STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DASTHA CREWS,

Petitioner,

vs.

GREEN OAKS TAMPA, LLC,

Respondent.

/

Case No. 20-0888

RECOMMENDED ORDER

A duly-noticed final hearing was held in this matter in Tallahassee, Florida, on April 16, 2020, before Suzanne Van Wyk, an Administrative Law Judge assigned by the Division of Administrative Hearings (“Division”).

APPEARANCES

For Petitioner: Dastha Crews, pro se

2125 Pecan Lane, Apartment A Tallahassee, Florida 32303

For Respondent: No appearance

STATEMENT OF THE ISSUE

Whether Respondent discriminated against Petitioner in the terms, conditions, or privileges of rental of a dwelling; or provision of services or facilities in connection therewith, in violation of the Florida Fair Housing Act (“the Act”), section 760.23, Florida Statutes (2019).

PRELIMINARY STATEMENT

Petitioner, Dastha Crews, filed a Housing Discrimination Complaint (“Complaint”) against Respondent, Green Oaks Tampa, LLC, with the

Commission on Human Relations (“Commission”) on October 15, 2019. Following its investigation, the Commission issued a No Cause Determination and Notice of Determination: No Cause (“Determination”) on January 14, 2020, finding no reasonable cause to believe that a discriminatory housing practice occurred.

Petitioner timely filed a Petition for Relief (“Petition”) from a discriminatory housing practice with the Commission on February 17, 2020, requesting a hearing on her underlying Complaint. The Commission forwarded the Petition to the Division on February 19, 2020, where it was assigned to the undersigned for conduct of a final hearing. Petitioner responded to the Initial Order, but did not specify any dates of availability, an estimated length of time necessary to conduct the final hearing, a

suggested geographic location, or a preference for an “in-person” or “video” hearing. Respondent did not respond to the Initial Order.

Absent any direction from the parties, the undersigned scheduled the final hearing for April 16, 2020, in Tallahassee, Florida. Respondent’s Notice of Hearing was sent via certified mail, and the return receipt was stamped as received on March 9, 2020, by Respondent’s registered agent,

Todd Ruderman.

The final hearing commenced as scheduled on April 16, 2020, in Tallahassee. Petitioner testified on her own behalf and offered Exhibits 1 through 10, which were admitted in evidence. Respondent did not appear at the final hearing.

The undersigned held the record open through April 22, 2020, for Petitioner to submit late-filed exhibits which had been presented at the final hearing, but for which Petitioner had no copies to offer in evidence. Petitioner

timely submitted a late-filed composite exhibit of photographs which was admitted as Petitioner’s Composite Exhibit 11.

The proceedings were recorded, but Petitioner did not order a transcript thereof. Petitioner’s Proposed Recommended Order was filed with the Division on April 22, 2020, and has been considered by the undersigned in preparation of this Recommended Order.

FINDINGS OF FACT

1. Petitioner is a female residing in Tallahassee, Florida, who purports to have diagnoses of depression, attention-deficit/hyperactivity disorder

   (“ADHD”), and a learning disability.

2. Petitioner offered no evidence regarding how her diagnoses affect her daily life.

3. Petitioner originally signed a lease with Respondent to rent apartment F201 at Sabal Court Apartments, 2125 Jackson Bluff Road, Tallahassee, Florida, from November 1, 2017, to October 31, 2018. Petitioner moved into the apartment with her two minor children on November 2, 2017.

4. Petitioner testified her two minor children also have ADHD.

5. On October 24, 2018, Petitioner renewed her lease for the apartment for the term of November 1, 2018, through October 31, 2019.

6. Petitioner testified that, during the term of both leases, she experienced problems with the apartment; including mold in the bathroom, bed bugs, ants, roaches, spiders, and cracked flooring. Most distressing to Petitioner was the air conditioning unit, which Petitioner alleges was filthy and failed to cool the apartment. Petitioner testified she submitted several requests for the unit to be serviced, but it was never repaired to good working condition. Petitioner complained that the apartment was too hot—frequently reaching temperatures in excess of 80 degrees—for her and her children to sleep at night.

   
   

7. On August 7, 2019, Petitioner executed a lease renewal form, requesting to renew her lease for an additional 12 months—through October 31, 2020.

8. On September 23, 2019, Respondent posted a Notice of Non-Renewal of Lease (“Notice”) on Petitioner’s apartment door. The Notice notified Petitioner that her tenancy would not be renewed and that she was expected to vacate the premises on or before October 31, 2019.

9. Petitioner testified that she did not know why her lease was non- renewed, but believed it to be additional mistreatment of her and her family by Respondent.

10. In response to the undersigned’s question why Petitioner believed Respondent’s treatment of her to be related to her handicap, or that of her children, Petitioner replied that she does not believe that the non-renewal of her lease, or other issues with Respondent’s management, was based on either her handicap or that of her children.

    
    

    CONCLUSIONS OF LAW

11. The Division has jurisdiction over the parties and the subject matter of this cause. §§ 120.569 and 120.57(1), Fla. Stat. (2019).

12. The Act makes it “unlawful to discriminate against any person in the terms, conditions, or privileges of … rental of a dwelling, or in the provision of services or facilities in connection therewith, because of … handicap.”

    § 760.23(2), Fla. Stat. The unlawful acts include discrimination on the basis of the handicap of the renter, any person associated with the renter, and any person “residing in or intending to reside in” the rental dwelling. See

    § 760.22(7) and (8), Fla. Stat.

13. Handicap is defined as “a physical or mental impairment which substantially limits one or more major life activities[.]”

14. The Act is patterned after Title VIII of the Civil Rights Act of 1968, as amended by the Fair Housing Act of 1988. As such, discriminatory acts

    
    

    prohibited under the federal Fair Housing Act also are prohibited under the Act, and federal case law interpreting the federal Fair Housing Act is applicable to proceedings brought under the Act. See Brand v. Fla. Power Corp., 633 So. 2d 504, 509 (Fla. 1st DCA 1994) (noting that “the Florida statute will take on the same constructions as placed on its federal prototype”).

15. In cases involving claims of rental housing discrimination, the complainant has the burden to prove a prima facie case of discrimination by a preponderance of the evidence. § 760.34(5), Fla. Stat.; Fla. Dep’t of Transp. v.

    J.W.C. Co., 396 So. 2d 778 (Fla. 1st DCA 1981). A “preponderance of the evidence” means the “greater weight” of the evidence, or evidence that “more likely than not” tends to prove the fact at issue. Gross v. Lyons, 763 So. 2d 276, 289 n.1 (Fla. 2000).

16. Petitioner’s allegations amount to a claim of disparate treatment in the terms of Petitioner’s rental (i.e., notice of non-renewal), as well as in the provision of services in connection with that rental (i.e, failure to repair air conditioning unit and provide pest control).

17. In order to establish a prima facie case of disparate treatment, Petitioner must present evidence that she was treated differently than similarly-situated tenants. Head v. Cornerstone Residential Mgmt., 2010 U.S. Dist. LEXIS 99379, at *21 (citing Schwarz v. City of Treasure Island, 544 F.3d 1201, 1216 (11th Cir. 2008); and Hallmark Dev., Inc. v. Fulton Cty., 466 F.3d 1276, 1286 (11th Cir. 2006)).

18. In establishing that she was the victim of discrimination, a petitioner can either produce direct evidence of discrimination that motivated disparate treatment in the provision of services (or lack thereof) to her, or produce circumstantial evidence sufficient to allow the trier of fact to infer that discrimination was the cause of the disparate treatment. See King v. Auto, Truck, Indus. Parts & Supply, 21 F. Supp. 2d 1370, 1381 (N.D. Fla. 1998).

    
    

19. Direct evidence is that which, if believed, would prove the existence of discriminatory intent without resort to inference or presumption. Denney v. City of Albany, 247 F.3d 1172, 1182 (11th Cir. 2001); Holifield v. Reno, 115 F.3d 1555, 1561 (11th Cir. 1997). As to the nature of the evidence, “only the most blatant remarks, whose intent could be nothing other than to

    discriminate … will constitute direct evidence of discrimination.” Damon v. Fleming Supermarkets of Fla., Inc., 196 F.3d 1354, 1358-59 (11th Cir. 1999). (citations omitted).

20. Petitioner presented no direct evidence of discrimination by Respondent related to, or affecting the terms of, her tenancy at Sabal Court, or in the provision of services in connection therewith.

21. When there is no direct evidence of discrimination, fair housing cases are subject to the three-part test set forth in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973), and Texas Department of Community Affairs v. Burdine, 450 U.S. 248 (1981).

22. Under the three-part test, Petitioner has the initial burden of establishing a prima facie case of unlawful discrimination. McDonnell Douglas, 411 U.S. at 802. “The elements of a prima facie case are flexible and should be tailored, on a case-by-case basis, to differing factual

    circumstances.” Boykin v. Bank of Am. Corp., 162 Fed. Appx. 837, 838-39 2005 U.S. App. LEXIS 28415 (11th Cir. 2005).

23. In order to establish a prima facie case of disparate treatment on a failure to provide services, Petitioner must show that she: (a) is a member of a protected class; (b) requested services be performed on terms comparable to others living in the apartment complex; and (c) that, based on her disability, was denied provision of services protected by the Act which were available to other tenants. See Miller v. Richman Prop. Servs., Laurel Oaks Apts., Case No. 12-3237 (Fla. DOAH Dec. 27, 2012; Fla. FCHR Mar. 11, 2013) (setting forth the elements of a prima facie case of a disparate treatment claim based on race). With regard to her claim of disparate treatment in the terms of her

    
    

    rental, Petitioner must establish that she: (a) is a member of a protected class; (b) requested renewal of her lease on terms comparable to others living in the apartment complex; and (c) that, based on her disability, was denied renewal of her lease based on the same terms available to other tenants. The final element in both cases implies that Respondent was aware of Petitioner’s protected class status.

24. Petitioner did establish the first element of a prima facie case: she is a member of a protected class—she has a handicap which interferes with a major life activity.1 Likewise, she established the second element: she requested renewal of her lease, and that services be performed in connection therewith, comparable to others living in the apartment complex.

25. However, there was no persuasive evidence that any actions, or inactions, by Respondent were influenced by Petitioner’s handicap. The evidence was insufficient to determine Respondent was even aware of Petitioner’s handicap, or that of her children. Moreover, Petitioner admitted during the final hearing that the treatment she received from Respondent was unrelated to either her handicap or that of her children.2

26. In other words, Petitioner presented no persuasive evidence that tenants with no perceptible handicap received more favorable treatment from Respondent.

1 The Americans with Disabilities Act defines “major life activities” to include “learning, thinking, [and] communicating[.]”

2 In her Proposed Recommended Order, Petitioner represented, “Our children suffer from disabilities, and I feel that because of their disabilities we were targeted to be treated

unfairly and with disparity resulting in us being evicted[.]” This representation is contrary to Petitioner’s sworn testimony that she believed her treatment to be unrelated to any disability. Further, there is no record evidence that Petitioner was evicted from her unit.

There was insufficient evidence offered at the final hearing on which to base a finding that Petitioner’s children have a handicap recognized by the Act. Petitioner alleged her children have ADHD, but introduced no evidence of how that diagnosis interferes with any of her

children’s major life activities. Assuming her children have a handicap recognized by the Act, the record is insufficient to determine that Respondent’s actions, or inactions, were related to the handicap of Petitioner’s children.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Florida Commission on Human Relations issue a final order dismissing Petition for Relief from a Discriminatory Housing Practice No. 202021115.

DONE AND ENTERED this 11th day of May, 2020, in Tallahassee, Leon County, Florida.

S

SUZANNE VAN WYK

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 11th day of May, 2020.

COPIES FURNISHED:

Tammy S. Barton, Agency Clerk

Florida Commission on Human Relations Room 110

4075 Esplanade Way

Tallahassee, Florida 32399-7020 (eServed)

Dastha L. Crews Apartment A 2125 Pecan Lane

Tallahassee, Florida 32303 (eServed)

Joni Henley, Assistant Manager Sabal Court Apartments

2125 Jackson Bluff Road Tallahassee, Florida 32304

Todd A. Ruderman Green Oaks Tampa, LLC Suite 218

3201 West Commercial Boulevard Fort Lauderdale, Florida 33309

Cheyanne Costilla, General Counsel Florida Commission on Human Relations Room 110

4075 Esplanade Way

Tallahassee, Florida 32399-7020 (eServed)

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: 20-000888

Orders for Case No: 20-000888