STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

JOSEF SCHNEIDER, )

)

Petitioner, )

vs. ) CASE NO. 92-3578

)

LAFONTANA COOPERATIVE )

APARTMENTS, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, the Division of Administrative Hearings, by its designated Hearing Officer, Joyous D. Parrish, held a formal hearing in the above-styled case on February 2 and 3, 1994, in West Palm Beach, Florida.

APPEARANCES

For Petitioner: Jacob A. Rose

JACOB A. ROSE, P.A.

Flagler Court Building, Suite 305

215 Fifth Street

West Palm Beach, Florida 33401

For Respondent: Shepard Lesser

LESSER & LESSER, P.A.

909 North Dixie Highway

West Palm Beach, Florida 33401 STATEMENT OF THE ISSUES

The central issue in this case is whether the Respondent committed a discriminatory practice in violation of Chapter 760, Florida Statutes.

PRELIMINARY STATEMENT

This case began when the Petitioner, Josef Schneider, filed a complaint with the Florida Human Relations Commission (Commission) against the Respondent, LaFontana Cooperative Apartments, alleging a violation of the Florida Fair Housing laws found in Chapter 760, Florida Statutes. More specifically, such complaint alleged that Respondent had discriminated against the Petitioner because of his religious beliefs. Petitioner claimed that the board of the cooperative apartment building has harassed him because he is an orthodox Hasidic Jew.

On March 30, 1992, the Commission issued a notice of determination that found there was insufficient cause to believe an unlawful housing practice had occurred. Thereafter, Petitioner was advised of his right to an administrative hearing and he subsequently filed a petition for relief with the Commission.

The matter was forwarded to the Division of Administrative Hearings for formal proceedings on June 15, 1992.

While there has been some discrepancy as to the factual allegations supporting Petitioner's claim, he has consistently based such allegations on religious discrimination. That is, that all acts complained of occurred because the Respondent has discriminated against Petitioner on account of his religious beliefs.

The case was previously heard by Hearing Officer Daniel Manry on December 16-17, 1992. Because a transcript was not provided, and the parties were unable to stipulate to the entry of a recommended order without a transcript, the matter was scheduled to be retried.

At the second hearing, the Petitioner testified in his own behalf and presented the testimony of Tanya L. Speights, a senior investigator with the Palm Beach County Office of Equal Opportunity. Petitioner's exhibits marked for identification as 2A through 2G, 5, 13, 18, 20, 23, 24, and 25 were admitted into evidence.

The Respondent presented the testimony of Harry Weiner, president of the Respondent's board of directors; Henry Breier, former member of the board of directors; and Carol Gesner, a resident at LaFontana apartments. The Respondent's exhibits numbered 1 through 11 were admitted into evidence.

The second hearing was conducted on February 2 and 3, 1994. The transcript of the proceeding was filed with the Division of Administrative Hearings on March 25, 1994. By agreement of the parties the proposed recommended orders were to be filed within thirty days of the transcript.

Petitioner filed a motion for extension of time to file post-hearing brief on May 2, 1994. Such motion represented that Petitioner required until May 6, 1994 to file. Such motion did not comply with the instructions to counsel issued at the conclusion of the hearing. To date, the Petitioner has not filed a proposed recommended order or a post-hearing brief. Specific rulings on the proposed findings of fact submitted by Respondent are addressed in the appendix at the conclusion of this order.

FINDINGS OF FACT

1. Petitioner, Josef Schneider, is a resident of LaFontana Cooperative Apartments (LaFontana) which is located at 2800 North Flagler Drive, West Palm Beach, Florida.

   
   

2. LaFontana is a cooperative apartment building consisting of 140 units.

   
   

3. Petitioner has resided at LaFontana since November of 1984.

   
   

4. By his definition, Petitioner is an orthodox Hasidic Jew. To evidence his beliefs, Petitioner wears an undergarment known as the "Fringes of Prayer," and, at all times, a yarmulke on his head.

   
   

5. Other Jews who are less orthodox or less conservative do not follow the wearing of the garments as strictly as Petitioner chooses to do.

   
   

6. At all times material to the allegations of this case, approximately forty to fifty percent of the units at LaFontana were owned by Jews. According

   to Petitioner such Jews either do not know the laws of their faith or do not observe the laws as well as he does.

   
   

7. In 1991, a mezuzah was ripped down from Petitioner's door, broken in half, and the parchment inside was desecrated. A mezuzah is a religious symbol for Jews and holds, according to Petitioner, the Jewish Code of Ethics and Conduct. No evidence was presented as to who committed this act.

   
   

8. Earlier, prior to the mezuzah incident, but at an unspecified time, Petitioner's black guests were treated in a derogatory manner by a doorman. On another occasion a resident who observed Petitioner in an elevator with a black female guest reportedly stated, "Oh my God, a black and a Jew together."

   
   

9. Petitioner reported the mezuzah incident to the Respondent's board of directors by advising the building manager of the incident and by telling Harry Weiner, a member of the board at the time.

   
   

10. On another occasion, a pigeon with a Star of David attached to it was left on Petitioner's door stoop. No evidence was presented as to who committed this act.

    
    

11. The Respondent's board of directors did not take action against anyone in connection with the incidents described above. Although the police were notified, no evidence was presented to establish that the identity of the perpetrator(s) was ever determined. Petitioner's speculation as to the identity of a perpetrator has not been deemed credible or sufficient in substance to support a finding of fact.

    
    

12. Another subsequent incident in which Petitioner discovered vomit on his door was also unsolved as to the perpetrator's identity.

    
    

13. Petitioner maintains that several individuals, all of whom reside at LaFontana and some of whom are Jewish themselves, have made derogatory remarks toward him. Some of the remarks included references to Petitioner's faith, such as "despicable Jew" and "dirty little Jew." Some of the remarks were reportedly made by either past board members, committee members, or others who later became committee members.

    
    

14. Petitioner reported all of these slights to the Respondent's board.

    
    

15. Petitioner contacted the police again when he discovered a Star of David made out of barbed wire on his door. Again, the identity of the perpetrator(s) of the act is unknown. Neither the police nor the Respondent's board took action.

    
    

16. During his residence at LaFontana Petitioner has reported the Respondent for numerous electrical, plumbing, or building violations. Such complaints were made to city authorities and resulted in repairs; the costs for which were assessed to the unit owners. A "retro fit" project, for example, resulted in an expenditure in excess of $200,000.

    
    

17. Also, Petitioner has taken pictures of the LaFontana residents when he thought a rule or regulation was being violated. These photographs were in addition to those he took of the building conditions he considered to be defects.

18. Petitioner did not seek anyone's permission before taking the pictures and considers that he has an absolute right to take such photos.

    
    

19. Similarly, Petitioner took a videocamera into a business meeting of the finance committee. Persons attending the meeting were annoyed by the Petitioner's use of the camera and, after a confrontation, the police were summoned.

    
    

20. During the course of the police investigation of the matter, Petitioner was detained as he was creating a disruption by attempting to film the residents and by arguing in protest to the circumstances. Later, Petitioner was released.

    
    

21. The Respondent's board has never voted to approve or has in any manner condoned the acts complained of by Petitioner.

    
    

22. The Respondent's board has attempted to respond to Petitioner's complaints but has not acted to mediate or resolve the issues of conflict between individual residents of the cooperative and Petitioner.

    
    

23. Petitioner has caused some residents of LaFontana to be uncomfortable around him and thus he is avoided.

    
    

24. Petitioner has not been slighted by nor discriminated against by the Respondent based upon his religious beliefs.

    
    

25. While Respondent was unsuccessful in evicting Petitioner, a money judgment against Petitioner has been upheld by the appellate court. Thus, the greater weight of the evidence supports the finding that the acts complained of by Petitioner resulted not because of discrimination against him as an orthodox Hasidic Jew but because of numerous other issues that have created severe frictions within LaFontana.

    
    

    CONCLUSIONS OF LAW

    
    

26. The Division of Administrative Hearings has jurisdiction over the parties to, and the subject matter of, these proceedings.

    
    

27. Section 760.23, Florida Statutes, provides, in part:

    
    

    (2) It is unlawful 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 race, color, national origin, sex, handicap, familial status, or religion.

    
    

28. Pursuant to Section 760.34(5), Florida Statutes, the burden of proof is on the complainant, in this case the Petitioner, to establish the allegations supporting the claim of discrimination.

    
    

29. If a discriminatory housing practice has occurred or is about to occur, a recommended order prohibiting the practice and recommending affirmative relief from the effects of the practice, including quantifiable damages and reasonable attorney's fees and costs may be entered. See Section 760.35(3)(b), Florida Statutes.

30. In this case, however, the Petitioner has failed to meet his burden of proof. The Respondent does not have an absolute duty to insulate its residents from acts of vandalism. The building had a security guard and police were notified in each case. The identity of the perpetrator(s) of the acts is unknown. Clearly the Respondent did not support or condone the acts Petitioner complained of nor did the Petitioner, except by speculation, relate the acts to Petitioner's religious beliefs. From the evidence presented it is apparent that Petitioner's religious beliefs or practices were not the motivating factors if residents of the cooperative were involved in the acts complained of in this cause. Clearly, the Petitioner did not establish that the Respondent committed such acts.

RECOMMENDATION

Based on the foregoing, it is, hereby, RECOMMENDED:

That Florida Commission on Human Relations enter a final order dismissing Petitioner's claim of discrimination.

DONE AND RECOMMENDED this 24th day of June, 1994, in Tallahassee, Leon County, Florida.

Joyous D. Parrish Hearing Officer

Division of Administrative Hearings The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-1550

(904)488-9675

Filed with the Clerk of the Division of Administrative Hearings this 24th day of June, 1994.

APPENDIX TO RECOMMENDED ORDER, CASE NO. 92-3578

Rulings on the proposed findings of fact submitted by the Petitioner:

1. None submitted.

Rulings on the proposed findings of fact submitted by the Respondent:

Respondent's proposed findings of fact were submitted under headings which described the basis for the finding. While not in a form which readily allows acceptance or rejection, the following is an attempt to do so:

Re: I. Findings of fact-documentary evidence:

1. Paragraphs 1 through 4 are rejected as recitation or characterization of exhibit not a finding of fact.

2. Paragraph 5 is rejected as argument and recitation or characterization of exhibit not a finding of fact.

3. Paragraph 6 is rejected as irrelevant and recitation or characterization of exhibit not a finding of fact.

Re: II. Findings of fact-Testimony:

1. The substance of paragraph 1 (as to the stipulation of the parties) is accepted.

2. Paragraph 2 is rejected as comment not a finding of fact.

3. In substance paragraph 3 is accepted.

4. Paragraph 4 is rejected as irrelevant, argument, or comment on testimony not in form of finding of fact.

5. Paragraphs 5 through 8 are rejected as recitation or characterization of testimony not in the form of a finding of fact.

6. Paragraph 9 is rejected as irrelevant.

7. Paragraph 10 is rejected as argument, recitation or characterization of testimony not in the form of a finding of fact.

8. Paragraph 11 is rejected as irrelevant.

9. Paragraphs 12 and 13 are rejected as recitation or characterization of testimony not in the form of a finding of fact.

10. Paragraphs 14 and 15 are accepted in substance.

11. Paragraph 16 is rejected as argument, recitation or characterization of testimony not in the form of a finding of fact.

12. Paragraph 17 is rejected as irrelevant, recitation or characterization of testimony not in the form of a finding of fact.

13. Paragraph 18 is rejected as irrelevant.

14. Paragraphs 19 through 22 are accepted in substance.

15. Paragraph 23 is rejected as irrelevant.

16. Paragraph 24 is rejected as argument.

17. Paragraphs 25 and 27 are rejected as irrelevant.

18. Paragraph 26 is rejected recitation or characterization of testimony not in the form of a finding of fact.

COPIES FURNISHED:

Jacob A. Rose

JACOB A. ROSE, P.A.

Flagler Court Building, Suite 305

215 Fifth Street

West Palm Beach, Florida 33401

Shepard Lesser

LESSER & LESSER, P.A.

909 N. Dixie Highway

West Palm Beach, Florida 33401

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

All parties have the right to submit written exceptions to this Recommended Order. All agencies allow each party at least 10 days in which to submit written exceptions. Some agencies allow a larger period within which to submit written exceptions. You should contact the agency that will issue the final order in this case concerning agency rules on the deadline for filing exceptions to this Recommended Order. Any exceptions to this Recommended Order should be filed with the agency that will issue the final order in this case.

Docket for Case No: 92-003578

Orders for Case No: 92-003578