STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

GERARDO VILLAMIZAR AND RODICA VILLAMIZAR,

Petitioners,

vs.

EDDIE GOMEZ,

Respondent.

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) Case No. 03-2470

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RECOMMENDED ORDER

Administrative Law Judge (ALJ) Daniel Manry conducted the administrative hearing of this case on September 10, 2003, in Miami, Florida, on behalf of the Division of Administrative Hearings (DOAH).

APPEARANCES

For Petitioner: Gerardo and Rodica Villamizar, pro se

Post Office Box 010461 Miami, Florida 33130

For Respondent: Eddie Gomez, pro se

17835 Southwest 10th Court Pembroke Pines, Florida 33029

STATEMENT OF THE ISSUE

The issue is whether Respondent violated the provisions of Florida’s Fair Housing Act, Section 760.20-760.37, Florida Statutes (2002) (the Fair Housing Act), by evicting Petitioners and thereby allegedly breaching a rental agreement, as more

fully described in the Petition for Relief. (References to statutory sections and chapters are to Florida Statutes (2002.)

PRELIMINARY STATEMENT

At some time not disclosed in the record, Petitioners presumably filed a charge of discrimination with the Florida Commission on Human Relations (the Commission). On May 29, 2003, the Commission issued a Determination of No Reasonable Cause to find that Respondent violated the Fair Housing Act. At an undisclosed time thereafter, Petitioners filed a Petition for Relief. On July 3, 2002, the Commission referred the matter to DOAH to conduct an administrative hearing.

At the hearing, Petitioners testified and submitted 25 exhibits for admission into evidence. Respondent testified and submitted four exhibits for admission into evidence. The identity of the witnesses and exhibits and any attendant rulings are set forth in the record of the hearing. Neither party requested a transcript of the hearing, and neither party submitted a proposed recommended order.

On October 16, 2003, Petitioners filed additional documents with DOAH. The ALJ issued a Notice of Ex Parte Communication on October 21, 2003, and has not considered the documents as part of the evidentiary record.

FINDINGS OF FACT

1. Petitioners are Hispanic. The parties agree that Mrs. Villamizar is handicapped by a mental disability of an undocumented nature. Respondent works full-time as a fireman, and he has managed real estate on a part-time basis for over

   15 years.

   
   

2. Sometime in August, 2001, Petitioners rented an apartment from Respondent pursuant to a verbal rental agreement. The apartment is identified in the record as Apartment 5 (the apartment). The apartment is one of several in a building located at 1484 Northwest 15th Avenue, Miami, Florida 33125 (the building). Petitioners rented the apartment in conjunction with a rent subsidy program administered by Volunteers of America.

3. Petitioners resided in the apartment as their primary residence until approximately February 23, 2003. At that time, Respondent evicted Petitioners pursuant to a court order issued by the County Court In and For Dade County, Florida (the County Court).

4. Respondent evicted Petitioners for nondiscriminatory reasons. Mr. Villamizar threatened Respondent, abused alcohol and drugs, and was involved in approximately 12 police incident reports at the building. After Respondent painted the outside of the building, Mr. Villamizar painted the apartment door, the railing, and an exterior wall with a different color.

   Mr. Villamizar also painted, "Fuck the fire department" on the outside of the apartment.

   CONCLUSIONS OF LAW

   
   

5. DOAH has jurisdiction over the parties and the subject matter of this proceeding. Sections 120.569 and 120.57(1), Florida Statutes (2003). The parties received adequate notice of the administrative hearing.

6. Subsections 760.23(1), (2), and (8), in relevant part, prohibit Respondent from refusing to rent a dwelling to Petitioners, making a dwelling unavailable to Petitioners, or discriminating in terms or privileges applicable to the rental of a dwelling on the basis of national origin or handicap. Petitioners have the burden of showing by a preponderance of the evidence that Respondent violated applicable law. The party seeking to prove the affirmative of an issue has the burden of proof. 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).

7. No credible and persuasive evidence of discrimination exists in this case. The preponderance of evidence shows that Respondent evicted Petitioners for nondiscriminatory reasons. Petitioners' evidence, in substantial part, is relevant and material to issues presumably heard by the county court in the

eviction case, including issues of habitability and the lack of repairs.

RECOMMENDATION

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

RECOMMENDED that the Commission enter a final order dismissing the Petition for Relief.

DONE AND ENTERED this 27th day of October, 2003, in Tallahassee, Leon County, Florida.

S

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 27th day of October, 2003.

COPIES FURNISHED:

Cecil Howard, General Counsel Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100

Tallahassee, Florida 32301

Michelle Jackson, Acting Agency Clerk Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100

Tallahassee, Florida 32301

Gerardo and Rodica Villamizar Post Office Box 010461

Miami, Florida 33130

Eddie Gomez

17835 Southwest 10th Court Pembroke Pines, Florida 33029

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: 03-002470

Orders for Case No: 03-002470