01-001113 Gerald Castellanos And Donna Castellanos vs. Sb Partners Real Estate Corporation And Sentinel Real Estate, Inc. Status: Closed Recommended Order on Tuesday, August 28, 2001.

Summary: Petitioner failed to demonstrate that Respondents refused to accommodate his mental handicap or that Respondents retaliated against him for filing a Fair Housing Act compliant with the Department of Housing and Urban Development.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

GERALD CASTELLANOS AND DONNA )

CASTELLANOS, )

)

Petitioners, )

)

vs. ) Case No. 01-1113

)

SB PARTNERS REAL ESTATE )

CORPORATION AND SENTINEL REAL )

ESTATE, INC., )

)

Respondents. )

)

RECOMMENDED ORDER

Pursuant to notice, a formal hearing was conducted in this

case on June 13 and July 19, 2001, in Tampa, Florida, before

Lawrence P. Stevenson, a duly-designated Administrative Law

Judge of the Division of Administrative Hearings.

APPEARANCES

For Petitioners : Gerald R. Castellanos, pro se

1150 Dartford Drive

Tarpon Springs, Florida 34688

For Respondents : John W. Bencivenga, Esquire

Thompson, Sizemore & Gonzalez

109 N orth Brush Street

Suite 200

Tampa, Florida 33601

STATEMENT OF THE ISSUES

The issues presented for decision are whether Respondents

discriminated against Petitioner Gerald Castellanos 1 because of

his disability in violation of the Fair Housing Act, and whether

Respondents retaliated against Petitioner by evicting him from

his apartment in response to his filing a discriminatory housing

complaint with the United States Department of Housing and Urban

Development.

PRELIMINARY STATEMENT

On January 10, 2000, Petitioner filed an Amended Housing

Discrimination Complaint (the "Complaint") against Respondents,

alleging that he was mentally disabled within the meaning of the

Fair Housing Act, Sections 804 and 818 of Title VIII of the

Civil Rights Act of 1968, as amended (codified at 42 U.S.C .

Sections 3604 and 3617). The Complaint alleged that Respondents

had been unwilling to accommodate Petitioner's disabling

condition, and made a generic allegation that Petitioner's

eviction was in "retaliation." The Complaint was originally

filed with the Federal Department of Housing and Urban

Development pursuant to 42 U.S.C. Subsection 3610(a)(1)(A), and

referred to the Florida Commission on Human Relations (the

"Commission") pursuant to 42 U.S.C. Subsection 3610(f).

The Commission conducted an investigation of the Complaint.

By letter dated August 21, 2000, the Commission notified

Petitioner of its determination that reasonable cause did not

exist to believe that a discriminatory housing practice had

occurred, and that the Complaint would be dismissed. The

Commission's letter provided notice of Petitioner's right to

pursue judicial and administrative remedies.

Petitioner timely filed his Petition for Relief with the

Commission. On October 6, 2000, the Commission referred the

matter to the Division of Administrative Hearings for assignment

of an Administrative Law Judge to conduct a formal

administrative hearing. The matter was assigned DOAH Case

No. 00-4159 and scheduled for hearing on December 6, 2000. On

November 6, 2000, Petitioner filed a request that the matter be

delayed pending his production of additional information to the

Commission. By Order dated November 9, 2000, the file in DOAH

Case No. 00-4159 was closed without prejudice to the parties'

ability to reopen the matter if it could not be informally

resolved.

On February 27, 2001, Petitioner filed a request for formal

hearing, stating that it appeared that a formal proceeding would

be the only way to resolve the issues presented. The instant

case file was opened, and the matter scheduled for hearing on

May 22, 2001. The matter was continued to June 13, 2001, on

which date the hearing commenced. The hearing was concluded on

July 19, 2001.

At the final hearing, Petitioner testified on his own

behalf and presented the testimony of Detective Daryl Waterman

and Deputy Chuck Gilmore of the Pinellas County Sheriff's

Office; Fred Fallis, an employee of Time Warner Communications;

Jamy Magro, Petitioner's former attorney; Gerald Castellanos,

Jr., Petitioner's son; Donna Castellanos, Petitioner's wife; and

Lisa Dunton, the property manager of Egret's Landing apartments

at the times relevant to this proceeding. Petitioner also

introduced the deposition testimony of John and Kay Bingham,

owners of the moving company that physically removed

Petitioner's property from the apartment upon his eviction.

Petitioner's Exhibits 1 through 9 were admitted into evidence.

Respondents presented the testimony of Stacey Stottlemyre,

assistant property manager at Egret's Landing at the times

relevant to this proceeding. Respondents' Exhibits 1 through 15

were admitted into evidence.

No transcript of the final hearing was ordered. At the

close of the hearing, the parties agreed that their Proposed

Recommended Orders would be filed no later than August 20, 2001.

Respondents filed a Proposed Recommended Order on the agreed

date. Without objection, Petitioner filed a Proposed

Recommended Order on August 21, 2001.

FINDINGS OF FACT

Based on the oral and document ary evidence adduced at the

final hearing and the entire record in this proceeding, the

following findings of fact are made:

1. The Commission is the state agency charged with

investigating complaints of discriminatory housing practices and

enforcing Florida’s Fair Housing Act, Sections 760.20 through

760.37, Florida Statutes. The Commission is charged with

investigating fair housing complaints filed with the Commission

and with the federal Department of Housing and Urban Development

("HUD") under the federal Fair Housing Act, 42 U.S.C. Section

3601 et seq .

2. Petitioner, Gerald Castellanos, was a resident at the

Egret's Landing apartments in Palm Harbor from October 1997

until April 1999. He lived there with his wife, Donna, and his

son, Gerald Castellanos, Jr. Gerald and Donna Castellanos

executed an apartment lease for the term September 1, 1998

through August 31, 1999, that set forth the conditions of their

tenancy for the period in controversy.

3. The Respondent in interest is Sentinel Real Estate,

Inc. ("Sentinel"), an entity that manages real estate

investments for Sentinel Real Estate Fund, a group trust

comprising a number of investor pension funds. The nominal

property owner of Egret’s Landing is Sentinel Real Estate Fund.

4. Petitioner alleged that he suffered from a mental

disability that impeded his ability to pay his monthly rent in a

timely manner. Petitioner alleged that Sentinel refused to

accommodate this disability, and evicted his family from Egret's

Landing in retaliation for his filing a fair housing complaint

with HUD.

5. The evidence admitted at the hearing established that

at the time of his eviction, Petitioner was under the care of a

psychologist for a depressive mood disorder. Petitioner was

taking at least four different prescription drugs for his

condition.

6. Petitioner offered no medical evidence or testimony to

establish the manner in which his disorder impaired or limited

his major life activities, or the degree to which his condition

was disabling. Petitioner testified that he functions "pretty

well" when he takes his medication, though he experiences some

problems with short-term memory.

7. Petitioner conceded that he did not directly ask

Sentinel to provide an accommodation for his disability.

Petitioner's case rested on the theory that the course of

dealing between Sentinel and him should have placed Sentinel on

notice that he was suffering from a mental disability and caused

Sentinel to accede to his request that he be allowed to pay his

rent late on a regular basis.

8. On or about December 12, 1998, Petitioner paid his

overdue rent to Lisa Dunton, the manager of Egret's Landing. In

a handwritten note accompanying his rent check, Petitioner

stated that he had been in the hospital and "under heavy

medication" recently. He also wrote: "Apparently, the sleep

deprivation caused over the last year, due to you know what,

activated a serious chemical imbalance in my brain and in fact

even to my cells throughout my body." The note went on to

discuss the large amount of money Petitioner was paying and

would continue to pay for medications, "with no end in sight."

9. Petitioner testified as to prior conversations with

Ms. Dunton about his mental condition. He stated that he

offered to put her in touch with his psychologists to verify his

statements about his condition. He implied that the "due to you

know what" statement in his note referred to these earlier

conversations with Ms. Dunton about his mental condition.

10. Ms. Dunton recalled n o such conversations. She

assumed that "sleep deprivation . . . due to you know what" in

the note referred to noisy neighbors that Petitioner had been

complaining about for a period of months. Petitioner admitted

under cross-examination that "you know what" referred to the

noisy neighbors. Ms. Dunton had no recollection of Petitioner

or his wife ever asking for an accommodation related to his

disability.

11. Lisa Stottlemyre, the assistant manager at Egret's

Landing, recalled no conversations with Petitioner regarding his

mental disability. She recalled no accommodation request from

Petitioner or his wife.

12. Petitioner's wife, Donna Castellanos, never told

anyone about her husband's disability and never requested that

Sentinel make any accommodation for her husband's condition.

13. In light of the testimony from other witnesses,

Ms. Dunton's testimony is credited. It is found that Petitioner

did not discuss his mental condition with Ms. Dunton, aside from

whatever mental distress was caused by the noisy neighbors. To

satisfy Petitioner, who was the only resident complaining about

noise, Ms. Dunton moved the neighbors to a different apartment

in the same complex.

14. Petitioner testified that he was reticent about

discussing his condition because of the stigma associated with

having a mental disability. While continuing to maintain that

he had discussed his condition with Ms. Dunton, Petitioner

admitted that he did not directly request any accommodation

related to his disability. Petitioner argued, paradoxically,

that his reticence to discuss his condition placed a higher

burden of sensitivity on the employees of Sentinel to divine his

mental state without assistance.

15. Petitioner requested that Sentinel allow him to pay

his rent late on a regular basis, but presented this request in

terms of cash flow difficulties, unrelated to his disability.

Sentinel presented uncontested evidence that it does not allow

tenants to pay rent late on a regular basis, and that any

exceptions to this policy cannot be authorized by on-site

employees such as Ms. Dunton and Ms. Stottlemyre, but require

the approval of a district or regional manager. As indicated

below, Sentinel was in practice more forbearing of Petitioner's

repeated late rent payments than was required by the terms of

the lease.

16. Both Ms. Dunton and Ms. Stottlemyre testified that if

a person with a handicap asks for a reasonable accommodation,

Sentinel will work with the person and do the best they can to

assist the person. Both Ms. Dunton and Ms. Stottlemyre, as

agents for Sentinel, they have reasonably accommodated

individuals with disabilities and/or handicaps in accordance

with the Fair Housing Act.

17. The rental agreement provided that rent of $960.00,

plus pet and garage charges, was due without demand on the first

day of each month, with no grace period. If the rent was not

paid on or before the third day of the month, $25.00 would be

added to the rent.

18. Petitioner was chronically late in paying his rent.

Sentinel sent a "Three Day Notice to Pay Rent or Give

Possession" to Petitioner on six separate occasions:

September 8, 1998; December 8, 1998; December 28, 1998;

February 12, 1999; February 17, 1999; and March 5, 1999. The

evidence established that at least one of these late payment

situations was due to a bank error rather than any fault of

Petitioner, and that Sentinel initially displayed patience and a

willingness to work out problems with Petitioner.

19. Petitioner's rent for March 1999 was not paid as of

March 16, 1999. Petitioner told Ms. Stottlemyre that the money

had been sent to the wrong account, and that the rent would be

paid the next day. Three days later, March 19, the rent still

had not been paid. When Ms. Stottlemyre inquired about the

rent, Petitioner directed her to an attorney who he said would

handle payment of the rent. On March 23, Ms. Stottlemyre

contacted the attorney, who was unaware of any such arrangement.

Ms. Stottlemyre spoke again with Petitioner, who said that he

would no longer speak with her about the matter.

Ms. Stottlemyre consulted her supervisor, Ms. Dunton, who

advised her to forward the matter to Sentinel's local attorney.

20. On March 24, 1999, Sentinel commenced eviction

proceedings against Petitioner by filing a complaint in the

county court for Pinellas County. Petitioner filed an answer

with the court on April 2, 1999. The answer averred, "It is my

perception that a certain animus exists against Defendant,

because of his race." Petitioner is of Hispanic descent. The

answer also stated: "The Department of Housing and Urban

Development will be contacted, regarding the total lack of

insensitivity [sic], training (diversity) and lack of

supervision of [Sentinel's] agents." The answer made no mention

of Petitioner's alleged mental disability.

21. The final hearing in the eviction proceeding was held

on April 19, 1999. On that date, the court entered a final

judgment giving Sentinel possession of the apartment and

ordering Petitioner and his family to vacate the premises.

Pursuant to the judgment, a writ of possession was issued on

April 22, 1999, directing the sheriff to remove all persons from

the property and place Sentinel in full possession of the

property.

22. Subsequent to April 19, 1999, Petitioner took no steps

to vacate the premises, despite advice from Jamy Magro, his

counsel in the eviction proceeding, that the eviction was final

and he should make arrangements to change his residence. On

April 23, 1999, Detective Daryl Waterman of the Pinellas County

Sheriff's Office posted a writ of possession notice on the door

or window of the apartment, informing Petitioner that he had

24 hours to vacate the premises. Petitioner apparently removed

the notice, because Mrs. Castellanos knew nothing about the

result of the April 19 eviction proceeding until April 27, when

the physical eviction took place.

23. On the morning of April 27, 1999, Detective Waterman

and Deputy Chuck Gilmore arrived to secure the premises for

Sentinel. They were dismayed to discover that Petitioner was

still in the apartment and had taken no steps to move out his

belongings. They contacted Ms. Dunton, who was at a doctor's

appointment, and waited for her to arrive before taking any

further steps.

24. Ms. Dunton testified that this sit uation was unique in

her experience. She stated that when residents are evicted,

they generally take their belongings and leave the premises.

25. Petitioner recalled that Ms. Dunton arrived at his

apartment at around 10 a.m., that he spoke with her, that they

agreed to "let the lawyers handle it," and that nothing would be

done immediately to move Petitioner's property out of the

apartment. Petitioner testified that he told Ms. Dunton that he

was in no condition to deal with the matter at that time.

26. Ms. Dunton had no recollection of a morning

conversation with Petitioner. She recalled arriving at Egret's

Landing and calling her district manager and Sentinel's local

legal counsel for advice on how to proceed. Both of these

people advised her to have Petitioner's property removed from

the apartment and placed outside the boundary of Egret's

Landing's property. Ms. Dunton did not wish to do this to

Petitioner, and called Sentinel's general counsel in New York,

who told her to follow the advice she was getting locally.

27. Ms. Dunton commenced calling moving companies to get

bids on moving Petitioner's belongings off the property. At

some time early in the afternoon, she gave the job to John

Bingham, owner of A-1 Movers in Palm Harbor.

28. Ms . Dunton phoned Petitioner at his cellular number

and informed him that the movers would be putting his

possessions on the exterior of the Egret's Landing property.

Petitioner replied that he was in St. Petersburg and would not

be able to come for his property. He told Ms. Dunton that HUD

would make Sentinel "replace everything."

29. Ms. Dunton assumed the reference to HUD related to

Petitioner's earlier allegation of a "certain animus" against

Petitioner because of his race. She placed no great importance

on the statement, aside from a degree of resentment at the

allegation because she is also Hispanic.

30. To minimize the cost of the move, which would

ultimately be billed to Petitioner, Ms. Dunton assigned her

maintenance supervisor to pack small items in boxes while Mr.

Bingham took care of loading larger items into his truck.

31. Late on the afternoon of April 27, Mr. Bingham

deposited the contents of Petitioner's former apartment on the

curb outside the back entrance of Egret's Landing. It is

undisputed that passersby stole most of those contents.

Petitioner's insurance ultimately reimbursed him for the loss,

which the insurance company classified as "theft." Petitioner

alleged that this "theft" classification established that

Sentinel stole his property, but did not support this allegation

with evidence.

32. Petitioner alleged that Ms. Dunton was involved in the

theft of jewelry and other valuables during the move.

Petitioner testified that he managed to recover items that

Ms. Dunton had stored in the garage of the apartment, but that

these were of little value, and he theorized that Ms. Dunton or

her employees had stolen the valuable items while packing the

apartment. Ms. Dunton credibly testified that Petitioner found

items in the garage because the garage door was closed at the

time of the move and she did not know the items were there.

Ms. Dunton did not personally participate in the packing or

moving of Petitioner's belongings.

33. Petitioner also made much of Mr. Bingham's deposition

testimony that it appeared people were waiting outside the

Egret's Landing boundary when he unloaded Petitioner's

belongings. Petitioner claimed that this testimony established

that Ms. Dunton or someone else working for Sentinel had

accomplices who had been tipped off that his valuables would be

there for the taking when Mr. Bingham unloaded them.

Petitioner's theory is completely at odds with the evidence.

Sentinel gave Petitioner more time than the law required to

remove his belongings from the apartment. Even on the day of

the physical eviction, Ms. Dunton phoned Petitioner and warned

him about what was happening. Petitioner did nothing , save make

his cryptic warning about HUD.

34. Petitioner alleged that the manner of his eviction was

in retaliation for his having filed a housing discrimination

claim with HUD. There was no evidence that such a claim was

filed prior to the entry of the eviction judgment on April 19,

or that anyone working at Egret's Landing was aware of such a

claim as of April 27, the date of the physical eviction. The

only record evidence concerning a HUD complaint was a copy of an

envelope addressed to HUD by Petitioner, postmarked April 20,

1999, the day after the eviction judgment. Petitioner's

attorney during the eviction proceeding, Mr. Magro, had no

independent knowledge of filing a HUD complaint, and only

recalled faxing copies of the postmarked envelope to Sentinel's

local counsel two days after entry of the judgment. Petitioner

failed to produce the actual HUD complaint, which in any event

would have had no bearing on Sentinel's decision to evict

Petitioner, because the eviction proceeding was commenced on

March 24, 1999.

35. As noted above, Mrs. Castellanos was unaware of the

result of the eviction proceeding when she went to work on the

morning of April 27. At 2:30 p.m., she received a phone call

from her son, who had come home from school and been unable to

get into the apartment because the locks had been changed.

Shortly thereafter, she received a phone call from Petitioner,

who asked her to meet him and their son at a restaurant after

work. They met at the restaurant , then went to a Quality Inn

motel where the family stayed for a time following their

eviction.

36. Mrs. Castellanos was well aware of h er husband's

condition, yet she told no one about it and continued to

acquiesce in Petitioner's handling of the family's finances,

including dealing with Sentinel. It was unclear how much

Mrs. Castellanos knew of the repeated late rent payments and the

eviction proceedings. Mrs. Castellanos held a responsible job

with the Pinellas County School Board and gave every indication

of being an intelligent, reasonable person, but could offer no

rational explanation for why she did not at least monitor her

husband's actions to ensure that basic family responsibilities

such as rent payments were being fulfilled. She expressed only

some anxiety that she might have injured her husband's pride by

taking over his handling of financial matters.

37 . Even assuming that he suffered from a mental handicap,

Petitioner nonetheless produced no evidence to establish a

causal connection between his mental condition and his ability

to pay rent in a timely manner. Petitioner offered no

explanation as to why he did not have his wife take over paying

the rent during his incapacity. Petitioner produced no evidence

that he requested an accommodation from Sentinel based upon his

disability. Petitioner produced no evidence that his eviction

was for any reason other than his failure to pay the rent due to

Egret's Landing.

38. Petitioner failed to demonstrate that Sentinel or its

agents failed to follow the law during the eviction proceedings,

or that Sentinel or its agents committed theft of his property

during the physical eviction. Sentinel's management may have

been harsh in ordering Ms. Dunton to clear Petitioner's

belongings from the apartment and place them off the Egret's

Landing property, but Petitioner's failure to make provision for

moving out or even to inform his wife of the eviction judgment

left Sentinel with little option to secure its property pursuant

to that judgment.

CONCLUSIONS OF LAW

39. The Division of Administrative Hearings has

jurisdiction in this proceeding pursuant to Subsection

120.57(1), Florida Statutes.

40. Petitioner's Complaint alleges two causes of action:

that Sentinel failed to accommodate his disability, and that

Sentinel retaliated against him for exercising his right to file

a housing discrimination claim with HUD.

41. Subsection 760.23(2), Florida Statutes, 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.

42. Subsection 760.23(8), Florida Statutes, 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:

(a ) That buyer or renter;

(b ) A person residing in or intending to

reside in that dwelling after it is sold,

rented or made available; or

(c ) Any person associated with the buyer or

renter.

43. Subsection 760.23(9), Florida Statutes, 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.

44. 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.

45. To establish a prima facie case of failure to make a

reasonable accommodation under 42 U.S.C. Subsection 3604(f)(3),

Petitioner must show:

a) that he suffers from a handicap;

b) that Sentinel knew of the handicap;

c) that an accommodation of the handicap

was necessary to afford Petitioner an equal

opportunity to use and enjoy the housing in

question; and

d) Sentinel refused to make such an

accommodation.

Schanz v. Village Apartments , 998 F.Supp . 784, 791 ( E.D. Mich.

1998); U.S. v. California Mobile Home Park Mgmt Co. , 107 F.3d

1374, 1380 (9th Cir. 1997).

46. A Fair Housing Act retaliation claim is analyzed under

the same standards that are applied to retaliation claims

brought under Title VII of the Civil Rights Act of 1964, as

amended, and other employment discrimination statutes. Texas v.

Crest Asset Management, Inc. , 85 F.Supp.2d 722, 733 (S.D. Tex.

2000) ; Broome v. Biondi , 17 F.Supp.2d 211, 218-129 (S.D. N.Y.

1997).

47. As with other anti-discrimination statutes, if there

is no direct evidence of retaliation, "the plaintiff bears the

burden of proving that the defendant’s actions were motivated by

the considerations prohibited by the statute." Crest Asset , 85

F.Supp.2d at 733 ( citing Hypes v. First Commerce Corp. , 134 F.3d

721, 726 (5th Cir. 1998)).

48. The three-part burden-of-proof test developed in

McDonnell Douglas Corp. v. Green , 411 U.S. 792, 93 S.Ct. 1817

(1973), governs in the retaliation portion of this case. Under

that test:

First, the plaintiff has the burden of

proving a prima facie case of discrimination

by a preponderance of the evidence. Second,

if the plaintiff sufficiently establishes a

prima facie case, the burden shifts to the

defendant to articulate some legitimate,

nondiscriminatory reason for its action.

Third, if the defendant satisfies this

burden, the plaintiff has the opportunity to

prove by a preponderance that the legitimate

reasons asserted by the defendant are in

fact mere pretext. Pollitt v. Bramel , 669

F. Supp. 172, 175 (S.D. Ohio 1987)(Fair

Housing Act claim) (quoting McDonnell

Douglas, 411 U.S. at 802, 804, 93 S.Ct. at

1824, 1825)(citations omitted).

U.S. Department of Housing and Urban Development v. Blackwell ,

908 F.2d 864, 872 (11th Cir. 1990).

49. Petitioner's claim that Sentinel improperly failed to

make a "reasonable accommodation" in violation of state and

federal housing law fails all four prongs of the test set forth

above. First, Petitioner failed to establish that he suffers

from a handicap as defined in Section 760.22, Florida Statutes,

and related statutes, set forth below. Second, Petitioner

failed to establish that Sentinel knew or should have known

about his alleged disability. Third, Petitioner failed to

demonstrate how the accommodation of late rent payment is

necessary to afford him an equal opportunity to use and enjoy

the housing in question. Fourth, Petitioner failed to

demonstrate that Sentinel denied him an accommodation.

50. Section 760.22, Florida Statutes, provides 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;

or

(b ) 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"). Under the term "handicap" or "disability," each

of these laws provides relief only to a person with an

impairment that substantially limits a major life activity.

51. The United States Supreme Court has addressed the

definition of "disability" in the context of a case brought

pursuant to the Americans with Disabilities Act. In Sutton v.

United Airlines , 527 U.S. 471, 119 S.Ct. 2139, 2143, 114 L. Ed.

2d 450 (1999), the Court held that "the determination of whether

an individual is disabled should be made with reference to

measures that mitigate the individual's impairment."

52. The Court in Sutton relied as well on the definitions

of "substantially limits" and "major life activities" contained

in the regulations of the Equal Employment Opportunities

Commission, as follows:

The term "substantially limits" means, among

other things, "[u ] nable to perform a major

life activity that the average person in the

general population can perform;" or

"[s] ignificantly restricted as to the

condition, manner, or duration under which

the average person in the general population

can perform that same major life activity"

[Citation omitted.] Finally, "[m ] ajor

[l] ife [a] ctivities means functions such as

caring for oneself, performing manual tasks,

walking, seeing, hearing, speaking,

breathing, learning, and working."

[Citation omitted.]

Sutton , 119 S.Ct . at 2145.

53. The Court in Sutton observed that, in determining

whether a person with a physical impairment is disabled under

the Americans with Disabilities Act, the proper inquiry is

whether the person is substantially limited in one or more major

life activities, when the impairment is corrected or mitigated

through the use of medication or corrective devices. According

to the Court, the Americans with Disabilities Act requires that

this determination be made for each individual with an

impairment:

A "disability" exists only where an

impairment "substantially limits" a major

life activity, not where it "might,"

"could," or "would" be substantially

limiting if mitigating measures were not

taken. A person whose physical or mental

impairment is corrected by medication or

other measures does not have an impairment

that presently "substantially limits" a

major life activity. To be sure, a person

whose physical or mental impairment is

corrected by mitigating measures still has

an impairment, but if the impairment is

corrected it does not "substantially

limi [t]" a major life activity.

Id. at 2146-47. See also Albertson's, Inc. v. Kirkingburg , 527

U.S. 555, 119 S.Ct. 2162, 2168, 144 L. Ed. 2d 518 (1999)(Error

for lower court to hold that a "mere difference" in ability met

the statutory definition: "By transforming 'significant

restriction' into 'difference,' the court undercut the

fundamental statutory requirement that only impairments causing

'substantial limitat [ions]' in individuals' ability to perform

major life activities constitute disabilities.")

54. In the instant case, the evidence established that

Petitioner suffered from a depressive mood disorder and took

prescription medications to treat it. Petitioner himself

admitted that he functions "pretty well" when he takes his

medications. The evidence was insufficient to establish that

Petitioner was substantially limited in his ability to perform a

major life activity and therefore disabled in terms of the

relevant statutes. Thus, Petitioner's claim fails to meet the

first prong of the prima facie "reasonable accommodation" test

set forth in the cases applying 42 U.S.C. Subsection 3604(f)(3).

55. Even if the evid ence had been sufficient to

demonstrate that Petitioner suffered from a disability,

Petitioner did not present persuasive evidence that Sentinel or

its agents were aware of his disability, thus failing to meet

the second prong of the "reasonable accommodation" test. The

only evidence that even hinted of disclosure of any illness was

Petitioner's December 12, 1998, note discussing his medical

condition, which he attributed to lack of sleep due to noisy

neighbors. The evidence established that Ms. Dunton addressed

the problem of the noisy neighbors. Petitioner admitted that he

was reticent about discussing his condition, and

Mrs. Castellanos testified that she never discussed it outside

the family. Petitioner also admitted that he never requested

any accommodation related to his disability. Petitioner's

argument that his condition placed the burden on Sentinel to

ascertain its existence without being told is rejected.

56. Petitioner's claim also fails to meet the third and

fourth prongs of the "reasonable accommodation" test.

Petitioner failed to demonstrate through any persuasive evidence

how the accommodation of late rent payment was necessary to

afford him an equal opportunity to use and enjoy the housing in

question, or how his alleged handicap was even related to the

payment of rent in a timely fashion. Even accepting that

Petitioner was incapacitated during the time in question,

Petitioner offered no credible explanation for why his wife

could not have assumed the responsibility for paying the rent on

time. Finally, Sentinel cannot be held to have denied

Petitioner an accommodation that was never requested in terms of

Petitioner's alleged handicap. Petitioner merely told

Sentinel's representatives that he had a cash flow problem that

necessitated paying his rent late on a regular basis, and

Sentinel denied his request to do so, in keeping with its policy

and in accordance with the express terms of the lease agreement.

57. Petitioner has also failed to prove his "retaliation"

claim, as he has not satisfied his burden to prove that

Sentinel’s actions were motivated by considerations prohibited

by the statute. Petitioner failed to demonstrate that Sentinel

was even aware that a Housing Discrimination complaint was

filed. Both Ms. Stottlemyre and Ms. Dunton credibly testified

that they had no knowledge of any HUD Complaint at the time of

the eviction. No contemporaneous HUD Complaint was produced in

evidence. The testimony and evidence indicate that no notice of

any HUD action was provided to Sentinel prior to the April 19,

1999, eviction proceeding. Further, the only notice provided to

Sentinel prior to Petitioner's physical removal on April 27,

1999, from Egret’s Landing was a copy of an envelope postmarked

April 20, 1999, one day after the judgment of eviction and

nearly a month after the eviction proceedings were initiated by

Sentinel.

58. Even if it were granted that Sentinel was notified of

the HUD Complaint prior to the eviction, Petitioner failed to

produce any persuasive evidence that Sentinel acted improperly.

The evidence established that after the entry of judgment in

favor of Sentinel, the Clerk of the Court issued a Writ of

Possession to the Sheriff and the Sheriff’s Office properly

posted the Writ. The Writ was posted at Petitioner's apartment

on April 23, 1999, and the landlord could have legally removed

Petitioner and his family on April 24, 1999. Sentinel waited

until April 27, 1999, before actually executing the Writ of

Possession and removing Petitioner's property from the

apartment.

59. Section 83.62, Florida Statutes, provides:

(1 ) In an action for possession, after

entry of judgment in favor of the landlord,

the clerk shall issue a writ to the sheriff

describing the premises and commanding the

sheriff to put the landlord in possession

after 24 hours' notice conspicuously posted

on the premises.

(2 ) At the time the sheriff executes the

writ of possession or at any time

thereafter, the landlord or the landlord's

agent may remove any personal property found

on the premises to or near the property

line. Subsequent to executing the writ of

possession, the landlord may request the

sheriff to stand by to keep the peace while

the landlord changes the locks and removes

the personal property from the premises.

When such a request is made, the sheriff may

charge a reasonable hourly rate, and the

person requesting the sheriff to stand by to

keep the peace shall be responsible for

paying the reasonable hourly rate set by the

sheriff. Neither the sheriff nor the

landlord or the landlord's agent shall be

liable to the tenant or any other party for

the loss, destruction, or damage to the

property after it has been removed.

(Emphasis added)

60. Section 83.64, Florida Statutes, provides:

(1 ) It is unlawful for a landlord to

discriminatorily increase a tenant's rent or

decrease services to a tenant, or to bring

or threaten to bring an action for

possession or other civil action, primarily

because the landlord is retaliating against

the tenant. In order for the tenant to

raise the defense of retaliatory conduct,

the tenant must have acted in good faith.

Examples of conduct for which the landlord

may not retaliate include, but are not

limited to, situations where:

(a ) The tenant has complained to a

governmental agency charged with

responsibility for enforcement of a

building, housing, or health code of a

suspected violation applicable to the

premises;

(b ) The tenant has organized, encouraged,

or participated in a tenants' organization;

or

(c ) The tenant has complained to the

landlord pursuant to s. 83.56(1).

(2 ) Evidence of retaliatory conduct may

be raised by the tenant as a defense in any

action brought against him or her for

possession.

(3 ) In any event, this section does not

apply if the landlord proves that the

eviction is for good cause. Examples of

good cause include, but are not limited to,

good faith actions for nonpayment of rent ,

violation of the rental agreement or of

reasonable rules, or violation of the terms

of this chapter.

(4) "Discrimination" under this section

means that a tenant is being treated

differently as to the rent charged, the

services rendered, or the action being taken

by the landlord, which shall be a

prerequisite to a finding of retaliatory

conduct. (Emphasis added)

61. Pursuant to Subsection 83.62(2), Florida Statutes,

Sentinel was not liable for any loss that occurred after

Petitioner's property was removed. Further, pursuant to

Subsection 83.64(3), Florida Statutes, Sentinel’s action is

protected from a retaliation claim because eviction for

nonpayment of rent is statutorily identified as an example of a

"good cause" eviction.

62. Finally, because Petitioner failed to establish that

Sentinel knew of any HUD complaint, Petitioner could not prove

that Sentinel carried out the eviction "because of" the

protected activity, i.e., the filing of a HUD complaint.

Without evidence of a causal connection or nexus, Petitioner's

retaliation claim fails.

RECOMMENDATION

Upon the foregoing Findings of Fact and Conclusions of Law,

it is recommended that the Florida Commission on Human Relations

enter a final order dismissing Petitioner's Complaint and

Petition for Relief.

DONE AND ENTERED this 28th day of August, 2001, in

Tallahassee, Leon County, Florida.

___________________________________

LAWRENCE P. STEVENSON

Administrative Law Judge

Division of Administrative Hearings

The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-3060

(850) 488- 9675 SUNCOM 278-9675

Fax Filing [phone]

www.doah.state.fl.us

Filed with the Clerk of the

Division of Administrative Hearings

this 28th day of August, 2001.

ENDNOTE

1/ Though Donna B. Castellanos is named as a Petitioner in this

case, the alleged disability is solely that of Gerald

Castellanos. The term "Petitioner" employed throughout this

Recommended Order references Gerald Castellanos.

COPIES FURNISHED :

John W. Bencivenga, Esquire

Thompson, Sizemore & Gonzalez

109 North Brush Street, Suite 200

Tampa, Florida 33601

Gerald Castellanos

Donna Castellanos

1150 Dartford Drive

Tarpon Springs, Florida 34688

Azizi M. Dixon, Agency Clerk

Florida Commission on Human Relations

325 John Knox Road

Building F, Suite 240

Tallahassee, Florida 32303-4149

Dana A. Baird, General Counsel

Florida Commission on Human Relations

325 John Knox Road

Building F, Suite 240

Tallahassee, Florida 32303-4149

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.