STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

INGRID GOMEZ AND LUIS MORAN,

Petitioners,

vs.

JIM HILL, JUDY HILL, AND DEMARCO INVESTMENTS,

Respondents.

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) Case No. 04-1969

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RECOMMENDED ORDER

Pursuant to notice, a final hearing was held on August 18, 2004, in Fort Myers, Florida, before Lawrence P. Stevenson, a duly-designated Administrative Law Judge of the Division of Administrative Hearings.

APPEARANCES

For Petitioners: Ingrid Gomez, pro se

4229 Golden Gate Parkway Naples, Florida 34116

For Respondent Demarco Investments, LLC:

Antonio Faga, Esquire Demarco Investments, LLC 7955 Airport Road, North Suite 101

Naples, Florida 34109 For Respondents Jim and Judy Hill:

No appearance

STATEMENT OF THE ISSUE

Whether Petitioners have been subjected to an unlawful housing practice by Respondents, as alleged in the Housing Discrimination Complaint filed by Petitioners on March 13, 2004.

PRELIMINARY STATEMENT

On March 13, 2004, Petitioners, Ingrid Gomez and Luis Moran, filed a Housing Discrimination Complaint with the Florida Commission on Human Relations ("FCHR"), which alleged that Respondents, Jim and Judy Hill and DeMarco Investments, LLC ("DeMarco Investments"), violated Sections 804b or f and 818 of Title VIII of the Civil Rights Act of 1968, as amended by the Fair Housing Act of 1988, by discriminating against them on the basis of race and familial status.

The allegations were investigated, and on April 30, 2004, FCHR issued its Determination of No Reasonable Cause.

A Petition for Relief was filed by Petitioner on June 1, 2004. FCHR transmitted the case to the Division of Administrative Hearings ("DOAH") on June 4, 2004. A Notice of Hearing was issued on July 2, 2004, setting the case for formal hearing on August 18, 2004.

At the hearing, Petitioners testified on their own behalf and presented the testimony of their son, Dennis Gomez, and of their neighbor, Roberto Novarro. It must be noted that

Mr. Moran speaks only Spanish. No notice was provided to DOAH

that a translator would be required for the hearing. With the consent of counsel for DeMarco Investments, Ms. Gomez was allowed to translate for her husband. Petitioners' Exhibits 1 through 3 were admitted into evidence. Respondent DeMarco Investments presented the testimony of its principal, Ralph DeMarco, via telephone from his place of business in Pewaukee, Wisconsin. DeMarco Investments did not offer any exhibits into evidence. Respondents Jim and Judy Hill did not appear at the hearing.

The hearing has not been transcribed. Respondent DeMarco Investments filed a post-hearing submission on August 27, 2004, which has been considered in the preparation of this Recommended Order. Petitioners filed a post-hearing submission on

September 1, 2004, which has been duly considered.

Also, on September 1, 2004, Respondents Jim and Judy Hill filed an extensive document explaining their non-appearance at the hearing, setting forth their version of events, and attaching a sheaf of documents. The Hills' submission is not authorized by the Administrative Procedure Act and has not been considered in the preparation of this Recommended Order.

FINDINGS OF FACT

1. Petitioners, Ingrid Gomez and Luis Moran, are married.

   
   

   They and their son moved into Coral Gardens Apartments in early 2000. Petitioners entered into a one-year lease on January 13,

   2000. The lease was not renewed at the end of one year, and Petitioners, thereafter, lived in their apartment as month-to- month tenants.

2. Coral Gardens Apartments is a 36-unit apartment complex located in Naples, Florida. Many of the residents are minorities. Respondent DeMarco Investments is the absentee owner of the complex, which is managed through a Fort Myers company called Services-Taylor Made, Inc. Respondents Jim and Judy Hill were hired to manage the complex in March 2003.

3. At some point in June 2003, Ms. Hill sent a notice to all tenants that stated as follows, set forth verbatim:1/

   Now we have [sic] ask you to please make sure that when you give your children snacks, drinks, or what ever [sic] to eat that you the parent would make sure your children discard the trash inside the unit or in the dumpster.

   
   

   Apparently this went in one ear and out the other.

   
   

   Now all unit [sic] has to suffer this price because no one wants to help keep the trash up by disposing of it yourself [sic]. The adults are getting just as bad.

   
   

   So every unit is going to pay an additional

   $35.00 a month trash clean up fee. You want to live trashy MOVE across the street.

   
   

   So when you pay your July Rent pay an extra

   $35.00 to pay for the person that has to clean up YOUR trash.

   
   

   I sent out letters to everyone that it was

   $25.00 and if it didn't improve I would

   raise it. Well I didn't inforced [sic] the

   $25.00 and it hasn't changed at all. So it [sic] in effect for sure now [sic].

   
   

   YOU WILL PAY $35.00 WITH JULY'S RENT.

   
   

   Now you don't want to pay it next month then start picking up the TRASH!

   
   

   Also from now on you put furniture out at the dumpster it will cost you $50.00 first piece and $15.00 per piece after that. They charge me to come and get the stuff then I charge you. The camera's [sic] will be watching and don't get caught.

   
   

   I hate to inform all of you we are not the old managers, the old owners, the old maintenance personal [sic]. We are new and we are the LAW here. We are working to improve this place and if you can't help with keeping this place clean then I DON"T [sic] want to here [sic].

   
   

   I AM NOT GOING TO LIVE IN A TRASHY PLACE!

   
   

4. After receiving this notice, Mr. Moran and Mr. Novarro went to the manager's office to discuss the propriety of the proposed $35.00 trash pick-up fee. Mr. Moran stated to Ms. Hill that he believed an imposition of such a fee on tenants was against the law. Mr. Moran testified that Ms. Hill stated, "I am the law." Mr. Moran demanded that Ms. Hill give him the phone number of Mr. DeMarco. He told her, "I want to talk to the owner of the circus, not the clowns."

5. Mr. Moran testified that at this point, Ms. Hill became apoplectic. She called Mr. Moran "a fucking nigger Latino."

   Mr. Novarro, whose English was very sketchy, confirmed that Ms. Hill used those words.

6. Ms. Gomez, who speaks relatively fluent English, testified that on another occasion Ms. Hill stated that she was "tired of the fucking negros Latinos." This raised a question whether Ms. Hill also used the term "negros" in her confrontation with Mr. Moran and whether it became "nigger" only in the imperfect translation. In any event, Ms. Hill's use of the word "fucking" was unambiguous and certainly indicated a racial animus against Mr. Moran, who is indeed a black Latino.

7. In a second notice to all tenants dated June 22, 2003, Ms. Hill acknowledged tenant complaints about the $35.00 fee. She had "consulted the Florida Landlord/Tenant Act and state officials in Tallahassee," and concluded that she was required to rescind the $35.00 trash fee. Thus, the controversial fee was never collected.

8. Dennis Gomez, Petitioners' middle-school-aged son, testified that Ms. Hill told him she would pay him $5.00 per week to pick up trash on the property. Mr. Moran told Dennis not to accept, because tenants paid Ms. Hill $10.00 per month to clean up the property. Dennis testified that after he refused the offer, Ms. Hill told him that he had to pick up the trash anyway because he "was a slave." When Dennis asked why he was a

   slave, Ms. Hill stated that Dennis' father was a "nigger and a slave," and that made Dennis a "slave, too."

9. Dennis Gomez' testimony is not credible. There is undoubtedly a kernel of truth in his story, but Dennis' obvious embellishments of his conversations with Ms. Hill render his testimony of doubtful probative value.

10. At some point in June 2003, Ms. Hill served Petitioners with a seven-day notice to vacate the premises, because of her confrontation with Mr. Moran. However, the notice was never enforced and the Petitioners stayed on until August 1, 2003, when they voluntarily terminated their tenancy.

11. There was a problem with the return of Petitioners' deposit. Ms. Gomez contacted Mr. DeMarco, who returned the deposit to Petitioners after a two-month delay caused by cash flow problems with his businesses.

12. Mr. DeMarco credibly testified that he knew nothing of the controversy between Petitioners and Ms. Hill until he received the Housing Discrimination Complaint. His only contact with Petitioners was the telephone conversation with Ms. Gomez in August 2003 concerning the Petitioners' deposit.

13. From the weight of the testimony, it is apparent that there was a great deal of animosity between Petitioners and the Hills. The notices authored by Ms. Hill were crude and insulting, but were not directed toward Petitioners in

    particular. There is credible evidence that on at least one occasion Ms. Hill uttered a derogatory and insulting racial comment to Mr. Moran. However, the record evidence does not demonstrate that Ms. Hill took any action against Petitioners on the basis of their race or familial status.

14. The $35.00 trash fee notice was provided to all tenants. The fee itself was never collected. Petitioners were given a seven-day notice, but it was never enforced. Petitioners chose to vacate their tenancy. No adverse action whatever was taken against Petitioners. DeMarco Investments was unaware of the hostile situation between Petitioners and the Hills. Mr. DeMarco's delay in returning Petitioners' deposit was due to legitimate business reasons.

    CONCLUSIONS OF LAW

    
    

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

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

    
    

16. 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. . . .

       
       

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

18. The well-established, three-part burden of proof test developed in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973), is used in analyzing cases brought under the Federal Fair Housing Act:2/

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, 870 (11th Cir. 1990), quoting

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

18. Petitioners have not established a prima facie case of housing discrimination. While Mr. Moran is a member of a protected class (black), and Ms. Hill made an utterance that unquestionably evinced racial animus, there is no record evidence that any actions were taken by Ms. Hill or any other Respondent because of Petitioners' race or familial status. The statute prohibits acts, not opinions or speech, regardless of how repugnant they might be. See Fletcher v. Hatfield, Case

No. 93-5540 (DOAH June 16, 1994).

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 8th day of September, 2004, in Tallahassee, Leon County, Florida.

S

LAWRENCE P. STEVENSON

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 8th day of September, 2004.

ENDNOTES

1/ All of the Hills' notices and letters to tenants included a Spanish translation. The undersigned assumes this means that Judy Hill, the author, could speak and write in Spanish. This assumption is strengthened by the fact that she had conversations with Mr. Moran, who speaks only Spanish.

2/ 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

Ingrid Gomez Luis Moran

4229 Golden Gate Parkway Naples, Florida 34116

Jim Hill Judy Hill

5242 16th Place Southwest, Unit 303

Naples, Florida 34116

Antonio Faga, Esquire Demarco Investments

7955 Airport Road, North, Suite 101

Naples, Florida 34109

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: 04-001969

Orders for Case No: 04-001969