02-004051 Janice Ayers Petty vs. Terry Hammer, D/B/A Park Drive Apartments Status: Closed Recommended Order on Thursday, January 30, 2003.

Summary: Petitioner charged Respondent failed to provide handicapped parking space/reasonable accommodation; Petition for Relief dismissed; Respondent provided alternate, reasonable accommodation.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

JANICE AYERS PETTY, )

)

Petitioner, )

)

vs. ) Case No. 02 - 4051

)

TERRY HAMMER, d/b/a PARK DRIVE )

APARTMENTS, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, the Division of Administrative

Hearings, by its duly - designated Administrative Law Judge,

Jeff B. Clark, held a formal administrative hearing in this case

on December 18, 2002, in Viera, Florida.

APPEARANCES

For Petitioner: Janice A yers Petty, pro se

1337 South Patrick Drive

Satellite Beach, Florida 32937

For Respondent: Wayne L. Allen, Esquire

700 North Wickham Road

Suite 107

Melbourne, Florida 32935 - 8865

STATEMENT OF THE ISSUE

Whether Respondent, Terry Hammer d/b/a Park Drive

Apartments, violated the Fair Housing Act, Chapter 760.20 -

760.37, Florida Statutes, by failing to provide a handicapped

parking space for Petition er, Janice Ayers Petty.

PRELIMINARY STATEMENT

On February 6, 2002, Petitioner filed a Housing

Discrimination Complaint with the Florida Commission on Human

Relations alleging that Respondent had discriminated against her

by failing to make reasonable accom modations for her disability.

On September 15, 2002, a "Notice of Determination: No Cause" was

filed as a result of the Florida Commission on Human Relations'

investigation of the Housing Discrimination Complaint.

On October 15, 2002, Petitioner filed a P etition For Relief

with the Florida Commission on Human Relations essentially

alleging the same act of discrimination by Respondent. On

October 18, 2002, the Division of Administrative Hearings

received a Transmittal of Petition from the Florida Commissio n

on Human Relations forwarding the Petition For Relief requesting

the assignment of an Administrative Law Judge to conduct all

necessary proceedings required under the law.

On October 18, 2002, an Initial Order was directed to the

parties. On November 5, 2002, the case was scheduled for final

hearing on December 18, 2002, in Viera, Brevard County, Florida.

The final hearing was conducted as scheduled on December 18,

2002. Petitioner presented two witnesses: herself and her

husband, John E. Petty, Jr. N o exhibits were offered by

Petitioner. Respondent presented six witnesses: Terry Hammer,

Susan M. Heiland, Tina Butts, James Hammons, Ester Thurman, and

Karen Haxel. Respondent presented nine exhibits which were

received into evidence and marked Respond ent's Exhibits 1

through 9.

The proceedings were not transcribed. Respondent submitted

a Proposed Recommended Order.

FINDINGS OF FACT

1. Respondent, in her Proposed Recommended Order, concedes

that Petitioner is "a person with a disability." While there is

scant actual evidence to support the determination that

Petitioner meets the definition of "handicap" in Subsection

760.22(7)(a), Florida Statutes, Petitioner attended the final

hearing in a wheelchair and testified that her automobile

license plate in dicated that she was handicapped; it appears

that Petitioner does qualify as a definitional person who "has a

physical or mental impairment which substantially limits one or

more major life activities . . . ."

2. Respondent is the owner of a 30 - unit apart ment complex

in Indian Harbour Beach, Brevard County, Florida. The apartment

complex was built in 1963.

3. In late December 2000, Petitioner and her husband,

entered into a 12 - month lease with Respondent for a ground floor

apartment, unit number 24.

4. It is unclear whether Petitioner requested a disabled

parking place as an accommodation for her disability when she

entered into the lease or shortly thereafter. Petitioner

believed that a disabled parking place required a light blue

outline and a sign in dicating that the parking place was

reserved for disabled permit parking.

5. Respondent responded to Petitioner's request for

accommodation by notifying residents of the apartment complex

that the parking space immediately in front of Petitioner's unit

nu mber 24 was reserved for Petitioner. It is a measured 16 feet

from the front of the parking space to Petitioner's front door

and is the closest parking space to Petitioner's apartment.

6. The parking space immediately in front of Petitioner's

unit, while unpainted and without a sign, was generally

available for Petitioner.

CONCLUSIONS OF LAW

7. The Division of Administrative Hearings has

jurisdiction of the parties to and the subject of this

proceeding. Subsections 120.57(1) and 760.35(3)(b), Florida

St atutes.

8. Petitioner seeks relief pursuant to the provisions of

Sections 760.20 - 37, Florida Statutes, denominated as the "Fair

Housing Act" (hereinafter "the Act"). The Act is patterned

after 42 U.S.C. Section 12181 et seq . (Title III of the

Americans W ith Disabilities Act). Title III of the Americans

With Disabilities Act prohibits discrimination on the basis of

disability in public accommodations and services offered by

private entities and requires reasonable accommodations of

disabled individuals to allow them the benefits of employment,

governmental services and public accommodations. It is

appropriate to look to decisions decided in Federal courts

interpreting the Americans With Disabilities Act for guidance.

9. Subsection 760.23(8), Florida Stat utes, provides:

(8) 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; . . .

10. Subsection 760.23(9), Florida Statutes, provides:

(9) For purposes of subsections (7)

and (8), discrimination includes:

* * *

(b) A refusal to make reasonable

accommodations in rules, policies,

pra ctices, or services, when such

accommodations may be necessary to afford

such person equal opportunity to use and

enjoy a dwelling.

11. Pursuant to Subsection 760.34(5), Florida Statutes,

the burden of proof is on Petitioner to establish the

allegations supporting her claim of discrimination.

12. Petitioner has the burden of showing that a requested

accommodation is reasonable; this burden is one of production

and is not a heavy burden. It is enough for Petitioner to

suggest the existence of a plausible accommodation, the costs of

which, facially, do not clearly exceed its benefits. U.S.

Airways, Inc. v. Barnett , 122 S.Ct. 1516, 1523 (2002);

Borkowski v. Valley Central School District , 63 F.3d 131, 138

(2nd Cir. 1991). Petitioner, by suggesting that R espondent

establish a disabled parking place, painting it with the

familiar light - blue paint and installing a disabled parking

sign, has met the burden of proof and has made out a prima facie

case. She is disabled and has suggested a plausible

accommodati on.

13. Once Petitioner has established a prima facie case,

the burden of persuasion shifts to Respondent. Typically,

Respondent must prove that the suggested accommodation will

present an "undue burden" on Respondent. That is, that the

suggested accomm odation is too expensive or for some other

reason is impractical and, as such, presents an undue burden on

Respondent which exceeds the benefits of the accommodation.

14. Neither applicable statutes or case law has

established that Plaintiff can dictate t he specifics of

"reasonable accommodation." That is, while a disabled parking

place may be a reasonable accommodation, it is not the only

reasonable accommodation. In the instant case, Petitioner has

provided an alternative, reasonable accommodation.

15. The evidence clearly established that in response to

Petitioner's request for a specific parking place to accommodate

her disability, Respondent provided a parking place 16 feet from

her front door. This was the closest parking place to

Petitioner's apa rtment. It was also clearly demonstrated that

other residents of the apartment complex knew, as a result of

Respondent's efforts, that the particular parking place was

reserved for Petitioner as a result of her disability. Further,

notwithstanding the la ck of light - blue paint and a disabled

parking sign, the particular parking place was generally

available to Petitioner. Respondent demonstrated that a

reasonable accommodation was made to afford Petitioner the

opportunity to use and enjoy her apartment.

R ECOMMENDATION

Based of the foregoing Findings of Fact and Conclusions of

Law, it is

RECOMMENDED that Petitioner has failed to prove that

Respondent did not make reasonable accommodations for her

handicapped condition; Petitioner's Petition for Relief shoul d

be dismissed.

DONE AND ENTERED this 30th day of January, 2003, in

Tallahassee, Leon County, Florida.

___________________________________

JEFF B. CLARK

Administrative Law Judge

Division of Administrative Hearings

The DeSoto Building

1230 Apalachee Pa rkway

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 30th day of January, 2003.

COPIES FURNISHED :

Wayne L. Allen, Esq uire

700 North Wickham Road

Suite 107

Melbourne, Florida 32935 - 8865

Denise Crawford, Agency Clerk

Florida Commission on Human Relations

2009 Apalachee Parkway, Suite 100

Tallahassee, Florida 32301

Janice Ayers Petty

1337 South Patrick Drive

Satellite B each, Florida 32937

Cecil Howard, 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 with in

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.