STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DAVID POWELL, )

)

Petitioner, )

)

vs. ) Case No. 04-1352

)

AMIR TEREM, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, a hearing was conducted in this case pursuant to Sections 120.569 and 120.57(1), Florida Statutes, on September 21, 2004, by video teleconference at sites in Miami and Tallahassee, Florida, before Stuart M. Lerner, a duly- designated Administrative Law Judge of the Division of Administrative Hearings. Petitioner participated from the Miami video teleconference site. The Administrative Law Judge participated from the Tallahassee video teleconference site.

Respondent participated by telephone from Israel.

APPEARANCES

For Petitioner: David Powell, pro se

Post Office Box 010950 Miami, Florida 33101

For Respondent: Amir Terem, pro se

421 Amsterdam Avenue

New York, New York 10024

STATEMENT OF THE ISSUE

Whether Respondent committed a discriminatory housing practice by "lock[ing] [Petitioner] out of [his] apartment" at the Arena Hotel, as alleged in Petitioner's housing discrimination complaint, and, if so, what relief should the Florida Commission on Human Relations (Commission) provide

Petitioner.

PRELIMINARY STATEMENT

On February 7, 2003, Petitioner filed a signed and dated housing discrimination complaint with the Commission, which the Commission docketed as FCHR Case No. 23-90685H. The complaint alleged that Petitioner was the victim of "[d]iscriminatory terms, conditions, privileges, or services and facilities" and "discriminatory acts under Section 818 [of the federal Fair Housing Act]." It contained the following "statement of the facts regarding the[se] alleged violation[s]":

I belong to a class of persons whom the Act prohibits from unlawful housing discrimination because of my race, black[,] and [r]et[a]liation [and] physical disability. I am qualified, willing and able to continue occupancy consistent with terms and conditions of the Arena Hotel.

The Respondent[] has called me a nigger and refused to refund my rent for Nov. months [sic]. The Petitioner took Respondent to court and I was allowed to pa[y] all rent due. The Respondent retaliated against me and locked me out of my apartment. I had to call[] the police for assistance that allowed me to get my (court order)

possessions. I believe I was treated unfairly because of my race and disability and caused financial distress for calling inspectors D.B.P.R./Hotel and Restaurant for help.

On March 16, 2004, the Commission, through its Executive Director, issued a Determination of No Reasonable Cause in FCHR Case No. 23-90685H, advising that, following an investigation, the Commission had "determined that reasonable cause does not exist to believe that a discriminatory housing practice has occurred," and further advising that the complainant, Petitioner, could "request that a formal administrative proceeding be conducted" on the matter by filing a Petition for Relief with the Commission.

On April 9, 2004, Petitioner filed a Petition for Relief in FCHR Case No. 23-90685H. On April 16, 2004, the Division of Administrative Hearings (Division or DOAH) received a Transmittal of Petition from the Commission, the body of which read as follows:

Please be advised that the Florida Commission on Human Relations has received [in FCHR Case No. 23-90685H] a Petition for Relief from a Housing Discrimination Complaint by DAVID POWELL. Pursuant to the Fair Housing Act, Sections 760.20-760.37, Florida Statutes (1997), and Rule 60Y- 25.004, Florida Administrative Code, the Commission requests the Division of Administrative Hearings to assign this matter to an administrative law judge and conduct all necessary proceedings required under the law and submit recommended

findings to the Commission. Copies of all relevant pleadings and papers heretofore filed in this proceeding are attached to this notice.

The Transmittal of Petition contained a Certificate of Transmittal, signed by the Clerk of the Commission, after which appeared the following:

Attachments: Petition for Relief

w/attachments

Determination of No Reasonable Cause

Charge of Discrimination

Copies of Transmittal and Attachments furnished to:

David Powell

P.O. Box 010950 Miami, FL 33101

Amir Terem

532 N. Miami Avenue Miami, Florida 33136

In the style of the Transmittal of Petition, Petitioner was listed as the lone petitioner and Respondent was listed as the lone respondent.

The Clerk of the Division docketed the Transmittal of Petition as DOAH Case No. 04-1352 and, on April 20, 2004, issued an Initial Order, which, among other things, assigned the case to the undersigned. On May 3, 2004, the undersigned issued an Order in DOAH Case No. 04-1352 relinquishing jurisdiction to the Commission "so that [the Commission could] attempt to do those things that [were] necessary to meet its responsibility under

Florida Administrative Code Rule 60Y-8.001(1), and to enable [the Commission] to provide the Division with the information the Division need[ed] to conduct a hearing on Petitioner David Powell's Petition for Relief in accordance with the notice requirements of Sections 120.569 and 760.35(3)(b), Florida Statutes." The Commission returned the matter to the Division on May 27, 2004. DOAH Case No. 04-1352 was reopened by the undersigned's Order of June 15, 2004.

As noted above, the final hearing in this case was held on September 21, 2004. Two witnesses (Petitioner and Respondent) testified at the hearing. In addition, the following exhibits were offered and received into evidence: Petitioners Exhibits A through E, and Respondent's Exhibits 1A, 1B1, 1B2, 1C, 2A, 3A, and 3B.

Following the conclusion of the evidentiary portion of the hearing on September 21, 2004, the undersigned, on the record, established an October 5, 2004, deadline for the filing of proposed recommended orders.

On October 4, 2004, Respondent filed his Proposed Recommended Order. Inasmuch as it does not contain a certificate of service indicating that it has been served on Petitioner, as required by Florida Administrative Code Rule 28- 106.104, Respondent's Proposed Recommended Order has not been

considered by the undersigned. To date, Petitioner has not filed a proposed recommended order.

FINDINGS OF FACT

Based on the evidence adduced at the final hearing and the record as a whole, the following findings of fact are made:

1. Respondent is a black male.

   
   

2. Since 2000, he has maintained a residence at the Arena Hotel (Establishment), a rooming house (with 22 rooms) located in Miami, Florida.

3. Respondent is the former owner of the Establishment.

   
   

4. He purchased the Establishment approximately three years ago.

5. At the time of the purchase, there were only a small handful of blacks residing in the Establishment (including Petitioner). The percentage of black residents increased significantly during his ownership.

6. Respondent lived in Israel when he owned the Establishment (as he does now).

7. Every several months he traveled to Miami and visited the Establishment.

8. Respondent had an on-site manager to take care of the day-to-day affairs of the Establishment for him.

9. Respondent also had a brother living in the area on whom he could call to check on the Establishment. The brother,

   Gil Terem, worked for Majestic Properties, Inc., a Miami-based real estate brokerage firm. Gil Terem assisted in Respondent's sale of the Establishment.

10. From the time Respondent purchased the Establishment until the time he sold it, Petitioner regularly complained to management and various governmental agencies about the conditions in his room and the common areas.

11. Petitioner's complaints were not the only ones management received during this time frame. There were also complaints from residents of the Establishment who claimed that Petitioner was acting aggressively and harassing them.

12. On November 6, 2002, government inspectors conducted an inspection of the Establishment.

13. Later that same day, November 6, 2002, City of Miami police were called to the Establishment by management to look into an allegation of harassment made against Petitioner.

14. Gil Terem was on the premises of the Establishment when the police arrived. Respondent was not present. He was in Israel.

15. Upon their arrival, the police confronted Petitioner and spoke with him.

16. Although the police did not arrest Petitioner or take him into custody, Petitioner was under the impression, following his discussion with the police, that he was not free to reenter

    his room and that he had to vacate the premises. He therefore left the Establishment without returning to his room.

17. Notwithstanding what Petitioner may have believed, there was no intention to evict him.

18. Petitioner pursued legal action in Miami-Dade Circuit Court alleging that he was illegally removed from his room in the Establishment.

19. On December 4, 2002, in the case of David Powell v.

    
    

    Majestic Properties, Inc., Case No. 02-27703CA30, Miami-Dade County Circuit Court Judge Barbara Levenson issued an Order Granting Plaintiff's Motion for Injunctive Relief, which read as follows:

    This cause having come on to be heard on Dec. 4, 2002 on Plaintiff's Motion for Injunctive Relief and the Court having heard argument of counsel, and being otherwise advised in the premises, its is hereupon,

    
    

    ORDERED AND ADJUDGED that said Motion be, and the same is hereby, granted. A temporary restraining order is in effect pending the setting of a further hearing. [Plaintiff] is allowed to return to his residence.

    
    

20. Following the entry of this Order, Petitioner returned to his room in the Establishment. Because there was a new lock on the door that had been installed during his absence, he was not able to enter the room until Gil Terem came by with a key to let him in.

21. Subsequent to his return to the Establishment, Petitioner initiated various judicial and administrative actions, including the instant one,1 claiming that Respondent and others conspired to unlawfully discriminate against him by depriving him of the opportunity to enjoy the privileges of residing at the Establishment.

22. The record evidence is insufficient to establish that Petitioner was in any way discriminated against on the basis of race or handicap or that any adverse action was taken against him in retaliation for his claiming that he was the victim of

    housing discrimination.

    
    

    CONCLUSIONS OF LAW

    
    

23. DOAH has jurisdiction over the subject matter of this proceeding and of the parties hereto pursuant to Chapter 120, Florida Statutes.

24. Florida's Fair Housing Act (Act) is codified in Sections 760.20 through 760.37, Florida Statutes.

25. Among other things, the Act makes certain acts "discriminatory housing practices" and gives the Commission the authority, if it finds (following an administrative hearing conducted by an Administrative Law Judge) that such a "discriminatory housing practice" has occurred, to issue an order "prohibiting the practice" and providing "affirmative

    relief from the effects of the practice, including quantifiable damages[2] and reasonable attorney's fees and costs."3

    § 760.35(3)(b), Fla. Stat.

    
    

26. To obtain such relief from the Commission, a person who claims to have been injured by a "discriminatory housing practice" must "file a complaint within 1 year after the alleged discriminatory housing practice occurred." § 760.34(2), Fla. Stat.

27. Section 760.34(3), Florida Statutes, limits the Commission's authority, in certain cases, to act on timely-filed complaints of "discriminatory housing practices." It provides as follows:

    Wherever a local fair housing law provides rights and remedies for alleged discriminatory housing practices which are substantially equivalent to the rights and remedies provided in ss. 760.20-760.37,the commission shall notify the appropriate local agency of any complaint filed under ss. 760.20-760.37 which appears to constitute a violation of the local fair housing law, and the commission shall take no further action with respect to such complaint if the local law enforcement official has, within 30 days from the date the alleged offense was brought to his or her attention, commenced proceedings in the matter. In no event shall the commission take further action unless it certifies that in its judgment, under the circumstances of the particular case, the protection of the rights of the parties or the interests of justice require such action.[4]

28. The "discriminatory housing practices" prohibited by the Act include those described in Section 760.23(2), Florida Statutes, which provides as follows:

    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.

    
    

29. "Dwelling," as that term is used in the Act, is defined in Section 760.22(4), Florida Statutes, as follows:

    "Dwelling" means any building or structure, or portion thereof, which is occupied as, or designed or intended for occupancy as, a residence by one or more families, and any vacant land which is offered for sale or lease for the construction or location on the land of any such building or structure, or portion thereof.

    
    

30. "Handicap," as that term is used in the Act, is defined in Section 760.22(7), Florida Statutes, as follows:

    "Handicap" means:

    
    

    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; or

       
       

    2. A person has a developmental disability as defined in s. 393.063

       
       

       "An impairment's minor interference in major life activities does not qualify" as a "handicap" under the Act. "[T]here must

       be a substantial limitation on a major life activity." The person "must be completely unable to perform the activity, or significantly restricted in performing the activity as compared to an average person." Wimberly v. Securities Technology Group, Inc., 866 So. 2d 146, 147 (Fla. 4th DCA 2004); see also Colwell v. Suffolk County Police Department, 158 F.3d 635, 644 (2d Cir. 1998)("At trial, Colwell testified that his impairment limits his abilities to stand, sit, lift, sleep, and work. He had the burden to show that these limitations were substantial.

       However, Colwell's descriptions of his limitations are marked throughout by hedging and a studied vagueness, so that there is no support for the idea that his impairments would be significantly limiting to 'the average person in the general population,' . . . For example, . . . [according to] Colwell [he] cannot sit 'too long,' and 'prolonged' sitting is a problem at work.").

31. While the Act does not contain a definition for the term "race," as used therein, it is indisputable that the racial discrimination prohibited by the Act reaches discrimination against a person because he or she, like Petitioner, is black.

32. The "discriminatory housing practices" prohibited by the Act also include those described in Section 760.23(8)(a), Florida Statutes, which provides that "[i]t 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: [t]hat buyer or renter."

33. According to Section 760.23(9), Florida Statutes, the conduct prohibited by Section 760.23(8), Florida Statutes, includes:

    1. A refusal to permit, at the expense of the handicapped person, reasonable modifications of existing premises occupied or to be occupied by such person if such modifications may be necessary to afford such person full enjoyment of the premises; or

       
       

    2. A refusal to make reasonable accommodations in rules, policies, practices, or services, when such accommodations may be necessary to afford such person equal opportunity to use and enjoy a dwelling."

       
       

       To be guilty of having refused to make a reasonable accommodation for a handicapped complainant, as described in Section 760.23(9), Florida Statutes, a respondent must have been presented with a request by or on behalf of the complainant that it make such an accommodation. Cf. Tsombanidis v. West Haven

       Fire Department, 352 F.3d 565, 579 (2d Cir. 2003)("A governmental entity must know what a plaintiff seeks prior to incurring liability for failing to affirmatively grant a reasonable accommodation [under the federal Fair Housing Act]."); Progressive Mine Workers v. National Labor Relations

       Board, 187 F.2d 298, 304 (7th Cir. 1951)("There was no finding that the company had refused to reinstate them, as evidently there could not be in the absence of a request by the employees."); Winfield Mutual Housing Corporation v. Middlesex Concrete Products & Excavating Corporation, 120 A.2d 655, 657 (N.J. App. 1956)("There could not be a refusal in the absence of a request, express or implied, for performance, . . . ."); and Application of Spanierman, 58 N.Y.S.2d 10, 11 (N.Y. Sup. Ct.

       1945)("There can be no 'refusal' in the absence of a request for the statement.") "Accommodations required under [Section 760.23(9)(b), Florida Statutes] must be both reasonable and necessary to afford the handicapped individual an equal opportunity to use and enjoy a dwelling. An accommodation is reasonable when it imposes no fundamental alteration in the nature of a program or undue financial and administrative burdens. Whether a requested accommodation is required by law is highly fact-specific, requiring case-by-case determination. [Tribunals] generally balance the burdens imposed on the [respondent] by the contemplated accommodation against the benefits to the [complainant]. In determining whether the reasonableness requirement has been met, a [tribunal] may consider the accommodation's functional and administrative aspects, as well as its costs." Groner v. Golden Gate Gardens Apartments, 250 F.3d 1039, 1044 (6th Cir. 2001)(citations and

       internal quotation marks omitted.). It is the complainant who has the "burden of proving that a proposed accommodation is reasonable." Loren v. Sasser, 309 F.3d 1296, 1302 (11th Cir. 2002). To establish a "discriminatory housing practice" based on the failure to make a required accommodation that a complainant has requested, the complainant must also show: "(1) he suffers from a handicap, (2) [respondent(s)] knew of the handicap, (3) accommodation of the handicap is necessary to afford [the complainant] an equal opportunity to use and enjoy the housing in question, and (4) [respondent(s)] refused to make such an accommodation." Schanz v. Village Apartments, 998 F. Supp. 784, 791 (E.D. Mich. 1998). It is not sufficient to show that the refused accommodation is simply "convenient or desired." Rather, it must be "necessary." Bachman v. Swan

       Harbour Association, 653 N.W.2d 415, 429 (Mich. App. 2002). "[T]he duty to make a reasonable accommodation does not simply spring from the fact that the handicapped person . . . wants such an accommodation made." Gavin, 934 F. Supp. at 687. "Further, an accommodation should not extend a preference to disabled [unit occupants] relative to other [occupants], as opposed to affording them equal opportunity, and accommodations that go beyond affording a[n] [occupant] with a disability an opportunity to use and enjoy a dwelling are not required." Bachman, 653 N.W.2d at 429.

34. Another "discriminatory housing practice" prohibited by the Act is described in Section 760.37, Florida Statutes, which provides:

    It is unlawful to coerce, intimidate, threaten, or interfere with any person in the exercise of, or on account of her or his having exercised, or on account of her or his having aided or encouraged any other person in the exercise of any right granted under ss. 760.20-760.37. This section may be enforced by appropriate administrative or civil action.[5]

35. To establish a violation of Section 760.37, Florida Statutes, a complainant must prove that the respondent "coerced, intimidated, threatened, or interfered with [his or] her exercise of a right under the Florida Fair Housing Act; discriminatory animus is inherent in a retaliation claim." Thornhill v. Watkins, Nos. 00-3014 and 02-1056, 2004 WL 395861

    *28 (Fla. DOAH February 27, 2004)(Recommended Order). A complainant claiming to be a victim of retaliation for filing a housing discrimination complaint need not prove the merits of that underlying complaint to prevail on the retaliation claim.

    Id.

    
    

36. Regardless of the type of "discriminatory housing

    
    

    practice" being alleged, "preponderance of the evidence" is the standard of proof the complainant must meet (at the administrative hearing) to prove his or her case.

    § 120.57(1)(j), Fla. Stat. ("Findings of fact shall be based

    upon a preponderance of the evidence, except in penal or licensure disciplinary proceedings or except as otherwise provided by statute,[6] ").

37. A complainant advancing a discriminatory intent claim under the Act may establish such intent "through direct or indirect circumstantial evidence." Johnson v. Hamrick, 155 F. Supp. 2d 1355, 1377 (N.D. Ga. 2001).

38. "Direct evidence is evidence that, if believed, would prove the existence of discriminatory intent without resort to inference or presumption." King v. La Playa-De Varadero

    Restaurant, No. 02-2502, 2003 WL 435084 *3 n.9 (Fla. DOAH

    
    

    February 19, 2003)(Recommended Order).

    
    

39. "Direct evidence of intent is often unavailable." Shealy v. City of Albany, Ga., 89 F.3d 804, 806 (11th Cir. 1996). For this reason, those who claim to be victims of intentional discrimination "are permitted to establish their cases through inferential and circumstantial proof." Kline v. Tennessee Valley Authority, 128 F.3d 337, 348 (6th Cir. 1997).

40. Where a complainant attempts to prove intentional discrimination using circumstantial evidence, a "shifting burden framework" is applied. "Under this framework, the [complainant] has the initial burden of establishing a prima facie case of discrimination. If [the complainant] meets that burden, then an inference arises that the challenged action was motivated by a

    discriminatory intent. The burden then shifts to the [respondent] to 'articulate' a legitimate, non-discriminatory reason for its action.[7] If the [respondent] successfully articulates such a reason, then the burden shifts back to the [complainant] to show that the proffered reason is really pretext for unlawful discrimination." Schoenfeld v. Babbitt,

    168 F.3d 1257, 1267 (11th Cir. 1999)(citations omitted.); see also Massaro v. Mainlands Section 1 and 2 Civic Association, Inc., 3 F.3d 1472, 1476 n.6 (11th Cir. 1993)("Fair housing discrimination cases are subject to the three-part test articulated in McDonnell Douglas Corp. v. Green, 411 U.S. 792, 93 S. Ct. 1817, 36 L.Ed.2d 668 (1973)."); and Secretary of the United States Department of Housing and Urban Development on Behalf of Herron v. Blackwell, 908 F.2d 864, 870 (11th Cir. 1990)("We agree with the ALJ that the three-part burden of proof test developed in McDonnell Douglas [for claims brought under Title VII of the Civil Rights Act] governs in this case [involving a claim of discrimination in violation of the federal Fair Housing Act].")

41. Proof that, in essence, amounts to no more than mere speculation and self-serving belief on the part of the complainant concerning the motives of the respondent is insufficient, standing alone, to establish a prima facie case of intentional discrimination. See Lizardo v. Denny's, Inc., 270

    F.3d 94, 104 (2d Cir. 2001)("The record is barren of any direct evidence of racial animus. Of course, direct evidence of discrimination is not necessary. However, a jury cannot infer discrimination from thin air. Plaintiffs have done little more than cite to their mistreatment and ask the court to conclude that it must have been related to their race. This is not sufficient.")(citations omitted.); Reyes v. Pacific Bell, 21 F.3d 1115 (Table), 1994 WL 107994 *4 n.1 (9th Cir. 1994)("The

    only such evidence [of discrimination] in the record is Reyes's own testimony that it is his belief that he was fired for discriminatory reasons. This subjective belief is insufficient to establish a prima facie case."); Little v. Republic Refining Co., Ltd., 924 F.2d 93, 96 (5th Cir. 1991)("Little points to his own subjective belief that age motivated Boyd. An age discrimination plaintiff's own good faith belief that his age motivated his employer's action is of little value."); Elliott v. Group Medical & Surgical Service, 714 F.2d 556, 567 (5th Cir. 1983)("We are not prepared to hold that a subjective belief of discrimination, however genuine, can be the basis of judicial relief."); Jackson v. Waguespack, 2002 WL 31427316 (E.D. La.

    2002)("[T]he Plaintiff has no evidence to show Waguespack was motivated by racial animus. Speculation and belief are insufficient to create a fact issue as to pretext nor can pretext be established by mere conclusory statements of a

    Plaintiff that feels she has been discriminated against. The Plaintiff's evidence on this issue is entirely conclusory, she was the only black person seated there. The Plaintiff did not witness Defendant Waguespack make any racial remarks or racial epithets."); Sporn v. Ocean Colony Condominium Association, 173

    F. Supp. 2d 244, 251 (D. N.J. 2001)("This evidence, even when viewed in the light most favorable to Plaintiffs, amounts to nothing more than repeated statements of Plaintiffs' subjective beliefs of discrimination and is therefore insufficient to survive summary judgment."); Coleman v. Exxon Chemical Corp.,

    162 F. Supp. 2d 593, 622 (S.D. Tex. 2001)("Plaintiff's conclusory, subjective belief that he has suffered discrimination by Cardinal is not probative of unlawful racial animus."); Cleveland-Goins v. City of New York, 1999 WL 673343 (S.D. N.Y. 1999)("Plaintiff has failed to proffer any relevant evidence that her race was a factor in defendants' decision to terminate her. Plaintiff alleges nothing more than that she 'was the only African-American male [sic] to hold the position of administrative assistant/secretary at Manhattan Construction.' (Compl.¶ 9.) The Court finds that this single allegation, accompanied by unsupported and speculative statements as to defendants' discriminatory animus is entirely insufficient to make out a prima facie case or to state a claim under Title VII."); Umansky v. Masterpiece International Ltd.,

    1998 WL 433779 (S.D. N.Y. 1998)("Plaintiff proffers no support for her allegations of race and gender discrimination other than her own speculation and assumptions. The Court finds that plaintiff cannot demonstrate that she was discharged in circumstances giving rise to an inference of discrimination, and therefore has failed to make out a prima facie case of race or gender discrimination."); Gavin v. Spring Ridge Conservancy, Inc., 934 F. Supp. 685, 687 (D. Md. 1995)("Turning first to the plaintiff's claims of intentional discrimination and retaliation, there is no evidence at all, other than perhaps the plaintiff's own subjective beliefs, of intentional discrimination or retaliation. Such beliefs are, of course, insufficient to show an intentional discriminatory animus."); and Lo v. F.D.I.C., 846 F. Supp. 557, 563 (S.D. Tex. 1994)("Lo's

    subjective belief of race and national origin discrimination is legally insufficient to support his claims under Title VII.").

42. In the instant case, in his complaint, Petitioner has alleged that, in violation of the Act, Respondent intentionally discriminated against him on the basis of handicap and race and also retaliated against him for engaging in protected activity.8

43. Petitioner did not meet his burden of proving, by a preponderance of the evidence, that Respondent engaged in any such discriminatory or retaliatory conduct in violation of the Act.

44. In support of his handicap discrimination claim, it was incumbent on Petitioner, as a threshold matter, to establish that, at the time of the alleged discrimination, he had a "handicap," as that term is defined in Section 760.22(7), Florida Statutes. He failed to do so, much less show that his having such a "handicap" was a motivating factor in any action that may have been taken against him.

45. With respect to his claims of racial discrimination and retaliation, Petitioner failed to prove that he was in any way discriminated against because of his race or in retaliation for his having engaged in activity protected under the Act.

46. Petitioner may suspect that he has been the victim, at the hands of Respondent, of discriminatory and retaliatory conduct in violation of the Act, but his suspicions, unaccompanied as they are by any persuasive proof connecting the complained-of conduct with any status or activity of his protected by the Act, are insufficient to prove that the acts in question constituted "discriminatory housing practices."

47. In view of the foregoing, no "discriminatory housing practice" should be found to have occurred and Petitioner's complaint should therefore be dismissed.

RECOMMENDATION

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

RECOMMENDED that the Commission issue a final order finding that no "discriminatory housing practice" has been committed and dismissing Petitioner's complaint based on such finding.

DONE AND ENTERED this 6th day of October, 2004, in Tallahassee, Leon County, Florida.

S

STUART M. LERNER

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 6th day of October, 2004.

ENDNOTES

1 Petitioner sought administrative relief not only from the Commission, but also from the Miami-Dade County Equal Opportunity Board (MDCEOB). By letter dated September 11, 2003, Respondent was advised of the following by the MDCEOB's director concerning the charge that Petitioner had filed with the MDCEOB (MDCEOB Charge No. H03 1108 004):

This is to inform you that our investigation has concluded that there is no probable cause to believe that a discriminatory

practice has occurred concerning the above- cited charge of discrimination. A summary of the findings is contained in the enclosed investigative report.

Please note that under Chapter 11A of the Miami-Dade County Code, as amended, the charging party may request an appeal of this determination within ten (10) days of receipt. If no appeal is timely filed, this determination will become final and the Miami-Dade County Equal Opportunity Board (MDCEOB) will dismiss the charge. If a timely request for appeal is received, you will be notified in writing and a hearing date will be scheduled.

Please contact Mr. Earl Garrett, Compliance Officer, at (305)375-5272, should you have any questions on this matter.

2 Such "quantifiable damages" do not include damages for emotional injuries. See Metropolitan Dade County Fair Housing and Employment Appeals Board v. Sunrise Village Mobile Home Park, Inc., 511 So. 2d 962, 966 (Fla. 1987)("[W]e hold that section 11A-7(5)(f)(ii) of the instant ordinance is unconstitutional to the extent that it authorizes administrative awards of common law damages for such nonquantifiable injuries as humiliation, embarrassment, and mental distress."); Broward County v. La Rosa, 505 So. 2d 422, 424 n.5 (Fla. 1987)("We see a significant distinction between administrative awards of quantifiable damages for such items as back rent or back wages and awards for such nonquantifiable damages as pain and suffering or humiliation and embarrassment."); and Hotelera Naco, Inc. v. Chinea, 708 So. 2d 961, 962 (Fla. 3d DCA 1998)("We also conclude that the trial court erred in allowing the jury to award damages for mental anguish and loss of dignity, and awarding appellee, Maria E. Chinea, attorney's fees. The ordinance in effect at the time the cause of action arose only allowed for the award of quantifiable damages.").

3 At hearing, Petitioner indicated that he was seeking, among other things, an award of five million dollars in punitive damages. The Commission, however, is without authority to award punitive damages in any amount. Only a court may make such an award. § 760.35(2), Fla. Stat.

4 The instant case involves a complaint arising from events allegedly occurring in Miami-Dade County. It appears (from Petitioner's Exhibit E, page 1, and Respondent's Exhibit 3B) that Miami-Dade County does have a local fair housing law (Chapter 11A of the Miami-Dade County Code), but the record does not reveal whether this local law "provides rights and remedies for alleged discriminatory housing practices which are substantially equivalent to the rights and remedies provided in ss. 760.20-760.37."

5 A landlord's retaliation against a tenant for complaining in good faith about an alleged building or health code violation to a governmental agency responsible for enforcing the code provision in question is prohibited under Florida law, but it does not constitute a "discriminatory housing practice" (as defined in Section 760.22(3), Florida Statutes, to wit: "an act that is unlawful under the terms of ss. 760.20-760.37," Florida Statutes) that the Commission is authorized to remedy because the prohibition is found, not in the Act, but in Section 83.64, Florida Statutes, which provides as follows:

1. It is unlawful for a landlord to discriminatorily increase a tenant's rent or decrease services to a tenant, or to bring or threaten to bring an action for possession or other civil action, primarily because the landlord is retaliating against the tenant. In order for the tenant to raise the defense of retaliatory conduct, the tenant must have acted in good faith. Examples of conduct for which the landlord may not retaliate include, but are not limited to, situations where:

   
   

   1. The tenant has complained to a governmental agency charged with responsibility for enforcement of a building, housing, or health code of a suspected violation applicable to the premises;

      
      

   2. The tenant has organized, encouraged, or participated in a tenants' organization;

      
      

   3. The tenant has complained to the landlord pursuant to s. 83.56(1); or

      
      

   4. The tenant is a servicemember who has terminated a rental agreement pursuant to s. 83.682.

      
      

2. Evidence of retaliatory conduct may be raised by the tenant as a defense in any action brought against him or her for possession.

   
   

3. In any event, this section does not apply if the landlord proves that the eviction is for good cause. Examples of good cause include, but are not limited to, good faith actions for nonpayment of rent, violation of the rental agreement or of reasonable rules, or violation of the terms of this chapter.

   
   

4. "Discrimination" under this section means that a tenant is being treated differently as to the rent charged, the services rendered, or the action being taken by the landlord, which shall be a prerequisite to a finding of retaliatory conduct.

6 Section 760.34(5), Florida Statutes, provides that, "[i]n any proceeding brought pursuant to this section or s. 760.35, the burden of proof is on the complainant," but neither it, nor any other provision in the Act, prescribes a standard of proof the complainant must meet.

7 "To 'articulate' does not mean 'to express in argument.'" Rodriguez v. General Motors Corporation, 904 F.2d 531, 533 (9th Cir. 1990). "It means to produce evidence." Id.

8 While Petitioner's complaint alleges that he was the victim of handicap discrimination, it is devoid of factual allegations suggesting that such discrimination was based on the failure to permit "reasonable modifications" or the failure to make "reasonable accommodations" (as described in Section 760.23(9), Florida Statutes) and, at hearing, Petitioner offered no

evidence that there was such a failure to permit "reasonable modifications" or failure to make "reasonable accommodations."

COPIES FURNISHED:

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

Tallahassee, Florida 32301

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

Tallahassee, Florida 32301

David Powell

Post Office Box 010950 Miami, Florida 33101

Amir Terem

421 Amsterdam Avenue

New York, New York 10024

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: 04-001352

Orders for Case No: 04-001352