10-001828 Florida Commission On Human Relations On Behalf Of Michelle Weiss vs. Rolling Green Condominium D, Association Status: Closed Recommended Order on Friday, November 12, 2010.

Summary: Major depressive disorder-mild of condo owner's child was "mental impairment." Evidence did not prove that "mental impairment" limited one or more major life activities. Hence condo is not required to grant exception to "no pets" policy as accomodation.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARIN GS

FLORIDA COMMISSION ON HUMAN )

RELATIONS ON BEHALF OF MICHELLE )

WEISS, )

)

Petitioner, ) Case No. 1 0 - 1828

)

vs. )

)

ROLLING GREEN CONDOMINIUM D, )

ASSOCIATION , )

)

Respondent. )

)

RECOMMENDED ORDER

Administrative Law Judge, John D. C. Newton, II, of the

Division of Administrative Hearings, heard this case, as

noticed, on August 19, 2010, by video teleconference at sites in

Ft. Lauderdale and Tallahassee, Florida .

APPEARANCES

For Petitioner: David Organes, Esquire

Florida Commission on Human Relations

2009 Apa lachee Parkway, Suite 200

Tallahassee, Florida 32301

For Respondent: Mark Perlman, Esquire

Law Offices of Mark Perlman, P.A.

1820 East Hallandale Beach Boulevard

Hallandale Beach, Florida 33009

STATEMENT OF THE ISSUE

Did Respondent , Rolling Green Condominium D Association

(Rolling Green or Association ) , violate the Florida Fair Housing

Act , S ections 7 60.20 - 760.37, Florida Statutes (2009) , 1 by

refusing to grant an exception to the Association's prohibition

of pets a s an accommodation f o r a handicap of the minor child

(Jeremy) of Petitioner, Michelle Weiss (Ms. Weiss) ?

PRELIMINARY STATEMENT

On September 1, 2009, Ms. Weiss filed a Housing

Discrimination Complaint with the Florida Commission on Human

Relations (Commission). The Commission issued its Notice of

Determination of Cause on October 28, 2009. The Commission

filed a Petition for Relief on Ms. Weiss's behalf on

November 30, 2009 . The Commission referred the Petition to the

Division of Administrative Hearings (Division) on December 1,

2009, for conduct of a hearing. The Division assigned it Case

Number 09 - 6593 and scheduled the matter to be heard January 19,

2010. Based upon the parties ' representation that they were in

active settlement discussions likely to resolve the case, the

Division, on January 15, 2010, closed its file and relinquished

jurisdiction over the matter to the Commissi on.

On March 19, 2010, the Commission moved to reopen the case

because the parties had not reached an agreement. The Division

reopened the matter under Case Number 10 - 1828 and scheduled the

hearing for July 1, 2010. On Rolling Green's Motion to

Continue , the hearing was rescheduled to August 19, 2010 , to be

heard by video teleconference.

The undersigned conducted the hearing as scheduled. The

Commission offer ed the testimony of Leslie Goldstein, R obert

Scott, and Michelle Weiss. It also offered Comm ission Exhibits

1, 2, 3, 4, and 5 , which were admitte d into evidence. Rolling

Green offered t he testimony of Selma Winston a nd Rolling Green

Exhibits 3, 4, 6, and 7 , which were admitted into evidence.

T he transcript was filed on September 13, 2010 . It

a pparently was not served on all parties. The Commission filed

its proposed recommended order on September 23, 2010. On

September 28, 2010, Rolling Green filed a Motion to Require

Filing of Entire Transcript of Proceedings and Extension of Time

to File Pr oposed Recommended Order. An Order of September 28,

2010, extended the date for filing proposed recommended orders

until October 12, 2010 , and informed the parties that the

recommended order would issue on or before November 12, 2010.

Rolling Green filed its Proposed Recommended Order on

October 12, 2010.

FINDINGS OF FACT

Based on the testimony and other evidence presented at the

final hearing and on the entire record of this proceeding, the

following findings of fact are made:

1. Ms. Weiss lives with her son , Jeremy, in Rolling Green

Cond omin i um. At the time of the hearing, Jeremy was 15 years

old . Early in his life, Jeremy experienced a number of

difficult events. The events included abandonment by his

father, a painful growth inhibiting illness , t he drowning of his

dog, and discovering, in their shared home, the body of his

beloved grandfather , who committed suicide.

2. T he Rolling Green Declaration of Condominium and the

Association Rules, Regulations, and Procedures prohibit pets,

except bird s and fishes, unless permitte d by written exception.

When Ms. Weiss purchased her condominium , she was well aware of

the pet prohibition and had signed two documents acknowledging

the prohibition .

3 . Despite the pet prohibition, Ms. Weiss obtained a ca t

in 2006. Ms. Weiss still has the cat. She never sought an

exception from the A ssociation to permit keep ing the cat.

4 . In January of 2 009 , the dog of one of Ms. Weiss's co -

workers birthed miniature Pomeranian puppies. Despite the

prohibition against pets, Ms. Weiss took a puppy home to care

for it while her co - worker looked for a home for it .

Ms. Weiss's son , Jeremy, named the dog Wolf and quickly warmed

to him. The boy and dog played together and grew close. Jeremy

a ssumed responsib ili ty for the car e of Wolf.

5 . Ms. Weiss believed that the relationship with the dog

improved her son's dem e anor . Because of this, s he wanted to

keep Wolf , who is now full grown and weighs about seven pounds .

Ms. Weiss did not seek an exception to the Rolling Green

prohibit i on of pets.

6 . When the A ssociation learned of the dog, it sent

Ms. Weiss a letter reminding her of the pet prohibition and

directing her to remove the dog from the premises . This

triggered Ms. Weiss's effort to obtain an exception to the pet

p rohibition.

7 . Ms. Weiss took Jeremy to Mr. Scott , a therapist .

Mr. Scott is a licensed clinical social worker and c ertified

a ddiction p rofessional. Mr. Scott had provided Ms. Weiss

services before. But h e had never seen Jeremy or provided him

servic es. Other mental health couns e l o rs , however, had treated

Jeremy before.

8 . Mr. Scott evaluated Jeremy using diagnostic tools. He

concluded , and the undersigned finds , that Jeremy had a major

depressive disorder - mild. Dr. Scott also concluded , and the

undersigned finds , that a support animal is helpful tr eatment

for Jeremy's disorder.

9 . At the time of the hearing, Jeremy was in the eighth

grade, the appropriate grade for his age. He had attended

school and successfully moved from grade to grade desp ite the

experiences of his youth and his disorder. Jeremy rides the bus

home from school with friends and cares for himself after school

until Ms. Weiss comes home from work. Jeremy completed his Bar

Mitzvah ceremony. In the ceremony he recited portions of the

Torah in Hebrew to over 100 guests. There is no persuasive

evidence that Jeremy's disorder substantially limits one or more

major life activities .

1 0 . Rolling Hills has previously permitted exceptions to

its no pets polic y . The current manageme nt recognized that

previous management had not follow ed the procedures for

exceptions and had approved exceptions inappropriately and

inconsistently. The current management gave all owners notice,

before Jeremy obtained Wolf , that it intended to uniformly

enforce the pet prohibition in the future, while recognizing it

should honor the previously approved exceptions.

1 1 . Rolling Green did not grant Ms. Weiss an exception to

the pet prohibition for Wolf and does not intend to grant an

exception .

CONCLUSIONS OF LAW

1 2 . T he Division of Administrative Hearings has

jurisdiction over the subject matter of this proceeding and of

the parties pursuant to Sections 120.569, 120.57(1), and 760.35

Florida Statutes (2010) .

1 3 . The Commission brings this cla im, on behalf of

Ms. Weiss and Jeremy, under Florida's Fair Housing Act, Sections

760.20 - 760.37, Florida Statutes (Fair Housing Act). It claims

that Rolling Green discriminated against Jeremy on account of a

handicap by denying a reasonable accommodation for a handicap.

The alleged reasonable accommodation is granting an exception

from the no pets rule for Wolf.

1 4 . The Commission bears the burden of proving by a

preponderance of the evidence that Rolling Green violated the

F air Housing Act . See §§ 760. 34(5) a nd 120.57(1)(j), Fla. Stat.

(2010).

1 5 . Section 760.23( 8 ), Florida Statutes, makes it unlawful

to discriminate against anyone on account of a handicap in the

sale or rental of housing. Discrimination includes refusal to

make a reasonable accommoda tion that will allow a person with a

handicap an equal opportunity to use and enjoy a dwelling.

§ 760.23(9)(b), Fla. Stat.

1 6 . A person has a handicap if the "person has a physical

or mental impairment which substantially limits one or more

major life ac tivities, . . . ." § 760.22(7)(a), Fla. Stat. The

facts establish the first half of the definit i on. Jeremy has

the mental impairment of major depressive disorder - mild. The

facts do not establish the second half.

1 7 . Depression can be a serious illness. But depression

alone is not a handicap as defined in statute. Pritchard v

Southern Company Services , 92 F. 3d 113 0, 1133 (11th Cir. 1996) ,

reh. denied , Pritchard v. Southern Co. Servs. , 102 F.3d 1118

(1996) . 2 Diagnosi s of a mental impairment does not establish a

handicap. Limitation of one or more major life activities

resulting from depression must be proven to establish a

handicap. Pritchard v. Southern Servs. , at 1132.

1 8 . The Commission relies upon Auburn Woods I Homeowners

Assn. v. Fair Employment & Housing Comm. , 121 Cal. App. 4th 1578

(Cal. App. 3d Dist. 2004) , and Majors v. Housing Authority of

County of De Kalb , 652 F.2d 454 (5th Cir. 1981). Both cases

hold that permitting a companion or therapy animal may be a

required reasonable accommodation for a mental impairment,

including depression. The holdings of each case depend heavily

upon the facts. Those facts differ from the facts proven here.

19 . The stipulated facts in Majors included that

Ms. Majors wa s handicapped as defined in statute and that she

required the companionship of her dog. The holding does not

address the issue here, which is whether the mental impairment

substantially limits one or more major life activities.

20. The facts in Auburn Wo ods I , were determined by

findings of fact of an administrative law judge made af t er an

evidentiary hearing. The opinion notes the importance to its

decision of the standard of review and emphasizes that the

appellate court's function is to determine if there ha s been an

abuse of discretion and if the findings a re based on substantial

evidence. The opinion also notes that the appellate court may

not reweigh the evidence and must review the evidence in the

light most favorable to the findings. Here, of c ourse, the

issue is what findings the evidence will support in the first

instance.

21. In Auburn Woods I , t he facts included a finding that

both complainants suffered from multiple mental disorders. One

complainant engaged in self mutilation, had sleep ing problems,

and avoided social interaction. The other was incapable of

working due to bipolar disorder, obsessive - compulsive

personality disorder, and seizure disorder following a severe

automobile accident that r equired three brain surgeries. Self -

mu tilation, inability to sleep, and inability to work were all

substantial limitations upon major life activities. Whether the

complainants' impairments amounted to handicaps was not a

disputed issue in the case. The issue was whether permitting a

companio n animal was a required reasonable accommodation to the

handicap. The court held, based up on the specific facts of the

case , that it was. The opinion emphasizes that the question of

what i s a reasonable accommodation i s a question of fact. The

court al so noted that its decision did not mean that permitting

a companion animal is always a required reasonable

accommodation . Auburn Woods I Homeowners Assn. v. Fair

Employment & Housing Comm. , 121 Cal. App. 4th 1578 , 1595 (Cal.

App. 3d Dist. 2004)

2 2 . Estab lishing substantial limits on one or more major

life activities requires proof that the mental impairment

prevents or restricts an individual from doing activities that

are of central importance to the person's life. Toyota Motor

Mfg., Ky. v. Williams , 53 4 U.S. 184 , 198 - 202 (2002); Hutcheson v

MacFarland and Sand Dune Properties , Case No. 07 - 1087 (Fla. DOAH

Dec. 7, 2007) , p. 16 , adopted by FCHR Order No. 08 - 014 (Feb. 8,

2008). The Commission established that Jeremy had a mental

impairment. But the Commission did not present persuasive

evidence that the impairment "substantially limits one or more

major life activities."

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of

Law, it is RECOMMENDED that the Florida Commission o n Human

Relations enter a Final Order deny ing the Petition of Michelle

Weiss and finding that Rolling Green Condominium D, Association,

did not unlawfully discriminate against Michelle Weiss or her

son .

DONE AND ENTERED this 12 th day of November , 2010, in

Tallahassee, Leon County, Florida.

S

JOHN D. C. NEWTON, II

Administrative Law Judge

Division of Administrative Hearings

The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399 - 3060

(850) 488 - 9675

Fax Fi ling (850) 921 - 6847

www.doah.state.fl.us

Filed with the Clerk of the

Division of Administrative Hearings

This 12 th day of November, 2010.

ENDNOTE S

1 / All references to Florida Statutes are to the 2009 statutes

unless otherwise indicated.

2 / The Florida Legislature modeled the Fair Housing Act after

the United States Fair Housing Amendments Act of 1988.

Consequently, interpretation of the federal law by f ederal

courts is instructive and persuasive in applying Florida's Fair

Housing Act. Dornbach v. Holley , 854 So. 2d 211 , 213 ( Fla. 2d

DCA 2002).

COPIES FURNISHED :

Denise Crawford, Agency Clerk

Florida Commission on Human Relations

2009 Apalachee Parkway, Suite 100

Tallahassee, Florida 32301

Lawrence F. Kranert, Jr., General Counsel

Florida Commission on Human Relations

2009 Apalachee Parkway, Suite 100

Tallahassee, Florida 32301

Mark Perlman, Esquire

Law Offices of Mark Perlman, P.A.

1820 East Hallandale Beach Boulevard

Hallandale Beach, Florida 33009

Michelle Weiss

1401 Northeast 191st Street, Apt. D202

Miami, Florida 33179

David A. Organes, Esquire

Florida Commission on Human Relations

2009 Apalachee Parkway, Suite 200

Tall ahassee, 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.