16-001798 Ann Hervas vs. Poah Cutler Meadows, Llc Status: Closed Recommended Order on Friday, April 21, 2017.

Summary: (Amended) Petitioner failed to prove housing discrimination in time it took for manager of apartment complex to assign her a two-bedroom unit. Other persons with medical needs were ahead of her on the waiting list.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

ANN HERVAS ,

Petitioner,

vs. Case No. 16 - 1798

POAH CUTLER MEADOWS, LLC ,

Respondent.

_______________________________/

AMENDED RECOMMENDED ORDER (AMENDED TO SERVE

PETITIONER AT HER CO RRECT ADDRESS )

On October 14 , 2016 , Robert E. Meale, Administrative Law

Judge of the Division of Administrative Hearings (DOAH),

conducted the final hearing by videoconference in Miami and

Tallahassee, Florida.

APPEARANCES

For Petitioner: Ann Hervas , pro se

Apartment A224

11280 Southwest 196 th Street

Miami, Florida 33157

For Respondent : Andrew L. Rodman , Esquire

Jon K. Stage, Esquire

Stearns Weaver Miller Weissler

Alhadeff & Sitterson, P.A.

150 West Flagler Street , Suite 2200

Miami, Florida 33130

STATEMENT OF THE ISSUE

T he issue is whether Respondent has unlawfully

discriminated against Petitioner on the basis of her

disabilities in connection with her rental of an apartment, in

violation of the Florida Fair Housing Act, section 760.23(2),

Florida Statutes .

PRELIMINARY STATEMENT

By a Housing Discrimination Complaint dated September 29,

2015 , Petitioner claimed that she suffers from a disability , she

applied to Respondent to rent a two - bedroom apartment, and

Respo ndent discriminated against her, on the basis of the

disability, by renting two - bedroom apartments to other persons

rather than her.

On February 22, 2016 , the Florida Commission on Human

Relations (Commission) ente red a Notice of Determination ( No

Cause ) .

On March 22 , 2016, Petitioner filed a Petition for Relief

asserting largely the same allegations contained in the Housing

Discrimination Complaint . The Commission transmitted the

petition to DOAH on March 29 , 2016. The Administrative Law

Judge continued the final hearing twice at the request of

Respondent .

At the hearing, Petitioner called one witness , herself,

and offered into evidence one exhibit : Petitioner Exhibit 1.

Respondent called two witnes ses and offered into evidence 19

exhibits: Respondent Exhibits 1 - 4, 8 (page 3), 1 4 - 17, 21, 25,

27, 29, 40, 44, 49, 5 2, 53, and 55. All exhibits were admitted;

however, Petitioner's exhibit is deemed withdrawn because she

failed to file it after the hearing, even though she had been

given ten days to do so.

The transcript was filed on November 9, 2016 . Respondent

filed a proposed recommended o rder on December 6, 2015 .

FINDINGS OF FACT

1. Petitioner suffers from bipolar disorder, surgically

repaired spinal injuries, and a cardiac condition requiring a

pacemaker, as well as unspecified environmen tal allerg ies.

Petitioner thus has a physical or mental impairment that

substantially limits one or more ma jor life activities and has a

record of having, or is regarded as having, suc h physical or

mental impairment.

2. At all material times, Respondent has managed Cutler

Meadows, which is a Section 8 housing community that is part of

the Housing Choice Vouc her Program administered by the U.S.

Department of Housing and Urban Development. Cutler Meadows is

a complex of three three - story buildings comprising 225

apartments : 3 6 two - bedroom units and 189 one - bedroom units. A

maintena n ce person resides in one of the two - bedroom apartment s ,

so only 35 two - bedroom apartments are available for rent. These

units are popular and infrequently become available for rent.

3 . By application dated September 5, 2000, Petitioner

applied for a one - bedroom apartment at Cutl er Meadows . Her

application disclosed that Petitioner was disabled. Respondent

approved the application, and , in November 2000, Petitioner

moved into unit A - 108, which is a ground - floor, one - bedroom

unit . At the same time, Petitioner's disa bled son move d into

his own one - bedroom apartment on the third floor of the same

building .

4 . In March 2010, Petitioner asked to be moved either to a

one - bedroom apartment on the third floor or a two - bedroom

apartment. Petitioner submitted a physician's note statin g that

she required a higher floor due to her allergies. A subsequent

physician's note asserted that Petitioner's grandson needed to

live with her to assist with her activities of daily living.

Although her reported medical needs would seem to have requi red

a two - bedroom unit on the third floor, by asking for a unit that

satisfied either of these conditions, Petitioner appears to have

been content with a higher one - bedroom unit or a lower

two - bedroom unit.

5 . Prior to Respondent's reassigning Petitioner to another

unit, o n January 5, 2011, Petitioner's grandson, who had moved

in with Petitioner, knifed his father , Petitioner's son, who, as

noted above, resided at Cutler Meadows. Respondent commenced a

short - lived eviction proceeding against Petitioner, b ut agree d

to drop the matter if the grandson moved out and was not allowed

to visit the complex.

6 . A couple of weeks after reaching the settlement with

Respondent, Petitioner filed an application seeking, again, a

two - bedroom unit or a one - bedroom unit on a higher floor.

Shortly after filing this application, Petitioner learned that

unit A - 316, which was vacant, was about to be furnishe d with new

appliances. Petitioner asked to be assigned this apartment,

and, t wo days later, Respond ent assigned this apartment to

Petitioner.

7 . On October 21, 2013, Petitioner requested a two - bedroom

apartment. Respondent has a written policy for the assignment

of apartments. For the relatively scarce two - bedroom units,

Respondent maintains two wait ing lists: one for persons with

medical needs justifying a two - bedroom unit and one for all

other persons. As long as anyone is on the medical - needs

waiting list, no one on the other list is assigned a two - bedroom

unit.

8 . In this case, Respondent imp lemented its written

policy. On receipt of Petitioner's application, Respondent

placed her on the medical - needs waiting list, which had four

persons ahead of her. Petitioner has failed to prove that any

of these persons was not disabled. As each two - bed room

apartment became available, Respondent assigned it to the person

at the top of the medical - needs waiting list. When Petitioner

reached the top of the list, she received the nex t available

two - bedroom unit, which , in fact, took place in March 2016 whe n

Respondent assigned her a two - bedroom apartment, unit A - 224, and

Petitioner moved into the apartment.

9 . When asked, Petitioner could not say how Respondent

discriminated against her on the basis of any of her

disabilities. The crux of her case seems to turn on one or two

misconceptions. Petitioner complained that a two - bedroom

apartment was vacant because its tenant resided in southwest

Florida, but she clearly lacked sufficient understanding of the

facts of that transaction to establish any wrongdo ing on

Respondent's part. Petitioner seems to think that other

persons, besides the four ahead of her on the medical - needs

waiting list, obtained two - bed room units before she did , but

Petitioner has no evidence to support this opinion, which

appears to be incorrect. Petitioner badly undermined her own

judgment when she complained, at an earlier time, when

Respondent assigned a higher one - bedroom apartment to someone

whose home had burned , rather than to her .

10 . In sum, Petitioner has provided no direct evidence of

discrimination, nor any basis whatsoever for an inference of

discrimination. Petitioner has failed to provide any evidence

even suggestive of un fair treatment of her by Respondent.

CONCLUSIONS OF LAW

11 . DOAH has jurisdiction of the sub jec t matter.

§§ 120.569 and 120.57(1) , Fl a. Stat. (20 16 ).

12 . Section 760.23 provides:

(1) It is unlawful to refuse to . . . rent

after the making of a bona fide offer, to

refuse to negotiate for the . . . rental of,

or otherwise to make unavailable or deny a

dwelling to any person because of race,

color, national origin, sex, handicap,

familial status, or religion.

(2) It is unlawful to discriminate against

any person in the terms, conditions, or

privile ges of . . . 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.

* * *

(7) It is unlawful to discriminate in the

. . . rental of, or to otherwise make

unavailable or deny, a dwelling to any . . .

renter because of a handicap of:

(a) That . . . renter;

(b) A person residing in or intending to

reside in that dwelling after it is . . .

rented . . . or made availab le; or

(c) Any person associated with the . . .

renter.

(8) It is unlawful to discriminate against

any person in the terms, conditions, or

privileges of . . . rental of a dwelling, or

in the provision of services or facilities

in connection with such dwelling, because of

a handicap of:

(a) That . . . renter;

(b) A person residing in or intending to

reside in that dwelling after it is . . .

rented . . . or made available; or

(c) Any person associated with the . . .

renter.

13 . Section 760.22(7)(a) defines a person with a

"handicap" as person who has " a physical or mental impairment

which substantially limits one or more major life activities, or

. . . has a record of having, or is regarded as having, such

physical or mental impairment ."

14 . Petitioner bears the burden of proving the material

allegations by a preponderance of the evidence. Herron v.

Blackwell , 908 F.2d 864, 870 (11th Cir. 1990); § 1 20.57(1)(j).

15 . A party seeking to prove housing discrimination may

proceed under the three - part framework set forth in McDonnell

Douglas Corp. v. Green Corp. , 411 U.S. 792 (1973) , by proving a

prima facie case of discrimination and then proving that any

legitimate nondiscriminatory explanation offered by the opposing

party is merely prete xt . Herron , supra at 870. More recently,

the Eleventh Circuit has described the proof required for a

prima facie showing to consist of the following: 1) the

claimant is a member of a protected class; 2) the claimant

attempted to enter into a covered transaction and was eligible

to do so; 3) the opposing party declined to enter into the

transaction despite the claimant's qualifications; and 4) the

opposing party continu ed to engage in the same type of

transaction with persons not in the claimant's class, but with

similar qualifications. Molina v. Aurora Loan Servs. , LLC , 635

Fed. Appx. 618, 625 (11th Cir. 2015).

16 . Under McDonnell Douglas , a claimant may prove a prima

facie case by direct evidence or circumstantial evidence that is

sufficient to support an inference of discrimination. See ,

e.g. , Lindsay v. Yates , 578 F.3d 407, 415 (6th Cir. 2009). The

three - part framework of McDonnell Douglas is not inflexible, so,

in determining whether a claimant has proved sufficient facts to

support an inference of discrimination, the key question is

whether she has established an inference of discrimination, not

whether she has satisfied a particular evid entiary test. Id.

at 416; compare Kilgore vussville Dev., LLC , 646 Fed. Appx.

765, 773 (11th Cir. 2016) (circumstantial evidence in case

involving claim of employment discrimination) (citing Smith v.

Lockheed - Martin Corp. , 644 F.3d 1321, 1328 (11th C ir. 2011)

(citing Silverman v. Bd. of Educ. , 637 F.3d 729, 733 - 34 (7th

Cir. 2011)).

17 . Petitioner has proved that she meets the definition of

a person with a handicap. She has offered no direct evidence of

discrimination, nor has she provided any eviden ce that would

support an inference of discrimination. In the language of the

McDonnell Douglas test, Petitioner has failed to prove that she

was qualified for a two - bedroom apartment that Respondent rented

to someone who was not disabled. More broadly, P etitioner has

failed to prove that Respondent was guilty of any act or

omission even suggestive of discrimination on the basis of

disability.

RECOMMENDATION

It is

RECOMMENDED that the Florida Commission on Human Relations

enter a final order dismissing the Petitio n for Relief filed on

March 2 2 , 2016.

DONE AND EN TERED this 2 1st day of April , 2017 , in

Tallahassee, Leon County, Florida.

S

____________________________________

Robert E. Meale

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

t his 21st day of April , 2017 .

COPIES FURNISHED:

Tammy S. Barton, Agency Clerk

Florida Commission on Human Relations

4075 Esplanade Way , Room 110

Tallahassee, Florida 32399

(eServed)

Ann Hervas

Apartment A224

11280 Southwest 196 th Street

Miami, Florida 33157

Andrew L. Rodman, Esquire

Jon K. Stage, Esquire

Stearns Weaver Miller Weissler

Alhadeff and Sitterson, P.A.

150 West Flagler Street , Suite 2200

Miami, Florida 33130

(eServed)

Kara S. Nickel, Esquire

Stearns Weaver Miller Weissler

Alhadeff and Sitterson, P.A.

150 West Flagler Street , Suite 2200

Mia mi, Florida 33130

(eServed)

Cheyanne Costilla, Gen eral Counsel

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.