18-002531 Lourdes Almonte vs. Scottish Highlands Condominium Association, Inc. Status: Closed Recommended Order on Monday, November 26, 2018.

Summary: Petitioner proved by a preponderance of the evidence that Respondent failed to provide a required reasonable accommodation.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

LOURDES ALMONTE,

Petitioner,

vs. Case No. 18 - 2531

SCOTTISH HIGHLANDS CONDOMINIUM

ASSOCIATION, INC.,

Respondent.

_______________________________/

RECOMMENDED ORDER

Pursuant to no tice, a formal administrative hearing was

conducted before Administrative Law Judge Garnett W. Chisenhall

of the Division of Administrative Hearings (ÐDOAHÑ), in Tavares,

Florida, on September 27, 2018.

APPEARANCES

For Petitioner: Lourdes Almonte , pro se

1501 New Abbey Avenue

Leesburg, Florida 34788

For Respondent: James Edgar Olsen, Esquire

Wean & Malchow, P.A.

646 East Colonial Drive

Orlando, Florida 32803

STATEMENT OF THE ISSUE

The issue is whether Respondent violated the Florida Fair

Housing Act ( Ðthe ActÑ) by failing to provide Petitioner with a

reasonable accommodation.

PRELIMINARY STATEMENT

Petitioner, Lourdes Almonte, filed a complaint with the

Florida Commission on Human Relations (Ðth e CommissionÑ) on

August 3 1 , 2017, alleging that Responden t, Scottish Highlands

Condominium Association, Inc. (Ðthe AssociationÑ), committed an

act of discrimination by failing to provide her with a reasonable

accommodation. Based on the information provided by Ms. Almonte,

the Commission described her complaint as follows:

Complainant Lourdes Almonte possesses a

physical and mental disability. Therefore,

[Ms. Almonte] belongs to a class of persons

whom the Fair Housing Act (Ðthe ActÑ)

protects from unlawful discrimination by

virtue of disability. [Ms. Almonte] owns a

home . . . which is subject to the rules and

regulations of SCOTTISH HIGHLANDS CONDOMINIUM

ASSOCIATION, INC.

[Ms. Almonte] alleged [that] on September 29,

2016 she was denied reasonable accommodation

for her garden bed trellises. [Ms. Almonte]

al leged she installed a raised garden bed and

trellises along the side of her home.

[Ms. Almonte] alleged she received a

violation notice from [the Association]

stating she needs to remove the garden beds

and trellises or they would remove it.

[Ms. Almon te] alleged she had medical

documentation stating her need for the garden

bed and trellises and when she attempted to

contact [the Association] regarding her

garden bed and trellises but [sic] they

didnÓt want to meet with her and turned her

away. [Ms. Al monte] alleged she possesses a

physical disability that doesnÓt allow her to

do ground gardening. As such, [Ms. Almonte]

alleged because [the Association] failed to

provide reasonable accommodation that

[Ms. Almonte] has been subjected to

discriminatory [treatment] based [on] her

disability.

The Commission conducted an investigation and issued a

determination on April 19, 2018, concluding there was no

reasonable cause to conclude that the Association violated the

Act. While finding that Ms. Almonte is disabled within the

meaning of the Act, the Commission also found that she had not

satisfied all of the requirements to maintain a claim because she

had not requested a reasonable accommodation from the

Association.

Ms. Almonte responded by filing a P etition for Relief with

the Commission on May 15, 2018.

The Commission transmitted the Petition for Relief to DOAH

on May 1 6 , 2018, in order for DOAH to conduct a formal

administrative hearing.

The undersigned scheduled the final hearing to occur in

Ta vares, Florida, on July 23, 2018. After receiving separate

communications from both parties indicating they wanted a

continuance to explore a potential settlement, the undersigned

issued an Order on July 31, 2018, rescheduling the final hearing

for Septem ber 27, 2018.

The final hearing was commenced as scheduled on

September 27, 2018. Ms. Almonte offered the following exhibits

that were accepted into evidence: 1 through 7 and 11 through 15.

Ms. AlmonteÓs Exhibits 8 through 10 were deemed irrelevant

bec ause they described events that occurred after Ms. Almonte

filed her complaint. Ms. Almonte testified on her own behalf and

did not call any witnesses.

Respondent Ós Exhibits 1 through 10 were accepted into

evidence. The Association presented the testimon y of Fred

Almonte and Lanny Greene, the AssociationÓs property manager.

The T ranscript from the final hearing was filed on

October 22, 2018. Only the Association filed a proposed

recommended order, and that proposed recommended o rder was

considered in the preparation of this Recommended Order.

FINDING S OF FACT

The following Findings of Fact are based on the oral and

documentary evidence adduced at the final hearing, matters

subject to official recognition, and the entire record in this

proceeding.

1. S cottish Highlands is a deed - restricted community in

Leesburg, Florida. The Association is responsible for the daily

operations and management of Scottish Highlands.

2. Since at least February 16, 2015, Scottish HighlandsÓ

bylaws have provided that Ð[f]ences and/or continuous hedges are

not permitted except along the perimeter of Association property.

Approved fencing shall be of pressure treated pine Òshadow box,Ó

not exceeding six (6) feet in height.Ñ

3. The AssociationÓs governing documents al so require that

Ð[a]ny and all improvements, alterations, or additions to units

by parcel ownersÑ must be reviewed by an architectural review

committee. The architectural review committee then recommends to

the Board of Directors whether the proposed impr ovement,

addition, or alteration should be allowed. The Board of

Directors, within 60 days after the parcel ownerÓs initial

request, approves or disapproves the proposal.

4. Ms. Almonte and her husband moved into Scottish

Highlands in May of 2010.

5. In 2013, Ms. Almonte was diagnosed with fibromyalgia.

6. Ms. Almonte described her experience with fibromyalgia

as follows:

The exact cause of fibromyalgia is not known.

Symptoms include widespread pain, fatigue,

cognitive difficulties, and migraine

he adacheseatments include medication and

lifestyle changes. Many people describe

fibromyalgia as feeling like a persistent

flu.

I discovered self - care was one of my best

options, by exercising regularly, by

gardening, using raised bed planters, becaus e

I canÓt do ground level gardening because of

my hips, back, and knees. I have had a hip

replacement and have broken my knee.

Reducing emotional and mental stress by using

techniques such as meditation, relaxation,

and aromatherapy in my herb garden. B y

eating a balanced diet, by growing my own

organic vegetables, fruits, and herbs [sic].

I see a psychologist, a psychiatrist, a

rheumatologist, and my primary care physician

on a regular basis. When I have severe

flare - ups, I am homebound for days.

7 . Stressful situations exacerbate her conditions.

8 . The Social Security Administration ruled on May 5, 2016,

that Ms. Almonte is disabled.

9 . While there was no testimony or documentation describing

why the Social Security Administration determined

that Ms. Almonte was disabled, an October 14, 2016, letter from

Dr. Eleanor Davina of Adult Medicine of Lake County, Inc. , states

that Ðdue to underlying medical conditions, Ms. Lourdes is unable

to do ground level yard work to include gardeni ng or weeding,

unless she has raised garden beds.Ñ 1 /

1 0 . It is not surprising that Ms. Almonte uses gardening to

mitigate the symptoms of fibromyalgia. Ms. Almonte has over 25

years of experience with gardening. She has been a certified

Florida maste r gardener and a member of the Florida Nursery

Growers and Landscape Association. Ms. Almonte is also a

founding member of the Scottish Highlands Garden Club.

1 1 . On approximately July 1, 2016, the Almontes paid $2,850

for 12 planter beds that were place d in their backyard. Each bed

is made from pressure - treated lumber and is two feet high and six

feet long. Recent photographs indicate that several of the beds

include lattices that are considerably higher than the beds

themselves. Initially, Ms. Almont e used 10 of the beds for

gardening and the remaining two as a work bench. Depending on

what she is growing at any particular time, Ms. Almonte typically

has six of the beds in use.

1 2 . Soon after placing the planter beds in their backyard,

the Almontes received at least one letter from the Association

ordering their removal. Rather than contacting the Association

and explaining that the planter beds were part of Ms. AlmonteÓs

treatment, the Almontes hired an attorney.

1 3 . Via a letter dated July 28, 2016, the Association

invited the Almontes to address the Board of Directors at the

BoardÓs next public meeting on September 20, 2016. However, the

Association barred the Almontes from bringing their attorney

unless they provided a 10 - day advance notice t hat they were doing

so.

1 4 . Ms. Almonte declined the AssociationÓs invitation

because she did not want to discuss her health issues in public.

1 5 . On August 4, 2016, the Association received a ÐTrespass

WarningÑ from the Almontes stating that it was not Ðauthorized,

permitted, or invited to enter or remain onÑ their property.

The Trespass Warning also stated that the Almontes would pursue

criminal charges through the Lake County SheriffÓs Office if the

Association disregarded the warning.

1 6 . O n September 26, 2016, the Association filed a Petition

for Mandatory Non - Binding Arbitration with the Florida Department

of Business and Professional Regulation, Division of Florida

Condominiums, Timeshares, and Mobile Homes . 2 /

17 . The AlmonteÓs Answer to the Petition stated the

following:

The Almontes did not ÐconstructÑ large wooden

planter boxes with 4X8 lattice panels and

bamboo curtains. At significant expense, the

Almontes hired a professional carpenter to

construct several portable wooden planter

boxes. The pre - constructed planter boxes

were then transported to the Almontes

property and situated on their back - yard

patio.

Mrs. Almonte is medically disabled and has

been diagnosed with an anxiety disorder.

Mrs. Almonte is a master gardener who has

worked in the gardening industry for over

30 years. Based on her disability and her

background, Mrs. AlmonteÓs medical doctor

recommend[ed] Mrs. Almonte continue gardening

to get physical exercise and to help her

relieve the unbearable stress she deals with

while coping with her physical and mental

disability. Since Mrs. Almonte is no longer

able to continuously bend or stoop to the

ground to tend to a garden grown on the

ground, it was recommended that Mrs. Almonte

utilize raised bed gardens to accommo date her

disability. Mrs. AlmonteÓs psychologist

agrees with her medical doctorÓs

recommendation to utilize gardening as a

means to cope with and mitigate the symptoms

associated with her disability.

The portable planter boxes are not positioned

in a s traight line and do not have the

appearance of a fence or a continuous hedge.

Instead, they are positioned and repositioned

on the patio according to the type of plant

growing in a particular planter and the time

of year. As plants mature and the weather

changes, the planter boxes are repositioned

on the patio to where the plants can thrive.

Planter boxes with plants that require their

growth to be supported are equipped with wood

lattice panels until the growth has died or

the plants are harvested. The re are no

Ðbamboo curtainsÑ on the AlmontesÓ property.

They did, at one time, have a single bamboo

curtain screening part of their property from

their neighborÓs property. However, that

curtain has long since been removed.

The planter boxes were prof essionally

constructed of pressure treated pine. Many

members of the community have commented on

how beautiful the planters (and plants) are

and how they add beauty to the community.

The AlmontesÓ neighbor even wrote a letter

stating that she thought the planter boxes

are beautiful and aesthetically pleasing to

view.

As stated above, the planter boxes do not

constitute a fence or a continuous hedge.

However, if said planter boxes were

considered a fence or a hedge, which they are

not, fences, raised p lanter boxes, and

continuous hedges already exist throughout

the community.

* * *

Under the governing documents, the Almontes

are not required to seek approval from the

Board of Directors because their planter

boxes are not an improvement, alteration or

addition to their unit. An ÐimprovementÑ to

real property is synonymous with a ÐfixtureÑ

to real property. Fixtures are typically

affixed to the land and become part of the

real property. Alterations alter the land in

some way. And additions are typica lly

fixtures that are added to the real property

that become part of the land. Here, the

planter boxes are not affixed to the real

property in any way. In fact, the planter

boxes are regularly moved about the Almontes Ó

back patio depending on the growing season.

Therefore, the planter boxes are not an

improvement, alteration, or addition to the

real property. Accordingly, the Almontes

were not required to seek approval to bring

in the planter boxes . [ 3 / ]

18 . On November 16, 2016, Ms. Almonte filed a complaint

with the Department of Housing and Urban Development (ÐHUDÑ), and

the complaint was ultimately referred to the Commission.

Ultimate Findings

19 . The unrebutted evidence demonstrates that Ms. AlmonteÓs

major life activities of bending, stooping, kneeling, and rising

from oneÓs knees have been substantially limited. Therefore, the

undersigned finds that Ms. Almonte proved by a preponderance of

the evidence that she is disabled within the meaning of the Act .

2 0 . While there is insufficient eviden ce to support a

finding that Ms. Almonte expressly requested a reasonable

accommodation from the Association prior to her complaint being

received by HUD and the Commission , 4 / the AlmonteÓs Answer to the

AssociationÓs Petition for Arbitration was sufficien t to

demonstrate by a preponderance of the evidence that the

Association was on notice that Ms. Almonte wanted a reasonable

accommodation.

2 1 . The preponderance of the evidence demonstrates that:

(a) the planter beds were a reasonable accommodation; a nd

(b) those planter beds were necessary to afford Ms. Almonte an

opportunity to use and enjoy her home in Scottish Highlands. The

planter beds were a reasonable accommodation because they cost

the Association nothing and did not materially impact any of the

other residents. The planter beds were a necessary accommodation

because they were an important aspect of Ms. AlmonteÓs efforts to

mitigate the effects of fibromyalgia.

2 2 . There is no dispute that the Association objected to

Ms. Almonte having the planter beds in her backyard.

2 3 . The Association has not a rticulate d a legitimate, non -

discriminatory reason for withholding approval of the planter

beds.

CONCLUSIONS OF LAW

2 4 . DOAH has personal and subject matter jurisdiction in

this proceedi ng pursuant to sections 120.569 and 120.57(1),

Florida Statutes (2017) . 5 /

2 5 . The Act is codified in sections 760.20 through 760.37,

Florida Statutes, and prohibits discriminatory housing practices.

A Ðdiscriminatory housing practiceÑ means an act that i s unlawful

purs uant to section 760.23(2), (8) and (9).

2 6 . Section 760.23(8) and (9) provide s :

(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 servic es 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:

* * *

(b) A refusal to make reasonable

accommodations in rules, policies, practices,

or services, when such accommodations may be

necessary to afford such person e qual

opportunity to use and enjoy a dwelling.

27 . A complaint under the Act Ðmust be filed within 1 year

after the alleged discriminatory housing practice occurred.Ñ

While the complaint must be in writing and state the allegations

that supposedly amount to a discriminatory housing practice,

Ð[a] complaint may be reasonably and fairly amended at any time.Ñ

§ 760.34, Fla. Stat.

28 . The Act is patterned after the Federal Fair Housing Act

(Ðthe FHAÑ). Federal court decisions interpreting the FHA

provi de guidance in determining whether a violation of the Act

has occurred. Dornbach v. Holley , 854 So. 2d 211, 213 (Fla. 2d

DCA 2002); Solodar v. Old Port Cove Lake Point Tower Condo.

AssÓn , 2013 U.S. Dist. LEXIS 104996, *25 n.7 (S.D. Fla. 2013).

29 . A peti tioner has the burden of proving by a

preponderance of the evidence that a respondent violated the Act

by failing to provide a reasonable accommodation for the

petitionerÓs disability. U.S. DepÓt of Hous. and Urban Dev. v.

Blackwell , 908 F.2d 864, 870 (11 th Cir. 1990).

3 0 . In evaluating fair housing, reasonable accommodation

claims, courts apply the burden - shifting analysis developed in

McDonnel l Douglas Corporation v. Green , 411 U.S. 792, 802 - 804,

93 S. Ct. 1817, 36 L. Ed. 2d 668 (1973). Under this ap proach, a

petitioner must first establish a prima facie case of

discrimination. If the petitioner is successful in doing so,

then the burden shifts to the respondent to articulate a

legitimate, non - discriminatory reason for its action.

3 1 . If the respo n dent satisfies its burden, the petitioner

must then prove that the legitimate reasons asserted by the

respondent are a mere pretext for discrimination. Secretary, HUD

on behalf of Herron v. Blackwell , 908 F.2d 864, 870 (11th Cir.

1990); Savanna Club Worsh ip Serv. v. Savanna Club HomeownersÓ

AssÓn , 456 F. Supp. 2d 1223, 1231 (S.D. Fla. 2005); Vassar v.

Gulfbelt Props., L.L.C. , 2011 U.S. Dist. LEXIS 36241, *8 - 11 (S.D.

Ala. 2011).

3 2 . To establish a prima facie case of failure to provide

a reasonable accomm odation under the FHA, a petitioner must

demonstrate that: (1) he or she is disabled within the meaning

of the FHA; (2) a reasonable accommodation was requested;

(3) that such accommodation was necessary to afford him or her an

opportunity to use and enj oy the dwelling; and (4) the respondent

refused to make the requested accommodation. Bhogaita v.

Altamonte Heights Condo. AssÓn , 765 F.3d 1277, 1285 (11th Cir.

2014).

Ms. Almonte Is ÐHandicappedÑ Within the Meaning of the Act

3 3 . With regard to the fir st element of a prima facie case,

a person has a disability within the meaning of the FHA if he or

she has Ða physical or mental impairment which substantially

limits one or more of such personÓs major life activities.Ñ

42 U.S.C. § 3602(h). The Act ha s similar language.

3 4 . Neither the FHA nor the Act defines the term Ðmajor

life activity.Ñ However, the Americans With Disabilities ActÓs

(Ðthe ADAÑ) definition of ÐdisabilityÑ is virtually identical to

the FHAÓs definition of Ðhandicap,Ñ and the ADA ex pressly defines

the term Ðmajor life activities.Ñ Because Congress intended for

the terms ÐhandicapÑ and ÐdisabilityÑ in the FHA and the ADA to

be interpreted similarly, the ADAÓs definition of major life

activities is instructive in assessing the meaning of Ðmajor life

activitiesÑ in the FHA. See McManus v. Cherry , 2010 U.S. Dist.

LEXIS 140300, *12 (N.D. Fla. 2010)(noting that the definition of

ÐhandicapÑ in the FHA Ðis virtually identical to that used in the

Americans with Disabilities Act, (ADA), 42 U. S.C. § 12102, and it

was the intent of Congress that these provisions be interpreted

similarly.Ñ).

3 5 . Title 42 U.S.C. § 12102(2) provides that Ðmajor life

activitiesÑ include, but are not limited to, the following:

caring for oneself, performing man ual tasks, seeing, hearing,

eating, sleeping, walking, standing, lifting, bending, speaking,

breathing, learning, reading, concentratin g, thinking,

communicating and working.

3 6 . In the instant case, the Association attempts to frame

the legal issue bet ween the parties as whether gardening, as a

matter of law, is a major life activity within the meaning of the

FHA.

37 . However, gardening is not the major life activity at

issue. The testimony and evidence demonstrate that gardening is

merely a method Ms. Almonte uses to cope with fibromyalgia. The

testimony and evidence further demonstrate that Ms. Almonte is

unable to engage in ground - level gardening due to the condition

of her hip, back , and knee. As noted above, Ms. Almonte has

broken her knee and had one hip replaced. In addition, an

October 14, 2016, letter from Dr. Eleanor Davina of Adult

Medicine of Lake County, Inc. , states that Ðdue to underlying

medical conditions, Ms. Lourdes is unable to do ground level yard

work to include gardening or w eeding, unless she has raised

garden beds.Ñ Also, the symptoms of fibromyalgia, such as

chronic pain and fatigue , would exacerbate Ms. AlmonteÓs

difficulties performing ground - level gardening. Therefore,

rather than gardening, the major life activities a t issue in the

instant case are those that would enable one to perform ground -

level gardening, and those activities include bending, stooping,

kneeling, and rising from oneÓs knees, i.e., standing.

38 . The analysis then turns to whether Ms. AlmonteÓs ma jor

life activities of bending, stooping, kneeling, and rising from

oneÓs knees have been substantially limited.

39 . Title 29 C.F.R. § 1630.2 is among the regulations that

implement the ADA, and it sets forth extensive guidance regarding

how to construe the term Ð substantially limits,Ñ and that

guidance expressly states that the term Ðshall be construed

broadly in favor of expansive coverage . . . .Ñ 29 C.F.R.

§ 1630.2(j)(1)(i).

4 0 . For instance, 29 C.F.R. § 1630.2(j)(1)(ii) provides

that Ð[a]n impairment need not prevent, or significantly or

severely restrict, the individual from performing a major life

activity in order to be considered substantially limiting.Ñ

4 1 . Title 29 C.F.R. § 1630(2)(j)(1)(iii) states that :

[t]he primary object of att ention in cases

brought under the ADA should be whether

covered entities have complied with their

obligations and whether discrimination has

occurred, not whether an individualÓs

impairment substantially limits a major life

activity. Accordingly, the thre shold issue

of whether an impairment Ðsubstantially

limitsÑ a major life activity should not

demand extensive analysis.

4 2 . Title 29 C.F.R. § 1630(2)(j)(3)(ii) provides that :

Applying the principles set forth in

paragraphs (j)(1)(i) through (ix) of th is

section, the individualized assessment of

some types of impairments will, in virtually

all cases, result in a determination of

coverage under paragraphs (g)(1)(i)(the

Ðactual disabilityÑ prong) or (g)(1)(ii)(the

Ðrecord ofÑ prong) of this section. Give n

their inherent nature, these types of

impairments will, as a factual matter,

virtually always be found to impose a

substantial limitation on a major life

activity. Therefore, with respect to these

types of impairments, the necessary

individualized asses sment should be

particularly simple and straightforward.

4 3 . Considering the guidance in 29 C.F.R . § 1630.2 and the

unrebutted evidence presented at the final hearing, the

undersigned finds that Ms. Almonte has satisfied the first

element of a prima facie case for being a disabled person within

the meaning of the FHA because she has a physical or mental

impairment which substantially limits one or more of her major

life activities.

Ms. Almonte Requested a Reasonable Accommodation

4 4 . The AlmonteÓ s Answer to the AssociationÓs Petition for

Arbitration was sufficient to put the Association on notice that

Ms. Almonte wanted a reasonable accommodation. The pleading

stated that Ms. Almonte Ðis medically disabled and has been

diagnosed with an anxiety d isorder.Ñ It also stated that

Ms. AlmonteÓs physician recommended that she continue gardening

to Ðrelieve the unbearable stress she deals with while coping

with her physical and mental disability.Ñ

4 5 . While the pleading did not use the term Ðreasonab le

accommodation,Ñ the circumstances of the instant case put the

Association on notice that Ms. Almonte was seeking one.

See Hunt v. Aimco Props., L.P. , 814 F.3d 1213, 1226 (11th Cir.

2016)(noting that Ða plaintiff can be said to have made a request

for accommodation when the defendant has enough information to

know of both the disability and desire for an accommodation. We

agree with the Third Circuit that circumstances must at least be

sufficient to cause a reasonable housing provider to make

appropria te inquiries about the possible need for an

accommodation.Ñ ) (internal citations omitted); U.S. v. Hialeah

Hous. Auth. , 418 Fed. Appx. 872, 877 (11th Cir. 2011)(concluding

that Ðat least the statements made during the court - ordered

mediation are sufficient to allow a reasonable jury to find that

Mr. Rodriguez made a specific demand for an accommodation.Ñ);

Nazarova v. Hillcrest E. No. 22, Inc. , 2018 U.S. Dist. LEXIS

111990, *12 (S.D. Fla. 2018)(stat in g th at Ð[f] o r a demand to be

specific enough to trigger th e duty to provide a reasonable

accommodation, the defendant must have enough information to know

of both the disability and desire for an accommodation, or

circumstances must at least be sufficient to cause a reasonable

landlord to make appropriate inquiri es about the possible need

for an accommodation.Ñ); Ely v. Mobile Hous. Bd. , 2014 U.S. Dist.

LEXIS 64250 n.7 (S.D. A la . 2014)(noting that a request for a

reasonable accommodation does not have to utilize Ðmagic wordsÑ).

The Planter Beds Were Reasonable a nd Necessary to Allow

Ms. Almonte to Enjoy Her Home

4 6 . ÐA reasonable accommodation is one that is both

efficacious and proportional to the costs to implement it.

A necessary accommodation is one that is directly linked to the

equal opportunity to be provided to the disabled person . . . .Ñ

Costello v. Johnson , 2011 U.S. Dist. LEXIS 96752, *10 (E.D. Va.

2011)(internal citations omitted).

47 . The preponderance of the evidence demonstrated that the

planter beds were a reasonable and necessary accom modation.

The Association Refused to Allow Ms. Almonte to Have the

Planter Beds

48 . There is no dispute that the Association does not

approve of the planter beds. Also, the Association did not

articulate a legitimate, non - discriminatory reason for no t

approving the planter beds.

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 Scottish Highlands

Condominium Association, In c. , violated the Florida Fair Housing

Act by failing to provide Lourdes Almonte with a reasonable

accommodation, and requiring Scottish Highlands Condominium

Association, Inc. , to provide Ms. Almonte with a reasonable

accommodation.

DONE AND ENTERED this 2 6 t h day of November, 2018 , in

Tallahassee, Leon County, Florida.

S

G. W. CHISENHALL

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 2 6 t h day of November, 2018 .

ENDNOTE S

1/ The May 5, 2016, ruling from the Social Security

Administration and the letter f rom Dr. Davina are hearsay, but

they supplement or corroborate Ms. AlmonteÓs testimony.

Therefore, they were admissible. See § 120.57(1)(c), Fla. Stat.

(2018)(providing that Ð[h]earsay evidence may be used for the

purpose of supplementing or explaining o ther evidence, but it

shall not be sufficient in itself to support a finding unless it

would be admissible over objection in civil actions.Ñ).

2 / Section 718.1255 , Florida Statutes (2018), establishes an

alternative dispute resolution process for re solving disputes

between condominium owners and condominium associations.

3 / The record does not describe the outcome of the arbitration

proceeding.

4 / According to Ms. Almonte, the attorney wrote a letter to the

Association giving notice of h er condition and requesting a

reasonable accommodation. However, Ms. Almonte did not attempt

to move a copy of that letter into evidence, and her testimony

regarding the letterÓs content lacked any meaningful detail.

Therefore, the undersigned does not f ind that the letter provided

the Association with notice of Ms. AlmonteÓs condition or of her

desire for a reasonable accommodation.

5 / Unless stated otherwise, all statutory citations will be to

the 2017 version of the Florida Statutes.

COPIES FURNI SHED:

Lourdes Almonte

1501 New Abbey Avenue

Leesburg, Florida 34788

Tammy S. Barton, Agency Clerk

Florida Commission on Human Relations

Room 110

4075 Esplanade Way

Tallahassee, Florida 32399 - 7020

(eServed)

James Edgar Olsen, Esquire

Wean & Malchow, P. A.

646 East Colonial Drive

Orlando, Florida 32803

(eServed)

Adam Mumbly

600 Jennings Avenue

Eustis, Florida 32726 - 6147

Cheyanne Costilla, General Counsel

Florida Commission on Human Relations

Room 110

4075 Esplanade Way

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 Recommended Order should be filed with the agency that

will issu e the Final Order in this case.