On May 19, 2009, a formal administrative hearing was conducted in Orlando, Florida, before William F. Quattlebaum, Administrative Law Judge, Division of Administrative Hearings.
For Respondent: Carlos A. Fabano, Esquire
The issues in this case are whether Harriet P. Green (Petitioner) was the victim of housing discrimination by Richman Property Services, Inc. (Respondent), on the basis of the Petitioner's race or disability, and whether the Respondent
retaliated against the Petitioner based upon a letter written by the Petitioner to a congressional representative.
On September 24, 2008, the Petitioner filed a Housing Discrimination Complaint with the Florida Commission on Human Relations (FCHR) against the Respondent. On December 1, 2008, the FCHR issued a "Notice of Determination of No Cause" as to the Petitioner's complaint. By a Petition for Relief dated December 22, 2008, the Petitioner reiterated the allegations that the Respondent violated the Florida Fair Housing Act. On January 5, 2009, the FCHR forwarded the petition to the Division of Administrative Hearings, which scheduled and conducted the proceeding.
At the hearing, the Petitioner testified on her own behalf and presented the testimony of two witnesses. The Respondent presented the testimony of one witness and had Exhibits 2 through 5 admitted into evidence.
No transcript of the hearing was filed. Both parties filed Proposed Recommended Orders that have been considered in the preparation of this Recommended Order.
From December 2006 to September 2008, the Petitioner was a resident of Clarcona Groves, an apartment complex in Orlando, Florida.
At all times material to this case, the Respondent was the owner of the Clarcona Groves apartment complex.
The Petitioner is an African-American female. The Petitioner has pulmonary hypertension, which requires that she use medical oxygen on a continuous basis. Because of her medical condition and use of oxygen, being in the presence of cigarette smoking was contraindicated.
There were numerous signs posted in the vicinity of the Petitioner's apartment that stated oxygen was in use and indicated that smoking was proscribed. The signs were placed by the medical oxygen supply company. The Respondent placed additional signage with the assistance of one of the Respondent's maintenance workers.
The signs were apparently ignored by other residents of the complex who smoked tobacco (and other materials, allegedly including marijuana) in an open breezeway area to which the Petitioner's apartment door opened.
Although there was no evidence that the smoke entered the Petitioner's residence, she was required to keep the apartment closed to avoid the smoke and, routinely, had to pass through the smokers to travel to or from her residence.
The Petitioner testified that in February 2007, she complained to Chariel Burden (the Clarcona Groves assistant manager) that the breezeway smoking was affecting her lungs and
that Ms. Burden advised the Petitioner to contact law enforcement authorities about the marijuana smoking.
Ms. Burden testified that she did not recall any complaint from the Petitioner regarding smoking in the breezeway.
Assuming that the Petitioner complained of marijuana smoking in the breezeway, it would not have been unreasonable for Ms. Burden to refer the Petitioner to law enforcement authorities.
The Petitioner testified that in April 2007, she complained to Takkia Reed (the Clarcona Groves manager) again about the smoking and asked if she could be moved to another apartment in the complex.
The Clarcona Groves apartment complex provides rental units based on tenant income and rental assistance was available. At the time of the April 2007 request, there were no other units available to which the Petitioner could have been moved.
There is no evidence that the Respondent could have successfully prohibited other residents from smoking legal cigarettes in the vicinity of another unit, had one been available.
Apparently, attempting to resolve the Petitioner's dissatisfaction with the circumstances, the Respondent lowered the Petitioner's rent in January 2008.
In June 2008, the Petitioner wrote a letter to a congressional representative, seeking assistance with her housing situation. The letter was not offered into evidence, but it apparently made no reference to the Petitioner's concern about smoking, but did raise the Petitioner's dissatisfaction with the television service available to her.
The television service to the apartment complex was provided through a satellite system for which the Respondent collected the monthly payments.
The Petitioner suggested that the quality of the television service to her residence was unacceptable. The evidence establishes that, although there were occasional problems with satellite reception, such problems affected all residents who subscribed to the television service. There is no evidence that the Petitioner's television signal was any different than that which was available to all subscribing residents.
The Petitioner asserted that, after she wrote the letter, the apartment managers began to treat her "differently" and that she was directed to place her complaints in writing.
There is no evidence that the manager's request that the Petitioner submit her complaints in writing was unreasonable, particularly since the Petitioner had documented at least some of her dissatisfaction in the letter.
The Petitioner also alleged that the Respondent disconnected her cable television service in retaliation for having written the letter.
Payment for the television service was due on the first day of each month and was considered late as of the fifth day of each month.
Although the Petitioner asserted that she paid her television bill on a timely basis, Ms. Burden testified that the Petitioner was routinely tardy in paying her television bill and that the Petitioner did not pay the television bill at all in May of 2008. When the Petitioner also failed to pay the
June 2008 television bill, Ms. Burden contacted her regional manager to inquire as to how to deal with the non-payment.
Ms. Burden called the regional manager because Ms. Burden was aware of the Petitioner's letter to her congressional representative, wherein she expressed her
dissatisfaction with the living situation, and was unsure how to handle the non-payment.
There is no evidence that, under the circumstances, Ms. Burden's decision to contact her regional manager to inquire as to how to proceed was unreasonable or unwarranted.
Based upon her discussion with the regional manager, Ms. Burden treated the matter as she did all issues of non- payment and had the service disconnected on June 12, 2008.
There is no credible evidence that the disconnection of the Petitioner's television service was in retaliation for having written the letter.
The Petitioner's television service was reconnected after she submitted her June payment.
In September 2008, the Petitioner vacated the Clarcona Groves apartment complex. The Respondent asserts that the Petitioner was evicted from the apartment for non-payment of rent, but the Petitioner testified that she had already moved to a more suitable residence prior to September. It is unnecessary to resolve this disagreement.
The Petitioner testified that she was concerned with the problem of crime in the area of the Clarcona Groves apartment complex, but there is no credible evidence that the problem affected the Petitioner any differently than it did other residents in the area.
The Petitioner also testified that security personnel were sent to her apartment to harass her at approximately
8:45 p.m. on one occasion, but the testimony lacked credibility and was otherwise unsupported by evidence.
CONCLUSIONS OF LAW
The Division of Administrative Hearings has jurisdiction over the parties to and subject matter of this proceeding. §§ 120.569 and 120.57(1), Fla. Stat. (2008).
Subsection 760.23(2), Florida Statutes (2008) (included within the "Florida Fair Housing Act"), provides as follows:
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.
Pursuant to Subsection 760.34(5), Florida Statutes (2008), the Petitioner has the burden of proving a violation of the statute.
The shifting "burden-of-proof" set forth in McDonnell Douglas Corp. v. Green, 411 U.S. 792, 93 S. Ct. 1817 (1973), is applicable in this case. The Petitioner has the initial burden of establishing a prima facie case of discrimination by a preponderance of the evidence. If the Petitioner meets the initial burden of establishing a prima facie case, the burden shifts to the Respondent to articulate some legitimate, nondiscriminatory reason for its action. Assuming the
Respondent does so, the burden shifts back to the Petitioner to establish that the reasons asserted by the Respondent are in fact mere pretext for the discrimination. Pollitt v. Bramel, 669 F. Supp. 172, 175 (S.D. Ohio 1987); U.S. Department of
Housing and Urban Development v. Blackwell, 908 F.2d 864, 872 (11th Cir. 1990).
As to alleged discrimination on the basis of disability, the Petitioner essentially asserts that the Respondent failed to make reasonable accommodation for her disability because it failed to prevent other tenants from smoking in the vicinity of the Petitioner's residence. To establish a prima facie case of failure to make a reasonable accommodation, the Petitioner must show: (a) that she suffers from a disability, (b) that the Respondent knew of the disability, (c) that an accommodation of the disability was necessary to afford Petitioner an equal opportunity to use and enjoy the housing in question, and (d) that the Respondent refused to make such an accommodation. See Schanz v. Village Apartments, 998 F. Supp. 784 (E.D. Mich. 1998). In this case, the Petitioner has failed to establish a prima facie case of discrimination.
It is undisputed that the Petitioner suffers from a disability of which the Respondent was aware. Signage was prominently placed in the vicinity of the Petitioner's
residence, advising other tenants that medical oxygen was in use and that smoking was proscribed. The signage was placed with the implicit approval of the Respondent's employees and with the assistance of a maintenance worker.
There is no credible evidence that the Respondent declined to make a reasonable accommodation for the Petitioner's medical condition.
Tobacco smoking is a legal activity. The Petitioner presented no evidence that the Respondent had the lawful authority to prohibit tenants from participating in a legal activity on the apartment complex property.
As for the apparent smoking of other, likely illegal, products, the Respondent properly advised the Petitioner to contact law enforcement authorities and register her complaint. There is no evidence that the Respondent was responsible for policing of the property or enforcement of the state's criminal laws thereupon.
There is no evidence whatsoever that the Petitioner's race was a factor in this dispute.
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), aff'd, 679 So. 2d 1183 (1996)(citing Arnold v. Burger Queen Systems, 509 So. 2d 958 (Fla. 2d DCA 1987)).
As to the issue of retaliation, the Petitioner asserts that the Respondent terminated her television services as retaliation for a letter written by the Petitioner to a congressional representative. The evidence establishes that the Petitioner's television service was temporarily terminated based on the Petitioner's failure to make payment for the service in a timely manner. There is no evidence that the Respondent terminated the Petitioner's television service or took any other action towards the Petitioner based on the letter.
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 the Petition for Relief filed by the Petitioner.
DONE AND ENTERED this 18th day of June, 2009, in Tallahassee, Leon County, Florida.
WILLIAM F. QUATTLEBAUM
Filed with the Clerk of the Division of Administrative Hearings this 18th day of June, 2009.
Carlos A. Fabano, Esquire Abadian Cook
Larry Kranert, General Counsel Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100
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.
