12-002074 Florida Commission On Human Relations, On Behalf Of John And Kimberly Whitt vs. Bayhead Landings Prop. Owners Ass'N, Inc., Kimball Lee, William Barthle, And Tony Kolka Status: Closed Recommended Order on Friday, February 15, 2013.

Summary: Petitioners failed to prove by a preponderance of the evidence that Respondents discriminated against the Whitts. Petition should be dismissed.

Case No. 12-2074

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

FLORIDA COMMISSION ON HUMAN )

RELATIONS, ON BEHALF OF JOHN RECOMMENDED ORDER )

AND KIMBERLY WHITT, )

Petitioners, )

)

vs. )

)

BAYHEAD LANDINGS PROP. OWNERS )

ASS'N, INC.; KIMBALL LEE; )

WILLIAM BARTHLE; AND TONY )

KOLKA, )

Respondents. )

)

)

)

Pursuant to notice, a formal hearing was held in this case

on December 12, 2012, in Dade City, Florida, before

Administrative Law Judge Lynne A. Quimby-Pennock of the Division

of Administrative Hearings (Division).

APPEARANCES

For Petitioners: David A. Organes, Esquire

Florida Commission on Human Relations

2009 Apalachee Parkway, Suite 200

Tallahassee, Florida 32301

For Respondents: Gary M. Schaaf, Esquire

Stuart J. Barks, Esquire

Becker and Poliakoff, P.A.

311 Park Place Boulevard, Suite 250

Clearwater, Florida 33759

STATEMENT OF THE ISSUES

The issues are whether Respondent, Bayhead Landings Property

Owners Association, Inc.; Kimberly Lee, president; William

Barthle, Architectural Review Committee (ARC) member; and Tony

Kolka, ARC member, discriminated against John and Kimberly

Whitt, 1/ on the basis of Mr. Whitt's physical handicap in

violation of the Florida Fair Housing Act (the Act), and, if so,

the relief to which Petitioners are entitled.

PRELIMINARY STATEMENT

The Florida Commission on Human Relations (FCHR) and the

United States Department of Housing and Urban Development (HUD)

administer the Act, sections 760.20 through 760.37, Florida

Statutes (2012). 2/ In October 2011, Mr. and Mrs. Whitt filed a

housing discrimination complaint with the FCHR. In March 2012,

Mr. and Mrs. Whitt were notified that the FCHR had investigated

their complaint and determined there was "reasonable cause to

believe that a discriminatory housing practice" had occurred.

The Whitts and Respondents were provided notification as to how

to proceed. After the requisite 30 days in which a conciliation

agreement could have been reached, but was not, the FCHR, on

behalf of the Whitts, issued a Notice of Failure of Conciliation

and filed a Petition for Relief (Petition) on behalf of the

Whitts. On June 14, the FCHR transferred the Petition to the

Division. An Amended Notice of Hearing, dated July 2, scheduled

the hearing for August 30. On August 14, a joint motion for

continuance was granted. On December 10, Respondents filed a

motion for continuance, which was heard later that day and

denied. The hearing was completed on December 12.

The case was originally assigned to Administrative Law Judge

Elizabeth W. McArthur, but was later transferred to

Administrative Law Judge Lynne A. Quimby-Pennock to conduct the

final hearing.

At the final hearing, Petitioners asked that judicial notice

be taken of chapter 760. The request was granted without

objection. Petitioners called Mr. Whitt and William Barthle to

testify. 3/ Petitioners offered the following exhibits, which were

received into evidence: 1, 3 through 6, and 10 through 12.

Respondents called the following two witnesses to testify:

Kimball Lee and Graeme Woodbrook. Respondents offered the

following exhibits, which were received into evidence: R-1

through R-5.

At the conclusion of the hearing, the parties were advised

that their proposed recommended orders (PROs) would be due ten

days after the transcript was filed. The one-volume Transcript

of the proceeding was filed on January 8, 2013. On January 16,

Petitioners filed a Motion for Extension of Time to File Proposed

Recommended Orders. The Respondents did not object. The motion

was granted, and each party timely filed its respective PRO.

Each PRO has been considered in the preparation of this

Recommended Order. There were undisputed facts within the pre-

hearing stipulation that, as warranted, are recorded herein.

FINDINGS OF FACT

1. Bayhead Landings Subdivision (Bayhead) is a deed-

restricted community for which the Bayhead Landings Property

Owners Association, Inc., was organized to operate and

administer. Deed restrictions have been in place since 1990 and

will continue in place until at least January 2031. 4/

2. It remains unclear how many Bayhead parcels front the

lake in question. There are four to five existing docks in that

lake; however, none of those existing docks extend more than

80 to 100 feet into the lake.

3. The Declaration of Covenants, Conditions, and

Restrictions for Bayhead provide in pertinent part:

6.(a) For the purpose of further insuring

the development of said land as a

residential/agricultural area of highest

quality and standard, and in order that

all improvements on each lot shall present

an attractive and pleasing appearance

from all sides of view, there shall be

a Committee consisting of no less than

three (3) persons appointed to review plans

and specifications, . . . .

(b) The Committee reserves the exclusive

power and discretion to control and approve

all of the buildings, structures and other

improvements on each lot or parcel in the

manner and to the extent set forth herein.

No residence, . . . or other structure

or improvement, regardless of size or purpose

. . . shall be commenced, placed, erected or

allowed to remain on any lot or parcel, . . .

unless and until building plans and

specifications covering same showing the

shape, height, size, location and orientation

on the lot, floor plans, square footage,

front, side and rear elevations, materials to

be incorporated and exterior color schemes

. . . have been submitted to and approved in

writing by the Committee.

* * *

(d) As a prerequisite to consideration for

approval, and prior to commencement of the

contemplated work, a complete set of plans

and specifications must be submitted to the

Committee. . . . .

4. The purpose of the ARC is to ensure that any development

in Bayhead maintains the "community standards and deed

restrictions" and is of the "highest quality and standard." To

ensure that goal is met, the ARC is to receive a complete set of

plans and specifications prior to the work starting.

5. Mr. Whitt has a physical handicap as defined by the Act,

section 760.22(7)(a). Mr. Whitt is confined to a wheelchair for

mobility.

6. The Whitts' backyard property has a significant slope

downhill or drop-off towards the lake. The area between the

house and the lake is muddy for a long distance, the terrain is

uneven, and it is not suitable for a wheelchair to traverse. No

evidence was received as to the actual distances between the

house and either the drop-off area or where the terrain becomes

uneven in the Whitts' backyard.

7. The water level in the lake has been relatively low for

some time; however, there is some water in it now.

8. On September 7, 2010, Mr. Whitt submitted a proposed

estimate and architectural review application to Respondents'

ARC, seeking approval to construct a stationary dock on the

Whitts' property (dock application). This dock application was

the first received by the ARC in many years, and there is no

evidence of any prior applications to build a stationary dock. 5/

9. The dock application (Petitioners' Exhibit 3) included a

three-page proposal (Proposal) from Coastal Construction;

Gulfside Docks 6/ that included the following "SPECIFICATIONS":

• Timber Piles 2.5CCA • Frame/Stringers/Caps

2" x 8" • Dock Lumber Pressure Treated .40 •

Dock Bolts 5/8" HDG • SS Nails/Screws

The Proposal also contained the following "STATIONARY DOCK"

information:

• Construct new 300' x 5' dock with 20 x 16

head.

• We will add 2" x 2" lumber along perimeter

of dock to act as bumper system

• Decking will be #1 pressure treated

decking.

• Stainless Steel Screws will be used to

secure deck boards

10. The dock application did not contain any specific

references to the dock being "wheelchair accessible"; however, it

did contain information about a bumper system. The second

proposal (Petitioners' Exhibit 10) contained the same

"SPECIFICATIONS." The second proposal contained similar

information regarding the "STATIONARY DOCK"; however, the

language regarding the bumper system was altered to reflect

"Install 2" x 2" wheel chair safety bumper around entire

perimeter of dock - Approx. 663'LF. Stainless steel screws will

be used as fasteners."

11. On September 19, 2010, William Barthle, a member of the

ARC, sent an e-mail to Mr. Whitt. The e-mail provided Mr. Whitt

with a portion of Bayhead's deed restrictions and requested "WE

NEED A DIAGRAM OF DOCKS [sic] PLACEMENT ON PROPERTY AS REFERENCED

IN DOCS."

12. On September 27, 2010, Mr. Whitt sent a plat map to the

ARC with a hand-drawn dock sketched on it. The hand-drawing was

not to scale and failed to provide detailed measurements of where

the dock was to begin in relation to the residence or shed that

were already on the property. Further, there was no rendering of

what the dock itself would look like.

13. On October 10, 2010, the ARC sent Mr. Whitt a letter

requesting four specific items in order for the ARC to consider

the dock application, including:

1. Square footage of dock

2. Height of dock

3. The exact location of the dock on your

property (distance from your house and

distance from property line on each side,

distance from any setback easement, or

wetlands buffer boundary)

4. A letter from Southwest Florida Water

Management District approving the placement,

length and location (starting/ending) of the

dock

14. Mr. Whitt's June 22, 2011, response letter (eight

months later) to the request failed to provide the requested

information. As of December 12, 2012, the Whitts had not

provided the requested information.

15. Mr. Barthle and Graeme Woodbrook both served on the ARC

when the Whitts' dock application was submitted. Both gentlemen

credibly testified that the Whitts' dock application failed to

provide enough information to allow them to make a decision about

it. Further, Mr. Woodbrook admitted he has some physical

limitations and is sympathetic to people who have disabilities.

While both men knew Mr. Whitt was confined to a wheelchair,

neither knew why Mr. Whitt had to use it.

16. Other ARC applications were admitted into evidence.

These ARC applications involved: painting the exterior of a

primary residence (two separate requests); landscaping in the

front yard of a residence for a non-permanent 6' x 8' fish pond;

replacing a playground set; resurfacing a pool deck, patio, and

front porch entry; resurfacing a driveway; and extending a

present screen porch. Of the three ARC applications that

involved some type of new construction (fish pond, playground

set, and porch extension), each contained pictures, dimensions,

and/or diagrams sufficient for the reviewer to appreciate where

the project was being constructed in relation to the house and

property lines. 7/

17. As of December 12, 2012, Respondent had neither

approved nor rejected the Whitts' dock application. That

application is simply not complete without the requested

information.

18. The dock application remains "pending," awaiting

receipt of the requested information. The Whitts' position that

they have provided everything that the builder has provided them

is insufficient to provide the ARC with the requisite information

to know where the dock will begin on the Whitts' property; how

far out the dock will extend into the lake; and what the

structure will look like.

CONCLUSIONS OF LAW

19. The Division has jurisdiction over the parties to

and the subject matter of this proceeding pursuant to

sections 120.569 and 120.57(1), Florida Statutes.

20. Mr. and Mrs. Whitt have the burden of proving by a

preponderance of the evidence that Respondents violated the Act

by discriminating against them, based on Mr. Whitt's disability.

21. The preponderance of the evidence standard requires

proof by "the greater weight of the evidence," Black's Law

Dictionary , 1201 (7th ed. 1999), or evidence that "more likely

than not" tends to prove a certain proposition. See Gross v.

Lyons , 763 So. 2d 276, 289 n.1 (Fla. 2000).

22. The Act is codified in sections 760.20 through 760.37.

Section 760.23 states, 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, 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.

23. Although it was established that Mr. Whitt is a member

of a protected class (handicapped/disabled) and that Respondents

were aware of his disability, the Whitts have failed to show by

the preponderance of the evidence that Respondents discriminated

against them based on Mr. Whitt's disability. The Whitts

submitted an incomplete ARC application which remains "pending."

The Whitts failed to prove their claim of discrimination. Once

the Whitts submit the requisite information, then the ARC will be

able to render a decision.

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 on behalf of Mr. and Mrs. Whitt.

DONE AND ENTERED this 15th day of February, 2013, in

Tallahassee, Leon County, Florida.

S

LYNNE A. QUIMBY-PENNOCK

Administrative Law Judge

Division of Administrative Hearings

The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-3060

[phone]

Fax Filing [phone]

www.doah.state.fl.us

Filed with the Clerk of the

Division of Administrative Hearings

this 15th day of February, 2013.

ENDNOTES

1/ The style of the case is Florida Commission on Human

Relations, on behalf of John and Kimberly Whitt.

2/ All references to Florida Statutes are to the 2012 version,

unless otherwise noted.

3/ Respondents had also listed these witnesses for its own case-

in-chief. To provide an orderly hearing flow and allow

Respondents the opportunity to elicit the direct testimony of

each witness, the undersigned allowed Respondents' cross

examination to go beyond Petitioners' direct.

4/ Although testimony regarding the extension of the deed

restrictions was offered, it was not the subject of the

complaint.

5/ In 2010, Graeme Woodbrook submitted an ARC application for the

construction of a floating dock. However, before the application

could be acted upon, the water level in the lake went down

significantly, and Mr. Woodbrook withdrew his application.

6/ Kimberly Whitt is listed as the sole "Customer" on the

"PROPOSAL" from the Coastal Construction; Gulfside Docks company.

7/ The fact that the playground set application was submitted

"after the fact" is of no consequence as it was, in fact, a

replacement to a playground set that had already been there, but

was decayed.

COPIES FURNISHED:

Gary M. Schaaf, Esquire

Stuart J. Barks, Esquire

Becker and Poliakoff, P.A.

311 Park Place Boulevard, Suite 250

Clearwater, Florida 33759

Denise Crawford, Agency Clerk

Florida Commission on Human Relations

2009 Apalachee Parkway, Suite 100

Tallahassee, Florida 32301

John Whitt

Kimberly Whitt

18246 Hancock Bluff Road

Dade City, Florida 33523

David A. Organes, Esquire

Florida Commission on Human Relations

2009 Apalachee Parkway, Suite 200

Tallahassee, Florida 32301

Cheyanne Costilla, Interim 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 issue the Final Order in this case.