17-004227 Jean Rath vs. Perry Carrell Status: Closed Recommended Order on Tuesday, February 27, 2018.

Summary: Petitioner failed to establish that Respondent failed to provide reasonable accommodations for her disability and discriminated against her based on her disability in violation of Florida's Fair Housing Act.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

JEAN RATH,

Petitioner,

vs. Case No. 17 - 4227

PERRY CARRELL,

Respondent.

_______________________________/

RECOMMENDED ORDER

This case came before Administrative Law Judge Darren A .

Schwartz of the Division of Administrative Hearings for final

hearing by video teleconference on January 24, 2018, at sites in

Tallahassee and Port St. Lucie, Florida.

APPEARANCES

For Petitioner: Jean Rath, pro se

422 Southea st Naranja Avenue

Port St. Lucie, Florida 34983

For Respondent: Glenn J. Webber, Esquire

Glenn J. Webber, P.A.

101 Southeast Ocean Boulevard , Suite 203

Stuart, Florida 34994

STATEMENT OF THE ISSUE S

Whether Respondent Perry Carrell ( " Respondent " ) failed to

provide reasonable accommodations for Petitioner Jean RathÓs

( " Petitioner " ) disability and discriminated against Petitioner

because of her disability in viola tion of FloridaÓs Fair Housing

Act ; and, if so, the relief that is appropriate.

PRELIMINARY STATEMENT

On March 14, 2017, Petitioner filed a fair housing

discrimination complaint with the Florida Commission on Human

Relations ( " FCHR " ), alleging that Respo ndent and Tiara Towers

Condominium Association, Inc. ( " Tiara Towers " ) , failed to provide

reasonable accommodations for her disability and discriminated

against her because of her disability. The FCHR is a state

agency charged with investigating fair housi ng discrimination

complaints. After its investigation of PetitionerÓs complaint,

FCHR issued a Notice of Determination of No Cause on June 30,

2017.

Dissatisfied with FCHRÓs determination, Petitioner filed a

Petition for Relief with FCHR on July 25, 201 7, alleging that

Respondent violated FloridaÓs Fair Housing Act by failing to

accommodate her disability and discriminating against her because

of her disability. The petition did not identify Tiara Towers as

a Respondent, and no relief against Tiara Towe rs was sought in

the petition.

On July 25, 2017, FCHR referred this matter to the Division

of Administrative Hearings ( " DOAH " ) to assign an administrative

law judge to conduct the final hearing. When FCHR referred this

matter to DOAH, FCHR identified bot h Respondent and Tiara Towers

as Respondents in the case - style.

The final hearing was initially set for September 19, 2017,

but was continued at the request of Petitioner, and rescheduled

for October 23, 2017. On August 17, 2017, Tiara Towers filed

a motion to dismiss. On August 25, 2017, the undersigned

entered an Order granting the motion. On October 17, 2017,

Petitioner requested another continuance of the final hearing.

On October 18, 2017, Respondent filed an objection to the request

for a continuance. On October 20, 2017, the undersigned entered

an Order granting PetitionerÓs request for a continuance, and the

matter was rescheduled for final hearing on January 24, 2018.

The final hearing was held on January 24, 2018, with both

parties p resent. At the hearing, Petitioner testified on her own

behalf and presented the additional testimony of John Cooney,

Lisa Kinser, Lisa Sutherland, and Karen Perkinson. PetitionerÓs

Exhibits 1 through 6 were received in evidence. Respondent

testified on his own behalf and presented the additional

testimony of Edward Galvin and Nancy Olson. RespondentÓs

Exhibits 6, 8, 10 through 12, and Composite Exhibit 18 were

received in evidence.

On February 6, 2018, Petitioner filed a "Letter of

Information," which the undersigned construed as a post - hearing

motion to reopen the proceedings. On February 13, 2018, the

undersigned entered an Order denying the motion. On February 21,

2018, Petitioner filed another letter requesting clarification

regarding the H ome o wn er ' s A ssociation ("HOA") records received in

evidence at the hearing. On February 21, 2018, the undersigned

enter e d an Order of Ex Parte. The records received in evidence

at the hearing are identified in the preceding paragraph.

The one - volume final he aring Transcript was filed at DOAH on

February 8, 2018. The parties filed proposed recommended orders,

which were considered in the preparation of this Recommended

Order. Unless otherwise indicated, citations to the Florida

Statutes are to the 2015 versi on .

FINDING S OF FACT

1. In 2005, Respondent purchased condominium unit 604 in

Tiara Towers, located at 3120 North Highway A1A, Fort Pierce,

Florida 34949. Respondent purchased the condominium unit as his

primary residence.

2. In 2013, Respondent decide d to rent the unit to

Petitioner. In May 2013, Petitioner and Respondent entered into

a written residential lease agreement for Petitioner to lease the

premises from Respondent from July 1, 2013 , to June 30, 2015.

Pursuant to the lease, Petitioner was ob ligated to pay monthly

rent to Respondent in the amount of $1,850.00.

3. PetitionerÓs tenancy was subject to the rules and

regulations of the condominium association.

4. The associationÓs rules do not allow for tenants to have

pets.

5. In addition , the association requires all leases be in

writing.

6. The written lease between Petitioner and Respondent

expired on June 30, 2015. A properly executed second written

lease was never executed by Petitioner and submitted to the

association.

7. Neverth eless, Petitioner continued residing at the

premises on a month - to - month basis.

8. Petitioner is disabled and requires a service animal

because of her disability.

9. Over the course of the tenancy, the association became

concerned about PetitionerÓs vi olation of its rules, including

the lack of documentation of PetitionerÓs dog as a service

animal, and the lack of a new written lease after the initial

lease expired on June 30, 2015.

10. In an effort to assist Petitioner in keeping the dog,

Respondent gathered information to demonstrate the qualification s

of PetitionerÓs dog as a service animal and provided the

documentation to the association on PetitionerÓs behalf.

11. Based on the lack of a new written lease and the

absence of sufficient documen tation as to the service animal, the

association fined Respondent $2,000.00.

12. Respondent provided Petitioner with a termination of

lease and demand to vacate notice on May 28, 2016. The notice of

termination was based on the fines by the association against

Respondent for not having a timely signed lease in place, and the

associationÓs belief that sufficient documentation had not been

presented to support the dog as a service animal.

13. Petitioner vacated the unit on or about July 1, 2017.

Re spondent did not re - lease the unit and sold the unit on

March 22, 2017.

14. During the appeal process, the fine of $1,000.00

related to the service animal was rescinded by the association.

15. Respondent paid the $1,000.00 fine related to the lack

of a written lease, and has not requested reimbursement from

Petitioner.

16. At hearing, Petitioner acknowledged Respondent did not

discriminate against her on the basis of her disability, and that

Respondent advocated to the association on her behalf.

17. The persuasive and credible evidence adduced at hearing

demonstrates that Respondent did not fail to reasonably

accommodate PetitionerÓs disability or discriminate against

Petitioner on the basis of her disability.

CONCLUSIONS OF LAW

18 . DOAH h as personal and subject matter jurisdiction in

this proceeding pursuant to sections 120.569 and 120.57(1),

Florida Statutes.

19. Florida's Fair Housing Act is codified in sections

760.20 - 760.37, Florida Statutes, and prohibits discriminatory

housing prac tices. A " discriminatory housing practice " means an

act that is unlawful pursuant to section 760.23(2), (8), and (9) .

Section 760.23(2 ) provides:

(2) It is unlawful to discriminate against

any person in the terms, conditions, or

privileges of sale or ren tal 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.

2 0. Section 760.23(8) and (9) further provide:

(8) 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 with such dwelling, because of

a handicap of:

(a) That buyer or renter;

(b) A person residing in or intending to

reside in that dwelling after it is sold,

rented, or made available; or

(c) Any person associated with the buyer or

renter.

(9) For purposes of subsections (7) and (8),

discrimination includes:

(a) A refusal to permit, a t the expense of

the handicapped person, reasonable

modifications of existing premises occupied

or to be occupied by such person if such

modification may be necessary to afford such

person full enjoyment of the premises; or

(b) A refusal to make reasonab le

accommodations in rules, policies, practices,

or services, when such accommodations may be

necessary to afford such person equal

opportunity to use and enjoy a dwelling.

21. A person is handicapped if he or she has " a physical or

mental impairment w hich substantially limits one or more major

life activities, or he or she has a record of having, or is

regarded as having, such physical or mental impairment ; " or a

person with " a developmental disability as defined in

s. 393.063. " § 760.22(7) Fla. Stat. (2013).

22. Florida's Fair Housing Act is patterned after the

Federal Fair Housing Act. Federal court decisions interpreting

the Federal Fair Housing Act provide guidance in determining

whether a violation of Florida's Fair Housing Act has oc curred.

Hawn v. Shoreline Towers Phase I Condo. AssÓn , 347 Fed. App . 464,

467 (11th Cir. 2009).

23. Petitioner has the burden of proving by a preponderance

of the evidence that Respondent violated Florida's Fair Housing

Act by refusing to provide a reas onable accommodation for her

disability and discriminating against her because of her

disability. Id .

24. In evaluating fair housing reasonable accommodation and

discrimination claims, courts apply the burden shifting analysis

developed in McDonnell D ouglas Corporation v. Green , 411 U.S.

792, 802 - 804 (1973). Under this approach, Petitioner must first

establish a prima facie case of discrimination. If Petitioner

establishes a prima facie case, the burden shifts to Respondent

to articulate a legitimate , non - discriminatory reason for his

action. If Respondent satisfies his burden, Petitioner must then

prove that the legitimate reasons asserted by Respondent are a

mere pretext for discrimination. Secretary, HUD on behalf of

Herron v. Blackwell , 908 F.2d 864, 870 (11 th Cir. 1990); Savanna

Club Worship Serv. v. Savanna Club Homeowners ' Ass ' n , 456 F.

Supp. 2d 1223, 1231 (S.D. Fla. 2005).

25. To establish a prima facie case of failure to provide a

reasonable accommodation under the Federal Fair Housing Act,

Petitioners must show that: 1) she suffers from a handicap;

2) a reasonable accommodation was requested; 3) that such

accommodation is necessary to afford her an opportunity to use

and enjoy the dwelling and facilities; and 4) Respondent refused

to m ake the requested accommodation. Hawn , 347 Fed. App. at 464,

467 ; Solodar v. Old Port Cove Lake Point Tower Condo. Ass ' n , 2013

U.S. Dist. LEXIS 104996, *25 (S.D. Fla. 2013); Petrella v. Arlen

House Condo. AssÓn , Case No. 16 - 2034, 2016 Fla. Div. Adm in . Hea r.

LEXIS 508, *15 - 16 ( Fla. DOAH August 31, 2016).

26. As detailed in the Findings of Fact above, Petitioner

suffers from a handicap, she needs a service animal because of

her disability, and Respondent requested a reasonable

accommodation to the associat ion on PetitionerÓs behalf.

However, Petitioner failed to establish that Respondent refused

to make the requested accommodation. In fact, the evidence

demonstrates that Respondent advocated to the association on

PetitionerÓs behalf.

27. Even if Petiti oner established a prima facie case,

Respondent presented sufficient evidence to overcome the prima

facie case, which Petitioner failed to demonstrate was a pretext

for unlawful disability discrimination.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of

Law, it is RECOMMENDED that the Florida Commission on Human

Relations enter a f inal o rder dismissing the Petition for Relief.

DONE AND ENTERED this 2 7 th day of February , 2018 , in

Tallahassee, Leon County, Florida.

S

DARREN A. SCHWARTZ

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 C lerk of the

Division of Administrative Hearings

this 2 7 th day of February , 2018 .

COPIES FURNISHED:

Tammy S. Barton, Agency Clerk

Florida Commission on Human Relations

4075 Esplanade Way , Room 110

Tallahassee, Florida 32399 - 7020

(eServed)

Jean Rath

422 Southeast Naranja Avenue

Port St. Lucie, Florida 34983

Glenn J. Webber, Esquire

Glenn J. Webber, P.A.

101 Southeast Ocean Boulevard , Suite 203

Stuart, Florida 34994

(eServed)

Cheyanne M. Costilla, General Counsel

Florida Commission on Human Relations

4075 Esplanade Way , Room 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 this Recommended Order. Any exceptions

to this Recomme nded Order should be filed with the agency that

will issue the Final Order in this case.