22-001145 Miguel Bravo vs. Eden Isles Condominiums, Inc., Et Al.; Cream Management And Consulting Services, Inc. Status: Closed Recommended Order on Friday, October 14, 2022.

Summary: Petitioner did not prove, by the preponderance of the evidence, that Respondent condominium association discriminated against him on the basis of disability or refused to grant an accommodation for his emotional support animal.

S TATE OF F LORIDA

D IVISION OF A DMINISTRATIVE H EARINGS

M IGUEL B RAVO ,

Petitioner ,

vs. Case No. 22 - 1145

E DEN I SLES C ONDOMINIUMS , I NC ., E T A L .;

C REAM M ANAGEMENT A ND C ONSULTING

S ERVICES , I NC . ,

Respondents .

/

R ECOMMENDED O RDER

Pursuant to notice, a hearing was held in this case, pursuant to

sections 120.569 and 120.57(1), Florida Statutes ( 2022), by Zoom Conference

on June 28 and 29, and July 5, 2022, before Administrative Law Judge

("ALJ") Cathy M. Sellers , of the Division of Administrative Hearings

("DOAH").

A PPEARANCES

For Petitioner: Miguel Bravo, pro se

3725 Northeast 169th Street , Unit #108B

Miami Beach , Florida 33160

For Respondent: Marlon E. Bryan, Esquire

Law Office of Marlon E. Bryan, P.A.

101 Northeast Third Avenue, Suite 1500

Miami, Florida 33301

S TATEMENT OF T HE I SSUE

The issue in this case is whether Respondents , Eden Isles Condominiums,

Inc. , and Cream Management and Consulting Services, Inc., 1 engaged in

unlawful discrimination against Petitioner , Miguel Bravo, on the basis of

disability, in violation of sections 760.23 (2), (8) , and (9) (b), 760. 27, and

413.08 (6) , Florida Statutes , (2021) . 2

P RELIMINARY S TATEMENT

On or about December 20, 2021, Petitioner filed a Housing Discrimination

Complaint with the Florida Commission on Human Relations ("FCHR") ,

alleging that Respondents engaged in unlawful discrimination against him,

in violation of the Florida Fair Housing Act ("FFHA") on the basis of his

disability. Specifically, Petitioner alleged that Respondent has discriminated

against him by not allowing his emotional support animal ("ESA "), which also

is a certified service animal ("SA"), to accompany him in common areas at the

Eden Isles Condominium s ("Eden Isles") , thereby effectively exclud ing him

from these areas; and for refusing to grant his request for accommodation to

allow him to keep his ESA in his dwelling . Petitioner further alleged that

Respondents have harassed him and engaged in discriminatory conduct

against him by requiring, on th e ESA/ SA registration form, the disclosure of

certain medical/health information which is contrary to Florida Statutes , and

by requiring the renewal of the ESA/ SA registration form on an annual basis.

1 Cream Management and Consulting Services, Inc. ("Cream"), managed the Eden Isles

Condominium during the alleged incidents that gave rise to this proceeding. Since then,

Cream has ceased managing the Eden Isles Condominium . Cream did not enter an

appearanc e in this proceeding . Therefore, all references to "Respondent" are only to Eden

Isles Condominiums, Inc.

2 All references to chapter s 760 and 413 , Florida Statutes, are to the 2021 codification, which

was in effect at the time of the alleged discriminat ory conduct.

FCHR investigated the Housing Discrimination Complaint and issued a

Determination (No Cause) and Notice of Determination of No Cause on

March 25, 2022, determining that Respondents did not engage in unlawful

discrimination against Petitioner in violation of the Florida Fair Housing Act .

On April 8, 2022, Petitioner filed a Petition for Relief ("Petition") with

FCHR , alleging that Respondent s engaged in discrimination against him on

the basis of his disability, in violation of the FFHA . On April 13, 2022, the

Petition was transmitted to DOAH for assignment of an ALJ to conduct a

hearing under sections 120.569 and 120.57(1).

The final hearing was set for, and held, on June 28 and 29, 2022. T he

hearing did not conclude on June 29, 2022, so was continued to July 5 and 8,

2022. The hearing concluded on July 5, 2022.

Petitioner testified on his own behalf and presented the testimony of Jose

Vidal , Lisa Sutherland, Cesar Garcia, and Hector Lopez. Petitioner's Exhibit

Nos. 1 through 3 a nd 5 through 9 were admitted into evidence. Petitioner did

not tender any other pre - filed proposed exhibits for admission into evidence.

Respondent presented the testimony of Jose Vidal , and Respondent's Exhibit

Nos . 2 through 6 and 9 were admitted into evidence. Respondent did not

tender any other pre - filed proposed exhibits for admission into evidence .

The five - volume , 869 - page Transcript of the final hearing was filed at

DOAH on August 24, 2022 . P ursuant to Florida Administrative Co de

Rule 28 - 106.216, the parties were given ten days, until September 5, 2022, to

file their proposed recommended orders ("PROs") . Thereafter, pursuant to the

parties' joint motion, the deadline for filing the PROs was extended to

September 30, 2022. Petit ioner timely filed his PRO on September 6, 2022.

On October 3, 2022, Respondent filed its PRO , along with a motion for

extension of time to file its PRO based on hurricane - related circumstances

which prevented Respondent from filing the PRO by 5:00 p.m. on September

3 0 , 2022. On October 4, 2022, t he undersigned issued an Order determining

that good cause existed for the requested extension, and extending the

deadline for filing the PROs through October 5, 2022. Respondent timely filed

its PRO on October 3, 2022 .

Both PROs were timely filed, and both have been duly considered in

preparing this Recommended Order.

F INDINGS OF F ACT

I. The Parties

1. Petitioner , Miguel Bravo, is a 43 - year - old male who is disabled. He

owns, and resides at, Unit 108B, Eden Isles Condominiums, 3725 Northeast

169th Street , Miami, Florida .

2. As further discussed below, it is undisputed that Petitioner is disabled.

3 . Petitioner owns a dog named Coco , which is Petitioner's ESA and SA .

Coco resides with Petitioner in his residential dwelling unit at Eden Isles,

and Petitioner credibly testified that he needs Coco with him at all times,

including accompanying him outside of his dwelling unit , within the Eden

Isles community .

4 . Respondent , Eden Isles Condominium s , Inc. (also herein referred to as

"Association ," as appropriate) , is the condominium association which owns

the common elements within the boundaries of Eden Isles Condominium s ,

located at 3725 Northeast 169th Street, North Miami Beach, Florida. It is

governed by a Board of Directors ("Board").

5 . Respondent exercises the powers conferred by chapter 718, Florida

Statutes (2022) , including , among other things, managing the condominium

property and common areas , as authorized by chapter 718 .

II. Evidence Adduced at the Final Hearing

A. The Petition for Relief

6 . As noted above, Petitioner filed his Petition with FCHR on April 8,

2022 , alleging that Respondent engaged in discrimination against him, in

violation of the FFHA . Many of Petitioner's allegations were directed toward

FCHR's findings in its Determination of No Cause, rather than stating anew

the actions, incidents, and circumstances of alleged discrimination.

Neve rtheless, the following allegations are gleaned from the Petition.

7 . Petitioner states that he is disabled and that Respondent knew, and

knows, that he is disabled.

8 . Petitioner alleges that Respondent engaged in discriminatory conduct

by requiring him, in order to obtain an accommodation to have , and be

accompanied by, his ESA in the Eden Isle s community , to complete a

registration form that required the provision o f certain health and medical

information not under Florida Statutes.

9 . Petitioner fu rther alleges that the accommodation form is

di scriminatory because it requires , as a condition of obtaining an

accommodation to have a n ESA or SA, that the resident agree to "unknown

ye t created rules. " He contends that non - disabled residents are not required

to agree to comply with condominium association rules that have not yet been

created .

10 . Petitioner also alleges that requiring disabled residents to renew the

ESA/SA accommodation form on an annual basis is discriminatory .

11 . In addition, P etitioner alleges that Respondent has created an

environment intended to harass disabled persons and limit them from

accessing common areas in the Eden Isles community by posting signs

thr oughout the community stating " No Dogs Allowed , " without stating any

exception for ESA s or SAs . He further alleges that Respondent "has a clear

rule posted saying that ESA[s] are not allowed in some areas. The area is

[sic] the Condo Association Office and community center, the pool area, the

sun bathing area, the back of the building area, the laundry room, and etc."

12 . Petitioner also alleges that someone keyed his car to harass him on

the basis of his disability , and further alleges that members of Respondent's

Board have harassed him about his having an ESA /SA , questioned the

existence of his disability , and told him that his ESA /SA is not allowed to

accompany him outside of his residential unit.

B. Signs E rected in the Eden Isles Community Common Areas

13 . Pursuant to the Declaration of Condominium of Eden Isles

Condominium, n o pets are allowed to be raised, bred, or kept in any of the

residential units or in the common areas in Eden Isles. The p arties do not

dispute that Eden Isles is a "no pets" community.

14 . Respondent has erected several signs in variou s common areas within

Eden Isles stating that dogs and/or pets are not allowed within Eden Isles.

15 . Specifically, there are "No Dogs Allowed" sign s erected in the Eden

Isles common area consisting of a grassy area and boardwalk immediately

abut ting a canal located behind the condominium units.

16 . T here is a "No Pets Allowed" sign depicting a silhouette of a dog with a

slash over it on the gate to the fence - enclosed community swimming pool

area. Additionally, a "N o Dogs Allowed" sign also depicting a silhouette of a

dog with a slash over it is erected outside of the enclosed swimming pool area.

17 . A "Pool Rules" sign is located on a wall within the enclosed swimming

pool area stating : "N o animals in the pool area."

18 . A "No Pets Allowed" sign depicting a silhouette of a dog with a slash

over it is located on an outside wall immediately adjacent to the door to the

Eden Isles office.

19 . In at least one laundry room within Eden Isles, a sign is posted stating

"No Dogs Allowed," depicting a silho uette of a dog with a slash over it.

20 . None of these signs contains any express exceptions to the "n o pets/no

dogs" prohibition clarifying that ESAs or SAs are allowed in the Eden Isles

common areas in which these signs are posted .

21 . A "Resident Reminders" flyer is posted inside the Eden Isles office, on

a glass - enclosed bulletin board. One paragraph of this flyer, titled "Animals,"

states, in pertinent part:

Residents with registered service animals or

therapy animals must always lea sh them at all

times outside of their unit. Animals must remain

leashed while on Eden Isles property or sidewalks.

Valid paperwork for registered animals must be on

file in the association office. No animals are

permitted to be walked behind Eden Isles bui ldings.

Leashed animals must be walked in the designated

areas in front of the buildings on the side street.

22 . This paragraph makes clear that disabled Eden Isles residents are

allo wed to own and keep ESAs and/or SAs within their dwelling unit s , and

that their ESA/SA may accompany them outside of their unit s , provided the

ESA/SA is leashed. This is consistent with the testimony of Respondent's

President, Jose Vidal, that disabled residents of Eden Isles are permitted to

keep ESAs and SAs in their unit s and to have their animals accompany them

outside of their units , with in the community.

23 . However, the second - to - last sentence of th e "Animals" paragraph in

the flyer arguably can be read as prohibit ing disabled residents from

accessing the areas behind the condominium buildings abutting the canal

wh en accompanied by their ESA/SA .

24 . Respondent's President, Jose Vidal, credibly testified t hat disabled

resident s are allowed to access the common area behind the condominium

buildings while accompanied by their ESA or SA , but that ESAs and SAs are

not allowed to be "walked" in these areas for the purpose of enabling them to

urinat e or defecat e . Instead, ESAs and SAs must be "walked" for such

purpose s in the right - of - way areas in front of the buildings along the side

street.

25 . Vidal also testified , credibly, that Respondent does not interpret the

"Animals" paragraph in the posted flyer to prohibit disabled residents from

accessing the area behind the condominium buildings or any other common

areas in Eden Isles while accompanied by their ESA s /SA s .

26 . He further testified, credibly, that Respondent has never taken action

to enforce 3 this paragraph against Petitioner or any other di sabled Eden Isles

residents to prohibit them from accessing any common areas, including the

area behind the building s while accompanied by their ESA s /SA s .

C. ESA/SA Accommodation Request Form

27 . In order to obtain an accommodation to keep his ESA/SA at Eden

Isles , Petitioner requested, and received from Cream, a form titled

"Service/Emotional Support Animal Request To Be Exempted From ' No Pets '

Restriction At Eden Isles" (hereafter, the "First ESA/SA Form"). 4

28 . Petitioner objected to, and refused to complete and sign, the First

ESA/SA Form because it requested that he provide information that

effectively required him to disclose the nature of his disability , in violation of

section 760.27 .

29 . Cream employee Jessica Lopez apologized to Petitioner and provided

him a form that had been revised to reflect recent statutory changes

regarding the information that legally can be required to be provided for an

accommodation to have an ESA/SA.

30 . This form, titled "Service/Emotion al Support Animal Request Fo[rm]

To Be Exempted From ' No Pets ' Restriction at Eden Isles (hereafter, " Second

ESA/SA Form " or "Form" ) , requires Eden Isles residents seeking an

3 Such enforcement may consist of levying fines , imposing a lien on the resident's unit , and/or

bringing an action in court to enforce Respondent's rules, regulations, and procedures.

4 For purposes of distinguishing this form from another ESA/SA accommodation form

subsequently provided to Petitioner, the First ESA/SA Form had the words "C/O Cream

Management" beneath the "Eden Isles Condominium" logo at the top of the form.

accom modation for their ESA/SA to provide an explanatory letter from a

healthcare practitioner , stating that the person seeking the ac commodation

has an emotional disability for which an ESA has been prescribed and

identifying the emotional support provided by the ESA.

31 . The Second ESA/SA Form also requires submittal of a copy of the

ESA's or SA's compliance with state and local licensing and vaccination

requirements, and requires that the Form be resubmitted on an annual basis.

32 . As a condition of approval of the request for accommodation, t he

Second ESA/SA Form imposes several co nditions . Among these is the

following:

I understand and agree that should I violate or fail

to ensure compliance with the foregoing rules and

procedures, and any other rules, regulations or

procedures promulgated by the Association , the

Association may e xercise all legal remedies

available to it to ensure compliance. These remedies

may include, but are not limited to, fines and/or the

institution of legal action.

Second ESA/SA Form, p. 2 (emphasis added).

3 3 . In compliance with the Second ESA/SA Form requirements, Petitioner

provided letters from two treating physicians and a licensed mental health

counselor, verifying that he is physically and mentally disabled and that he

needs, and has been prescribed, the u se of an ESA/SA to mitigate the effects

of his disability and enable him to live independently.

3 4. As noted above, Respondent does not dispute , in this proceeding, that

Petitioner has a disability as defined in section 760.22(3)(a) .

3 5 . However, Petition er also refused to execute the Second ESA/SA Form,

contending that Respondent was once again requesting information

regarding his disability that it (Respondent) is not authorized , under Florida

Statutes, to request .

3 6 . However, a review of the Second ESA/SA Form shows that it does not

require a disabled resident , including Petitioner, to provide information

which is not specifically authorized under section 760.27 to be requested . In

fact, the information requested on the F orm clo sely tracks the language in

section 760.27(2)(b)1. and 4., which authorizes a housing provider to request

information that " reasonably supports that the person has a disability, " and

specifically identifies the type of supporting information that may be

re quested. Accordingly , Petitioner's contention that the Second ESA/SA form

is discriminatory on this basis is unfounded and incorrect .

3 7 . Petitioner also contends that Respondent is discriminat ing against

disabled residents by requiring them , in executing the Second ESA/SA Form,

to "agree to unknown future rules," while "non - disabled people don't need and

are not required to agree to unknown future rules created by the

[A]ssociation."

3 8 . However, the plain language of the provision in the Second ESA/SA

Form requiring compliance with "any other rules, regulations or procedures

promulgated by the Association" makes no reference whatsoever to future

rules, regulations, or procedures that may be adopted by the Association .

39 . Petitione r also contends that requiring the Second ESA/SA Form to be

renewed on an annual basis unlawfully discriminates against disabled

persons seeking approval of an accommodation to keep an ESA or SA in Eden

Isles. However, Petitioner did not elaborate, in the Petition or in his

testimony at the final hearing, precisely why he contends that requiring

annual renewal of the Form is unduly burdensome, and, therefore,

unlawfully discriminatory.

4 0 . Section 760.27(2)(a) authorizes a housing provider to deny a n

accommodation request for an ESA if the animal poses a direct threat to the

safety or health of others , and section 760.27(2)(c) expressly authorizes a

housing provider to require proof of compliance with state and local

requirements for licensing and vac cinating each ESA. Additionally, section

413.08(6)(b) expressly authorizes a housing provider to request proof of a n

SA's compliance with vaccination requirements.

4 1 . Pursuant to these provision s , it is both statutorily authorized and

absolutely reasonable for Respondent to require annual renewal of the

Second ESA/SA Form Ð which, by its plain terms, requires the owner of the

ESA or SA to provide proof of the animal's compliance with state and local

vaccination requirements.

4 2 . In any e vent, Petitioner did not present any evidence showing that he

completed, and submitted to Respondent, the executed Second ESA/SA Form

requesting an accommodation for an ESA/SA . In fact, he testified that he

refused to sign the second page of the form, whic h contains the rules

compliance provision discussed above.

4 3 . Because Petitioner never submitted a complete Second ESA/SA Form

to Respondent requesting an accommodation for his ESA/SA , it is

determined, as a matter of ultimate fact, that Respondent did not deny his

request for an accommodation for his ESA/SA .

D. Harassment of Petitioner by Individual Eden Isles Residents

a. Petitioner's Rental Car Keyed

4 4 . Petitioner alleges that his rental car was keyed while parked in his

parking space at Eden Isles , and surmises that this was done by someone in

Eden Isles . He contends that this action constitutes harassment on the basis

of his disab ility .

4 5 . However, Petitioner presented no evidence regarding the identity of

the person who keyed his car , wheth er that person lives in Eden Isles, or

whether that person had any animus against Petitioner on the basis of his

disability .

4 6 . Without such evidence, Petitioner's contention that this act was

perpetrated because of his disability, by a member of Respondent's Board ( or

even by a resident of Eden Isles , for that matter ) , is pure speculation.

b. Confrontation with Resident at Mailroom

47 . Petitioner testified that a member of Respondent's Board , David

Gutierrez, confronted him in , or immediately outside of, the Eden Isles

mailroom, telling him that he was not allowed to have his dog accompany

him outside of his dwelling unit .

48 . However, the credible evidence shows that at the time this incident

took place, Gutierrez was not a m ember of Respondent's Board , and

Petitioner did not present any evidence showing that Gutierrez's actions were

sanctioned or otherwise ratified by Respondent's Board .

49 . Accordingly, Gutierrez's actions in confronting Petitioner regarding

having his ESA/SA accompany him outside of his dwelling unit cannot be

ascribed to Respondent for purposes of finding that Respondent harassed

Petitioner on the basis of his disability.

c. Confrontation with Residents in Pool Area

5 0 . In further support of his contention that he was h arassed by

Respondent on the basis of his disability, Petitioner presented video footage

of an incident that took place in a pool area within Eden Isles. The video,

which consists of footage from a pool area surveillance camera (Camera 10)

and does not have an accompanying aud io recording, shows Petitioner

walking to the edge of the pool , where five other residents are swimming.

From the footage, it appears that Petitioner, using his c ell phone camera,

made a video recording of the persons in the pool. Petitioner then walked

away. Video footage from the surveillance camera taken approximately one

minute later shows Petitioner re - entering the pool area while talking on his

cell phone. Sh ortly thereafter, a woman exited the pool, at which point

Petitioner walked up to her and closely followed her as she went to her chair.

The video shows Petitioner standing in very close proximity to the woman,

then walking next to her , in very close proxi mity , as she walked back to the

pool. Petitioner a ppear ed to be using his cell phone to record a video of her as

she walked back to the pool. As she reached the edge of the pool, she

appeared to push or strike Petitioner, and he appeared to respond by push ing

her into the pool. Shortly t hereafter, the people exited the pool and

confronted Petitioner. O ne of the men shov ed and push ed Petitioner, while

the other slapp ed Petitioner and punch ed him in the face . Petitioner backed

away , and the people followed hi m for a short distance before reentering the

pool. Petitioner then exited the pool area.

5 1 . Petitioner testified that in the course of the confrontation, the

residents who were in the pool screamed at him, called him by name, called

him "crazy" and a "w h acko," told him to "take your prescription," and referred

to him using a homophobic slur. Petitioner testified that he was shocked that

they knew who he was and knew about his health information.

5 2 . Petitioner referred to the residents in the pool with w hom he had the

confrontation as "members of the Association." However, he did not present

any evidence showing that any of them were (or are) Board members.

5 3 . Additionally, t here is insufficient evidence on which to base a finding

that the actions of these people were due to discriminatory animus toward

Petitioner on the basis of his disability , rather than merely constituting a

response to his behavior toward them .

5 4 . In any event , even if these residents' actions were motivated by

discriminatory an imus toward Petitioner , there is an insufficient evidentiary

basis for ascrib ing these actions to Respondent.

d. Confrontation with Resident Behind Condominium Buildings

5 5 . Petitioner testified that on one occasion when he was walking behind

the condominium buildings accompanied by his ESA/SA, a woman who also is

a resident of Eden Isles confronted him, telling him that he was not allowed

to have his dog with him behind the condominium buildings. Petitioner

testified that he thought her name was " Eileen " or " Irene, " although he did

not know her name. He also thought that "she used to be a director."

5 6 . Cesar Garcia, who testified that he was on the phone with Petitioner

when this incident occurred, confirmed that a woman had confronted

Petitione r and told him that he was not allowed to have his dog behind the

condominium buildings.

57 . Garcia testified that "both of them [referring to the woman and to

Gutierrez], if I can recall correctly, identified themselves as either, I believe,

B oard member s of each of the buildings . "

58 . However, given that Garcia was not physically present w hen the

incidents occurred, but, rather, was on the other end of a phone call with

Petitioner at the time, the evidence does not establish that his testimony was

based on his personal knowledge regarding these persons , or having heard

either person state that he or she was a Board member . His testimony

appears to be based on Petitioner having told him that these persons were , or

said they were, Board members. As such, Garcia's testimony on this point is

hearsay, and, therefore, has not been given weight for purposes of

determining that either the woman or Gutierrez was on the Board at the time

the confrontations with Petitioner occurred.

59 . Furthermo re, in any case, Petitioner did not present any evidence

showing that either Gutierrez , or the woman who confronted him behind the

building, were authorized by Respondent to confront Petitioner and to order

him to remove his dog from the premises. Accordingly, their actions cannot be

ascribed to Respondent.

6 0 . Based on the foregoing , it is found , as a matter of ultimate fact, that

Petitioner did not demonstrate , by a preponderance of the evidence, that

Respondent harassed him on the basis of his d isability.

C ONCLUSIONS OF L AW

6 1 . DOAH has jurisdiction over the subject matter of, and parties to, this

proceeding, pursuant to sections 120.569, 120.57(1), and 760.35(5).

I. Applicable Statutes

6 2 . Section 760.22(3)(a) defines "disability," in pertinent part, as: "[a]

person has a physical or mental impairment which substantially limits one or

more major life activities, or he or she has a record of having, or is regarded

as having, such physical or mental i mpairment[.] "

6 3 . Section 760.23 states, in pertinent part:

(2) 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 therewith, because of race,

color, national origin, sex, disability, familial status,

or religion.

* * *

(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 renter [.]

* * *

(9) For purposes of subsection[]È(8),

discrimination includes:

* * *

(b) A refusal to make reasonable accommodations

in rules, policies, practices, or services, when such

accommodations may be necessary to afford such

person equal opportunity to use and enjoy a

dwelling.

6 4 . Section 760.27 states, in pertinent part:

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

term:

(a) "Emotional support animal" means an animal

that does not require training to do work, perform

tasks, provide assistance, or provide therapeutic

emotional support by virtue of its presence which

alleviates one or more identified symptoms or effects

of a personÔs disability.

(b) ÑHousing providerÒ means any person or entity

engaging in conduct covered by the federal Fair

Housing Act or s. 504 of the Rehabilitation Act of

1973, including the owner or lessor of a dwelling.

(2) REAS ONABLE ACCOMMODATION

REQUESTS. Ð

To the extent required by federal law, rule, or

regulation, it is unlawful to discriminate in the

provision of housing to a person with a disability or

disability - related need for, and who has or at any

time obtains, an e motional support animal. A person

with a disability or a disability - related need must,

upon the personÔs request and approval by a housing

provider, be allowed to keep such animal in his or

her dwelling as a reasonable accommodation in

housing, and such person may not be required to pay

extra compensation for such animal. Unless

otherwise prohibited by federal law, rule, or

regulation, a housing provider may:

* * *

(b) If a personÔs disability is not readily apparent,

request reliable informatio n that reasonably

supports that the person has a disability. Supporting

information may include:

1. A determination of disability from any federal,

state, or local government agency.

2. Receipt of disability benefits or services from any

federal, state, or local government agency.

3. Proof of eligibility for housing assistance or a

housing voucher received because of a disability.

4. Information from a health care practitioner, as

defined in s. 456.001; a telehealth provider, as

defined in s. 456.47; or any other similarly licensed

or certified practitioner or provider in good standing

with his or her professionÔs regulatory body in

an other state but only if such out - of - state

practitioner has provided in - person care or services

to the tenant on at least one occasion. Such

information is reliable if the practitioner or provider

has personal knowledge of the personÔs disability

and is act ing within the scope of his or her practice

to provide the supporting information.

5. Information from any other source that the

housing provider reasonably determines to be

reliable in accordance with the federal Fair Housing

Act and s. 504 of the Rehabi litation Act of 1973.

(c) If a personÔs disability - related need for an

emotional support animal is not readily apparent,

request reliable information that reasonably

supports the personÔs need for the particular

emotional support animal being requested.

S upporting information may include:

1. Information identifying the particular

assistance or therapeutic emotional support

provided by the specific animal from a health care

practitioner, as defined in s. 456.001; a telehealth

provider, as defined in s. 456 .47; or any other

similarly licensed or certified practitioner or

provider in good standing with his or her professionÔs

regulatory body in another state. Such information

is reliable if the practitioner or provider has personal

knowledge of the personÔs d isability and is acting

within the scope of his or her practice to provide the

supporting information.

2. Information from any other source that the

housing provider reasonably determines to be

reliable in accordance with the federal Fair Housing

Act and s. 504 of the Rehabilitation Act of 1973.

* * *

(e) Require proof of compliance with state and local

requirements for licensing and vaccinating each

emotional support animal.

(3) REQUEST LIMITATIONS. Ð

(a) Notwithstanding the authority to request

information under subsection (2), a housing provider

may not request information that discloses the

diagnosis or severity of a personÔs disability or any

medical records relating to the disability. However,

a person may disclose such information or medical

records to the housing provider at his or her

discretion.

6 5 . Section 413.08 addresses, among other things, the entitlement of

disabled persons to full and equal access to housing accommodations ,

including the right to keep a service animal 5 in the housing accommodations.

6 6 . Section 413.08(6)(b) states:

An individual with a disability who has a service

animal or who obtains a service animal is entitled to

full and equal access to all housing accommodations

provided for in this section, and such individual may

not be required to pay extra compensation for such

animal. However, such individual is liable for any

damage done to the premises or to another

individual on the premises by the animal. A housing

accommodation may request proof of comp liance

with vaccination requirements.

5 Section 413.08(1)(d), in pertinent part, defines "s ervice animalÒ as follows :

a n animal that is trained to do work or perform tasks for an

individual with a disability, including a physical, sensory,

psychiatric, intellectual, or other mental disability. The work

done or tasks performed must be directly related to the

individualÔs disability [.] È A service animal is not a pet. È

[T] he provision of emotional support, well - being, comfort, or

companionship do not constitute work or tasks for purposes of

this definition.

Note, the distinction between an ESA and a n SA is i mmaterial to the issues in this proceeding.

II. Analytical Framework

67 . The F F HA is patterned after Title VII of the Civil Rights Act of 1968,

as amended by the federal Fair Housing Act. As such, discriminatory acts

prohibited under the federal Fair Housing Act also are prohibited under the

F FHA, and case law interpreting the federal Fair Housing Act is applicable to

proceedings brought under the F FHA. See Brand v. Fla. Power Corp ., 633 So.

2d 504, 509 (Fla. 1st DCA 1994).

68 . In proceedings under the F F HA, the complainant has the burden to

prove a prima facie case of discrimination by a preponderance of the evidence.

§ 760.34(5), Fla. Stat. ; Sec ' y, U.S. Dep't of Hous. & Urban Dev. ex rel. Herron

v. Blackwell , 908 F.2d 864, 870 (11th Cir. 1990). A Ñpreponderance of the

evidenceÒ means the Ñgreater weightÒ of the evidence, or evidence that Ñmore

likely than notÒ tends to prove the fact at issue. Gross v. Lyons , 763 So. 2d

276, 289 n.1 (Fla. 2000).

69 . The federal Fair Housing Act, and, by extension , the F F HA, prohibits

discrimination in the sale, rental, and financing of dwellings, and in other

housing - related matters, based on disability. See Palm Partners, LLC v. City

of Oakland Park , 102 F.Supp. 3d 1334, 1342 (S.D. Fla. 2015) .

7 0 . A complainant can bring a discrimination claim under the federal Fair

Housing Act , and, by extension, the F F HA , for disparate treatment, which

requires a showing of discriminatory intent, or for disparate impact, which

requires a showing that a facially neutral policy h as a discriminatory effect .

See Raytheon Co. v. Hernandez , 540 U.S. 44, 52 - 53 (2003). In this case,

Petitioner claims disparate treatment by Respondent.

7 1 . Discrimination may be prove d through direct or circumstantial

evidence. Valenzuela v. GlobeGround N. Am., LLC , 18 So. 3d 17, 22 (Fla. 3d

DCA 2009).

7 2 . Direct evidence is evidence that, if believed, would prove the existence

of discriminatory intent behind the decision, without any inference or

presumption. Denney v. City of Albany , 247 F.3d 1172, 1182 (11th Cir. 2001);

see also Holifield v. Reno , 115 F.3d 1555, 1561 (11th Cir. 1997). C ourts have

held that "'only the most blatant remarks, whose intent could be nothing

other than to discriminate ... " will constitute direct evidence o f

discrimination ' ." Damon v. Fleming Supermarkets of Fla., Inc. , 196 F.3d

1354, 1358 - 59 (11th Cir. 1999).

7 3 . By contrast, "[e]vidence that only suggests discrimination or that is

subject to more than one interpretation does not constitute direct evidence ."

Saweress v. Ivey , 354 F. Supp. 3d 1288, 1301 (M.D. Fla. 2019). Where there is

no direct evidence of discrimination, fair housing cases are analyzed under

the three - part, burden - shifting framework set forth in McDonnell Douglas

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

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

7 4 . As discussed above, there is no direct evidence showing that

Respondent intends, or intended , to discriminate against Respondent on the

basis of his disability . Accordingly, the McDonnell Douglas burden - shifting

analysis applies in this case. See Savanna Club Worship Serv., Inc. v.

Savannah Club Homeowners' Ass'n, Inc. , 456 F. Supp. 2d 1223, 1232 (S.D.

Fla. 2005).

7 5 . Under this three - part test, the complainant Ð here, Petitioner Ð has the

initial burden of establishing a prima facie case of unlawful discrimination. If

Petitioner sufficiently establishes a prima facie case of discrimination , then

the burden shifts to the defendant Ð here, Respondent Ð to articulate a

le gitimate, nondiscriminatory reason for its actions which are alleged to be

discriminatory. If Respondent meets this burden, the n the burden shifts back

to Petitioner to prove that Respondent's espoused reasons constitute mere

pretext. See Palm Partners, LLC , 102 F. Supp. 3d at 1344 .

III. Alleged Violation s of Section s 760.23 (2), (8), and (9)

7 6 . The Petition alleges conduct by Respondent which, if proven, would

constitute discrimination on the basis of disability in violation of

section s 760.23(2) , (8), and (9) .

77 . To establish a prima facie case of housing discrimination under

section 7 6 0.23(2) , Petitioner must demonstrate that: (1) he is a member of a

class protected under the FFHA; (2) he was qualified, ready, willing, and able

to receive services or use facilities consistent with the terms, conditions,

policies, and procedures of Respondent; (3) he requested the services or use of

facilities, or attempted to use facilities consistent with the terms , conditions,

policies , and procedures established by R espondent for all persons who are

qualified or eligible for services or use of facilities; and (4) Respondent, with

knowledge of Petitioner's protected class, willfully failed or refused to provide

services to P etitioner or permit Petitioner's use of t he facilities under the

same terms and conditions applicable to all persons who are qualified or

eligible for services or use of the facilities. See Noah v. Assor , 379 F. Supp. 3d

1284, 1298 (S.D. Fla. 2019).

A. "No Dogs" and "No Pets" Signs and " Resident Reminders " Flyer

78 . The competent, substantial evidence establishes that Petitioner is

disabled , and that Respondent knew, and knows, that Petitioner is disabled .

In fact , Respondent does not dispute that Petitioner is disabled. Thus ,

Petitioner has established that he is a member of a class of persons protected

under the FFHA from discrimination on the basis of his disability.

Accordingly, the first element of a prima facie case of discrimination is

established.

79 . The competent su bstantial evidence also shows that Petitioner was

qualified, ready, willing, and able to use Respondent's common area facilities

consistent with the terms, conditions, policies, and procedures established by

Respondent for all persons who are qualified or eligible to use those facilities.

Accordingly, the second element of a prima facie case of discrimination is

established.

8 0 . Petitioner attempted to use, and , in fact, did use, Respondent's

common areas , consistent with the terms, conditions, policies, and procedures

established by Respondent for all persons qualified or eligible for use of those

common areas. Accordingly, the third element of a prima facie case of

discrimination is established.

8 1 . Howeve r, as discussed above, the competent, substantial, and

persuasive evidence does not establish the exis tence of the fourth element of

a prima facie case of discrimination Ð that is, that Respondent willfully or

intentionally refused to permit Petitioner acces s to, and use of , the Eden Isles

common areas under the same terms and conditions applicable to all persons

who are qualified or eli gible for services or use of those facilities.

8 2 . As previously discussed , the "Animals" paragraph of the " Resident

Reminders " flyer makes clear that ESAs and SAs are permitted to be kept in

Eden Isles, subject to certain conditions Ð specifically, that they be leashed at

all times while outside of the resident's dwelling unit, and that they must be

"walked" along the sid e street.

8 3 . Although the flyer does not expressly describe what "walking" an

ESA /SA means , Jose Vidal clarified that the provision means that an ESA/SA

can only be "walked," for the purpose of taking them out to urinate or

defecate, in front of the buil dings.

8 4 . As previously discussed , Vidal t estified, credibly, that disabled Eden

Isles residents may access all common areas within Eden Isles, including the

area behind the buildings abutting the canal, the pool areas, laundry rooms,

and mailroom , while accompanied by their ESA/SA.

8 5 . As also found above, Respondent does not interpret the "Animals"

paragraph in the " Resident Reminders " flyer or the "No Pets" and "No Dogs"

signs in the common areas as prohibiting ESAs/SAs from accompanying

disabled Eden Isles residents in those areas.

8 6 . To that point, Vidal credibly testified that Respondent does not

enforce, and has not enforced Ð against Petitioner or any other disabled

resident of Eden Isles Ð a strict "No Dogs"/"No Pets" policy to prohibit

disabled residents from accessing those common areas while accompanied by

their ESA s /SA s .

87 . A s such, the competent substantial evidence does not establish that

Respondent, with knowledge of Petitioner's protected class, willfully failed or

refused to provide se rvices to Petitioner or permit Petitioner's use of the

facilities under the same terms and conditions applicable to all persons who

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

88 . Accordingly, it is concluded that Petitioner failed to establish a prima

facie case of discrimination in violation of section 760.23(2) , due to

Respondent having posted "No Dogs" and "No Pets" signs in common areas

and the " Resident Reminders " flyer containing the "Animals" paragraph in

the Eden Isles Office.

B . Harassment of Petitioner by Individual Eden Isles Residents

89 . The evidence also does not establish the existence of a prima facie case

of discrimination by Respondent in violation of section 760.23( 2 ) , on the basis

of conduct by individual Eden Isl es residents directed toward Respondent.

9 0 . As discussed above, the competent substantial evidence does not

establish that any of the residents involved in the alleged incidents of

harassment directed toward Petitioner were Respondent's Board members at

the time they engaged in the confrontational conduct.

9 1 . Moreover, even if they were, the competent substantial evidence does

not establish that Respondent's Board encouraged, ratified, or otherwise

sanctioned such conduct. Accordingly, these individual incidents of alleged

harassment cannot be as cribed to Respondent.

9 2 . Petitioner appears to contend that Respondent created a hostile

housing environment based on his disability .

9 3 . Courts that have held that to prevail on a hostile housing environment

claim , complainant s must establish that beca use they are a member of a

protected class, 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. Noah v. Assor , 379

F.Supp. 3d 1284, 1290 (S.D. Fla. 2019); West v. DJ Mortg., LLC , 164 F.Supp.

3d 1393, 1398 (N.D. Ga. 2016). Isolated or sporadic incidents of offensive

utterances are not sufficiently severe or pervasive to support a hostile

housing environment claim. See W est , 164 F.Supp. 3d at 1398 .

9 4 . Whether a housing environment is illegally hostile can be determined

only by looking at all circumstances, and the factors to be considered may

include the frequency of the conduct; its severity; whether it is physically

threatening or merely an offensive utterance; and whether it unreasonably

interferes with the use and enjoyment of the premises. See Jackson v. Park

Place Condo. Ass'n Inc. , 619 Fed.Appx . 699, 704 (10th Cir. 2015). See also

Mohamed v. McLaurin , 390 F.Supp. 3d 520, 548 - 51 (D. Vt . 2 019) ( courts that

recognize a hostile housing environment claim under the federal Fair

Housing Act require the plaintiff to prove that the harassment resulted in

constructive eviction); Krieman v. Crystal Lake Apts. L td. Partnership , 2006

WL 1519320, at *12 (N.D. Ill. 2006)( to establish a hostile

housing environment , the harassment must be extreme , rather than merely

rude or unpleasant conduct or uttera nces).

9 5 . In this case, the competent , substantial, and persuasive evidence

established that Petitioner was subjected to verbal harassment on two

occasions by individual E den Isles resident s while he was accompanied by his

ESA/SA in the Eden Isles community Ð once by Gutierrez, outside of the Eden

Isles mailroom , and the other by the unidentified woman while Petitioner

was accompanied by his ESA/SA in the common area behind the

condominium buildings.

9 6 . While the conduct directed toward Petitioner in both of these incidents

was rude and offensive, the evidence did not show that it was physically

threatening, nor does it establish that as a result of these incidents,

Petitioner no longer accesse s the Eden Isles common areas, including the

area behind the condominium buildings or the mailroom . In short, these

isolated incidents were not sufficient ly severe and pervasive to constitute a

hostile housing environment.

97 . With respect to the confrontation between Petitioner and the residents

in the pool area, there was no audio recording accompanying the video

footage from the surveillance camera . Thus, the evidence does not definitively

establish that the se residents confronted P etitioner and physically as saulted

him because he is disabled , rather than directly responding to Petitioner's

conduct directed at them , which they ( understandably ) may have perceived

as provocative.

98 . Finally, Petitioner contended, but presented no evidence showing, that

his rental car was keyed by a resident of Eden Isles, or that this action was

taken specifically to harass him because he is disabled.

99 . For these reasons, it is concluded that Re spondent did not

discriminat e against Petitioner on the basis of disability in violation of

section 760.23(2) , as a result o f two isolated incidents involving offensive and

rude, but not objectively threatening, conduct by two Eden Isles residents . 6

C. Requirement to Request Accommodation via Second ESA/SA Form

10 0 . Petitioner also contends that Respondent violated section 760.23(8)

and (9) by effectively denying his request for an accommodation for his

ESA/SA.

10 1 . However, as discussed above, Petitione r refused to sign the second

page of the Second ESA/SA Form because it required that he agree to comply

"any other rules, regulations, or procedures promulgated by the Association,"

which, as discussed above, Petitioner interpreted Ð inconsistent with the

pl ain language of this provision Ð to mean that he had to agree to comply with

rules, regulations, or procedures adopted in the future, which he contends

nondisabled residents are not required to do.

6 Now that Respondent is on notice, i n order to forestall future similar incidents of

harassment of disabled residents by nondisabled residents who are unaware that disabled

residents are permitted to have ESAs a nd SAs accompany them in the common areas in

Eden Isles , Respondent may consider implementing certain informational measures , such as

erecting additional signs in common areas, informing all residents that ESAs and SAs are

permitted to accompany their owne rs in all common areas within Eden Isles.

10 2 . Setting aside Petitioner's interpretation of the terms and conditions

of the Second ESA/SA Form, the fact is that Petitioner did not complete the

Form and submit it to Respondent. Therefore, as a matter of both fact and

law, Respondent cannot be deemed to have denied his request for an

accommodation to keep his ESA/SA. See Schwarz v. The Villages Charter

Sch., Inc. , 165 F. Supp. 3d 1153, 1173 (M.D. Fla. 2016) (an element of

disability discrimination is that the " plaintiff also must establish that [he or

she] requested an accommodation ," and that the request wa s

denied)(emphasis added).

10 3 . Accordingly, it is concluded that Respondent did not deny Petitioner's

request for an accommodation, in violat ion of section 760.23(8) and (9).

IV. Alleged Violation s of Section s 760.27 and 413.08

10 4 . Petitioner also alleges, on the grounds discussed above, that

Respondent denied his request for an accommodation to allow him to keep his

ESA/SA in Eden Isles, in violation of sections 760.27 and 413.08.

10 5 . For the reasons extensively discussed above, it is concluded that

Respondent's ESA/SA Form for an accommodation to keep an ESA/SA does

not request any information that is not authorized, under section 760.27, to

be requested as a condition of granting an accommodation.

10 6 . Additionally, for the re asons discussed above, it is concluded that

Respondent's requirement for a resident seeking an accommodation in order

to keep an ESA/SA to resubmit the Second ESA/SA Form on an annual basis

is authorized by sections 760.27(2)(e) and 413.08(6)(b).

1 07 . Acc ordingly, it is concluded that Respondent did not deny Petitioner's

request for an accommodation, in violation of sections 760.27 and 413.08.

V . Conclusion

1 08 . Based on the foregoing, it is concluded that Respondent did not

discriminate against Petitioner on the basis of his disability , in violation of

section s 760.23 , 760.27, or pertinent provisions of chapter 413.

R ECOMMENDATION

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

R ECOMMENDED that the Florida Commission on Hum an Relations enter a

final order dismissing the Petition for Relief.

D ONE A ND E NTERED this 14th day of October , 2022 , in Tallahassee, Leon

County, Florida.

S

C ATHY M. S ELLERS

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 14th day of October , 2022 .

C OPIES F URNISHED :

Tammy S. Barton, Agency Clerk Miguel Bravo

(eServed) (eServed)

Marlon E. Bryan, Esquire Lilian Hernandez, Registered Agent

(eServed) (Address of Record)

Henry Graham, Attorney Supervisor Mary Ellen Clark, Esquire

(eServed) (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

case.