STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

HEATHER B. McNULTY, )

)

Petitioner, )

)

vs. ) Case No. 98-1924

)

SUMMER LAKE APARTMENTS; ) MS. VICKY ATKINSON, MANAGER; and ) PITTCO SUMMER LAKES )

ASSOCIATES, LTD., )

)

Respondents. )

)

RECOMMENDED ORDER

Pursuant to notice, a Section 120.57(1) hearing was held in this case on September 15, 1998, by video teleconference at sites in Fort Lauderdale and Tallahassee, Florida, before Stuart M. Lerner, a duly designated Administrative Law Judge of the Division of Administrative Hearings.

APPEARANCES

For Petitioner: Heather B. McNulty, pro se

Post Office Box 24335

Fort Lauderdale, Florida 33307 For Respondents: No Appearance

STATEMENT OF THE ISSUES

1. Whether Respondents have violated Florida's Fair Housing Act by refusing to rent an apartment to Petitioner because of her mental disability and familial status.

2. If so, whether Petitioner should be granted the relief she has requested.

PRELIMINARY STATEMENT

In August of 1996, Petitioner filed a discriminatory housing complaint with the Florida Commission on Human Relations (Commission) alleging that Respondents had violated Florida's Fair Housing Act by refusing to rent an apartment to her because of her mental disability. On September 18, 1997, following the completion of its investigation of Petitioner's complaint, the Commission issued a Determination of No Reasonable Cause.

Petitioner subsequently filed with the Commission a Petition for Relief in which she alleged that Respondents had discriminated against her on the basis of not only her mental disability, but her familial status as well. On April 23, 1998, the Commission referred the matter to the Division of Administrative Hearings (Division) for the assignment of a Division administrative law judge to conduct a Section 120.57(1) hearing on the allegations in Petitioner's Petition for Relief.

The Section 120.57(1) hearing was originally scheduled to commence on June 26, 1998, but was continued at the request of Respondents and rescheduled for September 15, 1998. Petitioner and Respondents were provided with written notice of the rescheduled hearing in accordance with Section 120.569(2)(b), Florida Statutes. 1/

Petitioner appeared at the hearing, which was held as scheduled on September 15, 1998. Respondents, on the other hand,

did not make an appearance, either in person or through counsel or an authorized representative.

At the hearing, Petitioner testified on her own behalf. In addition, she offered six exhibits (Petitioner's Exhibits A through F) into evidence. All six exhibits were received by the undersigned.

During the presentation of Petitioner's case, the undersigned asked Petitioner what relief she was seeking. In response to the undersigned's inquiry, Petitioner stated that she was requesting an award of $30,000 against Respondents.

At the conclusion of the evidentiary portion of the hearing, the undersigned, on the record, advised that the deadline for the filing of proposed recommended orders was September 29, 1998. On September 21, 1998, Petitioner filed a proposed recommended order, which the undersigned has carefully considered. To date, Respondents have not filed any post-hearing submittals.

FINDINGS OF FACT

Based upon the evidence adduced at hearing and the record as a whole, the following findings of fact are made:

1. Petitioner is a single parent.

   
   

2. She has three sons, aged 10, 12, and 14.

   
   

3. At all times material to the instant case, her sons have lived with her in the same household.

4. At all times material to the instant case, Petitioner has suffered from phobias and from anxiety and panic attacks.

5. At all times material to the instant case, Petitioner has received social security disability benefits from the federal government based upon her mental disability.

6. Summer Lakes is a rental apartment community in Oakland Park, Florida.

7. Petitioner lived in an apartment at Summer Lakes with her three sons from June of 1994 to January of 1995.

8. During the period of her tenancy, Petitioner experienced financial problems. As a result, she had difficulty making her rent payments.

9. In January of 1995, she was evicted from her Summer Lakes apartment for nonpayment of rent.

10. Following her eviction, she and her sons lived with her mother in her mother's house (where Petitioner and her sons still live).

11. Petitioner's financial situation improved following her eviction.

12. By August 12, 1996, she had been able to save a substantial sum of money.

13. On or about that date (August 12, 1996), Petitioner returned to Summer Lakes to inquire about again renting an apartment in the community.

14. Flags outside the rental office indicated that apartments were available for rent.

15. Upon entering the rental office, Petitioner was greeted by Vicki Atkinson (now Keating), Summer Lakes' manager.

16. Summer Lakes had had another manager when Petitioner had lived there previously.

17. Petitioner filled out an application to lease an apartment in the community and handed it to Ms. Atkinson.

18. She also presented to Ms. Atkinson various documents in an effort to show that she would be financially able to make the required rent payments.

19. Among these documents were bank statements which reflected that Petitioner had approximately $25,000 in the bank.

20. Petitioner, in addition, showed Ms. Atkinson paperwork Petitioner had received from the federal government regarding her social security disability benefits. The paperwork indicated that Petitioner had been awarded these benefits (monthly payments of $910.00) based upon the finding that she had a mental disability.

21. Immediately after reviewing the paperwork, Ms. Atkinson told Petitioner, "We don't want your kind here."

22. Petitioner pleaded with Ms. Atkinson to let her rent an apartment in the Summer Lakes community. She even offered to have someone co-sign her lease.

23. Ms. Atkinson was unmoved.

    
    

24. Claiming that Petitioner's income was insufficient, she refused to rent an apartment to Petitioner.

25. Her refusal was actually based upon her desire not to rent to a person with a mental disability.

26. In refusing to rent an apartment to Petitioner, Ms. Atkinson was acting on behalf of the owner of Summer Lakes,

    Pittco Summer Lakes Associates, Ltd. (Pittco).

    
    

27. Pittco no longer owns Summer Lakes and Ms. Atkinson no longer is its manager.

28. Pittco sold Summer Lakes to SummerLake Oakland Park, Ltd., on or some time before July 1, 1998.

    CONCLUSIONS OF LAW

    
    

29. Florida's Fair Housing Act (Act) is codified in Sections 760.20 through 760.37, Florida Statutes.

30. Among other things, the Act makes certain acts "discriminatory housing practices" and gives the Commission the authority, if it finds (following a Section 120.57(1) administrative hearing conducted by an administrative law judge) that such a "discriminatory housing practice" has occurred, to issue an order "prohibiting the practice" and providing "affirmative relief from the effects of the practice, including quantifiable damages and reasonable attorney's fees and costs." Section 760.35(3)(b), Florida Statutes.

31. The "discriminatory housing practices" prohibited by the Act include those described in Section 760.23(1) and (7), Florida Statutes, which provide as follows:

    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.

       
       

       (7) 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.

       
       

32. Section 760.22, Florida Statutes, defines various terms used in the Act. It provides, in pertinent part, as follows:

    As used in ss. 760.20-760.37, the term: . . . .

    
    

    1. "Dwelling" means any building or structure, or portion thereof, which is occupied as, or designed or intended for occupancy as, a residence by one or more families, and any vacant land which is offered for sale or lease for the construction or location on the land of any such building or structure, or portion thereof.

       
       

    2. "Familial status" is established when an individual who has not attained the age of 18 years is domiciled with:

       
       

       1. A parent or other person having legal custody of such individual; or

          
          

       2. A designee of a parent or other person having legal custody, with the written permission of such parent or other person.

          
          

    3. "Family" includes a single individual.

       
       

    4. "Handicap" means:

       
       

       1. A person has 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; or

          
          

       2. A person has a developmental disability as defined in s. 393.063.

       
       

    5. "Person" includes one or more individuals, corporations, partnerships,

    associations, labor organizations, legal representatives, mutual companies, joint- stock companies, trusts, unincorporated organizations, trustees, trustees in bankruptcy, receivers, and fiduciaries. . . .

    
    

    (10) "To rent" includes to lease, to sublease, to let, and otherwise to grant for a consideration the right to occupy premises not owned by the occupant.

    
    

33. In the instant case, Petitioner has alleged that Respondents have committed a "discriminatory housing practice" in violation of the Act by refusing to rent an apartment to her because of her mental disability and familial status.

34. In accordance with provisions of Section 760.35(3), Florida Statutes, a Section 120.57(1) hearing on these allegations was conducted.

35. Under the Act, in cases involving a claim of rental housing discrimination on the basis of handicap or familial status, the complainant has the burden of proving a prima facie case of discrimination by a preponderance of the evidence. If the complainant sufficiently establishes a prima facie case, the burden shifts to the respondent to articulate some legitimate, nondiscriminatory reason for its action. If the respondent satisfies this burden, the complainant has the opportunity to prove by a preponderance that the legitimate reasons asserted by the respondent are in fact mere pretext. See Massaro v. Mainlands Section 1 and 2 Civic Association, Inc., 3 F.3d 1472, 1476 n.6 (11th Cir. 1993)("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)."); Secretary of the United States Department of Housing and Urban Development 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[ v.

    Green, 411 U.S. 792, 93 S.Ct. 1817 (1973) 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]."); Commission on Human Relations v. Regency Place Apartments, Case No. 96-5776 (Fla. DOAH July 7, 1997)(Recommended Order of Administrative Law Judge Daniel M. Kilbride).

36. Complainants may make a prima facie showing of rental housing discrimination sufficient to meet the first part of the three-part McDonnell Douglas burden of proof test by simply establishing that they had applied to rent an available unit for which they were qualified, their application had been rejected, and, at the time of such rejection, they had been members of a class protected by the Act. See Soules v. United States Department of Housing and Urban Development, 967 F.2d 817, 822 (2d Cir. 1992). Alternatively, they may meet their burden of proof by presenting direct evidence of discrimination. 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.'").

37. In the instant case, at the final hearing, Petitioner presented proof sufficient to establish, under the McDonnell Douglas test, a prima facie case against Ms. Atkinson and Pittco 2/ of rental housing discrimination (on the basis of familial status and handicap). Petitioner presented proof demonstrating that she submitted an application to rent an apartment at Summer Lakes, which Ms. Atkinson managed and Pittco owned; her application was rejected notwithstanding that there were apartments available for rent and she had the apparent financial ability to make the required rent payments; and, at the time of such rejection, her three sons, all under the age of 18, were living with her and she was regarded as having a disabling mental impairment (as evidenced by her receipt social security disability benefits from the federal government 3/). Not only did Petitioner make a prima facie showing of familial status discrimination and handicap discrimination, she also presented direct evidence of the latter (in the form of her testimony, which the undersigned has no reason to disbelieve, regarding the revealing statement, "We don't want your kind here," that Ms. Atkinson made to Petitioner immediately after reviewing paperwork concerning Petitioner's social security disability benefits).

    Ms. Atkinson and Pittco did not make an appearance at the final hearing and therefore they did not articulate any legitimate, nondiscriminatory reason for the rejection of Petitioner's application, nor did they present any evidence in their defense. Accordingly, even if Petitioner had not presented any direct evidence of discrimination, the undersigned would still be required to conclude that that Ms. Atkinson and Pittco committed a "discriminatory housing practice," as alleged by Petitioner, inasmuch the rebuttable presumption of discrimination arising

    from the other evidence Petitioner presented was not overcome by Ms. Atkinson and Pittco.

38. Having found that Petitioner was the victim of a "discriminatory housing practice," the undersigned must next determine what relief, if any, she should receive. Petitioner has requested that she be awarded $30,000.00 in compensatory damages. 4/ Section 760.35(3)(b), Florida Statutes, authorizes the Commission to award compensatory damages to the victim of a "discriminatory housing practice," but only if the damages are quantifiable and their amount has been established by competent substantial evidence. 5/ Petitioner has not demonstrated that she has suffered any quantifiable damages as a result of the "discriminatory housing practice" committed by Ms. Atkinson and Pittco. For instance, she presented no proof that her housing costs were higher than they would have been had she been allowed to rent an apartment at Summer Lakes. While Petitioner did claim at hearing that Ms. Atkinson's and Pittco's "discriminatory housing practice" made her sick and lose weight, the Commission is without authority to award monetary damages for such noneconomic, nonquantifiable injuries. See Metropolitan Dade County Fair Housing and Employment Appeals Board v. Sunrise Village Mobile Home Park, Inc., 511 So. 2d 962, 966 (Fla. 1987); Broward County v. La Rosa, 505 So. 2d 422, 423 (Fla. 1987); Commission on Human Relations v. Regency Place Apartments, Case No. 96-5776 (Fla. DOAH July 7, 1997)(Recommended Order of

Administrative Law Judge Daniel M. Kilbride). Accordingly, the Commission should deny Petitioner's request that she receive such an award.

RECOMMENDATION

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 that, although Ms. Atkinson and Pittco committed a "discriminatory housing practice" by refusing to rent an apartment to Petitioner because of Petitioner's mental disability and familial status, the Commission is without authority to grant the relief Petitioner has requested.

DONE AND ENTERED this 1st day of October, 1998, in Tallahassee, Leon County, Florida.

STUART M. LERNER

Administrative Law Judge

Division of Administrative Hearings The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-3060

(850) 488-9675 SUNCOM 278-9675

Fax Filing (850) 921-6847

Filed with the Clerk of the Division of Administrative Hearings this 1st day of October, 1998.

ENDNOTES

1/ Such notice was in the form of a Notice of Hearing by Video Teleconference mailed on July 22, 1998.

2/ Summer Lakes Apartments, the other respondent named by Petitioner, is a place, not a "person" (as defined in Section

760.22(8), Florida Statutes) against whom a "discriminatory housing practice" complaint may be filed.

3/ See Ryan v. Ramsey, 936 F.Supp. 417, 425-26 (S. D. Tex. 1996)(recipient of social security disability benefits, who made rental agent/apartment complex owner aware that he received such benefits, deemed to be person regarded as having disabling impairment under federal Fair Housing Act, which, like its Florida counterpart, defines person with "handicap" as "includ[ing] a person with a record of having such an impairment or being regarded as having such an impairment.").

4/ Ordinarily, when a determination has been made that a "discriminatory housing practice" has occurred, the Commission, in accordance with Section 760.35(3)(b), Florida Statutes, must prohibit the respondent(s) from continuing the practice.

Petitioner, however, has not requested such relief and, in any event, such relief would be meaningless inasmuch as Ms. Atkinson is no longer the manager of Summer Lakes, Pittco is no longer its owner, and the new owner has not been made a party to this proceeding.

5/ If Section 760.35(3)(b), Florida Statutes, provided otherwise, such provision would be unconstitutional inasmuch as the Legislature cannot authorize an administrative agency to exercise powers that are fundamentally judicial in nature. See Metropolitan Dade County Fair Housing and Employment Appeals Board v. Sunrise Village Mobile Home Park, Inc., 511 So. 2d 962, 966 (Fla. 1987); Broward County v. La Rosa, 505 So. 2d 422, 423 (Fla. 1987); Commission on Human Relations v. Regency Place Apartments, Case No. 96-5776 (Fla. DOAH July 7, 1997)(Recommended Order of Administrative Law Judge Daniel M. Kilbride).

COPIES FURNISHED:

Heather B. McNulty, pro se Post Office Box 24335

Fort Lauderdale, Florida 33307

Manager

Summer Lake Apartments 3481 Northwest 44th Street

Oakland Park, Florida 33309

Ms. Vicky Atkinson-Keating 3465 Northwest 44th Street Apartment 206

Oakland Park, Florida 33309

Sharon Moultry, Clerk

Florida Commission on Human Relations

325 John Knox Road Building F, Suite 240

Tallahassee, Florida 32303-4149

Dana Baird, General Counsel

Florida Commission on Human Relations

325 John Knox Road Building F, Suite 240

Tallahassee, Florida 32303-4149

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: 98-001924

Orders for Case No: 98-001924