STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

CARLOS GOMEZ, )

)

Petitioner, )

)

vs. ) Case No. 97-3376

)

RAMON NUNEZ, )

)

Respondent. )

)

RECOMMENDED ORDER

A final hearing was conducted in this case on July 14, 1998, in Miami, Florida, before Judge Michael M. Parrish, an Administrative Law Judge of the Division of Administrative Hearings.

APPEARANCES

For Petitioner: Mr. Carlos Gomez, pro se

7225 West 11th Court, Apartment 128

Hialeah, Florida 33014

For Respondent: Rene J. Gonzalez-Llorens, Esquire

Shutts & Bowen 1500 Miami Center

201 South Biscayne Boulevard Miami, Florida 33131

STATEMENT OF THE ISSUE

The issue in this case is whether the Respondent has committed a discriminatory housing practice based on the Petitioner's physical handicap, in violation of the Fair Housing Act, Sections 760.20-760.37, Florida Statutes.

PRELIMINARY STATEMENT

At the final hearing in this case, the Petitioner testified on his own behalf and offered twenty exhibits, all of which were received in evidence. The Respondent testified on his own behalf and also presented the testimony of his wife, Linda Nunez. The Respondent also offered three exhibits, all of which were received in evidence.

At the conclusion of the hearing the parties were allowed ten days from the date of the final hearing within which to file proposed recommended orders. The parties did not order a transcript of the final hearing. On July 23, 1998, the Petitioner filed a written statement containing his arguments in support of his position. On July 27, 1998, the Respondent filed proposed findings of fact and conclusions of law. The post- hearing submissions of the parties have been carefully considered during the preparation of this Recommended Order.

FINDINGS OF FACT1

1. In September of 1993, the Petitioner rented an efficiency unit from the Respondent. They had an unwritten month-to-month tenancy agreement. In addition to the monthly rent for the efficiency unit, the Respondent also billed the Petitioner monthly for the electricity used in the efficiency unit. The Petitioner resided in the efficiency unit with his wife. The efficiency unit was part of the house in which the Respondent lived with his wife and their minor child.

2. In September of 1993, the Petitioner was suffering from the disease Lupus. When he rented the efficiency the Petitioner told the Respondent that he was suffering from Lupus and provided the Respondent with some information about the disease. As a result of the Lupus, in September of 1993, the Petitioner suffered from symptoms which were, to some extent, disabling, but at that time the Petitioner was still able to work and was employed as a security guard.

3. For approximately two years the Petitioner and the Respondent had a substantially harmonious relationship. During that time the Petitioner and his wife were frequently invited to participate in social occasions in the Respondent's home. During that time the Respondent twice loaned money to the Petitioner so that the Petitioner could buy automobiles. On several occasions the Respondent worked on the Petitioner's automobiles without charging the Petitioner for his labor. On several occasions the Respondent helped the Petitioner find work when the Petitioner was unemployed.

4. During 1995 the Petitioner was hospitalized as a result of his Lupus and other medical complications caused by the Lupus. During the course of the 1995 hospitalization, all of the Petitioner's toes were surgically removed and portions of all ten of his fingers were surgically removed. After a lengthy hospitalization, the Petitioner returned to reside in the efficiency unit he rented from the Respondent.

5. While recuperating from the surgery, it was necessary for the Petitioner to use a wheelchair. To facilitate the Petitioner's access to the efficiency unit, the Respondent built and installed a ramp at the entrance to the efficiency unit.

6. During the Petitioner's recuperation, the Petitioner's wife had to make a two-week trip to Cuba. The Respondent installed an intercom between the efficiency unit and the portion of the house in which the Respondent resided, so that the Petitioner would be able to contact the Respondent if he needed assistance. While the Petitioner's wife was in Cuba, the Respondent's wife assisted the Petitioner on several occasions and prepared several meals for the Petitioner.

7. During the latter part of 1995 the Petitioner's attitude and conduct began to change. He became very confrontational and argumentative. He also made a number of threatening statements to his wife, to the Respondent's wife, and to others. He also engaged in frequent loud and abusive arguments with his wife.

8. On November 14, 1995, the Petitioner's wife called the police because her husband had threatened to kill her and himself with a revolver. The police impounded for safekeeping the Petitioner's .38 caliber revolver and several rounds of ammunition.

9. During the following months, the Petitioner continued to be confrontational and argumentative, and continued to make threatening remarks. On at least one occasion the Petitioner

   made remarks to the Respondent's wife to the effect that he could burn down the house or blow up the house. These remarks caused the Respondent's wife to worry about her safety and the safety of her family. As a result of those worries, on one occasion in April of 1996 when the Respondent's wife heard a "ticking" sound in the Petitioner's efficiency unit, she became frightened that the Petitioner might have left a bomb in the efficiency, and she called the police. The police searched the efficiency unit and did not find a bomb.

10. In April of 1996, the Respondent began eviction proceedings against the Petitioner by filing a Complaint for Tenant Eviction in the County Court. The grounds for the eviction were that the Petitioner had failed to pay rent for one month and had failed to pay for electricity for two months. The Petitioner never paid the past due rent and electricity bills. The Petitioner and his wife moved out of the Respondent's efficiency unit the day before he was to be evicted. The Respondent's act of evicting the Petitioner was not motivated by the Respondent's handicap. The Respondent's act of evicting the Petitioner was motivated solely by the Petitioner's failure to pay past-due rent and electricity bills and by the Petitioner's confrontational and threatening conduct.2

    CONCLUSIONS OF LAW

    
    

11. The Division of Administrative Hearings has jurisdiction over the subject matter of and the parties to this

    proceeding. Sections 120.57(1) and 760.35(3)(b), Florida Statutes.

12. In a proceeding of this nature the burden of proof is on the complainant, Mr. Carlos Gomez. Section 760.34(5), Florida Statutes.

13. For purposes of the Fair Housing Act, the definition of the term "handicap" at Section 760.22(7)(a), Florida Statutes, includes the following:

    1. 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 impairment. . . .

       
       

14. For purposes of the Fair Housing Act, Section 760.22(3), Florida Statutes, provides that: "'Discriminatory housing practice' means an act that is unlawful under the terms of ss. 760.20-760.37."

15. Section 760.23(8), Florida Statutes, provides:

    
    

    (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 handicap of:

    1. That buyer or renter;

    2. A person residing in or intending to reside in that dwelling after it is sold, rented, or made available; or

    3. Any person associated with the buyer or renter.

    
    

16. The Petitioner in this case has failed to prove that the Respondent committed a discriminatory housing practice. To the contrary, the greater weight of the evidence is to the effect

that the Respondent had permissible reasons for evicting the Petitioner and that the Respondent was not motivated by the Petitioner's handicap.

RECOMMENDATION

On the basis of all of the foregoing it is RECOMMENDED that a Final Order be issued in this case dismissing the Petition and denying all relief requested by the Petitioner.

DONE AND ENTERED this 1st day of October, 1998, in Tallahassee, Leon County, Florida.

MICHAEL M. PARRISH

Administrative Law Judge

Division of Administrative Hearings The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32301-3060

(850) 488-9675 SUNCOM 278-9675

Fax Filing (850) 921-6847

Filed with the Clerk of the Division of Administrative Hearings this 1st day of October, 1998.

ENDNOTES

1/ In the testimony in this case there is a great deal of conflict about many of the details. In resolving the conflict in the testimony I have generally found the versions presented by the Petitioner and his wife to be more credible than the versions presented by the Respondent.

2/ There was quite a bit of testimony dealing with subordinate details about the relationship between the Petitioner and the Respondent. This testimony addressed such matters as disputes about where the Petitioner was allowed to park his automobiles, whether the Petitioner was allowed to have pets in the efficiency, and whether the Respondent overcharged the Petitioner for electricity. These matters all appear to be run of the mill landlord/tenant disputes. None of these subordinate matters were shown to be in any way related to the Petitioner's handicap. None of these subordinate details are relevant or material to the disposition of this case. Accordingly, no findings of fact have been made about any of these subordinate and unnecessary details.

COPIES FURNISHED:

Mr. Carlos Gomez 7225 West 11th Court Apartment 128

Hialeah, Florida 33014

Rene J. Gonzalez-Llorens, Esquire Shutts & Bowen

1500 Miami Center

201 South Biscayne Boulevard Miami, Florida 33131

Sharon Moultry, Clerk

Florida Commission on Human Relations Building F, Suite 240

325 John Knox Road

Tallahassee, Florida 32303-4149

Dana Baird, General Counsel

Florida Commission on Human Relations Building F, Suite 240

325 John Knox Road

Tallahassee, Florida 32303-4149

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

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.

Docket for Case No: 97-003376

Orders for Case No: 97-003376