STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

IRENE CASSERMERE AND MILAGROSS ) DIAZ, )

)

Petitioners, )

)

vs. )

) SHERWOOD FOREST MOBILE HOME ) PARK, )

)

Respondent. )

Case No. 03-4846

)

RECOMMENDED ORDER

On March 15, 2004, a formal administrative hearing in this case was held via teleconference. Petitioner, Milagross Diaz, was located in New York City, New York; Respondent's counsel was located in West Palm Beach, Florida; Respondent's witness, Jeff Leeds, was in Orlando, Florida; and Fred L. Buckine, Administrative Law Judge, Division of Administrative Hearings, was in Tallahassee, Florida.

APPEARANCES

For Petitioners: Milagross Diaz, pro se

Post Office Box 324 Narrowsburg, New York 12764

For Respondent: Brent Davis, Esquire

Davis & Giardino, P.A.

201 Arkona Court

West Palm Beach, Florida 33401

STATEMENT OF THE ISSUE

The issue is whether Respondent engaged in prohibited discriminatory conduct against Petitioners, Irene Cassermere (Ms. Cassermere) and Milagross Diaz (Ms. Diaz), within the terms and conditions, privileges, or provisions of services or facilities in the sale or rental of real property in violation of Section 760.23, Florida Statutes (2002).

PRELIMINARY STATEMENT

On May 29, 2002, Petitioners filed with the Florida Commission on Human Relations (Commission) a Housing Discrimination Complaint alleging violation of Section 804a or f of Title VIII of the Civil Rights Act of 1968, as amended by the Fair Housing Act.

On October 31, 2003, the Commission entered a Determination of No Cause with notice to Petitioners on November 3, 2003.

Ms. Diaz timely filed a Petition for Relief, alleging that she had been discriminated against based upon her color and national origin. In the Petition for Relief, Ms. Diaz also alleges that "I was never told if I and my sister were approved on March 13, to move into Sherwood Forest Mobile Park. I was never told of results therefore I had to leave my N.Y. apartment and move into my friend's home 'till [sic] I found where to live." This cause was referred to the Division of Administrative Hearings on December 24, 2003.

At the final hearing, Ms. Diaz called no witnesses, testified in her own behalf, and offered seven exhibits (P-1 through P-7) that were accepted into evidence. Petitioner, Ms. Cassermere, did not participate in the final hearing.

Respondent presented the testimony of Jeff Leeds and offered two exhibits (R-A and R-G) that were accepted into evidence.

On April 1, 2004, Ms. Diaz requested an extension of time to file her proposed recommended order, and, by Order of

April 2, 2004, the time for filing was extended to April 30, 2004. A Transcript of the final hearing was filed on April 23, 2004. On April 30, 2004, Respondent filed a Proposed Recommended Order, and, on the same date, Petitioner filed a second request for extension of time to file her revised proposed recommended order. By Order dated May 3, 2004,

Ms. Diaz was given until May 14, 2004, to file her revised proposed recommended order. On May 17, 2004, Ms. Diaz filed her Revised Proposed Recommended Order. The undersigned considered the Proposed Recommended Orders filed by the parties in preparation of this Recommended Order.

FINDINGS OF FACT

1. Ms. Diaz is a female of Hispanic ethnicity with a physical disability that limits one or more of her major life activities. At all times material, she lived in the State of New York.

2. Ms. Diaz was in Florida during the month of February 2002. On February 20, 2002, she completed an

   application for lot rental in the Sherwood Forrest Mobile Home Park (Sherwood Forest) with the intent to purchase a mobile home located on a rental lot at 216 London Drive, Kissimmee, Florida, owned by Beth Koze (Ms. Koze), who did not testify. Respondent informed Ms. Diaz that her credit check would be completed within a couple of days to ascertain her income and credit history. It was her understanding that Respondent had no interest in the potential purchase transaction between her and Ms. Koze. However, Respondent explained to Ms. Diaz, that ownership of a mobile home at the time of application was not required in order to be approved.

3. According to Ms. Diaz, Respondent eventually informed her that due to insufficient income shown on her application she had been disapproved for lot rental. Ms. Diaz testified that Respondent informed her that she needed approximately twice the amount of her reported monthly income to qualify for lot rental approval. Thereafter, Ms. Diaz submitted a second lot rental application to Respondent. On the second application, Ms. Diaz included a co-applicant, Ms. Cassermere, who intended to relocate to Florida with her when the mobile home purchase and the lot rental application were completed. No monthly income for Ms. Cassermere was included on the lot rental application.

4. On the second lot rental application, Ms. Diaz testified that she listed her "Occupation of Applicant" as "disabled." In the column regarding "income," she included her income and listed a Mr. LaRosa as a source of monthly income of

   $400.00, the amount she claimed Respondent previously informed her she needed to qualify for lot rental. According to

   Ms. Diaz, Respondent received her second lot rental application and called her to discuss the matter. During the conversation Respondent asked "[W]hat she was doing for Mr. LaRosa that he would put out $400.00 on her behalf." Ms. Diaz testified that she was offended by the tone of Respondent's voice and the implications that she believed prompted the question. She believed the question to have been irrelevant and did not answer.

5. Ms. Diaz testified that in the "Assets and Income" column of her second lot rental application, she listed the amount of $10,000. When asked by Respondent the source of the

   $10,000, which apparently was not initially included on her first lot rental application, she explained to Respondent she intended to make a cash purchase of the mobile home from

   Ms. Koze for $10,000. When asked by Respondent the source of such a large sum, when her monthly income was insufficient to qualify for lot rental, she explained that she was to receive a

   lump sum, five years' retroactive social security benefit payment.

6. Ms. Diaz testified that approximately one month after submitting her second rental lot application to Respondent and having received no response, she called Ms. Koze to ascertain the status of the mobile home sale. Ms. Diaz also testified that Ms. Koze advised her to call Respondent to find out what was holding up her second lot rental application. Believing the lot rental approval was a condition precedent to the mobile home sale, Ms. Diaz testified that at no time during her conversation with Ms. Koze did Ms. Koze advise her that she intended to take the mobile home off the market.

7. Ms. Diaz then called Respondent and spoke with Andy Windfelder (Mr. Windfelder) about the rental lot application status. Mr. Windfelder told her to call Ms. Koze. Ms. Diaz's recollection of the telephone conversation between her and

   Ms. Koze follows:

   
   

   [A]t this point it's just too much trouble, that at this point she was going to keep the house. . . for a family member--So I told her at this point, she's been patient and she's been holding up with me for that whole time that we were waiting on this credit report, which is four weeks, that I'm not going to put her on the spot of going against them and tell me what transpired in that conversation for them to convince her not to sell to me. I told her that at that point I have no alternative but to tell her that I was going to go file a housing

   complaint, and I'm sorry that I would have to involve her, but that we had a contract and I gave her a deposit. So at that point she took my name and address and she mailed me my deposit back on a check, and at that point, I didn't contact Sherwood--I contacted Sherwood Forest only to tell them right after that that I filed this housing complaint, that I was going to file this housing complaint . . .

   
   

   As stated, Ms. Diaz filed her discrimination complaint with the Florida Commission on Human Relations and no longer communicated directly with Respondent regarding the matter.

8. The core of Ms. Diaz's complaint is Respondent's failure, or refusal, to contact her by mail or by telephone about the result of her second lot rental application. Further, Ms. Diaz opined that Respondent pressured Ms. Koze not to sell her mobile home to her, which caused Ms. Koze to return Ms. Diaz's purchase contract deposit money. Ms. Diaz argued that Respondent's conduct, unreasonable delay in acting upon her lot rental application and pressure on Ms. Koze not to sell, had two direct effects: (1) she lost the opportunity to purchase the mobile home located on the rental lot at 216 London Drive, Kissimmee, Florida, and (2) she was denied the right to reside in Respondent's facility because she was a dark, disabled, Hispanic female.

9. At all times material, Jeff Leeds (Mr. Leeds) was general manager of Sherwood Forest in Kissimmee, Florida. In

   that position, Mr. Leeds supervised a staff of 28 persons, of whom many were Hispanic. The park consisted of approximately 1,600 rental sites. According to Mr. Leeds, approximately

   30 percent of Sherwood Forest residents were Hispanic, and he had never met Ms. Diaz.

10. According to Mr. Leeds, Ms. Diaz's background check reflected insufficient income that raised an alert. Her second application, based upon his conversation with Ms. Diaz, would include her sister, Ms. Cassermere, as co-applicant.

11. Ms. Diaz was unaware that in October 2003, Ms. Koze placed her mobile home back on the market and was willing to sell to her. This information was made available to Ms. Diaz by and through Respondent through the report provided to Respondent by the Commission's investigator. Based on the evidence of record, Ms. Diaz failed to present any credible evidence to substantiate her claim of discrimination.

    Ultimate Factual Determinations

    
    

12. Respondent rejected Ms. Diaz's initial lot rental application, not because of her handicap or her Hispanic ethnicity, but because through a reasonable process of credit check references, it was discovered that Ms. Diaz's disability income was insufficient to meet Respondent's requirements for lot rental. The additional income of $400.00, an apparent loan from her friend, entered on her second rental lot application

    raised reasonable concerns; and, when inquiry was made, she refused to respond.

13. There is no credible, competent evidence that Respondent attempted to influence and/or pressure the mobile home owner, Ms. Koze, to take her mobile home off the market and/or cancel her contract for sale with Ms. Diaz. Ms. Koze voluntarily returned Ms. Diaz's deposit money.

14. There is no credible, competent evidence that Respondent intentionally delayed processing Ms. Diaz's second lot rental application with the intent or for the purpose of denying her approval because of her disability, gender, or her Hispanic ethnicity.

15. In short, Respondent did not unlawfully discriminate against Ms. Diaz; rather, the delay caused by her second lot rental application to Respondent was for a legitimate, nondiscriminatory reason and was not proven to be the reason Ms. Koze took her mobile home off the market.

    CONCLUSIONS OF LAW

    
    

16. The Division of Administrative Hearings has jurisdiction over the subject matter of and the parties to this proceeding. Section 120.57(1), Fla. Stat. (2003).

17. Under Florida’s Fair Housing Act (“Act”), Sections

    
    

    1. through 760.37, Florida Statutes (2002), it is unlawful

       to discriminate in the sale or rental of housing. Among other prohibited practices:

       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.

    
    

    §§ 760.23(1) and (7), Fla. Stat. (2002).

    
    

18. For purposes of subsection (7) above, the term “discrimination” includes:

    1. A refusal to permit, at the expense of the handicapped person, reasonable modifications of existing premises occupied or to be occupied by such person if such modifications may be necessary to afford such person full enjoyment of the premises; or

       
       

    2. 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.

       
       

       § 760.23(9), Fla. Stat. (2002).

19. In the instant case, Ms. Diaz alleged, in effect, that Respondent discriminated against her by the delay in rendering a decision to her second lot rental application and that Respondent encouraged and or persuaded Ms. Koze to cancel her contract for the sale of her mobile home to her.

20. In cases involving a claim of discrimination on the basis of handicap and/or ethnicity, such as this one,

    Ms. Diaz has the burden of proving a prima facie case of discrimination by a preponderance of the evidence. A prima facie showing of a housing discrimination can be made by establishing that Ms. Diaz applied to rent an available parcel of land in Respondent's mobile home park for which she was qualified, the application was rejected, and, at the time of such rejection, Ms. Diaz was a member of a class protected by the Act. See Soules v. U.S. Dept. of Housing and Urban Development, 967 F.2d 817, 822 (2d Cir. 1992).1 Failure to establish a prima facie case of discrimination ends the inquiry. See Ratliff v. State, 666 So. 2d 1008, 1012 n.6 (Fla. 1st DCA 1996), aff’d, 679 So. 2d 1183 (Fla. 1996)(citing Arnold v.

    Burger Queen Systems, 509 So. 2d 958 (Fla. 2d DCA 1987)).

    
    

21. If, however, the petitioner sufficiently establishes a prima facie case, the burden then shifts to the respondent to articulate some legitimate, nondiscriminatory reason for its action. If the respondent satisfies this burden, then the

    complainant must establish by a preponderance of the evidence that the reason asserted by the respondent is, in fact, merely a pretext for discrimination. See Massaro v. Mainlands Section 1

    & 2 Civic Ass’n, Inc., 3 F.3d 1472, 1476 n.6 (11th Cir. 1993),

    
    

    cert. denied, 513 U.S. 808, 115 S.Ct. 56, 130 L.Ed.2d 15

    
    

    (1994)(“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, U.S. Dept. 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 [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].”).

22. In this case, Ms. Diaz failed to make a prima facie

    
    

    showing of discrimination. Although she is handicapped and, thus, protected by the Act and although Respondent rejected her financial qualification to rent a soon to be available mobile home lot, Ms. Diaz acknowledged that she did not have sufficient monthly income to qualify for lot rental approval when her first application was submitted for evaluation. Acknowledging her financial inadequacy, Ms. Diaz testified that she secured a loan from a friend in the amount of $400.00 and listed that amount on

    the second application. When Respondent made reasonable inquiry concerning the $400.00, Ms. Diaz refused to give an answer.

    Assuming, as Ms. Diaz testified, the question, "what did she do for her friend for him to loan her $400.00 or for that money," was asked of her, when considered in context, the question was not discriminatory. Her refusal to answer the question regarding her additional income caused her to be unqualified to rent from Respondent. Her disqualification was based on insufficient income, a non-discriminatory objective criteria.

23. Assuming arguendo that Ms. Diaz had made a prima facie

showing of discrimination, Respondent satisfied the burden to articulate a legitimate, non-discriminatory reason for rejecting Ms. Diaz’s second application, namely, her spotty monthly income history. Ms. Diaz failed to present persuasive evidence that this stated ground for refusing to approve her lot rental application was merely a pretext for discrimination.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Commission enter a final order dismissing Petitioners', Irene Cassermere and Milagross Diaz, Petition for Relief.

DONE AND ENTERED this 1st day of July, 2004, in Tallahassee, Leon County, Florida.

FRED L. BUCKINE

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 1st day of July, 2004.

ENDNOTE

1/ Alternatively, the complainant’s burden may be satisfied with direct evidence of discriminatory intent. See Trans World Airlines, Inc. v. Thurston, 469 U.S. 111, 121, 105 S.Ct. 613,

621-622, 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.’”).

COPIES FURNISHED:

Denise Crawford, Agency Clerk

Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100

Tallahassee, Florida 32301

Milagross Diaz Irene Cassermere Post Office Box 324

Narrowsburg, New York 12764

Brent Davis, Esquire Davis & Giardino, P.A.

201 Arkona Court

West Palm Beach, Florida 33401

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: 03-004846

Orders for Case No: 03-004846