02-003070 Glenn E. Whitener vs. Loutitt Manor Status: Closed Recommended Order on Friday, October 18, 2002.

Summary: Petitioner failed to prove that he has been the subject of an unlawful housing practice.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

GLENN E. WHITENER, )

)

Petitioner, )

)

vs. ) Case No. 02 - 3070

)

LOUTITT MANOR, )

)

Respondent. )

)

RECOMMENDED ORDER

Administrative Law Judge Don W. Davis of the Division of

Administrative Hearings held a formal hearing in this cause in

Daytona Beach, Florida, on September 24, 2002.

APPEARANCES

The following appearances were entered:

For Petitioner: Glenn E. Whitener, pro se

229 South Ri dgewood Avenue, Unit 316

Daytona Beach, Florida 32114

For Respondent: Robert Robins, Esquire

Post Office Box 1649

Daytona Beach, Florida 32114

STATEMENT OF THE ISSUE

The issue for determination is whether Petitioner has been

subj ected to an unlawful housing practice in violation of Section

760.23, Florida Statutes.

PRELIMINARY STATEMENT

On June 24, 2002, the Florida Commission on Human Relations

(FCHR) issued a ruling of Determination of no reasonable cause

with regard to Gle nn Whitener's (Petitioner) complaint of

commission of an unlawful housing practice by Loutitt Manor Inc.,

(Respondent).

On July 26, 2002, Petitioner requested a formal

administrative hearing from FCHR following that agency's

determination of no reasonable cause to believe that illegal

discrimination had occurred.

Subsequently, on August 1, 2002, the case was forwarded to

the Division of Administrative Hearings (DOAH) for formal

proceedings.

During the final hearing, Petitioner presented one composite

e xhibit and the testimony of one witness, himself. Respondent

presented the testimony of one witness. No transcript of the

proceedings was provided.

The parties filed Proposed Recommended Orders which have been

reviewed and considered in the preparatio n of this Recommended

Order.

FINDINGS OF FACT

1. At all times pertinent to these matters, Respondent

operated an apartment building, Loutitt Manor, encompassing 177

apartments. The facility caters exclusively to elderly tenants.

2. On August 3, 2001, Petitioner filed a Charge of

Discrimination with FCHR alleging that Respondent discriminated

against Petitioner in violation of the Florida Fair Housing Act,

Part II, Chapter 760, Florida Statutes, and appropriate federal

regulation. Allegedly, the discri mination was based on

Respondent's failure to make reasonable accommodation for

Petitioner's handicap.

3. Following FCHR's Determination of no reasonable cause,

dated June 24, 2002, Petitioner filed a Petition for Relief on

July 26, 2002. The case was su bsequently transferred to DOAH.

4. The testimony of Respondent's facility manager

establishes that there are only 100 parking spaces for the 177

apartments in the building. The 100 parking spaces are assigned

to specific tenants who are expected to park in their assigned

space. Petitioner has an assigned space.

5. A priority list is maintained for persons who need to

park closer to the building. Respondent's rules require that

anyone desiring to have their name placed on the list for such

accommodat ion must first provide a written request to

Respondent's office. Secondly, if the need for closer parking

is a personal disability, then the name and address of a third

party professional must be provided and the tenant must sign

appropriate documentation (medical releases, etc.) to permit

Respondent to obtain the medical information necessary to make a

reasonable accommodation. Respondent does not place tenants on

the priority parking list simply because they possess a

handicapped parking placard issued by the State of Florida

because 80 percent of the tenants in the facility possess such

placards.

6. Petitioner has never specifically complied with

Respondent's rule requirements, maintaining that he cannot

supply third - party documentation from medical personnel

regarding his medical need for a closer parking space, because

he is treated by the Veterans Administration (VA) and such

personnel are constantly moving to other locations.

7. By a note dated November 2, 2001, Petitioner did

provide what he a lleges are medical records from the VA clinic

that were used by him to obtain a handicapped parking permit.

While Petitioner maintains that he suffers from an episodic

arthritic condition that impedes his walking the 200 feet from

the building to his park ing space, the records provided by him

to Respondent details that Petitioner "should walk as much as

possible" and that a disabled parking permit should be used only

in "extreme circumstances."

8. As established by Petitioner's testimony at final

hearin g, he has not been the subject of illegal discrimination

by Respondent.

9. The parties concede that Respondent has one disabled

parking space closer to the facility than tenant parking. That

space is designated as a handicapped space and bears signage

stating that the space may only be used by visitors to the

facility. Petitioner initiated this proceeding after he was

warned on one occasion that he must move his car from the space

or the car would be towed. Petitioner told Respondent's

representative he would only be in the space for 15 minutes or

less.

CONCLUSIONS OF LAW

10. The Division of Administrative Hearings has jurisdiction

over the parties to, and the subject matter of, these proceedings.

11. Chapter 760, Florida Statutes, the "Florida Civ il

Rights Act of 1992", provides security from discrimination based

upon race, color, religion, sex, national origin, age, handicap,

or marital status.

12. Specifically, Section 760.23(2), Florida Statutes,

provides:

(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.

13. Th e burden of proof rests with Petitioner to show a

prima facie case of discrimination. After such a showing by

Petitioner, the burden shifts to Respondent to articulate a

nondiscriminatory reason for the adverse action. If Respondent

is successful and pro vides such a reason, the burden shifts

again to Petitioner to show that the proffered reason for

adverse action is pre - textual. School Board of Leon County v.

Hargis , 400 So. 2d 103 (Fla. 1st DCA 1981). In the instant

case, Petitioner has failed to make that initial showing with

his own admission that he has not been discriminated against by

Respondent on the basis of handicap.

14. Further, Respondent has articulated a

nondiscriminatory reason for refusal to grant Petitioner’s

parking request. Petitione r has not complied with Respondent's

procedures requiring provision of third - party medical personnel

identity and medical releases necessary to obtaining required

documentation. Petitioner's own testimony that he has not been

the subject of discrimination by Respondent bolsters

Respondent's reason for failure to provide handicap

accommodation in this case.

15. The controversy in this matter finds its antecedents

in a previous argument had between Petitioner and Respondent's

representative about Petition er's attempt to use the handicapped

space for 15 minutes. In sum, Petitioner has alleged

discrimination by Respondent in the absence of other

alternatives. Both parties are directed to Section

316.1955(4)(a), Florida Statutes, which provides:

(4)(a) A ve hicle that is transporting a

person who has a disability and that has

been granted a permit under s.320.0848(1)(a)

may be parked for a maximum of 30 minutes in

any parking space reserved for persons who

have disabilities.

Accordingly, although Petitione r has failed to offer any

credible evidence that he has been the subject of unlawful

discrimination, Respondent's position that no tenant may park

for any length of time in the one available handicapped parking

space appears to be incorrect.

RECOMMENDATIO NS

Based on the foregoing Findings of Fact and Conclusions of

Law it is

RECOMMENDED:

That a final order be entered dismissing the Petition for

Relief.

DONE AND ENTERED this 18th day of October, 2002, in

Tallahassee, Leon County, Florida.

_______________ ____________________

DON W. DAVIS

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 (850) 921 - 6847

www.doah.state.fl.us

Filed with the Clerk of the

Division of Administrative Hearings

this 18th day of October, 2002.

COPIES FURNISHED :

Denise Crawford, Agency Clerk

Florida Commission on Human Relations

2009 Apalachee Parkway, Suite 100

Tallahassee, Florida 32301

Robert Robins , Esquire

Post Office Box 1649

Daytona Beach, Florida 32115

Glenn E. Whitener

229 South Ridgewood Avenue, Unit 316

Daytona Beach, Florida 32114

Cecil Howard, General Counsel

Florida Commission on Human Relations

2009 Apalachee Parkway, Suite 100

Tallah assee, 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

wil l issue the final order in this case.