19-006072 Francis Dandrea vs. Lakeview Of Largo Condominium Association, Inc., Et Al Status: Closed DOAH Final Order on Monday, March 30, 2020.

Summary: Petitioner established that Respondent was guilty of housing discrimination through a failure to grant a reasonable accommodation.

S TATE OF F LORIDA

D IVISION OF A DMINISTRATIVE H EARINGS

F RANCIS D ANDREA ,

Petitioner ,

vs. Case No. 19 - 6 072

L AKEVIEW OF L ARGO C ONDOMINIUM

A SSOCIATION , I NC ., E T A L ,

Respondent .

/

F INAL O RDER

Pursuant to notice, the final hearing was held in this case on February 17,

2020, in Largo, Florida, before Administrative Law Judge Lynne A. Quimby -

Pennock of the Division of Administrative Hearings (DOAH).

A PPEARANCES

For Petitioner: Sarah Nelson, E squire

Gulf Coast Legal Services, Inc.

Suite 420

501 1st Avenue North

St. Petersburg, Florida 33701

For Respondent: Scott H. Jackman, Esquire

Cole, Scott, and Kissane, P.A.

Suite 400

4301 West B oy Scout Boulevard

Tampa, Florida 33607

S TATEMENT O F T HE I SSUE S

The issues in this case are whether Respondent, Lakeview of Largo

Condominium Association, Inc., et al . (Lakeview or Respondent), violated

chapter 7 0, Pinellas County Code of Ordinance s , as alleged in the

discrimination c omplaint (Complaint) filed by Francis Dandrea (Mr. Dandrea

or Petitioner); and, if so, what relief should be granted.

P RELIMINARY S TATEMENT

On May 13, 2019, Mr. Dandrea filed a Complaint with the Pinellas

County Offic e of Hum an Rights (PCOHR). Mr. Dandrea alleged that

Respondent discriminated against him on the basis of his disability when it

failed to provide a reasonable accommodation for him.

Pursuant to the procedures set forth in c hapter 70, Pinellas County Code

of Ordinances , the PCOHR conducted an investigation and found that there

was reasonable cause to believe that unlawful housing discrimination (the

denial of a reasonable accommodation) had occurred as charged. On

November 14, 2019, following a failed attem pt at conciliation between the

parties , the case was forwarded to DOAH for the assignment of an

Administrative Law Judge to conduct a hearing pursuant to section 70 - 147 ,

Pin . Cnty Code of Ord . , which conforms to the provisions of the Florida

Administrative Procedure Act. See § 70 - 147(b) Pin. Cnty Code of Ord.

The parties timely responded to the Amended Initial Order. The hearing

was scheduled for February 17, 2020, and completed on that day.

A J oint P re - H earing stipulation was filed in advance of the he aring, in

which the parties stipulated to certain exhibits, findings of fact , and

conclusions of law. Where relevant, the stipulated facts have been

inc orporated into this Final Order, and are designated with a n (*).

At the final hearing, Petitioner testi fied on his own behalf and also

presented the testimony of Mary Eldridge and Joseph Glorioso.

Respondent presented the testimony of Frank Fundora, Fred Harrington, and

Kathy Ross. Joint Exhibits A through Q 1 were received into evidence.

A court reporter was present to preserve the testimony at the final

hearing, but no transcript was ordered. The parties initially agreed to file

their post - hearing su bmittals by February 27, 2020. On February 25, 2020, a

ÑJOINT STIPULATION TO EXTEND DEADLINE FOR PARTIES T O

SUBMIT THEIR RESPECTIVE RECOMMENDED ORDERSÒ was filed, and

the extension to March 9, 2020 , was granted . Both parties timely filed post Ï

hearing submittals within the extended time and their submittals have been

considered in the preparation of this Final Order.

F INDINGS O F F ACT

The following Findings of Fact are based on the relevant stipulated facts

and the oral and documentary evidence adduced at the final hearing.

1. The parties agree that the Federal Act (42 U.S.C. 3601 et seq . ), the

Florida Fair Hous ing Act (sections 760.20 through 760. 37, Florida Statutes,

(2019 ) ) , 2 and Ñ the Pine llas C ou nty Code mirror one another, so the same legal

arguments apply to all counts of the C omplaint. Ò (*)

2. The Lakeview campus consists of 12 to 14 acres of land and six

r esidential buildings with approximately 60 condominiums in each building,

for a total of 312 units. There are laundry facilities (a washer/dryer unit) on

each floor for residents to use. Residents are not allowed to use laundry

facilities found on the diff erent floors of each building, but must use the

facilities on their floor. If the laundry facilities on their floor are in use,

1 At the hearing, the parties jointly offered an additional exhibit, Exhibit Q, which was

admitted into evidence.

2 Unless stated otherwise, all Florida statutory citations will be to the 2019 version of the

Florida Statutes. No legislative changes have been made to sections 760 . 20 through 760 . 37

since 2013.

residents must wait until the laundry facilities are available.

3. In 2004, Petitioner was 71 years old, and his wife, Dolores D andrea ,

was 70 years old when they purchased Lakeview Condominium No. 6113. On

April 13, 2004, Petitioner and Mrs. Dandrea executed the following

statement : I have read the frequently asked questions and answer sheet and

understand my responsibilities as a n owner. 3

4. LakeviewÔs Rules and Regulations (the ÑRulesÒ) , Section VIII,

paragraph three provides: ÑNo new washer or dryer installations will be

permitted within the units as of January 1, 1994. ... Upon the sale of the unit,

washers and/or dryers withi n the unit must be removed .Ò (*)

5. The Rules do not provide who (buyer or seller) is to remove the washer

and dryer upon sale of a condominium unit. (*)

6. Petitioner and Mrs. Dandrea resided in Condominium No. 6113 for nine

years. In those nine years, Pet itioner testified he had never thought about

the Rules, specifically about the washer/dryer unit, as they were Ñvery closeÒ

or Ñright next doorÒ to the first floor laundry facility.

7. In 2013, Condominium No. 6110 was listed for sale. Petitioner either

knew or became aware that there was a washer/dryer unit in that

condominium, a main purchasing point for Petitioner.

8. On March 29, 2013, Petitioner executed an ÑAS ISÒ residential contract

for the sale and purchase of Condominium No. 6110. The contract clearly

listed additional personal property included in the sale: refrigerator(s);

microwave oven; washer; dryer; and blinds. It is undisputed that the

washer/dryer unit was installed prior to the DandreaÔs purchase of

Condominium No. 6110 . (*)

9. An ÑEs toppel LetterÒ 4 requested by the title company provided there

were no violations against Condominium No. 6110 at the time of the sale.

3 As part of LakeviewÔs screening process , all new residents have to acknowledge a Ñ55+

Community Frequentl y Asked Questions and Answer Sheet DBR Form 33 - 032.Ò

4 The ÑEstoppel LetterÒ provides that the buyers are ÑFrancis and Dolores DÔAndreaÒ.

10. Petitioner and Mrs. Dandrea moved from Condominium No. 6113 into

Condominium No. 6110 in late April or early May 2013 . A washer/dryer unit

was in Condominium No. 6110 , as specified in the purchase agreement .

11. PetitionerÔs current unit (Condominium No. 6110) is a dwelling within

the meaning of the Act, 42 U.S.C.§ 3602(b) , because it is within a multi - unit

building occ upied as a r esidence by several families. (*)

12. O n October 24, 2018, LakeviewÔs community association m anager,

Frank Fundora, notified Petitioner and Mrs. Dandrea of their non - compliance

with the Rules regarding the presence of the washer/dryer unit in

C ondominium No. 6110. (*)

13. On January 22, 2019, Mr. Fundora, on behalf of Lakeview, sent the

Dandreas a letter that ÑrequiredÒ them to attend a Lakeview Compliance

Committee hearing to explain their position as it related to the washer/dryer

unit in thei r condominium. The hearing was held on February 6, 2019. 5

14. On February 21, 2019, Mr. Fundora, on behalf of Lakeview, advised

the Dandreas that they were found in non - compliance of the Rules by the

Compliance Committee. (*) That violation was reported to the Lakeview

Board of Directors (Board) , who requested the washer/dryer unit be removed

from Condominium No. 6110 within 14 days of the letter. Additionally, the

Dandreas were notified that the non - compliance (the failure to remove the

washer/dryer unit ) would lead to a monetary fine of up to $100 per day to a

maximum of $1 , 000. (*)

1 5 . The Dandreas did not remove the washer/dryer unit from

Condominium No. 6110.

16. On March 14, 2019, Mr. Fundora, on behalf of Lakeview, notified the

Dandreas of the fine as sessment of $100 per day for the violation of the

5 The January 22, 2019, letter provided the hearing would be on February 5, 2019, however

the February 21, 2019 , Lakev iew letter to the Dandreas provided the hearing took place on

February 6, 2019.

Rules, up to a maximum of $1 , 000 fine, consiste nt with chapter 718, Florida

Statutes.

17. The fine was placed on Petitioner's account in an amount of $ 1 , 000 on

March 22, 2019 . (*)

18. Petitioner , via lett er to the Board dated April 19, 2019, 6 requested a

reasonable accommodation from the Rules pursuant to the Act. (*) The letter

provides 7 :

Dear Sirs,

I respectfully request a conversation with you asap

[sic] about reasonable accom modations at our condo

com plexÈ[sic] I am enclosing letters from our

doctors stat ing that we should not get rid [of] our

washer/dryer due to our medical complications and

conditions.

Respectfully,

Francis D andrea

19. Along with the April 19, 2019 , reasonable accommodation request ,

Petitioner submitted supporting documentation from medical professionals

setting forth the medical conditions of both Petitioner and Mrs. Dandrea as

the basis for the reasonable accommodation request . (*)

20. The parties stipulated that the medical docum entation below was

provided in PetitionerÔs request for a reasonable accommodation. That

documentation provided:

11/06/2018

To whom it may concern,

Francis Dandrea suffers from generalized arthritis

in addition to medical diagnoses of emphysema and

int e rmittent atrial fibrillation. His wife is limited

functionally by polymyalgia rheumatic. Removing

the washer/dryer from their condo would creat [sic]

a physical hardship and is not recommended.

6 The certified letter was Ñsigned forÒ by Mr. Fundora on April 22, 2019.

7 This letter was written in all capital letters. The text is provided in sentence format.

Please share this communication with the patient.

Signed by: / es/ JOHN H HULL, MD

GERIATRICS & EXTENDED CARE

11/07/2018 05:41

Analog Pager: [Omitted]

Digital Pager: [Omitted]

And:

12/12/2018

To Whom It May Concern:

Mrs. Dolores DÔAndrea is und er my medical care for

5 years. She asked m e to write this letter. She ha s

multiple medical conditions. It came to my

attention that recently washer and dryer was [sic]

require d to be removed from her unit. Pat ient has

urinary incontinence. It is absolutely important for

her to have washer and drye r nearby, so she can

wash her clothes because of frequent accidents.

Also she has polymyalgia rheumatica, and it is very

difficult for her to walk down the hall to a washer

and dryer units that located do wn the hall in

apartment area. [sic] It would be me dically

necessary for her to have washer and dryer in her

apartment.

If any questions, please feel free to call my office

727 - 584 - 7706.

Sincerely,

Helen Brvenik, M.D.

21. Petitioner testified to his multiple infirmities: osteoarthritis; atrial

fibrillation ; and a bu l ging disc. Petitioner also provided that he had had

surgery on both knees ( Ñ not replacements Ò ), and he had to give up golf three

years ago. Petitioner also testified that his wife has neurological problems,

including double vision for which she had surgery, and anxiety issues.

22. On April 24, 2019, two days after receipt of PetitionerÔs request for a

reasonable accommodation, Mr. Fundora, on behalf of the Lakeview Board,

informed the Dandreas that Lakeview had denied the requested

accommodation. Further, the Board voted to give the Dandreas until May 8,

2019 , to comply with the Rules by r emoving the washer/dryer unit. If the

Dandreas refused to do so, their right to use the common recreational

facilities would be suspended. (*)

23. Petitioner did not remove the washer/dryer unit, and on

May 8, 2019, Lakeview suspended Petitioner's rights to the common

recreational facilitie s. (*)

24. Petitioner filed the C omplaint against Lakeview with the PCOHR on

May 13, 2019 . (*)

25. On September 8, 2019, the PCOHR issued a Determination of

Reasonable Cause and Charge of Discrimination . (*)

26. Those individuals who testified at the hearing either are friends of

Petitioner, serve (or have served) on LakeviewÔs Board , or are employed by

Lakeview. However, none of them are health care professionals, and their

observations are just that, observations without any medical training or

knowledge of PetitionerÔs health issues .

27. Mr. Fundora testified that Lakeview did not have a process in place

for the type of reaso nable accommodation requested by Petitioner. However,

Lakeview had, in the past, received reasonable accommodation requests for

emotional support animals, la rge vehicles, and motorcycles. Those requests

have been handled on a case - by - case bas is . 8 A request for additional medical

information to support or discredit the requested accommodation for

Petitioner (or Mrs. Dandrea) was never sought.

28. There is no dispute that Lakeview objected to the Dandreas retaining

the washer/dryer unit. LakeviewÔs denial of the request for a reasonable

accommodation within two days of the request appears to be solely based on

observations made by non - medically trained residents or Board members who

8 At least one request for an emotional support animal was approved, while another was

denied when the supporting documentation was found to be fabricated.

had seen Petitioner ( and Mrs. Dandrea ) walking around the Lakeview

complex at some time. These witnesses attempted to give opin i ons from their

observations , yet they were not qualified to do so as t hey did not know if the

requested accommodation was medically necessary. L akeview has not

articulated a legitimate, non - discriminatory r eason for withholding the

reasonable accommodation request .

29. The preponderance of the evidence demonstrates that having the

washer/dryer unit within PetitionerÔs condominium is a reasonable

accommodation; and necessary to afford Petitioner (and Mrs. Dan drea) the

opportunity to the use and enjoy their home.

C ONCLUSIONS O F L AW

30 . DOAH has jurisdiction over this matter pursuant to section 120.65 ( 6) ,

Florida Statutes , and the contract between DOAH and Pinellas County,

Florida.

31. Division 3, chapter 70, P inellas County Code of Ordinances , governs

housing and public accommodation complaints. S ection 70 - 147(b) provides

that Ñ the Florida Administrative Procedures [sic] Act (F.S. ch. 120) governs

hearings under this section. Ò Subsection (f) further provides th at the

Ñadministrative law judge shall issue a final order within 30 days of the

hearing [ 9 ] conducted under this section. The final order issued by the

administrative law judge shall be the final agency action under this section .Ò

The Pine llas C ou nty Code of Ord inances provides that if the administrative

law judge determines that the respondent has engaged in a discriminatory

housing practice, he/she may order a wide ran ge of relief to the complainant,

including actual damages, reasonable attorneyÔs fees, c osts, and any other

injunctive or equitable relief. See § 70 - 148, Pin . Cnty Code of Ord .

32. Section 70 - 176(b) , Pin. Cnty . Code of Ord. makes it an unlawful

9 The parties effectively waived this requirement by jointly requesting additional time in

which to file the p ost - hearing submittals.

housing discrimination practice for any person Ñin terms, conditions, or

privileges . . . or in p roviding services or facilities in connection with such

sale or rental because of . . . handicap."

33 . Section 70 - 180 (c) , Pin. Cnty . Code of Ord. provides in pertinent part:

For purposes of this section only, discrimination

includes:

* * *

(2) A refusal to make reasonable accommodations

in rules, policies, practices, or services when such

accommodations may be necessary to afford the

person equal opportunity to use and enjoy a

dwelling :

34 . Section 120.57(1)(j ) , Florida Statutes , provides:

Findin gs of fact shall be based upon a

preponderance of the evidence, except in penal or

licensure disciplinary proceedings or except as

otherwise provided by statute, and shall be based

exclusively on the evidence of record and on

matters officially recognized.

Thus, Petitioner has the burden of proving by a preponderance of the

evidence that Respondent committed an unlawful housing discrimination

practice. See § 120.57(1)(j), Fla. Stat. See also U.S. Dep Ô t of Hous. & Urban

Dev. v. Blackwell , 908 F.2d 864, 870 (11th Cir. 1990) (Petitioner has the

burden of establishing facts to prove a prima facie case of housing

discrimination).

35. The Fair Housing Amendments Act of 1988 (FHA), as codified at

42 U.S.C. § 3604, protects individuals with disabilities from dis c riminatory

housing practices. In the Complaint, Petitioner alleges that Lakeview failed

to make a reasonable accommodation based on his disability. The FHA,

42 U.S.C . § 3604(f)(2), makes it illegal to Ñdiscriminate against any person in

the terms, conditio ns, or privileges of sale or rental of a dwelling, or in the

provision of services or facilities in connection with such dwellingÒ due to a

personÔs handicap. 10 The FHA defines discrimination based on handicap to

include Ña refusal to make reasonable accomm odations in rules, policies,

practices, or services, when such accommodations may be necessary to afford

such person equal opportunity to use and enjoy a dwelling.Ò § 3604(f)(3)(B).

Accordingly, under the FHA, a person or entity may be liable if there is a

refusal to make a reasonable accommodation in the rules, policies, practices,

or services and such accommodation may be necessary to afford a

handicapped person equal opportunity to use and enjoy a dwelling or

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

(11th Cir. 2008). The essence of PetitionerÔs claim is that Lakeview failed to

accommodate his request to retain the washer/dryer unit.

36. Sections 760.20 through 760.37, Florida Statutes, make it unlawful to

discriminate ag ainst persons in matters incidental to a dwelling on the basis

of a personÔs handicap. In that regard, section 760.23 provides in pertinent

part:

(2 ) It is unlawful to discriminate against any

person in the terms, conditions, or privileges of sale

or renta l 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.

* * *

(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:

* * *

10 In the Joint Pre - hearing Stipulation, Agreed Principles of Law, the parties agreed to this

language, and provided that Ñ [S] ub - paragraph (b) of Pinellas County Code S ec . 70 - 176(b)

closely mirrors the language set forth under 42 U.S .C. £ 3604 (f).Ò

(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.

37. The Florida Fair Housing Act is patterned after Title VIII of the Civil

Rights Act of 1968, as amended by the Fair Housing Act of 1988, and

discrimination c overed under the Florida Fair Housing Act is the same

discrimination prohibited under the Federal Fair Housing Act. Savannah

Club Worship Serv. v. Savannah Club HomeownersÔ AssÔn , 456 F. Supp. 2d

1223, 1224 (S.D. Fla. 2005); see also Loren v. Sasser , 309 F .3d 1296, 1299

(11th Cir. 2002). When Ña Florida Statute is modeled after a federal law on

the same subject, the Florida statute will take on the same constructions as

placed on its federal prototype.Ò Brand v. Fla. Power Corp. , 633 So. 2d 504,

509 (Fla. 1 st DCA 1994); see also Dornbach v. Holley , 854 So. 2d 211, 213

(Fla. 2d DCA 2002); Fla. DepÔt of Cmty. Aff. v. Bryant , 586 So. 2d 1205, 1209

(Fla. 1st DCA 1991).

38. As provided above, Petitioner has the burden of establishing by a

preponderance of the evi dence that Lakeview violated the Florida Fair

Housing Act. § 760.34(5), Fla. Stat.; Fla. DepÔt of Transp. v. J.W.C. Co. , 396

So. 2d 778 (Fla. 1st DCA 1981). Mr. Dandrea bears the burden of establishing

the following:

( 1) [Mr. Dandrea] is a person with a di sability

within the meaning of the FHA or a person

associated with that individual;

(2) [Mr. Dandrea] requested a reasonable

accommodation for the disability;

(3) the requested accommodation was necessary to

afford [Mr. Dandrea] an opportunity to use a nd

enjoy the dwelling; and

(4) [Lakeview] 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. AssÔn , 765 F.3d 1277, 1285 (11th Cir.

2014)); See also Bone v. Vi ll. Club, Inc. , 223 F. Supp. 3d 1203, 1210 - 11 (M.D.

Fla. 2016) .

39. Mr. Dandrea credibly established that he has physical disabilities

within the meaning of the FHA.

40. Mr. Dandrea requested a reasonable accommodation for his disability.

Mr. Dandrea prov ided a medical doctorÔs note that he has physical

disabilities (Ñgeneralized arthritis, emphysema and intermittent atrial

fibrillationÒ) and re moving the washer/dryer unit from his residence Ñwould

creat [sic] a physical hardship and is not recommended.Ò F urther, the

Dandreas provided a medical doctorÔs note that Mrs. D andrea also has

medical issues that require the reasonable accommodation. The Board (or

Compliance Committee) did not r equest additional documentation supporting

Petitioner or Mrs. DandreaÔs medical condition(s).

41. Lakeview refused to make the accommodation.

42 . Once Mr. Dandrea establishes a prima facie case of discrimination, the

burden shifted to Lakeview to articulate a legitimate, non - discriminatory,

n o n - retaliatory reason for the cha llenged action. McDonnell Douglas Corp. v.

Green , 411 U.S. 792, 802 (1973). Lakeview failed to articulate a legitimate,

non - discriminatory reason for denying the requested accommodation.

D ISPOSITION

Based on the foregoing Findings of Fact and Conclusions of Law, it is

ORDERED that :

A. Respondent violated section 7 0 - 180, Pinellas County Code of

Ordinances , and 42 U.S.C. § 3604; and

B. Respondent shall provide the requested reasonable accommodation by

allowing Petitioner to retain the washer/dryer unit with in his c ondominium

unit ; and

C. Respondent shall remove the $ 1 , 000 fine from PetitionerÔs account; and

restore PetitionerÔs right to use all the facilities at Lakeview; and

D. Respondent shall pay Mr. Dandrea reasonable attorney Ô s fees and costs

in prosec uting this action. Jurisdiction is retained to determine the amount of

reasonable attorney Ô s fees and costs. The parties are hereby directed to confer

within 20 days of the date of this Final Order concerning the amount of

attorney's fees and costs. Within five days after the parties confer, the parties

shall file a written joint status report that informs the undersigned as to

whether or not they are able to stipulate to an amount of attorney Ô s fees and

costs. If the parties are able to stipulate an amount of the attorneys Ô fees and

costs, then the stipulation shall be sent to the undersigned for review and

approval. If the parties are unable to reach a stipulation as to attorney Ô s fees

and costs, then a hearing shall be set to determine the reasonable amou nt of

attorney Ô s fees and costs.

D ONE A ND O RDERED this 30th day of March , 2020 , in Tallahassee, Leon

County, Florida.

S

L YNNE A. Q UIMBY - P ENNOCK

Administrative Law Judge

Division of Administrative Hearings

The DeSoto Bui lding

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 3th day of March , 2020 .

C OPIES F URNISHED :

Scott H. Jackman, Esquire

Cole, Scott and Kissane, P.A.

Suite 400

4301 West Boy Scout Boulevard

Tampa, Florida 33607

(eServed)

Sarah C. Nelson, Esquire

Gulf Coast Legal Services, Inc.

Suite 420

501 1st Avenue North

St. Peter sburg, Florida 33701

(eServed)

Lisa Postell

Pinellas County Office of Human Rights

#500

400 South Fort Harrison Avenue

Clearwater, Florida 33756

(eServed)

Paul Valenti, Human Rights/EEO Officer

Pinellas County Office of Human Rights

400 South Fort Harr ison Avenue

Fifth Floor

Clearwater, Florida 33756

(eServed)

Peter J. Genova, Jr.

Sr. Equal Opportunity Coordiantor

Pinellas County Office of Human Rights

400 South Fort Harrison Avenue

Fifth Floor

Clearwater, Florida 33756

(eServed)

N OTICE O F R IGHT T O J UDICIAL R EVIEW

Any party who is adversely affected by this Final Order is entitled to seek

judicial review by filing a petition for writ of certiorari in the circuit court of

the Sixth Judicial Circuit in and for Pinellas County, Florida, within

30 ca lendar days o f the date of this Final Order. § 70 - 147(g), Pinellas County

Code of Ordinances .