STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

LAWRENCE JACOBS, JR.,

Petitioner,

vs.

LAUREL OAKS APARTMENTS,

Respondent.

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) Case No. 10-9502

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RECOMMENDED ORDER

Pursuant to notice to all parties, a final hearing was conducted in this case on November 18, 2010, in Tampa, Florida, before Administrative Law Judge R. Bruce McKibben of the Division of Administrative Hearings. The parties were represented as set forth below.

APPEARANCES

For Petitioner: Lawrence Jacobs, Jr., pro se

Post Office Box 310774 Tampa, Florida 33680

For Respondent: John E. McMillan, Esquire

5309 East Busch Boulevard Temple Terrace, Florida 33617

STATEMENT OF THE ISSUE

The issue in this case is whether Respondent, Laurel Oaks Apartments ("Laurel Oaks"), discriminated against Petitioner, Lawrence Jacobs, Jr., on the basis of his race in violation of the Florida Fair Housing Act.

PRELIMINARY STATEMENT

On or about July 6, 2010, Petitioner filed a Housing Discrimination Complaint with the Florida Commission on Human Relations (the "Commission"). The Commission entered a Determination: No Cause, dated August 24, 2010. Petitioner timely filed a Petition for Relief, which was forwarded to the Division of Administrative Hearings on October 7, 2010. The undersigned Administrative Law Judge was assigned to the case, and a final hearing was set on the date and place indicated above.

At the final hearing, Petitioner testified on his own behalf and called one additional witness: Christie Jacobs, Petitioner's mother. Petitioner did not offer any exhibits into evidence. Respondent called five witness: Lawrence Jacobs, Jr.; Toni Heckinger, community manager at Laurel Oaks; Shawn Makell, assistant community manager; Anthony Jerman, maintenance worker; and Natasha Lopez, leasing consultant.

Respondent's Exhibits 1 through 4 were admitted into evidence.

The final hearing was recorded by way of a digital recorder, but no transcript of the proceeding was made. By rule, the parties were allowed ten days to submit proposed recommended orders. Petitioner submitted a Proposed Recommended Order; Respondent submitted an incomplete, unsigned document titled "Recommended Order" which was accepted as its Proposed

Recommended Order. Each was duly considered in the preparation of this Recommended Order.

FINDINGS OF FACT

1. Petitioner is a 22-year-old African-American male. At all times relevant hereto, Petitioner was residing at Laurel Oaks in Temple Terrace, Florida. Petitioner co-habited at Laurel Oaks with a woman, Sade Newton. Petitioner and Newton were expecting a child during the time they resided at Laurel Oaks.

2. Laurel Oaks Apartments is the Respondent. It is a large apartment complex comprised of several buildings. Approximately 70 to 75 percent of the residents of Laurel Oaks are minorities.

3. Petitioner moved into Laurel Oaks on or about November 3, 2009. Petitioner and Newton signed an Apartment Lease Contract (the "Lease") on that date. Petitioner was assigned apartment number 8704 (the "Initial Unit") at a rental fee of $589.00 per month. The term of the Lease was one year.

4. Almost immediately upon taking possession of the Initial Unit, Petitioner began to have some sort of confrontation with a neighboring tenant and his family (hereinafter referred to as the "Neighbor"). Specifically, Petitioner felt that the Neighbor's children were too loud, and that they were disrupting Petitioner's quiet enjoyment of his

   
   

   residence. Petitioner and the Neighbor argued numerous times, and Petitioner reported these arguments to Respondent.

5. Upon receiving Petitioner's complaints about the Neighbor, Respondent offered to let Petitioner out of his Lease or move him to another apartment. In fact, Respondent agreed to allow Petitioner to move into an upgraded apartment with no increase in the rental fee. Respondent also agreed to waive the transfer fee normally associated with moving from one apartment to another.

6. Petitioner believes that Respondent was dilatory in helping him move to a different apartment. However, there is no evidence to support that contention. The assistant community manager, Makell, indicated that she provided Petitioner with four possible options for moving. Some of the units she offered were undergoing painting or repairs and were not immediately available. Makell remembers only one telephone call from Petitioner concerning his potential interest in one of the available units. Petitioner remembers calling regularly to inquire about the units. Makell also remembers Petitioner ultimately asking for a specific apartment, number 8716 (the "Second Unit").

7. Petitioner and Newton signed a new lease (referred to herein as the "New Lease") for the Second Unit on February 8, 2010, and moved in on that date. The New Lease was also for a

   
   

   term of one year. The Second Unit was an upgrade from the Initial Unit, but Petitioner was not charged a higher rental fee. The Second Unit was, inexplicably, directly "across the way"1 from the apartment where the Neighbor resided. The evidence as to why Petitioner chose that unit or why he agreed to move into that unit was contradictory and confusing.

   Nonetheless, it is clear that Petitioner at some point voluntarily moved into the Second Unit.

8. Shortly after Petitioner and Newton moved into the Second Unit, they had some sort of domestic squabble. Newton was pregnant with Petitioner's child, and there were some tensions between them. As a result of the squabble, someone called the police. When the police arrived, they talked with Petitioner and Newton for about an hour and then arrested Newton for domestic violence. Petitioner believes Newton had to be arrested pursuant to police policy, i.e., once the police are called to investigate domestic violence, they have to arrest one of the parties. There was no persuasive, non-hearsay evidence to confirm that such a policy exists.

9. All charges against Newton were apparently dropped.

   
   

   However, the significance of Newton's arrest is that it constituted a breach of the New Lease. Paragraph 28 of the New Lease prohibits conduct which infringes on the quiet enjoyment of the apartment complex by other tenants. As a result, Laurel

   
   

   Oaks gave Petitioner and Newton a "Seven Day Notice of Noncompliance Without Opportunity to Cure" (the "Notice"), which effectively evicted them from the Second Unit. Petitioner does not deny that the New Lease was breached; he admitted so in a letter to Respondent dated May 12, 2010, about a week after the domestic violence arrest occurred. In his letter, Petitioner asks Respondent to reconsider its decision to uphold the provision in the New Lease and to rescind the Notice.

10. Despite Petitioner's plea, Respondent stood by its Notice, and Petitioner was forced to move out of the apartment. At some point thereafter, Petitioner and a representative from Laurel Oaks did a "walk-through" of the Second Unit. A tenant who defaulted under a Laurel Oaks lease would normally be liable for any damages and for all rent that came due until the unit was re-leased. Laurel Oaks suggested at the time of the

    walk-through that Petitioner would receive a prorated refund for the current month (May) and would not be charged for the remainder of the Lease term. However, Petitioner, thereafter, got into an argument with the community manager, Heckinger, and Heckinger decided to pursue all allowable charges against Petitioner. As a result, when Petitioner received his ultimate receipt from Laurel Oaks, it included a demand for payment in the amount of $589.00 for termination of the Lease, forfeiture

    
    

    of Petitioner's $99.00 security deposit, and the remaining May rent amount ($114.00).

11. Petitioner believes Heckinger and other employees of Laurel Oaks did not take him as seriously as other tenants. He believes Heckinger was "nasty" to him, but not to other tenants. Petitioner believes his request to move to a different apartment was not responded to in a timely fashion.

12. Petitioner provided no evidence that any other residents were, in fact, treated differently than he was treated. There was no evidence presented that persons of color, including Petitioner, were treated differently than similarly situated persons. There was no persuasive evidence that any person affiliated with Laurel Oaks treated Petitioner badly or discriminated against him in any fashion.

13. Laurel Oaks actually did more for Petitioner than was required or mandated by the Lease or by law. Petitioner was given the benefit of the doubt, was provided extra accommodation for his problems, and was treated appropriately. Petitioner also admitted that he did not believe the Laurel Oaks employees were racist.

    CONCLUSIONS OF LAW

    
    

14. The Division of Administrative Hearings has jurisdiction over the parties to and the subject matter of this

    
    

    proceeding pursuant to Section 120.569 and Subsection 120.57(1), Florida Statutes (2010).2

15. Florida's Fair Housing Act (the "Act") is codified in Sections 760.20 through 760.37, Florida Statutes. Subsection 760.23, Florida Statutes, reads in pertinent part:

    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 of 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.

       
       

16. There is a well-established three-prong test used to analyze cases brought under the Act, which is set forth in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). This test is stated as follows:

    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 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).

    
    

17. A prima facie showing of housing discrimination simply requires Petitioner to show he is a member of a protected class and that some adverse action was taken against him. See Soules

    v. United States Department of Housing and Urban Development, 967 F.2d 817, 822 (2d Cir. 1992). Petitioner, an African- American man, is a member of a protected class. Petitioner received a notice to vacate his apartment. Petitioner established a prima facie case.

18. The burden then shifts to Respondent to show that the action it took--notifying Petitioner that he must vacate his apartment--was based on a legitimate, non-discriminatory reason. As shown, Respondent based its action on Petitioner's breach of his New Lease with Laurel Oaks.

19. That being the case, the burden then shifts back to Petitioner to prove that Respondent's reasons were mere pretext and that the real reason for denial was discrimination. There is no evidence in the record to support that contention. Respondent clearly relied upon its rights under the Lease and its concerns about Petitioner's interaction with other tenants

as the basis for its actions. There is no evidence of discrimination against Petitioner at all.

RECOMMENDATION

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

RECOMMENDED that a final order be entered by the Florida Commission on Human Relations denying Petitioner, Lawrence Jacob, Jr.'s, Petition for Relief in full.

DONE AND ENTERED this 10th day of December, 2010, in Tallahassee, Leon County, Florida.

S

R. BRUCE MCKIBBEN Administrative Law Judge

Division of Administrative Hearings The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-3060

(850) 488-9675

Fax Filing (850) 921-6847 www.doah.state.fl.us

Filed with the Clerk of the Division of Administrative Hearings this 10th day of December, 2010.

ENDNOTES

1/ None of the witnesses adequately described what was meant by this term. The apartments were apparently separated by a parking lot or small lawn.

2/ Unless specifically stated otherwise herein, all references to Florida Statutes shall be to the 2010 version.

COPIES FURNISHED:

Larry Kranert, General Counsel Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100

Tallahassee, Florida 32301

Denise Crawford, Agency Clerk

Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100

Tallahassee, Florida 32301

Lawrence Jacobs, Jr. Post Office Box 310774 Tampa, Florida 33680

John E. McMillan, Esquire 5309 East Busch Boulevard Temple Terrace, Florida 33617

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: 10-009502

Orders for Case No: 10-009502