STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

JANICE BRICE,

Petitioner,

vs.

SHARON HARPER IVEY, CONCORD MANAGEMENT, LTD,

Respondent.

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) Case No. 07-1086

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RECOMMENDED ORDER

The final hearing in this case was conducted on May 7 and May 30, 2007, by video teleconference at sites in Orlando and Tallahassee, Florida, before Administrative Law Judge Bram D.E. Canter of the Division of Administrative Hearings (DOAH).

APPEARANCES

For Petitioner: Janice Brice, pro se

804 Pleasant Bay Lane, No. 101

Kissimmee, Florida 34741

For Respondent: Rachel D. Gebaide, Esquire

Lowndes, Drosdick, Doster, Kantor & Reed, P.A.

215 North Eola Drive Post Office Box 2809 Orlando, Florida 32802

STATEMENT OF THE ISSUE

Whether Petitioner Janice Brice was the subject of housing discrimination by Respondent based on Petitioner's race, color, and familial status, in violation of Florida's Fair Housing Act.

PRELIMINARY STATEMENT

On November 14, 2006, Petitioner filed a complaint with the

1. Department of Housing and Urban Development alleging discrimination by Respondent associated with Petitioner's rental of an apartment at an apartment complex managed by Respondent based on Petitioner's race - African American, color – dark, and familial status – single mother. The matter was referred to the Florida Commission on Human Relations (Commission), which investigated the complaint and issued a Determination of No Cause on January 31, 2007. Petitioner disagreed with the Commission's determination and filed a Petition for Relief. The case was then forwarded to DOAH on March 7, 2007, to conduct a de novo hearing on the matter.

   At the hearing, Petitioner testified on her own behalf and presented the testimony of Pat Thompson, Billie Mahoney, Angela Hill, and Carsandra Buie. Petitioner's Exhibits A through D and F through R were admitted into evidence. Respondent presented the testimony of Sharon Ivey, Robin Robuck, Robert Green, and Christine Lombardi. Respondent's Exhibits 1, 2, 5 through 9, and 11 through 19 were admitted into evidence. Official recognition was made of 24 C.F.F. Section 5.609.

   The four-volume Transcript of the final hearing was filed with DOAH. Respondent filed a Proposed Recommended Order (PRO). No post-hearing writing was submitted by Petitioner.

   Respondent's PRO was considered in the preparation of this Recommended Order.

   FINDINGS OF FACT

   
   

   1. Petitioner is an African American female and, therefore, belongs to a class of persons subject to protection under Florida's Fair Housing Act, Sections 760.20 through 760.37, Florida Statutes (2006).1/

   2. Petitioner is a dark-skinned African American, which she claims was a second factor underlying the alleged unlawful housing practice by Respondent.

   3. Petitioner is a single mother, which she stated in her complaint filed with the Commission, was a third factor that caused her to be discriminated against by Respondent.

   4. Respondent Concord Management, Ltd. (Concord), is a management company that operates over 100 apartment complexes around the country. It is the managing agent for Regatta Bay Apartments (Regatta Bay) located in Kissimmee, Florida.

   5. Respondent Sharon Harper Ivey is the director of compliance for Concord. She was not hired by Concord until after the events which form the basis of Petitioner's claim of housing discrimination. She communicated with the Commission during its investigation of Petitioner's complaint against Concord and was subsequently listed by the Commission as a Respondent when the case was referred to DOAH. That listing was

      an error. Petitioner has never claimed that Ms. Ivey had any role in the alleged unlawful housing practice.

   6. On August 4, 2005, Petitioner applied for a lease at Regatta Bay. Petitioner filled out some application forms and waited for a response. Concord conducts a financial credit and criminal background check of persons applying to become tenants at Regatta Bay. The credit check is made to determine whether the applicant has good or bad credit history and has the ability to pay the rent. Concord also conducts a separate compliance check to verify that the applicant is a qualifying tenant for purposes of the federal Low Income Housing Tax Credit Program which makes it possible for Concord to rent apartments at

      below-market rates. The information that Petitioner provided to the staff at Regatta Bay was sent to Concord's offices in Maitland, Florida, for review and handling.

      The Security Deposit and Surety Bond

      
      

   7. Concord completed its credit and criminal background check of Petitioner on August 22, 2005. Because Concord determined that Petitioner had poor credit history, based in part on being employed less than a year at her current place of employment, Petitioner was required to have someone co-sign her lease or pay a security deposit and purchase a security (surety) bond. Petitioner paid a security deposit of $873 and purchased a security bond in the amount of $175.

   8. Petitioner claims that it was an act of discrimination for Concord to have required both a security deposit and a security bond. The only basis for this claim, however, is Petitioner's interpretation of a form provided to tenants,2/ entitled "Frequently Asked Questions," which explains the security deposit and bond. Petitioner believes that the form explains that only the bond is needed, not a bond and a security deposit. However the form states that the bond "replaces (or supplements) a traditional security deposit."

   9. Sharon Ivey, Concord's director of compliance, testified that the requirement for a security deposit and security bond is applied uniformly to all tenants by Concord and produced exhibits showing that tenants at Regatta Bay who were not African Americans were required to pay a security deposit and purchase a security bond if they had poor credit histories. Petitioner produced no evidence to show that African Americans at Regatta Bay, dark-skinned African Americans, or single mothers, are treated differently by Concord with respect to security deposits and bonds.

      Qualification for Low Income Housing

      
      

   10. In order for Concord to qualify for the federal tax credits under the federal Low Income Housing Tax Credit Program, all of the tenants of Regatta Bay must have personal incomes that fall below 60 percent of the median annual income for

       persons living in the Orlando Metropolitan Statistical Area, taking into account the number of persons in the household.3/ Petitioner has two children and, therefore, in order to qualify to rent an apartment at Regatta Bay, she had to have an annual income less than the median annual income for three-person households in the Orlando area. Based on statistics used by the Florida Housing Finance Corporation, Petitioner's income had to be less than $29,760.

   11. To verify that Petitioner would qualify for tenancy at Regatta Bay, an employment verification form had to be filled out and submitted by her employer, Quest Diagnostics, Inc. The human resources representative at Quest Diagnostics filled out "Part B" of the employment verification form on August 17, 2005, indicating that Petitioner worked 20 hours per week and made $12 per hour.

   12. Jessica Reyes, a rental agent at Regatta, called Petitioner and discussed the fact that the employment verification form indicated she was only a part-time employee.

       Petitioner informed Ms. Reyes that she had just become a full-time employee. Ms. Reyes requested that Petitioner have the human resources representative at Quest Diagnostics send Regatta Bay another employment verification form and complete

       "Part A" of the form which asks for the employee's anticipated annual income and year-to-date income.

   13. A second employment verification form was sent to Regatta Bay on August 18, 2005, indicating that Petitioner's anticipated annual salary was $25,708.80. The human resources representative did not fill in the space provided for year-to- date income.

   14. Ms. Reyes was unable to get the year-to-date earnings information from Quest Diagnostics. Ms. Reyes filled-in the figure $17,144 in the space provided for Petitioner's year-to- date earnings on the employment verification form. In a written statement obtained later from her, Ms. Reyes stated that she thought the absence of this information on the form might cause the form to be "kicked back" by the compliance auditors at Concord. She stated that she calculated the year-to-date earnings of $17,144 from Petitioner's annual income. It appears that Ms. Reyes did not realize that Petitioner had only worked at Quest Diagnostics for five months, and that a year-to-date income of $17,144 would translate to an annual income that was above the limit to qualify for low income housing.

   15. Even though only a credit check had been completed on Petitioner, and not a compliance check to verify that she had qualifying income for the federal tax credit program, Petitioner was allowed to sign a lease and move into Unit 101 at Regatta Bay on or about September 20, 2005.

   16. On September 15, 2005, Robert Green, a compliance auditor with Concord, reviewed the paperwork he received from Regatta Bay concerning Petitioner, including the employment verification form. He determined that, based on the year-to- date earnings figure, Petitioner's income was too high to qualify for housing at Regatta Bay.

   17. In Ms. Reyes' written statement of December 9, 2005, she said she was asked to get pay stubs from Petitioner.

       Ms. Reyes stated that Petitioner brought in her last pay stub, which included her year-to-date earnings. Ms. Reyes claims to have recalculated Petitioner's year-to-date earnings using her pay stub and, although not $17,144, the recalculated number was still too high.

   18. The community director at Regatta Bay, Christine Lombardi, testified that Petitioner came in on September 20 or 21, 2005, and spoke to Ms. Reyes about her income.

       Ms. Lombardi said she saw Ms. Reyes with pay stubs in her hand and with a calculator tape that Ms. Reyes had used to calculate Petitioner's year-to-date income. Ms. Lombardi testified that she asked Ms. Reyes to make a copy of the pay stubs, but Petitioner would not allow them be copied.

   19. Petitioner was unaware that Ms. Reyes had altered the employment verification form to add a year-to-date income figure, but it is undisputed that Petitioner was told that her

       annual income had been calculated to be a figure over $31,000. Petitioner's pay stub for work through September 3, 2005, shows year-to-date earnings, including overtime, of $12,489.60.4/ Because Petitioner had worked for Quest Diagnostics for five months, the year-to-date figure from her pay stub would result in an estimated annual income of about $29,976. This amount is just over the maximum income allowed, but it includes some overtime work.

   20. It was not shown how Ms. Reyes came up with an estimate of $31,000, and her own statement on that point is unclear. However, if Ms. Reyes assumed that Petitioner had been working at Quest Diagnostics since January 1, 2005, the income shown on Petitioner's last pay stub would support an estimated annual income of about $32,000. Petitioner denies that she brought in her pay stubs to show Ms. Reyes, but she testified that Ms. Reyes "had her calculator in front of her, and she calculated it up." Petitioner asked Ms. Reyes to add her adult daughter to her household, so that she could qualify under the higher income allowed for a four-person household.

   21. On September 21, 2005, Ms. Lombardi sent Petitioner a letter informing Petitioner that she would have to move out of Regatta Bay because her income was too high. At the final hearing, Petitioner repeatedly referred to a comment in the letter that "we would like to point you in the right direction,"

       which Petitioner took great offense to and perceived almost as a racial slur. However, the comment appeared in the following

       context:

       
       

       Whereas we are sincerely sorry for any inconvenience this may cause you, there are other communities in the area that do not have the same income guidelines. These communities might be able to accommodate you and we would like to point you in the right direction.

       
       

       In context, there is nothing about the comment that shows animus towards Petitioner's race, color, or familial status.

   22. On September 26, 2005, Ms. Lombardi sent Petitioner a letter stating "Per our conversation today . . . you and your daughter need to come into the office to fill out the proper paperwork." This letter indicates that Ms. Lombardi was willing to pursue Petitioner's suggestion to have Petitioner's daughter added to her household so that Petitioner would qualify to stay at Regatta Bay. However, Petitioner apparently abandoned this idea after she consulted with a lawyer.

   23. Petitioner refused to vacate the apartment. On October 13, 2005, Regatta Bay served Petitioner with a Seven Day Notice to Cure Noncompliance to satisfy the requirements of Section 83.56, Florida Statutes. On October 26, 2005, Regatta Bay served Petitioner with a Seven Day Notice of Noncompliance Without Opportunity to Cure. On November 5, 2005, Regatta Bay filed a Complaint for Tenant Eviction in the circuit court for

       Osceola County. Concord showed that it has filed eviction actions against non-African Americans that resided in Regatta Bay when Concord discovered that they were not qualified for low income housing at the time they began their tenancies.

   24. Before Petitioner received the first "seven day notice," she contacted a legal aide attorney to assist her regarding her dispute with Regatta Bay. She also contacted Florida Housing Finance Corporation (FHFC) for help. On November 30, 2005, Janet Peterson of FHFC made a request of Robin Robuck, senior vice president of Concord, for a written explanation of how Concord "arrived at the conclusion that [Petitioner] was ineligible."

   25. In her response, Ms. Robuck referred to the year-to- date income figure of $17,144 on the employment verification form prepared by Quest Diagnostics. Ms. Robuck made no mention of the recalculation of a $31,000 figure. The communication between Concord and FHFC soon revealed the discrepancy between the employment verification form prepared by Quest Diagnostics and the form that was altered by Ms. Reyes.

   26. Ms. Reyes was asked for an explanation of the discrepancy on December 9, 2005, which she then put in writing. On that same day, Ms. Reyes was fired by Concord for altering the employment verification form. Regatta Bay then voluntarily

       dismissed its eviction action against Petitioner in the circuit court.

   27. Petitioner claims that Jessica Reyes and Christine Lombardi were motivated by racial discrimination to prevent Petitioner from renting an apartment at Regatta Bay. Petitioner claims that racial discrimination was the motive for Ms. Reyes putting the figure of $17,144 on the employment verification form and the motivation for Ms. Lombardi to continue to demand that Petitioner move out despite having sufficient information to know that Petitioner qualified for housing at Regatta Bay.

   28. Petitioner raised several questions about the timing of and reason for certain events that occurred, which were never fully answered by the evidence presented by the parties. For example, why was Petitioner allowed to move in before the compliance review? Why wasn't the issue of Petitioner's income simply resolved by getting more information from the human resources representative at Quest Diagnostics? Did Ms. Reyes or Ms. Lombardi ever explain to Petitioner exactly how they determined that she made too much income? Why didn't Ms. Reyes or Ms. Lombardi tell Ms. Robuck about the recalculation of a

       $31,000 figure when Ms. Robuck was making her internal investigation?

   29. Unanswered questions, however, are not a sufficient basis to prove housing discrimination. Petitioner failed to

       establish that she was discriminated against on the basis of her race. No evidence was presented by Petitioner on her claims that Respondent discriminated against her because of her dark skin color or her familial status as a single mother.

   30. Mistreatment, even if proven, may have other motivations than discrimination. In this case, all that was proven by Petitioner was a fact never contested by Concord, that Ms. Reyes improperly altered the employment verification form. Petitioner did not prove that Ms. Reyes was motivated by discrimination.

   31. The evidence suggests that Ms. Reyes and Ms. Lombardi were inept at explaining to Petitioner how it was determined that her income was too high, but Petitioner's demeanor and testimony at the final hearing indicate that she was probably partly responsible for the poor communication between them on that subject.

   32. Petitioner remained a tenant at Regatta Bay until she voluntarily moved out in July 2007.

       CONCLUSIONS OF LAW

       
       

   33. DOAH has jurisdiction over the parties to and the subject matter of this proceeding pursuant to Section 120.569 and Subsections 120.57(1) and 760.35(3), Florida Statutes.

   34. Under Florida's Fair Housing Act, Sections 760.20 through 760.37, Florida Statutes, it is unlawful to discriminate

       in the sale or rental of housing. Section 760.23, Florida Statutes, states in pertinent part:

       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.

          
          

   35. In interpreting and applying the Florida's Fair Housing Act, the Commission and the Florida courts regularly seek guidance from federal court decisions interpreting similar provisions of federal fair housing laws.

   36. In cases involving a claim of housing discrimination, the complainant has the burden of proving a prima facie case of discrimination by a preponderance of the evidence. See U.S. v. California Mobile Home Park Mgmt., 107 F.3d 1374, 1380 (9th Cir. 1997); Schantz v. Village Apartments, 998 F. Supp. 784, 791 (E.D. Mich. 1998).

   37. Failure to establish a prima facie case of discrimination ends the inquiry. See Ratliff v. State, 666 So. 2d 1008, 1013, n.7 (Fla. 1st DCA 1996), aff'd, 679 So. 2d, 1183 (Fla. 1996).

   38. If, however, the complainant establishes a prima facie case, the burden then shifts to the respondent to articulate some legitimate, nondiscriminatory reason for its action. If the respondent satisfies this burden, then the complainant must establish by a preponderance of the evidence that the reason asserted by the respondent is, in fact, merely a pretext for discrimination. See Massaro v. Mainlands Section 1 & 2 Civic Ass'n, Inc., 3 F.3d 1472, 1476, n.6 (11th Cir. 1993), cert. denied, 513 U.S. 808, 115 S. Ct. 56, 130 L. Ed. 2d 15 (1994)(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)).

   39. Petitioner did not meet her burden to establish a prima facie case of discrimination. Petitioner failed to prove that by requiring her to pay a security deposit and purchase a security bond, Respondent treated her differently than other tenants or applicants for tenancy based on her race, color, or familial status. Petitioner also failed to prove that

Ms. Reyes' alteration of the employment verification form or Ms. Lombardi's attempt to evict Petitioner from Regatta Bay was acts of discrimination.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of Law, it is

RECOMMENDED that:

1. Sharon Harper Ivey be dismissed from the case; and

   
   

2. The Petition for Relief be dismissed.

DONE AND ORDERED this 31st day of August, 2007, in Tallahassee, Leon County, Florida.

S

BRAM D. E. CANTER

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 31st day of August, 2007.

ENDNOTES

1/ All references to the Florida Statutes are to the 2006 codification.

2/ The origin of the document was not stated in the record, but a reasonable inference is that it was provided to Petitioner by the staff at Regatta Bay.

3/ This requirement is applicable at the commencement of the tenancy. Thereafter, tenants may remain at Regatta Bay so long

as their annual incomes do not increase to a level more than 140 percent of the median annual income.

4/ Petitioner's pay stub for work through September 17, 2005, was admitted into evidence. However, because it indicates a "Check Date" of September 23, 2005, and there was no evidence to indicate that Petitioner would have gotten the pay stub before her payroll check, it is unlikely that Petitioner had this pay stub to show Ms. Reyes on September 20, 2005.

COPIES FURNISHED:

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

Tallahassee, Florida 32301

Janice Brice

804 Pleasant Bay Lane, No. 101

Kissimmee, Florida 34741

Rachel D. Gebaide, Esquire Lowndes, Drosdick, Doster, Kantor

& Reed, P.A.

215 North Eola Drive Post Office Box 2809 Orlando, Florida 32802

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: 07-001086

Orders for Case No: 07-001086