STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

RECOMMENDED ORDER

Pursuant to notice, a final hearing was held in this case on November 21, 2008, in New Port Richey, Florida, before Carolyn S. Holifield, Administrative Law Judge of the Division of Administrative Hearings.

APPEARANCES

For Petitioner: Daniel C. King

1401 Marathon Key Drive Apartment 103

Tampa, Florida 33612

For Respondents: Stephen McCormick

Omega Properties Investments, LLC 4715 Land O'Lakes Boulevard, No. 6 Land O'Lakes, Florida 34639

STATEMENT OF THE ISSUE

Whether Respondents violated the Florida Fair Housing Act as alleged in the Petition for Relief filed with the Florida Commission on Human Relations.

PRELIMINARY STATEMENT

On or about May 23, 2008, Petitioner filed a Complaint with the Florida Commission on Human Relations ("FCHR"), in which he alleged that Respondents, Stephen McCormick and Scott Leonard, discriminated against him based on a disability in violation of the Florida Fair Housing Act. On August 19, 2008, FCHR issued a Determination of No Cause based on a finding that, after an investigation, there was no reasonable cause to believe that a discriminatory housing practice had occurred. On September 18, 2008, Petitioner filed a Petition for Relief with FCHR, in which he alleged that Respondents committed a housing discrimination practice.

The FCHR transmitted the Petition for Relief to the Division of Administrative Hearings for assignment of an Administrative Law Judge.

At the final hearing, Petitioner testified on his own behalf. Petitioner's Exhibits 1 through 4 were received into evidence. Respondents presented the testimony of Scott Leonard and Steven McCormick. Respondents' Exhibits 1 through 6 were received into evidence.

The record was left open until December 3, 2008, to allow the parties additional time to copy and file exhibits.

Petitioner was to late-file his Exhibits 1 through 4, and Respondents were to late-file their Exhibit 4. Petitioner’s

Exhibits 2 through 4 were filed on December 2, 2008.1 Petitioner’s Exhibit 1 and Respondents’ Exhibit 4 were not filed and, thus, are not part of the record in this case.

No transcript of the proceeding was filed with the Division of Administrative Hearings. Neither party submitted proposed findings of fact and conclusions of law.

FINDINGS OF FACT

1. Petitioner, a 59-year-old male, alleges that he is a disabled and non-violent person, who was "illegally" evicted from an apartment unit in the Lakeside Apartment complex. At all times relevant to this proceeding, Respondents, Stephen McCormick and Scott Leonard (Lakeside Apartment Management or Respondents) were the owner and manager, respectively, of Lakeside Apartments.

2. On August 9, 2005, Petitioner submitted a Rental Application and Information Release Form for Lakeside Apartments located at 4715 Land O'Lakes Boulevard, Land O'Lakes, Florida. On the application, Petitioner indicated that he would be the only person living in the apartment. Petitioner also noted that his dog would also be occupying the apartment.

3. Petitioner's application did not indicate that he had any disability. However, at the time he submitted his rental application, he told the owner or manager of Lakeside Apartments that he had a mental disability.

4. Petitioner's application was approved, and, on March 12, 2006, he moved into a one bedroom apartment on the second floor of Lakeside Apartments. The apartment that Petitioner occupied provided him with a "lake view."

5. On or about June 2007, Petitioner was involved in a car accident. Two or three months later, Petitioner was involved in a second accident.

6. In or about the fall of 2007, after the car accident, Petitioner requested that the manager assign him a first-floor apartment due to the problem with his ankles, presumably sustained in the car accident. This was an oral, not written request.

7. At the time he made the oral request, and at no time thereafter, did Petitioner provide documentation of any type of disability, including one related to problems with his ankles.

8. Moreover, Petitioner failed to provide a medical certification from a physician verifying that Petitioner's requested accommodation (i.e., assign him to a first-floor apartment) was necessary for his disability.

9. The management of Lakeside Apartments began eviction proceedings against Petitioner in or about the spring of 2008. An order was issued on May 28, 2008.

10. Petitioner moved out of Lakeside Apartments on or about May 31, 2008.

11. The eviction action against Petitioner was initiated after Petitioner repeatedly exhibited inappropriate and disruptive behavior on the Lakeside Apartment property, as well violated the terms of his lease. Petitioner's conduct included the following: (1) driving on the Lakeside Apartment property while intoxicated; (2) calling "911" 17 times for no reason between April 1 through 9, 2008, resulting in the police being dispatched to the property; and (3) being disrespectful and causing disturbances with other tenants. Numerous tenants complained to Lakeside Apartment Management about Petitioner's inappropriate conduct on the property, including his drinking and being loud and disruptive. Petitioner violated the terms of his lease by having three unauthorized people living in his apartment unit.

12. Even after eviction proceedings were underway, Petitioner was arrested for spitting on another tenant. In another incident, Petitioner's dog bit the manager at the Lakeside Apartment complex. Both of these incidents occurred on the Lakeside Apartment complex premises.

13. After being evicted, Petitioner requested that Lakeside Apartment Management return his $400.00 security deposit. Lakeside Apartment Management refused to return Petitioner's $400.00 due to the condition of the apartment when Petitioner moved out. Upon inspecting the apartment unit after

    Petitioner moved, management found that the apartment had been damaged (i.e., holes in the walls) and was not cleaned.

14. Petitioner failed to establish that his eviction was for any reason other than his disruptive and inappropriate conduct on the Lakeside Apartment premises. Moreover, Petitioner failed to establish that the Lakeside Apartment management's refusal to return $400.00 of his security deposit was for any reason other than the condition of the apartment unit when Petitioner moved out.

    CONCLUSIONS OF LAW

    
    

15. The Division of Administrative Hearings has jurisdiction over the parties to and subject matter of this proceeding pursuant to Subsection 120.57(1), Florida Statutes (2008).

16. Petitioner alleges that Respondents failed to accommodate his disability, unlawfully evicted him, and failed to return his deposit.

17. Subsection 760.23(2), Florida Statutes (2007),2 provides:

    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.

18. Subsection 760.23(8), Florida Statutes, provides:

    
    

    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; . . . .

       
       

19. Subsection 760.23(9), Florida Statutes, provides, in relevant part:

    For purposes of subsections (7) and (8), discrimination includes:

    
    

    * * *

    
    

    (b) 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.

    
    

20. 42 U.S.C. Section 3604(f)(3)(B) defines unlawful discrimination to include a refusal to make reasonable accommodations in rules, policies, practices, or services, when such accommodations may be necessary to afford a handicapped person equal opportunity to use and enjoy a dwelling.

21. To establish a prima facie case of failure to make a reasonable accommodation under 42 U.S.C. Section 3604(f)(3), Petitioner must show:

    1. that he suffers from a handicap;

       
       

    2. that Respondents knew of the handicap;

    3. that an accommodation of the handicap was necessary to afford Petitioner an equal opportunity to use and enjoy the housing in question; and

       
       

    4. Respondents refused to make such an accommodation.

    
    

    U.S. v. California Mobile Home Park Management Company, 107 F.3d 1374, 1380 (9th Cir. 1997); Schanz v. Village Apartments,

    998 F. Supp. 784, 791 (E.D. Mich. 1998).

    
    

22. Section 760.22, Florida Statutes, provides in relevant part:

    (7) "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.

    
    

    This definition is virtually identical to those found in the Federal Fair Housing Act, 42 U.S.C. Section 3602(h)(defining "handicap"); the Americans with Disabilities Act, 42 U.S.C. Section 12102(1)(A)(defining "disability"); and the Rehabilitation Act, 29 U.S.C. Section 705(9)(B)(defining "disability"). Under the term "handicap" or "disability," each of these laws provides relief only to a person with an impairment that substantially limits a major life activity.

23. Petitioner has failed to meet his burden. First, Petitioner failed to establish that he suffers from a handicap as defined in Section 760.22, Florida Statutes, and related statutes set forth below. Second, Petitioner failed to establish that Respondents knew or should have known about his alleged disability. Third, Petitioner failed to demonstrate how the accommodation of a first-floor apartment was necessary to afford him an equal opportunity to use and enjoy the housing in question. With regard to the fourth prong, it is undisputed that Respondents did not provide him with an accommodation (i.e., a first-floor apartment unit). Having failed to establish all four prongs of the test as set forth above, Petitioner has not established a prima facie case that Respondents failed to make a "reasonable accommodation" available to him.

24. Petitioner failed to establish that Respondents carried out the eviction or retained his deposit based on any discriminatory reason.

25. There was no evidence that Petitioner was refused a "reasonable accommodation" due to a disability.

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 Petitioner's Complaint and Petition for Relief.

DONE AND ENTERED this 5th day of March, 2009, in Tallahassee, Leon County, Florida.

S

CAROLYN S. HOLIFIELD

Administrative Law Judge

Division of Administrative Hearings The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-3060

(850) 488-9675

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

Filed with the Clerk of the Division of Administrative Hearings this 5th day of March, 2009.

ENDNOTES

1/ In addition to filing these exhibits, Petitioner filed more than 150 pages, of and/or from, other documents. To the extent these pages/documents were not offered and received into evidence during the final hearing, they are not part of the record in this proceeding.

2/ All statutory references are to Florida Statutes (2007), unless otherwise noted.

COPIES FURNISHED:

Scott Leonard, Manager Stephen McCormick

2884 Wilsky Road

Land O Lakes, Florida 34639

Stephen McCormick

Omega Properties Investments, LLC 4715 Land O'Lakes Boulevard, No. 6 Land O Lakes, Florida 34639

Daniel C. King

1401 Marathon Key Drive Apartment 103

Tampa, Florida 33612

Denise Crawford, Agency Clerk

Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100

Tallahassee, Florida 32301

Larry Kranert, 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: 08-004728

Orders for Case No: 08-004728