STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

NIDIA CRUZ,

Petitioner,

vs.

COLONY PARK MOBILE HOME VILLAGE, INC.,

Respondent.

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) Case No. 02-2129

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RECOMMENDED ORDER

Pursuant to notice, a formal hearing was held in this case on August 14, 2002, in Viera, Florida, before Jeff B. Clark, a duly-designated Administrative Law Judge of the Division of Administrative Hearings.

APPEARANCES

For Petitioner: Nidia Cruz, pro se

6854 Marilane Street

Merritt Island, Florida 32953

For Respondent: Robert J. Warren, Esquire

Robert J. Warren, P.A.

703 North Main Street, Suite C Gainesville, Florida 32601

STATEMENT OF THE ISSUE

The issue to be determined is whether Respondent, Colony Park Mobile Home Village, Inc., a Florida corporation, engaged in prohibited conduct against Petitioner, Nidia Cruz, by discriminating against her based on her national origin in the

terms and conditions, privileges, or provision of services or facilities in the sale or rental of real property in violation of Section 760.23, Florida Statutes.

PRELIMINARY STATEMENT

On January 31, 2002, Petitioner filed an amended complaint against Respondent for alleged discriminatory housing practices. Petitioner alleged that certain acts of Respondent amounted to unlawful discriminatory treatment of Petitioner in violation of Section 760.23, Florida Statutes. On April 26, 2002, the Florida Commission on Human Relations issued a Determination of No Reasonable Cause letter in the January 31, 2002, case. On May 1, 2002, Petitioner filed a Petition for Relief which initiated this administrative proceeding; it essentially restated the housing discrimination complaint previously considered by the Florida Commission on Human Relations.

On May 22, 2002, the Division of Administrative Hearings received the Petition for Relief transmitted by the Florida Commission on Human Relations. On the same date, the parties were sent an Initial Order. On June 5, 2002, the case was scheduled for final hearing in Viera, Florida, on August 14, 2002.

At the final hearing, Petitioner testified on her own behalf and called one witness, José Menendez. She offered one exhibit which was admitted as Petitioner's Exhibit 1. Respondent

presented three witnesses: Arthur Rogow, Irene Rivera, and Mercie Verduzco. Respondent did not offer any documentary evidence. Neither party ordered a transcript of the proceedings. Respondent submitted a Proposed Recommended Order.

FINDINGS OF FACT

1. Petitioner was, at all times relevant to this proceeding, a resident at the Colony Park Mobile Home Village in Merritt Island, Florida. This property is owned and managed by Respondent, Colony Park Mobile Home Village, Inc.

2. Petitioner is a Hispanic female.

   
   

3. Petitioner claims Respondent discriminated against her based on her national origin as follows: attempted to evict her from the mobile home park without going to court, she was harassed by employee(s) of Respondent, and she was denied the right to rent a mobile home.

4. Petitioner leases her mobile home from its owner, Tabitha Belcher; Ms. Belcher leases the mobile home lot from Respondent and subleases the lot to Petitioner.

5. Petitioner testified to various complaints against her neighbors in the Colony Park Mobile Home Village based on their conduct which she considered inappropriate.

6. No credible evidence was presented that Respondent was in any way responsible for or connected with the various complaints that Petitioner had against her neighbors or that

   Respondent failed to exercise reasonable management and control of the Colony Park Mobile Home Village.

7. Approximately 100 families reside in the Colony Park Mobile Home Village. The residents of the Colony Park Mobile Home Village generally reflect the ethnic make-up of Brevard County, Florida, although the resident census may have more racial and ethnic minorities than is typically found in the community.

8. Irene Rivera and Mercie Verduzco testified. Each of these witnesses is of Hispanic descent. Each resided in the Colony Park Mobile Home Village during the time of Petitioner’s complaints, and each has at all times been treated fairly, respectfully and with kindness by all employees and management of the Colony Park Mobile Home Village.

9. Minority residents of the Colony Park Mobile Home Village, including those of Hispanic descent, are dealt with in a courteous and respectful manner; no evidence of discriminatory treatment of Hispanic or other minorities was presented. No credible evidence was presented of the discrimination alleged in the Petition for Relief.

   CONCLUSIONS OF LAW

   
   

10. The Division of Administrative Hearings has jurisdiction over parties and the subject matter. Subsections 120.57(1) and 760.34(4), Florida Statutes.

11. Subsection 760.34(5), Florida Statutes, provides that Petitioner bears the burden of proof.

12. Subsection 760.23(2), Florida Statutes, provides:

    
    

    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.

    
    

13. Subsection 760.22(4), Florida Statutes, defines “dwelling” as:

    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.

    
    

14. A mobile home lot qualifies as a “dwelling” due to the last clause of the statutory definition.

15. 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).

16. In this case, Petitioner's prima facie case includes proving that she is a member of a minority national origin, and that Respondent discriminated against her based on her national origin.

17. Petitioner has proved that she is a member of a minority national origin, Hispanic. However, no credible evidence was offered to prove that Respondent discriminated against Petitioner on any basis. Even though Petitioner failed to prove a prima facie case of discrimination, persuasive evidence was presented by Respondent that there was no discrimination by Respondent based on color, ethnicity or national origin in the management of the Colony Park Mobile Home Village.

18. Petitioner has failed to carry the burden of proving that Respondent discriminated against her 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.

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 Petition for Relief and the allegations of discrimination contained therein.

DONE AND ENTERED this 9th day of September, 2002, in Tallahassee, Leon County, Florida.

JEFF B. CLARK

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 9th day of September, 2002.

COPIES FURNISHED:

Denise Crawford, Agency Clerk Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100

Tallahassee, Florida 32301

Nidia Cruz

6854 Marilane Street

Merritt Island, Florida 32953

Robert J. Warren, Esquire Robert J. Warren, P.A.

703 North Main Street, Suite C Gainesville, Florida 32601

Cecil Howard, General Counsel Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100

Tallahassee, Florida 32301

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: 02-002129

Orders for Case No: 02-002129