11-000035 Raymond Geisel And Susanne Kynast vs. City Of Marathon, City Marina Status: Closed Settled and/or Dismissed prior to entry of RO/FO on Wednesday, August 31, 2011.

Summary: Recommended order of dismissal for failure to state a claim for which relief may be granted. Claim of post-acquisition housing discrimination is based on indirect discrimination of marina operator.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

RAYMOND GEISEL AND )

SUSANNE KYNAST , )

)

Petitioner s , )

)

vs. ) Case No. 11 - 0035

)

CITY OF MARATHON, CITY MARINA, )

)

Respondent. )

________________________________)

RECOM MENDED ORDER OF DISMISSAL

On February 28, 2011, Respondent filed a Renewed Motion to

Dismiss Petition for Relief, or for an Order Relinquishing

Jurisdiction. This case arises under the Florida Fair Housing

Act, sections 760.20, et seq. , Florida Statutes . In construing

this act, Florida courts are guided by the decisions of federal

courts construing the state law's federal counterpart, the

f ederal Fair Housing Act, as amended, 42 U.S.C. sections 3601,

et seq. Dornback v. Holley , 854 So. 2d 211, 213 (Fla . 2d DCA

2002).

This recommended order contains complicated, policy - laden

legal conclusions within the substantive jurisdiction of the

Florida Commission on Human Relations (Commission), not the

Administrative Law Judge. § 120.57(1)(l), Fla. Stat. The

alleged facts of the case, if tried, will take days of

testimony, which may prove contentious and painful for witnesses

and parties. Rather than risk subjecting the parties to the

time, expense, and turmoil of an evidentiary hearing on the

merits of the housing discrimination claims, the Administrative

Law Judge has elected to provide the Commission with a

discussion of the applicable substantive law, a recommended

disposition, and a timely opportunity to reject or modify the

Administrative Law Judge's co n clusions of law -- in which case, of

course, the Commission may remand the case to the Division of

Administrative Hearings for an evidentiary hearing and

recommended order.

There is no material dispute as to the jurisdictional

facts. Petitioner Kynast exe cuted a license agreement on

January 20, 2008. By this agreement, she acquired several

rights: to tie up her liveaboard boat to a city marina mooring

ball; to use a dinghy to travel from her moored boat to the

marina dock, where she could dock her dinghy ; and to use the

upland marina facilities, such as showers, bathrooms, laundry,

parking, garbage receptacles, television and recreation room,

storage, and septage pumpout.

In August 2008, Petitioner Geisel, who had been living with

Petitioner Kynast on the boat, departed from the marina area, to

which he did not return until December 2009.

At some point prior to Petitioner Geisel's return,

Petitioner Kynast relocated her boat from the city marina

mooring area to another part of the harbor. The state of

Florida owns the submerged bottom of both areas. However,

Respondent, which leases its mooring area from the state of

Florida, has no interest in the area of the harbor to which

Petitioner Ky n ast relocated her boat.

According to Respondent, this reloc ation occurred around

January 20, 2009. According to Petitioners, this relocation may

have happened closer to Petitioner Geisel's return in December

2009; however, the relocation predated his return.

Significantly, Petitioner Ky n ast alleges that she was mostly

left alone by the offending marina residents during Petitioner

Geisel's absence, although she received some complaints about

Petitioner Geisel's service animals. Thus, this dispute in the

facts is without significance.

Respondent makes several arg uments in its motion. First,

it argues that the limitations period in this administrative

proceeding is one year from the date of the filing of the

housing complaint. This contention is correct . Petitioners

filed their Housing Discrimination Complaint o n September 28,

2010. Pursuant to section 760.34(2), Florida Statutes, the

complaint must be filed within one year of when the alleged

housing discrimina tion occurred. Section 760.35 provides a two -

year limitations periods for civil actions, but no limit ations

periods for administrative proceedings. The jurisdiction of the

Division of Administrative Hearings is derived from the

jurisdiction of the Florida Commission on Human Relations, so

the limitations period for this proceeding start s September 28 ,

20 09.

Jurisdiction in this case is based on section 760.23(2) :

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 therewith, because

of race, color, national origin, sex,

handicap, familial status, or religion.

Respondent has reserved the argument that it never engaged

in the sale or rental of a dwelling. This contention is

incorrect. Until the relocation of Petitioner Kynas t's boat,

Respondent engaged in a relationship with Petitioners that would

support a conclusion of jurisdiction under the Fair Housing Act,

sections 760.20, et seq. As noted in the preceding Order, a

marine vessel may be a dwelling unit. Project Life, In c., v.

Glendening , 139 F. Supp. 2d 703, 710 - 11 (D. Md. 2001), aff'd on

other grounds , 46 Fed. Appx. 147 (4th Cir. 2002). The

definition of "dwelling" ultimately boils down to determining

what the aggrieved parties do at the putative dwelling, in terms

of residential - type activities, and how long they live in the

putative dwelling. T he more residential - t ype things they do at

the puta tive dwelling and the longer they remain there, the more

likely it is a dwelling under the federal Fair Housing Act.

Schwart z v. City of Treasure Island , 544 F.3d 1201, 1215 (11th

Cir. 2008).

It is not determinative that Respondent never rented

Petitioners a liveaboard boat, only a mooring buoy. The

situation is similar to when an aggrieved party rents a trailer

lot, but rel ocates his trailer to the lot. This arrangement

confers jurisdiction under the federal Fair Housing Act over the

entity leasing the lot to the aggrieved party. See , e.g. ,

Morgan v. Housing and Urban Development , 985 F.2d 1451, 1452

(9th Cir. 1993). The definition of "dwelling" at section

760.22(4) specifically includes "vacant land . . . offered for .

. . lease for the . . . location on the land of any building or

structure . . . ."

But Respondent is correct in asserting that this rental

relationship ended prior to the start of the limitations period.

And Respondent is correct in asserting that the relationship

between the parties, after Petitioner Kynast relocated the boat

off the city marina mooring area, was insufficient to establish

the requisite rental relationship within the meaning of the

first clause of section 760.23(2): " sale or rental of a

dwelling." The dwelling was a combination of the liveaboard

boat and the mooring, and Petitioner Kynast's relocation of the

boat off the city marina moo ring area ended the landlord - tenant

relationship between Petitioners and Respondent, as the dinghy

and the upland marina accessory facilities do not qualify as a

dwelling.

At this point, it is necessary to determine whether the

clause, "or in the provisio n of services or facilities in

connection therewith," modifies "sale or rental of a dwelling,"

or merely "dwelling." The more restrictive interpretation of

the statute would apply this clause to "sale or rental of a

dwelling." This would tend to restrict claims of housing

discrimination to the transaction in which the aggrieved party

acquired the ownership or leasehold interest in the dwelling.

The more expansive interpretation of the statute would ap ply

this clause to "dwelling," s o claims of housing di scrimination

could attach to post - acquisition acts or omissions, even by

parties that did not participate in the transaction by which the

aggrieved party acquired the ownership or leasehold interest in

the dwelling. Inferentially, Respondent argues for th e more

restrictive inte rpretation of section 760.23(2).

As far as the Administrative Law Judge can determine, the

Commission has provided no guidance on this issue in its final

orders. Twice, the Florida Commission on Human Relations has

issued final ord ers stating, in dictum, that section 760.23(2)

applies to sales. In H eiblum v. Carlton Bay Ass' n, Inc. , DOAH

Case No. 08 - 5244, FCHR Case No. 28 - 92666H, Final Order No. 09 -

042 (May 12, 2009), the Commission declined to adopt an

Administrative Law Judge's c onclusions of law that section

760.23(2) does not extend to a homeowner, as distinguished from

persons seeking to purchase or lease a dwelling and from

tenants.

In reaching the result that it did in Heiblum , the

Commission relied on its earlier final or der in Kleinschmidt v.

Three Horizons North Condominium, Inc. , FCHR Case No. 25 - 91782H,

Final Order No. 07 - 013 (Feb. 15, 2007), which stated , also in

dictum , that section 760.23(2) is available for a condominium

owner who alleges a "hostile housing environ ment . . .

sufficiently severe or pervasive to alter the conditions of the

housing arrangement."

Respondent omits any discussion of post - acquisition

discrimination, but, it may be safely assumed, it would not

invite the Commission to construe section 7 60.23(2) in such a

fashion. C ase law from the United State s district courts in

Florida does not close the door claims for relief for post -

acquisition discrimination based on 42 U.S.C. section 3604(b),

which corresponds to section 760.23(2), Florida Statut es.

The most favorable case for Respondent is Lawrence v.

Courtyards at Deerwood Association, Inc. , 318 F. Supp. 2d 1133

(S.D. Fla. 2004). In this case, a black couple purchased a home

in a residential development consisting of townhomes, single -

fami ly homes, and condominiums. As required, the plaintiffs

joined the homeowners' association for the development. The

purchase and sale was unremarkable. Shortly after moving in,

the couple began to have problems with a neighbor. The problems

involved co mplaints direct toward the neighbor of roaming cats,

verbal assaults (including racial epithets), cut cable lines,

threatening notes, and the appearance of dead rats on front

steps and back patios. Reciprocal compla ints from the neighbor

included claims t hat the plaintiffs parked in handicapped

spaces, trespassed on her property, took pictures of her house,

and threatened her. The plaintiffs informed the homeowners'

association and demanded that it stop the racial harassment.

The homeowners' association conducted a reasonable investigation

and concluded that the dispute was entirely personal. Finally,

the neighbor threatened to kill one of the plaintiffs, who

immediately moved out.

As to the section 3604 claims before it , the Lawrence court

first distin guished Evans v. Tubbe , 657 F.2d 661 (5th Cir.

1981), in which the defendant erected a locked gate across a

road that passed through his land, providing a key to all the

white persons who owned real property that required use of the

road for access, but no t to the black persons needing to get by

the gate to access their real property. The Lawrence court

restricted Evans to cases of "direct discrimination" plus

threats, intimidation, and harassment. Presumably, this

analysis applied to the section 3604(a) claim before the court ,

as the Evans court restricted its holding to section 3604(a) and

declined to reach the "less arguable claims under . . .

§ 3604(b)." 657 F.2d at 663.

The Lawrence court held that the homeowners' association

was not required, und er section 3604(b), to protect the

plaintiffs' quiet enjoyment of their common area. In so doing,

the Lawrence court reasoned that the phrase, "the provision of

services or facilities in connection therewith," modifies the

"sale or rental of a dwelling," not merely the "dwelling."

Two federal district courts in Florida have distinguished

Lawrence on the basis that it applies to a sale, not a rental

transaction. Obviously, rental transactions are markedly

different from sales transactions in the duration of the

relationship between the potentially aggrieved party and the

potential defendant. This distinction is discussed in Richards

v. Bono , 2005 U.S. Dist. LEXIS 43585 (M.D. Fla. 2005), as the

court ruled that the federal Fair Housing Act extends to post -

acquisition discrimination against a tenant, where "acquisition"

is the discrete act of the acquisition of the leasehold. See

also Jackson v. Comberg , 2006 U.S. Dist. LEXIS 66405 (M.D. Fla.

2006).

But the Florida federal dist rict court case that deals mo st

comprehensive ly with post - acquisition discrimination is Savanna

Club Worship Service, Inc., v. Savanna Club Homeowners'

Ass' n, Inc., 456 F. Supp . 2d 1223 (S.D. Fla. 2005). The

Commission should follow this case, to the extent of any

conflict with Lawre nce , due to the superior reasoning in

Savanna ; the Savanna court's readiness t o apply 42 U.S.C.

section 3604(b) to a sales transaction, which comports with the

dictum in the Commission's two final orders , discussed above ;

and the result that permits the ap plication of the Fair Housing

Act to prohibit important, institutional sources of post -

acquisition housing discrimination, as mentioned below.

In Savanna , some homeowners within a homeowners' community

had organized a religious group that was denied the use of the

community's club house and other common area. The court noted

that other courts, including Lawrence , generally declined to

recognize post - acquisition discrimination, unless it "deprives a

person of their [sic] housing." 456 F. Supp. 2d at 122 8.

However, the Savanna court refused to create a "bright - line

rule" that the federal Fair Housing Act fails to reach any post -

acquisition discrimination. The court recognized that the

federal Fair Housing Act might apply more readily to the

provision of services in planned communities where the services

are integrated with the home ownership. Citing a regulation of

the U.S. Department of Housing and Urban Development, the court

noted that the federal agency interpreted the phrase, "the

provision of se rvices or facilities in connection therewith," as

modifying "dwelling," not "sale or rental." This lent further

support to the court's conclusion that discriminatory conduct

that deprives homeowner association members of the use of common

area is actionab le under the federal Fair Housing Act. Failing

to find a complete denial of access to services connected to the

dwelling, though, the court granted summary judgment for the

defendant.

If the Commission and courts recognize post - acquisition

housing discri mination under the Fair Housing Act, they will

draw distinctions to avoid an unmanageable proliferation of

litigation that wanders far afield from the obvious purpose of

the legislation, which is to prohibit housing discrimination.

Courts have more readil y recognized post - acquisition

discrimination to the extent that it is both direct and it

deprives the aggrieved person of substantial enjoyment of her

dwelling -- as in cases of post - acquisition housing discrimination

by homeowner insurers, s ee , e.g. , Ojo v. Farmers Group , 600 F.3d

1205, 1208 (9t h Cir. 2010) ; home imp rovement or refinancing

lenders, see , e.g. , Beard v. Worldwide Mortgage Corp. , 354

F. Supp. 2d 789, 809 (W.D. Tenn. 2005) ; local governments, see ,

e.g. , Larkin v. Michigan Dep't of Social Servs. , 89 F.3d 285,

288 - 89 (6th Cir. 1996); Ass'n for Retarded Citizens v. City of

Fultondale , 672 So. 2d 785 (Ala. 1995).

By requiring both direct discrimination and substantial

deprivation of enjoyment of one's dwelling for a claim of post -

acquisition discr imination under section 760.23(2), the

Commission will prevent extension of the Fair Housing Act into

what are essentially squabbles among neighbors, be they members

of condominiums associations, hom e owner associations, or

marinas. As in Lawrence , these s quabbles may regrettably

contain epithets of a category covered by the Fair Housing Act,

but a claim for relief should require careful analysis of a

combination of the directness of the involvement of the

defendant and the extent to which the aggrieved par ty has

suffered the deprivation of enjoyment of her dwelling as a

result of the discrimination .

On the basis of the allegations, this case presents a good

instanc e of substantial deprivation of enjoyment of one's

dwelling, as Petitioners were impeded in their ability to

perform such basic tasks as laundry, garbage dispo sal, and

grocery shopping. But, on the basis of the allegations, this

case presents a poor instance of direct discrimination.

Petitioners have not alleged direct discrimination by

Respond ent. The direct acts of discrimination are alleged to

have been committed by other residents of the marina.

Petitioners' claim against Respondent is essentially that, after

they complained of direct discrimination from other marina

residents, Respondent did nothing.

This case is a very poor vehicle for the recognition of

post - acquisition housing discrimination in Florida for another

reason . Uncertainty attaches to what event marks the point of

acquisition. Perhaps it is the liveaboard, which may have been

acquired many years earlier. Perhaps it is the liveaboard and

the city mooring, but no case law addresses post - acquisition

discrimination following disposition of the "dwelling" -- for what

should be obvious reasons. Likely, it is the liveaboard and the

subsequent mooring, but as the relationship of Respondent to

Petitioners' dwelling attenuates, the directness of the

requisite discrimination to trigger liability under the Fair

Housin g Act probably should intensify, if a claim for relief is

to be reco gnized.

Based on the foregoing, it is

RECOMMENDED that the Commission enter a final order

dis missing the Petition for Relief.

DONE AND ENTERED this 11th day of March , 2011, in

Tallahassee, Leon County, Florida.

S

___________________________________

ROBERT E. MEALE

Administrative Law Judge

Division of Administrative Hearings

The DeSoto Buil ding

1230 Apalachee Parkway

Tallahassee, Florida 32399 - 3060

(850) 488 - 9675 SUNCOM 278 - 9675

Fax Filing (850) 921 - 6847

w ww.doah.state.fl.us

Filed with the Clerk of the

Division of Administrative Hearings

this 11th day of March , 2011.

COPIES FURNISHED:

Denise Crawford, Agency Clerk

Florida Commission on Human Relations

2009 Apalachee Parkway, Suite 100

Tallahassee, Florida 32301

Raymond Geisel

Susanne Kynast

PO Box 500345

Marathon, Florida 33050

Andrew Rodman, Esquire

Stearns, Weaver, Miller

Weissler, Alhadeff, and Sitterson, P.A.

150 West Flagler Street, Suite 220

Miami, Florida 33130

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 hav e the right to submit written exceptions within

15 days from the date of this recommended order. Any exceptions

to this recommended order must be filed with the agency that

will issue the final order in this case.