
    HARBOUR POINTE OF PERDIDO KEY CONDOMINIUM ASSOCIATION, INC., Appellant, v. James HENKEL, Appellee.
    CASE NO. 1D15-3123
    District Court of Appeal of Florida, First District.
    Opinion filed April 13, 2017.
    Jay Roberts of Becker & Poliakoff, P.A., Ft. Walton, for Appellant.
    Appellee James Henkel, pro se.
   RAY, J.,

This appeal originates from a housing discrimination complaint filed by James Henkel with the Florida Commission on Human Relations (“Commission”) pursuant to the Fair Housing Act, sections 760.20-760,37, Florida Statutes (2012). Mr. Henkel alleged that Harbour Pointe of Perdido Key Condominium Association, Inc. (“Association”) committed discriminatory housing practices by making modifications that created inaccessible routes and entries to public and common use areas at the condominium where Mr. Henkel resides. After an evidentiary hearing before the Division of Administrative Hearings, the Administrative Law Judge (“ALJ”) issued a recommended order to the Commission, concluding that Mr. Henkel had failed to establish that the Association discriminated against him based on his handicap and recommending dismissal of the complaint. The Commission disagreed with the ALJ’s conclusions of law, and the Association appealed the final order of the Commission.

We find merit in the Association’s argument that the Commission erred in its determination that the Association committed discriminatory housing practices by allegedly making modifications to the opening pressures of the entrance and exit doors of the condominium that rendered them non-compliant with the Fair Housing Act’s design-and-construction standards. While the ALJ found that “[t]he subject doors have opening pressures that vary, but are usually out of compliance with applicable Florida and Federal standards for handicap access,” the ALJ properly concluded that Mr. Henkel had not proven a prima facie case of discrimination because the Association did not design or construct the condominium, and the evidence was insufficient to show that the Association had modified the doors since ownership of the condominium was transferred and the Association became responsible for the management and operation of the condominium. See Harding v. Orlando Apartments, LLC, 748 F.3d 1128, 1134 (11th Cir. 2014) (holding that purchaser of apartment complex who was not involved in the design or construction of the dwelling was not liable for the failure of the apartment complex to comply with federal Fair Housing Act design-and-construction standards). Accordingly, we reverse the order under review and remand for further proceedings consistent with this opinion. In all other respects, the order is affirmed.

AFFIRMED in part, REVERSED in part, and REMANDED.

OSTERHAUS, J., CONCURS WITH OPINION; MAKAR, J., DISSENTS.

OSTERHAUS, J.,

concurring.

I am sympathetic to the difficulties faced by Mr. Henkel at his condominium and wish that the lobby doors would better allow him to move freely in and out of the building. But the merits of Mr. Henkel’s legal case must turn on the terms of the statute under which he sued. The problem with his Fair Housing Act (FHA), 42 U.S.C. § 3601, et seq., claim is that the law doesn’t allow Mr. Henkel to visit his accessibility problems arising from the design and construction of his building upon a subsequent owner of his building, the respondent condominium association in this case.

To be sure, § 3604(f)(3)(C) of the Act forbids discrimination connected with “the design and construction” of a covered dwelling. The Act specifically says:

(3) For the purposes of this subsection, discrimination includes—
(C) in connection with the design and construction of covered multifamily dwellings, a failure to design and construct those dwellings in such a manner that—
(i) the public use and common use portions of such dwellings are readily accessible to and usable by handicapped persons;
(ii) all the doors designed to allow passage into and within all premises within such dwellings are sufficiently wide to allow passage by handicapped persons in wheelchairs; and
(iii) all premises within such dwellings contain the following features of adaptive design:
(I) an accessible route into and through the dwelling[.]

In this case, however, 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. Rather, according to the facts found by the administrative law judge below:

• The condo was developed by an entity named Harbour Pointe Land and Finance, LLC, to whom Respondent is a successor in interest;
• “Respondent had no role in the design or development of the Condominium”;
• The subject entrance and exit doors have opening pressures that vary, but are usually out of compliance with applicable [standards]”;
• “Although the door pressures were out of compliance, Respondent did not install the doors and the evidence was insufficient to show that Respondent altered the doors since it took over operations”; and
• “Despite Petitioner’s allegations, the evidence does not support a finding that any of the door closers that are out of compliance have been altered since ownership of the Condominium was transferred and Respondent became responsible for management and operation of the Condominium.”

These findings were firmly supported by the testimony of multiple witnesses. In fact, the evidence indicated the door pressures aren’t even adjustable. A former association manager testified that in responding to Mr. Henkel’s complaint, “[w]e did have maintenance try to adjust the doors, but they were not adjustable.”

Because Respondent had nothing to do with the design and construction of the condominium’s lobby doors, the Act’s discrimination in § 3604(f)(3)(C) does not apply to it, or require it to fix the nonconforming doors. The FHA’s terms squarely visit design-and-construction discrimination on entities that discriminate “in connection with the design and construction.” And this court is not at liberty under the statute to turn subsequent property owners into guarantors of noncompli-ant designs and construction. Congress could have done it, but not us.

The Eleventh Circuit nailed this issue in Harding v. Orlando Apartments, LLC, 748 F.3d 1128 (11th Cir. 2014), in which a petitioner also attempted to shoehorn an FHA design-and-construction claim against a subsequent owner of his apartment complex. The Eleventh Circuit panel unanimously rejected the claim, finding the statute not to visit design-and-construction discrimination liability on subsequent owners.

Despite the fact that BHDR was not involved in the design or construction of the District, all of Harding’s claims that BHDR violated subsections (f)(1) and (f)(2) are alleged through the lens of the design-and-construction guidelines in subsection (f)(3). Harding alleged a series of inaccessible conditions resulting from Orlando Apartments’ initial failure to comply with the guidelines and argued that BHDR’s failure to remedy those conditions constitutes an independent act of discrimination prohibited by the FHA. Harding’s underlying premise is that § 3604(f)(3)(C) not only requires designers and builders to adhere to certain standards of accessibility but also imposes an ongoing duty on subsequent owners to ensure that a dwelling conforms to those standards. As the FHA’s plain text demonstrates, this premise is erroneous.

Harding at 1131. The Eleventh Circuit correctly noted that the statute’s text connects liability for design-and-construction-related discrimination explicitly to a dwelling’s actual design and construction: “discrimination includes .., —(C) in connection with the design and construction of [a covered dwelling], a failure to design and construct those dwellings in [a non-accessible] manner[.]” 42 U.S.C. § 3604(f)(3)(C) (emphasis added); Harding, 748 F.3d at 1132 (discussing the "plain text” and Congress’ intent). Whereas here, similar to the facts in Harding, the ALJ found that “Respondent had no role in the design or development of the Condominium .., [and had not] altered the doors since it took over operations.”

For these reasons, despite having sympathy for Mr. Henkel’s difficult situation, the text of the FHA prevents us from finding his condo association liable for discrimination and forcing it to modify or replace the doors.

MAKAR, J.,

dissenting.

James Henkel, wheel-chair bound and without a lawyer, sought to correct problems with three doors (entry, pool, and dock) that impeded his access to public spaces at the condominium complex where he resides. In his petition to the Florida Commission on Human Relations, he asked that the access he previously enjoyed be restored. He specifically said he was not asking for modifications to the design/construction of the doors, only that access be restored by, for example, ensuring that the closers on entry doors meet push-weight requirements so that he can push on doors and enter as he did in the past (“Condo management refuses to readjust these door opening force settings to accessible levels despite our many complaints at board meetings and repeated letters.”).

After a hearing, the administrative law judge (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, relying on an Eleventh Circuit case, Harding v. Orlando Apartments, LLC, 748 F.3d 1128, 1132 (11th Cir. 2014). That case held that subsequent owners need not comply with design-and-construction standards, which don’t apply to owners other than those who initially designed and constructed the housing in question. Id. at 1134. Here, the ALJ also concluded that the pool door added by the current owners had been brought into compliance and that Henkel was not permitted access to the dock as a non-slip owner.

The Florida Commission on Human Relations rejected the ALJ’s recommendation, concluding that although the design and construction standards only applied to new additions (such as the pool door), the failure to maintain the standards for preexisting features (e.g., pressures for the closers on the entry door) was actionable, citing to Question 21 in the Joint Statement of the HUD and DOJ:

21. May owners of covered multifamily buildings designed and constructed in compliance with the Fair Housing Act make subsequent changes to the building so that it no longer meets the Act’s requirements?
Original and subsequent owners of covered multifamily buildings that were designed and constructed in compliance with the Fair Housing Act’s design and construction requirements must maintain the building’s accessible features so that the building continues to meet the Act’s requirements,

(Italics added). 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 on the premise that doing so involves a modifying design or construction standards for which they aren’t legally responsible. Imagine if elevators/ramps aren’t maintained and became inoperable/impassible. This type of “failure to maintain” claim is neither novel nor extravagant. The Joint Statement is not the law—it’s only guidance—but courts have entertained such claims under the FHA. See, e.g., Mehta v. Beaconridge Improvement Ass’n, 432 Fed.Appx. 614, 616-17 (7th Cir. 2011) (“Under the FHA, a homeowner may sue a homeowners’ association if the association engages in invidious discrimination when failing to provide maintenance services or when limiting the use of privileges, services, or facilities associated with the homeowner’s dwelling.”); The Comm. Concerning Cmty. Improvement v. City of Modesto, 583 F.3d 690, 714 (9th Cir. 2009) (“In common parlance, issues relating to ‘maintenance or repairs’ or ‘services or facilities associated with a dwelling tend to be issues arising after the tenant or owner has come into possession of the dwelling and sought out maintenance, repair, or services.”); Cox v. Phase III, Invs., CIV.A. H-12-3500, 2013 WL 3110218, at *7 (S.D. Tex. June 14, 2013) (section 3604(a) of the FHA has been “construed this provision to prohibit ‘failing or delaying maintenance or repairs’ of the plaintiffs dwelling because of race”); Matarese v. Archstone Pentagon City, 761 F.Supp.2d 346, 363 (E.D. Va. 2011) (individual with chemical sensitivity asserted claim that “neutral policy of routine maintenance” with regular paints was discriminatory, but failed to present “evidence of the application of this policy on others” with her disability); Savanna Club Worship Serv., Inc. v. Savanna Club Homeowners’ Ass’n, Inc., 456 F.Supp.2d 1223, 1230 (S.D. Fla. 2005) (“[I]n the context of planned communities, where association members have rights to use designated common areas as an incident of their ownership, discriminatory conduct which deprives them of exercising those rights would be actionable under the FHA.”); Congdon v. Strine, 854 F.Supp. 355, 363 (E.D. Pa. 1994) (on a claim that building elevator not maintained, owner demonstrated that “he had a regular elevator maintenance contract” and had made other accommodations to claimant, thereby defeating the claims).

Keep in mind that Henkel was 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. If he wanted wider doorways, which would require demolition and new construction, he might be required to pay. 42 U.S.C.A. § 3604(f)(3)(a) (2017); § 760.23(9), Fla. Stat. (2017). But he just wants to get through the doorways like he did in the past. Door closers can be tricky to adjust, but that doesn’t provide a defense for not maintaining them.

Finally, Harding doesn’t apply here because that case involved a claim against a subsequent owner for accessibility problems created during the initial design and construction phase by the original owner when incorporating accessibility features was easier. As the Eleventh Circuit concluded, the sins of the original owner are not visited upon the subsequent purchaser. In contrast to Harding, as the Commission noted in this case, “there is no allegation that the Condominium in question was initially out of compliance with the applicable design-and-construction guidelines when it was built.” Instead, 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 them push pressures at accessible levels, which seems a small lift. Affirmance of the Commission’s conclusion is proper, 
      
      . The Commission’s Order did not dispute the ALJ's findings, nor make any attempt to state "with particularity in the order, that the findings of fact were not based upon competent substantial evidence.” § 120.57(1)(Z), Fla. Stat.
     
      
      . The Commission's decision and Judge Ma-kar’s opinion cite guidance from the joint statement of two federal agencies as the basis for extending the FHA's coverage to subsequent owners and to this particular Respondent. But the guidance they cite doesn't apply to the facts here. Question 21 of the Joint Statement of HUD and DOJ asked: "May owners of [covered dwellings] make subsequent changes to the building so that it no longer meets the Act’s requirements?” It is true that the guidance answered this question "no.” But Question 21 doesn't apply here because Respondent made no subsequent changes to the lobby doors.
     