02-004807 Emil Nunez And Celestina Nunez vs. Les Montellier Apartments Status: Closed Recommended Order on Friday, September 26, 2003.

Summary: Petitioners failed to prove that Respondent unlawfully discriminated against them by refusing to rent a one-bedroom apartment to a family of three.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

EMIL NUNEZ AND CELESTINA NUNEZ, )

)

Petitioners, )

)

vs. ) Case No. 02 - 4807

)

LES MONTELLIER APARTMENTS, )

)

Respondent. )

)

RECOMMENDED ORDER

This case came before Administrative Law Judge John G.

Van Laningham for final hearing by video teleconference on

May 21, 2003, at sites in Tallahassee and Miami, Florida.

APPEARANCES

For Petitioners: Emil Nunez, pro se

Post Office Box 70024 2

Miami, Florida 33170

For Respondent: Christopher Barkas, Esquire

McFarlain & Cassedy, P.A.

305 South Gadsden Street

Post Office Box 2174

Tallahassee, Florida 32316 - 2174

STATEMENT OF THE IS SUE

The issue in this case is whether Respondent unlawfully

discriminated against Petitioners by refusing to rent them an

apartment on the basis of familial status.

PRELIMINARY STATEMENT

In a Housing Discrimination Complaint apparently filed with

the U .S. Department of Housing and Urban Development in or

around July 2002 and subsequently investigated by the Florida

Commission on Human Relations (“FCHR”), Petitioners Emil and

Celestina Nunez (Emil’s daughter) alleged that Carmen DeJesus

and Dan Goldman, as agents of Les Montellier Apartments, had

unlawfully discriminated against them on the basis of familial

status by refusing to rent a one - bedroom apartment to

Petitioners and Mrs. Nunez (Emil’s wife), the latter being an

unnamed cocomplainant. The FCHR investigated Petitioners’ claim

and, on September 3, 2002, issued a notice setting forth its

determination that reasonable cause did not exist to believe

that a discriminatory housing practice had occurred.

Thereafter, Petitioner filed a Petition for Reli ef against

Carmen DeJesus, Dan Goldman, and Les Montellier Apartments, 1

which the FCHR transmitted to the Division of Administrative

Hearings on December 12, 2002.

At the final hearing on May 21, 2003, Emil Nunez testified

as Petitioners’ sole wit ness and proffered no exhibits. In its

case, Respondent called Carmen DeJesus and Lawrence Sorkin to

testify. Respondent also offered several exhibits, but none was

received in evidence.

The final hearing transcript was originally filed on

July 25, 2003, but it was flawed. A revised (and improved)

transcript was filed on August 22, 2003. Thereafter, Respondent

timely submitted a Proposed Recommended Order. Petitioners did

not file any post - hearing papers.

Unless otherwise indicated, citations to the Florida

Statutes refer to the 2002 Florida Statutes.

FINDINGS OF FACT

The Material Historical Facts

1. In May 2002, Petitioner Emil Nunez (“Nunez”) saw an

advertisement in the newspaper announcing that a one - bedroom

apartment was available for rent a t a complex in Hialeah,

Florida known as Les Montellier Apartments. Nunez thought that

the apartment might be suitable for his wife and their daughter

Celestina, who was then four years old, so he called for

additional information and to make arrangements to see the

property.

2. On May 14, 2002, Nunez and his family visited Les

Montellier Apartments. There, they met Carmen DeJesus, the

property manager. Ms. DeJesus quickly learned that Nunez was

interested in renting a one - bedroom apartment for his fam ily of

three. Ms. DeJesus informed Nunez that the owners of Les

Montellier Apartments had established an occupancy policy of two

persons per bedroom, which was strictly enforced. Therefore,

she explained, Nunez and his family would not be allowed to rent

a one - bedroom apartment. They could, she said, rent a two -

bedroom apartment, but none was available at the time.

The Occupancy Policy

3. The occupancy policy for Les Montellier Apartments had

been made formal in December 1999, after the U.S. Departme nt of

Housing and Urban Development (“HUD”) adopted a policy on

occupancy standards that recognized, as presumptively

reasonable, a limit of two persons to a bedroom. Once this

policy was put into effect at Les Montellier Apartments, it was

followed witho ut exception.

4. As originally built, Les Montellier Apartments

comprised nothing but one - bedroom units. In the 1960s, however,

the property was renovated, and some two - bedroom units were

created, together with some studio apartments. As a result of

th e renovations, a greater number of residents could live in the

building, putting heavier demands on the waste disposal

facilities, plumbing, and other building systems. The occupancy

policy was established for the reasonable and nondiscriminatory

purpose of preventing overcrowding.

5. The undersigned is not persuaded that, more likely than

not, the occupancy policy at Les Montellier Apartments was

designed or used to exclude families with children or otherwise

to discriminate unlawfully. To the contra ry, as of May 2002,

many families with children resided at this property.

Ultimate Factual Determinations

6. The occupancy policy in effect at Les Montellier

Apartments in May 2002 was reasonable, legitimate, and

nondiscriminatory; the undersigned is not persuaded, and

therefore does not find, that the occupancy policy likely was

used as a pretext for unlawful discrimination against families

with children.

7. The undersigned is not persuaded by the greater weight

of the evidence, and therefore does not find, that the owners or

operators of Les Montellier Apartments, or any agents of either

group (which owners, operators, and agents will hereafter be

referred to collectively as the “Landlord”), unlawfully

discriminated against the Nunez family on the basi s of their

familial status or any other unlawful criterion.

CONCLUSIONS OF LAW

8. The Division of Administrative Hearings has personal

and subject matter jurisdiction in this proceeding pursuant to

Sections 120.569 and 120.57(1), Florida Statutes.

9. Un der 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 o f 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.

(2) It is unlawful to discrimin ate 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.

* * *

(4) It is unlawful to represent to any

person because of race, color, national

origin, sex, handicap, familial status , or

religion that any dwelling is not available

for inspection, sale, or rental when such

dwelling is in fact so available.

§ 760.23, F LA . S TAT . ( emphasis added).

10. Specific exceptions to the Act’s prohibitions include

the following:

(5) Nothing in ss. 760.20 - 760.37:

* * *

(b) Limits the applicability of any

reasonable local restriction regarding the

maximum number of occupants permitted to

occupy a dwelling.

§ 760.29(5)(b). It is not clear, however, that this exception

is applicable in this instance, because the term “local

restriction” might reasonably be construed to mean local

governmental restrictions o n occupancy, under which

interpretation the statutory exclusion in question would not

encompass private occupancy policies of the sort encountered

here. Because it is not necessary to construe Section

760.29(5)(b), Florida Statutes, to resolve the present dispute,

no opinion is expressed at this time regarding the reach of this

particular exclusion.

11. The undersigned considers instructive HUD’s policy on

occupancy standards, which was announced in December 1998, when

the federal agency adopted the gu idelines set forth in a

Memorandum of General Counsel Frank Keating to Regional Counsel

dated March 20, 1991. See Notice of Statement of Policy, 63

Fed. Reg. 70,982, 1998 WL 886476 (1998)(republication); 63 Fed.

Reg. 70,256, 1998 WL 878502 (1998)(original publication). In

relevant part, this policy provides as follows:

[ T]he Department believes that an occupancy

policy of two persons in a bedroom, as a

general rule, is reasonable under the Fair

Housing Act. The Department of Justice has

advised us that t his is the general policy

it has incorporated in consent decrees and

proposed orders, and such a general policy

also is consistent with the guidance

provided to housing providers in the [Public

Housing Occupancy Handbook]. However, the

reasonableness of a ny occupancy policy is

rebuttable[;] . . . the Department will

[not] determine compliance with the Fair

Housing Act based solely on the number of

people permitted in each bedroom.

* * *

Thus, in reviewing occupancy cases, HUD

will consider t he size and number of

bedrooms and other special circumstances.

The following principles and hypothetical

examples should assist you in determining

whether the size of the bedrooms or special

circumstances would make an occupancy policy

unreasonable.

Size of bedrooms and unit

C onsider two theoretical situations in

which a housing provider refused to permit a

family of five to rent a two - bedroom

dwelling based on a "two people per bedroom"

policy. In the first, the complainants are

a family of five w ho applied to rent an

apartment with two large bedrooms and

spacious living areas. In the second, the

complainants are a family of five who

applied to rent a mobile home space on which

they planned to live in a small two - bedroom

mobile home. Depending on the other facts,

issuance of a charge might be warranted in

the first situation, but not in the second.

The size of the bedrooms also can be a

factor suggesting that a determination of no

reasonable cause is appropriate. For

example, if a mobile ho me is advertised as a

"two - bedroom" home, but one bedroom is

extremely small, depending on all the facts,

it could be reasonable for the park manager

to limit occupancy of the home of two

people.

Age of children

T he following hypotheticals involving

two housing providers who refused to permit

three people to share a bedroom illustrate

this principle. In the first, the

complainants are two adult parents who

applied to rent a one - bedroom apartment with

their infant child, and both the bedroom and

the apartment were large. In the second,

the complainants are a family of two adult

parents and one teenager who applied to rent

a one - bedroom apartment. Depending on the

other facts, issuance of a charge might be

warranted in the first hypothetical, but not

in the second.

Configuration of unit

T he following imaginary situations

illustrate special circumstances involving

unit configuration. Two condominium

associations each reject a purchase by a

family of two adults and three children

based on a rule limiting sales to buyers who

satisfy a "two people per bedroom" occupancy

policy. The first association manages a

building in which the family of the five

sought to purchase a unit consisting of two

bedrooms plus a den or study. The second

manages a bui lding in which the family of

five sought to purchase a two - bedroom unit

which did not have a study or den.

Depending on the other facts, a charge might

be warranted in the first situation, but not

in the second.

Other physical limitations of housing

In addition to physical considerations

such as the size of each bedroom and the

overall size and configuration of the

dwelling, the Department will consider

limiting factors identified by housing

providers, such as the capacity of the

septic, sewer, or o ther building systems.

State and local law

If a dwelling is governed by State or

local governmental occupancy requirements,

and the housing provider's occupancy

policies reflect those requirements, HUD

would consider the governmental requirements

as a special circumstance tending to

indicate that the housing provider's

occupancy policies are reasonable.

Other relevant factors

Other relevant factors supporting a

reasonable cause recommendation based on the

conclusion that the occupancy policies are

pretextual would include evidence that the

housing provider has: (1) made

discriminatory statements; (2) adopted

discriminatory rules governing the use of

common facilities; (3) taken other steps to

discourage families with children from

living in its housing; or (4) enforced its

occupancy policies only against families

with children. For example, the fact that a

development was previously marketed as an

"adults only" development would militate in

favor of issuing a charge. This is an

especially stro ng factor if there is other

evidence suggesting that the occupancy

policies are a pretext for excluding

families with children.

An occupancy policy which limits the

number of children per unit is less likely

to be reasonable than one which limits the

number of people per unit.

Special circumstances also may be found

where the housing provider limits the total

number of dwellings he or she is willing to

rent to families with children. For

example, assume a landlord owns a building

of two - bedroom units, in which a policy of

four people per unit is reasonable. If the

landlord adopts a four person per unit

policy, but refuses to rent to a family of

two adults and two children because twenty

of the thirty units already are occupied by

families with children, a reasonable cause

recommendation would be warranted.

See 63 Fed. Reg. 70,256 - 57.

12. In cases involving a claim of rental housing

discrimination on the basis of familial status, such as this

one, the complainant has the burden of proving a pr ima 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

applicati on 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). 2 Failure to establish a prima

facie case of di scrimination ends the inquiry. See Ratliff v.

State , 666 So. 2d 1008, 1012 n.6 (Fla. 1st DCA), aff’d , 679 So.

2d 1183 (Fla. 1996)( citing Arnold v. Burger Queen Systems , 509

So. 2d 958 (Fla. 2d DCA 1987)). If, however, the complainant

sufficiently establi shes a prima facie case, the burden then

shifts to the respondent to articulate some legitimate,

nondiscriminatory reason for its action.

13. Once the respondent “responds to the [complainant]’s

proof by offering evidence of the reason for the [decisio n that

aggrieved the complainant], the fact finder must then decide

whether the [challenged decision] was discriminatory” without

regard to the rebuttable presumption of discrimination that

arises from a prima facie showing, which presumption drops from

th e case. U.S. Postal Service Bd. of Governors v. Aikens , 460

U.S. 711, 714 - 15, 103 S.Ct. 1478, 1481 - 82 (1983). That is to

say, where “the [respondent] has done everything that would be

required of him if the [complainant] had properly made out a

prima fac ie case, whether the [complainant] really did so is no

longer relevant.” Id. at 715, 103 S.Ct. at 1482.

14. If the respondent carries the burden of rebutting the

complainant’s prima facie case, then the complainant must

establish by a preponderance of th e 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 (11th 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).”); Secretary, U.S. Dept.

of Housing and Urban Development, on Behalf of He rron 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

dis crimination in violation of the federal Fair Housing Act].”).

15. In the present case, because the Landlord offered

evidence of legitimate, nondiscriminatory reasons for the

occupancy policy at issue, the evenhanded application of which

compelled the dec ision not to rent a one - bedroom apartment to

the Nunez family, it is not necessary to decide whether Nunez

actually made out a prima facie case of discrimination. The

undersigned has before him all the evidence he needs to

determine whether the Landlord i ntentionally discriminated

against the Nunez family. See Aikens , 460 U.S. at 715, 103

S.Ct. at 1482.

16. Under the HUD policy quoted at length above, which

policy the undersigned regards as persuasive authority, the

Landlord’s occupancy policy of two pe rsons to a bedroom, which

was designed to prevent overcrowding, is presumptively

reasonable. Thus, the Landlord satisfied its burden to

articulate a legitimate, nondiscriminatory reason for declining

to rent the Nunez family a one - bedroom apartment, that reason

being, to repeat, the fair and impartial enforcement of a

presumptively reasonable occupancy policy. Nunez, for his part,

failed to present persuasive evidence, such as, e.g. , evidence

concerning the size of the bedroom and living areas, the

config uration of the unit, or other relevant factors, which

might have demonstrated the un reasonableness of the Landlord’s

policy or otherwise established that the stated ground for

refusing to rent his family a one - bedroom apartment was merely a

pretext for dis crimination.

17. In short, then, for the reasons set forth in the

Findings of Fact, the undersigned trier of fact is not persuaded

by the greater weight of the evidence that the Landlord

intentionally discriminated against the Nunez family.

RECOMMEND ATION

Based on the foregoing Findings of Fact and Conclusions of

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

dismissing Nunez’s Petition for Relief.

DONE AND ENTERED this 26th day of September , 2003 , in

Tall ahassee, Leon County, Florida.

S

___________________________________

JOHN G. VAN LANINGHAM

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 26th day of September , 2003 .

ENDNOTES

1 / For reasons unknown, the FCHR named Les Montellier Apartments

as the only party respondent, and the Division of Administrative

Hearings, upon receiving the case, followed suit. Petitioners

never objected to this and hence the issue is deemed waived.

The record reveals that Les Montellier Apartments was a property

owned, at the time of the incident giving rise to this dispute,

by a partnership. (After the incident, but not as a result

thereof, the owners of Les Montellier Apartments sold the

property.) It is not clear that “Les Montellier Apartments” is

a jural entity capable of being sued. Nevertheless, because a

partner in the partnership that formerly owned Les Montellier

Apartments appeared with counsel and participated in this

proceeding on behalf of the responding party w ithout objection,

the undersigned concludes that any issue regarding the identity

of the proper party respondent was waived.

2 / Alternatively, the complainant’s burden may be satisfied with

direct evidence of discriminatory intent. See Trans World

Airli nes, 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 direct evidence of

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

forth in McDo nnell Douglas are designed to assure that the

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

direct evidence.’”).

COPIES FURNISHED :

Emil Nunez

Post Office Box 700242

Miami, Florida 33170

Christopher Barkas, Esquire

McFarlain & Cassedy, P.A.

305 South Gadsden Street

Post Office Box 2174

Tallahassee, Florida 32316 - 2174

Denise Crawford, Agency Clerk

Florida Commission on Human Relations

2009 Apalachee Parkway, Suite 100

Tal lahassee, 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 wit hin

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.