12-002279 Robert Pagano vs. The Fourth Bayshore Condominium Association, Inc., Karl Stemmler And Richard Grove Status: Closed Recommended Order on Wednesday, September 5, 2012.

Summary: Petitioner did not meed burden of proving discrimination.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

ROBERT PAGANO , )

)

Petitioner , )

)

vs. ) Case No. 12 - 2279

)

THE FOURTH BAYSHORE CONDOMINIUM )

ASSOCIATION, INC., KARL )

STEMMLER AND RICHARD GROVE , )

)

Respondents . )

)

RECOMMENDED ORDER

Pursuant to notice to all parties, a final hearing was

conducted in this case commencing on August 23, 2012, in

Bradenton, Florida, before Administrative Law Judge R. Bruce

McKibben of the Division of Administra tive Hearings.

APPEARANCES

For Petitioner: Robert Pagano, pro se

2235 Canal Drive

Bradenton, Florida 34207

For Respondent, The Fourth Bayshore Condominium

Association, Inc.:

Ron Campbell, Esquire

Patrick Boland, Esquire

Cole, Scott & Kissane, P.A.

27300 Riverview Center B ou l e v ar d

Bonita Springs, Florida 34135

For Respondent Karl Stemmler: No Appearance

For Respondent Richard Grove: Richard Gr ove, pro se

STATEMENT OF THE ISSUE

The issue in this case is whether Respondents, The Fourth

Bayshore Condominium Association, Inc. (ÐBayshoreÑ), Karl

Stemmler (ÐStemmlerÑ), and/or Richard Grove (ÐGroveÑ),

discriminated against Petitioner, Robert Pagano (ÐPagano"), on

the basis of his physical handicap in violation of the Florida

Fair Housing Act.

PRELIMINARY STATEMENT

Pagano filed a Housing Discrimination Complaint with the

Florida Commission on Human Relations (the ÐCommissionÑ) on or

about April 20, 2 0 12. The Commission entered a Notice of

Determination of No Cause dated June 6, 2012. A copy of the

Determination was sent to Pagano via certified mail. Pagano

then filed a Petition for Relief with the Commission dated

June 21, 2012. A copy of the Peti tion was forwarded to the

Division of Administrative Hearings ("DOAH") on June 28, 2012.

At the final hearing, Pagano testified on his own behalf

and offered six exhibits, each of which was admitted into

evidence. Bayshore and Grove called two witnesses : Richard

Grove and Jerald Van Buren, p resident of Bayshore. 1/ Bayshore's

Exhibits 1 and 2 , were admitted into evidence. Stemmler did not

testify or offer any exhibits into evidence. 2/

The parties advised that a transcript of the final hearing

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

from the final hearing to submit proposed recommended orders

(PROs). The PROs were due on or before September 4, 2012. Each

party timely filed a PRO and each was considered in the

preparation of this R ecommended Order.

FINDINGS OF FACT

1. Pagano is a Caucasian male who is handicapped by virtue

of medical complications which resulted in the amputation of his

left leg in March 2008. He has been confined to a wheelchair

since that time. At all times re levant hereto, Pagano was

renting a condominium unit at Bayshore.

2. In January 2012 , Pagano saw another unit at Bayshore

advertised for rent. He called Grove, listed as the owner of

the unit, and inquired about renting the property. Grove told

Pagano t hat a key to the unit would be left under a mat between

the screen door and front door on January 19, 2012. On that

day, Pagano went to inspect the unit, accompanied by a friend,

Philip Saglimebene.

3. Upon arrival at the unit, Pagano and his friend bega n

looking for the hidden key , but could not find it. They

apparently made some noise while searching for the key, because

they were confronted by Stemmler. According to Pagano, Stemmler

began asking them in unfriendly terms who they were and what

they we re doing at the unit. The friend then told Stemmler they

were looking for a key so they could go in and inspect the unit

as Pagano was interested in renting it from Grove.

4. Stemmler , supposedly identif ying himself as a Ðbuilding

representative , Ñ said t here was no key to be found. He also

reputedly told Pagano and his friend that they would not need a

key anyway , Ðbecause you are not moving in.Ñ When the friend

explained that the unit was for Pagano, not him, Stemmler

allegedly said that Pagano was not moving in either because he

was an Ðundesirable.Ñ When asked to explain that comment,

Stemmler purportedly said, ÐHe just is; thatÓs all you need to

know.Ñ (None of StemmlerÓs comments were verified by competent

evidence and, without verification or sup port, cannot be relied

upon to make a finding of fact in this case.)

5. Pagano believes StemmlerÓs purported comments were

based on the fact that he (Pagano) has long hair and a beard and

does not fit into the conventional norm at Bayshore. He also

belie ves that his handicap served as a basis for StemmlerÓs

alleged comments. There was no credible evidence presented at

final hearing to substantiate PaganoÓs suppositions.

6. Grove had put his condominium unit up for rent at the

beginning of the year. W hen Pagano called to inquire about it,

Grove Î who lives out - of - state Î notified a friend to leave a

key under the mat , as described above. That friend simply

forgot to leave a key at the unit on the designated date. Grove

knew nothing about PaganoÓs int eraction with Stemmler. Grove

had not spoken to Stemmler prior to the day he and Pagano had

their interaction. Stemmler had no authority to speak for Grove

or to make a decision concerning to whom Grove would rent his

condominium unit.

7. Subsequent t o the day Pagano visited the unit, Grove

took the unit off the rental market because his wife decided to

use the unit to house family and friends rather than renting it

out to someone else. It took several weeks for the rental

advertisement for the unit t o be removed from a locked bulletin

board at Bayshore.

8. Grove said that if the unit ever went back on the

market, he would call Pagano first about renting it, i.e., Grove

had no opposition whatsoever to Pagano Ós being a tenant.

9. Van Buren, presid ent of Bayshore, explained that the

condominium association utilizes the support of voluntary

building representatives to assist with security and minor

maintenance at Bayshore. The volunteers, who are generally

seasonal residents at Bayshore, do not hold keys to individual

units and have no authority to grant or deny an applicantÓs

request to rent a unit. Stemmler is one of many building

representatives who resides part - time at Bayshore.

10. Pagano does not know of any non - handicapped individual

who was allowed to rent a unit at Bayshore to the exclusion of

himself or any other handicapped person. In fact, Pagano

currently resides in another unit at Bayshore; he is already a

resident there.

CONCLUSIONS OF LAW

11. The Division of Administrative Hearings has

jurisdiction over the parties to and the subject matter of this

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

Statutes (2012). Unless specifically stated otherwise herein,

all references to the Florida Statutes shall be to the 2012

c odification.

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

s ections 760.20 through 760.37, Florida Statutes. Section

760.23, Florida Statutes, reads in pertinent part:

Discrimination in the sale or rental of

housing and other prohibited pract ices. Î

* * *

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 or igin, sex,

handicap, familial status, or religion.

13. Petitioner has the burden of proving by a

preponderance of the evidence that Bayshore, Stemmler , or Grove

violated the Act by discriminating against Pagano based on his

disability , as set forth in hi s complaint. §§ 120.57(1)(j) and

760.34(5), Fla . Stat .

14. Pagano testified that he was ready, able , and willing

to rent the disputed condominium unit and that he was a member

of a protected class. He was, he felt, prevented from renting

the unit becaus e of discrimination. Pagano established a prima

facie case for discrimination.

15. As shown, Stemmler had no authority whatsoever to make

a decision about PaganoÓs rental of the unit. Thus, any action

he took is irrelevant to this inquiry. Grove proved that he did

nothing other than offer to show Pagano his unit, but that a

mistake was made about the key. Bayshore, which already leases

a unit to Pagano, took no adverse action whatsoever against

Pagano.

16. There is no persuasive evidence that PaganoÓs handicap

was a factor in any decision made concerning his desire to rent

the condominium unit. While it is clear that Pagano believes in

his heart that he was discriminated against, there is no

evidence to support his contention.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of

Law, it is RECOMMENDED that a final order be entered by the

Florida Commission on Human Relations dismissing the Petition

for Relief filed by Robert Pagano in its entirety.

DONE AND ENT ERED this 5 th day o f September , 2012 , in

Tallahassee, Leon County, Florida.

S

R. BRUCE MCKIBBEN

Administrative Law Judge

Division of Administrative Hearings

The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399 - 3060

(850) 4 88 - 9675

Fax Filing (850) 921 - 6847

www.doah.state.fl.us

Filed with the Clerk of the

Division of Administrative Hearings

this 5 th day of September , 2012 .

ENDNOTES

1/ Pagano objected to the telephone appearance of Van Buren; his

objection was overruled a s the telephonic appearance was not

prejudicial to Pagano and served to expedite the final hearing.

2/ Pagano objected to the fact that Stemmler did not testify.

However, Pagano did not subpoena Stemmler , and there is no rule

requiring a party to appe ar at final hearing.

COPIES FURNISHED :

Ron M. Campbell, Esquire

Cole, Scott and Kissane, P.A.

Suite 200

27300 Riverview Center Boulevard

Bonita Springs, Florida 34135

Denise Crawford, Agency Clerk

Florida Commission on Human Relations

Suite 100

2009 A palachee Parkway

Tallahassee, Florida 32301

Robert Pagano

2235 Canal Drive

Bradenton, Florida 34207

Richard Grove

730 Abbie Lane

Kearneysville, West Virginia 25430

Lawrence F. Kranert, General Counsel

Florida Commission on Human Relations

Suite 100

2 009 Apalachee Parkway

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 fi led with the agency that

will issue the Final Order in this case.