STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

ROBERT S. McCANCE,

Petitioner,

vs.

HELEN SOWINSKI,

Respondent.

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) Case No. 00-2317

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RECOMMENDED ORDER

Pursuant to notice, a formal hearing was held in this case on May 14, 2001, at City Hall in Tavares, Florida, before William R. Pfeiffer, a duly designated Administrative Law Judge of the Division of Administrative Hearings.

APPEARANCES

For Petitioner: Robert S. McCance, pro se

14422 Hibiscus Circle

Tavares, Florida 32778

For Respondent: Fred A. Morrison, of

McLin, Burnsed, Morrison, Johnson, Newman & Roy, P.A.

12000 West Main Street Post Office Box 491357

Leesburg, Florida 34749-1357 STATEMENT OF ISSUE

The issue to be determined is whether Respondent engaged in retaliatory conduct against Petitioner in violation of Section 760.37, Florida Statutes (2000), due to assistance rendered by

Petitioner to a third party in filing a complaint against Respondent for discriminatory housing practices.

PRELIMINARY STATEMENT

Petitioner assisted Mr. Joseph Ralabate in filing a complaint against Respondent for alleged discriminatory housing practices. The date on the Ralabate complaint was

May 11, 1999. Respondent was notified of the complaint by letter from the Florida Commission on Human Relations (FCHR), dated June 2, 1999. Petitioner alleges that certain acts of the Respondent in early 1999 amounted to unlawful harassment of Petitioner in retaliation and violation of Section 760.37, Florida Statutes. Petitioner filed his complaint alleging retaliation, with FCHR in August 1999. On April 19, 2000, the Commission on Human Relations issued a "Determination of No Reasonable Cause" in both the housing discrimination case filed by or on behalf of Mr. Ralabate, and the complaint filed directly by Petitioner alleging retaliatory conduct. Petitioner then initiated this administrative proceeding.

At the DOAH hearing on May 14, 2001, Petitioner testified on his own behalf. Although he had other witnesses present, after being advised that the subject matter of this hearing was limited to his complaint of retaliatory conduct, Petitioner presented no other witnesses. Respondent testified on her own behalf. No other witnesses presented testimony. Both parties

submitted written exhibits. By leave granted at the conclusion of the formal hearing, Petitioner introduced Composite Exhibit 1 into evidence after the hearing, to which Respondent replied in writing. During the hearing, Respondent introduced Exhibits 1,

2 and 3.

FINDINGS OF FACT

1. Petitioner was, at all times relevant to this proceeding, a tenant of Respondent at the Pink Top Mobile Home Park in Tavares, Lake County, Florida. Purportedly in August 1999, Petitioner filed a Petition for relief with FCHR alleging harassment of Petitioner by Respondent (FCHR No. 99-W396H). Petitioner claims the harassment was in retaliation for assistance he provided to a third party, Joseph Ralabate, in the filing of an earlier complaint with HUD and FCHR dated May 11, 1999, against Respondent for housing discrimination (FCHR No. 99-W241H).

2. Petitioner's claims of harassment included the following: violation notices about his cat; enforcement by Respondent of rules requiring payment of guest fees for additional residents in a mobile home within the park; and notification to Petitioner that he was watering his lawn excessively. Petitioner also claims Respondent deprived him of a storage shed which he purchased from another tenant at the time the other tenant was vacating the park, and denied

   Petitioner the right to construct a new storage shed of his own. Finally, Petitioner submitted evidence concerning an incident in which he was forcibly removed from the park office by Mr. Carlos Rodriguez, in the course of which Petitioner claims to have sustained physical injuries.

3. Petitioner became a tenant at Pink Top in April 1997.

   
   

   There is no evidence that he experienced any problems with Respondent about his tenancy until January 1999, when Respondent through her counsel sent Petitioner a formal notification that he was in violation of park rules for having a pet cat, and for failing to pay guest fees for an additional person temporarily residing in his home. A second notice was sent to Petitioner concerning the cat, and excessive lawn watering, on March 10, 1999.

4. Although both letters indicated that failure to comply with park rules may lead to eviction, Respondent never filed eviction proceedings, nor followed up on the rule violation notices notwithstanding Petitioner's admission that he kept the cat.

5. Mr. Ralabate's complaint alleging housing discrimination toward his handicap was dated May 11, 1999. Respondent received written notice by FCHR of the Ralabate complaint, in early June 1999. Both correspondence occurred several months after the delivery of the rule violation notices.

   Although Petitioner testified that he verbally informed Respondent, prior to receiving the rule violation notices, that he had filed, or would be filing, a complaint about her alleged discrimination against Mr. Ralabate, Respondent denied having been told.

6. With regard to the storage shed disputes between the parties, the evidence shows that some time prior to May 13, 1999, before Respondent received written notification of the Ralabate complaint, Petitioner requested approval to demolish his existing storage shed and construct a new one.

7. On May 13, 1999, counsel for Respondent notified Petitioner in writing of the requirements in the park rules for storage sheds, and requested detailed plans and information about the proposed new shed. Shortly thereafter, Respondent became aware of the allegations filed against her, and notified Petitioner that all aspects of Petitioner’s tenancy in the park were being held in abeyance, until the resolution of the pending complaints.

8. Thereafter, Petitioner purchased an existing shed from another tenant in the park, and alleges that Respondent denied him possession of the shed, as retaliation. Petitioner, however, did not obtain a bill of sale or other proof of purchase when he purportedly bought the shed. It was not until May or June 2000, a year after the alleged date of purchase, and

   after Respondent had denied his undocumented claim to the shed, that Petitioner obtained a bill of sale, on which he wrote in his own handwriting a date of sale which differed significantly from the date on the document itself. Petitioner submitted this post-dated, altered bill of sale to Respondent and again demanded the shed.

9. Respondent denied his request on the basis that when the other tenant vacated the park, he owed outstanding rent which was being partially satisfied by the shed.

10. Petitioner also alleges that retaliation and physical harm occurred when he attempted to persuade Respondent, in her office, to allow him to construct a new shed. He claims he was forcibly thrown out of the office by an individual named Carlos Rodriguez, who was related to Respondent. There are significant factual disputes about the incident, however it was referred to the State Attorney’s office which declined to prosecute

11. The State Attorney’s office conducted a second review and again declined to prosecute. The preponderance of the evidence, including law enforcement reports and documents submitted by Petitioner after the DOAH hearing, suggests Respondent, who is an elderly lady and partially handicapped, was in fear of Petitioner. The reports, including an eyewitness account from a disinterested third party, indicate that

    Petitioner tripped over an obstruction during his departure from the office.

12. Petitioner finally argues that he was forced out of Pink Top Mobile Home Park by Respondent's continued harassment, lost his investment in the home due to the minimum age requirements, and suffered unknown monetary damages. However, Petitioner admits that he had minimal contact with Respondent after being served with the rule violation notices in early 1999, except for his request to construct a new shed and his attempt to purchase a shed from another tenant and admits being told when he purchased the home that tenants in the park must be over the age of 55.

13. Although it is apparent that Petitioner and Respondent had disagreements and were not cordial with each other, there is insufficient evidence to conclude that Respondent acted in a discriminatory or retaliatory manner against Petitioner.

    CONCLUSIONS OF LAW

    
    

14. The Division of Administrative Hearings has jurisdiction over the parties to, and the subject matter of, these proceedings.

15. Section 760.23, Florida Statutes, provides in pertinent part:

    (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.

    
    

    * * *

    
    

    (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 is;

       
       

    2. A person residing in or intending to reside in that a dwelling after it is sold, rented or made available; or

       
       

    3. Any person associated with the buyer or renter.

    
    

16. Section 760.34, Florida Statutes, provides, in part:

    
    

    1. Any person who claims to have been injured by a discriminatory housing practice. . . . may file a complaint with the commission.

17. Section 760.35, Florida Statutes, provides in part: (3)(a) If the commission in unable to

    obtain voluntary compliance with sections 760.20-760.37 or has reasonable cause to believe that a discriminatory practice has occurred:

    
    

    1. The commission may institute an administrative proceeding under Chapter 120; or

       
       

    2. The person aggrieved may request administrative relief under chapter 120 within 30 days after receiving notice that the commission has concluded its investigation under section 760.34.

    (b) Administrative hearings shall be conducted pursuant to Sections 120.5697 and 120.57(1). The respondent must be served written notice by certified mail. If the hearing officer finds that a discriminatory housing practice has occurred or is about to occur, he shall issue a recommended order to the commission prohibiting the practice and recommending affirmative relief from the effects of the practice, including quantifiable damages and reasonable attorney's fees and costs. The commission may adopt, reject, or modify a recommended order only as provided under Section 120.57(1). Judgment for the amount of damages and costs assessed pursuant to a final order by the commission may be entered in any court having jurisdiction thereof and may be enforced as any other judgment.

    
    

18. Section 760.37, Florida Statutes, provides:

    
    

    It is unlawful to coerce, intimidate, threaten, or interfere with any person in the exercise of, or on account of her or his having exercised, or on account of her or his having aided or encouraged any other person in the exercise of any right granted under Sections 760.20-760.37. This section may be enforced by administrative or civil action.

    
    

19. Petitioner bears the burden of proving the violations by a preponderance of the evidence.

20. Petitioner has failed to carry his burden of proving that Respondent retaliated against him for assisting Ralabate in filing a housing discrimination complaint. In fact, Petitioner admits that he never came into compliance with park rules regarding pets, and that no eviction was ever filed against him.

21. Petitioner contends the timing of the violation notices demonstrates that they were motivated by a desire to retaliate against him for the assistance he rendered to Ralabate in filing a housing discrimination complaint against Respondent. However, that inference is not warranted by the evidence presented. Respondent explains the timing of the rule violation notices by pointing out that, at that time, she had received various complaints from other park residents about Petitioner’s cat and the damage it caused to vehicles and other personal property of park tenants. Petitioner admitted the existence of those complaints. Respondent clearly had an

    independent basis for sending Petitioner a rule violation notice in January 1999.

22. In her testimony, Respondent denied any intention to retaliate against Petitioner, and except for the de minimus circumstantial evidence of timing, Petitioner did not submit any evidence of retaliatory intent on the part of Respondent in the rendering of these notices.

23. Similarly, nothing which transpired between the parties suggests Respondent was retaliating against Petitioner regarding his request to build a new shed. Respondent placed all aspects of Petitioner’s tenancy in abeyance while legal proceedings were pending, to avoid creating prejudice or causing further complications in the disputes which led to the original

    complaint. Respondent exercised due care to protect her legal rights and position, not in retaliation against Petitioner.

    Respondent never denied permission to build a new shed. She advised Petitioner of the requirements for sheds and asked for plans which would demonstrate compliance with those requirements. Petitioner submitted plans but the filing of his complaint for retaliation intervened before Respondent could evaluate them.

24. Insofar as his purchase of a shed from the departing resident is concerned, Petitioner may have failed to protect his own legal interests. The uncontroverted evidence shows Respondent was owed money by the departing tenant from whom Petitioner attempted to purchase a shed.

25. Section 713.77, Florida Statutes, provides:

    
    

    713.77 Liens of owners, operators, or keepers of mobile home or recreational vehicle parks; ejection of occupants. A lien prior in dignity to all others except a lien for unpaid purchase price shall exist in favor of the owner, operator, or keeper of a mobile home park or recreational vehicle park for rent owing by, and for money or other property advanced to, any occupant thereof upon the goods, chattels, or other personal property of such occupant. Upon the nonpayment of such sums in accordance with the rules of such park, or for failure to observe any provision of this part or the rules and regulations prescribed by the Department of Health, the owner, operator, or keeper thereof may instantly eject such occupant therefrom. A lien created in favor of an owner or operator of

    a mobile home park or recreational vehicle park may be enforced in the same manner as is now or may hereafter be provided by law for the enforcement of liens in favor of keepers of hotels and boardinghouses.

    Nothing in this section, however, shall prevent an owner or operator of a mobile home park or recreational vehicle park from enforcing any claim for rent under and in the manner provided by landlord and tenant acts of this state.

    
    

26. Respondent claims to have had a statutory lien securing the debt under Section 713.77, Florida Statutes. Respondent was not retaliating against Petitioner, but attempting to secure her legal interest in the shed.

27. The incident in which Petitioner claims to have been physically ejected from the park office does not form a basis on which Petitioner is entitled to relief in this proceeding. Petitioner failed to establish any nexus between the events of that day and the filing of the Ralabate complaint, nor did he show any motivation on the part of Respondent to have him removed from the park office in retaliation for the filing of that complaint. The State Attorney’s Office conducted two separate reviews of the incident and declined to prosecute the individual who Petitioner claims removed him physically from the office.

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 dismissing Petitioner’s allegation of retaliatory conduct and Petition for Relief.

DONE AND ENTERED this 31st day of July, 2001, in Tallahassee, Leon County, Florida.

WILLIAM R. PFEIFFER

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 www.doah.state.fl.us

Filed with the Clerk of the Division of Administrative Hearings this 31st day of July, 2001.

COPIES FURNISHED:

Robert S. McCance 14422 Hibiscus Street

Tavares, Florida 32778

Fred A. Morrison, Esquire

McLin, Burnsed, Morrison, Johnson Newman & Roy

12000 West Main Street Post Office Box 491357

Leesburg, Florida 34749-1357

Azizi M. Dixon, Agency Clerk

Florida Commission on Human Relations

325 John Knox Road Suite 240, Building F

Tallahassee, Florida 32303-4149

Dana A. Baird, General Counsel Florida Commission on Human Relations

325 John Knox Road Suite 240, Building F

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: 00-002317

Orders for Case No: 00-002317