STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

HARRY BYRD, )

)

Petitioner, )

)

vs. ) CASE NO. 94-3887

) LACOSTE FAMILY APARTMENTS, )

MR. LACOSTE, Owner, and )

SANDY SPANN, Manager, )

)

Respondents. )

)

RECOMMENDED ORDER

This case was heard on January 4, 1994, in Pensacola, Florida, by David M. Maloney, Hearing Officer for the Division of Administrative Hearings.

Respondents filed their proposed recommended order on July 13, 1995.

Petitioner did not file a proposed recommended order. Rulings on Respondents' proposed findings of fact are contained in the appendix to this order.

APPEARANCES

For Petitioner: Austin B. Gran, Esquire

Post Office Box 12691 Pensacola, Florida 32501

For Respondent: Michael J. Stebbins, Esquire

RAY, KIEVET & KELLY

Post Office Box 13490 Pensacola, Florida 32591-3490

STATEMENT OF THE ISSUE

Whether Respondents committed a discriminatory housing practice with regard to their tenant, Petitioner Harry Byrd, when they terminated his tenancy at the LaCoste Family Apartments?

PRELIMINARY STATEMENT

On July 13, 1994, the Division of Administrative Hearings received a Transmittal of Petition from the Commission on Human Relations advising the Division that the Commission had received a Petition for Relief from a Discriminatory Housing Practice filed by Harry Byrd. Attached to the Transmittal were the Petition for Relief, a notice to Respondent of the filing of the petition, and a Determination of No Reasonable Cause rendered by the Human Relations Commission on May 9, 1994, and filed with the Clerk of the Commission on May 10, 1994. By way of the transmittal, the Commission requested the Division to assign the matter to a hearing office to conduct all proceedings required by law and submit a recommended order to the Commission.

At the hearing on January 4, 1995, Petitioner presented the testimony of one witness, testified himself and offered three exhibits, all of which were received in evidence. Respondents presented the testimony of three witnesses, including that of Respondent Sandra LaCoste Spann and offered six exhibits, all of which were received in evidence.

The transcript was filed in the case on June 9, 1995. Respondents represented that they received the transcript on June 13, 1995. They filed their proposed recommended order on July 13, 1995, within 30 days of receipt of the transcript as allowed by an order entered earlier in the case pursuant to a motion for extension of time. Petitioner did not file a proposed recommended order.

FINDINGS OF FACT

1. Petitioner Harry H. Byrd is disabled due to an automobile accident more than a decade ago in which he suffered critical abdominal, chest and head injuries. He has recovered from these severe injuries with the exception of central nervous system deficiencies. The deficiencies are manifested in at least two ways: impairment of his mobility and impediment of speech. Impairment of Mr. Byrd's mobility requires he use the assistance of a walker or a wheelchair in order to move about. Generally able to communicate when speaking, on occasion, the impediment makes it difficult for his speech to be understood.

   
   

2. In August of 1992, Mr. Byrd rented one of the apartment units, Unit No. 11, of LaCoste Family Apartments at 140 West Terry Drive in Pensacola, Florida.

   
   

3. LaCoste Family Apartments is owned by LaCoste Family Apartments, Inc., a Florida corporation located in Escambia County.

   
   

4. R. H. LaCoste was an officer and a shareholder in the corporation until his death sometime prior to the hearing in this matter.

   
   

5. Sandra LaCoste Spann, also know as Sandra LaCoste, is the daughter of

   R. H. LaCoste and, for the past 15 years, has been the general manager of the apartments. As general manager, Ms. Spann is solely responsible for the day-to- day operations of the apartments, which number approximately 30 units. Her responsibility includes handling complaints and evictions.

   
   

6. When Mr. Byrd rented the apartment, pursuant to LaCoste Family Apartment policy, he did not enter a written lease. His tenancy, therefore, was month-to-month. Ms. Spann told Mr. Byrd that at the end of seven months, if the tenancy were satisfactory, he would be offered and required to sign a year's lease in order to remain a tenant. Seven months has been chosen by management as a probationary period prior to entering a written lease because a tenancy on a month-to-month basis that lasted less than 7 months could result in the imposition of bed taxes pursuant to the Escambia County Bed Tax Ordinance.

   
   

7. During the probationary period usually applied to a new tenant, LaCoste Family Apartments assesses the tenancy. At the end of the seven months, it does not offer the tenant a lease and provides notice of termination of the tenancy if dissatisfied with the tenant for any number of reasons, for example, if problems are encountered with payment of rent.

   
   

8. Along Terry Street, there are sixteen apartment units located in four buildings. Parking for these apartments is on the north side of the buildings.

   As is the case in the building housing Unit 11, the parking facilities are simply an area to the north of the building; individual parking spaces are not separated physically or visually in any way.

   
   

9. Typically, when prospective renters arrive at the apartments, Ms. Spann accompanies them to view the apartment. She also shows them the parking area in front of the apartment building.

   
   

10. Just prior to August of 1992, Ms. Spann showed Unit 10 to Mr. Byrd. He had been inquiring about renting for several months. Ms. Spann recommended that Mr. Byrd not rent Unit 10, the entry to which was on the south side of the building, a building's-length away from the parking area. Rather, she recommended that he wait until Unit 11 became available, which she expected to happen shortly. Unit 11's front door faces the parking area making it easily accessible to the area, a feature Ms. Spann thought important to Mr. Byrd in light of his disability.

    
    

11. Mr. Byrd followed Ms. Spann's recommendation. In the middle of August, 1992, he moved into Unit 11. Other than a request that the door to the bathroom be removed so that he could maneuver in and out of the room with as much ease as possible, Mr. Byrd made no special requests to management. Management honored the request and removed the door.

    
    

12. Mr. Byrd only once complained about any problems with the apartment. It concerned difficulty with a doorknob. Mr. Byrd did not complain to the management about problems he was having with parking.

    
    

13. Despite not complaining about parking difficulties, Mr. Byrd did, in fact, encounter several. Most of the difficulties he was able to solve himself. The parking area is on an incline. The incline, if an automobile is parked front end first closest to the apartment building, slopes from the front of the car to the back. When Mr. Byrd backed his 1987 Pontiac out of the parking area, the muffler struck the ground. He began to park at a 45 degree angle. Not only did this solve the muffler problem, but it assisted Mr. Byrd in putting his walker into the backseat or retrieving it while trying to keep his balance entering and exiting the car. The management did not have a problem with Mr. Byrd parking at a 45 degree angle.

    
    

14. There were other parking issues Mr. Byrd was forced to face. Occasionally, his neighbors would park their cars in ways that made it difficult for him to park. When they saw him driving in, however, they moved their cars to accommodate him. Their courtesy kept the issue from being a problem for Mr. Byrd.

    
    

15. On one occasion, however, Mr. Byrd's neighbors had a party. Cars were parked right next to his. He was unable to enter his own automobile because of the other cars and, therefore, was unable to leave the premises.

    
    

16. Mr. Byrd did not complain about the incident to the neighbors or to management. Instead, he talked to Barbara Hoard, a representative with the Human Relations Commission. Ms. Hoard suggested that Mr. Byrd write a letter to management requesting a handicapped parking space. In addition, Ms. Hoard contacted Sergeant Richard L. Benfield, a parking enforcement specialist with the Escambia County Sheriff's Office.

    
    

17. On March 9, 1993, Ms. Hoard asked Sergeant Benfield to check the LaCoste Family Apartments to see if handicapped parking facilities were required

    or would need to be provided. On March 10, 1993, Sergeant Benfield examined the premises. He determined that there were no requirements under state law or county ordinance that required LaCoste Family Apartments to provide a marked handicapped space. He then contacted Mr. R. H. LaCoste and informed him of the findings. Sergeant Benfield did not speak with Manager Sandra Spann.

    
    

18. On March 11, 1993, Mr. Byrd, wrote the letter suggested by Ms. Hoard. Addressed to Mr. R. H. LaCoste, the letter, in part, states,

    
    

    Due to the disability caused when I was injured in a car accident ten years ago, I am in need of

    a reserved parking space in front of my apartment,

    Unit 11. This accommodation will allow me to have unrestricted access to my apartment.

    
    

    I hereby wish to request this reasonable accommo- dation and am placing this request to you in writing.

    
    

    Pet.'s Ex. No. 2. Mr. Byrd attempted to deliver the letter in person to Mr. LaCoste, first, at the apartment management office. Finding Mr. LaCoste not present, Mr. Byrd drove to Mr. LaCoste's home. Mr. LaCoste was not at home, but Mr. Byrd made the delivery to his wife, Mrs. LaCoste, with whom he spoke for about 10 minutes.

    
    

19. The following day, March 12, 1995, Mr. Byrd received a notice signed by Sandra Spann. The notice stated, "Your rental is terminated and ... no further rent will be accepted." It also stated that Mr. Byrd was not under a lease, that Ms. Spann needed possession of the apartment and that, since Mr. Byrd was "on a month to month basis, by law [he was being given] this fifteen day written notice to vacate the premises." Pet.'s Ex. No. 3.

    
    

20. The coincidence of the delivery of the "termination" notice the very day after Mr. Byrd's written request for a reserved space and two days following Sergeant Benfield's visit to the premises and discussion with Mr. LaCoste, led Mr. Byrd to conclude the tenancy was being terminated because he had made the request. Furthermore, he felt he was being discriminated against because of his handicap. These conclusions were bolstered in Mr. Byrd's mind by the fact that he had never been late in paying his rent, one of the primary reasons management would consider terminating a tenancy during or at the end of the seven-month probationary period.

    
    

21. Despite the coincidence, however, Mr. Byrd's tenancy was not terminated because of the request for a reserved parking space. The letter requesting the reserved parking space had not been seen by Ms. Spann prior to the delivery of the "termination" notice to Mr. Byrd. Nor did Ms. Spann speak to her father or her mother about the letter until after she had delivered the notice. She did not learn of the letter until approximately 2 hours after she delivered the notice to Mr. Byrd's apartment, when her father arrived at the apartment complex around 10 in the morning on March 12. Furthermore, Ms. Spann did not learn of Sergeant Benfield's visit to the complex until her conversation with her father about Mr. Byrd's letter the morning of March 12, again some two hours after delivery of the notice.

    
    

22. The timing of the termination letter was prompted by a complaint from Bernice Smart, a tenant of the complex for over four years. Ms. Smart informed Ms. Spann that she would move out if something was not done about Mr. Byrd.

23. Ms. Smart was not the only tenant to complain about Mr. Byrd. In mid- autumn of 1992, Ms. Spann began receiving complaints from Mr. Byrd's fellow tenants. In the late fall complaints averaged about two a week. But, by January of 1993, the complaints grew more frequent. As Ms. Spann testified,

    
    

    Every time I'd turn around, go over, walk through the apartment complex, someone would always stop me and say that ... Harry [Byrd] had been bothering them and they wished I could make him quit coming over to their house and disturbing them.

    
    

    (Tr. 115). In addition to Ms. Smart, complaints about Mr. Byrd harassing them were made by tenants John Stallworth, Larry Hebert, Sam Thomas, and Keith McCaslin.

    
    

24. Mr. McCaslin's sister, Cathy Shands, testified that while she lived in her brother's apartment, Mr. Byrd would come to visit, "a little too often." (Tr. 148). He called Mr. McCaslin on the phone, sometimes two or three times a day.

    
    

25. In the meantime, Ms. Spann had had her own difficulties with Mr. Byrd. In addition to being general manager of the apartment complex, Ms. Spann also works with the family's electrician's business. She normally arrives at work at 6:30 in the morning to get the employees of the business off to their assignments. Shortly after he moved in, Mr. Byrd began calling in the morning around 7 a.m. while Ms. Spann was busy with the electricians. Sometimes the conversations would take 15 or 20 minutes because of her difficulty in understanding Mr. Byrd over the phone. Finally, she told him he would have to call her at another time if the purpose of calling was simply to talk.

    
    

26. On other occasions, after Ms. Spann had back surgery in January of 1993, when Ms. Spann was visiting her boyfriend's apartment, Mr. Byrd would knock on the door, "wanting to know what took us so long to get to the door or what I was doing over there at that time of the night." (Tr. 116.) These visits by Mr. Byrd occurred as late in the evening as 10 o'clock.

    
    

27. The experience by the LaCoste Family Apartments with Mr. Byrd is not the only experience of the apartment with disabled persons. Respondent, R. H. LaCoste, himself was handicapped, being a leg amputee with loss of 90 percent of his strength in both arms. In addition to Mr. Byrd, the complex has enjoyed the tenancy of at least four other handicapped tenants. One of these tenants, Mary

    K. Hardy, uses a walker. She has known Ms. Spann for six years and has never been treated by her with any discrimination. In fact, Ms. Spann has gone out of her way to see that Ms. Hardy was accommodated in light of her handicap.

    
    

28. In sum, Mr. Byrd's tenancy was terminated, not because of the request for a reserved handicapped parking space or due to any discrimination, but because of numerous complaints received from other tenants that Mr. Byrd harassed them and because of Ms. Spann's personal experience with Mr. Byrd as a difficult tenant who acted inappropriately.

    
    

    CONCLUSIONS OF LAW

    
    

29. The Division of Administrative Hearings has

    
    

    jurisdiction over the parties to, and the subject matter of, these proceedings. Section 120.57, F.S.

30. Section 760.23, Florida Statutes, provides in part:

    
    

    1. It is 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 with such dwelling, because of a handicap of:

       1. That ... renter;

          * * *

    2. For purposes of subsection ... (8), discrimination includes:

       * * *

       (b) A refusal to make reasonable accommodations in rules, policies, practices, or services, when such modifications may be necessary to afford

       such person equal opportunity to use and enjoy a dwelling.

       
       

31. Pursuant to Section 760.34(5), Florida Statutes, the burden of proof is on the complainant, in this case, Petitioner Harry Byrd, to establish the allegations supporting the claim of discrimination.

    
    

32. It is certainly understandable why Mr. Byrd at the moment of receipt of the notice terminating his tenancy on the morning of March 12 would feel that the termination was an act of discrimination flowing directly from his request, by letter hand- delivered only the night before, of the accommodation of marking part of his parking area as a reserved handicapped space. But, proof in this case shows otherwise. In addition to the fact that Sandra Spann was unaware of the request and unaware that Sergeant Benfield had visited the premises, Ms. Spann, as general manager of the apartments, had a valid non-discriminatory basis for terminating Mr. Byrd's tenancy. She terminated his tenancy because of complaints from other tenants that Mr. Byrd had bothered them, accompanied by Ms. Smart's threat to move out, together with difficulties in interactions Ms. Spann, herself, had incurred with Mr. Byrd in their landlord-tenant relationship.

RECOMMENDATION

Accordingly, it is RECOMMENDED:

That the Florida Commission on Human Relations enter a final order dismissing Petitioner's claim of discrimination.

DONE and ORDERED this 22nd day of August, 1995, in Tallahassee, Leon County, Florida.

DAVID M. MALONEY

Hearing Officer

Division of Administrative Hearings The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-1550

(904) 488-9675

Filed with the Clerk of the Division of Administrative Hearings this 22nd day of August, 1995.

APPENDIX

Petitioner did not submit proposed findings of fact. Respondent's proposed findings of fact:

Proposed Findings of Fact Nos. 1 - 56, and 58 -64, insofar as material, have been adopted.

With respect to Finding of Fact No. 57, the finding is accepted insofar as it relates to state law enforced by Sergeant Benfield. To the extent the finding is a conclusion of law that no parking space would have been able to have been reserved for Mr. Byrd, the finding is rejected. It may very well have been that Section 760.23(9), Florida Statutes, required a reserved space as a "reasonable accommodation ... necessary to afford [Mr. Byrd] equal opportunity to use and enjoy [the] dwelling." By the time Mr. Byrd made the request, however, his tenancy was soon to terminate.

Findings of Fact No. 66 - 78, are rejected as irrelevant given the recommendation in this order.

COPIES FURNISHED:

Austin B. Gran, Esq. Post Office Box 12691 Pensacola, FL 32501

Michael J. Stebbins, Esq. RAY, KIEVET & KELLY

Post Office Box 13490 Pensacola, FL 32591-3490

Dana Baird General Counsel

325 John Knox Road Building F, Suite 240 Tallahassee, FL 32303-4149

Sharon Moultry, Clerk Human Relations Commission

325 John Knox Road Building F, Suite 240 Tallahassee, FL 32303-4149

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

All parties have the right to submit written exceptions to this recommended order. All agencies allow each party at least ten days in which to submit written exceptions. Some agencies allow a larger period within which to submit written exceptions. You should contact the agency that will issue the final order in this case concerning agency rules on the deadline for filing exceptions to 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: 94-003887

Orders for Case No: 94-003887