16-001799 Virginia Austin And Laura Tomayko vs. Saddlebag Lake Owners Association Status: Closed Recommended Order on Thursday, September 15, 2016.

Summary: Petitioners' claim of housing discrimination based on their sexual orientation not actionable. Petition for Relief dismissed.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

VIRGINIA AUSTIN AND

LAURA TOMAYKO,

Petitioner s,

vs. Case No. 1 6 - 1799

SADDLEBAG LAKE OWNERS

ASSOCIATION, INC.,

Respondent.

_______________________________/

RECOM MENDED ORDER

On June 23, 2016, D. R. Alexander, the assigned

Administrative Law Judge of the Division of Administrative

Hearings (DOAH), conducted a hearing in this case by video

teleconferenc ing at sites in Orlando and Tallahassee, Florida.

APPEARANCES

For Petitioner s : Frederic B. O'Neal, Esquire

Post Office Box 842

Windermere, F lorida 34786 - 0842

For Respondent : Richard V. Blystone, Esquire

Theresa M. McDowell, Esquire

Garganese, Weiss & D'Agresta, P.A.

Suite 2000

111 North Orange Avenue

Orlando, Florida 32801 - 2327

STATEMENT OF THE ISSUE S

The issue s are : (1) whe ther Respondent violated

section 760.23 (2), Florida Statutes, by discriminating against

Petitioners on the basis of their sex with respect to the

provision of housing services or facilities; and (2) whether

Respondent violated 760.37 by unlawfully hara ssing or

intimidating Petitioners on the basis of their sex in the

exercise of their protected housing rights.

PRELIMINARY STATEMENT

On November 12, 2015, P etitioner s filed a Housing

Discrimination Complaint (Complaint) with the Florida Commission

on Human Relations (FCHR) alleging Respondent, Saddlebag Lake

Owners Association, Inc. (Respondent or Association), unlawfully

discriminated against them on the basis of their sex in

violation of section 760.23 (2) . The C omplaint was amended on

January 28, 2016 , t o add an allegation that Petitioners were

unlawfully harassed by the Association on the basis of their sex

in violation of section 760.37 . The two Complaints also named

as respondent s Clifford Jensen, the current president of the

Association's Board of Di rectors (Board), and Terry Haven, a

resident who also worked as a security guard until March 2015.

After the allegations were investigated, on February 19, 2016,

the FCHR issued a Notice of Determination of No Cause. On

March 22, 2016, a Petition for Re lief was filed , and the case

was transmitted by FCHR to DOAH with a request that a formal

hearing be conducted. The Petition for Relief name s only the

Association as a respondent.

At the final hearing, Petitioner s testified on their own

behalf and present ed the testimony of five witnesses .

Petitioners ' Exhibit s 1 through 5 were accepted in evidence.

Respondent presented the testimony of three witnesses .

Respondent's Exhibits 1 through 41 were accepted in evidence.

Affidavits submitted by both parties h ave been accepted in

evidence, but the hearsay documents have been considered only to

the very limited extent they supplement or explain other

competent evidence. Finally, to show a "Chronology of Events , "

the parties stipulated to certain facts that occu rred more than

one year before the Complaint s were filed.

A two - volume T ran script of the hearing was prepared . The

parties filed p roposed r ecommended o rders (PROs) , which have

been considered in the preparation of this Recommended Order.

FINDINGS OF FAC T

A. Background

1. Petitioners are gay females , both retirees, who own

property and reside at 5305 Saddlebag Lake Road, No. 66

Silversides Street, Lake Wales. The property is located in the

Saddlebag Lake Resort, a gated adult recreation vehicle

communi ty , which c onsists of approximately 800 units or lots and

has private roads, a private sewer system, swimming pool, and

community center. More than half of the current residents are

women, and some residents are gay.

2. Respondent is the homeowners' as sociation for the

community . Its primary function is to run the day - to - day

business required to ma intain the common areas. Each unit/lot

owner is a member of the Association and pays dues or

assessments, which are used to maintain and operate the common

facilities. The Association uses a professional property

management company to manage the property. The Association does

not receive federal funding.

3 . The Association is overseen by a nine - person B oard

elected by all community members , three of whom were women when

this dispute arose . The Association writes rules and

regulations for the community.

4 . The parties have stipulated that the Complaint was

filed with the FCHR on November 1 2 , 2015 , and an Amended

Complaint was filed on January 28, 2016 . By law , t his means

that only those acts that occurred within the preceding 365 days

of each filing can be considered. See § 760.32(2), Fla. Stat.

Although the Complaints rely on statutes that prohibit sex

discrimination, Petitioners contend that sexual orientation

discrimination is per se "sex discrimination" within the meaning

of the law. The chronology of events which led to the filing of

the Complaints is summarized below.

5 . Petitioner s first resided in the community as renters

from November 201 1 until April 2012 . In March 2012, they

purchased a lot with an existing mobile home . In December 2013,

Petitioners decided to purchase a new mobile home . The existing

home was removed in February 2014 and replaced with a new one in

March 2014. A dispu te between the parties arose concerning

whether the porch on the new home complied with the

Association's building restrictions . There is no credible

evidence that the Association ' s decision to enforce what it

believed were valid building restrictions was based on

Petitioners ' sexual orientation.

6. When the dispute could not be informally resolved, t he

Association filed a lawsuit against Petitioners seeking a court

order requiring Petitioners to comply with applicable building

restrictions. Petitioners countersued on the grounds the

Association's governing documents had expired. Until that time,

it is fair to say that Petitioners and other residents in the

community had a harmonious relationship. In fact, the record

shows that respondents J ensen and Ha ven were good friends with

Petitioners and sometimes socialized together .

7 . As a result of th e dispute, an acrimonious relationship

developed between the parties. From that point forward ,

Petitioners blame d unlawful discriminatory animus on the part of

residents, Board members, and employees as the reason f or

virtually every action they considered objectionable .

8. During the following months , Petitioners lodged various

complaints with the Sheriff's Office and sought a stalking

injunction against the property manager in circuit court . The

complaints were determined to be unfounded by law enforcement

and the injunction was denied. In October 2014, Toma y ko wrote a

letter to the Board complaining about "neighbors go[ing] against

neighbors creating casu alties among themselves," but she did not

mention any specific i ndividuals or incidents or suggest that

sexual orientation was the source of this conflict. See Resp.

Ex. 14. In February 2015, while the lawsuit was still pending ,

she wrote a letter to a r e vitalization proponent complaining

about a series of incidents, all stemming from the property

dispute. See Resp. Ex. 21. No claim was made that

discriminatory animus was the underlying cause of the incidents .

9. For reasons discussed in the Conclusion s of Law,

incidents occurring more than a year before the Complaints were

filed are time - barred. For the purpose of making a complete

record, however, the incidents are summarized below .

10. Only two allegations are lodged against Jensen, the

current p resident of the Board, and a Board member since 2012.

First, it is alleged that while the building restriction dispute

was being discussed at a closed Board meeting on February 27,

2014, Jensen made a derogatory statement about Petitioners'

sexual orienta tion. However, Petitioners did not attend the

meeting, and repeated only what they were told by a third party,

who did not testify at hearing. Second, Austin testified that

while attending a band concert with Jensen in April 2014, he

called T o mayko "evil ," and Austin assumed this referred to

Petitioners' lifestyle. Austin also testified that Jensen told

her that Petitioners "will have to answer to God for [their]

lifestyle." Jensen denied these assertions, and his testimony

is accepted as being more cre dible. Ironically, Austin admitted

at hearing that she never personally heard Jensen make any

discriminatory remarks based on a person's sex or sexual

orientation.

11. On February 28, 2014, while discussing the property

dispute, Board member Braden, no w deceased, said words to the

effect that people like Petitioners move into a community just

to do this . Although Petitioners ascribe a different meaning to

the words, t here is no evidence that Braden's statement was

referring to Petitioners' sexual orien tation. More than likely,

h e was referring to Petitioners' assertion , unpopular with most

residents, that the Association 's governing documents had

expired .

12. In March 2014, 1 / while playing a game of pool, Braden

stated in the presence of witness Par k that the property dispute

might have been "sorted out" were it not for Petitioners'

lifestyle. There is no evidence that the statement was made in

Braden's official capacity as a Board member.

1 3 . Other minor incidents included a police report of

van dalism to Petitioners' property in June 2014, and a claim by

Toma y ko in October 2014 that a Board member almost struck her

with his automobile while she was standing in the road. There

is no evidence to connect these incidents with the charges in

the Comp laints .

B. The Charges

1 4 . The initial Complaint alleges that , on the basis of

their sex ual orientation , Board members or employees

discriminated against Petitioners with respect to the provision

of housing services or facilities in connection with the sale or

rental of a dwelling . The Amended Complaint adds a statutory

allegation that on the basis of their sex ual orientation, Board

members or employees unlawfully intimidated or threatened them

in order to interfere with their exercise of protected hou sing

rights. Both filings rely on the same underlying charges , which

are based on acts occurring more than a year before the

Complaints were filed, some that are undated, and some that

occurred within the one - year period. Petitioners have requested

compe nsation for medical bills and other damages, as well as

reasonable attorney's fees and costs.

1 5 . Before she moved to Florida, Austin was diagnosed with

lupus, an autoimmune disease. In October 2014, or more than a

year before the Complaints were filed , and again in November

2014, she w as hospitalized because of a flare up of her lupus .

Austin says the flare up was due to stress caused by unlawful

interactions with Board member s or employees prior to the

hospitalization . No medical testimony supports this charge , and

all interactions would have occurred more than a year before the

Complaints were filed . Assuming arguendo th e charge is true and

time - barred events can be considered , the more persuasive

evidence supports a finding that the interactions w ere the

result of the acrimonious relationship between the parties that

arose when the new home was installed, and not because of

Petitioners' sexual orientation.

1 6 . In January 2015, Petitioners and the Board jointly

sponsored a town hall - type meeting to discuss the ir lawsuit , a

second lawsuit involving a nother resident, and the

re vitalization of the Association's governing documents

extinguished by the Marketable Record Title Act (MRTA) . 2 /

Without revitalization, the Association could not enforce

r est rictions that had been in effect for many years.

1 7 . Because Petitioners were concerned there might be an

incident at the meeting , they contacted the Polk County

Sheriff's Office to request assistance. Deputies from that

office attended the meeting, en countered no problems , and left

without incident. Austin testified that during the meeting , she

encountered "hostility" from other participants and had a verbal

argument with one Board member, but no derogatory comments were

directed at her by any attende e. After the meeting, a picnic

was held , which was attended by Petitioners.

1 8 . The revitalization issue was a significant one and

caused a split in the residents of the community. One Board

member estimated that a round 90 percent of the residents

sup ported revitalization, while only ten percent opposed it. In

light of the pending lawsuit between the parties, m any in the

community believed that Petitioners opposed revitalization. In

fact, Petitioners described the divide on the issue as "us"

versus " them."

1 9 . On February 18, 2015, proponents of revitalization

sponsored a parade . Approximately 250 golf car t s participated

in the event , as well as a number of residents on foot , all in

support of revitalization . Many carried signs urging a yes vote

on the issue. Toma y ko testified that when the large parade

crowd passed her home, horns were blown and the participants

yelled and booed. Because of the noise, she could not

understand what they were saying. She did hear "go to hell" one

time, but she has no idea who made the comment and acknowledged

no comments of a sexual nature were made. She admitted that the

parade participants probably thought Petitioners were opposed to

revitalization and this may have prompted the jeers. Tomayko

testified she was "frightened" by the crowd. However,

Pet ition ers were invited by parade participants to a picnic

later that day, which they attended .

20 . A t the picnic , Austin became involved in a verbal

argument with a female Board member , who Austin says called her

"e vil . " During th e encounter, Austin grabbed the Board member

by her shoulders and began violently shaking her. The Board

member filed criminal charges against Austin, who was arrested

for violating section 784.03(1)( a )1 . , a first degree

misdemeanor. The victim later agreed to withdraw her complaint

and the charges were dropped . Austin acknowledged that people

in the community might be wary of associating with her after

finding out about the assault.

2 1 . While at home o n the evening of February 20, 2015,

Tomayko heard someone trying to open her door, and then observed

someone running down the stairs with a flashlight. That

individual was never identified , and Petitioners did not report

the incident to the police .

2 2 . Ar ound 3:00 a.m. on February 21, 2 015, a wooden cross

was set on fire in Petitioners' yard. Apparently believing that

the Association ha d more resources than law enforcement in

finding the culprit, Petitioners complain ed that the Association

provided no assistance in discovering who was r esponsible , a

"service" to which they were entitled . However , l aw enforcement

was called and an investigation was conducted by multiple

members of the Sheriff's office. The Association did not deny

Petitioners a "service" by relying on law enforcement to find

the culprit, rather than undertaking its own investigation. No

suspect was identified and n o charges were ever filed. Based on

speculation, Austin believes a female resident , not a Board

member or employee, was responsible for the cross burning , bu t

there is no evidence that any Board m ember , employee , or even a

resident participated in , or had knowledge about , the incident.

Both Petitioners say they felt intimidated and frightened by th e

incident.

2 3 . On February 27, 2015, the Board, Petitioner s , and

a nother resident with a pending lawsuit mediated a global

settlement of their lawsuits . As a part of the settlement, t he

Association agreed to pay Petitioners' costs in the ir lawsuit

and to terminate the employment of its property manager. A

condi tion in the agreement required that Petitioners not oppose

revitalization.

2 4 . Austin testified that a fter the mediation, two

neighbors, Bob Amick and Terry Haven, occasionally stood in

Amick's porch across the street "yelling stuff at us" and

laughin g. Neither was a Board member or employee at th e time ,

and t he content of the "stuff" being yelled is un known.

2 5 . Toma y ko was one of a group of 16 residents , consisting

of four males and 12 females, who regularly played pinochle at

the community center every Thursday . No player was a Board

member or employee. The card game is a voluntary endeavor by

pinochle enthusiasts and an activity over which the Association

has no control. The Association merely handles or assists with

reservations for the use o f the clubhouse, and nothing more.

2 6 . A female member of the group decided to move the game

scheduled on April 6, 2015, to a private home. She notified

every member except Toma y ko , who arrived at the community center

that day expecting to join her gro up. Toma y ko considers that

action to be a denial of a "service" available to all other

residents, and contends the change in location was made because

of her sexual orientation . No credible evidence support s this

assertion.

2 7 . While attending a pinoc hle game o n another occasion ,

Toma y ko testified that when she sat down at a table, a male

player got up and left. No derogatory statements of a sexual

nature were made.

2 8 . Toma y ko regularly attended a "K offee K latch , " a group

of residents who met period ically for coffee and c onversation .

Like the card games, the K latch is something over which the

Association has no control. In April 2015, she sat down at a

table and a "couple [of] people got up and walked away."

Another unnamed female "got up and left , " presumably to sit

elsewhere. Toma y ko acknowledged , however, that no derogatory

comments of a sexual nature were directed towards her by any

person at the K latch.

2 9 . Austin testified that around "once a week" from

November 2014 until March 2015, Terry Haven, who lives ca tt y -

corner from Petitioners and also worked as a security guard

during that period of time, yelled at Petitioners while driving

past their home in a golf cart . Austin acknowledged that she

would yell sarcastic things back to him. She says Haven

sometimes used profanity and called them "dykes . " However , no

specific dates were provided, and it is highly unlikely th e

name - calling occurred while he was working his midnight shift.

There is no evidence that Petitioners reported Haven's use of

the word "dykes" to the Board.

30 . Toma y ko testified that Haven would purposely drive by

their home and cause the golf cart engine to backfire . On on e

occasion , he threatened to poison their dogs. She also stated

that in December 2015, he stood ac ross the street and took some

photographs of the ir home, and this upset her . No evidence was

presented that linked this conduct to the charges in the

Complaints.

3 1 . There is no evidence that Petitioners were treated

differently because they are women.

3 2 . Other gay persons reside in the community, both male

and female. There is no evidence that any other gay residents

have been subjected to d iscriminatory treatment because of their

sexual orientation.

3 3 . In sum, t he record shows a few isolated in stances in

2014 and 2015 where actions by residents might arguably be

perceived by Petitioners as being objectionable and based on

discriminatory animus. The more persuasive evidence supports a

finding that the se actions were motivated by Petitioners'

opp osition to revitalization , the pending lawsuit, or

personality conflicts , and not because they were gay. Even

assuming arguendo the actions were based on discriminatory

animus, which they were not, the FCHR has no authority to

dictate how neighbors choose to treat one another. And there is

nothing in the law that imposes a duty on a homeowner

association to intervene in a neighbor - to - neighbor dispute.

3 4 . Assuming that Haven call ed Petitioners "dykes" on

several occasions between November 2014 and March 2015 , this

more than likely occurred when he was off - du ty and not in his

capacity as an employee. All o ther incidents were attributable

to the lawsuit, revitalization , or personality disputes and we r e

not based on Petitioners' sexual orientation.

C. Dam ages

3 5 . To support their damages claim, Petitioners submitted

Composite Exhibit 1 , mostly hearsay, consisting of 66 pages of

Austin's personal notes ; medical, dental, and drug bills ;

housekeeping charges ; veterinary bills for Austin's dog ; and

mileage ch arges . Th e bills total $15,950.01 , mainly those not

covered by insurance . Austin contends Association - induced

stress was the cause of all of these charges and required her

(and her dog) to seek medical and dental treatment and other

services to alleviate a flare - up of lupus, depression , and other

ailments triggered by the Association 's actions . S ome charges ,

not distinguished from others, were incurred before November 12,

2014 . Notably, there is no credible evidence to establish a

nexus between any of t h e bills and the acts of Board members or

employees.

CONCLUSIONS OF LAW

3 6 . Section 760. 23(2) provides that " 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

o f services or facilities in connection therewith, because of

race, color, national origin, sex, handicap, familial status, or

religion." There is no reference in the statute to sexual

orientation.

3 7 . Section 760.37 provides that it is unlawful to coer ce,

intimidate, threaten, or interfere with any person on the basis

of their sex, in the exercise of, or on account of her or his

having exercised , any right granted under the Fair Housing Act.

There is no reference in the statute to sexual orientation.

3 8 . In interpreting and applying Florida's Fair Housing

Act, the FCHR and Florida courts regularly seek guidance from

federal court decisions interpreting similar provisions of

federal fair housing laws. See, e.g. , Loren v. Sasser , 309 F.

3d 1296 n . 9 (1 1th Cir. 2002)("the facts and circumstances that

comprise the federal and state fair housing claims are the

same"); Bhogaita v. Altamonte Heights Condo . Ass'n, Inc. , 765

F.3d 1277, 1285 (11th Cir. 2014)("The FHA and Florida Fair

Housing Act are substantive ly identical, and therefore the same

legal analysis applies to each.").

3 9 . Petitioners have the burden of proving a prima facie

case of discrimination by a preponderance of the evidence. See

§ 120.57(1)(j), Fla. Stat. A failure to establish a prima f acie

case of discrimination ends the inquiry.

40 . T hree issues will be addressed before reaching the

merits of th e case. The first issue is whether a claim of

discrimination based on sexual orientation is actiona ble under

chapter 760. The second issue is whether acts occurring more

than a year before the C omplaints were filed can be considered.

The third issue, raised for the first time in their PRO, is

whether Petitioners are entitled to relief on the theory that

the Association created a hostile hou sing environment that

unreasonably interfered with the use and enjoyment of their

home. Petitioners argue that all questions should be answered

in the affirmative.

4 1 . Petitioners, both women, offered no credible evidence

that they were treated differe ntly because they were women.

They contend they were discriminated against because they are

gay, and therefore, they were subjected to sex discrimination.

They cite no FCHR or state c ourt decision, or Eleventh Circuit

decision , which supports their claim that discrimination on the

basis of sexual orientation is actionable under chapter 760.

Rather, they rely primarily on a 2015 administrative ruling by

the Equal Employ ment Opportunity Commission (EEOC) involving a n

allegation that the Federal Aviation Ad ministration (FAA) denied

a gay air traffic controller a promotion based on his sexual

orientation. Although the FAA dismissed the complaint as being

untimely and did not address the merits of the claim, it advised

the claimant he could process the claim as a grievance under the

FAA's internal procedures concerning sexual orientation

discrimination. The claimant elected instead to appeal that

ruling to the EEOC, which concluded the complaint was timely.

It also held that "sexual orientation is inherently a 'sex - based

consideration , ' and an allegation of discrimination based on

sexual orientation is necessarily an allegation of sex

discrimination under Title VII." Baldwin v. Foxx , 2015 EEOPUB

LEXIS 1905 at * 13 (EEOC July 16, 2015). The EEOC remanded the

complaint back to the FAA "for further processing for a

determination on the merits." Id. at *30.

4 2 . Petitioners rely on sexual orientation as the sole

basis for discrimination. No FCHR or state court decision holds

that a sexual orientation claim is a ctionable under chapter 760.

W ithout controlling authority from the Eleventh Circuit, the

question of whether sexual orientation discrimination claims are

cognizable under federal law is "an open one." Isaacs v. Felder

Servs., LLC , 143 F. Supp. 3d 1190, 1193 (M.D. Ala. Oct. 29,

2015). F ederal trial courts in this circuit have answered the

"open" question in different ways. See, e.g. , Mowery v.

Escambia Cnty. Util s. Auth. , 2006 U.S. Dist. LEXIS 5304 at *23

(N.D. Fla. Feb. 10, 2006)("Title VII permits no cause of action

when the alleged harassment is based solely on one's sexual

orientation or perceived sexual orientation"); Evans v. Ga.

Reg'l Hosp. , 2015 U.S. Dist. LEXIS 120618 at *3 - 4 (S.D. Ga.

Sept. 10, 2015)("Although the Eleventh Circuit has not addre ssed

this issue, every court that has done so has found that Title

VII was not intended to cover discrimination against

homosexuals."); Burrows v. Coll. of Cent. Fla. , 2015 U.S. Dist.

LEXIS 64897 at * 26 (M.D. Fla. July 13, 201 5 )( "Plaintiff's claim,

althoug h cast as a claim for gender ster e otype discrimination,

is merely a repackaged claim for discrimination based on sexual

orientation, which is not cognizable under Title VII.");

Rodriguez v. Alpha Inst. of S . Fla., Inc. , 2011 U.S. Dist. LEXIS

124584 at *15 - 16 (S.D. Fla. Oct. 27, 2011)(where the vast

majority of comments made to plaintiff pertained to his sexual

orientation, they cannot form the basis of a Title IX claim) ;

Thomas v. Osegueda , 2015 U.S. Dist. LEXIS 77627 at *12 - 13 (N.D.

Ala. Sept. 16, 2015)(al legations of discrimination based on

sexual orientation, and not gender non - conformity, are outside

the scope of the Fair Housing Act ' s sex discrimination

protection) . On the other hand, in denying a motion to dismiss

an allegation of perceived discrimina tion based on sexual

orientation , one trial court recently acknowledged that the law

was "in a state of flux," and concluded that the view that

"discrimination on the basis of sexual orientation is

necessarily discrimination based on gender or sex stereoty pes,

and is therefore sex discrimination -- is persuasive to this

Court." Winstead v. Lafayette Cnty. Bd. of Cnty. Comm'r , 2016

U.S. Dist. LEXIS 80036 at *26 (N.D. Fla. Ju ne 20, 2016).

4 3 . As the Seventh Circuit Court of Appeals succinctly put

it, "[p] erhaps the writing is on the wall" to reconsider legal

precedent and expand the meaning of sex discrimination , but

"[u]ntil the writing comes in the form of a Supreme Court

opinion or new legislation, we must adhere to the writing of our

prior precedent." Hively v. Ivy Tech Cmty. Coll. , 2016 U.S.

App. LEXIS 13746 at *55 (7th Cir. July 28, 2016). Here, a bsent

any "writing on the wall," until the Eleventh Circuit , Supreme

Court , or a Florida state court holds otherwise, or new

legislation is enacted, the un dersigned will follow prior

precedent which holds that a discrimination claim based on

sexual orientation is not actionable under chapter 760. 3 /

Therefore, the Petition for Relief should be dismissed, with

prejudice.

4 4 . A lthough it is unnecessary to rea ch the second issue ,

by statute, o nly those acts occurring within one year preceding

the filing of a complaint can be considered. See § 760.32(2),

Fla. Stat. ("[a] complaint under [this section] must be filed

within 1 year after the alleged discriminatory housing practice

occurred"). See also Plaisime v. Marriott Key Largo Resort ,

Case No. 02 - 2183 (Fla. DOAH Feb. 14, 2003; FCHR Nov. 21, 2003)

("the Commission is without jurisdiction to find that events

occurring outside of the 365 - day filing period are 'a ctionable'

unlawful employment practices"), aff'd , 876 So. 2d 1211 (Fla. 3d

DCA 2004) . Compare § 42 U.S.C. 3610 (§ 810) ( an aggrieved

person may, not later than one year after an alleged

discriminatory housing practice has occurred or terminated, file

a c omplaint with the Secretary alleging such discriminatory

housing practice. If the 365 - day period has lapsed, agency has

no jurisdiction.) .

4 5 . Petitioners argue, however, that under the "continuing

violation" doctrine , acts outside the one - year jurisdi ctional

period may be considered when there is a fixed and continuing

practice of unlawful acts both before and during the limitations

period. See Havens Realty Corp. v. Coleman , 455 U.S. 363,

380 - 81 (1981). Under this theory, the plaintiff must show t hat

an illicit act did not occur just once, but rather in a series

of separate acts. But t he evidence does not show that unlawful

acts by Board members or employees were fixed and continuing

both before and during the limitation period. Even accepting

th e premise that the four - month exchange between Haven and

Austin occurred once a week during the wee hours of the morning

while Haven was on duty, there is no credible evidence that a

string of unlawful acts occurred before the limitation period.

4 6 . The facts of this case do not support a conclusion

that the Association or its employees engaged in a policy and

practice of discrimination prior to and during the limitation

period. Th e doctrine does not apply , and e ven if a sexual

orientation complaint wer e actionable, which it is not, only

those actions occurring within one year before the Complaints

were filed could be considered .

4 7 . In their PRO, Petitioners appear to contend that they

are entitled to relief because the Association created a hostile

ho using environment that interfered with the use and enjoyment

of their home. They essentially argue that the Association

tolerated and ratified harassment motivated by discriminatory

animus and failed to stop it. But the Eleventh Circuit has not

recognize d a cause of action under the federal Fair Housing Act

for a hostile housing environment . See, e.g. , Lawrence v.

Courtyards at Deerwood Ass'n, Inc. , 318 F. S upp. 2d 1133 , 1146

(S.D. Fla. 2004). The re is no cause of action under chapter 760

on the facts p resented.

4 8 . Even assuming that sexual orientation were actionable

under chapter 760, Petitioners claim must be denied. To

establish a prima facie case for a violation of section

760. 23 (2), Petitioners must show that : (1) they are an

aggrieved party; ( 2) they suffered an injury because of the

alleged discrimination; and (3) based on the alleged

discrimination , they were denied provision of service s protected

by the Fair Housing Act that were available to other hom e owners.

See, e.g. , Savanna Club Worshi p Serv. v . Savanna Club

Homeowners' Ass'n , 456 F. Supp. 2d 1223, 1232 (S.D. Fla. 2005).

4 9 . Petitioners failed to establish a prima facie case of

discrimination under section 760.23(2). While not clearly

alleged, t he grounds for this claim appear to be t hree - fold.

First, Tomayko attempted to play pinochle with a group she had

previously played with, but the card game was moved to a

different location without notifying her. Second, Petitioners

contend that the Board denied them a service by failing to

co nduct its own investigation of the cross burning, rather than

relying on law enforcement. Third, Petitioners argue that the

Association should have taken steps to prevent or curtail the

hostility exhibited by other residents after the property

dispute aro se . On all three charges, which amount to no more

than neighbor - to - neighbor disputes, Petitioners failed to adduce

evidence of a prima facie case.

50 . To establish a prima facie case of discrimination

under section 760.37, Petitioners must show that be cause of

discriminatory animus the Board or its employees coerced,

intim idated, threatened, or interfered with : (a) their exercise

of a right under the law; (b) their enjoyment of a housing right

after exercise of that right; or (c) their aid or encourage ment

to a protected person to exercise or enjoy a housing right .

Lawrence , 318 F. Supp. 2d at 1143 - 44 . As to this charge,

Petitioners failed to adduce evidence of a prima facie case.

5 1 . Finally, while the Association acknowledges that the

Fair Housin g Act does not directly speak to whether a prevailing

respondent is entitled to reimbursement of reasonable attorney's

fees and costs, it points out that federal law allows such

reimbursement . Accordingly, it requests that it be reimbursed

for these fees and costs. The undersigned will defer this issue

to the FCHR . Cf. § 760.11(7), Fla. Stat.

5 2 . Given the foregoing considerations, t he Petition for

Relief should be d ismissed , with prejudice .

RECOMMENDATION

Based on the foregoing Findings of Fact and Co nclusions of

Law, it is

RECOMMENDED that the Florida Commission on Human Relations

enter a final order dismissing, with prejudice, the Petition for

Relief.

DONE AND ENTERED this 15th day of September, 20 16, in

T alla hassee, Leon County, Florida.

S

D . R. AL EXANDER

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 Administ rative Hearings

this 15th day of September , 201 6 .

ENDNOTE S

1/ At hearing, T o mayko testified that the statement was made in

December 2014, or within the limitation period. However, witness

Park testified that Braden made the statement about two week s

after the new home was moved into the community. Tr. at 91.

Petitioners' PRO also uses the March 2014 date.

2/ U nder the MRTA , the covenants and restrictions governing

resi dential homeowners' associations , including Respondent,

expire after a period of 30 years unless the association take s

steps to preserve those covenants and restrictions prior to the

end of the 30 - year period. Once expired, the association ,

through a member vote, must "revitalize" the governing documents

under a process described i n chapter 720 . In this case, the

community apparently failed to act within the 30 - year time

period , and its restrictions expired . Accordingly, a

revitalization effort was undertaken by the Association and

remains pending at this time .

3 / In its inves tigative report, the FCHR also took the position

that a claim based on sexual orientation was not actionable under

chapter 760 . It further concluded that incidents occurring more

than a year before the Complaints were filed were time - barred .

See Resp. Ex . 36.

COPIES FURNISHED:

Tammy Barton , Agency Clerk

Florida Commission on Human Relations

4075 Esplanade Way , Suite 110

Tallahassee, Florida 323 99 - 7020

(eServed)

Cheyanne M. Costilla, General Counsel

Florida Commission on Human Relations

4075 Esplanad e Way , Suite 110

Tallahassee, Florida 32399 - 7020

(eServed)

Frederic B. O'Neal, Esquire

Post Office Box 842

Windermere, F lorida 3 4 786 - 0842

(eServed)

Richard V. Blystone , Esquire

Theresa M. McDowell, Esquire

Garganese, Weiss & D'Agresta , P.A.

Suite 2000

111 North Orange Avenue

Orlando, Florida 3280 1 - 2327

(eServed)

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

All parties have the right to submit written exceptions within

1 5 days of the date of this Recommended Order. Any exceptions to

this Recommended Order should be filed with the agency that will

render a final order in this matter.