STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

LYDIA CORTES, )

)

Petitioner, )

)

vs. ) Case No. 98-4151

)

CONCORD MANAGEMENT, )

RAVENS CROSSING APARTMENTS, )

)

Respondent. )

)

RECOMMENDED ORDER OF DISMISSAL

An administrative hearing was conducted on December 1, 1998, in Orlando, Florida, by Daniel Manry, Administrative Law Judge, Division of Administrative Hearings. The parties, witnesses, and court reporter attended the hearing in Orlando. The undersigned participated by video conference from Tallahassee, Florida.

APPEARANCES

For Petitioner: Lydia Cortes, pro se

1400 North 17th Avenue, No. 21

Hollywood, Florida 33020

For Respondent: Bill McCabe, Esquire

1450 West State Road 434, No. 200

Longwood, Florida 32750 STATEMENT OF THE ISSUES

The issues in this case are whether Respondent discriminated against Petitioner on the basis of her sex or national origin in violation of 42 USCA Section 3604(a)(8) ("Section 8") and Sections 760.20(1)-(3), Florida Statutes (1997), by allegedly

refusing to rent an apartment to Petitioner and by allegedly not renewing Petitioner's lease when it expired.

(All chapter and section references are to Florida Statutes (1997) unless otherwise stated.)

PRELIMINARY STATEMENT

On September 4, 1997 Petitioner filed a Complaint of Discrimination, HUD Form 903, with the Florida Commission On Human Relations (the "Commission"). The Commission investigated the matter and determined there was no reasonable cause to support the allegations of discrimination. Petitioner timely filed a Petition For Relief, and the Commission referred the matter to the Division of Administrative Hearings ("DOAH") to conduct an administrative hearing.

At the hearing, Petitioner testified in her own behalf, called one witness, and submitted one composite exhibit for admission in evidence. Respondent cross-examined the witnesses but presented no other evidence.

The identity of the witnesses and exhibits, and the rulings regarding each, are set forth in the record of the hearing.

Neither party requested a transcript.

After Petitioner rested her case, Respondent made an ore tenus motion for a directed verdict which the undersigned deemed to be a motion for recommended order of dismissal. Ruling on the motion was reserved, and the parties were directed to file written motions and responses. The hearing was adjourned to

dispose of the motion for recommended order of dismissal. The hearing was to be re-convened if the motion was denied.

On December 11, 1998, Respondent filed its written motion for recommended order of dismissal entitled, "Memorandum Of Law In Support Of Motion For Directed Verdict." Petitioner filed a response to the Motion on January 14, 1999.

FINDINGS OF FACT

1. Petitioner is a member of a protected class. Petitioner is a Hispanic female.

2. Respondent rents dwelling units to the public at Ravens Crossing Apartments ("Ravens"). Ravens is located at 825 Ravens Circle, Altamonte Springs, Florida. Concord Management is located at 2200 Lucien Way, Suite 410, Maitland, Florida.

3. Sometime in May 1996, Respondent applied for an apartment at Ravens. Respondent rejected the application.

4. Petitioner subsequently returned to Ravens and submitted another application for an apartment. Respondent accepted the second application.

5. Petitioner signed a written lease agreement with Respondent for the period August 1, 1996, through June 30, 1997. The written lease prohibited any additions or improvements to the lease premises without the "prior written consent of the manager."

6. During the term of the lease, Petitioner violated the lease. Petitioner constructed an entry gate around the front of

   her apartment. Petitioner did not obtain the prior written consent of Respondent to construct the entry gate. Respondent never authorized or approved the gate.

7. Petitioner constructed the entry gate to keep neighbors away from her front door. Petitioner testified that: from February 2, 1997, through April 29, 1997, a female neighbor named "Virginia" repeatedly knocked on Petitioner's front door for no reason; and another neighbor named "Robert" began knocking on her door on June 24, 1997, for no reason. Petitioner confronted both Virginia and Robert without result.

8. Petitioner filed complaints with the Altamonte Springs Police Department on three different occasions. When the police department first investigated the matter, Petitioner identified two vehicles that Petitioner said belonged to the two neighbors who had been knocking on Petitioner's door.

9. The investigating officer requested dispatch to identify the vehicle owners from the license plate of each vehicle. The owners of the vehicles were identified as Caucasion blond male and female. Petitioner had previously described the individuals who knocked on her door as a black female and a white male with balding, reddish hair.

10. Petitioner testified that other neighbors repeatedly knocked on her door for no reason. One of those neighbors was identified by Petitioner as "Mrs. Toppel." Mrs. Toppel is a very old woman with emphysema. She weighs approximately 80 pounds and

    is barely able to walk.

    
    

11. Petitioner occupied her apartment until her lease expired on June 30, 1997. Respondent gave timely notice to Petitioner that her lease would not be renewed. Petitioner vacated the premises and moved to Hollywood, Florida.

12. On September 4, 1997, Petitioner filed her initial Complaint of Discrimination with the Commission. The Complaint alleged that Respondent discriminated against Petitioner by denying her application for an apartment in May 1996, by fostering harassment of Petitioner by her neighbors, and by failing to renew Petitioner's lease.

13. The Commission investigated the Complaint. On June 26, 1998, the Commission determined there was "No Reasonable Cause" to support allegations of discrimination.

14. On July 20, 1998, Petitioner filed a Petition for Relief. The Petition contained the same allegations as those in the Complaint.

15. The Commission referred the matter to the Division of Administrative Hearings. The undersigned conducted a hearing on December 1, 1998. Petitioner presented her case and rested. Respondent cross-examined Petitioner and Petitioner's witness.

    CONCLUSIONS OF LAW

    
    

16. The Division of Administrative Hearings has jurisdiction over the parties and the subject matter in this proceeding. Section 120.57(1). The parties were duly noticed

    for the administrative hearing.

    
    

17. A complaint of discrimination must be filed within one year after the alleged discriminatory housing practice. Section 760.34(2). Petitioner filed her initial complaint of discrimination on September 4, 1997, more than one year after Respondent denied Petitioner's first application for an apartment in May 1996. This aspect of Petitioner's allegations, as well as that portion of the harrassment alleged to have occurred prior to September 4, 1996, are barred by Section 760.34(2).

18. That portion of the harrassment alleged to have occurred on or after September 4, 1996, and the non-renewal of Petitioner's lease are not barred by Section 760.34(2) and must be disposed of on their merits. Assuming arguendo that none of the allegations of discrimination are barred by Section 760.34(2), the Recommended Order addresses the merits of all of the allegations of discrimination.

19. The burden of proof is on Petitioner. Section 760.34(5). See also Florida Department of Transportation v. J.W.C. Company, Inc., 396 So. 2d 778 (Fla. 1st DCA 1981); Balino v. Department of Health and Rehabilitative Services, 348 So. 2d

    349 (Fla. 1st DCA 1977). Petitioner must show by a preponderance of the evidence that there is a prima facie case of discrimination. Brown v. American Honda Motor Co., 939 F.2d 946 (11th Cir. 1991); Schanz v. Village Apartments, 998 F.Supp

    (E.D. Mich. 1998); Olson v. Largo Springhill Ltd. Partnership, 919 F.Supp 847 (D. Md. 1995).

20. In order to make a prima facie case of discrimination, Petitioner must show that: Petitioner is a member of a protected class; Petitioner applied for and was qualified to rent the apartment; Petitioner was rejected; and the apartment remained available thereafter. Maki v. Laakko, 88 F.2d 361 (6th Cir. 1996); Cavalieri-Conway v. L. Butterman and Assoc., 992 F.Supp. 995 (N.D. Ill. 1998); Martin of. Palm Beach Atlantic Assoc., Inc., 696 So. 2d 919 (Fla. 4th DCA 1997).

21. Petitioner made a prima facie showing that she is a member of a protected class and that she applied for an apartment and was refused in May 1996. However, Petitioner failed to make a prima facie showing that she was qualified, on the face of the application submitted in May 1996, to rent an apartment; any apartment she applied for in May 1996, was available at that time or thereafter; or, if available, the apartment Petitioner rented in August 1996, was the same or a different apartment than the apartment she applied for in May 1996.

22. Petitioner also failed to make a prima facie showing that she received dissimilar treatment than the treatment received by individuals in a non-protected class, that there was any bias against Petitioner, or that the evidence of bias, if any, was sufficient to infer a causal connection between Petitioner's sex or national origin and the alleged disparate treatment. Petitioner failed to make a prima facie case that Petitioner's sex or national origin was a motivating factor for the violative action Petitioner asserts against Respondent in May 1996. Robinson v. Twelve Lofts Realty, Inc., 610 F.3d 1032, (2d Cir. 1979).

23. After Petitioner entered into a lease on August 1, 1996, Petitioner failed to make a prima facie case that Respondent or its employees or agents had a bias against Petitioner. Petitioner made a prima facie case that her neighbors harassed her but failed to make a prima facie case that

    Respondent fostered the harassment. Rather, the evidence shows that Respondent did not attempt to evict /8 to remain in the apartment for the entire lease term.

24. Assuming arguendo that Petitioner had made a prima facie showing of discrimination, Respondent would have to artriculate some legitimate, nondiscriminatory reason that it refused to renew Petitioner's lease. Respondent must show that it refused to renew the lease for legitimate, nondiscriminatory reasons. Texas Department of Community Affairs v. Burdine, 450 U.S. 248, 254-255, 101 S.Ct. 1089, 1094-1095 (1981).

25. Respondent articulated a legitimate, nondiscriminatory reason for not renewing Petitioner's lease. Petitioner violated the lease by constructing a privacy gate in front of her apartment without the prior written consent of Respondent. Petitioner failed to show by a preponderance of the evidence that the legitimate reasons offered by Respondent were a pretext for discrimination.

26. Petitioner failed to show that her lease was not renewed in retaliation for her complaints of harassment by her neighbors. To establish a prima facie case of retaliation, Petitioner must show that there is a causal connection between the protected activity and the alleged adverse action. Reynolds v. CSX Transport, Inc., 115 F.3d 860, 868 (11th Cir. 1997). The evidence does not establish the required nexus.

RECOMMENDATION

Based upon the foregoing Findings of Fact and Conclusions of Law, it is

RECOMMENDED that the Commission enter a Final Order

dismissing Petitioner's Petition For Relief for failure to establish a prima facie case of discrimination.

DONE AND ENTERED this 3rd day of February, 1999, in Tallahassee, Florida.

DANIEL MANRY

Administrative Law Judge

Division of Administrative Hearings The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-3060

(850) 488-9675 SUNCOM 278-9675

Fax Filing (850) 921-6847 www.doah.state.fl.us

Filed with the Clerk of the Division of Administrative Hearings this 3rd day of February, 1999.

COPIES FURNISHED:

Bill McCabe, Esquire Shepherd, McCabe and Colley Suite 200

1450 State Road 434 West

Longwood, Florida 32750

Lydia Cortes Apartment 21

1400 North 17th Avenue Hollywood, Florida 33020

Sharon Moultry, Clerk Human Relations Commission Building F, Suite 240

325 John Knox Road

Tallahassee, Florida 32303-4149

Dana Baird, General Counsel Human Relations Commision

325 John Knox Road Building F, Suite 240

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: 98-004151

Orders for Case No: 98-004151