STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

RECOMMENDED ORDER

A formal hearing was held in this matter before Daniel M. Kilbride, Administrative Law Judge, Division of Administrative Hearings, on November 20, 2008, in Lakeland, Florida.

APPEARANCES

For Petitioner: Debra Jones, pro se

John Frazier, pro se Post Office Box 2414

Eaton Park, Florida 33840-2414

For Respondent: Tim Conboy, pro se

Teresa Conboy, pro se 8624 Harison Road

Lakeland, Florida 33810 STATEMENT OF THE ISSUES

Whether Respondents discriminated against Petitioners, Debra Jones and John Frazier, or either of them, on the basis of his or her handicap, violating Subsections 760.23 (1), (2),

or (4), Florida Statutes (2008).1

If discriminatory conduct has been proven, whether quantifiable damages, or other allowable remedies, have been proven under Subsection 760.35(3)(b), Florida Statutes.

PRELIMINARY STATEMENT

Petitioners, Debra Jones and John Frazier, filed a joint housing discrimination complaint with the Florida Commission on Human Relations (FCHR) on July 10, 2008. Pursuant to the Florida Fair Housing Act (FHA), Petitioners alleged that Respondents, Teresa and Tim Conboy, unlawfully discriminated against them, and each of them, on the basis of handicap by refusing to rent them a house, owned by Respondents.

FCHR investigated Petitioners’ allegations and its executive director issued a Determination of “No Reasonable Cause” on August 29, 2008, finding that there was no reasonable cause to believe that a discriminatory housing practice had occurred. Thereafter, Petitioners filed a Petition for Relief, dated September 18, 2008. On September 25, 2008, FCHR referred this matter to the Division of Administrative Hearings (DOAH) to conduct a formal proceeding. A formal hearing was scheduled and held on November 20, 2008, in Lakeland, Florida.

At the formal hearing, Petitioner, Debra Jones, testified in her own behalf, and represented the co-Petitioner, John Frazier, who also testified. Respondents each testified in their own behalf. Neither party offered any exhibits in

evidence. The hearing was recorded, but a transcript of the proceedings was not prepared. Neither Petitioners nor Respondents have filed post hearing submittals, as of the date of this Order.

FINDINGS OF FACT

1. Petitioner, Debra Jones, is a Caucasian female, who claims to be a disabled person under the Florida FHA.

   Petitioner bases her claim on the fact that she asserts that she has a tumor that causes pinched nerves in her back and lateral scoliosis, which prevents her from working and limits her activities of daily living. Petitioner Jones testified that she has been approved for Supplemental Security Income (SSI).

2. Petitioner offered no medical proof of her alleged disability, or that she was receiving Social Security benefits. At the hearing, it was not apparent that Petitioner Jones was impaired.

3. Petitioner Jones is also the caregiver for Petitioner John Frazier.

4. Petitioner John Frazier is speech impaired and appears to suffer from mild mental retardation. However, Petitioners failed to offer any medical evidence of Frazier’s disability, or that he was receiving Social Security benefits based on his disability, or that his physical impairments substantially limit one or more of his major life activities.

5. Sometime during the early summer of 2007, Petitioners, who were homeless at the time, drove by a home listed as “for rent” at 1018 Canal Drive, Lakeland, Florida. Petitioner Jones approached the house and saw that Respondent Teresa Conboy was working on the repair of the house. Jones asked to see inside the house. Conboy refused, saying that the house was not ready to be shown. Jones returned to her truck and retrieved her and Petitioner Frazier’s income papers and showed them to Conboy. After a quick review, Conboy stated that Petitioners’ combined income was insufficient to rent that house because the monthly rental amount exceeded 30 percent of their combined income.

   Petitioners departed and took no further action to rent the house on Canal Drive. They did not complete an application or file a complaint with FCHR.

6. Sometime during the late summer (July or August 2007), Petitioners were again looking for rental housing, drove by a house listed as “for rent” at 2440 Idlewild Street, Lakeland, Florida. Petitioner Jones approached a worker doing repairs on the house, who identified himself as Jeremy Fishbeck and asked for the name and telephone number of the contact person for the house. When Jones learned that the house was owned by Respondents, she left the area, made no attempt to contact Respondents and did not attempt to complete a rental application.

7. Petitioners allege that the discriminatory conduct by Respondents dates back to May of 2006 when Petitioners inquired about the availability of renting a house located at 2441 Broadway Street, Lakeland, Florida, owned by Respondents. They were told and observed, that the house was under repair, but that they could submit an application to rent it. They were told that, when the work was completed, they would be contacted. Petitioners inquired regularly with Respondents about the availability of the house, and were told that it was not ready. During this period, Petitioners came to the mistaken belief that Respondents were holding the house for them. They expected that Respondents would rent the house to them when the repairs were complete. Respondents did not share that understanding. At no time did Respondents promise to rent the house to Petitioners.

8. When the house was ready for occupancy in the spring of 2007, Respondents reviewed Petitioners rental application, along with other applications that had been submitted, and decided to rent the house to a different couple.

9. The testimony is credible that, at the time Respondents received the applications for the rental of the house on Broadway Street, they determined that Petitioners total income was not more than $1,100 per month and that the fair rental value for the house was $800 per month. Therefore, the monthly

   rental amount far exceeded 30 percent of Petitioners’ combined income and that Petitioners did not qualify to rent the house.

10. Further, Respondents were not aware that Petitioner Jones was disabled. They observed that Petitioner Frazier may have had a disability. In either case, the testimony was credible that Petitioners were not denied the opportunity to rent the house on Broadway street based on either of Petitioners’ alleged disabilities.

11. Petitioners offered no evidence to demonstrate that Respondents’ reason for denying their rental application was a pretext for housing discrimination based on their alleged disability.

12. Based on the testimony presented at the hearing, the preponderance of evidence demonstrates that no discriminatory housing practice has occurred.

13. Further, since Petitioners only completed and submitted rental applications to Respondents in April 2006, and May 2007, the alleged discriminatory actions occurred more than

    365 days prior to the filing of the Complaint on July 10, 2008.

    
    

    Therefore, the allegations in the Complaint are not timely, and cannot be considered. § 760.34(2), Fla. Stat.

14. Petitioners presented no evidence of quantifiable damages. Their testimony was that they felt humiliation,

    discomfort and inconvenience because their application was turned down.

    CONCLUSIONS OF LAW

    
    

15. The Division of Administrative Hearings has jurisdiction over the parties and subject matter of this cause pursuant to Section 120.569, and Subsections 120.57(1) and 760.35(2)(b), Florida Statutes. Upon a determination that discriminatory housing practice has occurred, the Administrative Law Judge may issue a recommended order prohibiting the discriminatory housing practice and recommending affirmative relief, including quantifiable damages.

16. FCHR is charged with administration of the Florida Civil Rights Act of 1992, as amended, and the Florida Fair Housing Act, Chapter 760, Parts I and II, Florida Statutes.

17. The Florida FHA provides in pertinent part:

    
    

    760.23 Discrimination in the sale or rental of housing and other prohibited practices.

    
    

    1. It is unlawful to refuse to sell or rent after the making of a bona fide offer, to refuse to negotiate for the sale or rental of, or otherwise to make unavailable or deny a dwelling to any person because of race, color, national origin, sex, handicap, familial status, or religion.

       
       

    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.

    
    

    * * *

    
    

    (4) It is unlawful to represent to any person because of race, color, national origin, sex, handicap, familial status, or religion that any dwelling is not available for inspection, sale, or rental when such dwelling is in fact so available.

    
    

18. The burden of proof in a handicap discrimination housing case involves the “traditional” standard set forth in McDonnell Douglas v. Green, 411 U.S. 792, 93 S.Ct. 1817, 36 L.Ed.2d. 668 (1973), and Texas Department of Community Affairs v. Burdine, 450 U.S. 248, 101 S.Ct. 1089, 67 L.Ed.2d. 207 (1981). That is, Petitioners, and each of them, have the burden of establishing by a preponderance of evidence a prima facie case of unlawful discrimination. If they demonstrate a prima facie case, a presumption of discrimination arises, and the burden shifts to the housing provider to articulate a legitimate, nondiscriminatory reason for its action. The burden of producing evidence is next placed on Petitioners to demonstrate that the proffered reason was pretextual. However, the ultimate burden of persuasion remains with Petitioners at all times. See St. Mary’s Honor Center vs. Hicks, 509 U.S. 502, 507, 113 S.Ct. 2742, 2747 (1993).

19. In order for Petitioners, or either of them, to demonstrate a prima facie case under the proof standard set forth above, Petitioners must demonstrate that:

    1. They are part of a protected class.

       
       

    2. They are qualified to rent the house/apartment in question.

       
       

    3. They suffered a loss of housing opportunity under circumstances which lead to an inference that they based the action solely upon their handicap.

       
       

20. Petitioners have failed to demonstrate a prima facie case. Neither Petitioner has demonstrated that they are part of a protected class. In addition, they have failed to prove that they are qualified to rent a house/apartment from Respondents. In the most recent incident, it was shown that Respondents had a house for rent, but when Petitioners inquired as to the owner/contact person, they were told that Respondents were the owners/contact person. Neither Petitioner ever contacted them or filed out a rental application, nor have they shown that they would qualify financially to rent a house. Therefore, Petitioners have failed to demonstrate a prima facie case and no inference of handicap discrimination arises, and Petitioners’ charge should be dismissed.

21. Assuming arguendo that Petitioners, or either of them, have proven a prima facie case of handicap discrimination, the burden to go forward with the evidence shifts to Respondents.

    Respondents are required to articulate a legitimate, nondiscriminatory reason for the housing action taken. Upon such an articulation being made by Respondents, the burden to go forward with evidence to show that its action was a pretext for what really amounts to discrimination shifts back to Petitioners. Under the St. Mary’s Honor Center decision, supra; however, the ultimate burden of persuasion remains with Petitioners at all times.

22. Petitioners’ testimony alleged that they made contact with Respondents in 2006 and that they sought to rent a house from them. However, the house was under repair at the time. Petitioners kept in contact with Respondents until the house was ready for tenants. At that time, Petitioners’ application for housing was denied because Respondents stated that Petitioners had insufficient income to pay the rent. This testimony was credible. Further, this alleged act of handicap discrimination was never reported to FCHR, and the incident was more than one year after the event when Petitioners did file a complaint with FCHR. Petitioners proffer of evidence to prove pretext was all hearsay or conjecture.

23. Petitioners’ hearsay evidence does not fall into any of the hearsay exceptions found in Section 90.803, Florida Statutes. Under Subsection 120.57(1)(c), Florida Statutes, this hearsay evidence is not sufficient in itself to support findings

    of fact. Department of Environmental Protection v. Department of Management Services, Division of Administrative Hearings, 667 So. 2d 369, 370 (Fla. 1st DCA 1995); Department of Administration, Division of Retirement v. Porter, 591 So. 2d 1108 (Fla. 2nd DCA 1992); Harris v. Game and Fresh Water Fish Commission, 495 So. 2d 806, 809 (Fla. 1st DCA 1986). Without the hearsay evidence, Petitioners’ evidence did not prove that Respondents’ articulated reasons for denying their application was pretextual. In addition, Respondents’ testimony was credible.

24. Subsection 760.35(3)(b), Florida Statutes, provides that in the event the Administrative Law Judge determines that a discriminatory act has been committed, the Administrative Law Judge shall recommend to FCHR an order prohibiting or requiring Respondent to cease and desist its activity and shall recommend an order finding quantifiable damages.

25. There has been no evidence submitted by Petitioners of any quantifiable damages which FCHR has authority to levy in such cases. As the Court determined in Laborers’ International Local 478 v. Burroughs, 541 So. 2d 1160 (Fla. 1989), quantifiable damages can be authorized by an administrative agency. However, humiliation, pain and suffering, discomfort, and inconvenience are damages which are not quantifiable and may

    not be awarded through administrative procedures; see also Broward County v. LaRosa, 505 So. 2d 422 (Fla. 1987).

26. Consequently, had Petitioners proven discrimination, there is no relief afforded by the statute in this particular

case.

RECOMMENDATION

Based upon the foregoing Findings of Fact and Conclusions

of Law, it is

RECOMMENDED that the Florida Commission on Human Relations issue a final order denying the relief sought and dismissing the petition filed in this matter.

DONE AND ENTERED this 27th day of March, 2009, in Tallahassee, Leon County, Florida.

S

DANIEL M. KILBRIDE

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 27th day of March, 2009.

ENDNOTE

1/ All references to Florida Statutes are to Florida Statutes (2008), unless otherwise indicated.

COPIES FURNISHED:

Derrick Daniel, Executive Director 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

Denise Crawford, Agency Clerk

Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100

Tallahassee, Florida 32301

Tim Conboy Teresa Conboy

8624 Harison Road

Lakeland, Florida 33810

John Frazier Debra Jones

Post Office Box 2414

Eaton Park, Florida 33840-2414

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: 08-004816

Orders for Case No: 08-004816