibit 4, is dated January 2, 2007. The text of

the letter consists of the following three paragraphs:

Mrs. Rose Marie Owens is my patient. She

has been under my care since 1990. I am

very familiar with her history and with her

functional limitations imposed by her

medical conditions. She meets the

definition of disability under the various

Acts passed by the Congress of the United

States since 1973.

Mrs. Owens has certain limitations related

to stress and anxiety. In order to help

alleviate these limitations, and to enhance

her ability to live independently, and to

use and enjoy fully the unit she owns at

Longboat Harbour Condominium, I have

prescribed her cat, K-Pooh, as an emotional

support animal. This should assist Mrs.

Owens to cope with her disability.

I am familiar with the literature about the

therapeutic benefits of assistance animals

for people with disabilities. Should you

have questions concerning my recommendation

for an emotional support animal for

Mrs. Owens, please contact me in writing.

P-4.

18. The second letter does not identify a specific

physical or mental impairment. The letter does not disclose

what health conditions comprise Ms. Owens “medical conditions.”

The letter does not describe the “functional limitations” that

the doctor concludes, as a matter of law, satisfy the legal

definition of a disability. Nor does the letter specify what

major life activities are limited by the patient’s medical

conditions.

19. The second letter opines that KPooh will enhance the

ability of Ms. Owens to live independently. The letter does not

opine that KPooh is necessary for Ms. Owens to live

independently. There is no evidence that KPooh is trained as a

service animal.

20. The two letters from the primary care physician of

Ms. Owens are conclusory and invade the province of the trier-

of-fact. The two letters do not provide specific and precise

factual accounts of the medical conditions of Ms. Owens and the

limitations that those conditions impose on major life

activities.

21. The two letters deprive the fact-finder of the

opportunity to review and evaluate the specific and precise

facts underlying the medical and legal opinions reached by the

doctor. The two letters deprive the ALJ of the opportunity to

independently decide the legal significance of any medical

findings, which are not disclosed in either of the letters. 2

22. Petitioner called as one of its witnesses a member of

the Board of Directors (Board) for Respondent who had

recommended that the Board approve the accommodation requested

by Ms. Owens. Petitioner presumably called the witness, in

relevant part, to bolster the two letters from the treating

physician for Ms. Owens. The witness testified that his

recommendation placed great weight on the fact that the doctor

who authored the two letters is a psychiatrist. The undisputed

fact is that the doctor specializes in internal medicine, not

psychiatry.

23. Petitioner attempted to show that Respondent’s stated

reasons for denial of the accommodation were a pretext.

Petitioner relied on evidence that arguably showed Respondent

did not adequately investigate the alleged handicap of Ms. Owens

before denying her request for an accommodation.

24. Respondent made adequate inquiry into the alleged

handicap when Ms. Owens requested an accommodation. Respondent

requested a letter from the treating physician, which resulted

in the letter that became Petitioner’s Exhibit 3. Finding that

letter less than instructive, Respondent requested a second

letter that became Petitioner’s Exhibit 4. Respondent properly

determined that letter to be inadequate.

25. In any event, this proceeding is not an appellate

review of the past conduct of Respondent. This proceeding is a

de novo proceeding. Counsel for Respondent fully investigated

the medical conditions and alleged handicap of Ms. Owens prior

to the final hearing. The investigation included pre-hearing

discovery through interrogatories and requests for medical

records.

CONCLUSIONS OF LAW

26. DOAH has jurisdiction over the subject matter of and

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

120.569, and 120.57(1), Fla. Stat. (2008). DOAH provided the

parties with adequate notice of the final hearing.

27. 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).

28. For reasons stated in the Findings of Fact, Petitioner

failed to make a prima facie showing that Ms. Owens is

handicapped. Petitioner’s focus on the issue of whether

Respondent adequately investigated the alleged handicap before

denying the request for an accommodation is misplaced. The

fact-finder does not reach the issue of alleged pretext until

Petitioner makes a prima facie showing of discrimination.

Without evidence establishing a handicap, there is no prima

facie showing of discrimination, and the alleged pretext is

moot.

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 26th day of June, 2009, 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]

Fax Filing [phone]

www.doah.state.fl.us

Filed with the Clerk of the

Division of Administrative Hearings

this 26th day of June, 2009.

ENDNOTES

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

Florida Statutes (2007), unless otherwise stated.

2/ The opinion that the “medical conditions” and “functional

limitations” of Ms. Owens satisfy the legal definition of a

disability is a legal opinion that exceeds the scope of the

doctor’s expertise.

COPIES FURNISHED:

Scott H. Jackman, Esquire

Cole, Scott & Kissane, P.A.

Bridgeport Center, Suite 750

5201 West Kennedy Boulevard

Tampa, Florida 33609

Lawrence F. Kranert, Jr., General Counsel

Florida Commission on Human Relations

2009 Apalachee Parkway, Suite 200

Tallahassee, Florida 32301

Denise Crawford, Agency Clerk

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.