STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

MARK WHITTINGTON,

Petitioner,

vs.

STERLING ONE REALTY AND WILLIAM ALVAREZ,

Respondents.

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) Case No. 05-0090

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RECOMMENDED ORDER

Pursuant to notice, a final hearing was conducted on

June 29, 2005, in Miami, Florida, before Claude B. Arrington, a duly-designated Administrative Law Judge of the Division of Administrative Hearings (DOAH).

APPEARANCES

For Petitioner: Mark Whittington, pro se

1101 98th Street, Apartment 6 Bay Harbor, Florida 33154

For Respondents: Chad J. Tamaroff, Esquire

Greenspoon, Marder, Hirschfeld, Rafkin, Ross & Berger, P.A.

Trade Center South, Suite 700

100 West Cypress Creek Road Fort Lauderdale, Florida 33309

STATEMENT OF THE ISSUES

Whether Respondents discriminated against Petitioner in violation of the Fair Housing Act1 as alleged in the Petition for

Relief filed by Petitioner with the Florida Commission on Human Relations (FCHR) on January 7, 2005.

PRELIMINARY STATEMENT

Respondent Alvarez is a real estate broker and the corporate Respondent is his corporation. At the times relevant to this proceeding, Eli Maine, the owner of a four-unit apartment building (the Building) located in Miami, employed Respondents to represent him in the sale of the Building.

Petitioner was a tenant in one the units in the Building prior to the sale of the Building.

Petitioner filed a complaint with the Federal Department of Housing and Urban Development (HUD) in September 10, 2004, alleging that Respondents discriminated against him on the basis of his race in violation of the Fair Housing Act. That complaint was referred by HUD to FCHR to conduct an investigation. After THE investigation, FCHR entered a “Notice of Determination of No Reasonable Cause” dated December 28, 2004, which concluded “. . . that reasonable cause does not exist to believe that a discriminatory housing practice has occurred. . .” and dismissed the complaint with leave to file a Petition for Relief.

Thereafter, Petitioner filed the Petition for Relief that underpins this proceeding. At the core of Petitioner’s complaint against Respondents is his belief that Mr. Alvarez

entered his apartment without prior notice and invaded his privacy by taking photographs of his work desk and his artwork while showing the property to a prospective purchaser.2

At the final hearing, Petitioner testified on his own behalf and offered three exhibits, one of which was admitted into evidence. The other two exhibits were rejected because Petitioner was unable to authenticate them. Respondents presented the testimony of Mr. Alvarez and Eibi Aizenstat, the person who purchased the Building. Respondents offered no exhibits.

The Transcript of the proceedings was filed July 6, 2005. The parties filed Proposed Recommended Orders, which have been duly-considered by the undersigned in the preparation of this Recommended Order.

FINDINGS OF FACT

1. Prior to its sale to Mr. Aizenstat, Mr. Maine owned the Building in which Petitioner leased an apartment. Mr. Maine decided to sell the Building, and he employed Respondent Alvarez and his company to represent him as his real estate broker. At all times relevant to this proceeding, Respondents were acting as agents on behalf of Mr. Maine.

2. There were four apartments in the building, one of which was the apartment leased by Mr. Maine to Petitioner. Respondents notified all apartment owners of Mr. Maine’s plans

   to sell the building and secured permission from each tenant, including Petitioner, to show the tenant’s apartment to prospective purchasers.3

3. During the course of deciding whether to purchase the Building, Mr. Aizenstat arranged with Mr. Alvarez to view and photograph the interiors of the apartments. With Petitioner’s permission, Mr. Alvarez and Mr. Aizenstat entered Petitioner’s apartment on February 11, 2004, and took a number of photographs. Mr. Alvarez and Mr. Aizenstat also photographed the interiors of the other apartments in the Building as well as photographs of the exterior of the Building. The reason for taking each photograph was business-related.

4. Petitioner is a white male and Mr. Alvarez is of Hispanic origin. Petitioner alleged that Mr. Alvarez called him a “gringo” when he was trying to get Petitioner to sign some documents pertaining to his tenancy in the Building.4 The confrontation at which Mr. Alvarez allegedly made the racial slur occurred the first part of March 2004. Mr. Alvarez denied using any racial slur directed towards Petitioner. The undersigned finds that denial to be credible. Mr. Aizenstat was present during the confrontation at which Mr. Alvarez allegedly made the racial slur. Mr. Aizenstat testified that Mr. Alvarez made no racial slur towards Petitioner. The undersigned finds Mr. Aizenstat’s testimony to be credible. The conflict in the

   evidence is resolved by finding that Petitioner failed to meet his burden of proving that such a slur was made.

5. During that confrontation between Petitioner and

   
   

   Mr. Alveraz in early March 2004, Mr. Alvarez asked Petitioner to sign certain documents so that Mr. Maine would not have to institute eviction proceedings against him. That statement was not a threat and it was not made because of Petitioner’s race.

6. As a consequence of the sale of the Building by

   
   

   Mr. Maine to Mr. Aizenstat, all tenants had to move out of the Building. At the time of the final hearing, the Building was vacant. Mr. Aizenstat testified that he planned to tear down the Building and build another structure on the property.

7. There was no evidence that Respondents treated Petitioner any differently than any other tenant in the Building either before or after the sale of the Building to

   Mr. Aizenstat.

   
   

   CONCLUSIONS OF LAW

   
   

8. The Division of Administrative Hearings has jurisdiction over the subject matter and the parties to this case pursuant to Sections 120.569 and 120.57(1), Florida Statutes.

9. The discriminatory housing practices prohibited by the Fair Housing Act include those described in Section 760.23(2), Florida Statutes, which provides as follows:

   (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.

   
   

10. Petitioner has the burden of proving by a preponderance of the evidence that Respondents committed housing discrimination against him as he has alleged. See §§ 120.57(1)(j) and 760.34(5), Fla. Stat.

11. There was no evidence that Petitioner was discriminated against in the terms, conditions, or privileges of the rental of his apartment in the Building within the meaning of the Fair Housing Act.

12. Petitioner did not meet his burden of proving, by a preponderance of the evidence, that Respondent engaged in any discriminatory conduct in violation of the Fair Housing Act. Petitioner's complaint should therefore be dismissed.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that FCHR enter a final order dismissing the Petition for Relief that underpins this proceeding.

DONE AND ENTERED this 4th day of August, 2005, in Tallahassee, Leon County, Florida.

S

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 4th day of August, 2005.

ENDNOTES

1/ The Fair Housing Act is codified in Sections 760.20 – 760.37, Florida Statutes (2005). All statutory references are to Florida Statutes (2005).

2/ Mr. Alvarez is also a police officer with the Miami-Dade Police Department with the rank of Lieutenant. In addition to the complaint that underpins this proceeding, Petitioner filed (without success) complaints against Mr. Alvarez with the Florida Real Estate Commission, the Miami Real Estate Commission, Internal Affairs of the Miami Police Department, the American Civil Liberties Union, and an entity described as the Civilian Review Board. Further, Petitioner stated at the final hearing that he intends to file a civil action against Respondents based on the alleged invasion of privacy.

Petitioner adamantly insists that the taking of these photographs violated his right to privacy. Even if he is right, there was no evidence that Mr. Alvarez took the photographs based on Petitioner’s race or that by taking the photographs he in any way violated the Fair Housing Act.

3/ In making this finding, the undersigned has not overlooked Petitioner’s allegation that Mr. Alvarez entered his apartment

without permission. The testimony of Mr. Alvarez and Mr. Aizenstat that they had permission each time they entered Petitioner’s apartment is found to be more credible than Petitioner’s assertions.

4/ This alleged racial slur is Petitioner’s sole basis for claiming that Mr. Alvarez committed a discriminatory housing practice against him based on his race.

COPIES FURNISHED:

Denise Crawford, Agency Clerk Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100

Tallahassee, Florida 32301

Mark Whittington

1101 98th Street, Apartment 6 Bay Harbor, Florida 33154

Chad J. Tamaroff, Esquire Greenspoon, Marder, Hirschfeld,

Rafkin, Ross & Berger, P.A. Trade Center South, Suite 700

100 West Cypress Creek Road Fort Lauderdale, Florida 33309

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: 05-000090

Orders for Case No: 05-000090