02-004581 Lourdes Guzman vs. Charles Harris Status: Closed Recommended Order on Thursday, May 1, 2003.

Summary: Petitioner failed to establish that Respondent unlawfully discriminated against her by refusing to rent her an apartment, not because of Respondent`s handicap or service dog, but because of her negative rental history.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

LOURDES GUZMAN, )

)

Petitioner, )

)

vs. ) Case No. 02 - 4581

)

CHARLES HARRIS, )

)

Respondent. )

)

RECOMMENDED ORDER

This case came before Administr ative Law Judge John G.

Van Laningham for final hearing by video teleconference on

March 17, 2003, at sites in Tallahassee and Miami, Florida.

APPEARANCES

For Petitioner: Lourdes Guzman, pro se

2843 Sheridan Avenue

Apartment 7

Miami Beach, Florida 33140

For Respondent: Mark Horn, Esquire

18800 Northwest 2nd Avenue, Suite 211

Miami, Florida 33169

STATEMENT OF THE ISSUE

The issue in this case is whether Respondent unlawfully

discr iminated against Petitioner by refusing to rent her an

apartment because she is legally blind and relies upon a service

dog to ambulate independently.

PRELIMINARY STATEMENT

In a Housing Discrimination Complaint apparently filed with

the U.S. Department o f Housing and Urban Development in or

around August 2002 and subsequently investigated by the Florida

Commission on Human Relations (“FCHR”), Petitioner Lourdes

Guzman, who is legally blind and relies upon a service dog for

assistance, alleged that Respond ent Charles Harris, who owns a

residential apartment building, had unlawfully discriminated

against her by refusing to rent her an available unit in his

rental property. The FCHR investigated Petitioner’s claim and,

on October 21, 2002, issued a notice se tting forth its

determination that reasonable cause did not exist to believe

that a discriminatory housing practice had occurred.

Thereafter, Petitioner filed a Petition for Relief, which the

FCHR transmitted to the Division of Administrative Hearings on

November 25, 2002.

At the final hearing on March 17, 2003, Petitioner

testified on her own behalf and called two additional witnesses:

Paul Karolyi and José Robert. Petitioner moved five exhibits,

identified as Petitioner’s Exhibits 1 through 5, into e vidence.

During his case, Respondent testified on his own behalf and

presented no other witnesses. Respondent also introduced one

exhibit, numbered 1, into evidence.

Neither party ordered the final hearing transcript, which

therefore was not filed. Each party timely submitted a proposed

recommended order, which the undersigned considered in preparing

this Recommended Order.

FINDINGS OF FACT

1. Petitioner Lourdes Guzman (“Guzman”) is legally blind

and relies upon a service dog (also referred to as a gu ide dog

or “seeing eye” dog) to ambulate independently.

2. Respondent Charles Harris (“Harris”) owns an eight - unit

apartment building (the “Property”) located in Bay Harbor

Islands, Florida. Harris, who is retired, holds the Property

for investment pu rposes and lives on the rental income it

generates.

3. In or around April of 2002, Harris placed an

advertisement in the newspaper seeking a tenant for one his

rental units. Guzman saw this ad, was interested, and made an

appointment to see the Property .

4. A short time later, Guzman and her live - in boyfriend

José Robert (“Robert”) met Harris and Paul Karolyi (“Karolyi”)

late one afternoon at the Property. (Karolyi is a tenant of

Harris’s who helps out at the Property; Guzman and Robert viewed

him a s the “building manager,” which was apparently a reasonable

perception.) During their conversation, the prospective renters

mentioned that they owned a dog. Upon hearing this, Harris

explained that he had just finished renovating the advertised

unit beca use the previous tenant’s dog had destroyed the rug and

caused other damage to the premises. Thus, Harris told Guzman

and Robert, he was not interested in renting this unit to

someone with a dog.

5. Robert then informed Harris that: (a) Guzman’s sight

was impaired; (b) the dog in question was a service dog; and (c)

Harris was legally obligated to let Guzman bring the dog into

the unit, should she become Harris’s tenant, as a reasonable

accommodation of her handicap. Once he understood the

situation, H arris acknowledged that a service dog was different

and stated that he would not refuse to rent the unit to someone

with a service dog. Accordingly, Harris gave Guzman and Robert

a rental application, which Guzman later completed and returned

to Harris.

6. After receiving Guzman’s application, Harris checked

her references and discovered that Guzman’s two most recent

landlords considered her to be a poor tenant. While Guzman

disputes the veracity of some of the information that was

provided to Harris, a t hearing she admitted that much of what he

learned was true. The following rental history is based on

Guzman’s admissions.

a. Town & Country Apartments . From October 2001

until January 24, 2002, Guzman lived at the Town & Country

Apartments in Bay Ha rbor Islands, Florida. Her landlord was

T & C Associates, Ltd. (“T & C”).

b. At least six times during this 16 - month period,

Guzman failed to timely pay her rent and was required to pay a

late fee. She also received at least five statutory “three - d ay

notices” warning that her failure to pay the overdue monthly

rent within 72 hours would trigger an eviction proceeding. 1

c. T & C sued to evict Guzman after she failed to pay

the rent due for December 2001. Consequently, when Guzman

vacated the To wn & Country Apartments on January 24, 2002, she

did so pursuant to a writ of possession. Guzman claims that she

chose to be evicted as an expedient means of breaking her lease

with T & C.

d. The Sahara . After being evicted from the Town &

Country Apa rtments, Guzman moved into a unit at the “Sahara” ——

which Guzman described at hearing as a “motel” —— pursuant to a

short - term lease. Guzman’s landlord at the Sahara was Allen L.

Kaul (“Kaul”).

e. Guzman lived at the Sahara for about two months. 2

Guzman had some sort of dispute with Kaul, and when she moved

out of the Sahara she took the keys to the unit she was vacating

and the remote control device that opened a gate to the

premises; these items were never returned to Kaul.

7. These facts convinced Ha rris that Guzman was not an

acceptable risk. He notified Guzman that he would not rent to

her due to her “poor credit history.”

Ultimate Factual Determinations

8. Harris rejected Guzman’s rental application, not

because of her handicap or service dog, b ut because he

discovered, through a reasonable process of checking references,

that Guzman had recently been evicted from one apartment and

vacated another under suspicious (or at least questionable)

circumstances, taking with her some personal property of the

landlord’s that she never returned.

9. There is no credible, competent evidence that Harris

rented his apartments to non - handicapped persons having rental

histories similar to Guzman’s. Nor does the evidence support a

finding that Harris invoked Guzman’s negative rental history

(the material aspects of which were undisputed) as a pretext for

discrimination.

10. In short, Harris did not discriminate unlawfully

against Guzman; rather, he rejected her rental application for a

legitimate, nondiscr iminatory reason.

CONCLUSIONS OF LAW

11. Under Florida’s Fair Housing Act (“Act”), Sections

760.20 through 760.37, Florida Statutes, it is unlawful to

discriminate in the sale or rental of housing. Among other

prohibited practices:

(1) It is unlawful to refuse to sell or

rent after the making of a bona fide offer,

to refuse to negotiate for the sale or

rental of, or otherwise to make unavailable

or deny a dwelling to any person because of

race, color, national origin, sex, handicap,

familial status, or religion.

* * *

(7) It is unlawful to discriminate in the

sale or rental of, or to otherwise make

unavailable or deny, a dwelling to any buyer

or renter 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.

Section 760.23(1), (7), Florida Statutes.

12. For purposes of subsection (7) above, the term

“discrimination” includes:

(a) A refusal to permit, at the expense of

the handicapped person, reasonable

modifications of existing premises occupied

or to be occupied by such person if such

modifications may be necessary to afford

such person full enjoyment of the premises;

or

(b) A r efusal 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.

Section 760.23(9), Florida Statutes.

13. In the instant case, Guzman has alleged, in effect,

that Harris discriminated against her by declining to rent to

her rather than making a reasonable accommodation with respect

to her service dog.

14. In cases involving a claim of rental housing

discrimination on the basis of handicap, such as this one, the

complainant has the burden of proving a prima facie case of

discrimination by a preponderance of the evidence. A prima

facie showing of rental housing discrimination can be made by

establishing that the complainant applied to rent an available

unit for which he or she was qualified, the application was

rejected, and, at the time of such rejection, the complainant

was a member of a class protected by the Act. See Soules v.

U.S. Dept. of Housing and Urban Development , 967 F.2d 817, 822

(2d Cir. 1992). 3 Failure to establish a prima facie case of

discrimination ends the inquiry. See Ratliff v. State , 666 So.

2d 1008, 1012 n.6 (Fla. 1st DCA), aff’d , 679 So. 2d 1183

(1996)( citing Arnold v. Burger Queen Systems , 509 So. 2d 958

(Fla. 2d DCA 1987)).

15. If, however, the complainant sufficiently establishes

a prima facie case, the burden then shifts to the respondent to

articulate some legitimate, nondiscriminatory reason for its

action. If the respondent satisfies this burden, then the

complainant must establish by a preponderance of the evidence

that the reason asserted by the respondent is, in fact, merely a

pretext for discrimination. See Massaro v. Mainlands Section 1

& 2 Civic Ass’n, Inc. , 3 F.3d 1472, 1476 n.6 (11 th Cir. 1993),

cert. denied , 513 U.S. 808, 115 S.Ct. 56, 130 L.Ed.2d 15

(1994)(“Fair housing discrimination cases are subject to the

three - part test articulated in McDonnell Douglas Corp. v. Green ,

411 U.S. 792, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973).”);

Sec retary, U.S. Dept. of Housing and Urban Development, on

Behalf of Herron v. Blackwell , 908 F.2d 864, 870 (11th Cir.

1990)(“We agree with the ALJ that the three - part burden of proof

test developed in McDonnell Douglas [for claims brought under

Title VII of the Civil Rights Act] governs in this case

[involving a claim of discrimination in violation of the federal

Fair Housing Act].”).

16. In this case, Guzman failed to make a prima facie

showing of discrimination. Although she is handicapped and thus

prote cted by the Act, and although Harris rejected her

application to rent an available unit, Guzman’s own testimony

established that she was a risky tenant who, in the recent past,

had been evicted from one apartment for nonpayment of rent and

vacated another on less - than - friendly terms, taking with her

some of the landlord’s personal property. Thus, she was not

qualified to rent from Harris under the latter’s objectively

reasonable criteria.

17. But even if Harris had made a prima facie showing of

discrimin ation, Harris satisfied his burden to articulate a

legitimate, nondiscriminatory reason for rejecting Guzman’s

application, namely, her spotty rental history. Guzman failed

to present persuasive evidence that this stated ground for

refusing to rent to her was merely a pretext for discrimination.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of

Law, it is RECOMMENDED that the FCHR enter a final order

dismissing Guzman’s Petition for Relief.

DONE AND ENTERED this 1st day of May, 20 03, in Tallahassee,

Leon County, Florida.

___________________________________

JOHN G. VAN LANINGHAM

Administrative Law Judge

Division of Administrative Hearings

The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399 - 3060

(850) 488 - 9675 S UNCOM 278 - 9675

Fax Filing (850) 921 - 6847

www.doah.state.fl.us

Filed with the Clerk of the

Division of Administrative Hearings

this 1st day of May, 2003.

ENDNOTES

1 / Notwithstanding Guzman’s record of poor compliance with th e

rental obligation, however, T & C had renewed her lease in

October 2001 for an additional 12 months.

2 / Her daughter stayed there a bit longer, although the

circumstances surrounding this arrangement are unclear.

3 / Alternatively, the complainant’s b urden may be satisfied with

direct evidence of discriminatory intent. See Trans World

Airlines, Inc. v. Thurston , 469 U.S. 111, 121, 105 S.Ct. 613,

621, 83 L.Ed.2d 523 (1985)(“[T]he McDonnell Douglas test is

inapplicable where the plaintiff presents direc t evidence of

discrimination” inasmuch as “[t]he shifting burdens of proof set

forth in McDonnell Douglas are designed to assure that the

‘plaintiff [has] his day in court despite the unavailability of

direct evidence.’”).

COPIES FURNISHED :

Lourdes Guzm an

2843 Sheridan Avenue

Apartment 7

Miami Beach, Florida 33140

Mark Horn, Esquire

18800 Northwest 2nd Avenue, Suite 211

Miami, Florida 33169

Denise Crawford, Agency Clerk

Florida Commission on Human Relations

2009 Apalachee Parkway, Suite 100

Talla hassee, Florida 32301

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 within

15 days from the date of this R ecommended O rder. Any exceptions

to this R ecommended O rder should be filed with the agency that

will issue the F inal O rder in this case.