STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

EARLINE MACY, )

)

Petitioner, )

)

vs. ) Case No. 96-4420

)

CARIBE CLUB CO-OPERATIVE )

APARTMENTS, INC., and THE )

BOARD OF DIRECTORS, )

)

Respondents. )

)

RECOMMENDED ORDER

Pursuant to notice, a formal hearing was held in this case on February 2, 1999, at West Palm Beach, Florida, before Claude

B. Arrington, a duly-designated Administrative Law Judge of the Division of Administrative Hearings.

APPEARANCES

For Petitioner: J. K. Kivisto, Esquire

Kivisto Law Firm

1010 Tenth Avenue, North, Suite 2 Lake Worth, Florida 33460-2107

For Respondent: David A. Core, Esquire

St. John, Dicker, Caplan, Krivok & Core, P.A.

500 Australian Avenue South, Suite 600 West Palm Beach, Florida 33401

STATEMENT OF THE ISSUES

Whether Respondents engaged in a discriminatory housing practice against Petitioner in violation of the Florida Fair Housing Act (Sections 760.20 through 760.37, Florida Statutes).

PRELIMINARY STATEMENT

Petitioner's application to purchase a share of stock in the Caribe Club Cooperative Apartments, Inc. (Caribe Club) and to be issued a proprietary lease to an apartment was rejected at a stockholders' meeting held January 22, 1996. Petitioner thereafter filed a housing discrimination complaint against Respondents on March 7, 1996, alleging that Respondents discriminated against her based on her religion (Presbyterian), sex (female), and national origin (Native American) in violation of the Florida Fair Housing Act and the Federal Fair Housing Act. At various times, Petitioner has alleged her age and disability as additional grounds of discrimination. The Florida Commission on Human Relations investigated the complaint and issued a "Determination of No Reasonable Cause" on August 14, 1996.

Petitioner thereafter filed a Petition for Relief, the matter was referred to Division of Administrative Hearings, and this proceeding followed. For the reasons recited therein, this file was closed by Administrative Law Judge Errol H. Powell on

April 15, 1997. The case was reopened by order of Judge Powell on November 5, 1998. On February 1, 1999, the case was transferred to the undersigned due to an illness in Judge Powell's family.

At the formal hearing, Petitioner expressly waived all allegations of discrimination on the basis of religion, age, national origin, and disability. At the formal hearing,

Petitioner limited her complaint to the contention that Respondents discriminated against her because she had lived with another tenant without benefit of marriage, thereby violating her constitutional rights to privacy and free association.

At the formal hearing, Petitioner testified on her own behalf and presented the additional testimony of Quentin Mason and Florence Senn. Mr. Mason and Ms. Senn are residents of the Caribe Cluob. In addition, Mr. Mason is Petitioner's boyfriend. Petitioner presented three exhibits, each of which was accepted into evidence. Respondent presented the testimony of Francis A. Phillip, Jr., Joseph M. Reed, Jr., and Fernan Roy. All of Respondent's witnesses were residents of the Caribe Club and participated in the stockholders' meeting of January 22, 1996.

Respondent presented seven exhibits, each of which was accepted into evidence.

A transcript of the proceedings has been filed. The Petitioner and Respondent filed post-hearing submittals, which have been duly-considered by the undersigned in the preparation of this Recommended Order.

FINDINGS OF FACT

1. Respondent, Caribe Co-Operative Club Apartments, Inc. (Caribe Club), is a Florida not-for-profit corporation and a

   co-operative association that owns the apartment complex at issue in this proceeding located in Lake Worth, Florida. There are twenty-one apartments in the Caribe Club.

2. The apartments constituting the Caribe Club are subject to duly-enacted bylaws and to a form proprietary lease. These documents govern the management of the co-operative association and specify the terms and conditions of each tenancy.

3. An existing lease cannot be transferred until the transaction has been approved by the stockholders of the Caribe Club. If the transaction is approved, the prospective lessee is required to purchase a share of stock in the cooperative association and execute the form proprietary lease.

4. The existing lessee and the proposed transferee are required to apply to the board of directors for approval of the proposed transaction. The board is then required to convene a meeting of the stockholders, at which the proposed transaction is discussed and the prospective lessee may be interviewed. Thereafter, a vote by secret ballot is taken, with each apartment having one vote. A two-thirds affirmative vote of the stockholders voting at the meeting is required for approval of the proposed transaction.

5. Petitioner agreed to purchase the apartment at the Caribe Club owned by Phyllis McAuliffe for the sum of $13,500. As required by the bylaws of the Caribe Club, Petitioner and Ms. McAuliffe requested approval of the proposed transfer and Petitioner submitted her personal financial information in addition to the application.

6. For approximately a year before she decided to purchase the McAuliffe lease, Respondent lived in the Caribe Club apartment leased by Quentin Mason, her boyfriend.

7. After she and Ms. McAuliffe had come to terms, but before she submitted her request for approval to the board of directors, Petitioner painted and cleaned the McAuliffe apartment. In addition, she replaced a door.

8. At all times pertinent to this proceeding, the Caribe Club had a president, two vice-presidents, a secretary, and a treasurer. These officers constituted the board of directors. Francis A. Phillip, Jr., the president of the Caribe Club, reviewed Petitioner's application and her supporting financial information. As required by the bylaws, Mr. Phillip called a special meeting of the stockholders for January 22, 1996, to consider the application.

9. After her financial information was determined to be in order, Petitioner was briefly interviewed and then excused from the meeting. The only discussion of the proposed transfer consisted of Fernand Roy making a statement against the transaction and Mr. Mason giving a response. The proposed transaction was rejected by the vote by secret ballot that followed. Of the twelve voting stockholders at the meeting, seven voted against the transaction and five voted in favor. To the knowledge of the witnesses who testified, this was the first occasion that a prospective transfer had been rejected.

10. The following stockholders were present at the meeting: Mr. and Mrs. Brooks (with one vote), Mr. Mason, Mr. and Mrs. Todd (with one vote), Mrs. Knutson, Mrs. Loomis, Mrs. Mack, Mrs. Senn, Mrs. Lambert, Mrs. Tognacci, Mr. Phillip, Mr. Reed, and Mr. Roy.

11. At the formal hearing, there was competent evidence as to how five stockholders voted and the reasons of those who voted against the transaction. Mr. Mason and Mr. Reed voted for the transaction. Mr. Roy, Ms. Senn, and Mr. Phillip voted against the transaction. The Petitioner did not establish by competent evidence how the other individual stockholders voted or the reason for their votes. 1/

12. Fernand Roy participated in the stockholder meeting as a voting stockholder. Mr. Roy and Petitioner's boyfriend,

    Mr. Mason, had a long-standing feud. Mr. Roy did not want Petitioner to become a stockholder because she would then be able to support Mr. Mason's positions on various issues pertaining to management of the Caribe Club.

13. Florence Senn participated in the stockholder meeting as a voting stockholder. Ms. Senn voted against the proposed transaction because she did not like the fact that Petitioner and Mr. Mason had been living together without the benefit of marriage. Ms. Senn did not discuss her position on the matter with anyone prior to the vote being taken. Ms. Senn told Petitioner before the vote was taken that if the stockholders rejected her application it would be because she was Mr. Mason's

    girlfriend. Ms. Senn was of the opinion following the vote that most of the stockholders who voted against the transaction did so because they did not like Mr. Mason.

14. Mr. Phillip participated in the stockholder meeting as the presiding officer and as a voting stockholder. Mr. Phillip voted against the proposed transaction because he believed that Petitioner's entering the McAuliffe unit to paint, clean, and make repairs before the stockholders had approved the transaction evidenced an unwillingness on her part to comply with the bylaws and rules and regulations of the Caribe Club. Mr. Phillip testified that he had told Petitioner not to work in the apartment before the transaction was approved, but that she did so anyway. Before the meeting, Mr. Phillip mentioned to one or two other stockholders that Petitioner was working on the McAuliffe apartment, but he did not discuss his position on the transaction with anyone prior to the vote being taken.

15. The evidence did not establish that any stockholder voted against the proposed transaction based on Petitioner's age, national origin, sex, handicap, familial status, or religion. 2/

    CONCLUSIONS OF LAW

    
    

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

17. Sections 760.20 through 760.37, Florida Statutes, constitute the Florida Fair Housing Act. There is no dispute

    that the Caribe Club is a "covered mutifamily dwelling" as defined by Section 760.22(2), Florida Statutes, and, consequently, subject to the provisions of the Florida Fair Housing Act.

18. Section 760.23(1), Florida Statutes, provides as follows:

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

       
       

19. Section 760.35, Florida Statutes, provides for enforcement of complaints of discrimination within the purview of the Florida Fair Housing Act. Section 760.35(5), Florida Statutes, places the burden of proof on the complainant, which, in this case, is the Petitioner.

20. Petitioner failed to establish that Respondents rejected her proposed transaction based on her race, color, national origin, sex, handicap, familial status, or religion. Petitioner limited her allegations at the formal hearing to the contention that her proposed transaction was rejected because she was friends with Mr. Mason, thereby infringing on her right to free association and her right of privacy. The grounds of discrimination relied upon by Petitioner were not factually proven. Moreover, the grounds of discrimination alleged by

Petitioner at the formal hearing are not within the purview of the Florida Fair Housing Act.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Florida Commission on Human Relations enter a final order dismissing Petitioner's discriminatory housing complaint and Petition for Relief.

DONE AND ENTERED this 20th day of May, 1999, in Tallahassee, Leon County, Florida.

CLAUDE B. ARRINGTON

Administrative Law Judge

Division of Administrative Hearings The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-3060

(850) 488-9675 SUNCOM 278-9675

Fax Filing (850) 921-6847 www.doah.state.fl.us

Filed with the Clerk of the Division of Administrative Hearings this 20th day of May, 1999.

ENDNOTES

1/ It was rumored prior to the vote that the proposed transfer would be rejected because many of the stockholders did not like Mr. Mason and saw rejecting his girlfriend's application- as a means to get back at him for one offense or another.

2/ After the vote of January 22, 1996, Ms. McAuliffee hired an attorney. As a consequence the Caribe Club also hired an attorney. A second stockholder meeting was convened on December 16, 1996, at which time the proposed transaction was unanimously approved.

COPIES FURNISHED:

J. K. Kivisto, Esquire Kivisto Law Firm

1010 Tenth Avenue, North, Suite 2 Lake Worth, Florida 33460-2107

David A. Core, Esquire St. John, Dicker, Caplan

Krivok & Core, P.A.

500 Australian Avenue South Suite 600

West Palm Beach, Florida 33401

Sharon Moultry, Clerk

Florida Commission on Human Relations Building F, Suite 240

325 John Knox Road

Tallahassee, Florida 32303-4149

Dana Baird, General Counsel

Florida Commission on Human Relations Building F, Suite 240

325 John Knox Road

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: 96-004420

Orders for Case No: 96-004420