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UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF FLORIDA

MS. KANAYO DERHEM and MR. 

MOJTABA E. KOOSEJ,

Plaintiffs,

v.

BAY HOUSE MIAMI CONDOMINIUM 

ASSOCIATION, CHARLES 

BRUMSTED, JR., JAMES PINKERT, 

JOSHUA PAUL, ALEJANDRO 

ENRIQUE UTRERA BADENES, 

JONATHAN FERREIRA, KW 

PROPERTY MANAGEMENT, LLC, 

and JOSE VIDAL,

Defendants.

Case No. 1:20-cv-22318-KMW

PLAINTIFFS’ CORRECTED RESPONSE TO DEFENDANTS’ JOINT MOTION FOR 

SUMMARY JUDGMENT.

Plaintiffs hereby respond to the Defendants’ Joint Motion for Summary Judgment.

STANDARD OF REVIEW OF MOTIONS FOR SUMMARY JUDGMENT

Entry of summary judgment is appropriate when the pleadings, depositions, 

answers to interrogatories, and admissions on file, together with affidavits, show that 

there is no genuine issue as to any material fact and that the moving party is entitled to 

judgment as a matter of law. Summary judgment is not appropriate if a reasonable fact 

finder could draw more than one inference from the facts showing that there is a genuine 

issue of law. Jeffery v. Sarasota White Sox 64 F.3d 590, 594 (11th Cir. 1995).

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STATEMENT OF FACTS

Plaintiffs Ms. Kanayo Derhem (hereinafter, ”Derhem”) and Mr. Mojtaba E. Koosej 

(hereinafter “Koosej”) in 2018 decided to invest in a jointly-owned residential property located in 

Miami, Florida. Koosej, although mostly out of state, actually located the property to be purchased, 

i.e. Unit 2605 in Bay House Miami Condominium building Exhibit D, E 1at paragraphs 3 and 4.

The purchase approval process

Both Koosej and Derhem, on January 19, 2019 each submitted an application for 

occupancy. Mr. Koosej’s application included financial income records reflecting $250,000 in 

annual income. See Defendants’ Exhibit 11 to Motion for Summary Judgment.2 Twenty days came 

and went with little communication from the Association and without approval of the applications 

Finally Jodi Strang, the attorney closing agent being utilized by the Plaintiffs, sent a letter via email

to the Association suggesting that delay in approval was the result of discriminatory animus and 

threatening suit therein Exhibit, WW, D. See Exhibit WW. In immediate reaction to Strang’s 

email, an interview was scheduled with Plaintiffs and Brumsted for that exact same day Exhibit E, 

in paragraph 6.

During their interview, Brumsted pointedly asked Derhem whether she “could have 

children”, a comment made in conjunction with his observation that the Bay House Miami 

Condominium building was a “family-oriented” building. The obvious implication of these 

comments was to suggest that occupancy by a transgender female would be unsuitable in a “familyfriendly building” Exhibit, D, E, III.. 

1 Unless otherwise indicated, references to exhibits identified with letters (A through KKKKK) are references to 

Plaintiffs’ exhibits filed contemporaneously herewith. 

2

In contrast to Plaintiffs’ exhibits, Defendants’ exhibits, filed in conjunction with their Joint Motion for Summary 

Judgment, are numbered. References to defendant’s exhibits throughout this response, unless otherwise indicated, 

will be to numbered exhibits filed by the Defendants in conjunction with their Joint Motion for Summary Judgment.

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Commencement of disputes

Plaintiff Derhem commenced her occupancy of Unit 2605in February, 2019. She

immediately began seeking roommates to share her owner-occupied unit. Fines were quickly 

imposed. Letters imposing finds advised that unless the referenced fines were paid in five days, 

Ms. Derhem and her “guests” would immediately be excluded from the common area building

amenities, which was achieved through the deactivation of the fobs of Unit 2605. See Defendants’ 

Exhibit 27.

During calendar years 2019 and 2020, Unit 2605 was repeatedly fined for having 

roommates despite the absence of any rule, regulation, or Association document prohibiting the 

practice of renting an owner-occupied unit to third party roommates Exhibit, GGGG, H, NN, SS, 

RR, G, UUUU. Furthermore, during these years (2019 through 2021) Derhem and her roommates 

were continuously denied access to common area amenities. See Derhem Affidavit, Exhibit D, 

at paragraph 63.

Fines for having roommates continued up until Brumsted’s resignation as President of the 

BHMCA BOD. Since his resignation, Unit 2605 has only fined 4 times in 2021 (not for illegal 

renters) and none in 2022. Exhibit D at paragraph 259, H, KK. Moreover BHMCA, in 2021, 

refunded many of the fraudulent fines that were discriminatorily levied against plaintiffs based on 

Brumsted and Vidal’s race and sex-based animus, Exhibit, WWWW, I, D, H, KK.

When confronted by Derhem as to why other owners and/ or primary tenants of BHMCA 

units were permitted to have rent-paying roommates, Brumsted explained “I like those guys”

Exhibit, D at paragraph 143 ; Exhibit, NN. At all times material hereto, at least two or more 

units—either owner occupied and/ or occupied by primary lessees- had roommates paying and 

contributing toward rent for unit residency. These other unit residents were neither Black nor were 

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they Transgender. See Affidavit of Kavir Rambharat, Exhibit RR and Affidavit of Sebastian 

Brayshaw, Exhibit SS. These other unit owners/primary lessees, like Derhem, had rent-paying 

roommates, each assigned their own bedrooms. The other occupants and Derhem occupied units 

in the same building, governed by the same Association, subject to the same rules. The only 

difference was that the other residents were not black transgender women.

LEGAL ARGUMENT

COUNT I

VIOLATION OF THE FAIR HOUSING ACT

In evaluating Plaintiffs’ claims thereunder, this Court should keep in mind that the Fair 

Housing Act is the functional equivalent of Title VII. The provisions of these two statutes are

given like construction and application Fox v. Gaines 4 F.4th 1293, 1296 (11th Cir. 2021) (“When 

interpreting the FHA, we – like our sister circuits – look to cases interpreting Title VII, which uses 

language virtually identical to the FHA’s.”)

Title VIII of the Civil Rights Act of 1968, the Fair Housing Act, prohibits discrimination 

against any person in the terms, conditions, or privileges of sale of any dwelling because of race, 

color, religion, sex, familial status or national origin. 42 USC § 3604(b). Regulations enacted 

pursuant to the statutes cited above are even more specific. Code of Federal Regulation 24 CFR 

100.400 in pertinent part provides:

(b) It shall be unlawful to coerce, intimidate, threaten, or interfere with any 

person in the exercise or enjoyment of... any right granted or protected by this part.

(c) Conduct made unlawful under this section includes, but is not limited to, 

the following:

(1) Coercing a person, either orally, in writing, or by other means, to deny or 

limit the benefits provided that person in connection with the sale or rental of a 

dwelling house or in connection with a residential real estate-related transaction 

because of race, color, religion, sex, ...or national origin.

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Direct evidence of discrimination will be highlighted in this response. Circumstantial 

evidence of discrimination will likewise be presented herein. In addition to the foregoing, evidence 

will be offered demonstrating that Defendants – prior to Brumsted’s resignation as President of 

the Association and change in management companies, engaged in a campaign of harassment—

unconnected with renter issues, purposefully and maliciously designed to create such a hostile 

living environment for Derhem so as to drive her from the building Exhibit, EEEEE, NN, RR, 

SS, OO, PP, D, E, F, G. This campaign of harassment was motivated by Brumsted and Vidal’s 

disgust and repulsion to Derhem’s race, sexual orientation and transgender identity Exhibit, I, BB, 

X, D, F, E.

Additionally, Plaintiffs will outline a mosaic of facts – direct and circumstantial – from 

which a jury could reasonably infer that Defendants maliciously discriminated against Plaintiffs, 

particularly Derhem, and that this issue should, therefore, go forward to a jury. 

DIRECT EVIDENCE OF DISCRIMINATION

Direct evidence is evidence that proves a fact without inference or presumption. Sec’y. 

HUD v. Collier 2019 U.S. App. LEXIS 2102 (11th Cir. 2019). If the Plaintiff presents direct 

evidence of discrimination that meets the preponderance of evidence standard, then the evidence 

is sufficient to support a finding of discrimination. A plaintiff with strong direct evidence that 

discrimination motivated the actor’s adverse action does not need to meet or to resort to the threepart McDonnell Douglas analysis to get to a jury regardless of whether his/ her strong evidence is 

circumstantial. Sec’y v. HUD v. Collier 2019 U.S. App. LEXIS 2102 (11th Cir. 2019), citing 

Pinchback v. Armistead Homes Corp. 907 F.2d 1447, 1452 (4th Cir. 1990); Griffith v. City of Des 

Moines 387 F.3d 733, 736 (8th Cir. 2004). 

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Plaintiffs submit that the following facts are direct evidence of discrimination which 

support Plaintiffs’ contention of discriminatory violation of the Fair Housing Act:

1. The Association failed to take action on Plaintiffs’ Applications for Occupancy 

until receipt of the Jodi Strang (Plaintiffs’ Attorney/ closing agent) emailed correspondence 

(Plaintiffs’ Exhibit, WW) threatening litigation, based on discrimination if the applications were 

not acted upon and approved. Strang’s email was sent 24 days after the “20 days” Brumsted, on. 

2. Immediately, upon receipt of Strang’s email, Charles Brumsted scheduled an 

interview with Plaintiffs after many weeks spent in avoidance of Plaintiffs. See Koosej Affidavit, 

Exhibit E ; Exhibit WW, TT, D.

3. During the interview with the Plaintiffs, Charles Brumsted pointedly asked Derhem 

whether she could have children, an obvious reference to her transgender status. The comment was 

made in conjunction with his observation that the building was family orientated, implying that a 

family-oriented building would somehow be unsuitable for occupancy by a transgender woman.

See Derhem Affidavit, Exhibit D, at Paragraph 77 ; Exhibit E ; Exhibit I

4. The Association, in imposing fines, prematurely – and in violation of the Bylaws

of the Association – terminated access of Derhem and her roommates to building amenities, e.g. 

the swimming pool and gym Exhibit HH @par. 20 (less than 90 days); Exhibit WWWW @ 

par. 4. The Association Bylaws permit suspension of access to building amenities only after ninety 

days of delinquency of payment of financial obligations to the Association. See Article IX –

Suspension of Certain Rights, Bylaws of Bay House Miami Condominium Association, Inc. 

(See also F.S. 718.303 which prohibits suspension of rights of access to common area 

amenities until 90 days of delinquency in paying monetary obligations to an association 

expire. 

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6. As the dispute over renters intensified, KW and BHMCA personnel, on occasion,

denied Derhem access to her Unit, forcing Derhem to climb twenty-six stories to reach her unit. 

Derhem Affidavit, Plaintiffs’ Exhibit D, paragraph 275 ; Exhibit IIII; VVV. Denial of access 

to a Unit is a prohibited practice. See Article IX – Suspension of Certain Rights. Defendant’s 

Exhibit 1, bate stamped 0004000. See also F.S. § 718..303.

8, The Declaration of Condominium does not prohibit – and indeed contemplates –

rental of owner-occupied units to third party lessees. See, e.g. Article XXI of the Declaration 

of Condominium which at paragraph 1 provides: 

9. On Dec. 11, 2019, Brumsted (President of the Association) confronted Derhem in 

the lobby area where she was speaking with another unit owner, a Black Gentleman named Mr. 

Brown. In a loud aggressive voice Brumsted asked Derhem whether Mr. Brown was another one 

of Derhem’s purportedly “illegal AirBnB renters.” After Brumsted was advised that Mr. Brown 

was a recent purchaser, Brumsted apologized, but a few moments later, while waiting for an 

elevator, he yelled again and sarcastically suggested that Ms. Derhem should sue the elevator for 

discrimination related to the elevator’s slow arrival. See Brown Affidavit Exhibit X ; Derhem 

Affidavit Exhibit _D

10. Brumsted and Vidal frequently referred to Derhem as a “disgrace to the building”. 

See Derhem Affidavit, Exhibit D, at paragraphs 50, 78, 79, 88, 136 and 185. Exhibit, BB

11. While Brumsted punished Derhem for her practice of renting her owner-occupied

unit to third party roommates, Brumsted not only permitted similar practices by other unit 

owners/prime lessees of other units, he facilitated the practice by assisting those unit 

owners/primary lessees in renting their resident-occupied units to roommates. See Kavir 

Affidavit, Exhibit RR and Sebastian Affidavit, Exhibit SS ; Exhibit, GGGG ; Exhibit, NN

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12. When confronted by Derhem regarding Brumsted’s disparate treatment regarding 

the permissibility of other unit owners who were neither transgender nor black to have rent-paying

roommates, Brumsted explained that, unlike his feelings for Derhem, he “likes those guys.” See 

Derhem Affidavit, Exhibit D, paragraph 143 ; EX_NN, SS, RR, GGGG

13. Mr. Vidal was the Building manager who worked for KW. On one occasion 

Derhem went to Mr. Vidal’s office to ask a question regarding the many election-related emails to 

which he refused to respond. Exhibit, PPP. Mr. Vidal immediately confronted Derhem with a 

“pre-transition photograph” showing Derhem as a man. Through his body language and facial 

expression Mr. Vidal displayed disgust with Derhem’s transgender identity.

See Derhem Affidavit, Exhibit D, paragraph 137..

14. On another occasion, Derhem went to Mr. Vidal’s office with a question. The brief 

meeting deteriorated when, Vidal yelled and screamed at Derhem and proceeded to call the police.

The police officer told Mr. Vidal that there was no legitimate reason to call the police. Exhibit, 

OO, LL, D paragraph 136. On a separate occasion, and at Brumsted’s directive, BHMCA and 

KWPM called the police on Ms. Derhem following the arrival of Derhem’s nail technician to her 

home to provide manicure services. SEE Exhibit D paragraphs 305 and 306, O and D 

15. KW staff manning the front desk refused, on multiple occasions, to provide 

concierge services to Derhem. See Derhem Affidavit, Exhibit, D, paragraphs 87, 117, 118, 300, 

301, and 302. On December 25, 2019, while her mother was visiting, her mother and Derhem 

were at the front desk. The KW employee from an employee named Sarah Lopera advised Derhem 

that she would not provide concierge services to Derhem and further stated that her supervisors

were aware of and approved her refusal to provide concierge services to Derhem. Exhibit, F . On 

yet another separate occasion, this time in front of an un-interested and not materially-involved 

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witness, Sara again refused service to Ms. Derhem. When Derhem raised this incident with 

Brumsted, upon his arrival to the scene, he responded with laughter and stated he wasn’t going to 

get involved. See Derhem Affidavit, Exhibit D, paragraph 118, ; See also Affidavit of Dr. 

Onyekwuluje Affidavit, Exhibit F ; See transcript from the incident with Brumsted’s 

arrival_ Exhibit, BBB.

16. Following the December 30, 2019 Fining Committee Meeting, Brumsted entered 

the room after the meeting and berated the two committee members in attendance for not 

confirming the fines against Derhem. During this exchange, Brumsted referred to Derhem as a 

“monkey”. See Derhem Affidavit Exhibit D, paragraph 61; SEE Derhem’s contemporaneous 

notes detailing the event in real-time as it happened _ Exhibit FF ; Exhibit, AAAAA.

17. On March 19, 2020, a Fining Committee hearing was attended by Derhem and her 

attorney Marlin Muller. As confirmed in Mr. Muller’s Affidavit, Exhibit, ZZZ, Derhem was not 

allowed to participate in the hearing which deprived her of any due process. See also Derhem 

Affidavit Exh D, Paragraph 270. The right of unit members to participate in fining committee 

hearings considering whether to confirm Board imposed fines is found in Article IX of the 

Baylaws, Defendants’ Exhibit 1, at bate stamped page 000400.

18. The Association called a tow company and had Derhem’s automobile, properly 

parked in her unit assigned parking place, towed. At See Derhem Affidavit D. paragraph 294 ; 

Exhibit, QQQQ.

19. On multiple occasions Brumsted, BHMCA president, referred to Derhem as a 

“disgrace to the building”. See prior references to “disgrace” remarks. Exhibit BB; Exhibit D, 

paragraphs 50, 78, 79, 88, 135.

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20. On multiple occasions Brumsted, Vidal and KW personnel called the police falsely 

alleging that Ms. Derhem was not a unit owner and was not entitled to be in the building. See 

Derhem Affidavit, Exhibit D, paragraphs 17, 52, 131, and 136. L ; Exhibit, O.

Following Brumsted’s resignation as President of the Association, in July 2020, Unit 2605 

received no further fines for illegal renters. See Tenant Register for 2020 through March 2021. In 

fact, the ledger reflects that on March 11, 2022 the Association refunded numerous previously and 

fraudulently imposed fines crediting the account of Unit 2605. Exhibit WWWW @par 4, the 

Resident Transaction Report Exhibit WWWW ; Also see Affidavit of Derhem, Exhibit D 

paragraphs 174, 263, 321..

.Although Plaintiffs’ practice of renting their owner-occupied Unit to rent-paying 

roommates has remained consistent since 2019, no fines for illegal renters have been imposed 

since the resignation of Brumsted as President of the Association. Derhem Affidavit, Exhibit D, 

paragraph 241.

POST ACQUISITION CONDUCT

Defendants in their motion suggest that post-acquisition conduct will not support a claim 

for violation of the Fair Housing Act. The Eleventh Circuit has rejected this proposition, noting the

broad language of the statute and the legislative intent to end discrimination in housing. ed in Ga. 

State Conf. of the NAACP v. City of LaGrange 940 F.3d 627, 633 (11th Cir. 2019).

The expansive reach of the statue is further demonstrated by regulations enacted by 

Housing and Urban Development (hereinafter, “HUD”) pursuant to the statute. See Code of 

Federal Regulations 24 CFR 100.400 addressing discriminatory conduct under the Fair Housing 

Act.

The McDonnell Douglas Analysis

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Defendants’ core allegation in seeking application of the McDonnell Douglas Analysis is 

the contention that the Plaintiffs violated rules restricting the rental of owner-occupied renters to 

third-party roommates; that the rules were consistently applied to all unit owners; and that their

imposition of fines and limitations on Plaintiffs were non-discriminatory and not in violation of 

the Fair Housing Act.

However, the documents of the Association do not prohibit the practice of renting an

owner-occupied unit to rent-paying roommates. Exhibit GGGG. The only restrictions cited by 

the Defendants are prohibitions against short-term hotel like rentals. The allegation that the 

Plaintiffs were engaged in short-term hotel-like rentals is unsubstantiated and, in any event, is

denied. See Derhem Interrogatory Answers, Defense Exhibit 17.

In regard to the rental of an owner-occupied unit to third-party roommates, Mr. Brumsted 

and the Association have, in the past, cooperated with unit owners/primary lessees who wished to 

rent their resident-occupied unit to other third-party roommates. See the affidavit of Sebastian 

Brayshaw, Plaintiffs’ Exhibit SS and the affidavit of Rambharat Kavir, Plaintiffs’ Exhibit RR. 

When asked why he (Brumsted, on behalf of BHMCA) did not object to the actions of Mr. Kavir 

in also having rent paying roommates, Mr. Brumsted explained that “he likes those guys” Exhibit, 

NN ; See Affidavit of Derhem, Plaintiffs’ Exhibit D at paragraph 143, Exhibit RR ; Exbibit 

SS. ; Exhibit G ; Exhibit E. 

Prohibition of roommate occupancy was a pretext for discriminatory behavior.

Throughout the occupancy of her unit, Derhem was repeatedly fined for having 

“unapproved” renters in her unit. She and her roommates were consistently denied access to 

common area amenities (for over three years of residency) until the Spring of this year when the 

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Association reactivated the fobs issued to her unit thereby enabling Derhem and her roommate’s

access to common area amenities. Derhem Affidavit, Exhibit D, paragraph 253.

The pretextual nature of the Board’s explanation for the fines and denial of access is 

illustrated by the refusal of the Association or the management company to consider Derhem’s 

prospective roommates for approval. Brumsted’s response to Derhem’s complaints was his 

advice that Derhem vacate the property and abandon her unit, thereby fulfilling Brumsted’s desire 

to rid the BHMCA community of the source continuously fueling his unwarranted and 

unapologetic race and sex-based animus (Derhem). SEE Exhibit NN, EEEEE, I

The pretextual nature of these “offenses” is illustrated by the fact that amenity access was 

recently, unilaterally restored by reactivation of the fobs issued to Derhem’s unit. Derhem 

Affidavit, Exhibit D, paragraph 253. The Tenant Transaction Ledger for calendar year 2020 

and for the first three months of March 2021 reflects credit refunds to Plaintiffs’ account, reflecting 

reimbursement of fines paid in the past for, among other things, having illegal renters. Plaintiffs’ 

Exhibit WWWW, paragraph 4.

Hostile Living Environment

The Fair Housing Act prohibits acts which subject a complainant to a hostile living 

environment as a result of the complainant’s protected status. In Fox v. Gaines 4 F.3d 1293 (11th

Cir. 2021) the Eleventh Circuit Court of Appeal acknowledged that sexual harassment constitutes 

a form of sexual discrimination prohibited by the Fair Housing Act. Citing to United States v. 

Hurt 6y76 F.3d 649, 654 (8th Cir. 2012) the Eleventh Circuit agreed that “Sexual harassment is 

actionable under the FHA when it creates a hostile housing environment or constitutes quid pro 

quo sexual harassment.”

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In the case at bar, Plaintiffs allege that the loathsome acts described above – unrelated to 

the disputes regarding sharing of Plaintiffs’ unit with roommates – created a hostile living 

environment which drove Ms. Derhem to distraction and extreme emotional distress SEE EX, D, 

E, F, ZZZ, G, X. The actions were both subjectively and objectively of sufficient severity to 

support a claim of discrimination resulting in a hostile living environment for Ms. Derhem. 

The objective criteria are satisfied by the nature of the actions of Defendants which would 

be sufficiently egregious and severe to drive a reasonable person from the Building. Examples of 

that behavior are set forth above. The egregious behavior clearly satisfies any objective standard 

as bearing offensive and intolerable to a reasonable person.

The behavior complained of was also subjectively severe and offensive. As a result of this 

behavior, Ms. Derhem became suicidal; experienced significant weight gain; experienced bouts of 

numbing depression and continuous emotional distress and dental health issues See Derhem 

Affidavit, Exhibit D, at paragraphs 4, 5 and 14. See Dr. Onyekwuluje Affidavit, Exhibit F.

The Mosaic Evidence of Discrimination

Satisfaction of the criteria set forth in the McDonnell Douglas analysis is not the only 

avenue for pursuing claims of discrimination in the context of the Fair Housing Act. If through 

circumstantial evidence a plaintiff presents a convincing mosaic of circumstantial evidence that 

would allow a jury to infer intentional discrimination by a decision maker, the issue must be 

submitted to a jury for determination.

This approach to claims of discrimination was adopted by the Eleventh Circuit in Jenkins 

v. Nell 28 F.4th 1243(11th Cir. 2022). In that case, the Eleventh Circuit held that even if a 

plaintiff fails to satisfy the McDonnell Douglas framework for proving prohibited discriminatory 

behavior, a claim can still survive summary judgment if the claimant can establish sufficient 

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circumstantial evidence of discrimination to create a trial issue concerning the decision maker’s 

discriminatory intent. A triable issue of fact exists if the record, viewed in a light most favorable 

to the plaintiff, presents a convincing mosaic of circumstantial evidence that would allow a jury to 

infer intentional discrimination by the decision maker. A plaintiff may establish a convincing 

mosaic by pointing to evidence that demonstrates, among other things, (1) suspicious timing, 

ambiguous statements, or other information from which discriminatory intent may be inferred, (2) 

systematically better treatment of similarly situated individuals, and (3) pretext. 26 F.4th at 1250. 

Based upon all of the foregoing, it is clear that KWPM, BHMCA and other defendants by 

and through the actions and directives of Brumsted and Vidal, who were motivated by 

discriminatory animus to Derhem, due to her identity as a transgender black woman, violated the 

rights of Plaintiffs in violation of the Fair Housing Act. The Motion for Summary Judgment should 

be denied.

COUNT III

Count III of the Second Amended Complaint alleges that the egregious violation of the 

rights of Plaintiffs – especially those of Derhem – by, inter alia, imposition of illegal fines and 

denial of Derhem’s due process rights, were facilitated by certain members of the fining committee 

and by the Association in ratifying Brumsted’s demands for the imposition of fines and 

termination of access to common area amenities. In the Motion for Summary Judgment, 

Defendants argue that there is “not a scintilla” of evidence that the Defendants were acting in 

concert in imposing fines and other sanctions, in a discriminatory manner, against Plaintiffs, 

especially Derhem.

The arguments raised by Defendants in seeking summary judgment as to Counts III and IV 

are fully addressed in arguments raised in connection with Count I, violation of the Fair Housing 

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Act. Plaintiffs have fully documented the impermissible conduct of Brumsted, individual 

members of the fining committee, and the Association which, acting in concert, imposed illegal 

fines and restriction of access to the common areas as a result of discriminatory animus directed 

to Derhem.

The arguments raised in Count I will not be restated herein. By way of example however, 

the following behavior is more than enough to sustain the claims asserted in Counts III and IV:

1. Brumsted and the Association through their wrongful interpretation of the rules and 

regulations of the Association imposed fines on the Plaintiffs for renting their owner occupied 

unit to rent-paying roommates. Sanctions included denying Plaintiffs and their roommates to 

common area amenities for most of the initial two year ownership of Unit 2605.

2. The “rules” Brumsted and the Association, affirmed by the members of the fining 

committee were not uniformly applied. As discussed in detail earlier in this response, occupancy 

of other units by unrelated multiple rent paying roommates was permitted and facilitated by 

Brumsted.

3. The restriction of access to the common areas was illegally imposed, both by the 

Association in imposing fines and in requiring payment of fines within five days of confirmation 

of the fines by the fining committee. This practice, which required the joint participation of the 

Association and the fining committee, greatly diminished the value of Unit 2605 to the Plaintiffs.

4. Members of the fining committee denied Derhem’s right to participate in fining 

committee hearings in violation of her due process rights. See discussion of the March 19, 2020 

disciplinary hearings addressed earlier in this Response.

5. Premature termination of rights to access to common area amenities, i.e. 

termination of access within five days of the imposition of fines.

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Brumsted’s efforts to drive Derhem from the building as a result of his discriminatory 

animus would have been greatly impeded, but for the illegal and improper participation of the 

Association and some members of the fining committee acting as tools to facilitate his vendetta. 

Brumsted would never have been able to destroy the quality of life of Derhem living in 

Unit 2605 but for the active cooperation and assistance of the Association and members of the 

fining committee itself. The only surprising fact in all of this is Brumsted’s failure in his attempts 

to drive Derhem from the Building. She persevered. 

COUNT IV OF THE SECOND AMENDED COMPLAINT

In Count IV, Plaintiffs have asserted a claim for damages arising out of the Association’s 

actions in fining, discouraging and interfering with Plaintiffs’ efforts to procure rent-paying 

roommates to share occupancy of Unit 2605. As alleged in Count IV, and as affirmed throughout 

Derhem’s extensive affidavit, Exhibit D, Plaintiffs purchased Unit 2605 with the intent and 

expectancy that occupancy of that unit would be shared by Derhem and rent-paying occupants. 

Brumsted, President of the Association, persistently opposed that practice and interfered with 

Derhem’s efforts in residing in the unit with roommates. The Association in turn fully supported 

the actions of its President and repeatedly imposed fines on Unit 2605 for having rent-paying

roommates sharing occupancy of the unit with Derhem. 

The Association’s punitive response was not limited to imposing fines. The Association in 

conjunction with the fines denied access to Derhem and her roommates to common area amenities 

if the fines were not paid within five days of confirmation by the fining committee. This practice 

was in direct violation of the Bylaws of the Association and Fla. Sta.e § 718.303 both of which 

prohibit suspension of access to amenities for non-payment of fines prior to ninety days of 

delinquency. 

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Defendants in their Motion for Summary Judgment try to circumvent the ninety day rule 

by noting that denial of access to amenities can be justified by rule violations. However, the 

letters from the Association make suspension of access to amenities contingent on payment of 

fines – not upon ceasing violations of rules. See Defendants’ Exhibit 27. Accordingly the 

suspension of access was tethered exclusively to payment of fines, e.g. financial obligations due 

the Association. Suspension of access to amenities prior to ninety days of delinquency is

improper.

Defendants in defending the Association’s decisions regarding fining Plaintiffs for 

obtaining rent-paying roommates focus exclusively on Section XXII(2) on page 32 of the 

Declaration of Condominium, Defendants’ Exhibit 1. That subsection prohibits short term hotel 

like rentals: “No unit shall be leased or rented by the Unit Owner for transitory or hotel purposes, 

which are hereby defined as (a) rentals for less than thirty (30) days or (b) rentals where the 

occupants of the unit are to be provided services, such as maid service of furnishing of laundry 

or linens.”

In Plaintiff Derhem’s Supplemental Responses to Interrogatories, Defendants’ Exhibit 16, 

she is asked at Interrogatory 12, to identify the dates of occupancy of all renters who had resided 

in Unit 2605. In her answer, Ms. Derhem identifies 10 renters who have co-occupied her unit for 

varying lengths of time. Only one renter, Alan Avila, resided in the unit for less than thirty days.

Notwithstanding, the Association imposed fines for violations of Section XXII (2) from 

early in the Derhem’s occupancy of Unit 2605 through July, 2020. See Unit Transaction Ledger, 

Plaintiffs’ Exhibit XXXX. Furthermore, although the Association imposed fines on different 

occasions, all of which were ultimately paid, there was never any restoration of rights to access 

following payment of fines for alleged illegal renters. Denial of access to common area amenities 

Case 1:20-cv-22318-KMW Document 235 Entered on FLSD Docket 09/08/2022 Page 17 of 21
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persisted unabated throughout Derhem’s occupancy of Unit 2605 until the Spring of 2022 when 

the fobs allowing access to amenities were unilaterally restored by the Association, permitting 

access to common area amenities by all residents of Unit 2605.

Indeed, the governing documents of the Association appear to contemplate co-occupanccy 

by owners with rent paying roommates. For instance, Article XXII of the Declaration of 

Condominium, Section 3, in the final sentence of the final separate paragraph, provides: “The 

Association shall have the right to adopt rules to prohibit dual usage by a Unit Owner and a tenant 

of Common Elements otherwise readily available for use generally by Owners.” If occupancy 

of a unit by the owner and by tenants was prohibited by existing rules and regulations of the 

Association, the issue addressed in the quoted sentence would have no purpose. Furthermore, no 

rules prohibiting dual usage and access to common area amenities by unit owners and their 

tenants residing in an owner occupied unit have been enacted.

In summary, it is apparent that Unit 2605 has been repeatedly fined for having roommates 

when the record reflects only one early instance of occupancy by a roommate for less than thirty 

days. Notwithstanding the intermittent occupancy of Unit 2605 by various renters, Ms. Derhem 

and any roommates have continuously been denied access to common area amenities since the 

issue first arose. These actions have clearly resulted in financial damages, as rentals charged to 

roommates forced Plaintiffs to reduce rent charged to roommates for the privilege of residing in 

Unit 2605. As importantly this practice has materially interfered with Derhem’s enjoyment of her 

Unit and the building amenities, which in large measure induced her purchase.

Defendants also argue that there was no showing of arbitrary non-uniform enforcement 

of the subject rule prohibiting short term rentals. That of course is not true. See earlier portions 

Case 1:20-cv-22318-KMW Document 235 Entered on FLSD Docket 09/08/2022 Page 18 of 21
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of this memorandum addressing Mr. Brumsted’s accommodation of other units in having rotating 

occupancy by rent paying roommates. Of course, Mr. Brumsted liked those guys.

COUNT V

Count V of the Second Amended Complaint alleges a claim against Brumsted, alleging 

that while acting as President of the Association, breached his fiduciary duties owed to Plaintiffs. 

The Joint Motion for Summary Judgement alleges that there is not a “scintilla of evidence” that 

Brumsted violated any common law or statutory fiduciary duty owed the Plaintiffs. This argument 

cannot stand in view of the highly detailed examination of the history of Brumsted’s 

discriminatory behavior directed toward Derhem. 

The history of the creation of a hostile living environment by Brumsted to be endured by 

Derhem is fully documented in earlier portions of this Response. His behavior included the 

inconsistent application of rules and sanctions against Derhem, not imposed against other units in 

the building; interference with fining committee members and committee activities to ensure that 

the sanctions he imposed would be imposed; his slanderous remarks made from time to time to or 

regarding Derhem; his expressions of racial and sexual identity animus found in his social media 

posts; his participation in having Derhem’s car illegally towed from the building garage as 

“abandoned.” These incidents – and so many other highlighted in earlier portions of this 

memorandum demonstrate far more that a “scintilla” of evidence of discrimination actions taken 

by Brumsted in violation of his fiduciary obligations to Derhem as President of the Association.

CONCLUSION

Defendants’ Joint Motion for Summary Judgment should be denied in all respects.

Respectfully submitted,

SIMON, SCHINDLER & SANDBERG LLP

Case 1:20-cv-22318-KMW Document 235 Entered on FLSD Docket 09/08/2022 Page 19 of 21
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Attorneys for Plaintiffs.

 2650 Biscayne Boulevard

Miami, FL 33137

Tel: (305) 576 1300

Fax: (305) 576 1331

Email: Rschindler@miami-law.net

rjsassist@miami-law.net

By:__/s/ Roger Schindler /s/__________ 

ROGER J. SCHINDLER, ESQUIRE

CERTIFICATE OF SERVICE

I hereby certify that a true and correct copy of the foregoing was served via CM/ECF on 

September 8th, 2022 on all counsel or parties of record on the Service List below.

SIMON, SCHINDLER & SANDBERG LLP

Attorneys for Plaintiffs.

 2650 Biscayne Boulevard

Miami, FL 33137

Tel: (305) 576 1300

Fax: (305) 576 1331

Email: Rschindler@miami-law.net

rjsassist@miami-law.net

By:__/s/ Roger Schindler /s/__________ 

ROGER J. SCHINDLER, ESQUIRE

Florida Bar No. 124726

SERVICE LIST

Evelyn Greenstone Kammet

Vernis, Bowling of Miami, P.A.

1680 NE 135th Street

Miami, FL 33181

egreenstone@florida-law.com

egkfiling@florida-law.com

Waynice Green-Musgrove, Esq.

wgreen-musgrove@florida-law.com

yordaz@florida-law.com

Craig J. Shankman

William Thomas Leveille, II

Boyd Richards Parker & Colonnelli, P.L.

100 SE 2nd Street, Suite 2600

Miami, FL 33131

cshankman@boydlawgroup.com

wleveille@boydlawgroup.com

Counsel for Charles Brumsted, Jr.

Case 1:20-cv-22318-KMW Document 235 Entered on FLSD Docket 09/08/2022 Page 20 of 21
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Counsel for Defendants BHMCA, Sean 

Zahniser, James Pinkert, Alejandro Enrique, 

Uterera Badenes and Joshua Paul

Jean Anne Hanrahan

Marshall Dennehey Warner Coleman

& Goggin, P.C.

100 N.E. 3rd Avenue, Suite 1100

Fort Lauderdale, FL 33301

jahanrahan@mdwcg.com

jjvogel@mdwcg.com

Counsel for Defendants KW Property 

Management, LLC, Jose Vidal, and

Jose Ferreira

Case 1:20-cv-22318-KMW Document 235 Entered on FLSD Docket 09/08/2022 Page 21 of 21