STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

LAWRENCE AND CANDACE ODOM,

Petitioners,

vs.

LM RENTALS II, LLC, AND REBAKAH MOSSOW,

Respondents.

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) Case No. 11-3060

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RECOMMENDED ORDER

Pursuant to notice, a final hearing was held in this case on November 9, 2011, in Lakeland, Florida, before Susan Belyeu Kirkland, an Administrative Law Judge of the Division of Administrative Hearings.

APPEARANCES

For Petitioners: Lawrence Odom, pro se

Candace Odom, pro se

6368 Alamanda Hills Drive Lakeland, Florida 33813

For Respondent, LM Rentals II, LLC:

Michael Peeples, Qualified Representative LM Rentals II, LLC

1925 East Edgewood Drive, Suite 100

Lakeland, Florida 33803 For Respondent, Rebakah Mossow:

Rebakah Mossow, pro se

Vantage Property Management, LLC 1925 East Edgewood Drive, Suite 100

Lakeland, Florida 33803

STATEMENT OF THE ISSUE

The issue in this case is whether Respondents discriminated against Petitioners based on race regarding the renting of a house.

PRELIMINARY STATEMENT

Petitioners, Lawrence Odom (Mr. Odom) and Candace Odom (Mrs. Odom), filed a housing discrimination complaint, dated April 11, 2011, against, Respondents, LM Rentals II, LLC

(LM Rentals); Vantage Property Management, LLC (Vantage); and Rebakah Mossow (Ms. Mossow),1/ alleging that they discriminated against them based on their race in connection with a mold problem in the house in which the Odoms were tenants. The Florida Commission on Human Relations (Commission) investigated the complaint and issued a Notice of Determination of No Cause on June 8, 2011.

On June 13, 2011, the Commission received a Petition for Relief (Petition) from the Odoms naming Ms. Mossow and

LM Rentals as respondents, alleging that they had discriminated against them based on their race as Native Americans by renting them a home with mold, not relocating them to another rental house, and not replacing the carpets. The Petition was forwarded to the Division of Administrative Hearings on June 17, 2011.

The style of the case did not reflect that Ms. Mossow was a respondent. With the agreement of Ms. Mossow and the other parties, the style was amended at the final hearing to reflect all Respondents.

The case was originally assigned to Administrative Law Judge Linzie F. Bogan, but was transferred to Administrative Law Judge Susan Belyeu Kirkland to conduct the final hearing.

The final hearing was scheduled for August 26, 2011, but was continued and rescheduled to November 9, 2011, at the request of the Odoms.

At the final hearing, the Odoms testified in their own behalf and called Tina R. Ballentine. LM Rentals called Michael Peeples (Mr. Peeples) and Ms. Mossow as its witnesses. No exhibits were entered in evidence by any of the parties.

The Commission did not have the final hearing recorded either by electronic means or by court reporter. None of the parties elected to have a court reporter present. Therefore, there is no official record of the final hearing. The parties agreed to file their proposed recommended orders on or before November 21, 2011. On November 17, 2011, LM Rentals filed a "Recommended Order." To date, neither Ms. Mossow nor the Odoms have filed any post hearing submittals.

FINDINGS OF FACT

1. LM Rentals owns 80 houses, which it rents. Mr. Peeples manages LM Rentals. LM Rentals contracts with Vantage to provide management of the rental properties, and Ms. Mossow is employed by Vantage. LM Rentals rented a house to the Odoms for approximately eight years, beginning in 2003.

2. Mrs. Odom is a Native American. Mr. Odom is White and is not a Native American. No evidence was presented to establish that either anyone from LM Rentals or Ms. Mossow was aware that Mrs. Odom is a Native American. Mrs. Odom's physical appearance, her speech, and her surname could reasonably lead one to think that she is not a Native American. Her appearance would lead one to believe that she is White. The application which the Odoms filled out to rent the house did not require the Odoms to state their race. Mrs. Odom never informed employees of LM Rentals or Ms. Mossow that she is a Native American.

3. Mrs. Odom claims that her children have darker skin than she, and, therefore, Ms. Mossow and employees of LM Rentals should have known that she is a Native American by looking at her children. However, no testimony was presented that

   Ms. Mossow or anyone from LM Rentals ever met Mrs. Odom's children prior to the filing of the discrimination complaint. Ms. Mossow did not meet any of Mrs. Odom's children until a short time before the final hearing when she delivered copies of

   
   

   exhibits to the Odoms' home. Mr. Peeples, the representative of LM Rentals, did not meet the Odoms' children and never met the Odoms until a few days before the final hearing.

4. The house which the Odoms rented from LM Rentals developed a mold problem. Instead of bringing the mold problem to the attention of Ms. Mossow or anyone at LM Rentals, the Odoms contacted the Polk County Health Department (Health Department), which sent an environmental specialist to investigate the mold situation in January 2010.

5. LM Rentals received a letter from the Health Department concerning the mold. LM Rentals hired a third-party testing company to test the house for mold. The coils on the air conditioner were replaced.

6. The Odoms were not satisfied and requested that Ms. Mossow find them another rental house in the same school district in which they currently resided. LM Rentals has an average vacancy rate of five percent, which equates to about four houses at any given time. At the time that the Odoms

   requested to be relocated, there was only one house vacant in the school district which the Odoms wanted. The Odoms did not like the house and refused to relocate.

7. Mrs. Odom claims that there were other houses available, but could not point to any specific house. Her claim is based on sheer speculation.

   
   

8. The Odoms requested that the carpet be replaced, but, based on the tests of the third-party testing company,

   LM Rentals refused to do so.

   
   

9. About the time they were having the mold problems, the Odoms' daughter was suspended from school. Mrs. Odom attributes the suspension to discrimination by Respondents. Mrs. Odom called, as a witness, the teacher who made the referral which resulted in Mrs. Odom's daughter being suspended. The teacher did not know Ms. Mossow and did not know Mr. Peeples. The teacher, who is also an attorney, was not sure if she had ever represented LM Rentals in the past as an attorney. The suspension was totally unrelated to any mold problems and any alleged discrimination.

10. Mrs. Odom also claims that her son was arrested for disorderly conduct about the time of the mold problem, and she lays the arrest at the door of Respondents. Her rationale for her claim is that the arrest happened at the time they were dealing with the mold issues and that LM Rentals knew people. There is not a scintilla of evidence to connect the arrest of the Odoms' son to any actions by Respondents.

11. In April 2010, during the period in which the mold was an issue, a code enforcement inspector saw a small grill on the Odoms' driveway, which was apparently a code violation. The inspector told the Odoms that the grill needed to be removed.

    
    

    LM Rentals received a letter from the code enforcement department stating that LM Rentals would be fined if the violation was not corrected. Ms. Mossow contacted the Odoms in an attempt to get the grill removed in order to avoid being fined. Mrs. Odom claims that Ms. Mossow and LM Rentals caused the code enforcement inspector to come to the Odoms' home and ask that the grill be removed. Mrs. Odom's claim is without merit. It is unlikely that Ms. Mossow or LM Rentals would request a code enforcement inspector to find a code violation which would result in LM Rentals, as owner of the property, being fined.

12. No evidence was presented to show that Respondents treated non-minorities any differently than the Odoms were

    treated.

    
    

    CONCLUSIONS OF LAW

    
    

13. The Division of Administrative Hearings has jurisdiction over the parties to and the subject matter of this proceeding. §§ 120.569 & 120.57, Fla. Stat. (2011).

14. The Odoms have alleged that Respondents discriminated against them based on their race in dealing with the mold problems that existed with the rental home in which the Odoms resided. Section 760.23(2), Florida Statutes (2010),2/ provides:

    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.

    
    

15. The Odoms have the ultimate burden of establishing discrimination by a preponderance of the evidence. § 760.34(5), Fla. Stat.

16. Discrimination covered by the Florida Fair Housing Act is the same discrimination as is prohibited under the federal Fair Housing Act. Savanna Club Worship Serv. v. Savanna Club Homeowners' Ass'n, 456 F. Supp. 2d 1223, 1224 (S.D. Fla. 2005). The Florida Fair Housing Act is patterned after the federal Fair Housing Act, 45 U.S.C. sections 3601 through 3631. Therefore, federal cases involving discrimination in housing are instructive and persuasive in interpreting section 760.23. Dornbach v. Holley, 854 So. 2d 211, 213 (Fla. 2d DCA 2002).

17. "Discriminatory intent may be established through direct or indirect circumstantial evidence." Johnson v. Hamrick, 155 F. Supp. 2d 1355, 1377 (N.D. Ga. 2001). Direct evidence of discrimination is "evidence that, if believed, proves the existence of a fact without inference or presumption." Wilson v. B/E Aerospace, Inc., 376 F.3d 1079, 1086 (11th Cir. 2004) (citation and quotation marks omitted). "[I]f the [complainant] offers direct evidence and the trier of fact accepts that evidence, then the [complainant] has proven

    
    

    discrimination." Maynard v. Bd. of Regents, 342 F.3d 1281, 1289 (11th Cir. 2003).

18. "[D]irect evidence is composed of 'only the most blatant remarks, whose intent could be nothing other than to discriminate' on the basis of some impermissible factor." Schoenfeld v. Babbitt, 168 F.3d 1257, 1266 (11th Cir. 1999). Because direct evidence of intent is often unavailable, those who claim to be victims of intentional discrimination "are permitted to establish their cases through inferential and circumstantial proof." Kline v. Tenn. Valley Auth., 128 F.3d 337, 348 (6th Cir. 1997).

19. Where a complainant attempts to prove intentional discrimination using circumstantial evidence, "the Supreme Court's shifting-burden analysis adopted in McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802-804, 36 L. Ed. 2d 668, 93 S. Ct. 1817 (1973), . . . is applicable." Laroche v. Denny's Inc.,

    62 F. Supp. 2d 1375, 1382 (S.D. Fla. 1999); see also Head v.

    
    

    Cornerstone Residential Mgmt., 2010 U.S. Dist. Lexis 99379, 19-

    
    

    20 (S.D. Fla. Sept. 22, 2010). "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, 168 F.3d at 1267 (citations omitted). If, however, the complainant fails to establish a prima facie case of discrimination, the matter ends.

20. The Odoms, in establishing their prima facie case of discrimination under McDonnell Douglas, are required to show:

    (1) that they are members of a protected class; (2) that they suffered an injury because of the alleged discrimination; and

    (3) that, based on their claimed class of Native Americans, they were denied the provision of services protected by the Florida Fair Housing Act, which were available to other tenants who were not Native Americans.

21. Mr. Odom is not a Native American. Although

    
    

    Mrs. Odom is a Native American, Respondents were not aware that she is a Native American and could not tell by her physical appearance that she is a Native American. In order to prove a prima facie case of discrimination, Mrs. Odom must establish that Respondents knew or should have known from her appearance or other means that she is a Native American. She has failed to do so.

    
    

22. Even if Mrs. Odom had established that Respondents knew she is a Native American, she has presented no evidence that Respondents failed to relocate the Odoms in the same school district in which they resided or failed to replace the carpet in the house because Mrs. Odom is a Native American. No evidence was presented that other tenants, who were not Native Americans, were treated differently by Respondents.

23. The Odoms have failed to establish a prima facie case of discrimination.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Florida Commission on Human Relations enter a final order dismissing Lawrence and Candace Odom's Petition for Relief.

DONE AND ENTERED this 6th day of December, 2011, in Tallahassee, Leon County, Florida.

S

SUSAN BELYEU KIRKLAND

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 6th day of December, 2011.

ENDNOTES

1/ Ms. Mossow's name was misspelled in the complaint and later in the Petition for Relief.

2/ Unless otherwise indicated, all references to the Florida Statutes are to the 2010 version.

COPIES FURNISHED:

Lawrence Odom Candace Odom

6368 Alamanda Hills Drive Lakeland, Florida 33813

Rebakah Mossow

Vantage Property Management, LLC 1925 East Edgewood Drive, Suite 100

Lakeland, Florida 33803

Michael Peeples LM Rentals II, LLC

1925 East Edgewood Drive, Suite 100

Lakeland, Florida 33803

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

Tallahassee, Florida 32301

Larry Kranert, 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: 11-003060

Orders for Case No: 11-003060