10-003393 Peggy Symons vs. Grandeville On Saxon, Ltd., Carol Werblo, And Cambridge Mgmt. Services, Inc. Status: Closed Recommended Order on Friday, December 30, 2011.

Summary: Petitioner did not complete required application to rent or reserve apartment. No prima facie case and no evidence of discrimination.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

PEGGY SYMONS, )

)

Petitioner, )

)

vs. ) Case No. 10 - 3393

)

GRANDEVILLE ON SAXON, LTD., )

CAROL WERBLO, AND CAMBRIDGE )

MGMT. SERVICES, INC., )

)

Respondent s . )

)

RECOMMENDED ORDER

Pursuant to notice, a formal hearing was held before Diane

Cleavinger , an Administrative Law Judge of the Division of

Administrative Hearings, on October 31 , and November 1 and 2,

2011 , in Da ytona Beach , Florida.

APPEARANCES

For Petitioner: Peggy Symons, p ro s e

1410 Chris Avenue

Deland, Florida 32724

For Respondent : David D. Eastman , Esquire

Carol S. Grondzik, Esquire

Lutz, Bobo, Telfair, Eastman, Gabel & Lee

2155 Delta Boulevard, Suite 210B

Tallahassee, Florida 32303

STATEMENT OF THE ISSUE

Whether Petitioner has been the subject of discriminatio n

in housing due to a handicap .

PRELIMINARY STATEMENT

Around December 21 , 2009, Petitioner , Peggy Symons

(Petitioner) , through the United States Department of Housing

and Urban Development , filed a n Amended Housing Discrimination

Complaint with the Florida Commission on Human Relations ( FCHR )

alleging that Respondents, GrandeVille on Saxon, Ltd., Cambridge

Management Services, Inc., and Carol Werblo committed a

discriminatory housing practice against her . Specifically, the

Complaint alleged that Respondents discriminated against

Petitioner by refusing to rent an apartment and or

misrepresenting the availabi lity of an apartment to the

Petitio ner due to her mental handicap .

FCHR investigated Petit i oner's C omplaint . On February 17,

2010, FCHR i ssued its N otice of Determination and found that

there was reasonable cause to believe that Respondents

d iscriminat ed against Petitioner in violation of section

760.23(8), Florida Statu tes, and 42 U.S.C. section 3605(f)(2).

The Notice also advised Petitioner of her right to a formal

administrative hearing.

Thereafter, FCHR, on Petitioner's behalf, attempted to

conciliate Petitioner's Complaint. On June 18, 2010, FCHR filed

a Notice of Failure of Conciliation and again advised Petitioner

of her right to have FCHR file a Petition for Relief and seek a

formal administrative hearing on her Amended Housing

Discrimination Complaint.

Petitioner elected to file a Petition for Relief , and o n

June 21 , 2010, FCHR filed a Peti tion for Relief on behalf of

Petitioner . Essentially, the Petition was similar to the

earli er Amended Housing Complaint of Discrimination . T he

Petition was referred to the Division of A dministrative Hearings

(DOAH ) for a formal hearing. On July 26, 2010, due to

irreconcilable differences between FCHR and Petitioner, FCHR's

Motion to Withdraw from the proceeding was granted.

Prior to the hearing and c ontrary to clearly established

law, FCHR instituted a policy to not provide an official means

to preserve the testimony at the final hearing, either by

sending a court reporter or a recording device with someone to

operate it. See §120.57(1)(g), Fla. Stat.; Fla. Admin. Code R.

28 - 106.214. T he parties were informed of the agencyÓs policy to

not provide an official means of preserving the testimony at the

final hearing , and Respo ndent s provided a court reporter.

At the hearing, Petitioner testified in her own behalf and

presented the testimony of two witnesses . Additionally,

Petitioner of fered 12 exhibits into evidence , of which only

Petit i oner's Exhibits 1 - 11 were admitted into evidence .

Petiti o ner's Exhibit 12 was marked for identification and was

accepted as a proffer. Respondent s presented the testimony of

t wo witnesses and offered 9 exhibits into evidence , of which

Respondent's E xhibits 1 - 9 were admitted .

After the hearing, Petitioner filed a Proposed Recommended

Order on November 30, 2011. Respondents filed a Proposed

Recommended Order on November 28 , 2011 .

FINDINGS OF FACT

1. Petitioner is a 52 - year - old female who has a mental

disability which impairs her ability to manage her money and

stay organized . She is unemployed and relies on Social Security

and a special needs trust to support herself. Her sister,

Katherine Newma n, is the trustee of Petitioner's trust.

However, Petitioner's outward presentation is of an intelligent,

capable , and non - disabled person.

2. U ntil 2009 , Petit i oner , when not hospitalized, either

lived with her mother or resided with another person. F or a

variety of reasons and with the concurrence of those involved in

her care, in 2009 , Petitioner , at around age 50, decided to

attempt living by herself.

3 . Respondent , GrandeVille on Saxon, Ltd. ( GrandeVille ) ,

is the owner of GrandeVille on Saxon, a large apartment complex

located at 741 Saxon Boulevard, Orange City, Florida .

GrandeVille contracted with Respondent , Cambridge Management

Services, Inc. (Cambridge), to manage the GrandeVille apartment

complex .

4 . During 2009 and 2010, Respondent , Ca rol Werblo , was a n

employee of Cambridge Management Services, Inc. , and acted as a

leasing agent for the GrandeVille apartment complex. In the

past, s he was recognized as the outstanding leasin g agent for

the GrandeVille apartment complex, as well as for all propertie s

managed by Cambridge . She continues as a leasing agent for the

apartment complex to date and has earned several Certificates of

Achievement in Fair Housing Training over the years of her

employment .

5 . Indeed, a ll employee s of Cambridge receive fair housing

training upon employment . Thereafter , all employees receive

annual fair housing training .

6 . In 2009 , GrandeVille required a prospective lessee to

submit a completed application, and pay $299.00 in application,

admi nistrative and reservation fees ( collectively the

Ðapplication fee s Ñ). Grand e V ille would not reserve an apartment

or enter into a lease with a prospective lessee without a

completed application and payment of all application fees.

Additionally, GrandeVille required all applicants to be screened

for rental history or mortgage payment history, employment

history, credit history , and criminal background prior to

approval of the application .

7 . After approval of an application, the prospective

le ssee may enter into a Reservation Agreement with GrandeVille

to reserve a specific apartment within the complex and establish

an anticipated move - in date . The Reservation Agreement

identified the applicantÓs future address, as well as, provided

informatio n con cerning utilities, services and move - in

procedures. The Reservation A greement also notifie d prospective

lessees that they were required to secure electric service and

renterÓs insurance before signing a lease and moving in.

Additionally, the R eserva tion A greement require d an appointment

prior to a lesse e taking possession of an apartment in order to

execute a formal lease agreement.

8 . In general, the application process at the GrandeVille

apartment complex c ould take anywhere from a day to a longer

period of time to complete , depending on the day and time the

application is given to the facility . Impo rtantly, applications

could not generally be approved over a weekend since the person

with authority for such app roval did not generally work over the

weekend and some of the screening process could not be

completed. If there was an emergency housing situation over a

weekend, the person responsible for application approval could

be called by telephone to review the application, if they were

available. However, the evidence did not demonstrate any

housing emergency during the time period relevant to this action

since Petitioner always had places she could live supplied by

either family or friends available to her .

9 . Cambridge manages the inventory of apartment units at

the GrandeVille complex by use of Ðavailability reportsÑ that

are computer generated and printed daily. Leasing agents at the

complex use the reports to locate apartments that can be shown

and are a vailable to rent.

10 . The availability reports list the apartment complex's

inve ntory by floor, apartment number , number of bedrooms, type,

and availability to rent. The number of bedrooms an apartment

has is represented by a letter, with "A" designat ing a one

bedroom apartment. The type of an apartment is, also,

represented by a letter, with "I" designat ing an apartment with

a glassed - in area known as an imagination room and "S"

designati ng an apartment with a screened - in lanai.

Additionally, the availability reports separate apartments into

various categories. The categories under which apartments are

separated are 1) vacant, not l eased, and ready to show;

2) vacant, not leased, not ready to show; 3) occupied , but hav e

received notices to vacate and are not leased; 4) occupied , but

have received notices to vacate and ar e leased; and 5) vacant,

s till under lease , but ready to show . Since the apartments in

categories three and four are still occupied , they cannot be

sho wn to prospe ctive tenants and are not available to lease.

Apartments in category two cannot be shown to prospective

tena nts because they are not ready to show since, necessary

repairs, painting, replacement and maintenance have not been

completed after th eir occupants moved out . These units are not

available for immediate occupancy and repairs are highly

dependent on the workload and schedule of maintenance personnel

or subcontractors. Units in categories one and five may be

shown to prospective tenants and are available to lease , subject

to the apartments lease status . Importantly, o nly apartments in

category one are available for immediate or near immediate

occupancy if a prospective lessee first applies, reserves , and

pays all of the application fees.

11 . Around January 9, 2009 , Petitioner was looking for a

one - bedroom apartment . She saw an advertisement in a local

rental magazine for the GrandeVille apartment complex .

12 . On January 9, 2009, she visited the complex . During

this visit she was shown two one - bedroom apartments by

Responden t Carol Werblo. Ms. Werblo followed her standard

process in showing apartments to a prospective lessee. One

apartment shown to Petitioner had an imagination room.

According to the availability reports for tha t day, the

apartment which Petitioner viewed was apartment 10118. The

apartment was under a current lease but could be shown since it

was vacant . Occupancy was subject to the terms of its current

lease. The other apartment shown to Petitioner had a scre ened -

in lanai . According to the availability reports for that day,

the lanai apartment which Pe titioner viewed was either apartment

10217 or 10219 . Apartment 10217 was vacant and could be leased

and occupied. Apartment 10219 was under a current lease, b ut

could be shown since it was vacant. Occupancy of 10219 was

subject to the terms of its current lease.

13. Upon seeing the two apartments, Petitioner fell in

love with the imagi nation room apartment . She told M s. W erblo

that she wanted to rent the apartment she had seen . In fact,

Petitioner was only interested in renting a one bedroom,

imagination room apartment. She was not interested in renting

any other type of apartment.

14 . Following the viewing, Ms. Werblo aga in followed her

usual procedure and discussed the application and leasing

process and the rents charged by GrandeVille with Petitioner .

Petitioner , per standard practice, was also provided a rate

sheet showing market rent for the various apartments.

Handwritten on the sheet w ere reduced rent rates for the one -

bedroom and two - bedroom apartments based upon rent promotions or

specials that were available on January 9, 2009 . These

promotions are limited in time and often change depending on

apartment availability . The promotiona l rates can only be

locked in by reserving an apartment while they are in effect and

are one reason for reserving an apartment early in the

application process .

15 . The evidence was unclear and did not establish that

Petitioner told Ms. Werblo that she w as disabled or handicapped

or, if she did, the nature of that disability or handicap.

Petitioner did advise Petitioner that she wanted to talk to her

sister, Katherine Newman , about leasing the apartment and that

her sister handled her money. The evidenc e was again unclear

and did not establish that Petitioner told Ms. Werblo that she

had a trust that supplied her income or that her sister was the

trustee of that trust. The evidence was clear that, even after

discussing the application and leasing proces s with Ms. Werblo,

Petitioner did not complete an application or pay any

application fees on January 9, 2009 , so that an application

could be processed and, if approved, an apartment res erved for

her . Therefore, she did not apply for a lease or reserve an y

apartment on that day and Respondents were not obligated to hold

an apartment for her .

16 . Additionally, there was no evidence introduced at the

hearing as to any specific threshold requirements that a

prospective lessee must meet. Petitioner's abil ity, at

substantially later times, to qualify to rent an apartment at

another apartment compl ex or obtain a mortgage on her m other's

home does not establish that Petitioner met Respondents'

requirements in January of 2009. Given this lack of evidence,

it cannot be concluded that Petitioner met Respondents'

screening requirements and Petitioner has, therefore, failed to

establis h that she was qualified to lease an apartment from

GrandeVille .

17 . There was also no evidence that Petitioner may not

have fully understood the application and leasing process.

Indeed, Petitioner admitted that she did not fill out an

application or pa y the application fees because she felt such

financial matters were her sister's area of responsibility.

Even if Petitioner did not understand the application process,

there was no evidence that Respondents could or should have

known about Petitioner's la ck of understanding. Given these

facts , t here was no evid ence that any of the Respondent s

discriminated against Petitioner during her visit to the

apartment complex on January 9, 2009 .

18 . As stated above, Petitioner decided she wanted to rent

the imagi nation room apartment and told her family and friends

she was going to move into this apartment even though she did

not know or have an apartment number . Petitioner told

Ms. Newman about the apartment and the amount of rent under the

rent promotion. She asked her sister to contact the apartment

complex so that she could rent the apartment.

19 . As indicated, Ms. Newman is the sister of Petitioner

and is the trustee of her s pecial n eeds t rust. She is a

licensed Certified Public Accountant in Florida. She often

advises Petitioner on financial matters. She perceives her duty

as trustee to conserve the funds and make sure dollars are not

spent unwisely. As such, s he was in favor of Petitioner Ós

living independently, but was reticent about the amount of rent

and expenses such independent living would entail. Ms. Newman

felt the promotional rent was somewhat high for the area.

However, s he did feel the apartment complex met Petitioner's

need for a secure living environment.

20 . On January 14, 2009, Ms. Newman telephoned the

GrandeVille complex to inquire about one - bedroom apartment s and

to negotiate a better deal for Petitioner . She spoke with Carol

Werblo. The conversation took about 10 or 1 5 minutes.

Ms. Newman told Ms. Werblo that she handled Peti tioner's

financial affairs and that rent would be paid from a special

needs trust. The evidence was unclear and did not establish

that she advised Ms. Werblo that her sister was disabled or the

nature of the disability. However, the evidence did establish

that Ms. Newman thought the rent at the apartment complex was

too high and communicated that belief to Ms. Werblo. Her

position about the rent also made her less than pro - active in

assisting her sister in going through the application and

leasing process. Ms. Newman did attempt to negotiate a lower

rate . The negotiation was unsuccessful. She knew Petitioner

had Ðterrible creditÑ and correctly believed Petitioner could

not pass the application screening process for re nting an

apartment without providing financial information about her

trust . Ms. Newman did not provide any documentation to

Respondents about the trust that would have support ed any

potential application for Petitioner . She did not complete an

applicatio n to lease the apartment for her sister because her

sister was legally capable of completing the application

herself. However, she did not ascertain any of the steps that

Petitioner needed to take to apply, reserve, or lease an

imagination room apartment. She did not pay any application

fees and did not transfer any funds to either Petitioner or

GrandeV ille to cover the application fee s or monthly rental

amount. Indeed, t here was no credible evidence introduced at

h earing that either Petitioner or Ms. Ne wman had demo nstrated to

Respondents that Petitioner had the financial capability to rent

an apartment. In fact, there was no evidence that any of the

Respondents discriminated against Petitioner on January 1 4,

2009 , since neither Ms. Newman nor Petitioner provide d any

financial documentation to Re spondents or otherwise complete d

any of the steps necessary to reserve or lease an apartment at

the Grand e Ville complex. Additionally, g iven this lack of

evidence and since the only significant cont act Ms. Werblo had

with Petitioner or her sister occurred on January 9 and 14,

2009, the charges of discrimination against Ms. Werblo should be

dismissed.

21 . In the interim, Petitioner mistakenly believed the

imagination room apartment was hers for leas ing at the rent she

had discussed wit h Ms. Werblo on January 9, 2009. Sin ce her

visit she had bought furnishings for the apartment. In an e -

mail to Ms. Newman da ted January 28, 2009, Petitioner stated , ÐI

want to sign a lease the first week of February.Ñ In a

January 30, 2009 , e - mail, Petitioner told Ms. Newman she had

obtained a telephone number for the apartment and wa s Ðgoing to

the apartments to get lease papers and look one more time at the

apt.Ñ Petitioner was excited and looking forward to living on

her own. Interestingly, Ms. Newman never informed Petitioner

that she had not completed any steps necessary to financially

enable Petitioner to apply for or reserve the imagination room

apartment. At best, it appears both Petitioner and her sister

wrongly assumed the other had performed or completed the rental

process required by Respondents for all prospective lessees.

22 . Sometime between January 29, 2009 , and January 31,

2009 , Emily Tyler completed an app lication, and was approved to

lease apartment 10219 . The apartment was one of the two

apartments Petitioner had looked at on January 9, 2009. It was

the last lanai - style apartment on either the first or second

floor of the apartment complex where Petitio ner was interested

in renting. After approval, Ms. Tyler reserved the apartment

and paid all of the required application fees on January 30 or

31 , 2009 . Given this transaction and according to the

availability reports, there were no imagination room - styl e

apartment s on the first or second floor available for leasing on

January 31, 2009. There was one lanai - style apartment on the

third floor. However, Petitioner was not interested in leasing

a lanai apartment or leasing an apartment on the third floor.

23 . After the second floor unit was reserved by Ms. Tyler ,

Petitioner , o n Saturday, January 31, 2009, returned to the

GrandeVille apartment complex to sign a lease and rent the one -

bedroom imagination apartm ent she had viewed . Petitioner

assumed the apar tment she wanted would be ready for her when she

visited the apartment complex . Indeed, s he had arranged for

family and friends to help her move in that weekend. Upon

entering the building, Petitioner asked the leasing agent,

Patrick Smith, who was a you ng college student, for Ðthe lease

documentsÑ so that she could sign the lease to rent the

apartment on that day. Mr. Smith was not familiar with

Petitioner and met her for the first time on that day. She did

not speak with Ms. Werblo who was busy with o ther clients.

However , no application had been submitted, no application fee

had been paid, no application screening had been done, no lease

had been prepared for her, and no move - in date was scheduled for

Petitioner . Additionally, the person who could a pprove an

appli cation was no t present at the complex since the weekend was

her scheduled time off and she would not return to work until

Monday. Additionally, Petitioner did not have any means to pay

the required application fee s of $299.00 with her and did not

offer to pay the application fee s . Given these facts,

Petitioner has failed to demonstrate that she was qualified to

lease an apartment from GrandeVille on January 31, 2009 , and has

failed to demonstrate that Respondents discriminated against her

by not leasing her the apartment she had viewed.

24 . Mr. Smith told Petitioner that the only one - bedroom

unit available th at could be rented by Petitioner for immediate

or near immediate occupancy o n January 31, 2009, was a third -

floor screened lanai un i t. Mr. Smith offered to show Petitioner

the third - floor lanai unit . He also checked and printed out the

apartment complex's availability report which showed only one

one - bedroom lanai apartment available and ready to rent on

January 31, 2009. Petitioner became upset. She was not

interested in the lanai apartment and so informed Mr. Smith.

She told Mr. Smith that she only wanted to rent the imagination

room apartment that she ha d been shown and she wanted to move in

over that weekend . Petitioner testified that Mr. Smith

indicated, based on the availability report for January 31,

2009, that the apartment she had seen was not avail able and

ready to rent that day and further the only one - bedroom

apartment available to rent that day was the third - flo or lanai

apartment, not an imagination room apartment. The statement was

accurate since no apartment of the type and location P etitioner

was interested in was available for immediate occupancy over the

weekend. Mr. Smith could not give Petitioner a lease since she

had not completed the required application process. He tried to

explain to Petitioner that she must qualify to lease an

apartment by first completing an application. Moreover, there

were no units available for occupancy over the weekend that m et

Petitioner's style and location criteria.

25 . After talking with Mr. Smith, Petitioner became

confused and did not know what to do. She stepped outside the

building and telephoned Ms. Newman. She returned to the lobby

of the GrandeVille complex , ass erted the leasing agent knew she

was disabled, demanded copies of the availability report,

contested the truthfulness of the leasing agentÓs information ,

and threatened to sue . She also demanded rent records for the

apartment complex . At the time, Petiti oner was not entitle d to

the private records of the apartment complex and was denied

copies of these records.

26 . Petitioner again telephoned Ms. Newman who suggested

she was being discriminated against and told her to leave.

Petitioner then left the p remises.

27 . The evidence did show that there were three apartments

on January 31, 2009, that might have been made available to rent

at a near future date. These apartments were 16213, 16214, and

16217. These apartments were vacant, but none were available to

move in over the weekend of January 31, 2009 , since all needed

some sort of repair or maintenance since last occupied. In

fact, the evidence indicated that none of the apartments was

ready for occupancy until over a month later. The rent off ers

they were available at had not changed since January 9, 2009.

However, a t no time did Petitioner attempt to apply or reserve

an apartment of the t ype she desired. She simply demanded to

sign a lease on January 31, 2009, for a one - bedroom imagination

room apartment on the first or second floor so that she could

move in that weekend. No such apartments were immediately

available to meet Petitioner's demands. Respondents did not

misrepresent the availability of any apartments or information

about its r ent specials on January 31, 2009 , and did not

otherwise, discriminate against Petitioner . Additionally,

Respondent never complied with Respondent's requirements to

lease an apartment. G iven these facts, the Petition f or Relief

should be dismissed. 1/

CONCLUSIONS OF LAW

28 . The Division of Administrative Hearings has

jurisdiction over the parties to and the subject matter of this

proceeding. § 120.57(1), Fl a . Stat . (2011) .

29 . Section 760.23(1), Florida Statutes, provides as

follows:

(1) It is unlawful to refuse to sell or

rent after the making of a bona fide offer,

to refuse to negotiate for the sale or

rental of, or otherwise to make unavailable

or deny a dwelling to any person because of

race, color, national origin, sex, handicap,

fam ilial status, or religion.

30 . As the complainant, Petitioner has the burden to

establish by a preponderance of the evidence that Respondents

violated the Federal and Florida Fair Housing Act s .

§ 760.34(5), F la. Stat. (2011 ) and 42 U.S.C. 3605(f)( 2) . See

also U.S. DepÓt of Hous. & Urban Dev. v. Blackwell , 908 F. 2d

864 (11th Cir. 1990).

31 . In this case, there is no direct evidence of

discrimination against Petitioner based on her mental handicap.

In the absence of such direct evidence of dis crimination, the

well - established, three - part burden of proof test developed in

McDonnell Douglas Corp. v. Green , 411 U.S. 792 (1973), is used

in analyzing cases brought under both the Florida and Federal

Fair Housing Acts. Under that analysis, the Petiti oner, first,

has the burden of proving a prima facie case of discrimination

by a preponderance of the evidence. I f the Petitioner

sufficiently establishes a prima facie case, th e burden of

persuasion shifts to the Respondent to "articulate some

legitimate, nondiscriminatory reason" for its action. I f the

Respondent satisfies this burden, the Petitioner has the

opportunity to establish by a preponderance of the evidence that

the legitimate reasons asserted by the Respondent a re in fact

mere pretext. Blackwell , 908 F.2d at 870 ( quoting Pollitt v.

Bramel , 669 F. Supp 172, 175 (S.D. Ohio 1987) ) . At all times,

the ultimate burden of proof remains with the Petitioner to

establish the alleged discrimination occurred.

32 . To esta blish a prima facie case, Petitioner must show

1) she applied to rent an available unit for which she was

qualified, 2) the application was rejected although housing

remained available, and, 3) at the time of such rejection, the

complainant was a member of a class protected by the Act.

McDonnell Douglas Corp. v . Green , 411 U.S. 792 (1973) ; Hill v.

Seaboard Coast Line R.R. , 885 F. 2d. 804 (11th Cir. 1989) ; Selden

Apartments v. U.S. Dep Ót of Hous. & Urban Dev . , 785 F. 2d 152

(6th Cir. 1986) Martin v. Palm Beach Atlantic AssÓn, Inc. , 696

So. 2d 919 (Fla. 4 th DCA 1997); Walters v. Sterling Baldwin,

B.A. , Case No. 09 - 2805 (Fla. DOAH Sept. 28, 2009 ; FCHR Dec. 15,

2009 ) (citation s omitted) .

33 . In this case, the parties stipulated , and Petitioner

established , that she is handicapped. However, Petitioner did

not establish that she was qualified to lease an apartment from

GrandeVille because she did not complete the required

application or pay the required application fees. Since no

application was made, n o a pplication for rental of an apartment

by Petitioner was rejected by Respondents . Additionally , the

evidence did not show that she reserved the apartment she was

interested in or that a similar apartment was available for

occupancy over the weekend of January 31, 2009 . Moreover ,

Respondents did not falsely deny the rental of an apartment to

Petitioner on January 31, 2009, because no units of the type

desired by Petitioner were available to rent at that time.

Further, Petitioner never made a bona fide offer to rent. She

never applied for an apartment prior to January 31, 2009, and

never received approval or denial from the Respondents for her

tenancy. She nev er took steps to qualify to lease at the

GrandeVille complex . The fact that imagination room units could

have been made available in the near future is of no consequence

because Petitioner never applied to lease an apartment and was

not denied the opportunity to complete such an application .

Therefore, Petitioner has failed to establish a prima f acie case

of housing discrimination . Finally, since Petitioner failed to

establish a prima facie case of housing discrimination , the

burden does not shift to Respondent to articulate a legit imate,

nondiscriminatory reason for their actions. Texas DepÓt of Cm ty .

Aff. v. Burdine , 450 U.S. 248 (1981). Given these facts,

Petitioner has failed to establish a prima facie case of housing

discrimination, or otherwise establish that she was

discriminated against by Respondents on the basis of her

handicap. Theref ore, the Petition for Relief should be

dismissed.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of

Law, it is

RECOMMENDED that the Florida Commission on Human Relations

enter a final order dismissing Petitioner's Petition for Relief.

DONE AND ENTERED th is 30th day of December, 2011 , in

Tallahassee, Leon County, Florida.

S

DIANE CLEAVINGER

Administrative Law Judge

Division of Administrative Hearings

The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399 - 3060

(850) 488 - 9675

Fax Filing (850) 921 - 6847

www.doah.state.fl.us

Filed with the Clerk of the

Division of Administrative Hearings

this 30th day of December, 2011.

ENDNOTES

1 / There was some indication in the evidence that Petitioner's

sister in California called the apartment complex sometime in

early February 2009, pretending to be a potential lessee, to

inquire about the availability of one bedroom apartments and was

told they had some units available. There was also some

indication in the evidence that Petitioner's elderly Mother

visited the complex sometime in early February 2009 , and was

either shown some one - bedroom apartments or told some were

available. Neither of the peopl e testified at the hearing and

the nature of these conversations is hearsay which was not

corroborated by other evidence at the hearing. Moreover, none

of this evidence was specific to the type or floor location of

the apartments being inquired about or w hether such apartments

met Petitioner's type and location requirements.

Petitioner also complained that she endured a lengthy

deposition during discovery in this action which caused a

disruption in her medication regime. There was no record

evidence that this deposition was overly long given Petitioner

was th e main witness in a three - day hearing. Respondents'

engaging in legitimate discovery in an action brought by

Petitioner does not constitute discrimination and was not

investigated by FCHR.

COPI ES FURNISHED :

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

Peggy Symons

1410 Chris Avenue

Deland, Florida 32724

David D. Eastman , Esquire

Carol S. Grondzik, Esquire

Lutz, Bobo, Telfair, Eastman, Gabel & Lee

2155 Delta Boulevard, Suite 210B

Tallahassee, Florida 32303

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 cas e.