20-001592 Yocelin Barbarrosa vs. Goldenrod Pointe Partners, Ltd, Et Al. Status: Closed Recommended Order on Wednesday, September 2, 2020.

Summary: Petitioner failed to show that she was discriminated against with regard to the terms and conditions of housing based on disability or familial status. Recommend dismissal of Complaint.

P RELIMINARY S TATEMENT

On February 4, 2019, Petitioner, Yocelin Barbarossa, filed a Housing

Charge of Discrimination ( " Charge " ) with the Florida Commission on Human

Relations ( " FCHR " ) alleging that Respondent s , Goldenrod Pointe Partners,

Ltd., SAS Goldenrod Pointe Managers, LLC, Concord Management, Ltd., and

Asantewa Thomas Forbes (collec tively referred to herein as " Respondent " or

" Goldenrod ") violated section s 760. 23(2), 760.37, 760.23(8) and (9)(b) , Florida

Statutes (the Florida Fair Housing Act or " F FHA" ), by discriminating against

h er on the basis of h er familial status and disability of her son .

On February 25, 2020 , t he FCHR issued a Determination ( No Cause ) , by

which the FCHR determined that reasonable cause did not exist to believe that an unlawful housing practice occurred.

On Ma rch 27, 2020 , Petitioner filed a Housing Discrim ination Complaint

("Complaint") with the FCHR. On the same day, t he Complaint was

transmitted to the Division of Administrative Hearings (" DOAH ") , to conduct

a final hearing.

The final hearing was initially set for June 5, 2020. The parties requested,

an d were granted, a continuance a nd the final hearing commenced as

re scheduled on July 16, 2020 . At the final hearing, Petitioner testified on

h er own behalf, and Petitioner's Exhibits 1 through 20 were admitted in

evidence.

1 Respondent presented the testim ony of the following: Asantewa

Thomas Forbes , Assistant Community Director for Goldenrod Pointe; and

Sharon Ivey, Vice - President of Compliance for Concord Management Ltd.

1 Petitioner’s exhibits were not indexed and numbered. For purposes of referencing

Petitioner ’s exhibits are numbered sequentially in the order in which they were admitted

during the he aring. This is the order in which they are listed in the hearing T ranscript.

Respondent's Exhibits 1 through 4, 6, 7, 11 through 14, 16 through 18, 23, 28,

30, a nd 32 through 35 were admitted in evidence.

The one - volume Transcript was filed on August 4, 2020. Both parties

timely filed proposed recommended orders , which were taken into

consideration in t he drafting of this Recommended Order . Unless otherwise

indi cated, citations to the Florida Statutes refer to the version in effect at the

time of the alleged discrimination.

F INDINGS OF F ACT

1. This matter involves a Complaint of hou sing discrimination filed by

Petitioner against Respondent. Petitioner was a resi dent at the Goldenrod

Pointe residential community from February 2017 until December 2018. The

incidents at issue here occurred in connection with Petitioner’s tenancy at

Goldenrod Pointe, an affordable residential apartment development located in Winter P ark, Florida.

2. This property is owned by Goldenrod Pointe Partners, Ltd. , and

managed by Concord Management, Ltd. Ms. Forbes is the Assistant

Community Director for Goldenrod Pointe.

3. Petitioner moved into the property with three minor children on

Febr u ary 18, 2017, pursuant to a one - year lease agreement with Respondent

from February 18, 2017 , through February 28, 2018. The lease was renewed

for a second term for the period of March 1, 2018, to February 28, 2019.

4. Petitioner alleges that Respondent en gaged in discriminatory housing

practices on the basis of familial status and her minor child's, Adrian,

disability . More specifically, Petitioner alleges that Respondent:

a. requested that Petitioner complete a form

regarding her request for a service ani mal;

b. improperly questioned Petitioner's minor son

about an arrest that occurred on property;

c. denied Petitioner's son full use and enjoyment to

the premises after his arrest;

d. made repeated unwanted phone calls to

Petitioner outside of business h ours;

e. improperly denied Petitioner's request to transfer

to a balcony unit to accommodate the needs of her son;

f. improper entry into Petitioner's unit by Maintenance staff; and

g. assessed Petitioner with unwarranted fines and fees at move - out.

Se rvice Animal

5. In August 2018, Petitioner decided she wanted to provide a service

animal for her son . Petitioner purchased a dog to be an "emotional

companion" for Adrian . The dog was not approved for use at school or trained

to provide any particular ser vices for Adrian . The dog was left with its

breeder at the time Petitioner initially inquired about allowing the dog in the

apartment.

6. Petitioner approached Ms. Forbes on August 27, 2018, about the need

for the dog . Petitioner completed a form that was provided by Respondent

and provided medi cal documentation from a health care provider showing

Adrian's diagnosis of Attention - Deficit/Hyper a ctivity Disorder ("ADHD") .

However nothing in the documentation referenced Adrian's need for an

emotional support ani mal.

7. Ms. Forbes forwarded the request form and additional materials to

Respondent's Compliance Department , which determined additional

information was needed. The Compliance Department instructed Ms. Forbes

to have Petitioner complete another verificati on form which would confirm

the need for an emotional support animal . This form was provided to

Petitioner by Ms. Forbes.

8. On September 25, 2018, Petitioner did not provide the requested

verification form, but instead provided Ms. Forbes with additional documents

from a medical professional indicating Adrian's qualification for a service

animal . This in turn was provided to the Compliance Department on

September 26, 2018 . Petitioner's request for a reasonable accommodation, for

a service animal to reside on the premises without a pet deposit was approved the next day, on September 27, 2018.

9. Respondent immediately approved Petitioner's request for an emotional

support pet as soon as it received the verification that the animal was needed

as a reasonable accommodation . Accordingly, no discrimination occurred.

Questioning the Details of Petitioner's Son's Arrest

10. On April 28, 2018, Petitioner’s son Adrian was arrested fo r aggravated

battery against Petitioner , which occurred in the Goldenrod Pointe

apart ment. Petitioner alleges that, following Adrian’s arrest for aggravated

battery, Ms. Forbes “interrogated” Adrian about the incident.

11. Ms. Forbes admits that she called Petitioner to the office to discuss the

incident out of concern for the other reside nts of the complex . Ms. Forbes

denies that she requested Adrian to attend or that she questioned him

directly about the incident . Petitioner brought her son to the meeting. At or

about the same time, Petitioner and Adrian claimed that other kids were

ringi ng their bell or knocking on their door and running away . Ms. Forbes

questioned Adrian regarding whether he could identify those other children.

12. Goldenrod Pointe holds a Crime Free Multi - Housing Program

certificate issued by the Orange County Sheriff’s Office for her participation

in training on how to ke ep the apartment complex safe. A copy of this police

report was automatically issued to Goldenrod Pointe — even without requesting it — by virtue of its participation in the Crime Free Multi - Housing

Program . The police report showed that Adrian was arrested for aggravated

assault with a deadly weapon and domestic battery against Petitioner , that

he threw kniv es in the direction of his baby sister , and punched a hole in the

wall in the apartment during the in cident.

13. After Ms. Forbes received the police report, Petitioner was asked to

complete an incident report describing the events leading to the arrest . She

completed this form on or about May 23, 2018 . No evidence was presented

suggesting that the inform ation regarding what happened was solicited due

to Adrian's disability. Rather, the information was requested because

Respondent has a duty to ensure the safety of it s other residents , and Adrian

was arrested for very serious charges on Respondent's proper ty.

Use and Enjoyment of the Premises

14. Petitioner's Complaint alleges that Respondent "denied her son access

to the facilities at the apartment complex ." The Complaint does not provide

information regarding which son or what facilities . At final hearing ,

Petitioner alleged that after Adrian's arrest, she was told by Ms. Forbes that

Adrian could not go outside on the apartment complex's property.

15. Petitioner admitted she has nothing in writing memorializing this

alleged directive , or evidence that Adri an refrained from using the premises.

16. Ms. Forbes credibly and convincingly testified that she never provided

such a directive to Petitioner or her son to preclude his access to the outdoor

facilities or community amenities.

Unwanted Telephone Calls Out side Business Hours

17. Petitioner alleges that after her son's arrest, she received one or more

phone calls from a restricted or unknown phone number after business hours .

She assumed they were from Ms. Forbes. Petitioner failed to provide phone

records, or any other documentation, evidencing the timing, frequency, or

origination of these calls.

18. Ms. Forbes denies calling Petitioner outside of business hours or for

any reason other than apartment management related reasons . Ms. Forbes

admitted she conta cted Petitioner regarding Adrian's spray painting graffiti

on the premises . This contact had no connection to Adrian's disability .

Ms. Forbes explained that she would contact the parent of any child who was

defacing the apartment community property.

Reques t to Transfer to Balcony Unit

19. At the time Petitioner considered leasing at Goldenrod Pointe, she

visited a sister property that had three bedroom units with balconies .

Petitioner claims she was promised a balcony unit at Goldenrod Pointe.

20. None of t he units at Goldenrod Pointe have a balcony . Several units

have a decorative "balcony - like" railing under a window but there is no

functional balcony in any of the units which would provide the unit with

additional space. Petitioner did not view her apartm ent before her move - in

date. Despite knowing once she moved in that the apartment had no balcony,

Petitioner remained in the apartment throughout the initial lease term and

renewed the lease for another year.

21. At no time did Petitioner provide any writt en form or request to

transfer to a balcony unit on property . Petitioner claims she submitted a

transfer request to the Orlando Housing Authority (which provides a rent subsidy) for a larger unit with a balcony . This request was not put into

evidence nor w as it received by Respondent.

22. Petitioner alleges that a larger unit with a balcony would somehow

make it easier to accommodate her son's disability . However no evidence was

presented to demonstrate that such a request was made, how it would assist

with Adrian's ADHD, or how it would be "reasonable" in light of the fact that

none of the units were built with a balcony.

Entry Into Petitioner's Apartment by Maintenance

23. Petitioner’s lease provides that entry may be made into an occupied

unit by service personnel for the purpose of providing maintenance services

during business hours.

24. A maintenance work order was made for the air - conditioning system

in the unit directly above Petitioner’s apartment on September 12, 2018.

Maintenance needed to enter Pe titioner's apartment to access the air handler

for her neighbor's apartment . Given the extreme heat that day, Maintenance

considered this repair a priority.

25 . Prior to entering any resident's apartment, Maintenance will knock

three times.

26 . Petitioner alleges that she had just gotten out of the shower and was

undressed at the time Maintenance knocked . She chose not to respond

because she felt like she was being harassed and she had not made a

maintenance request for her own apartment . She alleges that M aintenance

entered without her permission and that the three knocks came in rapid

succession , which did not give her adequate time to cover herself.

27. After this entry occurred, Petitioner complained to Ms. Forbes .

Ms. Forbes investigated, viewed the wor k order, talked to Maintenance

personnel , and verified that Respondent's entry protocol was followed.

28. Petitioner presented no evidence that the unwanted entry into her

apartment was unwarranted or based upon her son's disability.

Fines and Move - Out Fe es

29. Petitioner alleges that she was assessed trash fines for a

discriminatory purpose after her son Adrian’s arrest.

30. The Resident Handbook sets forth the community trash policy as

follows:

Disposal of Trash

Improper disposal of trash anywhere on t he

community (including trash left outside of front

doors, or by the dumpster or compactor areas) may

result in a fine. All trash is to be placed in bags and

all boxes are to be flattened before being placed in the dumpster or compactor. If a dumpster or c ompactor is full, please retur n after the container

is emptied , and refrain from leaving trash outside

the dumpster or compactor.

31. In 2017, before Adrian's arrest, Petitioner was issued a written

warning for violating the trash policy. On March 30, 201 8, before Adrian's

arrest, Petitioner received a fine of $25.00 for leaving one bag of trash outside

of the dumpster or compactor. On October 30, 2018, Petitioner received a fine

of $50.00 for leaving two bags of trash outside of the dumpster or compactor .

32. Respondent alleges that the written warning and both subsequent

fines were issued for violations of the community trash disposal policy .

Petitioner admitted that the March 30, 2018, fine was valid , but alleges that

the October 30, 2018, fine was d iscriminatory.

33. Petitioner failed to provide any evidence that the latter fine was

assessed for a discriminatory purpose.

34. Petitioner also complains that at move - out she was improperly

penalized for a gym access card . Petitioner believes that he r ol dest son

accidently picked up someone else's gym access card while using the facility .

Petitioner does not dispute that the card , which she returned at move - out ,

was not the card assigned upon her move - in.

35. Petitioner was assessed a $50.00 fine at move - out for failing to return

the card assigned to her household. No evidence was presented to show that

this fine was related in any way to the disability of Petitioner's son or

inconsistent with Respondent's policies.

36. Petitioner also claims that when she broached the subject of early

termination of her lease agreement, she was told by Ms. Forbes that she would incur an early termination penalty as defined in the lease.

37. Petitioner opted for Option 2 in the lease agreement , which provides

early terminat ion may result in liability "for future rents as they become due

under the lease."

38. Petitioner claims that this threat of an early termination fee caused

her to postpone moving. However, Petitioner, in fact, entered into a mutual

rescission agreement wi th Goldenrod Pointe, approved by the Orlando

Housing A uthority, pursuant to which Petitioner was permitted to terminate

her lease early for medical reasons , and which waived the early termination

fee.

C ONCLUSIONS OF L AW

3 9 . DOAH has jurisdiction over the parties and subject matter in this

case. §§ 120.569 and 120.57, Fla. Stat.

40. Section 760.23 states that it is an unlawful housing practice to

discriminate against any person in the terms, conditions, or privileges of sale

or rental of a dwelling, or in t he provision of services or facilities in

connection therewith, because of handicap or familial status.

41. The FCHR and Florida courts have determined that federal

discrimination laws should be used as guidance when constru ing provisions

of section 760 . S ee Valenzuela v. GlobeGround N. Am., LLC , 18 So. 3d 17 (Fla.

3d DCA 2009); Brand v. Fla. Power Corp. , 633 So. 2d 504, 509 (Fla. 1st DCA

1994).

Establishing Discrimination

42. Discriminatory intent can be established through direct or

circumstantial evidenc e . Schoenfeld v. Babbitt , 168 F.3d 1257, 1266 (11th Cir.

1999). Direct evidence of discrimination is evidence that, if believed,

establishes the existence of discriminatory intent behind an employment

decision without inference or presumption. Maynard v. B d. of Regents , 342

F.3d 1281, 1289 (11th Cir. 2003).

43. "Direct evidence is composed of 'only the most blatant remarks, whose

intent could be nothing other than to discriminate' on the basis of some

impermissible factor." Schoenfeld , 168 F.3d at 1257, 126 6. Petitioner

presented no direct evidence of handicap or familial status discrimination .

44. "[D]irect evidence of intent is often unavailable." Shealy v. City of

Albany, Ga. , 89 F.3d 804, 806 (11th Cir. 1996). For this reason, those who

claim to be victi ms of intentional discrimination "are permitted to establish

their cases through inferential and circumstantial proof." Kline v. Tenn.

Valley Auth. , 128 F.3d 337, 348 (6th Cir. 1997).

45. Where a complainant attempts to prove intentional discrimination

usi ng circumstantial evidence, the shifting burden analysis established by

the United States Supreme Court in McDonnell Douglas Corporation . v.

Green , 411 U.S. 792 (1973), and Texas Department of Community Affairs v.

Burdine, 450 U.S. 248 (1981), is applied. Under this well - established model of

proof, the complainant bears the initial burden of establishing a prima facie case of discrimination. Once this burden is met, the respondent has the

burd en of articulating a legitimate non - discriminatory basis for the adverse

action. The tenant must then come forward with specific evidence

demonstrating that the reasons given by the respondent are a pretext for

discrimination.

Housing Discrimination

46 . In the instant case, Petitioner alleges that s he and her family wer e

unlawfully discriminated against regarding the terms and conditions of their

residency at Goldenrod Pointe because of her son's handicap.

47 . In order to establish a violation of s ection 760.23(2), the following

elements must be proven by a preponderance of the evidence:

(1) Petitioner belongs to a class of persons whom

the Florida Fair Housing Act protects from

unlawful discrimination because of race, color, national origin, sex, disability, familial status, or religion;

(2) Petitioner must have been qualified, ready, willing, and able to receive the services or use facilities consistent with the terms, polici es, and procedures of Respondent;

(3) Petitioner must have requested services or use of facilities, or attempted to use facilities consistent w ith the terms and conditions, policies, and

procedures established by Respondent for all

persons who were qualified or eligible for services

or use of facilities; and

(4) Respondents, with knowledge of Petitioner's

protected class, must have willfully fa iled or

refused to provide services to Petitioner or permit use of the facilities under the same terms and

conditions that were applicable to all persons who

were qualified or eligible for services or use of the facilities.

See, e.g., Noah v. Assor, 379 F. Supp. 3d 1284, 1298 (S.D. Fla. 2019);

Woolington v. 1st Orlando Real Estate Servs., Inc., 2011 WL 3919715, at *2.

Petitioner Failed to Meet Her Burden of Proof

4 8 . In this case, Petitioner provided no direct evidence of discrimination.

Accordingly , the burden - shifting analysis is appropriate. Petitioner

demonstrated by a preponderance of the evidence the f irst two elements of

the case -- that her son, Adrian, suffers from a handicap and that the family

was qualified, ready, willing, and able to recei ve the services or use facilities

consistent with the terms, policies, and procedures of Respondent .

49 . However, Petitioner failed to demonstrate that she requested certain

services or use of the facilities in accordance with the policies and procedures

o f Respondent , and that Respondent willfully failed or refused to provide such

services. She did not meet her burden with regard to the third and fourth

elements.

50 . To summarize, Petitioner was not denied the ability to have a service

animal as an accommo dation. In fact , her request was immediately approved

upon receipt of the appropriate documentation regarding the need for it.

51 . Petitioner was questioned, in accordance with Respondent's policies

and procedures after her son's arrest. This was not due t o his disability , but

rather due to the seriousness of the alleged crimes committed on

Respondent's property.

52 . No credible proof was presented that Petitioner was inappropriately

called by Ms. Forbes outside of regular business hours, that she was denie d a

request for a transfer to a balcony unit, or that Respondent deviated in any

way from its own procedures and protocols with regard to apartment entry

for maintenance , the assessment of fees for trash removal, or the gym card.

Petitioner was granted ear ly termination of her lease without having to pay

any early termination fee. If anything, in this regard, Petitioner was likely

treated better than other residents with the same lease terms.

53 . Even assuming arguendo that Petitioner proved the elements of a

prima facie case of discrimination, Respondent offered legitimate, non -

discriminatory reasons for any adverse actions. It is eminently reasonable

that Respondent would want an explanation for the arrest of a minor on its

property. It is reasonable that Respondent would contact Petitioner regarding her son's graffiti of the premises. It is reasonable that Petitioner would

receive trash fines after being warned and continuing to disobey the trash

policies for the complex. It is legitimate that an apartment complex with no

balconies wou ld not offer a balcony unit to P etitioner. Similarly, it is entirely

reasonable that Maintenance would enter Petitioner's apartment when

needed to fix her neighbor's air conditioning on a hot summer day in Florida.

54 . While t he undersigned applauds Petitioner's efforts in trying to

provide the best for her children while assisting her son with his disability,

there is no basis in the record to determine that Petitioner was discriminated

against on the basis of this handicap or her familial status. Therefore, the

discrimination charge should be dismissed, and none of the damages claimed

by Pet itioner should be awarded to her.

R ECOMMENDATION

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

R ECOMMENDED that t he Florida Commission on Human Relations issue a

final order dismissin g the Complaint.

D ONE A ND E NTERED this 2nd day of September , 2020 , in Tallahassee,

Leon County, Florida.

M ARY L I C REASY

Administrative Law Judge

Division of Administrative Hearings

T he DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399 - 3060

(850) 488 - 9675

Fax Filing (850) 921 - 6847

www.doah.state.fl.us

Filed with the Clerk of the

Division of Administrative Hearings

this 2nd day of September , 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)

Yocelin Barbarrosa

366 West 13th Street

Hialeah, Florida 33010

(eServed)

Elizabeth H. Howanitz, Esquire

Wicker Sm ith O'Hara McCoy & Ford, P.A.

50 North Laura Street, Suite 2700

Jacksonville, Florida 32202

(eServed)

Cheyenne Costilla, General Counsel

Florida Commission on Human Relations

4075 Esplanade Way , Room 110

Tallahassee, Florida 32399 - 7020

(eServed)

N OTICE OF R IGHT 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 c ase.