STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

RECOMMENDED ORDER

This cause came on for final hearing before Harry L. Hooper, Administrative Law Judge with the Division of Administrative Hearings, on August 21, 2009, in Pensacola, Florida.

APPEARANCES

For Petitioner: Susan M. Walters, pro se

1112 Bartow Avenue

Pensacola, Florida 32507

For Respondent: Monica Jerelle Williams, Esquire

Ogletree, Deakins, Nash, Smoak, and Stewart, P.C.

100 North Tampa Street, Suite 3600 Tampa, Florida 33602

STATEMENT OF THE ISSUE

The issue is whether Respondent, The Pines at Warrington, LP, et al., and Pinnacle, and American Management Service Company (The Pines), discriminated against Petitioner, Susan M.

Walters (Ms. Walters), because of her disability and gender in violation of the Florida Fair Housing Act, Sections 760.20- 760.37, Florida Statutes.

PRELIMINARY STATEMENT

Ms. Walters filed a complaint with the United States Department of Housing and Urban Development (HUD) on January 23, 2009. She complained of housing discrimination based on her sex and her claimed disability. HUD forwarded the matter to the Florida Commission on Human Relations (Commission), which investigated. The Report of Investigation revealed no merit in Ms. Walters' claim. The Commission thereafter filed its Notice of Determination of No Cause on March 26, 2009.

Ms. Walters executed a Petition for Relief on April 26, 2009, and the matter was forwarded to the Division of Administrative Hearings (Division) and set for hearing on July 14, 2009. Pursuant to a Motion for Continuance of Final

Hearing, the matter was continued until August 21, 2009, and was heard on that date.

At the hearing, Ms. Walters testified and offered one exhibit into evidence and it was admitted. Respondent presented the testimony of two witnesses and offered eight exhibits into evidence and they were all admitted.

A Transcript was filed on September 18, 2009. After the hearing, Petitioner filed her Proposed Recommended Order on

August 25, 2009. The Pines filed its Proposed Recommended Order on October 5, 2009. Both Proposed Recommended Orders were considered in the preparation of this Recommended Order.

References to statutes are to Florida Statutes (2008),

unless otherwise noted.

FINDINGS OF FACT

1. Ms. Walters, during times pertinent, suffered from schizophrenia, chronic differentiated type alcohol abuse, and a personality disorder.

2. The Pines is an apartment community consisting of 160 units. The community is managed by Pinnacle, a subsidiary of American Management Services, LLC. Approximately 90 percent of the residents at The Pines are women.

3. Ms. Walters completed a detailed application for residency in The Pines with Joy John (Ms. John), the facility's leasing specialist. Ms. Walters signed the application on October 24, 2007. She entered into a lease for a term of one year on October 31, 2007.

4. During the course of these events, Ms. Walters did not claim a disability or mention that she was disabled. No one in management at The Pines perceived Ms. Walters to be disabled.

5. During the application and contract process, Ms. Walters was provided with copies of the rules and regulations governing residents of The Pines. The lease

   required Ms. Walters to provide management at The Pines 60 day's notice, if she wanted to vacate the premises.

6. In or around February 2008, Ms. Walters acquired a dog.

   
   

   She informed management at The Pines, and in accordance with the lease agreement, began making payments toward the required pet deposit.

7. During April 2008, Ms. John and Dawn Chapman, Property Manager, received complaints about Ms. Walters' dog. The dog's barking was disturbing residents of The Pines. Four to five complaints were received each week during April. Ms. John and Ms. Chapman advised Ms. Walters of the complaints and provided her with suggestions as to how to ameliorate the problem.

8. Nevertheless, the barking continued. On May 13, 2008, Ms. Walters was provided a "Seven Day Notice of Noncompliance with Opportunity to Cure," addressing the dog issue. It informed Ms. Walters that she must prevent the dog from disturbing other tenants. It further informed her that if the problem continued, she might be evicted.

9. Another week of barking precipitated a "Seven Day Notice of Noncompliance with Possible Lease Termination Following." This was dated May 21, 2008, and signed by

   Dawn Chapman. The notice again made clear to Ms. Walters that if the barking continued she might be evicted. These notices

   were often given to other residents of The Pines when their barking dogs annoyed other tenants.

10. Many of the residents of The Pines were minorities.

    
    

    One of them, Rhonda Lavender, complained about Ms. Walters because she put up a sign in a stairwell that included the word "nigger." Another resident, a disabled man who lived in the unit above her, complained that she "lambasted him" because he dropped a boot and it made a loud noise. Others complained about her coming out of the door to her apartment and screaming. None of the residents, who complained about Ms. Walters' barking dog, or her other offensive actions, mentioned her gender or that she was disabled.

11. At no time during the residency of Ms. Walters at The Pines did she provide Ms. John or Ms. Chapman information with regard to having a disability. The only evidence of a disability presented at the hearing was a form Ms. Walters referred to as "a doctor's release for medical records," signed by an unidentified "physician." It was also agreed that

    Ms. Walters received payments based on a disability from the

    
    

    U.S. Social Security Administration. However, no evidence was adduced that indicated Ms. Walters was limited in one or more major life activities.

12. Ms. Walters' rent payment for June was due June 5, 2008, but was not paid. On June 6, 2008, a "Three Day Notice-

    Demand for Payment of Rent or Possession" was affixed to the door of her apartment. The notice demanded payment of the sum of $518.00 or delivery of possession of the premises. The notice informed Ms. Walters that eviction proceedings would ensue if she did not pay in three days.

13. By June 6, 2008, however, Ms. Walters had determined that she was going to vacate the premises. She told Ms. Chapman that she would pay her June rent on June 20, 2008, but this was a prevarication because Ms. Walters had no intention of paying any more rent.

14. On or about July 4, 2008, Petitioner vacated her apartment. She placed her keys in the drop box designated for rental payments. The rent for June was never paid.

15. Ms. Walters testified under oath that during her occupancy of the dwelling her bank card went missing. She stated that on another occasion $20 went missing from her apartment and that subsequently $10 disappeared. She said the fire alarm rang once for two hours. She said she was disturbed by noisy neighbors and a loud maintenance man. She said that once after returning from her job she discovered a glass plate in her apartment that had been shattered. She did not reveal any of these allegations to management at The Pines when they occurred, if they did occur.

16. Ms. Walters claimed that someone entered her apartment in May and sprayed a chemical that encouraged her dog to defecate inside the apartment. She said she could not check her mail because management at The Pines had locked her out of her mailbox. She said someone came in and scratched her Teflon frying pan and burned up her microwave oven. She did not make these allegations to management at The Pines when they occurred, if they did occur.

17. Even if one believes that her property was violated, and evidence to that effect was thin, there is no indication at all that anyone involved in managing The Pines was involved. Moreover, no adverse action was taken toward Ms. Walters. Two notices about barking dogs and a written demand that she pay rent do not amount to an adverse action.

    CONCLUSIONS OF LAW

    
    

18. The Division of Administrative Hearings has jurisdiction over the subject matter of and the parties to this proceeding. §§ 120.57(1) and 760.35(3) Fla. Stat. (2009).

19. Section 760.23(2), Florida Statutes, provides that 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 . . . sex . . . or handicap."

20. Section 760.22(7), Florida Statutes, defines a "handicapped person" as "a person having 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."

21. In order to establish her disability claim,

    
    

    Ms. Walters had to demonstrate not only that she had a disability that substantially limited one or more of her major life activities, but was required to demonstrate that employees at The Pines were aware that she had such a disability. See Cordoba v. Dillard's, Inc., 419 F.3d 1169, 1174 (11th Cir.

    2005).

    
    

22. Ms. Walters failed to demonstrate that her condition at any time substantially limited any major life activity. The evidence indicated that she had a job and took care of herself independently of others.

23. Even assuming arguendo that Ms. Walters was disabled as defined by Section 760.22(7), Florida Statutes, there was no evidence in the record that employees at The Pines were aware that she had such a disability.

24. Petitioner has the burden of proving by a preponderance of the evidence that Respondents violated the Florida Fair Housing Act. § 760.34(5), Fla. Stat.

25. The well-established, three-part burden of proof test developed in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973) is used in analyzing cases brought under the Federal Fair Housing Act. First, the plaintiff has the burden of proving a prima facie case of discrimination by a preponderance of the evidence. Second, if the plaintiff sufficiently establishes a prima facie case, the burden shifts to the defendant to articulate some legitimate, nondiscriminatory reason for its action. Third, if the defendant satisfies this burden, the plaintiff has the opportunity to prove by a preponderance of the evidence that the legitimate reasons asserted by the defendant are in fact mere pretext. United States Department of Housing

    and Urban Development v. Blackwell, 908 F. 2d 864, 872 (11th Cir. 1990), quoting Pollitt v. Bramel, 669 F. Supp. 172, 175 (S. D. Ohio 1987).

26. Ms. Walters has not established a prima facie case of housing discrimination. While Ms. Walters is a member of a protected class (female), there is insufficient evidence in the record to conclude that the management at The Pines took any action based on her gender or disability, even if one concludes she had a disability.

27. If Ms. Walters had established a prima facie case, the burden to go forward would shift to The Pines to articulate a legitimate, non-discriminatory reason for their actions. The

    Pines had a legitimate non-discriminatory reason for its actions, a barking dog and a failure to pay rent, and they took no adverse action against Ms. Walters. Affixing on Ms. Walters' door two notices to cure and a notice that rent is due does not amount to an adverse action.

28. The evidence is clear that the managers at The Pines engaged in no impermissible discrimination of any type.

RECOMMENDATION

Based upon the Findings of Fact and Conclusions of Law, it

is

RECOMMENDED that the Petition for Relief of Susan M.

Walters be dismissed.

DONE AND ENTERED this 16th day of October, 2009, in Tallahassee, Leon County, Florida.

S

HARRY L. HOOPER

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 16th day of October, 2009.

COPIES FURNISHED:

Dawn Chapman

The Pines at Warrington 4101 West Navy Boulevard Pensacola, Florida 32507

Angela North

Olgetree, Deakins, Nash, Smoak & Stewart, P.C.

301 Congress Avenue, Suite 1150 Austin, Texas 78701

Susan M. Walters 1112 Bartow Avenue

Pensacola, Florida 32507

Monica Jerelle Williams, Esquire Ogletree, Deakins, Nash,

Smoak, and Stewart, P.C.

100 North Tampa Street, Suite 3600 Tampa, Florida 33602

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: 09-002393

Orders for Case No: 09-002393