STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

SANFORD J. GUBERNIK, )

)

Petitioner, )

)

vs. ) CASE NO. 96-4158

) CROCKER DOWNTOWN DEVELOPMENT ) ASSOCIATES, TERRILL JAROSZEWICZ, )

Property Manager, and MIZNER ) ASSOCIATES, LTD., )

)

Respondents. )

)

RECOMMENDED ORDER

Pursuant to notice, the Division of Administrative Hearings, by its duly designated Administrative Law Judge, Susan B. Kirkland, held a formal hearing in this case on January 8, 1997, in Boca Raton, Florida.

APPEARANCES

For Petitioner: Sanford J. Gubernik, Pro Se

212 Northwest 4th Avenue Boca Raton, Florida 33432

For Respondents: Patrick M. Muldowney, Esquire

Shutts and Bowen

20 North Orange Avenue, Suite 1000 Orlando, Florida 32801

STATEMENT OF THE ISSUES

Whether Respondents discriminated against Petitioner on the basis of sex when Respondents denied Petitioner's application to rent an apartment.

PRELIMINARY STATEMENT

Petitioner, Stanford J. Gubernik (Gubernik), filed a complaint with the Florida Commission on Human Relations against the Respondents, Crocker Downtown Development Associates, Terrill Jaroszewicz, and Mizner Associates, Ltd. (collectively referred to as Mizner), alleging that Mizner committed a discriminatory housing practice against him on the basis of gender. The Florida Commission on Human Relations issued a Determination of No Reasonable Cause to believe that a discriminatory housing practice had occurred. Gubernik filed a request for a formal administrative hearing, and the case was forwarded to the Division of Administrative Hearings for assignment to an Administrative Law Judge.

At the final hearing, Petitioner testified on his own behalf. Petitioner's Exhibits 1-13 were admitted in evidence. Respondents called Jan Pratt, Mary

Sims, and Terrill Jaroszewicz as its witnesses. Respondents exhibits 1-4 were admitted in evidence.

No transcript was filed. The parties agreed to file proposed recommended orders on or before January 17, 1997. Respondents filed their Proposed Recommended Order on January 16, 1997. On January 17, 1997, Petitioner advised staff at the Division of Administrative Hearings he would not be filing a Proposed Recommended Order.

FINDINGS OF FACT

1. Mizner Park, located in Boca Raton, Florida, is a mixed use complex, consisting of apartments, retail stores, and offices. The apartment complex is owned and managed by Crocker Downtown Development Associates.

   
   

2. Ms. Terrill Jaroszewicz (Jaroszewicz) is the property manager for Mizner Park. Ms. Mary Sims, who reports to Jaroszewicz, is in charge of the residential apartments in the complex. At the time in question, Ms. Jan Pratt (Pratt) was a leasing consultant for the apartments.

   
   

3. Pratt's duties included taking applications from prospective tenants, processing the applications, and gathering the necessary information needed to make a decision on whether to approve the application. When Pratt had completed processing the application, she would take the application package to Sims, who would review the package and make a decision on whether to approve the application.

   
   

4. Respondents, collectively referred to as Mizner, required that prospective tenants fill out an application form, agree to have a credit check performed, provide sufficient information to verify their current income, agree to a check of the tenants' residency history for the past two years, pay a $50, nonrefundable fee for processing the credit check, and provide a security deposit. Mizner wanted to rent its apartments to tenants who had a good credit history, had a monthly annual income of at least three times the amount of the lease amount, and had a good history as a tenant.

   
   

5. On June 15, 1994, Petitioner, Sanford J. Gubernik (Gubernik), who is a male, met with Pratt and filled out an application to lease an apartment at Mizner Park. Gubernik had omitted his social security number when he completed the application. Pratt advised him that it would be necessary to have his social security number in order to do the credit check. Gubernik was reluctant to give Pratt his social security number and to have a credit check done. He gave Pratt a check for $50 for the credit check and a check for $885 as a security deposit.

   
   

6. Gubernik is an independent contractor who works for a number of sunglass and eyewear companies. His annual income varies each year. When he filled out the application, Pratt asked Gubernik to provide her copies of his income tax returns for the last two years so that she could verify his income for the last two years.

   
   

7. Pratt had a credit check run on Gubernik. Mizner's computers were down on the day that the credit check was performed so the company performing the credit check mailed her a copy of the credit report rather than having her receive the report via the computer, which was the normal method that Pratt received credit reports on prospective tenants.

8. Gubernik had two federal income tax liens, which showed up on his credit report. One lien was dated October, 1993 in the amount of $10,058, and the other lien was dated February, 1991 for $36,829. Pratt advised Sims of the tax liens. Sims told Pratt that she should contact Gubernik and advise him that his credit was a problem. She further advised Pratt that if the credit report was correct and that Gubernik had not satisfied the liens or was not in good standing with the Internal Revenue Service that his application would be denied.

   
   

9. Gubernik had traveled to New Orleans to visit clients. While there he received a message on his cellular telephone that Pratt needed to talk to him. He called Pratt and she advised him that there was a problem with his credit report and he should call the credit reporting company and get a copy of the report. Gubernik advised Pratt that the problem was two tax liens. Pratt advised him that they would hold the apartment but that he needed to come in and get the issue of the tax liens resolved by showing that he was trying to pay off the liens.

   
   

10. When Gubernik returned from New Orleans he took copies of his income tax returns to Pratt. She advised him that she needed verification that he was making payments on the liens. Gubernik became very irate and told Pratt that he had never had a problem because of the tax liens and that he had no intention of paying them. Pratt advised Gubernik that his application was denied because of the tax liens.

    
    

11. Still upset, Gubernik requested to see the manager. Sims was not in the office on that day so Pratt took the application file to Jaroszewicz and told her that a gentleman wanted to talk to her about the denial of his lease application.

    
    

12. Jaroszewicz reviewed the application and immediately saw that the problem was the tax liens that appeared on the credit report.

    
    

13. Pratt showed Gubernik to Jaroszewicz' office. Gubernik was visibly upset. Jaroszewicz told him that there was a problem with his credit report and that Mizner could not approve his lease application. Gubernik offered to pay his rent in advance. However, prepayment of rent was against Mizner's policy because of accounting reasons and the possibility of poor payment in the future when the prepayment amount was depleted. Gubernik offered to have his rent deducted from his monthly checks that he received from a sunglass company. Mizner's policy was not to have the rent deducted from the tenant's paycheck because the employee could change employers.

    
    

14. Gubernik became more and more upset as the conversation with Jaroszewicz continued. Finally Jaroszewicz told Gubernik that there was no need to discuss the matter any further and showed him to the door.

    
    

15. The apartment which Gubernik tried to rent was leased to a male in August, 1994.

    
    

16. On June 2, 1994, a female applied to Mizner to rent an apartment. A credit check was done and revealed that the prospective tenant had two tax liens totalling approximately $36,000. The female's application was denied by Mizner because of the tax liens.

    
    

17. In 1994, Mizner's first time rentals were divided about equally between single males, single females, and families.

18. Gubernik claims that his application was denied not because he had tax liens but because he was a man.

    
    

19. Mizner contends that the only reason that Gubernik's application was denied was because he had two tax liens for over $40,000 which represented meant to Mizner that Gubernik had a bad credit history.

    
    

    CONCLUSIONS OF LAW

    
    

20. The Division of Administrative Hearings has jurisdiction over the parties to and the subject matter of this proceeding. Section 120.57(1), Florida Statutes.

    
    

21. As it pertains to this case, Section 760.23 (1), Florida Statutes, provides:

    
    

    It is unlawful to refuse to sell or rent after the making of a bonafide offer, to refuse to negotiate for the sale or rental of, or otherwise to make unavailable to deny a dwelling to any person because of race, color, national origin, sex, handicap, familial status, or religion.

    
    

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

    
    

23. Gubernik has failed to meet his burden to establish that Respondents discriminated against him on the basis of his sex. The evidence is clear that Respondents did not approve Gubernik's application for a lease because of his credit history. He had substantial outstanding tax liens. Respondents have denied a female's application for having similar tax liens. Respondents rented the apartment for which Gubernik was applying to a male. The Respondents rent the apartments to both males and females equally.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a Final Order be entered finding that Crocker Downtown

Development Associates, Terrill Jaroszewicz, and Mizner Associates, Ltd. did not commit a discriminatory housing practice against Sanford J. Gubernik and denying his petition for relief.

DONE AND ENTERED this 21st day of January, 1997, in Tallahassee, Leon County, Florida.

SUSAN B. KIRKLAND

Administrative Law Judge

Division of Administrative Hearings The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-3060

(904) 488-9675 SUNCOM 278-9675

Fax Filing (904) 921-6847

Filed with the Clerk of the Division of Administrative Hearings this 21st day of January, 1997.

COPIES FURNISHED:

Sanford J. Gubernik

212 Northwest 4th Avenue Boca Raton, Florida 33432

Patrick M. Muldowney, Esquire Shutts & Bowen

20 North Orange Avenue Orlando, Florida 32801

Sharon Moultry, Clerk Commission on Human Relations

325 John Knox Road, Building F, Suite 240 Tallahassee, Florida 32303-4149

Dana Baird, General Counsel Commission on Human Relations

325 John Knox Road, Building F, Suite 240 Tallahassee, Florida 32303-4149

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 filed with the agency that will issue the final order in this case.

Docket for Case No: 96-004158

Orders for Case No: 96-004158