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Articles Posted in Fair Housing Act claims

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Nicole-Kurtz-2014-200x300Michael-Hyman-srhl-lawAn article authored by the firm’s Michael L. Hyman and Nicole R. Kurtz was featured as the expert guest commentary column in the online edition of today’s Daily Business Review, South Florida’s exclusive business daily and official court newspaper, and will soon be appearing in the “Board of Contributors” page of the print edition.  The article, which is titled “DOJ Discrimination Suit Over Shoes Left Outside Holds Lessons for Community Associations,” focuses on a decision by a Florida condominium association and its board of directors to refuse to grant an accommodation to allow an owner to leave his shoes outside the front door of his unit in a condominium building with outdoor walkways.  As a result, the association now faces a costly and potentially dire federal discrimination lawsuit brought against it by the U.S. Department of Justice alleging it committed various violations of the Fair Housing Act.  Furthermore, the entire matter has also been chronicled online in an extensive news report by The Daily Beast.  Their article reads:

. . . The website’s article begins by noting that Charlie Burge, the unit owner who sought an accommodation that would allow him to maintain his shoes outside his unit’s front door, is a 9/11 responder who suffers from medical ailments stemming from his front-line work at the World Trade Center site. Before moving to Florida, he had worked for the New York City Department of Sanitation for 35 years, and he spent more than 400 days clearing debris at ground zero. As a result of this work, the article states that Burge suffers from upper respiratory issues, gastrointestinal ailments, skin cancer and PTSD; all of which federal officials have certified as being related to cleanup work performed at the WTC site.

dbr-logo-300x57After he retired in 2015, Burge and his wife Anna moved to a residence they owned at the Links South at Harbour Village, a condominium community on the Ponce Inlet south of Daytona Beach, Florida. In order to avoid aggravating his symptoms, and on the advice of his doctor, the couple began leaving their shoes outside of their front door. As their door is set back by several feet from the outdoor open-air walkway of their building, they were able to keep their shoes in a spot where they would not block anyone’s path.

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Laura-Manning-Hudson-Gort-photo-200x300Firm shareholder Laura Manning-Hudson authored an article that was featured as the guest commentary column in today’s edition of the Daily Business Review, South Florida’s exclusive business daily and official court newspaper.  The article, which is titled “HOA Dispute Over Backyard Playset, Other Amenities Snowballs Into Federal Lawsuit,” discusses an HOA’s dispute over the installation of a backyard playset, spa pool, barbecue and other amenities in a Georgia community that has escalated into a federal lawsuit alleging violations of the Fair Housing Act due to discriminatory housing practices.  Laura’s article reads:

. . . As was chronicled in a recent article in the Gainesville Times newspaper, Martin Moreira and his wife Zulema filed suit against the Pointe West Homeowner’s Association after their plans for a backyard makeover were nixed by the association. They filed the discrimination complaint in federal court in April after the HOA had issued fines and placed a lien against their home in the community located in Oakwood, in northern Georgia.

The dispute arose in the spring 2017 when the Moreiras submitted plans to the HOA to install a play area for their grandchildren as well as a barbecue, spa pool, fireplace, gazebo and other amenities in their backyard. The architectural control committee for the association rejected the project and requested additional information on several items for continued consideration.

dbr-logo-300x57The committee continued to reject the project after the supplemental information was submitted, but the complaint alleges that its members then went further than ever before. It states: “In deviation from established practice, ACC members went to the Hall County Building Department and demanded all information regarding Moreira’s application. Hall County Building Department staff later confided with Moreira’s architect, Jack Bailey, that ACC members were looking for something to kill the project.”

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ElizabethBowen-srhl-law-2-200x300Firm shareholder Elizabeth A. Bowen authored an article that appeared as the “Board of Contributors” guest commentary column in today’s edition of the Daily Business Review, South Florida’s exclusive business daily and official court newspaper.  The article, which is titled “Suit Against Association for Emotional Support Animal Denial Sends Message to Fla. Condos, HOAs,” discusses the implications of a recent lawsuit by Broward County against a Lauderhill condominium association for alleged violations of fair housing laws over its denial of an emotional support animal for a unit owner.  Her article reads:

Emotional support animals have been in the news quite a bit during the last couple of years. There have been reports of airline passengers boarding with a peacock, hamster, pig, a duck wearing a diaper and a squirrel. As a result, companies have started to change their policies, and the public’s attitudes and perceptions toward ESAs also appear to be changing.

Frontier Airlines recently announced its new policy to allow only cats and dogs as emotional support animals. It joined Spirit Airlines, Delta Air Lines, United Airlines and American Airlines, which have all tightened their policies on ESAs this year. Publix also banned them from its stores and posted signs reading: “For food safety reasons, only service animals that are specifically trained to aid a person with disabilities are permitted within the store.”

esupdog-300x234These new policies and signs have raised awareness of the perceived abuse of ESAs by people trying to take advantage of federal disability laws in order to take their pets into businesses. As a result of the growing skepticism, community association boards of directors can easily fall into the trap of disregarding requests for accommodations for ESAs and summarily rejecting them.

A recent lawsuit by Broward County against a Lauderhill condominium association illustrates the potential pitfalls of such uninformed actions by associations. The county filed suit in federal court against the Environ Towers I Condominium Association seeking damages and injunctive relief for its alleged violation of federal fair housing laws as well as the Broward County Human Rights Act. Continue reading

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MTobacksrhl-law2-200x300The firm’s Michael Toback authored an article that was featured as the “Board of Contributors” guest commentary column in today’s edition of the Daily Business Review, South Florida’s exclusive business daily and official court newspaper.  The article, which is titled “Case to Watch: HUD Complaint Against Condo Association Ban on Religious Meetings,” focuses on a recent complaint to the Department of Housing and Urban Development regarding alleged Fair Housing Act violations by a Florida condominium association that banned religious meetings from its community room.  Michael’s article reads:

Bans of any kind against the use of the community room, such as those for specific gatherings, should be considered only after prudent consultation with experienced legal counsel. Furthermore, a ban against religious gatherings can prove particularly troublesome due to the potential for violations of the federal Fair Housing Act.

Such cautious considerations may have been overlooked in the decision by a board of directors of a Port Charlotte condo association to prohibit prayers and religious meetings in their community’s common room. The ban by the association for the Cambridge House of Port Charlotte led to the filing of a complaint with the U.S. Department of Housing and Urban Development alleging violations of the federal Fair Housing Act as well as Florida condominium laws.

The complaint was filed on March 6 on behalf of Cambridge House resident Donna Dunbar, who is a lay minister in the Seventh Day Adventist Church and the leader of a women’s Bible study group that formerly met in the Cambridge House common room for two hours on Monday mornings. It alleges that on Feb. 6 the Cambridge House’s board of directors adopted a resolution to prohibit prayers, religious services and religious meetings in the common areas.

The allegations also state that Dunbar and her Bible study group faced discrimination before the Cambridge House prohibited their meetings, claiming that the board of directors had previously required her to purchase insurance in order to hold the gatherings. Dunbar claims this requirement was despite the Cambridge House not mandating that other groups holding movie and game nights obtain similar coverage.

Dunbar_Piano_Image-1-300x225After the ban was imposed, Dunbar alleges that religious displays at Cambridge House were removed, including the removal by property management staff of a St. Francis of Assisi fountain and statue. Dunbar further claims that a sign was posted on an organ in the lobby declaring: “ANY AND ALL CHRISTIAN MUSIC IS BANNED!”

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Condominium association boards of directors are always considering measures to help maintain and enhance the quality of life of their community’s owners and residents.  Some associations grow concerned about too many occupants per unit and the burden that additional residents place on a community’s amenities and services, so they decide to implement occupancy restrictions in order to limit the number of people residing in each unit.

However, as a Palm Beach County condominium recently found out, overly aggressive occupancy restrictions have the potential to run afoul of the federal Fair Housing Act bans on discriminatory housing practices against couples with children, and nonprofit housing agencies are willing and able to take up the case of aggrieved residents or proposed residents.

A fair housing advocacy group called the Fair Housing Center of the Greater Palm Beaches filed suit in federal court recently against the condominium association for the Fontana Condominium in Palm Beach as well as its president and property manager.  The suit alleges that the defendants have discriminated against families, including those with minor children, by enacting and enforcing policies that limit the number of persons and children who may reside in the community’s units.  It is seeking preliminary and injunctive relief as well as damages for the alleged discrimination against familial status in housing that violates the Fair Housing Act and the Civil Rights Act of 1968.  The suit also seeks punitive damages, attorneys’ fees and a court order mandating that the defendants establish a victims’ fund for those were victimized by their discrimination.

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RobertoBlanch2013As leaders in the field, our firm’s community association attorneys are often contacted by journalists for their insights into timely issues involving condominium associations and HOAs.  The latest example of one of our partners serving as an industry source on association topics comes in an article featuring quotes and analysis from Roberto C. Blanch that appears on the front page of today’s Daily Business Review, South Florida’s only business daily and official court newspaper.

The article focuses on a complaint to the U.S. Department of Housing and Urban Development against a Florida condo that is accused of religious discrimination for prohibiting prayers and religious meetings in its social rooms.  The association for the Cambridge House condominium in Port Charlotte is alleged to have violated the Fair Housing Act when its board voted to forbid religious meetings in the common rooms.

Dunbar_Piano_ImageThe complaint, which was filed earlier this week, is on behalf of resident Donna Dunbar against both the association as well as its management company.  It states that as a lay minister in the Seventh Day Adventist Church, Dunbar led a women’s Bible study group with about 10 women, including Cambridge House residents and guests, in a common room for two hours on Monday mornings, but the board of directors voted Feb. 6 to prohibit prayers, religious services and religious meetings in the common areas.  It then posted a sign on an organ in the lobby reading “ANY AND ALL CHRISTIAN MUSIC IS BANNED!”.

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Firm 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.

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At the start of summer, associations should evaluate their pool rules and procedures in addition to conducting all of the necessary inspections of their pools, spas and related equipment.

With the help of qualified professionals, the inspections should include all pools and pool equipment as well as the surrounding amenities, including gates, fences, signs, locker rooms, etc.

Association pool rules should focus on health and safety, and should avoid focusing on classes of protected persons, particularly families with children.  Making the activities of children the focus of prohibitory rules can substantially increase the potential that an association will receive a complaint alleging discriminatory conduct under federal, state and local fair housing laws.  Even prohibiting something as seemingly innocuous as “pool toys” could be deemed discriminatory, if directed specifically at children, rather than at all persons.

Likewise, unless your community avails itself of the Housing for Older Persons exemption to the anti-discrimination provisions of the Fair Housing Amendments Act of 1988, designating “adults only” pools or use times may give rise to FHA violations.  Furthermore, some courts have found that not permitting children access to pools and other amenities unless accompanied by parents could also give rise to FHA violations.

pool-rulesSome of the most common safety-related rules include:

  • No running.
  • No glass containers.
  • No diving in shallow areas.
  • No pushing, horseplay, roughhousing, or dunking.
  • No smoking and/or tobacco products in the pool area.

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With the approval of Amendment 2 last November to legalize the use of medical marijuana in Florida, the state legislature and Department of Health are now developing the rules and regulations that will govern the use of cannabis by those who suffer from a number of ailments listed in the new constitutional amendment.  Likewise, now is also the time for associations to begin discussing and considering the implementation of their own rules and restrictions regarding the use of the drug by unit owners in their communities.

For most communities, the question of whether the use of medical marijuana should be allowed in the common areas will likely cause the most unease.  Other concerns include the use of cannabis inside of the residences, especially in condominiums where the odor could permeate into the common elements or other residences, and some properties may wish to ban the drug from the community in its entirety.

It remains unclear whether the state’s lawmakers will attempt to ban the smoking of medical marijuana.  If smoking marijuana is allowed under the laws that will be adopted in order to comply with the amendment, community associations will need to address whether they must make exceptions to their rules in order to allow residents with a doctor’s prescription to smoke medical marijuana.

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Disagreements over service animals have consistently ranked among the most prevalent types of disputes that arise between community associations and their residents. In South Florida alone we have witnessed numerous investigations concerning discrimination claims —many of which still serve as stark reminders of the severe implications of mishandling requests for service animal accommodations.

Most government investigations begin with a complaint from a resident indicating that their request for assistance animals had been denied or that they had refrained from requesting an assistance animal for fear of being evicted.

In light of the patterns we have seen throughout the years, associations should refrain from automatically denying requests for permission to keep service or emotional support animals without first requesting additional information from the resident. By law, associations are entitled to make inquiries in order to determine if the request is legitimate and whether a service or emotional support animal is a necessary accommodation in order for the resident to have an equal opportunity to use and enjoy their dwelling.

sdogAssociations are entitled to inquire about how the disability affects the resident’s major life activities (walking, breathing, working, seeing, hearing are examples of some defined major life activities), and how the animal assists the individual with any major life activity that is impaired by their disability when the disability or the need for the requested accommodation is not apparent.  Associations may also request that the resident provide this information from their doctor.

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