05-000091 Maryhelen Meacham vs. Delores Maddox, Manager, Kings Manor Estates And Uniprop Corporation Status: Closed Recommended Order on Thursday, May 5, 2005.

Summary: Petitioner failed to prove that she was a victim of discrimination based on her handicap or her Native American heritage or that she was retalitated against for seeking and gaining permission to build a wheelchair ramp on her lot.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

MARYHELEN MEACHAM , )

)

Petitioner, )

)

vs. ) Case No. 05 - 0091

)

DELORES MADDOX, MANAGER, KINGS )

MANOR ESTATES, AND UNIPROP )

CORPORATION, )

)

Respondents. )

_________________________________)

RECOMMENDED ORDER

Pursuant to notice, a hearing was conducted in this case

pursuant to Sections 120.569 and 120.57(1), Florida Statutes, on

March 28, 2005, by video teleconference at sit es in Fort

Lauderdale and Tallahassee, Florida, before Stuart M. Lerner, a

duly - designated Administrative Law Judge of the Division of

Administrative Hearings.

APPEARANCES

For Petitioner: Maryhelen Meacham , pro se

12620 Southwest 6 th Street, Lot 78

Fort Lauderdale, Florida 33325

For Respondents: Ernest A. Kollra, Esquire

1995 East Oakland Park Boulevard

Suite 300

Fort Lauderdale, Florida 3330 6

STATEMENT OF THE ISSUE

Whether the discriminatory housing practices alleged in

Petitioner's amended housing discrimination complaint were

committed by Respondents and, if so, what relief should the

Florida Commission on Human Relations (Commission) pr ovide

Petitioner.

PRELIMINARY STATEMENT

On September 3, 2004, Petitioner filed a signed and dated

(August 28, 2004) amended housing discrimination complaint with

the Commission. The complaint was docketed by the Commission as

Case Number 24 - 90408H. It read as follows:

1. Complainants

Maryhelen Meacham

12620 SW 6 Street

Davie, FL 33325

Representing Maryhelen Meacham

Sharon Ammons

Housing Opportunities for Excellence,

Inc.

1061 W. Oakland Park Blvd, Suite 1 04

Ft. Lauderdale, FL 33311

Phone: . . . . Fax:

2. Other Aggrieved Persons

None

3. The following is alleged to have

occurred or is about to occur :

Discriminatory terms, conditions,

privileges or services and facilities.

Discri minatory acts under Section 818

(coercion, Etc.)

Failure to permit reasonable modification.

Failure to make reasonable accommodation.

4. The alleged violation occurred because

of :

Race and handicap.

5. Address and location of the property in

quest ion (or if no property is involved, the

city and state where the discrimination

occurred) :

Davie, FL

6. Respondent(s)

Delor[e]s Maddox

Kings Manor Mobile Home Park

12500 State Road 84

Davie, FL 33325

Representing Delor[e]s Mad dox

Ernest Kollra

1995 E. Oakland Park Blvd, Suite #300

Fort Lauderdale, FL 33306 - 1138

Phone: . . . Fax: . . .

VHS Realty, Inc.

777 Dedham St.

Canton, MA 02021 - 1484

7. The following is a brief and concise

statement of the facts regarding the alleged

violation :

The Complainant alleges that the Respondent

discriminated against her by at first

denying, and then unreasonably delaying her

reasonable modifications to install a

wheelchair ramp leading to her front door.

Complain ant states that after the Respondent

gave her permission to install the ramp, the

property staff harassed her and retaliated

against her for asserting her disability

rights. Complainant states that Patricia

Silver informed other residents that she had

not paid her rent when the rent payments

were escrowed. Complainant also alleges

that Patricia Silver threatened to throw her

rent payment money orders away so that her

rent would be unpaid and she would be

evicted. Complainant states that Patricia

Silver a lso made derogatory remarks about

the Complainant's national origin, Native

American.

Additionally, Complainant insists that the

Respondent's property is not compliant with

the Fair Housing Act and several of the

accessibility ramps are not maneuverable b y

wheelchair.

8. The most recent date on which the

alleged discrimination occurred :

November 6, 2003

9. Types of Federal Funds identified :

None

10. The acts alleged in this complaint, if

proven, may constitute a violation of the

following :

Sections 804b or f, 818, 804f3A and

804f3B of Title VIII of the Civil Rights Act

of 1968 as amended by the Fair Housing Act

of 1988

On December 28, 2004, following the completion of its

investigation of Petitioner's allegations of housing

discrimina tion, the Commission issued a Determination of No

Reasonable Cause.

Petitioner, on January 7, 2005, filed with the Commission a

Petition for Relief. In her petition, Petitioner identified

"Delores Maddock [sic] c/o Uniprop" as the "Respondent" and

alleg ed that the "Respondent" had "violated the Florida Fair

Housing Act, as Amended, in the [following] manner":

Harassment & retaliation directly related to

an initial complaint dealing with a ramp

being installed due to my disability.

On January 12, 2005, t he Commission referred the matter to

the Division of Administrative Hearings (DOAH) for the

assignment of a DOAH administrative law judge to "conduct all

necessary proceedings required under the law and submit

recommended findings to the Commission. The C ommission's

Transmittal of Petition, in its style, indicated that the

"Respondent" in the case was "Deloris Maddon/Kins Manor Mobile

Home Park" [sic]. On February 3, 2005, the Commission sent an

Amended Transmittal of Petition to correct the style of its

original submission to reflect that "Delores Maddox, Manager,

Kings Manor Estates & Uniprop" were the "Respondent[s]" in the

case.

As noted above, the final hearing in this matter was held

on March 28, 2005. Seventeen witnesses testified at the

hearing: Melinda Rychewaerk, Robert Rychewaerk, Cindy Angelo,

Brian Dillon, Respondent Delores Maddox, Norma Price, Daralyn

Brody, Susann Zimmer, Alicia Feliciano, Joan Russell, Sharon

Ammons, Karen Dippilitto, Joanne Morgan, Petitioner, Hazel

Crain, Kaylyn Griff o, and Josephine Patricia Silver. In

addition, 17 exhibits (Petitioner's Exhibits 1, 2, 3, 4, 5A, 5B,

5C, 5D, and 5E, and Respondents' Exhibits 1, 2, 3, 4, 5, 6, 7,

and 8) were offered and received into evidence.

Following the conclusion of the evidentiar y portion of the

hearing on March 28, 2005, the undersigned established an

April 28, 2005, deadline for the filing of proposed recommended

orders.

Petitioner filed post - hearing submittals on April 26, 2005,

and April 29, 2005. 1 Respondents filed their po st - hearing

submittal on April 27, 2005.

FINDINGS OF FACT

Based on the evidence adduced at the final hearing and the

record as a whole, the following findings of fact are made:

1. Petitioner is a woman of Native American heritage. The

record evidence, ho wever, does not reveal that, at any time

material to the instant case, anyone outside of her family,

including Respondents, was aware of Petitioner's Native American

background; nor does the record evidence establish that

Petitioner was ever subjected to d erogatory remarks about being

of Native American descent.

2. At all times material to the instant case, Petitioner

has suffered from health problems that have substantially

limited her ability to walk and have required her to use a

motorized wheelchair to ambulate.

3. Petitioner is now, and has been at all times material

to the instant case, a resident of Kings Manor Estates (Park), a

residential community of single - family mobile homes that is

located in Davie, Florida.

4. The Park is one of variou s mobile home communities that

Respondent Uniprop Corporation (Uniprop) owns and operates.

5. Like the other residents of the Park, Petitioner owns

the mobile home in which she resides and pays rent to Uniprop

for the use of the lot on which home is situa ted.

6. Petitioner's home occupies lot 78 in the Park.

7. As a resident of the Park, Petitioner has use of the

Park's common areas and facilities, which include a swimming

pool. There has been no showing that Petitioner has been denied

access to any of these common areas or facilities due to her

handicap.

8. Residents of the Park must comply with the Park's rules

and regulations. These rules and regulations reasonably

require, among other things, that residents obtain, in addition

to any permits th ey may need from the Town of Davie, the

approval of Uniprop (referred to as "design approval") before

constructing any improvements on their lots, including

wheelchair ramps.

9. To obtain such "design approval," a resident must

submit to Park management a completed "design approval"

application form and any supporting documentation.

10. The application form provides a space for the resident

to provide a "[d]escription, [d]rawing [l]ocation & [s]ize of

[the proposed] [a]ddition." Immediately underneat h this space

on the form is the following pre - printed language:

It is the Resident's responsibility to

obtain all governmental approvals, to make

certain the proposed improvement is suitable

for the purpose intended and that the

improvement complies with a ll applicable

codes, standards and governmental

requirements. Approval by Management of any

improvement is limited to considerations of

appearance.

Resident agrees to have their home

improvements built to the specifications

listed above and illustrated i n the space

above and/or attached drawings, exhibits and

permits.

11. It is the responsibility of the Park's property

manager, with the help of the Park's assistant property manager,

to enforce the Park's rules and regulations.

12. The duties of the P ark's property manager and

assistant property manager (whose work stations are located in

the Park's business office) also include collecting rent from

the Park's residents and taking appropriate action when

residents are delinquent in their rental payment s.

13. There is a "drop off box" located outside the Park's

business office in which residents can place their rental

payments when the office is closed and the Park's property

manager and assistant property manager are unavailable.

14. Neither the pro perty manager nor the assistant

property manager is authorized to give residents "design

approval." Only the Uniprop regional supervisor has such

authority. The property manager and assistant property manager

merely serve as "conduits" between the reside nt and the Uniprop

regional supervisor in the "design approval" process. They take

the completed "design approval" application form from the

resident, provide it to the Uniprop regional supervisor, and,

after hearing back from the regional supervisor, com municate the

regional supervisor's decision to the resident.

15. At all times material to the instant case, Respondent

Delores Maddox was the Park's property manager. Ms. Maddox no

longer works for Uniprop.

16. Hazel Crain is now, and has been at all ti mes material

to the instant case, the Park's assistant property manager.

17. At all times material to the instant case, Milton

Rhines was the Uniprop regional supervisor having authority over

the activities at the Park. Mr. Rhines was based in Ft. Myers,

Florida, on the other side of the state from the Park.

18. Josephine Patricia Silver is now, and has been at all

times material to the instant case, employed as a sales

consultant for Uniprop. In this capacity, she engages in

activities designed to faci litate the sale of mobile homes

manufactured by Uniprop (to be placed in the Park and other

mobile home communities Uniprop owns and operates). Although

her office is located in the Park, she plays no decision - making

role in Park management. Notwithstand ing that it is not her job

responsibility to accept rental payments, she sometimes will do

so as a courtesy to Park residents when she is at the Park on

weekends or during the evening hours and the business office is

closed. Although Ms. Silver and Petiti oner do not get along,

Ms. Silver has never threatened to "throw away" Petitioner's

rental payments; nor has she ever told any of Park's residents

that Petitioner was not paying her rent. Ms. Silver, however,

has "gossiped" and made derogatory comments ab out Petitioner,

but no showing has been made that Petitioner's handicap, her

Native American heritage, or her having exercised any of her

rights under Florida's Fair Housing Act played any role in

Ms. Silver's having made these comments.

19. In August of 2002, Petitioner mentioned to Ms. Crain

about her interest in having a wheelchair ramp constructed on

her lot.

20. Ms. Crain suggested to Petitioner that she contact the

Town to discuss the feasibility of such a project.

21. Petitioner subsequently t elephoned Brian Dillon, the

Town's chief structural inspector.

22. Mr. Dillon not only attempted to assist Petitioner in

her efforts to obtain a permit from the Town to construct the

wheelchair ramp, he also helped her make arrangements to have a

boy scou t troop construct the ramp for her with donated

materials.

23. The Town would not issue Petitioner a permit for the

ramp unless and until she obtained the written approval of the

Park owner, Uniprop.

24. The ramp was constructed for Petitioner by the boy

scouts during a weekend in mid - November 2002, without

Petitioner's having first obtained Uniprop's "design approval"

or a permit from the Town.

25. Prior to the construction of the ramp, Petitioner had

received a "design approval" application form from M s. Crain

and, on or about November 12 or 13, 2002, with Ms. Crain's

assistance, had begun the application process. Petitioner,

however, did not wait to receive the "design approval" she had

applied for from Uniprop before giving the boy scouts the go

ahea d to start constructing the ramp.

26. After discovering that the ramp had been constructed,

Park management attempted to "work" with Petitioner to enable

her to complete the paperwork necessary to obtain (belatedly)

"design approval" for the ramp.

27. On November 21, 2002, Petitioner submitted to Park

management the following note from her physician, James Milne,

D.O.:

Due to Medical Necessity, my patient Mary

Helen Meacham requires use of a motorized

wheelchair, and it is necessary for her to

have ram p access.

If you have any questions, please feel free

to call my office.

28. By December 5, 2002, Petitioner had yet to submit the

design plans needed to obtain "design approval" for the ramp.

29. Accordingly, on that date, Uniprop's attorney, Ernest

K ollra, Esquire, sent Petitioner, by certified mail, a Notice of

Violation of Community Covenants, which read as follows:

Please be advised the undersigned represents

Kings Manor Estates with respect to your

tenancy at the Community.

This Notice is sent to you pursuant to

Florida Statute, Chapter, 723.061, Et Seq.

Park Management has advised the undersigned

that you are in violation of the following

Community Covenants of Kings Manor Estates:

7. Improvements : Before construction of

any type is permitted on the homesite or

added to a home, the Resident must obtain

written permission from Management in the

form of a Design Approval. Additional

permits may be required by the municipality

in which the Community is located.

10. Handicap Access : Any Reside nts

requiring handicap access improvements such

as ramps are permitted. All plans for such

ramps must be approved by Management and

comply with all other Community Covenants

and governmental standards.

You are in violation of the above Community

Covenant s, in that you have failed to submit

plans to Management prior to the

construction of your ramp. Park Management

has been apprised by the Town of Davie that

permits are required and none was obtained

by you prior to construction, in compliance

with Town o f Davie governmental standards.

In order to correct the above violation, you

must within seven (7) days from delivery of

this Notice, remove the ramp from your

homesite. Delivery of the mailed notice is

deemed given five (5) days after the date of

postma rk. If you fail and/or refuse to

comply with this Notice, your tenancy will

be terminated in accordance with Florida

Statute Chapter 723.061.[ 2 ]

If you have any questions concerning any of

the above, you may contact Park Management

at . . . .

30. Peti tioner did not remove the ramp by the deadline

imposed by the December 5, 2002, Notice of Violation of

Community Covenants. Park management, however, took no action

to terminate her tenancy.

31. After receiving the December 5, 2002, Notice of

Violation o f Community Covenants, Petitioner stopped making

rental payments to Uniprop and, instead, deposited these monies

with the Florida Justice Institute to be held in escrow until

the controversy concerning the ramp was resolved.

32. In or around mid - January 2 003, Park management

received from Petitioner corrected design plans for the ramp

(that had been prepared by Doug Amos of Doug Amos Construction).

33. On January 15, 2003, Ms. Maddox sent to Mr. Rhines, by

facsimile transmission, a copy of these plans.

3 4. Petitioner was subsequently granted "design approval"

for the ramp. It has not been shown that there was any

unreasonable or excessive delay involved in the granting of such

approval.

35. On February 19, 2003, Ms. Maddox wrote the following

letter t o the Town's Building Department:

Please be advised that MaryHelen Meacham

Woods is authorized to have permits issued

for site #78 at 12620 SW 6th Street Davie,

Florida 33325 for the Installation of a

handicapped ramp.

Thank you for your consideration in this

matter.

36. Following an inspection, the Town, in March 2003,

issued a permit for the ramp.

37. Petitioner has had use of the ramp since mid - November

2002 when it was first built (notwithstanding that she did not

obtain Uniprop's "design approval" and a permit from the Town

until some months later).

38. On or about May 30, 2003, Petitioner authorized the

Florida Justice Institute to deliver to Uniprop the rental

payments it was holding (at Petitioner's request) in escrow.

39. Uniprop accepted t hese rental payments when they were

delivered.

40. Petitioner has had raw eggs thrown at her wheelchair

ramp. She suspects that Ms. Maddox's children were responsible

for this vandalism, but there is insufficient record evidence to

identify the culprits, much less ascertain their motives.

41. On or about August 31, 2004, at a time when Hurricane

Frances was approaching the Florida peninsula from the

southeast, Park management sent Petitioner a Notice of Violation

of Community Covenants, which read as fo llows:

Pursuant to Florida Statute 723.061 et seq,

you are hereby advised that you are in

violation of the following Community

Covenant(s) of which the Community first

became aware on August 30, 2004.

SECTION I: HOME AND SITE MAINTENANCE - Each

resident shall keep his/her site and home in

a clean and neat condition and free of any

fire hazards, there is no storage permitted

around or under the home or in screened

rooms. ALL items must be stored inside the

home or storage shed.

Although you have previous ly been furnished

a copy of the Community Covenants of the

park, and said Community Covenants are

posted in the recreation center and business

office, a copy of the rule(s) of which you

are in violation is attached to this notice

for your convenience.

Spe cifically, you are in violation of the

above Community Covenant(s) in that Your

home, trim and utility shed are dirty, there

is growth in the gutters and there is a

window air conditioner on the home.

In order to correct the above violation of

the Communi ty Covenant(s) you must Wash your

home, trim and utility shed, paint with

colors approved by management, clean the

growth from the gutters and remove the

window air conditioner

within seven (7) days from delivery date of

this letter.

If you fail and/or r efuse to correct the

violations of the Community Covenant(s) in

the manner listed above, the park will

pursue all its rights and remedies pursuant

to 723.061 et seq.

PLEASE GOVERN YOURSELF ACCORDINGLY

It has not been shown that Park management took this action to

retaliate against Petitioner for having requested permission to

construct a wheelchair ramp on her lot or that such action was

motivated by any other improper purpose.

42. Park management has not pursued the matter the

further.

43. At no time h as Park management initiated legal action

to terminate Petitioner's tenancy and evict her.

44. The record evidence is insufficient to establish that

Respondents, or anyone acting on their behalf, have said or done

anything having the purpose or effect o f disadvantaging

Petitioner based on her handicap, her Native American heritage,

or her having asked to be allowed to build a wheelchair ramp on

her lot.

CONCLUSIONS OF LAW

45. DOAH has jurisdiction over the subject matter of this

proceeding and of the p arties hereto pursuant to Chapter 120,

Florida Statutes.

46. Florida's Fair Housing Act (Act) is codified in

Sections 760.20 through 760.37, Florida Statutes.

47. Section 760.22, Florida Statutes, defines various

terms used in the Act. It provides, in pertinent part, as

follows:

As used in ss. 760.20 - 760.37, the

term: . . . .

* * *

(2) "Covered multifamily dwelling" means:

(a) A building which consists of four or

more units and has an elevator; or

(b) The ground floor units of a building

which consists of four or more units and

does not have an elevator.

(3) "Discriminatory housing practice" means

an act that is unlawful under the terms of

ss. 760.20 - 760.37.

(4) "Dwelling" means any building or

structure, or porti on thereof, which is

occupied as, or designed or intended for

occupancy as, a residence by one or more

families, and any vacant land which is

offered for sale or lease for the

construction or location on the land of any

such building or structure, or porti on

thereof.

* * *

(7) "Handicap" means:

(a) A person 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 physi cal or mental impairment;

or

(b) A person has a developmental disability

as defined in s. 393.063

(8) "Person" includes one or more

individuals, corporations, partnerships,

associations, labor organizations, legal

representatives, mutual companies, jo int -

stock companies, trusts, unincorporated

organizations, trustees, trustees in

bankruptcy, receivers, and fiduciaries.

* * *

48. Petitioner's mobile home and lot do not constitute a

"covered multifamily dwelling," as defined in Section 760.22(2),

Florida Statutes, but they do constitute a "dwelling," as

defined in Section 760.22(4), Florida Statutes.

49. Persons like Petitioner, who must use a wheelchair

because of a physical impairment that substantially limits their

abilit y to walk, have a "handicap," within the meaning of

Section 760.22(7)(a), Florida Statutes. See Sutton v. United

Air Lines, Inc. , 527 U.S. 471, 488, 119 S. Ct. 2139, 2149 (1999)

( "[I]ndividuals who use . . . wheelchairs may be mobile and

capable of functi oning in society but still be disabled because

of a substantial limitation on their ability to walk or run.");

Bauer v. Muscular Dystrophy Association, Inc. , 268 F. Supp. 2d

1281, 1283 (D. Kan. 2003)("Gina Bauer has Muscular Dystrophy and

uses a power whee lchair. She is substantially limited in the

major life activity of walking. . . . Suzanne Stolz has

Muscular Dystrophy and sometimes uses a power wheelchair. She

is substantially limited in the major life activity of

walking."); and Witt v. Northwest Al uminum Co. , 177 F. Supp. 2d

1127, 1131 (D. Or. 2001)("Factfinders do not need expert

testimony to understand that a person confined to a wheelchair

is substantially limited in the major life activity of

walking.").

50. Among other things, the Act makes ce rtain acts

"discriminatory housing practices" and gives the Commission the

authority, if it finds (following an administrative hearing

conducted by an administrative law judge) that such a

"discriminatory housing practice" has occurred, to issue an

order " prohibiting the practice" and providing "affirmative

relief from the effects of the practice, including quantifiable

damages[ 3 ] and reasonable attorney's fees and costs."

§ 760.35(3)(b), Fla. Stat.

51. To obtain such relief from the Commission, a person

who claims to have been injured by a "discriminatory housing

practice" must "file a complaint within 1 year after the alleged

discriminatory housing practice occurred." § 760.34(2), Fla.

Stat.; however, "an otherwise time - barred claim may be

considered t imely if it and a timely - filed claim are treated as

a single claim directed at continuing discriminatory conduct,

part of which occurred within the statutory filing period."

LeBlanc v. City of Tallahassee , 2003 WL 1485063 *2 (N.D. Fla.

2003).

52. The "di scriminatory housing practices" prohibited by

the Act include those described in Section 760.23(2), Florida

Statutes, which provides as follows:

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 therewith, because

of race, color, national origin, sex,

handicap, familial status, or religion.

53. Race, color, national origin, sex, handicap, familial

status, or religion - based h arassment that creates a hostile

housing environment constitutes a "discriminatory housing

practice" prohibited by Section 760.23(2), Florida Statutes.

"[A hostile housing environment] claim is actionable when the

offensive behavior unreasonably interfere s with use and

enjoyment of the premises. The harassment must be sufficiently

severe or pervasive to alter the conditions of the housing

arrangement. It is not sufficient if the harassment is isolated

or trivial. Casual or isolated manifestations of a

d iscriminatory environment . . . may not raise a cause of

action." Honce v. Vigil , 1 F.3d 1085, 1090 (10th Cir.

1993)(citations and internal quotations omitted). The "'mere

existence of uncomfortable rumors in the [neighborhood] is not

the type of hostile environment' that [ Section 760.23(2),

Florida Statutes] was meant to redress." Hott v. VDO Yazaki

Corp. , 1996 WL 650966 *2 (W.D. Va. 1996).

54. "Discriminatory intent may be established through

direct or indirect circumstantial evidence." Johnson v.

Ha mrick , 155 F. Supp. 2d 1355, 1377 ( N.D. Ga. 2001).

55. " Direct evidence is evidence that, if believed, would

prove the existence of discriminatory intent without resort to

inference or presumption." King v. La Playa - De Varadero

Restaurant , No. 02 - 2502, 2003 WL 435084 *5 n.9 (Fla. DOAH

2003)(Recommended Order).

56. "Direct evidence of intent is often unavailable."

Shealy v. City of Albany, Ga. , 89 F.3d 804, 806 (11th Cir.

1996). For this reason, those who claim to be victims of

discrimination "are p ermitted to establish their cases through

inferential and circumstantial proof." Kline v. Tennessee

Valley Authority , 128 F.3d 337, 348 (6th Cir. 1997).

57. Where a complainant attempts to prove intentional

discrimination using circumstantial evidence, a "shifting burden

framework" is applied. "Under this framework, the [complainant]

has the initial burden of establishing a prima facie case of

discrimination. If [the complainant] meets that burden, then an

inference arises that the challenged action wa s motivated by a

discriminatory intent. The burden then shifts to the

[respondent] to 'articulate' a legitimate, non - discriminatory

reason for its action. If the [respondent] successfully

articulates such a reason, then the burden shifts back to the

[com plainant] to show that the proffered reason is really

pretext for unlawful discrimination." Schoenfeld v. Babbitt ,

168 F.3d 1257, 1267 (11th Cir. 1999)(citations omitted.); see

also Massaro v. Mainlands Section 1 and 2 Civic Association,

Inc. , 3 F.3d 1472 , 1476 n.6 (11th Cir. 1993)("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)."); and Secretary of the

United States Department of Hous ing 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] gover ns in this case

[involving a claim of discrimination in violation of the federal

Fair Housing Act].")

58. Proof that, in essence, amounts to no more than mere

speculation and self - serving belief on the part of the

complainant concerning the motives of the respondent is

insufficient, standing alone, to establish a prima facie case of

intentional discrimination. See Lizardo v. Denny's, Inc. , 270

F.3d 94, 104 (2d Cir. 2001) ("The record is barren of any direct

evidence of racial animus. Of course, direct evi dence of

discrimination is not necessary. However, a jury cannot infer

discrimination from thin air. Plaintiffs have done little more

than cite to their mistreatment and ask the court to conclude

that it must have been related to their race. This is not

sufficient.")( citations omitted.); Reyes v. Pacific Bell , 21

F.3d 1115 (Table), 1994 WL 107994 *4 n.1 (9th Cir. 1994)("The

only such evidence [of discrimination] in the record is Reyes's

own testimony that it is his belief that he was fired for

discrimina tory reasons. This subjective belief is insufficient

to establish a prima facie case."); Little v. Republic Refining

Co., Ltd. , 924 F.2d 93, 96 (5th Cir. 1991)(" Little points to his

own subjective belief that age motivated Boyd. An age

discrimination pla intiff's own good faith belief that his age

motivated his employer's action is of little value."); Elliott

v. Group Medical & Surgical Service , 714 F.2d 556, 567 (5th Cir.

1983)("We are not prepared to hold that a subjective belief of

discrimination, howev er genuine, can be the basis of judicial

relief."); Jackson v. Waguespack , 2002 WL 31427316 *3 ( E.D. La.

2002) (" [T]he Plaintiff has no evidence to show Waguespack was

motivated by racial animus. Speculation and belief are

insufficient to create a fact iss ue as to pretext nor can

pretext be established by mere conclusory statements of a

Plaintiff that feels she has been discriminated against. The

Plaintiff's evidence on this issue is entirely conclusory, she

was the only black person seated there. The Pla intiff did not

witness Defendant Waguespack make any racial remarks or racial

epithets."); Sporn v. Ocean Colony Condominium Association , 173

F. Supp. 2d 244, 251 (D. N.J. 2001)( "This evidence, even when

viewed in the light most favorable to Plaintiffs, am ounts to

nothing more than repeated statements of Plaintiffs' subjective

beliefs of discrimination and is therefore insufficient to

survive summary judgment."); Coleman v. Exxon Chemical Corp. ,

162 F. Supp. 2d 593, 622 ( S.D. Tex. 2001)(" Plaintiff's

conclus ory, subjective belief that he has suffered

discrimination by Cardinal is not probative of unlawful racial

animus."); Cleveland - Goins v. City of New York , 1999 WL 673343

*2 ( S.D. N.Y. 1999)(" Plaintiff has failed to proffer any

relevant evidence that her ra ce was a factor in defendants'

decision to terminate her. Plaintiff alleges nothing more than

that she 'was the only African - American male [sic] to hold the

position of administrative assistant/secretary at Manhattan

Construction.' (Compl.¶ 9.) The Court finds that this single

allegation, accompanied by unsupported and speculative

statements as to defendants' discriminatory animus is entirely

insufficient to make out a prima facie case or to state a claim

under Title VII."); Umansky v. Masterpiece Interna tional Ltd. ,

1998 WL 433779 *4 ( S.D. N.Y. 1998)(" Plaintiff proffers no

support for her allegations of race and gender discrimination

other than her own speculation and assumptions. The Court finds

that plaintiff cannot demonstrate that she was discharged in

circumstances giving rise to an inference of discrimination, and

therefore has failed to make out a prima facie case of race or

gender discrimination."); Gavin v. Spring Ridge Conservancy,

Inc. , 934 F. Supp. 685, 687 (D. Md. 1995)(" Turning first to the

plaintiff's claims of intentional discrimination and

retaliation, there is no evidence at all, other than perhaps the

plaintiff's own subjective beliefs, of intentional

discrimination or retaliation. Such beliefs are, of course,

insufficient to show an in tentional discriminatory animus.");

and Lo v. F.D.I.C. , 846 F. Supp. 557, 563 ( S.D. Tex. 1994)(" Lo's

subjective belief of race and national origin discrimination is

legally insufficient to support his claims under Title VII.").

59. The "discriminatory hou sing practices" prohibited by

the Act also include those described in Section 760.23(8)(a),

Florida Statutes, which provides that " [i]t 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: [t]hat buyer or renter." According

to Section 760.23(9), Florida Statutes:

For purposes of subsection[] . . . (8),

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.

"In order to prevail on [a] claim of discrimination [of th e type

described in Section 760.23(9)], [a complainant] must prove (1)

that she is handicapped as defined in the Florida Fair Housing

Act; (2) that the [r]espondent[] knew or reasonably should have

known of her handicap; (3) that she requested a reasonable

modification to [the premises she occupies] or a reasonable

accommodation under the [governing] rules and regulations

necessary to afford her an equal opportunity to use and enjoy

her [premises]; and (4) that the [r]espondent[] [although having

the author ity to grant the request] refused to [do so]."

Thornhill v. Watkins , Nos. 00 - 3014 and 02 - 1056 , 2004 WL 395861

*27 (Fla. DOAH 2004)(Recommended Order); see also Tsombanidis v.

West Haven Fire Department , 352 F.3d 565, 579 (2d Cir. 2003)( " A

governmental ent ity must know what a plaintiff seeks prior to

incurring liability for failing to affirmatively grant a

reasonable accommodation [under the federal Fair Housing

Act]."); Progressive Mine Workers v. National Labor Relations

Board , 187 F.2d 298, 304 (7th Cir. 1951)("There was no finding

that the company had refused to reinstate them, as evidently

there could not be in the absence of a request by the

employees.") ; Winfield Mutual Housing Corporation v. Middlesex

Concrete Products & Excavating Corporation , 120 A .2d 655, 657

(N.J. App. 1956)("There could not be a refusal in the absence of

a request, express or implied, for performance, . . . ."); and

Application of Spanierman , 58 N.Y.S.2d 10, 11 (N.Y. Sup. Ct.

1945)("There can be no 'refusal' in the absence of a r equest for

the statement. ").

60. An unreasonable or excessive delay in responding to a

request to allow a reasonable modification or a request to make

a reasonable accommodation can constitute, for purposes of

Section 760.23(9), Florida Statutes, a discr iminatory refusal.

Cf. Groome Resources Ltd., L.L.C. v. Parish of Jefferson , 234

F.3d 192, 199 - 200 (5th Cir. 2000)("While never formally denying

the request, the Parish's unjustified and indeterminate delay

had the same effect of undermining the anti - disc riminatory

purpose of the FHAA."); Krocka v. Riegler , 958 F. Supp. 1333,

1342 (N.D. Ill. 1997)("[A]n unreasonable delay in implementing a

'reasonable accommodation' can constitute a discriminatory

act."); and Cohen v. Montgomery County Department of Health and

Human Services , 817 A.2d 915, 925 (Md. Ct. Spec. App. 2003)("The

County contends that, because appellant ultimately received the

accommodation she requested, no controversy now exists between

the parties and thus the circuit court correctly dismissed the

complaint as moot. We disagree. Simply because appellant

received the accommodation she requested does not make that

accommodation, no matter how belated, a 'reasonable

accommodation.' We therefore hold that appellant alleged in her

complaint a caus e of action for disability discrimination based

on the County's purported failure to timely accommodate her

disability.").

61. Physically handicapped persons living in certain

" covered multifamily dwellings," as defined in Section

760.22(2), Florida Statu tes, are also protected by Section

760.23(10), Florida Statutes, which provides as follows:

(10) Covered multifamily dwellings as

defined herein which are intended for first

occupancy after March 13, 1991, shall be

designed and constructed to have at lea st

one building entrance on an accessible route

unless it is impractical to do so because of

the terrain or unusual characteristics of

the site as determined by commission rule.

Such buildings shall also be designed and

constructed in such a manner that:

(a) The public use and common use portions

of such dwellings are readily accessible to

and usable by handicapped persons.

(b) All doors designed to allow passage

into and within all premises within such

dwellings are sufficiently wide to allow

passage by a person in a wheelchair.

(c) All premises within such dwellings

contain the following features of adaptive

design:

1. An accessible route into and through the

dwelling.

2. Light switches, electrical outlets,

thermostats, and other environmental

c ontrols in accessible locations.

3. Reinforcements in bathroom walls to

allow later installation of grab bars.

4. Usable kitchens and bathrooms such that

a person in a wheelchair can maneuver about

the space.

(d) Compliance with the appropriate

requi rements of the American National

Standards Institute for buildings and

facilities providing accessibility and

usability for physically handicapped people,

commonly cited as ANSI A117.1 - 1986, suffices

to satisfy the requirements of paragraph

(c).

State age ncies with building construction

regulation responsibility or local

governments, as appropriate, shall review

the plans and specifications for the

construction of covered multifamily

dwellings to determine consistency with the

requirements of this subsecti on.

Because Petitioner does not reside in a "covered multifamily

dwelling," the provisions of Section 760.23(10) are inapplicable

to the instant case (notwithstanding that the mobile home park

in which her mobile home is located does have common areas).

62. Another "discriminatory housing practice" prohibited

by the Act is described in Section 760.37, Florida Statutes,

which provides:

It is unlawful to coerce, intimidate,

threaten, or interfere with any person in

the exercise of, or on account of her or his

having exercised, or on account of her or

his having aided or encouraged any other

person in the exercise of any right granted

under ss. 760.20 - 760.37. This section may

be enforced by appropriate administrative or

civil action.

To establish a violati on of Section 760.37, Florida Statutes, a

complainant must prove that the respondent " coerced,

intimidated, threatened, or interfered with her exercise of a

right under the Florida Fair Housing Act; discriminatory animus

is inherent in a retaliation claim. " Thornhill v. Watkins , 2004

WL 395861 *28.

63. Regardless of the type of "discriminatory housing

practice" being alleged, "preponderance of the evidence" is the

standard of proof the complainant must meet (at the

administrative hearing) to prove his o r her case.

§ 120.57(1)(j), Fla. Stat. ( "Findings of fact shall be based

upon a preponderance of the evidence, except in penal or

licensure disciplinary proceedings or except as otherwise

provided by statute,[ 4 ] . . . .").

64. In the instant case, Petit ioner has alleged that, in

violation of the Act, Respondents have discriminated against her

on the basis of her Native American heritage, as well as on the

basis of a physical handicap from which she suffers

necessitating the construction of a wheelchair r amp leading to

the front door of her mobile home. She has also suggested that,

in further violation of the Act, Respondents have retaliated

against her for requesting permission to build to such a

wheelchair ramp. Furthermore, Petitioner makes the additi onal

claim that the Park property is "not compliant" with the Act

because it is not, in certain areas, wheelchair accessible.

65. Through her evidentiary presentation at the final

hearing in this case, Petitioner did establish that, at all

times material to the instant case, she was protected under the

Act from discrimination on the basis of her Native American

background, as well as "handicap," as that term is defined in

Section 760.22(7)(a), Florida Statutes, and she also enjoyed the

protection of Sectio n 760.37, Florida Statutes, by virtue of her

having requested permission to build a wheelchair ramp on her

lot.

66. Petitioner, however, failed to prove by a

preponderance of the evidence that Respondents in any way,

including, but not limited to, the man ner in which they

responded to her request for "design approval" of the wheelchair

ramp, 5 unlawfully discriminated against her based on her

protected status (as a Native American and handicapped person);

neither did she make a sufficient showing that Respo ndents have

engaged in any conduct in retaliation against her for her having

made her "design approval" request. Petitioner may genuinely

suspect that she has been the victim, at the hands of

Respondents, of discriminatory and retaliatory conduct in

viola tion of the Act, but her mere suspicions are insufficient

to prove that the acts in question constituted "discriminatory

housing practices."

67. Concerning Petitioner's additional claim that parts of

the Park property are "not compliant" with the Act beca use they

lack wheelchair accessibility, even if the factual underpinnings

of this claim were accepted as true, there would still not be a

"discriminatory housing practice" subject to the Commission's

remedial authority inasmuch as the allegedly inaccessibl e areas

are not located in a "covered multifamily dwelling," as that

term is defined in Section 760.22(2), Florida Statutes, and used

in Section 760.23(10), Florida Statutes."

68. In view of the foregoing, no "discriminatory housing

practice" should be found to have occurred, and Petitioner's

amended housing discrimination complaint should therefore be

dismissed.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of

Law, it is

RECOMMENDED that the Commission issue a final order find ing

that Respondents are not guilty of any "discriminatory housing

practice" and dismissing Petitioner's amended housing

discrimination complaint based on such finding.

DONE AND ENTERED this 5th day of May, 2005, in Tallahassee,

Leon County, Florida.

S

___ ________________________________

STUART M. LERNER

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 5th day of May, 2005.

ENDNOTES

1 Petitioner appended to her post - hearing submittals various

documents that were n either offered nor received into evidence

at the final hearing. Because they are outside the scope of the

evidentiary record in this case, these documents cannot provide

a basis for any finding of fact. See General Development

Utilities, Inc. v. Hawkins , 357 So. 2d 408, 409 (Fla. 1978)("The

Commission selected a ratio which nowhere appears in the record,

apparently fabricating one for the company based on information

it has compiled for water companies generally. The arbitrary

selection of this ratio as a 'fact' comes from outside the

record of the proceeding and plainly violates the notions of

agency due process which are embodied in the administrative

procedure act."); and Section 120.57(1)(j), Florida Statutes

("Findings of fact . . . shall be based ex clusively on the

evidence of record and on matters officially recognized.").

2 Section 723.061, Florida Statutes, provides as follows:

(1) A mobile home park owner may evict a

mobile home owner, a mobile home tenant, a

mobile home occupant, or a mobil e home only

on one or more of the grounds provided in

this section.

(a) Nonpayment of lot rental amount. If a

mobile home owner or tenant, whichever is

responsible, fails to pay the lot rental

amount when due and if the default continues

for 5 days aft er delivery of a written

demand by the mobile home park owner for

payment of the lot rental amount, the park

owner may terminate the tenancy. However,

if the mobile home owner or tenant,

whichever is responsible, pays the lot

rental amount due, including any late

charges, court costs, and attorney's fees,

the court may, for good cause, deny the

order of eviction, provided such nonpayment

has not occurred more than twice.

(b) Conviction of a violation of a federal

or state law or local ordinance, which

v iolation may be deemed detrimental to the

health, safety, or welfare of other

residents of the mobile home park. The

mobile home owner or mobile home tenant will

have 7 days from the date that notice to

vacate is delivered to vacate the premises.

This pa ragraph shall be grounds to deny an

initial tenancy of a purchaser of a home

pursuant to paragraph (e) or to evict an

unapproved occupant of a home.

(c) Violation of a park rule or regulation,

the rental agreement, or this chapter.

1. For the first v iolation of any properly

promulgated rule or regulation, rental

agreement provision, or this chapter which

is found by any court having jurisdiction

thereof to have been an act which endangered

the life, health, safety, or property of the

park residents or employees or the peaceful

enjoyment of the mobile home park by its

residents, the mobile home park owner may

terminate the rental agreement, and the

mobile home owner, tenant, or occupant will

have 7 days from the date that the notice is

delivered to vaca te the premises.

2. For a second violation of the same

properly promulgated rule or regulation,

rental agreement provision, or this chapter

within 12 months, the mobile home park owner

may terminate the tenancy if she or he has

given the mobile home own er, tenant, or

occupant written notice within 30 days of

the first violation, which notice specified

the actions of the mobile home owner,

tenant, or occupant which caused the

violation and gave the mobile home owner,

tenant, or occupant 7 days to correct the

noncompliance. The mobile home owner,

tenant, or occupant must have received

written notice of the ground upon which she

or he is to be evicted at least 30 days

prior to the date on which she or he is

required to vacate. A second violation of a

prope rly promulgated rule or regulation,

rental agreement provision, or this chapter

within 12 months of the first violation is

unequivocally a ground for eviction, and it

is not a defense to any eviction proceeding

that a violation has been cured after the

sec ond violation. Violation of a rule or

regulation, rental agreement provision, or

this chapter after the passage of 1 year

from the first violation of the same rule or

regulation, rental agreement provision, or

this chapter does not constitute a ground

for eviction under this section.

No properly promulgated rule or regulation

may be arbitrarily applied and used as a

ground for eviction.

(d) Change in use of the land comprising

the mobile home park, or the portion thereof

from which mobile homes are to be evicted,

from mobile home lot rentals to some other

use, provided all tenants affected are given

at least 6 months' notice of the projected

change of use and of their need to secure

other accommodations. The park owner may

not give a notice of increas e in lot rental

amount within 90 days before giving notice

of a change in use.

(e) Failure of the purchaser, prospective

tenant, or occupant of a mobile home

situated in the mobile home park to be

qualified as, and to obtain approval to

become, a tenant or occupant of the home, if

such approval is required by a properly

promulgated rule. If a purchaser or

prospective tenant of a mobile home situated

in the mobile home park occupies the mobile

home before approval is granted, the mobile

home owner or mob ile home tenant shall have

7 days from the date the notice of the

failure to be approved for tenancy is

delivered to vacate the premises.

(2) In the event of eviction for change of

use, homeowners must object to the change in

use by petitioning for admi nistrative or

judicial remedies within 90 days of the date

of the notice or they will be barred from

taking any subsequent action to contest the

change in use. This provision shall not be

construed to prevent any homeowner from

objecting to a zoning chang e at any time.

(3) The provisions of s. 723.083 shall not

be applicable to any park where the

provisions of this subsection apply.

(4) A mobile home park owner applying for

the removal of a mobile home owner, tenant,

occupant, or a mobile home shall file, in

the county court in the county where the

mobile home lot is situated, a complaint

describing the lot and stating the facts

that authorize the removal of the mobile

home owner, tenant, occupant, or the mobile

home. The park owner is entitled to th e

summary procedure provided in s. 51.011, and

the court shall advance the cause on the

calendar.

(5) Any notice required by this section

must be in writing, and must be posted on

the premises and sent to the mobile home

owner and tenant or occupant, as

appropriate, by certified or registered

mail, return receipt requested, addressed to

the mobile home owner and tenant or

occupant, as appropriate, at her or his last

known address. Delivery of the mailed

notice shall be deemed given 5 days after

the date of postmark.

3 Such "quantifiable damages" do not include damages for

emotional injuries . See Metropolitan Dade County Fair Housing

and Employment Appeals Board v. Sunrise Village Mobile Home

Park, Inc. , 511 So. 2d 962, 966 (Fla. 1987) ("[ W]e hold that

section 11A - 7(5)(f)(ii) of the instant ordinance is

unconstitutional to the extent that it authorizes administrative

awards of common law damages for such nonquantifiable injuries

as humiliation, embarrassment, and mental distress."); Broward

County v. La Rosa , 505 So. 2d 422, 424 n.5 (Fla. 1987)(" We see a

significant distinction between administrative awards of

quantifiable damages for such items as back rent or back wages

and awards for such nonquantifiable damages as pain and

suffering or humiliation an d embarrassment."); and Hotelera

Naco, Inc. v. Chinea , 708 So. 2d 961, 962 (Fla. 3d DCA 1998) (" We

also conclude that the trial court erred in allowing the jury to

award damages for mental anguish and loss of dignity, and

awarding appellee, Maria E. Chinea, attorney's fees. The

ordinance in effect at the time the cause of action arose only

allowed for the award of quantifiable damages.").

4 Section 760.34(5), Florida Statutes, provides that, "[i]n any

proceeding brought pursuant to this section or s. 76 0.35, the

burden of proof is on the complainant," but neither it, nor any

other provision in the Act, prescribes a standard of proof the

complainant must meet.

5 Petitioner's "design approval" request was ultimately

approved, and no showing has been made that there was any

unreasonable, prejudicial delay in granting such approval.

COPIES FURNISHED:

Cecil Howard, General Counsel

Florida Commission on Human Relations

2009 Apal achee Parkway, Suite 100

Tallahassee, Florida 32301

Denise Crawford, Agency Clerk

Florida Commission on Human Relations

2009 Apalachee Parkway, Suite 100

Tallahassee, Florida 32301

Maryhelen Meacham

12620 Southwest 6th Street, Lot 78

Fort Lauderdale, F lorida 33325

Ernest A. Kollra, Esquire

1995 East Oakland Park Boulevard, Suite 300

Fort Lauderdale, Florida 33306

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

All parties have the right to submit written exceptions within

15 days from the date of this Re commended Order. Any exceptions

to this Recommended Order should be filed with the agency that

will issue the Final Order in this case.