22-001826 Venit Baptiste vs. West Dade Ltd., Ii; Rolando Barrero; Mar-Bar, Inc.; And Evelio Echemendia Status: Closed Recommended Order on Tuesday, October 4, 2022.

Summary: Petitioner failed to demonstrate that she was discriminated against on the basis of gender, race, or her son's alleged disability with regard to her tenancy. She presented no comparison evidence. Recommend dismissal of complaint.

S TATE OF F LORIDA

D IVISION OF A DMINISTRATIVE H EARINGS

V ENIT B APTISTE ,

Petitioner ,

vs. Case No. 22 - 1826

W EST D ADE L TD ., II; R OLANDO B ARRERO ;

M AR - B AR , I NC .; A ND E VELIO

E CHEMENDIA ,

Respondents .

/

R ECOMMENDED O RDER

Pursuant to notice, a final hearing in this case was conducted before

Administrative Law Judge Mary Li Creasy of the Division of Administrative

Hearings (ÑDOAHÒ) by Zoom conference on August 17, 19, and 26 , 202 2 .

A PPEARANCES

For Petitioner: Venit Jean - Baptiste, pro se

Apartment 310

10335 Southwest 40th Street

Miami, Florida 33165

For Respondent s : Juan C arlos Zorrilla, Es quire

Victor M ariano Velarde, Esq uire

Fowler White Burnett, P .A.

Brickell Arch, Fourteenth Floor

1395 Brickell Avenue

Miami, Florida 33131

S TATEMENT OF T HE I SSUE S

Whether Respondents discriminated against Venit Jean - Batiste

( Ñ Ms. Baptiste Ò ) because of her race and gender with regard to receivin g

timely and adequate responses to her maintenance requests, and whether

Respondents discriminated against Ms. Baptiste Ô s son because of a disability

by denying him full enjoyment of the premises and a reasonable

accommodation.

P RELIMINARY S TATEMENT

On Oc tober 19, 2020, Ms. Baptiste filed her Complaint of Discrimination

with the Florida Commission on Human Relations ( Ñ FCHR Ò ). On May 31,

2022, FCHR issued its Determination of No Cause.

On June 4, 2022, Ms. Baptiste timely filed her Petition for Relief ,

req uesting the following relief: (1) $100 million in punitive damages;

(2) $50 million in compensatory damages; (3) injunctive relief; (4) criminal

penalties; (5) equitable relief; and (6) civil penalties.

On July 22, 2022, the undersigned issued an Order st riking Ms. Baptiste Ô s

request for punitive damages, civil and criminal penalties, injunctive and

equitable relief, allegations of retaliation by Lorena Swaby, allegations of

sexual harassment, and allegations relating to Ms. Baptiste Ô s car being

towed. The Order also dismissed Ms. Baptiste Ô s claim under the Violence

Against Women Act. The Order also provided that : (a) Ms. Baptiste may

recover compensatory damages if she can prove quantifiable damages

resulting from discrimination; and (b) allegations of ong oing repair issues

based on race and gender were material issues of fact for the final hearing .

The final hearing took place on August 17, 19, and 26, 2022. Ms. Baptiste

testified on her own behalf. The following exhibits of Ms. Baptiste were

admitted: Pe titioner Ô s Exhibits 1, pages 3 through 11, 15, 17 through 21, 24,

30, 31, 34, 35, 40 through 42, 45 through 49, 53, 56, and 62 through 65;

Exhibit 2, pages 8 through 18; and Exhibit 3, pages 3 through 15, 20, 23

through 27, and 28. Petitioner Ô s Exhibit 4 w as identical to Petitioner Ô s

Exhibit 1.

Respondent Evelio Echemendia (ÑMr. EchemendiaÒ) also testified on his

own behalf. Respondents Mar - Bar, Inc. ( Ñ Marbar Ò ) , and West Dade, Ltd, II

( Ñ West Dade Ò ) , p resented the testimony of Respondent Joseph Barrero

(ÑMr . BarreroÒ) . 1 Respondents Ô Exhibits 1, 2, 4 through 6, 8 through 11, 13,

14, 17, 20, 23, 24, and 29 through 31 were admitted.

The three - volume T ranscript of the final hearing was filed with DOAH on

September 6, 2022 . All parties filed timely post - hearing submissions which

were considered in the drafting of this Recommended Order. Unless

otherwise noted, all references to Florida Statutes are the 2022 version.

F INDINGS OF F ACT

The Parties

1. On August 1, 2019, Ms. Baptiste signed a Section 8 Lease Agreemen t

with West Dade for the premises located at 10335 S outhwest 40 th Street,

Unit 310, Miami, Florida .

2. Ms. Baptiste Ô s apartment building is located in a four - building comple x ,

which includes building numbers 10305, 10335, 10355, and 10375 .

3. West Dade is the owner of the four apartment buildings. Marbar is the

managing company for the four apartment buildings.

4. Mr. Echemendia is the Property Manager who is responsible for

performing the first inspection for each maintenance request or complaint

of the We st Dade tenants and signing off on Marbar Ô s w ork o rders.

Mr. Echem e ndia primarily speaks Spanish.

1 Mr. Barrero is the person who testified at the final hearing and is believed to be the person

P etit ioner misidentified in her complaint as Respondent Rolando Barrero.

5. Mr. Barrero is an officer of West Dade and Marbar. Ms. Baptiste

admitted that she has never had any interactions or communications with

Mr. Barrero.

Ms. Ba ptiste Ô s Claims of Discrimination

6. Ms. Baptiste is a Black woman. She claims that Respondents have

discriminated against her on the basis of her race and gender . Ms. Baptiste Ô s

primary complaint is that during her tenancy, Respondents failed to timely

an d adequately respond to repair requests due to her ra c e and gender . She

believes that Hispanic tenants receive favorable treatment with regard to the

timeliness of repairs.

7. Ms. Baptiste also claims that her son has allergies and is, therefore,

disabled . She claims that Respondents have discriminated against her son by

not providing the reasonable accommodation of timely repairs on the basis of

his disability.

Ms. Baptiste Ô s Tenancy and History of Maintenance Requests

8. Ms. Baptiste alleges that when sh e moved into her apartment in

August 2019, she was given a unit with non - working appliances due to her

race.

9. Pages 7 and 8 of the Lease Agreement provides that the appliances and

air - conditioning unit of Ms. Baptiste Ô s apartment (Unit 310) were in Ñ Goo d

Working Condition Ò at the time of move - in. Ms. Baptiste admitted that she

initialed every page of the Lease Agreement and signed it .

10. Ms. Baptiste, however, testified that the checkmarks on pages 7 and 8

of the Lease Agreement (which indicated that t he appliances and air -

conditioning unit were in Ñ G ood W orking C ondition Ò ) were added after she

initialed the pages. Ms. Baptiste later changed her testimony and testified

that pages 7 and 8 were not provided to her at all and, therefore, the initials

at th e bottom of pages 7 and 8 were forged. This testimony was not credible.

1 1 . Ms. Baptiste signed a Move - In Inspection document on August 1,

2019, indicating that every room in the apartment (Unit 310) was Ñ OK Ò

and not reflecting any disrepair. Ms. Baptiste admitted that she signed the

Move - In Inspection Acceptance , but did not remember if the indications that

the rooms were Ñ OK Ò were present when she signed. This testimony was not

credible.

2019 Maintenance Requests

1 2 . When a tenant of West Dade makes a req uest for a repair, usually the

Property Man ager, Mr. Echemendia, responds to inspect. He enters the unit

only after having permission to enter from the tenant , unless it is an

emergency situation . If it is something easily repairable, he makes the repair .

If additional tools, equipment, parts, or other specialized work is involved, he

generates a work order which is then assigned to a maintenance worker .

Once the work is complete, the tenant signs the work order acknowledging

the work is finished . If the te nant is not available to sign, the supervisor will

sign.

1 3 . Routine work orders are usually handled on a first - come, first - served

basis. However, this can vary depending on the severity of the issue

presented and the volume of other pending work orders. D uring the

pandemic, waiting for parts or appliances slowed the repair process.

1 4 . On October 11, 2019, Ms. Baptiste sent a text to Mr. Echemendia , the

Property Manager, in Spanish (using Google translate), stating that she had

an issue in her apartment . M s. Baptiste testified that she did not remember

what the issue was, whether the issue was resolved, or when it was resolved .

1 5. Next, Ms. Baptiste sent another text message to Mr. Echemendia at

8:42 a.m. on October 29, 2019 , in Spanish, stating that she h ad an emergency

situation in her apartment and asked that Mr. Echemendia inspect it. This

issue was resolved within two days.

1 6 . O n November 22, 2019, Ms. Baptiste sent another text message to

Mr. Echemendia in Spanish , at 8:13 a.m. , stating that she lock ed herself out

of her apartment and needed Mr. Echemendia to open her apartment door .

Because he was not on the premises, Mr. Echemendia sent his wife to unlock

Ms. Baptiste Ô s door.

1 7 . Ms. Baptiste submitted a maintenance request on September 28, 2019 ,

re garding her stove , which was fixed within four days. On December 13,

2019, Ms. Baptiste submitted a repair request regarding a sc r ape on the

stairwell in front of her apartment , which was fixed in seven days.

1 8 . Ms. Baptis t e offered no comparative evidenc e regarding repairs for

non - black or male tenants during this time period. 2

2020 Complaints Ï Ceiling Leak

1 9 . Ms. Baptiste first complained to Marbar about a leak in her ceiling on

April 6, 2020. The April 6, 2020 , w ork o rder reflects that Ms. Baptiste

Ñ a uthorizes entrance if she Ô s not there Ò and that the inspection and repair

took place on April 7, 2020 .

20 . On M ay 11, 2020, Ms. Baptiste filed a complaint with Miami - Dade

Public Housing & Community Development ( Ñ PHCD Ò ) that there was a leak

in her bathroom ceiling.

2 1 . O n May 12, 2020, the tenant in the unit above Ms. Baptiste (Unit 410)

requested maintenance on her bathroom drain, which was broken and caused

a leak that affected Ms. Baptiste Ô s unit (Unit 310). T he leak was repaired by

May 25, 2020 . Ms. Bap tiste did not complain to anyone about any leaks in

her ceiling after May 25, 2020.

Air - Conditioning Complaints After 2019

2 2 . O n April 23, 2020, Ms . Baptiste hired Sears to inspect her air -

conditioning unit due to her concerns about dust and mold. The Sea rs receipt

stated that Ms. Baptiste Ô s air - conditioning unit Ñ need[ed] to be clean[ed] Ò but

2 Ms. Baptiste offered several phot o graphs purporting to show the delivery of new air -

conditioning compressors or units to Hispanic tenants. She was not able to identify to whom

those unit s were delivered, the date of such delivery, nor the state of the units being

replaced . She also had no information regarding how long those tenants waited for new air -

conditioning units. As such, these photographs were of no evidentiary value.

was otherwise Ñ operational. Ò Ms. Baptiste did not provide the receipt to

Marbar.

2 3 . Instead, Ms. Baptiste filed a complaint directly with PHCD in

May 2020. O n May 7 , 2020, PHCD issued a Ñ Notice of emergency re -

inspection Ò letter to Marbar and West Dade , stating that Ms. Baptiste Ô s Ñ AC

Unit needs to be clean[ed] / AC ducts needs to be clean[ed]. Ò

2 4 . Upon receipt of the complaint, Marbar created a w ork o rder on

May 12 , 2020. A Marbar employee spent approximately six hours on cleaning

the air - conditioning unit on May 13, 2020.

2 5 . Marbar also used a third - party vendor, BBL Air Duct Cleaning , to

perform air - conditioning duct and vent cleaning for Ms. Baptiste Ô s unit on

M ay 29, 2020. PHCD inspected Ms. Baptiste Ô s apartment again on June 15,

2020 , and her air - conditioning unit passed the inspection .

2 6 . In July 2020 (two months after Ms. Baptiste Ô s first complaint

regarding her air - conditioning unit ), Ms. Baptiste submitted a second

complaint to PHCD. This time, Ms. Baptiste claimed that her air -

conditioning unit Ñ needs to be clean[ed], È the unit is blowing dust inside

the apartment. Ò

2 7 . Marbar received the complaint from PHCD on July 9, 2020 , and

prepared a w ork o rder. PH CD Ô s Inspection Summary for this July 2020

complaint reflects that Ñ due to COVID - 19 [PHCD] can Ô t go into the unit to

perform the inspection Ò but that PHCD Ñ will contact the owner regarding the

AC unit. Ò

2 8 . When Marbar inspected Ms. Baptiste Ô s unit in Jul y 2020, her air -

conditioning unit was clean, but they nonetheless cleaned it again. The w ork

o rder reflects that Ñ the coil is very clean. I brushed the evaporator motor.

Everything is very clean. It is cooling well. All OK. Ò PHCD inspected the unit

o n Augu st 3, 2020 , and passed the inspection.

2 9 . Ms. Baptiste did not complain to Respondents or to PHCD about her

air - conditioning unit again until almost two years later , in May 2022.

30 . On May 10, 2022, Ms. Baptiste obtained a temporary restraining order

aga inst Mr. Echemendia . He was instructed by Marbar not to enter her

building for any maintenance inspections or repairs.

3 1 . O n May 17, 2022, Ms. Baptiste submitted a complaint to PHCD that

her air - conditioning unit was not working and needed to be repaired. Upon

receipt o f the complaint from PHCD, Marbar created a w ork o rder . On

May 18, 2022, Lorena Swaby (ÑMs. SwabyÒ) , Marbar P roperty M anagement

A ssistant , contacted Ms. Baptiste requesting authorization to enter her unit.

Ms. Baptiste responded via text mes sages stating, Ñ Lorena [Swaby] you have

called me only to harass me and lie to me È for defective air conditioning

unit for the past five days ... This is torture and abuse. Ò

3 2 . Later that same day, Ms. Baptiste sent a letter to Ms. Swaby and

Marbar stati ng, Ñ I È authorize Mar - Bar Management to send a Ó qualified

technician Ô to make repair to the defective air - conditioning unit È On

May 18, 2022 I am authorizing the necessary repairs between 3:45 Ï

4:00 p.m. when I am present due to unforeseen circumstances . Ò

3 3 . Marbar could not inspect Ms. Baptiste Ô s air - conditioning unit on

May 18, 2022 , between 3:45 p.m. and 4:00 p.m. , because : (1) Mr. Echemendia

is the person who usually performs the first inspection, but Marbar

instructed Mr. Echemendia not to enter th e apartment building where

Ms. Baptiste resides until her t emporary r e s training o rder against him was

resolved; (2) Ms. Baptiste authorized entry on the condition of having a

Ñ qualified technician Ò inspect her air - conditioning unit; and (3) Marbar was

not able to secure the attendance of a technician on same - day notice and for

only the 15 - minute window Ms. Baptiste authorized.

3 4 . The t emporary r estraining o rder that Ms. Baptiste secured against

Mr. Echemendia was dismissed after an evidentiary hearing held on

June 3, 2022. Ms. Baptiste then initiated a criminal investigation against

Mr. E chemendia with the Florida State Attorney Ô s Office. As a result of the

criminal complaint, Marbar again instructed Mr. Echemendia not to enter

Ms. Baptiste Ô s unit.

3 5 . At o r around this same time, Ms. Baptiste also filed a Florida Bar

complaint against counsel for Marbar and a complaint with the Judicial

Qualifications Committee against The Honorable Ayana Harris after she

received an unfavorable ruling from Judge Harris at the June 3, 2022 ,

hearing.

3 6 . Given Ms. Baptiste Ô s proclivity for litigation , Respondents Ô counsel

contacted Ms. Baptiste by email on July 14, 2022, to schedule the evaluation

and repair of her air - conditioning unit. Ms. Baptiste did not respond.

3 7 . On J uly 15, 2022, Respondents Ô counsel again contacted Ms. Baptiste

on two separate occasions to schedule the inspection of her air - conditioning

unit . Ms. Baptiste responded on July 15, 2022 , that she was Ñ unavailable

until further notice. Ò On July 17, 2022, R espondents Ô counsel again contacted

Ms. Baptiste to schedule the inspection of her air - conditioning unit. On

July 22, 2022, Ms. Baptiste responded stating that she was available on

July 25, 2022 , between 10:00 a.m. and 3:00 p.m .

3 8 . On July 25, 2022, Marba r performed an inspection of Ms. Baptiste Ô s

air - conditioning unit. T he unit needed to be repaired due to a frayed wire but

did not need to be replaced. Marbar Ô s w ork o rder reflects that Ms. Baptiste Ô s

air - conditioning unit was repaired on July 27, 2022.

3 9 . Ms. Baptiste testified that as of the date of the final hearing, her air -

conditioning unit was operational and blowing cold air . 3

Repairs for Other Tenants

40 . Ms. Ba ptiste claims that Hispanic tenants received new air -

conditioning units and that, as Ñ th e only black tenant Ò in the complex, she

was denied a new unit . In support of this claim, she offered several

3 At the fi nal hearing, Ms. Baptiste complained that the unit needs to be replaced because it

still blows dust. However, no further complaints regarding the air - conditioning unit were

received between July 27 , 2022, and the final hearing on August 26, 2022.

photographs of what appear to be air - conditioning units she believes were

delivered to Hispanic tenants in May 2022.

4 1 . Marbar Ô s records reflect that two Hispanic tenants received air -

conditioning units in May 2022. However, this was only after the units were

inspected , and it was ultimately determined by Marbar that these units were

unrepairable. The two tenants who received the units cooperated w ith

Marbar for the inspection and attempted repairs for their units.

4 2 . One tenant waited for two months to have the non - working unit

replaced . It took 20 days for the other non - working unit to be replaced.

4 3 . A review of all the w ork o rders , relating t o maintenance request s for

all tenants in the building where Ms. Baptiste reside d during the period of

May 2020 to September 2020 ( the time period that FCHR previously

determined was relevan t ), revealed that Marbar Ô s turn - around time when

addressing Ms. Ba ptiste Ô s complaints is the same as Marbar Ô s turn - around

time when addressing the complaints of all other tenants.

4 4 . Specifically, the evidence shows that Marbar addresse d most

maintenance requests (including most of Ms. Baptiste Ô s maintenance

requests) w ithin one to seven days. The evidence also shows that Marbar

addresse d more involved maintenance requests ( such as repairs that require

new materials, replacing a kitchen stove, replacing an air - conditioning unit,

etc.) of other tenants within 13 to 40 day s.

4 5 . While the resident composition of the apartment units is

predominately Hispanic, Ms. Baptiste was not the only black tenant as she

claim s . In her building (10335) of 48 apartments, thr ee were occupied by

Black tenants. In building 10305, out of 44 u nits, five units are occupied by

Black tenants . In building 10375, there are 44 units with five units occupied

by Black tenants. In building 10355, there are two B lack tenants out of

48 units. No other Black tenants have complained that Respondents

discrim inated against them on the basis of race.

4 6 . Ms. Baptiste claims she heard Mr. Echemendia used the term Ñ negro Ò

when referring to her. Negro is the Spanish word for Ñ black. Ò Even if true,

this is not evidence of discrimination with regard to the terms or conditions of

her tenancy based on race.

Alleged Gender Discrimination

4 7 . Ms. Baptiste testified that she believed she was being discriminated

against because she would not agree to engage in certain acts as a result of

her gender. However , she den i ed bei ng expressly propositioned for sex ual

favors.

4 8 . Ms. Baptiste alleges that when Mr. Echemendia came to her

apartment, he wore excessive cologne . This is insufficient to support a claim

of gender discrimination.

4 9 . She also believes that female tenants wh o were friendly to

Mr. Echemendia received quicker responses to maintenance requests. No

proof to support this assumption was offered.

Alleged Disability Discrimination

50 . Ms. Baptiste asserts that her son, who has allergic rhinitis, is unable

to fully en joy the premises due to the dust and mold caused by the faulty air -

conditioning unit , that the air - conditioning unit exacerbates her son Ô s

condition making it difficult for him to breathe, and that Respondents failed

to provide a reasonable accommodation b y failing to replace her air -

conditioning unit .

5 1 . Notably, prior to the filing of her complaint of discrimination with

FCHR, Ms. Baptiste provided no written notification to Respondents of the

need for an accommodation due to her son Ô s condition . Respond ents Ô

witnesses denied knowledge of Ms. Baptiste Ô s son Ô s condition or need for an

accommodation. No medical documentation was provided to Marbar

regarding a need for an accommodation.

5 2 . Ms. Baptiste notified PHCD by text on May 7, 2021, that she wanted

t o transfer to a unit with central air and no carpets as a Ñ reasonable

accommodation. Ò No written explanation of the nature of the disability or

need for an accommodation was presented . In her follow - up to the inquiry of

whether she still wanted a transfer, Ms. Baptiste replied, Ñ They have finally

sent someone to repair the door frame only. Ò 4 Ms. Baptiste offered no credible

explanation as to why she did n o t follow through with a transfer with PHCD

or Marbar.

5 3 . Ms. Baptiste sent a letter to Marbar on June 29, 2022 , in w hic h she

references her son Ô s Ñ disability Ò and claims that the excessive heat is causing

him Ñ a significant amount of emotional distress. Ò However, the nature and

extent of his disability , or a suggested accommodation , is not included other

t han Ñ Air Conditioning Unit Repair. Ò As described above, Ms. Baptiste made

the interactive process of repair difficult , if not impossible, with her

unreasonable restrictions on when an inspection could occur and who could

perform the inspection or repair . T he repair was ultimately completed on

July 27, 2022.

5 4 . Ms. Baptiste presented no evidence that a new air - conditioning unit,

as opposed to a cleaning of the unit or repair to the wiring , would alleviate

the problem for her son . While Ms. Baptiste presente d photographs of her

son Ô s backpack and other items covered with mold, no evidence was presented

to show that this was an indoor air - quality issue that could be remedied with

a new air - conditioning unit.

5 5 . No recommendation from a healthcare provider reg arding indoor air -

quality was presented . The only link between Ms. Baptiste Ô s air - conditioning

unit and her son Ô s allergies appears to be Ms. Baptiste Ô s own suppositions.

4 Ms. Bap tiste entered photos into evidence of significant termite damage to the door frame of

her unit. However, no comparative evidence was provided to show that a delay in repairs was

a result of her race or gender.

Ultimate Findings of Fact

5 6 . Ms. Baptiste failed to demonstrate, by a preponderance of the

evidence, that she was discriminated against in the terms or conditions of her

tenancy on the basis of race or gender.

5 7 . Ms. Baptiste failed to demonstrate that her son suffers from a

handicap within the meaning of the Florida Fair Housing Act ( Ñ the Act Ò ) or

that Respondents failed to provide a reasonable accommodation for the same.

C ONCLUSIONS OF L AW

5 8 . DOAH has jurisdiction over the parties and subject matter in this

case. §§ 120.569 and 120.57, Fla. Stat.

5 9 . Section 760.23 (1) , Florida Statut es, states that it is an unlawful

housing practice to discriminate 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 therewith, because of Ñ race, color, n ational origin, sex,

disability, familial status, or religion. Ò It is also unlawful to discriminate

against a person associated with a buyer or renter on the basis of that

person Ô s disability by Ñ 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 dwelling. Ò See

§ 760.23(9)(b) , Fla. Stat.

60 . FCHR and Florida courts have determined that federal discrimination

laws should be used as guidance when construing provisions of chapter 760.

See Valenzuela v. GlobeGround N. Am., LLC , 18 So. 3d 17 (Fla. 3d DCA

2009); Brand v. Fla. Power Corp. , 633 So. 2d 504, 509 (Fla. 1st DCA 1994).

Establishing Discrimination

6 1 . Discriminatory inten t can be established through direct or

circumstantial evidence. Schoenfeld v. Babbitt , 168 F.3d 1257, 1266 (11th

Cir. 1999). Direct evidence of discrimination is evidence that, if believed,

establishes the existence of discriminatory intent behind an emplo yment

decision without inference or presumption. Maynard v. Bd. of Regents ,

342 F.3d 1281, 1289 (11th Cir. 2003).

6 2 . Ñ Direct evidence is composed of Ó only the most blatant remarks, whose

intent could be nothing other than to discriminate Ô on the basis of some

impermissible factor. Ò Schoenfeld , 168 F.3d at 1266. Petitioner presented no

direct evidence of handicap or familial status discrimination.

6 3 . Ñ [D]irect evidence of intent is often unavailable. Ò Shealy v. City of

Albany, Ga. , 89 F.3d 804, 806 (11th Cir. 1996). For this reason, those who

claim to be victims of intentional discrimination Ñ are permitted to establish

their cases through inferential and circumstantial proof. Ò Kline v. Tenn.

Valley Auth. , 128 F.3d 337, 348 (6th Cir. 1997).

6 4 . Where a co mplainant attempts to prove intentional discrimination

using circumstantial evidence, the shifting burden analysis established by

the United States Supreme Court in McDonnell Douglas Corporation v.

Green , 411 U.S. 792 (1973), and Texas Department of Commun ity Affairs v.

Burdine , 450 U.S. 248 (1981), is applied. Under this well - established model of

proof, the complainant bears the initial burden of establishing a prima facie

case of discrimination. Once this burden is met, the respondent has the

burden of ar ticulating a legitimate non - discriminatory basis for the adverse

action. The complainant must then come forward with specific evidence

demonstrating that the reasons given by the respondent are a pretext for

discrimination.

Housing Discrimination

6 5 . In th e instant case, Ms. Baptiste alleges that s he was unlawfully

discriminated against regarding the terms and conditions of her residency

(specifically delayed responses to maintenance requests) because of h er race,

gender , and her son Ô s alleged disability .

6 6 . Ms. Baptiste offered no direct evidence of discrimination on any basis.

Race and Gender Discrimination (Maintenance I ssues)

6 7 . To establish a prima facie case for denial of services/maintenance,

Ms. Baptiste must show that she: (1) is a member of a pr otected class;

(2) is qualified to receive the services/maintenance in question; (3) was denied

or delayed services/maintenance by Respondents; and (4) Respondents

treated similarly situated persons outside of the protected class more

favorably. See Boykin v. Bank of Am . Corp. , 162 Fed. Appx. 837, 839

(11 th Cir. 2005); see also Jackson v. Comberg, No. 8 : 05 - cv - 1713 - T - 24TMAP,

2007 WL 2774178, at *5 (M.D. Fla. Aug. 22, 2007) .

6 8 . Ms. Baptiste identifies as a Black woman. She belongs to a class

of persons whom the Act protects from unlawful discrimination based on

race and gender. And as a tenant in West Dade Ô s apartment building,

Ms. Baptiste was qualified to receive services or use the facilities consistent

with the terms, policies, and procedures of Responden ts.

6 9 . The evidence presented at the final hearing, however, does not

establish that Respondents refused or delayed services to Ms. Baptiste

because of her protected class or treated similarly situated persons outside of

the protected class more favorably .

70 . To the contrary, the evidence presented reveals that Respondents

addressed Ms. Baptiste Ô s maintenance requests in the same fashion Ð and

with the same turn - around times Ð as her Hispanic neighbors . The evidence

presented also confirms that the Hispanic t enants who received new air -

conditioning units were female and were not comparable to Ms. Baptiste

because Ms. Baptiste Ô s air - conditioning unit was determined to be repairabl e,

and was repaired while the units of the Hispanic tenants were determined to

be irreparable and had to be replaced.

7 1 . The only maintenance request that Respondents took longer to resolve

was Ms. Baptiste Ô s May 18, 2022 , complaint to PHCD regarding her air -

conditioning unit not working. Ms. Baptiste provided Marbar with an

unreasonab ly limited authorization to inspect her air - conditioning unit and ,

thereafter , did not cooperate in scheduling Marbar Ô s inspection and repair.

W hen Respondents (through counsel) were able to schedule an inspection

date with Ms. Baptiste, Ms. Baptiste Ô s com plaint/maintenance request was

resolved within two days. The evidence also showed that the female Hispanic

tenants who received new air - conditioning units were cooperative in

scheduling Marbar Ô s inspection and repair.

7 2 . Because Ms. Baptiste did not prese nt any evidence that Respondents

delayed or refused services because of her protected class (or any evidence

that Respondents treated any persons outside of the protected class more

favorably), Ms. Baptiste has failed to establish a prima facie case for ho using

discrimination on the basis of race or gender .

Disability Discrimination

7 3 . A person is considered a Ñ qualified individual Ò with a disability under

the Act if that individual: (1) has Ñ a physical or mental impairment that

substantially limits one or more of the major life activities of such

individual Ò ; (2) has Ñ a record of such an impairment Ò ; or (3) is a person

Ñ regarded as having such an impairment. Ò 42 U.S.C. § 3602(h). 5

7 4 . To establish a Ñ failure to accommodate Ò violation of section 760.23(2),

the following elements must be proven by a preponderance of the evidence:

(1) Petitioner belongs to a class of persons whom

the Florida Fair Housing Act protects from

unlawful discrimination because of race, color,

national origin, sex, disability, familia l status, or

religion;

(2) Petitioner must have been qualified, ready,

willing, and able to receive the services or use

facilities consistent with the terms, policies, and

procedures of Respondent;

(3) Petitioner must have requested services or use

of facilities, or attempted to use facilities consistent

5 Ñ The [Federal Fair Housing Act] and the Flor ida Fair Housing Act are substantively

identical, and therefore the same legal analysis applies to each. Ò Bhogaita v. Altamonte

Heights Condo. Ass Ô n, Inc. , 765 F.3d 1277, 1285 (11th Cir. 2014).

with the terms and conditions, policies, and

procedures established by Respondent for all

persons who were qualified or eligible for services

or use of facilities; and

(4) Respondents, with knowledge of Petitioner Ô s

protected class, must have willfully failed or

refused to provide services to Petitioner or permit

use of the facilities under the same terms and

conditions that were applicable to all persons who

were qualified or eligible for services or use of the

facilities.

See, e.g., Noah v. Assor , 379 F. Supp. 3d 1284, 1298 (S.D. Fla. 2019);

Woolington v. 1st Orlando Real Estate Servs., Inc. , 2011 WL 3919715, at *2

(M.D. Fla. Sept. 7, 2011).

7 5 . Ms. Baptiste claims her son is disabled within the mean ing of the Act

due to his allergic rhinitis. No verification or corroboration was offered, such

as a physician Ô s affidavit, regarding the nature and extent to which her son is

affected by his condition. Ms. Baptiste testified that her son Ô s condition is a

form of asthma which has necessitated trips to the emergency room and

epinephrine injections . Unfortunately, she offered no evidence, other than her

own belief, that his condition was caused by the lack of a new air - conditioning

unit. There are myriad alte rnatives that could explain his allergies such as

pet dander, grass, pollen, dust mites, or environmental exposure to irritants

outside the home.

7 6 . Even if it is assumed Ms. Baptiste Ô s son suffers from a condition that

meets the Act Ô s definition of disab ility, she failed to meet the fourth prong of

the prima facie case for a failure to accommodate claim . Ms. Baptiste did not

advise Respondents of her son Ô s allergy. Ñ It is axiomatic that a [ r espondent]

cannot be expected to make an accommodation for a hand icap of which he is

unaware. Ò McManus v. Cherry , No. 1:08 - cv - 00110 - MP - GRJ, 2010 WL

5638108, at * 5 (N.D. Fla. Nov. 19, 2010) .

Conclusion

7 7 . Although most of Ms. Baptiste Ô s testimony was deemed sincere and

credible , and her concern for her family Ô s well - be ing and strong advocacy on

her own behlf is commendable , she failed to demonstrate discrimination on

the basis of any protected class.

7 8 . Discrimination is often insidious and discreet . It is rare for

discrimination to blatant . However, a petitioner must offer more than gut

instinct to prove a case of housing discrimination under the Act. The evidence

failed to show that Respondents discriminated against or denied Ms. Baptiste

or her son an equal opportunity to use and enjoy the premises .

R ECOMMENDATION

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

R ECOMMENDED that the Florida Commission on Human Relations enter a

final order in favor of Respondents and holding that Respondents have not

engaged in any discriminatory housing practice against Ms. Baptiste at any

point during her tenancy .

D ONE A ND E NTERED this 4th day of October , 2022 , in Tallahassee, Leon

County, Florida.

S

M ARY L I C REASY

Administrative Law Judge

1230 Apalachee Parkway

Tallahassee, Florida 32399 - 3060

(850) 488 - 9675

www.doah.state.fl.us

Filed with the Clerk of the

Division of Administrative Hearings

this 4th day of October , 2022 .

C OPIES F URNISHED :

Tammy S. Barton, Agency Clerk Venit Jean - Baptiste

(eServed) (eServed)

Juan Carlos Zorrilla, Esquire Mary Ellen Clark, Chief Legal Counsel

(eServed) (eServed)

Victor Mariano Velarde, Esquire Henry Graham, Attorney Supervisor

(Ad dress of Record) (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.