04-001888 Fornetha Judge Rizos vs. Point Vista Apartments Status: Closed Recommended Order on Wednesday, November 3, 2004.

Summary: Petitioner failed to make a prima facie showing that the refusal to renew the lease was motiviated by discrimination based upon race, gender, or disability.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

FORNETHA JUDGE RIZOS, )

)

Petitioner, )

)

vs. ) Case No. 04 - 1888

)

POINT VISTA APARTMENTS, )

)

Respondent. )

)

RECOMMENDED ORDER

Administrative Law Judge (ALJ) Daniel Manry conducted the

administrative hearing in this proceeding on behalf of the

Division of Administrative Hearings (DOAH), on October 8, 2004,

in Orlando, Florida.

APPEARANCES

For Petitioner: Fornetha Judge Rizos, pro se

5215 Limelight Circle, Apartment One

Orlando, Florida 32839

For Respondent: Cathy L. Lucrezi, Esquire

Law Offices of Heist, Weisse,

& Lucrezi, P.A.

1 661 Estero Boulevard, Suite 20

Post Office Box 2514

Fort Myers Beach, Florida 33932

STATEMENT OF THE ISSUE

The issue for determination in this proceeding is whether

Respondent discriminated against Petitioner o n the basis of her

race, sex, familial status, or association with handicapped

individuals in violation of Subsection 760.23(2), Florida

Statutes (2003), by refusing to renew Petitioner's lease when it

expired or by subjecting Petitioner to different treat ment than

other similarly situated tenants.

PRELIMINARY STATEMENT

On December 30, 2003, Petitioner filed a Complaint of

Discrimination with the Florida Commission on Human Relations

(Commission). The Commission investigated the matter and

determined there was no reasonable cause to determine that

Respondent discriminated against Petitioner. Petitioner timely

filed a Petition for Relief. On May 27, 2004, the Commission

referred the matter to DOAH to conduct an administrative

hearing.

On June 17, 2004, ALJ Fred L. Buckine scheduled the

administrative hearing for August 20, 2004. DOAH transferred

the case to the undersigned, and Petitioner requested a

continuance to allow her time to obtain counsel. The

undersigned granted the request and scheduled the administrative

hearing for October 8, 2004.

At the hearing, Petitioner repeatedly requested a

continuance to allow her additional time to obtain counsel. The

undersigned explained on the record that Petitioner had

approximately 120 days between the date the Commission referred

the matter to DOAH and the hearing date, including one

continuance, in which to obtain counsel. Moreover, Petitioner

had approximately 273 days to obtain counsel after she filed her

charge of discrimination on December 30, 2003.

Petitioner initially requested her second continuance

within five days of the date of the rescheduled hearing. By

rule, the standard for granting continuances within five days of

the hearing date is "extreme emergency" rather than "good

cause." An admin istrative agency, including DOAH, cannot

deviate from a valid existing rule, and time to obtain counsel

is not an extreme emergency.

At the hearing, Petitioner testified, called two other

witnesses, and submitted four exhibits for admission into

evidence . Respondent called three witnesses and submitted 12

exhibits for admission into evidence.

The identity of the witnesses and exhibits, and any rulings

regarding each, are reported in the record of the hearing.

Neither party requested a Transcript of th e record. Petitioner

and Respondent timely filed their respective proposed

recommended orders on October 12 and 14, 2003.

FINDINGS OF FACT

1. Petitioner is a member of a protected class.

Petitioner is a female whose race is African - American.

Petition er's household includes children who are under the age

of 18 and who are, or who are perceived to be, handicapped.

2. Respondent rents dwelling units to the public at 5455

Pointe Vista Circle, Orlando, Florida. The apartment community

is identified in the record as Pointe Vista Apartments (Pointe

Vista).

3. Petitioner applied to lease an apartment at Pointe

Vista on November 1, 2001. Respondent approved the application

and the parties entered into a written lease for a term of "one

year" beginning o n December 21, 2001, and ending on November 30,

2002. The parties subsequently entered into a renewal lease

covering a term from December 1, 2002, through

November 30, 2003.

4. Respondent performed various repairs and maintenance

jobs in Petitioner's a partment from sometime in March 2003,

through September 17, 2003. Petitioner requested most of the

repairs, but some of the jobs involved required maintenance.

Respondent made six repairs to the air - conditioning system.

5. Some of the repairs to t he air - conditioning system were

required because Petitioner, or members of her household, had

damaged the thermostat. The property manager notified

Petitioner in writing that Petitioner was not in compliance with

the lease because Petitioner failed to ope rate the air -

conditioning system properly and that a repeat violation within

12 months would be grounds for termination of the lease.

6. The property manager observed the apartment during one

of the repairs. On June 26, 2003, the property manager not ified

Petitioner in writing that Petitioner was not in compliance with

the lease because Petitioner failed to maintain the apartment in

accordance with the terms of the lease. In particular, doors

were "punched" out, wet newspaper was in the kitchen, the carpet

was damaged and "extremely" dirty, and the microwave was broken.

The notice stated that a repeat violation within 12 months would

be grounds for termination of the lease.

7. Orange County scheduled an inspection of Petitioner's

apartment on August 12, 2003, to determine if the apartment was

eligible for continued "Section 8 rental assistance."

Petitioner refused to allow the inspection, and Orange County

rescheduled the inspection for August 29, 2003.

8. Petitioner's apartment failed the inspe ction conducted

on August 29, 2003. In order to pass an inspection, Petitioner

needed to repair a living room window, stove burners, a garbage

disposal, and a loose door panel. Petitioner also needed to

eliminate roach infestation and improve housekeepin g. The

apartment passed a subsequent inspection conducted on

September 19, 2003.

9. Respondent notified Petitioner of Respondent's intent

not to renew the lease on October 23, 2003. The notice informed

Petitioner that she would need to vacate the apart ment by

November 30, 2003.

10. Petitioner remained in possession of the apartment

during December 2003, and paid no rent. The property manager

issued a "Three Day Notice to Pay Rent or Deliver Possession."

Petitioner returned the keys to the apartment i n early January

2004.

CONCLUSIONS OF LAW

11. DOAH has jurisdiction over the parties and subject

matter in this proceeding pursuant to Subsection 120.57(1),

Florida Statutes (2004). DOAH provided the parties with

adequate notice of the administrative h earing.

12. The burden of proof is on Petitioner to show by a

preponderance of the evidence that there is a prima facie case

of discrimination. § 760.34(5), Fla. Stat. (2003); Florida

Department of Transportation v. J.W.C. Company, Inc. , 396 So. 2d

778 ( Fla. 1st DCA 1981); Brown v. American Honda Motor Co. , 939

F.2d 946 (11th Cir. 1991). Petitioner must make a prima facie

showing that she is a member of a protected class; was subjected

to adverse action; was qualified to rent the apartment; and that

the apartment remained available for rent after Respondent

terminated the lease.

13. For reasons, stated in the Findings of Fact,

Petitioner failed to show she was qualified to rent the

apartment. Petitioner repeatedly failed to comply with the

terms of th e lease. Neither the lease nor any law created a

reasonable expectation that the tenancy would continue beyond

the expiration date of the lease.

14. Petitioner failed to show that she received disparate

treatment from the treatment of tenants in a non - pr otected

class. Petitioner did not demonstrate bias on the part of

Respondent or that Respondent's non - renewal of the lease was

motivated by Petitioner's race, gender, familial status, or

association with handicapped individuals. Robinson v. Twelve

Lofts Realty, Inc. , 610 F.3d 1032 (2d Cir. 1979).

15. Respondent articulated a legitimate, nondiscriminatory

reason for refusing to renew Petitioner's lease. Petitioner

failed to show that the reasons articulated by Respondent were a

pretext for discrimination .

RECOMMENDATION

Based on the foregoing Findings of Facts and Conclusions of

Law, it is

RECOMMENDED that the Commission enter a final order

determining that Respondent did not discriminate against

Petitioner when Respondent refused to renew Petitioner's l ease.

DONE AND ENTERED this 3rd day of November, 2004, in

Tallahassee, Leon County, Florida.

S

DANIEL MANRY

Administrative Law Judge

Division of Administrative Hearings

The DeSoto Building

1230 Apalachee Parkway

Tallah assee, 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 3rd day of November, 2004.

COPIES FURNISHED :

Denise Crawford, Agency Clerk

F lorida Commission on Human Relations

2009 Apalachee Parkway, Suite 100

Tallahassee, Florida 32301

Fornetha Judge Rizos

5215 Limelight Circle, Apartment One

Orlando, Florida 32839

Cathy L. Lucrezi, Esquire

Law Offices of Heist, Weisse, & Lucrezi, P.A.

1 661 Estero Boulevard, Suite 20

Post Office Box 2514

Fort Myers Beach, Florida 33932

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 Recommended Order. Any exceptions

to this Recommended Order should be filed with the agency that

will issue the Final Order in this case.