09-000037 Nancy E. Cronk vs. Broadview Mobile Home Park And Lamont Garber Status: Closed Recommended Order on Wednesday, May 20, 2009.

Summary: No unfair housing occurred when a mobile home park evicted resident for nonpayment of rent, and resident did not show that she was disabled or handicapped.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

NANCY E. CRONK, )

)

Petitioner, )

)

vs. ) Case No. 09-0037

)

BROADVIEW MOBILE HOME PARK AND )

LAMONT GARBER, )

)

Respondents. )

)

RECOMMENDED ORDER

Administrative Law Judge (ALJ) Daniel Manry conducted the

final hearing of this case for the Division of Administrative

Hearings (DOAH) on April 28, 2009, in Palm Bay, Florida.

APPEARANCES

For Petitioner: Richard W. Riehl, Esquire

Deratany, Goldfarb, Riehl, & Reid

503 Fifth Avenue, Suite 105

Indialantic, Florida 32903

For Respondents: Lamont Garber, pro se

Broadview Mobile Home Park, LLC

140 Orlando Boulevard, Suite 250

Winter Park, Florida 32789

STATEMENT OF THE ISSUES

The issues are whether the respondents engaged in a

discriminatory housing practice, in violation of the Florida

Fair Housing Act, Sections 760.20 through 760.37, Florida

Statutes (2007), 1 by discriminating against Petitioner, on the

basis of her alleged disability, and by harassing Petitioner and

retaliating against her.

PRELIMINARY STATEMENT

Petitioner dual-filed housing discrimination complaints

with United States Housing and Urban Development (HUD) and the

Florida Commission on Human Relations (the Commission). HUD

issued a determination on October 22, 2008, finding that the

respondents did not engage in an unlawful housing practice. The

Commission issued a similar determination on December 11, 2008.

Petitioner did not pursue the HUD determination, but requested

an administrative hearing in the state proceeding by filing a

Petition for Relief (Petition) with the Commission on January 6,

2009. The Commission referred the Petition to DOAH to conduct

an administrative hearing.

At the hearing, Petitioner testified, called one other

witness, and submitted 11 exhibits for admission into evidence.

The respondents called seven witnesses and submitted 17

exhibits.

The identity of the witnesses and exhibits, and the rulings

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

Neither party ordered a transcript of the hearing. The parties

timely filed their respective Proposed Recommended Orders on

May 11, 2009.

FINDINGS OF FACT

1. Petitioner is a former resident of Broadview Mobile

Home Park (Broadview), located at 1701 Post Road, Melbourne,

Florida. Petitioner resided in Broadview for approximately six

years from an undisclosed date in 2002 through September 8,

2008.

2. Mr. Lamont Garber holds an ownership interest in

Broadview. The record does not quantify the ownership interest

of Mr. Garber. Mr. Garber manages Broadview with his brother,

Mr. Wayne Garber.

3. Broadview rents sites within the mobile home park to

residents who own mobile homes. Each site has access to water

and electric service. Each resident arranges his or her water

and electric service directly with the respective utility

provider.

4. Sometime in 2005, Petitioner purchased a mobile home

for approximately $6,500.00 and moved within Broadview to

Lot 24. The rental agreement for Lot 24 required rent to be

paid on the first day of each month. The rent for July 2008 was

due on July 1, 2008.

5. Petitioner failed to pay the rent payment that was due

on July 1, 2008. On July 9, 2008, Broadview served Petitioner,

by certified mail, with a notice that she had five business days

in which to pay the rent due (the five-day notice).

6. Petitioner received the five-day notice on July 10,

2008. The five-day period expired on July 17, 2008, with no

rent payment from Petitioner. Petitioner had paid rent late in

the past, but Petitioner had never been more than four or five

days late.

7. After July 17, 2008, Broadview initiated eviction

proceedings. Petitioner tendered the rent payment on July 20,

2008, but Broadview proceeded with the eviction.

8. Petitioner did not appear and defend the eviction

proceeding. On August 26, 2008, the County Court for Brevard

County, Florida, issued a Final Default Judgment of Eviction

awarding possession of Lot 24 to Broadview. Law enforcement

officers thereafter executed the Court's order and evicted

Petitioner from Broadview on or about September 8, 2008.

9. After Petitioner received the notice of eviction, she

filed a complaint with the Florida Department of Business and

Professional Regulation, Division of Florida Condominiums,

Timeshares, and Mobile Homes (DBPR). DBPR is the state agency

responsible for regulating mobile home parks, including

Broadview.

10. The allegations in the complaint that Petitioner filed

with DBPR were substantially similar to the claims of

discrimination, retaliation, harassment, and unlawful rent

increases Petitioner asserts in this proceeding. DBPR rejected

Petitioner's allegations and found that Broadview lawfully

evicted Petitioner for non-payment of rent.

11. The final agency action of DBPR is substantially

similar to that of HUD and the Commission's proposed agency

action in this proceeding. Each agency found that Broadview

lawfully evicted Petitioner for non-payment of rent and rejected

the allegations of discrimination, harassment, and retaliation.

The DOAH proceeding is a de novo consideration of the proceeding

before the Commission.

12. A preponderance of the evidence does not establish a

prima facie showing that Petitioner is disabled or handicapped.

Petitioner has cancer and is receiving chemotherapy and

radiation treatment. A preponderance of evidence does not show

that the medical condition substantially limits one or more

major life activities of Petitioner.

13. Petitioner also alleges that she is disabled and

handicapped by a mental condition. Petitioner submitted no

medical evidence of the alleged disability or handicap. A

preponderance of evidence does not establish a prima facie

showing that, if such a mental condition exists, the condition

substantially limits one or more major life activities of

Petitioner.

14. Assuming arguendo that a preponderance of the evidence

showed that Petitioner were disabled or handicapped, a

preponderance of evidence does not establish a prima facie

showing that either of the respondents discriminated against

Petitioner, harassed her, or evicted her in retaliation for

Petitioner's disability or handicap.

15. It is undisputed that Petitioner conducted

neighborhood organization efforts to protest a rent increase at

Broadview and repeatedly called law enforcement officials to

report alleged drug and prostitution activity in Broadview. 2

However, Broadview did not evict Petitioner for those

activities, and Petitioner's testimony to the contrary is

neither credible nor persuasive.

16. Rather, Petitioner engaged in other activities that

the respondents found objectionable. Petitioner baby sat for

one or more dogs in violation of Broadview's prohibition against

pets. Some of the dogs were dangerous to other residents.

Petitioner also verbally abused Mr. Wayne Garber when he

attempted to mediate with Petitioner concerning the presence of

dogs and Petitioner's conduct toward management at Broadview.

17. On July 1, 2008, Broadview served Petitioner with a

seven-day notice concerning Petitioner's compliance with lease

requirements. The notice, in relevant part, alleged that

Petitioner harassed management and impaired the ability of

management to perform its duties. The testimony of respondents

describing the activities of Petitioner that precipitated the

seven-day notice is credible and persuasive.

18. A preponderance of the evidence shows that the

respondents had legitimate non-discriminatory reasons for

requiring Petitioner to comply with the terms of the seven-day

notice and for requiring Petitioner to comply with the

requirement for rent to be paid on July 1, 2008. Petitioner

failed to comply with either requirement, and Broadview evicted

Petitioner for legitimate, non-discriminatory reasons. The

respondents did not harass or retaliate against Petitioner. 3

CONCLUSIONS OF LAW

19. DOAH has jurisdiction over the subject matter of and

the parties to this proceeding. §§ 760.20 through 760.37,

120.569, 120.57(1), and 120.595, Fla. Stat. (2008). DOAH

provided the parties with adequate notice of the final hearing.

20. Petitioner has the burden of proof in this proceeding.

Petitioner must submit evidence sufficient to establish a prima

facie case of discrimination. See Massaro v. Mainlands

Section 1 and 2 Civic Association, Inc. , 3 F.3d 1472, 1476 n.6

(11th Cir. 1993)(fair housing discrimination is 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));

Secretary of the United States Department of Housing and Urban

Development on Behalf of Herron v. Blackwell , 908 F.2d 864, 870

(11th Cir. 1990)(three-part burden of proof test in McDonnell

governs claims brought under Title VII of the Civil Rights Act).

For reasons stated in the Findings of Fact, Petitioner did not

present a prima facie case of discrimination, harassment, or

retaliation.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of

Law, it is

RECOMMENDED that the Commission enter a final order finding

that the respondents did not engage in an unlawful housing

practice and dismissing the Petition for Relief.

DONE AND ENTERED this 20th day of May, 2009, in

Tallahassee, Leon County, Florida.

S

DANIEL MANRY

Administrative Law Judge

Division of Administrative Hearings

The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-3060

[phone]

Fax Filing [phone]

www.doah.state.fl.us

Filed with the Clerk of the

Division of Administrative Hearings

this 20th day of May, 2009.

ENDNOTES

1/ References to subsections, sections, and chapters are to

Florida Statutes (2007), unless otherwise stated.

2/ Petitioner submitted no evidence of criminal convictions that

resulted from her complaints to police.

3/ Petitioner testified that the respondents turned off her

electric and water prior to the eviction date and prevented

Petitioner from removing all of her belongings from the mobile

home unless Petitioner agreed to sell the mobile home to the

respondents for $500.00. Most of that testimony pertains to

alleged damages, which is a moot issue in the absence of a

finding of discrimination, but, apart from its relevancy, the

fact-finder does not find Petitioner's testimony on this point

to be credible and persuasive.

COPIES FURNISHED :

Richard W. Riehl, Esquire

Deratany, Goldfarb, Riehl, & Reid

503 Fifth Avenue, Suite 105

Indialantic, Florida 32903

Jeffrey M. Koltun, Esquire

Kane and Koltun, Attorneys at Law

557 North Wymore Road, Suite 100

Maitland, Florida 32751

Charles M. Greene, Esquire

Charles M. Greene, P.A.

28 East Washington Street

Orlando, Florida 32801

Lamont Garber

Broadview Mobile Home Park, LLC

140 Orlando Boulevard, Suite 250

Winter Park, Florida 32789

Denise Crawford, Agency Clerk

Florida Commission on Human Relations

2009 Apalachee Parkway, Suite 100

Tallahassee, Florida 32301

Larry Kranert, 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.