GABRIEL SAUERS,

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

vs.

Petitioner,

Case No. 14-0047

LIANG JIAN AND DOINGHUI LEE, OWNERS,

Respondents.

/

RECOMMENDED ORDER

Pursuant to notice to all parties, a final hearing was conducted in this case commencing on April 18, 2014, via video teleconference with sites in Tallahassee and Daytona Beach, Florida, before Administrative Law Judge R. Bruce McKibben of the Division of Administrative Hearings.

APPEARANCES

For Petitioner: Gabriel P. Sauers, pro se

1111 Ocean Shore Boulevard, Unit 1 Ormond Beach, Florida 32176

For Respondents: Michael Paul Kelton, Esquire

Paul, Elkind, and Branz

142 East New York Avenue Deland, Florida 32724

STATEMENT OF THE ISSUE

The issue in this case is whether Respondents, Liang Jian and Doinghui Lee (Owners), discriminated against Petitioner, Gabriel Sauers (Sauers), through actions of the Owners’

representative, Joseph Palmer (Palmer), on the basis of Sauers' purported handicap in violation of the Florida Fair Housing Act.

PRELIMINARY STATEMENT

Sauers filed a Housing Discrimination Complaint with the Florida Commission on Human Relations (the “Commission”) on or about August 30, 2013. The Commission entered a Notice of Determination of No Cause dated December 18, 2013. A copy of the Determination was sent to Sauers via certified mail. Sauers then filed a Petition for Relief with the Commission dated January 4, 2014. A copy of the Petition was forwarded to the Division of Administrative Hearings ("DOAH") on January 8, 2014.

At the final hearing, Sauers testified on his own behalf and called two other witnesses: Eric Sauers, his father; and

Susan Sauers, his mother. Sauers’ Exhibits 1, 3, and Rebuttal Exhibit 1 were admitted into evidence. Palmer testified on behalf of the Owners. Owners' Exhibits 1-4 were admitted into evidence.

The parties advised that a transcript of the final hearing would not be ordered. By rule, parties were allowed ten days from the date of final hearing to submit proposed recommended orders (PROs). Neither party submitted a PRO for consideration.

FINDINGS OF FACT

1. Sauers is a young Caucasian male with purported disabilities, including post-traumatic stress disorder, ADHD,

   
   

   Oppositional Defiance Disorder, and others. He is a high school graduate, having received his education in an exceptional student education class. Sauers did not testify as to whether he is currently employed. He receives food stamps and Supplemental Security Income from the Social Security Administration. That income appears to be his sole means of support.

2. The Owners (who did not appear at the final hearing) are Asians. The property at issue (referred to herein as the Apartments) is a multi-family residential building located at 419 North Wild Olive Avenue. At all times relevant hereto, Sauers was residing in Apartment #7, an efficiency apartment.

3. In October 2012, Sauers rented a one-bedroom apartment from the Owners. Palmer was the manager of the Apartments and handled the negotiations with Sauers for the apartment. After a short time living in the apartment, Sauers asked to rent the efficiency apartment instead of the apartment he had originally leased. There was a difference of about $100 per month in rent between the two apartments.

4. On or about November 1, 2012, Sauers moved into the efficiency apartment, i.e., Apartment #7. Sauers had inspected the apartment and did not list any concerns on his written lease agreement.

5. After living for a short time in the efficiency, Sauers asked for a different refrigerator because the one in the

   
   

   efficiency was too small. He asked that the refrigerator from his prior apartment be moved down to the efficiency or that one be purchased for the efficiency as a replacement. Palmer told Sauers that he (Sauers) could purchase a refrigerator and Palmer would give him a $100 credit on his rent. Sauers never purchased a refrigerator and Palmer did not take any further action on Sauers’ request.

6. While living in the efficiency, Sauers heard loud music being played in one of the other apartments on a regular basis. Sauers’ efficiency was in a building other than where the other apartments were located, but it was in close proximity. Sauers also reported seeing drug transactions taking place around the Apartments. He reported his findings to Palmer, but Palmer just told him to call the police. Sauers called the police on multiple occasions.

7. Sauers had arguments and disagreements with other residents residing in the apartment complex. He admitted that his psychological conditions caused him to argue with other residents from time to time, but said he was singled out by some residents.

8. Sauers raised complaints about the presence of palmetto bugs and roaches in his efficiency. However, the entire complex was under an extermination contract and Ryan’s Pest Control came out regularly to spray for insects. Some invoices and statements

   
   

   from Ryan’s were offered into evidence, but Sauers maintains they only address a few days of his residence at the Apartments. It is likely there were bugs in the efficiency; it is also true that Palmer and the Owners attempted to minimize the problem by having regular pest control service.

9. The stove/oven in the efficiency was improperly grounded when Sauers moved in. He received several electrical shocks when touching the stove. Palmer was made aware of the problem and contracted with Parks Electric Company to remedy the situation. On April 25, 2013, the stove was rewired to alleviate the electrical problem.

10. The Owners had a policy in place that tenants would pay their rent by way of a certified check or money order. Sauers often requested and was allowed to pay in cash.

11. Sauers complained frequently to Palmer about the condition of the efficiency, the dangerous environment around the apartment complex, and other real or imagined problems. Sauers’ father, who helped Sauers move into the apartment complex and notified Palmer about some of Sauers’ disabilities, agreed that the area around the Apartments seemed unsafe. The father, a large man, was accosted on one of his visits to the Apartment, by some unknown person.

12. Sometimes Sauers’ mother would call Palmer to ask questions or raise concerns. She was never able to reach him via

    
    

    telephone, but Palmer returned her calls--to Sauers’ father’s phone--on many occasions.

13. It is abundantly clear that Sauers and Palmer do not get along well. When Sauers was absent from his apartment for several weeks in the summer of 2013, Palmer assumed that the efficiency had been abandoned. He placed a three-day notice on the door of the efficiency, telling Sauers he had to pay the rent which was due or that eviction proceedings would be commenced. When notified that Sauers did not plan to return to the apartment, Palmer went in--only to find that the efficiency was filthy and required significant cleaning.

14. Sauers claims discrimination on the part of the Owners because Palmer had asked him to vacate the apartment at one point in time. The suggestion, made by Palmer, was based on Palmer’s perception that Sauers was extremely unhappy living at the apartment complex.

15. Sauers failed to show that any other residents at the complex were treated differently or that Sauers was denied any reasonable accommodations for his needs.

    CONCLUSIONS OF LAW

    
    

16. The Division of Administrative Hearings has jurisdiction over the parties to and the subject matter of this proceeding pursuant to sections 120.569 and 120.57(1), Florida Statutes (2013). Unless specifically stated otherwise herein,

    
    

    all references to the Florida Statutes shall be to the 2013 codification.

17. Florida's Fair Housing Act (the "Act") is codified in sections 760.20 through 760.37, Florida Statutes. Subsection 760.23, reads in pertinent part:

    Discrimination in the sale or rental of housing and other prohibited practices.—

    
    

    * * *

    
    

    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.

    
    

18. Sauers has the burden of proving by a preponderance of the evidence that the Owners violated the Act by discriminating against Sauers based on his disability as set forth in his complaint. § 120.57(1)(j) and 760.34(5), Fla. Stat. Sauers failed to meet his burden in this case.

19. In evaluating housing discrimination claims, courts have applied the burden shifting analysis developed in McDonnell

    Douglas Corp. v. Green, 411 U.S. 792, 802-804 (1973), as later refined in Texas Department of Community Affairs v. Burdine, 450

    U.S. 248, 252-253 (1981). Under this approach, Sauers must first make a prima facie case for discrimination.

    
    

20. A prima facie showing of housing discrimination simply requires Sauers to show that he was ready, able, and willing to rent the Property and that he was a member of a protected class. See Soules v. U.S. Dep't of Housing and Urban Dev., 967 F. 2d 817, 822 (2d Cir. 1992).

21. The burden of proof would then shift to the Owners to show that the actions they took were based on a legitimate, nondiscriminatory reason. See St. Mary's Honor Ctr. v. Hicks,

    509 U.S. 502, 515 (1993). The burden would then shift back to Sauers to prove that the Owners’ stated rationale was mere pretext and that the real reason for their action was discrimination.

22. There is some evidence in the record that Sauers has a disability. According to his uncontroverted testimony, Sauers has several conditions that could constitute a disability under the Fair Housing Act. Sauers was willing to live in the efficiency, but he later abandoned the property, allowing the lease to expire on its terms. Thus, Sauers likely fails to meet the necessary requirements for a prima facie case of discrimination.

23. Even if Sauers had proved his prima facie case, the remainder of the evidence in this case fails to support a claim of discrimination by the Owners or their agent, Palmer. The problems identified by Sauers were general statements of

unpleasantness (and it is abundantly clear from the record that the Apartments are not a nice place to live). But there is no evidence that discrimination occurred or that Sauers was treated differently because of his disabilities.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of Law, it is

RECOMMENDED that a final order be entered by the Florida Commission on Human Relations dismissing the Petition for Relief filed by Gabriel Sauers in its entirety.

DONE AND ENTERED this 9th day of May, 2014, in Tallahassee, Leon County, Florida.

S

R. BRUCE MCKIBBEN 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 9th day of May, 2014.

COPIES FURNISHED:

Violet Denise Crawford, Agency Clerk Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100

Tallahassee, Florida 32301

Michael Paul Kelton, Esquire Paul, Elkind and Branz

142 East New York Avenue Deland, Florida 32724

Gabriel P. Sauers Unit 1

1111 Ocean Shore Boulevard Ormond Beach, Florida 32176

Cheyanne Costilla, 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: 14-000047

Orders for Case No: 14-000047