09-000567 Lewis Core vs. Embassy House Association, Inc. Status: Closed Recommended Order on Thursday, June 25, 2009.

Summary: Respondent failed to show that revocation of the accommodation for a handicapped person to keep support dog in his condominium is reasonable.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

LEWIS CORE, )

)

Petitioner, )

)

vs. ) Case No. 09-0567

)

EMBASSY HOUSE 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 13, 2009, in Sarasota, Florida.

APPEARANCES

For Petitioners: Lewis Core, pro se

770 Palm Avenue, No. 1002

Sarasota, Florida 34236

For Respondents: Yueling E. Lee, Esquire

Cole, Scott & Kissane, P.A.

Bridgeport Center, Suite 750

5201 West Kennedy Boulevard

Tampa, Florida 33609

STATEMENT OF THE ISSUE

The issue is whether Respondent engaged in a discriminatory

housing practice, in violation of the Florida Fair Housing Act,

Sections 760.20 through 760.37, Florida Statutes (2008), 1 by

revoking an accommodation which allowed Petitioner to have a

support dog in his condominium on the alleged ground that the

support dog presents a health hazard for Petitioner’s

neighboring condominium resident.

PRELIMINARY STATEMENT

On October 26, 2008, 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

January 16, 2009. Petitioner requested an administrative

hearing by filing a Petition for Relief (Petition) with the

Commission on January 29, 2009. The Commission referred the

Petition to DOAH to conduct an administrative hearing.

At the hearing, Petitioner testified, presented the

testimony of one other witness, and submitted no exhibits for

admission into evidence. Respondent called one witness and

submitted no exhibits for admission into evidence.

The identity of the witnesses and the rulings regarding

each are reported in the Transcript of the hearing filed with

DOAH on May 28, 2009. Respondent filed its Proposed Recommended

Order (PRO) on June 9, 2009. Petitioner did not file a PRO.

FINDINGS OF FACT

1. Petitioner is a resident owner of a condominium in

Embassy House Condominiums (Embassy House). Embassy House is a

covered, multifamily dwelling unit within the meaning of

Subsection 760.22(2). Petitioner’s condominium is a dwelling

defined in Subsection 760.22(4).

2. Respondent is the entity responsible for implementing

the rules and regulations of the condominium association.

Relevant rules and regulations prohibit residents from keeping

dogs in their condominiums.

3. Sometime after July 17, 2008, Respondent granted

Petitioner’s written request to keep a support dog in his

condominium as an accommodation based on Petitioner’s handicap.

Respondent does not dispute that Petitioner is a handicapped

person within the meaning of Subsection 760.22(7). Petitioner’s

handicap includes cancer and depression.

4. After Respondent granted permission for Petitioner to

keep a support dog in his condominium, Petitioner purchased a

small dog that weighs less than 15 pounds. Respondent now

proposes to revoke permission for Petitioner to keep the support

dog.

5. The sole grounds for the proposed revocation is that

the female resident of the condominium adjacent to Petitioner’s,

identified in the record as Ms. Madeline O’Connell, allegedly is

allergic to pet dander. A preponderance of the evidence does

not support a finding that the support dog presents a health

hazard to Ms. O’Connell.

6. Neither Ms. O’Connell nor her physician, who is not

identified in the record, testified. The admitted “sole basis”

of Respondent’s position is a note from an unidentified, alleged

physician that Respondent did not submit for admission into

evidence. Respondent identified the note through the testimony

of a lay witness, but never submitted the note for admission

into evidence.

7. The lay witness for Respondent identified the note as

the note provided to him by Ms. O’Connell. The remainder of the

testimony of the lay witness consists of statements by

Ms. O’Connell to the lay witness concerning the alleged allergy

of Ms. O’Connell.

8. If the evidence were to show that Ms. O’Connell is

allergic to pet dander, the support dog is a breed that does not

have dander. The support dog is hypoallergenic.

9. If the evidence were to show that the support dog were

not hypoallergenic, adequate measures have been implemented to

protect Ms. O’Connell from any threat to her health. The air

conditioning vents that feed cool air from Petitioner’s

condominium into the common lobby for the two condominium units

have been sealed. The interior of the condominium units are

cooled by separate air conditioning units.

10. The trier of fact finds the paucity of testimony

concerning the alleged health hazard to Ms. O’Connell to be less

than credible and persuasive. Ms. O’Connell makes no effort to

protect herself from exposure to the support dog. On at least

three occasions, Ms. O’Connell voluntarily exposed herself to

the support dog to make confrontational comments to Petitioner

about the support dog.

CONCLUSIONS OF LAW

11. 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). DOAH provided the parties with adequate

notice of the final hearing.

12. 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).

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

presented a prima facie case that the proposed revocation of an

accommodation is an unfair housing practice. It is undisputed

that Petitioner is handicapped within the meaning of

Subsection 760.22(7).

14. Respondent did not show by a preponderance of the

evidence that the proposed revocation of the accommodation is

reasonable. The alleged allergy of Ms. O’Connell is not

supported by a preponderance of the evidence.

15. Respondent admittedly relies solely on a note

allegedly obtained by Ms. O’Connell from an unidentified person

said to be a physician. The failure of Respondent to submit the

note for admission into evidence deprived Petitioner of the

opportunity to object to its admissibility and to cross-examine

the document. Even if Respondent were to have submitted the

document for admission into evidence, Petitioner would have been

deprived of the opportunity to cross-examine any conclusions

reached by the author of the note.

16. The lay witness for Respondent identified the note as

the note that Ms. O’Connell had given to the witness. There is

no evidence that the lay witness conferred with the author of

the note or has any first-hand knowledge of the alleged allergy

of Ms. O’Connell.

17. Neither Ms. O’Connell nor the author of the note was

present at the final hearing for Petitioner to cross-examine.

Hearsay evidence is not sufficient to support a finding of fact.

§ 120.57(1)(c).

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of

Law, it is

RECOMMENDED that the Commission enter a final order

upholding the Petition for Relief and dismissing the proposed

revocation of the accommodation for Petitioner to keep a support

dog in his condominium.

DONE AND ENTERED this 25th 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 25th day of June, 2009.

ENDNOTE

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

Florida Statutes (2008), unless otherwise stated.

COPIES FURNISHED :

Jennifer Fowler-Hermes, Esquire

Kunkel Miller and Hament

Orange Professional Centre

535 North Orange Avenue, Suite 200

Sarasota, Florida 34236

Lewis Core

770 South Palm Avenue, No. 1002

Sarasota, Florida 34236

Yueling E. Lee, Esquire

Cole, Scott & Kissane, P.A.

Bridgeport Center, Suite 750

5201 West Kennedy Boulevard

Tampa, Florida 33609

Denise Crawford, Agency Clerk

Florida Commission on Human Relations

2009 Apalachee Parkway, Suite 100

Tallahassee, Florida 32301

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.