17-003451 John Homer vs. Golfside Villas Condominium Association, Inc.; Hara Community 1st Advisors, Llc; And Rick Michaud Status: Closed Recommended Order on Thursday, December 14, 2017.

Summary: Petitioner failed to prove a prima facie case that Respondents denied his request for a reasonable accommodation for a disability.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

JOHN HOMER,

Petitioner,

vs. Case No. 17 - 3451

GOLFSIDE VILLAS CONDOMINIUM

ASSOCIATION, INC.; HARA

COMMUNITY 1ST ADVISORS, LLC;

AND RICK MICHAUD,

Respondents.

_______________________________/

RECOMMENDED ORDER

D. R. Alexander, the assigned Administrative Law Judge of

the Division of Administrative Hearings (DOAH), conducted a

hearing in this matter by v ideo teleconference on November 30,

2017, at sites in Orlando and Tallahassee, Florida.

APPEARANCES

For Petitioner: John Homer, pro se

Unit 609

1000 South Semoran Boulevard

Winter Park, Florida 32792 - 5503

For Respondent s : Candace W. Padgett, Esquire

Vernis & Bowling of North Florida, P.A.

4309 Salisbury Road

Jacksonville, Florida 32216 - 6123

STATEMENT OF THE ISSUE

The issue is whether Petitioner has a disability

(handicap), and, if so, was denied a reasonable accommodation

for his disability by Respondents, in violation of the Florida

Fair Housing Act (FFHA), as amended.

PRELIMINARY STATEMENT

On November 15, 2016, Petitioner filed a Housing

Discrimination Complaint (Complaint) with the Florida Commission

on Human Relations (FCHR) alleging that Golfside Villas

Condominium Association, Inc. (Golfside), along with its

managing organization, Hara Community 1st Advisors, LLC (Hara),

and Rick Michaud, the community manager, had "collectively"

discriminated against him on the basis of a disability and

denied his reasonable accommodation request. After

investigating the matter, the FCHR issued its Determination on

May 8, 2017, in which it found there is no reasonable cause to

believe a discriminatory housing practice occurred. Peti tioner

timely filed a Petition for Relief, which named only Golfside

and Hara as the alleged violators. The matter was referred by

the FCHR to DOAH to conduct a hearing to resolve the dispute.

At the hearing, Petitioner testified on his own behalf.

Res pondents did not present any witnesses. However,

Respondents' Exhibits 1, 2a through 2f, and 3 were accepted in

evidence.

A transcript of the proceeding was not prepared.

Respondents filed a proposed recommended order.

FINDING S OF FACT

1. The record in this discrimination case is extremely

brief and consist s only of a few comments by Mr. Homer, cross -

examination by Respondents' counsel, and Respondents' exhibits.

2. Petitioner resides at Golfside Villas, a condominium

complex located in Winter Park , Florida. At hearing, Petitioner

asserted that he suffers from a disability, narcolepsy, but he

offered no competent evidence to support this claim. Thus, he

does not fall within the class of persons protected against

discrimination under the FFHA.

3. Golfside is the condominium association comprised of

unit owners that is responsible for the operation of the common

elements of the property. Hara is the corporate entity that

administers the association, while Mr. Michaud, a Hara employee,

is the commun ity manager.

4. In September 2016, Mr. Homer became involved in a

dispute with Golfside over late fees being charged to his

association account and issues concerning ongoing repairs for

water damage to his unit that were caused by flooding several

years earlier. Because some of his telephone calls were not

answered by "Lorie" (presumably a member of management staff),

on September 23, 2016, Mr. Homer sent an email to Mr. Michaud,

the community manager, expressing his displeasure with how his

complaints were being handled. He also pointed out that "I have

a disability." The email did not identify the nature of the

disability, and it did not identify or request an accommodation

for his alleged disability.

5. There is no evidence that Respondents knew or should

have known that Mr. Homer had a disability or the nature of the

disability. Also, there is no evidence that narcolepsy is a

physical impairment "which substantially limits one or more

major life activities" so as to fall within the definition of a

handicap under the FFHA. See § 760.22(7)(a), Fla. Stat. Here,

Petitioner only contends that at times it causes him to speak

loudly or yell at other persons.

6. As a follo w - up to his email, on September 26, 2016,

Mr. Homer spoke by telephone with Mr. Mi chaud and reminded him

to look into the complaints identified in his email. If a

request for an accommodation ("work with me") was ever made, it

must have occurred at that time, but no proof to support this

allegation was presented. Mr. Homer acknow ledge d that he was

told by Mr. Michaud that in the future, he must communicate by

email with staff and board members rather than personally

confronting them in a loud and argumentative manner.

7. On September 26, 2016, Mr. Michaud sent a follow - up

email to Mr . Homer informing him that he must "work with my

staff, without getting loud or upset, no matter how frustrated

you may be at the time." The email also directed staff to

answer Mr. Homer's questions regarding repairs for water damage

to his unit, to "look into some late charges on his account,"

and to "work with Mr. Homer to help him get both his unit and

his account in order."

8. On November 15, 2016, Mr. Homer filed his Complaint

with the FCHR alleging that on September 26, 2016, Golfside,

Hara, and M r. Michaud had violated the FFHA by "collectively"

denying his reasonable accommodation request. Later, a Petition

for Relief was filed, which alleges that Gulfside and Hara (but

not Mr. Michaud) committed the alleged housing violation.

However, the find ings and conclusions in this Recommended Order

apply to all Respondents.

CONCLUSIONS OF LAW

9. Section 760.23(9)(b), Florida Statutes, makes it

unlawful to refuse "to make reasonable accommodations in rules,

policies, practices, or services, when such acc ommodations may

be necessary to afford such person equal opportunity to use and

enjoy a dwelling."

10. The burden of proving that Respondents failed to

provide a reasonable, proposed accommodation, or otherwise

engaged in unlawful housing discrimination, belongs to

Petitioner. See, e.g. , Loren v. Sasser , 309 F.3d 1296, 1302

(11th Cir. 2002).

11. To establish a failure - to - accommodate claim,

Petitioner must prove that 1) he is disabled within the meaning

of the FFHA; 2) he requested a reasonable accommo dation; 3) the

requested accommodation was necessary to afford him an

opportunity to use and enjoy his dwelling; and 4) Respondents

refused to make the accommodation. See, e.g. , Philippeaux v.

Apt. Inv. & Mgmt. Co. , 598 Fed. Appx. 640 (11th Cir. 2015). T he

complainant has the burden of proving a prima facie case of

discrimination by a preponderance of the evidence. See

120.57(1)(j), Fla. Stat.

12. Under the four - part burden of proof, a threshold

requirement is to demonstrate that the complainant has a

d isability. By failing to offer any competent evidence (such as

a doctor's report or other medical evidence) that he has a

disability, Mr. Homer failed to establish a prima facie case. A

failure to establish a prima facie case of discrimination ends

the i nquiry. See Ratliff v. State , 666 So. 2d 1008, 1012 n.6

(Fla. 1st DCA 1996). Thus, there is nothing for Respondents to

rebut. On this basis alone, the Petition for Relief should be

dismissed.

13. Assuming arguendo that Mr. Homer had a disability and

Re spondents were aware of this fact (which has not been

established), there is no evidence in the record that he

identified an accommodation or demonstrated that it is

reasonable. Therefore, the second prong of the test has not

been met.

14. Finally, ass uming that Petitioner asked Respondents to

"work with [him]," this is insufficient to trigger a legal duty

on Respondents' part to respond. Even so, Respondents

accommodated his inquiry by directing staff to investigate his

complaints, to answer any other questions that he submitted, and

to "work with Mr. Homer to help him get both his unit and his

account in order."

15. Given the foregoing considerations, the Petition for

Relief should be dismissed, with prejudice.

RECOMMENDATION

Based on the foregoing F indings of Fact and Conclusions of

Law, it is

RECOMMENDED that the Florida Commission on Human Relations

enter a final order dismissing the Petition for Relief, with

prejudice.

DONE AND ENTERED this 14th day of December , 2017 , in

Tallahassee, Leon Co unty, Florida.

S

D. R. ALEXANDER

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.s tate.fl.us

Filed with the Clerk of the

Division of Administrative Hearings

this 14th day of December , 2017 .

COPIES FURNISHED:

Tammy S. Barton, Agency Clerk

Florida Commission on Human Relations

Room 110

4075 Esplanade Way

Tallahassee, Florida 32399 - 70 20

(eServed)

John Homer

Unit 609

1000 South Semoran Boulevard

Winter Park, Florida 32792 - 5503

Candace W. Padgett, Esquire

Vernis & Bowling of North Florida, P.A.

4309 Salisbury Road

Jacksonville, Florida 32216 - 6123

(eServed)

Cheyanne M. Costilla, General Counsel

Florida Commission on Human Relations

4075 Esplanade Way, Suite 110

Tallahassee, Florida 32399 - 7020

(eServed)

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

All parties have the right to submit written exceptions within

15 days from the date of t his Recommended Order. Any exceptions

to this Recommended Order should be filed with the agency that

will issue the Final Order in this case.