STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

GIGI TRINIDAD, )

)

Petitioner, )

)

vs. ) Case No. 08-5608

)

FELIX RAMIREZ AND GUEVARA )

MANAGEMENT II, )

)

Respondents. )

)

RECOMMENDED ORDER

Pursuant to notice, a formal hearing was held in this case on February 12, 2009, by video teleconference between Miami and Tallahassee, Florida, before Administrative Law Judge Claude B. Arrington of the Division of Administrative Hearings (DOAH).

APPEARANCES

For Petitioner: Gigi Trinidad, pro se

420 Southwest 9th Street, Apt. 5 Post Office Box 11095

Miami, Florida 33101

For Petitioner: Felix Ramirez, pro se

937 Southwest 7th Avenue, No. 24

Miami, Florida 33130

Rodo Guevara, pro se Guevara Management II, Inc. 14221 Southwest 34th Street Miami, Florida 33175

STATEMENT OF THE ISSUE

Whether Respondents discriminated against Petitioner in the rental of her apartment based on Petitioner’s religion (Catholic) or handicap (Fibromyalgia) as alleged in the Petition For Relief filed by Petitioner with the Florida Commission on Human Relations (FCHR) on November 3, 2008.

PRELIMINARY STATEMENT

The FCHR and the Federal Department of Housing and Urban Development (HUD) administer the Florida Fair Housing Act, Sections 670.20 – 760.37, Florida Statutes1 (the subject Act). On June 16, 2008, Petitioner filed with HUD a complaint against Respondents alleging that they had engaged in acts of discrimination against her relating to the rental of her apartment based on her religion and disability.

Following an investigation, FCHR issued its “Notice of Determination of No Cause” on October 15, 2008.

On November 3, 2008, Petitioner filed the subject Petition for Relief with the FCHR. On November 7, 2008, the matter was referred to DOAH, and this proceeding followed.

At the formal hearing, Petitioner testified on her own behalf, but presented no other testimony or evidence. Prior to the date of the formal hearing, Petitioner filed with DOAH numerous documents purporting to support her claims of discrimination. At the outset of the formal hearing, the

undersigned advised the parties that those documents were not evidence in this proceeding unless and until Petitioner moved the documents into evidence. Petitioner offered no documentary evidence at the formal hearing.

Mr. Rodo Guevera, an owner of Guevara Management II, testified at the formal hearing, but offered no exhibits.

Mr. Felix Ramirez also testified at the formal hearing, but he likewise offered no exhibits.

No transcript of the proceeding has been filed. Neither party submitted a proposed recommended order.

FINDINGS OF FACT

1. At times relevant to this proceeding, Petitioner resided in an apartment located at 937 Southwest 7th Avenue, Miami, Florida (the subject apartment complex). Petitioner moved from the apartment in February 2008, after her rent subsidy payments ended.

2. Guevara Management II, Inc. (Guevara Management) managed the apartment complex at which Petitioner resided. Rodo Guevera is an owner of Guevara Management.

3. Mr. Ramirez is a tenant at the subject apartment complex. Mr. Ramirez has assisted Mr. Guevera from time to time in making emergency repairs at the complex, but Mr. Ramirez has no managerial authority or responsibility for the apartment complex.

4. Petitioner testified that she suffers from Fibromyalgia. Petitioner’s only claim of discrimination based on her alleged disability is her observation that over the last couple of years other tenants who have assistive apparatuses for ambulation have moved out of the apartment complex.

5. Petitioner does not normally use a cane or other assistive device to help her with her ambulation. Both

   Mr. Ramirez and Mr. Guevara testified, credibly, that they were unaware that Petitioner suffered from Fibromyalgia and that they had never seen her use a cane or other assistive device.

6. Mr. Guevara acknowledged that certain tenants who used assistive devices for ambulation had moved out of the apartment complex over the past couple of years. Mr. Guevara explained, credibly, that those tenants had voluntarily moved to facilities that could provide them more assistance as their need for care increased.

7. Petitioner alleged that Mr. Ramirez engages in voodoo practices and that he had vandalized her apartment because she is a Catholic. Petitioner alleged that Mr. Ramirez vandalized her apartment, left voodoo and cult paraphernalia in her apartment, cut off her water supply for three weeks, harassed her, and stalked her.

8. There was no evidence that Mr. Ramirez, Mr. Guevara, or anyone acting on behalf of Guevara Management knew that

   Petitioner was Catholic or committed any act based on her religion.

9. Petitioner had a physical confrontation with

   
   

   Mr. Ramirez after he cut off her water supply following a leak in a water heater. As a result of this confrontation,

   Mr. Ramirez obtained a restraining order against Petitioner and Petitioner was involuntarily hospitalized pursuant to Part I of Chapter 394, Florida Statutes, which is commonly referred to as the Baker Act. Petitioner was released following a week of hospitalization. Mr. Ramirez testified, credibly, that he only wants Petitioner to leave him alone. Mr. Ramirez’s denial that he has ever harassed or stalked Petitioner is credible.

10. There was insufficient evidence to establish that Mr. Ramirez is a member of Santeria or any other cult.

    Mr. Ramirez testified, credibly, that he is Catholic.

    
    

11. There was insufficient evidence to establish that Mr. Ramirez or anyone else improperly entered or vandalized Petitioner’s apartment. Mr. Guevara acknowledged that Petitioner’s water supply had been cut off on occasion so that necessary repairs could be made to the plumbing, but he further testified, credibly, that Petitioner’s water supply had never been cut off for a three-week period.

    CONCLUSIONS OF LAW

    
    

12. The Division of Administrative Hearings has

    jurisdiction over the subject matter and the parties hereto pursuant to Sections 120.569 and 120.57(1), Florida Statutes.

13. Petitioner, who is asserting the affirmative of the issues in this case, has the burden of proving by a preponderance of the evidence that Respondent discriminated against her as alleged in the Petition. See Balino v. Department of Health and Rehabilitative Services, 348 So. 2d 349, 350 (Fla. 1st DCA 1977) and Department of Transportation v. J.W.C. Co., Inc., 396 So. 2d 778 (Fla. 1st DCA 1981).

14. The preponderance of the evidence standard requires proof by "the greater weight of the evidence," Black's Law Dictionary 1201 (7th ed. 1999), or evidence that "more likely than not" tends to prove a certain proposition. See Gross v. Lyons, 763 So. 2d 276, 289 n.1 (Fla. 2000).

15. Section 760.23(2), Florida Statutes, provides, in

    
    

    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.

    
    

16. The provisions of Section 760.34, Florida Statutes,

pertain to the enforcement of rights conferred by the subject Act. Pursuant to Section 760.34(5), Florida Statutes, the burden of proof is on Petitioner to establish the allegations supporting her claims of discrimination. Petitioner failed to

meet her burden of proof in this proceeding. To the contrary, the greater weight of the credible evidence established that Petitioner's claims of discrimination are without merit.

RECOMMENDATION

Based upon the foregoing Findings of Fact and Conclusions of Law, it is hereby RECOMMENDED that the FCHR enter a final order finding Respondents not liable for the acts of discrimination alleged in the subject Petition for Relief.

DONE AND ENTERED this 8th day of April 2009, in Tallahassee, Leon County, Florida.

CLAUDE B. ARRINGTON

Administrative Law Judge

Division of Administrative Hearings The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-3060

(850) 488-9675

Fax Filing (850) 921-6847 www.doah.state.fl.us

Filed with the Clerk of the Division of Administrative Hearings this 8th day of April 2009.

ENDNOTE

1/ All statutory references are to Florida Statutes (2008).

COPIES FURNISHED:

Denise Crawford, Agency Clerk

Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100

Tallahassee, Florida 32301

Felix Ramirez

937 Southwest 7th Avenue, No. 24

Miami, Florida 33130

Rodo Guevara Hilda Guevara

Guevara Management II, Inc. 14221 Southwest 34th Street Miami, Florida 33175

Gigi Trinidad

420 Southwest 9th Street, Apt. 5 Post Office Box 11095

Miami, Florida 33101

Larry Kranert, 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: 08-005608

Orders for Case No: 08-005608