SHELLEY M. WRIGHT,
vs.
Case No. 17-2512
Respondent.
This case came before Administrative Law Judge John G. Van Laningham for final hearing by video teleconference on June 21, 2017, at sites in Tallahassee and Miami, Florida.
For Petitioner: Shelley M. Wright, pro se
Building N10, Apartment 818 3000 Northeast 151st Street Miami, Florida 33181-3605
For Respondent: Steven D. Gonzalez, Esquire
Melissa E. Roque, Esquire Weinberg, Wheeler, Hudgins,
The issue in this case is whether Respondent unlawfully discriminated against Petitioner because of handicap in violation of the Florida Fair Housing Act.
In a Housing Discrimination Complaint filed with the U.S. Department of Housing and Urban Development on or around September 9, 2016, and subsequently investigated by the Florida Commission on Human Relations ("FCHR"), Petitioner Shelley M. Wright alleged that Respondent Servitas Management Group, LLC, had engaged in unlawful housing discrimination because of handicap by refusing to provide reasonable accommodations necessary to give Ms. Wright an equal opportunity to use and enjoy her apartment in the complex that Respondent manages.
The FCHR investigated Ms. Wright's claims and, on March 7, 2017, issued a Notice of Determination of No Cause which dismissed the complaint she had filed on the grounds that reasonable cause did not exist to believe that a discriminatory housing practice had occurred. Thereafter, Ms. Wright filed a Petition for Relief, which the FCHR transmitted to the Division of Administrative Hearings ("DOAH") on April 26, 2017.
The final hearing took place on June 21, 2017. Ms. Wright, who was self-represented, testified on her own behalf and called Donnell Wright as an additional witness. She also submitted Petitioner's Exhibits 1 through 18, which were received into evidence. In its case, Respondent called an employee named Matthew Hilst as a witness. Respondent's Exhibits 1 through 10 were admitted into evidence as well.
The final hearing was transcribed, but neither party ordered a transcript of the proceeding. Each side submitted a proposed recommended order, and these have been considered, although both parties missed the filing deadline, which was August 21, 2017.
Unless otherwise indicated, citations to the Florida Statutes refer to the 2017 Florida Statutes.
At all relevant times, Petitioner Shelley M. Wright ("Wright") was a graduate student at Florida International University ("FIU") in Miami, Florida. Wright has a physical disability that affects her mobility, and, as a result, she uses a wheelchair or scooter to get around. There is no dispute that Wright falls within a class of persons protected against discrimination under the Florida Fair Housing Act ("FFHA").
Respondent Servitas Management Group, LLC ("SMG"), manages Bayview Student Living ("Bayview"), a privately owned student housing community located on FIU's campus. Bayview's owner, NCCD — Biscayne Properties, LLC, leases (from FIU) the real estate on which the project is situated. Bayview is a recently built apartment complex, which first opened its doors to students for the 2016-2017 school year.
On November 20, 2015, Wright submitted a rental application for a single occupancy efficiency apartment in
Bayview, fitted out for residents with disabilities. She was charged an application fee of $100.00, as were all applicants, plus a "convenience fee" of $6.45. Much later, Wright would request that SMG refund the application fee, and SMG would deny her request, although it would give her a credit of $6.45 to erase the convenience fee on the grounds that it had been charged in error. Wright complains that this transaction was tainted with unlawful discrimination, but there is no evidence of such, and thus the fees will not be discussed further.
Wright's application was approved, and, accordingly, she soon executed a Student Housing Lease Contract ("First Lease") for a term commencing on August 20, 2016, and ending on July 31, 2017. The First Lease stated that her rent would be
$1,153.00 per month, and that the total rent for the lease term would be $12,683.00.
Because Wright was one of the first students to sign a lease, she won some incentives, namely $500.00 in Visa gift cards and an iPad Pro. The First Lease provided that she would receive a $200.00 gift card upon lease execution and the balance of $300.00 upon moving in. As it happened, Wright did not receive the gift cards in two installments, but instead accepted five cards worth $500.00, in the aggregate, on August 20, 2016. There were two reasons for this. One was that SMG required lease holders to appear in-person to take possession of the gift
cards and sign a receipt acknowledging delivery. Wright was unable (or unwilling) to travel to SMG's office until she moved to Miami in August 2016 to attend FIU. The other was that SMG decided not to use gift cards as the means of paying this particular incentive after integrating its rent collection operation with FIU's student accounts. Instead, SMG would issue a credit to the lease holders' student accounts in the amount of
$500.00. Wright, however, insisted upon the gift cards, and so she was given them rather than the $500.00 credit. Wright has alleged that the untimely (or inconvenient) delivery of the gift cards constituted unlawful discrimination, but the evidence fails to sustain the allegation, which merits no further discussion.
In May 2016, SMG asked Wright (and all other Bayview lease holders) to sign an amended lease. The revised lease made several changes that SMG called "improvements," most of which stemmed from SMG's entering into a closer working relationship with FIU. (One such change was the aforementioned substitution of a $500.00 credit for gift cards.) The amended lease, however, specified that Wright's total rent for the term would be $13,836.00——an increase of $1,153.00 over the amount stated in the First Lease. The explanation was that, in the First Lease, the total rent had been calculated by multiplying the monthly installment ($1,153.00) by 11, which did not account for
the 12 days in August 2016 included in the lease term. SMG claimed that the intent all along had been to charge 12 monthly installments of $1,153.00 without proration (even though the tenant would not have possession of the premises for a full
12 months) and thus that the First Lease had erroneously shown the total rent as $12,683.00. As SMG saw it, the revised lease simply fixed this mistake. Wright executed the amended lease on or about May 10, 2016 (the "Second Lease").
Wright alleges that this rent "increase" was the product of unlawful discrimination, retaliation, or both. There is, however, no persuasive evidence supporting this allegation. The same rental amount was charged to all occupants of the efficiency apartments, regardless of their disabilities or lack thereof, and each of them signed the same amended lease document that Wright executed. To be sure, Wright had reason to be upset about SMG's revision of the total rent amount, which was not an improvement from her standpoint, and perhaps she had (or has) legal or equitable remedies available for breach of lease. But this administrative proceeding is not the forum for redressing such wrongs (if any).
Relatedly, some tenants received a rent reduction through the amended leases SMG presented in May 2016, because the rates were reduced therein for two- and four-bedroom apartments. As was made clear at the time, however, rates were
not reduced on the one-bedroom studios due to their popularity. Wright alleges that she subsequently requested an "accommodation" in the form of a rent reduction, which she argues was necessary because she leased a more expensive studio apartment, not by choice, but of necessity (since only the one- bedroom unit met her needs in light of her disabilities). This claim fails because allowing Wright to pay less for her apartment than every other tenant is charged for the same type of apartment would amount to preferential treatment, which the law does not require.
Wright makes two claims of alleged discrimination that, unlike her other charges, are facially plausible. She asserts that the handicapped parking spaces at Bayview are unreasonably far away for her, given her limited mobility. She further asserts that the main entrance doors (and others in the building) do not afford two-way automatic entry, and that as a result, she has difficulty exiting through these doors.
The undersigned believes it is possible, even likely, that the refusal to offer Wright a reasonable and necessary accommodation with regard to the alleged parking situation, her problems with ingress and egress, or both, if properly requested, might afford grounds for relief under the FFHA. The shortcoming in Wright's current case is the absence of persuasive proof that she ever presented an actual request for
such an accommodation, explaining the necessity thereof, for SMG's consideration. There is evidence suggesting that Wright complained about the parking and the doors, perhaps even to SMG employees, but a gripe, without more, is not equivalent to a request for reasonable accommodation.
Determinations of Ultimate Fact
There is no persuasive evidence that any of SMG's decisions concerning, or actions affecting, Wright, directly or indirectly, were motivated in any way by discriminatory animus directed toward Wright.
There is no persuasive evidence that SMG denied a request of Wright's for a reasonable accommodation at Bayview.
In sum, there is no competent, persuasive evidence in the record, direct or circumstantial, upon which a finding of any sort of unlawful housing discrimination could be made. Ultimately, therefore, it is determined that SMG did not commit any prohibited act.
CONCLUSIONS OF LAW
DOAH has personal and subject matter jurisdiction in this proceeding pursuant to sections 120.569 and 120.57(1), Florida Statutes.
Under the FFHA, sections 760.20 through 760.37, Florida Statutes, it is unlawful to discriminate in the sale or rental of housing. Wright's allegations of housing
discrimination because of handicap implicate section 760.23(2), which states:
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.
Other subsections of section 760.23 describe specific acts of discrimination on the basis of handicap that the FFHA prohibits:
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:
That buyer or renter;
A person residing in or intending to reside in that dwelling after it is sold, rented, or made available; or
Any person associated with the buyer or renter.
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:
That buyer or renter;
A person residing in or intending to reside in that dwelling after it is sold, rented, or made available; or
Any person associated with the buyer or renter.
For purposes of subsections (7) and (8), discrimination includes:
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
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.
Wright is clearly traveling under section 760.23(9)(b).
The foregoing provisions of the FFHA are patterned after the federal Fair Housing Act. See 42 U.S.C. §§ 3604(f)(2)
& 3604(f)(3)(B). Accordingly, the same legal analysis applies to each, see, e.g., Philippeaux v. Apartment Investment and
Management Co., 598 Fed. Appx. 640, 643 (11th Cir. 2015), and the decisions of federal courts interpreting and applying the analogous federal laws provide persuasive guidance in determining whether a violation of the FFHA has occurred. See Dornbach v. Holley, 854 So. 2d 211, 213 (Fla. 2d DCA 2002).
The burden of proving that SMG failed to provide a reasonable, proposed accommodation, or otherwise engaged in unlawful housing discrimination, belongs to Wright. See, e.g., Loren v. Sasser, 309 F.3d 1296, 1302 (11th Cir. 2002).
In cases involving a claim of housing discrimination, the complainant has the initial burden of proving a prima facie case of discrimination by a preponderance of the evidence. Generally speaking, a prima facie case comprises circumstantial evidence of discriminatory animus, such as proof that the charged party treated persons outside of the protected class, who were otherwise similarly situated, more favorably than the complainant was treated.1/ Failure to establish a prima facie case of discrimination ends the inquiry. See Ratliff v. State, 666 So. 2d 1008, 1012 n.6 (Fla. 1st DCA), aff'd, 679 So. 2d 1183
(1996)(citing Arnold v. Burger Queen Sys., 509 So. 2d 958 (Fla. 2d DCA 1987)).
If, however, the complainant sufficiently establishes a prima facie case, the burden then shifts to the charged party to articulate some legitimate, nondiscriminatory reason for its action. If the charged party satisfies this burden, then the complainant must establish by a preponderance of the evidence that the reason asserted by the charged party 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, 115 S. Ct. 56, 130
L. Ed. 2d 15 (1994)("Fair housing discrimination cases are subject to the three-part test articulated in McDonnell Douglas
Corp. v. Green, 411 U.S. 792, 93 S. Ct. 1817, 36 L. Ed. 2d 668
(1973)."); Sec'y, U.S. Dep't of HUD, on behalf of Herron v.
Blackwell, 908 F.2d 864, 870 (11th Cir. 1990)("We agree with the ALJ that the three-part burden of proof test developed in McDonnell Douglas [for claims brought under Title VII of the Civil Rights Act] governs in this case [involving a claim of discrimination in violation of the federal Fair Housing Act].").
"To establish a failure-to-accommodate claim, a plaintiff 'must prove that (1) [s]he is disabled within the meaning of the [F]FHA, (2) [s]he requested a reasonable accommodation, (3) the requested accommodation was necessary to afford h[er] an [equal] opportunity to use and enjoy h[er] dwelling, and (4) the defendants refused to make the accommodation.'" Philippeaux, 598 Fed. Appx. at 644 (quoting Bhogaita v. Altamonte Heights Condo. Ass'n, Inc., 765 F.3d 1277,
1285 (11th Cir. 2014)).
Here, Wright failed to prove that she requested a proposed accommodation in a manner sufficient to trigger a legal duty on SMG's part to respond. Indeed, based on the evidence of record, the undersigned is unable to ascertain precisely what accommodations Wright presently proposes SMG provide her vis-à- vis proximity of parking and difficult-to-open doors. Thus, even if she had made a proper request (which has not been established), Wright has failed to prove that the requested accommodation(s), if any, were reasonable and necessary. This
is not to say that such showings could never be made, but only that Wright has not made them in this case.
To make out a prima facie case of discriminatory impact, Wright needed to show that she: (1) belongs to a protected class; (2) was qualified to receive the services in question; (3) was denied the services by SMG; and (4) was treated less favorably by SMG than were similarly situated persons outside of the protected class. See, e.g., Jackson v.
Comberg, 2006 U.S. Dist. LEXIS 66405, 15 (M.D. Fla.
Aug. 22, 2006).
Wright failed to prove that SMG treated her less favorably than any similarly situated non-handicapped person(s).
Wright's failure to establish a prima facie case of discrimination ended the inquiry. The burden never shifted to the SMG to articulate legitimate, nondiscriminatory reasons for its conduct.
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 finding SMG not liable for housing discrimination and awarding Wright no relief.
DONE AND ENTERED this 27th day of September, 2017, in Tallahassee, Leon County, Florida.
JOHN G. VAN LANINGHAM
Filed with the Clerk of the Division of Administrative Hearings this 27th day of September, 2017.
1/ Alternatively, the complainant's burden may be satisfied with direct evidence of discriminatory intent. See Trans World Airlines, Inc. v. Thurston, 469 U.S. 111, 121, 105 S. Ct. 613, 621, 83 L. Ed. 2d 523 (1985)("[T]he McDonnell Douglas test is inapplicable where the plaintiff presents direct evidence of discrimination" inasmuch as "[t]he shifting burdens of proof set forth in McDonnell Douglas are designed to assure that the 'plaintiff [has] his day in court despite the unavailability of direct evidence.'").
Steven D. Gonzalez, Esquire Weinberg, Wheeler, Hudgins,
Melissa E. Roque, Esquire Weinberg, Wheeler, Hudgins,
Shelley M. Wright
Building N10, Apartment 818 3000 Northeast 151st Street Miami, Florida 33181-3605
Shelley M. Wright 1117 Sophie Boulevard
Tammy S. Barton, Agency Clerk
Cheyanne M. Costilla, General Counsel Florida Commission on Human Relations 4075 Esplanade Way, Room 110
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.
