vs. ) CASE NO. 86-4733
Intervenor. )
A final hearing was held in this case in Tampa, Florida on February 3, 1987 before Donald D. Conn, a duly designated Hearing Officer of the Division of Administrative Hearings. The parties were represented as follows:
Petitioners: Kerry H. Brown, Esquire
Respondents: Richard P. Condon, Esquire
Intervenor: Amelia G. Brown, Esquire
At the hearing, Deborah and George Murrill, Petitioners, testified on their own behalf, and called Respondents Fred Locke and Bryon Blanke as adverse witnesses. Respondents Locke and Blanke also testified on their own behalf.
Respondent Florida West Coast Homes, Inc. A transcript of the hearing was filed on February 23, 1987, and the parties were allowed to file proposed recommended orders within ten days thereafter.
Petitioners, a black married couple, executed a contract for the sale of real estate with Respondent Florida West Coast Homes, Inc., on April 15, 1985 which included their purchase of the land and a dwelling to be constructed thereon at Lot 5, Charro Lane, Country Trails Subdivision, Hillsborough County, Florida. The full purchase price of the land and dwelling was $79,850.00.
Respondent Locke was President and General Manager of Florida West Coast Homes, Inc., at all times material hereto. He owned 50 percent of the stock of the corporation. Locke signed Petitioners' real estate sales contract on behalf of Florida West Coast Homes, Inc.
Respondent Blanke acted as real estate salesman with Florida West Coast Realty in the transaction between Florida West Coast Homes, Inc., as builder and seller, and the Petitioners, as buyers. His broker, Frances Johnson, was employed by Locke. Blanke witnessed the sales contract.
A deposit totaling $2000 was paid by Petitioners, who also paid a $1500 cash advance to Florida West Coast Homes, Inc., during construction of their home. These funds have never been refunded to Petitioners, nor has their home been completed. They have never closed on, or received a deed to, the property in question.
Construction on Petitioners' home was begun in August, 1985 by Florida West Coast Homes, Inc., after approval for their V.A. financing was received. Approximately two weeks prior to commencement of construction on Petitioners' home, Florida West Coast Homes, Inc., began construction of a dwelling on the lot immediately adjacent to Petitioners' lot. This neighboring lot and dwelling is owned by Respondent Blanke. In September, 1985 construction of Blanke's house and Petitioners' were both at the same stage of completion. Subsequently, however, Blanke's house was completed in February, 1986, but Petitioners' house was not completed prior to Florida West Coast Homes' filing for Chapter 11 bankruptcy on February 27, 1986. Petitioners' house has not been completed to date.
Reasons given to Petitioners for the delay in construction of their home included changes in subcontractors, and the need to complete other homes under construction before Florida West Coast Homes could complete their home. In reality, Florida West Coast Homes was in serious financial difficulty from November, 1985 until its filing for bankruptcy. Subcontractors and suppliers were refusing to do business with the company, and Locke was sued repeatedly in December, 1985 and January, 1986 for amounts owed by Florida West Coast Homes, Inc.
Petitioners' contract for sale of real estate states that the estimated date of their home's completion would be November 15, 1985. However, when it became apparent that this completion date would not be met, Locke repeatedly informed them of new completion dates, including December 1, December 31 and January 31. All construction on Petitioners' house stopped after October, 1985 with the house forty or fifty percent complete.
In late September or early October, 1985 Petitioners' went to see how construction was progressing on their home. They found that "KKK" had been painted on a tree in their yard. Two weeks later they found that the street in front of their house had been painted with the phrase, "KKK, No Nigers" (sic). Petitioners contacted Florida West Coast Homes about these incidents and requested that the tree be cut down and the street paint removed. They were advised by Locke that he would cut down the tree, but it would cost them $200 to
$300, and further that there was nothing he could do about the street painting.
In late March, 1986, Petitioners received two harassing telephone calls in which the callers said, "Niggers, take your money and run." This was after Florida West Coast Homes, Inc., had filed for Chapter 11 bankruptcy and also after a newspaper article had appeared in the Tampa Tribune which detailed the incomplete progress of construction on their home, and the racial slurs which had been painted on their tree and on the street.
There is no evidence that any of the Respondents were responsible for, directed, or personally engaged in activities which resulted in these racial slurs and harassing telephone calls.
Petitioners testified that they believe they were unlawfully discriminated against due to their race because the house next door, which was at the same stage of construction as theirs at one time and which was owned by Respondent Blanke, a white male who was employed by Florida West Coast Realty and who indirectly reported to Respondent Locke, was completed while theirs was not. In addition, Petitioners' phone calls to Florida West Coast Homes were not returned by Locke during December, 1985 and January, 1986.
Blanke's employment was terminated by Locke in August, 1985, shortly after the execution of Petitioners' sales contract. There is no evidence that the termination and the execution of this sales contract were in any way related. Blanke did return to work for Locke part-time for two weeks in October, 1985, but decided not to continue this employment. Thus, during the substantial portion of all times material hereto, there was no employment relationship between Respondents Locke and Blanke.
Blanke had received conventional financing for his home construction prior to commencement of construction in August, 1985. He closed on the property and received a deed at that time. Although construction on his home was completed when Florida West Coast Homes filed for bankruptcy, his property had liens totaling approximately $10,000.
Locke testified that he did not return Petitioners phone calls in December 1985 and January, 1986 because his company was in severe financial trouble, and he did not have any answers for the creditors and home buyers who were calling him. He had eight homes under construction at the time, and only Blanke's home was completed prior to bankruptcy. Of the seven homes which were not completed, six were being purchased by white families and only Petitioners' by a black family.
There is no competent substantial evidence that Respondents ever told Petitioners to take their money and get out of the deal, or in any way sought to force Petitioners out of their contract for sale.
CONCLUSIONS OF LAW
The Division of Administrative Hearings has jurisdiction over the parties and subject matter in this cause. Section 120.65, Florida Statutes.
Petitioners' complaint against Respondents was filed under the Fair Housing Ordinance of Hillsborough County, Ordinance Number 77-12, as amended. Section 16 1/2 (35) of the Ordinance states that it shall be an unlawful and discriminatory housing practice for any owner or any other person engaging in a real estate transaction, because of race, to:
--make unavailable or deny housing to any person;
--discriminate against a person in the terms, conditions or privileges of a real estate transaction or in the furnishing of facilities or services in connection therewith;
--aid, abet . . . any person to engage in any of the practices prohibited by (the Ordinance) . . . .
The provisions of the Hillsborough County Ordinance are similar to those found at Section 760.23, Florida Statutes, and 42 USCS s. 3604, and therefore these sections should all be read in pari materia, and cases construing and interpreting these other provisions are a proper basis for interpreting the Ordinance under review in this case.
The facts established at hearing do not show that Respondents denied or otherwise made housing unavailable to Petitioners, that they denied or withheld housing from them, or that they aided or abetted any person to engage in prohibited activities. The facts do establish that Florida West Coast Homes went bankrupt, and was therefore unable to complete Petitioners' house, as well as the houses of six white couples. It was also shown that Respondent Blanke arranged conventional financing on his home, and was therefore able to close on and receive a deed to his property prior to commencement of construction, while Petitioners obtained V.A. financing, and have never closed on or obtained a deed to the property in question. In addition, while Petitioners were the targets of racial slurs, there is absolutely no evidence that Respondents were in any way responsible for, or involved with, those who committed such prohibited acts. Petitioners seek to hold their builder, former real estate agent and prospective neighbor responsible for the action of vandals without the slightest element of proof connecting Respondents with these acts. Finally, there is no evidence that Respondents suggested, encouraged or otherwise tried to have Petitioners reconsider their desire to have a house built on the subject property. To the contrary, it appears unlikely that a business in failing condition facing bankruptcy would turn away willing and able purchasers when completion of their home would have meant additional income for such business.
A discriminatory housing practice cannot be established unless race played some role in the transaction. United States v. Mitchell, 580 F.2d 789, 791 (5th Circuit 1978); Burris v. Wilkins, 544 F.2d 891 (5th Circuit 1977). In order to establish a prima facie case of discrimination, Petitioners must show that they were rejected for a housing opportunity that remained available. Robinson v. 12 Lofts Realty, Inc., 610 F.2d 1032, 1038 (2nd Circuit 1979). Petitioners in this case have failed to establish that race played any part in their transaction with Respondents, or that they were rejected for available
housing. Rather, Florida West Coast Homes went bankrupt leaving Petitioners, and others, without completed homes. They were not rejected for available housing; their home could not be built due to the failure of their builder's company.
Respondents have shown a valid, nondiscriminatory basis for their actions. Petitioners have not established a prima facie case in support of their complaint. Betsy v. Turtle Creek Associates, 736 F.2d 983 (4th Circuit 1984). Compare Section 760.34(5), Florida Statutes. Therefore, there is no basis upon which the relief sought by Petitioners can be granted.
Based upon the foregoing, it is recommended that a Final Order be entered dismissing Petitioners complaint under the Fair Housing Ordinance of Hillsborough County.
DONE AND ENTERED this 11th day of March, 1987 in Tallahassee, Florida.
DONALD D. CONN
Filed with the Clerk of the Division of Administrative Hearings this 11th day of March, 1987.
Kerry H. Brown, Esquire 3202 Henderson Blvd.
Richard P. Condon, Esquire
Amelia G. Brown, Esquire
P. O. Box 1110 Tampa, Fl 33601
Robert W. Saunders, Director Equal Opportunity Office
P. O. Box 1110 Tampa, Fl 33601
