10-002421 Emperatriz Ramirez vs. Village Of Kings Condominium Association, Inc. Status: Closed Recommended Order on Monday, March 21, 2011.

Summary: Condominium owner failed to prove that the condominium association discriminated against her by the manner in which it enforced its vehicle parking policies.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

EMPERATRIZ RAMIREZ, )

)

Petitioner, )

)

vs. ) Case No. 10 - 2421

)

VILLAGE OF KINGS CONDOMINIUM )

ASSOCIATION, INC., )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, a formal administrative hearing was

held by video teleconference between Miami and Tallahassee,

Florida, on January 4, 2011, before Administrative Law Judge

Claude B. Arrington of the Division of Administrative Hearings

(DOAH).

APPEARANCES

For Petitioner: Emperatriz Ramirez , pro se

7705 Camino Real, Apartment No. B413

Miam i, Florida 33143

For Respondent: Marco D. Commisso, Esquire

Cole, Scott, & Kissane, P.A.

1645 Palm Beach Lakes Boulevard

Second Floor

West Palm Beach, Florida 33401

STATEMENT OF THE ISSUE

Whether Respondent violated the Florida Fair Housing Act by

discriminating against Petitioner based on her sex, national

origin, and/or handicap by the manner it enforced its ve hicle

parking rules.

PRELIMINARY STATEMENT

At the times relevant to this proceeding, Emperatriz

Ramirez ( Petitioner ) owned and resided in a two - bedroom

condominium unit managed by Villages of Kings Condominium

Association, Inc. ( Respondent ) . O n January 26, 2010, Petitioner

filed a Housing Discrimination C omplaint (C omplaint) with the

United States Department of Housing and Urban Development (HUD).

The C omplaint alleged that Respondent discriminated against

Petitioner based on her sex, national origin, and handicap by

the manner it enforced its vehicle parking rules and its

occupancy rules.

HUD forwarded the complaint to the Florida Commission on

Human Re lations (FCHR) for investigation.

On April 15, 2010 , FCHR entered a "Notice of Determination

of No Cause" which advised Petitioners that based on its

investigation "the FCHR has determined that reasonable cause

does not exist to believe that a discriminato ry housing practice

has occurred." The investigation determined that the alleged

discrimination pertaining to Respondent's occupancy rules was

not timely because section 760.34(2), Florida Statutes 1 , requires

violations of the Fair Housing Act to be filed within a year of

the discriminatory act, and Petitioner filed the Complaint more

than a year after the alleged act of discrimination.

On April 29 , 2010, Petitioner filed a "Petition for Relief"

against Respondent alleging that Respondent discriminated

against her based on her sex, national origin, and handicap by

the manner it enforced its vehicle parking policy. The Petition

for Relief did not contain an allegation pertaining to

Respondent's occupancy policy.

At the formal hearing, Petitioner abandoned her claim that

Respondent discriminated against her based on her sex or

national origin. Petitioner asserted at the formal h e aring that

Respondent failed to make a reasonable accommodation of her

handicap that would permit her to park the automo bile she

inherited from her late husband on condominium premises .

Petitioner is a native of Peru and does not speak, read, or

write English. Petitioner's daughter, Patricia Ramirez, who is

bilingual, was permitted to assist her mother at the formal

hearin g. At the form al hearing, the parties agreed to introduce

Petitioner's deposition and the deposition exhibits in lieu of

her live testimony, which was accepted as Petitioner's Composite

Exhibit 1. Petitioner offered one other composite exhibit,

which was admitted as Petitioner's Composite Exhibit 2.

In addition to her deposition testimony , Petitioner

presented the testimony of Patricia Ramirez. Petitioner also

called Carlos Ramirez, but he had no relevant testimony to offer

since the events about whi ch h e intended to testify occurred

more than a year before Petitioner filed the Complaint .

Respondent offered no testimony, but it offer ed three

sequentially - numbered exhibits, each of which was admitted into

evidence.

A T ranscript of the proceedings , consisting of one volume,

was filed February 8, 2011. The parties submitted Proposed

Recommended Orders which have been duly considered by the

undersigned in the preparation of this Recommended Order.

FINDINGS OF FACT

1. Petitioner is an 8 1 - year - old fem ale who is a native of

Peru. Petitioner does not speak , write, or read English.

2. Petitioner and her late husband were owners and

residents of a condominium unit managed by Respondent.

Petitioner continued to own and reside in the unit after her

husband's death in September 2009.

3. Petitioner and her husband had ten children, two of

whom are Patricia Ramirez and Gloria Silva.

4 . At the time of his death, Petitioner's husband owned an

automobile that he had properly registered with Re spondent.

5 . Following her husband's death, Petitioner inherited the

automobile he had owned. Petitioner does not drive and does not

have a driver's license.

6. On September 17, 2009 , the title to the car was changed

into the names of Petitioner and Glo ria Silva.

7 . Gloria Silva has not been recognized by Respondent as a

"resident" of Petitioner 's unit. 2

8 . Respondent's rules and policies are set forth in a

"Handbook of Rules and Regulations" (the Handbook).

Respondent's vehicle parking policies begin on page 28 of the

Handbook.

9 . Respondent's parking policies for a "Resident Parking

Decal" provide , in relevant part, as follows:

A "Resident" as set forth in these

regulations is a person who has been

registered at the Management Office and has

been approved by the Association to live in

the Unit whether it is an owner or a tenant.

All vehicles of Residents parked in the

Condominium Property must have a "Resident

PARKING DECAL" [sic]. This permit consists

of a decal containing a number that is

place d on the outside top or bottom left -

side corner of the rear glass of the

vehicle. For your protection, this decal

shall be applied to the glass by an

Association Representative only. Only

Residents actually living all year round in

the Condominium Proper ty and owning a valid

driver's license will be issued a Resident

Parking Decal. . . . . On ly one vehicle is

allowed per Resident with a valid driver's

license and a Vehicle Registration to such

vehicle issued in the Residents' name.

There will be a $25.00 refundable deposit

for every Resident Parking Decal issued.

Failure to return the Decal to the

Management Office upon selling and/or

disposing of his/her vehicle (including

total loss due to an automobile accident) or

moving out of the Property, su ch $25.00

shall be forfeited. . . .

If the Resident sells or in any other way

disposes of a ve hicle to which a Resident

Parking Decal was previously issued, that

Resident must remove and bring to the

Management Office such Resident Parking

Decal before a new Resident Parking Decal is

issued for a new vehicle.

10 . Gary Mars, an attorney representi ng Respondent ,

advised Petitioner by letter dated September 10, 2009, that she

was in violation of Respondent's vehicle parking policy and its

occupancy policy. As to the parking policy, the letter

provided, in relevant part, as follows:

The Rules and R egulations state that

"[o]nly Residents actually living all year

round in the Condominium Property and owning

a valid driver's license will be issued a

Resident Parking Decal. Absentee owners who

lease their units are not entitled to having

a Resident Par king Decal. Only one vehicle

is allowed per Resident with a valid

driver's license and a Vehicle Registration

to such vehicl e issued in the Resident's

name. . . . "

. . . This correspondence serves as . . .

demand that any and all guests of your Unit

cease and desist uti lizing a resident

parking decal immediately upon receipt of

this communication and secure the

appropriate parking decals from the Property

Management Office.

11 . Mr. Mars wrote a second let ter to Petitioner on

November 9, 2009, containing the following demand:

This letter is being provided in order to

notify you as to a recently recognized

violation of the Declaration of Condominium

which requires your immediate attention.

Specifically, t he Association has recognized

that the vehicle registered to your deceased

husband continues to maintain a residents

[sic] parking decal even though the vehicle

is utilized by your daughter, Ms. Gloria

Silva, who is not a resident of the

Condominium. Ther efore, this use of a decal

is improper and in violation of the

Association's controlling documents.

The Rules and Regulations state that

"[o]nly Residents actually living all year

round in the Condominium Property and owning

a valid driver's license wil l be issued a

Resident Parking Decal. Absentee owners who

lease their units are not entitled to having

a Resident Parking Decal. Only one vehicle

is allowed per Resident with a valid

driver's license and a Vehicle Registration

to such vehicle issued in t he Resident's

name. . . .. "

Notice is hereby provided of this

violation. Specifically, the Association is

demanding that your guest permanently cease

and desist utilizing a resident parking

decal, and remove and return the decal

within seventy - two hou rs of this

communication to the Property Management

Office. In the event you and your guests

fail to comply with the request as set forth

herein , the Association may have no

alternative but to enforce the Rules and

Regulations which may include the towing and

removal of the vehicle . . .

12 . By letter dated December 31, 2009, Mr. Mars wrote to

Petitioner a third and final letter, styled "Final Demand , "

repeating his notice that the vehicle would be towed if she did

not comply with the resident parking policy.

13 . On the following dates Respondent had Petitioner's

vehicle towed from the condominium property: January 19,

January 22, and February 9, 2010.

14 . At all times relevant to this proceeding, Petitioner

was out - of - compliance with Respondent's re sident parking policy.

15 . There was no evidence that Petitioner ever surrendered

the Resident Parking Decal that remained on the vehicle after

her husband died.

16 . There was no evidence that Petitioner filed an

application reflecting the change of owne rship of the vehicle

following her husband's death or paid the application fee for a

new decal . 3

17 . There was no evidence that Respondent knew or should

have known that Petitioner was handicapped or disabled. 4

18. There was no evidence that Respondent's enforcement of

its parking policies was motivated by Petitioner's sex, national

origin, or handicap.

CONCLUSIONS OF LAW

19 . DOAH has jurisdiction over the subject matter of and

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

Florida Statutes.

20 . The Florida Fair Housing Act (F lorida FHA) is codified

in sections 760.20 through 760.37 , Florida Statutes .

21 . Section 760.23( 2 )(a) provides as follows:

It is unlawful to discriminate against any

person in the terms, conditions, or

privi leges of sale or rental of a dwelling,

or in the provision of services or

facilities in connection therewith, because

of race, color, national origin, sex,

handicap, familial status, or religion.

22 . Petitioner, who is asserting the affirmative of the

is sues in this case, has the burden of proving by a

preponderance of the evidence that Respondent discriminated

against her as alleged in the Petition. See Balino v. Dep ' t of

H RS , 348 So. 2d 349, 350 (Fla. 1st DCA 1977) and Dep ' t of

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

23 . 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).

24. Petitioner abandoned her claim that Respondent was

discriminated against her based on her sex or her national

origin.

25 . In order to prevail in her claim of discrimination

based on handicap , Petitioner must prove (1) that she is

handicapped as defined in the Florida FHA; (2) that Respondent

knew or reasonably should have known of her handicap; ( 3) that

she requested a reasonable accommodation under RespondentÓs

rules and regulations necessary to afford her an equal

opportunity to use and enjoy her unit; and (4) that Respondent

refused to provide the reasonable accommodation. See United

States v . California Mobile Home Park Mgmt. Co. , 107 F.3d 1374,

1380 (9th Cir. 1997). Petitioner ' s burden is to prove all four

prongs of this analysis by a preponderance of the evidence.

26. Petitioner failed to prove prong two and prong three

of the four - prong analysis set forth above. Petitioner did not

prove that Respondent knew or should have known that she was

handicapped , and Petitioner did not prove that she told

Respondent that her handicap req uired an accommodation to

Respondent 's parking rules. Consequently, Petitioner failed to

meet her burden of proof in this proceeding.

RECOMMENDATION

Based upon the foregoing Findings of Fact and Conclusions

of Law, it is hereby RECOMMENDED that the Flori da Commission on

Human Relations enter a final order dismissing Petitioner's

Petition for Relief.

DONE AND ENTERED this 21st day of March , 2011, in

Tallahassee, Leon County, Florida.

S

CLAUDE B. ARRINGTON

Administrative Law Judge

Division of Administrative 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 21st day of March , 2011.

ENDNOTES

1 Unless otherwise noted, each reference to a statute is to

Florida Statutes (2010).

2 Ms. Silva lived in her mother's unit for a period of time

after her father's death. The refusal by Respondent to accept

Ms. Silva as a "resident", as opposed to a "guest" of her

mother's unit , was an issue in the Complaint filed with HUD, but

is not an issue in this proceeding.

3 Patricia Ramirez testified that she faxed a copy of the

changed title and registration to Mr. Mars in January 2010

before the vehicle was first towed. That effort did not comply

with Respondent's vehicle parking policy becaus e no one on

behalf of Petitioner surrendered the old parking decal, applied

for a new parking decal, or paid the fee for a new decal.

Moreover, Gloria Silva did not meet the definition of a

"resident," and Petitioner did not have a driver's license.

4 T here was no evidence that Petitioner requested an

accommodation for a handicap or disability prior to filing the

Complaint with HUD. During the investigation of Petitioner's

Complaint, FCHR secured a medical information form from Dr. Luis

Fernandez, Petit ioner's treating physician, dated February 26,

2010. By this form Dr. Fernandez opined that Petitioner has a

physical or mental impairment and described the impairments.

Dr. Fernandez further opined that the duration was temporary (as

opposed to permanen t).

COPIES FURNISHERD :

Emperatriz Rameriz

7705 Camino Reel, Apartment No. B413

Miami, Florida 33143

Marco D. Commisso, Esquire

Cole, Scott, and Kissane, P. A.

1645 Palm Beach Lakes Boulevard, Second Floor

West Palm Beach, Florida 33401

Patricia Ramirez

7705 Camino Reel, Apartment B413

Miami, Florida 33143

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 Re lations

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.