A formal hearing was conducted in this case on December 15, 2009, in Shalimar, Florida, before Suzanne F. Hood, Administrative Law Judge with the Division of Administrative
Hearings.
Ft. Walton Beach, Florida 32547
The issue is whether Respondent discriminated against Petitioner based on her sex or an alleged handicap contrary to Sections 760.20 through 760.37, Florida Statutes (2008), Fair Housing Act, as amended (the Act).
On or about July 6, 2009, Petitioner Patricia Cooper (Petitioner) filed a Housing Discrimination Complaint. The complaint alleged that Respondents Donald C. and Boneita Page and Jeff Oliver had discriminated against Petitioner based on Petitioner's sex/gender and handicap. Specifically, the complaint stated that Respondent Jeff Oliver had refused to rent a mobile home to Petitioner, had imposed discriminatory terms and conditions on the rental of the home, and had failed to make reasonable accommodation.
On August 28, 2009, the Florida Commission on Human Relations (FCHR) issued a Determination: No Cause. Petitioner filed a Petition for Relief on or about September 21, 2009.
FCRH referred the petition to the Division of Administrative Hearings on October 1, 2009.
A Notice of Hearing dated October 19, 2009, scheduled the hearing for December 15, 2009.
When the hearing commenced, Respondent Jeff Oliver confirmed that he was the operator/owner of the mobile home park business at issue here. According to Respondent Jeff Oliver, he leases the land from Donald C. and Boneita Page. Therefore, the style of this case is hereby amended to name Respondent Jeff Oliver (Respondent) as the only Respondent.
During the hearing, Petitioner testified on her own behalf.
She offered 13 exhibits that were accepted as evidence.
Respondent testified on his own behalf. He offered 12 exhibits that were accepted as evidence.
FCHR did not provide a court reporter for the hearing.
Neither party filed proposed findings of fact and conclusions of law. However, Petitioner filed ex parte documents entitled Exceptions on December 24, 2009, and Requests for Transcript or Documentation of Proof Thereof on December 28, 2009. To the extent that Petitioner is requesting copies of the Administrative Law Judge's hearing notes, the request is hereby denied.
Reference hereinafter is to Florida Statutes (2008), unless otherwise noted.
Prior to October 2008, Jeff Stewart, Jr. owned a mobile home located at 729 Green St., Lot #2. The mobile home was in poor condition and could not be moved without destroying it.
On or about October 3, 2008, Mr. Stewart sold the mobile home to Travis Dewrell, who intended to let Petitioner reside therein. Mr. Stewart made this agreement with the understanding that Mr. Dewrell and/or Petitioner were responsible for paying the October lot rent.
Petitioner, a white female, was working for Mr. Dewrell at the time. In October 2008, Mr. Dewrell sent Petitioner on a job out of town and then hired her to work on his home.
On about October 4, 2008, Petitioner talked to Respondent. During that conversation, Respondent understood that Petitioner had bought or was buying the mobile home.
Respondent agreed that he had no problem with Petitioner moving into the mobile home. Respondent told Petitioner that all she had to do was the following: (a) to pay the lot rent that was overdue; (b) pay ongoing lot rent in the amount of $220; (c) pay the security deposit; (d) complete the rental application; and (e) sign the rental agreement. Petitioner replied that Respondent should bring her the paperwork.
Respondent took Petitioner a copy of a rental application and a copy of the rental agreement. He requested that she complete and return the documents.
In October 2008, Petitioner appeared healthy to Respondent. Petitioner drove herself around in a camper, was working, and in business as a sheet rocker. She was not living in the mobile home park in October 2008, but she was in and out making repairs on the home.
On October 10, 2008, Respondent gave Petitioner a Five- Day Notice, stating that she had to pay rent in the amount of
$220 and late charges for lot #2 by October 17, 2008. Petitioner responded that Mr. Dewrell owned the mobile home.
When Respondent did not receive rent for lot #2, he contacted first Mr. Stewart who informed Respondent that
Mr. Dewrell owned the mobile home. Respondent then went to see Mr. Dewrell, who paid Respondent’s rent for October and November 2008. Pursuant to Respondent's rental agreement, lot rent is uniformly $220 per month per lot. Because no one was living in the mobile home, Respondent agreed to accept $100 in lot rent for part of October and $200 in lot rent for all of November.
Mr. Dewrell paid Respondent $300 by check.
During their conversation, Mr. Dewrell refused to sign a rental agreement. Instead, Mr. Dewrell stated that he would put the mobile home in Petitioner's name and put a lien on it, so Petitioner would be responsible for the home and the rent.
Petitioner moved into the mobile home on lot #2 around December 1, 2008. Petitioner had not signed the rental application or the rental agreement.
Sometime after Petitioner moved in, she and Respondent talked about a camper and 20 acres of land she owned and wanted to sell. The land was located in an area known as Red Bay.
They also talked about a lot and mobile home down the street that Petitioner owned. Petitioner promised to pay her rent when she sold some property.
At some point in time, Petitioner and Respondent talked about Respondent buying some of Petitioner's property, but they were never able to reach an agreement. As to the property located at Red Bay, Petitioner discovered that it was land locked with no easement.
Petitioner was upset when Respondent informed her that he was not interested in buying any of her property. Petitioner's testimony that Respondent attitude changed towards her at that time is not persuasive.
On or about December 26, 2008, Respondent gave Petitioner a "5-Day Notice." The notice states that Petitioner owed lot rent in the amount of $200 for December rent and included a demand for payment no later than January 4, 2009.
In January 2009, Respondent left Petitioner a note, asking if she was any closer to paying the lot rent or had she moved. The note included a request for Petitioner to call Respondent.
On January 12, 2009, Mr. Dewrell wrote a statement directed to the Social Security Administration on Petitioner's behalf. The statement indicates that Mr. Dewrell was Petitioner's past landlord and that Petitioner owed him $700 for the mobile home. The statement also noted that the past-due lot rent was $400 for December 2008 and January 2009 and that the
landlord would not allow Petitioner to sign a lease because the mobile home is not titled in Petitioner's name.
On January 12, 2009, Petitioner and Mr. Dewrell signed a Promissory Installment Note backdated to November 1, 2008. According to the note, Petitioner would pay Mr. Dewrell 11 equal monthly payments in the amount of $100 payable beginning
January 1, 2009, and on the same day of each succeeding month thereafter until $1,100 was paid in full.
The Promissory Installment Note included the following handwritten statement signed by Mr. Dewrell: "This is an agreement to pay in full and purchase the mobile home at
729 Green St., #2. The title to said mobile home will convey at the maturity and completions of this note."
On or about January 13, 2009, Petitioner and Respondent had another conversation. During the conversation, Petitioner told Respondent that she would get her rent caught up when she received her first disability check on February 11, 2009. Petitioner also showed Respondent documents related to her application for food stamps.
Respondent agreed to wait until Petitioner received her check to collect the back rent. He did not agree that she could pay her rent in the middle of the month thereafter or that she could continue to pay $200 rent per month when the uniform rent was $220 per month.
In January 2009, Petitioner got rid of her vehicle.
Instead of a driver's license, she got a State of Florida Identification Card.
On or about February 11, 2009, Petitioner received her disability check in the amount of $569. She gave Respondent
$300 in cash towards her back rent.
Petitioner asked for a receipt; Respondent explained that all tenants were supposed to mail their rent money to his office. Respondent also explained that he would take rent money personally from tenants if he was at the park. Respondent told Petitioner that receipts were given to tenants only when they requested one. There is no evidence that Petitioner was treated contrary to Respondent's policy in this regard.
On March 19, 2009, Respondent's wife gave Petitioner a receipt for $600 in rent. The receipt indicates that Petitioner still owed $200 rent for March 2009 in order for Petitioner's rent to be up to date. This is the only receipt that Petitioner requested.
Sometime in March 2009, Petitioner showed Respondent her contract to purchase the mobile home. Respondent asked her again to sign a rental agreement. Petitioner refused because she was not going to pay on the first of each month and she was not going to get rid of her dog.
Respondent had known that Petitioner had an unauthorized bulldog at the mobile home since February 2009. However, he had done nothing about it, thinking he would address that problem at a later date.
Sometime during the Spring of 2009, Petitioner and her neighbors began having trouble getting along with each other. Petitioner at lot #2 had a boxer bulldog. Petitioner's daughter at lot #3 had a small dog and two huskies. The tenant at lot #6 brought in a pit bull. The tenant at lot #7 had a small dog and a bulldog puppy. At least some of the problems between Petitioner and her neighbors, none of whom had signed a pet agreement, involved the dogs. There had been no dogs in the mobile home part when Petitioner moved there.
On or about April 27, 2009, Respondent gave everyone who had an unauthorized pet a "7 Day Notice." The notice advised everyone that pets were not allowed without an agreement with Respondent prior to renting and the payment of a pet deposit. The notice required all pet owners to comply with the pet policy or vacate the premises. Everyone but Petitioner chose to get rid of their dogs within the allotted time. Petitioner also did not pay a pet deposit.
The problems between Petitioner and her neighbors often resulted in someone calling the sheriff's office, alleging that another tenant was creating a disturbance or threatening
harm to other residents. Some residents, including Petitioner, complained to Respondent about the harassing behavior of other residents. Respondent knew that the tenants across the road from Petitioner were obnoxious drunks; however, Respondent had never had so many complaints until Petitioner moved into the mobile home.
On one occasion, Petitioner complained to Respondent about a disturbance at the mobile home park in the middle of the night. When Respondent arrived, there was no one outside and the park was quiet. Petitioner objected when Respondent knocked on the door to her home. There is no persuasive evidence that Respondent was drunk and picking on Petitioner when he knocked on her door that night.
There is no persuasive evidence that Respondent favored male tenants over female tenants. Petitioner's testimony to the contrary is not credited. The greater weight of the evidence indicates that Respondent required all tenants to sign a rental agreement and to follow the policies set forth therein.
On or about May 11, 2009, Respondent asked Petitioner to sign a rental agreement backdated to December 1, 2008, for rent in the amount of $220 per month due on the first day of each month. The lease states that no security deposit is required and that no pets are allowed without Respondent's
agreement and the payment of a pet deposit. Petitioner refused to sign the rental agreement in part because it was predated.
She also stated that she was not going to pay her rent on the first of each month or get rid of her dog.
On May 13, 2009, Petitioner paid $220 in rent.
On or about May 21, 2009, Respondent gave Petitioner a written "7 Day Notice with Cure." The notice stated that Petitioner needed to sign a rental agreement or face eviction proceedings. The notice also stated that if Petitioner signed the agreement, she would have to comply with the following:
(a) sign the pet policy attached to the agreement or remove her dog from the premises; and (b) paragraph six of the agreement prohibiting any harassment of neighbors.
On May 21, 2009, Respondent also gave Petitioner another copy of the rental agreement dated that same date, and asked her to sign it. He told Petitioner that if she did not sign it, he would initiate eviction proceedings.
The May 21, 2009, rental agreement stated as follows in pertinent part: (a) rent in the amount of $220 would be due on the first of each month; (b) a $200 security deposit was due before renting the property; (c) no pets are allowed unless an agreement is made and the required pet deposit is paid in advance; and (d) no loud music, wild entertainment, or disturbance of neighbors is allowed.
A document entitled Pet Requirements was attached to the rental agreement dated May 21, 2009. The document stated that unauthorized pets had become a problem. The document also stated as follows in relevant part: (a) tenants owning a mobile home and renting a lot that have pets must pay a $200 deposit per pet before a pet agreement can be considered; and (b) all tenants must have a written pet agreement for each pet. Petitioner refused to sign the rental agreement dated May 21, 2009.
On or about May 21, 2009, Respondent filed an eviction action in Case No. 09-CC-1440-S in the County Court in and for Okaloosa County, Florida. The Complaint alleged that Petitioner was delinquent on her rent. Petitioner responded to the Complaint in Case No. 09-CC-1440-S by filing various pro se pleadings and motions.
On or about June 23, 2009, the Judge issued an Order in Case Number 09-CC-1440-S. According to the order, Petitioner was required to pay rent payments into the Registry of the Court. Petitioner subsequently paid $220 in rent into the Court Registry for the month of June and $220 for the month of July.
Shortly after filing the lawsuit, Respondent talked to Petitioner's daughter, who asked for a list of what Petitioner needed to pay in order to stay in the mobile home at lot #2. Respondent gave Petitioner the following list: (a) pay $220 lot
rent per month; (b) pay $283.50 in filing fees on the lawsuit;
pay $20 for the service of process fee on the lawsuit;
buy a liability insurance policy for the dog; and (e) sign the rental agreement. After that conversation, Respondent thought he and Petitioner had reached an agreement.
On July 10, 2009, Respondent served Petitioner with a Notice of Termination of Unwritten Lease pursuant to Sections
83.01 and 83.20, Florida Statutes. The notice terminated the oral month-to-month rental agreement between Petitioner and Respondent. The notice gave Petitioner until July 31, 2009, to vacate the premises. The notice was properly served on Petitioner.
On July 14, 2009, the Judge issued an Order in Case Number 09-CC-1440-S. The Order granted Respondent's Motion to Amend Complaint and scheduled a jury review on July 31, 2009, in the Judge's chambers, and a jury trial during the week of
August 3, 2009.
On or about July 17, 2009, Respondent filed an Amended Complaint for Summary Eviction Proceedings in Case No. 09-CC- 1440-S. The complaint sought Petitioner's eviction after the termination and expiration of an oral month-to-month tenancy and the removal of the mobile home from the premises.
On August 12, 2009, Petitioner paid $206 in rent to the Court Registry.
After a Jury Pretrial Conference, the County Judge in Case Number 09-CC-1440-S issued a Final Judgment of Possession on August 12, 2009. The Judge denied Petitioner's Motion to Dismiss and Motion to Dismiss for Lack of Standing. The Judge abated Petitioner's counter claim pending payment of the statutory filing fee or the filing of an Affidavit of Indigence. The Judge also ordered the Court Registry to disperse $600 in rent to Respondent. Finally, the order granted Respondent's Motion for Judgment on the Pleadings and advised Petitioner that a Writ of Possession would issue on August 31, 2009.
Thereafter, Respondent contacted Mr. Dewrell.
Respondent requested that Mr. Dewrell remove the mobile home or pay the lot rent and leave it at lot #2.
Petitioner's daughter requested permission to get Petitioner's personal property. However, Petitioner's daughter refused to sign an agreement relating to the property's removal.
Petitioner subsequently sold her interest in the mobile home to James Lytle. Mr. Lytle gave Petitioner $400 in cash. Mr. Lytle also secured Respondent's permission so that Petitioner could return to the home, retrieve her possessions, and clean up the yard. Petitioner and Mr. Dewrell went to the mobile home to remove her possessions.
On or about October 23, 2009, Mr. Lytle filled out a rental application. He also signed a rental agreement for lot #2.
Petitioner did not present any competent medical evidence relating to her alleged disability, the specific nature of which remains unknown. While Respondent did not dispute that Petitioner received a disability check, he never perceived her as disabled based on his own observations.
Petitioner presented no evidence of quantifiable damages.
CONCLUSIONS OF LAW
The Division of Administrative Hearings has jurisdiction over the parties and the subject matter of this proceeding. See §§ 120.569, 120.57(1), and 760.34, Fla. Stat. (2009).
Discrimination in the sale or rental of housing is prohibited in Section 760.23, Florida Statutes, as follows in relevant part:
760.23 Discrimination in the sale or rental of housing and other prohibited practices.--
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.
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.
It is unlawful to make, print, or publish, or cause to be made, printed, or published, any notice, statement, or advertisement with respect to the sale or rental of a dwelling that indicates any preference, limitation, or discrimination based on race, color, national origin, sex, handicap, familial status, or religion or an intention to make any such preference, limitation, or discrimination.
* * *
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:
(a) That buyer or renter . . .
* * *
It is unlawful to discriminate against any person in the terms, condition, or privileges of sale or rental of a dwelling, or in the provision of services or facilities in connection with such dwelling, because of a handicap of:
(a) That buyer or renter . . .
* * *
For purposes of subsection (7) and (8), discrimination includes:
A refusal to permit, at the expense of the handicapped person, reasonable modification 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
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.
In interpreting and applying the Act, FCHR and Florida courts regularly seek guidance from federal court decisions interpreting similar provisions of federal fair housing laws.
In cases involving a claim of housing discrimination, the complainant has the initial burden of proving a prima facie
case of discrimination by a preponderance of the evidence. See
§ 760.34(5), Fla. Stat.
A prima facie showing of rental housing discrimination may be established by direct evidence, statistical evidence or circumstantial evidence. This case presents no direct or statistical evidence of housing discrimination based on sex or handicap.
A prima facie case usually comprises circumstantial evidence of discriminatory animus, such as proof that the charged party treated persons outside of the protected class, who were otherwise similarly situated, more favorably than the complainant was treated. Failure to establish a prima case of discrimination ends the inquiry. See Ratliff v. State, 666 So. 2d 1008, 1013 n.7 (Fla. 1st DCA 1996), aff'd, 679 So. 2d 1183 (Fla. 1996).
If, however, the complainant sufficiently establishes a prima facie case, the burden then shifts to the charged party to articulate some legitimate, non-discriminatory reason for its action. If the charged party satisfies this burden, then the complainant must establish by a preponderance of the evidence that the reason asserted by the charged party 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 (1994)("Fair housing discrimination cases are subject to the three-part test articulated in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973)").
Sex/Gender
To make out a prima facie case of housing discrimination based or sex/gender in this case, Petitioner had to prove the following: (a) as a female, she is a member of a protected class; (b) she was qualified, ready, willing, and able to continue occupancy consistent with the terms and conditions offered by Respondent; (c) she was evicted; and (d) Respondent did not evict similarly situated males.
Petitioner has not proved a prima case of discrimination based on sex/gender. There is absolutely no persuasive/credible evidence that Respondent treated his male tenants more favorably than he treated Petitioner. The greater
weight of the evidence is that Respondent always applied the rules and policies of the mobile home park uniformly among all tenants. Accordingly, there can be no finding of intentional housing discrimination based on sex/gender.
Handicap
In order to prove a prima facie case of housing discrimination based on a handicap/disability, Petitioner must show the following: (a) she is handicapped/disabled as defined by the Act; (b) she was qualified, ready, willing, and able to continue occupancy; (c) she requested a reasonable accommodation in the rules, policies, procedures, or services that was necessary to afford Petitioner equal opportunity to use and enjoy the premises; and (d) Respondent refused to accommodate.
Petitioner has not proved her prima facie case of housing discrimination based on a handicap for two reasons. First, she did not prove she was disabled with in the meaning of the Act. Section 760.22(7), Florida Statutes, defines handicap as follows in relevant part:
(7) "Handicap" means:
(a) A person has a physical or mental impairment which substantially limits one or more major life activities, or he or she has a record of having, or is regarded as having, such physical or mental impairment;
There is no competent medical evidence showing that Petitioner is handicapped as set forth in the Act. Petitioner never identified a specific disability at the hearing.
Petitioner apparently showed Respondent some paperwork in January 2009, indicating that she was supposed to receive a disability check every month in the middle of the month. That paperwork is not part of the record.
Petitioner admits that she was working as late as October 2008 for Mr. Dewrell. After that time, Petitioner worked to make repairs on the mobile home. Petitioner never appeared disabled to Respondent.
Second, Petitioner asked to pay her rent in the middle of the month when she received her check. There is no evidence that paying lot rent in the middle of the month was related to Petitioner's alleged disability or was necessary to allow Petitioner to enjoy equal use and enjoyment of the property. Without such evidence, it can not be said that Respondent refused a request for a reasonable accommodation.
Assuming that Petitioner proved her prima facie case of housing discrimination based on handicap, which she did not, Respondent had legitimate non-discriminatory reasons for evicting Petitioner that were not related to her disability or her refusal to sign a rental agreement requiring her to pay rent on the first of each month.
Respondent evicted Petitioner for the following reasons in addition to her refusal to sign a rental agreement:
(a) Petitioner never paid a security deposit; (b) Petitioner never attempted to reach a pet agreement and pay a pet deposit or get rid of her dog; and (c) Petitioner created disturbances among the neighbors that generated more complaints from other tenants than Respondent had ever received. The greatest weight of the evidence indicates that Respondent legally and with full due process evicted Petitioner because she would not follow rules that were completely unrelated to her refusal to pay her rent when everyone else paid theirs.
Petitioner has not proved that Respondent's reasons for evicting her were a pretext for discrimination. During the hearing, Petitioner seemed more intent in proving that Respondent had violated her statutory and constitutional rights that are not at issue here. Petitioner's alleged subjective belief, without more, is insufficient to conclude that Respondent's reasons for evicting her were a pretext for discriminatory animus. Petitioner has not met her burden of showing intentional discrimination.
That the Florida Commission on Human Relations issue a final order dismissing the Petition for Relief.
DONE AND ENTERED this 20th day of January, 2010, in Tallahassee, Leon County, Florida.
SUZANNE F. HOOD
Filed with the Clerk of the Division of Administrative Hearings this 20th day of January, 2010.
Donald C. Page Boneita Page
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.
