STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

JERRY MCINTIRE, )

)

Petitioner, )

)

vs. )

) DAYTONA BEACH RIVERHOUSE, INC., )

)

Respondent. )

Case No. 10-9933

)

RECOMMENDED ORDER

A final hearing was conducted in this case on February 18, 2011, by video teleconference in Tallahassee and Daytona Beach, Florida, before James H. Peterson, III, Administrative Law Judge with the Division of Administrative Hearings.

APPEARANCES

For Petitioner: Jerry McIntire, pro se

719 South Beach Street B-103 Daytona Beach, Florida 32114

For Respondent: D. Michael Clower, Esquire

322 Silver Beach Avenue Daytona Beach, Florida 32118

STATEMENT OF THE ISSUE

Whether Respondent, in providing housing or related services to Petitioner, failed to make reasonable accommodations for Petitioner’s disability.

PRELIMINARY STATEMENT

On or about August 20, 2010, Petitioner filed a housing discrimination complaint (Complaint), alleging that Respondent and Mary Cash had discriminated against him by failing to make a reasonable accommodation for his disability.

The Florida Commission on Human Relations (Commission or FCHR) investigated the Complaint, which was assigned FCHR Number 2011H0060 and HUD No. 04-10-1598-8. Following completion of its investigation, the Commission issued a Determination dated September 21, 2010, finding no cause. On October 12, 2010, the Commission issued a Notice of Determination of No Cause (Notice) on the Complaint finding that “the FCHR has determined that reasonable cause does not exist to believe that a discriminatory housing practice has occurred.”

The Notice advised Petitioner of his right to file a Petition for Relief for a formal administrative proceeding on his Complaint within 30 days. Petitioner timely filed a Petition for Relief with the Commission reiterating the allegations of his Complaint, but not naming Mary Cash1/ as a Respondent.

On October 27, 2010, the Commission filed a Transmittal of Petition dated October 25, 2010, with the Division of Administrative Hearings (DOAH) for assignment of an

administrative law judge to conduct an administrative hearing on Petitioner’s Petition for Relief.

At the administrative hearing in this matter held on February 18, 2011, Petitioner testified on his own behalf. Petitioner did not provide a witness list, but was allowed to elicit testimony from three witnesses who were on Respondent's witness list and appeared at the final hearing. The three witnesses questioned by Petitioner were Mary Cash, James Evans, and Lisa Green. Petitioner offered three exhibits, two of which were received into evidence without objection as Exhibits P-1 and P-2, consisting of Petitioner's original eight-page application for lease or purchase (P-1), and a copy of a two- page letter to Petitioner from Mary Cash dated May 21, 2010

(P-2).

Respondent, through cross-examination, presented the testimony of the same three witnesses called by Petitioner. Respondent did not offer any exhibits.

The evidentiary portion of the hearing concluded on February 18, 2011. No Transcript was ordered. The parties were given until February 28, 2011, to file their respective proposed recommended orders. Respondent filed its Proposed Recommended Order on February 25, 2011, which was considered in the preparation of this Recommended Order. Petitioner did not file a proposed recommended order.

FINDINGS OF FACT

1. Respondent is a Florida corporation doing business pursuant to chapter 718, Florida Statutes, as Daytona Beach Riverhouse Condominium Association. Respondent is responsible for the day-to-day operations and management of Daytona Beach Riverside Condominiums.

2. In May 2009, Petitioner rented Daytona Beach Riverhouse Condominium Unit B-103 from a third party who owns the unit. In that same month, Petitioner signed an application for lease/purchase with Respondent, which contains an acknowledgment of his receipt of the condominium association’s rules and regulations, declaration of condominium, and by-laws. There is also a pet registration form attached to the application which identifies one pet, a Jack Russell named “Peanut.” See Exhibit

   P-1.

   
   

3. Petitioner alleges that he has a brain injury that

   
   

   requires him to have a dog as a service animal to assist him in his daily living. At the final hearing, Petitioner provided his own testimony to support his claim of a brain injury and need for a service dog. Petitioner’s testimony in that regard was unrebutted and is therefore credited. In addition, Respondent’s manager, Mary Cash, acknowledged receiving a letter from Petitioner’s doctor advising that Petitioner had a brain injury and needed a service dog.

   
   

4. Petitioner otherwise, however, failed to prove the allegations of the Complaint.

5. According to the Complaint, Respondent failed to make reasonable accommodation by refusing to allow Petitioner to use his two service animals (dogs) required because of Petitioner’s disability.

6. At the final hearing, Petitioner did not submit any evidence indicating that Respondent failed to allow him to have one or more service dogs. Instead, Petitioner admitted that he lives in the condominium with two dogs, a service dog and a pet.

7. Rather than submitting evidence in support of his Complaint, during the final hearing, Petitioner testified that Respondent, through employees, discriminated against him by harassing his dogs, entering his condominium unit without his permission, and moving or hiding his personal property within the unit. According to Petitioner, the personal property that Respondent moved in his condominium included his medications, a showerhead, a light in his dining room, and one of his dogs that he later found shut inside his walk-in closet.

8. Respondent, through the testimony of Mary Cash, denied the allegations of the Complaint and testified that none of Respondent’s agents or employees had ever entered Petitioner’s condominium without his permission or moved any of Petitioner’s personal property. The testimony of the other witnesses besides

   
   

   Petitioner corroborated Mary Cash’s testimony. Mary Cash’s testimony is credited over Petitioner’s. While Petitioner may have believed that Respondent was harassing his dogs and going into his apartment, the undersigned finds that Petitioner’s testimony in that regard was based on mere speculation.

9. Other than his own testimony, Petitioner did not present any witness or evidence which supported his allegations against Respondent.

10. The letter dated May 21, 2010, from Mary Cash to Petitioner, is written on behalf of Respondent. The letter discussed issues related to Petitioner’s two dogs causing disturbances. The letter also notified Petitioner that Respondent did not have a key to his top door lock and did not have a telephone number to reach Petitioner. The letter does not support the Complaint or any other allegation raised by Petitioner in this proceeding.

11. In sum, Petitioner failed to submit evidence to support of his claim that Respondent failed to make reasonable accommodation for his disability.

    CONCLUSIONS OF LAW

    
    

12. The Division of Administrative Hearings has jurisdiction over the parties to and subject matter of this proceeding. See §§ 120.569, 120.57(1), and 760.20-760.37, Fla.

    
    

    Stat. (2010); see also Fla. Admin. Code R. 60Y-4.016 and 60Y- 8.001.

13. Florida’s Fair Housing Act (Act) is codified in sections 760.20 through 760.37, Florida Statutes (2010).2/

14. Among other things, the Act makes certain acts “discriminatory housing practices” and gives the Commission the authority, if it finds (following an administrative hearing conducted by an administrative law judge) that a “discriminatory housing practice” has occurred. If such a finding is made, the Act further authorizes the Commission to issue an order “prohibiting the practice” and provides “affirmative relief from the effects of the practice, including quantifiable damages and reasonable attorney’s fees and costs.” § 760.35(3)(b), Fla. Stat.

15. The basis of the Complaint filed by Petitioner with the Commission in this case is that Respondent allegedly failed to accommodate his disability.

16. Subsection 760.23(2) provides:

    
    

    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.

    
    

17. The language in section 760.23(2)is identical to the prohibition in 42 U.S.C. section 3604(b), a provision in the federal Fair Housing Act. Since section 760.23(2) and the Act are patterned after a federal law on the same subject, they should “be accorded the same construction as in federal courts to the extent the construction is harmonious with the spirit of the Florida legislation.” Cf. Winn-Dixie Stores, Inc. v.

    Reddick, 954 So. 2d 723, 728 (Fla. 1st DCA), rev. denied, 967 So. 2d 198 (Fla. 2007) (discussing the same rule of construction in the context of the Florida Civil Rights Act of 1992,

    §§ 760.01-760.11, Fla. Stat.).

    
    

18. Subsection 760.23(8), provides:

    
    

    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:

    1. That buyer or renter;

       
       

    2. A person residing in or intending to reside in that dwelling after it is sold, rented or made available; or

    3. Any person associated with the buyer or renter.

       
       

19. Subsection 760.23(9) provides, in relevant part:

    
    

    For purposes of subsections (7) and (8), discrimination includes:

    * * *

    
    

    (b) 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.

20. Just as under the Act in Florida, 42 U.S.C. subsection 3604(f)(3)(B) defines unlawful discrimination to include a refusal to make reasonable accommodations in rules, policies, practices, or services, when such accommodations may be necessary to afford a handicapped person equal opportunity to use and enjoy a dwelling.

21. Section 760.22 provides in relevant part:

    
    

    (7) "Handicap" means:

    
    

    1. 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; or

    2. A person has a developmental disability as defined in s. 393.063.

    This definition is virtually identical to those found in the federal Fair Housing Act, 42 U.S.C. subsection 3602(h)(defining "handicap"); the Americans with Disabilities Act, 42 U.S.C. subsection 12102(2)(A)(defining "disability"); and the Rehabilitation Act, 29 U.S.C. subsection 705(9)(B)(defining “disability”).

    
    

22. Petitioner has the burden of establishing facts to prove a prima facie case of discrimination. U.S. Dep’t of Hous. and Urban Dev. v. Blackwell, 908 F.2d 864, 870 (11th Cir. 1990).

23. The three-part “burden of proof” pattern developed in McDonnell Douglas Corp. v. Green, 411 U.S. 792, 93 S. Ct. 1817 (1973), applies. Blackwell, 908 F.2d at 870. Under that test:

    First, [Petitioner] has the burden of proving a prima facie case of discrimination by a preponderance of the evidence. Second, if [Petitioner] sufficiently establishes a prima facie case, the burden shifts to [Respondent] to “articulate some legitimate, nondiscriminatory reason” for its action.

    Third, if [Respondent] satisfies this burden, [Petitioner] has the opportunity to prove by a preponderance that the legitimate reasons asserted by [Respondent] are in fact mere pretext.

    
    

    Id., citing Pollitt v. Bramel, 669 F. Supp. 172, 175 (S.D. Ohio 1987)(federal Fair Housing Act claim)(quoting McDonnell Douglas, 411 U.S. at 802, 804, 93 S. Ct. at 1824, 1825).

24. To establish a prima facie case of failure to make a reasonable accommodation under 42 U.S.C. § 3604(f)(3), Petitioner must show:

    1. that he suffers from a handicap;

       
       

    2. that Respondent knew of the handicap;

       
       

    3. that an accommodation of the handicap was necessary to afford Petitioner an equal opportunity to use and enjoy the housing in question; and

       
       

    4. Respondent refused to make such an accommodation.

    
    

    U. S. v. California Mobile Home Park Mgmt Co., 107 F.3d 1374, 1380 (9th Cir. 1997).

25. As noted in the Findings of Fact, above, Petitioner failed to provide any evidence supporting his allegation that Respondent failed to make reasonable accommodation for his disability. To the contrary, Petitioner admitted that he has been allowed to keep his dogs. In other words, Petitioner has failed to make out even a prima facie case on his claim of discrimination based on Respondent’s alleged failure to accommodate.

26. Petitioner’s other allegations regarding Respondent’s alleged harassment of his dogs and entrance into his condominium to move things around are also unsupported by the evidence. Rather, they are based on Petitioner’s mere speculation. Mere speculation or self-serving belief on the part of a complainant concerning motives of a Respondent is insufficient, standing alone, to establish a prima facie case of intentional discrimination. Cf. Lizardo v. Denny’s, Inc., 270 F.3d 94, 104 (2d Cir. 2001) (“Plaintiffs have done little more than cite to their mistreatment and ask the court to conclude that it must have been related to their race. This is not sufficient.”).

    
    

27. Moreover, Petitioner’s allegations beyond his original allegation that Respondent failed to make reasonable accommodation for his disability are beyond the scope of the Complaint filed with the Commission, and therefore not cognizable in this proceeding. See Chambers v. American Trans

    Air, Inc., 17 F.3d 998, 1003 (7th Cir. 1994)(“[T]o prevent circumvention of the [FCHR’s] investigatory and conciliatory role, only those claims that are fairly encompassed within a [timely-filed complaint] can be the subject of [an administrative hearing conducted pursuant to Sections 120.569 and 120.57, Florida Statutes]”).

28. In sum, Petitioner did not prove that Respondent discriminated against Petitioner by failing to make reasonable accommodations for Petitioner’s disability or otherwise, in the provision of housing or related services to Petitioner.

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 the Complaint and Petition for Relief.

DONE AND ENTERED this 25th day of March, 2011, in Tallahassee, Leon County, Florida.

S

JAMES H. PETERSON, III

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 25th day of March, 2011.

1/ Mary Cash is Respondent’s manager. At the final hearing, Ms. Cash testified on behalf of Respondent.

2/ Unless otherwise indicated, all references to the Florida Statutes are to the 2010 version.

COPIES FURNISHED:

Jerry McIntire

719 South Beach Street, B-103 Daytona Beach, Florida 32114

D. Michael Clower, Esquire

322 Silver Beach Avenue Daytona Beach, Florida 32118

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

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: 10-009933

Orders for Case No: 10-009933