19-003655 Sergio Trujillo-Gonzalez And Mariella Trujillo-Gonzalez vs. Richman Property Services, Inc.; Joe Lambert; Mira Verde Limited Partnership; And Rms Gp, Llc Status: Closed Recommended Order on Wednesday, January 15, 2020.

Summary: Apt. denied reasonable accomodation by not granting requests to lease modified apartment. Remedy required modification if modified apt. not now available is proper. Tenant more credible than apartment manager. Mistreating everyone not nat. orig. discrim

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

SERGIO TRUJILLO - GONZALEZ AND

MARIELLA TRUJILLO - GONZALEZ ,

Petitioner s ,

vs. Case No. 19 - 3655

RICHMAN PROPERTY SERVICES, INC. ;

JOE LAMBERT; MIRA VERDE LIMITED

PARTNERSHIP, AND RMS GP, LLC ,

Respondent s .

/

RECOMMENDED ORDER

Administrative Law Judge John D. C. Newton, II , of the

Division of Administrative Hearings (Division), conducted the

final hearing in this matter on October 25, 2019, by video

telec onference with locations in Tallahassee and Fort Myers,

Florida.

APPEARANCES

For Petitioner s : Sergio Jujillo - Gonzalez , Pro Se

Mariella Trujillo - Gonzalez , Pro Se

Apartment 127

6827 Santa Fe South

LaBelle, Florida 33935

For Respondent s : J. Mike Williams, Esquire

Fowler, Hein , Cheatwood and Williams, P.A.

Park Central

2970 Clairmont Road, Suite 220

Atlanta, Geo rgia 30329

Justin David Kreindel, Esquire

Wilson Elser Moskowitz Edelman & Dicker

Suite 1200

111 North Orange Avenue

Orlando, Florida 32801

STATEMENT OF THE ISSUE S

A. Did Respondents, Richm an Property Service, Inc. (Richm an

Property) ; Joe Lambert; Mira Verde Limited Partnership (Mira

Verde) ; and RMS GP, LLC; discriminate against Petitioners,

Sergio Trujillo - Gonzalez and Mariella Trujillo - Gonz alez, in the

sale or rental of housing on account of a handicap ?

B . Did Respondents, Richm an P roperty; Joe Lambert;

Mira Verde; and RMS GP, LLC , discriminate against Petitioners,

Sergio Trujillo - Gonzalez and Mariella Trujillo - Gonzalez, in the

sale or rent al of housing on account of national origin?

PRELIMINARY STATEMENT

Mr. and M r s. Trujillo - Gonzalez filed a housing

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

Urban Development (HUD) alleging that Respondents violated Title

VIII of the Civil Rights Act of 1968 as amended by the Fair

Housing Act of 1988. The Trujillo - Gonzalez e s specific ally

charge d that Respondents discriminated against them in housing on

account of Mr. Trujillo - Gonzalez 's disability and the Trujillo -

Gonzalez 's national origin. HUD referred the complaint to the

Florida Commission on Human Relations (Commission ) for

investigation. The Commission investigated the complaint as a

complaint under Florida's analogous Fair Housing Act, sections

760.20 - 760.37, Florida Statutes (2018) . 1/ The Commission issued

its Determination of No C ause which determined " reasonable cause

does not exist to believe that a discriminatory housing practice

has occurred. " It dismissed the complaint.

Mr. and Mrs. Trujillo - Gonzalez filed a Petition for Relief.

The Commission transmitted the Petition to the Division to

conduct a formal hearing. Due to Hurricane Dorian, the hearing

originally set for September 5, 2019, was continued to

October 25, 2019.

The undersigned conducted the hearing as sch eduled. The

Trujillo - Gonzaleze s presented the testimony of Mr. Trujillo -

Gonzalez . Their exhibits 1 through 4 and 7 through 9 were

admitted. Joe Lambert, m anager of Mira Verd e , and Carmen Davila,

a leasing associate at Mira Verde , testified on behalf of

Respondents. Respondent s ' Exhibits 1 through 5, 7 through 11, 13

through 17, 29, and 32 were admitted.

The T ranscript was filed on December 16, 2019. Respondents

timely filed a P roposed R ecommended O rder, which has been

considered in the preparation of this Order. The

Truj illo - Gonzaleze s did not file a proposed recommended order.

FINDING S OF FACT

1. Mr. Trujillo - Gonzalez is handicapp ed. He routinely uses

an elec t r ic wheel chair to move about. Due to his disability , he

nee ds assistance and accom modation in moving about , including a

ramp and "grab bars" in the bathroom.

2. Richm an Property and Mira Verde hold ownership interest

in the Mira Verde apartments. Mr. Lambert is their manager for

the property. There is no evidence establishing any r elationship

of RMS GP, LLC, with Mr. Lambert, Mira Verde A partments , or the

events described in this Order.

3 . From March 31, 2018, forward , Mr. Lambert, Richm an

Property, and Mira Verde were aware that Mr. Trujillo - Gonzalez

was disabled and needed these accommodations. W hen asked a bout

Mr. Trujillo - Gonzalez 's patently obvious disability, Mr. Lambert

prevaricated in his answer.

4 . A sked if Mr. Trujillo - Gonzalez used a wheel chair ,

Mr. Lambert replied, " I've seen him with an electric chair. I

have seen him walking wi t h a wal k er or a stick. I have seen him

drive his Hummer. I have seen him walking without any

assistance." ( T - 143) This evasiveness , along with the

differences in demeanor of Mr. Lambert and Mr. Trujillo - Gonzalez ,

caused the undersigned t o find Mr. Trujillo - Gonzalez more

credible and persuasive when testimony of the two witnesses

differed. In addition Mrujillo - Gonzalez's willing admission

of harmful facts enhanced his credibility. For these reasons ,

Mr. Trujillo - Gonzalez 's testimony about requesting a modified

apartment is accepted as more credible than Mr. Lambert's

statements that Mr. Trujillo - Gonzalez never requested a modified

apartment.

5 . Mr. Trujillo - Gonzalez is of Cuban descent. At all times

material to this case, Mr. Lamber t, Richman Property, and Mira

Verde were aware of this.

6 . On March 31, 2018 , Mr. and M r s. Trujillo - Gonzalez

entered into a Florida Tax Credit Lease Agreement with Richman

Property and Mira Verde for a Mira Verde apartment. The

apartment complex is part of a Low Income Housing Tax Credit

Program. The maximum allowable apartment rent is based on the

area's median income published annually by HUD. The majorit y of

the apartments rent for 60 percent of the allowable rent. A

minority of them rent to qualifi ed tenants at 35 percent of the

allowable rent.

7 . A goodly amount of evidence was directed to the

Trujillo - Gonzalez ' s efforts to o btain a 35 percent apartment and

Mira Verde's responses. There are no findings of fact on this

subject because there is no evidence that difficulties or delays

obtaining a lower rent apartment were due to Mr. Trujillo -

Gonzalez 's handicap or the Trujillo - Gonzalez ' s national origin.

Mr. Trujillo - Gonzalez acknowledged there was no national origin

discrimination in his testimony.

8 . He was asked, "Do you have any evidence with you here

today that Mr. Lambert, the property manager, treats Cubans

differently than other Hispanic tenants?" Mr. Trujillo - Gonzalez

responded, "H e mistreats everybody." (T - 75)

9 . Mr. Trujillo - Gonzalez w as asked, "And you don't have any

evidence with you today to show residents who were non - Cubans

were treated any differently, meaning you don't have a witness

here today to show that they were Î that non - Cubans were treated

any differently than you?" He a nswered, "No. No." (T - 75)

10 . The 14 - page lease agreement between the Trujillo -

Gonzalez e s, Richm a n Property , and Mira Verde addresses a

multitude of matters . They includ e security deposits,

subletting, late payments, tenant utility responsibilities, th e

landlor d 's right to enter the premises without notice, tenant

responsibility for clean carpets, waiver of landlord

responsibility for criminal activity on the premises, pet

prohibitions , waivers of claims for mold or mildew injury , tenant

responsibility to report fire extinguisher malfunction s ,

prohibitions against all weapons including BB guns and paintball

guns, restrictions on installation of satellite dishes, and

curfews. The agreement does not contain a single word about when

or how to request an ac commodation for a handicap.

1 1 . On August 8, 2017, the tenant in Apartment 95 vacated

the apartment. Apartment 95 had been modified to accommodate

handicapped residents .

12. Mr. Trujillo - Gonzalez asked Mr. Lambert to lease that

apartment to him as an ac commodation for his handicap.

Mr. Lambert did not grant the r equest. The tenant who moved did

not have a handicap. (T - 21) There is no credible, persuasive

evidence that allowing the Trujillo - Gonzalez e s to rent that

apartment was not reasonable.

13. In stead of granting the request, Mr. Lambert gave

Mr. Trujillo - Gonzalez a form to complete. The form only provided

for requesting physical modifications to an apartment. The form

also stated that the tenant understood and agreed that he was

responsible for all costs for the modifications. A few days

later Mr. Lambert gave Mr. Trujillo - Gonzalez an estimate for the

installation of "four handicap bars." The cost was $795.00. The

Trujillo - Gonzaleze s could not afford this and told Mr. Lambert

so. Since th ey could not afford to pay for the modifications ,

Mr. Trujillo - Gonzalez did not complete the form.

1 4 . Apartment 95 stood vacant for two months. (T - 21)

1 5 . In November of 2017, Mr. Trujillo - Gonzalez a s ke d

Mr. Lambert to rent him apartment number 134. T his apartment had

been modified to accommodate tenants with handicaps . Mr. Lambert

did not grant the request and indicated that the apartment was

involved in a court proceeding. Yet Mr. Lambert rented the

apartment to someone else in January 2018. There is no credible,

persuasive evidence that allowing the Trujillo - Gonzaleze s to rent

that apartment was not reasonable.

1 6 . In late March or early April of 2018, Mr. Lambert told

Mr. Trujillo - Gonzalez he would rent him the next vacant apartment

modified to accommodate a handicap . He did not do this.

17. In June of 2018, Mr. Trujillo - Gonzalez told Mr. Lambert

that if Mr. Lambert would not rent him a modified apartment , then

Mr . Trujillo - Gonzalez needed a shower, grab bars for the bath,

and a wheelchair ramp for his apartment. On June 13, 2018,

Mr. Lambert again provided the form described in Finding of Fact

13.

18. Mr. and M r s. Trujillo - Gonzalez filed their complaint

with HUD on July 18, 2018. The complaint stated that June 11,

2018, was the most recent date of discrimination and that the

discrimination was continuing. The complaint did not state that

June 11 , 2018, was the first or the only date of discrimination.

1 9 . In July and August of 2018, Mr. Trujillo - Gonzalez

provided Mr. Lambert letters from Alvarez Gonzalez

Gemayaret, M.D. , of the University of Miami, Miller School of

Medicine , stating that Mr. Trujillo - Gonzalez needed home

modifications for his handicap s. The July 11, 2018, letter

stated his needs included a ramp and a modified bathroom. T he

August 21, 2018, letter provided more detail.

20 . It stated:

Mrujillo is an established patient of the

UHealth Insti t ute for Advanced Pain

Management and he is being treated for his

chronic Right sided pain in his RU and RLE

subsequent to subcorti cal ischemic stroke.

Mrujillo requires electric wheelchair to

assist his mobility which is impaired because

of the hemiplegia and RLE pain. Patient also

has certain needs related to his stroke and

disability and will greatly benefit from

certain home improvements such as a ramp at

the entrance to his house, as well as

necessary rails in his house and bathroom,

which will facilitate his daily activities.

21 . On August 7, 2018, Mr. Lambert contacted the

Trujillo - Gonzaleze s about completing an applic ation for the

transfer to a 35 percent lease that the Trujillo - Gonzaleze s had

been seeking. Mrs. Trujillo - Gonzalez refused to speak to him.

Mr. Trujillo - Gonzalez stated that he would not participate

further in the process until the Commission ha d complet ed its

complaint review. (R. Ex. 16). Mr. Trujillo - Gonzalez testified:

"I told him that I was going to wait for the commission

investigation to finish. See, because that was the advice that

they gave me, to wait for the investigation to be concluded ."

(T - 72) Nonethe less , Mr. Trujillo - Gonzalez continued to

communicate about obtaining a modified apartment.

22 . Mr. Lambert says that because of this exchange , he did

not communicate further with the Trujillo - Gonzaleze s about

changing apartments to obtain a 35 percent lease or to obtain a

modified apartment . This was not reasonable in light of

Mr. Trujillo - Gonzalez 's subsequent communications about obtaining

a modified apartment.

23 . The tenant in Apartment 106 vacated the apartment on

October 31, 2018. Apartment 106 was modified to accommodate

handicapped tenants. Mr. Trujillo - Gonzalez asked Mr. Lambert to

lease him that apartment. Mr. Lambert did not grant the request.

(T - 39 - 41) . There is no credible, persuasive evidence that

allowing the Trujillo - G onzaleze s to rent that apartment was not

reasonable.

24 . November 30, 2018, Apartment 85 became available. It

was modified to accommodate handicapped residents. Mr. Lambert

did not offer it to the Trujillo - Gonzaleze s . Instead , he rented

it to another f amily . There is no credible, persuasive evidence

that allowing the Trujillo - Gonzaleze s to rent that apartment was

not reasonable.

25 . Apartment 20 is modified to accommodate handicapped

residents. The tenants vacated the apartment on December 31,

2018. Mr. Lambert did not offer it to the Trujillo - Gonzaleze s.

There is no credible, persuasive evidence that allowing the

Trujillo - Gonzaleze s to rent that apartment was not reasonable.

26 . Renting an already modified apartment to Mr. and

Mrs. Trujillo - Gonzal ez was a reasonable, cost - free accommodation

for Mr. Trujillo - Gonzalez ' s handicap . Starting August 8, 2017,

the Trujillo - Gonzaleze s repeatedly requested this accommodation.

Mr. Lambert, Richman Property, and Mira Verde never granted this

reasonable reque st.

27 . Renting Mr. and Mrs. Trujillo - Gonzalez an apartment

with bathroom grab bars and a wheel chair ramp within 30 days of

the effective date of this order is reasonable affirmative relief

providing a reasonable accommodation for Mr. Trujillo - Gonzalez 's

handicap.

28 . Modifying the apartment by installing grab bars in all

bathrooms and installing a wheelchair ramp within 30 days of the

effective date of this order is alternative , reasonable

affirmative relief providing a reasonable accommodation for

Mr. Trujillo - Gonzalez's handicap.

CONCLUSIONS OF LAW

29. The Division has jurisdiction over the parties and

subject matter of this proceeding. §§ 120.569, 120.57(1), and

760.35(3), Fla. Stat. (2019 ) .

30. The Trujillo - Gonzalez e s allege that Respondents

comm itted a discriminatory housing practice by refusing to lease

them an apartment modified for handicapped tenants, refusing to

modify their apartment to accommodate Mr. Trujillo - Gonzalez 's

handicap, and refusing to provide them a 35 percent lease. The y

bear the burden of proving their claims by a preponderance of the

evidence. See §§ 760.34(5) and 120.57(1)(j), Fla. Stat.

31. The Trujillo - Gonzaleze s also claim Respondent s

discriminated against them because of their national origin. The

evidence does not s upport that claim.

32. Discrimination against a person in the sale or rental of

housing because of a handicap or national origin is unlawful.

§ 760.23, Fla. Stat. Mr. Trujillo - Gonzalez 's disabilities are

handicaps. § 760.22(7)(a), Fla. Stat. Refusing to provide a

reasonable accommodation for the handicaps is unlawful.

§ 760.23(9)(b), Fla. Stat.

33. Florida' s Fair Housing Act, sections 760.20 through

760.37, Florida Statutes , governs this proceed ing . To prevail in

a failure to accommodate a claim, the Trujillo - Gonzaleze s must

establish that: (1) Mr. Trujillo - Gonzalez is a person with a

disability within the meaning of the Florida Fair Housing Act;

(2) that he requested a reasonable accommodation for his

disability; (3) the requested accommodation w as necessary to

afford him an opportunity to use and enjoy the dwelling; and (4)

Respondents refused to make the accommodation. See Hunt v. Aimco

Props., L.P. , 814 F.3d 1213, 1225 (11th Cir. 2016); Bone v. Vill.

Club, Inc. , 223 F. Supp. 3d 1203, 1210 - 11 (M.D. Fla. 2016). 2/

All four criteria are satisfied.

34. Ac commodation is an interactive, "give and take,"

process to determine what accommodation will help. Neither party

may sabotage the process in order to avoid or inflict liability.

See Ward v. McD onald , 762 F.3d 24 (D.C. Cir. 2014).

35. Respondents did not refuse to provide a reasonable

accommodation when they refused to pay for modifications to the

Trujillo - Gonzalez's apartment. They were willing to permit

modification at the Trujillo - Gonzaleze s expense. This is all the

law requires. §760.23(9)(a), Fla. Stat.

36. The evidence proved, without serious dispute, that a

ramp and grab bars were modifications needed to allow

Mr. Trujillo - Gonzalez an opportunity to use and enjoy his

apartment. Resp ondents' primary defense to the Trujillo -

Gonzalez' s claim that they were denied relocation to a vacant ,

already modified apartment is that Mr. Trujill o - Gonzalez did not

request that accommodation. The preponderance of the evidence

proved that Mr. Trujillo - Gonzalez repeatedly made that request,

and Respondents did not grant it. This was a simple, low cost,

reasonable accommodation. It satisfies the requirement that an

accommodation be both efficacious and proportional to

implementation costs. Wis. Cmty. Servs. v. City of Milwaukee , 465

F.3d 737, 749 (7th Cir. 2006).

37. Mr. Lambert, Richman Property Group, and Mira Verde

repeatedly refused to provide the Trujillo - Gonzaleze s the

reasonable accommodation of leasing a vacant modified apartment to

them. T hey should have granted it. The evidence did not prove

that RMS GP, LLC, denied an accom m odation.

38. Respondents also rely upon an unstated assumption,

without citation, that the request for the specific accommodation

of an already modified apartment h ad to be written. This is

incorrect. The request need not be written. It must only be

clear. Ballard v. Rubin , 284 F. 3d 957, 962 (8 th Cir. 2002);

Birton v. Wal - Mart, Inc. , 209 F. Supp. 2d 993, 997 (E.D. Mo.

2002). Mrujillo - Gonzalez's requests were clear.

39. Respondents also rely upon a theory that some

unidentified authority limits the Trujillo - Gonzaleze s to claims

based upon accommodation requests made on or after the June 11,

2018, date mentioned in their HUD Complaint. Respondents do not

prov ide legal support for this argument. Also, the Complaint

makes clear that June 11 , 2018, was only the date of the most

recent accommodation request and that the denial of a reasonable

accommodation was ongoing. Respondents also make the requested

accommo dation on October 31, 2018; November 30, 2018; and December

31, 2018.

40. Section 760.35(3)(b) establishes the remedies that may

be imposed in this proceeding. It states:

If the administrative law judge finds that a

discriminatory housing practice has o ccurred

or is about to occur, he or she shall issue a

recommended order to the commission

prohibiting the practice and recommending

affirmative relief from the effects of the

practice, including quantifiable damages and

reasonable attorneyÓs fees and costs . The

commission may adopt, reject, or modify a

recommended order only as provided under

s. 120.57(1).

41. There are no attorney's fees and costs in this case.

There are quantifiable damages. Those damages are the costs of

modifying the Trujillo - Gonz alez' s apartment if an already modified

apartment is not available. In 2017 that cost was $795.00. The

current cost is not in the record. This is the reason for the

recommendation that the Commission order Respondents to pay the

cost of modifications to the Trujillo - Gonzalez ' s apartment if an

already modified apartment is not available , rather than pay a

specific amount of damages.

RECOMMENDATION

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 that:

A. Dismisses the Petition against Respondent, RMS GP, LLC;

B. Prohibits Respondents, Richman Property Services, Inc. ;

Joe Lambert ; and Mira Verde Limited Partnership from refusing to

provided reasonable accom modations to handic apped tenants .

C. Requires that within 30 days of the Commission's order

becoming final that Respondents, Richman Property Services, Inc. ;

Joe Lambert ; and Mira Verde Limited Partnership ; either :

1. L ease the Trujillo - Gonzalezes an apar tment with

existing modifications that at least include bathroom grab bars

and a wheel chair ramp, or

2. Modify the Trujillo - Gonzalez's existing apartment,

at Respondents' expense , by installing at least grab bars in each

bathroom and a wheelchair ramp.

DONE AND ENTERED this 1 5 th day of January , 2020 , in

Tallahassee, Leon County, Florida.

S

JOHN D. C. NEWTON, II

Administrative Law Judge

Division of Administrative Hearings

The DeSoto Building

1230 Apalachee Parkway

Talla hassee, 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 5 th day of January , 2020 .

ENDNOTE S

1/ All citations to Florida Statutes are to the 2018 co mpilation

unless otherwise noted.

2/ Florida's Fair Housing Act is patterned after the federal act,

42 U.S.C. § 13601, et seq. See Bhogaita v. Altamonte Heights

Condo. AssÓn , 765 F.3d 1277, 1285 (11th Cir. 2014)(ÐThe [federal

FHA] and the Florida Fair Ho using Act are substantively

identical, and therefore the same legal analysis applies to

each.Ñ).

COPIES FURNISHED:

Tammy S. Barton, Agency Clerk

Florida Commission on Human Relations

4075 Esplanade Way , Room 110

Tallahassee, Florida 32399 - 7020

(eServed )

Sergio Jujillo - Gonzalez

Mariella Trujillo - Gonzalez

6827 Santa Fe South , Apartment 127

LaBelle, Florida 33935

(eServed)

Justin David Kreindel, Esquire

Wilson Elser Moskowitz Edelman & Dicker

111 North Orange Avenue . Suite 1200

Orlando, Florida 328 01

(eServed)

J. Mike Williams, Esquire

Fowler, Hein, Cheatwood and Williams, P.A.

Park Central

2970 Clairmont Road, Suite 220

Atlanta, Georgia 30329

(eServed)

Cheyanne Costilla, General Counsel

Florida Commission on Human Relations

4075 Esplanade Way, R oom 110

Tallahassee, Florida 32399 - 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 f iled with the agency that

will issue the Final Order in this case.