09-004715 Maria Thornhill vs. Admiral Farragut Condominium Association, Inc. Status: Closed Recommended Order on Wednesday, January 20, 2010.

Summary: Petitioner failed to prove that Respondent had unlawfully discriminated against her on the basis of national origin, religion, or handicap in violation of the Florida Fair Housing Act.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

MARIA THORNHILL, )

)

Petitioner, )

)

vs. ) Case No. 09-4715

)

ADMIRAL FARRAGUT CONDOMINIUM )

ASSOCIATION, INC., )

)

Respondent. )

)

RECOMMENDED ORDER

This case came before Administrative Law Judge John G.

Van Laningham for final hearing by video teleconference on

December 8, 2009, at sites in Tallahassee and Miami, Florida.

APPEARANCES

For Petitioner: Maria T. Thornhill, pro se

6815 Edgewater Drive, No. 105

Coral Gables, Florida 33133

For Respondent: John R. Sutton, Esquire

Jose R. Bejel, Esquire

Sutton Law Group, P.A.

7721 Southwest 62nd Avenue, Suite 101

South Miami, Florida 33143

STATEMENT OF THE ISSUES

The issues in this case are, one, whether Respondent

unlawfully discriminated against Petitioner on the basis of her

alleged handicap in violation of the Florida Fair Housing Act;

and, two, whether Respondent subjected Petitioner to acts of

coercion or retaliation as a result of Petitioner's exercise, or

attempted exercise, of a protected housing right.

PRELIMINARY STATEMENT

In a Housing Discrimination Complaint filed with the U.S.

Department of Housing and Urban Development on March 9, 2009,

and subsequently investigated by the Florida Commission on Human

Relations ("FCHR"), Petitioner Maria Thornhill alleged that

Respondent Admiral Farragut Condominium Association, Inc., had

unlawfully discriminated against her by (a) refusing to let her

make a reasonable modification to her property to accommodate an

alleged disability, and (b) using coercion or other means to

interfere with her exercise of protected housing rights. The

FCHR investigated Petitioner's claims and, on July 21, 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 FCHR transmitted to the Division of

Administrative Hearings ("DOAH") on August 25, 2009.

At the final hearing on December 8, 2009, Petitioner

testified on her own behalf and called two other witnesses:

Carlos Flores and Nancy Morgan. Petitioner moved four exhibits,

identified as Petitioner's Exhibits 1, 3, 4, and 7, into

evidence. Respondent presented one witness, namely Raymond

Khachab, and introduced Respondent's Exhibits 1, 2, 7, and 8

into evidence. Official recognition was taken of Respondent's

Exhibits 3-6 and 9. 1

The final hearing was not recorded because the FCHR

declined to provide a court reporter, and neither party elected

to retain one, despite being afforded an opportunity to do so.

The parties were directed to file their respective Proposed

Recommended Orders no later than December 18, 2009. Respondent

timely submitted its "Proposed Findings of Fact, Conclusions of

Law & Recommendations for Final Disposition." Petitioner

submitted a similar document, albeit after the deadline had

passed. The undersigned considered both submissions.

Unless otherwise indicated, citations to the Florida

Statutes refer to the 2009 Florida Statutes.

FINDINGS OF FACT

1. Petitioner Maria Thornhill ("Thornhill") owns and lives

in a unit in the Admiral Farragut Condominium Apartments.

2. Respondent Admiral Farragut Condominium Association,

Inc. ("AFCA"), manages the property of which Thornhill's

condominium is a part.

3. This case continues a dispute between Thornhill and

AFCA which began in 1997, when Thornhill——without first securing

AFCA's permission——installed three wooden steps leading from her

rear balcony down to a patio located about 30 inches below.

AFCA disapproved of the steps and directed Thornhill to remove

them, which was done long ago.

4. In the past, Thornhill has alleged, among other things,

that AFCA and its individual directors unlawfully discriminated

against her in denying her many requests to reinstall the steps,

which she claims are needed as a reasonable accommodation for

her handicap. 2 Consequently, the parties have been pitted

against each other for years in one legal proceeding after

another, in various forums including DOAH. Thornhill has lost

many battles in this protracted litigation——and consequently

been ordered to pay tens of thousands of dollars in sanctions,

court costs, and attorney's fees. Still, she presses on.

5. In this case, Thornhill argues, as she has for more

than a decade, that she needs to attach steps to her rear

balcony because she is physically unable to traverse the 30

inches which separate the balcony from the ground and hence

would be trapped if a fire were to block both of the unit's two

doors to the outside. Not for the first time, Thornhill alleges

here that AFCA discriminated against her on the basis of

handicap when it denied her request(s), the most recent of which

was made in January 2004, for approval of the steps.

6. In addition to her claim involving the steps, Thornhill

alleges that AFCA has discriminated or retaliated against her,

in some unspecified way(s), in connection with a boat slip,

which she is, evidently, "next in line" to rent, once the lease

expires under which another unit owner currently enjoys the

right to use the slip. Finally, Thornhill contends that, in its

efforts to collect the various money judgments it has been

awarded, AFCA has retaliated against her unlawfully.

Determinations of Ultimate Fact

7. With regard to the steps, Thornhill presented no

evidence suggesting that such a modification is reasonable, nor

any proof that installation of such steps is necessary to

ameliorate the effects of her particular handicap.

8. There is no evidence that any of AFCA's decisions

concerning the boat slip were motivated in any way by

discriminatory animus directed toward Thornhill.

9. There is likewise no evidence that AFCA ever undertook

to execute or otherwise enforce the judgments it has obtained

against Thornhill because of discriminatory animus.

10. In sum, there is not a shred of competent, persuasive

evidence in the record, direct or circumstantial, upon which a

finding of any sort of unlawful housing discrimination,

coercion, or retaliation could possibly be made. Ultimately,

therefore, it is determined that AFCA did not commit any

prohibited act.

CONCLUSIONS OF LAW

11. DOAH has personal and subject matter jurisdiction in

this proceeding pursuant to Sections 120.569, and 120.57(1),

Florida Statutes.

12. Under the Florida Fair Housing Act ("FFHA"), it is

unlawful to discriminate in the sale or rental of housing.

Although Thornhill has not identified the particular provisions

of the FFHA under which she purports to travel, it is reasonably

clear that she is attempting to assert discrimination claims

pursuant to Section 760.23, Florida Statutes, and retaliation or

coercion claims in accordance with Section 760.37, Florida

Statutes.

13. Upon examination of the specific acts of unlawful

discrimination and other prohibited practices enumerated in

Section 760.23, it is concluded that the following provisions

are implicated by Thornhill's claim of handicap-based housing

discrimination:

(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:

(a) That buyer or renter;

(b) A person residing in or intending to

reside in that dwelling after it is sold,

rented, or made available; or

(c) Any person associated with the buyer or

renter.

§ 760.23(8), Fla. Stat.

14. For purposes of subsection (8) above, the term

"discrimination" includes:

(a) A refusal to permit, at the expense of

the handicapped person, reasonable

modifications of existing premises occupied

or to be occupied by such person if such

modifications may be necessary to afford

such person full enjoyment of the premises;

or

(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.

§ 760.23(9), Fla. Stat.

15. A reasonable accommodation or modification claim

comprises four elements: request, refusal, reasonableness, and

necessity. Schwartz v. City of Treasure Island , 544 F.3d 1201,

1219 (11th Cir. 2008); Colon-Jimenez v. GR Management Corp. , 218

Fed.Appx. 2, 3 (1st Cir. 2007)("the plaintiff must show that a

special accommodation of a disability was, in fact,

requested.").

16. To be legally sufficient, the request for an

accommodation must explain how the special consideration being

sought is linked to a particular disability. Colon-Jimenez , 218

Fed.Appx. at 3. While there is no question that Thornhill has

requested AFCA's permission to attach steps to her balcony as a

means of accommodating a handicap, it is debatable whether she

ever made clear how the installation of such steps was made

necessary by her disability. On the other hand, Thornhill has

notified AFCA unambiguously of her desire to be allowed a

special fire escape, which she has justified as a means of

accommodating her lack of agility or mobility. It is concluded

that Thornhill has requested an accommodation.

17. That AFCA has refused Thornhill's requests to attach

steps to her rear balcony is undisputed. Therefore, this

element, too, is met.

18. Whether the requested accommodation is reasonable is

another matter. Thornhill, as the claimant, has the burden of

proving that the proposed accommodation or modification is

reasonable. See Loren v. Sasser , 309 F.3d 1296, 1302 (11th Cir.

2002), cert. denied , 538 U.S. 1057 (2003). She failed to meet

this burden.

19. Indeed, the proposed accommodation strikes the

undersigned as unreasonable on its face, assuming the purpose

in case of a fire. Although neither party introduced any

evidence about this, the undersigned cannot help but think that

Thornhill could accomplish the same purpose by purchasing a

folding step stool or stepladder, which could be quickly placed

behind the balcony were it necessary to escape from the building

in an emergency. (The balcony, remember, is only 30 inches

above the ground.) While a step stool might not be Thornhill's

preference, it would nevertheless accommodate her stated need.

Cf. id. at 1303 (chain link fence around backyard, though not

the front-yard fence plaintiffs prefer, would reasonably

accommodate their needs).

20. Likewise, Thornhill failed to meet her burden to prove

that the accommodation is necessary to address the needs created

by her handicap. See Schwarz , 544 F.3d at 1226. In fact,

Thornhill's explanation of the need for the steps, if taken at

face value, demonstrates that this modification is un necessary

unless an emergency, such as a fire, requires that she escape

from her home through the rear balcony, instead of exiting

through one of the two front doors. Were such an exigent

situation to arise, however, the need for a way out would be

created, not by Thornhill's handicap, but by the fire or other

emergency. Because the FFHA does not require that an

accommodation be made to address a problem caused by something

other than a person's handicap (e.g. the problem of escaping

from a burning building, whose direct cause is the fire) 3 ,

Thornhill's explanation is self-defeating.

21. Besides that, Thornhill adduced no persuasive evidence

establishing that she would be unable, in a life-or-death,

emergency situation, to lower herself two-and-a-half feet from

the balcony to the ground. Thus, even if Thornhill's handicap

were found to be the direct cause of the alleged problem

(inability to escape in the event of fire), there is still no

persuasive proof of the problem itself. For this alternative

reason, the evidence is insufficient to establish necessity.

22. Turning to Thornhill's claim under Section 760.37,

Florida Statutes, which "regulates discriminatory conduct

before, during, or after a sale or rental of a dwelling,"

liability would exist only if Thornhill could demonstrate that,

because of discriminatory animus,

[AFCA] coerced, intimidated, threatened, or

interfered [with: (a) her] exercise of a

right under [the FFHA]; (b) [her] enjoyment

of a housing right after exercise of that

right; or (c) [her] aid or encouragement to

a protected person to exercise or enjoy a

housing right[.]

Delawter-Gourlay v. Forest Lake Estates Civic Ass'n of Port

Richey, Inc. , 276 F. Supp. 2d 1222, 1235 (M.D.Fla.

2003)(citation and footnote omitted), vacated because of

settlement, 2003 U.S. Dist. LEXIS 26080 (M.D.Fla. Sept. 16,

2003). Thornhill, however, proved none of the foregoing

elements. Thus, AFCA is not liable under Section 760.37,

Florida Statutes.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of

Law, it is RECOMMENDED that the FCHR enter a final order finding

AFCA not liable for housing discrimination and awarding

Thornhill no relief.

DONE AND ENTERED this 20th day of January, 2010, in

Tallahassee, Leon County, Florida.

___________________________________

JOHN G. VAN LANINGHAM

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 20th day of January, 2010.

ENDNOTES

1 / Each of the five documents so recognized is an order of the

Circuit Court of the Eleventh Judicial Circuit of Florida.

Respondent's Exhibit 9, which is entitled, "Order on Plaintiff's

Emergency Motion to Hold Defendant Maria Thornhill in Civil

Contempt," and dated October 23, 2001, was erroneously marked as

Exhibit "10" before being delivered to the undersigned.

(Respondent did not offer an Exhibit 10 at hearing.) This

exhibit has been renumbered for the record.

2 / Thornhill claims to experience disabling back pain as the

result of an injury suffered in an accident which occurred in

1988. While the undersigned believes that Thornhill does, in

fact, have back problems, he is unable to find much competent

evidence in the record, if any, in support of Thornhill's

contention that she is legally handicapped. Despite the paucity

of proof, the undersigned has elected to proceed as if Thornhill

had established that she is handicapped.

3 / A reasonable accommodation is required only when necessary to

address a problem directly caused by a person's handicap

because, otherwise, the handicapped person might receive an

accommodation with regard to a matter unrelated to his handicap,

thereby placing him in a better position (vis-à-vis that matter)

than similarly situated nonhandicapped persons. See Schwarz ,

544 F.3d at 1226.

COPIES FURNISHED :

Maria T. Thornhill

6815 Edgewater Drive, No. 105

Coral Gables, Florida 33133

John R. Sutton, Esquire

Jose R. Bejel, Esquire

Sutton Law Group, P.A.

7721 Southwest 62nd Avenue, Suite 101

South Miami, Florida 33143

Nancy Morgan

Admiral Farragut Condominium Association, Inc.

6815 Edgewater Drive, Apartment 202

Coral Gables, Florida 33133

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.