20-000788 Miriam And Lennox Hoyte vs. Stonelake Ranch Homeowners Assoc., Inc. Status: Closed Settled and/or Dismissed prior to entry of RO/FO on Monday, December 6, 2021.

Summary: Homeowners proved disparate treatment in enforcement of HOA covenants based on race; they did not prove disability discrimination or retaliation claims.

S TATE OF F LORIDA

D IVISION OF A DMINISTRATIVE H EARINGS

M IRIAM A ND L ENNOX H OYTE ,

Petitioners ,

vs. Case No. 20 - 0788

S TONELAKE R ANCH H OMEOWNERS A SSOC .,

I NC . ,

Respondent .

/

R ECOMMENDED O RDER

On March 9, 2021 , Admin istrative Law Judge Hetal Desai of the Florida

Division of Administrative Hearings (DOAH) conducted the final hearing via

Zoom web conferencing.

A PPEARANCES

For Petitioner s : JoAnn Nesta Burnett, Esquire

Bec ker & Poliakoff , P . A .

1 East Broward Boulevard, Suite 1800

Fort Lauderdale, Florida 33012

For Respondent: Scott H. Jackman, Esquire

Cole, Scott and Kissane, P.A.

4301 West Boy Scout Boulevard, Suite 400

Tampa, Florida 33607

S TATEMENT OF T HE I SSUE S

W hether Stonelake Ranch Homeo wners Association, Inc. (HOA) subjected

Miriam and Lennox Hoyte to discriminatory housing practices based on their

race (African American) and disability , failed to make reasonable

accommodations for t heir son's disability, and retaliated against them in

violation of the Florida Fair Housing Act, chapter 760, part II, Florida

Statutes (2020) (FFHA). 1

P RELIMINARY S TATEMENT

On, June 4, 2018, Petitioners filed a Housing Discrimination Complaint

with the F lorida Commission on Human Relations (FCHR), alleging

Respondent discriminated against them based upon their race (African -

American) and disability (related to their son), in violation of the F F HA. 2 The

Housing Complaint alleged Petitioners resided in a ho me located in and

subject to the rules and regulations of the HOA. Specifically, Petitioners

alleged:

On November 17, 2017, Complainants allegedly

submitted a written request for accommodation on

behalf of Aggrieved Party Noah Hoyte. The purpose

of this re quest was to demonstrate Aggrieved

Party ' s need for emotional support animal, Oberon.

Complainants attached a copy of the Aggrieved

Party ' s physician justifying benefits of having an

emotional support animal. Complainants alleged

that on December 3, 2017, Respondent failed to

respond to Complainants request for

accommodation. Complainants alleged Respondent

is pursuing civil litigation against them because

Oberon was in the property without a leash.

Complainants alleged other individuals who are

Caucasian a nd own dogs which are regularly

unleashed on the property have not been denied an

accommodation and have not been sued by

Respondent. On May 1, 2017, Respondents sent

Complainants a legal notice to inform them they

are to be present in Court on October 23, 2018. As

1 All statutory references are to the 20 20 version of the Florida Statutes, unless otherwise

indicated.

2 In their Proposed Recommended Order (PRO) , Petitioners refer to an Amended Housing

Complaint filed August 20, 2019 . Id. at p.4. Although a copy was offered into evidence

(Exhibit P11), it is not date stamped as received by FCHR, no such document was

transferred to DOAH by FCHR, and it is not referenced in the "Determination (No Cause) , "

issued by FCHR on January 4, 2020.

such, Complainants believe that Respondent failed

to grant their reasonable accommodation request

and subjected them to discriminatory terms and

conditions based on disability.

On January 14, 2020, FCHR issued a "Notice of Determination of No

Ca use," and "Determination (No Cause) , " finding that reasonable cause "does

not exist to believe that a discriminatory housing practice has occurred."

On February 13, 2020, Petitioners filed a Petition for Relief with FCHR,

again alleging Respondent had co mmitted a discriminatory housing practice

against them based on their race and their son's disability, and that

Respondent had retaliated against Petitioners. FCHR transmitted the

Petition for Relief to DOAH . DOAH assigned the undersigned to conduct an

evi dentiary hearing.

Due to the COVID - 19 pandemic, the final hearing was set and continued

numerous times. On March 5, 2021, the undersigned conducted a pre - hearing

conference with all of the parties. Thereafter, the parties submitted an

Amended Joint Pre - he aring Stipulation with eight stipulated facts, which

have been incorporated into this Recommended Order where appropriate.

The undersigned conducted the final hearing on March 9, 2021.

Petitioners presented the testimony of Miriam Hoyte and Dr. Lennox Ho yte,

and Petitioners' Exhibits P2 , P3, P5 through P7, P9 through P19, P21

through P24, and P26 through P31 were admitted into evidence. Respondent

presented the testimony of Mark Chapman (the HOA Manager) and

Brian Funk (the HOA's corporate representative) . Respondent's Exhibits R1

through R7, R9, R10, R12, and R14 through R16 were admitted into evidence.

Additionally, pursuant to Florida Administrative Code R ule 28 - 106.213(6),

the undersigned took official recognition of the docket, complaint, transcript ,

and final judgment in the case of Stonelake Ranch Homeowners Association,

Inc. v. Lennox and Miriam Hoyte , Case No. 16 - CC - 041454, 13th Judicial

Circuit in and for Hillsborough County, Florida (Enforcement Action). 3

The transcript of the final hearing w as filed with DOAH on April 14, 2021.

After receiving an extension, both parties timely filed their proposed

recommended order s, which have been duly considered. 4

F INDINGS OF F ACT

Parties and Property

1. Petitioners are African American s who are married a nd live with their

family at 12321 Stonelake Ranch Boulevard, Tho n otosassa, Florida (Home) .

The Home is located in Stonelake Ranch, a community of 142 homes and/ or

lots in Hillsborough County, Florida. The Hoytes are one of two or three

families who are Af rican American in Stonelake Ranch.

2. The HOA is a mandatory homeowners ' association pursuant to

chapter 720.

3 . Petitioners also have numerous pets including two dogs; one is a gray

Weimaraner named "Oberon." Petitioners' youngest son suffer s from a

ment al or emotional disability. Oberon serves as an emotional support

animal for Petitioners' youngest son.

3 The transcript (P16), complaint (part of R17), and the fi nal judgment (R15) in the

Enforcement Action were admitted into evidence at the final hearing. The docket of the

Enforcement Proceeding was obtained through the Hillsborough Clerk of Courts website at

CreateReport , hillsclerk.com . ( last visited on April 20 , 2021 ) .

4 By requesting and agreeing to the extension of time, the parties waive d the requirements in

section 120.57(3)(e), Florida Statutes , for the rendering of a recommended order within 30

days of the filing of the transcript. Fla. Admin. Code R. 28 - 106.216(2).

4 . P roperty owners of Stonelake Ranch a re subject to the HOA's

Declaration of C ovenants and R estrictions (Declaration) , as are all residents,

members , tenants, and guests. Petitioners are subject to the Declaration's

rules and regulations. Respondent is charged with enforcing the terms of the

Declaration.

5 . At all times relevant to these proceedings, Mark Chapman served as

the HOA's Property Manager, and was authorized to act on behalf of the

HOA.

6 . Brian Funk was on the HOA 's Board of Directors from the HOA's

inception in 2007 to November 2020. At all times relevant to these

proceedings, Mr. Funk was acting on behalf of the HOA and its Board of

Dire ctors.

7 . There is a guard station at Stonelake Ranch's entrance that is

constantly manned and a patrol guard who drives around the community.

Although these guards were employed by various security companies over the

years, the undersigned finds that the guards worked under the authority of

the HOA, and were agents of the HOA.

8 . The HOA also contracted with a management company, Condominium

Associates, who issued non - compliance citations to HOA members, managed

the Board minutes, and served other functio ns on behalf of the HOA and the

HOA's Board of Directors. The undersigned finds Greg Koury, the HOA's

Manager and an employee of Condominium Associates, had authority to act

on behalf of the HOA.

9 . Petitioners are within a protected class under the FFHA and the federal

Fair Housing Act (FHA) because of their race and because their mi nor son

suffers from a handicap or disabilit y.

HOA Declaration

10 . Article VIII 1(I) , s ections 1, 3 , and 8, of the Declaration address the

keeping of animals within the HOA p roperty :

I. Animals . Except as to horses, as provided below,

an Owner may only keep a reasonable number of

domestic animals, including livestock and poultry,

in or on any [of] the Property, subject to the

provisions herein, and subject to rules and

regula tions adopted by the Association from time to

time. The following shall apply with regard to any

animal which is allowed to be kept in or on the

Property:

1 . Ow ne rs o f a n i ma ls which a re n o t s e c u rely

f en c e d in a n e n clos e d a rea s h a ll k e e p t h e m o n a

l e a sh a t a ll t i me s .

* * *

3 . N o an i m a l w i ll b e p e r m itt e d whi ch creates

excessive noise, emits obnoxious odors, creates

unsafe or unhealthy living conditions , o r c r ea t e s

o t he r d is t u rb a n c e s o f an y kin d , wh e t h e r o n a

c on ti n uou s o r in te r m i tt en t b a sis, a n d r e g a rdl e ss o f

t h e ti m e o f d a y o r n ig h t. A n y Ow n e r o f a n a n i ma l

a l l o w e d h e re u nd e r w ho is t h e s ub j e ct o f t h ree

jus t ifia b le c o mp lai n ts o f viol a ti o n s shall be subject

to the enforcement actions set forth in Article XI

hereof È including a hearing before the Cov enants

Committee. The sanctions may include a

requirement that the Owner permanently remove

the animal from the Owner's property. S u ch Ow ne r

s h a ll no t b e a l l o w e d to ha v e a n y a n i m a ls w i t h i n t h e

Pr o pe rty a t an y t i m e t he r e a f t e r, e xc e p t u p o n t h e

e x p r e ss w r itt e n c on s e n t o f t h e B oa rd o f D i rect o rs of

t h e A s s o cia t io n .

* * *

8. The Association may impose more strict

prohibitions as to the keeping of animals within the

Property. None of the foregoing shall supersede or

abridge any governmental regulations r egulating

the keeping of animals.

11 . Article XI of the Declaration addresses enforcement of the covenants,

rules, and regulations contained therein. Specifically, this Article requires

the HOA to provide a 14 - day notice of hearing, a hearing held before a

"Covenants Committee," and a written decision by the Covenants Committee

imposing a fine or penalty. An affected homeowner then has the right to

appeal the Covenants Committee's decision to an "appeals committee."

12 . In summary, relevant to these proce edings, the above provisions of the

Declaration provide:

• HOA members may keep animals, including livestock and

poultry, on their property subject to the rules in the Declaration.

• Animals not contained in a securely fenced area must be on a

leash.

• Animals that create excessive noise, unsafe or unhealthy living

conditions, or other disturbances are not permitted.

• Three complaints of violations of the a nimal provisions of the

Declarations can result in sanctions, including permanent

removal of the offendin g animal.

• Such sanctions can only be imposed after proper notice and a

hearing before the HOA ' s Covenants Committee.

13 . There is no dispute the HOA received three or more complaints from

Petitioners' neighbors regarding Oberon.

14 . There is no dispute that the HOA failed to comply with the procedures

set forth in Article XI of the Declaration before taking any actions against the

Hoytes.

The Hoytes' History in Stonelake Ranch

15 . The Hoytes moved to Stonelake Ranch in August 2009. Initially, they

rente d a home in the community located at 10604 Broadland Pass (Rental).

Eventually, they purchased a vacant lot in Stonelake Ranch from Mr. Funk

but remained in the Rental while the Home was being built on their lot.

16 . While they were living in the Rental, P etitioners owned a dog named

Sugar Ray. 5 On December 13, 2012, and January 10, 2013, the HOA issued

citations to the owner of the Rental because their tenants (the Hoytes) were

"allowing their dog to run loose on the property, unleashed and unattended."

No thing in the citation indicated Sugar Ray had been aggressive.

17 . There is no evidence that any action was taken against the Hoytes

while at the Rental, but the citations indicated: "Non - compliance may result

in further action including fines and removal of the pet" and "the Board will

be assessing a $25.00 fine per occurrence, if this continues."

18 . I n 2014, after Sugar Ray's passing, Petitioners obtained Oberon as an

emotional support animal for their son . Oberon was a puppy at the time he

came to live with Petitioners.

19 . Petitioners moved into the Home in 2015.

20 . On December 29, 2015, the HOA issued a citation to Petitioners

indicating that they were "allowing their dog to run loose on the property,

unleashed and unattended." There is no indicatio n Oberon was aggressive,

nor was there any indication that sanctions were imposed against the Hoytes

at that time. The citation indicated, "This is a recurring issue Ï any future

violations will be turned over to the attorney for further action."

21 . The H OA offered evidence that it received numerous complaints from

neighbors regarding Oberon. No one who had witnessed Oberon or had an

encounter with Oberon testified at the hearing. The written and text

complaints offered into the record contain uncorroborat ed hearsay. There was

no non - hearsay evidence during the hearing establishing the nature of those

complaints.

22 . The undersigned finds that numerous complaints were made to the

HOA about Oberon, but makes no findings regarding the nature of those

complai nts or whether those complaints were substantiated.

5 Sugar Ray is not the subject of these proceedings and therefore, evidence of how Petitioners

treated Sugar Ray and how Sugar Ray died is not relevant to these proceedings .

23 . In January 2016, Petitioners started the process of fencing in the area

immediately outside the Home. The Hoytes installed an access gate in the

driveway that opened when a light beam was tripped. The fence, made out of

metal rods, had "puppy spacing" which is more narrow than standard spacing

to prevent Oberon from escaping.

24 . It is apparent that the Hoytes did not get along with some of their

neighbors, nor did they get along with Mr. Funk. On mor e than one occasion

either Mrs. Hoyte or a neighbor contacted Hillsborough County Sheriff's

Office and/or Animal Control to complain about the other. The Hoytes have

accused their neighbors of making false statements about them and Oberon.

Mr. Funk snidel y referred to Dr. Hoyte as "the world - famous doctor" in an

email.

Pre - Suit Letter and Enforcement Action

25. On March 10, 2016, the HOA's attorney sent the Hoytes a letter

demanding the removal of Oberon (Pre - Suit Letter). The Pre - Suit Letter

outlined thre e previous co mplaint s regarding the Hoytes' dogs (at least two of

which involved the now - deceased Sugar Ray), and a fourth complaint made to

the HOA on March 5, 2016, alleging one of the Hoytes' dogs chased a child

and made the child scream.

26 . The Pre - S uit Letter concluded:

Therefore, within fourteen days of the date of this

letter, you must PERMANENTLY REMOVE your

dog from Stonelake Ranch. If you fail to do so, the

Association will pursue all legal and equitable

remedies against you that the law allows, including

filing a lawsuit against you for the removal of the

dog. If such action must be taken, the Association

will be entitled to an award of attorney's fees and

costs against you.

27 . The issuance of the Pre - Suit Letter action was not consistent with

Article XI of the Declaration. The Hoytes were never provided with a notice of

hearing, or a hearing in front of the HOA's Covenant Committee.

28 . The Pre - Suit Letter also was not authorized by the HOA Board of

Directors. Although Mr. Funk claims he dis cussed the Hoytes' animal

violations with other board members, these conversations are not reflected in

the Board m inutes . Nor did the Board make any motions or take any votes

regarding the Hoytes or the removal of their dogs . Rather, Mr. Funk

admitted tha t he "was the bad guy" and made the decision to initiate a

lawsuit against the Hoytes .

29 . The undersigned finds that Mr. Funk did not follow the process set

forth in the Declaration and failed to get Board approval when he decided to

have the HOA's attor ney issue the Pre - Suit Letter demand ing removal of

Oberon and to pursue a civil action if necessary .

30 . On March 22, 2016, i n response to the Pre - Suit Letter, Dr. Hoyte sent

a letter back to the HOA's attorney disputing that Oberon had been

aggressive . Dr . Hoyte noted in his response that Petitioners had installed a

pet containment fence around the play area and garage of the Home. This

fence cost approximately $74,485.

31. After receiving the Pre - Suit Letter, in an effort to appease the HOA,

the Hoytes h ad a wooden exterior fence built on the outer edge of their

property. The cost of the exterior fence was approximately $31,094.

32 . In September 2016, Mrs. Hoyte attended obedience training with

Oberon and received a certificate indicating Oberon had succ essfully

completed the class.

33 . In October 2016, as described below, Oberon was involved in a biting

incident with a lawncare employee.

34 . On December 19, 2016, the HOA followed through with the threat

made in the Pre - Suit Letter and filed a civil comp laint triggering the

Enforcement Action. Petitioners were served with the civil complaint on

December 28, 2016.

35 . In its Enforcement Action complaint, the HOA sought the following

relief: (1) removal of Oberon and another dog owned by the Hoytes; (2)

p rohibiting Oberon and the other dog to return to the Home or Stonelake

Ranch; (3) prohibiting the Hoytes from bringing any other animals in the

Home without HOA approval; and (4) attorney's fees and costs.

36 . According to the Final Judgment in the Enforc ement Action, the

Hoytes raised a number of Affirmative Defenses in the litigation. First, it

argued the HOA failed to comply with conditions precedent before filing the

Enforcement Action. Second, it argued the HOA was selectively enforcing the

Declaratio n provisions regarding animals. Third, it argued that the

Declaration and the FFHA prohibited the HOA from removing Oberon as an

emotional support animal. This last A ffirmative D efense was struck by the

trial court judge on March 28, 2018.

37 . The trial c ourt judge held a bench trial in the Enforcement Action on

December 11, 2019. At that trial, two of the Hoytes' neighbors testified about

incidents involving Oberon. Although the transcript was admitted into

evidence, the testimony from these neighbors is hearsay evidence that cannot

be used to support a finding of fact.

38 . On December 11, 2019, the trial court judge entered a Final Judgment

dismissing the Enforcement Action in favor of the Hoytes. Although she

found that the HOA had three or more viable c omplaints related to Oberon

and that Oberon had bit a lawncare employee, she ultimately found the HOA

had not followed its own procedures as set forth in the Declaration before

bringing the Enforcement Action. The trial court judge did not rule on

Petition ers' defenses related to the FFHA violations of disability

discrimination or racially motivated selective enforcement.

Disability Accommodation

39 . There is no dispute t he Hoytes' youngest son is disabled as defined by

the FFHA. Nor has the HOA contested t he fact that Oberon is the son's

emotional support animal.

40 . During the Enforcement Action, the Hoytes raised the defense that

Oberon should not be removed because he served as an emotional support

animal for their son. In furtherance of this defense, o n March 9, 2017, the

Hoytes provided the HOA with medical documentation from Dr. Michael

Murphy (Note). The Note indicated that the Hoyte's child "suffers from an

anxiety disorder and that his condition is partly alleviated by the presence of

his therapeut ic dog, Oberon. ... It is my opinion that if Noah were deprived of

this therapeutic dog, his condition would deteriorate."

41 . At the hearing, Mr. Funk admitted that after receiving the Note, the

HOA did not respond to the Hoytes because, he believed, th e Note was

provided as part of the Enforcement Action litigation. To his knowledge , the

HOA had never responded to the medical documentation related to Oberon

outside of these proceedings.

42 . When Mrs. Hoyte was asked when she had requested a specific

ac commodation for her son from the HOA and what that accommodation was ,

she could not provide a credible answer. She did not know whether the

accommodation was to be exempt from the Declaration. Now that the

Enforcement Action is closed and Oberon is current ly with the Hoytes, it is

unclear, what accommodation if any, the Hoytes were or are seeking in this

proceeding.

43 . Although the relief sought by the HOA in the Enforcement Action

would have removed Oberon from the Home and prevented the Hoytes from

havin g any other dog without HOA permission, that did not happen because

the HOA lost. 6 There was no evidence that after the Enforcement Action, the

HOA has taken any steps to remove Oberon from the Home, or prevented

Oberon from acting as an emotional support animal for the Hoytes' child.

6 As noted above, the trial court judge specifically declined to rule on whether the HOA had

violated the FFHA based on the Hoytes' defense that Oberon was an emotional support

animal because the FFHA defense had been previously struck, and such a ruling was

unnecessary because the Hoytes had successfully established the HO A had failed to comply

with the requirements of the Declaration prior to the institution of the Enforcement Action.

Dog Bite Incident

44 . After the Pre - Suit Letter, but before the initiation of the Enforcement

Action, o n October 28, 2016, there was an incident involving Oberon and an

employee of a la wncare company doing work on the commo n area outside of

the Home and fenced - in area . No one present at the incident testified at the

hearing. Mrs. Hoyte and Mr. Chapman came onto the scene after the

incident. By all accounts, everyone was upset; there were children and

lawncare employees screa ming. Mrs. Hoyte claimed a lawncare employee

assaulted her daughter.

45 . When Mr. Chapman arrived at the scene, one of the lawncare

employees claimed Oberon had bit him on the leg. Mr. Chapman observed a

tear in the employee's pants, and a bite on the empl oyee 's leg. Mr. Chapman

took photos of the bite, which were admitted into evidence.

46 . Both the H ill sbo r ough C oun t y An im a l C on t r ol and the local Sheriff ' s

D epartment sent officers to the scene. Animal Control issued the Hoytes a

citation for an alleged bi te, but this citation was later withdrawn after a 14 -

day quarantine period. There is no evidence that Animal Control attempted

to take any further action or remove Oberon from the Hoytes a t this time.

47 . Mr. Chapman, a former firefighter, testified he be lieved the mark on

the employee ' s leg was a bite mark. Dr. Hoyte testified that, in his medical

opinion, the photograph of the bite mark looked like it was an old wound and

not consistent with a fresh dog bite.

48. T he undersigned finds Oberon escaped the Hoyte's property and bit

the lawncare employee's leg. The undersigned makes no finding as to

whether Oberon was provoked or the severity of the bite.

49 . Regardless of whether Oberon actually bit the employee, it was

reasonable for Mr. Chapman to believe that Oberon had escaped from the

Hoytes' property, was acting aggressively, and bit the landscaping employee.

Similarly Situated Comparators

50 . The Hoytes claim the HOA selectively enforced the Declaration

provisions related to animals against them whe n it issued the citations,

threatened them with the Pre - Suit Letter, and brought the Enforcement

Action against them. The Hoytes believe the HOA took th ese action s because

they are African American and have a disabled son.

5 1 . As proof, the Hoytes assert they are one of two or three African -

American property owners or residents in Stonelake Ranch. No non - African

American residents were cited by the HOA for similar animal violations and

the HOA has not tried to remove any animals from non - African American

neighbors who also have had complaints lodged against the ir dogs .

5 2 . The evidence establishes that it was not unusual to see dogs off leash

in Stonelake Ranch. Petitioners' testimony is corroborated by photographic

and video evidence that show at least se ven different dogs in Stonelake

Ranch that are not leashed and either in the road or on an empty lot.

5 3 . Mrs. Hoyte was confident that the dogs in the photos and videos were

owned by non - African American neighbors. The HOA offered no credible

evidence to the contrary. There was no evidence that any of the owners of

these dogs received citations, were threatened with a lawsuit, or actually

sued for violati ng t he Declaration.

5 4 . There were also complaints by residents about dogs other than

Oberon. For examp le, on February 9, 2014, Mr. Chapman and Mr. Funk

received an email from James Sutton indicating he had issues with two dogs

in the neighborhood (neither were Oberon). One of the dogs was a golden lab,

owned by the Revoys. The Revoys are not African Americ an.

5 5 . The other dog, owned by the Kilpatricks, had jumped on Mr. Sutton's

wife and tried to bite her. There is insufficient credible evidence of the

Kilpatricks' race or ethnicity. Regardless of the ir actual race, the undersigned

finds that the HOA did not consider the Kilpatricks as being African -

American . 7

5 6 . Neither the Revoys nor Kilpatricks were issued citations similar to the

ones issued by the HOA to the Hoytes (or their landlord) on December 13,

2012, January 10, 2013, and December 29, 2015 . Nei ther the Revoys nor the

Kilpatricks were threatened with a lawsuit or actually sued for violation of

the Declaration.

5 7 . Mr. Chapman indicated that another dog had been reported as

"nipping" at a resident, but he did not consider that as aggressive behavi or .

The undersigned disagrees. Regardless, Mr. Chapman recall ed only one dog

that had actually bitten someone. That dog was owned by a visitor of a non -

African American resident. Therefore, he did not believe he needed to take

any action. Neither of the pr operty owners or dog owners involved in the

nipping or biting incidents were issued citations, nor was any action taken to

remove other dogs from the property owners , or prohibit those property

owners from keeping dogs , or having visitors with dogs .

5 8 . On another occasion, Mrs. Hoyte received a telephone call from

someone at the HOA that Oberon was off leash and off property. At the time

she received the call, Oberon was laying at her feet. Mrs. Hoyte explained

that there had been a case of mistaken identi ty. There is no evidence that a

citation was issued to any homeowner based on that incident.

5 9 . There were also numerous calls by Stonelake Ranch residents to the

HOA's security company regarding stray or wandering dogs. The incidents

involving dogs other than Oberon include the following:

7 Mr. Chapman testified he could not specify the Ki l patricks ' race . He admitted they were

dark - skinned , but noted they could be South Americ an, Central American, or Jamaican.

Mrs. Hoyte hesitatingly testified she thought the Ki l patricks were African American , but

was not confident . In contrast, the HOA stipulated that the Hoytes were African American.

Date of Incident Incident Reported Result

April 15, 201 5 Two dogs (a white Owner identified and

Malte se and a salt and c ontacted (the Bargers) ;

pepper Yorkie) reported no citation issued

off leash

May 12, 2015 A bro wn and white Owner identified and

boxer was off leash c ontacted (the

Kilpatricks) ; no citation

issued; guard reunited

dog with owner

May 21, 2015 A white dog was off Owner identified and

leash and harassing contacted (the Shakes ) ;

residents no citation is sued

May 21, 2015 Undescribed dog off Officer sent to help

leash secure dog ; no citation

issued

June 6, 2016 Tan and white Boxer Officer told neighbor

reported on someone's there were no patrol

property units on duty and that

the guard house could

not b e unmanned.

October 22, 2016 Stray dog reported by Officers unable to locate

multiple neighbors the dog

November 16, 2016 Undescribed dog off Owner identified and

leash contacted (the

Kilpatricks);

c itation issued on

November 17, 2016

60 . The HOA did not issue any citations to the Bargers or the Shakes

related to their dogs. The Bargers and Shakes are not African American. The

Kilpatricks were cited , but only for the incident that occurred after the Pre -

Suit Letter had been sent to the Hoytes.

6 1 . Othe r than the Hoytes and the Kilpatricks, the HOA presented

evidence of one other homeowner who has been cited for animal violations.

This citation was issued to the Dohertys on November 20, 2017, for their dog

being "off leash and alone." Again, this citatio n was issued after the Hoytes

were sent the Pre - Suit Letter and after they had accused the HOA of

selective enforcement.

6 2 . On December 19, 2017, the HOA issued a second citation to the

Dohertys along with an email from Mr. Koury stating the following:

H i Chris,

The Homeowner's Association has received another

complaint about your dogs wandering into the cul -

de - sac and frightening one of the residents who was

walking there recently. È Am wondering if your

invisible defense may be down and you don't know

it?

The person complaining is asking the Association

to take further action on this in addition to the

violation letter we sent you last month. In addition

to this email we will be sending you another

violation letter. In the mean time could you

commun icate with me and let me know if the fence

was out of order and if you can assure the Board

that this won't happen again? Due to similar issues

with other dogs in the Community there have been

lawyers involved and, in one case, the Association

is in the pr ocess of having one of the animals

removed. Please take whatever steps are necessary

so the Association doesn't have to take further

action up to and including legal activity to remedy

the situation.

6 3 . The email to the Dohertys, issued a year into the Enforcement Action

litigation, has an apologetic tone and states that the HOA does not want to

have to take further legal action. The inference is for the Dohertys to "please

take whatever steps are necessary" so the HOA does not have to treat the

Dohertys like it is treating the Hoytes.

6 4 . The citations to the Kilpatricks and Dohertys do not establish equal

enforcement of the Declaration. These citations were issued after the Hoytes

had been sent the Pre - Suit Letter and after the Hoytes had accused the HO A

of selective enforcement based on race.

6 5 . Importantly, there were numerous situations that were similar to the

Hoytes ' situation, where neighbors had called about other dogs harassing and

"nipping" them that should have warranted a citation from the H OA , but no

citation was issued. All of these instances involved dogs owned by non -

African Americans.

6 6 There is no evidence that any other non - African American owners were

required to install a fence or make any type of modifications to their property,

d espite their dogs being off property , without a leash , or being aggressive.

6 7 . There is no evidence that the HOA issued a Pre - Suit Letter or

initiated an action to remove dogs from any other homeowner's property

despite instances where dogs were "threate ning" or "nipping" other

neighbors. These other dogs were owned by non - African Americans.

C ONCLUSIONS OF L AW

6 8 . The undersigned and DOAH have jurisdiction over the subject matter

and the parties to this proceeding in accordance with sections 120.569,

120 .57(1), and 760.35(3)(b), Florida Statutes.

6 9 . The Hoytes allege discrimination in violation of the FFHA section

760.23(2), (8) - (9). 8 Section 760.23 states:

(2) It is unlawful to discriminate against any

person in the terms, conditions, or privileges of s ale

or rental of a dwelling, or in the provision of

services or facilities in connection therewith,

because of race, color, national origin, sex,

disability, familial status, or religion.

* * *

8 . Because the FFHA is patterned after the FHA, discriminatory acts prohibited under the

federal Act are also prohibited under the state FFHA, and federal case law interpreting the

FHA is applicable to proceedings brought under the FFHA. See Bhogaita v. Altamonte

Heights Condo. Ass ' n , 765 F.3d 127 7, 1285 (11th Cir. 2014) ( " The [Federal Fair Housing Act]

and the Florida Fair Housing Act are substantively identical, and therefore the same legal

analysis applies to each. " ). Also see generally, Glass v. Captain Katanna's, Inc. , 950 F. Supp.

2d 1235, 12 44 (M.D. Fla. 2013) ("a Florida law mirrored after a federal law generally will be

construed in conformity with the federal law.").

(8) It is unlawful to discriminate against any

perso n 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 disability of:

(a) That buyer or renter;

(b) A person residing in or intending to resi de 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 service s, when such

accommodations may be necessary to afford such

person equal opportunity to use and enjoy a

dwelling.

70 . The Hoytes also allege retaliation in violation of s ection 760.37 , which

makes it unlawful to:

coerce, intimidate, threaten, or interfere with any

person in the exercise of, or on account of her or his

having exercised, or on account of her or his having

aided or encouraged any other person in the

exercise of any right granted under ss. 760.20 -

760.3 7.

7 1 . In cases involving claims of housing discrimination, the complainant

has the burden to prove a prima facie case of discrimination by a

preponderance of the evidence. § 760.34(5), Fla. Stat.; Sec ' y, U.S. Dep ' t of

Hous. & Urban Dev. ex rel. Herron v. Blackwell , 908 F.2d 864, 870 (11th Cir.

1990) . A "preponderance of the evidence" means the "greater weight" of the

evidence, or evidence that "more likely than not" tends to prove the fact at

issue. Gross v. Lyons, 763 So. 2d 276, 289 n.1 (Fla. 2000).

7 2 . Discrimination may be proven through direct, statistical, or

c ircumstantial evidence. Valenzuela v. GlobeGround N. Am., LLC , 18 So. 3d

17, 22 (Fla. 3d DCA 2009). Direct evidence is evidence that, if believed, would

prove the existence of discriminatory in tent behind the decision without any

inference or presumption. Denney v. City of Albany , 247 F.3d 1172, 1182

(11th Cir. 2001); see also Holifield v. Reno , 115 F.3d 1555, 1561 (11th Cir.

1997).

7 3 . Petitioners argue that Mr. Funk's comments about Dr. Hoyte being a

"world class doctor" and comments about Mrs. Hoyte are direct evidence of

his racial animus. Courts , however, have held that "' only the most blatant

remarks, whose intent could be nothing other than to discriminate ... ' will

constitute direct evid ence of discrimination. " Damon v. Fleming

Supermarkets of Fla., Inc. , 196 F.3d 1354, 1358 - 59 (11th Cir. 1999). In

contrast, " [e]vidence that only suggests discrimination or that is subject to

more than one interpretation does not constitute direct evidence . " Saweress v.

Ivey , 354 F. Supp. 3d 1288, 1301 (M.D. Fla. 2019). Although the comments by

Mr. Funk are demeaning and may have been hurtful to Petitioners, they do

not rise to the level of direct evidence of race or disability discrimination.

7 4 . Where th ere is no direct evidence of discrimination, fair housing cases

are analyzed under the three - part, burden - shifting framework set forth in

McDonnell Douglas Corporation v. Green , 411 U.S. 792 (1973), and Texas

Department of Community Affairs v. Burdine , 450 U.S. 248 (1981) . Under

this three - part test, Petitioners have the initial burden of establishing, a

prima facie case of unlawful discrimination. Next, if Petitioners sufficiently

establish a prima facie case, the burden shifts to Respondent to articulate a

legitimate, nondiscriminatory reason for its action. Finally, if the HOA

satisfies this burden, Petitioners have the opportunity to prove that the

HOA' s reason is mere " pretext. " Palm Partners, LLC v. City of Oakland Park ,

102 F. Supp. 3d 1334, 1344 (S.D . Fla. 2015).

7 5 . Petitioners' allegations amount to three claims: (1) disparate

enforcement of the HOA rules based on race and/or disability; (2) failure to

accommodate Petitioners' son's disability by attempting to remove Oberon

from the Home and prohibi ting Oberon from acting as an emotional support

animal for their son; and (3) retaliation against them for requesting an

accommodation and / or filing a housing complaint.

Disparate Enforcement

7 6 . To establish a prima facie case of disparate treatment, Pet itioners

must present evidence that they belong to a protected class and that they

were treated differently by the HOA than similarly - situated owners outside

that class. See His House Recovery Residence, Inc. v. Cobb Cty., Georgia ,

No. 1:17 - CV - 0243 - SCJ, 20 19 WL 11343462, at *10 (N.D. Ga. Mar. 27, 2019 )

(citing Schwarz v. City of Treasure Island , 544 F.3d 1201, 1216 (11th Cir.

2008) (" As its name suggests, a disparate treatment claim requires a plaintiff

to show that he has actually been treated differently than similarly situated

non - handicapped people. ")). See also Boykin v. KeyCorp, 521 F.3d 202, 213

(2d Cir. 2008) (explaining, like Title VII employment discrimination claims,

FHA disparate treatment claims are analyzed using the McDonnell Douglas

burden - sh ifting framework ). Establishing a prima facie case of disparate

treatment is not " onerous. " Burdine , 450 U.S. 248, 255, n.8 (1981). Once

established, there is a presumption that the alleged discriminatory conduct

" if otherwise unexplained, [is] more likely than not based on the

consideration of impermissible factors " such as race or disability. Furnco

Construction Corp. v. Waters , 438 U. S. 567, 577 (1978); also see United

Farmworkers of Fla. Hous. Project, Inc. v. City of Delray Beach , 493 F.2d 799,

808 (5 th Cir. 1974) (finding prima facie case established where city made

exceptions to its annexation requirements for white citizens, but not minority

citizens).

7 7 . Respondent seems to ignore the selective enforcement/disparate

treatment claim and analysis. I nstead, it argues that its actions were not

motivated by race and that Petitioners were never deprived of the use of their

home. See Resp. PRO, ¶38 ("It, therefore, is unclear what ' services or

facilities ' in connection with their ' dwelling ' they claim the Association

unlawfully deprived them of because of their race. ").

7 8 . While it is true that Petitioners currently have full use and enjoyment

of their home (including their ability to keep animals as allowed under the

Declaration), if Respondent had pre vailed in the Enforcement Action

Petitioners would not. Petitioners clearly were affected " in the terms,

conditions, or privileges " of their dwelling, when they were issued citations,

sent the Pre - Suit Letter, and forced to defend an unauthorized lawsuit t o

take away their pets.

7 9 . To be clear , selective enforcement of a covenant, rule, or regulation is a

cognizable claim under federal housing law in the Eleventh Circuit. In Ford

v. 1280 W est Condo minium Ass ociation , Inc. , No. 1:14 - CV - 00527 - RWS, 2014

WL 4 311275 (N.D. Ga. Sept. 2, 2014) , the court held that differential

treatment in the enforcement of declarations could violate the FHA:

Plaintiffs also provide a specific example of

D efendants ' disparate treatment of Plaintiffs and

other owner s È based on Defendants ' selective

enforcement of the Declaration. The Eleventh

Circuit has recognized selective enforcement as a

basis for FHA claims. Therefore, Plaintiffs '

allegations that Defendants approved multiple

leasing permits for non - minorities and permitted

the transfer of leasing permits between units for

non - minority owners, even though both actions

violate the Declaration, while enforcing Declaration

provisions against Plaintiffs, can serve as a basis

for Plaintiffs ' housing discrimination claim. In sum

. .. t he Court finds that Plaintiffs state a plausible

claim for housing discrimination.

Id. at *6 (citing Wells v. Willow Lake Estates, Inc., 390 F. App ' x 956, 959

(1 1th Cir.2010) (holding that mobile - home community ' s selective enforcement

of regulations regarding home and lawn appearance as pretext for disability

and national origin discrimination could violate the FHA); and Bonasera v.

City of Norcross, 342 F. App ' x 581, 585 (11th Cir.2009) (observing that city ' s

selective enforcement of single - family zo ning ordinance against Hispanic

families could violate the FHA if city was aware of violations by white

homeowners and chose to ignore them ) ).

80 . Regarding the first part of the prima facie case, t he parties have

stipulated that Petitioners are African A merican and have a child with a

disability and, therefore, are in a protected class under the FFHA.

8 1 . Petitioners established they were treated differently in the

enforcement of the Declaration . They failed to establish, however, that the

HOA was aware o f their son's disability when it issued the citations, sent the

Pre - Suit Letter, or filed the Enforcement Action. Petitioners also did not put

forth the disability status of any of the other dog owners who violated the

Declaration . As such, Petitioners' di sability discrimination based on

disparate treatment/selective enforcement fails.

8 2 . Petitioners di d present credible evidence of di sparate treatment based

on race. Petitioners showed instances where non - African American HOA

members had their dogs off le ash and off property, but had not been issued a

citation. They established that other dogs had been aggressive, but no other

owners were sent a Pre - Suit Letter, or taken to court in a civil proceeding to

remove all the dogs from these non - African American neighbors .

8 3 . Although the HOA argued it had issued citations to other HOA

members, there were no evidence of citations issued prior to the Pre - Suit

Letter. The citations to the Kilpatricks and Dohertys were issued after the

HOA had been accused of uneq ual enforcement of the Declaration.

8 4 . Moreover, some non - African American neighbors received calls from

Mr. Chapman to determine the cause of the loose animal (i.e. to see if their

electric fences were working) instead of a citation letter. The Doherty s

received a polite email requesting that they address the repeated violation of

their dog being off their property unleashed. There was no evidence the

Hoytes received this type of "kid gloves" treatment. To the contrary, the

Hoytes were treated with boxi ng gloves.

8 5 . There was no evidence that Petitioners were given the same leeway

provided to other non - African American HOA members; they did not receive

the same type of polite emails and warnings prior to a citation being issued.

They did not receive cal ls to determine if there had been a malfunction with

an electric fence. Rather, when another dog was reported "off leash," the HOA

jumped to the conclusion it was Oberon. Petitioners met their initial burden

of proving they were treated differently from no n - African American neighbors

in similar circumstances.

8 6 . Thus, the burden shifts to the HOA to put forth a non - discriminatory

reason for not citing or suing other neighbors or treating other neighbors

more leniently when their dogs were off leash, off p roperty, or nipping or

biting neighbors .

8 7 . The HOA first argues that it did issue citations uniformly and equally.

(Respondent's PRO, ¶11). The undersigned rejects this argument. As found

above, there were numerous incidents of dogs roaming the community , and

some even "nipping" or threatening neighbors, where no citations were given.

Second, the only instances where other neighbors had been cited for animal

violations occurred after the Pre - Suit Letter and Enforcement Action. The

timing of these violati ons coupled with the tone of the email to the Dohertys

that accompanied that citation make these citations incomparable .

8 8 . Next , the HOA states that its decision s were not based on race, but

rather , it acted because it ha d a duty to enforce the Declarati on and to

protect the residents from Oberon. Assuming it has sufficiently established

legitimate non - discriminatory reason s for its actions, Petitioners have

established that these reason s are pretextual. 9

8 9 . Respondent a rgue s it was simply "doing its jo b" by enforcing the

Declaration. Petitioners put on credible evidence that the HOA ignored or

gave the benefit of the doubt to non - African Americans whose dogs were off

leash or off property. Thus, if the HOA had truly wanted to enforce the

animal provisio ns of the Declaration , it would have issued citation letters to

all of the other homeowners whose dogs were off leash or off property.

90 . With regards to the Pre - Suit Letter and attempt to expel Petitioners'

dogs from their property, the fact s that the Pr e - Suit Letter was not

documented in the HOA minutes or approved by the HOA Board, and that

the HOA failed to provide the due process set forth in the Declaration (the

same Declaration it was allegedly attempting enforce) undermine the HOA's

argument that i t was acting pursuant to the Declaration.

9 1 . Finally, the HOA argued it was forced to file the Enforcement Action

because of Oberon's aggressive manner and the October 28 incident involving

the dog bite. There is sufficient evidence casting doubt on thi s reason. First,

the Hoytes established that other dogs in the neighborhood had been

reported as being aggressive and attempted to bite a resident without any

repercussions. Mr. Chapman's characterization of a "nip" being less

aggressive tha n a "bite" does not change the fact that no action was taken by

the HOA in these instances.

9 2 . Second, the HOA had already set the groundwork of removing Oberon

in March 2016, well before Oberon's alleged dog bite incident. Thus, the HOA

9 See Reeves v. Sanderson Plumbing Prod., Inc. , 530 U.S. 133, 143 (2000) (noting employment

discrimination plaintiff may est ablish he was a victim of intentional discrimination "by

showing that the employer's proffered explanation is unworthy of credence"). Pretext is

established either directly by sh owing by a preponderance of the evidence that a

discriminatory reason more likely motivated the HOA or indirectly by showing that the

HOA's proffered explanation is unworthy of credence. See generally Chapman v. AI Transp.,

229 F.3d 1012, 1037 (11th Cir.20 00) (en banc) (employment discrimination).

was not acting because of the do g bite incident when it issued the citations or

sent the threatening Pre - Suit Letter.

9 3 . Finally, if the HOA wanted to quickly remove Oberon, it could have

followed the Declaration by provid ing notice to the Hoytes, holding a

Covenants Committee meeting, and issu ing a written finding. Clearly, an

HOA meeting would have taken less time and resulted in a quicker removal

of Oberon than a lengthy civil trial. As with the Pre - Suit Letter, the fact s

that the Enforcement Action was unauthorized by the HOA Board, and that

Petitioners were not afforded proper notice or a hearing in front of the

Covenants Board , make the HOA's non - discriminatory reason s (enforcement

of the Declaration and Oberon's aggression ) ring untrue.

9 4 . I n summary, the undersigned finds Petiti oners have pr oved racial

discrimination in the enforcement of the Declaration and that the reasons

proffered by the HOA for its actions were pretextual.

Disability Discrimination

9 5 . The Hoytes also allege that the HOA discriminated against them by

faili ng to accommodate their son when it failed to allow him to keep Oberon

as an emotional support animal. § 760.23(9)(b), Fla. Stat. 10

9 6 . To establish a prima facie case for a failure to provide a reasonable

accommodation claim, Petitioners must establish th ree things : refusal,

reasonableness, and necessity. Schwarz , 544 F.3d at 1218 Ï 19. To establish

these elements , they must show:

(1) th eir child is disabled ;

(2) t he y requested a reasonable accommodation from the HOA ;

(3) the requested accommodation was nec essary to afford their son an

equal opportunity to use and enjoy a dwelling ; and

(4) the HOA refused to make the requested accommodation.

10 Like the FFHA, the FHA also prohibits "a refusal to make reasonable 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." 42 U.S.C. § 3604(f)(3)(B).

Sailboat Bend Sober Living, LLC v. City of Fort Lauderdale , No. 19 - 60007 -

CIV, 2020 WL 4736211 (S.D. Fla. Aug. 14, 20 20) ( quoting Schaw v. Habitat

for Humanity of Citrus Cty., Inc. , 938 F.3d 1259, 1264 (11th Cir. 2019) ) .

9 7 . Here, the parties have stipulated to the first and part of the third

element that the Hoytes' child is disabled and an emotional support animal is

a necessary accommodation. What remains in dispute is whether the Hoytes

actually requested a reasonable accommodation, whether keeping Oberon is a

reasonable accommodation, and if the HOA has actually refused to

accommodate the Hoytes' child.

9 8 . The onl y evidence of an accommodation request is the Note that was

produced as part of the litigation in the Enforcement Action. The Note only

indicates that if Oberon were to be taken away, the n Petitioners' son would

deteriorate. It says nothing about what Peti tioners' son would require if

Oberon was not taken away.

9 9 . A petitioner " need not use magic words " to express a request for

accommodation. Hunt v. Aimco Properties, L.P. , 814 F.3d 1213, 1226 (11th

Cir. 2016) (citations omitted). However stated , a p etiti oner can be said to

have made a request for accommodation when the housing provider has

" enough information to know of both the disability and desire for an

accommodation. " Id. This occurs when the circumstances would cause a

reasonable housing provider to make appropriate inquiries about the possible

need for an accommodation. Id.

100 . Although there is no magic language, here Petitioners have failed to

meet their burden of establishing they clearly desired an accommodation for

their son, and that the acc ommodation was to allow Oberon to remain on the

Property despite any violations of the Declaration. In the context of the facts

of this case, it was reasonable for the HOA to believe that the Note was just

evidence in the Enforcement Action and nothing mor e. Moreover, it was

reasonable for the HOA to believe no action was needed as long as Oberon

was able to serve as an emotional support animal for Petitioners' son.

10 1 . Even if the Note could be considered a request for a reasonable

accommodation, there is no evidence the HOA has refused to grant the

accommodation because Oberon is currently still living with the Hoytes. As

explained in the FHA context:

The FHA does not demand that housing providers

immediately grant all requests for accommodation.

However, the failure to make a timely

determination after meaningful review amounts to

constructive denial of a requested accommodation,

as an indeterminate delay has the same effect as an

outright denial. Conversely, a housing provider is

not permitted to " short - circuit " the interactive

process.

Bone v. Vill. Club, Inc. , 223 F. Supp. 3d 1203, 1214 (M.D. Fla. 2016) .

10 2 . Because Oberon is still serving as the Hoytes' son's emotional support

animal and it was not until the course of these proceedings that the Hoy tes

clarified that they were seeking to keep Oberon regardless of any violations of

the Declaration , the HOA has not had an adequate opportunity to make a

decision to approve or deny the requested accommodation. Therefore, the

HOA cannot have violated the FFHA for failure to grant the accommoda tion

request.

10 3 . In summary, Petitioners have failed to establish that the HOA

violated the FFHA by denying them a reasonable accommodation because

there was insufficient evidence establishing they had made a reques t for an

accommodation and that the HOA had refused that accommodation.

Direct Threat 11

10 4 . Even if Petitioners could establish they requested an accommodation

that was rejected by the HOA, they would need to establish that the

accommodation sought was re asonable. It is clear from Mrs. Hoyte 's

testimony at the hearing in this proceeding that Petitioners seek an

11 The "direct threat" analysis is included i n the event the HOA attempts to remove Oberon

in the future, or if FCHR finds the undersigned has erred in concluding there was not a

request for a reasonabl e accommodation and that the HOA has not denied such a request .

accommodation to keep Oberon as an emotional support animal for their son

regardless of whether there are violations of the Declaration. Based on t he

past Enforcement Action, it is safe to believe that the HOA would argue

keeping Oberon in Stonelake Ranch is not a reasonable accommodation.

Although unartfully argued, the HOA's position is that Oberon is a direct

threat to the neighborhood.

10 5 . T he Legislature has clarified the law regarding disability

accommodations and the use of emotional support animals by enacting

section 760.27, which became effective July 1, 2020:

760.27 Prohibited discrimination in housing

provided to persons with a disabili ty or

disability - related need for an emotional

support animal . Ð

(1) DEFINITIONS. Ð As used in this section, the

term:

(a) " Emotional support animal " means an animal

that does not require training to do work, perform

tasks, provide assistance, or provide th erapeutic

emotional support by virtue of its presence which

alleviates one or more identified symptoms or

effects of a person ' s disability.

(b) " Housing provider " means any person or entity

engaging in conduct covered by the federal Fair

Housing Act or s. 504 of the Rehabilitation Act of

1973, including the owner or lessor of a dwelling.

(2) REASONABLE ACCOMMODATION

REQUESTS. Ð To the extent required by federal

law, rule, or regulation, it is unlawful to

discriminate in the provision of housing to a perso n

with a disability or disability - related need for, and

who has or at any time obtains, an emotional

support animal. A person with a disability or a

disability - related need must, upon the person ' s

request and approval by a housing provider, be

allowed to k eep such animal in his or her dwelling

as a reasonable accommodation in housing, and

such person may not be required to pay extra

compensation for such animal. Unless otherwise

prohibited by federal law, rule, or regulation, a

housing provider may:

(a) Deny a reasonable accommodation request for

an emotional support animal if such animal poses a

direct threat to the safety or health of others or poses

a direct threat of physical damage to the property of

others, which threat cannot be reduced or

elimina ted by another reasonable accommodation.

* * *

(4) LIABILITY. Ð A person with a disability or a

disability - related need is liable for any damage

done to the premises or to another person on the

premises by his or her emotional support animal.

(emph asis added).

10 6 . The U.S. Department of Housing and Urban Development (HUD) has

also issued special guidance regarding having an animal as a reasonable

accommodation under the FHA . Regarding a dangerous dog, it states:

The FHA does not require a dwellin g to be made

available to an individual whose tenancy would

constitute a direct threat to the health or safety of

other individuals or whose tenancy would result in

substantial physical damage to the property of

others. A housing provider may, therefore, r efuse a

reasonable accommodation for an assistance animal

if the specific animal poses a direct threat that

cannot be eliminated or reduced to an acceptable

level through actions the individual takes to

maintain or control the animal (e.g., keeping the

ani mal in a secure enclosure).

* * *

Pet rules do not apply to service animals and

support animals. Thus, housing providers may not

limit the breed or size of a dog used as a service

animal or support animal just because of the size or

breed but ca n, as noted, limit based on specific

issues with the animal's conduct because it poses a

direct threat or a fundamental alteration.

U.S. Dep't of Hous. And Urban Dev. , FHEO Notice 2020 - 01, p.13 - 14 (Jan. 28,

2020) (emphasis added).

10 7 . In Friedel v. Park Place Cmty. LLC, No. 2:17 - CV - 14056, 2017 WL

3666440, at *3 (S.D. Fla. Aug. 24, 2017), aff'd, 747 F. App ' x 775 (11th Cir.

2018) , a disabled resident brought a housing discrimination claim under the

FHA when his mobile home park banished his emotional suppor t dog for bad

behavior . The Friedel court explained :

The Fair Housing Act does not require that a

dwelling be made available to an individual whose

tenancy would constitute a direct threat to the

health or safety of other individuals or whose

tenancy woul d result in substantial physical

damage to the property of others.

The determination of whether an assistance animal

poses a direct threat must rely on an individualized

assessment that is based on objective evidence

about the specific animal in question , such as the

animal ' s current conduct or a recent history of overt

acts. The assessment must consider the nature,

duration, and severity of the risk of injury; the

probability that the potential injury will actually

occur; and whether reasonable modificat ions of

rules, policies, practices, procedures, or services will

reduce the risk. In evaluating a recent history of

overt acts, a provider must take into account

whether the assistance animal's owner has taken

any action that has reduced or eliminated the risk.

Examples would include obtaining specific training,

medication, or equipment for the animal. Thus,

determining whether an animal poses a direct

threat that cannot be mitigated by a reasonable

accommodation is not a question of law, it is

distinctly a question of fact. (emphasis added,

quotations and citations omitted).

10 8 . In this case, there was evidence that Oberon had escaped from the

fenced area around the Home and bit a lawncare employee that may have

been on the Hoytes' property in October 20 16 , but there was no credible non -

hearsay evidence that Oberon is still aggressive. Moreover, there was credible

evidence that the Hoytes had taken steps to address any undesirable

behavior: Oberon had obedience training and the Hoytes had made changes

to their fence and gate to ensure he d oes not escape.

109 . Based on the evidence in the record, the undersigned cannot find that

Oberon is currently a direct threat. A bsent additional information, a llowing

Oberon to remain at the Home as the Hoytes' son's emo tional support animal

is a reasonable accommodation. 12

Retaliation

1 10 . To prevail on a claim for retaliatory housing discrimination,

Petitioners must establish that the HOA " coerced, intimidated, threatened, or

interfered with " their exercise of rights gra nted under the FFHA. § 760.37 ,

Fla. Stat. ; Dixon v. Hallmark Cos ., 627 F.3d 849, 858 (11th Cir. 2010). T he

three elements to prove retaliation are: (1) Petitioners engaged in a protected

activity under the FFHA ; (2) the HOA subjected them to an adverse act ion;

and (3) a causal link exists between the protected activity and the adverse

action. Id.

1 11 . Assuming the adverse action was the Enforcement Action,

Petitioners cannot prove that any protected activity is causally linked to this

action. Petitioners' H ousing Discrimination Complaint occurred after the

initiation of the Enforcement Action. Therefore, Petitioners cannot claim the

adverse actions taken by the HOA were caused by or in reaction to their

Housing Complaint .

12 This conclusion does not prevent the HOA fr om assessing in the future whether Oberon is

a "direct threat" as long as it takes into account the factors outlined in Friedel and it follows

the procedures provided in the Declaration. This also does not prevent private owners from

hold ing the Hoytes liable for any actual damage caused by Oberon. See § 760.27(4), Fla. Stat.

11 2 . Petitioners have failed to esta blish that the HOA retaliated against

them in violation of the FFHA.

Damages & Relief

11 3 . Because Petitioners have proven their disparate treatment claim

based on race, they are entitled to relief and certain damages.

Section 760.35(5)(b) provides:

If the administrative law judge finds that a

discriminatory housing practice has occurred or is

about to occur, he or she shall issue a recommended

order to the commission prohibiting the practice

and recommending affirmative relief from the

effects of the pract ice, including quantifiable

damages and reasonable attorney fees and costs.

11 4 . W hen a petitioner proves selective enforcement of a homeowners'

association 's rule or regulation, t he association is estopped from applying

that rule or r egulation . Shields v . Andros Isle Prop. Owners Ass ' n, Inc. , 872

So. 2d 1003, 1007 (Fla. 4th DCA 2004) (applying real property law and citing

Chattel Shipping & Inv., Inc. v. Brickell Place Condo. Ass ' n , 481 So. 2d 29, 30

(Fla. 3d DCA 1985) . In this case, the HOA cannot contin ue to issue citations

for stray, off leash, or off property animal s unless it does so equally to all

violators.

11 5 . As relief in these proceedings, Petitioners have requested the

following: the cost of installing the wooden fence, reimbursement for misse d

work due to the Enforcement Action , emotional distress , f ines , and punitive

damages .

11 6 . The Hoytes are entitled to the costs associated with the changes they

made as a result of the Pre - Suit Letter. The Hoytes spent approximately

$31,094 on the exter ior fence as a result of the HOA's threats to legally

remove Oberon.

11 7 . Petitioners would be entitled to damages such as los s of income

incurred by Dr. Hoyte during the time he spent defending the Pre - Suit Letter

and Enforcement Action, and the actual attorney's fees and costs incurred in

defending the Enforcement Action. The undersigned, however, cannot award

this relief because Petitioners fai led to provide sufficient evidence to quantify

such damages.

11 8 . Finally, t he FFHA does not provide for civi l penalt ies, emotional

distress damages, or punitive damages. As such, the undersigned has no

authority to award this relief.

R ECOMMENDATION

Based upon the foregoing Findings of Fact and Conclusions of Law, the

undersigned hereby RECOMMENDS that the Flori da Commission on Human

Relations issue a final order granting the Hoyte s ' Petition for Relief, in part,

as follows:

(a) F inding that the HOA engaged in a discriminatory housing practice

based on the Hoytes' race by selectively enforcing the Declaration ag ainst

them, but failing to enforce the same provisions against similarly situated

non - African American homeowners when it: (1) issued citations to the Hoytes

for violating the animal provisions of the Declaration; (2) issued a Pre - Suit

Letter demanding the Hoytes remove their dogs from their Home; and (3)

initiated and pursued the Enforcement Action to permanently remove all

dogs from their Home and prevent them from acquiring additional dogs in

the future without the HOA's consent;

(b) Prohibiting the HOA from selective enforcement of the Declaration

based on race;

(c) Prohibiting the HOA from removing Oberon from Petitioners' home in

the future unless it follows the procedures in the Declaration and establishes

Oberon is a direct threat under the FFHA;

( d) Award ing Petitioners $31,094 in quantifiable damages;

(e) Award ing Petitioners reasonable attorney's fees and costs for these

proceedings.

D ONE A ND E NTERED this 8th day of June , 2021 , in Tallahassee, Leon

County, Florida.

S

H ETAL D ESAI

Administrative Law Judge

1230 Apalachee Parkway

Tallahassee, Florida 32399 - 3060

(850) 488 - 9675

www.doah.state.fl.us

Filed with the Clerk of the

Division of Administrative Hearings

this 8th day of June , 2021 .

C OPIES F URNISHED :

Tammy S. Barton, Agency Clerk JoAnn N. Burnett, Esquire

Florida Co mmission on Human Relations Becker & Poliakoff , P . A .

4075 Esplanade Way , Room 110 1 East Broward Boulevard , Sutie 1800

Tallahassee, Florida 32399 - 7020 Fort Lauderdale, Florida 33012

Scott H. Jackman, Esquire Cheyanne Costilla, General Counsel

Cole, Scott and Kissane, P.A. Florida Commission on Human Relations

4301 West Boy Scout Boulevard , Suite 400 4075 Esplanade Way , Room 110

Tampa, Florida 33607 Tallahassee, Florida 32399 - 7020

N OTICE OF R IGHT T O S UBMIT E XCEPTIONS

All p arties 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 issue the Final Order in this

case.