02-003070
Glenn E. Whitener vs.
Loutitt Manor
Status: Closed
Recommended Order on Friday, October 18, 2002.
Recommended Order on Friday, October 18, 2002.
1STATE OF FLORIDA
4DIVISION OF ADMINISTRATIVE HEARINGS
8GLENN E. WHITENER, )
12)
13Petitioner, )
15)
16vs. ) Case No. 02 - 3070
23)
24LOUTITT MANOR, )
27)
28Respondent. )
30)
31RECOMMENDED ORDER
33Administrative Law Judge Don W. Davis of the Division of
43Administrative Hearings held a formal hearing in this cause in
53Daytona Beach, Florida, on September 24, 2002.
60APPEARANCES
61The following appearances were entered:
66For Petitioner: Glenn E. Whitener, pro se
73229 South Ri dgewood Avenue, Unit 316
80Daytona Beach, Florida 32114
84For Respondent: Robert Robins, Esquire
89Post Office Box 1649
93Daytona Beach, Florida 32114
97STATEMENT OF THE ISSUE
101The issue for determination is whether Petitioner has been
110subj ected to an unlawful housing practice in violation of Section
121760.23, Florida Statutes.
124PRELIMINARY STATEMENT
126On June 24, 2002, the Florida Commission on Human Relations
136(FCHR) issued a ruling of Determination of no reasonable cause
146with regard to Gle nn Whitener's (Petitioner) complaint of
155commission of an unlawful housing practice by Loutitt Manor Inc.,
165(Respondent).
166On July 26, 2002, Petitioner requested a formal
174administrative hearing from FCHR following that agency's
181determination of no reasonable cause to believe that illegal
190discrimination had occurred.
193Subsequently, on August 1, 2002, the case was forwarded to
203the Division of Administrative Hearings (DOAH) for formal
211proceedings.
212During the final hearing, Petitioner presented one composite
220e xhibit and the testimony of one witness, himself. Respondent
230presented the testimony of one witness. No transcript of the
240proceedings was provided.
243The parties filed Proposed Recommended Orders which have been
252reviewed and considered in the preparatio n of this Recommended
262Order.
263FINDINGS OF FACT
2661. At all times pertinent to these matters, Respondent
275operated an apartment building, Loutitt Manor, encompassing 177
283apartments. The facility caters exclusively to elderly tenants.
2912. On August 3, 2001, Petitioner filed a Charge of
301Discrimination with FCHR alleging that Respondent discriminated
308against Petitioner in violation of the Florida Fair Housing Act,
318Part II, Chapter 760, Florida Statutes, and appropriate federal
327regulation. Allegedly, the discri mination was based on
335Respondent's failure to make reasonable accommodation for
342Petitioner's handicap.
3443. Following FCHR's Determination of no reasonable cause,
352dated June 24, 2002, Petitioner filed a Petition for Relief on
363July 26, 2002. The case was su bsequently transferred to DOAH.
3744. The testimony of Respondent's facility manager
381establishes that there are only 100 parking spaces for the 177
392apartments in the building. The 100 parking spaces are assigned
402to specific tenants who are expected to park in their assigned
413space. Petitioner has an assigned space.
4195. A priority list is maintained for persons who need to
430park closer to the building. Respondent's rules require that
439anyone desiring to have their name placed on the list for such
451accommodat ion must first provide a written request to
460Respondent's office. Secondly, if the need for closer parking
469is a personal disability, then the name and address of a third
481party professional must be provided and the tenant must sign
491appropriate documentation (medical releases, etc.) to permit
498Respondent to obtain the medical information necessary to make a
508reasonable accommodation. Respondent does not place tenants on
516the priority parking list simply because they possess a
525handicapped parking placard issued by the State of Florida
534because 80 percent of the tenants in the facility possess such
545placards.
5466. Petitioner has never specifically complied with
553Respondent's rule requirements, maintaining that he cannot
560supply third - party documentation from medical personnel
568regarding his medical need for a closer parking space, because
578he is treated by the Veterans Administration (VA) and such
588personnel are constantly moving to other locations.
5957. By a note dated November 2, 2001, Petitioner did
605provide what he a lleges are medical records from the VA clinic
617that were used by him to obtain a handicapped parking permit.
628While Petitioner maintains that he suffers from an episodic
637arthritic condition that impedes his walking the 200 feet from
647the building to his park ing space, the records provided by him
659to Respondent details that Petitioner "should walk as much as
669possible" and that a disabled parking permit should be used only
680in "extreme circumstances."
6838. As established by Petitioner's testimony at final
691hearin g, he has not been the subject of illegal discrimination
702by Respondent.
7049. The parties concede that Respondent has one disabled
713parking space closer to the facility than tenant parking. That
723space is designated as a handicapped space and bears signage
733stating that the space may only be used by visitors to the
745facility. Petitioner initiated this proceeding after he was
753warned on one occasion that he must move his car from the space
766or the car would be towed. Petitioner told Respondent's
775representative he would only be in the space for 15 minutes or
787less.
788CONCLUSIONS OF LAW
79110. The Division of Administrative Hearings has jurisdiction
799over the parties to, and the subject matter of, these proceedings.
81011. Chapter 760, Florida Statutes, the "Florida Civ il
819Rights Act of 1992", provides security from discrimination based
828upon race, color, religion, sex, national origin, age, handicap,
837or marital status.
84012. Specifically, Section 760.23(2), Florida Statutes,
846provides:
847(2) It is unlawful to discriminate against
854any person in the terms, conditions, or
861privileges of sale or rental of a dwelling,
869or in the provision of services or
876facilities in connection therewith, because
881of race, color, national origin, sex,
887handicap, familial status, or religion.
89213. Th e burden of proof rests with Petitioner to show a
904prima facie case of discrimination. After such a showing by
914Petitioner, the burden shifts to Respondent to articulate a
923nondiscriminatory reason for the adverse action. If Respondent
931is successful and pro vides such a reason, the burden shifts
942again to Petitioner to show that the proffered reason for
952adverse action is pre - textual. School Board of Leon County v.
964Hargis , 400 So. 2d 103 (Fla. 1st DCA 1981). In the instant
976case, Petitioner has failed to make that initial showing with
986his own admission that he has not been discriminated against by
997Respondent on the basis of handicap.
100314. Further, Respondent has articulated a
1009nondiscriminatory reason for refusal to grant Petitioners
1016parking request. Petitione r has not complied with Respondent's
1025procedures requiring provision of third - party medical personnel
1034identity and medical releases necessary to obtaining required
1042documentation. Petitioner's own testimony that he has not been
1051the subject of discrimination by Respondent bolsters
1058Respondent's reason for failure to provide handicap
1065accommodation in this case.
106915. The controversy in this matter finds its antecedents
1078in a previous argument had between Petitioner and Respondent's
1087representative about Petition er's attempt to use the handicapped
1096space for 15 minutes. In sum, Petitioner has alleged
1105discrimination by Respondent in the absence of other
1113alternatives. Both parties are directed to Section
1120316.1955(4)(a), Florida Statutes, which provides:
1125(4)(a) A ve hicle that is transporting a
1133person who has a disability and that has
1141been granted a permit under s.320.0848(1)(a)
1147may be parked for a maximum of 30 minutes in
1157any parking space reserved for persons who
1164have disabilities.
1166Accordingly, although Petitione r has failed to offer any
1175credible evidence that he has been the subject of unlawful
1185discrimination, Respondent's position that no tenant may park
1193for any length of time in the one available handicapped parking
1204space appears to be incorrect.
1209RECOMMENDATIO NS
1211Based on the foregoing Findings of Fact and Conclusions of
1221Law it is
1224RECOMMENDED:
1225That a final order be entered dismissing the Petition for
1235Relief.
1236DONE AND ENTERED this 18th day of October, 2002, in
1246Tallahassee, Leon County, Florida.
1250_______________ ____________________
1252DON W. DAVIS
1255Administrative Law Judge
1258Division of Administrative Hearings
1262The DeSoto Building
12651230 Apalachee Parkway
1268Tallahassee, Florida 32399 - 3060
1273(850) 488 - 9675 SUNCOM 278 - 9675
1281Fax Filing (850) 921 - 6847
1287www.doah.state.fl.us
1288Filed with the Clerk of the
1294Division of Administrative Hearings
1298this 18th day of October, 2002.
1304COPIES FURNISHED :
1307Denise Crawford, Agency Clerk
1311Florida Commission on Human Relations
13162009 Apalachee Parkway, Suite 100
1321Tallahassee, Florida 32301
1324Robert Robins , Esquire
1327Post Office Box 1649
1331Daytona Beach, Florida 32115
1335Glenn E. Whitener
1338229 South Ridgewood Avenue, Unit 316
1344Daytona Beach, Florida 32114
1348Cecil Howard, General Counsel
1352Florida Commission on Human Relations
13572009 Apalachee Parkway, Suite 100
1362Tallah assee, Florida 32301
1366NOTICE OF RIGHT TO SUBMIT EXCEPTIONS
1372All parties have the right to submit written exceptions within
138215 days from the date of this Recommended Order. Any exceptions
1393to this Recommended Order should be filed with the agency that
1404wil l issue the final order in this case.
![](/images/view_pdf.png)
- Date
- Proceedings
-
PDF:
- Date: 02/24/2003
- Proceedings: Final Order Dismissing Petition for Relief from a Discriminatory Housing Practice filed.
-
PDF:
- Date: 10/25/2002
- Proceedings: Letter to Judge Davis from G. Whitener requesting that all documentation presented before the Commission be reviewed filed.
-
PDF:
- Date: 10/18/2002
- Proceedings: Recommended Order issued (hearing held September 24, 2002) CASE CLOSED.
-
PDF:
- Date: 10/18/2002
- Proceedings: Recommended Order cover letter identifying hearing record referred to the Agency sent out.
- Date: 09/24/2002
- Proceedings: CASE STATUS: Hearing Held; see case file for applicable time frames.
-
PDF:
- Date: 09/19/2002
- Proceedings: Letter to Judge Davis from G. Whitener enclosing documentation presented to the court as a Petitioner filed.
-
PDF:
- Date: 08/19/2002
- Proceedings: Request for the Motion to Dismiss Not be Allowed filed by G. Whitener.
-
PDF:
- Date: 08/15/2002
- Proceedings: Letter to American Court Reporting from D. Crawford confirming service of court reporter (filed via facsimile).
-
PDF:
- Date: 08/13/2002
- Proceedings: Notice of Hearing issued (hearing set for September 24, 2002; 10:00 a.m.; Daytona Beach, FL).
Case Information
- Judge:
- DON W. DAVIS
- Date Filed:
- 08/01/2002
- Date Assignment:
- 08/01/2002
- Last Docket Entry:
- 02/24/2003
- Location:
- Daytona Beach, Florida
- District:
- Northern
- Agency:
- ADOPTED IN TOTO
Counsels
-
Robert Robins, Esquire
Address of Record -
Glenn E Whitener
Address of Record