STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

GUILLERMO BELALCAZAR,

Petitioner,

vs.

CHARLES E. SMITH AND MIRADOR APARTMENTS,

Respondents.

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) Case No. 03-4842

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RECOMMENDED ORDER

Pursuant to notice, a formal hearing was held in this case by video teleconference between Miami and Tallahassee on

March 11, 2004, before Administrative Law Judge Claude B. Arrington of the Division of Administrative Hearings.

APPEARANCES

For Petitioner: Guillermo Belalcazar, pro se

1040 Euclid Avenue, Apartment 20 Miami Beach, Florida 33139

For Respondents: Richard D. Grey, Esquire1

1575 San Ignacio Avenue, Suite 100A Miami, Florida 33146

Donna S. Barfield, Esquire

319 Hibiscus Street

West Palm Beach, Florida 33401

STATEMENT OF THE ISSUE

Whether Respondents committed discriminatory housing practices against Petitioner as alleged in the Petition for Relief filed by Petitioner.2

PRELIMINARY STATEMENT

In July 2003, Petitioner filed a complaint with the United States Department of Housing and Urban Development (HUD) alleging that Respondents had committed a housing discrimination against him based on his sex, national origin, handicap, and religion. HUD referred the complaint to the Florida Commission on Human Relations (FCHR). Following an investigation of the alleged housing discrimination, the FCHR issued a document on November 7, 2003, styled "Determination of No Reasonable Cause" which found that ". . . reasonable cause does not exist to believe that a discriminatory housing practice has

occurred. . . ." Petitioner thereafter filed a “Petition for Relief” with FCHR, which was referred to the Division of Administrative Hearings and underpins this proceeding. In his Petition for Relief, Petitioner alleged that Respondents committed a discriminatory housing practice against him.

At the formal hearing, Petitioner testified on his own behalf and proffered testimony from his massage therapist, who

was not permitted to testify because he had no relevant testimony to offer. Petitioner offered no exhibits.

Respondents presented the testimony of Yvette Arroyo, who was employed as Respondents’ customer relations manager.

Respondents offered two composite exhibits, which were admitted into evidence.

No transcript of the proceedings has been filed.

Respondents filed a post-hearing submittal, which has been duly- considered by the undersigned in the preparation of this Recommended Order. Petitioner did not file a post-hearing order.

All statutory references contained in this Recommended Order are to Florida Statutes (2003).

FINDINGS OF FACT

1. Petitioner is a male of Hispanic origin. Petitioner suffers from a debilitating physical illness and has a history of mental illness.

2. Respondents own and/or operate a large apartment complex in Dade County, Florida.

3. At no time relevant to this proceeding did Respondents or their staff know that Petitioner suffered from a debilitating illness.

4. Petitioner resided in Apartment 1519 of Respondents’ apartment complex between an unspecified date in 1999 and December 2003.

5. In approximately March 2003, Petitioner requested permission of Respondents to transfer to another apartment in Respondents’ apartment complex. This request was made prior to the expiration of Petitioner’s then-current lease. Petitioner testified that the request was made after Apartment 1519 was vandalized.

6. At all times relevant to this proceeding, Respondents had a policy that permitted a resident to transfer from one apartment to another apartment prior to the end of the tenant’s term only if the tenant’s payment history demonstrated that the tenant had no rent checks dishonored by the tenant’s bank and that he or she had not been late in paying the rent on more than two occasions. Respondents denied Petitioner permission to transfer from one apartment to another only because of Petitioner’s poor payment history. Over the course of his tenure in Respondents’ apartment complex, Petitioner had been late with his rent payment on 12 separate occasions and had rent checks dishonored on two separate occasions because his bank account had insufficient funds to cover the checks.

7. There was no evidence Respondents discriminated against Petitioner by denying his transfer request.

8. In December 2003, Respondents evicted Petitioner from Apartment 1519. This action was taken based on Petitioner’s poor payment history, because he repeatedly caused disturbances at the apartment complex, and because he damaged his apartment and neighboring apartments by intentionally flooding his apartment.3

9. There was no evidence Respondents discriminated against Petitioner by evicting him from Apartment 1519.

   CONCLUSIONS OF LAW

   
   

10. The Division of Administrative Hearings has jurisdiction of the parties to and the subject of this proceeding pursuant to Section 120.57(1), Florida Statutes.

11. In the instant case, Petitioner seeks relief pursuant to the provisions of Sections 760.20 through 760.37, Florida Statutes, which is referred to as the "Fair Housing Act." Respondents are subject to the provision of the Fair Housing Act pursuant to Section 760.20, Florida Statutes.

12. Section 760.23(2), Florida Statutes, provides, in

    
    

    part:

    
    

    (2) 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 therewith, because of race, color, national origin, sex, handicap, familial status, or religion.

13. Pursuant to Section 760.34(5), Florida Statutes, the burden of proof is on Petitioner to establish the allegations supporting his claims of discrimination. Petitioner failed to meet his burden of proof in this proceeding. Petitioner's claims of discrimination are without merit.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Florida Commission on Human Relations enter a final order dismissing the Petition For Relief.

DONE AND ENTERED this 1st day of April, 2004, in Tallahassee, Leon County, Florida.

S

CLAUDE B. ARRINGTON

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 1st day of April, 2004.

ENDNOTES

1/ Mr. Grey represented Respondents at the formal hearing. Ms. Barfield represented Respondents before the formal hearing and on the post-hearing submittal.

2/ Petitioner’s pleadings were imprecise and his testimony was, in part, nonsensical. For the purposes of this Recommended Order, the undersigned has construed Petitioner’s allegations to include all forms of discrimination proscribed by Florida law except age discrimination. The undersigned has also construed Petitioner’s pleading to encompass the denial of his request to transfer apartments and the decision to evict Petitioner from his apartment.

3/ After a repairman serviced his air conditioning unit, Petitioner became convinced that bugs from his air conditioning unit were crawling on his body and throughout his apartment. He intentionally flooded his apartment in an effort to get rid of the bugs.

COPIES FURNISHED:

Guillermo Belalcazar

1040 Euclid Avenue, Apartment 20 Miami Beach, Florida 33139

Richard D. Grey, Esquire

1575 San Ignacio Avenue, Suite 100A Miami, Florida 33146

Donna S. Barfield, Esquire

319 Hibiscus Street

West Palm Beach, Florida 33401

Denise Crawford, Agency Clerk Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100

Tallahassee, Florida 32301

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

Tallahassee, Florida 32301

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: 03-004842

Orders for Case No: 03-004842