16-001076 Valerie Walters vs. Pine Run Association, Inc. Status: Closed Recommended Order on Friday, June 17, 2016.

Summary: Petitioner failed to meet her burden of proving that Respondent discriminated against her in violation of the Fair Housing Act.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

VALERIE WALTERS,

Petitioner,

vs. Case No. 16 - 1076

PINE RUN ASSOCIATION, INC.,

Respondent.

_______________________________/

RECOMMENDED ORDER

Pursuant to notice, a final hearing in this cause was held

by video teleconference between sites in Tampa and Tallahassee,

Florida, on May 3 , 2016, before Linzie F. Bogan, Administrative

Law Judge of the Division of Administrative Hearings.

APPEARANCES

For Petitioner: Cindy Hill, Esquire

Hill Law Firm, P.A.

456 South Tamiami Trail

Osprey, Florida 34229

Gary Parker, Esquire

Legal Aid of Manasota

1900 Main Street , Suite 302

Saraso ta, Florida 34236

For Respondent: Scott H. Jackman, Esquire

Cole, Scott and Kissane, P.A.

Suite 400

4301 West Boy Scout Boulevard

Tampa, Florida 33607

STATEMENT OF THE ISSUE

Whe ther Respondent violated the Fair Housing Amendments Act

of 1988, as alleged in the Housing Charge of Discrimination

filed by Petitioner on or about October 9, 2015.

PRELIMINARY STATEMENT

On or about October 9, 2015, Petitioner, Valerie Walters

(Petitioner ), filed a complaint with the U.S. Department of

Housing and Urban Development (HUD) , against Pine Run

Association, Inc. (Respondent) , alleging housing discrimination

under the Fair Housing Amendments Act of 1988 ( FHA), as codified

at 42 U.S.C. § 3601, et seq . HUD referred the complaint to the

Florida Commission on Human Relations (FCHR) for investigation.

On January 22, 2016, FCHR issued its determination: No Cause.

A Petition for Relief was filed by Petitioner on February 23,

2016. On or about Februa ry 24, 2016, FCHR transmitted the case

to the Division of Administrative Hearings to conduct a formal

hearing of the matter.

At the hearing, Petitioner presented testimony from two

witnesses and Respondent offered testimony from one witness.

PetitionerÓs Exhibits A, B, E, F, G, H, K, M, and O were

admitted into evidence. RespondentÓs Exhibits 3 through 8 and

10 through 12 were also admitted into evidence. After the

hearing, both Petitioner and Respondent filed Proposed

Recommended Orders. A transcript of the formal hearing was not

filed.

FINDING S OF FACT

1. Petitioner, since March 2015, has been a resident at

RespondentÓs facility . Respondent is a private residential

condominium association , which operates and maintains three

condominiums in Osprey, F lorida.

2. Each condominium unit has its own designated parking

space. PetitionerÓs assigned parking space, number 364, lies

between parking spaces 362 and 366. The respective parking

spaces are next to each other, with parallel lines dividing the

sam e. Each parking space has a concrete tire - stop that has

painted on it the corresponding condominium unit number so that

when a vehicle turns into a space the driver is able to discern

the corresponding unit number. All parking spaces and road

surfaces re levant to this dispute are paved.

3. If one is positioned such that the painted numbers on

the tire - stops are visible, then to the left of space 362 is an

unassigned space (unassigned space #1) and to the right of space

366 is an area containing shrubbery . From the photographs

admitted into evidence, the dimensions of unassigned space #1

appear to be essentially the same as parking spaces 362, 364,

and 366. However, unassigned space #1 differs from the others

in that on either side of the parallel lines that demark the

interior boundaries of the parking space, there are pathways

which provide more space for pedestrian traffic. Although

neither party offered evidence of the dimensions of the parking

spaces, photographs of the area demonstrate that unassig ned

space #1, when considering the usable pathways, is wide enough

to allow for reasonable entry to and exit from a mid - sized sedan

while the vehicleÓs occupant is being assisted by a walker or

wheelchair .

4. In order to access the parking spaces discusse d in the

preceding paragraph, motorists must use a one - way road which

requires them to turn to the right when they are parking their

vehicles such that the front tires are closest to the concrete

tire - stops. Approximately 20 feet from unassigned space #1, on

the other side of the one - way road used to access the parking

area, is another unassigned parking space (unassigned space #2).

Unassigned space #2 is perpendicular to unassigned space #1 and

spaces 362, 364, and 366. Accordingly, motorists parking in

unassigned space #2 enter the space by veering to the left off

of the one - way road and driving head - on into the parking space

(essentially a parallel parking space). There is no evidence of

record as to the exact dimensions of unassigned space #2, but in

comparing the photographic evidence, this space is comparable in

size to the handicapped parking space near the condominium

complex clubhouse. Additionally, unassigned space #2 is

situated such that no other vehicles can park in front of,

behind, or on e ither side of a vehicle parked in the space, and

there is no curbing that would serve as barrier to accessing

oneÓs vehicle while parked in the space.

5. Although each unit is assigned one designated parking

space, Petitioner recalls that when she initial ly moved in, she

parked her vehicle by straddling the line between parking spaces

364 and 366. According to Petitioner, she was able to use both

spaces because the respective tire - stops for the spaces were

each marked Ð364.Ñ Petitioner stopped parking he r vehicle in

this manner after the association re - painted all of the tire -

stops; which included refreshing the unit numbers painted on the

same so as to make it clear that there were not two parking

spaces for unit 364. Also, Petitioner testified that her

vehicle was vandalized once while parking her car in spot 364.

6. After PetitionerÓs car was vandalized and Respondent

re - painted the tire - stops, Petitioner, during the weeks leading

to June 2015, began occasionally parking her vehicle in the

des ignated handicapped parking space located at the condominium

clubhouse parking lot.

7. Petitioner asserts that because of issues related to

her physical disability, it is necessary that she be able to

park her car, without restriction, in the handicapped parking

space designated by Respondent for use by visitors and residents

at the condominium complex clubhouse. The handicap parking

space is several hundred feet from PetitionerÓs condominium

unit, and in order to access the handicap parking space ,

Petitioner uti lizes a pathway constructed of dirt and crushed

seashells. There is no record evidence indicating that

Petitioner has difficulty traversing the seashell pathway or

walking from her condominium unit to her car, and vice versa.

8. PetitionerÓs designated parking space is considerably

closer to her unit (less than one hundred feet) than the

handicap ped parking space, but, according to Petitioner, her

designated parking space is inadequate because it does not

provide her with sufficient space to enter and e xit her vehicle.

Respondent does not dispute this fact.

9. Petitioner suffers from a physical disability which

requires her to ambulate with the occasional assistance of

either a walker or wheelchair . Petitioner drives a late model,

mid - size four - door M ercedes Benz. PetitionerÓs vehicle is not

equipped with any special assistive devices, such as a ramp,

which would add to the amount of space needed for vehicle

ingress and egress.

10. When Petitioner is either entering or exiting her

vehicle while usi ng her walker or wheelchair , she requires

additional space beyond the swing path of her car doors.

Petitioner did not offer evidence of the amount of space

required for her to enter or exit her vehicle when using either

her walker or wheelchair . Petition er also did not offer

evidence regarding the dimensions of her vehicle, or the

dimensions of either her designated parking space or any of the

other parking spaces at issue. Nevertheless, Respondent

concedes that PetitionerÓs designated parking space, whe n cars

are parked on either side of her in spaces 362 and 366, does not

afford Petitioner adequate space to reasonably access her walker

or wheelchair when entering and exiting her vehicle.

11. In June 2015, Petitioner, as she often did, parked her

car ov ernight in the handicapped parking space at the clubhouse.

When Petitioner arrived at her vehicle , she noticed that a note

from Respondent had been placed on the car , which reads as

follows:

Overnight parking in this clubhouse lot must

have approval of th e Pine Run Board of

Directors. Approval is normally awarded for

stays of no more than one week. In

addition, this handicapped space is reserved

for residents or visitors to the pool or

clubhouse, not for general resident parking.

We discourage resident parking in this lot

if not for these reasons. However, if on

rare occasion, you wish to park a car in

this lot during the day when you are not

using the pool or clubhouse, please use an

unassign ed space on the pond side. This

minimizes the chance that yo u will interfere

with our maintenance crew, or the delivery

of a large quantity of materials.

12. Within a few days of receiving the note, Petitioner

explained to Respondent that she has a handicap ped parking decal

and should therefore be able to park in the handicap ped parking

space without restriction. Under the circumstances,

PetitionerÓs statement is reasonably interpreted as a request to

Respondent that her physical disability should be accommodated

by allowing her to park in the handicap ped space. Respondent

took no immediate action regarding PetitionerÓs request for

accommodation. Respondent did, however, allow Petitioner to

continue to park in the handicap ped space whenever Petitioner

desired to do so.

13. On August 27, 2015, Petitioner sent an email to

Respondent and stated therein the following:

We are formally informing you again, since

our encounters with Mrs. a nd Mr. Foley, that

we do indeed, have a disabled tag, and need

and expect accommodations for ours and

others, disabled individu als, owners,

lessees and visitors, with any parking

accommodations, walkers, chairs, etc., and

their vehicles and equipment and with

regards to any and all entrances to, and any

and common areas, we should have easy access

to.

The circumstances leading up to, and including , PetitionerÓs

correspondence of August 27, 2015, make clear that Petitioner

continues to seek a parking accommodation.

14. At 4:51 p.m. on October 5, 2015, a letter from

PetitionerÓs attorney, Ms. Jennifer Daly, was sent to

RespondentÓs representative Jim Kraut. The missive from

Ms. Daly states:

As you are aware, this firm represents

Ms. Valerie Collier [Walters] and I am

contacting you to notify you and the

Association that she will be parking in the

handicapped parking spot tomorrow due to a

surgery she is having. Please notify the

Board of Directors to ensure no threats of

towing are made and no notes are left on her

car during her recovery.

15. Upon receipt of the email from Ms. Daly, Mr. Kraut

immediately conveyed the request t o M rs. Foley, who at the time

was president of RespondentÓs board of directors.

In response to PetitionerÓs request, M r s. Foley, at 5:02 p.m. on

October 5, 2015, sent the following email message to

Mr. Kraut:

Jim,

Since the handicapped spot by the Club House

is a considerable distance from her unit

could you suggest that she just pick a spot

in front of her unit that is much closer?

We would have no problem identifying a

handicapped spot closer to her unit.

16. Mr. Kraut conveyed M r s. FoleyÓs suggest ion to

PetitionerÓs attorney Ms. Daly , who at 5:21 p.m. on October 5,

2015, responded via email as follows:

Jim,

Thank you for your rapid response and

Ms. FoleyÓs suggestion; however, please let

her know that choosing a different spot near

her unit will not address our clientÓs

needs.

Rather, the problem is when the Association

repainted the parking lot, the parking spots

were made too small. From what we have been

advised, all the spaces in close proximity

to our clientÓs unit are only slightly

bigger than the width of a sedan and offer

no additional space for the opening of

doors, much less the further space needed

for someone who requires the assistance of a

walker or wheelchair in addition to other

equipment.

17. M r s. Foley, in response to Ms. Daly Ós email, stated

the following:

I note your reply concerning Mrs. Valerie

Collier [Walters]. Please be advised that

the Association has not changed either the

size or assignment of any parking spaces in

the even 300Ós on Pine Run Drive. All of

the spaces have been repainted if the

numbers were not visible or the curbs

required repair in the entire Association.

The size of the spaces ha[s] never changed.

We would be very willing to accommodate

Mrs. CollierÓs [Walters] need for a

handicapped space closer to her unit if she

requested such. My suggestion was the quite

large parallel space next to the grass

island [unassigned space #2] . There is no

curb there and no vehicle could park beside

her. Another suggestion would be to swap

her space for the adjac ent space for #366.

This is the same size but an end space,

however I think she would have more room

with the parallel space just behind her

assigned space.

18. PetitionerÓs reaction to RespondentÓs suggested

parking accommodations was to file, on or ab out October 9, 2015,

a charge of housing discrimination. Additionally, Petitioner

parked her car in the handicap space without incident following

her surgery.

19. As noted in Ms. DalyÓs email of October 5, 2015,

Petitioner rejected the parking spaces off ered by Respondent

because the spaces are Ðtoo small.Ñ Petitioner offered no

standard by which to determine the appropriateness of the

offered parking spaces other than her own subjective opinion.

Additionally, Petitioner testified that both unassigned s paces

are unacceptable because they are too close to the condominium

unit of a neighbor she dislikes.

20. Petitioner testified that what she now wants is to

park in space 366, if Respondent widens the space by removing

the hedges to the immediate right an d paving the newly - cleared

area. Petitioner offered no credible evidence establishing that

this proposed accommodation is equal to, or more reasonable than

the accommodations offered by Respondent.

CONCLUSIONS OF LAW

21. The Division of Administrative He arings has

jurisdiction over the parties to and the subject matter of this

proceeding. § 120.57(1), Fla. Stat. (2015).

22. The Fair Housing Amendments Act of 1988, as codified

at 42 U.S.C. § 3604, protects individuals with disabilities from

discriminator y housing practices. In her housing discrimination

complaint, Petitioner alleges that Respondent violated

Ð[s]ections 804(b) or (f) and 804(f)(3)(B) of Title VIII of the

Civil Rights Act of 1968 as amended by the Fair Housing Act of

1988.Ñ

23. The FHA, 42 U.S.C. § 3604(f)(2) , makes it illegal to

Ðdiscriminate 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 dwellingÑ due

to a personÓs handicap . The FHA defines discrimination based on

handicap to include Ða refusal to make reasonable accommodations

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

accommodations may be necessary to afford such person equal

opportunity to use and enjoy a dwe lling.Ñ Id. § 3604(f)(3)(B) .

Accordingly, a r espondent is liable under the FHA if it refuses

to make reasonable accommodations in rules, policies, practices,

or services, when such accommodations may be necessary to afford

a handicapped person equal oppo rtunity to use and enjoy a

dwelling or facilities offered in connection with such dwelling.

See Schwarz v. City of Treasure Island , 544 F.3d 1201, 1218 - 19

(11th Cir. 2008) . The essence of PetitionerÓs claim is that

Respondent failed to accommodate her re quest to park without

restriction in the handicap parking space near RespondentÓs

clubhouse.

24. In order to prevail in a claim of disability - based

housing discrimination, Petitioner bears the burden of

establishing that:

(1) [Petitioner] is a person w ith a

disability within the meaning of the FHA or

a person associated with that individual;

(2) [Petitioner] requested a reasonable

accommodation for the disability;

(3) the requested accommodation was

necessary to afford [Petitioner] an

opportunity to use and enjoy the dwelling;

and (4) [Respondent] refused to make the

accommodation.

Hunt v. Aimco Props., L.P. , 814 F.3d 1213, 1225 (11th Cir. 2016)

(citing Bhogaita v. Altamonte Heights Condo. AssÓn , 765 F.3d

1277, 1285 (11th Cir. 2014)) .

A. Petition erÓs Disability

25. Respondent does not dispute, and in fact concedes,

that Petitioner is a person with a physical disability within

the meaning of the FHA. PetitionerÓs first element of proof is

therefore satisfied.

B. Request for Reasonable Accommodat ion

26. The undisputed evidence establishes that Petitioner,

during all times relevant hereto, possessed a valid handicap

parking decal. It is reasonable for a person who possesses a

handicap parking decal to request to be able to park their

vehicle, wit hout restriction, in a designated handicap parking

space. Petitioner has met her burden with respect to

establishing the second element of proof required by Hunt .

C. Necessity of the Requested Accommodation

27. ÐTo prove that an accommodation is necessa ry,

[Petitioner] must show that, but for the accommodation, [she]

likely will be denied an equal opportunity to enjoy the housing

of [her] choice.Ñ Hoang v. Dekalb Hous. Auth. Section 8 , No.

1:13 - cv - 3796 - WSD, 2014 U.S. Dist. LEXIS 35774 (N.D. Ga. Mar. 19,

2014) (citing Giebeler v. M&B Assocs. , 343 F.3d 1143, 1155 (9th

Cir. 2003)) .

28. The evidence establishes that in response to

PetitionerÓs requests to park on an unrestricted basis in the

handicap parking space, Respondent offered Petitioner her choice

of parking spaces located within a few feet of PetitionerÓs unit

when compared to the handicap space that Petitioner desires.

Petitioner generically rejected the offered parking spaces

because they are Ðtoo small,Ñ yet she failed to provide credible

comp arative evidence to substantiate this contention. In other

words, Petitioner can establish the necessity of her selected

parking spaces by demonstrating that the alternatives offered by

Respondent are unacceptable because they deny her an equal

opportunit y to access her condominium unit. Petitioner has

failed to make such a showing.

29. Additionally, Petitioner also rejected unassigned

space s #1 and #2 because they are too close to the unit occupied

by a neighbor that she dislikes. Arguably the same is true for

each of the other offered spaces rejected by Petitioner as they

too are within a stoneÓs throw of the ne ighbor disliked by

Petitioner. PetitionerÓs dislike of her neighbor is not

competent evidence which can support a claim of necessity as it

rel ates to her rejection of the parking spaces offered by

Respondent. See Schwarz v. City of Treasure Island , 544 F.3d at

1226 (Ðif accommodations go beyond addressing [the effects of a

handicap] and start addressing problems not caused by a personÓs

handica p, then the handicapped person would receive not an

Òequal,Ó but rather a better opportunity to use and enjoy a

dwelling, a preference that the plain language of this statute

cannot supportÑ).

30. Petitioner has not met her burden of proving that her

requ est to park in the clubhouse handicap space, as well as her

request to modify space 366, is necessary in order to

accommodate her disability. Petitioner has, therefore, failed

to meet her ultimate burden of proof, and has thus failed to

prove that she is the victim of unlawful discrimination under

the FHA. Accordingly, Respondent was justified in refusing

PetitionerÓs request for accommodation, and Petitioner is

subject to, without modification, the same rules, policies, and

practices which govern others who park in the clubhouse handicap

parking space.

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 finding that Respondent, Pine Run

Associat ion, Inc., did not commit unlawful housing

discrimination as alleged by Petitioner, Valerie Walters, and

denying PetitionerÓs Housing Charge of Discrimination.

DONE AND ENTERED this 17th day of June , 2016 , in

Tallahassee, Leon County, Florida.

S

LINZIE F. BOGAN

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 17th day of June, 2016 .

COPIES FURNISHED:

Tammy S. Barton, Agency Clerk

Florida Commission on Human Relations

Room 110

4075 Esplanade Way

Tallahassee, Florida 32399

(eServed)

Cindy Hill, Esquire

Hi ll Law Firm, P.A.

456 South Tamiami Trail

Osprey, Florida 34229

(eServed)

Gary Parker, Esquire

Legal Aid of Manasota

1900 Main Street, Suite 302

Sarasota, Florida 34236

Sharon S. Vander Wulp, Esquire

Sharon S. Vander Wulp, P.A.

712 Shamrock Boulevard

V enice, Florida 34293

(eServed)

Scott H. Jackman, Esquire

Cole, Scott and Kissane, P.A.

Suite 400

4301 West Boy Scout Boulevard

Tampa, Florida 33607

(eServed)

Cheyanne Costilla, Gen eral Co unsel

Florida Commission on Human Relations

4075 Esplanade Way, Room 110

Tallahassee, Florida 32399

(eServed)

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.