vs. ) Case No. 98-1926
MS. THEODORA ALLEN and )
Respondents. )
A video teleconference hearing was held in this case on January 27, 1999, before the Division of Administrative Hearings by its designated Administrative Law Judge, Suzanne F. Hood. The Administrative Law Judge was located in Tallahassee, Florida.
Other participants in the hearing were located in Pensacola, Florida.
For Respondent: Stephen M. Guttman, Esquire Suite 203
The issue is whether Respondents discriminated against Petitioner because of her physical disability in violation of the Fair Housing Act.
Petitioner Kathleen Anderson-Trant (Petitioner) filed an undated Charge of Discrimination with the Florida Commission on Human Relations (FCHR). Said charge alleged that Respondents Fountains Apartments, Ms. Theodora Allen, and Emmer Management (Respondents) had evicted her because of her physical handicap. The FCHR issued a Determination of No Reasonable Cause on
March 17, 1998.
On or about April 15, 1998, Petitioner filed a Petition for Relief with the FCHR. Said petition alleged that Respondents committed a discriminatory housing practice against Petitioner in violation of Section 760.23, Florida Statutes.
The FCHR referred the case to the Division of Administrative Hearings on April 23, 1998. The undersigned issued an order scheduling this matter for formal hearing on September 28, 1998. By order dated November 2, 1998, the case was rescheduled for hearing on January 27, 1999.
During the hearing, Petitioner testified on her own behalf and presented the testimony of three witnesses. Petitioner offered a composite exhibit which was accepted as evidence.
Respondents presented the testimony of six witnesses. Respondents' composite exhibit was offered and received as evidence.
The parties did not file a transcript of the proceedings. Petitioner filed her Proposed Recommended Order on February 4,
1999. Respondents filed their Proposed Recommended Order on February 8, 1999.
Petitioner is a white female who alleges that Respondents discriminated against her because of a physical disability in violation of the Fair Housing Act.
Respondent Fountains Apartments is a fictitious name of the landlord. Respondent Theodora Allen is the on-site manager of the apartment complex. Respondent Emmer Management is the management entity that manages the apartment complex.
Petitioner is disabled due to a partially amputated right foot. She wares a leg brace. However, there is no persuasive evidence that Petitioner is disabled due to allergies or asthma.1
Petitioner's husband, Mr. Trent, initially leased the apartment at the Fountains Apartments in November of 1991. Petitioner moved into the apartment with Mr. Trent in the spring of 1992. Petitioner and Mr. Trent subsequently renewed the lease on the apartment in both of their names. They lived in the same apartment until June of 1996.
Petitioner referred at least forty-two (42) work orders to the apartment complex's maintenance department between April 1992 and April 1996. She made numerous other written requests for repairs.
The maintenance department addressed each and every work
order. Over the four-year tenancy, maintenance personnel made a substantial number of repairs to the apartment, including but not limited to, replacing the following: kitchen counter tops, stove burners, carpet, vinyl flooring, front door, water heater, outside central air conditioner condensing unit, inside central air conditioning evaporator, heater and air handler, and the toilet. These repairs were made without causing damage to Petitioner's personal property. As a result of Petitioner's demands, her apartment was in better condition than any other apartment in the complex.
The apartment complex has a policy concerning pets. There is a twenty (20) pound weight limit for a dog on the premises. Additionally, a dog must be walked on a leash and never tied outside.
Mr. Walker, another tenant in apartment number 62, owned a dog. Occasionally, Mr. Walker tethered the dog outside his apartment on a grassy area between two apartment buildings. The apartment buildings were located directly across the street from Petitioner's building.
Petitioner complained to the office staff that, when the dog was tethered outside, she could not take a short cut to the mail box, office, laundry, or pool by walking between the buildings in front of her apartment. According to Petitioner, her disability made it difficult for her to walk past the dog or to walk the longer way (approximately 100 feet) around the
buildings.
At times, Petitioner picked up her mail in her car as she drove in and out of the complex. She could also park near the office, laundry, and pool. There were handicapped parking spaces and handicapped ramps available in those areas.2 The
apartment manager made a reasonable effort to keep unauthorized persons from parking in the handicapped parking places.
On or about March 22, 1996, Petitioner and her husband sent the apartment manager a letter, which referenced their concerns regarding Mr. Walker's dog among other complaints. A copy of this letter was sent to the property management entity.
The apartment manager and staff from the county's animal control department, as well Mr. Trent, asked Mr. Walker not to chain his dog outside. When Mr. Walker did not comply with the apartment manager's request, she sent him statutory notice, dated March 25, 1996, demanding that he remedy his noncompliance in ten (10) days or face eviction. The manager asked Petitioner to go around the buildings on her way to and from the office area until Mr. Walker complied with the demand or was evicted.
A letter dated March 27, 1996 informed Petitioner that the apartment manager had sent Mr. Walker a notice allowing him ten (10) days to stop tying his dog outside or to find another residence.
On or about April 16, 1996, Petitioner sent the property management entity another letter. In this letter, Petitioner complained that Mr. Walker was still chaining his dog between the buildings in the evenings and on the weekends when the apartment manager was not on the premises. Petitioner's letter also set forth numerous other complaints about her
apartment and the complex in general.
The property management entity responded with a letter dated April 24, 1996. The letter states, in part, that the situation with the dog was currently being addressed pursuant to legal procedures. The letter also discussed Petitioner's other concerns and complaints.
Petitioner wrote a letter dated May 1, 1996, to the property management entity. In this letter, Petitioner acknowledged that the situation with Mr. Walker's dog was being addressed. However, Petitioner listed numerous other complaints.
On another occasion, a water pipe began to leak in the grassy area between the buildings across the street from Petitioner's apartment. The leak caused a hole or washed-out area to develop. Respondents repaired the leak and covered up the hole. A barrier was erected to keep all residents from walking between the buildings. Respondents never intended for that area to be a walk way.
On or about April 22, 1996, Petitioner advised Respondents that the bottom shelf of the bathroom medicine cabinet was rusted. Her complaint about the shelf was part of a long list of other requests for repairs.
The most persuasive evidence indicates that the rust on the medicine cabinet covered an area the size of a dollar bill. It was a cosmetic blemish and did not affect the usability of the cabinet.
The maintenance man promptly addressed Petitioner's
concerns regarding the medicine cabinet. He sanded the rust spot
and began to prime and paint the shelf. At that point, Petitioner told him to stop. She did not want him to paint the cabinet inside her apartment.
The maintenance man informed the apartment manager that Petitioner refused to allow him to continue painting. The apartment manager immediately went to Petitioner's apartment to inquire about Petitioner's concerns.
Petitioner wanted the cabinet removed and painted outside. Learning that her request was impracticable, Petitioner asked the apartment manager whether the paint would dry in two
(2) hours. She did not offer to allow the painting of the cabinet to continue while she was at work or shopping.3
Petitioner did not verbally advise the apartment manager that she had asthma or that she was allergic to paint fumes. She never mentioned the medicine cabinet or her alleged allergy or asthma in her subsequent letters which listed her complaints in detail.
On or about May 30, 1996, Respondents provided Petitioner with notice that the lease on her apartment would not be renewed. The notice reminded Petitioner that the lease expired on August 31, 1996.
Petitioner and Mr. Trent did not pay their rent when it was due on June 1, 1996.
On June 11, 1996, Respondents furnished Petitioner with a three (3) day notice to pay rent. Petitioner and Mr. Trent did
not comply with the demand for payment of rent.
On June 17, 1996, the landlord filed an action in circuit court to evict Petitioner and Mr. Trent.
On or about June 29, 1996, Petitioner vacated her apartment.
On July 10, 1996, a circuit court judge in Escambia County issued a Writ of Possession directing the sheriff to remove all persons from the apartment and to return it to Respondents' possession.
CONCLUSIONS OF LAW
The Division of Administrative Hearings has jurisdiction over the parties and the subject matter of the proceeding pursuant to Sections 120. 57(1) and 760.11, Florida Statutes.
Section 760.23(2), Florida Statutes, states as follows:
(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.
Section 760.23(8), Florida Statutes, provides as follows:
(8) 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.
Section 760.23(9)(b), Florida Statutes, provides as follows:
For purposes of subsections (7) and (8), discrimination includes:
* * *
(b) 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.
The three-part burden-of-proof test developed in McDonnell Douglas Corp. v. Green, 411 U.S. 792, 93 S.Ct. 1817 (1973), governs in this case. Under that test:
First, the plaintiff has the burden of proving a prima facie case of discrimination by a preponderance of the evidence. Second, if the plaintiff sufficiently establishes a prima facie case, the burden shifts to the defendant to articulate some legitimate, nondiscriminatory reason for its action.
Third, if the defendant satisfies this burden, the plaintiff has the opportunity to prove by a preponderance that the legitimate reasons asserted by the defendant are in fact mere pretext. Pollitt v. Bramel, 669 F. Supp. 172, 175 (S.D. Ohio 1987)(Fair Housing Act claim) (quoting McDonnell Douglas, 411 U.S. at 802, 804, 93 S.Ct. at 1824,
1825)(citations omitted).
U.S. Department of Housing and Urban Development v. Blackwell, 908 F.2d 864, 872 (11th Cir. 1990).
In this case, Petitioner's prima facie case includes proving that she is a person with a handicap, that she requested and was qualified to obtain an accommodation by virtue of her handicap, and that the Respondents discriminated against her by refusing to make that accommodation available.
Petitioner has not proved that she is disabled due to allergies or asthma. Accordingly, it is unnecessary to determine whether Respondents discriminated against Petitioner by failing to paint the medicine cabinet outside.
Petitioner has proved that she is handicapped with respect to her ability to walk. However, she has not proved that Respondents ever intended for anyone, handicapped or otherwise, to walk on the grassy area between the buildings as a short cut to the common areas of the complex. It was not necessary for Petitioner to use the short-cut in order to enjoy the services that other tenants enjoyed.
There is no persuasive evidence that Respondents deliberately permitted Mr. Walker to chain his dog in Petitioner's pathway, knowing that she would be afraid to walk past the dog and that she would have difficulty walking around the building. After learning about the situation with the dog, Respondent took appropriate legal action against Mr. Walker. Petitioner moved out of the complex before the legal process was complete.
There is no persuasive evidence that Respondents failed to make all necessary repairs to Petitioner's apartment. Her apartment was the nicest apartment in the complex. The maintenance department attempted to schedule appointments so that Petitioner could be at home while they worked. There is no persuasive evidence that the repair men ever damaged Petitioner's
personal property.
Petitioner has not proved that Respondents discriminated against Petitioner because of her handicap. The
greater weight of the evidence indicates that regardless of Respondents' effort to accommodate Petitioner, she was unhappy living in the complex.
Petitioner's requested attorney's fees as the prevailing party and because Petitioner participated in the proceeding for an improper purpose. This request is denied.
Based on the foregoing Findings of Fact and Conclusions of Law, it is recommended that FCHR enter a Final Order dismissing Petitioner's Petition for Relief.
DONE AND ENTERED this 31st day of March, 1999, in Tallahassee, Leon County, Florida.
SUZANNE F. HOOD
Filed with the Clerk of the Division of Administrative Hearings this 31st day of March, 1999.
1/ The pest control man often sprayed Petitioner's apartment while she was present with no complaint. Petitioner never informed any of the Respondents about her alleged asthma or allergy. Moreover, she did not present any competent medical evidence regarding her alleged asthma or allergy.
2/ The handicapped parking spaces did not have signs designating them as such. However, they were marked on the pavement as handicapped spaces.
3/ Petitioner did not allow any repairs to her apartment when she was not at home.
Stephen M. Guttman, Esquire Suite 203
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.
