21-001302
Carlos Cordova vs.
Solabella Condo. Association, Inc. Et Al, Miguel Quintero, And Reliable Property Management Services, Inc.
Status: Closed
Recommended Order on Friday, July 16, 2021.
Recommended Order on Friday, July 16, 2021.
1S TATE OF F LORIDA
6D IVISION OF A DMINISTRATIVE H EARINGS
13C ARLOS C ORDOVA ,
17Petitioner ,
18vs. Case No. 21 - 1302
24S OLABELLA C ONDO . A SSOCIATION , I NC . ,
34E T A L .; M IGUEL Q UINTERO ; A ND
45R ELIABLE P ROPERTY M ANAGEMENT
51S ERVICES , I NC . ,
56Respondents .
58/
59R ECOMMENDED O RDER
63Pursuant to notice, a final hearing in this case was conducted before
75Administrative Law Judge Mary Li Creasy by Zoom conference on June 17 ,
87202 1 .
90A PPEARANCES
92For Petitioner: Carlos Cordova , pro se
98Apartment 105
10017345 Northwest 7th Avenue
104Miami Gardens, Florida 33169
108For Respondent s : Jeremy Koss, Esquire
115Koss Law Firm, P.A.
119Post Office Box 565661
123Miami, Florida 33256
126S TATEMENT OF T HE I SSUE S
134Whether Petitioner was unlawfully discriminated against and denied a
143reasonable accommodati on for h is mother Ô s alleged disability by Respondent s
157regarding access to housing; and, if so, what is the appropriate remedy.
169P RELIMINARY S TATEMENT
173In November 2020, Petitioner, C a rlos Cordova, filed a Complaint with t he
187United States Department of Housi ng and Urban Development ( Ñ HUD Ò ) ,
201charging Respondents with discriminating against him in housing on the
211basis of his mother Ô s disability . HUD transferred the complaint to the Florida
226Commission on Human Relations ( Ñ FCHR Ò ) for investigation and a
239determina tion of whether discrimination occurred. On March 10, 2021 , FCHR
250issued a Determination, by which FCHR determined that reasonable cause
260did not exist to believe that an unlawful housing practice occurred.
271On April 12, 2021, Petitioner timely filed a Peti tion for Relief with FCHR. 1
286FCHR transmitted the p etition to the Division of Administrative Hearings
297( Ñ DOAH Ò ) on April 14, 2021, for the assignment of an administrative law
313judge ( Ñ ALJ Ò ) to conduct a final hearing.
324The final hearing was held as scheduled on June 17, 2021. At the final
338hearing, Petitioner appeared pro se and testified on h is own behalf . 2 No
353exhibits were admitted on behalf of Petitioner. 3 Respondent s , Solabella
3641 The timeliness of PetitionerÔs filing was contested by RespondentsÔ Motion to Dismiss ,
377which was denied by Order dated May 19, 2021.
3862 Although the hearing was scheduled by Zoom, on the m orning of the hearing, Petitioner
402claimed he was unable to connect video on his computer and agreed to appear only
417telephonically rather than by video. Respondent acquiesced to PetitionerÔs request to appear
429by telephone only rather than delay the proceedi ngs.
4383 Prior to hearing , Petitioner electronically filed a series of e xhibits marked as A through N.
455However , the parties were notified , in the May 4, 2021 , Notice of Hearing b y Zoom
471Conference , that the proposed exhibits were to be provided by mail or hand delivery to
486DOAH on or before June 14, 2021. Further, Petitioner was reminded of the need to provide
502hard copies to the ALJ during the pre - hearing telephone conference on June 14, 2021 , and
519indicated his intent to provide the necessary har d copies.
529On June 8, 2021, in an Order on Amended Motion for Sanctions, the undersigned provided
544further specific instructions regarding the presentation of exhibits, stating :
554Proposed exhibits furnished to the Administrative Law Judge
562must be: (1) in a three - r ing binder; (2) properly tabbed by
576Condominium Association , Inc. ( Ñ Solabella Ò ) ; Miguel Quintero ; and Reliable
588Prope rty Management Services , Inc. ( Ñ Reliable Ò ) (collectively referred to as
602Ñ Respondents Ò ) , presented the testimony of Respondent, Miguel Quintero,
613p resident of Solabella . Respondent Ô s Exhibits 1 through 19, 21 , and 24 were
629admitted in evidence.
632Neither party ordered a transcript of the final hearing. Both parties
643timely filed proposed recommended orders, which were taken into
652consideration in the drafting of this Recommended Order. Unless otherwise
662indicated, citations to the Florida Statutes refer to the vers ion in effect at the
677time of the alleged discrimination .
683exhibit number corresponding to the exhibit numbers outlined
691in the pre - hearing stipulation; and (3) preferably, Bate -
702stamped or numbered with sequential page numbers for each
711page of each exhibit, particularly lengthy co mposite exhibits.
720Petitioner repeatedly refused to provide documents in response to RespondentsÔ Requests
731for Production. More specifically , Petitioner failed to produce any medical records pertaining
743to his motherÔs alleged disability or the alleged damages he suffered by Respondent s Ô removal
759of P etitionerÔs gardens and koi pond. In an Order on Motion to Compel and f or Sanctions,
777dated June 9, 2021, Petitioner was directed to immediately produce the requested documents
790and advised that failure to do so would result in the exclusion of those documents from final
807hearing. Respondent s issued a lawful subpoena to Dr. Carlos Danger, PetitionerÔs motherÔs
820purported physician. Dr . Danger did not seek protection from the subpoena and failed to
835appear for his deposition or to provide the requested documents. It should be noted that
850P etitioner attempted to preclude Dr. Danger Ô s deposition by filing an objection to the
866subpoena which was denied (See Order Denying Motion to Strike Subpoena dated May 24,
8802021). Des pite the O rder compelling the production and testimony, Petitioner failed to
894respond. Further, on the day prior to the final hearing, Petitioner filed a notice , entitled,
909ÑBetter Planet, Better Future , Ò in which for the first time he indicated his refusal to provide
926the undersigned hard copies of his intended exhibits due to his concern for the environment.
941At the final hearing, Respondents renewed their Motion for Sanctions arguing that
953PetitionerÔs on - going refusal to produce documents critical to R espondentsÔ defense
966warranted the sanction of excluding all proposed exhibits of Petitioner. Petitioner
977acknowledged that he had no intention of providing the materials requested and understood
990the consequences. He intended to produce only those documents that he believed helpful to
1004his case or that he deemed Ñrelevant.Ò Accordingly, as a discovery sanction and for
1018PetitionerÔs repeated willful failure to abide by the O rders of this tribunal, Petitioner was not
1034allowed to introduce any exhibits at final hea ring.
1043F INDINGS OF F ACT
1048The Parties
10501. This matter involves a Complaint of housing discrimination filed by
1061Petitioner against Respondent s . Petitioner purchased a condominium
1070(townhome) unit, at Solabella i n Miami Gardens, Florida , in August 2007,
1082where he has continuously resided with his mother, Elvira Suarez, through
1093the present time.
10962. Solabella is run by a Board whose p resident is currently Respondent,
1109M r. Quintero , who has served in th is capacity sinc e 2015 . The common areas
1126of the condominium complex are managed by Respondent, Reliable.
1135Restriction on Modifications of the Common Areas
11423. As a townhome owner at Solabella, Petitioner is bound by the
1154Declaration, By l aws, and R ules and R egulations of Sola bella ( referred to
1170collectively as Ñ controlling documents Ò ) . The Board is obligated to enforce the
1185rules and regulations. In fact, at one time , Petitioner served on the Solabella
1198Board . Petitioner agrees that these rules and regulations are important to
1210en sure the safety of residents and visitors, as well as to maintain the uniform
1225appearance of the property, which is a primary reason Solabella Ô s residents
1238choose to live there.
12424. Both Florida con dominium law and Solabella Ô s Declaration provide s for
1256Ñ common areas Ò outside the units themselves which are owned and
1268maintained by Solabella for the mutual benefit of all residences. Solabella Ô s
1281controlling documents also define Ñ limited common areas Ò to include the front
1294entry way of each unit and the concrete ter races in the back of each unit .
1311These limited common areas are to be maintained by the owner of the
1324individual condominium unit to which they are attached.
13325. The controlling document s place certain limitations on unit owners
1343regarding the types of modific ations permitted to the common areas and
1355limited common areas. Solabella Ôs Declaration (Respondent Ô s Ex. 1) provides
1367in relevant part:
137020.1.2 Alterations . No Co ndominium U nit O wner
1380shall make any alterations in the building or the
1389common elements which are to be maintained by
1397the Association or remove any portion thereof or
1405make any additions they are to or do anything
1414which would or might jeopardize or impair the
1422safety or soundness of the B uilding, the C ommon
1432E lements or the L imited C ommon E lements or
1443w hich, in the sole opinion of the B oard, would
1454detrimentally affect the architectural design of the
1461B uilding without first obtaining the written
1468consent of the B oard.
147320.1.3 Painting and B oard A pproval. No
1481C ondominium U nit O wner shall paint, refurbish,
1490sta in, alter, decorate, repair, replace or change the
1499C ommon E lements or any outside or exterior
1508portion of the B uilding maintained by the
1516Association, including terraces, doors or window
1522frames (except for replacing windowpanes), etc.,
1528except as otherwise pr ovided herein with respect to
1537Terrace floors. No C ondominium U nit O wner shall
1547have any exterior lighting fixtures, mailboxes,
1553window screens, screen doors, door bells, awnings,
1560hurricane shutters, hardware or similar items
1566installed which are not consisten t with the general
1575architecture of the B uilding maintained by the
1583Association without first obtaining specific written
1589approval of the B oard.
15946. Solabella Ô s Rules and Regulations also restrict modifications to the
1606common areas as follows:
16102. The exterior of the Condominium Units and all
1619other areas appurtenant to a Condominium Unit
1626shall not be painted, decorated or modified by any
1635Condominium Unit Owner in any manner without
1642the prior written consent of the Association by its
1651Board, which consent may be w ithheld on purely
1660aesthetic grounds within the sole discretion of the
1668Board.
1669* * *
16724. No personal articles shall be allowed to stand on
1682any portion of the Common Elements, other than
1690the T erraces.
1693The Circumstances Giving Rise to this Dispute
17007. In 2015, Petitioner made minor modifications to the common area s
1712immediately outside his entryway and back t errace. Petitioner added some
1723plants and a small Buddha statue. Petitioner neither sought nor obtained
1734permission from the Board to make these chan ges. No one brought to
1747P etitioner Ô s attention that he was violating the controlling documents of
1760Solabella.
17618. In March 2018, P etitioner made major modifications to the common
1773areas next to his entryway and beyond the terrace behind his unit. Again,
1786P etiti oner failed to seek or obtain the permission of the B oard prior to
1802making these changes. With the assistance of a friend, Petitioner installed
1813additional landscaping, statues, lighting, and a Koi pond. Petitioner dug a
1824hole for the pond and lined it with p lastic. He filled the hole with water and
1841connected the pond to a fountain. The fountain had a pump connected to an
1855electrical outlet. Petitioner elevated the garden and the pond above - ground
1867and used rocks and bricks as a border. Petitioner admits that no other unit
1881owner has modified the areas around their entries or back terraces to this
1894extent.
18959. Petitioner alleges that he made these modifications for his mother to
1907enjoy the unit in which they live. According to Petitioner, the unit is very
1921dark inside , and he believes that sunlight would help her Ñ disability. Ò
1934Petitioner claims that a fter meeting with his mother Ô s doctor, Petitioner
1947believed that enhanced Ñ Z en Ò gardens and Ñ therapy fish Ò would motivate her
1963to get up in the morning and give her a purpos e. Petitioner described
1977vegetable gardening as his mother Ô s Ñ hobby. Ò Petitioner testified that his
1991mother receives Social Security disability benefits but failed to provide any
2002evidence of the nature or extent of his mother Ô s alleged disability.
201510 . Petiti oner admits that his mother was able to sit outside either in the
2031entryway or on the back terrace to enjoy the sunshine. Petitioner Ô s mother
2045was observed , over the last three years , outside walking around the Solabella
2057community premises. Nothing precluded Petitioner from setting up a fish
2067tank inside the unit or on the back terrace or from adding additional lighting
2081to the inside of his unit.
20871 1 . In July 2019, P etitioner Ô s significant modifications to the common area
2103w ere noticed on a routine inspection by R eliable and brought to the attention
2118of the B oard. On July 31, 2019, a representative of Reliable advised
2131P etitioner that the gardens and fish pond would need to be removed.
2144Petitioner responded by an email to R eliable and Mr. Quintero stating,
2156Ñ please n ote I will be glad to remove the pond once every apartment in the
2173community meets the condo regulations including the multiple units rented
2183by Miguel [Quintero]. Ò Petitioner also stated, Ñ Additionally, the projects I
2195have done in my property are to beautif y the community and enhance the
2209place we LIVE IN. Ò Petitioner made no mention of his mother Ô s alleged
2224disability or the need for a reasonable accommodation. Petitioner also took no
2236action to remove the areas he added to the common area.
22471 2 . On August 1, 20 19, Solabella issued a Ñ Violation Notice Ò to Petitioner ,
2264that states:
2266Architectural changes must be approved by the
2273Association so that we preserve the appearance and
2281A rchitectural harmony of the community. This
2288helps us all to protect the values of our pr operty.
2299VIOLATION : 1 - PERSONAL DECOATIVE ITEMS
2306PLACED IN COMMON AREA (I.E., WATER
2312FOUNTAIN, ROCKS, BRICKS, PLANTERS, ETC.)
2317MUST BE REMOVED.
23202 Ï ILLEGAL ALTERATIONS TO COMMON
2326AREA.
2327ACTION NEEDED : PLEASE REMOVE ANY AND
2334ALL DECORATIVE ITEMS AFOREMENTIONED
2338AND REVERSE ALTERATIONS MADE TO
2343COMMON AREAS TO ORIGINAL STATE
2348DATE OF COMPLIANCE: 15 DAYS FROM
2354RECEIPT OF T HIS LETTER.
23591 3 . On August 23, 2019, Solabella sent a Ñ Second Notice of Violation Ò to
2376Petitioner citing the same violations and action needed. Pet itioner was
2387instructed he had ten days within which to comply. In response to the s econd
2402n otice, Petitioner took no action.
24081 4 . On January 27, 2020, Solabella Ô s lawyer, the Law Offices of Frank
2424Perez - Siam, provided a third notice of violation by letter. Th is letter stated :
2440Specifically, the violations involve the placement of
2447planter retaining walls in the common areas in the
2456front and rear of your property (see pictures). As
2465you well know, common areas are the property of
2474the Association and you are not pe rmitted to place
2484objects in the common areas. This is your final
2493notice before the Association either removes the
2500items from the common areas at your expense or
2509proceeds with legal action to require you to remove
2518the items.
2520Once again, Petitioner chose to do nothing in response to this notice of
2533violation.
25341 5 . After five months with no response to the third notice of violation,
2549Solabella sent a landscaper to Petitioner Ô s unit on June 27, 2020 , to remove
2564the structures, including the gardens and Koi pond. P etitioner greeted the
2576landscaping crew with a machete in his hand. Based on P etitioner Ô s
2590demeanor, the landscaping crew left rather than engage in a confrontation.
26011 6 . On June 30, 2020, P etitioner sent a lengthy email to Mr. Quintero in
2618which he expressed a desire to have an Ñ amicable solution Ò to the violations.
2633Petitioner indicated his unwillingness to because he believed there was both
2644an unfair and an un equal enforcement of the regulations. Further, P etitioner
2657indicated that he made the modifications :
2664m aking sure the value of my property would not be
2675negative impacted. As a contrary in today Ô s market,
2685where prices fluctuate so easily, I was adding
2693something that will make my property more
2700competitive and wanted than others . È I must let
2710you know that I w ould not tolerate any [sic] the
2721presence of strangers in my property and any
2729pretentious [s ic ] of removing anything I have added
2739to my unit without proper court order indicating
2747the approval to remove the items. As homeowner
2755and using the right given by th e law I will defend
2767my property from any actions that will jeopardize
2775the well - being of my unit.
27821 7 . Noticeably absent from P etitioner Ô s email was any mention of his
2798mother Ô s alleged disability or need for a reasonable accommodation
2809associated with the mo difications P etitioner made to the common areas.
28211 8 . On July 17, 2020, Mr. Quintero, as p resident of the Board, sent a
2838letter to P etitioner. In this letter, Petitioner was reminded that he violated
2851the community rules to the detriment of the community and that the B oard
2865would not negotiate with him because he was violating Solabella Ô s Bylaws.
2878Petitioner was told he had a maximum period of seven days to eliminate the
2892alterations or the management company would hire a demolition team and
2903Petitioner would be r esponsible for the expenses incurred for the removal of
2916the gardens and pond.
29201 9 . On September 3, 2020, a landscaping crew arrived to remove the
2934gardens, pond , and associated structures (raised beds, rocks, bricks, lighting)
2944that had been erected in the co mmon areas by Petitioner. Mr. Quintero was
2958present at the request of the landscaper. Petitioner again confronted the
2969landscaping crew with a machete outside his unit. Both the landscaper and
2981Petitioner called the police as the situation escalated. Mr. Quin tero showed
2993the police the prior correspondence with Petitioner advising him of the
3004violations on four separate occasions. While the police watched, the
3014landscaping crew removed Petitioner Ô s additions to the common areas
3025including the gardens and Koi pond while both Petitioner and his mother
3037watched.
303820 . Importantly, at no time prior to either the installation or removal of
3052the gardens and pond had Petitioner advised the B oard that his mother had a
3067disability or needed these additions to the common area as a Ñ reasonable
3080accommodation Ò for said disability. After removal of the gardens and pond,
3092P etitioner filed a complaint of housing discrimination in which he alleged his
3105disabled mother was precluded from using and enjoying the premises due to
3117Respondents Ô r emoval of these items.
31242 1 . P etitioner never disclose d to HUD, FCHR, or R espondents the nature
3140and extent of Ms. Suarez Ô s disability. Despite the undersigned Ô s O rder to
3156produce records relative to Ms. Suarez Ô s medical treatment and any
3168documents reflecting her need for a reasonable accommodation , Petitioner
3177refused to provide or produce any evidence of the same , either during
3189discovery , or the final hearing c iting privacy concerns .
3199C ONCLUSIONS O F L AW
32052 2 . DOAH has jurisdiction over the parties and subject ma tter in this
3220case. §§ 120.569 , 120.57, Fla. Stat.
322623. Section 760.23 , Florida Statutes, states that it is an unlawful housing
3238practice to discriminate against any person in the terms, conditions, or
3249privileges of sale or rental of a dwelling, or in the pro vision of services or
3265facilities in connection therewith, because of handicap or familial status.
327524. FCHR and Florida courts have determined that federal discrimination
3285laws should be used as guidance when construing provisions of section 760.
3297See Valenzu ela v. GlobeGround N. Am., LLC , 18 So. 3d 17 (Fla. 3d DCA
33122009); Brand v. Fla. Power Corp. , 633 So. 2d 504, 509 (Fla. 1st DCA 1994).
332725. The burden of proving that Respondents engaged in unlawful housing
3338discrimination belongs to Petitioner. See, e.g., Lor en v. Sasser , 309 F.3d 1296,
33511302 (11th Cir. 2002).
3355Establishing Discrimination
33572 6 . Discriminatory intent can be established through direct or
3368circumstantial evidence. Schoenfeld v. Babbitt , 168 F.3d 1257, 1266 (11th Cir.
33791999). Direct evidence of discrimi nation is evidence that, if believed,
3390establishes the existence of discriminatory intent behind an employment
3399decision without inference or presumption. Maynard v. Bd. of Regents ,
3409342 F.3d 1281, 1289 (11th Cir. 2003).
34162 7 . Ñ Direct evidence is composed of Ó o nly the most blatant remarks, whose
3433intent could be nothing other than to discriminate Ô on the basis of some
3447impermissible factor. Ò Schoenfeld , 168 F.3d at 1266. Petitioner presented no
3458direct evidence of handicap or familial status discrimination.
34662 8 . Ñ [D ]irect evidence of intent is often unavailable. Ò Shealy v. City of
3483Albany, Ga. , 89 F.3d 804, 806 (11th Cir. 1996). For this reason, those who
3497claim to be victims of intentional discrimination Ñ are permitted to establish
3509their cases through inferential and circumstantial proof. Ò Kline v. Tenn.
3520Valley Auth. , 128 F.3d 337, 348 (6th Cir. 1997).
35292 9 . Where a complainant attempts to prove intentional discrimination
3540using circumstantial evidence, the shifting burden analysis established by
3549the United States Supreme Court in McDonnell Douglas Corporation. v.
3559Green , 411 U.S. 792 (1973), and Texas Department of Community Affairs v.
3571Burdine , 450 U.S. 248 (1981), is applied. Under this well - established model of
3585proof, the complainant bears the initial burden of establish ing a prima facie
3598case of discrimination. Once this burden is met, the respondent has the
3610burden of articulating a legitimate non - discriminatory basis for the adverse
3622action. The complainant must then come forward with specific evidence
3632demonstrating that the reasons given by the respondent are a pretext for
3644discrimination .
3646Housing Discrimination
364830 . In the instant case, Petitioner alleges that he and h is mother were
3663unlawfully discriminated against regarding the terms and conditions of their
3673residency at S olabella because of h is mother Ô s alleged handicap.
36863 1 . T o establish a Ñ failure to accommodate Ò violation of section 760.23(2),
3702the following elements must be proven by a preponderance of the evidence:
3714(1) Petitioner belongs to a class of persons whom
3723the Florida Fair Housing Act protects from
3730unlawful discrimination because of race, color,
3736national origin, sex, disability, familial status, or
3743religion;
3744(2) Petitioner must have been qualified, ready,
3751willing, and able to receive the services or use
3760facili ties consistent with the terms, policies, and
3768procedures of Respondent;
3771(3) Petitioner must have requested services or use
3779of facilities, or attempted to use facilities consistent
3787with the terms and conditions, policies, and
3794procedures established by Resp ondent for all
3801persons who were qualified or eligible for services
3809or use of facilities; and
3814(4) Respondents, with knowledge of Petitioner Ô s
3822protected class, must have willfully failed or
3829refused to provide services to Petitioner or permit
3837use of the fac ilities under the same terms and
3847conditions that were applicable to all persons who
3855were qualified or eligible for services or use of the
3865facilities.
3866See, e.g., Noah v. Assor , 379 F. Supp. 3d 1284, 1298 (S.D. Fla. 2019);
3880Woolington v. 1st Orlando Real Es tate Servs., Inc. , 2011 WL 3919715, at *2
3894( M.D. Fla., Sept. 7, 2011 ) .
3902Petitioner Failed to meet His Burden of Proof
39103 2 . In this case, Petitioner provided no direct evidence of discrimination.
3923Accordingly, the burden - shifting analysis is appropriate. Petit ioner failed to
3935demonstrate any element of the prima facie case.
394333. A person is considered a Ñ qualified individual Ò with a disability under
3957the F air Housing Act i f that individual : (1) has Ñ a physical or mental
3974impairment that substantially limits one or more of the major life activities of
3987such individual Ò ; (2) has Ñ a record of such an impairment Ò ; or (3) is a person
4005Ñ regarded as having such an impairment. Ò 42 U.S.C. § 3602(h).
40173 4 . Petitioner claims his mother is disabled and offered his self - serving
4032stat ement alone, that she has been receiving S ocial S ecurity benefits since
4046some date prior to the building of the pond and gardens , as proof thereof . No
4062verification or corroboration was offered, such as a physician Ô s affidavit, an
4075affidavit from P etitioner Ô s mother , or affidavit of a social worker.
408835. The receipt of Social Security disability benefits, standing alone, is
4099insufficient to demonstrate ÑdisabilityÒ within the meaning of the Fair
4109Housing Act. Although a rece i pt for the payment of benefits may ref erence
4124Ñdisability,Ò it gives no information about the nature, extent of the referenced
4137disability, and thus no evidence that the disability meets the statutory
4148definition.
414936. Determinations of disability under the Ameri c ans w ith Disabilities Act
4162(ÑADAÒ) and the Social Security system Ñdiverge significantly in their
4172respective legal standards and statutory intent ... ,Ò Weiler v. Household
4183Finance Corporation, 101 F.3d 519, 523 - 24 (7th Cir. 1996), and disability
4196Ñdeterminations made by the Social Security Administration concerning
4204disability are not dispositive findings for claims arising under the ADA.Ò Id.
4216at 524. See also Cleveland v. Policy Mgmt . Sys . Corp . , 526 U.S. 795, 80 1 ,
4234119 S. Ct. 1597 (1999). (Statement of Ñtotal disabilityÒ on Social Security
4246b enefits application does not estop a claimant under the ADA from claiming
4259qualification to work.)
426237. The ADA definition of ÑdisabilityÒ ( see 42 U.S.C. § 12102(2)(A)) is
4275indistinguishable from the definition of ÑhandicapÒ found under £ 802(h) of
4286the Fair Housing Act: both require a physical or mental impairment that
4298substantially limits the person in one or more major life activities. There is
4311no reason why a Social Security Administration determination of disability
4321would bind the parties in a f air h ousin g claim. For these reasons, Petitioner
4337completely failed to produce prima facie evidence that his mother suffers
4348from a Ñ[h]andicap , Ò 42 U.S.C. § 3602(h) , within the meaning of the Fair
4362Housing Act.
43643 8 . Even if Petitioner demonstrated his mother suffered f rom a qualifying
4378disability under the Fair Housing Act, he cannot satisfy the remaining
4389elements of the prima facie case.
43953 9 . Petitioner was not ready, willing, and able to Ñ receive the services or
4411use facilities consistent with the terms, policies, and pr ocedures of
4422Respondent . Ò Prior to making any modifications to the common area,
4434Petitioner was required to seek and receive Board approval. Instead,
4444Petitioner not only failed to seek Board approval , but failed to abide by the
4458Board Ô s directives to remove t he modifications despite receiving multiple
4470warnings and an extended timeframe within which to do so.
448040 . Similarly, Petitioner never Ñ requested services or use of facilities, or
4493attempted to use facilities consistent with the terms and conditions, policie s,
4505and procedures established by Respondent . Ò
451241 . As described in the fourth prong of the prima facie case, r elevant to
4528Petitioner Ô s Fair Housing Act claim is not only the existence of a disability ,
4543but whether Respondents were aware of the disability when making the
4554decision to remove the gardens and pond.
45614 2 . Respondents testified that Petitioner Ô s mother is not visibly disabled ,
4575an d at no time were they aware that she suffered from any condition that
4590affects her major life activities. Petitioner only not ified Respondents of his
4602mother Ô s alleged need for an accommodation for some unspecified disability
4614after the removal of the gardens and pond.
46224 3 . It is axiomatic that Respondents needed to know of a need for any
4638accommodation before they could consider wh ether a request is reasonable or
4650would enable a resident to have full use and enjoyment of the premises. It is
4665not possible to discriminate against an individual on the basis of Ñ disability Ò
4679if the accused has no knowledge of said disability.
46884 4 . Even assu ming arguendo that Petitioner met his burden, Respondents
4701offered a legitimate, non - discriminatory reason for the removal of the pond
4714and gardens. They were wholly inconsistent with the uniform appearance of
4725the common areas and violated Solabella Ô s contro lling documents, resulting
4737in possible liability for the Association.
47434 5 . Ñ Condominium ownership and residency is unique in that
4755condominium owners agree to Ó for the good of the majority, restrict [] rights
4769residents would otherwise have were they living i n private separate
4780residence. ÔÒ Neuman v. Grandview at Emerald Hills, Inc. , 861 So. 2d 494, 497
4794(Fla. 4th DCA 2003). The Neuman court describes how unit owners in a
4807condominium give up certain of their rights and hand over the regulation of
4820the units to an association to best maintain the entire community. Ñ In
4833exchange, unit owners know that their neighbors will maintain their property
4844in a suitable fashion, and that the common areas will be kept in proper order
4859for the use and enjoyment of all the resident s. Ò Id. , as quoted in Savannah
4875Club Worship Serv., Inc. v. Savannah Club Homeowners Ô Ass Ô n, Inc. ,
4888456 F. Supp. 2d 1223, 1231 (S.D. Fla. 2005 ).
48984 6 . Petitioner was neither singled out for disparate treatment n or denied
4912a reasonable accommodation based on his mother Ô s alleged disability.
4923R ECOMMENDATION
4925Based on the foregoing Findings of Fact and Conclusions of Law, it is
4938R ECOMMENDED that the Florida Commission on Human Relations enter a
4949final order finding Respondents not liable for housing discrimination and
4959dismissing Petitioner Ô s Petition for Relief .
4967D ONE A ND E NTERED this 16th day of July , 2021 , in Tallahassee, Leon
4982County, Florida.
4984S
4985M ARY L I C REASY
4991Administrative Law Judge
49941230 Apalachee Parkway
4997Tallahassee, Florida 32399 - 3060
5002(850) 488 - 9675
5006www.doah.s tate.fl.us
5008Filed with the Clerk of the
5014Division of Administrative Hearings
5018this 16th day of July , 2021 .
5025C OPIES F URNISHED :
5030Tammy S. Barton, Agency Clerk Carlos Cordova
5037Florida Commission on Human Relations Apartment 105
50444075 Esplanade Way , Room 110 17345 Northwest 7th Avenue
5053Tallahassee, Florida 32399 - 7020 Miami Gardens, Florida 33169
5062Cheyanne Costilla, General Counsel Jeremy Koss, Esquire
5069Florida Commission on Human Relations Koss Law Firm , P.A.
50784075 Esplanade Way , Room 110 Post Office Box 565661
5087Tallahassee, Florida 32399 - 7020 Miami, Florida 33256
5095N OTICE OF R IGHT T O S UBMIT E XCEPTIONS
5106All parties have the right to submit written exceptions within 15 days from
5119the date of this Recommended Order. Any exceptions to this Recommended
5130Order should be fi led with the agency that will issue the Final Order in this
5146case.
![](/images/view_pdf.png)
- Date
- Proceedings
-
PDF:
- Date: 10/01/2021
- Proceedings: Respondents' Exceptions to Recommended Order and Motion for Attorneys' Fees filed.
-
PDF:
- Date: 10/01/2021
- Proceedings: Agency Final Order Dismissing Petition for Relief from a Discriminatory Housing Practice filed.
-
PDF:
- Date: 07/23/2021
- Proceedings: Respondents' Exceptions to Recommended Order and Motion for Attorneys' Fees filed.
-
PDF:
- Date: 07/16/2021
- Proceedings: Recommended Order cover letter identifying the hearing record referred to the Agency.
-
PDF:
- Date: 06/16/2021
- Proceedings: Motion to Disqualify and Forgive the Unethical Behavior of Jeremy filed.
-
PDF:
- Date: 06/10/2021
- Proceedings: Petitioner's Response to Order on Respondent's Motion to Prohibit or Relief and Motion to Restitute our Rights in this Case filed.
-
PDF:
- Date: 06/08/2021
- Proceedings: Order on Respondent's Motion to Prohibit the Use of Testimony or Documentary Evidence from Carlos Danger.
-
PDF:
- Date: 06/08/2021
- Proceedings: Discovery Exhibit M - Miguel cause to Discriminate filed by Petitioner.
-
PDF:
- Date: 06/08/2021
- Proceedings: Discovery Exhibit K- Respondent's were fully Aware filed by Petitioner.
-
PDF:
- Date: 06/04/2021
- Proceedings: Discovery Exhibit I- Discriminatory Treatment filed by Petitioner.
-
PDF:
- Date: 06/04/2021
- Proceedings: Respondents' Motion to Prohibit the Use of Testimony or Documentary Evidence from Carlos Danger filed.
-
PDF:
- Date: 06/03/2021
- Proceedings: Discovery Exhibit H - Violation Letters and Garden Pictures filed.
-
PDF:
- Date: 06/02/2021
- Proceedings: Discovery Exhibit F - ByLaws and Explanation of the Rules Violated by The Respondents filed.
-
PDF:
- Date: 05/28/2021
- Proceedings: Discovery Exhibit E- Respondents Received the Email about the Medical Condition filed.
-
PDF:
- Date: 05/24/2021
- Proceedings: Petitioners Standing Position to Subpoena and Motion to Strike filed.
- Date: 05/24/2021
- Proceedings: Discovery Exhibit D- Meaning of Doctors Note based on the Fair Housing Act filed by Petitioner (medical records, not available for viewing). Confidential document; not available for viewing.
-
PDF:
- Date: 05/21/2021
- Proceedings: Respondents' Motion to Strike Reply to Response to Petitioner's Objection to Subpoena (Danger) filed.
-
PDF:
- Date: 05/20/2021
- Proceedings: Respondents' Response to Petitioner's Objection to Subpoena Directed to Carlos Danger filed.
-
PDF:
- Date: 05/17/2021
- Proceedings: Respondents' Notice of Filing Notice of Determination of No Cause filed.
- Date: 05/17/2021
- Proceedings: CASE STATUS: Motion Hearing Held.
-
PDF:
- Date: 05/17/2021
- Proceedings: Email from Alisha informing due date to be April 23,2021 by 5:00pm filed.
-
PDF:
- Date: 05/14/2021
- Proceedings: Notice of Telephonic Motion Hearing (motion hearing set for May 17, 2021; 2:00 p.m., Eastern Time).
-
PDF:
- Date: 05/13/2021
- Proceedings: Respondents' Response to Petitioner's Protective Order in Response to First Request for Production filed.
-
PDF:
- Date: 05/13/2021
- Proceedings: Petitioners Response to Respondents Motion to Dismiss Petition filed.
-
PDF:
- Date: 05/13/2021
- Proceedings: Petitioners Protective Order in Response to First Request for Production filed.
-
PDF:
- Date: 05/04/2021
- Proceedings: Certified Return Receipts received this date from the U.S. Postal Service.
Case Information
- Judge:
- MARY LI CREASY
- Date Filed:
- 04/14/2021
- Date Assignment:
- 04/16/2021
- Last Docket Entry:
- 10/01/2021
- Location:
- Miami Gardens, Florida
- District:
- Southern
- Agency:
- ADOPTED IN TOTO
Counsels
-
Tammy S Barton, Agency Clerk
Room 110
4075 Esplanade Way
Tallahassee, FL 323997020
(850) 907-6808 -
Carlos Cordova
Apartment 105
17345 Northwest 7th Avenue
Miami Gardens, FL 33169
(786) 508-5610 -
Jeremy Koss, Esquire
Post Office Box 565661
Miami, FL 33256
(786) 787-2849 -
Frank Rodriguez
Suite 103
17680 Northwest 78th Avenue
Miami, FL 33015