STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

JERRY AND BRANDEE LANE,

Petitioners,

vs.

JOHN AND TRACEY SOLEY AND EMERALD COAST RENTALS, LLC,

Respondents.

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) Case No. 12-1121

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RECOMMENDED ORDER

A final hearing was held in this matter before Robert S. Cohen, Administrative Law Judge with the Division of Administrative Hearings, on May 17, 2012, by video teleconferencing at sites located in Tallahassee and Pensacola, Florida.

APPEARANCES

For Petitioners: Jerry Lane, pro se

Brandee Lane, pro se Post Office Box 481

Gulf Breeze, Florida 32562

For Respondents: Jeffrey T. Sauer, Esquire

Smith, Sauer and DeMaria

510 East Zaragoza Street Pensacola, Florida 32502

STATEMENT OF THE ISSUE

The issue is whether Respondents committed an act of discrimination against Petitioners in violation of the Florida

Fair Housing Act. Based upon the following Findings of Fact and Conclusions of Law, no act of discrimination occurred in this

matter.

PRELIMINARY STATEMENT

In November 2011, Petitioners filed a housing discrimination complaint with the Florida Commission on Human Relations (Commission). The complaint alleged that Respondents failed to make a reasonable accommodation based upon Petitioner Jerry Lane's disability. Following review of the complaint and investigation into the matter, the Commission issued a Notice of Determination of No Cause on March 5, 2012, providing Petitioners the right to request an administrative hearing before the Division of Administrative Hearings (DOAH) within 30 days of the determination. Petitioner, Brandee Lane, timely filed a petition on behalf of her husband, Jerry Lane, and herself on March 20, 2012. A hearing was held via video teleconference between Pensacola and Tallahassee, Florida, on May 17, 2012. A court reporter was not ordered by either party, and, therefore, no transcript of the proceedings was made.

At the hearing, Petitioners testified on their own behalf, presented the testimony of their daughters, Tiffany and Courtney Lane, and Tammy Bohannon, the owner of Respondent Emerald Coast Rentals, and offered 14 exhibits into evidence. Respondents presented the testimony of Tracey Soley and Tammy Bohannon and

offered into evidence one exhibit, which was identical to Petitioners' Exhibit 15. At the close of Petitioners' case-in- chief, counsel for Respondent moved to dismiss or to relinquish jurisdiction concerning Respondent Emerald Coast Rentals, LLC (Emerald Coast), on the grounds that Emerald Coast, as merely the leasing agent on the property at issue, had no authority to make the requested repairs since its only duty was to transmit any repair requests to the owners, Mr. and Mrs. Soley. Since Petitioners provided no evidence to the contrary, no disputed issues of material fact existed at that time as to Emerald Coast's liability for any damages or violations claimed by Petitioners. Accordingly, the undersigned granted Emerald Coast's motion to relinquish jurisdiction.

Neither Petitioners nor Respondents filed their proposed findings of fact and conclusions of law on or before May 31, 2012, the date agreed upon at hearing.

References to statutes are to Florida Statutes (2011) unless otherwise noted.

FINDINGS OF FACT

1. Petitioners rented a home at 95 Shoreline Drive, Gulf Breeze, Florida, from Respondents, John and Tracey Soley, beginning August 10, 2010. The home is located on the water.

   
   

2. Respondent Emerald Coast served as the leasing agent and property manager for the Soleys, the owners of the property at

   95 Shoreline Drive.

   
   

3. Petitioner, Jerry Lane, is immune-suppressed, having received a kidney transplant more than 20 years previously. He also suffers from intestinal and gastric disease. These diseases make him susceptible to mold and fungus.

4. On September 7, 2011, Petitioners submitted a reasonable accommodation request to Emerald Coast which was passed along to the Soleys. The request was accompanied by a physician's note describing Mr. Lane's disability and requesting remediation of mold found in the Shoreline Drive home.

5. According to both Petitioners' and Respondents, the mold could be remediated for approximately $1,000 or maybe somewhat higher (one estimate came in at $990, another at $1,800).

6. Petitioners paid $2,800 a month in rent which was reduced by $700 due to Petitioners agreeing to care for the lawn themselves rather than use the Soleys' professional landscaping service.

7. The Soleys' monthly payment on the mortgage on the Shoreline Drive home is $4,060.

8. Petitioners contend that the Soleys refused to pay to have the mold remediated, even after they hired an inspection company to report on the nature and extent of the mold.

   
   

9. The mold inspection report showed visible mold around HVAC ducts, artwork, doors, and windows throughout the home. The parties stipulated that mold exists in the house. Whether the mold is of a dangerous nature, however, was not established due to the hearsay nature of the report and the fact that neither the inspector and author of the report nor a representative of the lab that tested the mold was present to give expert testimony and be cross-examined by counsel for Respondents.

10. The presence of mold in the house has affected all family members and Petitioners' daughter, Tiffany Lane, suffered headaches and damage to her nails which required her to move out. She has felt healthy again since moving out of the house. Mold left unremediated in the house would affect anyone's health, regardless of his or her level of preexisting illness or disease.

11. Mr. Lane has undergone extensive and expensive chemotherapy and takes multiple medications for illnesses he has suffered and that he blames on the presence of toxic mold in the house. No expert testimony was offered concerning Mr. Lane's medical condition. Regardless of the lack of expert medical testimony, Mr. Lane's personal testimony that he is suffering from serious illnesses is credible.

12. It is common for homes on the coast in Florida to experience mold. Knowing this, the Soleys left a dehumidifier with the Lanes when they moved in to help dry the air. If the

    
    

    air conditioner is properly used along with the dehumidifier, and any visible mold is wiped away with bleach or a common household cleaning solution, most mold can be avoided.

13. Additionally, Petitioners purchased a home mold detection kit which showed that no unusual mold existed in the home when the analysis was performed, August 12, 2011. This called into question whether any extraordinary remediation was called for.

14. Once Petitioners complained of the extent to which the mold was harming their health, the Soleys offered to allow them to move out without penalty and agreed to return their security deposit. Petitioners chose not to leave since they were not able to find a suitable home rental that would allow their six pets (four dogs and two birds).

15. No credible evidence was produced that the mold in the Shoreline Drive house had infiltrated the walls or had otherwise become so pervasive that remediation could not be performed. The question that remained unanswered throughout the hearing was why Petitioners did not spend their own money for the remediation, then withhold it from the rent. In November 2011, Petitioners served notice that they intended to withhold rent payments until the mold was remediated, yet they continued to live in the home, even as of the date of the hearing.

    
    

16. Had the mold been remediated when discovered in 2011, the parties might not have been involved in this dispute nearly a year later.

17. Emerald Coast was merely the conduit for passing along information and complaints from Petitioners to the owners of the property, the Soleys. The evidence proved that they passed along every request for mold remediation and complaint made by Petitioners throughout the rental of the Shoreline Drive home. Emerald Coast is not authorized to make repairs on the Soleys' home. Had Emerald Coast made repairs without the Soleys' authorization, it would have had to pay for the repairs from its own funds.

18. Petitioners remain in conflict with the Soleys over eviction from the home, and are currently paying their monthly lease amount into the court registry pursuant to court order.

    CONCLUSIONS OF LAW

    
    

19. The Division of Administrative Hearings has jurisdiction over the subject matter of and the parties to this proceeding. §§ 120.569, 120.57(1), and 760.35(3)(a)2., Fla. Stat.

20. Under Florida's Fair Housing Act, sections 760.20 through 760.37, Florida Statutes, it is unlawful to discriminate in the sale or rental of housing. Section 760.23 states, in pertinent part:

    
    

    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.

       
       

21. Section 760.23 provides, in part:

    
    

    1. It is unlawful to discriminate in the sale or rental of, or to otherwise make unavailable or deny, a dwelling to any buyer or renter 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.

          
          

    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 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.

          
          

    3. For purposes of subsections (7) and (8), discrimination 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.

    
    

22. In interpreting and applying Florida's Fair Housing Act, the Commission and the Florida courts regularly seek guidance from federal court decisions interpreting similar provisions of federal fair housing laws. In cases involving a claim of housing discrimination, the complainant has the burden of proving a prima facie case of discrimination by a preponderance of the evidence. See U.S. v. California Mobile

    Home Park Mgmt., 107 F.3d 1374, 1380 (9th Cir. 1997); Schanz v.

    
    

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

    
    

23. Failure to establish a prima facie case of discrimination ends the inquiry. See Ratliff v. State, 666 So. 2d 1008, 1013, n.7 (Fla. 1st DCA 1996), aff'd, 679 So. 2d 1183 (Fla. 1996). If, however, the complainant establishes a prima facie case, the burden then shifts to the respondent to articulate some legitimate, nondiscriminatory reason for its action. If the respondent satisfies this burden, then the complainant must establish by a preponderance of the evidence that the reason asserted by the respondent is, in fact, merely a pretext for discrimination. See Massaro v. Mainlands Section 1 &

    
    

    2 Civic Ass'n, Inc., 3 F.3d 1472, 1476, n.6 (11th Cir. 1993),

    
    

    cert. denied, 513 U.S. 808 (1994) (Fair housing discrimination cases are subject to the three-part test articulated in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973)).

24. The plaintiff's prima facie case, combined with sufficient evidence to find that the defendant's asserted justification is false, may permit the trier of fact to conclude that the defendant unlawfully discriminated. Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133, 146 (2000); St. Mary's Honor

    Ctr. v. Hicks, 509 U.S. 502, 511 (U.S. 1993). The ultimate question of whether a plaintiff has been unlawfully discriminated against can only be resolved by looking at the particular facts of a case. Woodard v. Fanboy, L.L.C., 298 F.3d 1261 (11th Cir.

    2002); Aka v. Wash. Hosp. Ctr., 156 F.3d 1284, 1291 (D.C. Cir.

    
    

    1998) ("(T)he plaintiff's attack on the employer's explanation must always be assessed in light of the total circumstances of the case"). A showing that a defendant has lied about the reasons for his acts can be strong evidence that a defendant has acted with discriminatory intent. Id.

25. Petitioners have failed to make a prima facie case for discrimination on the basis of a disability. While the evidence supports that Mr. Lane suffers from a disability or serious disease, the evidence does not demonstrate that the mold present in the Shoreline Drive house is different from common household

    
    

    mold found in any waterside home that does not receive proper dehumidification, heating and cooling, and cleanup of visible mold. The symptoms suffered by the Lane family members are common to people with or without disabilities living in a home where mold is present. A legal question still exists as to whether the Soleys had a duty to provide mold remediation when it appears that Petitioners could have remediated the problem themselves, either through routine maintenance or through ordering and paying for remediation from a mold remediation company.

26. If Petitioners were, in fact, made severely ill from the mold, and the problem could be corrected for approximately

    $1,000, they should have fixed the problem and sought recourse against the Soleys for the amount spent on remediation. The fact that Petitioners chose not to mitigate the harm allegedly being done to them by the unhealthy environment they claim to have inhabited was not a reasonable response on their part.

    Accordingly, they cannot claim that their landlord refused to make a reasonable accommodation for them, when they did not attempt to help themselves.

27. For the reasons set forth above, Petitioners have not met their burden of demonstrating that a discriminatory housing practice occurred at the hands of the Soleys. Accordingly, their claim of discrimination should be dismissed. Further, since

Petitioners failed to prove that Emerald Coast acted as anything more than the messenger, conveying their complaints to the owners of the Shoreline Drive home, the Soleys, no cause of action lies against the company or its employees for housing discrimination. Therefore, jurisdiction is relinquished to the Commission concerning Emerald Coast for entry of a final order of dismissal.

RECOMMENDATION

Based on the Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Florida Commission on Human Relations

enter a final order dismissing the claim for relief brought by Petitioners.

DONE AND ENTERED this 4th day of June, 2012, in Tallahassee, Leon County, Florida.

S

ROBERT S. COHEN

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 4th day of June, 2012.

COPIES FURNISHED:

Denise Crawford, Agency Clerk

Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100

Tallahassee, Florida 32301

Jerry and Brandee Lane Post Office Box 481

Gulf Breeze, Florida 32562

Jeffrey T. Sauer, Esquire Smith, Sauer and DeMaria

510 East Zaragoza Street Pensacola, Florida 32502

Lawrence F. Kranert, Jr., 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: 12-001121

Orders for Case No: 12-001121