12-001945 Ronald Ney vs. Royal Highlands Property Owners, Association, Inc. Status: Closed Recommended Order on Thursday, October 18, 2012.

Summary: Petitioner failed to establish a prima facie case that Respondent violated the Fair Housing Act by discriminating against Petitioner on the basis of a handicap.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

RONALD NEY , )

)

Petitioner , )

)

vs. ) Case No. 1 2 - 1945

)

ROYAL HIGHLANDS PROPERTY )

OWNERSÓ ASSCIATION, INC. , )

)

Respondent . )

)

RECOMMENDED ORDER

This case was heard on September 11, 2012 , in Leesburg ,

Florida, before E. Gary Early, a designated Administrative Law

Judge of the Division of Administrative Hearings.

APPEARANCES

For Petitioner: Leonard Wheeler, Qualified Representative

521 West Seminole Avenue

Eustis, Florida 32726

For Respondent: Erik F. Whynot, Esquire

Katzman, Garfinkel & Berger

300 North Maitland Avenue

Maitland, Florida 32751

STATEMENT OF THE ISSUE

Whether Petitioner was the subject of unlawful

discrimination in the provision of services or facilities in

connection with his dwelling base d on h is handicap, and whether

Respondent refused to make reasonable accommodations in its

rules, policies, practices , or services necessary to afford

Petitioner equal opportunity to use and enjoy a dwelling in

violation of the Florida Fair Housing Act, c hapter 760, Part II,

Flo rida Statutes.

PRELIMINARY STATEMENT

On February 13, 2012 , Petitioner filed a complaint with the

U.S. Department of Housing and Urban Development (HUD) and the

Florida Commission on Human Relations (FCHR), alleging that

Respondent discriminated against him b ased on h is disability .

The basis for the claim of discrimination was that Respondent

failed to make reasonable accommodation s for Petitioner to be

able to provide his comments reg arding an agenda item at a

July 13, 2011 meeting of the Royal Highlands P roperty Owners

Association, Inc. (RHPOA or Respondent), in violation of the

Fair Housing Act.

An investigation of the complaint was made by FCH R. On

May 14, 2012 , FCHR issued its Notice of Determination of No

Cause, which incorporated a March 22, 2012 HUD Determination,

a nd which conclud ed that there was no reasonable cause to

believe that a discriminatory housing practice had occurred.

Petitioner disagreed with FCHRÓs determination and filed a

Petition for Relief. The petition was forwarded to the Divis ion

of Administrative Hearings for a formal hearing. The final

hearing was scheduled for August 10, 2012 . Respondent requested

a continuance of the hearing, which was unopposed. The hearing

was reset for September 11, 2012 , and was held as scheduled.

At the hearing, Petitioner testified on h is own behalf and

offered the testimony of Susan Hoffman, a member of the RHPOA

Board of Directors . Petitioner o ffered PetitionerÓs Exhibits

P1 - P 5 , whi ch were received in evidence. Respondent presented

the testimony of Robert Reichel, a member of the RHPOA Board of

Directors ; Stacey Peach, an employee of Leland Management , the

community association manager for Respondent ; Lee Norden, a

homeowner in the Royal Highlands community; and John Banahan,

current p resident of the RHPOA Board of Directors . Respondent

o ffered RespondentÓs Exhibits R1 - R 7 , which were received in

evidence.

After the hearing, Petitioner filed a number of documents

and request s that the record of the hearing be reopened. By

separate orders, the documents were not received in evidence,

and the record was not reopened.

A one - volume T ranscript of the final hearing was filed on

October 4 , 2012. On October 8, 2012, a Notice of F i ling

T ranscript was entered that established Monday, October 15,

2012 , at 5:00 p.m. , as the deadline for filing Proposed

Recommended Orders. Petitioner timely filed his Proposed

Recommended Order , which ha s been considered in the preparation

of this Recom mended Order. References to statutes are to

Florida Statutes (2011) unless otherwise noted.

FINDINGS OF FACT

1. Petitioner is a homeowner in the Royal Highlands

community in Leesburg, Florida, and has been a member of the

RHPOA since moving into his ho me in April 2001. 1/ From September

2010 , t hrough February 2011, Petitioner served on the RHPOA

Board of Directors.

2. Respondent is a property ownersÓ association,

membership in which is limited to property owners in the Royal

Highlands residential community in Leesburg, Florida. The re are

1,499 homes in the Royal Highlands community. The community is

divided into twelve Ðdistricts.Ñ RespondentÓs Board of

Directors (Board) consists of one represe ntative from each of

the twelve districts . Meetings of the Board are held monthly,

except for August when community activities are typically

sparsely attended.

3. Leland Management is a community association management

company that provides management s ervices to the RHPOA a long

with other community associations.

4 . Petitioner alleged that he suffers from a disability

because he walks with the use of a cane, and that h is ability to

speak is impaired as a lingering effect of a 2004 neck surg ery

that involved insertion of a n endo tracheal tube during and

immediately after the procedure .

5 . During the month of February 2011 , Petitioner was

running for reelection to the RHPOA Board of Directors . On the

day of the election, and prior to the vote of the membership,

Petitioner appeared at the RHPOA meeting to make a final

statement and thank his supporters . He walked to the front of

the community meeting room, known as the Great Hall, but did not

want to take the steps up to the elevated stage for fe ar that he

might lose his balance and fall off. Petitioner was given a

microphone and he thanked his supporters from the base of the

stage. Afterwards, he walked back to his seat. Petitioner was

not reelected to the Board, but continued to attend meetin gs as

a member of the RHPOA.

6 . A monthly meeting of the RHPOA was held o n July 13,

201 1 . The agenda included four items, including an item that

would authorize the Board of D irectors to retain legal counsel

in the event a threatened lawsuit was filed against Bob

Fitzpatrick, who was then the president of the RHPOA .

7 . The nature of the potential lawsuit was not in

evidence, except that it involved a complaint filed with the

Lake County Sheriff by Petitioner against Mr. Fitzpatrick.

Mr. F itzpatrick recused himself from the vote, since any legal

fees would be expended on his behalf as p resident . John

Banahan, then the v ice - p resident of the RHPOA , acted as chair

during the consideration and vote on the agenda item.

8 . The RHPOA allows mem bers to speak regarding any issue

on the agenda. Members must sign a ÐSign - Up Sheet to Speak to

Agenda ItemÑ for each item on which they wish to be heard.

Members are allowed three minutes to speak on each issue for

which they have signed up.

9 . The minutes regarding a particular agenda item

typically reflect only whether a motion was made , who seconded

the motion , who voted, and the results of the vote. When there

is a significant amount of discussion , the minutes may, as did

the minutes for the leg al counsel agenda item of the July 13,

2011 meeting, include something no more detailed than Ð[m]uch

discussion, residents and Board Members.Ñ Neither the comments

of property owners nor the discussions of the Board members as

to an agenda item are record ed in the minutes of meetings of the

RHPOA.

10 . When Petitioner was on the Board, he would routinely

take notes at meetings, and then destroy the notes after the

meeting was concluded. That was consistent with the practice

described by other testifyin g members of the Board.

11 . Petitioner attended the July 13, 2011 meeting of the

RHPOA with his wife . He entered the meeting room on his own

power and without difficulty , though he used a cane, signed up

at the door to speak on the agenda item regarding the BoardÓs

proposal to retain legal counsel , and took a seat at one of the

tables. Petitioner made no request for assistance of any kind

at the time he signed up to speak .

12 . Stacey Peach attended the July 13, 2012 meeting a s a

representative of Leland Management. Ms. Peach periodically

attends meetings of the various associations served by Leland

Management . Her attendance at the July 13, 2012 RHPOA meeting

was coincidental. Ms. Peach was seated at a table in front of

Pet itioner.

13 . When it was his turn to speak on the legal counsel

agenda item , Petitioner was recognized by Mr. Banahan.

Petitioner announced , without assistance of a microphone, that

he could not go to the podium.

14 . Mr. Banahan noted ÐconfusionÑ in the audience, but did

not realize what was going on with regard to PetitionerÓs

request to speak on the agenda item, though he understood that

Petitioner was unable to come to the podium at the front of the

room. Mr. Banah an testified convincingly that he had no problem

with Petitioner speaking from his seat . H e was aware of at

least two other instances in which a microphone was taken to an

attendee of a Board meeting so as to allow them to speak while

seated , one of which occurred when he was a member of the Board.

15 . Ms. Peach heard Petitioner state that he was not able

to go to the podium to offer his comments. She thereupon got a

portable microphone and handed it to Petitioner.

16 . Petitioner asked Ms. Peach if s he would speak on his

behalf. Petitioner had not spoken with Ms. Peach earlier, and

his request caught her off guard . Not knowing what Petitioner

wanted her to say, she declined to speak for him. Her refusal

was based on surprise and uncertainty, and no t on any

discriminatory motive.

17 . After Ms. Peach declined to speak on PetitionerÓs

behalf, Petitioner took the microphone provided to him, and

offered his comments on the agenda item from his seat.

Petitioner testified that as long as the microphone was working,

he saw no reason why he would not have been heard. Except for

Ms. Hoffman, whose testimony is discussed below, the witness es

who w ere asked indicated they had no problem hearing what

Petitioner had to say, though none could remember the substance.

18 . Petitioner testified that he made a specific request

of Mr. Banahan to allow someone to speak on his behalf, and that

M r. Banahan refused the request. PetitionerÓs testimony was

contradicted by Ms. Peach, who was directly involved in the

incident ; Mr. Norden, wh o was seated next to Petitioner;

Mr. Reichel, who attende d the meeting as a Board member; and

Mr. Banahan . The greater weight of the evidence establishes

that no request for another person to speak on PetitionerÓs

behalf was made to any member of the Board, and that the only

such request was made, without prior notice, to Ms. Peach.

19 . PetitionerÓs claim that his request was denied by

Mr. Banahan was supported only by the testimony of Ms. Hoffman.

However, Ms. HoffmanÓs testimony was undermined by the fact that

her overall account of the incident differed in several

significant and material respects from the testimony of other

witnesses, including that o f Petitioner. For example,

Ms. Hoffman indicated that Ms. Peach was not asked to speak for

Petitioner, that Petitioner asked someone seated next to him to

speak, that Petitioner had difficulty reading his note s , that

Petitioner was unable to complete his comments, and that

PetitionerÓs speech was, at best, marginal. Whether

Ms. HoffmanÓs description of events was the result of a poor

vantage point or of poor memory, it is not credited.

20 . Mr. Banahan testif ied that if Petitioner had been

unable to speak, he would have allowed someone to read a

statement on his behalf. 2 / However, Mr. Banahan testified that

he was not asked to make such an accommodation , and that

Petitioner was able to comment on the agenda item from his seat.

Mr. BanahanÓs testimony is credible and is accepted .

21 . Mr. Banahan testified that he has known Petitioner

from his service as a member of the Board and never perceived

him as having a handicap. Mr. Banahan knew that Petitioner

wa lked with a cane. However, Mr. BanahanÓs wife walks with a

cane and he does not consider her to have a handicap.

22 . Petitioner provided Respondent with no medical

records, letters from his physicians, or competent evidence of

any kind to establish that he had a disability or that he

required an accommodation in o rder to participate in the

July 13, 2011 meeting, nor did he produce any such evidence at

the hearing. At the hearing, b ased upon the undersi gned's

observation, Petitioner had little or no difficulty walking or

speaking .

23 . Petitioner failed to prove that he ha s a physical

impairment that substantially limit s one or more major life

activities, or that he was regarded by any director or member of

the RHPOA as having any suc h physical impairment . To the

contrary, the greater weight of the evidence demonstrates that

Petitioner d oes not suffer from a handicap as defined in the

Fair Housing Act.

Ultimate Findings of Fact

24 . There was no competent, substantial evidence adduced

at the hearing that Petitioner suffered from a handicap that

hindered his ability to actively participate in the July 13,

2011 RHPOA meeting. There was no competent, substantial

evidence adduced at t he hearing that Respondent knew of any

alleged handicap or regarded Petitioner as being handicapped.

There was no competent, substantial evidence adduced at the

hearing that Respondent failed to reasonably accommodate

Petitioner when he asserted that he w ould not be able to walk to

the podium. The evidence adduced at the hearing established

that Petitioner made no direct request to any member of the

RHPOA Board of Directors to allow someone to speak on his

behalf. The evidence adduced at the hearing esta blished that

Petitioner was able to clearly state his comments on the legal

representation agenda item by using the portable microphone

provided to him by M s. Peach. T he evidence did not establish

that Petitioner was the subject of unlawful discrimination in

the provision of services or facilities in connection with his

dwelling based on his handicap, or that Respondent refused to

make reasonable accommodations in its rules, policies, practices

or services necessary to aff ord Petitioner equal opportunity to

use and enjoy his dwelling .

CONCLUSIONS OF LAW

25 . The Division of Administrative Hearings has

jurisdiction over the parties to and the subject matter of this

proceeding . § 120.57(1), Fla. Stat . (2012).

26 . Petiti oner has the burden of proof to establish that

Respondent violated the Florida Fair Housing Act. § 760.34(5),

Fla. Stat.

27 . FloridaÓs Fair Housing Act, s ections 760.20 through

760.37, Florida Statutes , makes it unlawful to discriminate

against persons in matters incident to a dwelling on the basis

of a handicap, or to fail make reasonable accommodations to

allow such persons to use and enjoy the benefits of a dwelling .

In that regard, sub s ection 760.23(2), provides that:

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 r eligion.

28 . Subsect ion 760.23(8) provides:

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 with such dwelling,

because of a handicap 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.

29 . Subsection 7 60.23(9) provid es, in

pertinent part:

For purposes of subsections (7) and (8),

discrimination includes:

* * *

(b) A refusal to make reasonable

accommodations in rules, policies,

practices, or services, when such

accommodations may be necessary to afford

such person eq ual opportunity to use and

enjoy a dwelling.

30 . The Florida Fair Housing Act is patterned after Title

VIII of the Civil Rights Act of 1968, as amended by the Fair

Housing Act of 1988, and discrimination covered under the

Florida Fair Housing Act is the same discrimination prohibited

under the Federal Fair Housing Act. Savanna Club Worship Serv.

v. Savanna Club Homeowners' Ass'n , 456 F. Supp. 2d 1223, 1224

(S.D. Fla. 2005); see also Loren v. Sasser , 309 F.3d 1296, 1300

(11th Cir. 2002). When Ða Florida statute is modeled after a

federal law on the same subject, the Florida statute will take

on the same constructions as placed on its federal prototype.Ñ

Brand v. Florida Power Corp. , 633 So. 2d 504, 509 (Fla. 1st DCA

1994); see also Millsa p v. Cornerstone Residential Mgmt. ,

2010 U.S. Dist. LEXIS 8031 (S.D. Fla. 2010); Dornbach v. Holley ,

854 So. 2d 211, 213 (Fla. 2d DCA 2002); Fla. Dep't of Cmty. Aff.

v. Bryant , 586 So. 2d 1205 (Fla. 1st DCA 1991).

31 . 42 U.S.C. Subsection 3604(f)(3)(B) d efines unlawful

discrimination to include a refusal to make reasonable

accommodations in rules, policies, practices, or services, when

such accommodations may be necessary to afford a handicapped

person equal opportunity to use and enjoy a dwelling.

32 . In order to prevail on a claim of failure to make a

reasonable accommodation under 42 U.S.C. § 3604(f)(3),

Petitioner must show that :

a) he suffers from a handicap;

b) Respondent knew of the handicap;

c) an accommodation of the handicap was necessary to

afford Petitioner an equal opportunity to use and enjoy his

dwelling ; and

d ) Respondent refused to make such an accommodation.

United States v. Hialeah Hous. Auth. , 418 Fed. Appx. 872, 875

(11th Cir. 2011); Hawn v. Shoreline Towers Phase I Condo.

AssÓn . , 347 Fed. Appx. 464, 467 (11th Cir. 2009) ; Dubois v.

AssÓn of Apt. Owners , 453 F.3d 1175, 1179 (9th Cir. 2006) .

33 . Petitioner has alleged that the ÐrefusalÑ of the RHPOA

to allow Ms. Peach, or someone else, to speak for him at the

July 13, 2011 meeting constituted discrimination in the

provision of services or facilities in connection with his

dwelling based on his han dicap, and that the RHPOA refused to

make reasonable accommodations to allow him to participate in

the RHPOA meeting. PetitionerÓs claim s fail for several

reasons.

34 . Petitioner's claim that the RPHOA failed to make

reasonable accommodation suffers at a jurisdictional level

because participation at a meeting of a property ownersÓ

association meeting , without more, bears little relationship to

"the terms, conditions, or privileges of sale or rental of a

dwelling, or . . . the provision of services or fac ilities in

connection therewith."

35 . I f a property ow nersÓ association has sufficient

control over the services and facilities associated with home

ownership, a circumstance particularly evident in planned

communities, a ctions on the part of an association may be

actionable under the Fair Housing Act. Savannah Club Worship

Serv. v. Savannah Club HomeownersÓ AssÓn , 456 F. Supp. 2d at

1229 - 1230. However, Petitioner introduced no evidence of the

scope of authority or the d uties of the RHPOA, and how the

activities of the RHPOA in the conduct of its meetings might

affect the provision of services or facilities in connection

with PetitionerÓs home ownership. Without some non - hearsay

evidence of the authority of the RHPOA, th e applicability of

Savannah Club Worship Serv. t o this case is limited . The lack

of evidence regarding the scope of the RHPOAÓs control over the

services and facilities in the Royal Highlands community

notwithstanding, the undersigned has determined it to be

appropriate to proceed with a substantive review of the actions

of the RHPOA towards Petitioner to determine if those actions

constitute a violation of the Florida Fair Housing Act.

36 . As to the first element of the analysis, sub s ection

760.22 (7) , Florida Statutes, provides that:

(7) "Handicap" means:

(a) 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;

or

(b) A person has a developmental disability

as defined in s. 393.063.

Th at definition is virtually identical to th at found in the

feder al Fair Housing Act, 42 U.S.C. s ubsection 3602(h).

37 . The Fair Housing Act does not define the term Ðmajor

life activities.Ñ However , Ð noting congressional intent that

provisions of [the Fair Housing Act] related to disability be

read similarly to provisions in [ the Americans with Disabilities

Act ] ,Ñ the Middle District of Florida has applied the ADA

definition to the Fair Housing Act, holding that :

the term is defined in the Americans with

Disabilities Act (ADA) as "caring for

oneself, performing manual tasks, seeing,

hearing, eating, sleeping, bre athing,

learning, reading, concentrating, thinking,

communicating, interacting with others, and

working."

McKay v. S. Seas E. Condo Apts. o f Marco Island, Inc. , 2012 U.S.

Dist. LEXIS 96495, *10, fn.6 (M.D. Fla. 2012 .)

38 . An impairment that substantial ly limits one or more

major life activities must be more than an inconvenience. Under

the Fair Housing Act, Ðsomeone who walks, sits, stands or sleeps

Òmoderately below averageÓ is not disabled und er the Act.Ñ

Wells v. Willow Lake Estates, Inc. , 390 Fed. Appx. 956, 958

(11th Cir. 2010). In that case, the complainant , under the Fair

Housing Act , contended that he Ðcannot bend over or move

easily.Ñ The Court held that Ð[w]e agree with the district

court that [the complainant] has not adequately pleaded that he

is a handicapped individual.Ñ Id.

39 . In the instant case, the evidence established that

Petitioner walked with a cane, though he was abl e to enter the

meeting room for the July 13, 2011 RHPOA meeting under his own

power . Petitioner testified to an unspecified restriction on

speaking, though he was able to clearly make his comments at the

July 13, 2011 RHPOA meeting. Petitioner offered ab solutely no

medical evidence to establish his disability. See Taggart v.

Associated Estates Realty Corp. , 2011 U.S. Dist. LEXIS 101509,

*7 - 8 (S.D. Ohio, 2011) ; McCree v. Lexington Vill. Apts. &

Amurcon Corp. , 2010 U.S. Dist. LEXIS 22873, *17 - 18 (E.D. Mich.

2010) ; Hawn v. Shoreline Towers Phase I Condo. AssÓn. , 2009 U.S.

Dist. LEXIS 24846, *16 - 17 (N.D. Fla. 2009). PetitionerÓs

appearance and participation at the final hearing provided no

suggestion of any significant limitation on either his ability

to walk or speak. The documentary and testimonial evidence in

this case was insufficient to establish that Petitioner was

substantially limited in his ability to perform a major life

activity and therefore disabled as defined in t he relevant

statutes. Thus , Petitioner's claim fails to meet the first

element of the reasonable accommodation test.

40 . If Petitioner had been successful in establishing that

he had a handicap -- which he was not -- t he second element

necessary for Petitioner to prevail on his claim of a lack of

reasonable accommodation was show that the RHPOA knew of his

handicap. As applied to this case, the RHPOA:

Ð cannot be liable for refusing to grant a

reasonable and necessary accommodation if

[it] never knew the accommodation was in

fact necessary. Ñ Other circuits have held

that this means that the defendant must know

or reasonably be expected to know of the

existence of both the handicap and the

necessity of the accommodation . Ñ (citations

omitted)

Hawn v. Shoreline Towers Phase I Condo. AssÓn. , 347 Fed. Appx.

at 467 .

41 . Petitioner must have Ð actually request [ed] an

accommodation and be refused in order to bring a reasonable

accommodation claim under the FHA.Ñ Without such a request, the

RHPOA Ðcannot be liable for refusing to grant a reasonable and

necessary accommodation if [ it ] never knew the accommodation was

in fact necessary.Ñ United States v. Hialeah Hous. Auth. , 418

Fed. Appx. at 875 ( citing Schwarz v. City of Trea sure Island ,

544 F.3d 1201, 1219 (11th Cir. 2008) ) . In that regard:

1 8

the duty to make a reasonable accommodation

does not simply spring from the fact that

the handicapped person wants such an

accommodation made. Defendants must instead

have been given an opportunity to make a

final decision with respect to Plaintiffs'

request, which necessarily includes the

ability to conduct a meaningful review of

the requested accommodation to determine if

such an accommodation is required by law.

Schwarz v. City of Treasure Island , 544 F.3d at 1219 ( citing

Prindable v. Ass'n of Apt. Owners , 304 F. Supp. 2d 1245, 1258

(D. Haw. 2003) ) .

42 . Petitioner offered no evidence that he ever advised

Respondent of his alleged handicap, or of the need for any

accommodation. Mr. Banahan served on the Board with Respondent

for six months, and never noted an inability of Respondent to

participate in the meetings. During the February 2011 RHPOA

election, Respondent walked to the front of th e Great Hall and

addressed the members . When he signed in to speak at the

July 13, 2011 RHPOA meeting, Petitioner advised no one that he

would need assistance making his presentation.

43 . It was not until he was called to speak on the legal

representation agenda item that Petitioner claimed to be unable

to walk to the podium or speak on the item. The evidence

establishes that the statement that he was unable to walk to the

podium was made without the assistance of a microphone, and that

the assertion of his inability to speak was made , without prior

notice, to Ms. Peach and not to Respondent. Given the absolute

lack of forewarning, Ms. PeachÓs reaction to PetitionerÓs

request - - a n odd request in itself given that PetitionerÓs wife

was seate d next to him - - was understandable, and provided no

evidence of discrimination on the part of Ms. Peach, Leland

Management, or the RHPOA.

44 . Petitioner did not present persuasive evidence that

the RHPOA or its agents were aware of h is disability . Th us,

Petitioner's claim fails to meet the second element of the

reasonable accommodation test.

45 . Finally, Petitioner failed t o demonstrate that the

RHPOA refused to provide reasonable accommodation designed to

allow him to make his concerns regarding the legal

representation agenda item known. Petitioner was provided with

a microphone at his seat, and made his comments i n a clear and

understandable way. Thus, Pe titioner's claim fails to meet the

final element s of the reasonable accommodation test. 3/

46 . Petitioner did not meet h is burden to establish a

prima facie case of discrimination. Petitioner failed to prove

that he suffered from a handicap, that Respon dent was aware of

the alleged handicap , or that Respondent failed to reasonably

accommodate PetitionerÓs alleged handicap .

47 . For the reasons set forth herein, Petitioner has

failed to prove that Respondent discriminat ed against him in the

provision of services or facilities in connection with his

dwelling based on his handicap, or that Respondent refused to

make reasonable accommodations in its rules, policies,

practices , or services necessary to afford Petitioner equal

opportunity to use a nd enjoy his dwelling in violation of the

Florida Fair Housing Act, chapter 760, Part II, Florida

Statutes.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of

Law, it is RECOMMENDED that the Florida Commission on Human

Relations iss ue a final order dismissing the Petition for Relief

filed in FCHR No. 2012H0 158 .

DONE AND ENT ERED this 18th day of October , 2012 , in

Tallahassee, Leon County, Florida.

S

E. GARY EARLY

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 18th day of October , 2012 .

ENDNOTE S

1/ Petitioner purchased his lot in Royal Highlands prior to

April, 2001, and was likely a member of the RHPOA as a result.

However, Petitioner considers himself to have been an active

member beginning when he moved into his home in April 2001.

2/ Mr. Nord en indicated that he would have been willing to read

a statement on PetitionerÓs behalf if asked. In addition,

PetitionerÓs wife attended the meeting and was seated with

Petitioner throughout. Why Petitioner did not consider his wife

to be a suitable spo kesperson if, in fact, he was having

difficulty speaking was not explained.

3/ That no one could remember the substance of PetitionerÓs

comments may be evidence of disinterest, but it is not evidence

of discrimination.

COPIES FURNISHED :

Denise Crawford, Agency Clerk

Florida Commission on Human Relations

2009 Apalachee Parkway , Suite 100

Tallahassee, Florida 32301

[e-mail]

Erik Flint Whynot, Esquire

Katzman, Garfinkel and Berger

300 North Maitland Avenue

Maitland, Flor ida 32751

[e-mail]

Leonard Edward Wheeler, Jr.

521 West Seminole Avenue

Eustis, Florida 32726

[e-mail]

Larry F. Kranert, Jr., General Counsel

Florida Commission on Human Relations

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 is sue the Final Order in this case.