11-004830 Barbara Porter vs. Imperial Embassy Condominium Four, Inc. Status: Closed Recommended Order on Friday, February 17, 2012.

Summary: Petitioner did not meet initial burden of proof; recommend dismissal of Petition for Relief.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

BARBARA PORTER , )

)

Petitioner , )

)

vs. ) Case No. 11 - 4830

)

IMPERIAL EMBASSY )

CONDOMINIUM FOUR, INC. , )

)

Respondent . )

)

RECOMMENDED ORDER

Pursuant to notice to all parties, a final hearing was held

in this case commencing on January 25, 2012, in New Port Richey,

Florida, before Administrative Law Judge R. Bruce McKibben of the

Division of Administrative Hearings.

APPEARANCES

For Petitioner: Barbar a Porter , pro se

5353 Buttonwood Drive

New Port Richey, Florida 34652

For Respondent: Scott H. Jackman, Esquire

Cole, Scott and Kissane, P.A.

4301 West Boy Scout Boulevard, Suite 400

Tampa, Florida 33607

STATEMENT OF THE IS SUE

The issue in this case is whether Respondent, Imperial

Embassy Condominium Four, Inc. ("Imperial"), discriminated

against Petitioner, Barbara Porter ("Porter"), on the basis of

her purported disability in violation of the Florida Fair Housing

Act.

PREL IMINARY STATEMENT

Porter filed a Petition for Relief with the Florida

Commission on Human Relations dated September 19, 2011. A copy

of the Petition was forwarded to the Division of Administrative

Hearings ("DOAH") on September 21, 2011.

At the final he aring, Porter testified on her own behalf and

called three additional witnesses: Ronald Sims, Cheryl Sohrweid,

and Mary Ellen Uzzo. Porter's E xhibits 1 , 2, 4, and 6 through 15

were admitted into evidence. Imperial called three witnesses:

Janet James, J acqueline Moran, and David Andrews. Respondent's

Exhibits 2 through 7 and 9 were admitted into evidence.

The parties advised that a transcript of the final hearing

would likely not be ordered. By rule, parties were allowed ten

days from the final hearing to submit proposed recommended orders

(PROs). The parties were ordered to advise the Administrative

Law Judge as to whether a transcript was ordered. If not, PROs

were due on or before February 6, 2012. Neither party timely

filed a PRO. Respondent fil ed a PRO on February 14, 2012;

however, there was no motion filed seeking leave to submit the

PRO later than allowed. Petitioner did not file a PRO.

Respondent's PRO was not considered in the preparation of this

Recommended Order.

FINDING OF FACTS

1. Po rter is a Caucasian female , who at all times material

hereto , resided at Imperial. Porter asserts she is "handicapped"

based on a mental condition. The only evidence presented at

final hearing to support that assertion was: 1) A certificate of

registrat ion from "USAR" - - an unidentified entity - - indicating the

registration of a "psychiatric service animal" to Porter on

February 19, 2011; and 2) Two letters ostensibly from a physician

saying Porter needed to have a pet for her mental and physical

well - being. There was no non - hearsay corroboration to support

Porter's assertion that she has or had a mental or psychological

condition which would constitute a handicap.

2. At all times material hereto, Porter was a resident at

Imperial, specifically residing at 5353 Buttonwood Drive. The

unit that Porter inhabited was part of a complex of buildings and

townhouses comprising the "condominium." The condominium was

apparently contained within a gated neighborhood.

3. Imperial is the homeowner's association for th e

condominium, which is located in Pasco County, Florida. The

association has been in existence since 1973. The residents of

the condominium are subject to the By - Laws of the association,

recorded at O.R. Book 673, Pages 697 - [uncertain] , 1/ in the public

records of Pasco County, Florida.

4. The By - Laws at s ection 7(g) specifically prohibit

residents to keep dogs or cats as pets in their respective units.

Other pets , such as fish and small birds , are allowed with some

restrictions. The By - Laws allow pe rsons who already own a small

dog or cat at the time they become a resident of the condominium

to keep that pet until it dies. However, the residents are

specifically prohibited from replacing a pet that dies . Further,

the By - Laws allow the association t o make a resident remove any

pet that is a nuisance to other residents. At some point in

time, the By - Laws were amended to allow cats, but not dogs, to be

kept as pets.

5. Porter purchased a unit in the condominium in December

2007. At that time she own ed a small dog, but did not bring the

dog to live with her at the condominium. Instead, she left the

dog with her son in another city. When Porter moved into her

unit, she was advised by Ms. James that dogs and cats were

prohibited.

6. Nonetheless, Port er later brought her dog to live with

her in her unit. Porter ostensibly tried to supply Ms. James

with a copy of a letter from her physician dated August 3, 2009 ,

saying the dog was necessary for her well - being. Ms. James does

not remember receiving any such letter. The dog died in March

2010.

7. When her first dog expired, Porter purchased a

replacement dog, clearly in violation of the By - Laws. 2/ She

obtained another letter from her physician dated March 11, 2010 ,

which stated: "Due to the mental and physical well - being, I

advised [Porter] to have her live [sic] pet live with her."

There is no diagnosis of Porter's condition or other explanation

in the letter , n or did her physician testify at final hearing.

8. The association notified Porter by let ter dated May 18,

2010, that additional documentation from a physician would be

required in order for her to keep the dog in her unit. On

July 6, 2010, a follow - up letter was sent to Porter advising her

that based on the letters she had submitted, the ass ociation's

board was considering her request and was imposing certain

restrictions concerning her dog. The restrictions -- e . g ., where

Porter could walk the dog, keeping the dog quiet, etc. -- were a

stop - gap measure to allow Porter to keep the dog until the

association board had an opportunity to meet and discuss the

situation. The president of the association followed up with a

letter again telling Porter to meet the restrictions that had

been imposed.

9. Porter continued to maintain her dog, but refused t o

fully comply with the restrictions imposed by the association.

She believed the restrictions were unreasonable and meant to

harass her. There was no credible evidence at final hearing to

support her assertion. As a result of Porter's non - compliance,

t he association's attorney sent Porter a letter dated October 28,

2010, requesting a letter from her physician certifying that her

condition met the definition of a disable d person under the

American with Disabilities Act, the Fair Housing Act, or the

Rehab ilitation Act of 1973. No such documentation was ever

provided to the association by Porter.

10. Meanwhile, another resident began to complain to the

association about Porter's dog. The resident had been working in

her yard when Porter brought her dog cl ose to the resident,

frightening her. The resident was extremely fearful of dogs and

did not want the dog near her. After making her complaint to the

association, the resident then hired an attorney to see if she

could get the covenants in the By - Laws en forced.

11. At least one other resident of the community had a dog.

That dog was allowed because the owner provided the association

board sufficient documentation to prove the animal was medically

necessary. There were similar restrictions imposed on tha t

resident relating to maintaining her dog within the community.

12. Some residents, including Ms. James, owned cats. It

was ultimately decided by the association to allow residents to

keep cats as pets.

13. Ultimately, the association board notified Port er that

she had failed to provide sufficient justification for the dog

and that it must be removed from the premises.

CONCLUSIONS OF LAW

14. The Division of Administrative Hearings has

jurisdiction over the parties to and the subject matter of this

proceed ing pursuant to s ections 120.569 and 120.57(1), Florida

Statutes (2011). Unless specifically stated otherwise herein,

all references to the Florida Statutes shall be to the 2011

codification.

15. Florida's Fair Housing Act (the "Act") is codified in

s ecti ons 760.20 through 760.37, Florida Statutes. Section 760.23

reads in pertinent part:

Discrimination in the sale or rental of

housing and other prohibited practices. --

* * *

(2) It is unlawful to discriminate against

any person in the terms, conditi ons, 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.

16. Petitioner has the burden of proving by a preponderance

of the evidence that Imperial violated the Act by discriminating

against Porter based on her disability as set forth in h er

complaint. § § 120.57(1)(j) and 760.34(5) .

17. In evaluating housing discrimination claims, courts

have applied the bu rden - shifting analysis developed in McDonnell

Douglas Corp. v. Green , 411 U.S. 792, 802 - 804 (1973), as later

refined in Texas Department of Community Affairs v. Burdine ,

450 U.S. 248, 252 - 253 (1981). Under this approach, Porter must

first make a prima fac ie case for discrimination.

18. A prima facie showing of housing discrimination simply

requires Porter to show that she was ready, able , and willing to

continue her residency at Imperial and that she was a member of a

protected class. See Soules v. U . S . D ep ' t of Hous . and Urban

Dev . , 967 F.2d 817, 822 (2d Cir. 1992). Porter did not provide

any persuasive evidence that she was handicapped in any way. The

hearsay evidence presented by Porter is insufficient to meet her

initial burden of proof.

19. However, even if Porter could have established that she

was handicapped, the burden of proof would then shift to Imperial

to show that the action it took - - denying Porter the right to have

a replacement dog in her condominium unit - - was based on a

legitimate, nondis criminatory reason. See St. Mary's Honor Ctr.

v. Hicks , 509 U.S. 502, 515 (1993). As shown, Imperial showed

that the By - Laws clearly prohibited residents from having a pet

dog, unless the dog was with the resident at the time they

purchased their condomi nium unit. That situation did not apply

to Porter, especially for her replacement pet.

20. That being the case, the burden would then shift back

to Porter to prove that Imperial's rationale was mere pretext and

that the real reason for its action was disc rimination. There is

no evidence in the record to support that contention. The

By - Laws are clear and unambiguous.

RECOMMENDATION

Based on the foregoing, Findings of Fact and Conclusions of

Law, it is

RECOMMENDED that a final order be entered by the Fl orida

Commission on Human Relations dismissing the Petition for Relief

filed by Barbara Porter in its entirety.

DONE AND ENTERED this 17th day of February , 2012 , in

Tallahassee, Leon County, Florida.

S

R. BRUCE MCKIBBEN

A dministrative 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 He arings

this 17th day of February , 2012 .

ENDNOTE S

1/ The copy of the By - Laws admitted into evidence are not

entirely readable. There appear to be pieces missing from the

By - Laws as presented. However, the gist of the document suggests

the recordation set forth above.

2/ Porter may have had a cat for some period of time after the

first dog died , but prior to purchasing her second dog. The

testimony was not clear as to that fact.

COPIES FURNISHED:

Denise Crawford, Agency Clerk

Florida Commission on Human Relations

2009 Apalachee Parkway, Suite 100

Tallahassee, Florida 32301

[e-mail]

Larry Kranert, General Counsel

Florida Commission on Human Relations

2009 Apalachee Parkway, Suite 100

Tallahassee, Florida 32301

Scott H. Jackman, Esquire

Cole, Scott and Kissane, P.A.

4301 West Boy Scout Boulevard , Suite 400

Tampa, Florida 33607

[e-mail]

Barbara Porter

5353 Buttonwood Drive

New Port Richey, Florida 34652

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

All parti es 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.