20-005191 Lusheryl Walden vs. Somerset Park Condominium Association, Inc.; Wise Property Management, Inc.; And Thomas Kelleher Status: Closed Recommended Order on Monday, March 8, 2021.

Summary: Petitioner did not meet her burden of proving a prima facie case of housing discrimination.

S TATE OF F LORIDA

D IVISION OF A DMINISTRATIVE H EARINGS

L USHERYL W ALDEN ,

Petitioner ,

vs. Case No. 20 - 5191

S OMERSET P ARK C ONDOMINIUM

A SSOCIATION , I NC . ; W ISE P ROPERTY

M ANAGEMENT , I NC . ; AND T HOMAS

K ELL E HER ,

Respondents .

/

R ECOMMENDED O RDER

The final hearing in this matter was conducted before Administrative Law

Judge Jodi - Ann V. Livingstone of the Division of Administrative Hearings

(DOAH), on February 3, 2021, by Zoom Confe rence.

A PPEARANCES

For Petitioner: Lusheryl Walden , pro se

2866 Somerset Park Drive, #103

Tampa, Florida 33613

For Respondent s : Joseph G. Riopelle, Esquire

Boyd, Richards, Parker and Colonnelli, P.L.

400 North Ashley Drive, Suit e 1150

Tampa, Florida 33602

S TATEMENT OF T HE I SSUE S

Whether Somerset Park Condominium Association, Inc. ; Wise P roperty

Management, Inc. ; and Thomas Kelleher (collectively referred to as

Respondents) discriminated against Lusheryl Walden ( Ms. Walden or

Petitioner), on the basis of Ms. WaldenÔ s disability ; and, if so, the relief to

which Ms. Walden is entitled.

P RELIMINARY S TATEMENT

On April 18, 2020 , Ms. Walden filed a Housing Discrimination Complaint

with the Florida Commission on Human Relations (C ommission), alleging

that Respondents discriminated against her on the basis of her disability in

violation of the Florida Fair Housing Act (the Act), sections 760.20 through

760.37, Florida Statutes . On October 14, 2020 , the Commission notified

Ms. Walden that it found no reasonable cause to believe that Respondents

committed a discriminatory housing practice.

On November 20, 2020 , Ms. Walden filed a Petition for Relief with the

Commission in which she realleged a discriminatory housing practice. The

Comm ission transmitted the Petition for Relief to DOAH to conduct a n

evidentiary hearing.

The final hearing was held on February 3, 2021 , with both parties

present. Petitioner testified on her own behalf and did not offer any exhibits .

Respondents called Thom as Kelleher (Mr. Kelleher) as their sole witness .

Respondents Ô Exhibits 1 through 5 were admitted into evidence.

At the close of the hearing, the parties requested an extended deadline of

15 days after the hearing to file post - hearing submittals. On Febru ary 18,

20 21 , Respondents filed a Proposed Recommended Order. Petitioner did not

file a post - hearing submittal. RespondentsÔ Proposed Recommended Order

was duly considered in preparing this Recommended Order.

All references to the Florida Statutes are to the 2020 version .

F INDINGS OF F ACT

1. Ms. Walden is a 49 - year - old woman. She has a muscle disorder which

causes her to need the assistance of a medical walker. She also uses a cane

and electronic wheelchair.

2. Ms. Walden lives in a rented condominiu m unit at Somerset Park

Condominiums (Somerset Park) , which is located at 2866 Somerset Park

Drive, Unit 103, Tampa, Florida. She has lived in u nit 103 since March 2018 .

3. Unit 103 is privately owned, but is managed, along with the other

condominium units at Somerset Park, by Wise Property Management, Inc.

4 . Mr. Kelleher is employed by Wise Property Management, Inc. , as the

property manager for Somerset Park .

5 . Somerset Park was created by , and continues to be governed by , a

Declaration of Condominium of Somerset Park, A Condominium

( Declaration), which instrument was recorded in 2006 , in the public records

of Hillsborough County, Florida.

6 . The Declaration describes parking spaces as follows:

(c) Parking Spaces. Parking for the Condominium

is part of the Common Elements of the

Condominium on the Condominium Property. The

parking spaces shown on Exhibit 2 of the

Declaration may be assigned to a Unit (which

assignment need not be recorded in the public

records of the County) by the Developer (for so lon g

as the Developer offers a Unit for sale in the

Condominium and thereafter by the Association),

whereupon it shall become Limited Common

Elements of the Unit to which it is assigned. Any

consideration paid for the assignment of the

parking spaces shall be long to the Developer.

A Unit Owner may assign the Limited Common

Element parking space appurtenant to his Unit to

another Unit by written instrument delivered to

(and to be held by) the Association; provided

however that no Unit may be left without one

Limited Common Element parking space. Upon

making such assignment, the Limited Common

Element so assigned shall become an appurtenance

to the Unit(s) and shall pass with the title thereto

regardless of whether or not specifically referenced

in the deed or other instrument of conveyance of

the Unit.

7. According to the Declaration, parking spaces at Somerset Park are

considered Ñlimited common elementsÒ after they are assigned to a unit.

Generally speaking, limited common elements consist of properties,

eq uipment, or structures whose use is reserved to a particular unit to the

exclusion of other units.

8. Units at Somerset Park are individually owned. When a unit is sold by

Somerset Park, the unit comes with its own parking space, which is

considered a lim ited common element Ñappurtenant thereto.Ò

9 . Other types of limited common elements include patios, balconies, and

terraces, as well as air conditioning compressors and water heaters that are

located outside of the condominium unit.

10 . When Ms. Walden mo ved into unit 103 in 2018, she was notified that

she was assigned to parking space number 409. Parking space number 409 is

the limited common element attached to unit 103.

1 1 . In March 2020, Ms. Walden made a verbal request to Mr. Kelleher to

be reassigne d a parking space closer to her unit . Mr. Kelleher told

Ms. Walden that he could not reassign a parking space, but that she was

welcomed to reach out to her neighbors to find someone willing to switch.

1 2 . The Declaration specifically sets forth the means by which an assigned

parking space may be reassigned. It provides that a Ñunit owner may assign

the limited common element parking space appurtenant to his unit to

another unit by written instrument delivered to [Somerset Park.]Ò For a

parking space assig ned to a unit that is still owned by Somerset Park,

Somerset Park may reassign such parking space to another unit.

1 3 . Ms. WaldenÔs assigned parking space Ð parking space number 409 Ð is

four parking spaces away from her unit. Ms. Walden has an informal

agre ement with the resident assigned to parking space number 408 (which is

three spaces away from her unit), who allows her to park in that space.

1 4 . There are six parking spaces closer to Ms. WaldenÔs unit than her

assigned space Ð three to the left and three to the right of the walkway to her

unit. All six parking spaces are assigned as limited common elements to

condominium units not owned by Somerset Park . All six are outside the

control of Respondents who have no authority to force the owners to switch

spa ces with Ms. Walden.

Ultimate Findings of Fact

1 5 . Petitioner failed to prove that there was any reasonable

accommodation Respondents could have given her that would have enabled

h er to park closer to her unit .

1 6 . Respondent s offered a legitimate non - dis criminatory reason for

denying PetitionerÔs request for a parking space closer to her unit .

1 7 . Petitioner failed to prove that Respondent s intentionally discriminated

against Petitioner because of h er disability.

C ONCLUSIONS OF L AW

1 8 . DOAH has jurisdi ction over the parties and the subject matter of this

cause pursuant to sections 120.569 , 120.57(1), and 760.35(5)(b), Florida

Statutes.

1 9 . Ms. Walden alleges Respondents discriminated against her, based on

her disability, by failing to provide her with a parking space closer to her

condominium unit.

20 . The Act prohibits discrimination i n the sale or rental of housing .

Section 760.23 (2) provides that it is an unlawful housing practice to

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

or rental of a dwelling, or in the provision of services or facilities in

connection therewith, because of handicap.

2 1 . Section 760.23 provides , in pertinent part :

(8) It is unlawful to discriminate against any

person in the terms, conditions, or privileges of sale

or rental of a dwelling, or in the provision of

services or facilities in connection with such

dwelling, because of a disability of:

(a) That buyer or rente r;

(b) A person residing in or intending to reside in

that dwelling after it is sold, rented, or made

available; or

(c) Any person associated with the buyer or

renter.

(9) For purposes of subsections (7) and (8),

discrimination includes:

(a) A refusal to permit, at the expense of the

person with a disability, reasonable modifications

of existing premises occupied or to be occupied by

such person if such modifications may be necessary

to afford such person full enjoyment of the

premises; or

(b) A refusa l 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.

2 2 . The burden of proof in an administrative proceeding, absent a

statutory directive to the contrary, is on the party asserting the affirmative of

the issue. Dep Ô t of Transp. v. J.W.C. Co. , 396 So. 2d 778 (Fla. 1st DCA 1981);

see also Dep Ô t of Banking & Fin., Div. of Sec. & Investor Prot. v. Osborne Stern

& Co. , 670 S o. 2d 932, 935 (Fla. 1996). In this case, Petitioner has the burden

of proving by a preponderance of the evidence that Respondents violated the

Act by failing to provide a reasonable accommodation for P etitioner Ô s

disability. SecÔy, U.S. DepÔt of HUD, on b ehalf of Herron v. Blackwell ,

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

2 3 . The Act is patterned after the Federal Fair Housing Act. The

Commission and Florida courts have determined that Federal court decisions

interpreting the Federal Fair Housing Act provide guidance in construing

provisions of the Act . See Dornbach v. Holley , 854 So. 2d 211, 213 (Fla. 2d

DCA 2002) .

2 4 . When evaluating reasonable accommodation housing discrimination

claims, courts apply the three - part, burden - shifting framework set forth in

Mc Donnell Douglas Corporation v. Green , 411 U.S. 792 (1973) . See , e.g. ,

Blackwell , 908 F.2d at 870 . (ÑWe agree with the ALJ that the three - part

burden of proof test developed in McDonnell Douglas governs in this case . Ò ) .

2 5 . Under the McDonnell Douglas frame work, Petitioner bears the initial

burden of establishing a prima facie case of housing discrimination based on

her disability . Once this burden is met, R espondent s ha ve the burden of

articulating a legitimate non - discriminatory basis for its action.

2 6 . If R espondent s satisf y their burden, P etitioner must then prove that

the legitimate reason asserted by R espondent s is a mere pretext for housing

discrimination. Blackwell , 908 F.2d at 870; Savanna Club Worship Serv. v.

Savanna Club Homeowners Ô Ass Ô n , 456 F . Supp. 2d 1223, 1231 (S.D. Fla.

2005) .

2 7 . To establish a prima facie case of housing discrimination by failure to

provide a reasonable accommodation, P etitioner must demonstrate that: (1)

she is disabled or handicapped ; (2) she requested a reasonable

acc ommodation; (3) such accommodation was necessary to afford her an

opportunity to use and enjoy her dwelling; and (4) Respondents refused to

make the requested accommodation. Solodar v. Old Port Cove Lake Point

Tower Condo. Ass Ô n , 2012 WL 1570063 at *5 (S.D . Fla. 2012).

2 8 . Petitioner demonstrated , by a preponderance of the evidence , three of

the four elements of her prima facie case . The uncontradicted, credible

testimony of Petitioner established that she has a disability that causes her

to have difficulty walking; a parking space closer to her unit is necessary for

the use and enjoyment of her condominium unit ; and Respondents refused to

provide a closer parking space.

2 9 . Petitioner did make a request to Respondents for an accommodation;

however, she did not prove that the accommodation she requested was

reasonable.

30 . T he Federal Fair Housing Act regulations provide a specific example

that illustrates when it would be a reasonable accommodation to provide a

closer parking space for a mobility impaired resident of an apartment

complex. 24 C.F.R. § 100.204 provides, in pertinent part:

§ 100.204 Reasonable accommodations.

(a) It shall be unlawful for any person to refuse to

make reasonable accommodations in rules, policies,

practices, or services, when such accommodations

may be necessary to afford a handicapped person

equal opportunity to use and enjoy a dwelling unit,

including public and common use areas.

(b) The application of this section may be

illustrated by the following examples:

* * *

Example (2): Progress Gardens is a 300 unit

apartment complex with 450 parking spaces which

are available to tenants and guests of Progress

Gardens on a first come first served basis. John

applies for housing in Progress Gardens. John is

mobility impair ed and is unable to walk more than

a short distance and therefore requests that a

parking space near his unit be reserved for him so

he will not have to walk very far to get to his

apartment. It is a violation of § 100.204 for the

owner or manager of Progr ess Gardens to refuse to

make this accommodation. Without a reserved

space, John might be unable to live in Progress

Gardens at all or, when he has to park in a space

far from his unit, might have great difficulty

getting from his car to his apartment unit . The

accommodation therefore is necessary to afford

John an equal opportunity to use and enjoy a

dwelling. The accommodation is reasonable because

it is feasible and practical under the circumstances.

3 1 . In accordance with this example , courts have held that condominium

associations must provide handicapped residents with reasonable

accommodations in the form of designated parking spaces closer to their unit

so as to allow them equal use and enjoyment of their dwelling and facilities.

3 2 . Depending on t he facts and circumstances, a disabled tenant may

request a reasonable accommodation related to parking that would deviate

from the normal parking rules and regulations of a condominium

association . In Shapiro v. Cadman Towers, Inc. , 51 F.3d 328 (2nd Cir. 1995) ,

the c ourt found that modification of the defendantÔs Ñfirst come/first servedÒ

parking policy for awarding parking spaces on the ground floor was likely a

required reasonable accommodation because of the tenantÔs handicap .

3 3 . However, w hether an a ccommodation is reasonable is a highly fact -

specific analysis , requiring a case - by - case determination. Loren v. Sasser , 309

F.3d 1296, 1302 (11th Cir. 2002); Solodar , 2012 WL 1570063 at *5 . In this

case, Petitioner Ô s request for the assignment of a parking space closer to her

condominium unit sounds, on its face, like a reasonable request. But for

Respondents, acquiescing to this request i s no t possi ble.

3 4 . Residents at Somerset Park are legally entitled to the parking spaces

appurtenant to the units they occupy. All of the parking spaces closer to

PetitionerÔs unit are limited common elements that have been conveyed to

specific condominium unit owners. Respondents do not own or have rights to

the parking spaces closer to PetitionerÔs unit, and, therefore, do not have the

legal power to unilaterally assign away those parking spaces. See U . S . v.

Fairways Villas Condo . AssÔn. , 879 F. Supp. 798 (N.D. Ohio 1995), vacated ,

920 F. Supp. 115 (N.D. Ohio 1996). 1 Respondents could designate an

unassigned parking spac e 2 to Petitioner, but there are no unassigned parking

spaces closer to PetitionerÔs unit than where she currently parks.

3 5 . Respondents encouraged Petitioner to ask her neighbors to switch

parking spaces. Petitioner saw some success in doing so Ð she is n ow parking

in a space that is one spot closer to her unit. There are very few parking

spaces that are closer to PetitionerÔs unit, and those spaces are not under

RespondentsÔ control.

3 6 . Because Petitioner did not meet h er burden of proving a prima facie

case of housing discrimination , the undersigned conclude s that a

discriminatory housing practice did not occur.

R ECOMMENDATION

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

R ECOMMENDED that the Florida Commission on Human Relation s issue a

final order dismissing PetitionerÔ s Petition for Relief.

1 Fairway Villas was vacated through settlement agreement during the pendency of an

appeal.

2 Somerset Park h as unassigned parking spaces that are not reserved as limited common

elements.

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

County, Florida.

S

J ODI - A NN V. L IVINGSTONE

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 March , 2021 .

C OPIES F URNISHED :

Tammy S. Barton, Agency Clerk Joseph G. Riopelle, Esquire

Florida Commission on Human Relations Boyd, Richards, Parker and Colonnelli, P.L.

4075 Esplanade Way , Room 110 400 North Ashley Drive , Suite 1150

Tal lahassee, Florida 32399 - 7020 Tampa, Florida 33602

Lusheryl Walden Cheyanne Costilla, General Counsel

2866 Somerset Park Drive , #103 Florida Commission on Human Relations

Tampa, Florida 33613 4075 Esplanade Way , Room 110

Tallahassee, Florida 32399

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 o f this Recommended Order. Any exceptions to this Recommended

Order should be filed with the agency that will issue the Final Order in this

case.