20-002841 Pedro Tamayo vs. Avtec Homes, Inc. Et Al Status: Closed Recommended Order on Tuesday, December 22, 2020.

Summary: Petitioner did not prove Respondents discriminated against him in the provision of housing and services in connection therewith.

P RELIMINARY S TATEMENT

Petitioner, Pedro Tamayo, filed a Housing Discrimination Complaint

(“Complaint”) against Res pondents, Avtec Homes, Inc. (“Avtec”), and Mike

Amicucci (“Amicucci”) (together, “Respondents”), with the Florida

Commission on Human Relations (“Commission”) on October 24, 2019,

alleging that Amicucci, an employee of Avtec, “began to treat him differentl y”

after Petitioner disclosed to Amicucci that Petitioner “is a person with both

non - visible and physical disabilities.” The alleged treatment included that

(1) Amicucci was “verbally aggressive” to Petitioner when Petitioner met with

him to discuss the ty pe of fill being used in the construction of his new home;

(2) Amicucci refused to accept Petitioner’s input on the construction process,

which opportunity was offered to others; and (3) that Respondents incorrectly

constructed his home and refuse to take responsibility therefor.

Following an investigation of the Complaint, the Commission issued a No

Cause Determination, and Notice of Determination: No Cause

(“Determination”), on March 12, 2020, finding no reasonable cause to believe

that a discriminatory housing practice occurred.

On April 10, 2020, Petitioner filed a “Rebuttal to [Determination] , ” which

was treated as a Petition for Administrative Hearing (“Petition”) and

forwarded to the Division of Administrative Hearings (“Division”) for

assignment of an Administrative Law Judge to conduct a disputed fact -

finding hearing.

The undersigned granted Respondents’ Motion to Dismiss the Petition,

with leave to amend, and Petitioner filed an Amended Petition on August 25,

2020. The final hearing was schedule d for October 22, 2020, and commenced

as scheduled.

At the final hearing, Petitioner testified on his own behalf and introduced

Petitioner’s Exhibits 1 and 2, which were admitted in evidence.

Respondents offered the testimony of Amicucci and introduced

Re spondents’ Exhibits 1, 3, 36, and 41, which were admitted in evidence.

The proceedings were recorded and a one - volume Transcript of the final

hearing was filed with the Division on November 19, 2020. Respondents filed

a Proposed Recommended Order on Novem ber 17, 2020, prior to the filing of

the Transcript. On November 30, 2020, Petitioner requested a two - day

extension of the filing deadline for his post - hearing filing, which was granted.

Petitioner timely filed a Proposed Recommended Order on December 2, 2 020.

Unless otherwise provided, all references herein to the Florida Statutes

are to the 2018 version, which was in effect when the alleged acts of

discrimination occurred.

F INDINGS OF F ACT

1 . Petitioner, Pedro Tamayo, suffers from anxiety, depression, m emory

loss, and complex regional pain syndrome (“RPD”).

2 . Respondent, Avtec, is a residential construction contractor, doing

business in Palm Bay, Florida.

3 . On November 10, 2018, Petitioner executed a Contract for Sale and

Purchase (“Contract”) with Avt ec to construct a residential structure on

property owned by Petitioner on Raleigh Road Southeast in Palm Bay,

Florida. The specific floor plan chosen by Petitioner was the Citation 4 Plus.

4 . Avtec executed the Contract on November 12, 2018.

5 . The Contra ct covers clearing of property for construction, materials and

color selections by the buyer, and the buyer’s right to reverse the floor plan,

among other terms.

6 . When Petitioner entered into the Contract, he simultaneously chose

many of the options ava ilable to customize the Citation 4 Plus, such as

impact windows, an exterior pedestrian door in the garage, and a front septic

system.

7 . Among the options Petitioner chose was 36 - inch (36”) doors for the

master bedroom entrance, closet, and master bathroo m entrance.

8 . Petitioner has no obvious physical disability and does not require use of

a wheelchair or walker.

Construction Setback

9 . The Contract does not address the construction setbacks from the

property lines. Setbacks are governed by local governm ent codes and Avtec is

required to follow those codes.

10 . On November 30, 2018, Petitioner met with his sales agent, Sean

McCarry, at the Avtec showroom, to discuss some of the options he had

chosen for his new home. They specifically discussed plumbing i ssues for the

master bathroom, 36” wide doors in the master bedroom, placement of the

septic tank, the concrete culverts for the driveway, and a 45 - foot (45’) setback

of the home from the property line. While the standard setback for a home

with a front se ptic tank is 38’ to 40’, Petitioner indicated he wanted to build

an aluminum carport, which required additional setback footage.

11 . Respondent Amicucci stepped into the meeting with Petitioner and

Mr. McCarry to address Petitioner’s request for mitered en ds on the culvert

pipe. Mr. Amicucci was not present when Petitioner requested a 45’ setback.

12 . Mr. McCarry verbally agreed to “take care of” the setback requested by

Petitioner.

13 . Petitioner’s selection of 36” doorways for the master bedroom, and a

fr ont septic system were reduced to writing and included in the Contract,

signed by both parties, as an Option to Sales Agreement .

14 . Petitioner executed five addenda to the Contract between

November 30, 2018, and May 1, 2019, including optional upgrades an d a

modification to the design of the sidewalk.

15 . On July 23, 2019, Petitioner and Avtec executed a change order to

include the mitered ends of the culvert pipe.

16 . No part of the Contract, any addenda thereto, or any change order,

addresses Petitioner’ s request for a 45’ setback.

17 . Section 28 of the Contract provides that “NO OTHER AGREEMENTS

exist between the BUYER and SELLER except as set forth in this

Agreement. This Agreement shall not be modified except by an instrument in

writing executed by bot h BUYER and SELLER.”

18 . Section 29 of the Contract contains the following statement in red

underlined text:

No representative of Seller has authority to make

any verbal statements that modify or change the

terms or conditions of this contract. Buyer

repr esents that buyer has read and understands this entire contract. Buyer also represents that buyer is not relying on any verbal statement, promise, or condition not specifically set forth in

this contract. It is acknowledged that builder is

relying on these representations and would not

enter into this contract without this understanding.

19 . Section 20 of the Contract specifically provides, “Once the rough

plumbing is installed, absolutely NO CHANGES will be allowed.”

20 . Petitioner’s new home was built 40 ’ from the property line, rather than

45’ as Petitioner requested.

21 . Sometime after the rough plumbing was installed and the foundation

was poured, Petitioner complained to Avtec that his home was not built with

a 45’ setback as promised by Mr. McCarry.

22 . On August 22, 2019, Avtec, through its Director of Corporate

Development, responded in writing to Petitioner’s complaint. Avtec

apologized that the home was not built to the setback he had communicated

to Mr. McCarry, and referred to the Contract terms that exclude any verbal

agreements. Avtec offered to release Petitioner from his contract, refund his

deposit of $6,250, and give Petitioner $30,000 for the property after selling it

to another buyer.

23 . On November 13, 2019, Petitioner signed a “Final A cceptance of

Completion” of the construction of his home.

Fill Dirt

24 . On March 8, 2019, Petitioner drove by the construction site and noted

that the fill dirt being used was “contaminated” with tree branches and other

material. He drove to the model home to discuss the issue with Mr. McCarry.

Mr. McCarry contacted Mr. Amicucci, who agreed to meet Petitioner at the

property to inspect the fill and address Petitioner’s concerns.

25 . Petitioner and Mr. Amicucci testified to two very different versions of

th e events at the construction site that day.

26 . Petitioner testified that, when Mr. Amicucci arrived, he got out of his

vehicle, visibly upset, and raised his voice and cursed at Petitioner regarding his lack of knowledge of proper fill material. Petitione r testified, specifically

that:

I feared that [Mr. Amicucci] would physically

attack me by his aggressive demeanor and I

immediately froze. I could not comprehend how a

paying customer could be treated this way by raising concerns for the foundation of my home.

I am not a builder. [Mr. Amicucci] simply needed to

explain the common practice of standard fill.

Since March 8th, 2019, my quality of life has not been the same. I have severe anxiety due to the memories of that day and suffer constant nightmares.

I feel as [sic] my life can be in danger and, therefore, live in a state of high alert. My daily life has been disrupted. Simply having to drive by

Avtec showroom due to my normal routine routes

triggers flashbacks of that day.

27 . Mr. Amicucci testifie d that when he arrived at the property, Petitioner

was upset and aggressive toward him, demanding that the fill be removed

from his property.

28 . Mr. Amicucci reassured Petitioner that the fill was all good soil and

that it would be root - raked before it w as spread for the foundation.

Mr. Amicucci explained the root - raking process and the equipment used

therefor.

29. Nevertheless, Petitioner insisted that Mr. Amicucci go with him to

another construction site to show him the type of fill he wanted used on hi s

property.

30 . Mr. Amicucci accompanied Petitioner to the specific construction site,

which was not an Avtec project, and Mr. Amicucci identified the fill being

used there as a hard white shell material. Mr. Amicucci assured Petitioner

that the brown sand y soil imported to his property would be better for the sod

and plants Petitioner would be using to landscape the property.

31 . Mr. Amicucci testified that, at the end of the meeting, Petitioner

extended his hand and said, “[l]ook, that all sounds good. I just want to start

back over. Are we good?” Mr. Amicucci shook Petitioner’s hand and assured him that they “were good.”

32 . Mr. Amicucci’s testimony regarding the events that occurred on

March 8, 2019, is accepted as more credible and reliable than Petiti oner’s.

Knowledge of Petitioner’s Disability

33 . Mr. Amicucci testified that he was not aware that Petitioner had any

kind of disability until the Complaint was filed against him and Avtec.

34 . Petitioner testified that his disability was revealed to Mr. Amicucci on

November 30, 2018, during a meeting at the Avtec showroom to discuss the

various options selected by Petitioner when he signed the contract. Petitioner testified that Mr. Amicucci asked him what he did for a living and Petitioner

told him that he was retired and disabled from the City of Hialeah. He

testified that Mr. Amicucci was further on notice because Petitioner always

wears a glove to improve circulation in his right hand and that he can hardly

sign his name, which would have been apparent to Mr. Amicucci at the

November 30, 2018 meeting. Finally, Petitioner alleges Mr. Amicucci should

have been aware of his disability because he requested 36” ADA - compliant

door widths for the master bedroom.

35 . Mr. Amicucci did not recall Petitioner telli ng him he was disabled or

seeing Petitioner wearing a glove. He did recall seeing Petitioner wearing a

sling of some sort and inquiring whether he had been injured. He recalled

Petitioner telling him it was related to an old injury.

36 . Mr. Amicucci was no t present for any discussion about the

36” doorways. Assuming, arguendo, that he was present for that discussion, a

request for 36” doorways alone is not proof of a disability. Many buyers

upgrade to larger doorways to accommodate larger furniture or in

an ticipation of needing a walker or wheelchair access in the future.

37 . Furthermore, requesting ADA - compliant doorways is irrelevant to

Petitioner’s claim that he has emotional disabilities and chronic pain.

38 . The evidence does not support a finding that Mr. Amicucci knew of

Petitioner’s disabilities of anxiety, depression, memory loss, and RPD.

39 . No other witness was offered on behalf of Avtec. There is no evidence

to support a finding that Avtec had knowledge of Petitioner’s disability through any othe r employee.

C ONCLUSIONS OF L AW

40 . The Division has jurisdiction over the parties and the subject matter of

this case. §§ 120.569 and 120.57(1), Fla. Stat. (2020).

41 . The Act makes it “unlawful to discriminate against any person in the

terms, conditions or privileges of sale … of a dwelling, or in the provision of

services or facilities in connection therewith, because of … disability[.]”

§ 760.23(2), Fla. Stat.

42 . “Disability” is defined as a “physical or mental impairment which

substantially limits one or more major life activities[.]”

43 . Petitioner is a person who is disabled as defined in the Act.

44 . The Act is patterned after Title VIII of the Civil Rights Act of 1968, as

amended by the Fair Housing Act of 1988. As such, discriminatory acts prohibi ted under the federal Fair Housing Act also are prohibited under the

Act, and federal case law interpreting the federal Fair Housing Act is

applicable to proceedings brought under the Act. See Brand v. Fla. Power

Corp. , 633 So. 2d 504, 509 (Fla. 1st DCA 19 94) (noting that “the Florida

statute will take on the same constructions as placed on its federal

prototype.”).

45 . In cases involving claims of housing discrimination, the complainant

has the burden to prove a prima facie case of discrimination by a prep onderance of the evidence. § 760.34(5), Fla. Stat.; Fla. Dep’t of Transp. v .

J.W.C. Co. , 396 So. 2d 778 (Fla. 1st DCA 1981). A “preponderance of the

evidence” means the “greater weight” of the evidence, or evidence that “more

likely than not” tends to prov e the fact at issue. Gross v. Lyons , 763 So. 2d

276, 289 n.1 (Fla. 2000).

46 . When, as here, there is no direct evidence of discrimination by

Respondent related to, or affecting the terms of, the construction of his home, fair housing cases are subject to the three - part test set forth in McDonnell

Douglas Corp oration v. Green , 411 U.S. 792 (1973), and Texas Department of

Community Affairs v. Burdine , 450 U.S. 248 (1981).

47 . Under the three - part test, Petitioner has the initial burden of

establishing a prim a facie case of unlawful discrimination. McDonnel l

Douglas , 411 U.S. at 802.

48 . Petitioner alleges he was treated differently than other Avtec

customers based on his disability. In order to establish a prima facie case of

disparate treatment in the provis ion of services connected with construction

of his home, Petitioner must show that he: (a) is a member of a protected

class; (b) requested services to be performed on terms comparable to others

contracting with Avtec for new construction; and (c) that, bas ed on his

disability, was denied provision of those services which were available to

other customers.

49 . The final element implies that Respondents were aware of Petitioner’s

protected class status.

50 . Petitioner did establish the first element of a pri ma facie case: he is a

member of a protected class. Likewise, he established the second element: he

requested services in connection with the construction of his home — a

45’ setback and a particular type of fill dirt.

51 . However, Petitioner did not establi sh that the actions (or inactions) of

Respondent s were influenced by Petitioner’s disability. The evidence was

insufficient to establish that Respondents were even aware of his disability.

52 . Further, Petitioner introduced no comparators. Thus, there was no

credible evidence that customers with no disabilit ies were treated more

favorably than Petitioner.

R ECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of Law, it is

R ECOMMENDED that the Florida Commission on Human Relations issue a

f inal order dismissing Petition for Relief from a Discriminatory Housing

Practice No. 202022149.

D ONE A ND E NTERED this 22nd day of December , 2020 , in Tallahassee,

Leon County, Florida.

S UZANNE V AN W YK

Administrative Law Judge

Division of Administrativ e 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 , 2020 .

C OPIES F URNISHED :

Mike Amicucci

Suite 3

590 Malabar Road

Palm Bay, Florida 32909

Tammy S. Barton, Agency Clerk

Florida Commission on Human Relations

Room 110

4075 Esplanade Way

Tallahassee, Florida 32399 - 7020

(eServed)

Pedro Tamayo

987 Raleigh Road Southeast

Palm Bay, Florida 32909

(eServed)

Rebecca E. Rhoden, Esquire

Lowndes, Drosdick, Doster, Kantor & Reed, P.A.

215 North Eola Drive

Orlando, Florida 32801

(eServed)

Lawrence F. Sietsma

Avtec Homes, Inc. et al

2860 North Riverside Drive

Indialantic, Florid a 32903

Cheyanne Costilla, General Counsel

Florida Commission on Human Relations

Room 110

4075 Esplanade Way

Tallahassee, Florida 32399 - 7020

(eServed)

N OTICE OF R IGHT T O S UBMIT E XCEPTIONS

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.