18-004634 James E. Townsend Sr. Contessa Idleburg vs. Assad F. Malaty Status: Closed Recommended Order on Thursday, December 19, 2019.

Summary: Petitioners failed to timely file housing discrimination complaint and, regardless, failed to prove that Respondent discriminated against them through terms and conditions, and failing to make modifications or accommodations based on their handicaps.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

JAMES E. TOWNSEND , SR., and

CONTESSA IDLEBURG ,

Petitioners, ,

Case No. 18 - 4634

vs.

ASSAD F. MALATY ,

Respondent .

/

RECOMMENDED ORDER

The final hear ing in this matter was conducted before

Administrative Law Judge Andrew D. Manko of the Division of

Administrative Hearings (ÐDOAHÑ), pursuant to sections 120.569

and 1 20.57(1), Florida Statutes (2019 ), 1/ on December 3, 2018, in

Lakeland, Florida , and on A pril 2, 2019, and June 13, 2019 , by

video teleconference between sites in Tallahassee and Lakeland .

APPEARANCES

For Petitioner s : James E. Townsend, Sr., p ro se

Contessa Idleburg, p ro se

Apartment 2101

140 Aida Street

Lakeland, Florida 33805

For Respondent: Charlann Jackson Sanders, Esquire

Law Office of Charlann Jackson Sanders

2225 East Edgewood Drive , Suite 8

Lakeland, Florida 33803

STATEMENT OF THE ISSUE S

Whether Respondent , Assad F. Malaty, discriminated against

Petitioners, Dr. James E. Townsend and his n i e ce, Contessa

Idleburg (formerly, Ms. Rogers), in violation of the Florida

Fair Housing Act and, if so, the appropriate remedy therefor.

PRELIMINARY STATEMENT

Petitioner, Dr. Townsend, filed a Housing Discrimination

Complaint (ÐComplaintÑ) with the Florida Commission on Human

Relations (Ð FCHR Ñ) on August 24, 2017, alleging that Respondent

engaged in discriminatory housing p ractices on the basis of his

handicap under the Florida Fair Housing Act, chapter 760,

part II, Florida Statutes (the ÐFFHAÑ).

FCHR investigated the Complaint and decided to include

Ms. Idleburg as a complainant. O n August 21, 2018, FCHR issued

a determi nation that there was reasonable cause to believe that

Respondent engaged in a discriminatory housing practice by

failing to make reasonable modifications and accommodations

under section 760.23(8) and (9), Florida Statutes, but that

there was no reasonabl e cause to believe that Respondent engaged

in an unlawful housing practice through discriminatory terms and

conditions under section 760.23(2).

On September 4, 2018, Petitioners timely requested a

hearing at DOAH by filing a Petition for Relief and FCHR

t ransmitted the Petition to DOAH that same day to conduct a

formal administrative hearing under section 120.57.

The final hearing was scheduled for December 3 and 4, 2018.

However, at the start of the hearing, the undersigned granted a

continuance to allow Petitioners a chance to confer with the

Attorney GeneralÓs office about their election of remedies.

Petitioners elected to proceed at DOAH.

The final hearing began on April 2, 2019. Both parties

presented their cases - in - chief, but requested more time to file

additional exhibits. On April 17, 2019, the undersigned held a

teleconference, at which the parties indicated that further

testimony was needed concerning the additional exhibits. The

continuation of the final hearing occurred on June 13, 2019.

In PetitionersÓ case - in - chief and rebuttal case, they each

testified on their own behalf and presented the testimony of

Veronica Banks, a family friend. PetitionersÓ Exhibits 1

through 13 were admitted into evidence.

In RespondentÓs case - in - chief, he test ified on his own

behalf and presented the testimony of two witnesses: Connie

Garrett, a tenant; and Diane Golston, a family friend.

RespondentÓs Exhibits 1 through 19 were admitted into evidence.

A four - volume Transcript of the final hearing was filed on

October 9, 2019. After granting the partiesÓ extension

requests , Respondent timely filed his Proposed Recommended Order

(ÐPROÑ) ; Petitioners filed their PRO late on December 2, 2019 .

The undersigned duly considered both PROs in preparing this

Recommende d Order .

FINDING S OF FACT

1. Mr. Malaty, who is 81 years old, owns and manages

rental properties in Lakeland, Florida, including the subject

property on Captive Point , which he purchased in 2003 (the

ÐUnitÑ).

2. Dr. Townsend and his niece, Ms. Idlebur g, rented the

Unit from November 1, 2011, until on or about February 20, 2017,

when Mr. Malaty evicted them. Dr. Townsend, Ms. Idleburg, and

her three minor children lived in the Unit.

3. Dr. Townsend is 71 years old. He has been on Social

Security Dis ability since 2000 and suffers from CrohnÓs Disease,

a lumbar spinal condition, and prostate cancer. In May 2014, he

suffered a stroke, upon which the requested accommodations and

modifications at issue in this case were initially based.

4. Ms. Idlebu rg is 36 years old. She has a shunt to drain

fluid from her brain and has received Supplemental Social

Security Income since at least 2014. Ms. Idleburg admitted that

the requested accommodations and modifications at issue were to

assist Dr. Townsend aft er he suffered the stroke; they were not

requested to accommodate her.

5. In late 2011, Mr. Malaty executed a one - year lease wit h

Dr. Townsend and Ms. Idleburg. The lease commenced on

November 1, 2011, and provided for monthly rent of $525. The

lease required Petitioners to keep the Unit in a sanitary

condition at their own expense and to obtain Mr. MalatyÓs

written consent before making alterations or improvements.

6. The lease also required Petitioners to maintain the

lawn at their own expense. A lthough Dr. Townsend testified that

he told Mr. Malaty when he signed the lease that he would be

unable to cut the grass due to his disability, Mr. Malaty did

not believe he had waived that requirement. Indeed,

Dr. Townsend conceded that Mr. Malaty would ask about the grass

whenever it got too high. Over the years, Mr. Malaty paid for a

service to care for the lawn but never invoiced Petitioners for

those services.

7. In December 2012, the lease automatically converted to

a month - to - month tenancy beca use Petitioners stayed in the Unit

without executing a new lease. That tenancy continued for over

four more years until the February 2017 eviction.

8. In January 2013, Dr. Townsend asked Mr. Malaty to waive

rent that month due to a death in his family. Dr. Townsend

believed that Mr. Malaty agreed to forego that rent forever.

Mr. Malaty, on the other hand, believed he had agreed to extend

the deadline to pay that monthÓs rent, which is why he began

asking for it just a few weeks later.

9. Based on t he weight of the credible evidence, the

undersigned finds that Mr. Malaty did not agree to forego that

monthÓs rent and that Petitioners never paid it back. The

evidence is undisputed that Mr. Malaty continued to ask them

about the missed rent, though he did not raise it as a ground

for eviction until December 2016.

10. On or around May 15, 2014, Dr. Townsend suffered a

stroke. Petitioners testified that the healthcare professionals

recommended that he have : handrails in the shower, around the

toile t, and at the front door ; a ramp at the front door; and a n

assigned pa rking spot close to the Unit because he would be

using a wheelchair and walker once he returned home.

11. Ms. Idleburg testified that she spoke to Mr. Malaty on

the phone about instal ling those items before Dr. Townsend

returned home from the hospital. She also sent Mr. Malaty a

follow up letter inquiring generally about the requested

modifications on May 17, 2014 . Petitioners acknowledged that

the copy of the letter in evidence was a print - out from their

computer that Ms. Idlebu rg signed in blue ink in advance of the

hearing , and that they did not send the letter by certified mail

to confirm Mr. MalatyÓs receipt, but they both credibly

testified that this was the version they mailed to him. The

letter, however, did not specify their requests or state that

Petitioners were willing to pay for them.

12. Around the same time, the air conditioning in the Unit

stopped working. Ms. Idleburg requested that Mr. Malaty fix the

air conditi oning and called code enforcement when he failed to

do so. According to Dr. Townsend, that angered Mr. Malaty and

they stopped speaking to each other. Mr. Malaty repair ed the

air conditioner on June 20, 2014.

13. When Dr. Townsend returned home from the hospital, he

used a wheelchair, walker, and cane for a period of time. He

said he fell several times in the shower and coming in and out

of the front door because the handrails and ramp were never

installed.

14. As to the parking spot, the weight of th e credible

evidence established that the lot outside the Unit had five

spaces , all of which were close to the Unit, and that

Dr. Townsend was most often able to park in the closest spot to

the Unit even without the spot being assigned to him.

15. Mr. Mal aty acknowledged that he learned of

Dr. TownsendÓs stroke in June 2014, but he only recalled the

request to repair the air conditioning. He did not recall

Petitioners requesting any accommodations or modifications

concerning handrails, a ramp, or an assig ned parking spot at

that time. He stated that he never saw Dr. Townsend in a

wheelchair or using a walker. According to Mr. Malaty, he first

learned of those requests in a December 2016 letter, in which

Dr. Townsend responded to his threat to evict them based on the

failure to pay rent.

16. Despite the failure to make the requested

modifications and accommodation in May 2014 , Petitioners

continued to live in the Unit for several more years without

renewing their requests.

17. In September 2016, Petit ioners reduced their monthly

rent by $80.97 to replace outlet covers in the Unit. Mr. Malaty

testified that he did not authorize this reduction, but he did

not question Petitioners about it at that time .

18. On September 29, 2016, Mr. Malaty informe d Petitioners

that he would be increasing the monthly rent by $25 to $550

starting on December 1, 2016. The parties did not sign a new

lease at that time and had not done so since the lease converted

to a month - to - month tenancy in November 2012.

19. On November 27, 201 6 , a few days before the rent

increase went into effect, Dr. Townsend informed Mr. Malaty via

letter that he would be deducting $51.83 from DecemberÓs rent

($31.83 for roach spray and foggers, and $20.00 for labor) ,

because he had complain ed four times that year about roaches in

the Unit. On December 5, 2016, Petitioners paid $498.17,

reducing the monthly rent by the $51.83.

20. On December 5, 2016, Mr. Malaty notified Petitioners

in writing that they had violated the lease in the follow ing

ways:

• Failing to pay monthly rent in January 2013. 2 /

• Improperly deducting $51.83 from the rent in

December 2016 for roach spray and labor without

his authorization, even though the lease

provided that such expenses were the

responsibility of the tenan ts.

• Improperly deducting $80.97 from their

September 2016 rent for replacing outlets

without his authorization.

• Improperly fail ing to maintain the lawn as

required by the lease, which cost Mr. Malaty

money because he had to send a lawn care

service several times over the years.

Mr. Malaty indicated that Petitioners owed him $576.83 ($525 for

missed rent in January 2013 and $51.83 for reduced rent in

December 2016) , and threatened to evict them if they failed to

make payment by December 29, 2016. Although Mr. Malaty informed

Petitioners that they had violated the lease for the lack of

lawn care and the rent reduction in September 2016, he did not

include those amounts as being due.

21. On December 9, 2016, Dr. Townsend responded to

Mr. Mal atyÓs letter. He noted his prior requests to install

handrails in the bathroom, a ramp at the front door, and a

handicap sign in the parking lot after he suffered the stroke in

May 2014, and accus ed Mr. Malaty of violating the Americans with

Disabilities Act (ÐADAÑ) by ignoring those requests. As for the

alleged violations of the lease, Dr. Townsend responded as

follows:

• Mr. Malaty failed to exterminate the Unit and

take care of the roaches, such that reducing

those cost s from that monthÓs rent was proper

given that is how they had handled similar

issues in the past.

• Mr. Malaty had previously agreed to reduce the

September 201 6 rent for the cost of replacing

the outlets.

• Dr. Townsend informed Mr. Malaty when they

signed the lease that he was disabled and could

not cut t he grass, and such a requirement in

the lease only applied to commercial

properties.

• Mr. Malaty waived rent in January 2013, though

he had been asking for it for four years.

In closing, Dr. Townsend told Mr. Malaty not to wait until

December 29th to ser ve him with the eviction notice.

22. On or around December 9, 2016, Dr. Townsend filed a

complaint against Mr. Malaty with the Civil Rights Division of

the United State s Department of Justice. Dr. Townsend alleged

that Mr. Malaty failed to make requeste d accommodations to the

Unit after he suffered a stroke in May 2014 and wrongfully

threatened to evict them for failure to pay rent. He amended

that complaint on January 1, 2017. Petitioner presented no

evidence as to the status of that complaint.

23. On January 9, 2017, after Petitioners failed to timely

pay back the $576.83 and also failed to pay rent in January

201 7, Mr. Malaty sent them a three - day eviction notice. The

notice informed Petitioners that they owed $1,207.80 ÏÏ $525 for

missed rent in Ja nuary 2013, $80.97 for reduced rent in

September 2016, $51.83 for reduced rent in December 2016, and

$550 for missed rent in January 2017. The notice demanded full

payment or possession of the premises by January 12, 2017.

24. Petitioners did not make t he requested payment or

grant possession by the due date. Accordingly, Mr. Malaty filed

a complaint to evict them on January 13, 2017.

25. On January 25, 2017, Petitioners filed a motion in the

eviction action to determine rent . They maintained that

Mr. Malaty waived the rent in January 2013, approved the

reduc tion of rent in September 2016, agreed not to require

Petitioners to cut the grass given Dr. TownsendÓs disability,

and that it was proper to reduce rent in December 2016 for roach

spray. They ack nowledged that they had not paid rent for

January 2013. They also argued that Mr. Malaty had failed to

modify the Unit as requested after Dr. TownsendÓs stroke and

that they had filed an ADA complaint against him with the

federal government.

26. On Febru ary 13, 2017, Mr. Malaty moved for a default

and for final judgment of possession based on PetitionersÓ

failure to pay the outstanding balance of unpaid rent . On

February 15, 2017, the court issued a Final Judgment for

Possession.

27. On February 20, 20 17, Petitioners filed an Emergency

Motion to Strike and Dismiss Plaintiff Default Final Judgment

for Possession, which the court denied. On the same day, the

court issued its Writ of Possession and gave Petitioners 24

hours to vacate the premises.

28. O n or around February 20, 2017, Petitioners and the

three minor children moved out of the Unit. Because their new

apartment would not be ready until June 1, 2017, they moved into

a hotel for three and one - half months. Dr. Townsend testified

that he had to borrow money to pay for the hotel, which he said

cost him about $6,000 . However, Petitioners failed to introduce

credible evidence to support any quantifiable damages suffered

as a result of the eviction, including but not limited to ,

moving or hotel cos ts, or increased rent at their new apartment.

29. On August 21, 2017, Dr. Townsend filed a housing

discrimination complaint with the U.S. Office of Housing and

Urban Development (ÐHUDÑ). HUD transferred th e C omplaint to

FCHR on August 24, 2017, which beg an these proceedings .

30. In their Complaint, Petitioners alleged that

Mr. Malaty discriminated against them by failing to make

reasonable modifications and an accommodation to the Unit and

through discriminatory terms and conditions of the lease

rela ting to their eviction. They requested damages totaling

$13.5 million to teach Mr. Malaty and other landlords a lesson.

In their PRO, Petitioners now seek $125,000 in damages. They do

not seek reinstatement of their lease.

ULTIMATE FINDINGS OF FACT

31. Based on the weight of the credible evidence,

Dr. Townsend has a qualifying handicap under the FFHA . H e

suffered a stroke in May 2014, upon which the requested

modifications and accommodations were based. The stroke

substantially limited one or more ma jor life activities , given

his need for using a wheelchair and walker. § 760.22(7)(a),

Fla. Stat. Mr. Malaty conceded as much at the hearing. 3/

32. Based on the weight of the credible evidence,

Ms. Idleburg has a qualifying handicap under the FFHA . She has

a shunt to drain fluid from her brain, has received Supplemental

Social Security Income since at least 2014 , and also has used a

walker. That said, the evidence is undisputed that Petitioners

requested the modifications and accommodations solely t o assist

Dr. Townsend after he suffered the stroke . Thus, Ms. IdleburgÓs

handicap is not relevant to the claims at issue .

33. Based on the weight of the credible evidence,

Petitioners informed Mr. Malaty in May 2014 that Dr. Townsend

suffered a stroke and requested that he make several

modifications to the Unit, including handrails in the bathroom ,

and handrails and a ramp at the front door, and to accommodate

them by assigning them a parking spot outside the Unit. There

is no dispute that the requeste d modifications and accommodation

were never made.

34. Importantly, however, the evidence does not establish

that PetitionersÓ renewed those req uests again before they filed

complaint s with the Department of Justice in late 2016 and HUD

in early 2017. 4 / Although Dr. Townsend reminded Mr. Malaty in a

December 2016 letter that he had failed to make the requested

the modifications, the undersigned finds that letter to be more

in the nature of a response to Mr. MalatyÓs threat of eviction

rather than a renew ed request to accommodate them.

35. The weight of the credible evidence also confirms that

Petitioners never offered to pay for the handrails, ramp, or

signage for the requested parking spot. Indeed, Dr. Townsend

testified that he believed Mr. Malaty w as responsible for making

such modifications as the owner of the Unit.

36. Based on the weight of the credible evidence, the

undersigned finds that Mr. Malaty did not evict Petitioners

because of their handicaps or their requests for modifications

or an accommodation. Mr. Malaty initially threatened to evict

them for failing to pay rent in January 2013, reducing their

rent in September and December 2016, and failing to take care of

the lawn as required in the lease. It had been three years

since Petiti oners requested the modifications and accommodation

due to Dr. TownsendÓs stroke and they did not re - raise those

issues again until after Mr. Malaty threatened to evict them for

failing to pay the rent. The evidence also is clear that

Petitioners could ha ve avoided eviction by paying the missed

rent by December 29 , 2016. But, they failed to do so and then

did not pay their rent in January 2017, which ultimately led to

Mr. Malaty filing the eviction action.

CONCLUSIONS OF LAW

37. DOAH has jurisdiction o ver the parties and subject

matter of this cause. §§ 120.569, 120.57(1) , & 760. 35(3), Fla.

Stat .

38. The FFHA, sections 760.20 through 760.37, Florida

Statutes, makes it unlawful to discri minate in the rental of

housing . Specifically, section 760.23 p ro vides as follows:

(7) It is unlawful to discriminate in the

sale or rental of, or to otherwise make

unavailable or deny, a dwelling to any buyer

or renter because of a handicap of :

(a) That buyer or renter;

* * *

(8) I t is unlawful to discri minate against

any person in the terms, conditions, 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;

* * *

(9) Fo r purposes of subsections (7) and

( 8 ), discrimination includes:

(a) A refusal to permit, at the expense of

the handicapped person, reasonable

modifications of existing premises occupied

or to be occupied by such person if such

modifications may be necessa ry to afford

such person full enjoyment of the premises;

or

(b) A refusal to make reasonable

accommodations in rules, policies,

practices, or services, when such

accommodations may be necessary to afford

such person equal opportunity to use and

enjoy a dw elling.

Handicap is defined as Ða physical or mental impairment which

substantially limits one or more major life activities.Ñ E.g. ,

§ 760.22(7), Fla. Stat.

39. The FFHA is patterned after Title VIII of the Civil

Rights Act of 1968, as amended by the Fai r Housing Act of 1988 .

As such , discriminatory acts prohibited under the federal Fair

Housing Act also are prohibited under the FFHA, and federal case

law interpreting the federal Fair Housing Act is applicable to

proceedings brought under the FFHA. See Brand v. Fla. Power

Corp. , 633 So. 2d 504, 509 (Fla. 1st DCA 1994) (noting that Ðthe

Florida statute will take on the same constructions as pla ced on

its federal prototypeÑ).

40. In cases involving claims o f rental housing

discrimination , the complainant has the burden of proving a

prima facie case of discrimination by a preponderance of the

evidence. § 760.34(5), Fla. Stat. A Ðpreponderance of the

evidenceÑ means the Ð greater weight Ñ of the evidence, or

evidence that Ð more likely than not Ñ tends to prov e the fact at

issue. Gross v. Lyons , 763 So. 2d 276, 289 n.1 (Fla. 2000).

41. In order to prove a prima facie case of housing

discrimination based on a handicap, Petitioner s must show the

following: (a) they are handicapped as defined by the FFHA ;

(b) t hey were qualified, ready, willing, and able to continue

occupancy; (c) they requested reasonable modification s (at their

own expense) or an accommodation in the rules, policies,

procedures, or services that was necessary to afford Petitioner s

equal opport unity to use and enjoy the premises; and

(d) Mr. Malaty refused to modify and/or accommodate them .

42. At issue in this case are the following three housing

discrimination claims: (1) unlawful discrimination by

wrongfully evicting Petitioners because of their handicaps;

(2) unlawfully refusing to make reasonable modifications to the

Unit, including installation of handrails in the shower, and

handrails and a ramp at the front door, after Dr. Townsen dÓs

stroke in May 2014; and (3) unlawfully refusing to m ake a

reasonable accommodation by assigning Petitioners a handicap

parking spot outside the Unit, after Dr. TownsendÓs stroke in

May 2014.

43. Petitioners sufficiently proved that they have

qualifying handicaps under the FFHA. The weight of the credible

evidence established that both Dr. Townsend and Ms. Idleburg

suffer fro m qualifying Ðimpairments which substantially limits

one or more major life activities.Ñ £ 760.22(7), Fla. Stat.

44. However, Petitioners failed to prove their

discrimination claim s by a preponderance of the evidence for

several reasons.

45. As to the first claim, Petitioners failed to prove by a

preponderance of the evidence that Mr. Malaty evicted them

because of their handicaps or their requests for modifications

or an accommoda tion regarding same . To the contrary, Mr. Malaty

threatened to evict them because they failed to pay rent in

January 2013 and reduced their rent twice in late 2016 to

replace outlet covers and purchase roach spray without his

authorization , and did so bef ore Petitioners informed him that

they planned to file an ADA complaint based on his failure to

make reasonable modifications back in 2014. Even after

Petitioners filed a complaint, Mr. Malaty gave them a chance to

avoid eviction by paying the rent money owed, which they failed

to do. Thus, the weight of the credible evidence established

that Mr. Malaty evicted Petitioners for failing to pay rent,

rather than for any discriminatory reason s .

46. As to the second and third claims generally,

Petitioners f ailed to timely file their Complaint. U nder

section 760.34 (2) , a housing discrimination complaint Ð must be

filed within 1 year after the alleged discriminatory housing

practice occurred. Ñ Here, however, the weight of the credible

evidence established tha t Petitioners requested the modifications

and accommodation in May 2014 and, despite those requests not

being approved at that time, did not file a complaint based on

those issues until December 2016, almost three years later. And,

though Petitioners re - r aised the issue in a December 2016 letter

to Mr. Malaty, that letter is more appropriately deemed a

response to why Mr. Malaty should not evict them , rather than a

renewed request for modifications or a n a ccommodation.

47. Even if PetitionersÓ claims as to the May 2014 requests

for modifications and a n a ccommodation had been timely, they

failed to prove them by a preponderance of the evidence for other

reasons.

48. As to the second claim, Petitioners failed to prove by

a preponderance of the evidence t hat Mr. Malaty unlawfully

refused to permit them to make the requested modifications at

their own expense , as required by section 76 0.32(9)(a).

Instead, t he weight of the credible evidence established that

Petitioners did not offer to pay for the handrail s , front door

ramp , or any signage for an assigned parking spot, as they

believed those costs should be bore by Mr. Malaty as the owner

of the Unit.

49. As to the third claim, Petitioners failed to prove by

a preponderance of the evidence that Mr. Malaty unlawfully

refused to accommodate them by assigning them a parking spot

outside the Unit. The weight of the credible evidence

established that Dr. Townsend most often parked in the spot

closest to the Unit, even with out it being assigned to them, and

he never had a problem finding a spot in the lot, in which all

of the spots were close to the Unit. In other words, the

evidence did not support a finding that this requested

accommodation was necessary.

50. Lastly, Petitioners failed to prove by a prepond erance

of the evidence that they suffered quantifiable damages as a

result of Mr. MalatyÓs conduct. Under section 760.35(3)(b), the

undersigned is authorized to issue a recommended order

Ð prohibiting the practice and recommending affirmative relief

from t he effects of the practice, including quantifiable damages

and reasonable attorneyÓs fees and costs. Ñ

51. Here, Pe titioners did not request re instatement of the

lease or other relief from the effects of the practice, but

instead sought monetary damages. 5 / Other than Dr. TownsendÓs

testimony (unsupported by documentation) that he spent about

$6,000 in hotel costs after the eviction, Petitioners failed to

introduce credible evidence as to any quantifiable damages, such

as receipts for moving costs, hotel bills, or documents proving

that they are now paying more in rent than before. Without such

evidence, Petitioners failed to establish entitlement to any

remedial relief on their claims, even had they proved them by a

preponderance of the evidence.

RECOMME NDATION

Based on the foregoing Findings of Fact and Conclusions of

Law, it is RECOMMENDED that the Florida Commission on Human

Relations issue a final order dismissing Petitioners Ó Petition

for Relief.

DONE AND ENTERED this 1 9 th day of December , 2019 , in

T allahassee, Leon County, Florida.

S

ANDREW D. MANKO

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 1 9 th day of December , 2019 .

ENDNOTE S

1/ All statutory references are to Florida Statutes (201 9 ),

unless otherwise noted.

2/ Although Mr. MalatyÓs lette r indicated that Petitioners

failed to pay rent in January 2014, the evidence at the hearing

confirmed that the missed rent occurred in January 2013.

3/ The undersigned rejects Mr. MalatyÓs belated suggestion in

his PRO that Dr. Townsend does not have a qualifying handicap

under the FFHA . Mr. MalatyÓs counsel made it clear several

times at the hearing that he did not dispute that Dr. Townsend

had a qualifying handicap . Rather, he argued that he did not

know about it or the requested modifications or acc ommodation .

4/ Dr. Townsend testified that he initially filed a housing

discrimination complaint with the federal government in 2014

when Mr. Malaty refused to make the requested modifications and

that it eventually forwarded the complaint to FCHR. Ho wever,

what the record reflects is that Dr. Townsend filed a

discrimination complaint with the Civil Rights Division of the

Department of Justice in December 2016 and amended that

complaint in January 2017, and thereafter filed a housing

discrimination com plaint with H UD on August 21, 2017. HUD

forwarded that complaint to FCHR on August 24, 2017, which

became the operative pleading giving rise to these proceedings.

Thus, the record does not support the contention that

Petitioners filed a discrimination co mplaint in 2014 or at any

time before Mr. Malaty threatened to evict them in early

December 2016.

5/ D r. Townsend also testified that one of Ms. IdleburgÓs

children attempted suicide in the hotel because of the close

quarters. Although Petitioners file d some medical documentation

concerning the childÓs treatment, they did not file any

documentation linking the eviction with the attempted suicide or

introduce receipts or other credible evidence of quantifiable

damages relating to the childÓs medical care . The law is clear

that emotional distress and pain and suffering damages are not

quantifiable damages recoverable under the Florida Fair Housing

Act . See Metro. Dade Cty. Fair H ousing & Emp. Appeals Bd. v.

Sunrise Vill. Mobile Home Park , 511 So. 2d 962, 965 - 66 (Fla.

1987) (holding that an administrative entity was not empowered

to award non - quantifiable damages for mental distress).

COPIES FURNISHED:

Tammy S. Barton, Agency Clerk

Florida Commission on Human Relations

Room 110

4075 Esplanade Way

Talla hassee, Florida 32399 - 7020

(eServed)

James E. Townsend

Contessa Idleburg

Apartment 2101

140 Aida Street

Lakeland, Florida 33805

(eServed)

Assad F. Malaty

Post Office Box 7396

Lakeland, Florida 33807

(Certified No. 7018 2290 0000 1309 8905 )

Charlann J ackson Sanders, Esquire

Law Office of Charlann Jackson Sanders

Suite 8

2225 East Edgewood Drive

Lakeland, Florida 33803

(eServed)

Cheyanne Costilla, General Counsel

Florida Commission on Human Relations

Room 110

4075 Esplanade Way

Tallahassee, Florida 3 2399 - 7020

(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.