15-004724 Joan Vassar vs. Cmp Chp San Marcos Ltd, Owner Status: Closed Recommended Order on Tuesday, December 22, 2015.

Summary: Petitioner failed to establish a prima facie case of housing discrimination.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

JOAN VASSAR ,

Petitioner,

v s . Case No. 15 - 4724

CMP CHP SAN MARCOS LTD, OWNER ,

Respondent .

________________________________/

RECOMMENDED ORDER

A final hearing was conducted in this case on October 26,

2015, in Tallahassee , Florid a, before Suzanne Van Wyk ,

Administrative Law Judge with the Division of Administrative

Hearings.

APPEARANCES

For Petitioner: Charles Hobbs, II, Esquire

Post Office Box 5908

Tallahassee , Florida 32314

For Respondent: Joelle C. Sharman , Esquire

Lewis, Brisbois, Bisgaard & Smith, LLP

118 0 Peachtree Street, Northeast

Atlanta, Georgia 30309

STATEMENT OF THE ISSUE

Whether Respondent engaged in a n unlawful discriminatory

housing practice against Petitioner on the basis of her

disability .

PRELIMINARY STATEMENT

On or about June 24, 2015, Petitioner filed a Housing

Discrimination Complaint (C omplaint) against CMP CHP San Marcos

Ltd. (Respondent) with the Florida Commiss ion on Human Relations

(Commission) for investigation. According to the C omplaint,

Respondent failed to make reasonable accommodation for

PetitionerÓs handicap, with the most recent date of

d iscriminat ion occurring on December 1, 2 01 4.

Following completion of its investigation, the Commission

issued a Determination dated August 10, 2015 , finding

Ð reasonable cause does not exist to believe that a

discriminatory housing practice has occurred.Ñ Petitioner

timely filed a Petition for Relief (Petition) with the

Commission.

On August 20 , 2015 , the Commission transmitted the Petition

to the Division of Administrative Hearings (DOAH) for assignment

of an administrative law judge to conduct an administrative

hearing on the Petition . The administrative hearing was

scheduled for October 26, 2015 .

On October 6, 2015, Respondent filed a Motion to Exclude

Evidence, which was granted after a telephonic he aring on the

Motion. Respondent filed a Moti on to Relinquish Jurisdiction

and Dismiss Pe tition for Relief on October 19, 2015 . On

October 22, 2015, Petitioner filed a Motion to Continue the

final hearing. Both motions were denied , and the hearing

commenced as scheduled.

At the final hearing, Petitioner testified on her own

behalf and off ered no exhibits . Respondent presented the

testimony of Valerie Gosier - Coleman and introduced Resp ondentÓs

E xhibits 1 through 6 and 9 into evidence.

The proceeding s were recorded and a transcript was ordered.

A one - volume Transcript was filed on November 24, 2015 . The

time established for filing post - hearing submissions was ten

days following the date the Transcript was filed, or December 4,

2015. Respondent timely filed a Proposed Recommended Order

which has been considered by the undersigned i n preparing this

Recommended Order. To date, Petitioner, who is represented by

counsel, has neither filed a proposed recommended order n or

requested an extension.

FINDINGS OF FACT

1 . At all times relevant hereto , Petitioner , Joan Vassar,

was an individual participant in a tenant - based voucher

arrangement under the Section 8 Housing Program funded by the

Department of Housing and Urban Development and administered by

the Tallahassee Housing Authority (THA) . Petitioner was a

resident of T h e Lakes at San Marcos ( The Lakes) , an apartment

complex located at 4768 Woodville Highway in Tallahassee,

Florida.

2 . Respondent, CMP CHP San Marcos Ltd. (San Marcos) , is

the owner of The Lakes, which is managed by a company known as

HSI.

3 . Petitioner has been diagnosed with fibromyalgia and has

suffered multiple strokes. Petitioner is disabled for purposes

of the Fair Housing Act.

4 . Beginning in August 2009, Petitioner rented apartment

1533 at The Lakes , a one - bedroom apartment on the third floor o f

building 15 . PetitionerÓs rent was paid directly to San Marcos

by THA pursuant to PetitionerÓs one - bedroom housing choice

voucher.

5 . Petitioner had difficulty climbing the stairs to her

third - floor apartment and often took breaks at each landing to

r est. There was no elevator at The Lakes as an alternative

means of accessing the third floor of building 15.

6 . By all accounts, PetitionerÓs tenancy at The Lakes was

peaceful and without incident.

7 . In 2011, Valarie Gosier - Coleman became the assistant

manager of The Lakes. Petitioner described Ms. Gosier - Coleman

as compassionate toward her. Ms. Gosier - Coleman occasionally

disposed of PetitionerÓs garbage for her and retrieved

Petitioner Ós mail .

8 . In May 2014, Petitioner reported to Ms. Gosier - Coleman

that her health had declined , that she would need a live - in

caregiver, and that she wished to move to a two - bedroom ,

first - floor apartment.

9 . On June 4, 2014, i n response to PetitionerÓs requ est,

Respondent informed Petitioner in writing that two two - bedroom ,

first - floor apartments -- 1311 and 1413 -- would become av ailable

beginning August 1, 2014 .

10 . A partment 14 13 was located in the building next to

PetitionerÓs existing apartment , and Petitioner indicated she

would accept that apartment.

11 . HSI requires all occupants of an apartment to complete

an application and be approved to rent. Petitioner brought her

would - be caregiver to The Lakes to apply for apartment 1413 .

However, the caregiver was reticent to complete the financial

information section of the application. Although she took the

incomplete application wi th her when she left the office, the

caregiver never submitted a completed application for the

apartment.

12 . Shor tly thereafter, Petit ioner was offered apartment

1116 , a one - bedroom first - floor apartment. On July 16, 2014,

Petitioner rejected that apartment, sight unseen, as Ð too far in

the back of the complex. Ñ

13 . On July 31, 2014, Petitioner renewed her lease fo r

apartment 1533. At that time, she wrote to management, ÐI do

not want a (2) bedroom apt. any place except where I specified

for personal reasons . I have been here for 5 years and am very

secure and familiar with my neighbors in my building . . . .

Plus , my family lives in this same building on the first

floor.Ñ 1 /

14 . No other first - floor apartments became available at

The Lakes between August and October 2014.

15 . Shortly after renewing he r lease , Petitioner informed

HSI that she desired to leave The Lakes . Petitioner requested

to break her lease, which Respondent allowed. Respondent

refunded PetitionerÓs deposit in full.

CONCLUSIONS OF LAW

16 . The Division of Administrative Hearings has

jurisdiction over the parties to, and subject matter of , this

proceeding. See §§ 120.569 & 120.57(1), Fla. Stat. (2015) 2/ ; see

also Fla. Admin. Code R. 60Y - 4.016 & 60Y - 8.001.

17 . F loridaÓs Fair Housing Act ( the Act) is codified in

sections 760.20 through 760.37 , Florida Statutes .

18 . Among other things, the Act brands certain actions

Ðdiscriminatory housing practices . Ñ Under the Act, following an

administrative hearing, the Commission has authority to make

findings as to whether a Ðdiscriminatory housing practiceÑ has

occurred. If such a finding is made, the Act further authorizes

the Commission to issue an order Ðprohi biting the practiceÑ and

providing Ðaffirmative relief from the effects of the practice,

including quantifiable damages and reasonable attorneyÓs fees

and costs.Ñ £ 760.35(3)(b), Fla. Stat.

19 . The Ðdiscriminatory housing practicesÑ prohibited by

the Act include those described in section 760.23(2), which

provides:

(2) It is unlawful to discriminate against

any person in terms, conditions, or

privileges of sale or rental of a dwelling,

or in t he provision of services or

facilities in connection therewith, because

of race, color, national origin, sex,

handicap , familial status , or religion.

20 . The language in section 760.23(2 ) is identical to the

prohibition in the federal Fair Housing Act (F HA), found at

42 U.S.C. § 3604(b) . Because section 760.23(2) is patterned

after a federal law on the same subject, Ðit [should] be

accorded the same construction as in federal courts to the

extent the construction is harmonious with the spirit of the

Florida legislation.Ñ Cf. , W inn - Dixie Stores v. Reddick , 954

So. 2d 723, 728 (Fla. 1st DCA 2007 )(discussing the same rule of

construction in the context of the Florida Civil Rights Act of

1992, sections 760.01 through 760.11, Florida Statutes .), rev.

denied , 967 So. 2d 198 (Fla. 2007 ).

21 . Petitioner, as the party asserting the affirmative in

this proceeding , has the initial burden of proof. See Balino v.

DepÓ t of Health & Rehab. Serv s . , 348 So. 2d 349 , 350 (Fla. 1st

DCA 1977 ) .

22 . Petitioner has the burden of establishing facts to

prove a prima facie case of discrimination. U.S. DepÓt of Hous.

& Urban Dev. v. Blackwell , 908 F.2d 864, 870 (11th Cir. 1990).

23 . The three - part Ðburden of proofÑ pattern developed in

McDonnell Douglas Corp. v. Green , 411 U.S. 792, 93 S. Ct. 1817

(1973), applies. Blackwell , 908 F.2d at 870. Under that test:

First, [Petitioner] has the burden of

proving a prima facie case of discrimination

by a preponderance of the evidence. Second,

if [Petitioner] suf ficiently establishes a

prima facie case, the burden shifts to

[Respondent] to Ðarticulate some legitimate,

nondiscriminatory reasonÑ for its action.

Third, if [Respondent] satisfies this

burden, [Petitioner] has the opportunity to

prove by a preponderanc e that the legitimate

reasons asserted by [Respondent] are in fact

mere pretext.

Id. ( citing Pollitt v. Bramel , 669 F. Supp. 172, 175 (S.D. Ohio

1987)( FHA claim) ) .

24 . Discrimination under the Act and the FHA can occur

upon Ða refusal to make reasonable accommodations in rules,

policies, practices , or services, when such accommodations may

be necessary to afford [a disabled person an] equal opportunity

to use and enjoy a dwelling.Ñ § 760.23(9)(b), Fla. Stat.;

42 U.S.C. § 3604(f)(3)(B). In proving an alleged refusal to

make a reasonable accommodation, Petitioner has the burden of

showing that a proposed accommodation is reasonable. See Loren

v. Sasser , 309 F. 3d 1296, 1302 (11th Cir. 2002). To prevail on

a claim of failure to accommodate under either the Act or the

FHA , Petitioner must establish that : (1) s he is handicapped

within the meaning of the Act ; (2) s he requested a reasonable

accommodation ; (3) such accommodation was necessary to afford

her an oppo rtunity to use and enjoy her dwelling ; and

(4) Respondent refused to make the requested accommodation . See

Philippeaux v. Apartment Inv. & Mgmt. Co . , 598 Fed. Appx. 640,

*6 - 7 (11th Cir. 2015).

25 . As explained by the Eleventh Circuit Court of Appeals

in Schwarz v. City of Treasure Island , 544 F.3d 1201, 1226 (11th

Cir. 2008):

The FHA's reasonable accommodation provision

requires only those accommodations that Ð may

be necessary . . . to a fford equal

opportunit y to use and enjoy a dwelling. Ñ

42 U.S.C. § 3604(f)(3)(B) (emphas e s added).

The word ÐequalÑ is a relative term that

requires a comparator to have meaning. In

this context, Ð equal opportunity Ñ can only

mean that handicapped people must be

afforded the same (or ÐequalÑ ) opportunity

to use and enjoy a dwelling as non -

handicapped people, which occurs when

accommodations address the needs created by

the handicaps . If accommodations go beyond

addressing these needs and start addressing

problems not caused by a personÓ s handicap,

then the handicapped pers on would receive

not an Ðequal,Ñ but rather a better

opportunity to use and enjoy a dwelling, a

preference that the plain language of this

statute cannot support.

26 . Petitioner proved the fir st three elements of a prima

facie case of discrimination -- she is disabled, she made a

request for an accommodation in the form of a first - floor

apartment, and said request was necessary for her to use and

enjoy her dwelling, particularly the necessities o f retrieving

her mail and disposing of her garbage.

27 . However, Petitioner did not p rove that Respondent

refused to accommodate PetitionerÓs request. To the contrary,

the testimony and evidence demonstrated that San Marcos, through

HSI, timely responded to PetitionerÓs request for accommodation

and offered three different apartments to Petitioner in June and

July 2014 to accommodate her needs.

28 . I n late July 2014, Petitioner narrowed her request for

accom modation to a two - bedroom apartment in building 15 only.

Petitioner is not entitled to the accommodation of her choice,

but is entitled to only a reasonable accommodation. See Solodar

v. Old Port Cove Lake Point Tower Condo. AssÓn , U.S. Dist. LEXIS

61680 *13 (S.D. Fla. 2012)(citing Stewart v. Happy HermanÓs

Cheshire Bridge , 117 F.3d 1278, 1286 (11th Cir. 1997)); Petty v.

Terry Hammer d/b/a Park Drive Apts. , Case No. 02 - 4051 (Fla. DOAH

Jan. 30, 2003; Fla. FCHR July 10, 2003) (Ð Neither applicable

statutes no r caselaw has established that [Petitioner] can

dictate the specifics of Òreasonable accom m odation .Ó Ñ ) . Under

the facts sub judice , PetitionerÓs request for an apartment in

building 15 was not reasonably necessary to accommodate her

disability. PetitionerÓs personal reasons for wanting to remain

in building 15 do not promote her request to the only

Ð reasonable accommodation. Ñ

29 . Assuming, arguendo, that PetitionerÓs request for a

two - bedroom , first - floor apartment in building 15 was

reasonable, Petitioner did not prove that Respondent refused to

make that accommodation. The evidence showed that no first -

floor unit became available to fulfill PetitionerÓs request

between the date Petitioner made her request and the date she

volunt arily terminated her lease with Respondent .

30 . Because Petitioner failed to prove that Respondent

refused to provide a reasonable accommodat ion for her

disability, Petitioner failed to establish a prima facie case of

housing discrimination.

31 . In sum, Petitioner failed to prove her claim that

Respondent discriminated against her in violation of the Act.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of

Law, it is

RECOMMENDED that the Florida Commission on Human Relations

ent er a final order dismissing the Complaint and Petition for

Relief.

DONE AND ENTERED this 22nd day of December , 2015 , in

Tallahassee, Leon County, Florida.

S

SUZANNE VAN WYK

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 22nd day of December, 2015 .

ENDNOTES

1 / Petitioner emphatically maintained throughout the hearing

that she possessed a housing choice voucher for a two - bedroom

apartment, and that, as such, she was wrongly denied a

two - bedroom apartment in building 15. The record evidence did

not support a finding that Petitioner ever held any housing

choice voucher other than the one - bedroom voucher issued by THA

in 2008. The record established that Petitioner did apply in

2013 to rent apartment 1511, a unit on the first floor of

building 15. No evidence was introduced to corroborate

PetitionerÓs hearsay statements that she was w rongly denied a

lease for apartment 1511 in 2013 .

2/ References herein to the Florida Statutes are t o the 2015

version, unless otherwise specified.

COPIES FURNISHED:

Tammy Barton, Agency Clerk

Florida Commission on Human Relations

4075 Esplanade Way , Room 110

Tallahassee, Florida 32399

(eServed)

Joelle C. Sharman , Esquire

Lewis, Brisbois, Bisgaard & Smith, LLP

1180 Peachtree Street, Northeast

Atlanta, Georgia 30309

(eServed)

Charles Hobbs, II, Esquire

Charles Hobbs, II, P.A.

Post Office Box 5908

Tallahassee, Florida 32314

(eServed)

Cheyanne Costilla, Gen eral Co unsel

Florida Commission on Human Relations

4075 Esplanade Way, Room 110

Tallahassee, Florida 32399

(eServed)

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.