07-001087 Wanda Hutcheson vs. Robert And Justyn Macfarland And Sand Dune Properties Status: Closed Recommended Order on Friday, December 7, 2007.

Summary: The evidence did not demonstrate that Petitioner was handicapped as defined in statute even though she had Obsessive Compulsive Disorder, a mental illness.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

WANDA HUTCHESON , )

)

Petitioner , )

)

vs. ) Case No. 07 - 1087

)

ROBERT AND JUSTYN MACFARLAND )

AND SAND DUNE PROPERTIES , )

)

Respondent s . )

)

RECOMME NDED ORDER

Pursuant to Notice, a formal hearing was held in this

matter before Diane Cleavinger, Administrative Law Judge with

the Division of Administrative Hearings , on August 6, 2007, in

Pensacola, Florida .

APPEARANCES

For Petitioner: Melissa A. Posey, Esquire

Melissa A. Posey, P.A.

201 East Government Street, Suite 36

Pensacola, Florida 32502

For Respondent: Robert and Justyn MacFarland

Sand Dune Prope rties

7173 Blue Jack Drive

Navarr e, Florida 32566

STATEMENT OF THE ISSUE

Whether the Petitioner has been the subject of a

discriminatory housing p ractice.

PRELIMINARY STATEMENT

In 2006, Petitioner filed a C harge of D iscrimination with

the Florida Commission on Human Relations (FCHR) cl aiming

housing discrimination against her by the Respondents based on

Petitioner’s mental disability. Specifically, the charge

alleged that Respondents discriminated again st her when they

withdrew their offer to renew the lease to her apartment and

forcibly evicted her from the premises after the lease had

terminated. FCHR investigated the charge of discrimination. On

February 6, 2007, FCHR issue d a finding of No Probable Cause on

Petitioner’s claim. Petitioner disagreed with FCHR’s findings

and filed a Petition for Relief. The Petition was based on the

earlier Charge of Discrimination.

At the hearing, Petitioner testified in her own behalf and

called eight witnesse s to testify. Petitioner also offered the

deposition testimony of two witness es and offered 41 exhibits

into evidence. Respondents offer ed seven exhibits into

evidence.

After the hearing , Petitioner filed a Proposed Recommended

Order on September 6, 2007. Respondents filed a Proposed

Recommended Order on September 4, 2007.

FINDINGS OF FACT

1. Several years prior to 2007, Petitioner, Wanda

Hutcheson, leased one side of a duplex a partment from LGMS . The

apartment was located on 3359 Greenbrie r Circle, in Gulf Breeze ,

Florida. During the time that LGMS owned the property, the

property manager found her to be a responsible tenant who paid

her rent on time. Indeed, the manager felt that she had

improved the look and value of the property becaus e she had done

extensive landscaping in her front yard. The increase in value

was not shown by the evidence.

2. At the time, Petitioner’s landlord knew that she had a

mental disorder known as Obsessive Compulsive Disorder (OCD).

In part, the extens ive yard work done by Petitioner was due to

her OCD. She regularly watered her yard with the shared

sprinkler system that served bo th apartments in the duplex .

However, t he electricity for the water pump that operated the

sprinkler system was hooked into the electrical system for the

apartment adjoining Petitioner’s apartment . The sprinkler

system was operated by a switch located eithe r by or in the

electrical box for the adjoining apartment and the electrical

box for her apartment . Petit i oner was frequ ently in the area of

those boxes.

3 . Respondent, Sand Dunes Property, LLC (Sand Dunes) , is a

limited liability company owned and operated by Respondents,

Robert and Justin MacFarland. In 2006, Sand Dunes purchased

several parcels of rental property from LGMS , including the

apartment leased by Petitioner .

4 . In February 2006, prior to Sand Dunes’ purchase of the

property, the MacFarlands visited the premises they were about

to purchase and met Petitioner. At that time, Petitioner told

the Respo ndents that she had OCD. She neither request ed nor

indicated the need for any special accommodations from the

Respondents regarding her lease. The evidence did not show that

the Respondents knew or were aware that OCD could be a

disability that might sig nificantly interfere with a person’s

life activities. To them, Petitioner did not seem mentally

disabled and appeared able to carry out her daily activities.

She appeared to live her life as any other person might. In

fact, among other things, Petitione r drove a car, occasionally

worked cleaning houses, performed yard work, had the electrical

part of her apartment’s sprinkler system transferred to her

electrical system, paid her lease and cared for other people’s

children.

5 . Around March 2006 , sub sequent to the purchase of the

property by the Respondents , Peter Bouchard moved into the

apartment next to Petit i oner’s apartment. Shortly a fter he

moved in, Petitioner was watering her yard with the sprinkler

system. Mr. Bouchard saw her and turned off the sprinkl er

system. He told her he did no t believe in watering the grass

and that he did not want his yard watered. He told her that as

long as the pump was hooked to his electrical box that she could

not use the sprinkler system since he was paying f or the

electricity used in its operation. He suggested that she could

have the pump transferred to her electrical box if she wanted to

continue to use the system.

6 . Petitioner called Respondents and left a message about

the need to transfer the ele ctrical connection for the sprinkler

system to her electrical box and to make sure it was alright for

her to pay to have the system transferred. The evidence did not

show that she related the details of Mr. Bouchard’s actions to

Respondent’s. She did not receive a response to her message and

eventually paid for the system to be transferred to her

electrical box. At some point, even though she did not own the

sprinkler systems components, she removed the sprinkler heads

from Mr. Bouchard’s side of the yar d. She capped the pipe where

the heads had been and filled the hole. She did not tell anyone

that she had removed the sprinkler heads, but kept the sprinkler

heads in her apartment.

7 . Additionally, during March 2006, Petitioner complained

to Santa Rosa Animal Control about Mr. Bouchard’s two dogs being

abused by him and barking. She also complained about the two

dogs of the neighbor who lived behind her, Jodi Henning. Both

of these incidents were investigated by A nimal Control and no

abuse was di scovered. In fact , the dogs never barked or only

barked for a short time when the investigator visited the duplex

on two occasions . Petitioner’s actions appeared to be in

retaliation for Mr. Bouchard’s refusal to permit her to use the

sprinkler system.

8 . Finally, at some point, Petitioner while on her front

porch saw Mr. Bouchard’s son walking to his apartment. She told

the boy that she would cause Mr. Bouchard’s dogs to be removed

for abuse and then would have him removed for the same reason.

Th e comment upset both the boy and Mr. Bouchard.

9 . On April 3, 2006, Sand Dunes mailed a written offer to

enter into a new lease with Petitioner . The offer was made to

Petitioner because her lease would terminate on May 30 , 2006.

The offer was condi tioned upon an increase in the monthly rent

on Petitioner’s apartment. The offer stated , “Please let us

know by May 1st of your decision so that we may set up an

appointment to review and sign your new lease agreement.” The

intent of the letter’s languag e was to not be contractually

bound until a new lease was signed by the parties . There was no

evidence that Respondent s treated any other potentially

continuing tenant differently.

10 . Around April 4, 2006, Mr. MacFarland left a message

for Petition er regarding a maintenance check on her apartment’s

air conditioner. Petitioner returned the call and left a

message that she could not be present at the time suggested and

asked that the work be performed at another time.

11 . Petitioner received th e written offer of renewal on

April 5, 2006, and attempted to accept the offer by leaving a

message on Respondent’s telephone. After the first message ,

Petitioner left town to attend a family function out of state .

12 . Around April 6, 2006, air - cond itioning m aintenance

checks w ere performed on nine of ten units owned by the

Respondents in the Greenbrier area.

13 . Around April 6 or 7, 2006, Resp o ndent s were contacted

by Mr. Bouchard. Mr. Bouchard complained about Petitioner to

the M a cFarlands. He told them that Petitioner had stolen the

sprinkler heads out of his side of the yard and that she turned

off the electricity to his apartment. He showed them a

photograph of the unlocked elect r ical box to his unit. He also

relayed to Respondent s that Petitioner had repeatedly accused

him of abu sing his dogs , not properly vaccinating his dogs and

had repeatedly reported him to Animal C ontrol for animal abuse

and barking dogs. Apparently, Mr. Bouchard complained enough

about Petitioner to Respondents t o make them believe that

Respondent was a particularly disruptive and vengeful tenant.

14. At some point, Respondents became aware of Jodi

Henning’s problems with Petitioner. Ms. Henning lived in a

different complex from Petitioner. However, her backyard

adjoined Petitioner’s backyard. She called the Sheriff's

D epartment on Ms. Hutcheson on a few occasions for problems she

had with Petitioner. None of the incidents amounted to an

arrest. During an evening i n March 2005 , Ms. Henning’s dogs

were inside with her. They had not been outside. Ms. Henning

answered the door. Petitioner, who was quite angry , complained

about Ms. Henning’s dogs and told her th at she had made an enemy

of Petitioner and that she would make Ms. Henning’s life

miserable. Ms. Henning called the Sheriff’s Department. The

911 operator asked if Petitioner was drunk. Ms. Henning said

that Petitioner was not drunk , but just crazy and mean.

Petitioner was told by law enforcement personnel that Santa Rosa

County Animal Control should be contacted if she had an issue

with a neighbor's dog. She then filed a complaint with Santa

Rosa County Animal Control about Ms. Henning’s dogs. Petitioner

made a similar complaint in April 2006. Neither complaint was

found to have merit by the investigator for Animal Control.

1 5 . Additionally, Ms. Henning felt that she could not go

out in her yard without Petitioner coming out to watch her.

Petitioner never engaged in any physically, aggressive behavior.

However, Ms. Henning felt she be c a me threatening to the point

she was afraid.

16 . Petitioner had told both Ms. Henning and Mr. Bouchard

that she had OCD. However, based on their observation of her,

n either thought that Petitioner was disabled by her condition.

They both thought t hat she was simply nosy and mean. On the

other hand, there were former neighbors who thought Petitioner

was a nice person and a good neighbor. However, the evidence

did not demonstrate that these neighbors ’ opinions were known to

the Respondents during t he time the offer to lease was

outstanding.

17 . Mr. MacFarland obtained copies of "call reports"

received by Animal Control regarding Ms. Henning and

Mr. Bouchard's dogs. Those reports consisted of complaints in

March 2005 about Ms. Henning's two do gs, and in March 2006

concerning Ms. Henning's two dogs and Mr. Bouchard's two dogs.

18 . On April 10, 2006, Respondent s sent a letter on Sand

Dunes' stationary revoking the earlier offer to lease her

apartment after expiration of her lease. Based on the

Respondents limited knowledge about Petitioner during the time

the offer to lease was outstanding , their conclusion was neither

unreasonable nor discriminatory. Thereafter, the Respondents

were entitled to rely on the expiration of the lease by its

terms and the peaceful return of the premises.

19 . Petitioner received the revocation letter around

April 12, 2007, when she returned home from out of state . No

explanation was given in t he letter for the withdrawal of the

offer to lease.

2 0 . Petitioner called Mr. MacFarland on the date she

received the revocation letter. She was very distraught and

tearful. During the long conversation, t he only explanation

Respondent recalled from Mr. MacFarland as to why Respondents

withdrew their offe r was that he did not like her. Petitioner

also was told to communicate with their lawyer, Keri Anne

Schultz, Esquire.

21 . Petitioner went to Ms. Schultz's law office to discuss

the situation with her. Ms. Shultz was not in the office.

Petitioner was to ld by the receptionist that she could not wait

in the office for Ms. Schultz to return . Ms. Hutcheson wanted

to write Ms. Schultz a note regarding renting the duplex.

Mr. Bordel on, Ms. Schultz's partner , threatened to call the

police if Petitioner remain ed at the office. Petitioner left

the office.

22. Thereafter, t he only communication from the

MacFarlands or their attorney was legal notices to vacate the

premises . Petitioner did attempt to send them information on

OCD. The evidence was not clear whe ther the Respondents

received the information or reviewed it.

23. Petitioner refused to vacate the premises and a n

eviction action was filed in June 2006 . A hearing was held in

the Circuit Court in June and July of 2006. By court order

dated August 17 , 2006, Respondents were awarded possession of

the property on August 31, 2006 , at 11:59 p.m .

24 . Unfortunately , Petitioner, due to ill health , did not

begin to vacate the premises until a few days prior to forcible

removal. She was not finished moving on September 5, 2006, five

days after the Respondents were to be put in possession of the

property. The Respondents had the Sheriff’s Deputy remove

Petitioner from the premises, telling her that she should have

been out a long time ago. The MacFarlands , with a little help

from Mr. Bouchard , removed the rest of Petitioner’s possessions

to the curb. During the removal, the bottom of a box

Mr. Bouchard was carrying came undone and some of the contents

fell onto the pavement. One jar of food was broken. A ll of

these events were very distressful to Petitioner.

25 . Upon learning that she would be evicted, Petitioner

began seeing Dr. Bingham in May 2006. Eventually, she was

involuntarily committed for a short time and has been seeing

Dr. Bingham every two o r three weeks for the last year.

26 . The apartment remained vacant for several months after

the eviction. Eventually , Mr. Bouchard moved into the unit at a

lower rate of rent than he paid for his old apartment but higher

than the amount Petitioner wo uld have paid if the new lease had

taken effect .

27 . As indicated, between February 2006 and April 2006 ,

Mr. and Mrs. MacFarland's only contact with Petitioner was a

visit to her duplex apartment with the realtor selling the

property and some voice mails exchan ged between them concerning

the sprinkler and air conditioning system s . Respondents had

little knowledge regarding Petitioner. Even though the evidence

demonstrates that Respondents could have acted more kindly and

could have better informed thems elves ab out the circumstances of

Petiti oner, there was no evidence that the withdrawal of the

offer to renew was made based on an intent to discriminate

against Petitioner because of her mental disability. Therefore,

the Petition for Relief should be dism issed.

CONCLUSIONS OF LAW

28 . The Division of Administrative Hearings has

jurisdiction over the subject matter of and the parties to this

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

2 9 . Section 760.23, Florida Statutes (2001), part of

Florida's Fai r Housing Act, provides in pertinent part:

(2) 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 rac e, color, national origin, sex,

handicap, familial status, or religion.

* * *

(8) It is unlawful to discriminate against

any person in the terms, conditions, or

privileges of sale or rental of a dwelling

or in the provision of services or

facilities in connection with such dwelling,

because of a handicap of:

(a) That buyer or renter

* * *

(9) For purposes of subsections (7) and

(8), discrimination includes:

* * *

((b) A refusal to make reasonable

accommodations in rules, policies,

practices, or s ervices, when such

accommodations may be necessary to afford

such person equal opportunity to use and

enjoy a dwelling.

30 . Petitioner has the burden of proving by a

prepon derance of the evidence that Respondents violated the

Florida Fair Housing Act. S ee §§ 760.34(5) and 120.57(1)(j),

Fla . Stat . (200 1 ).

31 . To establish a prima facie case of housing

discrimination , Petitioner must show:

a) that s he suffers from a handicap;

b) that Respondents knew of the handicap;

c) that an accommodation of the h andicap

was necessary to afford Petitioner an equal

opportunity to use and enjoy the housing in

question; and

d) Respondent refused to make such an

accommodation.

Schanz v. Village Apartments , 998 F. Supp. 784, 791 (E.D. Mich.

1998); U.S. v. California Mobile Home Park Mgmt Co. , 107 F.3d

1374, 1380 (9th Cir. 1997).

32 . Section 760.22, Florida Statutes, provides in relevant

part:

(7) "Handicap" means:

(a) A person has a physical or mental

impairment which substantially limits one or

more major life a ctivities, or he or she has

a record of having, or is regarded as

having, such physical or mental impairment;

or

(b) A person has a developmental disability

as defined in s. 393.063.

33 . "The Fair Housing Act defines 'handicap' to be 'a

physical or men tal impairment which substantially limits one or

more of such person's major life activities ’ ." Elliott v.

Sherwood Manor Mobile Home Park , 947 F. Supp. 1574, 1577. This

definition is virtually identical to those found in the federal

Fair Housing Act, 42 U.S.C. Subsection 3602(h)(defining

"handicap"); the Americans with Disabilities Act, 42 U.S.C.

Subsection 12102(2)(A)(defining "disability"); and the

Rehabilitation Act, 29 U.S.C. Subsection 705(9)(B)(defining

"disability"). Under the term "handicap" or "disability," each

of these laws provides relief only to a person with an

impairment that substantially limits a major life activity. See

§ 760.22(7) , Fla. Stat . Id. at 1577 - 78; see also Godwin v.

State , 593 So. 2d 211, 215, 219 (Fla. 1992).

34 . The Unit ed States Supreme Court has addressed the

definition of "disability" in the context of a case brought

pursuant to the Americans with Disabilities Act. In Sutton v.

United Airlines , 527 U.S. 471, 119 S.Ct. 2139, 2143, 114 L. Ed.

2d 450 (1999), the Court he ld that "the determination of whether

an individual is disabled should be made with reference to

measures that mitigate the individual's impairment."

35 . The Court in Sutton relied as well on the definitions

of "substantially limits" and "major life activ ities" contained

in the regulations of the Equal Employment Opportunities

Commission, as follows:

The term "substantially limits" means, among

other things, "[u]nable to perform a major

life activity that the average person in the

general population can pe rform;" or

"[s]ignificantly restricted as to the

condition, manner, or duration under which

the average person in the general population

can perform that same major life activity"

[Citation omitted.] Finally, "[m]ajor

[l]ife [a]ctivities means functions such as

caring for oneself, performing manual tasks,

walking, seeing, hearing, speaking,

breathing, learning, and working."

[Citation omitted.]

Sutton , 119 S. Ct. at 2145.

36 . The Court in Sutton observed that, in determining

whether a person with a phy sical impairment is disabled under

the Americans with Disabilities Act, the proper inquiry is

whether the person is substantially limited in one or more major

life activities, when the impairment is corrected or mitigated

through the use of medication or c orrective devices. According

to the Court, the Americans with Disabilities Act requires that

this determination be made for each individual with an

impairment:

A "disability" exists only where an

impairment "substantially limits" a major

life activity, no t where it "might,"

"could," or "would" be substantially

limiting if mitigating measures were not

taken. A person whose physical or mental

impairment is corrected by medication or

other measures does not have an impairment

that presently "substantially li mits" a

major life activity. To be sure, a person

whose physical or mental impairment is

corrected by mitigating measures still has

an impairment, but if the impairment is

corrected it does not "substantially

limi[t]" a major life activity.

Id. at 2146 - 4 7. See also Albertson's, Inc. v. Kirkingburg , 527

U.S. 555, 119 S. Ct. 2162, 2168, 144 L. Ed. 2d 518 (1999)(Error

for lower court to hold that a "mere difference" in ability met

the statutory definition: "By transforming 'significant

restriction' into 'di fference,' the court undercut the

fundamental statutory requirement that only impairments causing

'substantial limitat[ions]' in individuals' ability to perform

major life activities constitute disabilities.") .

37. In this case, Petitioner has failed to establish a

prima facie case of discrimination in that she has failed to

demonstrate that she is handicapped with in the meaning of the

Fair Housing Act. The fact that she has OCD does not mean that

she is handicapped for purposes of the Fair Housing A ct. Her

OCD must impair her in some major life activity and that

impairment must be significant.

38. The evidence showed that Petitioner functioned fairly

well in her life. She got along with some neighbors and did not

get along with others. She drove, occasionally worked, cooked,

cleaned, and solved problems that occurred in her life. Indeed

she handled the affects of her OCD fairly well. There was no

reason for the Respondents to assume that she was handicapped

simply because she has OCD, no accommodation was requested and

there was no duty to investigate her condit ion further prior to

Respondent s ’ decision not to enter into a lease with Petitioner.

Moreover, in this case, there was evidence to support the

Respondents withdrawal of the ir off er to lease . There were at

least two neighbors complaining about the actions of Petitioner

towards them. At that point, Respondents were entitled to

decide not to enter into a lease agreement with Petitioner once

her current lease terminated. After with drawal of the offer to

lease, Respondents could re ly on the terms of the contract,

peaceful vacation of the premises and to use Florida’s Landlord

Tenant Act to enforce their right to possession of the property .

Since Petitioner has not established a prim a facie case of

discrimination, the Petition for Relief should be dismissed.

RECOMMENDATION

Upon the foregoing Findings of Fact and Conclusions of Law,

it is recommended that the Florida Commission on Human Relations

enter a final order dismissing th e Petition for Relief.

DONE AND ENTERED this 7 th day of December , 2007 , in

Tallahassee, Leon County, Florida.

S

DIANE CLEAVINGER

Administrative Law Judge

Division of Administrative Hearings

The DeSoto Building

1230 Apala chee 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 7 th day of December , 2007 .

COPIES FURNISHED :

Denise Crawf ord, Agency Clerk

Florida Commission on Human Relations

2009 Apalachee Parkway, Suite 100

Tallahassee, Florida 32301

Melissa A. Posey , Esquire

Melissa A. Posey, P.A.

201 East Government Street, Suite 36

Pensacola, Florida 32502

Robert and Justyn MacF arland

Sand Dune Properties

7173 Blue Jack Drive

Navarre, Florida 32566

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.