06-002819 Samuel Sukyasov vs. Gmc Property Management Status: Closed Recommended Order on Thursday, November 30, 2006.

Summary: Petitioner did not prove that Respondent committed a discriminatory housing practice based on national origen.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

SAMUEL SUKYASOV , )

)

Petitioner , )

)

vs. ) Case No. 06 - 2819

)

GMC PROPERTY MANAGEMENT , )

)

Respondent . )

)

RECOMMENDED ORDER

A formal hearing was conducted in this case on October 17,

2006, in Jacksonville, Florida, before Suzanne F. Hood,

Administrative Law Judge with the Division of Administrative

Hearings.

APPEARANCES

For Petitioner: Samuel Sukyasov, pro se

2705 Sta rdust C ourt , N u m ber 10

Jacksonville, Florida 32211

For Respondent: Gregory Simms, Owner

GMC Property Management

9550 Regency Square Boulevard

Suite 902

Jacksonville, Florida 32225

STATEMENT OF THE ISSUE

The issue is whether Respondent committed a discriminatory

housing practice against Respondent in violation of Section

760.23(2), Florida Statutes (2005).

PRELIMINARY STATEMENT

On or a bout February 8, 2006, Petitioner filed a complaint

with the Federal Department of Housing and Urban Development.

The complaint alleged that Petitioner was injured by a

discriminatory housing practice.

On or about April 21, 2006, Petitioner Samuel Sukya sov

(Petitioner) filed a Housing Discrimination Complaint with the

Florida Commission on Human Relations (FCHR). The complaint

alleges that Respondent GMC Property Management committed

discriminatory housing practices based on Petitioner’s national

origin . Specifically, Petitioner alleged the following: (a)

Respondent did not provide requested services and repairs

consistent with the terms and conditions applicable to all

residents; (b) Respondent entered Petitioner’s apartment without

prior notice; (c) Respondent contaminated Petitioner’s bathtub

and sink with hazardous chemicals as part of its pest control

routine; (d) Respondent applied its lease provisions related to

parking and towing of motor vehicles unequally by towing

Petitioner’s vehicle; (e) Re spondent threatened Petitioner with

eviction for non - payment or late payment of rent even though

Petitioner was current in the payment of rent.

FCHR investigated Petitioner’s complaint. On June 6, 2006,

FCHR entered a Notice of Determination of No Reas onable Cause to

believe that Respondent violated Section 760.23(2), Florida

Statutes (2005), by discriminating against Petitioner based on

his national origin.

On or about July 20, 2006, Petitioner filed a Petition for

Relief with FCHR. On August 4, 20 06, FCHR referred the petition

to the Division of Administrative Hearings.

A Notice of Hearing dated August 16, 2006, scheduled the

hearing for October 10, 2006. An Amended Notice of Hearing

rescheduled the hearing for October 17, 2006.

During the heari ng, Petitioner testified on his own behalf.

Petitioner offered 10 exhibits that were accepted into the

record as evidence.

Respondent presented the testimony of one witness.

Respondent offered five exhibits that were accepted into the

record as evidence .

Neither party filed a transcript of the proceeding. On

October 26, 2006, Respondent filed a timely Proposed Recommended

Order. Petitioner filed an untimely Proposed Recommended Order

on October 30, 2006.

FINDINGS OF FACT

1. Petitioner, an Arme nian, began renting one of the units

in Respondent’s Colony Apartments on August 14, 2002, The

initial lease term was August 14, 2002, to August 31, 2003. The

monthly rent was $340 per month.

2. Petitioner renewed his lease beginning September 1,

2 003, through March 31, 2004, for a monthly rent in the amount

of $350.

3. Petitioner renewed his lease beginning April 1, 2004,

through March 31, 2005, for a monthly rent in the amount of

$360.

4. Petitioner renewed his lease in a timely mann er on or

about March 31, 2005. On April 1, 2005, the monthly rent for

Petitioner’s apartment increased to $370.

5. On April 4, 2005, Respondent charged Petitioner an

extra $50 as a month - to - month charge because Respondent’s staff

unintentionally f ailed to enter the lease renewal into

management’s software. This clerical error resulted in

Petitioner receiving one or more delinquency notices.

6. On April 6, 2005, Petitioner paid $365 in rent.

Petitioner paid $370 in rent on May 6, 2005.

7. The rules addendum to the lease agreement at issue here

provides as follows in pertinent part:

1. LATE PAYMENTS AND RETURNED CHECKS:

a. Rent paid after the first day of

each month shall be deemed as late; if rent

is not received by cl ose of business on the

5 th day of the month, resident agrees to pay

an additional fee of $50.00. Such fees will

be considered additional rent.

* * *

4. TERMINATION OF LEASE: Either

Resident or Landlord may terminate this

Lease Agreement at the e nd of the term by

giving the other party thirty (30) days

prior written notice. If Resident vacates

[or] fails to give such notice, the Lease

will be renewed on a month - to - month basis

for successive one - month terms at a premium

of $50.00 above the current monthly market

rent until either party gives thirty (30)

days prior written notice to the other, as

provided herein. . . .

* * *

9. RIGHT OF ACCESS: Landlord shall

have the right to enter the Apartment

without notice, for inspection maintenance

and pest control during reasonable hours.

In case of emergency, Landlord may enter at

any time to prevent damage to property.

* * *

15. REPAIRS: Resident accepts the

Apartment in its current “as is” condition.

Landlord will make necessary repair s to the

Apartment to render Apartment tenantable

with reasonable promptness after receipt of

written notice from Resident unless the

repairs are required due to acts of

negligence of Resident of his guests, in

which case, Resident agrees to pay Landlord

i mmediately the cost of repair. Resident

agrees to make maintenance checks at regular

intervals on each smoke alarm located in the

Apartment and to immediately report any and

all defects in writing to Landlord . . .

Resident shall maintain the Apartment,

i ncluding the fixtures therein, in a clean,

sightly and sanitary condition . . . .

* * *

23. RULES AND REGULATIONS:

* * *

e. Parking: Resident agrees to abide

by the parking regulations established by

Landlord. No trailers, campers, boats, or

commercial vehicles will be allowed without

the written permission of Landlord. Motor

vehicles may be towed at Resident’s expense,

without notice, if parked improperly or if

parked on lawns. Only operating passenger

vehicles with current tags a nd ordinary size

may be parked on the Premises, motorcycles

shall not be parked beside buildings, under

overhangs or under stairways; disabled

vehicles with flat tires shall not be parked

on the Premises and all such vehicles may be

towed away without noti ce and at the

Resident’s expense. No vehicle repairs will

be allowed on the Premises.

* * *

o. Maintenance: Service call are

performed during normal weekday working

hours except in cases of bona fide

emergencies. All service calls must be

repo rted by the Resident to the Landlord

(i.e. office personnel). They may be

reported by telephone, written message, or

in person. Maintenance personnel employed

by the Landlord are not authorized to take

any individual calls except those that are

made thro ugh the office. Service calls are

performed on a “first - come, first - served”

basis with priority given to those requests

that would constitute a hazard or discomfort

to a resident.

8. On April 28, 2005, Petitioner requested Respondent to

perform t he following maintenance in his apartment after lunch:

(a) repair large burner on stove; (b) repair bottom oven

element; (c) repair living room blind; and (d) repair rusty

kitchen drain. Respondent completed these repairs the next day.

9. Petitio ner paid $370 in rent for the month of June

2005.

10. On June 10, 2005, Petitioner complained that his

refrigerator was leaking and that he lost food in the freezer

compartment. Respondent gave this complaint a high priority and

changed Petitioner ’s refrigerator.

11. By letter dated June 15, 2005, Respondent advised

Petitioner that his apartment was in an unsanitary condition.

The letter informed Petitioner that he had seven days to correct

the matter at which time, Respondent intended to inspect

Petitioner’s apartment.

12. A letter dated June 22, 2005, stated that Respondent

intended to inspect Petitioner’s apartment for cleanliness on

June 23, 2005 at 8:00 a.m. The letter also advised that

Respondent intended to fix a leak causin g damage to the

apartment below Petitioner’s apartment. In the letter,

Respondent demanded that Petitioner clean his bathtub so that

Respondent’s maintenance men could caulk it and stop the leak.

The letter warned Petitioner that if the bathtub was not

c leaned, Respondent would have a housekeeper to clean it and

charge Petitioner’s account $50 for the service provided.

13. Petitioner paid $370 in rent for the month of July.

On July 6, 2005, Respondent finally adjusted Petitioner’s

account to corr ect the erroneous $50 one - time, month - to - month

charge carried over since April 2005. It took three months for

Respondent to verify that the $50 charge was Respondent’s

clerical error and not Petitioner’s failure to pay his rent on

time or his failure to t imely renew his lease. The correction

resulted in a zero balance on Petitioner’s account.

14. On July 5, 2005, Petitioner requested the following

maintenance in his apartment: (a) repair problem causing sink

to backup; and (b) repair problem caus ing bathtub to have spots

and an unpleasant odor. Petitioner told Respondent he believed

that the maintenance men had poured a chemical in his bathtub,

causing the spots and the odor. Respondent gave this complaint

a high priority, sending a maintenance man to Petitioner’s

apartment later that day. The maintenance man repaired the sink

and inspected the bathroom. There is no credible evidence that

Respondent used a chemical in the building’s plumbing system

that caused the spots and bad smell in Respond ent’s bathtub.

The greater weight of the evidence indicates that Petitioner did

not keep his tub clean.

15. In July 2005, Respondent’s staff placed a warning

notice on Petitioner’s vehicle. The notice advised that the

vehicle was subject to towin g by a date certain due to an

expired license tag as of May 2003 and a flat tire. After

receiving the notice, Petitioner moved his vehicle and parked it

in another area of the apartment complex.

16. Respondent’s staff issues these warning notices to any

vehicles on the apartment premises that are parked improperly,

broken down and unattended, had missing or expired license tag,

and/or had a flat tire. Respondent’s staff does not check to

determine the ownership of the car before issuing the warnin g.

17. Respondent’s staff placed a second warning notice on

Petitioner’s vehicle for the same reasons. On August 23, 2005,

Ace Towing & Storage, pursuant to a contract with Respondent,

removed Petitioner’s car from the premises. The contract with

the towing company results in five to ten cars per month being

removed from the premises.

18. Between the time that Petitioner’s car was towed in

August 2005 and the hearing, Petitioner compiled a long list of

vehicles that he claims violated Resp ondent’s rules and

regulations for motor vehicles. During the hearing, Respondent

presented persuasive evidence that all but two of the cars had

been moved or towed from the premises. The two vehicles that

remained at the apartment complex no longer viol ated

Respondent’s rules and regulations.

19. On August 23, 2005, Petitioner complained that the

deadbolt lock on his apartment door would not move.

20. On August 24, 2005, Petitioner complained that his

kitchen blind needed to be replaced.

21. O n August 25, 2005, Petitioner would not allow

Respondent’s maintenance men to enter his apartment to make

repairs.

22. O n August 30, 2005, Petitioner’s downstairs neighbor

filed a written complaint with Respondent. The neighbor

compla ined that his apartment had bathroom mold for the fourth

time and that he was experiencing breathing problems due to the

mold. The neighbor also complained that Petitioner made noises

all night long. According to the neighbor, the noises sounded

like Pet itioner was moving furniture.

23. On or about August 31, 2005, Respondent sent

Petitioner a letter advising him that loud noises from his

apartment were disturbing other residents. The letter requested

Petitioner’s cooperation in keeping noise at a minimum.

24. At some point in time, Petitioner filed a housing

complaint with the City of Jacksonville. In response to

Petitioner’s complaint to the City of Jacksonville, Respondent

delivered a timely letter dated September 13, 2005, to

Petition er. The letter informed Petitioner that it would be

inspecting his apartment on September 14, 2005. The letter

complied with the requirements of Section 83.53, Florida

Statutes (2005).

25. On September 14, 2005, Respondent and the city’s

inspecto r attempted an inspection of Petitioner’s apartment

pursuant to Chapter 518, Jacksonville Municipal Code, to

determine compliance with the City’s Property Safety and

Maintenance Code, a city ordinance, which sets minimum property

standards. The inspector could not complete the inspection

because he could not gain access to Petitioner’s apartment.

26. By letter dated October 12, 2005, Respondent provided

Petitioner with a seven - day notice of termination of tenancy

with option to cure, as authorized by Section 83.56(2)(b),

Florida Statutes (2005), and rules addendum to the lease

agreement. The letter states as follows in relevant part:

You are hereby notified the GMC

Property Management intends to terminate you

tenancy, for reason of your fail ure to

comply with the duties imposed upon tenants

by law and/or with material provision of you

rental agreement, to wit: It has come to

our attention that you are disturbing and

being a nuisance to the resident (sic).

This is in violation of your lease

agreement. We need you to correct this

matter immediately to avoid termination of

your lease agreement. Demand is hereby made

that you remedy the noncompliance within

seven (7) days of this notice or your lease

shall be deemed terminated and you shall

va cate the premises upon such termination.

If this same conduct, or conduct of a

similar nature is repeated within 12 months,

your tenancy is subject to termination

without your being given an opportunity to

cure the noncompliance.

Because Petitioner was not at home or would not open the door,

Respondent delivered this letter to Petitioner in a timely

fashion by posting it at the entrance to Petitioner’s apartment.

27. On April 6, 2006, Petitioner renewed a lease for the

term beginning April 1, 20 06, to March 31, 2007, for $385 per

month.

28. On May 8, 2006, Petitioner complained that he was

having problems with his plumbing because his bathroom had brown

spots on the floor and wall. Petitioner would not let

Respondent’s maintenance in his apartment on May 9, 2006.

CONCLUSIONS OF LAW

29. The Division of Administrative Hearings has

jurisdiction over the parties and the subject matter of this

proceeding. See §§ 120.569, 120.57(1), and 760.35(3), Fla.

Stat. (2006).

30. Petitio ner alleges that Respondent violated the

Florida Fair Housing Act, Sections 760.20 - 760.37, Florida

Statutes (2005). Specifically, Petitioner asserts that

Respondent violated Section 760.23(2), Florida Statutes (2005),

which prohibits discrimination agains t a person in the terms,

conditions, or privileges of rental of a dwelling, or in

provision of services or facilities in connection with the

rental of a dwelling because of, among other reasons, the

person’s national origin.

31. In all respects mat erial here, the language in Section

760.23(2), Florida Statutes (2005), is identical to that in

Title 42, Section 3604(b), United States Code, which is part of

the F ederal Fair Housing Act, as amended. “If a Florida Statute

is modeled after a federal law on the same subject, the Florida

statute will take on the same construction as placed on its

federal prototype, insofar as such interpretation is harmonious

with the spirit and poli cy of the Florida legislation.” See

Brand v. Florida Power Corporation , 63 3 So. 2d 504, 509 - 510

(Fla. 1 st DCA 1994).

32. Petitioner has the ultimate burden of proving that

Respondent committed a discriminatory housing practice based on

his national origin, Armenian. See § 760.34(5), Fla. Stat.

(2005). However, in the a bsence of direct evidence of

intentional discrimination, the following well - established,

three - part burden of proof test developed in McDonnell Douglass

Corp. v. Green , 411 U.S. 792 (1973), is used in analyzing cases

brought under the Federal Fair Housing Act:

First, the plaintiff has the burden of

proving a prima facie case of discrimination

by a preponderance of the evidence. Second,

if the plaintiff sufficiently establishes a

prima facie case, the burden shifts to the

defendant to articulate some legi timate,

nondiscriminatory reason for its action.

Third, if the defendant satisfies this

burden, the plaintiff has the opportunity to

prove by a preponderance that the legitimate

reason asserted by the defendant are in fact

mere pretext.

See United Stat es Department of Housing and Urban Development v.

Blackwell , 908 F.2d 864, 872 (11 th Cir. 1990), quoting P ollitt

v. Bramel , 669 F. Supp. 172, 175 (S.D. Ohio 1987).

33. Petitioner initially must establish the following

elements: (a) Petitioner is a member of a protected group

relative to his national origin; (b) Petitioner rented one of

Respondent’s apartments and was able and willing to comply with

the terms of the lease agreement when he executed his renewal

lease on or about March 31, 2005; and ( c) Respondent subjected

Petitioner and other apartment residents who were not members of

the protected group to different rental terms and conditions or

provided them with different services and facility usage.

34. Petitioner has not proved the thi rd element of his

prima facie case. There is no evidence that Respondent failed

or refused to offer the same terms and conditions for renting to

Petitioner as were offered to other residents in the apartment

complex. Specifically , Petitioner did not demo nstrate the

following: (a) that Respondent treated him any differently than

any other resident who placed a work order for maintenance

services; (b) that Respondent ever entered Petitioner’s

apartment without proper notice; (c) that Respondent had his car

towed but failed to have other cars with parking violations

towed; (d) that Respondent threatened to evict him for failure

to pay his rent; and (e) that Respondent stained his bathtub

with smelly chemicals of any kind.

35. To the extent that Petit ioner proved his prima facie

case, Respondent presented a legitimate nondiscriminatory reason

for every action it took or failed to take. First, Respondent

responded promptly to all of Petitioner’s maintenance requests

and made all necessary repairs when Petitioner did not deny

access to his unit. Respondent did not ignore or delay making

needed repairs in Petitioner’s apartment.

36. Second, Respondent needed emergency access to

Petitioner’s apartment to stop water damage to the downstairs

apartme nt. Respondent complied with the requirements of Section

83.53, Florida Statutes (2005), before entering Petitioner’s

apartment to make the necessary repairs.

37. Third, Respondent gave Petitioner two warnings that

his car would be towed due to a flat tire and expired license

tag. The greater weight of the evidence indicates that

Respondent routinely had cars towed that violated the parking

rules and regulations without knowing who owned the towed

vehicle. All cars identified by Petitioner as vio lating the

parking rules were eventually towed, removed from the premises,

or restored to operational status.

38. Fourth, Respondent never threatened to evict

Petitioner for non - payment of rent. The erroneous one - time $50

charge to Petitioner’s ac count was a clerical mistake resulting

in no harm to Petitioner.

39. Respondent issued a seven - day termination notice with

option to cure because Petitioner made noises that disturbed

other residents. There is no evidence that any other resident

w as allowed to make such noises after receiving a first warning

and therefore avoid receiving the notice set forth in Section

83.56(2), Florida Statutes (2005).

40. Finally, there is no competent evidence that

Respondent used hazardous chemicals in Petitioner’s plumbing.

Respondent’s only concern regarding Petitioner’s bathtub, was to

require Petitioner to clean the tub so that Respondent’s

employees could caulk around it to stop the downstairs leak.

41. Petitioner has not shown that Respond ent’s reasons for

actions taken or not taken were a pretext for a discriminatory

housing practice based on national origin. The record here

indicates that Respondent applied the terms of the lease to all

residents, including Petitioner, without regard to their

national origin. On the other hand, Petitioner repeatedly

violated the lease agreement and its rules addendum.

RECOMMENDATION

Based on the forgoing Findings of Fact and Conclusions of

Law, it is

RECOMMENDED:

That the Florida Commission on Hum an Relations enter a

final order finding that Respondent did not commit a

discriminatory housing practice based on Petitioner’s national

origin.

DONE AND ENTERED this 30th day of November , 2006 , in

Tallahassee, Leon County, Florida.

S

SUZANNE F. HOOD

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 30th of November , 2006 .

COPIES FURNISHED :

Cecil Howard, General Counsel

Florida Commission on Human Relations

2009 Apalachee Parkway, Suite 100

Tallahassee, Florida 32301

Denise Crawford, Agency Clerk

Florida Commission on Human Relations

2009 Apalachee Parkway, Suite 100

Tallahassee, Florida 32301

Samuel Sukyasov

2705 Stardust Court, No. 10

Jacksonville, Florida 32211

Gregory Simms

GMC Property Management

9550 Regency Square Boulevard , Suite 902

Jacksonville, Florida 32225

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.