Pursuant to Notice, this cause was heard by Linda M. Rigot, the assigned Administrative Law Judge of the Division of Administrative Hearings, on August 10, 2005, in Tallahassee,
Florida.
For Respondent: William M. Furlow, II, Esquire
The issue presented is whether Respondent Jim Walter Homes and its affiliates engaged in an unlawful housing practice in their dealings with Petitioner Curtis Jefferson.
In January 2005 Petitioner Curtis Jefferson filed a complaint alleging that Jim Walter Homes had applied discriminatory terms and conditions and had failed to make reasonable accommodation as to Petitioner based upon Petitioner's race and handicap. In February 2005 the Florida Commission on Human Relations issued its determination finding that there was no reasonable cause to believe that a discriminatory housing practice had occurred and dismissing Petitioner's complaint. Thereafter, Petitioner filed his Petition for Relief, and this cause was transferred to the Division of Administrative Hearings to conduct an evidentiary proceeding.
At the final hearing Petitioner Curtis Jefferson testified on his own behalf, and James M. Knipe testified on behalf of Respondent Jim Walter Homes and that company's affiliates.
Additionally, Petitioner's Exhibits numbered 1-16 and Respondent's Exhibits numbered 1-5 were admitted in evidence.
No transcript of the final hearing has been filed, and both parties waived their right to submit proposed recommended orders after the conclusion of the final hearing.
Respondent Jim Walter Homes builds homes for people on lots those people already own, and its mortgage company Mid-
State Homes, Inc., finances those homes. Such was the arrangement between Petitioner and Respondent.
In October 1998 Petitioner, a black man, and his fiancée Jennifer Mitchell executed a promissory note and mortgage on the home built for them by Respondent. That note and mortgage were subsequently sold to Mid-State Homes, Inc., and then to Mid-State Trust VIII.
Petitioner and his fiancée, who both owned the home, began making payments, but from the beginning, the payments were frequently late. Respondent continued to work with Petitioner and his fiancée, preferring to receive the mortgage payments to foreclosing on the mortgage.
Petitioner and his fiancée also failed to pay property taxes and to maintain insurance on the home.
Petitioner and his fiancée failed to make the January 1, 2002, mortgage payment and did not make payments thereafter. In April Mid-State Trust VIII sent a letter to
Petitioner and his fiancée demanding that the mortgage payments and late charges be brought current so Petitioner and his fiancée could avoid the filing of a foreclosure action and the sale of their home.
Due to their failure to cure their default, Mid-State Trust VIII filed a foreclosure action against Petitioner and his fiancée on June 4, 2002. A Final Judgment of Foreclosure on
Default was entered by the circuit court on November 13, 2002. The Final Judgment scheduled the home to be sold at public auction on December 13, 2002.
On December 12 Petitioner filed bankruptcy proceedings, which prevented the public sale of the home from taking place due to the automatic stay afforded by the bankruptcy laws. Petitioner's fiancée did not file bankruptcy proceedings.
A payment plan was approved by the United States bankruptcy judge whereby Petitioner would make payments to the trustee in bankruptcy for the mortgage payments in arrears and would make payments to Mid-State Trust VIII for the current and future mortgage payments. Petitioner failed to comply with the payment plan ordered by the bankruptcy judge.
In December 2003 Mid-State Trust filed in the bankruptcy court a motion for relief from the automatic stay and filed an amended motion for relief in January 2004. The amended motion alleged that Petitioner had failed to comply with the court-ordered payment plan, that Petitioner still had possession of the property, and that Petitioner had no equity in the home since the amount due Mid-State Trust for the mortgage, late charges, foreclosure costs and attorney's fees, and interest now exceeded the value of the property. Mid-State asked to be allowed to go forward with the sale of the home. On January 14,
2004, the United States bankruptcy judge dismissed Petitioner's bankruptcy proceeding.
On February 26, 2004, the home, which was still occupied by Petitioner and his fiancée, was sold at public auction. Although Petitioner attempted to stop the sale again by filing a second bankruptcy petition, the sale occurred earlier in the day than the petition was filed. The bankruptcy judge dismissed Petitioner's second petition. Again, Petitioner's fiancée did not file for bankruptcy.
On June 18 a certificate of title was issued to the purchaser. Petitioner still did not vacate the home which he and his fiancée no longer owned and on which he was making no mortgage payments and paying no rent.
On June 28, 2004, an Order for Issuance of a Writ of Possession was entered by the circuit court. On June 30 a Writ of Possession was entered by the clerk of the circuit court commanding the sheriff to remove all persons from the property.
On July 2 the sheriff served the writ. Still, Petitioner and his fiancée failed to vacate the home. On July
15 a representative of the purchaser arrived at the home and told Petitioner he had two hours to vacate or the sheriff would come and remove him and his possessions. Still, Petitioner did not vacate until he was removed by the sheriff.
No employee or agent of Respondent or its affiliates ever told Petitioner or in any way indicated that his mortgage payments would not be accepted because he was black or because of his disability.
Respondent has foreclosed against other similarly- situated persons who have failed to make their mortgage payments.
Petitioner is unable to work as a truck driver due to his sleep apnea, diabetes, and hypertension.
CONCLUSIONS OF LAW
The Division of Administrative Hearings has jurisdiction over the subject matter hereof and the parties hereto. §§ 120.569 and 120.57(1), Fla. Stat.
Petitioner's complaint was filed with the Florida Commission on Human Relations pursuant to Sections 760.20 through 760.37, Florida Statutes, Florida's Fair Housing Act. Petitioner alleges that Respondent gave him discriminatory terms, conditions, privileges, or services and facilities; that Respondent failed to give Petitioner a reasonable accommodation; and that Respondent's acts were caused by Petitioner's race and handicap.
Petitioner has the burden of proving his allegations.
§ 760.34(5), Fla. Stat. Petitioner has failed to prove any of his allegations.
The Fair Housing Act prohibits discriminating against persons, primarily in the sale or rental of housing, based upon their race or handicap. Since Petitioner is black, he belongs to a class of persons the Act is designed to protect and meets the first prong of analysis on that basis. Petitioner is not, however, protected by the Act as to his alleged handicap.
Section 760.22, Florida Statutes, contains definitions for the Act. Subsection (7) requires that a person seeking the Act's protection on the basis of a handicap be a person who has:
a physical or mental impairment which substantially limits one or more major life activities, or he or she has a record of having, or is regarded as having, such physical or mental impairment. . . .
The only evidence in this record as to Petitioner having a handicap suggests that he uses some type of assistive device for breathing while he sleeps at night. The Act, however, requires an impairment which substantially limits a major life activity. The medical evidence offered by Petitioner notes only that he cannot work in his area of expertise, i.e., being a truck driver. Accordingly, Petitioner has failed to prove that he has an impairment, or is regarded as having an impairment, which is covered by the Act since being a truck driver is not a major life activity.
Section 760.23, Florida Statutes, sets forth the Act's prohibited practices. The Act forbids refusing to sell or rent,
Subsection (1), discriminating in the terms or conditions of sale or rental or in the provision of services or facilities, Subsection (2), advertising preferences, Subsection (3), representing that a dwelling is not available, Subsection (4), representing the demographics of a neighborhood, Subsection (5), and discriminating against familial status, Subsection (6).
Subsection (10) relates to multi-family dwellings. Subsections
(7) and (8) relate to discrimination due to a handicap and Subsection (9) requires physical modifications and reasonable accommodations when necessary due to a handicap. Facially, none of these subsections apply to Petitioner, a man who mortgaged a house and ceased making his mortgage payments.
Petitioner offered no evidence that he was given terms or conditions less favorable or different from other persons, either similarly-situated or not, belonging to Petitioner's race or not. He simply makes the assertion that the foreclosure and eviction proceedings must have been due to his race or handicap.
The only evidence that Petitioner offered that Respondent had failed to make reasonable accommodation appears to be his desire that Respondent contact him and arrange to give him a new mortgage and/or his desire that Respondent let him continue to occupy the home. Providing someone with free housing is not the type of accommodation contemplated by the Act. Further, the need to make reasonable accommodation relates
to making housing physically accessible to persons with handicaps, and Petitioner failed to prove that he has a handicap cognizable under the Act.
The foreclosure action filed by Respondent resulted in a judicial determination that Petitioner was in default under his contractual obligations and that the home should be sold at public auction. Petitioner's failure to vacate the premises which he no longer owned required Respondent to obtain another order from the circuit court commanding the sheriff to remove Respondent. Thus, Respondent's actions in this matter were pursuant to orders issued by the court. On the other hand, Petitioner's continued occupancy of the home from February 26, 2004, when he knew it had been sold, to July 15, when he was physically evicted, essentially made him a trespasser.
It is understandable that Petitioner was embarrassed by his eviction. However, that embarrassment was caused by Petitioner's own actions, not Respondent's actions. Further, since there is an absence of evidence that Respondent treated Petitioner unfairly in any way, then, a fortiori, there is an absence of evidence that Respondent was motivated by Petitioner's race or perceived handicap. Rather, the evidence is overwhelming that Respondent's actions were all dictated by creditable and valid business reasons.
RECOMMENDED that a final order be entered finding that Respondent did not violate the Fair Housing Act and dismissing Petitioner's Petition for Relief filed in this cause.
DONE AND ENTERED this 1st day of September, 2005, in Tallahassee, Leon County, Florida.
LINDA M. RIGOT
Filed with the Clerk of the Division of Administrative Hearings this 1st day of September, 2005.
William M. Furlow, III, Esquire Akerman Senterfitt
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.
