10-006430 Alberto Pis And Maria Soto vs. Marathon Housing Associates, Ltd., Et Al. Status: Closed Recommended Order on Monday, February 14, 2011.

Summary: Tenants failed to establish that landord or its agents failed to accommodate a handicap or discriminated against them based on national origin.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

ALBERTO PIS AND MARIA SOTO , )

)

Petitioners , )

)

vs. ) Case No. 10 - 6430

)

MARATHON HOUSING ASSOCIATES, )

, )

)

Respondent . )

)

RECOMMENDED ORDER

Pursuant to notice, a formal administrative hearing was by

video teleconference between Key West and Tallahassee, Florida,

on January 5, 2011, before Administrative Law Judge Claude B.

Arrington of the Division of Administrative Hearings (DOAH).

APPEARANCES

For Petitioner: Alberto Pis and Maria Soto , pro se

240 Sombrero Beach Road, Apartment A - 4

Marathon, Florida 33050

For Respondent: Franklin D. Greenman, Esquire

Greenman and Manz

5800 Overseas Highway

Gulfside Village, Suite 40

Marath on, Florida 33050

STATEMENT OF THE ISSUE

Whether Respondent committed the unlawful employment

practice alleged in the Charge of Discrimination filed with the

Florida Commission on Human Relations (FCHR) and, if so, the

relief that should be granted.

PRE LIMINARY STATEMENT

At the times relevant to this proceeding, Petitioners

resided in an apartment in a complex managed by Marathon Housing

Associates (MHA). On or about March 19, 2010, Alberto Pis and

Maria Soto (collectively referred to as Petitioners) f iled a

Charge of Discrimination (Complaint) with the United States

Department of Housing and Urban Development (HUD) alleging that

MHA was responsible for discriminatory terms, conditions,

privileges, or services and facilities; and had failed to make a

re asonable accommodation of Mr. Pis' handicap. It is alleged

that MHA's acts were based on national origin and handicap.

HUD referred the matter to the Florida Commission on Human

Relations (FCHR) for investigation. On June 18, 2010, FCHR

entered a "Notice of Determination of No Cause" which advised

Petitioners that based on its investigation "the FCHR has

determined that reasonable cause does not exist to believe that

a discriminatory housing practice has occurred."

On July 15, 2010, Petitioners filed a "P etition for Relief"

against MHA which attached some 45 pages of materials and

alleged that MHA had committed a "Housing Discrimination

Practice". The Petition for Re lief makes the same allegations

as Petitioners' Complaint of Discrimination, which was

in vestigated by FCHR and found to lack cause.

On May 24, 2010, Petitioners filed with FCHR an Amended

Petition of Housing Discrimination that names the following

Respondents: MHA, Monroe County Housing Corporation, Monroe

County Housing Authority, Housing A uthority Key West, J. Manuel

Castillo (Executive Director of MHA and City of Key West Housing

Authority), and Susan Vogt (Housing Manager for MHA).

Petitioners are from Cuba and do not speak fluent English.

At the hearing, Petitioners had the services of an interpreter

and a translator.

Petitioners assert that Respondents discriminated against

them by providing a written Notice of Lease Violation (NOLV) in

English without a Spanish translation.

Petitioners assert that the behavior of Ms. Vogt when

delivering the NOLV was an act of discrimination.

Petitioners assert that Mr. Castillo's failure to promptly

respond to their complaints was an act of unlawful

discrimination.

At the final hearing, Petitioners presented the testimony

of Elio Alberto Pis (P etitioners' son) and Petitioner Alberto

Pis. Petitioners offered ten sequentially - numbered exhibits,

nine of which were admitted into evidence. Respondents

presented the testimony of Susan Vogt and J. Manual Castillo.

Respondents offered one exhibit, wh ich was admitted into

evidence.

No transcript of the proceedings was filed. The parties

submitted Proposed Recommended Orders which have been duly

considered by the undersigned in the preparation of this

Recommended Order.

Unless otherwise noted, each reference to a statute is to

Florida Statutes (2010). There has been no material change to

any statute cited in this Recommended Order from the date the

events occurred to the date of this Recommended Order.

FINDINGS OF FACT

1. At all relevant times, Pe titioners resided in an

apartment in Eastwind Apartments, a HUD multifamily development

in Marathon, Florida.

2. MHA manages Eastwind Apartments.

3. Monroe County Housing Corporation has an ownership

interest in Eastwind Apartments.

4. Ms. Vogt is the h ousing manager of Eastwind Apartments.

5. Mr. Castillo is the executive director of MHA.

6. The lease between Petitioners and MHA contains the

following provision: "The Tenant agrees to permit the Landlord,

his/her agents or other persons, when authoriz ed by the

Landlord, to enter the unit for the purposes of making

reasonable repairs and authorized inspections. "

7. On September 18 and October 14, 2009, Ms. Vogt provided

notices to all residents of Eastwind Apartments of upcoming

inspections. The notic es contained the following: " . . . there

is still not a pet policy. If you have a pet, make sure it is

confined and not loose anywhere in the apartment. The inspector

can walk into any room and look around and your pet cannot be

loose or locked in a room ."

8. On December 2, 2009, a maintenance man reported to

Ms. Vogt that he was hesitant to enter the Petitioners'

apartment because of the presence of a pit bull dog in the

apartment.

9. On December 2, 2009, Ms. Vogt hand - delivered an NOLV to

Petitioner A lberto Pis based on the presence of the dog in the

apartment. The NOLV instructed Petitioners to remove the dog

from the apartment by December 5, 2009.

10. The NOLV was written in English. There was not a

Spanish translation of the NOLV.

11. Ms. Vogt is fluent in English, but she is not fluent

in Spanish.

12. Mr. Pis could not read the NOLV in English. Mr. Pis

became upset when Ms. Vogt asked him to sign that he had

received the NOLV. Petitioners allege that Ms. Vogt's demand

that Mr. Pis sign for the receipt of the NOLV constituted an act

of discrimination.

13. Petitioners have an adult son and an adult daughter

who are fluent in Spanish and English. The adult daughter

translated the NOLV to her parents on December 2, 2009, after

Ms. Vogt had ret urned to her office.

14. On December 14, 2009 , Ms. Vogt hand - delivered a second

NOLV to Petitioner Alberto Pis. This NOLV advised that keeping

the dog in the apartment was a lease violation.

15. The second NOLV was written in English. There was not

a S panish translation of the second NOLV.

16. At all times relevant, MHA had an employee in the

office at Eastwind Apartments who was fluent in Spanish and

English.

17. Elio Pis is a student at a school in Miami, but lives

in the apartment leased by his par ents from time to time. The

dog in the apartment belongs to Elio Pis. Elio Pis, acting on

behalf of himself and his parents, complained to Mr. Castillo

about the NOLVs. At first, Mr. Castillo refused to discuss the

matter with Elio Pis because Mr. Casti llo thought that Elio Pis

resided in Miami, not in the subject apartment. Mr. Castillo

discussed the matter with Elio Pis after he learned that Elio

Pis resided in the apartment from time to time. Petitioners

allege that Mr. Castillo's refusal to promptl y investigate their

complaints constituted an act of discrimination.

18. On February 8, 2010, Mr. Castillo wrote the following

letter to Petitioner Alberto Pis:

Following a phone conversation with your son

regarding a Lease Violation issued on

December 2, 2009, I conducted a review of

the incident and actions taken by the

Eastwind staff.

The review indicates that on December 2nd,

maintenance staff attempted to res pond to a

request for maintenance in your unit (work

order) and was scared off by the presence of

a dog in the unit. Based on this

information, the Housing Manager issued you

a lease violation. Additionally, on

December 14, 2009, numerous tenants receive d

what was intended to be a courtesy notice

but was titled "Lease Violation", one of

which you received. This second notice was

rescinded on December 17, 2009.

With regard to the initial lease violation

issued, the Housing Manager perhaps over -

reacted out of concern for the safety and

well - being of the employee and others. The

employee, while relaying the incident to a

fellow employee, was noticeably shaken. I

have asked the Housing Manager to also

rescind the December 2nd Lease Violation.

Staff is curre ntly finalizing a revised Pet

Policy that will allow for pets at Eastwind

Apartments with restrictions and

limitations. Residents will be notified of

this change as the process is completed.

On behalf of the Housing Authority, I

apologize for any inconven ience to you and

your family.

19. The two NOLVs were rescinded before Petitioners filed

their initial Complaint of Discrimination with HUD on March 19,

2010. Petitioners have been allowed to keep the dog in their

apartment.

20. Petitioners complained t hat certain repairs have not

been made to their apartment. There was no evidence that

similar repairs had been made to apartments rented by non -

Hispanic tenants.

21. There was no evidence that the terms and conditions of

Petitioners' tenancy at Eastwind Apartments were different from

the terms and conditions of any other tenant.

CONCLUSIONS OF LAW

22. The Division of Administrative Hearings has

jurisdiction over the parties and the subject matter of this

proceeding pursuant to sections 120.569, 120.57(1 ), and 760.35,

Florida Statutes.

23. The Florida Fair Housing Act (FFHA) is codified in

sections 760.20 through 760.37.

24. Section 760.23(1)(a) provides as follows:

It is unlawful to discriminate against any

person in the terms, conditions, or

privilege s of sale or rental of a dwelling,

or in the provision of services or

facilities in connection therewith, because

of race, color, national origin, sex,

handicap, familial status, or religion.

25. Petitioners have the burden of proving the allegations

of their Amended Petition for Relief. See Florida Dep't of

Transp. v. J. W. C. Co., Inc. , 396 So. 2d 778 (Fla. 1st DCA

1981). Petitioners failed to establish that Respondents

discriminated against them in any manner. Petitioners failed to

meet their burde n of proof in this proceeding.

RECOMMENDATION

Based upon the foregoing Findings of Fact and Conclusions

of Law, it is hereby RECOMMENDED that the Florida Commission on

Human Relations enter a final order dismissing Petitioners'

Amended Petition for Relief.

DONE AND ENT ERED this 14th day of February , 2011 , in

Tallahassee, Leon County, Florida.

S

CLAUDE B. ARRINGTON

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 14th da y of Februray , 2011 .

COPIES 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

Franklin D. Greenman, Esquire

Greenman and Manz

5800 Overseas Highway, Gulfside Village, Suite 40

Marath on, Florida 33050

Alberto Pis and Maria Soto

240 Sombrero Beach Road, Apartment A - 4

Marathon, Florida 33050

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.