LINDA D. SMITH,
vs.
Case No. 18-2698
Respondent.
Pursuant to notice, a final hearing was held in this matter on July 16, 2018, by video teleconference in Tallahassee and Gainesville, Florida, before Yolonda Y. Green, a duly-designated Administrative Law Judge of the Division of Administrative Hearings (“Division”).
For Petitioner: Linda D. Smith, pro se
Whether Respondent discriminated against Petitioner in the rental of a dwelling based on her race, in violation of Florida Fair Housing Act, chapter 760, Part II, Florida Statutes (2015).
On August 22, 2017, Petitioner, Linda D. Smith (“Ms. Smith” or “Petitioner”), filed a Housing Discrimination Complaint with the Florida Commission on Human Relations (“Commission”), alleging Respondent, Saul Silber Properties, LLC (“Saul Silber Properties” or “Respondent”), discriminated against her on the basis of her race. The basis for the claim of discrimination was that Respondent was issued a Notice of Non-Renewal of Lease Agreement (“Notice of Non-Renewal”) but her White neighbor did not receive the same notice.
Following its investigation, the Commission issued its Determination and Notice of Determination of “No Cause,” on May 4, 2018. On May 14, 2018, Petitioner filed a Petition for Relief requesting an administrative hearing regarding the Commission’s “No Reasonable Cause” determination.
On May 24, 2018, the Commission referred this matter to the Division, which was assigned to the undersigned. The undersigned issued a Notice of Hearing by Video Teleconference, scheduling the final hearing for July 16, 2018.
The final hearing commenced as scheduled. Petitioner testified on her own behalf and did not offer any other witnesses. Petitioner did not offer any exhibits at hearing. Respondent offered the testimony of Cynthia Osteen, property manager of Oak Glade Apartments (“Oak Glade”) and Christy
Bracken, assistant to Saul Silber and human resources employee of Saul Silber Properties. Respondent offered Composite Exhibit 1, which was admitted into evidence.
The proceeding was recorded by a court reporter but the parties did not order a copy of the transcript. Petitioner did not file a post-hearing submittal. However, Respondent filed an Amended Proposed Recommended Order, which has been carefully considered in preparation of this Recommended Order.
All statutory citations are to Florida Statutes (2015), which were in effect when the alleged discriminatory act occurred, unless otherwise indicated.
The following Findings of Fact are based on the exhibit admitted into evidence and testimony offered by witnesses at the final hearing.
Ms. Smith is a Black female and currently resides in Gainesville, Florida.
Saul Silber Properties is a company that manages Oak Glade located at 3427 Southwest 30th Terrace, Gainesville, Florida 32608. Respondent provides residential rental apartments in Gainesville, Florida. Saul Silber is the owner of Saul Silber Properties.
Ms. Smith is a former resident of apartment number 54I of Oak Glade.1/ Ms. Smith rented the apartment pursuant to a
residential lease agreement entered into on January 15, 2014.2/ The lease was for a one-year renewable term.
Ms. Smith filed a complaint with the Commission alleging Respondent issued her a Notice of Non-Renewal of her lease agreement on the basis of her race.
The Commission issued a “No Cause” determination and Ms. Smith filed a Petition for Relief, which is the matter before the undersigned.
During her tenancy at Oak Glade, Ms. Smith had raised numerous complaints with the property manager regarding matters involving her neighbor, Anne E. Dowling. Ms. Dowling, who was White, was a former resident of apartment number 54H.
Ms. Smith’s issues with Ms. Dowling included complaints concerning smoking, loud music, non-residents living in the apartment, the number of visitors outside Ms. Dowling’s apartment, and Ms. Dowling’s cat scratching her car. All of the complaints were addressed and resolved by the property manager.
The incident that led to the major blow-up between the neighbors involved Ms. Smith and Ms. Dowling’s daughter.
Ms. Smith and Ms. Dowling’s daughter were involved in a verbal altercation after Ms. Smith verbally reprimanded Ms. Dowling’s granddaughter (age range of 7-9 years old) and her friend.
Ms. Smith testified that the two girls turned their backs to her, bent over, and wiggled their buttocks in a side-to-side
motion. Ms. Smith understood this gesture to be disrespectful and a suggestion to “kiss their behinds.” Ms. Dowling’s daughter was not a resident of the apartment complex.
The altercation was so loud that Ms. Osteen heard people “screaming” while she was in her office. Ms. Osteen discovered Ms. Smith and Ms. Dowling’s daughter involved in a screaming match. Ms. Osteen later consulted with the senior property manager about the incident and it was determined that both Ms. Dowling and Ms. Smith would be issued a Notice of
Non-Renewal.
On March 15, 2016, Respondent issued Ms. Smith and Ms. Dowling a Notice of Non-Renewal, which was posted on the door of each tenant’s respective apartment. The notices did not state a reason for non-renewal. Ms. Dowling’s lease would expire effective May 30, 2016; and Ms. Smith’s lease would expire effective December 30, 2016.
Prior to expiration of her lease, Ms. Dowling advised Ms. Osteen that she was terminally ill and requested that she be permitted to stay at Oak Glade. Ms. Dowling explained that her support system was located in the area and due to financial limitations, moving from the complex would create a hardship for her. For these reasons, Ms. Dowling was permitted to enter a new lease and was moved to a different apartment. The decision to permit Ms. Dowling to remain at the complex was made by the
senior property manager. Ms. Dowling passed away approximately four months later, on September 28, 2016.
Other than her mistaken belief that Ms. Dowling did not receive a Notice of Non-Renewal, Ms. Smith did not offer any evidence to support her claim of housing discrimination in violation of the Florida Fair Housing Act.
CONCLUSIONS OF LAW
The Division of Administrative Hearings has jurisdiction over the parties to and the subject matter of this proceeding. § 120.57(1), Fla. Stat. (2018).
Florida’s Fair Housing Act, sections 760.20 through 760.37, Florida Statutes (2015), makes it unlawful to discriminate against any person in the provision of rental housing because of race. Section 760.23(1) provides as follows:
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.
Likewise, it is unlawful to discriminate against any person in the terms, conditions, or privileges of rental housing. Section 760.23(2) provides as follows:
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.
In cases involving a claim of rental housing discrimination, the burden of proof is on the complainant to prove discrimination by a preponderance of the evidence.
§ 760.34(5), Fla. Stat.
The Florida Fair Housing Act is patterned after Title VIII of the Civil Rights Act of 1968, as amended by the Fair Housing Act of 1988, and discrimination covered under the Florida Fair Housing Act is the same discrimination prohibited under the Federal Fair Housing Act. Savannah Club Worship Serv. v. Savannah Club Homeowners’ Ass’n, 456 F. Supp. 2d 1223, 1224
(S.D. Fla. 2005); see also Loren v. Sasser, 309 F.3d 1296, 1300 (11th Cir. 2002). When “a Florida statute is modeled after a federal law on the same subject, the Florida statute will take on the same constructions as placed on its federal prototype.” Brand v. Fla. Power Corp., 633 So. 2d 504, 509 (Fla. 1st DCA
1994); see also Milsap v. Cornerstone Residential Mgmt.,
2010 U.S. Dist. LEXIS 8031 (S.D. Fla. 2010); Dornbach v. Holley,
854 So. 2d 211, 213 (Fla. 2d DCA 2002); Fla. Dep't of Cmty. Aff. v. Bryant, 586 So. 2d 1205 (Fla. 1st DCA 1991).
A plaintiff may proceed under the Fair Housing Act under theories of either disparate impact or disparate treatment, or both. Head v. Cornerstone Residential Mgmt.,
2010 U.S. Dist. LEXIS 99379 (S.D. Fla. 2010). To establish a prima facie case of disparate impact, Petitioner would have to prove a significantly adverse or disproportionate impact on a protected class of persons as a result of Respondent’s facially- neutral acts or practices. Head v. Cornerstone Residential
Mgmt., supra, (citing E.E.O.C. v. Joe’s Stone Crab, Inc., 220 F.3d 1263, 1278 (11th Cir. 2000)). To prevail on a disparate treatment in housing claim, Petitioner would have to produce evidence that she was treated differently than similarly situated tenants. Id. (citing Schwarz v. City of Treasure
Island, 544 F.3d 1201, 1216 (11th Cir. 2008) and Hallmark Dev.,
Inc. v. Fulton Cnty., 466 F.3d 1276, 1286 (11th Cir. 2006)).
In establishing that she was the subject of discrimination based upon her race, Petitioner could either produce direct evidence of discrimination that motivated disparate treatment in the provision of services to her, or prove circumstantial evidence sufficient to allow the trier-of- fact to infer that discrimination was the cause of the disparate treatment. See King v. Auto, Truck, Indus. Parts & Supply,
21 F. Supp. 2d 1370, 1381 (N.D. Fla. 1998).
Direct evidence is evidence that, if believed, would prove the existence of discriminatory intent without resort to inference or presumption. Denney v. City of Albany, 247 F.3d
1172, 1182 (11th Cir. 2001); Holifield v. Reno, 115 F.3d 1555,
1561 (11th Cir. 1997). Courts have held that “‘only the most blatant remarks, whose intent could be nothing other than to discriminate . . .’ will constitute direct evidence of discrimination.” Damon v. Fleming Supermarkets of Fla., Inc., 196 F.3d 1354, 1358-59 (11th Cir. 1999)(citations omitted).
However, evidence that amounts to no more than mere speculation on the part of the complainant concerning the motives of the Respondent 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. Of course, direct evidence of discrimination is not necessary . . . .
However, a jury cannot infer discrimination from thin air. Plaintiffs have done little more than cite to their mistreatment and ask the court to conclude that it must have been related to their race. This is not sufficient.”)
Petitioner presented no direct evidence of discrimination by Respondent related to its issuance of a Notice of Non-Renewal of the lease agreement. There were no statements or acts of any kind that could have been construed to have been directed to Petitioner’s race.
When there is no direct evidence of discrimination, fair housing cases are subject to the three-part test set forth in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973), and
Texas Department of Community Affairs v. Burdine, 450 U.S. 248
(1981). Boykin v. Bank of Am. Corp., 162 Fed. App’x. 837, 838; 2005 U.S. App. LEXIS 28415 (11th Cir. 2005); see also Massaro v.
Mainlands Section 1 & 2 Civic Ass’n, 3 F.3d 1472, 1476 n.6 (11th Cir. 1993); Sec’y, U.S. Dep’t of Hous. & Urban Dev. on behalf of
Herron v. Blackwell, 908 F.2d 864, 870 (11th Cir. 1990); Savannah Club Worship Serv., 456 F. Supp. 2d at 1231-32.
Under the three-part test, Petitioner has the initial burden of establishing a prima facie case of unlawful discrimination. McDonnell Douglas, 411 U.S. at 802; Burdine,
450 U.S. at 252-253; Burke-Fowler v. Orange Cnty., 447 F.3d 1319, 1323 (11th Cir. 2006); Valenzuela v. GlobeGround N. Am.,
LLC., 18 So. 3d 17, 22 (Fla. 3rd DCA 2009). “The elements of a prima facie case are flexible and should be tailored, on a case- by-case basis, to differing factual circumstances.” Boykin,
162 F. App’x. at 838-39, (citing Fitzpatrick v. City of Atlanta,
2 F.3d 1112, 1123 (11th Cir. 1993)).
If Petitioner is able to prove a prima facie case by a preponderance of the evidence, the burden shifts to Respondent to articulate a legitimate, non-discriminatory reason for its actions. Burdine, 450 U.S. at 255; Dep’t of Corr. v. Chandler,
582 So. 2d 1183 (Fla. 1st DCA 1991). Respondent has the burden of production, not persuasion, to demonstrate to the finder of fact that its action as a property manager, upon which the
complaint was made, was non-discriminatory. Chandler, 582 So.
2d 1183. This burden of production is “exceedingly light.” Holifield, 115 F.3d at 1564; Turnes v. Amsouth Bank, 36 F.3d
1057, 1061 (11th Cir. 1994).
If Respondent produces evidence that the basis for its action was non-discriminatory, then Petitioner must establish that the proferred reason was not the true reason but merely a pretext for discrimination. St. Mary’s Honor Ctr. v. Hicks,
509 U.S. 502, 516-18 (1993). In order to satisfy this final step of the process, Petitioner must “show[] directly that a discriminatory reason more likely than not motivated the decision, or indirectly by showing that the proferred reason for the [housing] decision is not worthy of belief.” Chandler,
582 So. 2d at 1186 (citing Burdine, 450 U.S. at 252-56).
Pretext can be shown by inconsistencies and/or contradictions in testimony. Reeves v. Sanderson Plumbing Prods., 530 U.S. 133,
143 (2000); Blackwell, supra; Woodward v. Fanboy, L.L.C.,
298 F.3d 1261 (11th Cir. 2002). The demonstration of pretext “merges with the plaintiff’s ultimate burden of showing that the defendant intentionally discriminated against the plaintiff.” Holifield, 115 F.3d at 1565.
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), aff’d, 679 So. 2d 1183
(Fla. 1996) (citing Arnold v. Burger Queen Sys., 509 So. 2d 958
(Fla. 2d DCA 1987)).
The standard established in McDonnell-Douglas requires
Petitioner to establish in her prima facie case that: (1) she belongs to a protected class; (2) Respondent was aware of it;
she was ready, willing, and able to rent the property; and
Respondent refused to allow her to rent the property.
Jackson v. Comberg, Case No. 8:05-cv-1713-T-24TMAP, 2006 U.S.
Dist. LEXIS 66405, *9 (M.D. Fla. 2006). Richards v. Bono, 2005 W.S. Dist. Lexis 43585, 2005 WL 1065141 (M.D. Fla. May 2, 2005).
Here, Petitioner is Black, and is, thus, a member of a protected class. Respondent was also aware of Petitioner’s race. Petitioner established that she was ready, willing, and able to rent the apartment. Finally, Respondent refused to allow her to continue renting the property.
Petitioner has established a prima facie case of discrimination based on race.
Although Petitioner met the burden to demonstrate a prima facie case for discrimination, Respondent established that issuance of the Notice of Non-Renewal for engaging in a verbal altercation on the premises was a legitimate, non-discriminatory basis for refusing to allow her to continue renting the apartment. Ms. Smith argued that she was treated less favorably than Ms. Dowling because of her race. However, like Ms. Smith,
Ms. Dowling, who did not belong to a protected class, received a Notice of Non-Renewal as well.
Further, Petitioner failed to demonstrate that the decision to not renew Ms. Smith’s lease was mere pretext for unlawful racial discrimination. Although Ms. Dowling was subsequently permitted to remain at Oak Glade, Respondent’s decision to allow her to stay (and not permit Ms. Smith to stay at the complex) due to her terminal illness was also legitimate and non-discriminatory.
Based on the foregoing, Ms. Smith did not prove by a preponderance of evidence that Respondent discriminated against her in violation of the Florida Fair Housing Act.
Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Florida Commission on Human Relations issue a final order: finding that Respondent, Saul Silber Properties, LLC, did not commit a discriminatory housing practice against Petitioner, Ms. Smith; and dismissing the Petition for Relief filed in FCHR No. 2017H0320.
DONE AND ENTERED this 29th day of August, 2018, in Tallahassee, Leon County, Florida.
YOLONDA Y. GREEN
Filed with the Clerk of the Division of Administrative Hearings this 29th day of August, 2018.
1/ Ms. Smith previously lived at Oak Glade Apartments in a different apartment but terminated the previous agreement for reasons unrelated to this matter.
2/ Petitioner moved into the apartment at the middle of the month and as a result, her one-year rental term would begin on January 1 of each calendar year.
Tammy S. Barton, Agency Clerk Florida Commission on Human Relations Room 110
Cheyanne Costilla, General Counsel Florida Commission on Human Relations Room 110
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.
