03-001523 Dona M. Burgess vs. Lemay Building Company, D/B/A Ridgewood Mobile Home Park Status: Closed Recommended Order on Tuesday, July 29, 2003.

Summary: Petitioner failed to establish disability existed to warrant necessity for a care-giver.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DONA M. BURGESS, )

)

Petitioner, )

)

vs. ) Case No. 03 - 1523

)

LEMAY BUILDING COMPANY, d/b/a )

RIDGEWOOD MOBILE HOME PARK, )

)

Respondent. )

)

RECOM MENDED ORDER

On June 10, 2003, a formal administrative hearing in this

case was held in Sarasota, Florida, before William F.

Quattlebaum, Administrative Law Judge, Division of

Administrative Hearings.

APPEARANCES

For Petitioner: Elizabeth M. Boyle, Es quire

Gulfcoast Legal Services, Inc.

1750 17th Street, Building 1

Sarasota, Florida 34234

For Respondent: Kimberly P. Walker, Esquire

Kevin Bruning, Esquire

Willi ams, Parker, Harrison,

Dietz & Getzen

200 South Orange Avenue

Sarasota, Florida 34236 - 6802

STATEMENT OF THE ISSUE

The issue in the case is whether the Petitioner has been

the subject of a discrimin atory housing practice by the

Respondent through the alleged failure of the Respondent to

provide a reasonable accommodation for a disability.

PRELIMINARY STATEMENT

By Complaint dated February 15, 2002, and filed with the

Florida Commission on Human Rela tions (FCHR), Dona M. Burgess

(Petitioner) alleged that she was disabled and that the Lemay

Building Company d/b/a Ridgewood Mobile Home Park (Respondent)

had committed a discriminatory housing practice. Specifically,

the Petitioner alleges that the Respo ndent refuses to permit a

caregiver under the age of 55 (the Petitioner's son) to reside

with the Petitioner in her mobile home.

The Respondent operates an age - restricted mobile home park

where residents (with certain exceptions) are aged 55 and older.

T he Respondent asserts that the Petitioner is not disabled, and

that even if she is, her son's behavior in the mobile home park

establishes that he is not an appropriate caregiver and should

be removed from the mobile home park.

By Determination of No Rea sonable Cause dated February 27,

2003, the FCHR dismissed the Petitioner's complaint. By

Petition for Relief, the Petitioner requested a formal

administrative hearing. The FCHR forwarded the request to the

Division of Administrative Hearings, which sched uled and

conducted the proceeding.

At the hearing the Petitioner presented the deposition

testimony of two witnesses. The Respondent presented the

deposition testimony of two witnesses and the live testimony of

three witnesses. Joint Exhibits numbered 1 through 14 were

admitted into evidence. No transcript of the hearing was filed.

Both parties filed Proposed Recommended Orders.

FINDINGS OF FACT

1. At all times material to the case, the Respondent

operated an age - restricted mobile home park in Sa rasota,

Florida. With limited exceptions, residents of the mobile home

park are 55 years of age and older.

2. In September 2000, the Petitioner, a woman over 55

years of age, purchased a mobile home located within the

Ridgewood Mobile Home Park.

3. Th e mobile home was purchased through a real estate

broker. The mobile home park apparently identifies itself

through signage as a community for persons 55 years of age and

older. Prior to the purchase the Petitioner had no

communication with the Responden t and made no inquiry of the

Respondent as to whether her son, who is under 55 years of age,

would be allowed to live in the mobile home park.

4. Within a few days of the purchase, the Petitioner was

advised that residence in the mobile home park was li mited, with

certain exceptions, to persons 55 years of age and older. The

Respondent advised the Petitioner that her son, who is under 55

years of age, could remain with her only for a period of up to

two months to help her "settle in."

5. By lease appli cation dated October 1, 2000, the

Petitioner advised the Respondent that her son would remain with

her for a period of two months.

6. In November 2000, after the two months had passed, the

manager of the mobile home park (Mr. Cobb) informed the

Responde nt that her son would have to leave the residence. At

that time, the Petitioner's son asserted that he was his

mother's full - time, live - in caregiver. Prior to this point, the

Petitioner had not indicated to the Respondent that she suffered

from a handica p or required the services of a full - time, live - in

caregiver

7. The evidence fails to establish that, either at the

time of the Petitioner's initial residence at the Respondent's

mobile home park or by November 2000, the Petitioner suffered

from a handica p or from any condition that substantially limited

any major life activity, or that the Petitioner required the

assistance of a full - time, live - in caregiver.

8. At the time the Petitioner moved into the Respondent's

mobile home park, the Petitioner was able to accomplish all

major life activities. Although diabetic, the Petitioner was

able to walk, drive, and shop for food or other necessities.

Her son assisted in house cleaning and in other routine

activities, but there is no credible evidence that, p rior to

August 2002, such assistance was required for performing major

life activities.

9. In August 2002, shortly after a medical procedure on

the Petitioner's carotid artery, the Petitioner suffered a

stroke. She was hospitalized for a period of appr oximately ten

days and then transferred into a rehabilitation hospital for a

period of approximately six weeks.

10. Letters submitted from medical professionals involved

with the Petitioner's case at the time of her stroke suggest

that assistance was ne eded during the period of incapacity

related to the stroke.

11. There is no credible evidence that, subsequent to

rehabilitation, the Petitioner needed the services of a full -

time, live - in caregiver. After rehabilitation, the Petitioner

recovered from the stroke sufficiently to regain her ability to

perform major life activities, including driving an automobile.

A subsequent automobile accident wherein she ran down a stop

sign in the mobile home park after going shopping suggests that

driving at night may be inappropriate.

12. Following post - stroke rehabilitation, the Petitioner's

son continued to reside with his mother, to assist in household

duties and in assuring that the Petitioner followed a medication

regimen, but the evidence fails to establis h that she currently

requires a full - time, live - in caregiver.

13. At the time of the hearing, neither the Petitioner nor

her son was residing in the Respondent's mobile home park.

14. The evidence establishes that disabled or handicapped

persons in the mobile home park who require full - time, live - in

caregivers are accommodated without regard to the age of the

caregiver or to the mobile home park's age - related restrictions.

CONCLUSIONS OF LAW

15. The Division of Administrative Hearings has

jurisdictio n over the parties to and subject matter of this

proceeding. Section 120.57(1), Florida Statutes.

16. In relevant part, Section 760.23, Florida Statutes,

provides as follows:

760.23 Discrimination in the sale or rental

of housing and other prohibited p ractices. —

* * *

(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;

(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.

(9) For purposes of subsections (7) and (8),

discrim ination includes:

* * *

(b) A refusal 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.

17. The Petitioner asserts that the Respondent has

discriminated against the Petitioner by failing to make a

reasonable accommodation to the age - restrictions at the

Respondent's mobile home park so that her son could reside in

the mobile home park.

18. To establish a prim a facie case of failure to make a

reasonable accommodation, the Petitioner must show: a) that she

suffers from a handicap; b) that the Respondent knew of the

handicap; c) that an accommodation of the handicap was necessary

to afford Petitioner an equal op portunity to use and enjoy the

housing in question; and d) that the Respondent refused to make

such an accommodation. See Schanz v. Village Apartments , 998

F.Supp. 784 (E.D. Mich. 1998). In this case, the Petitioner has

failed to establish a prima facie case of discrimination.

19. As set forth herein, the Petitioner has failed to

establish that she has a handicap as the term is defined by

statute. The relevant portion of Section 760.22(7)(a), Florida

Statutes, defines "handicap" to mean that "[a] pers on has a

physical or mental impairment which substantially limits one or

more major life activities, or he or she has a record of having,

or is regarded as having, such physical or mental impairment."

20. The evidence fails to establish that, other than

during the period of rehabilitation following her stroke, the

Petitioner suffers from a handicap or from an inability to

perform a major life activity. There is no credible evidence

that at the time of her initial residence in the mobile home

park, the P etitioner's diabetes resulted in any inability to

perform a major life activity.

21. The Respondent has asserted that even if the

Petitioner needed a caregiver, the behavior of the Petitioner's

son during his residence in the mobile home park is

inappropr iate and requires that he be removed from the mobile

home park. At the time of the hearing, an eviction case by the

Respondent against the Petitioner's son was pending in Sarasota

County Court.

22. The evidence fails to establish that the Petitioner's

son's behavior makes him an inappropriate caretaker for his

mother. Issues related to whether the Petitioner's son's

behavior warrants his eviction from the mobile home park for

violations of the mobile home park rules are a separate matter

being addresse d in the Respondent's eviction proceedings and are

outside the jurisdiction of this dispute.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of

Law, it is

RECOMMENDED that the Florida Commission on Human Relations

enter a Final Or der dismissing the complaint of Dona M. Burgess

against the Respondent.

DONE AND ENTERED this 29th day of July, 2003, in

Tallahassee, Leon County, Florida.

S

WILLIAM F. QUATTLEBAUM

Administrative Law Judge

Division of A dministrative 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 29th da y of July, 2003.

COPIES FURNISHED :

Elizabeth M. Boyle, Esquire

Gulfcoast Legal Services, Inc.

1750 17th Street, Building 1

Sarasota, Florida 34234

Denise Crawford, Agency Clerk

Florida Commission on Human Relations

2009 Apalachee Parkway, Suite 100

T allahassee, Florida 32301

Kimberly P. Walker, Esquire

Kevin Bruning, Esquire

Williams, Parker, Harrison,

Dietz & Getzen

200 South Orange Avenue

Sarasota, Florida 34236 - 6802

Cecil Howard, General Counsel

Florida Commission on Human Relations

2009 Ap alachee 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 Recommended Order. Any exceptions

to this Recommended Order should be filed with the agency that

will issue the Final Order in this case.