STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

RECOMMENDED ORDER

Pursuant to notice, a final hearing was held in this case on May 13, 2009, in Sebring, Florida, before Susan B. Harrell, a designated Administrative Law Judge of the Division of

Administrative Hearings.

APPEARANCES

For Petitioner: John Philip Short, Esquire

Florida Rural Legal Services Post Office Box 24688 Lakeland, Florida 33802-4688

For Respondent: Alyssa M. Nohren, Esquire

Icard, Merrill, Cullis, Timm Furen & Ginsburg, P.A.

2033 Main Street, Suite 600

Sarasota, Florida 34237 STATEMENT OF THE ISSUE

The issue in this case is whether Respondent committed a discriminatory housing practice against Petitioner.

PRELIMINARY STATEMENT

On February 9, 2009, the Florida Commission on Human Relations (the Commission) issued a Notice of Determination of No Cause to believe that Respondent, Oak Gardens Mobile Home Park (Oak Gardens), had committed a discriminatory housing practice against Petitioner, Nancy Burnette (Ms. Burnette).

Ms. Burnette filed a Petition for Relief (Petition) with the Commission on February 19, 2009. In her Petition, Ms. Burnette alleged that Oak Gardens had discriminated against her based on a medical handicap of both her and her caregiver, Denis Charbonneau (Mr. Charbonneau).

The Commission forwarded the Petition to the Division of Administrative Hearings for an assignment to an Administrative Law Judge. The Division of Administrative Hearings received the Petition on February 24, 2009. The case was originally assigned to Administrative Law Judge Carolyn S. Holifield. The final hearing was scheduled for May 11, 2009, but was re-scheduled to May 13, 2009, at the request of Ms. Burnette.

On April 23, 2009, Oak Gardens filed Respondents’[sic] Request for Official Recognition, requesting that official recognition be taken of the following: 2008 Florida Statutes; certified copies of Complaint for Eviction of Tenant, Return of Service on Ms. Burnett, Ms. Burette’s written defenses, Affidavit of Non-Military Service, Order Denying Plaintiff’s

Motion for Default, Motion for Default, Final Judgment, and Return of Service on Writ of Possession filed in Wayne C. Rickert d/b/a Silver Oaks Mobile Home Park v. Burnette, Highlands County Case No. 08-376-CCS; Notice of Determination of No Cause from the Commission in FCHR Case No. 2009H0057; Final Judgment in Wayne C. Rickert d/b/a Silver Oaks Mobile Home Park v. Lickteig, Highlands County Case No. 01-150-CCS; Final Judgment in Wayne C. Rickert d/b/a Silver Oaks Mobile Home Park v. Kelly, Highlands County Case No. 03-505-CCS; Final Judgment in Wayne C. Rickert d/b/a Silver Oaks Mobile Home Park v.

Cascio, Highlands County Case No. 2005-189-CCS; and dockets showing Voluntary Dismissal in Wayne C. Rickert d/b/a Oak

Gardens Mobile Home Park v. Murray, Highlands County Case No. 94-132-CCS, and Wayne C. Rickert d/b/a Oak Gardens Mobile Home Park, Highlands County Case No. 02-329-CCS. The request for official recognition was granted at the final hearing.

At the final hearing, Ms. Burnette testified in her own behalf and called William Moore, Jr., and Mr. Charbonneau as her witnesses. Petitioner’s Exhibit 1 was admitted in evidence.

Petitioner attempted to admit a letter from Newsome Eye and Laser Center and from Craig H. Lichtblau, M.D. The letters are hearsay and were not admitted. Additionally, the letter from Newsome Eye and Laser Center concerns a patient named N.N.

At the final hearing, Oak Gardens did not call any witnesses. Respondent’s Exhibits 1 through 16, 18, and 19 were admitted in evidence.

No transcript of the final hearing was filed. The parties filed Proposed Recommended Orders on May 22, 2009. The Proposed Recommended Orders have been considered in the preparation of this Recommended Order.

On May 22, 2009, Oak Gardens filed Respondent’s Petition for Attorney’s Fees and Costs.

FINDINGS OF FACT

1. In March 2006, Ms. Burnette moved into Oak Gardens, which is a 55+ mobile home community in Sebring, Florida. Oak Gardens is adjacent to Silver Oaks Mobile Home Park (Silver Oaks), and both mobile home parks have the same management. Ms. Burnette rented a space for her mobile home from Oak Gardens. Her mobile home was infested with mold and lacked central heating and air conditioning. Approximately a month

   after Ms. Burnette moved into the community, she bought a second mobile home and moved into it. She also kept the second mobile home at Oak Gardens and paid rent to Oak Gardens for the space on which the mobile home was located.

2. In March 2007, Ms. Burnette sustained injuries in an automobile accident. She has difficulty walking and does not see well. The evidence presented at the final hearing does not

   establish that Ms. Burnette had a handicap. After her accident, Ms. Burnette asked Mr. Charbonneau to be her caregiver. From March until October 2007, Mr. Charbonneau cared for

   Ms. Burnette, but did not stay overnight with Ms. Burnette. Some time in October 2007, Mr. Charbonneau started staying overnight with Ms. Burnette at Oak Gardens.

3. Oak Gardens requires each of its residents to undergo a background check as part of an application for residency at Oak Gardens. The application is made on a form used by Oak Gardens. The background checks are done by an outside company. When

   Mr. Charbonneau began staying with Ms. Burnette on a full-time basis, management at Oak Gardens asked that Mr. Charbonneau fill out an application for residency and submit to a background check.

4. Ms. Burnette gave some information to Oak Gardens concerning Mr. Charbonneau, but it was insufficient to comply with the application for residency. Ms. Burnette was advised that Mr. Charbonneau needed to fill out the application for residency that all potential residents completed.

   Mr. Charbonneau supplied the requested information. Within a month, a background investigation was performed, and

   Mr. Charbonneau was approved to live in the Oak Gardens community.

5. Ms. Burnette claims that Oak Gardens refused to allow Mr. Charbonneau to live at Oak Gardens. When questioned at the final hearing concerning her claim, Ms. Burnette stated that the only time that Oak Gardens interfered with Mr. Charbonneau’s residency at the mobile home park was when management called the police. Mr. Charbonneau candidly admitted that, at the time the police were called to Oak Gardens, he and Ms. Burnett were arguing in the street.

6. Ms. Burnette entered into an agreement with Oak Gardens to allow Oak Gardens to attempt to sell the mobile home which Ms. Burnette vacated, but still owned. Ms. Burnette does not feel that Oak Gardens made a good faith effort to sell the mobile home, but she did not demonstrate that the failure of Oak Gardens to sell her mobile home was because she had a handicap. She claims that Oak Gardens would not renew its agreement to sell the mobile home; however, at some point, Ms. Burnette wrote to Oak Gardens and advised that she no longer wanted to sell her mobile home and that she needed the unit for extra storage space. Additionally, the letter advised that Mr. Charbonneau was her caregiver.

7. Ms. Burnette complained that she and Mr. Charbonneau were not allowed to attend a Thanksgiving dinner at one of the two clubhouses located at Oak Gardens and Silver Oaks. There were two homeowners’ associations for the communities. One

   homeowners’ association was sponsoring a private dinner, and one homeowners’ association was sponsoring a dinner at which anyone could participate. The evidence was not clear whether

   Ms. Burnette was attempting to attend the private dinner or the public dinner. However, the management at Oak Gardens was not involved in the dinners being sponsored by the homeowners’ associations and did not deny Ms. Burnette or Mr. Charbonneau entrance to the dinners. No evidence was presented to establish either Ms. Burnette or Mr. Charbonneau were barred from the Thanksgiving dinner based on a handicap.

8. Both Ms. Burnette and Mr. Charbonneau had use of Oak Gardens’ laundry facilities, pool, and clubhouse.

9. Ms. Burnette stopped paying rent for the lots on which her mobile homes were located. Management for the mobile home park provided notice to Ms. Burnette that she was delinquent in her rent payments. Ms. Burnette did not pay rent after being notified that rents were owed.

10. The owner of the mobile home park, Wayne C. Rickert, filed a Complaint for Eviction of Tenant (Complaint) in the County Court in and for Highlands County, Florida, on June 24, 2008, against Ms. Burnette. The Complaint was assigned Case No. 08-376-CCS.

11. On June 30, 2008, a copy of the Complaint and a Summons on Claim for Possession of Residential Premises and/or

    Ancillary Relief (Summons) was served on Ms. Burnette by attaching a copy to the premises where she resided. The Summons contained the following:

    Not counting the first day of service of this summons, YOU HAVE FIVE (5) DAYS IN WHICH TO SERVE WRITTEN DEFENSES, PURSUANT TO CHAPTERS 723 AND 51 OF THE FLORIDA STATUTES, CONCERNING YOUR EVICTION AS TENANT(S) AND TWENTY (20) DAYS IN WHICH TO SERVE WRITTEN DEFENSES CONCERNING CLAIMS FOR MONEY

    DAMAGES, IF ANY. You must file the original of your written defenses with the Clerk of the Court, either before or immediately after you serve the Plaintiff’(s) attorney.

    
    

12. Ms. Burnette claimed that she was never served with a copy of the Complaint. Her testimony is not credible. On July 7, 2008, Ms. Burnette filed, with the Clerk of Highlands

    County Court, hand-written defenses to the Complaint, citing the case number and the date of service as June 30, 2008, at

    6:35 p.m.

    
    

13. On August 21, 2008, a Final Judgment was entered against Ms. Burnette in Case No. 08-376-CCS, requiring

    Ms. Burnette to relinquish possession of the lots to the Plaintiff. The Final Judgment further provided that, if

    Ms. Burnette failed to vacate within ten days of the date of the Final Judgment, a writ of possession would be issued to the sheriff, commanding the sheriff to put the Plaintiff in possession of the lots.

14. A Writ of Possession was issued on September 15, 2008.

    
    

    On September 16, 2008, the Highlands County Sheriff’s Office served the Writ of Possession at the mobile home which

    Ms. Burnette had been occupying. The furnishings were removed from the mobile home, and possession of the mobile home was delivered to William Moore, the manager for the mobile home park. Oak Gardens gained title to the mobile home and sold it to a third party.

15. No evidence was presented to establish that the eviction was based on discrimination. The eviction was for non- payment of rent. Oak Gardens has evicted other tenants for non- payment of rent.

16. In August 2008, Mr. Charbonneau had a heart attack.

    
    

    The evidence presented did not establish that he was handicapped.

17. Oak Gardens did not present evidence to establish that Ms. Burnette filed the Petition for Relief for a frivolous purpose.

    CONCLUSIONS OF LAW

    
    

18. The Division of Administrative Hearings has jurisdiction over the parties to and the subject matter of this proceeding. §§ 120.569 and 120.57, Fla. Stat. (2008).1

19. Ms. Burnette has alleged that Oak Gardens committed a discriminatory housing practice in violation of Section 760.23, Florida Statutes, which provides:

    (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.

    
    

    * * *

    
    

    (8) 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;

       
       

    2. A person residing in or intending to reside in that dwelling after it is sold, rented, or made available; or

       
       

    3. Any person associated with the buyer or renter.

    
    

20. Discrimination covered by the Florida Fair Housing Act, Sections 760.20 through 760.37, Florida Statutes, is the same discrimination as is prohibited under the Federal Fair Housing Act. Savanna Club Worship Serv. v. Savanna Club

    Homeowners’ Ass’n, 456 F. Supp. 2d 1223 (S.D. Fla. 2005). Thus, federal cases involving discrimination in housing are instructive and persuasive in interpreting Section 760.23,

    Florida Statutes. See Dornbach v. Holley, 854 So. 2d 211, 213 (Fla. 2d DCA 2002).

21. As the complainant, Ms. Burnette has the burden of establishing facts to prove a prima facie case by a preponderance of the evidence. If she establishes a prima facie case, the burden shifts to Oak Gardens to articulate some legitimate, nondiscriminatory reason for its action. If Oak Gardens satisfies this burden, Ms. Burnette must establish by a preponderance of the evidence that the reasons asserted by Oak Gardens are merely pretextual. McDonnell Douglas Corp. v. Green, 411 U.S. 792, 93 S. Ct. 1817, 36 L. Ed. 2d 668 (1973); U.S. Department of Housing and Urban Development v. Blackwell, 908 F.2d 864 (11th Cir. 1990).

22. Ms. Burnette claims that Oak Gardens discriminated against her based on a handicap. Essentially, she claims that Oak Gardens refused to allow Mr. Charbonneau to live at the park as her caretaker, refused to sell her mobile home for her, refused to allow her to have Thanksgiving dinner at the clubhouse, failed to give her notice of eviction, evicted her and Mr. Charbonneau from her mobile home, and sold the mobile home from which she was evicted to another party.

23. To establish a prima facie case of failure to make a reasonable accommodation, the Petitioner must show: (a) that she suffers from a handicap, (b) that the Respondent knew of the

    handicap, (c) that an accommodation of the handicap was necessary to afford Petitioner an equal opportunity to use and enjoy the housing in question, and (d) that the Respondent refused to make such an accommodation. See Schanz v. Village

    Apartments, 998 F. Supp. 784 (E.D. Mich. 1998). In this case, Ms. Burnette has failed to establish a prima facie case of discrimination.

24. Subsection 760.22(7), Florida Statutes, defines “handicap” to mean that “[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.”

25. Ms. Burnette did not establish that she has a handicap. She does have some difficulty in walking and seeing, but she did not establish that her physical conditions substantially limit these major life activities. Ms. Burnette did advise Oak Gardens management that Mr. Charbonneau was her caregiver; however, this statement, alone, does not establish that Oak Gardens management was aware that she had a disability or perceived her as having a disability. Assuming arguendo that Ms. Burnette had established that she had a disability of which Oak Gardens was aware, she did not establish that

    Mr. Charbonneau was not allowed to live at the mobile home park as her caregiver. When Mr. Charbonneau began living at the

    mobile home park on a full-time basis, he was asked to fill out a residency application as were all residents of the mobile home park. A short time after Mr. Charbonneau completed the residency application, he was approved to live at the mobile home park. The only instance that Ms. Burnette could cite as a prohibition on Mr. Charbonneau’s residency was when the police were called. Based on the testimony of Mr. Charbonneau, it is logical to conclude that the police were summoned because

    Mr. Charbonneau and Ms. Burnette were having an argument in the street at the mobile home park and not because of a handicap.

26. To establish a prima facie case of discrimination on the terms, conditions, and privileges of a rental of a dwelling or the services or facilities connected with the rental,

    Ms. Burnette must establish: (1) she is a member of a protected class; (2) she is qualified to rent the dwelling and receive the services or use the facilities connected with the rental;

    1. she was denied services or the use of the facilities; and

       
       

    2. she was treated less favorably than were similarly situation persons outside the protected class. See Jackson v. Comberg, 2006 U.S. Dist. LEXIS 66405, *15 (M.D. Fla. August 22, 2006).

27. Ms. Burnette claims that she was discriminated against based on her handicap by being evicted from the mobile home park without notice. Again, Ms. Burnette has failed to establish a prima facie case of discrimination. She has failed to establish

    that she has a handicap. She has failed to establish that she was qualified to rent a lot. In fact, she was not qualified to rent a lot because she stopped paying rent. She has failed to establish that other tenants who failed to pay rent were not evicted. She failed to establish that she was not provided notice of the eviction. She failed to establish that the eviction was in anyway related to a handicap of either

    Ms. Burnette or Mr. Charbonneau.

    
    

28. Ms. Burnette claims that she was denied having Thanksgiving dinner at one of the clubhouses. She did not establish that she was a member of a protected class by having a handicap. She did not establish that she was qualified to participate in the Thanksgiving dinner. The evidence established that at least one of the Thanksgiving dinners was a private dinner sponsored by a homeowners’ association. The evidence established that Oak Gardens was not involved in the Thanksgiving dinner and that Oak Gardens did not deny

    Ms. Burnette or Mr. Charbonneau access to the dinner. No evidence was presented to establish that the reason Ms. Burnette and Mr. Charbonneau were denied access was based on a handicap.

29. Ms. Burnette claims that Oak Gardens refused to sell her mobile home or failed to make a good faith effort to sell her mobile home based on an agreement with Ms. Burnette. The evidence established that Ms. Burnette voluntarily took her

    mobile home off the market. She did not present any evidence that Oak Gardens did not try to sell her mobile home because she had a handicap.

30. In short, Ms. Burnette has presented no evidence to establish a discriminatory housing practice by Oak Gardens.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a final order be entered dismissing the Petition for Relief and denying Respondent’s Petition for Attorney’s Fees and Costs.

DONE AND ENTERED this 12th day of June, 2009, in Tallahassee, Leon County, Florida.

S

SUSAN B. HARRELL

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 12th day of June, 2009.

ENDNOTE

1/ Unless otherwise indicated, all references to the Florida Statutes are to the 2008 version.

COPIES FURNISHED:

Alyssa M. Nohren, Esquire Icard, Merrill, Cullis, Timm

Furen & Ginsburg, P.A.

2033 Main Street, Suite 600

Sarasota, Florida 34237

John Philip Short, Esquire Florida Rural Legal Services Post Office Box 24688 Lakeland, Florida 33802-4688

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: 09-001020

Orders for Case No: 09-001020