06-000943 James W. Travis vs. George P. Rance Status: Closed Recommended Order on Friday, June 16, 2006.

Summary: Petitioner was not the subject of an unlawful housing practice, but was instead evicted for nonpayment of rent.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

JAMES W. TRAVIS, )

)

Petitioner, )

)

vs. ) Case No. 06 - 0943

)

GEORGE P. RANCE, )

)

Respondent. )

)

RECOMMENDED ORDER

Administrative Law Judge Don W. Davis of the Division of

Administrative Hearings conducted a final hearing in this case

on May 18, 2006, in Tallahassee, Florida.

APPEARANCES

For Petitioner: James Wavis, pro se

Post Office Box 95

Istachatta, Florida 34636 - 0095

For Respondent: No Appearance

STATEMENT OF THE ISSUE

The issue is whether Respondent has engaged in an unlawful

housing practice in violation of the Fair Housing Act (Act),

Sections 760.20 - 760.37, Florida Stat utes, through discrimination

against a former tenant, Petitioner, on the basis of

Petitioner’s handicap.

PRELIMINARY STATEMENT

On October 11, 2005, Petitioner filed a housing

discrimination complaint with the United States Department of

Housing an d Urban Development (HUD).

The Act is administered jointly in the State of Florida by

the Florida Commission on Human Relations (FCHR) and HUD. FCHR

completed the investigation of the complaint and, on

February 13, 2006, entered a Notice of Determi nation of No

Reasonable Cause.

On February 22, 2006, Petitioner filed a Petition f or

Relief with FCHR. The matter was subsequently transferred to

the Division of Administrative Hearings for formal proceedings.

Neither Petitioner nor Respondent re plied to the I nitial O rder

entered in the case by the undersigned on March 17, 2006, and,

consequently, venue for the proceeding was presumed waived and

the matter set for final hearing in Tallahassee, Florida.

During the final hearing, Petitione r testified on his own

behalf and presented two exhibits. Respondent did not appear

and no appearance was entered on his behalf.

No transcript of the proceeding was provided. Neither

party filed a proposed recommended order. All references to

Flor ida Statutes are to the 2005 edition, unless otherwise

noted.

FINDINGS OF FACT

1. Petitioner moved to Respondent’s rental house trailer

on August 27, 2004, where he and his wife resided until

September 1, 2005. The house trailer was located in

Resp ondent’s trailer park in Istachatta, Florida.

2. Petitioner has suffered bouts of mental illness since

his youth. He was hospitalized in the 1980’s for depression.

Additionally, Petitioner entered into a rehabilitation program

for alcohol and dru g addiction during the period of 1989 to

1990.

3. Petitioner served in the United States Naval forces

during “ D esert S torm” when military action was initiated against

Iraq in the 1991.

4. Upon his return, Petitioner was incarcerated and

ev aluated in 1992 for depression in Norfolk, Virginia, as a

result of his striking a superior officer without reason.

Petitioner was subsequently discharged from the United States

military forces with an “OTH” (other than honorable) discharge.

5. P etitioner is considered 100 percent disabled by the

S ocial S ecurity A dministration and (as of January 26, 2004)

receives approximately $897 per month from that agency.

Additionally, all of his medications for seizures, depression

and a back ailment are pr ovided to him free in the form of

Medicaid benefits. Respondent was informed by Petitioner of

Petitioner’s health status and income at the time of

Petitioner’s entry into Respondent’s trailer park in 2004.

6. As a result of his special needs, Peti tioner keeps and

feeds five cats. Three of the cats are “outside cats” and

basically come up to be fed. When Petitioner tried to cage the

three cats, they dug their way out of the pen in which he placed

them. Two of the cats are permitted into Petitione r’s living

quarters; a solid black cat and a Siamese cat. The cats help

sooth Petitioner’s “nerves.”

7. Respondent refused to provide adequate maintenance of

the trailer rented to Petitioner, although Petitioner requested

such maintenance. Floors rotted to the point that Petitioner’s

wife fell through the bathroom floor at one point, requiring

that paramedics be summoned to rescue her. Photographs

submitted into evidence at the final hearing also co rroborate

Petitioner’s testimony with regard to t he sad state of the

disrepair of the dwelling rented to Petitioner. It is

Respondent’s practice to repair trailers only when they are

vacant.

8. Petitioner requested that Respondent provide him with

information regarding Respondent’s insurer after Petitioner’s

wife fell through the bathroom floor. Respondent refused to

provide the requested information.

9. Contrary to allegations of Petitioner’s Petition for

Relief, dated February 22, 2006, in which Petitioner alleged he

was forced to move out as a result of Respondent’s failure to

make accommodations for Petitioner’s handicap, Petitioner failed

to pay required rent on the premises and Respondent proceeded to

file for eviction of Petitioner from the premises promptly after

Petitioner’s inquiry seeking information regarding Respondent’s

insurer. By Petitioner’s own admission, Respondent’s request

for eviction of Petitioner was granted by the local courts.

Petitioner and his wife vacated the premises on September 1,

2005.

CONCLUSIONS OF LAW

10. The Division of Administrative Hearings has

jurisdiction over the parties and the subject matter of this

case. §§ 120.569 and 120.57(1), Fla. Stat.

11. Pursuant to 42 U.S.C. 3604(f)(3)(B) and Section

760.23(9)(b), Florida Statutes, it is discrim inatory to refuse a

request for reasonable accommodations in rules, policies and

practices, when such accommodations are needed to afford a

disabled person an equal opportunity to use and enjoy a

dwelling. 42 U.S.C. 3604(f)(3)(A) and § 760.23(9)(a), Fla.

Stat. It is also considered discriminatory to refuse to permit,

at the expense of the handicapped person, reasonable

modifications, if such modifications are necessary to afford

such person full enjoyment of the premises.

12. To establish discrimination, Petitioner must prove the

following elements: 1) He has a handicap or is a person

associated with a handicapped person; 2) Respondent knows of the

handicap or should be reasonably expected to know of the

handicap; 3) Modification of the existing premises or

accommodation of the handicap is necessary to afford the

Petitioner an equal opportunity to use and enjoy a dwelling; and

4) Respondent refused permission for such modifications, or

refused to make such accommodation. HUD v. Ocean Sands, Inc . ,

Fair Hou sing - Fair Lending Reporter ¶ 25,055 (HUDALJ,

September 3, 1993).

13. Once Petitioner has demonstrated the above elements,

Respondent has the burden of proving the requested

modification/accommodation is unreasonable. See United States

v. Freer , 86 4 F. Supp. 324 at 326 (W.D.N.Y. 1994); Hovsons, Inc.

v. Township of Brick , 89 F.3d 1096 at 1103 (3rd Cir. 1996);

United States v. California Mobile Home Park Management Co . ,

29 F.3d 1413 at 1421 (9th Cir. 1994).

14. Unfortunately, an analysis of the instant c ase does

not proceed to the point of determining whether Respondent

subjected Petitioner to discriminatory action because Petitioner

did not pay the required rent and was then, by Petitioner’s own

admission, evicted from the trailer park.

15. Petitioner's unsupported, subjective belief that he

has been the subject of discrimination is not sufficient to meet

his burden. Earley v. Champion International Corporation , 907

F.2d 1077 (11th Cir. 1990); William v. Hager Hinge Co. , 916 F.

Supp. 1163 (M.D. Ala. 199 5).

16. Even assuming arguendo that Petitioner is correct in

his supposition that he was denied accommodation for his

handicap and subjected to eviction proceedings where Respondent

prevailed, Petitioner's testimony constituting his opinion that

he wa s singled out because of his handicap does not constitute

preponderant evidence, standing alone, sufficient to establish

discrimination. William v. Hager Hinge Co. , supra .

In summary, the entire body of circumstantial evidence adduced

in this case, fail s to constitute preponderant evidence that

Respondent has subjected Petitioner to an unfair housing

practice.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of

Law, it is

RECOMMENDED:

That FCHR enter a final order dismissing the Petition for

Relief.

DONE AND ENTERED this 1 6t h day of June, 2006, in

Tallahassee, Leon County, Florida.

S

DON W. DAVIS

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 1 6 th day of June, 2006.

COPIES FURNISHED :

Denise Crawford, Ag ency Clerk

Florida Commission on Human Relations

2009 Apalachee Parkway, Suite 100

Tallahassee, Florida 32301

Cecil Howard , General Counsel

Florida Commission on Human Relations

2009 Apalachee Parkway, Suite 100

Tallahassee, Florida 32301

George P. Ran ce

Post Office Box 11

Istachatta, Florida 34636

James Wavis

Post Office Box 95

Istachatta, Florida 34636 - 0095

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.