STATE OF FLORIDA
DIVISION OF ADMINISTRATIVE HEARINGS
ANGELO AND MELISSA TUCCI,
Petitioners,
vs.
YEN AND THI NGYUEN,
Respondents.
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) Case No. 07-0497
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RECOMMENDED ORDER
This cause came on for formal proceeding and hearing before
Michael Ruff, a duly-designated Administrative Law Judge of the Division of Administrative Hearings in Ocala, Florida, on October 11, 2007. The appearances were as follows:
APPEARANCES
For Petitioners: Angelo and Melissa Tucci, pro se
1315 Southeast Silver Springs Place Number 8
Ocala, Florida 34471
For Respondents: David Porter, Esquire
351 Northeast 8th Avenue Ocala, Florida 34470
STATEMENT OF THE ISSUE:
The issue to be resolved in this proceeding concerns whether the Petitioners have been subjected to discrimination as envisioned by the "Fair Housing Act" Section 760.37, Florida Statutes (2007), concerning the terms, conditions, privileges,
or services and facilities, regarding their rental housing and based upon their alleged disabilities.
PRELIMINARY STATEMENT
This cause arose when the Petitioners filed a Complaint with the Florida Commission on Human Relations (Commission) on May 10, 2006, alleging that the Respondents had discriminated against the Petitioners in violation of the Florida Fair Housing Act, Section 760.37, Florida Statutes (2007). Specifically it is alleged that the Respondents failed to provide the Petitioners with the same terms, conditions, and circumstances in their lease or rental in terms of making repairs; that the Petitioners are disabled; and that the Respondents discriminated against them based upon their disability by failing to provide reasonable accommodation to them by allowing them to move to a first floor apartment. It is also alleged that the Respondents harassed, intimidated, or coerced the Petitioners by not renewing their lease after they requested a downstairs apartment.
On December 19, 2006, the Commission issued a Notice of Determination of No Cause and the Petitioners filed the subject Petition for Relief on January 16, 2007, seeking review of that determination by the Commission.
The case was duly transmitted to the Division of
Administrative Hearings and the undersigned Administrative Law Judge. After scheduling the matter for hearing on two occasions and continuing the case on both occasions at the request of and the agreement of the parties, the cause ultimately came on for hearing on the above-referenced date.
The Petitioners, at hearing, presented two witnesses and the Respondents presented two witnesses. Neither party offered any exhibits into evidence. Upon concluding the proceeding, a transcript was ordered and the parties were given the opportunity to submit proposed recommended orders. The post- hearing submittals or Proposed Recommended Orders were filed on or before November 16, 2007, and have been considered in the rendition of this Recommended Order.
FINDINGS OF FACT
The Petitioners (the Tuccis) have been long-time tenants of Mrs. Ngyuen's. They moved into apartment number eight in the apartment complex known as Silver Springs Place Apartments in May 2002. They have resided there ever since. When the Petitioners first heard about their apartment being available in 2002 they had a conversation with the Respondents and she invited them to go look over the apartment to determine if they wished to move in. Before the Respondents were aware of it, the Tuccis had moved into the apartment. They apparently never actually filed an application for rental with the
Respondents. After she learned that they had unilaterally moved into the apartment, she met with the Petitioners and the Petitioners signed a lease. They have lived in apartment number eight ever since.
The Respondent and her husband own the apartment complex in question in Ocala, Florida. The property is located at 1315 Southeast Silver Springs Place in Ocala, Florida.
The Petitioners contend that they are disabled with various mental and physical disabilities. Mr. Tucci has chronic low back pain and degenerative arthritis of the knees.
Mrs. Tucci has sclerosis with chronic back pain. Mrs. Tucci is receiving Social Security Disability benefits. The Petitioners maintain that the Respondents knew of their disabilities because the Ocala Housing Authority informed the Respondents of their disabilities at the time or after the time they rented they originally rented the apartment. They contend that they indicated their disabilities and the fact that Mrs. Tucci was receiving Social Security Disability benefits, on their rental application. Neither the Petitioners nor the Respondents provided any evidence of such a rental application. There is no persuasive evidence that the Ocala Housing Authority ever informed the Respondents, concerning any disabilities of the Petitioners.
The Petitioners maintain that they requested a
reasonable accommodation for their disabilities from the Respondents, consisting of the opportunity to move to a downstairs apartment in order to enable them to avoid the physical rigors of climbing stairs and to better enjoy their apartment premises. They maintain that the Respondents denied their request. The Petitioners also maintain that they requested that numerous repairs be made by the Respondents since June of 2005, such as repairs to the refrigerator, the stove, and the cabinets. They contend that the Respondents refused to make those repairs. Additionally, they Petitioners contend that the Respondents harassed, intimidated, and threatened them by attempting to terminate their tenancy if they did not pay a noticed rent increase. They maintain that the Respondents coerced them by not renewing their lease after they requested a downstairs apartment.
Mrs. Nguyen contends that the Respondents had no knowledge that the Tuccis were handicapped. They have been long-time tenants of the Respondents. It was only upon her advising Mr. Tucci that she was going to have to raise the rent by $25.00 per month, to cover the increased expenses of insurance and tax increases, that the Petitioners lodged an allegation of discrimination against the Respondents.
There is no question that the Petitioners are disabled and that is undisputed. The Respondents knowledge of that
disability, whether or not they received a request for a reasonable accommodation of it and whether they acted to accommodate the disability in a reasonable fashion is in dispute.
On several occasions Mrs. Ngyuen has observed Mr. Tucci walk up and down the stairs carrying groceries and washing and waxing his car. She has observed Mrs. Tucci on numerous occasions walk up and down the stairs carrying groceries from the store, walk to the store, or hang clothes on a clothes line. She observed that the Petitioners seem to be able to perform these tasks without any difficulty and to give no indication that they suffered from a disability or a handicap.
Mr. Tucci, on a number of occasions requested to move to a downstairs apartment. The first time was approximately two years or more ago when a downstairs apartment became available. Mrs. Ngyuen told the Tuccis they could have the apartment, but that they would need to move within two days in order to give her adequate time to prepare the Tuccis apartment for re-rental. The Tuccis stated to her that they could not move that quickly and so the move never occurred. Mrs. Ngyuen rented the apartment to another tenant. Vacancies do not occur frequently in this apartment complex and when a vacancy occurs the apartment is typically rented within one week. If the Respondents left the downstairs apartment un-rented for the two
weeks the Tuccis requested, as necessary time to allow them to arrange a move to the downstairs apartment, such would cause the Respondents to keep the apartment vacant for an inordinate period of time and to suffer significant financial loss.
The second request by the Tuccis to move to another downstairs apartment came approximately six months after the first request. In this instance the Petitioners wanted to move from their one bedroom apartment into a two-bedroom apartment, which was a downstairs apartment. Mr. Ngyuen advised them that they could have that apartment, but the rent would be more than for the one bedroom apartment they were currently living in. Mr. Tucci offered to pay the same one bedroom rent and then to, in effect, pay in-kind for the extra amount of rental for the two bedroom apartment by keeping a watch on the Respondents property at the apartment complex, in lieu of paying the extra rental price. Mrs. Ngyuen rejected that offer and Mr. Tucci did not agree to move into the apartment. It was rented to another tenant.
On two other occasions in October of 2004 and October 2005 downstairs apartments became available for rental, but the Petitioners never requested to move on those two occasions. The Petitioners never communicated to the Respondents that they were actually handicapped or disabled nor did they actually request a reasonable accommodation for their disabilities, in terms of
requesting a downstairs apartment (or otherwise).
The persuasive, preponderant evidence reveals that the Respondents did not harass, intimidate, or threaten the Petitioners with terminating their tenancy. Mrs. Ngyuen did call the Petitioners in April of 2006 to ask them if they intended to renew their lease. Their lease was due to expire on May 31, 2006. Mrs. Ngyuen informed them at this time that their rent would have to increase from $350.00 per month to $375.00 per month due to increases in property insurance premiums and property taxes and other costs. Mr. Tucci apparently became angry at this prospect and at about this time Mrs. Ngyuen informed him that if he did not pay the increase in rent she would be forced to lease the property to someone else. She then sent the Petitioners a 30-day notice of expiration of their lease. Thereafter, however, the Petitioners continued to live in the same apartment and entered into an agreement with the Respondents for a month-to-month tenancy.
The Petitioners have also alleged that the Respondents failed to provide them with the same terms and conditions of tenancy in terms of making requested repairs to items in their apartment. Specifically, they requested repairs to their refrigerator, the stove, and the cabinets. The Petitioners apparently attribute this alleged failure to provide the same terms and conditions of tenancy as other tenants to be due to
their disabilities. In fact, the Respondents received two requests for repairs from the Petitioners since they have resided in the apartment. The first one was a requested repair to the refrigerator and stove. The repairs were completed within a matter of one or two days. The second request was on June 5, 2006, in which the Petitioners stated that their toilet was leaking. In fact, Mr. Tucci fixed it himself. The Respondents did go to inspect the Petitioners unit on June 6, 2006, to see if any further repairs needed to be made.
Mr. Tucci informed the Respondents of his refrigerator leaking at that time and they replaced it. The Petitioners, in fact, acknowledged that the requested repairs had been made.
Witness George Henry Bennett had been a tenant of the Respondents for approximately 13 years. He is a disabled person and receives Social Security, 100 percent disability benefits and has since 1994. He has never observed or experienced any instances of discrimination against disabled persons, including himself, by the Respondents. He is unaware of any complaints by tenants concerning the way the Respondents operate and maintain the apartment complex. In his experience, repairs are always made by the Respondents in a timely manner. He has heard the Petitioner Angelo Tucci state that he was going to "get" the Ngyuens.
In summary, in consideration of the totality of the
testimony it is apparent that a rather rancorous relationship on the part of Petitioner Angelo Tucci towards the Respondents has developed over time. In view of the testimony, and upon observation of the candor and demeanor of the witnesses, it is evident that this relationship has biased the testimony of the Petitioners somewhat, particularly that of Angelo Tucci. In light of this circumstance, it is determined that the testimony of witness Ngyuen, for the Respondents, and that of George Bennett is more credible and persuasive than that of the Petitioners.
It was thus established that, although it is undisputed that the Petitioners are disabled, that there is no credible, persuasive evidence that the Respondents have been motivated to, nor have acted in a manner discriminatory toward the Petitioners on account of their disabilities. It is determined that the Petitioners have not requested a downstairs apartment as a request for a reasonable accommodation for their disabilities. It has not been demonstrated by credible, persuasive evidence that the Respondents were aware of their disabilities. It is further determined that the Respondents' decision not to keep the subject downstairs apartment or apartments vacant for the period of time the Petitioners deemed required for them to effect a move was a reasonable business decision. It was made by the Respondents to avoid an undue
financial impact on their operation which would be caused by leaving an apartment vacant for a two week period of time while waiting for the Petitioners to move and with the resultant delay in refurbishing and preparing their vacated apartment for new tenants. This decision by the Respondents was not shown to be related in any way to any discriminatory animus toward the Petitioners because of their disabilities. It is determined that the Petitioners never provided the Respondents any rental application which depicted the fact and circumstance of their disabilities to the Respondents.
CONCLUSIONS OF LAW
The Division of Administrative Hearings has jurisdiction of the subject matter of and the parties to this proceeding. §§ 120.569 and 120.57(1), Fla. Stat. (2007).
A "Discriminatory Housing Practice" is an act which is unlawful under the terms of Sections 760.20 through 760.37, as provided in Section 760.22, Florida Statutes (2007). It is undisputed that the Respondents apartment complex meets the definition of "covered multi-family dwellings" and "dwelling" contained in Section 760.22, Florida Statutes.
Section 760.23, Florida Statutes, provides in pertinent part as follows:
Section 760.23 discrimination in the sale or rental of housing and other prohibited practices.-
It is unlawful to refuse to sale 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.
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.
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(4) It is unlawful to represent to any person because of race, color, national origin, sex, handicap, familial status, or religion that any dwelling is not available for inspection, sale, or rental when such dwelling is in fact so available.
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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:
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.
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 the handicap of:
That buyer or renter;
A persons 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.
For purposes of subsections (7) and (8), discrimination includes:
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(b) A refusal to make reasonable accommodations and rules, policies, practices, or services, when such accommodations may be necessary to afford such person equal opportunity to use and enjoy a dwelling.
The Petitioners have the burden proving by a preponderance of the evidence that the Respondents violated the Florida Fair Housing Act. § 760.34(5), Fla. Stat. (2007).
The Florida Fair Housing Act is modeled after the federal law on this subject and Florida Law will take on the same construction as the federal law, provided that the interpretation is harmonious with the spirit and policy of Florida law. See Brand v. Florida Power Corp., 633 So. 2d 504,
509 (Fla. 1st DCA 1994). The well-settled three part burden of proof test developed in the opinion in McDonnell-Douglas Corporation v. Green, 411 U.S. 792 (1973), is employed in analyzing cases brought under the Federal Fair Housing Act and
under the Florida Fair Housing Act embodied in Chapter 760,
Florida Statutes, the pertinent portions of which are cited and quoted above. The McDonnell-Douglas test is as follows:
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, non-discriminatory reason for its actions.
Third, if the defendant satisfies his burden, the plaintiff has the opportunity to prove by a preponderance of the evidence that the legitimate reasons asserted by the defendant are in fact mere pretext.
United States Department of Housing and Urban Development v. Blackwell, 908 F.2d 864, 872 (11th Cir. 1990), quoting Pollitt
v. Bramel, 669 F. Supp. 172, 175 (So. Dist. Ohio 1987). Given the McDonnell-Douglas burden of proof test, it is also true that the ultimate burden of persuasion to establish that the complained of action by the Respondents was based upon discriminatory motivation remains with the complainant/petitioner. St. Mary's Honor Center v. Hicks, 509 U.S. 502 (1993).
In order to establish a prima facie case of discrimination based upon disability regarding to failure to make a reasonable accommodation as envisioned by the Fair
Housing Act the Petitioners must show: (1) That the Petitioners belong to a class of persons covered by the Fair Housing Act, i.e. a protected class, here disability; (2) that the Respondents knew or should have known that the Petitioners belonged to the protected class, i.e. handicap or disability;
(3) that the Petitioners requested that the Respondents make one or more reasonable accommodations in the rules, policies, practices, and procedures or services the Respondents provided or could provide and whether the accommodation requested was a reasonable accommodation for disability or handicap; (4) were the requested accommodations necessary to afford the complainants an equal opportunity to use and enjoy the premises; and (5) did the Respondents deny or unreasonably delay the complainants' request?
There is no dispute that the Petitioners belong to a protected class in that they are handicapped or disabled. It is also true that the Respondents did not know and had no reason to know that they belonged to a protected class. The Respondents did not know of the Petitioners disabilities at times pertinent hereto. Regarding requesting a reasonable accommodation, the Petitioners requested that the Respondents allow them to move to a downstairs apartment. But the Respondents, however, established that although they knew and attempted to honor the complainants request for a downstairs apartment that they
request was never requested as a reasonable accommodation for disability or handicap. No evidence was provided by the Petitioners to show that they made the requested accommodation in that sense. They did not advise or communicate in any way to the Respondents the fact that they were disabled. They merely asked to move to the downstairs apartment without communicating to the Respondents that it was an actual request for accommodation for their disabilities.
The requested accommodation or the move to the downstairs apartment, at any rate, was probably necessary or much more beneficial in affording the Petitioners an equal opportunity to use and enjoy the premises because their disabilities are established in this record and eliminating the need to walk up and down stairs would no doubt enhance their enjoyment of the premises. There is no evidence, however, that the Respondents granted such accommodations in moving to a downstairs apartment to non-disabled persons otherwise situated in the same circumstances as the Petitioners. In fact, a reasonable opportunity for the Petitioners to move to the downstairs apartment was provided by the Respondents and the Petitioners did not wish to move in that brief a time period.
The Respondents, on the other, hand could ill afford to suffer a two week delay in either renting the downstairs apartment if the Petitioners did not take it, or in securing the
possession of the premises the Petitioners would be moving from only after a two week delay and still having to then refurbish it to accommodate new tenants to replace the Petitioners in that unit. It has not been shown that the Respondents denied or unreasonably delayed the Petitioners request for a downstairs apartment. The Respondents in fact made a reasonable offer for them to obtain possession and tenancy of the downstairs apartments, but the Petitioners could not or refused to adhere to the time schedule the Respondents required for changing apartments. There is no evidence in this record to show that the time schedule was unreasonable. In fact, the Respondents on two separate occasions offered a downstairs apartment to the Petitioners, as the Petitioners indeed acknowledge. The Petitioners declined to move in the allotted time, and so declined the apartments. They were never refused the apartments or any other opportunities to use and enjoy the premises or services.
The Petitioners also contend that they were intimidated, coerced, and harassed by the Respondents by the Respondents not renewing their lease after they requested a downstairs unit from the Respondents. The Respondents, however, called the Tuccis in April 2006 and inquired if they wanted to renew their present lease. Mrs. Ngyuen informed them that the rent would increase from $350.00 per month to $375.00 per month
due to increases in her costs for insurance premiums and taxes. The Petitioners did not agree with the increase and informed the Respondents that they did not want to pay a rent increase. The Respondents then informed them that if they did not want to pay the increase then the property would have to be leased to someone else. The Respondents followed up that conversation by sending a 30-day formal notice of expiration of the lease to the Petitioners. Thereafter, the matter was resolved with the Respondents and Petitioners entering into a written month-to- month lease commencing in June 2006.
The Respondents thus provided the Petitioners an opportunity to renew their lease with an increase in the rental amount. There is no evidence that rental amount was not reasonable under the Respondents' business circumstances. It was only after the Petitioners objected to the increase that the Respondents sent them a 30-day notice of expiration. It cannot thus be determined that the allegations of the Petitioners that the Respondents took actions to intimidate, coerced, or harassed them have any merit. Although a 30-day notice of expiration of the lease was sent to the Petitioners it was not sent for the purpose of intimidating, coercing, or harassing the Petitioners. It was for a legitimate business reason of the Respondents being able to keep their units rented. The renting of the downstairs apartments to other tenants, when the Petitioners wanted an
excessive time period in which to move, was a reasonable and legitimate business decision and reason for not renting to the Petitioners. Moreover, the lack of any intent to intimidate, coerce, or harass the Petitioners is shown by the fact that the Respondents and the Petitioners still entered into an agreement for a written month-to-month lease in June 2006.
In summary, even had the Petitioners established all the elements of a prima facie case of housing discrimination based upon their disabilities, which they did not, the Respondents showed the legitimate business reasons, referenced and found above, for the actions they took in not renting the downstairs apartments on those occasions to the Petitioners and in noticing them of the termination of their lease. Their action in raising the rental price was also reasonable under the legitimate business circumstances, involving increased insurance premiums and taxes, in which the Respondents found themselves. There is simply no credible, persuasive evidence of record supporting a conclusion that any of the actions of the Respondents were based upon the Petitioners' disabilities. Moreover, there is no evidence in the record to establish that the Respondents reasons for the actions taken were a pretext for housing discrimination based upon the Petitioners' disabilities.
Having considered the foregoing Findings of Fact,
Conclusions of Law, the evidence of record, the candor and
demeanor of the witnesses, and the pleadings and the arguments of the parties, it is, therefore,
RECOMMENDED that a final order be entered by the Florida Commission on Human Relations dismissing the Petition for Relief in its entirety.
DONE AND ENTERED this 4th day of February, 2008, in Tallahassee, Leon County, Florida.
S
P. MICHAEL RUFF 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 4th day of February, 2008.
COPIES FURNISHED:
Cecil Howard, General Counsel Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100
Tallahassee, Florida 32301
Denise Crawford, Agency Clerk Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100
Tallahassee, Florida 32301
Angelo and Melissa Tucci
1315 Southeast Silver Spings Place Number 8
Ocala, Florida 34471
David Porter, Esquire
351 Northeast 8th Avenue Ocala, Florida 34470
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.
| Issue Date | Document | Summary |
|---|---|---|
| Mar. 13, 2008 | Agency Final Order | |
| Feb. 04, 2008 | Recommended Order | Petitioners failed to prove discrimination in housing based on disability. Respondents did not know of a disability and Petitioners made no reasonable accommodation request that Respondents refused. |
