STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

RECOMMENDED ORDER

Pursuant to notice, a final hearing was held in this case on January 13, 2010, by video teleconference at sites in Orlando and Tallahassee, Florida, before Carolyn S. Holifield, Administrative Law Judge of the Division of Administrative Hearings.

APPEARANCES

For Petitioner: Luis Bermudez, pro se

7637 Dive Cote Drive Orlando, Florida 32818

For Respondent: Francisco Guzman, Jr., pro se

Fraguz Corporation

6565 Hidden Beach Circle Orland, Florida 32819

STATEMENT OF THE ISSUE

The issue in this case is whether Respondent committed a discriminatory housing practice against Petitioner on the basis of a handicap.

PRELIMINARY STATEMENT

On July 20, 2009, Petitioner, Luis Bermudez ("Petitioner"), filed a Housing Discrimination Complaint ("Complaint") against Respondent, Fraguz Corp. ("Respondent"), with the Florida Commission on Human Relations ("Commission") and the U.S. Department of Housing and Urban Development. The Commission entered a Notice of Determination of No Cause which determined that reasonable cause did not exist to believe that Respondent had engaged in a discriminatory housing practice. Petitioner timely filed a Petition for Relief ("Petition") with the Commission in which he alleged that Respondent discriminated against him by evicting him from his apartment because of a disability.

On November 13, 2009, the Commission forwarded the Petition to the Division of Administrative Hearings for assignment of an Administrative Law Judge to conduct the hearing. The case was initially assigned to Administrative Law Judge Dan Manry, but was later transferred to the undersigned.

At the final hearing, Petitioner testified on his own behalf and offered no exhibits into evidence. Respondent presented the testimony of Francisco Guzman, Jr., owner and manager of Montrose Apartments. Respondent's Exhibits 1 through 3 were admitted into evidence.

The proceeding was recorded, but no transcript was prepared. Neither party submitted a proposed recommended order.

FINDINGS OF FACT

1. Petitioner formerly resided in Montrose Apartments at

   
   

   563 West Montrose Street, Apartment 18, Clermont, Florida.

   
   

2. Petitioner alleges that he is a handicapped/disabled person by virtue of a mental disability, who was "illegally" evicted from Montrose Apartments because of his handicap/disability.

3. At all times relevant to this proceeding Francisco Guzman, Jr., owned and managed Montrose Apartments.

4. Mr. Guzman was unaware of Petitioner's alleged handicap/disability. At no time during Petitioner's tenancy at Montrose Apartments did Petitioner notify management of the apartment complex that he had a handicap/disability. Furthermore, Petitioner never provided management with documentation verifying that he had a handicap/disability.

5. Petitioner alleged that in early 2009, he requested that Respondent make plumbing repairs in his apartment unit and that Respondent refused to comply with those requests. He further alleged that Respondent did not take his maintenance requests seriously and treated other tenants at Montrose Apartments more favorably than he was treated.

6. Petitioner admitted that he did not pay rent for his Montrose Apartment unit in March and April 2009. According to Petitioner, he withheld the rent because Respondent failed to make the requested plumbing repairs.

7. In correspondence from him to a "Ms. Smith," Mr. Guzman indicated that on "Sunday [March] 22, 2009," he had posted a three-day notice on Petitioner's apartment, because he had not paid his March 2009 rent. Also, Mr. Guzman acknowledged that he had not been able to repair Petitioner's bathroom sink because he had been unable to gain access to Petitioner's apartment. Finally, Mr. Guzman indicated that he believed Petitioner was "avoiding [him] since he is unable to pay the rent."

8. Petitioner did not pay rent for his Montrose Apartment unit in March and April 2009, even after Respondent notified him several times that the rent was past due and should be paid.

9. Respondent began eviction proceedings against Petitioner in or about late April or early May 2009, by filing a Complaint for Eviction ("Eviction Complaint") with the County Court of Lake County, Florida. The Eviction Complaint was assigned Case No. 2009-CC001534.

10. Respondent filed the Eviction Complaint against Petitioner after, and because, he did not pay the March and April 2009 rent for his Montrose Apartment unit.

11. On May 5, 2009, a Final Judgment for Possession and Writ of Possession were entered against Petitioner. The Writ of Possession was served on Petitioner and enforced. On or about May 8, 2009, the apartment unit previously rented to Petitioner was turned over to Mr. Guzman.

12. Petitioner alleges and asserts that: (1) he is disabled/handicapped due to a mental disability; (2) he was evicted because of his handicap/disability; and (3) Respondent knew Petitioner was handicapped/disabled. Nevertheless, Petitioner presented no competent evidence to support his claim.

    CONCLUSIONS OF LAW

    
    

13. The Division of Administrative Hearings has jurisdiction over the parties to and subject matter of this proceeding. See §§ 120.569, 120.57(1) and 760.35(3), Fla. Stat. (2009).1

14. Petitioner alleges that Respondent evicted him because he had a mental disability, in violation of the Florida Fair Housing Act, pursuant to Sections 760.20 through 760.27, Florida Statutes.

15. Subsection 760.23, Florida Statutes, provides in pertinent 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.

    
    

    * * *

    
    

    (8) 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 a handicap of:

    
    

    (a) That buyer or renter; . . . .

    
    

16. The discrimination covered by the Florida Fair Housing Act is the same discrimination that is covered by the Federal Fair Housing Act. See Savanna Club Worship Serv. Savanna Homeowners' Ass'n, 456 F. Supp. 2d 1223 (S.D. Fla. 2005). Thus, the federal cases involving discrimination in housing are instructive and persuasive in interpreting Section 760.23, Florida Statutes. See Dornbach v. Holley, 854 So. 2d 211, 213 (Fla. 2d DCA 2002).

17. The three-part burden of proof test enunciated in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973), applies in this case. Under that test, Petitioner must first prove a prima facie case of discrimination by a preponderance of the evidence. Second, if Petitioner establishes a prima facie case, the burden shifts to Respondent to articulate some legitimate, non-discriminatory reason for its action. Third, if Respondent satisfies that burden, Petitioner must then establish that legitimate reasons asserted by Respondent are merely a pretext.

    See U.S. Department of Housing and Urban Development v. Blackwell, 908 F.2d 864 (11th Cir. 1990).

18. Petitioner claims that Respondent discriminated against him when Respondent's management evicted him from his apartment because he is a handicapped/disabled person. Subsection 760.23(8), Florida Statutes, makes it unlawful to discriminate against any person in the terms, conditions or privileges of sale or rental of a dwelling because of a handicap.

19. Subsection 760.22(7), Florida Statutes, defines a "handicapped person" as "a person who 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."2

20. To establish a prima facie case of a discriminatory housing practice, involving the terms, conditions, or privileges in the rental of a dwelling, Petitioner has the initial burden and must show that: (a) he belongs to a protected class (i.e., handicapped/disabled); (b) Respondent was aware that Petitioner suffered from a handicap/disability; (c) Petitioner was ready, willing and able to rent the apartment; and (d) Respondent refused to allow him to do so.

21. Petitioner contends that he suffers from a handicap/disability, but failed to prove that he is, in fact,

    handicapped/disabled. Petitioner did not testify or otherwise prove that he suffered from a "mental or physical impairment which substantially limits one or more major life activities, or [that he] has a record of having, or is regarded as having, such physical or mental impairment."

22. Because Petitioner failed to establish that he suffers from a handicap/disability within the meaning of Subsection 760.22(7), Florida Statutes, he cannot prove that he was evicted from his apartment based on a handicap/disability.

23. Assuming arguendo, that Petitioner proved that he suffers from a handicap/disability, he presented no evidence to establish that Respondent knew about his handicap. That being the case, Respondent could not have engaged in a discriminatory practice based on Petitioner's alleged handicap/disability.

24. Petitioner failed to establish a prima facie case of housing discrimination based on a handicap.

25. Contrary to Petitioner's claim that he was evicted based on his handicap/disability, the preponderance of the evidence proved that Petitioner was evicted from his apartment for non-payment of his rent.

RECOMMENDATION

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 Luis Bermudez' Complaint and Petition for Relief.

DONE AND ENTERED this 26th day of February, 2010, in Tallahassee, Leon County, Florida.

S

CAROLYN S. HOLIFIELD

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 26th day of February, 2010.

ENDNOTES

1/ All statutory references are to Florida Statutes (2009), unless otherwise noted.

2/ The definition of "handicapped person," in the Florida Fair Housing Act is virtually identical to the definitions found in the Federal Fair Housing Act, 42 U.S.C. Section 36029(h) (defining "handicap"); the American With Disabilities Amendments Act of 2008, 42 U.S.C. Section 12102(1) (defining "disability"); and the Rehabilitation Act, 29 U.S.C. Section 705(9)(b) (defining "disability").

COPIES FURNISHED:

Denise Crawford, Agency Clerk

Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100

Tallahassee, Florida 32301

Larry Kranert, General Counsel Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100

Tallahassee, Florida 32301

Francisco Guzman, Jr. Fraguz Corp.

6565 Hidden Beach Circle Orlando, Florida 32819

Luis Bermudez

7637 Dive Cote Drive Orlando, Florida 32818

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: 09-006223

Orders for Case No: 09-006223