12-000553 Delores Archinal vs. Sixth Moorings Condominium Association, Inc. Status: Closed Recommended Order on Tuesday, May 29, 2012.

Summary: Petitioner failed to prove, by a preponderance of the evidence, that Respondent unlawfully discriminated against her by failing to reasonably accommodate her handicap, in violation of the Fair Housing Act.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DELORES ARCHINAL , )

)

Petitioner, )

)

vs. ) Case No. 1 2 - 0553

)

SIXTH MOORINGS CONDOMINIUM )

ASSOCIATION , INC. )

)

Respondent. )

__________________________________)

RECOMMENDED ORDE R

Pursuant to notice, a hearing was cond ucted in this case

pursuant to s ections 120.569 and 120.57(1), Florida Statutes , 1 /

before Cathy M. Sellers , a n Administrative Law Judge of the

Division of Administrative Hearings, on May 11 , 2012 , by video

t eleconference at sites in Miami and Tallahassee, Florida.

APPEARANCES

For Petitioner: Delores Archinal , pro se

18555 Northeast 14 th Street

Miami , Florida 33179

For Respondent: Kevin Peters, Esquire

Stral ey & Otto, P.A.

Suite C - 207

2699 Stirling Road

Fort Lauderdale, Florida 33312

STATEMENT OF THE ISSUE

Whether Respondent unlawfully d iscriminated against

Petitioner by failing to reasonably accommodate her handicap , in

violation of Florida Ó s Fair Housing Act .

PRELIMINARY STATEMENT

On October 19, 2011, Petitioner, owner of a residential

unit in the Sixth Moorings Condominium, filed a Housing

Discrimination Complaint ( Ð Complaint Ñ ) with the U.S. Department

of Housing and Urban Development ( Ð HUD Ñ ) , claiming that

Res pondent , a condominium association , discriminated against her

in violation of the federal Fair Housing Act of 1968 by failing

to make reasonable accommodation of her handicap . HUD forwarded

the Co mplaint to the Florida Commission on Human Relations

( Ð FCHR Ñ ), which investigated the Complaint and issued a Notice

of Determination of No Cause , determining that reasonable cause

did not exist to believe that a discriminatory housing practice

had occurred under Florida Ó s Fair Housing Act and dismissing the

Complaint.

On February 13, 2012, Petitioner filed a Petition for

Relief ( Ð Petition Ñ ) with the FCHR. The FHCR forwarded the

Petition to the Division of Administrative Hearings for the

assignment of an administrative law judge and conduct of a

hearing pursuant to sections 120.569 and 120.57(1), Florida

Statutes.

The final hearing was held on May 11, 2012. Petitioner

testified on her own behalf and Petitioner Ó s Exhibit 1 was

admitted into evidence without objection. 2 / Respondent presented

the testimony of John Koble and Respondent Ó s Exhibits 2A, 2B,

and 2C were admitted into evidence without objection.

Neither the FHCR nor the parties preserved the hearing

testimony. 3 / The parties w ere given until May 21, 2012, to fil e

proposed recommended orders. Respondent filed its Proposed

Recommended Order on May 18, 2012. Petitioner did not file a

Proposed Recommended Order .

FINDINGS OF FACT

1. Petitioner is the owner of U nit N o. 710 ( Ð Unit Ñ ) in the

Sixth Moorings Condominium, located in Miami, Florida.

P etitioner lived there for approximately 11 years. She is not

currently living in the U nit.

2. Respondent is the condominium association responsible

for the operation and management of the Sixth Moorings

Condominium.

3 . In early 2010 , Petitioner suffered a stroke and

underwent heart surgery. It is undisputed that as a result of

her illness , P etitioner is Ð handicapped Ñ for purposes of the

Fair Housing Act. 4 /

4 . Petitioner spent several months in hospital s and

nursing homes recovering from her stroke and surgeries . When

she was released from these facilities, she did not resume

living in the Unit. She testified that t his was because she

could not go up a curb or step s , and because the condominium Ó s

elevator frequently was out of order. 5 / She moved into a ground

floor apartment a few blocks away from the Sixth Moorings

Condominium.

5 . Petitioner is not able to perform many basic tasks,

such as grocery shopping, driving, cl eaning her apartment,

taking out the garbage, or retrieving her mail . Consequently,

s he decided to invite her nephew, Charles Alsberg, to move into

the Unit , where he would be only a few minutes away from the

apartment in which she was residing , and thus could serve as her

caretaker.

6 . Alsberg moved into the Uni t i n or around August 2010.

7 . Petitioner did not reside in the Unit with Alsberg.

She testified that even though he is a family member, she would

not live in the Unit with him because she i s Ð an elderly woman

from a different generation and [she] would not live with a

young man unless he was [her] biological son. Ñ

8 . In late 2010, Respondent Ó s P resident, John Koble ,

contacted Petitioner about Alsberg living in her U nit.

Petitioner asked Koble to allow Alsberg to reside in the Unit so

that he could serve as her caretaker , but K oble told her that

because she was not residing there , Alsberg was considered an

unauthorized guest in violation of the condominium Ó s restrictive

covenants , and that he therefore must move out . Nonetheless ,

Alsberg continued to reside in the Unit for several more months,

until he became ill and was hospitalized.

9 . Following his release in August 2011, Alsberg returned

to live in the Unit . At this poi nt, Respondent ÏÏ this time,

through counsel ÏÏ sent Petitioner a letter stating that she was

viol ating the restrictive covenant prohibiting unauthorized

guest s , and demanding that Alsberg vacate the unit .

1 0 . O n September 13, 201 1 , Petitioner Ó s attorney sent a

response letter requesting that , due to restrictions on

Alsberg Ó s activity as a result of his illness, he b e allowed to

remain in the U nit for approximately 60 days .

1 1 . By correspondence dated September 15, 2011, Respondent

agreed to allow Alsbe rg to remain in the U nit through

November 12, 2011. At hearing, Petitioner acknowledged that

Respondent granted her request to allow Alsberg to stay there

during his recuperation .

1 2 . Notwithstanding this agreement, Alsberg did not vacate

the Unit until sometime in early 2012, several months after the

November 12, 2011 deadline . D uring this time, Respondent sent

numerous pieces of correspondence that Petitioner characterized

as Ð harassing Ñ and Ð threatening , Ñ regarding enforcement of the

condominium Ó s covenants and rules . Als berg finally vacate d the

U nit after Respondent sent a Ð final notice Ñ letter .

1 3 . Currently, Alsberg i s residing in an apartment

approximately four blocks from Petitioner Ó s apartment and is

serving as her caretaker.

1 4 . Koble testified that he was sympathetic to

Petitioner Ó s circumstances , but it was imperative that

Respondent consistently enforce the restrictive cove nants for

the benefit of all unit owners . Koble noted that other unit

owners also wanted to allow unauthorized guests to live i n their

units, and that if Respondent relaxed enforcement of the

covenant for Petitioner, it would be forced to do so for other s.

The undersigned credits this testimony.

1 5 . Koble also testified , credibly, that if Petitioner

were residing in her unit, Respondent would have granted an

accommodation of the covenant to allow Alsberg to live there for

the purpose of serv ing as her caretaker. 6 /

16 . The evidence establishe s that Petitioner did not

request any accommodation from Respondent that was necessary for

her equal opportunity to use and enjoy the U nit ; rather, the

purpose of Petitioner Ó s request that Respondent not enforce the

restrictive covenant against her was to enable her nephew to

live in the Unit .

CONCLUSIONS OF LAW

1 7 . The Division of Administrative Hearings has

j urisdiction over parties and subject matter of this proceeding ,

pursuant to sections 120.569 and 120.57(1).

I. Ð Reasonable Accommodation Ñ Claim Requirements

1 8 . Section 760.23(8) provides:

It is unlawful to discriminate against any person in

the terms, conditions, or privileges of the sale or

rental of a dwelling, or in the provision of services

or facilities in connection with such dwelling,

because of a hand icap 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.

19 . Section 760.23(9) provides in pertinent par t: Ð [f]or

purposes of subsections (7) and (8), discrimination includes:

. . . (b) A refusal to make reasonable accommodation in rules,

policies, practices, or services when such accommodations may be

necessary to afford such person equal opportunity to use and

enjoy a dwelling. Ñ

2 0 . The term Ð dwelling Ñ is defined in pertinent part to

mean Ð any building or structure, or portion thereof, which is

occupied as, or designed or intended for occupancy as, a

residence by one or more families. . . . Ñ §760.22(4), Fla.

Stat. Petitioner Ó s Unit is a dwelling for purposes of the Fair

Housing Act.

2 1 . Here, Petitioner claims that Respondent has unlawfully

discriminated against her by failing to reasonably accommodate

her handicap because it will not per mit her nephew to reside in

the Unit for the purpose of serving as her caretaker while she

resides in an offsite dwelling.

2 2 . Florida Ó s Fair Housing Act is modeled after the

federal Fair Housing Act. Accordingly , f ederal housing anti -

discrimination c ase law is instructive in interpreting Florida Ó s

law. Schwarz v. City of Treasure Island , 544 F. 3d 1201 (11th

Cir. 2008); Loren v. Sasser , 309 F. 3d 1296 (11th Cir. 2002);

Dorbach v. Holley , 854 So. 2d 211 (Fla. 2d DCA 2002).

2 3 . T o prevail, Petitioner m ust establish, by a

preponderance of the evidence, each of the following e lements

comprising a Ð reasonable accommodation Ñ claim: (1) that she is

handicapped within the meaning of the statute, and Respondent

knew or reasonably should have known of that handicap; (2) that

she requested a particular accommodation that i s necessary to

afford her an equal opportunity to use and enjoy her dwelling;

( 3 ) that the requested accommodation is reasonable; and ( 4 ) that

Respondent refused to make the requested accomm odation. See

Astralis Condo . Ass Ó n v. Garcia - Guillen , 620 F. 3d 62, 67 (1st

Cir. 2010); Colon - Jimenez v. GR M gmt. Corp. , 218 Fed. Appx. 2 , 3

(1st Cir. 2007); United States v. California Mobile Home Park

M gm t . Co. , 107 F.3d 1374, 1380 (9th Cir. 1997); McKivitz v.

T o wnship of Stowe , 769 F. Supp. 2d 803, 824 (W.D. Pa. 2010);

Stassis v. Ocean Summitt Ass Ó n, Inc. , 2008 U.S. Dist. LEXIS

31856 (S.D. Fla. 2008).

II. Petitioner Ó s Reasonable Accommodation Claim

2 4 . The parties stipulated that Petitioner is handicapped

within the meaning of the Fair Housing Act. Therefore , the

first element of Petitioner Ó s claim is met.

2 5 . However, Petitioner fails to meet the second element

of her Ð reasonable accommodation Ñ cl aim ÏÏ that is, that the

requested accommodation is necessary to afford her an equal

opportunity to use and enjoy her Unit . Fair Housing Act case

law makes clear that to establish the Ð necessity Ñ of a requested

accommodation, the handicapped person must show that the

accommodation sought affirmatively will enhance that person Ó s

quality of life by ameliorating the effects of the handicap .

Bronk v. Ineichen , 54 F.3d 425 (7th Cir. 1995). To that end,

the requested accommodation must be specifically linked to

alleviating the effect of the particular handicap. See Colon -

Jimenez , 218 Fed. Appx. at 3 ; Bronk , 54 F.3d at 429 . Here,

Petitioner Ó s requested Ð accommodation Ñ was to allow her nephew

to live in her U nit while she was not l iving there . Petitioner

has not shown that allowing her nephew to live in her Unit while

she does not reside there will ameliorate the effect of her

handicap 7 / such that she is afford ed an equal opportunity to use

and enjoy her Unit. The requested accommodation bears no

relationship to Petitioner Ó s opportunity or abil ity to use and

enjoy her Unit because by her own election , s he is not living

there . The term Ð necessary, Ñ as used in the Fair Housing Act,

is linked to the statute Ó s goal of affording equal opportunity

to the handicapped person , but the statute does not contemplate

superior treatment of that person. Lapid - Laurel, L.L.C. v.

Zoning Bd. of Adjustment of T ownship of Scotch Palm , 284 F.3d

442, 460 (3d Cir. 2002); Forest City Daly Housing, Inc. v. Town

of North Hempstead , 175 F.3d 144, 152 (2d Cir. 1999); Smith &

Lee Assoc., Inc. v. City of Taylor , 102 F.3d 781 (6th Cir.

1996). Here, the Ð accommodation Ñ Petitioner seeks effectively

would afford her treatment superior to that of other unit o wners

because excusing her non compliance with the covenant would not

ameliorat e the effects of her handicap with respect to her

opportunity to use and enjoy the Unit.

2 6 . Petitioner also has fail ed to prove that the request ed

accommodation is reasonable. An accommodation is Ð reasonable Ñ

when it imposes no Ð fundamental alteration in the nature of the

program Ñ or Ð undue financial and administrative burdens. Ñ

Howard v. City of Beavercreek , 276 F.3 d 802, 806 (6th Cir.

2002). Here, Petitioner has requested an accommodation that is

not aimed at affording her an equal opportunity to use and enjoy

her Unit, but instead is aimed at providing her nephew rent - free

housing while he serves as her caretaker at her offsite

apartment. In essence , Petitioner seeks relief from the

restrictive covenant to accommodate her personal preference

( i.e., her choice to live in an offsite apartment rather than in

the Unit with her nephew ) rather than her handicap. Under these

circumstances, grant ing the accommodation would require a

Ð fundamental alteration Ñ in Respondent Ó s administration and

enforcement of the restrictive covenant against unauthorized

guests . 8 / Therefore , the requested accommodation is not

reasonable.

2 7 . Petitioner has shown that Respondent re fused to grant

her accommodation request to allow her nephew to reside in her

Unit in her absence while serving as her caretaker. 9 /

Accordingly, she has established the fourth element of her

Ð reasonable accommodation Ñ claim.

2 8 . In sum, Petitioner did not establish that the

accommodation she r equested is necessary and reasonable . Thus ,

she failed to prove that Respondent unlawfully discriminated

against her by failing to reasonably accommodate her handicap

in violation of Florida Ó s Fair Housing Act .

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of

Law, it is RECOMMENDED that the Florida Commission on Human

Relations enter a Final Order finding no unlawful discrimination

by Respondent and dismiss ing the Petition f or Relief .

DONE AND ENTERED this 29 th day of May , 20 12 , in

Tallahassee, Leon County, Florida.

S

__________________________________

CATHY M. SELLERS

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 2 9 th day of May , 20 1 2 .

ENDNOTE S

1 / All references are to 2011 Florida Statutes.

2 / As her direct testimony at the final hearing, Petitioner read

into the record a letter she prepared before the hearing giving

her account of the events giving rise to the Complaint. That

letter was a dmitted into evidence as a late - filed exhibit.

3 / Section 120.57(1)(g) states in pertinent part: Ð [t]he agency

shall accurately and completely preserve all testimony in the

proceeding.... Ñ Notwithstanding the Legislature Ó s clear mandate

that the agency is to preserve the testimony in section

120.57(1) hearings, the FCHR failed to do so in this proceeding.

4 / ÐÒ Handicap Ó means: ... a person has a physical or mental

impairment which substantially limits one or more major life

activities, or he or she has a record of having, or is regarded

as having, such physical or mental impairment. . . . Ñ

§ 760.22(7)(a), Fla. Stat.

5 / Respondent Ó s president, John Koble, acknowledged that the

elevator had, at times, been nonfunctional. The hydraulic unit

was replaced, which had rendered the elevator nonfunctional for

a four - to five - day period. The elevator is now functional, and

in the event of the occasional breakdown, it is repaired within

a day. There is no evidence establishing that the elevator Ó s

state of disrepair was the sole, or even the primary, reason

Petitioner chose not to reside in her Unit upon her release.

6 / Additionally, Koble testified that if Alsberg Ó s name were

added to the deed for the Unit, he would be an owner and thus

allowed to live in the Unit. It appears that Respondent has

tried to suggest means by which Alsberg may reside in the Unit

without violating the restrictive covenants, but Petitioner has

been unwilling to follow these suggestions.

7 / Section 760.20(9) refers to making reasonable accommodation

in rules, policies, practices, or services to afford such person

the equal opportunity to use and enjoy a dwelling . The term

Ð such person Ñ refers to the handicapped person.

8 / Koble testified that relieving Petitioner from complying with

the covenant for reasons not constituting an accommodation of

her handicap could completely undercut the enforceability and

effectiveness of Respondent Ó s covenant against unauthorized

guests .

9 / Respondent takes the position that because it allowed Alsberg

to live in the Unit during his recuperation, it granted

Petitioner Ó s accommodation. However, the evidence established

that Petitioner Ó s accommodation request was to allow Alsberg to

live in her Unit to serve as her caretaker . That Respondent

allowed Alsberg to live in the Unit during his recuperation

(when he was not serving as Petitioner Ó s caretaker) was

commendably compassionate but d id not constitute a grant of

Petitioner Ó s requested accommodation.

COPIES FURNISHED :

Denise Crawford, Agency Clerk

Florida Commission on Human Relations

Suite 100

2009 Apalachee Parkway

Tallahassee, Florida 32301

[e-mail]

Lawrence F. Kranert., Jr., General Counsel

Florida Commission on Human Relations

Suite 100

2009 Apalachee Parkway

Tallahassee, Florida 32301

lawrence.kranert@fchr .myflorida.com

Charles Francis Otto, Esquire

Starley and Otto, P.A.

Suite C - 207

2699 Stirling Road

Fort Lauderdale, Florida 33312

[e-mail]

Delores Archinal

Apartment 710

18555 Northeast 14th Avenue

Miami, Florida 33179

N OTICE 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.