STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

WANA DENNARD,

Petitioner,

vs.

CHARTER REALTY GROUP, MARIA STEWART AND ADA PUMEROL,

Respondents.

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) Case No. 05-0599

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RECOMMENDED ORDER

Pursuant to notice, a formal hearing was held in this case on February 7, 2006, by video teleconference at sites in Miami and Tallahassee, Florida, before Florence Snyder Rivas, an Administrative Law Judge of the Division of Administrative Hearings.

APPEARANCES

For Petitioner: Wana Dennard, pro se

18665 Northwest 37th Avenue Apartment 103

Opa Locka, Florida 33056

For Respondents: Rachel M. LaMontagne, Esquire

Wilson, Elser, Moskowitz Edelman and Dicker LLP

3800 Bank of America Tower

100 Southeast Second Street Miami, Florida 33131

STATEMENT OF THE ISSUE

Whether Respondent committed a discriminatory housing practice against Petitioner as alleged in the Petition for Relief dated February 22, 2005, and if so, what relief should the Florida Commission on Human Relations provide.

PRELIMINARY STATEMENT

Petitioner filed a complaint with the United States Department of Housing and Urban Development (HUD), alleging violation(s) of Sections 760.20-760.37, Florida Statutes, popularly known as the Fair Housing Act. HUD referred the complaint to the Florida Commission on Human Relations (Commission).

In due course, the Commission, through its Executive Director, issued a Determination of No Cause advising that, following an investigation, the Commission had "determined that reasonable cause does not exist to believe that a discriminatory housing practice has occurred." Petitioner timely filed a Petition for Relief from that determination. Thereafter the Division of Administrative Hearings received a Transmittal of Petition from the Commission, the body of which read as follows:

Please be advised that the Florida Commission on Human Relations has received a Petition for Relief from an Unlawful Housing Practice by Wana Dennard. Pursuant to the Fair Housing Act, Sections 760.20-760.37, Florida Statutes (1997), and Rule 60Y- 25.004, Florida Administrative Code, the

Commission requests the Division of Administrative Hearings to assign this matter to an administrative law judge and conduct all necessary proceedings required under the law and submit recommended findings to the Commission. Copies of all relevant pleadings and papers heretofore filed in this proceeding are attached to this notice.

A final hearing was scheduled by video teleconference at sites in Miami and Tallahassee for February 7, 2006. The identity of witnesses and exhibits is reflected in the one- volume transcript of the hearing filed on February 23, 2006. Respondents submitted a Proposed Recommended Order on March 16, 2006, which has been duly-considered.

FINDINGS OF FACT

1. Petitioner, Wana Dennard (Petitioner or Dennard), is African-American; it is undisputed that Petitioner is a member of a "protected class" of persons protected from discrimination based upon race pursuant to the Fair Housing Act.

2. Respondent, Charter Realty Group (Respondent or Charter), manages a residential apartment complex (the community) subsidized by HUD. Respondent, Ada Pumerol, has served as Charter's on-site property manager for approximately three years; she has worked as a property manager for over 20 years. Respondent Maria Stewart (Stewart) was not identified by competent evidence presented at hearing, and no evidence was offered against her; accordingly, it is determined that

   Petitioner has abandoned any claim of discrimination against Stewart and/or failed to meet her burden of proof with respect to Stewart.

3. Dennard has resided in Unit 103 of the community since April 1996. At the time she moved to the community, three children resided with her. At some point(s), the two older children moved out. At times relevant to this case, the youngest child, then aged 17, lived with Petitioner.

4. Latisha Thomas (Thomas), also an African-American woman, moved into a one-bedroom unit next door to Petitioner in the spring of 2002. Thomas' son, then aged four, resided with his mother.

5. A situation developed between Petitioner and Thomas.

   
   

   Petitioner testified in her case-in-chief that she was "calling the police on a constant regular basis." Petitioner also sought help from Charter's on-site manager, Ada Pumerol (Pumerol).

   Specifically, Petitioner asked that she be transferred to an apartment further away from Thomas.

6. Thomas also desired to obtain a different and larger apartment within the community. Thomas had accepted a one- bedroom apartment in order to move into the community, but only because a two bedroom--which would afford separate bedrooms to her and her young son-- was not available. In the fall of 2002,

   Thomas sought to effect a transfer to a larger apartment and requested same by submitting a unit transfer form to Charter.

7. At all times material to this case, Charter is bound by its contract(s) with HUD to obey the HUD Multifamily Occupancy Handbook (the Handbook). The Handbook provides for unit transfers based upon: (1) a verifiable change in family size or composition; (2) additional policies developed by [Charter] to address transfer requests beyond family composition, for reasons including transfers based upon medical reasons or to accommodate a disability; and (3) a reasonable accommodation for a household member’s disability. Such requests, if determined to be within the foregoing guidelines, are granted. If a transfer is approved pursuant to Handbook guidelines, the resident will be placed on a waiting list if a suitable apartment is not then available.

8. The unit transfer form is prescribed by HUD in its Handbook, and is a prerequisite to consideration by Charter of any transfer request.

9. As previously noted, Thomas filled out the required unit transfer form. She cited, as a basis for her request, an increased need for an extra bedroom based upon her family size and composition -- a growing child who was more appropriately housed in his own room. The transfer was approved, but a two- bedroom apartment did not become available until November 2004,

   at which time Thomas and her son moved. Requests for transfer are considered on a first-come, first-accommodated basis.

   Thomas' request for transfer would not have been considered by Charter had she not complied with HUD's requirement that a unit transfer form be completed.

10. Petitioner complained to Pumerol about Thomas, and verbally requested a transfer for the purpose of getting away from Thomas. Petitioner claimed that Thomas engaged in threatening and inappropriate behavior towards her. There is no persuasive evidence that this is true. Thomas testified persuasively that she and Petitioner did not make for congenial neighbors, but Thomas did not threaten or otherwise engage in inappropriate behavior towards Petitioner. Moreover, the evidence established that Charter, which is bound by the Handbook, may not predicate a unit transfer decision upon complaints regarding the behavior of a resident's neighbor.

11. Petitioner admits she was familiar with the requirement that a unit transfer form be completed as a prerequisite to Charter's consideration of a request for transfer, and that she failed to fulfill this prerequisite.

12. Although Ms. Dennard complained about Ms. Thomas, and Ms. Thomas complained about Ms. Dennard, there was no basis for Charter to separate the women.

13. Dennard's complaint of discrimination is also predicated upon a claim that Charter responded promptly and positively to resolve a dispute between two Hispanic female residents by providing one of the Hispanic residents with a unit transfer in order to separate them. To the contrary, the greater weight of competent, persuasive evidence established that the two Hispanic women were separated for reasons having nothing to do with dispute(s) between them. It is determined instead, based upon the greater weight of competent, persuasive evidence, that one of the Hispanic women filed a unit transfer request based upon a change in her family size and composition and for medical reasons. To be precise, other grandchildren were moving in with her; one of the granddaughters was mentally disabled and required her own room. The grandmother therefore submitted a unit transfer request which cited the increased size of the family and medical necessity. Upon consideration and verification of the basis for the request, a transfer to a three-bedroom apartment was approved by Charter. The second Hispanic woman was evicted for egregious violations of requirements set forth in Charter's lease agreement with her concerning maintenance of the apartment. More specifically, the apartment was filthy and attracted the attention of the health department; in addition, the woman had made threats to office workers at the community. Although the Hispanic women ended up

    "separated" in a literal sense, the separation was based upon legally appropriate reasons having nothing to do with any dispute they may have had while neighbors; there was no competent evidence that the Hispanic women were separated and the African-American women were not on account of discrimination by Charter against African-American women. All of the persuasive evidence demonstrated that the Hispanic women were "separated" due to the appropriate application of the HUD regulations to which Charter was contractually bound.

14. In sum, there was no persuasive evidence that either Hispanic woman sought a transfer on account of poor relations with the other. There is no competent, persuasive evidence that a request based upon such grounds would have been granted.

    CONCLUSIONS OF LAW

    
    

15. 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 (2005).

16. The discriminatory housing practices prohibited by the Fair Housing Act include those described in Section 760.23(2), Florida Statutes (2005), which provides:

    (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. In this case, Petitioner has the burden of proving by a preponderance of the evidence that Respondents committed housing discrimination against her, as alleged. See

    §§ 120.57(1)(j) and 760.34(5), Fla. Stat. (2005).

    
    

18. Petitioner claims to be a victim of intentional discrimination by Charter, and is ". . . permitted [as Petitioner has done here] to establish [her] case through inferential and circumstantial proof." Kline v. Tennessee Valley Authority, 128 F.3d 337, 348 (6th Cir. 1997). Where a complainant attempts to prove intentional discrimination using circumstantial evidence, a "shifting burden framework" is applied. "Under this framework, the [complainant] has the initial burden of establishing a prima facie case of discrimination. If [the complainant] meets that burden, then an inference arises that the challenged action was motivated by a discriminatory intent. The burden then shifts to the [respondent] to 'articulate' a legitimate, non-discriminatory reason for its action. If the [respondent] successfully articulates such a reason, then the burden shifts back to the

    [complainant] to show that the proffered reason is really pretext for unlawful discrimination." Schoenfeld v. Babbitt,

    168 F.3d 1257, 1267 (11th Cir. 1999)(citations omitted.); see

    also Massaro v. Mainlands Section 1 and 2 Civic Association, Inc., 3 F.3d 1472, 1476 n.6 (11th Cir. 1993)("Fair housing discrimination cases are subject to the three-part test articulated in McDonnell Douglas Corp. v. Green, 411 U.S. 792,

    93 S. Ct. 1817, 36 L.Ed.2d 668 (1973)"); and Secretary of the United States Department of Housing and Urban Development on

    Behalf of Herron v. Blackwell, 908 F.2d 864, 870 (11th Cir. 1990)("We agree with the ALJ that the three-part burden of proof test developed in McDonnell Douglas [for claims brought under Title VII of the Civil Rights Act] governs in this case [involving a claim of discrimination in violation of the federal Fair Housing Act].")

19. In this case, Petitioner has fallen short of establishing a prima facie case of discrimination based upon race in the provision of service or facilities in connection with the sale or rental of a dwelling in contravention of Section 760.23(2), Florida Statues (2005). Petitioner's "proof" amounts to no more than speculation and self-serving belief concerning the motives of the Respondents and is insufficient, standing alone, to establish a prima facie case of intentional discrimination. See Lizardo v. Denny's, Inc., 270 F.3d 94, 104 (2d Cir. 2001)("The record is barren of any direct evidence of racial animus. ).

20. Put another way, Petitioner presented no competent, persuasive evidence that she was discriminated against in the terms, conditions, or privileges of the rental of her apartment in the community within the meaning of the Fair Housing Act. It was undisputed that Charter and community residents are obliged to follow HUD rules and regulations. HUD regulations permit a unit transfer in limited circumstances, which include a change in family size or composition; for medical reasons; or to accommodate the disability of a member of the household. It is specifically required that residents seeking a transfer must submit a unit transfer form.

21. Dennard's admission that she failed to file a unit transfer form, standing alone, would preclude a finding of discrimination under the facts and circumstances of this case. Assuming arguendo that Petitioner had established a prima facie case, Charter affirmatively demonstrated that it processed requests for transfer in accordance with HUD guidelines, and properly applied those guidelines in an objective and non- discriminatory manner with respect to the African-American and Hispanic residents identified by Petitioner. Petitioner has failed to prove, by a preponderance of the evidence, that Respondents engaged in any discriminatory conduct in violation of the Act.

RECOMMENDATION

Based upon the foregoing Findings of Facts and Conclusions of Law, it is RECOMMENDED that the Commission enter its Final Order dismissing Dennard's Petition for Relief.

DONE AND ENTERED this 26th day of April, 2006, in Tallahassee, Leon County, Florida.

S

FLORENCE SNYDER RIVAS

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 26th day of April, 2006.

COPIES FURNISHED:

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

Tallahassee, Florida 32301

Wana Dennard

18665 Northwest 37th Avenue Apartment 103

Opa Locka, Florida 33056

Rachel M. LaMontagne, Esquire Wilson, Elser, Moskowitz

Edelman and Dicker LLP 3800 Bank of America Tower

100 Southeast Second Street Miami, Florida 33131

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: 05-000599

Orders for Case No: 05-000599