11-003975 Judith Amadiz vs. Sunbeach Apts. Corp. Status: Closed Recommended Order on Thursday, August 16, 2012.

Summary: Petitioner failed to demonstrate she was entitled to a reasonable accommodation that Respondent was required to provide and is therefore not entitled to damages.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

JUDITH AMADIZ , )

)

Petitioner, )

)

vs. ) Case No. 11 - 3975

)

SUNBEACH APTS. CORP. , )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, a formal hearing was held in this case

on May 9, 2 012, by video teleconference, with the parties

appearing in Miami, Florida, before June C. McKinney, a duly -

designated Administrative Law Judge of the Division of

Administrative Hearings, who presided in Tallahasse e, Florida.

APPEARANCES

For Petitioner: Judith Amadiz , pro se

Apartment 604

3120 Collins Avenue

Miami Beach , Florida 33140

For Respondent: Juan C. Zorrilla , Esquire

Zorrilla and Associates, P.L.

Penthouse 10

2600 Douglas Road

Coral Gables , Florida 33134

STATEMENT OF THE ISSUE S

The issue s are w hether Respondent discriminated against

Petition er by not providing a reasonable accommodation , steam

clean ing the apartment after the sprinkler head broke , that

Petitioner was entitled to , and Respondent was required to

provide, and, if so, whether Petitioner should receive damages

as a result of Respo ndent's failure to provide Petitioner with a

reasonable accom m odation .

PRELIMINARY STATEMENT

In a Housing Discrimination Complaint , filed on March 3,

201 1 , and subsequently investigated by the Florida Commission on

Human Relations ( " Commission " ) , Judith Amadiz ( " Petitioner " or

" Amadiz " ) charged that Sunbeach Apts. Corp. ( " Respondent " or

" Sunbeach " ) unlawfully discriminated against Petitioner by not

providing the reasonable accommodation of steam cleaning her

apartment after the sprinkler head broke.

The C ommission investigated Petitioner ' s claim and on

November 17, 2010 , issued a notice setting forth its

determination finding that reasonable cause existed to believe

that a discriminatory housing practice had occurred. On

March 2, 2011, a Notice of Failure of Conciliation was issued by

the Commission. Thereafter , Petitioner filed a Petition for

Relief, which the C ommission sent to the Division of

Administrative Hearings ( " DOAH " ) on August 8, 2011.

The final hearing was noticed and scheduled for October 12,

2011. After several continuances, the final hearing was set and

heard on May 9, 2012. Both parties appeared at the appointed

place and time.

At the final hearing, Amadiz testified on her own behalf .

Petitioner ' s Composite E xhibit s 1 through 6 were adm itted in to

evidence . Respondent presented the testimony of three

witnesses: Maria G arcia, Enrique Perez, and Rene Fernandez , an

expert witness . Respondent ' s E xhibit s 2 , 4, 7, 9 though 15, 18 ,

and 20 were offered and received into evidence.

The hearing was recorded and transcribed. On June 15,

2012, the Transcript was filed at DOAH. On June 29, 2012, the

undersigned issued an Order Granting Extension of Time. B oth

parties filed timely P roposed R ecommended O rders , which have

been duly considered in pre paration of this Recommended O rder .

FINDINGS OF FACT

1. On December 8, 2009, Amadiz applied to become a tenant

at Sunbeach. Amadiz informed Sunbeach at the time of her

application that she had l upus.

2. Sunbeach approved Amadiz 's application and she be came a

tenant of unit 417 , a studio apartment having approximate ly 400

square f eet of living spaces . The apartment came furnished with

a bed, dresser , nightstand, stove refrigerator, and desk.

3. On April 11, 2010, Amadiz arrived home to her apartment

at approximately 1:30 a.m. , from volunteering at a fundraiser

held by Miami Beach Veiled Wine Society.

4. After Amadiz entered her apartment and closed the door ,

the sprinkler system started and an outpour of brownish water

came out of the sprinkler because the cover was not on the

sprinkler and the sprinkler head was not in place. The water

wet Amadiz .

5. Amadiz left the apartment and went to report the

incident to the property manager Miguel Echemendia

("Echemendia" ) . Although Echemendia and Amadiz had a difficult

time communicat ing with one another because she didn't speak his

language ( Spanish ) , Echemendia go t dressed and went upstair s

with Amadiz to assist her.

6. Enchemendia looked at the water in Amadiz 's apartment.

He tried to locate the shut off but was not able to find it to

cut off the running sprinkler.

7. After about 45 minutes, Amadiz's neighbor helped

Echemendia find the sprinkler shut - off and turned it off .

8. Water covered Amadiz' s tiled floors in the bathroom,

closet , and main living a rea.

9. After the sprinkler was turned off , Amadiz pumped water

out of her apartment for about three hours.

10. Amadiz threw out a lot of personal items the next day

while trying to clean up from the water . A friend came over and

assisted Amadiz with th e clean up. They cleaned the tiled floor

with bleach, dried the floors, and discarded wet and damaged

goods. Amadiz and her friend were able to dry up most of the

water.

11. A t about 3:45 p.m. o n April 11, 2012, the same day as

the sprinkler incident , Amadiz wrote Respondent a letter, which

she sent certified, detailing the sprinkler outpour situation of

earlier that morning .

12. In the letter, Amadiz informed Sunbeach that she

"cleaned the floors to the best of her ability." Amadiz also

inform ed Sunb each that "as water has seeped under the dresser,

the refrigerator and stove, I am unable to complete the process

without any assistance " and she requested "complete maintenance

review for sprinkler systems, clean up of the areas I noted,

fair reparations for the items [listed] damaged."

13. By April 12, 2010, the water under the bed had dried

up. However, t he dresser had some brown water around it.

Amadiz moved the dresser as far as she could and removed the

water that she saw and cleaned the floor with b leach . Amadiz

was concerned that there might be more water under the dresser

that she couldn't get to left over from the sprinkler outpour.

14. Amadiz also had a concern s about water she had

discovered when she reached under the stove and refrigerator

that she could not reach to clean. Amadiz dried up the areas

around the appliances she could reach in the floor area.

15. Amadiz was worried about water residue because the

grout in her apartment was brown ish , not white , after the

outpour of water . Amad iz concluded that a mold - type condition

existed even though mold does not colonize on tile floors .

16. The areas that Amadiz couldn't access underneath the

stove, refrigerator, and behind the floorboards concerned her .

Amadiz neither asked no r sought any one to help her access any of

the areas. And, she was never able to determine if there was

water behind the floorboard , stove, and refrigerator.

17. On April 12, 2010, Sunbeach's repairman , Erique Perez

("Perez") , went to unit 417 with Echemendia to eval uate the

water damage. He checked both the floors and walls with his

hands. He checked underneath the refrigerator and stove by

pulling it forward and did not find any water. Perez determined

that there was no water damage in the apartment.

18. On Apri l 13, 2010, Amadiz sent Sunbeach a second

letter requesting that Sunbeach come "check out the damage of

her apartment, provide steam cleaning support or speak with her

about the next steps . " She also stated in the letter that she

had been given antibiotic s and a steroid cream for a rash and

set up another doctor's appointment.

19. On April 15, 2010, Am a diz called Garcia to follow up

on her requests from the letters . Garcia indicated that she

would speak to her supervisor and get back in contact with

Amad iz the next week.

20. Soon thereafter, code compliance visited Amadiz's

apartment.

21. O n April 27, 2010, Amadiz sent a third letter to

Respondent notifying Sunbeach that she was going to withhold

rent if repairs weren't made in seven days and requested the

following:

Steam cleaning of the u nit in which I reside

as soiled water residue stil l remains under

the appliances and furniture and within the

grout of the tiles in the main living area

as well as the bathroom

An inspection of the two remaining

sprink lers in the unit

The rug directly in front of door remains

and has begun showing signs of mold and

mildew enough in fact that the smell can be

ascertained from the elevators.

22. Amadiz further detailed the items for which she wanted

to be reimbursed and stated:

These addressed issues coupled with my own

health issues (on SSA Disability for

systemic lupus erythematosus) cited in my

previous correspondence lead me to assume

the habitability of the unit is of little

concern. I have made you aware of the ne ed

for antibiotics and steroid creams to offset

the effects of the soiled water . . . the

presence of mold and mildew within and

without the unit creates inhabitable living

conditions.

23. Amadiz paid rent up to April 27, 2010, then withheld

rent paymen ts per her attorney ' s advice.

24. On or about May 17, 2010, Amadiz received a three - day

eviction notice from Sunbeach .

25. Amadiz responded with a fourth letter dated May 17,

2010, which chronicled her previous letters , requested steam

cleaning an d inspe ction, and reparations for lost items, and

listed her health issues identically as she had in the letter of

April 27, 2010.

26. Amadiz remained in the apartment from April 11, 2010,

to June 29, 2010. She vacated the unit 417 on July 3, 2010 ,

pursuant to the final judgment of eviction by Sunbeach entered

against her for non - payment of rent .

CONCLUSIONS OF LAW

2 7 . DOAH has jurisdiction over the subject matter of this

proceeding and of the parties pursuant to s ections 120.569 and

120.57(1), Florida Statutes .

2 8 . Under Florida ' s Fair Housing Act, sections 760.20

through 760.37, it is unlawful to discriminate in the sale or

rental of housing. Section 760.23 states, i n pertinent part:

(8) It is unlawful to discriminate against

any person in the terms, condit ions, 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;

(b) A person residing in or intending to

reside in that dwelling aft er it is sold,

rented, or made available; or

* * *

(9) For purposes of subsections (7) and

(8), discrimination includes:

(b) A refusal to make reasonable

accommodations in rules, policies,

practices, or services, when such

accommodations may be ne cessary to afford

such person equal opportunity to use and

enjoy a dwelling.

29. To prevail with a reasonable accommodation claim ,

Petitioner must establish that (1) s he is disabled or

handicapped within the meaning of the F lorida H ousing A ct , (2)

s he re quested a reasonable accommodation, (3) such accommodation

was necessary to afford her an opportunity to use and enjoy her

dwelling, and (4) the defendant refused to make the requested

accommodation. United States v. Hialeah Hous. Auth. , 418 Fed .

Appx. 87 2 (11th Cir. Fla. 2011). Under this approach, Amadiz

must demonstrate a prima facie case for discrimination.

30. In this matter, Respondent stipulates that Petitioner

has l upus and is disabled or handicapped within the meaning of

the Florida Housing Act. However, Petitioner has failed to

prove a prima facie case. First, Amadiz fails to establish the

second prong of the test that a specific demand was made for a n

accommodation. Amadiz's letters fail to establish any specific

or direct request for steam cleaning services as a reasonable

accommodation . In fact, l upus was not even mentioned in the

first two letter s of April 11 and 13, 2010. And, the April 27,

2010, letter , which was a notice to terminate lease agreement

and the May 17, 2010, letter both f ail to make any direct

connect ion between the request for steam cleaning and Amadiz's

lupus disability.

31. And, if the last two letters could have been tied to

Petitioner's l upus condition, which was noted in her application

for an apartment, the record lacks any credible evidence of

Amadiz putt ing Sunbeach on notice why her l upus condition

required the reasonable accommodation of steam cleaning

services. 1 The re is no persuasive evidence showing that

Petitioner was precluded from steam cleaning the floor s in her

apartment. Accordingly, Petitioner's failure to establish the

two prongs of a reasonable accommodation claim ends any further

inquiry regarding discrimination because Amadiz fails to meet

her burden.

32. As to the issue of damages , Petitioner is not entitled

to any damages because Sunbeach did not fail to provide her a

reasonable accommodation.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of

Law, it is RECOMMENDED that the Florida Commission on Human

Relations enter a fi nal order dismissing Petitioner ' s Petition

for Relief filed by Judith Amadiz in its entirety.

DONE AND ENTERED this 1 6 th day of August , 20 1 2 , in

Tallahassee, Leon County, Florida.

S

JUNE C. McKINNEY

Administrative Law Ju dge

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 1 6 th day of August , 201 2 .

ENDNOTE

1 Amadiz mentioned D r. Session in her Petition for R elief but

never provided that information to Sunbeach to notify Respondent

of any medical opinion regarding her apartment .

COPIES FURNISH ED :

Denise Crawford, Agency Clerk

Florida Commission on Human Relations

Suite 100

2009 Apalachee Parkway

Tallahassee, Florida 32301

[e-mail]

Lawrence F. Kranert, Jr., General Counsel

Florida Commission on Human Relations

Suite 100

2009 Apalachee Parkway

Tallahassee, Florida 32301

Juan Carlos Zorrilla, Esquire

Zorrilla and Associates, P.L.

Penthouse 10

2600 Douglas Road

Coral Gables, Florida 33134

[e-mail]

Judith Amadiz

Apartment 604

3120 Collins Avenue

Miami Beach, F lorida 33140

[e-mail]

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 age ncy that

will issue the Final Order in this case.