Article by Michael Chapnick in Today’s Daily Business Review: “Ruling Illustrates Unpredictability of Fair Housing Litigation for Associations”

MichaelChapnicksrhl-law-thumb-120x180-94116Firm partner Michael E. Chapnick authored an article that appeared as a “Board of Contributors” guest column in today’s edition of the Daily Business Review, South Florida’s exclusive business daily and official court newspaper.  The article, which was titled “Ruling Illustrates Unpredictability of Fair Housing Litigation for Associations,” focuses on a recent ruling by the First District Court of Appeal that highlights the unpredictable nature of Fair Housing Act litigation for unwary associations.  Michael’s article reads:

The decision came in the case of Harbour Pointe of Perdido Key Condominium Association v. Henkel, which originated from a housing discrimination complaint filed by James Henkel with the Florida Commission on Human Relations pursuant to the Fair Housing Act.  Henkel alleged that the association committed discriminatory housing practices by making modifications to the closing pressure of doors that rendered many of the common areas at his condominium inaccessible to him.

The administrative law judge with the Division of Administrative Hearings presiding over the case concluded that Henkel had failed to establish that the association discriminated against him based on his handicap, but the commission disagreed with the ALJ’s conclusions of law and ruled against the association.

In the association’s subsequent appeal before the First DCA, the majority found that the commission erred in its determination that the association had committed discriminatory housing practices by allegedly making modifications to the opening pressures of doors that rendered them noncompliant with the Fair Housing Act’s standards.  The two judges concluded that the ALJ properly found that Henkel had not proven a prima facie case of discrimination because the association did not design or construct the condominium.  They also ruled that the evidence was insufficient to show that the association had modified the doors, as its oversight of the property had recently been transferred from the original developer.

dbr-logo-300x57A concurring opinion states: ” … the respondent did not design or construct Mr. Henkel’s building, nor make any alterations to the disputed door pressures after assuming ownership of the building.” It goes on to find that evidence indicated the door pressures were not adjustable.

Michael’s article concludes:

In the dissenting opinion, Judge Scott Makar writes that Henkel is seeking to have the access he had previously enjoyed to the condominium’s pool and other common areas be restored by such measures as ensuring that the closers on entry doors meet push-weight requirements. The unit owner contended that property management had refused to re-adjust the opening force settings to accessible levels.

The opinion states that the ALJ found that the entry doors were out of compliance with push-weight standards but concluded that no actionable claim based on door pressures existed. The Florida Commission on Human Relations rejected the ALJ’s recommendation, concluding that although the design and construction standards only applied to new additions, the failure to maintain the standards for pre-existing features (e.g., pressures for the closers on the entry door) was actionable.

“Requiring subsequent owners to maintain a building’s original accessibility features makes sense; a gaping loophole would exist otherwise if subsequent owners could fail to maintain accessibility features such as door closers … Imagine if elevators/ramps aren’t maintained and became inoperable/impassible,” writes Judge Makar.

The dissenting opinion concludes that Henkel is not asking the association to redesign or replace the doors, only that they be maintained by adjusting the closers to appropriate push-weights, which is not a request for a structural alteration or modification for which he must pay. “Door closers can be tricky to adjust, but that doesn’t provide a defense for not maintaining them … the original design met accessibility standards, which the subsequent purchaser is required to maintain. The Association is only being asked, at least as to the entry doors at issue, to maintain their push pressures at accessible levels, which seems a small lift.”

The divided ruling in this case, which featured a disabled unit owner representing himself without legal counsel, illustrates the challenging and unpredictable nature of FHA complaints and litigation for community associations.

Our firm salutes Michael for sharing his insights into the takeaways from this divided ruling for Florida community associations.  Click here to read the complete article in the newspaper’s website (registration required).