STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

RUBY JEWELL PERL,

Petitioner,

vs.

GRAND OAKS VILLAS, INC., AND JABARI ABDULSAMAD,

Respondents.

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) Case No. 04-1353

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RECOMMENDED ORDER

A hearing was held, pursuant to notice, on July 13, 2004, in Pensacola, Florida, before the Division of Administrative Hearings by its designated Administrative Law Judge, Barbara J. Staros.

APPEARANCES

For Petitioner: Ruby Jewell Perl, pro se

8205 Kipling Street, Apartment B Pensacola, Florida 32514

For Respondent: Jabari Abdulsamad, pro se

Grand Oak Villas, Inc.

288 East Olive Road Pensacola, Florida 32514

STATEMENT OF THE ISSUE

Whether Petitioner has been subjected to an unlawful housing practice by Respondent, as alleged in the Housing Discrimination Complaint filed by Petitioner on April 9, 2003.

PRELIMINARY STATEMENT

On April 9, 2003, Petitioner, Ruby Jewell Perl, filed a Housing Discrimination Complaint with the Florida Commission on Human Relations (FCHR), which alleged that Respondents, Grand Oaks Villas, Inc. (Grand Oaks Villas), and Jabari Abdulsamad, violated Section 760.230, Florida Statutes (2003), by discriminating against her on the basis of her gender.

The allegations were investigated, and on March 8, 2004, FCHR issued its Determination of No Reasonable Cause.

A Petition for Relief was filed by Petitioner on April 9, 2004. FCHR transmitted the case to the Division of Administrative Hearings (Division) on or about April 16, 2004. A Notice of Hearing was issued on May 5, 2004, setting the case for formal hearing on July 13, 2004.

At hearing, Petitioner testified on her own behalf and presented the testimony of Victor Schneider, Miriam Lewis, Michael Logsdon, Sherley Bachtold, Margaret Sue Tabor, Mary Hawks, and Jabari Abdulsamad. Petitioner did not offer any exhibits into evidence. Respondents presented the testimony of Jabari Abdulsamad, owner and manager of Grand Oaks Villas.

Respondent offered into evidence Exhibits A through R which were admitted into evidence. Respondents were granted leave to file Exhibit lettered S, which was filed the day after the hearing.

The hearing has not been transcribed. Respondents filed a post-hearing submission on July 28, 2004, which has been considered in the preparation of this Recommended Order.

Petitioner filed a post-hearing submission on August 2, 2004. Petitioner’s post-hearing submission has been duly considered. However, the statements by Petitioner regarding matters that are not part of the hearing record not permitted and have not been considered. Moreover, statements of witnesses and non-witnesses have been filed after the hearing. Such statements were not solicited by the undersigned, are not authorized by the Administrative Procedures Act and, therefore, have not been considered in the preparation of this Recommended Order.1/

FINDINGS OF FACT

1. Petitioner, Ruby Jewell Perl, moved into Grand Oaks Villas in October 1999. She signed a lease for a two-bedroom apartment. After moving into the apartment, she made application for and received public assistance in renting the apartment in April 2000.

2. Grand Oaks Villas is an apartment complex located in Pensacola, Florida. Many of the residents are retired. The lease between Petitioner and Grand Oaks Villas, signed in April 2000, reflected that a portion of the rent would be paid

   by the Public Housing Assistance Program. The lease, which was for Apartment 13A, requires a 30-day written notice for

   termination of the lease after the initial year of the lease. The lease reflects that Petitioner paid a security deposit of

   $200 in April 2000.

   
   

3. Respondent, Jabari Abdulsamad, took ownership of Grand Oak Villas in June 2001. He became the owner/manager of the apartment complex.

4. At some point in early April 2002, Petitioner began discussions with Mr. Abdulsamad regarding the amount of rent she was paying for the two-bedroom apartment and the possibility of moving to a one-bedroom apartment. Petitioner was exploring these options because the amount of rent for the two-bedroom apartment was more than she could afford. Initially,

   Mr. Abdulsamad showed a one-bedroom apartment to Petitioner.

   
   

5. There is conflicting evidence as to whether he actually made an offer to Petitioner to move into a one-bedroom apartment for $485 per month. There is no disagreement, however, that

   Mr. Abdulsamad insisted that Petitioner put her request to transfer to a one-bedroom apartment in writing. There is no evidence that Petitioner put such a request in writing.

6. In late April 2002, Petitioner and Respondents entered into an amendment to the lease in which Petitioner’s portion of the rent for her two-bedroom apartment was to be $326 per month, and the remaining rent of $249 per month was to be paid by the Public Housing Assistance Program, effective May 1, 2002.

7. In late October 2002, Petitioner gave Mr. Abdulsamad two written notices of intent to vacate the apartment in 30 days. One notice was handwritten; one notice was on a form.

8. On November 5, 2002, Mr. Abdulsamad wrote to Petitioner demanding payment of her portion of the rent for November. The letter stated that the housing authority paid their part, in full, but that she owed the balance of $153.26. The letter notified Petitioner that he would file eviction papers the following day if the rent was not paid in full.

9. An eviction action was filed resulting in court costs of $104.87. Petitioner paid the outstanding rent into the court registry and vacated the property. Mr. Abdulsamad deducted the court costs out of the $200 security deposit and refunded the difference of $95.13 to Petitioner.

10. Despite the eviction and legal matters surrounding the eviction, Petitioner’s main complaint regarding her charge of discrimination apparently stems from her desire to move from a two-bedroom apartment to a one-bedroom apartment. She was very upset about Mr. Abdulsamad’s insistent requests that she put her requests in writing and felt she was not treated fairly. Additionally, there were disputes regarding pet deposits and the ownership of the washer and dryer in her apartment. However, these and many other matters raised in the hearing concerned

    business issues, rather than discrimination issues, and are outside the scope of this proceeding.2/

11. Miriam Lewis also resided at Grand Oaks Villas. When she initially moved into Grand Oaks Villas, she was shown a one- bedroom apartment and wished to move into it. She was told it was already rented to a tenant receiving public housing assistance. Consequently, she moved into a two-bedroom apartment. She eventually transferred into a one-bedroom apartment. She described Mr. Abdulsamad as very cooperative regarding her transfer from a two-bedroom to a one-bedroom apartment.

12. From the weight of the testimony, it is apparent that there is a great deal of friction among residents of Grand Oaks Villas. However, the testimony in the record, while establishing that there are a number of disgruntled tenants at Grand Oaks Villas, did not establish that Mr. Abdulsamad discriminated against Petitioner on the basis of her gender.

13. There is insufficient evidence in the record that a male was offered a one-bedroom apartment at the time Petitioner desired to rent one or that a male was offered more favorable rent or other conditions of tenancy.

    CONCLUSIONS OF LAW

    
    

14. The Division of Administrative Hearings has jurisdiction over the parties and subject matter in this case.

    §§ 120.569 and 120.57, Fla. Stat. (2003).

    
    

15. Section 760.23, Florida Statutes (2003), reads in pertinent part as follows:

    Discrimination in the sale or rental of housing and other prohibited practices.--

    
    

    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.

       
       

    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.

       
       

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       (4) It is unlawful to represent to any person because of race, color, national origin, sex, handicap, familial status, or religion that any dwelling is not available for inspection, sale, or rental when such dwelling is in fact so available.

       
       

16. Petitioner has the burden of proving by a preponderance of the evidence that Respondents violated the Florida Fair Housing Act. § 760.34(5), Fla. Stat. (2003).

17. The well-established, three-part burden of proof test developed in McDonnell Douglass Corp. v. Green, 411 U.S. 792 (1973), is used in analyzing cases brought under the Federal Fair Housing Act:3/

    First, the plaintiff has the burden of proving a prima facie case of discrimination by a preponderance of the evidence. Second, if the plaintiff sufficiently establishes a prima facie case, the burden shifts to the defendant to articulate some legitimate, nondiscriminatory reason for its action.

    Third, if the defendant satisfies this burden, the plaintiff has the opportunity to prove by a preponderance that the legitimate reasons asserted by the defendant are in fact mere pretext.

    
    

    United States Department of Housing and Urban Development v. Blackwell, 908 F.2d 864, 872 (11th Cir. 1990), quoting Pollitt

    v. Bramel, 669 F. Supp 172, 175 (S.D. Ohio 1987).

    
    

18. Petitioner has not established a prima facie case of housing discrimination. While Petitioner is a member of a protected class (female), there is insufficient evidence in the record to conclude that Mr. Abdulsamad's actions regarding her request to transfer from a two-bedroom to a one-bedroom apartment was based on her gender. Further, there is insufficient evidence that a male was offered a one-bedroom apartment at the time Petitioner sought to transfer apartments or was given preferential terms, conditions, or privileges of

    tenancy. Regarding the eviction, Petitioner conceded that she had not paid the entire month’s rent.

19. Even if Petitioner had established a prima facie case, the burden to go forward would shift to Mr. Abdulsamad to articulate a legitimate, non-discriminatory reason for his actions. The request to transfer was not in writing. Whether or not this was Mr. Abdulsamad’s entire reason for not facilitating Petitioner’s transfer to a one-bedroom apartment, the evidence of record is insufficient to reach a conclusion that his actions were based on Petitioner’s gender. Further, the reason for the eviction proceeding was based upon the full rent not being paid.

20. Finally, there is insufficient evidence in the record establishing that Mr. Abdulsamad's reasons were pretextual.

RECOMMENDATION

Based upon the foregoing Findings of Fact and Conclusions of Law set forth herein, it is

RECOMMENDED:

That the Florida Commission on Human Relations enter a final order dismissing the Petition for Relief.

DONE AND ENTERED this 20th day of August, 2004, in Tallahassee, Leon County, Florida.

BARBARA J. STAROS

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 August, 2004.

ENDNOTES

1/ Statements by Petitioner regarding conversations held outside the hearing are inadmissible and have not been considered.

Post-hearing documentation, including letters not in evidence, are outside the record and inadmissible. Written post-hearing statements of witnesses attempting to clarify testimony are inadmissible. Post-hearing written statements by others requesting that matters in other proceedings, over which neither the undersigned nor FCHR has jurisdiction, are not permitted and have not been considered. Requests for the undersigned to collect information outside of the hearing or conduct investigations are not permitted. Nothing of an evidentiary nature outside the record is permitted to be considered in the writing of this Recommended Order. See § 120.57(1)(f), Fla.

Stat. (2003).

2/ Whether or not Respondent’s actions are a violation of the Landlord-Tenant Act, or of any law other than the Florida Fair Housing Act, is beyond the scope of this proceeding.

3/ When Florida law is modeled after federal law on the same subject, the Florida law will take on the same construction as the federal law provided that the interpretation is harmonious

with the spirit and policy of Florida law. See Brand v. Florida Power Corp., 633 So. 2d 504, 509 (Fla. 1st DCA 1994).

COPIES FURNISHED:

Denise Crawford, Agency Clerk

Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100

Tallahassee, Florida 32301

Jabari Abdulsamad Grand Oak Villas, Inc.

288 East Olive Road Pensacola, Florida 34685

Ruby Jewell Perl

8205 Kipling Street, Apartment B Pensacola, Florida 32514

Cecil Howard, General Counsel

Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100

Tallahassee, Florida 32301

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: 04-001353

Orders for Case No: 04-001353