14-004997 Eric And Nora Gross vs. Royal Arms Villas Condominium, Inc. Status: Closed Recommended Order on Tuesday, March 17, 2015.

Summary: Petitioners failed to prove discrimination.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

ERIC AND NORA GROSS,

Petitioners,

vs. Case No. 14 - 4997

ROYAL ARMS VILLAS CONDOMINIUM,

INC.,

Respondent.

_______________________________/

RECOMMENDED ORDER

Pursuant to notice, a final hearing was held in this case on

January 27, 2015, in Ft. Myers, Florida, before Administrative

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

Administrative Hearings (Division).

APPEARANCES

For Petitioner s : Eric H. Gross, pro se

Nora A. Gross, pro se

209 Yorkshire Court

Naples, Florida 34112

For Respondent: Peter M. Starling, Esquire

Meredith A. Peck, Esquire

Peck and Peck, P.A.

Suite 101

5200 Tamiami Trail , North

Naples, Florida 34103

STATEMENT OF THE ISSUE

Whether Respondent , Royal Arms Villas Condominium, Inc.,

discriminated against Petitioners, Eric and Nora Gross, in

violation of the Florida Fair Housing Act.

PRELIMINARY STATEMENT

In May 2014, Mr. and Mrs. Gross filed a housing

discrimination complaint with the Florida Commission on Human

Relations (Commission). The Commission investigated, and on

September 24, 2014, entered a Notice of Determination of No Cause

(Notice). The Notice was sent to Petitioners via certified mail.

On October 21, Petitioners filed a Petition for Relief with the

Commission, and on October 22 , the case was referred to the

Division.

At the final hearing, Petitioners called Demetrius Burkes

and Eric Gross to testify. PetitionersÓ Exhibits 1 1/ and 2 were

admitted into evidence over objection. Respondent called Joanne

Orrino to testify on its behalf. RespondentÓs Exhibits 1 through

7 , 11 (over objection), and 16 were admitted into evidence.

At the end of the hearing, RespondentÓs counsel advised the

undersigned that a transcript of the final hearing would be

ordered. The parties were advised that their proposed

recommended orders (PR Os) were due ten days after the filing of

the transcript.

Petitioners filed their PRO on February 6 . To the extent

that PetitionersÓ PRO contained new testimony or evidence, not

subject to cross - examination, that information has not been

considered.

The T ranscript was filed on February 12. On February 13,

the undersigned issued a Post - Hearing Order that confirmed the

Transcript had been filed, and provided Ðall proposed findings of

fact, conclusions of law, orders, and memoranda on the issues, if

any, sha ll be filed . . . on or before the close of business on

February 22, 2015.Ñ 2/

On February 17, Petitioners filed an Objection stating that

the undersigned had:

issued an order on January 27, 2015 stating

that both parties shall provide a Proposed

Recommend ed Order . This document was to be

sent in within 10 days from the date of the

hearing.

A review of the Transcript clearly recorded at the end of

the hearing that Respondent elected to order a hearing

Transcript. The parties agreed that each could file a PRO within

ten days of the filing of the t ranscript, and that the

undersigned would issue a Post - Hearing Order when the t ranscript

was filed. Petitioners Ó Objection is denied. Respondent timely

filed its PRO on February 20.

On February 2 3 , PetitionerÓs [sic] Reply to RespondentÓs

Proposed Order (Reply) was filed. Therein Petitioners attempted

to add evidence to the hearing. On March 2, RespondentÓs Reply

to Petitioners Ó Objection and Reply was filed. PetitionersÓ

Reply has not been considered. Both P ROs have been considered in

the preparation of this Recommended Order.

Unless otherwise stated, all statu tory references are to the

2013 codification of the Florida Statutes.

FINDING S OF FACT

1. Petitioners are a married couple , living in a rental

home at 209 Yorkshire Court, Naples, Florida (rental unit).

Petitioners have two children and two grandchildren; however ,

none of these relatives live in PetitionersÓ rental unit.

2. Mr. Gross was diagnosed with stage f our h odgkinÓs

l ymphoma in 2002. Mr. Gr oss has been in remission since 2003.

Mr. Gross was declared disabled by the Social Security

Administration in 2003.

3. Petitioners have lived in this rental unit since

August 2006. A Florida residential lease agreement with the

property owners , Joan a nd Charles Forton , was entered on

August 8, 2006 . 3/ This lease was for a 12 - month period, from

September 1, 2006 , through August 31, 2007. At the end of this

period , the lease became a month - to - month lease and continued for

years without anyone commenti ng on it.

4. In 2012 , Respondent inquired about a dog that was seen

with Petitioners. After providing supporting documentation to

Respondent, Petitioners were allowed to keep Mr. GrossÓ service

dog, Evie.

5. Respondent is a Florida not - for - profit corpor ation .

There are 62 units, and the owner of each unit owns a 1/62

individual share in the common elements. Since its inception ,

Respondent has, through its members (property owners) , approved

its articles of incorporation, bylaws, and related condominium

powers, and amended its declaration of condominium in accordance

with Florida law.

6. Ms. Orrino is currently vice - president of Respondent Ó s

Board of Directors (Board). Ms. Orrino has been on the Board

since 2009 and has served in every executive positi on, including

Board president. Ms. Orrino owns two condominiums within

RespondentÓs domain, but does not reside in either.

7. In 2012 or 2013, Respondent experienced a severe

financial crisis, and a new property management company was

engaged. This comp any brought to the attention of RespondentÓs

Board that it had not been approving leases as required by its

Declaration of Condominium. 4/ As a result of this information,

the Board became more pro - active in its responsibilities, and

required all renters t o submit a lease each year for the BoardÓs

approval.

8. Petitioners felt they were being singled out by

Respondent to provide a new lease. The timing of RespondentÓs

request made it appear as if Respondent was unhappy about

Petitioners keeping Evie. Pet itioners then filed a grievance

with HUD. 5/ HUD enlisted the Commission to handle the grievance ,

and Mr. Burkes served as the CommissionÓs facilitator between

Petitioners and Respondent.

9. On October 24, 2013, Petitioners executed a Conciliation

Agreeme nt (Agreement) with Respondent and the Commission. The

terms of the Agreement include:

NOW, THEREFORE, it is mutually agreed between

the parties as follows:

1. Respondent agrees:

a. To grant ComplainantsÓ request for a

reasonable accommodation to keep Eric GrossÓs

emotional support/service dog (known as

ÐEvieÑ) in the condominium unit even though

it exceeds the height and weight limits for

dogs in the community.

b. That their sole remedy for ComplainantsÓ

breach of the provisions contained in

subpara graphs (a) through (g) below, in

addition to the attorneyÓs fees and costs

provision of paragraph 10 of this Agreement,

shall be the removal of the ComplainantsÓ

dog.

2. Complainants agree:

a. That they will not permit the dog to be

on common areas of the association property,

except to transport the dog into or out of

ComplainantsÓ vehicle, to and from

ComplainantsÓ unit, and to take the dog

through the backyard of the unit to walk it

across the street off association property.

b. That if the dog is outside of the

condominium unit, they will at all times keep

the dog on a leash and will at all times

maintain control of the dog.

c. That if their dog accidentally defecates

on association property, they will

immediately collect and dispose of the waste .

d. That they are personally responsible a n d

liable for any accidents or damages/injuries

done by the dog and that they will indemnify

and hold the Respondent harmless and defend

Respondent for such claims that may or may

not arise against Respondent.

e. That they will not allow the dog to be a

nuisance in the community or disrupt the

peaceful enjoyment of other residents. A

nuisance will specifically include, but is

not limited to, loud barking and any show of

aggressive behavior, including, but not

limited to, aggressive barking, growling or

showing of teeth regardless of whether the

dog is inside or outside of the unit.

f. That they will abide by all community

rules and regulations of Respondent with

which all residents are required to comply,

inc luding but not limited to submitting to

the required pre - lease/lease renewal

interview, and completing a lease renewal

application and providing his updated

information to Respondent s and submitting to

Respondent a newly executed lease compliant

with Flori da law and the Declaration of

Condominium. The pre - lease/lease renewal

interview will be conducted at ComplainantsÓ

unit at a time and date agreeable to the

parties but not to exceed 30 days from the

date of this agreement.

g. If ComplainantsÓ current d og ÐEvieÑ

should die or otherwise cease to reside in

the unit, Complainants agree to replace the

dog, if at all, with a dog that is in full

compliance with the associationÓs Declaration

of Condominium or Rules and regulations in

force at that time and will allow the dog to

be inspected by Respondent for approval.

3. Respondent agrees to ensure, to the best

of their abilities, that their policies,

performance and conduct shall continue to

demonstrate a firm commitment to the Florida

Civil Rights Act of 199 2, as amended,

Sections 760.20 - 37, Florida Statutes, (2012),

and the Civil Rights Act of the United States

(42 U.S.C. 1981 and 1982 and 3601 et.seq) .

[ sic ]

4. Respondent agrees that it, its Board

members, employees, agents and

representatives shall cont inue to comply with

Title VIII of the Civil Rights Act of 1968,

as amended by The Fair Housing Act, which

provides that Respondent s shall not make,

print or publish any notice, statement of

advertisement with respect to the rental or

sale of a d welling tha t indicates any

preference, limitation or discrimination

based on race, color, religion, national

origin, sex, disability or familial status.

Respondent also agrees to continue to comply

with Title VIII of the Civil Rights Act of

1968, as amended by The F air Housing Act,

which prohibits Respondent s from maintaining,

implementing and effectuating, directly or

indirectly, any policy or practice, which

causes any discrimination or restriction on

the bases of race, color, religion, national

origin, sex, disabi lity or familial status.

Respondent s also agree to continue to comply

with Section 504 of the 1973 Rehabilitation

Act.

5. It is understood that this Agreement does

not constitute a judgment on the part of the

Commission that Respondent s did nor did not

violate the Fair Housing Act of 1983, as

amended, Section 760.20 - 37, Florida Statutes

(2011). The Commission does not waive its

rights to process any additional complaints

against the Respondent, including a complaint

filed by a member of the Commission.

6. It is understood that this Agreement does

not constitute an admission on the part of

the Respondent that they violated the Fair

Housing Act of 1983, as amended, or Section

504 of the 1973 Rehabilitation Act.

7. Complainants agree to waive and releas e

and do hereby waive and release Respondent

from any and all claims, including claims for

court costs and attorney fees, against

Respondent, with respect to any matters which

were or might have been alleged in the

complaint filed with the Commission or wi th

the United States Secretary of Housing and

Urban Development, and agree not to institute

a lawsuit based on the issue s alleged in this

complaint under any applicable ordinance or

statute in any court of appropriate

jurisdiction as of the date of this

Ag reement. Said waiver and release are

subject to RespondentÓs performance of the

premises and representations contained

herein.

8. The Commission agrees that it will cease

processing the above - mentioned Complaint

filed by Complainants and shall dismiss w ith

prejudice said complaint based upon the terms

of this Agreement.

9. Respondent agrees to waive and release

any and all claims, including claims for

court costs and attorney fees, against

Complainants with respect to any matters

which were or might ha ve been alleged in the

complaint filed with the Commission or with

the United States Secretary of Housing and

Urban Development, and agree not to institute

a lawsuit based on the issues alleged in

these complaints under any applicable

ordinance or statute in any court of

appropriate jurisdiction as of the date of

this Agreement. Said waiver and release are

subject to ComplainantsÓ performance of the

premises and representations contained

herein.

10. The parties agree in any action to

interpret or enforce this agreement the

prevailing party is entitled to the recovery

from the non - prevailing party its reasonable

attorneyÓs fees and costs, including

attorneyÓs fees and costs of any appeal.

FURTHER, t he P arties hereby agree that:

This Agreement may be used as evidence in any

judicial, administrative or other forum in

which any of the parties allege a breach of

this Agreement.

1. Execution of this Agreement may be via

facsimile, scanned copy (emailed), or copies

reproduced and shall be treated as an

origin al.

2. This Conciliation Agreement may be

executed in counterparts.

IN WITNESS WHEREOF, the parties have cause d

this Conciliation Agreement to be duly

executed on the last applicable date, the

term of the agreement being from the last

applicable date be low for so long as any of

the rights or obligations described here in

continue to exist.

1 0 . Eric Gross and Nora Gross signed the Agreement on

October 24, 2013. Ms. Orrino, as President of Respondent, signed

the Agreement on September 9. The Commi ssionÓs facilitator,

Mr. Burkes, signed the Agreement on October 24. The CommissionÓs

housing manager, Regina Owens, signed the Agreement on October

30, and its executive director, Michelle Wilson, signed the

Agreement on November 4. The effective date of the Agreement is

November 4, the last day it was signed by a party, and the clock

started running for compliance.

1 1 . Petitioners failed to abide by the Agreement in the

following ways:

a. Petitioners failed to submit an updated lease agreement

that c onformed to RespondentÓs rules and regulations.

b. Petitioners failed to submit to the required pre -

lease/lease renewal interview within 30 days of signing the

Agreement.

c. Petitioners failed to complete a lease renewal

application.

d. Petitioners failed to provide updated information to

Respondent.

1 2 . It is abundantly clear that Eric Gross and Ms. Orrino

do not get along. However , that personal interaction does not

excuse non - compliance with an Agreement that the parties

voluntarily entered. E ach party to the Agreement had obligations

to perform. Respondent attempted to assist Petitioners with

their compliance by extending the time in which to comply, and at

one point, waving the interview requirement. Petitioners simply

failed to comply with the Agreement.

1 3 . Petitioners failed to present any credible evidence

that other residents in the community were treated differently.

Mr. Gross insisted that the Agreement had sections that

Petitioners did not agree to . Mr. Burkes was unable to shed any

light on the Agreement or the alleged improprieties that

Mr. Gross so adamantly insisted were present.

CONCLUSIONS OF LAW

1 4 . The Division of Administrative Hearings has

jurisdiction over the parties to and the subject matter of this

proceeding pursu ant to sections 120.569 and 120.57(1), Florida

Statutes.

1 5 . Florida's Fair Housing Act (the "Act") is codified in

sections 760.20 through 760.37, Florida Statutes. Section

760.23 provides in relevant part:

Discrimination in the sale or rental of

housing and other prohibited practices. Ï

* * *

(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.

1 6 . Petitioners have the burden of proving by a

preponderance of the evidence that Respondent violated the Act by

discriminating against Petitioners based on a disability as set

forth in their complaint. § 120.57(1)(j) and 760.34(5), Fla.

Stat. Petitioners failed to meet their burden in this case.

1 7 . In evaluating housing discrimination claims , courts

have applied the burden - shifting analysis developed in McDonnell

Douglas Corp. v. Green , 411 U.S. 792, 802 - 804 (1973), as later

refined in Texas Dep artment of Comm unity Aff air s v. Burdine , 450

U.S. 248, 252 - 253 (1981). Under this approach, Petitioners must

first make a prima facie case for discrimination.

1 8 . A prima fa cie showing of housing discrimination simply

requires the Petitioners to show that they were ready, able, and

willing to rent the property , that they were a member of a

protected class, and that their application for renting the house

was denied. See Soul es v. U.S. Dep't of Housing and Urban Dev. ,

967 F.2d 817, 822 (2d Cir. 1992).

19 . The burden of proof would then shift to the Respondent

to show that the actions it took were based on a legitimate,

nondiscriminatory reason. See St. Mary's Honor Ctr. v. Hicks ,

509 U.S. 502, 515 (1993). The burden would then shift back to

Petitioners to prove that the RespondentÓs stated rationale was

mere pretext and that the real reason for its action was

discrimination.

2 0 . Petitioners have established that M r. Gross is a member

of a protected c lass in that he has a disability. However,

Petitioners have failed to establish that other individuals, who

are not members of a protected class, were treated differently.

Credible testimony was received that Responde nt required the same

renewal information, application, and lease from other residents.

2 1 . Even if Petitioners had proved their prima facie case,

the remainder of the evidence in this case fails to support a

claim of discrimination by Respondent. Th ere is no evidence that

discrimination occurred or that Petitioners were treated

differently because of Mr. GrossÓ s disability.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of

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

Florida Commission on Human Relations dismissing the Petition for

Relief filed by Petitioners in its entirety.

DONE AND ENTERED this 1 7 th day of March , 2015 , in

Tallahassee, Leon County, Florida.

S

LYNNE A. QUI MBY - PENNOCK

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 Admi nistrative Hearings

this 1 7 th day of March , 2015 .

ENDNOTE S

1 / PetitionersÓ Exhibit 1 was taken under advisement during the

hearing.

2/ An Endnote in that Post - Hearing Order adjusted the actual date

for filing to the close of business on Monday, Febru ary 23, as

February 22 was a Sunday.

3 / During the course of the hearing, Petitioners stated that

Mrs. Forton had recently passed away. This information has no

bearing on this proceeding.

4/ S ee Section 13, Leasing of Units; RespondentÓs Exhibit 1.

5 / Although never defined, the undersigned believes this is the

U.S. Department of Housing and Urban Development. HUD provides

for citizens to file a housing discrimination complaint that will

be reviewed to determine if a violation of the Fair Housing Ac t

has occurred.

COPIES FURNISHED:

Eric H. Gross

Nora A. Gross

209 Yorkshire Court

Naples, Florida 34112

(eServed)

Meredith A. Peck, Esquire

Peck and Peck, P.A.

Suite 101

5200 Tamiami Trail , North

Naples, Florida 34103

David A. Organes, Esquire

Flori da Commission on Human Relations

2009 Apalachee Parkway , Suite 200

Tallahassee, Florida 32301

Peter M. Starling, Esquire

Peck and Peck, P.A.

Suite 101

5200 Tamiami Trail , North

Naples, Florida 34103

Daniel D. Peck, Esquire

Peck and Peck, P.A.

Suit e 101

5200 Tamiami Trail , North

Naples, Florida 34103

(eServed)

Tammy Scott Barton, Agency Clerk

Florida Commission on Human Relations

4075 Esplanade Way , Room 110

Tallahassee, Florida 32399

Cheyanne Costillo, General Counsel

Florida Commission on Hum an Relations

4075 Esplanade Way , Room 110

Tallahassee, Florida 32399

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 Recommende d Order should be filed with the agency that

will issue the Final Order in this case.