20-000978 Carlos Rodriguez And Monica Bontempi vs. Bonavida Condominium Association, Inc., Et Al. Status: Closed Recommended Order on Tuesday, October 6, 2020.

Summary: Petitioners failed to establish that Respondents discriminated against them based on their national origin or retaliated against them for filing a complaint under the Fair Housing Act. Recommended dismissal of petition for relief.

connection therewith, because of their national origin; and retaliated against

Petitioners on account of their having exercised any right granted under the

Florida Fai r Housing Act, in violation of sections 760.23(2) and 760.37,

Florida Statutes (2018); and, if so, the relief to which Petitioners are

entitled. 1

P RELIMINARY S TATEMENT

Petitioners filed a fair housing discrimination complaint with the United

States Depar tment of Housing and Urban Development ( " HUD " ) on March 8,

2019. HUD transferred the matter to the Florida Commission on Human

Relations ( " FCHR " ) for an investigation an d determination of whether a

discriminatory housing practice occurred. FCHR is a state agency charged

with investigating fair housing discrimination complaints. On September 23,

2019, Petitioners filed an amended complaint with FCHR alleging that they

were discriminated against by Respondents because of their national origin. After its inves tigation, FCHR issued a Notice of Determination of No Cause on January 24, 2020.

Dissatisfied with FCH R ' s determination, Petitioners filed a Petition for

Relief with FCHR on February 20, 2020, alleging that Respondents violated

Florida ' s Fair Housing Act by discriminating against them because of their

national origin and retaliating against them for engaging in protected activity. On February 20, 2020, FCHR referred this matter to DOAH to

assign an administrative law judge to conduct the final hearing.

T he final hearing was initially set for May 12, 2020. On May 1, 2020, the

undersigned issued an Order cancelling the final hearing due to the

1 Throughout this Order, Bonavida Condominium Association, Inc. , may be referred to as

" Bonavida. " The individual parties are referred to by their last names or all parties

collectively as Petitioners or Respondents.

COVID - 19 pandemic. On June 1, 2020, the undersigned entered an Order

rescheduling the final hearing for August 18, 2020, by video teleconference.

On July 22, 2020, the undersigned entered an amended Order rescheduling

the final hearing for August 18, 2020, by Zoom conference.

The final hearing commenced on August 18, 2020, and concluded on

August 21, 2020, with all p arties present. At the outset of the hearing , and

after considering argument of the parties, t he undersigned denied the

three pending motions filed by Petitioners and the one pending motion filed

by Respondents. Petitioners testified on their own behalf. P etitioners '

Exhibits 1 through 11 were received into evidence. Respondents presented

the testimony of Lorne Rovet, Paulo Alves, and John McNamee. Respondents '

Exhibits 2, 5, 25 through 27, and 34 were received into evidence. 2

The three - volume final heari ng Transcript was filed at DOAH on

September 16, 2020. The parties timely filed proposed recommended orders,

which were considered in the preparation of this Recommended Order.

Unless otherwise indicated, citations to the Florida Statutes are to the 2018

v ersion.

2 Only the hard copy documents within Pe titioners ' Exhibits 1, 3, 5, 7 , and 9 through 11 and

Respondents ' Exhibits 2, 5, 25 through 27, and 34, which accompany this Recommended

Order were received into evidence. Petitioners ' Exhibits received into evidence also include

excerpts from certain audi o or video files contained on a thumb drive identified as follows:

Petitioners ' Exhibit 2 (audio file #5: first hour of July 30, 2018, board meeting); Petitioners '

Exhibit 4 (audio 2:15:49 through 2:16:34 of October 22, 2018, board meeting); Petitioners '

E xhibit 6 (audio); Petitioners ' Exhibit 8 (video), which were received into evidence. To the

extent any additional documents, audio, or visual files are contained on the thumb drive

accompanying this Recommended Order, they were not received into evidence ; and ,

therefore, were not considered by the undersigned in the preparation of this Recommended

Order.

F INDINGS OF F ACT

Parties

1. Petitioners are husband and wife who, until recently , worked and lived

in their country of origin, Argentina. Petitioners are headstrong, well -

educated, and very proud of their Argentinian national origin. While living in

Argentina, Rodriguez worked as a renowned physicist and research professor

and Bontempi as a physician and renowned immunologist.

2. After successful careers in Argentina, P etitioners retired and moved

from Argentina to Aventura, Florida, where, in 2015, they purchased Unit 1505 at Bonavida . Petitioners own the condominium unit through Tina

Trust, LLC , named after the ir native country of Argentina.

3 . Bonavida is a multi - cultural condominium community governed by an

association, which , in turn, is governed by a board of directors. At all tim es

material hereto, the board has been comprised of individuals of many

different cultures, backgrounds , and countries of origin .

4. Many of the individual board members are headstrong , which often led

to co nfrontational interactions, disputes, and bickering among board

members relating to various matters of association business.

5. Rovet has been a unit owner at Bonavida sin ce 2009 and McNamee

since 1985. Rovet is not retired and works full - time as an acco untant.

McNamee retired following a distinguished career in law enforcement in New

York City.

" The Three Musketeers " Join the Board Together in 2018

6. For several years, Petitioners, Rovet, and McNamee were good friends

and socialized together.

7. In 2016, Rodriguez was president of the board. By the end of 2016, a

dispute arose regarding Rodriguez ' s presidency and he was removed as

president. However, Rodriguez remained on the board as a director for

unspecified periods of time during 2016 and 2017.

8. By the end of 2017, Rodriguez was no longer on the board. However,

Rodriguez, McNamee , and Rovet were dissatisfied with the prior

management company at Bonavida and condition of the property, so they

agreed to become more active in the association. To this end, McNamee asked

Rodriguez to join the board with him and Rovet.

9. In January 2018, Rodriguez, McNamee, and Rovet joined the board

together determined to collectively combat the problems at Bonavida.

McNamee became vice president, Rovet became tre asurer, and Rodr iguez was

a director. At the time, Petitioners, McNamee, and Rovet, were still good

friends. In fact, Rodriguez, McNamee, and Rovet fondly referred to each other

as " the three musketeers " in reference to their plan to combat the problems

at Bonavida.

Deterioration of the Relationship and the July 30, 2018 , Board Meeting

10. Not long after joining the board together in January 2018, the

friendship between Petitioners, McNamee, and Rovet deteriorated.

11. A dispute arose between Pet itioner s, McNamee, and Rovet over the

management of the board and how to address the condition of the property.

These disputes are gleaned from a review of numerous emails exchanged

betwee n Rodriguez, McNamee, and Rovet on June 22, 2018.

12. On June 25, 2018, on the heels of these emails, a Bo navida board

meeting was held. During the meeting, Rodriguez became angry, took the floor, and to McNamee ' s and Rovet ' s surprise, challenged McNamee ' s and

Rovet ' s qualifications to be on the board. Rodriguez argued that McNam ee

and Rovet were not full - time residents of Bonavida (McNamee was a resident

of New York and Rovet was a resident of Canada); and , therefore, they were

not qualified to be on the board.

13. Bonavida ' s condominium attorney was present at the June 25, 2018 ,

board meeting and the matter was addressed and resolved at the meeting in

favor of McNamee and Rovet. Nonetheless, after the meeting, Rodriguez

unilaterally contacted the board ' s attorney causing Bonavida to incur

additional legal expense.

14. Understan dably, after the June 25, 2018, board meeting, Petitioners,

McNamee, and Rovet were no longer friends and they did not speak to each

other, although they each remained on the board.

15. In the meantime, Rovet, as treasurer, had discovered that Bonavida ' s

finances were in poor shape, and one of the reasons was the incurrence of

unauthorized legal fees incurred by Rodriguez. The matter was noticed to be

discussed during a board meeting to occur on July 30, 2020, where other fees

potentially owing and due t o Bonavida from other unit owners would also be

discussed.

16. The agenda for the July 30, 2018 , board meeting was posted in

common areas. The agenda items included " Carlos Rodriguez - Legal Fees " and

various types of fee s attributable to other units. The m eeting commenced at

5:04 p.m., and did not conclude until 7:20 p.m. The meeting began in chaotic

fashion with Rodriguez interrupting other speakers and bickering over the

approval of the prior board meeting minutes.

17. After several minutes of bickering , a vote was taken and the reading

and approval of the previous meeting minutes was tabled so that the board

could move forward and address the agenda items. Even after this vote,

Rodriguez continued to argue about the prior meeting minutes and

interrupted other spe akers. At one point, an unidentified speaker chastised

Rodriguez for always interrupting other speakers at board meetings, which

invoked a loud applause and " thank yous , " from other attendees at the

meeting.

18. The meeting then turned to the first agenda item, which was a

discussion and vote on a proposal requiring Petitioners ' unit to reimburse

Bonavida for legal fees. As treasurer, Rovet took the floor to speak on the

matter. He was immediately interrupted by Rodriguez, which resulted in

further bickering until Rodriguez momentarily stopped talking.

19. At the meeting, Rovet explained that the legal fees were incurred by

Bonavida in 2017, and arose from five invoices totaling $5,332.52. Each

invoice was attributable to Petitioners ' unit. Four of the invoices (totaling

$4,448.52) related to a conflict between the former association manager ,

Beth Natland , and Bontempi, in which Bontempi was accused of threatening

Ms. Natland. An other invoice in the amount of $884.00 related to an

attempted transfer in 2017 of Petitioners ' unit from an " LLC to their trust. "

There was a heated and chaotic discus sion on the item for almost one hour.

Petitioners disagreed with Bonavida ' s legal authority to recover the legal

fees. Following a vote, a majority of the board voted to hold Petitioners ' unit

responsible to reimburse Bonavida for the legal fees ( $5,332.52 ) .

20. After the vote, no action was ever taken to seek to recover the legal

fees. The legal fees have never been placed on Petitioners ' unit le dger;

Bonavida has not sought to collect the fees; the fees have never been paid; no

lien, lawsuit, or foreclosure action was filed; and Petitioners have never been

threatened with eviction or evicted. On December 10, 2018, the president of Bonavida sent P etitioners a letter stating that no action would be taken to

collect any of the legal fees. Petitioners do not owe any assessments,

expenses, or fees to the association and they own their unit free and clear of

any mortgage liens, fees, expenses, or assess ments owed to Bonavida.

Notably, Petitioners have resided at the unit without interruption since they

moved into Bonavida in 2015. At no time have Petitioners been denied the

provision of services or facilities in connection with the sale or rental of a dw elling.

21. Nevertheless, Petitioners assert that the agenda ' s reference to

Rodriguez by name and the board ' s action at the July 30, 2018, meeting to

recover the legal fees of $5,332.52 against their unit is based on national

origin discrimination. Signif icantly, at no time during the meeting did

Petitioners contend that the agenda or attempt to recover the legal fees was

based on national origin discrimination.

22. At hearing, Rodriguez could not explain how the attribution of the

legal fees incurred in 2017 related to Petitioners ' unit are based on his

national origin. Rather, Rodriguez contends Petitioners could not be legally

held responsible for the attorneys ' fees; a point he stated at the meeting and

reiterated at the final hearing.

23. The eviden ce presented at hearing demonstrates that other unit

owners who are not Argentinian have been identified at board meetings as

being responsible for various types of fees owed to Bonavida.

24. In sum, Petitioners failed to present persuasive and credible e vidence

that Respondents discriminated against them based on their national origin

with respect to the meeting agenda, the July 30, 2018, board meeting, and

any attempt to recover the legal fees from Petitioners ' unit in the amount of

$5,332.52.

Emails

25. Petitioners further assert that they were discriminated against

because of their national origin based on emails authored by Rovet.

26. On April 3, 2018, Rovet sent an email to Brenda Friend, the president

of Bonavida, in which numerous other pe rsons, including Rodriguez, were

copied, stating:

Great suggestion Brenda. We should only allow

Brazilians into the building.

My ideas would be to have everyone speak one language, like Swedish.

A great rule change would be to require all

residents to change their underwear every day and

to wear the underwear [on] the outside of their

clothing so we can check.

Good work team!

27. Rovet ' s April 3, 2018, email was not directed at Petitioners and does

not refer to their national origin. At hearing, Rov et testified that he is a fan

of movies and music, and that he often refers to various movies and songs in

his communications with others in an attempt at " dry humor. " Rovet testified

that his reference to " Brazilians, " " Swedish, " and individuals with unde rwear

outside their clothing was an attempt at humor and in reference to a " Woody

Allen movie. " The email was in no way intended to disparage Petitioners

based on their national origin. At hearing, Rodriguez acknowledged that Rovet is sarcastic and that it is important to consider the full context of email

conversations.

28. Petitioners also point to an email by Rovet dated April 15, 2018, which

he sent to Rodriguez and other board members regarding " Violations and

Enforcement Committee, " stating:

Before leaving there Brenda and I discussed this

issue and concluded that regardless of what our

rules state and what state laws state we should be

reasonably aggressive against violators because we have to in order to change the culture but also

because most re sidents will not know the rules nor

take the time to learn about them. If confronted by anyone surpassing that assumption we can always withdraw from our position.

29. This email does not refer to Petitioners and makes no reference to

their national orig in. In no way was this email intended by Rovet to

disparage Petitioners ' national origin.

30. Petitioners also point to the following string of emails by Rovet dated

May 28, 2018. At 4:38 a.m. that morning, Rovet stated: " How do you know its

pee? " A coup le of hours later, McNamee responded; " ?? Shouldn ' t pee be on

the pillar. I only see it on the floor therefore, if pee, it ' s not a male dog? " In

response, Rovet sent an email to McNamee, Rodriguez, and others stating:

" We need a pee detective to get to the bottom of this. "

31. At hearing, Rovet testified that he wrote the May 28, 2018, emails

because a dog was allegedly " peeing " somewhere near his building. Rovet ' s

reference to " pee detective " was in reference to the Jim Carrey movie, " Pet

Detective. " The May 28, 2018, emails were another attempt by Rovet at dry

humor and in no way intended to disparage Petitioners based on their

national origin.

32. Petitioners also point to an email written by Rovet on July 25, 2018, at

4:03 p.m. to McNamee, Rodrigue z, and other board members, stating: " Let ['] s

put that in the new condo rules – all board members required to sit at same

table facing same way unless they have BO and/or excess gas and are over

smiling. " This email does not refer to Petitioners. This emai l was another

attempt by Rovet at dry humor and was in no way intended to disparage

Petitioners based on their national origin.

33. Petitioners also point to an email written by Rovet on July 26, 2018, at

5:27 p.m. , to Rodriguez and other board mem bers, stating: " can ' t help but

think of Staff S ergeant Bob Barnes in Platoon -- terrible what happened to

Sergeant Elias, no relation to our President, at the end. " This email does not

refer to Petitioners, was another attempt by Rovet at dry humor, and was in

no way intended to disparage Petitioners based on their national origin.

34. Petitioners also point to an email written by Rovet on July 27, 2018, at

2:26 p.m., stating, " sung to the tune ' Cry For Me Argentina. ' [The song title is

actually ' Don't C r y for Me Argentina' ]. " This is the only email authored by

Rovet that actually mentions Argentina. This email was written by Rovet following a dispute among the board members as to how meetings and votes

should be conducted.

35. Significantly, Rodriguez i nterjected the issue of Argentina into the

disc ussion in reference to the past - oppressive Argentinian government and as

an example of how meetings at Bonavida should not be conducted, which

prompted Rovet to write the email, " sung to the tune ' Cry for Me A rgentina. '"

In response to Rovet ' s email, Rodriguez wrote back to Rovet moments later,

stating: " Please don ' t make fun of the death and disappearance of 30,000

people. " Moments later, Rovet responded: " I love to sing. I have a right to sing

and I shall sin g. Can we sing together? " Later that afternoon, Rovet also sent

an email, stating: " stand and sing with you John — let ['] s stand and sing

together a song called ' Oh That Sweet Lovely Bully Boy. '"

36. At hearing, Rovet testified that the email " sung to the tune ' Cry For

Me Argentina, '" was in reference to the song by Madonna titled: " Don't Cry

For Me Argentina , " which Rovet had just heard prior to writing the email. At

hearing, Rodriguez ack nowledged he is aware of the Ma donna song; that

Rovet made the stat ement " Cry For Me Argentina " as a joke; and that he

(Rodriguez) interjected the issue of Argentina into the conversation before

Rovet ' s email. Rovet ' s emails were another attempt at dry humor and were in

no way intended to disparage Petitioners based on th eir national origin.

37. Petitioners also point to an email written by Rovet to Rodriguez and

others on August 19, 2018, stating: " Let ['] s give Arthur a piece of our hearts

so he might have some peace in his heart and maybe he will respect our

parking ru les. " This email makes no reference to Petitioners ' national origin

and is in no way disparaging against Petitioners based on their national origin.

38. Petitioners also point to an email written by Rovet on September 1,

2018, to various persons regarding " Unauthorized notice at mail room, "

stating:

Well said Elisa, the guy ' s real intentions have been

apparent for some time. Yes I agree, he needs a

shrink. A football team of them, in fact. (It ' s never

easy as an adult if beaten as a child). Meanwhile,

the fencing will go on, and that ' s the main thing. I

don ' t mind Carlos around, even if his intentions are

nefarious, because these little things he comes up

with (a piece of paper, a missing flag and the fence

permit, for example), makes us all step up our ga me and that ' s never a bad thing because there

are cracks and stuff inadvertently falls in them. Almost can ['] t wait for his next amusing

electioneering gambit. Probably the parking system. He dislikes it. But I appreciate the feedback, even if delivered ne gatively, and any help

he has to lend us which can serve to make us

better.

39. This email refers to Rodriguez ' s ongoing disputes and bickering with

board members regarding various issues before the board. The email in no

way disparages Petitioners b ased on their national origin; and, in fact,

demonstrates Rovet ' s tolerance of Rodriguez ' s positions on various issues

pertaining to Bonavida.

40. Petitioners also point to an email from McNamee to Rovet and other

persons on September 2, 2018, at 6:32 p.m ., stating, " Try dictator instead of

director? " This email does not refer to Petitioners and their national origin.

Even if it referred to Rodriguez, however, it illustrates the personal dispute

and bickering between McNamee and Rodriguez over the handling of board

matters and in no way was intended to disparage Petitioners based on their

national origin.

41. The undersig ned carefully considered all the emails received into

evidence which are alleged by Petitioners to be discriminatory against them based o n their national origin, even if every email is not specifically

referenced herein. Suffice it to say that none of the emails demonstrate a

discriminatory animus by Respondents against Petitioners based on their

natio nal origin , and , in any event, Petition ers did not suffer any injuries from

the emails . In sum, Petitioners failed to present persuasive and credible

evidence that Respondents discriminated against them based on their

national origin with respect to any emails.

McNamee ' s " Bullshit " Comment Dur ing t he October 22, 2018, Meeting

42. During this chaotic board meeting, an ongoing parking issue was

discussed. The discussion was supposed to be very brief. After a few minutes, Rodriguez took the floor and while he was speaking on the matter and

discus sing a possible solution, McNamee, who was attending the meeting

over a speakerphone, blurted out: " Stop the bullshit. " Not to be deterred,

Rodriguez spoke for several more minutes explaining his proposal.

43. At hearing, McNamee testified that the " sto p the bullshit " comment

was directed at his wife, who was in the same room with him. McNamee

thought his speakerphone was muted when he made the comment to hi s wife.

McNamee further testified that the same comment had been used by

Rodriguez on prior multip le occasions.

44. The phrase " stop the bullshit " is commonly used in today ' s vernacular.

Even if the comment was directed at Rodriguez, it had nothing to do with

Petitioners ' national origin.

45. In sum, Petitioners failed to present persuasive and credib le evidence

that Respondents discriminated against them based on their national origin

with respect to the " stop the bullshit " comment made by McNamee during the

October 22, 2018, board meeting.

Petitioners ' Retaliation Claim Based on Emails

46. Petit ioners contend Respondents subjected them to retaliation

beginning in March 2019, after the filing of Petitioners ' HUD complaint. In

support of their position, Petitioners again rely on various emails.

47. On March 14, 2019, at 2:49 p.m. , Rodriguez wrote to Elisa Souza and

copied other board members, including Brenda Friend, regarding " Generator

repair quotes, " stating,

Hi Elisa

Please note that the most important issue was not

replied by you.

Are you against transparency?

Are you against to having 3 b ids?

Respectfully

Carlos

48. At 3:05 p.m., Ms. Friend wrote to the other board members, stating:

" Elisa let him ' die ' wondering of that! "

49. At 3:13 p.m., Ms. Friend wrote again to other board members: " It

seems Carlos has adopted the bad so well know n ' leftist ' habit/strategy which

is: ' Always accuse others of what you are and do. ' So people (the masses) of

poor intellect can believe. "

50. Ms. Friend did not testify at the final hearing, so it is unclear what

she meant by the emails she authored on M arch 14, 2019. Nevertheless, a

plain reading of the email string indicates her comments were made in direct

response to emails written by Rodriguez challenging her transparency and

decisions , not in response to Petitioners ' HUD complaint; and, in any event ,

no action was taken against Petitioners in the emails.

51. On April 9, 2019, at 1:40 p.m . , the Bonavida manager wrote an email

to unidentified individuals regarding an insurance carrier ' s approval of a law

firm to defend against Petitioners ' HUD complai nt filed again st Bonavida

and two directors. In response, at 2:18 p.m. , Rovet wrote " another reason not

to do the pool now, " which elicited an email from McNamee to unidentified

persons at 7:44 p.m., stating: " After the association wins the case, can they

sue for expenses incurred for defending this libelous action or does every one

of us sue individually? "

52. Merely questioning whether expenses may be recovered and referring

to Petitioners ' complaint as " libelous " is not retaliation. Again, no action was

taken against Petitioners in these emails.

53. On May 29, 2019, at 10:33 a.m. an u nidentified person wrote to

Ms. Friend and other board members, stating:

Dear Ms [.] Friend

I do not want you to think I ' m ignoring your

questions but I ' m going down to sp eak to the

manager in person about what requires permits what doesn ' t require permits, is there a list of

things that absolutely must be inspected by County inspectors, is there a list of things that absolutely don ' t have to be inspected.

Etc etc etc]

I w ish there were such a list I would love to shove it

in our antagonists face ???

54. At 11:02 a.m., McNamee replied, stating, " Does the City of Aventura

reward whistle blowers for creating revenue? The City of NY does[.] "

55. Rodriguez takes issue with McN amee ' s email a t 11:02 a.m. At hearing,

Rodriguez acknowledged that because of his " scientific preparation and

attitude, " he was " obsess ive on getting the permits… , " and ensuring they

were correct. Based on Rodriguez ' s own testimony, the email authored by

M cNamee was in reference to permits, not Petitioners ' HUD complaint. In

any event, no action was taken against Petitioners in the email.

56. The undersi gned carefully considered all the emails received into

evidence which are alleged by Petitioners to be r etaliation against them

based on their HUD complaint, even if every email is not specifically

referenced herein. Suffice it to say that none of the emails demonstrate a

retaliatory animus by Respondents against Petitioners based on their HUD complaint, and no action was taken against Petitioners in the emails. In sum,

Petitioners ' failed to present persuasive and credible evidence that

Respondents retaliated against them for filing their HUD complaint based on any emails.

Petitioners ' Retaliation Claim Base d on the Cardroom Incident

57 . Finally, Petitioners contend that McNamee ' s inquiry to the Bonavida

manager regarding a gathering of owners, including Rodriguez, at a Bonavida cardroom on December 8, 2019, is further evidence of retaliation.

However, McNam ee ' s inquiry legitimately pertained to whether Rodriguez

had paid the required deposit to reserve the cardroom for the gathering. In

any event, no action was taken against Petitioners.

58. In sum, Petitioners failed to present persuasive and credible evid ence

that Respondents retaliated against them for filing their HUD complaint based on McNamee ' s inquiry to the manager regarding the cardroom.

C ONCLUSIONS OF L AW

59. DOAH has personal and subject matter jurisdiction in this proceeding

pursuant to secti ons 120.569 and 120.57(1), Florida Statutes.

Petitioners ' National Origin Discrimination Claim

60. Florida ' s Fair Housing Act is codified in sections 760.20 through

760.37, Florida Statutes. Section 760.23(2) provides that: " [i]t is unlawful to

discrimina te 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

therewith , because of race, color, national origin, sex, handicap, familial

status, or religion. " (Em phasis added).

61. Florida ' s Fair Housing Act is patterned after the Federal Fair Housing

Act. Federal court decisions interpreting the Federal Fair Housing Act

provide guidance in determining whether a violation of Florida ' s Fair

Housing Act has occurred. B hogaita v. Altamonte Heights Condo . Ass ' n , Inc. ,

765 F. 3d 1277, 1285 (11th Cir. 2014). Section 760.23(2) is patterned after 42 U.S.C. § 3604(b) of the Federal Fair Housing Act; and , therefore, the same

legal analysis applies to each section.

62. Petit ioners have the burden of proving by a preponderance of the

evidence that Respondents violated section 760.23(2) by discriminating against them because of their national origin. § 760.34(5), Fla. Stat. A

" preponderance of the evidence " means the " greater w eight " of the evidence,

or evidence that " more likely than not " tends to prove the fact at issue. Gross

v. Lyons , 763 So. 2d 276, 280. n.1 (Fla. 2000).

63. Complainants alleging intentional discrimination under the Fair

Housing Act must establish a prima facie case. Petitioners can do so either by

direct or circumstantial evidence. Direct evidence is evidence that, if believed,

would prove the existence of discriminatory intent without resort to inference or presumption. Denney v. City of Albany , 247 F. 3d 1172, 1182 (11th Cir.

2001). " [O]nly the most blatant remarks, whose intent could mean nothing

other than to discriminate on the basis of some impermissible factor

constitute direct evidence of discrimination. " Wilson v. B/E Aerospace, Inc. ,

376 F. 3d 107 9, 1086 (11th Cir. 2004); See e.g., E.E.O.C. v. Alton Packaging

Corp. , 901 F. 2d 920, 923 (11th Cir. 1990)(holding that the general manager ' s

statement that " if it was his company he wouldn ' t hire any black people, "

constitutes direct eviden ce). In this ca se, Petitioners presented no direct

evidence of national origin discrimination by Respondents.

64. When no direct evidence of national origin discrimination exists, a

complainant may attempt to establish a prima facie case circumstantially by

demonstratin g that they: (1) are an aggrieved party; (2) suffered an injury

because of the alleged discrimination; and (3) were denied, based on their

national origin, access to services or facilities protected by the Fair Housing

Act that were available to other home owners who were not of Argentinian

national origin . Savanna Club Worship Serv. , Inc. v. Sav anna Club

Homeowners ' Ass ' n, Inc. , 456 F. Supp. 2d 1223, 1232 (S.D. Fla. 2005);

Simhoni v. Mimo on the Beach I Condo. Ass ' n, Inc. , Case No. 18 - 4442 (Fla.

DOAH Feb. 2 6, 2019, p. 18; FCHR May 16, 2019); Austin and Tomayko v.

Saddlebag Lake Owners Ass ' n, Inc. , Case No. 16 - 1799 (Fla. DOAH Sept. 15,

2016; FCHR Dec. 8, 2016); Ludka v. Winston Towers 600 Condo . Ass ' n, Inc. ,

Case No. 13 - 3704 (Fla. DOAH July 17, 2014; FCHR Oct . 9, 2014) ; Cosme v.

Lakeshore Club of Polk Cty . Homeowners Ass ' n, Case No. 11 - 1115 (Fla.

DOAH July 7, 2011; FCHR Aug. 30, 2011) .

65. Not all conduct by a condominium association or board member is

actionable under the Fair Housing Act. The Federal Fair Ho using Act was

passed to ensure fairness and equality in housing, not to become an all -

purpose civility code regulating conduct between neighbors. Lawrence v.

Courtyard at De erwood Ass ' n, Inc. , 318 F. Supp. 2d 1133, 1142 (S.D. Fla.

2004). Where the alleged discriminating conduct, as in the instant case,

occurred after the complainants ' purchase of their unit, which is commonly

referred to as " post - acquisition, " a narrow construction of the types of

actionable conduct is required.

6 6 . In Ge orgia State Confer ence of the NAACP v. City of LaG range,

Georgia , 940 F. 3 d 627 (11th Cir. 2019), the c ourt recently examined the plain

language of 42 U.S.C. § 3604(b) in determining what post - acquisition conduct

is actionable. The court explained that section 3604(b) " make s clear that the

conduct at issue must relate to services provided in connection with the sa le

or rental of a dwelling… . " Construing the plain meaning of the statute

narrowly, the court stated that section 3604(b) only " reaches certain post -

acquisition con duct, including post - acquisition conduct related to the

provision of services, as long as those services are connected to the sale or

rental of a dwelling. " The court " held that a service within the meaning of §

3604(b) must be a housing related service th at is directly connected to the

sale or rental of a dwelling. " Id. at 632 - 34.

67 . At issue in that case were municipality provided electricity, gas,

water, and law enforcement services. The Eleventh Circuit Court of Appeal

concluded that law enforcement s ervices are not provided " in connection with

the sale or rental of a dwelling. " However, basic utility services, such as

electricity, gas, and water, " are inextricably intertwined with the dwelling

itself " and " connected to the sale or rental of a dwelling because they are

fundamental to the ability to inhabit a dwelling. " Id. at 634.

68. Applying the foregoing legal principles to the instant case, Petitioners

failed to establish the second and third prongs of a prima facie case.

Petitioners failed to pres ent sufficient evidence that they suffered an injury

because of national origin discrimination, and that they were denied, based

on their national origin, access to facilities or services protected by the Fair

Housing Act that were available to other non - A rgentinian unit owners.

69. As detailed above, Respondents did not discriminate against

Petitioners because of their national origin and Petitioners hav e not been

injured because of national origin discrimination . Petitioners have resided at

their unit co ntinuously since 2015, without interruption. At no time have

they been restricted from accessing any facilities or services of the

condominium.

70. Petitioners ' claim appears to be that Respondents created a hostile

housing environment based on their nat ional origin. The Eleventh Circuit

Court of Appeal s has not recognized a cause of action under the Fair Housing

Act for a hostile housing environment. Lawrence , 318 F. Supp. 2d at 1133,

1146 ; Simhoni , Case No. 18 - 4442 (Fla. DOAH Feb. 26, 2019, p . 18; FCHR

May 16, 2019); Austin and Tomayko , Case No. 16 - 1799 (Fla. DOAH Sept. 15,

2016; FCHR Dec. 8, 2016).

71. Even if a claim of a hostile housing environment based on national

origin is cognizable, however, Petitioners failed to establish such a claim.

Courts th at have recognized a claim of a hostile housing environment require

that plaintiffs establish that , because of their national origin, they were

subjected to unwelcome conduct that was so severe and pervasive as to alter the conditions of their housing and interfere with their right to the use and

enjoyment of their property. Mohamed v. McLaurin , 390 F. Supp. 3d 520,

548 - 51 (D. Vermont 2019)( " courts that recognize a hostile housing

environment claim under the FHA require a high degree of proof, effectively r equiring a plaintiff to prove that the discriminatory harassment resulted in

constructive eviction " ); Godwin v. City Redevelopment, LLC , 2018 WL

3620482, at *3 (D. Nev. 2018)(unpleasant comments by neighbors including

single offhand comment about plaintiff ' s national origin was not severe or

pervasive); Krieman v. Crystal La ke Apartments Lt d . Partnership , 2006 WL

1519320, at *12 (N.D. Ill. 2006)(recognizing a demanding standard for

establishing host ile housing environment claim -- conduct must be extreme

and not merely rude or unpleasant offensive utterances); Simhoni , (Fla.

DOAH Feb. 26, 2019, p. 18; FCHR May 16, 2019). " Whether a housing

environment is illegally hostile or abusive can be determined only by looking

at all the circumstances, and factors may in clude the frequency of the

discriminatory conduct; its severity; whether it is physically threatening or

humiliating, or a mere offensive utterance; and whether it unreasonably

interfered with the use and enjoyment of the premises. " Jackson v. Park

Place C ondo. Ass ' n , Inc. , 619 Fed. Appx. 699, 704 (10th Cir. 2015).

72. In the present case, Petitioners failed to establish they were subjected

to severe or pervasive conduct by Respondents based on their national origin.

As detailed above, the evidence addu ced at hearing demonstrates that

Petitioners, Rovet, and McNamee were friends, whose relationship

deteriorated once Rodriguez, Rovet, and McNamee joined the board together.

The board meetings , at which some of the alleged conduct is centered , were

chaotic with Petitioners often being disruptive and combative and Rodriguez

inserting the issue of national origin into his communications with other board members. Petitioners, Rovet, and McNamee disagreed on how

Bonavida should be managed and their disputes amou nt to nothing more

than bickering. The single email authored by Rovet that mentions Argentina

was in response to Rodriguez bringing up the issue; was intended as dry

humor; and Rodriguez admits it was sent as a joke. Other emails were also

sent by Rovet wi th the intent of dry humor and not intended to disparage

Petitioners because of their national origin. At no time did Respondents

disparage Petitioners based on their national origin. In sum, the Fair

Housing Act was not written to provide relief for the t ype of bickering and

sparring between neighboring board members and one of the board member ' s

spouse that exists in this case.

Retaliation

73. Section 760.37, the anti - retaliation provision, provides, in pertinent

part: " [i]t is unlawful to coerce, inti midate, threaten, or interfere with any

person in the exercise of, or on account of h er or his having exercised … any

right granted under [the Florida Fair Housing Act]. " Section 760.37 is

patterned after 42 U.S.C. § 3617 of the Federal Fair Housing Act; a nd,

therefore, the same legal analysis applies to each section.

74. As with a claim of disparate treatme nt discrimination under

section 760.23(2), Petitioners have the burden of establishing a claim of

retaliation under section 760.37 by a preponderance o f the evidence.

75. In the present case, Petitioners failed to present direct evidence of

retaliation.

76. To establish a claim of retaliation under section 760.37 based on

circumstantial evidence, Petitioners must show that : (1) Respondents

coerced, int imidated, threatened, or interfered; (2) with Petitioners

enjoyment of a housing right after the exercise of that right; (3) because of

discriminatory animus. Lawrence, 318 F. Supp. 2d at 1133, 1143 - 44 ;

Anderson v. Shaddock Estates Homeowners Ass ' n, Inc. , 2008 WL 10590598,

at *4 (S.D. Fla. 2008); Cosme v. Lakeshore Club of Polk Cty . Homeowners

Ass ' n , (Fla. DOAH July 7, 2011; FCHR Aug. 30, 2011) .

77. As detailed above, Petitioners rely on a series of emails between board

members that were not even sent to t hem and that , with the exception of one

email, were not related to Petitioners ' HUD complaint. The one email

between board members that was actually in reference to Petitioners ' HUD

complaint was not sent to Petitioners, and merely questioned, legitimately ,

whether Respondents could recover legal fees from Petitioners s hould they

prevail for what McNamee considered to be a " libelous " complaint. As stated

above, merely questioning whether legal expenses may be recovered and

referring to Petitioners ' complain t as " libelous " is not retaliation and, in any

event, no action was taken against Petitioners in the emails. Fi nally, the

incident in the card room had nothing to do with Petitioners ' HUD complaint;

it was many months after the filing of the HUD complaint a nd, in any event,

did not result in any adverse action against Petitioners. 3 None of the alleged

3 A mere three - month delay between a complaint and an alleged adverse action is too long to

establish a causal connection of retaliation. Fisher v. SP One, Ltd. , 559 Fed. Appx. 873, 878

(11th Cir. 2014).

conduct was based on a discriminatory animus. Accordingly, Petitioners

f ailed to establish a case of retaliation and their retaliation claim fails. 4

R ECOMMEND ATION

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

R ECOMMENDED that the Florida Commission on Human Relations enter a

final order dismissing the Petition for Relief.

D ONE A ND E NTERED this 6 th day of October, 2020 , in Tallahassee, L eon

County, Florida.

D ARREN A. S CHWARTZ

Administrative Law Judge

Division of Administrative Hearings

The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399 - 3060

(850) 488 - 9675

Fax Filing (850) 921 - 6847

www.doah.state.fl.us

4 On pages 29 and 30 of their Proposed Recommended Order, Petitioners assert that

Respondents also violated sect ion 760.23(3) with regard to an unspecified " chain of emails "

15 days before the July 30 , 2018, board meeting and the posting of the agenda f or the July

30, 2018, meeting. Under section 760.23(3), " [i]t is unlawful to make, print, or publish, or

cause to be made, printed, or published, any notice, statement, or advertisement with respect

to t he sale or rental of a dwelling that indicates any preference, limitation, or discrimination based on … national origin or an intention to make any such preference, limitation, or

discrimination."

However, whether Respondents violated section 760.23(3) wa s not identified as an issue

in the notices of hearing or at the final hearing. It is also not identified as an issue at the

beginning of the parties ' proposed recommended orders. Accordingly, the issue has been

waived.

Even if the undersigned were to ad dress the issue, however, Petitioners ' claim under

section 760.23(3) fails for the same reasons their claim under section 76 0 .23(2) fails.

Respondents did not make, print, or publish, or caused to be made, printed, or published, any notice, statement, or a dvertisement with respect to the sale or rental of a dwelling that

indicates any preference, limitation, or discrimination based on their national origin or an

intention to make any such preference, limitation, or discrimination.

Filed with the Clerk of the

Division of Administrative Hearings

this 6th day of October , 2020 .

C OPIES F URNISHED :

Tammy S. Barton, Agency Clerk

Florida Commission on Human Relations

4075 Esplanade Way , Room 110

Tallahassee, Florida 32399 - 7020

(eServed)

Carlos O. Rodriguez

Monica Bontempi

20100 West Country Club Drive , Unit 1505

Aventura, Florida 33180

(eServed)

S. Jonathan Vine, Esquire

Cole, Scott & Kissane, P.A.

222 Lakeview Avenue , Suite 120

West Palm Beach, Florida 33401

Stuart S. Schneider, Esquire

Cole, Scott & Kissane, P.A.

222 Lakeview Avenue , Suite 120

West Palm Beach, Florida 33401

(eServed)

Cheyenne Costilla, General Counsel

Florida Commission on Human Relations

4075 Esplanade Way, Room 110

Tallahassee, Florida 32399 - 7020

(eServed)

N OTICE OF R IGH T T O S UBMIT E XCEPTIONS

All parties have the right to submit written exceptions within 15 days from

the date of this Recommended Order. Any exceptions to this Recommended Order should be filed with the agency that will issue the Final Order in this

case.