13-003704 Ina Ludka vs. Winston Towers 600 Condo Association, Inc. Status: Closed Recommended Order on Thursday, July 17, 2014.

Summary: Recommended dismissal of petition for relief where Petitioner failed to establish housing discrimination.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

INA LUDKA,

Petitioner,

vs. Case No. 13 - 3704

WINSTON TOWERS 600 CONDO

ASSOCIATION, INC.,

Respondent.

_______________________________/

RECOMMENDED ORDER

This case came before Admi nistrative Law Judge Todd P.

Resavage for final hearing on November 6, 2013, in Miami,

Florid a, and continued on December 16 through 17, 2013 (via video

teleconference), and concluded on March 28, 2014 (via video

teleconference).

APPEARANCES

For Petition er: Ina Chambers Ludka, Pro se

210 174th Street , Unit 310

Sunny Isles Beach, Florida 33160

Roger G. Pickles, Esq uire 1 /

Law Office of Robert P. Kelly

2514 Holl ywood Boulevard , Suite 307

Hollywood, Florida 33020 - 6636

For Respondent: Sherril M. Colombo, Esquire

Wilson, Elser, Moskowitz,

Edelman & Dicker LLP

100 Southeast Second Stre et , Suite 3800

Miami, Florida 33131 - 2144

STATEMENT OF THE ISSUE

Whether Respondents committed the unlawful housing

discrimination practices alleged in the Housing Discrimination

Complaint filed with the Florida Commission on Human Relations

( " FCHR " ) and, if so, what relief should Petitioner be granted.

PRELIMINARY STATEMENT

On February 2 2 , 2013 , Petitioner filed against Winston

Towers 600 Condominium Associations, Inc. ( " Association " ),

Winston Towers Board of Direc tors, Jorge Nunez, and Moni ca

Za rante, a Housing Discrimination Complaint ( " Complaint " ) with

FCHR. 2 / The Complaint, in its entirety, is set forth below:

Complainant Ina Ludka belongs to a class of

persons whom the Act protects from unlawful

discrimination because of her race and s ex.

Complainant owns a condominium unit located

at 210 - 174th Street #0310 Sunny Isles Beach,

FL 33160 Miami - Dade County under the rules

and regulations of Winston Towers 600

Condominium Association, Inc.

According to Complainant sometime in 2012 she

wa s denied her right to participate on

Association committees because of her race.

Complainant also alleged she was denied

access to the association financial records

and records that related to a particular

unit. Complainant alleged according to the

assoc iation documents the requested records

should be made available to all unit owners.

Complainant made a request to review the

records on July 30, 2012 and November 01,

2012. Complainant alleged on her first

request was denied and after her second

request she was made to pay for the documents

that she wanted to view. Complainant alleged

no other unit owner is required to pay for

the requested documents.

Complainant was given an appointment of

November 15, 2012 at 9 am to come to the

office and inspect th e requested documents.

Complainant alleged all the documents were

not provided and when she requested the

missing documents the Property Manager Monica

Zerante became irate and called the police.

In addition, Complainant alleged on multiple

occasions her son was denied access to her

home when he attempted to visit her.

Complainant alleged the most recent denial of

access in the community was on February 04,

2013. In addition, Complainant also alleged

she was also denied access to the property,

and her h ome and Respondents called the

police on her when she attempted to let

herself onto the property and into her home.

Complainant believes Respondents have placed

a lien on her home because of her race but

have not placed liens on other similarly

situated p ersons of another race.

Complainant believes she was denied the right

to view documents, given different terms and

conditions, and she and her visitors were

denied access in to the community because of

their race, in violation of the Fair Housing

Act.

On August 21, 2013, following the completi on of its

investigation of the C om plaint , FCHR issued a Notice of

Determination: No Cause.

Petitioner elected to pursue administrative remedies, timely

filing a P etition for Relief with FCHR on Septem ber 19, 2013.

Subsequently, on September 24, 2013, FCHR referred the matter to

DOAH for further proceedings.

The final hearing was scheduled, and initially conducted, in

Miami, Florida, on November 6, 2013. The hearing did not

conclude on November 6, 2013, and, therefore, was continued on

December 16 and 17, 2013. The hearing did not con clude on

December 17, 2013, and was ultimately continued and concluded on

March 28, 2014. 3 /

The final hearing Transcript was filed on May 8, 2014. The

iden tity of the witnesses and exhibits and the rulings regarding

each are as set forth in the Transcript. On May 15, 2014,

Respondents filed a Motion for Extension of Time to File Proposed

Order, and same was granted on May 19, 2014. On May 22, 2014,

counsel for Petitioner filed a Notice of Appearance and a Motion

for Extension of Time to File Proposed Order. On that same date,

the undersigned issued an order granting Petitioner ' s motion and

ordering that proposed recommended orders shall be submitted on

or before June 2, 2014.

Petitioner timely filed her Proposed Recommended O rder on

June 2, 2014 , which was considered in preparing this Recommended

Order . On June 3, 2014, Respondent filed a Motion for Second

Extension of Time to File Proposed Order. On that same date, the

undersigned denied said motion. On June 5, 2014, Respondent

filed a Motion for Reconsideration of Court Order Entered June 3,

2014. On that same date, the undersigned denied said motion. On

June 6, 2014, Respondent filed a Motion to Accept Proposed Order

Reflecting Findings of Fact and Conclusions of Law. On June 6,

2014, the undersigned denied said motion.

Unless otherwise indicated, all rule and statutory

references are to the versions in effect at the time of the

alleged violations.

FINDING S OF FACT

1. Petitioner is an African - American female.

2. Petitioner is a " unit owner " of a condominium located at

210 - 174th Street #310, S unny Isles Beach, Florida. Said unit is

located in the Winston Towers 600 Condominium ( " Cond ominium " ).

3. Respondent, the Association, is a Florida non - profit

corporation and the entity responsible for the operation of the

Condominium.

4. Respondent , Board of Directors , possesses the powers and

duties necessary for the administration of the affairs of the

Condominium . Pursuant to the Association By - Laws, the affairs of

the Association are to be governed by a board of initially three,

and not less than three, nor more than nine directors.

5 . Respondent, Jorge Nunez, was the President of th e

Association ' s Board of Directors at all times material to the

Complaint. During his tenure, Mr. Nunez was also the chairman of

the financial committee. 4 /

6 . Respondent, Monica Zarante, possesses a Florida

Community Association Manager ( " CAM " ) license a nd at all times

material was the Association ' s manager.

Condominium Facilities and Services

7 . Pursuant to the Condominium prospectus, the following

facilities have been constructed in the Condominium, and form a

part of the " common elements " of th e Condominium and are to be

used exclusively by the unit owners, their tenants, and guests:

(a) clubroom and entertainment areas (billiard room, library,

men ' s and women ' s card rooms, meeting room and kitchen, bicycle

room, and large screen television roo m); (b) main lobby; (c) mail

room; (d) laundry room and vending machine room; (e) association

office; (f) four elevators; (g) recreational facilities (tennis

court, recreation pavilion, men and women ' s health clubs, party

room, and sun deck ); (h) L - shaped swimming pool ; (i) jogging

trail ; (j) two shuffleboard courts; and (k) an irregularly - shaped

reflecting pool.

8 . Pursuant to the Condominium prospectus, the following

are the delineated utilities and services available to the

Condominium: electric ity, telephone service, waste disposal,

domestic water supply, sanitary sewage, storm drainage, and

master antenna service.

Association Committees

9 . As noted above, Petitioner ' s Complaint alleges that,

" sometime in 2012 she was denied her right t o participate on

Association committees because of her race. "

10 . Association By - Law 5.2 addresses committees and

provides as follows:

Committees . The Board of Directors may

designate one or more committees which shall

have the powers of the Boar d of Directors for

the management of the affairs and business of

the Association to the extent provided in the

resolution designating such a committee. Any

such committee shall consist of at least

three members of the Association, at least

one of whom sha ll be a Director. The

committee or committees shall have such name

or names as may be determined from time to

time by the Board of Directors, and any such

committee shall keep regular minutes of its

proceedings and report the same to the Board

of Director s as required. The foregoing

powers shall be exercised by the Board of

Directors or its contractor, manager or

employees, subject only to approval by Unit

Owners when such is specifically required.

11. Respondent Nunez credibly testified that the

availability to participate on committees is open to all unit

owners. If an owner wishes to be on a committee, he or she

simply needs to communicate that desire to the particular

committee chairperson. Mr. Nunez, at some point in time, was

apparently the chairman of the financial committee.

12 . In Petitioner ' s direct examination of Respondent Nunez,

the following exchange occurred:

Q. Okay. Did you say, " You sit at this

table with us, never ? "

A. Never. I can ' t say that. I can ' t say

" never . " I cannot reject anybody to belong

to any committee. I can ' t. It ' s impossible.

Q. Okay.

A. I like you, I don ' t like you, you want to

be on the committee, you have a right to be

on the committee.

13 . Petitioner testified that she was denied a ccess to the

financial committee to which Mr. Nunez chaired. Petitioner

failed, however, to present sufficient evidence for the

undersigned to determine whether this alleged denial occurred

during the time relevant to the allegations of Petitioner ' s

Compl aint. Even if relevant, outside of her bare assertion,

which is not credited, Petitioner failed to present sufficient

evidence to establish that she was ever denied the right to

participate on any Association committee.

14 . As a subset, Petitioner argues that she was denied

" meaningful participation " on the committees, and thus, in

condominium decision - making. In support of this contention,

Petitioner references the testimony from Association Board Member

Audrey Bekoff. In response to Petitioner ' s question of " why did

the Petitioner point her finger at you?, " Ms. Bekoff responded as

follows:

I haven ' t got the slightest idea. When you

get angry, you pull your hair, you scream,

you yell, you wipe the things off Monica ' s

desk. You knock the things off. Everybody

knows you on the Board. When you come into

the meeting, everybody leaves.

15 . Petitioner contends that the " refusal to allow her to

participate arose from Respondents ' extreme dislike for her, and

this extreme dislike was likely b ased, at least in part, on her

race. " Petitioner ' s contention, however, is belied by the record

evidence. Indeed, audio recordings of various Association

meetings provide multiple examples of Petitioner ' s robust

participation in a variety of condominium issues.

16. Assuming, arguendo, that Petitioner provided evidence

to support the position that she is not well - liked, aside from

her bald allegation, she failed to present any evidence of

discriminatory animus in regard s to Association committee

pa rticipation.

Association Records

17 . Petitioner claims she was denied access to the

Association ' s financial records (in general) and records related

to a particular condominium unit, U nit 2007 , on the basis of her

race . Petitioner alleges that th e records requests were made on

July 30, 2012, and November 1, 2012.

18. Monica Zerante testified that the Association ' s

protocol for requesting records from the Association included

submitting a request in writing, and, there after, the Association

provides a copy of the requested document or the requesting party

may be given access to find the document. She further explained

that the Association ' s policy is to charge 25 cents per copy;

however, that charge is frequently waived.

19. Mr. Nun ez provided the further detail that once the

Association receives a records request, the Association has ten

days to accommodate the request. Although the Association has

established rules regarding the frequency and time of record

inspections and copying , Mr. Nunez credibly testified that same

were not enforced concerning Petitioner.

20. It is undisputed that on at least one occasion, while

Petitioner was present in the Association ' s office for the

purpose of inspecting/review ing Association docume nts, a conflict

arose between Petitioner and Monica Zerante such that

Ms. Zerante requested law enforcement assistance.

21. In support of her contention that she was treated

differently because of her race, Petitioner testified as follows:

A. Ok ay. Mr. Nu n ez, while not on the Board,

goes to the office and he gets a monthly

statement of the Association operating budget

on a monthly basis and he is entitled to

that. I go and request the same thing and

I ' m told I have to pay for it. And if I

obje ct to paying for it, then the police is

called.

* * *

Q. You have no evidence that Mr. Nunez, when

he was off the Board, did not similarly have

to pay for records, correct?

A. I have seen with my eyes that he has not.

Q. Well, you have no idea if he actually

paid for those records separately, do you?

A. I ' ve never seen him pay for that.

22. Inconsistently, Petitioner subsequently testified that,

at times, like Mr. Nunez, she was also provided documents free of

charge.

23. Pe titioner failed to present sufficient evidence to

establish that any document that the Association was required to

maintain (and not prohibited from disclosure) was not, in fact,

provided or made available for inspection . Respondents '

witnesses credibly t estified that Petitioner had access to all

available documents, and their testimony was buttressed by the

record evidence. Furthermore, a review of the record reveals

that Respondents ' legal counsel, on multiple occasions, provided

written responses to Pe titioner ' s document requests. 5 /

24. Even if Petitioner had presented sufficient evidence to

establish that she was denied access to the Association ' s

records, Petitioner failed to present sufficient evidence to

establish that any such denial was du e to any discriminatory

animus on the basis of her race . 6 /

Access to Property

A. Petitioner ' s Access

25. The original Condominium Rules and Regulations provided

that, " [a]utomobiles belonging to residents must at all times

bear the identifying garage sticker provided by the Association. "

26. On July 27, 2011, Ms. Zarante, on behalf of the

Condominium, authored a memorandum to all residents . T he

contents of the memorandum are as follows:

DEAR RESIDENT, PLEASE BE INFORMED THAT AS OF

TOD AY, YOU MU ST DISPLAY THE CAR BARCODE LABEL

IN YOUR CARS AT ALL TIMES, WHILE COMING INTO

THE BUILDING SO YOU CAN USE THE RESIDENT ' S

ENTRANCE GATE AND WHILE YOUR CAR IS PARKED IN

YOUR ASSIGNED PARKING SPACE. ALSO, THE

DRIVER SIDE OF THE CAR ' S WINDSHIELD MUS T

DISPLAY THE WINSTON TOWERS LABEL SHOWING THE

SPACE NUMBER. IN CASE YOU DO NOT HAVE THE

BARCODE LABEL OR THE WINSTON TOWERS LABEL,

PLEASE, STOP BY THE OFFICE IN ORDER TO GET

THEM.

IF YOU AL READY HAVE THE CAR BARCODE LABEL

DISPLAYED IN YOUR CAR, WE ASK Y OU TO PLEASE

REFRAIN FROM USING THE VISITOR ' S GATE AND TO

ALWAYS USE THE RESIDENT ' S ENTRANCE GATE.

27. On that same date, Ms. Zarante, on behalf of the

Condominium, authored a memorandum to the gate security

personnel. Said memorandum set forth t he same information as

above, and further advised the gate personnel to advise residents

without the requisite barcode and label to stop by the office to

obtain the same. The memorandum further instructed the security

personnel as follows:

SHOULD THE RE SIDENT WITH A CAR BARCODE LABEL

ALREADY PLACED IN THE CAR STILL DECIDES [sic]

TO USE THE VISITOR ' S GATE, PLEASE TELL THEM

THAT YOU WILL ONLY OPE N THAT TIME FOR THEM,

THAT IN THE FUTURE THEY MUST USE THE

RESIDENT ' S ENTRANCE GATE AS YOU WILL NOT OPEN

FOR THE M. SHOULD THEY HAVE ANY PROBLEM WITH

THE BARCODE LABEL, PLEASE TELL THEM TO STOP

BY THE OFFICE.

28. On September 8, 2011, the Board of Directors issued a

memorandum to " Residents Using Visitor ' s Gate " entitled " FINAL

NOTICE/RESIDENT BUILDING ACCES S. " The memorandum advised the

residents as follows:

DEAR RESIDENT, PLEASE BE INFORMED THAT YOU

MUST DISPLAY THE CAR BARCODE LABEL IN YOUR

CARS AT ALL TIMES. YO U MUST USE THE CAR

BARCODE LABEL AND USE THE RESIDENT ' S ENTRANCE

WHEN ENTERING OUR BUILDING.

SHOULD YOU CONTINUE USING THE VISITOR ' S GATE,

WHICH IS FOR VISITORS AND DELIVERIES ONLY,

YOU WILL NOT BE ADMITTED. AS AN

OWNER/RESIDENT YOU WILL BE PERMITTED TO

ENTER; HOWEVER, YOUR AUTOMOBILE WILL NOT.

IF YOU LEAVE YOUR AUTOMOBILE IN THE VISITOR ' S

ENTR ANCE THE POLICE WILL BE NOTIFIED AND YOUR

AUTOMOBILE WILL BE TOWED.

PLEASE, ABIDE BY THE RULES AND REGULATIONS TO

AVOID FUTURE PROBLE M S.

29. The Condominium maintained regular office hours of

9:00 a . m . to 5:00 p . m . for residents to obtain the afo rementioned

b arcode/lab e l .

30. On or about September 14, 2011, Petitioner attempted to

enter the Condominium using the visitors ' gate. Despite being

advised of the barcode/label r equirement and the admonition

against using the visitor s ' gate, Peti tioner had not a cquired the

barcode/label. After the security officer advised Petitioner

that he was not permitted to open the visitors ' gate for

residents, Petitioner entered the security gate house and opened

the gate herself.

31. As a result of her actions, law enforcement was called

to the scene, and ultimately Petitioner gained access to the

Condominium. Subsequently, as a result of Petitioner ' s actions,

she was advised via correspondence that her actions were

improper. 7 /

32. After obta ining the requisite barcode/label, there is

no evidence that Petitioner experienced any further inconvenience

regarding the gate.

33. The undersigned finds that Petitioner was not denied

access to her property. The undersigned further finds that

P etitioner presented no evidence that any inconvenience regarding

the gate was due to her race.

B. Petitioner ' s Son

34. Visitors of unit owners were required to pay $2.00 to

park in the guest parking lot. Unit owners, like Petitioner, for

the convenience of their guests, were permitted to pre - pay for a

guest if the guest was anticipated to arrive that day. Carlos

Devesa, a security guard at the front gate , testified that a

special exception was made for Petitioner, wherein she was

allowed to accept a deposit for her guests for a longer period of

time.

35. Petitioner testified that on one occasion, a security

guard, who is not an employee of the Condominium or the

Association, delivered a package to Petitioner ' s son at the front

gate. Petitioner extrapolates that benefit into a denial of

access to her property:

A. Security was trying to be nice by

greeting him off the property with a package

that was left on the property for him.

Q. Okay. What evidence do you have that was

based on race?

A. In the case of my son, again, he was

denied access to come to the property. It

wasn ' t because of parking, so maybe you

should have been asking security what was his

motivation.

Q. I ' m asking you because you made the

allegation.

A. Well, I believe that he met him out at

the street because he wanted to interfere

with his right to come on the property.

36. The undersigned finds that Petitioner ' s son was not

denied access to Petitioner ' s property. The undersigned further

finds that Petitioner failed to present any evidence that

Petitioner ' s son ' s access to Petitioner ' s property was denied due

to her or his race.

Lien

37. Between the twelfth and fifteenth day of each month,

the Association runs a " delinquency report. " If it is determined

that a unit owner or resident is delinquent (in maintenance fees,

assessments, etc.) an initial letter is issued reminding of the

delinquency. If the delinquency is not then satisfied, a thirty

(30) day certified letter is issued. Thereafte r, if the

delinquency is not cured, the Association ceases to be involved

and refers the matter to the Association ' s legal counsel for

further handling.

38. It is undisputed that Petitioner became delinquent in

maintenance fees. Following the abov e protocol, a lien was

ultimately placed on Petitioner ' s unit. Thereafter, Petitioner

satisfied the maintenance fees; however, she refused to pay the

attorneys ' fees associated with the legal process.

39. Petitioner contends that she was treated d ifferently in

the lien process due to her race. In support of her position,

Petitioner believes that Unit 2007 was not subject to the same

protocol. The evidence establishes that Unit 2007 was delinquent

for a longer period of time than Petitioner ' s unit prior to being

sent to the Association ' s counsel. Unlike Petitioner ' s unit,

however, Unit 2007 was placed in foreclosure, and was ultimately

sold through a foreclosure sale.

40. The undersigned finds that a lien was placed on

Petitioner ' s unit. The undersigned finds that Petitioner

presented no evidence to establish that the lien process was

initiated due to her race.

CONCLUSIONS OF LAW

41. DOAH has jurisdiction over the parties to, and subject

matter of, this proceeding pursuant to sections 1 25.69,

120.57(1), and 760.23(2), Florida Statutes.

42 . Petitioner brought the Complaint pursuant to " Section

804 b or f of Title VIII of the Civil Rights Act of 1968 as

amended by the Fair Housing Act of 1988. " Thus , the asserted

claims fall under the Fe der al Fair Housing Act, 42 U.S.C. section

3604(b), and the Florida Fair Housing Act, section 760.23(2),

Florida Statutes. 8 /

43 . Section 3604(b) provides that it shall be unlawful --

To discriminate against any person in the

terms, conditions, or privi leges of sale or

rental of a dwelling, or in the provision of

services or facilities in connection

therewith, because of race, color, religion,

sex, familial status, or national origin.

44 . The United States Department of Housing and Urban

Developm ent ( " HUD " ), the agency tasked with implementing the FHA,

has e nacted regulations relating to section 3605.

24 C.F.R. section 100.65(a) provides that:

It shall be unlawful, because of race, color,

religion, sex, handicap, familial status, or

national or igin, to impose different terms,

conditions or privileges relating to the sale

or rental of a dwelling or to deny or limit

services or facilities in connection with the

sale or rental of a dwelling.

4 5 . 24 C.F.R. section 100.65(b) provides a nonex clusive

list of the type of actions that are prohibited by subsection

(a). Specifically, the regulation provides, in pertinent part,

as follows:

(b) Prohibited actions under this section

include, but are not limited to:

* * *

(4) Limiting the use of privileges, services

or facilities associated with a dwelling

because of race, color, religion, sex,

handicap, familial status, or national origin

of an owner, tenant or a person associated

with him or her.

24 C.F.R. § 100.65(b)(4)(emphasis added).

46 . Petitioner ' s Complaint does not concern alleged

discrimination against Petitioner relating to the transaction in

which she acquired the ownership interest in the unit. Indeed ,

it is undisputed that Petitioner is the unit owner of condominium

Un it 3 10 and has been the owner for many years.

47 . Ostensibly, Petitioner ' s Complaint alleges

discrimination regarding the privileges, services , or facilities

associated with Unit 310 because of her race. In other words,

Petitioner alleges post - acquisi tion discrimination.

48 . In Savannah Club Worship Service , Inc. v. Savanna Club

Homeowners ' Ass ociatio n, Inc. , 456 F. Supp. 2d 1223 (S.D. Fla.

2005) , the court addressed the issue of whether a homeowners '

association ' s rule that prohibited all reli gious activities in

the association ' s c ommon areas violated 42 U.S.C. section

3604(b). The court noted that " [a] majority of courts

considering [ the issue of what constitutes ' discrimination . . .

in the provisions of services ' ] h ave found that s ection 36 04(b)

is limited to discrimination in the provision of services as they

are connected to the acquisition or sale and rental of housing. "

Savanna Club , 456 F. Supp. 2d at 1228 (citations omitted) . The

court further noted that:

Most of those same courts h ave interpreted

this to mean that this provision is not

applicable to post - acquisition discrimination

in the provision of services, unless the

discrimination somehow deprives a person of

their housing. This definition has resulted

in the conclusion that, if the challenged

discriminatory activity occurs after a buyer

has already purchased his or her home, and if

such activity is not one which results in

either an actual or constructive deprivation

of that property, then such activity is not

prohibited by th e FHA.

Id . (citations omitted). The Savanna court, however, refused to

create a " bright - line rule " that the FHA fails to reach any post -

acquisition discrimination and that such an interpretation

" certainly cannot apply to unique planned communities, " and by

extension condominium unit owners, where some types of services

are in fact " part and parcel with home ownership. " Id . at 1229.

49 . Citing 24 C.F.R. section 100.65, the Savanna court

noted that this r egulation prohibited actions under section

3604(b) to include limiting the use of privileges, services or

facilities associa ted with a dwelling because of the protected

class of an owner. Id. at 1230. This lent support to the

court ' s conclusion that if an association member was completely

denied access to a clubhouse or other common area because of

their protected class, such denial would clearly be a deprivation

of full use of the incidents of ownership actionable under the

FHA. Id .

50 . The Savanna court ultimately found that section 360 4(b)

can apply to some post - acquisition provision of services, in the

planned community context, where there is a complete denial of

services or access to such services that are an incident of

ownership. Id . at 1231 - 32. Failing to find a complete denial of

access to services connected to the dwelling, the court granted

summary judgment for the defendant. Id .

51 . The Seventh Circuit Court of Appeals has also grappled

with the issue. Most recently, in Bloch v. Frischholz , 587 F.3d

771 (7th Cir. 20 08), the plaintiffs alleged that a rule in the

condominium association preventing the placement of " objects of

any sort " on their doorp osts, in particular the mezuzot ÏÏ a

religious symbol ÏÏ violated the FHA. The Bloch court first noted

that the righ t to inh abit the premises is a privilege of sale,

and a deprivation of that right by making the premises

uninhabitable would violate section 3604(b). Id . at 779.

52 . The Bloch court further acknowledged that the

contractual connection by and between condo minium unit owners and

the board of directors distinguished the case:

But the " privilege " to inhabit the condo is

not the only aspect of § 3604(b) that this

case implicates. The Blochs alleged

discrimination by their condo association, an

entity by which the Blochs agreed to be

governed when they bought their units. This

agreement, though contemplating future, post -

sale governance by the Association, was

nonetheless a term or condition of sale that

brings this case within § 3604(b).

Id . at 779 - 780. Bec ause the owners purchased their dwellings

subject to the condition that the condominium association could

enact rules restricting their rights in the future, the Bloch

court held that " § 3604(b) prohibits the Association from

discriminating against the Blo chs through its enforcement of the

rules, even facially neutral rules. " The Seventh Ci rcuit

cautioned, however, that section 3604(b) requires that the

alleged conduct, however deplorable, must be linked to the terms,

conditions, or privileges that accompa nied or were related to the

plaintiffs ' purchase of their property. Id . at 780.

53 . Unlike the plaintiffs in Savanna Club and Bloch , the

undersigned does not construe Petitioner ' s Complaint as alleg ing

the Association discriminated against her th rough its enforcement

of a particular Association rule. Petitioner ' s claims of

discrimination in the instant case are also not related to

specific service s (electricity, telephone service, waste

disposal, domestic water supply, sanitary sewage, storm drai nage,

and master antenna service) or facilities (clubroom and

entertainment areas, lobbies, association office, recreational

facilities, pools, etc.) that are an incident of ownership . 9 /

Moreover, Petitioner ' s Complaint does not allege discrimination

tant amount to a constructive eviction. Even assuming , arguendo,

that Petitioner ' s post - acquisition discrimination claims met the

requirements of section 3604(b), Petitioner ' s claims fail for the

reasons set forth below.

54 . Petitioner has the burden o f proving the material

allegations of the Complaint by a preponderance of the evidence.

§§ 760.34(5) and 120.57(1)(j), Fla. Stat.

55 . " Discriminatory intent may be established through

direct or indirect circumstantial evidence. " Johnson v. Hamric k ,

155 F. Supp. 2d 1355, 377 (N.D. Ga. 2001). Direct evidence is

evidence that, if believed, would prove the existence of

discriminatory intent without resort to inference or presumption.

Denny v. Cty . of Albany , 247 F.3d 1172, 1182 (11th Cir. 2001);

Hol ifield v. Reno , 15 F.3d 1555, 1561 (11th Cir. 1997). Courts

have held that " only the most blatant remarks, whose intent could

be nothing other than to discriminate, " satisfy this definition.

See Damon v. Fleming Supermarkets of Fla., Inc. , 196 F.3d 1354,

1358 - 59 (11th Cir. 1999)(internal quotations omitted). Often,

such evidence is unavailable, and in this case, no evidence

presented by Petitioner meets this rigorous standard.

56 . Absent direct evidence, Petitioner is left to prove by

circumstantial evi dence her claim of discrimination. Where a

complainant attempts to prove intentional discrimination using

circumstantial evidence, the burden - shifting framework of

McDonnell Douglas Corp. v. Green , 41 U.S. 792 (1971), is

applicable. Under this framework, Petitioner first bears the

burden of establishing that the Respondents have engaged in

discrimination. If Petitioner succeeds in making such a prima

facie case, then the burden shifts to Respondents to establish a

legitimate non - discriminatory reason for its action. If

Respondents articulate such a reason, then the burden shifts back

to Petitioner to show that the proffered reason is really pretext

for unlawful discrimination. Id . If, however, the complainant

fails to establish a prima facie case of di scrimination, the

matter ends. Ratliff v. State , 666 So. 2d 1008, 1012 n.6 (Fla.

1st DCA 1996); Nat ' l Indus., Inc. v. Comm ' n on Hum. Rel. , 527 So.

2d 894 (Fla. 5th DCA 1998).

57 . Adapted to the facts of this case, the standard

requires Petitioner to establish: (1) that s he is a member of a

protected class; (2) that she has suffered an injury because of

the alleged discrimination; and (3) that, based on her claimed

classes of race and gender, she was denied the privileges,

s ervices or facilities pr otected by the FHA which were available

to other condominium unit owners.

58 . Petitioner has established that she is a member of a

protected class, an African - American female. Petitioner ' s claims

must fail, however, because Petitioner has failed t o establish

the second and third prong Ï that she has in fact suffered an

injury or that she was denied the use or access of privileges,

services, or facilities available to other condominium unit

owners based upon her race or gender as contemplated by the F HA.

Having failed to establish a prima facie case, the matter ends.

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 dismissing the Petitio n for Relief.

DONE AND E NTERED this 17 th day of July , 2014 , in

Tallahassee, Leon County, Florida.

S

TODD P. RESAVAGE

Administrative Law Judge

Division of Administrative Hearings

The DeSoto Building

1230 Apalachee Parkw ay

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 17 th day of July , 2014 .

ENDNOTE S

1 / Counsel for Respondent filed his Notice of Appea rance on

May 22, 2014, after the conclusion of the final hearing.

2 / The Complaint does not individually name the board members .

3 / By agreement of the parties, after November 6, 2013 , the final

hearing was conducted by video teleconference with si tes in

Tallahassee and Miami, Florida.

4 / The record does not reveal when Mr. Nunez was the financial

committee chairman.

5 / The undersigned notes that section 718.111(12), Florida

Statutes, sets forth a condominium association ' s obligation

regarding official records, requests for records, the

consequences for failure to provide records, and the appropriate

avenue for redress.

6 / Witness Anthony Shelter testified that sometime between 2007

and 2011, he overheard an argument between Petitioner and Au drey

Bekoff, with two other unnamed individuals, in the Association ' s

administrative office. During that argument, Mr. Shelter was in

an adjacent room and thought he heard an individual use the " N "

word. Mr. Shelter could not recall the particular time f rame or

give an opinion on who uttered the " N " word. The underlying

complaint in this case was not brought forward until February 22,

2013. At the final hearing, Respondents consistently raised the

statute of limitations defense. Consequently, facts con cerning

events that occurred one year before February 22, 2013, are

untimely and not considered by the undersigned.

§ 760.35, Fla. Stat.

7 / Another resident who performed a similar action at the gate

was also advised via correspondence that her actio ns were

improper.

8 / Under Florida law, discrimination covered under the Florida

Fair Housing Act is the same discrimination as is prohibited

under the Federal Fair Housing Act. Savanna Club Worship

Service, Inc. v. Savanna Club Homeowners ' Assn ' , Inc. , 456 F.

Supp. 2d 1223, 1224 n. 1 (S.D. Fla. 2005). Although Petitioner

references the equivalent of section 760.23(8) in her Complaint,

as said section applies to handicapped individuals and as there

is no allegation that Petitioner is handicapped, a clai m under

said section is not viable. Petitioner ' s proposed recommended

order makes no argument pursuant to said section.

9 / The undersigned would also construe maintenance as a

" service. "

COPIES FURNISHED:

Violet Denise Crawford, Agency Clerk

Flor ida Commission on Human Relations

2009 Apalachee Parkway , Suite 100

Tallahassee, Florida 32301

Ina Chambers Ludka

210 174th Street , Unit 310

Sunny Isles Beach, Florida 33160

Sherril M. Colombo, Attorney

Wilson, Elser, Moskowi tz, Edelman & Dicker LLP

10 0 Southeast Second Street , Suite 3800

Miami, Florida 33131 - 2144

Roger G. Pickles, Esquire

Law Office of Robert P. Kelly

2514 Hollywood Boulevard , Suite 307

Hollywood, Florida 33020 - 6636

Cheyanne Costilla, General Counsel

Florida Commission on Human Rel ations

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.