09-006167 William Kleinschmidt vs. Three Horizons North Condominium, Inc. Status: Closed Recommended Order on Tuesday, April 26, 2011.

Summary: Petitioner failed to demonstrate a mental or physical impairment that qualifies him disabled within the Fair Housing Act, failed to demonstrate Respondent discriminated by enforcing the no pet restriction policy, and failed to show retaliation.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

WILLIAM KLEINSCHMIDT , )

)

Petitioner, )

)

vs. ) Case No. 09 - 6167

)

THREE HORIZONS NORTH )

CONDOMIMIUM, INC . , )

)

Respondent. )

)

RECOMMENDED ORDER

Th is case came before Administrative Law Judge June C.

McKinney of the Division of Administrative Hearings for final

hearing on September 21, 23, 24, and 29, 2010 , by video

teleconference at sites in Tallahassee and Miami, Florida.

APPEARANCES

For Petit ioner: William Kleinschmidt , pro se

1470 Northeast 125th Terrace

North Miami, Florida 33161

For Respondent: Marco D. Commisso , Esquire

Cole, Scott & Kissane, P.A.

1645 Palm Beach Lakes B oulevard

Second Floor

West Palm Beach, Florida 33401

STATEMENT OF THE ISSUE

In this proceeding, the issues are: (1) Whether William

Kleinschmidt ( " Petitioner " or " Kleinschmidt " ) possesses or

demonstrat es a mental or physical impairment that qualifies

Petitioner as a disabled person within the meaning of the Fair

Housing Act, and therefore establishes that Petitioner belongs

to a protected class of persons whom the Fair Housing Act

protects from unlawful discrimination; (2) Whether Three

Horizons North Condominium, Inc. ( " Respondent " or " Three

Horizons " ), discriminated against Petitioner by enforcing the no

pet restriction policy and requiring Petitioner to remove his

cat(s); and (3) Whether Respondent di scriminated against

Petitioner by failing to properly call a plumber in a timely

manner after Petitioner notified Respondent of raw sewage

seeping into his unit, No. 206.

PRELIMINARY STATEMENT

In a Housing Discrimination Complaint filed on July 6,

2009, and subsequently investigated by the Florida Commission on

Human Relations ( " Commission " ) , Kleinschmidt charged that Three

Horizons unlawfully discriminated against Petitioner by not

allowing hi m to keep his cats in his condominium unit as an

accommodatio n b ecause he was disabled , and that Respondent

retaliated against Kleinschmidt by failing to call a plumber in

a timely manner after he notified Respondent of raw sewage

seeping into his unit .

The Commission investigated Petitioner's claim and on

October 7 , 2009, issued a notice setting forth its determination

that reasonable cause did not exist to believe that a

discriminatory housing practice had occurred. Thereafter ,

Petitioner filed a Petition for Relief, which the C ommission

sent to the Division of Ad ministrative Hearings ( " DOAH " ) on

November 10, 2009 .

At the final hearing, Kleinschmidt testified on his own

behalf and presented five witnesses : Judith He isler, Alfred

Cariano, R uth Pearson, Jeffrey Humes, and Jacklyn Cue.

Petitioner's E xhibits 1 through 12 were offered and admitted

in to evidence. Respondent offered E xhibits 1 th r ough 8 during

its cross - examination and all eight exhibits were received into

evidence. Respondent did not otherwise present a case. During

the hearing, the undersigned ruled that the O rder of Pre - Hearing

Instructions dated December 1, 2009, would be adhered to and any

exhibits presented at hearing that were not previously disclosed

and prefiled would not be admitted into evidence.

On January 7, 2011, t he five - volume T ranscrip t of the

proceeding was filed with the DOAH . Both parties filed timely

P roposed R ecommended O rders at DOAH . Petitioner filed

Petitioner's V erified Notice of Filing Objections to the Late

Served Respondent's Proposed Recommended Order and Affidavit in

Sup port of Same ( " Notice " ) . The Notice is denied and both

parties ' timely filed Proposed Recommended Orders, have been

duly considered in preparation of this order .

FINDINGS OF FACT

1. In January 1999 , Petitioner purchased a condominium

( " condo " ) at Thr ee Horizons . H e has resided in Unit 206

continuously since he purchased the condo .

2. Three Horizons Association is the entity responsible

for operating and managing the condo property in which

Kleinschmidt 's unit is located. At all times relevant to this

proceeding, Respondent had a no pets policy .

3. When Kleinschmidt moved into Three H orizons, he had two

cats. His pet cats are named Princess and Marischa . H e keeps

the pets in his unit. He considers them to be his family and

feels like they are m ore like his children than cats since he is

alone. His pets make him feel good. The pets were trained by

his mother.

4. Petitioner wants to keep his cats because they provide

companionship and comfort, which makes Petitioner happy. In

addition, the ca ts have made life tolerable for Kleinschmidt.

Kleinschmidt has an emotional bond with his cats.

5. Petitioner has filed two prior housing discrimination

complaints against Three Horizons. 1

6. From July 5, 2008, to July 6, 2009, 2 Kleinschmidt

neither no tified Respondent of an alleged handicap nor requested

an accommodation either verbally or in writing from Three

Horizons. Specifically during the year, Kleinschmidt never

asked for a waiver of Respondent's no pet rule or asked that the

Petitioner's cats remain as service animals. 3

7. Over about a nine - month period , two different main

sewer line s backed up raw sewage into Petitioner's unit seven

times. Each time a back up occurred in unit 206 and Respondent

was notified o f the problem , Three Horizons cal led a plumber and

had the main lines and pipes fixed t he same day , expending a

total of $2,630 .00 for all the repairs .

8. Three Horizons ' policy is to maintain and fix the

common area of the facilities outside of individual units , and

unit owners are re sponsible to fix any problems within their

unit.

9. On October 3, 2008, at around 4:00 p.m. Petitioner

first noticed a leak in the main line under his unit in the

parking garage. Kleinschmidt informed Ruth Pearson, Three

Horizons ' day - to - day operation s manager and treasurer of the

a ssociation. Pearson went to look at it and informed Petitioner

that she would take care of it.

10. When Kleinschmidt returned home that same day sewage

was flowing into his unit from the toilet. Petitioner called

Jeffrey Humes ( " Humes " ), a m ason ry c ontractor, and made an

appointment for Humes to come to unit 206 the next day, which

was on October 4, 2008, at 2:00 p.m. to handle the backflow

problem since it was not a huge amount. During the night, the

backflow stopped .

11 . On October 4, 2008, Humes reported to u nit 206 around

1:00 p.m. and determined that the backflow was a main line

problem. Pearson was notified that it was the main line that

was causing the problem , and she called Feliz Fera Plumbing

C ompany ( " Feliz " ) . Feliz came out that same evening and fixed

the problem by provid ing " emergency plumbing service to clear

main line using K - 60 machine and cable. " 4 Feliz billed Three

Horizons $320.00.

12. On October 6 , 2008, Petitioner had a second backflow

of sewage into his unit . Upon discov er ing it, Kleinschmidt

called Pearson and informed her of the problem. Respondent

immediately contacted Felix again to work on the main line.

Petitioner also called Humes back to assist him with his unit ' s

backflow. To prevent a ny future backflows into Petitioner's

toilet , Humes plugged it and capped it off separating it from

the main sewer line so sewage would not come in anymore. Humes

also helped Kleinschmi d t wet vac and clean up the unit.

13. Three Horizons ' invoice from F eliz for October 6,

2008, services st ated, " Plumbing service to clear main stoppage

line for Unit Number 206 and test the drain in Unit Number 206.

All is clear at this time. " 5 Respondent was charged $225.00 for

Feliz' s services.

14. O n or about Novembe r 29, 2008 , Petitioner 's kitchen

backflowed from a different main line. His floors and cabinets

underneath the sink flooded , and Petitioner reported the sewage

back up to Pearson who contacted Feliz again to check the main

line . Felix repaired the proble m the same day and the invoice

stated , " Emergency plumbing service to clear stoppage in

Apartment 206. After troubleshooting found line to be clear.

Called in by Ms. Pearson. " 6 The cost to Respondent was $195.00

for the services.

15. On December 3, 200 8, Pearson contacted Felix again

after being notified by Petitioner that his sink was backing up

with sewage. Felix returned to Three Horizons and fixed the

problem outlining the services in the invoice as " Plumbing

service to cut 4 " cast iron in parking garage for unit #206,

installed new clean out and jetted sink stack. " 7 Respondent was

charged $950.00 for the service.

16. On May 2, 2009, sewage back ed up into Petitioner's

kitchen. When Petitioner notified Pearson of the problem she

called Felix . Th at same day, Felix serviced Three Horizons and

detailed the services on the invoice stating, " Emergency

plumbing service to clear stoppage in kitchen stack per Ruth . " 8

R espondent was charge d $295 for the plumbing services.

17. On or about July 7 , 2009, P etitioner's unit had a back

up of sewage again. Kleinschmit contacted Pearson about the

problem , and Pearson called Felix , but the company had other

jobs and could not get to Three Horizons immediately . After

several hours of not having a response, Petit ioner called

Pearson again. Pearson became impatient because Felix had not

arrived immediately and called Enzo Bellanc a ( " Bellanca " ), Three

Horizons ' maintenance man , 9 to come check out the problem.

Bellanca fixed the common line plumbing problem on the s ame date

and wrote on the invoice, " Obstruction in drain line, 4 "

undercover parking lot. Remove 2 feet of cast iron pipe

replace d with P [V] C pipe 4 " and clean s n[ake] d , thru all pipe

drainage s[ys]tem and clean up the blockage. " 10 Bellanca charged

Three Horizons $385 .00 for labor and materials.

18. When Petitioner notified Pearson of another sewage

back up in u nit 206 on July 15, 2009, Pearson called Bellanca

back again. Another stoppage had occurred under unit 206.

Bellanca fixed the problem and det ailed his services on the

invoice as " Drainage systems for Apartment 206 under cover

parking area, remove elbow four inch clear blo ckage, replace a

new P[V]C fo ur inch elbow, plus a [clear - [o ut] Labor and

materials, $260. 00 " 11

19. Petitioner 's doctors are Drs. Gottlieb and Siegal .

Kleinschmidt takes medicine daily .

20. Kleinschmidt receive s Social Security benefits.

21. Kleinschmidt has asthma and was once told that he had

post traumatic stress . However, no evidence was presented that

Kleinschmidt's life activities are substantially limit ed or that

he i s in capable of perform ing all life activities he chooses.

CONCLUSIONS OF LAW

22. The Division of Administrative Hearings has

jurisdiction over the subject matter of this proceeding and of

the parties pursuant to s ections 120.569 and 120.57(1), Florida

Statutes .

23. As the person complaining of discrimination in this

administrative proceeding, Kleinschmit has the burden of proving

by a preponderance of the evidence that he was discriminated

against by Three Horizons on the basis of his handicap. See

§ 760.34(5) ( " In any proceeding brought pursuant to this section

[Section 760.34] or s. 760.35, the burden of proof is on the

complainant " ).

24. The preponderance of the evidence standard requires

proof by " the greater weight of the evidence, " Black's Law

Dictionary 1201 (7th ed. 1999), or evidence that " more likely

than not " tends to prove a certain proposition. See Gross v.

Lyons , 763 So. 2d 276, 289 n.1 (Fla. 2000)(relying on Am .

Tobacco Co. v. State , 697 So. 2d 1249, 1254 (Fla. 4th DCA 1997) ,

quoting Bourjaily v. United States , 483 U.S. 171, 175 (1987)).

25. Petitioner has the burden of proving that Respondent

violated either of the Act s 12 by failing to waive its no pets

policy as a reasonable accomm odation . See Fl a. Dept . of T ransp .

v. J.W.C. Co . , Inc. , 396 So. 2d 778 (Fla. 1st DCA 1981).

26. Section 760.34, provide s in pertinent part:

(4) If, within 180 days after a complaint

is filed with the commission or within

180 days after expiration of a ny period of

reference under subsection (3), the

commission has been unable to obtain

voluntary compliance with ss. 760.20 - 760.37,

the person aggrieved may commence a civil

action in any appropriate court against the

respondent named in the complaint or

pe tition for an administrative determination

pursuant to s. 760.35 to enforce the rights

granted or protected by ss. 760.20 - 760.37 .

. . .

27. Florida recognizes handicap - based housing

discrimination. Section 760.23(8)(b), provides:

(8) It is unlawful to discriminate against any

person in the terms, conditions, or privileges

of sale o r rental of a dwelling, or in the

provision of services or facilities in

connection with such dwelling, bec a use of a

handicap of:

* * *

(b) A person residing in or i ntending to reside

in that dwelling after it is sold , rented, or

made available; or . . . .

28. 42 U.S.C. s ection 3602(h) provides, in pertinent part,

the following definition of the term " handicap " for purposes of

the Federal Act:

(h) " Handicap " means, with respect to a

person --

(1) a physical or mental impairment which

substantially limits one or more of such

person's major life activities,

(2) a record of having such an impairment,

or

(3) being regard ed as having such an

impairment . . .

29. " Han dicap " is defined in the Florida Act in

s ection 760.22 (7)(a) , as follows:

(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 reg arded as

having, such physical or mental impairment;

30. 42 U.S.C. s ection 3604(f)(3)(B), provides that the

following constitutes housing discrimination within the meaning

of the Federal Act:

( f)(3)(B) a refusal to make reasonable

accommodations in rule s, policies,

practices, or services, when such

accommodations may be necessary to afford

such person equal opportun ity to use and

enjoy a dwelling . . .

31. The Florida Act has a similar provision. Section

760.23(9) , provides as follows:

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.

32. Kleinschmidt asserts that Three Horizons discriminated

against him by enforcing the pet restrictions policy and

requiring Petitioner to remove his cats.

33. T o prevail in this proceeding under either of the

Act s , Petitioner has the burd en of proving : (1) he suffered

from a handicap within the meaning of the Florida Fair Housing

Act, (2) the Association knew or should have known that he was

handicapped, (3) a reasonable accommodation was necessary to

afford him or her an opportunity to u se and enjoy his dwelling,

and (4) the Respondent refused to make the requested

accommodation. See Giebler v. M & B Assoc . , 343 F.3d 1143, 1147

(9th Cir. 2003).

34. Based o n the facts as found herein , P etitioner has

failed to prove by a preponderance of the evidence that he is

" handicapped " as defined in s ection 760.22(7)(a ) . Even though

Petitioner established that he received Social Security benefits

at the times pertinent to this proceeding, this is not

sufficient, as a matter of law, to prove that he was handicapped

under the the Act s .

35. In addition, Kleinschmidt failed to demonstrate that

he even informed Three Horizons that he was handicapped or

requested a reasonable accommodation. Further, based on the

findings of fact herein, Kleinschmidt fai led to prove by the

greater weight of the evidence that he was entitled to a

reasonable accommodation under the Act s . In the absence of

proof of the nature and extent of a physical or mental condition

and of the manner in such a condition substantially li mited a

major life activity, it is a legal impossibility for a person to

prove that an accommodation is " necessary to afford him [or her]

an opportunity to use and enjoy his dwelling. " Schwarz v. City

of Treasure Island , 544 F.3d 1201, 1218 - 19 (11th Cir. 2008).

See § 760.22(7).

36. Based on the legal principles discussed above, as

applied to the findings of fact herein, Kleinschmidt failed to

meet his burden of proving the first three elements of a claim

of discrimination on the basis of handicap. Petit ioner,

therefore, failed to prove by a preponderance of the evidence

that the Three Horizons discriminated against him because of a

handicap.

37. Finally, Petitioner's claims of retaliation are

without merit. T he great er weight of evidence shows that eac h

time Petitioner contacted Thre e Horizons regarding a back up of

sewage in his unit that Three Horizons took care of the matter

in a timely manner by notif ying a plumber to check and fix the

main line problem s . Therefore, Petitioner failed to establish

t hat any of Three Horizons actions were harassing or retaliatory

in nature based on the previous cases filed.

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 dismissing Petitioner's Petition

for Relief.

DONE AND ENTERED this 2 6 th day of April, 20 11 , in

Tallahassee, Leon County, Florida.

S

JUNE C. McKINNEY

Administrative Law Judge

Division of Administrativ e Hearings

The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399 - 3060

(850) 488 - 9675

Fax Filing (850) 921 - 6847

www.doah.state.fl.us

Filed with the Clerk of the

Division of Administrative Hearings

this 2 6 th day of April, 2011 .

ENDNOTES

1 William Kleinschmidt v. Three Horizons North Condominiums,

Inc. , Case No. 04 - 3873 (Fla. DOAH May 25, 2005; Fla. FCHR Aug.

23, 2005), William Kleinschmidt v. Three Horizons North

Condominiums, Inc. , Case No. 06 - 2251 (Fla . DOAH Nov. 21, 2006;

Fla. FCHR Feb. 15, 2007 ) .

2 The only relevant time period for factual evidence to be

considered in this case is between July 5, 2008, and July 6,

200 9 , pursuant to s ection 760.11(1), Florida Statutes, which

restricts any complaint of the alleged discriminatory housing

practice to be within 365 days of the alleged violation ( s ) .

3 The consistent testimony of Three Horizons Board members

Judith Heisler, Alfred Cariano , and Ruth Pearson each of which

stat ed that Petitioner failed to inform Respondent of a handicap

and failed to request a waiver of the no pet policy , is found to

be more credible than Petitioner's testimony.

4 Respondent's Exhibit 1 . Kleinschmidt asserts that the invoice

is fraudulent. The undersigned finds the invo ice to be

credible.

5 Respondent's Exhibit 2.

6 Respondent's Exhibit 3.

7 Respondent's Exhibit 4.

8 Respondent's Exhibit 5.

9 Three Horizons had utilized Bellanca's plumbing services

previously and he had resolved the previous problem.

10 Respo ndent's Exhibit 6.

11 Respondent's Exhibit 7.

12 For ease of reference, the Florida Fair Housing Act will be

referred to as the Florida Act and the Federal Fair Housing Act

will be referred to as the Federal Act. Collectively, they will

be referred to as the Acts.

COPIES FURNISHED:

Denise Crawford, Agency Clerk

Florida Commission on Human Relations

2009 Apalachee Parkway, Suite 100

Tallahassee, Florida 32301

Marco D. Commisso, Esquire

Cole, Scott, & Kissane, P.A.

1645 Palm Beach Lakes Boulevard Sec ond Floor

West Palm Beach, Florida 33401

William Kleinschmidt

1470 Northeast 125th Terrace

Apartment 206

North Miami, Florida 33161

Larry Kranert, General Counsel

Florida Commission on Human Relations

2009 Apalachee Parkway, Suite 100

Tallahassee, Flori da 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.