SUDHIR KOTECHA,
Petitioner,
vs.
WESTMINSTER SERVICES, INC.; WESTMINSTER ASBURY/ASBURY ARMS, INC.; JOSEPH DOWN; AND DENISE MILES,
Respondents.
/
Case No. 20-0979
RECOMMENDED ORDER
On December 10, 2020, and February 8, 2021, Administrative Law Judge (ALJ) Robert J. Telfer III, of the Florida Division of Administrative Hearings (DOAH), conducted an evidentiary hearing pursuant to section 120.57(1), Florida Statutes (2018), in Tallahassee, Florida, via Zoom web-conference.
APPEARANCES
For Petitioner: Nicholas A. Vidoni, Esquire
Vidoni Law PLLC
959 North Cocoa Boulevard, Unit 5
Cocoa, Florida 32922
For Respondents: Stephen G. Henderson, Esquire
Henderson Legal Group 5419 Village Drive
Viera, Florida 32955
STATEMENT OF THE ISSUES
Whether Respondents discriminated against Petitioner, Sudhir Kotecha, in violation of the Florida Fair Housing Act (FHA), chapter 760, part II, Florida Statutes, and, if so, the appropriate penalty; and whether Petitioner Sudhir Kotecha participated in the instant proceeding for an improper
purpose, and, if so, whether the undersigned should recommend an award of
attorney’s fees and costs to Respondents pursuant to section 120.595.
PRELIMINARY STATEMENT
On November 27, 2018, Mr. Kotecha filed a Housing Discrimination Complaint with the Florida Commission on Human Relations (FCHR), alleging that Respondents (as well as Joseph Downs and Denise Miles) discriminated against him based upon his national origin and handicap, in violation of the FHA. Mr. Kotecha’s complaint stated, verbatim:
Complainant Sudhir Kotecha identifies as a person of Indian race and has a physical disability. Therefore, Complainant belongs to a class of persons whom the Fair Housing Act (“the Act”) protects from unlawful discrimination by virtue of national origin and disability. Complainant rents an apartment in “Westminster Asbury” located at 1430 Dixon Blvd, Cocoa, FL 32922, which is owned by Asbury Arms, Inc. under the rules and regulations of Respondent Westminster Services, Inc. and Managed by Property Manager, Joseph A. Down.
Complainant alleged that he is of Indian national origin and he also has a physical disability. Complainant alleged that since he moved into the community, Respondents Joseph A. Down and Denise Miles have constantly harassed him and have call the police on him to have him arrested and wrongfully accused him in order to have him evicted from the community. Complainant alleged that the most recent instance of the police being called was October 9, 2018 and complainant was arrested. Complainant further alleged that he is not allowed to use the computers outside the east building, but it clearly states that all residents can use the computers in any of the buildings. Complainant also alleged he was forced to pay a
$75.00 fee to have the outside of his door area cleaned this is an area where is commonly walked
by everyone and he feels it is not fair for him to have to pay, he asked for a written request of the payment but never received one, however he did pay for the fee. Complainant also alleged he is not allowed to get received any extra food like other tenants do. Complainant alleged that on November 19, 2018 Respondent Joseph Down told him that he would “evict him.” Respondents also referred to the complainant as “a dirty Indian.” Complainant alleged he remains in good standing with Respondent’s rules and regulations, and that he has not caused any issues in the community. Complainant believes that Respondents are using the police as a tool of harassment in an effort to cause him to be evicted from the community. As such, Complainant believes that Respondents are subjecting him to a hostile living environment in a discriminatory manner based on his national origin and disability.
On January 28, 2020, FCHR issued a “Notice of Determination of No Cause,” finding that there was no reasonable cause to believe that Respondents had committed a discriminatory housing practice against Mr. Kotecha.
On February 20, 2020, Mr. Kotecha filed a charge of housing discrimination, through his submission of a Technical Assistance Questionnaire for Housing Complaint, with FCHR, which stated, in part, and again, verbatim:
October 8, 2018. Joseph Downs called Sudhir Kotecha’s sister. His sister’s name is Gita V. Thakkar. Her phone numbers are [redacted]. Mr. Downs is the administrator at Asbury Arms. Mr. Downs told her that Mr. S.K. was wrongly taking social security and that Mr. Kotecha is stealing small items. Mr. Downs threatened that he could get Mr. Kotecha deported back to India and Mr. Downs sent Mr. Kotecha to jail on 9-Oct.-2018 Tuesday with IL-LEGAL [sic] allegation of burglary
and theft. Downs enjoyed, that S.K. was hand- cuffed.
November 23, 2018. Asbury Arms filed an eviction against Mr. Kotecha based upon a false allegation that he stole a chair. That complaint is filed in Brevard County, and bears Case Number 2018-CC- 054716. Based upon Mr. Down’s comments on October 8, 2018, I believe that this eviction was based upon my ethnicity and nationality as a person of Eastern Indian descent, and based upon my status as an immigrant who was not born in the United States. The eviction action was based upon Joseph Down’s illegal decision.
October 9, 2018. Asbury Arms, through Joseph Downs gave me an eviction notice terminating my tenancy. This notice was based upon a resident’s false claim that I stole a chair. Mr. Downs never obtained my version of the events. If he had, I would have told him that I thought the chair was abandoned and free for the taking, and that I returned the chair on the next day. Mr. Downs never reported this good fact to police and courts.
I believe these actions were discriminatory based upon the content of Mr. Downs’ conversation with my sister, where he implied that a U.S. citizen who was not born in the U.S. should not be able to receive social security benefits. In that same conversation, he also threatened to have me deported, implying his belief that I should not be allowed on U.S. soil because I am an immigrant from India.
FCHR transmitted Mr. Kotecha’s charge, which it construed as a Petition for Relief from Unlawful Housing Practice, to DOAH, which thereupon assigned the undersigned ALJ to conduct an evidentiary hearing.
On February 28, 2020, Respondents, which included Joseph Downs, as well as Hank Keith1, filed a Notice of Acknowledgement of Filing and Notice to the Court, which indicated that a named Respondent, “Westminster Asbury North, Inc.,” did not exist. Mr. Kotecha, who was proceeding pro se, filed a Response that opposed Respondents’ contentions on the proper parties to this proceeding. On March 10, 2020, the undersigned entered an Order Correcting Case Caption, Renaming Respondents, and Extending Date to Respond to Initial Order, which noted that FCHR, in transmitting the Petition to the Division, made a scrivener’s error in naming the Respondent as Westminster Asbury North, Inc., when it appeared that all previous documents filed with FCHR indicated that the Respondents to this proceeding were Westminster Services, Inc., Westminster Asbury/Asbury Arms, Inc., Joseph Downs, and Denise Miles, and ordered that the Clerk of the Division correct the case caption in this proceeding accordingly.
The undersigned originally noticed this matter for final hearing on April 16, 2020. On April 8, 2020, Mr. Kotecha, pro se, filed a Motion for
Continuance. On April 9, 2020, the undersigned entered an Order Canceling Hearing, which requested the parties to advise of available hearing dates no later than April 16, 2020. On April 14, 2020, Respondents Westminster Services, Inc., Westminster Asbury/Asbury Arms, Inc., and Joseph Downs, filed a Notice of Non-Representation of Respondent Denise Miles and Motion to Clarify, in which counsel for these named Respondents indicated that he did not represent Respondent Denise Miles, who was a tenant of Asbury Arms, Inc., in Cocoa, Florida. Mr. Kotecha, pro se, filed a Response on
April 15, 2020. The undersigned thereafter noticed this matter for final hearing on June 18, 2020.
1 It does not appear that Mr. Kotecha named or listed Hank Keith as a party in any of his filings with FCHR. Accordingly, Mr. Keith has never been a party to this proceeding.
On April 27, 2020, Mr. Kotecha, pro se, filed a Motion to Compel Respondent Denise Miles, Thrift Store Operator, which contended that
Ms. Miles had not responded to discovery or provided available hearing dates. The parties filed numerous discovery requests and objections. On June 2, 2020, the undersigned noticed a telephonic motion hearing for June 9, 2020.
On June 8, 2020, Mr. Kotecha, pro se, filed a Motion for Continuance, to which the Respondents (with the exception of Ms. Miles) objected, on June 9, 2020. After conducting a telephonic hearing on June 9, 2020, the undersigned entered an Order to Show Cause, noting that it did not appear that
Ms. Miles, a tenant at the same property where Mr. Kotecha resides, was a proper party in an FHA case, ordering Mr. Kotecha to show cause why the undersigned should not recommend that Ms. Miles be dismissed from this matter, and further ordering that the undersigned would not rule on
Mr. Kotecha’s pending Motion to Compel until after the time for responding
to the Order to Show Cause expired.
On June 12, 2020, the undersigned entered an Order Granting Continuance, requesting availability in August 2020, to conduct the final hearing in the matter. On June 15, 2020, the undersigned entered an Order Denying Motion to Compel, holding, in part, that Ms. Miles was not an “agent” of Westminster Services, Inc., or Westminster Asbury/Asbury Arms, Inc., and that the undersigned would recommend to FCHR that Ms. Miles be dismissed from this matter as a party.
The undersigned, on July 2, 2020, then noticed this matter for final hearing on August 26, 2020. Mr. Kotecha, pro se, filed a request for continuance on July 2, 2020, and on July 13, 2020, filed a Motion on Hearing Date and Telephonic Hearing If Necessary. On August 5, 2020, the undersigned entered an Order Granting Continuance and Rescheduling
Hearing by Zoom Conference, which noticed this matter for final hearing on September 22, 2020.
On August 27, 2020, Mr. Vidoni filed a Notice of Appearance on behalf of Mr. Kotecha, and, on September 4, 2020, filed a Notice of Dropping Respondents Joseph Downs and Denise Miles. On September 18, 2020, Respondents filed a Motion to Continue Final Hearing and Request for Telephonic Hearing, which the undersigned granted that same date. The undersigned conducted a telephonic status conference on September 22, 2020, and on October 23, 2020, noticed this matter for final hearing on
December 10, 2020.
The undersigned conducted the final hearing on December 10, 2020, by Zoom web-conference; as the parties were unable to complete the hearing on that date, the undersigned continued the final hearing, which reconvened on February 8, 2021, by Zoom web-conference. The undersigned took official recognition of Respondents’ Exhibits R1 through R3, which consisted of the copies of the various pleadings related to Mr. Kotecha’s criminal matter, including the Information/Charging document, the Probable Cause Affidavit, and the Judgment and Sentence, subject to Petitioner’s hearsay objections concerning their contents. Petitioner presented the testimony of: Gita Thakkar; Jane Mickey Furman; Don Miles; Robert Tarasavage; Phyllis Sandra Jeter; Rita Lynar; Elizabeth Butler; Joseph Downs; and
Mr. Kotecha.2 The undersigned admitted Petitioner’s Exhibits P1, P4 through
P7, and P11 into evidence. Respondents called no additional witnesses. The undersigned admitted Respondents’ Exhibits R5, R6, R8 through R11, and R14 into evidence.
On February 5, 2021, Respondents filed a Motion for Attorney’s Fees, pursuant to section 120.595, contending that Mr. Kotecha participated in the instant proceeding for an “improper purpose.” Respondents’ Motion for Attorney’s Fees requests that the undersigned determine that Mr. Kotecha participated in the instant proceeding for an improper purpose, and recommend an award of Respondents’ attorney’s fees and costs, payable by Mr. Kotecha.
The complete four-volume Transcript of the final hearing was filed with DOAH on April 2, 2021. Petitioner and Respondents timely submitted proposed recommended orders on April 12, 2021, which the undersigned has considered in the preparation of this Recommended Order.
All statutory references are to the 2018 codification of the Florida Statutes, unless otherwise indicated.
2 On February 2, 2021—after the first day of the final hearing—Petitioner filed a Second Amended Witness and Exhibit List that, inter alia, added an additional witness who Petitioner had not previously listed or disclosed, Barbara Shillings. On February 5, 2021, Respondents filed a Motion to Strike, Motion to Quash, Motion for Protective Order and Motion for Fees which, inter alia, argued that Petitioner’s addition of Ms. Shillings as an additional witness violated the undersigned’s March 20, 2020, Order of Pre-hearing Instructions, which required that the parties provide each other with a list of names and addresses of their respective witnesses no later than seven days before the final hearing, and that each party file a witness list with DOAH no later than five days prior to the final hearing. The undersigned considered this issue at the beginning of the continuation of the final hearing on February 8, 2021, and excluded Ms. Shillings as a witness from the final hearing because her late addition violated the Order of Pre-hearing Instructions.
FINDINGS OF FACT
Respondent Westminster Services, Inc., owns and operates several retirement communities across Florida. The Westminster property in this matter is Respondent, Westminster Asbury/Asbury Arms, which is located in Cocoa, Florida. Mr. Downs is the administrator for Westminster’s Cocoa site, and manages its facilities.
Mr. Kotecha is currently, and during the time period relevant to this matter was, a resident of Asbury Arms North, a residential complex within the Westminster Asbury/Asbury Arms residential community. Within the Asbury Arms North residential complex is a resident-operated thrift store, which Respondents do not operate or control, and a Florida Room, which is a common area with a table, vending machines, and other items.
Mr. Kotecha entered into a Lease Agreement with Asbury Arms, Inc., d/b/a Westminster Asbury South, on June 6, 2016. The Lease Agreement was for a term of one year, and allowed for successive terms of one year “unless automatically terminated as permitted by paragraph 23 of this Agreement.” Paragraph 23 of the Lease Agreement provides for “Termination of Tenancy.”
Mr. Kotecha was born in India, has brown skin, and immigrated from India to the United States. He became a United States Citizen in 2010. 2018 Rocking Chair Incident
In July 2018, a maelstrom arose after Mr. Kotecha took a rocking chair from the Florida Room of Asbury Arms North to his apartment, and then returned it to the Florida Room the next day.
According to Mr. Kotecha, residents leave various items in the Florida Room that are “free” for other residents to take. He also testified that the thrift store sometimes places items that are too large for its sales room in the Florida Room with price tags, but that if a price tag is not on the item, it is considered to be “free” as well.
Mr. Kotecha testified that he noticed the rocking chair in the Florida Room in July 2018, with no price tag, and decided to take it. After deciding that it did not fit well in his apartment, he returned it the next day.
Mr. Downs testified that he was on vacation in nearby Indialantic during the time that Mr. Kotecha took the rocking chair. He stated that he received a call from the Cocoa Police Department requesting video of an unrelated purse snatching in a parking lot connected to the Westminster Asbury/Arbury Arms residential community, so he returned to his office to do so. The evidence presented at the final hearing showed that Respondents operate numerous cameras throughout the common areas of the Westminster Asbury/Asbury Arms residential community.
While locating the purse snatching video to provide to the Cocoa Police Department, Mr. Downs also noticed a post-it note that asked him to determine who took the rocking chair, and when. Mr. Downs testified that he “burned” videos of the purse snatching and the taking of the rocking chair, to compact discs, left the compact discs at the front desk for the Cocoa Police Department, and returned to his vacation.
Mr. Downs testified that he later learned that Denise Miles, who runs the resident-operated thrift store, had initially asked for video of who took the rocking chair, and that she had indicated that the Cocoa Police Department requested a copy of the video.
The undersigned has viewed the video of Mr. Kotecha taking the rocking chair from the Florida Room in July 2018. The video shows
Mr. Kotecha, by himself, in the Florida Room, sitting on his walker, opposite from the rocking chair. He takes several minutes to move over to the rocking chair, sits and rocks in it, and then decides to place it on top of his walker. He waits to exit the Florida Room, via an external exit to the parking lot, until one or two individuals (whose legs can be viewed through a row of windows, from the camera angle of the video) walk by the exit. He then wheels the rocking chair through the parking lot (as opposed to the interior
entrance/exit), and, presumably, through another entrance to the building, and through a hall to the elevator. He parks the walker/rocking chair around the corner from an elevator, and then proceeds to summon the elevator. Once the doors open, he retrieves the walker/rocking chair from around the corner, places it on the elevator, and, ultimately, takes it to his apartment on an upper floor. Mr. Kotecha appears to take an overly-cautious, and circuitous, route to transport the rocking chair from the Florida Room to the hallway next to the elevator, and ensures that the rocking chair is not visible from the elevator (or anyone entering or exiting it) before he places it on the elevator.
In August 2018, the Brevard County Sheriff’s office arrested
Mr. Kotecha and charged him with burglary of a structure, and petit theft, related to the taking of the rocking chair. Mr. Downs testified that neither he, nor any agent of Respondents, filed a criminal complaint concerning
Mr. Kotecha. However, when law enforcement initially arrived at Asbury Arms North to arrest Mr. Kotecha and, being unable to locate him, left,
Mr. Downs subsequently called them back to inform them that Mr. Kotecha was at his apartment, which eventually led to his arrest.
After Mr. Kotecha’s arrest, Mr. Downs testified that he sent staff members to his apartment to “make sure there’s no running water, make sure that the air conditioner’s set to the right temperature. And we do that for precautionary measures to protect our property and our … residents.”
The staff members took numerous photographs of Mr. Kotecha’s
apartment, which Mr. Downs described as “deplorable.”
The undersigned has reviewed the photographs taken of Mr. Kotecha’s apartment. The photographs depict: a kitchen that has items piled up on every empty counter space, a refrigerator/freezer that appears over packed with various food items that would make it difficult for the door to close, a sink full of various food containers and at least one piece of fruit, and an oven with newspaper inside of it; a cluttered living room with items and trash, piled considerably; a bedroom with items piled on the bed and every available
surface; various areas with extension cords and power strips that have multiple items plugged into them; a bathroom with trash piled up, and multiple partially-filled buckets near the toilet and inside the shower stall. Based on these photographs, the apartment appeared unsanitary, difficult to navigate, and, at least based on the paper in the oven, a fire hazard.
Soon after Mr. Kotecha’s arrest, Mr. Downs contacted Mr. Kotecha’s sister, Ms. Thakkar, who he provided as an emergency contact to Respondents, to inform her of the arrest. Ms. Thakkar testified that
Mr. Downs made numerous threatening and insensitive remarks related to Mr. Kotecha’s ethnicity and immigration status during this telephone call; Mr. Downs credibly denied making such remarks.
Ms. Thakkar assisted with paying bond for Mr. Kotecha’s release from jail. Mr. Kotecha returned to his residence at Asbury Arms North after his arrest. He subsequently pleaded guilty to a lesser (misdemeanor) crime, paid a fine, and his adjudication was withheld.
Notice of Termination of Lease Agreement and Complaint
On October 9, 2018, Respondents delivered—by hand and regular mail—a letter, signed by Mr. Downs, that served as a 30-day notice to Mr. Kotecha that Respondents were terminating Mr. Kotecha’s lease, and
that he needed to vacate his apartment by November 9, 2018. The October 9, 2018, letter further stated:
Your Lease Agreement is being terminated pursuant to paragraph 8(b)(2) of the Lease Agreement. Paragraph 8(b)(2) allows Asbury Arms Inc. to terminate the Lease Agreement for your material noncompliance with the Lease Agreement. By signing the Lease Agreement you agreed to be bound by the Rental Lease Agreement and House Rules that are incorporated into the lease as well as the terms of the lease.
Unsanitary health conditions of your apartment after being given multiple warnings that dates back to October 3, 2016
Storage of bicycles in apartment after numerous warnings not to do so
Law enforcement activity including his arrest for burglary and theft
Theft of personal property owned by someone other than himself
Fire safety concerns by placing papers in oven
Your actions, as outlined above, constitute continued lease violations. As such, Asbury Arms Inc. dba Westminster Asbury is forced to terminate your Lease Agreement. If you remain in the unit after the specified termination date of November 9, 2018, Asbury Arms Inc., dba Westminster Asbury may seek to enforce the termination of the Lease Agreement in court. You have ten (10) days in which to discuss the termination of your Lease Agreement with Westminster Asbury which begins the earlier of 1) the date the notice was hand delivered to the unit or 2) the day after this notice was mailed. Moreover, if a judicial proceeding for eviction is instituted you may present defenses, if any, therein.
In November 2018, Asbury Arms, Inc., filed a Complaint for eviction in the County Court of Brevard County, Florida. In December 2018, Asbury Arms, Inc., filed an Amended Complaint for eviction. Based on the testimony and evidence presented at the final hearing, this amended complaint remains pending.
Mr. Kotecha’s Account of the 2018 Rocking Chair Incident and Termination
of Lease Agreement
Mr. Kotecha testified that he saw the rocking chair in the Florida Room in July 2018, and as there was no price tag on it, he took it to his apartment. The next day, he decided that he did not have enough room in his apartment, and returned it to the Florida Room. He testified that within this 24-hour period, Denise Miles became worried that the rocking chair was
missing, determined that Mr. Kotecha had taken it, called the police, and filed a criminal complaint. On cross-examination, when asked how he knew the rocking chair was free for the taking, Mr. Kotecha answered:
Because it was lying in Florida room without any price tag of thrift store. And even if it is thrift store price or anything, thrift store is totally illegally so the ownership of Dee Miles is illegal, so the complaint is totally illegal. Everything is illegal. And I was put to jail also totally illegally.
Despite a seeming acknowledgment that Denise Miles, and not Respondents, filed the criminal complaint that led to his 2018 arrest for the taking of the rocking chair, Mr. Kotecha later testified:
Joseph Downs is mastermind. He is Supreme Boss. And because of that, every staff member is afraid of him and whatever he says – Joseph Down says, the staff has to do that. Even if he or she doesn’t like to do that. Joseph Downs inspired, not only inspired, but encouraged Dee Miles to write this – to call the police and write a complaint about the stealing of that chair.
Q. How do you know that?
* * *
There is no authentic proof of it, but I believe strongly that.
In support of Mr. Kotecha’s testimony, Mr. Kotecha presented the testimony of fellow resident Ms. Lynar, who offered numerous photographs that she took of the Florida Room which showed various items that were “for sale” with price tags. She also testified that it’s not always clear whether something is free, or whether it belongs to the thrift store, as it depends on whether “Dee and Don Miles [who operate the thrift store] want to take
possession of it.” She testified that the rocking chair originally had a price tag
of $35, but at some point, the price tag had been removed, which she believed meant that the rocking chair was free.3
In describing the day he was arrested, Mr. Kotecha again laid the blame with Mr. Downs, claiming he concocted the following story to lure him from to Asbury Arms North so that the Cocoa Police Department could arrest him:
I got up in the morning and then I started to work to zone clean my apartment and then suddenly I remembered, oh I had to go to People’s Church for prayer and lunch.
So I – I left the room – the apartment halfway of zoning, take shower and shave my face and went to Peoples Church for prayer and lunch.
And then, when I went there, Joseph Downs totally, illegally lied to me that there are eight peoples – residents who will be given last one year’s rent back reimbursed and you will get – now, come
3 The undersigned notes that Ms. Lynar has filed previous housing discrimination complaints against Respondents, one of which was heard by the undersigned last year. First, she filed a charge of discrimination against Respondents in 2014, which was assigned DOAH Case
No. 15-2796, which ultimately resolved between the parties. Then, in 2018, ALJ Bruce Culpepper conducted a two-day final evidentiary hearing in DOAH Case No. 18-1314, and issued a Recommended Order that concluded that Ms. Lynar failed to meet her burden of proving that Respondents committed a discriminatory housing practice in violation of the FHA, and recommended that FCHR dismiss Ms. Lynar’s Petition for Relief. On October 1, 2019, FCHR entered a Final Order that adopted ALJ Culpepper’s Findings of Fact and Conclusions of Law, and dismissed Ms. Lynar’s Petition for Relief. See Lynar v. Westminster Ret. Communities Foundation, Inc., et al., Case No. 18-1314 (Fla. DOAH July 10, 2019; FCHR Oct. 1, 2019). Then, in 2019, Ms. Lynar filed yet another charge of housing discrimination (retaliation), and the undersigned conducted a two-day final evidentiary hearing in DOAH Case No. 20-1080. The undersigned issued a Recommended Order that
concluded that Ms. Lynar failed to meet her burden of proving that Respondents committed a discriminatory housing practice in violation of the FHA, and recommended that FCHR
dismiss Ms. Lynar’s Petition for Relief. On March 31, 2021, FCHR entered a Final Order that
adopted the undersigned ALJ’s Findings of Fact and Conclusions of Law, and dismissed Ms. Lynar’s Petition for Relief. See Lynar v. Westminster Communities, Inc., et al., Case No. 20-1080 (Fla. DOAH Jan. 4, 2021; FCHR Mar. 31, 2021). At the time of the most recent Lynar final hearing, Ms. Lynar was also the subject of an eviction action by Respondents. The undersigned has considered Ms. Lynar’s adverse position to Respondents in these previous matters, as well as her lack of success in such matters, in assessing her credibility as a witness in this proceeding.
in here, you will get – you will be getting free food every day or money for the food every day.
It was totally made story by Joe Downs. Totally lying and the – by telling me this thing, he wanted me to wait in the reception area. He told me, can you wait here. I’m preparing your paper. You are the last eight – eight men – eight residents.
And then he – he never prepared any paper, never took my sign and there was no benefits like this and – and he called BCSO. Brevard County Sheriff’s Office.
And they came and they handcuffed me and take me to jail. And even I didn’t know why I – I have been taken to jail. On the way, I asked them – the police – the sheriff why I am taken to jail.
Then he told me that, you entered in a prohibited area and you steal some – some furniture. That’s why.
Mr. Kotecha testified that the morning of his arrest, he had started cleaning his apartment, but was interrupted by attending a religious service and, ultimately, his arrest. He explained that the multiple buckets in his bathroom (one of which contained a floating comb) were full of hot water for cleaning. He explained that the reason for newspaper in his oven was because he had no room at this dining table to eat that day; instead, he used the door to the oven as a makeshift tabletop, placing the paper underneath his food. As he was in a hurry to leave, he testified that he did not have time to remove the paper from the oven. He stated that the multiple items in the sink were actually soaking with water, which would make them easier to clean later on.
Other Incidents Mentioned in Termination
The October 9, 2018, letter that served as a 30-day notice of
termination of Mr. Kotecha’s lease agreement referenced two additional
reasons for the termination: (a) unsanitary health conditions of your apartment after being given multiple warnings that dates back to October 3, 2016; and (b) storage of bicycles in apartment after numerous warnings not to do so.
With respect to the multiple warnings of unsanitary health conditions, Respondents introduced: (a) an October 3, 2016, Ten Day Notice of Non- Compliance with an Opportunity to Cure, which stated that Mr. Kotecha violated his Lease Agreement for “Health and safety violations. Specifically unsanitary health conditions and clutter which poses health and safety concerns….”; (b) a March 9, 2017, Ten Day Notice of Non-Compliance with an Opportunity to Cure, which stated Mr. Kotecha had violated his Lease Agreement for the same reasons stated in the October 3, 2016, Ten Day Notice; (c) a January 26, 2018, letter entitled “Hallway Carpet & Lease Violations,” which stated that the carpet in the hallway outside of his apartment will be cleaned by staff, as it is the property of Westminster
Asbury, and stated that “Mr. Kotecha was placed on probation for any further
material and or non-material violations of his rental lease agreement.”; and
(d) a February 19, 2018, Ten Day Notice of Non-Compliance with an
Opportunity to Cure, which stated that Mr. Kotecha had violated the “House Rules,” which are part of the Lease Agreement and which forbade the storage of bicycles in apartments, but in the designated bicycle parking area, and which further stated that Mr. Kotecha continued to store/chain his bicycles to stop signs or bus stop signs, as well as poles within the residential area.
Mr. Downs stated that Respondents had issued multiple previous warnings to Mr. Kotecha concerning unsanitary health conditions in his apartment. Mr. Downs testified that Mr. Kotecha had damaged the carpet outside of his apartment and tried to clean it, which resulted in more damage, and for which Respondents charged Mr. Kotecha a $75 cleaning fee.
Mr. Kotecha testified that Mr. Downs was “already biased against”
him when Respondents issued the various notices of violation because
Mr. Downs had warned Mr. Kotecha to stop taking multiple “free” loaves of bread that were occasionally left in the Florida Room for residents by some other organization, and generally denied that his apartment ever met the definition of being unsanitary. With respect to the carpet cleaning outside of his apartment, Mr. Kotecha testified that he was in the process of cleaning it, and questioned why Respondents charged him $75 to clean it if “it’s the job of Westminster Asbury.”
With respect to the storage of bicycles, Mr. Downs stated that it
involved an “issue of his chaining bicycles to light poles and different things
around our property here[,]” which he considered a “final warning.”
Mr. Kotecha testified that he locked his bikes to these poles because they were closer to the apartment building, and it was difficult for him to walk between the designated bicycle area and the apartment building.
Mr. Kotecha testified that Mr. Downs accommodated Mr. Kotecha and allowed him to lock his bike on nearby poles; Mr. Downs denied doing such an accommodation, but admitted that Mr. Kotecha continues to lock his bike on nearby poles.
Evidence of Other Residents Taking Property from Florida Room
Mr. Kotecha attempted to introduce evidence of residents taking property that did not belong to them, and who did not receive termination notices from Respondents, to show that Mr. Kotecha was treated differently. Much of this type of evidence concerned residents taking other residents’ walkers. However, the recollection of these witnesses was less than clear.
Ms. Furman (white female), a fellow resident of Asbury Arms North, could offer no recollection of walkers being taken from the Florida Room on August 24, 2019, even after being shown video purporting to establish this point.
Similarly, fellow resident Mr. Miles (the husband of the thrift store operator Denise Miles, and a white male), testified, when shown a video from August 26, 2019, that he took a vacant walker from the Florida Room.
Mr. Miles also testified that the thrift shop “loans out” walkers regularly, and
places them for sale in the Florida Room, with price tags.
Ms. Jeter (white female), another fellow resident, testified that, in August 2020, she asked Mr. Miles if she could purchase a walker from the thrift store, which was placed in the Florida Room along with another walker. Mr. Miles agreed, but also agreed that Ms. Jeter could take it with her and pay the thrift store later. Later that day, Ms. Jeter received a call from the front desk asking her to return the walker, as it belonged to someone else and was not for sale, which she did. Ms. Jeter was not arrested or prosecuted for stealing the walker, and Respondents did not terminate Ms. Jeter’s lease agreement because she mistakenly took a walker that she believed she could purchase from the thrift store.
Ms. Butler (African American female) testified that in August 2020, she left her walker in the Florida Room, and when she returned, it was missing. She testified that she reported this to the front desk, and after checking the security camera in the Florida Room, determined who it was (Ms. Jeter), and returned it to Ms. Butler that same day. Ms. Butler did not report this incident to the police.
Ms. Lynar (white female) testified that she kept a walker in the Florida Room, where it was “folded up” and placed next to the soda machine. She testified that in August 2019, it went missing, and that she testified that Denise Miles, Mr. Miles, and Ms. Furman took it. She testified that the
walker was returned, but that Respondents’ maintenance staff subsequently
took it, and it has not been returned.
Mr. Tarasavage, a maintenance worker for Respondents, testified that he had no recollection of taking Ms. Lynar’s walker from the Florida Room and disposing of it. Mr. Tarasavage testified that he received no complaints, and was not arrested, for removing a walker from the Florida Room.
Theft of Mr. Kotecha’s bike
On September 26, 2020, another resident, Barbara Shillings (white female), allegedly took one of Mr. Kotecha’s bikes from the area where he normally parks his bike. Mr. Downs believed that Ms. Shillings was being “mischievous” in doing so.
However, Mr. Kotecha complained about this incident to police officers, who were at Asbury Arms North to deal with a resident experiencing dementia issues. The police officers subsequently reviewed video of this incident, provided by Mr. Downs. Mr. Downs testified that in late January 2021, Ms. Shillings was charged criminally for the taking of Mr. Kotecha’s bicycle.
Mr. Downs testified that this incident differed from Mr. Kotecha’s in that Ms. Shillings was not arrested and taken out of the building by police, and because her apartment was never in an unsanitary condition (although it had failed an annual inspection). Mr. Downs further testified that because he learned of the criminal charges some 75 days after the incident, he was unable to issue a notice of termination, as the 45-day window for initiating an eviction had expired. Mr. Downs also stated that Respondents are “waiting to see what the court’s going to do[]” in Ms. Shillings’s criminal case.
Ultimate Finding of Fact
Mr. Kotecha failed to provide any credible evidence that Respondents’ decision to issue the Notice of Termination, and subsequently commence eviction proceedings in county court, was discriminatory, in violation of the FHA. The undersigned has considered the testimony and credibility of
Mr. Kotecha, who claimed that “everything is illegal” when asked about his taking of the rocking chair, that Mr. Downs is a “mastermind” and “supreme boss” who orchestrated his arrest, while admitting he had no proof, that he was “zone cleaning” an apartment that appeared to the undersigned to be unsanitary at the time of his arrest, and that Mr. Downs concocted a story of free rent to lure Mr. Kotecha out of his apartment and to a common area in
Asbury Arms North to be arrested, as well as the supporting testimony of Ms. Lynar, who has brought numerous unsuccessful claims against Respondents under the FHA, in arriving at this finding. The undersigned has also considered Mr. Kotecha’s behavior in the video of him taking the rocking chair—in which he takes a route through the external parking area (but waits for people in the parking lot to leave before doing so), through a different entrance/exit to the elevator, where he leaves the rocking chair in an area of the hall so that individuals entering or exiting the elevator cannot see it.
The undersigned has also considered the testimony and credibility of those witnesses who testified regarding Mr. Kotecha’s allegation that other similarly-situated tenants of other nationalities took items from the Florida Room or other areas that did not belong to them, and suffered no consequences from Respondents. However, two witnesses—Ms. Furman and Mr. Miles—had no recollection of an unlawful taking of a walker happening, even when shown videos of alleged incidents. The testimony of Ms. Jeter and Ms. Butler reveal a misunderstanding of whether a walker that belonged to Ms. Butler was actually the property of the thrift store. Additionally, the undersigned finds that walkers are commonplace in a retirement community such as Asbury Arms North, and as much of the testimony demonstrated that the walkers used in this community looked similar, if not identical, it is understandable that person in a community of senior citizens might
mistakenly take another person’s walker.
With respect to the late-introduced evidence concerning Ms. Shilling’s taking of Mr. Kotecha’s bike, the undersigned finds that much of the testimony offered on this subject is hearsay, which was not supported by any other documentary evidence, but was addressed by Mr. Downs. Mr. Downs testified that Ms. Shillings was not arrested and led out in handcuffs at Asbury Arms North, did not receive prior notices of termination for unsanitary conditions in her apartment (although she had been cited during
annual inspections, which she corrected), and that her notice of criminal charges (which had not been resolved at the time of this hearing) came after Mr. Downs had the legal opportunity to commence eviction proceedings.
Mr. Downs also testified that Respondents intended to await the outcome of her criminal matter before deciding any further action. Thus, Ms. Shillings is not a fair comparator.
The undersigned also finds that, while Mr. Kotecha’s testimonial claims stretch the bounds of credulity, there was no evidence presented to demonstrate that his participation in this proceeding was primarily to harass, or to cause unnecessary delay, or for a frivolous purpose, or to needlessly increase the cost of litigation.
CONCLUSIONS OF LAW
DOAH has jurisdiction over the subject matter and the parties to this proceeding in accordance with sections 120.569, 120.57(1), and 760.35(3)(b).
The FHA makes it 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.” § 760.23(2), Fla. Stat.
The FHA is patterned after Title VII of the Civil Rights Act of 1968, as amended by the Fair Housing Act of 1988. As such, discriminatory acts prohibited under the federal Fair Housing Act are also prohibited under the FHA, and federal case law interpreting the federal Fair Housing Act is applicable to proceedings brought under the FHA. See Brand v. Fla. Power Corp., 633 So. 2d 504, 509 (Fla. 1st DCA 1994)(noting that “the Florida statute will take on the same constructions as placed on its federal prototype.”).
In proceedings brought under the FHA, the complainant has the burden to prove a prima facie case of discrimination by a preponderance of
the evidence. § 760.34(5), Fla. Stat.; Fla. Dep’t of Transp. v. J.W.C. Co., 396 So. 2d 778 (Fla. 1st DCA 1981). A “preponderance of the evidence” means the “greater weight” of the evidence, or evidence that “more likely than not” tends to prove the fact at issue. Gross v. Lyons, 763 So. 2d 276, 289 n.1 (Fla. 2000).
Mr. Kotecha’s allegations amount to a claim of disparate treatment in the terms of his rental (i.e., Respondents’ notice of termination of the lease, and how Respondents treated other tenants).
To establish a prima facie case of disparate treatment, Mr. Kotecha must present evidence that he was treated differently than similarly-situated tenants. Schwarz v. City of Treasure Island, 544 F.3d 1201, 1216 (11th Cir. 2008).
Regarding his disparate treatment claim, Mr. Kotecha may establish a violation of the FHA through either direct evidence, or through the burden- shifting framework of McDonnell Douglas Corporation v. Green, 411 U.S. 792 (1973). See Noel v. Aqua Vista Townhomes Condo. Ass’n, Inc., 2019 WL 4345903 at *3 (S.D. Fla. Sept. 12, 2019). Direct evidence is that which, 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). “Direct evidence encompasses conduct or statements that both (1) reflect directly the alleged discriminatory attitude, and (2) bear directly on the contested [housing] decision.” Noel, 2019 WL 4345903 at *3.
As to the nature of the evidence, “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, 13589 (11th Cir. 1999)(citations omitted).
Mr. Kotecha presented no direct evidence of discrimination by Respondents related to, or affecting the terms of, his tenancy. No admissible
evidence or testimony established that Respondents exhibited the requisite discriminatory intent necessary for such a showing.4
Under the McDonnell Douglas framework, Mr. Kotecha must show that: (a) he is a member of a protected class; (b) he suffered an injury because of the alleged discrimination; and (c) based on his claimed class of national origin, he was denied the provision of services protected by the FHA, which were available to other tenants who were not Indian or of Indian national origin. If Mr. Kotecha meets this burden, then an inference arises that his challenged action was motivated by discriminatory intent, and the burden shifts to Respondents to articulate a legitimate, nondiscriminatory reason for its action. If Respondents successfully articulate such a reason, then the burden shifts back to Mr. Kotecha to show that the proffered reason is really pretext for unlawful discrimination. See Schoenfeld v. Babbitt, 168 F.3d 1257, 1267 (11th Cir. 1999). If Mr. Kotecha fails to establish a prima facie case of discrimination, the matter ends. See Nat’l Indus., Inc. v. Comm’n on Human Rel., 527 So. 2d 894 (Fla. 5th DCA 1988).
Mr. Kotecha established the first and second elements of a prima facie
case: he is a member of a protected class, as his national origin is Indian; and Respondents subjected him to an adverse action when it issued the Notice of Termination, and commenced eviction proceedings in county court. See Neudecker v. Boisclair Corp., 351 F.3d 361, 363-64 (8th Cir. 2003)(holding that threats of eviction are sufficient to allege an adverse action under the Federal Fair Housing Act).
However, the undersigned concludes that Mr. Kotecha presented no credible or persuasive evidence that Respondents denied the provision of services protected by the FHA, or treated him differently than other
similarly-situated tenants, based on his national origin. The credible evidence
4 Though Mr. Kotecha alleged that Mr. Downs called him a “dirty Indian” and threatened to deport him, those allegations were not substantiated, and were vigorously, and credibly, denied by Mr. Downs.
presented demonstrated that Mr. Kotecha had received numerous notices of noncompliance, was arrested on-site for theft of property (to which he ultimately pled guilty to a lesser offense), and left his apartment in an unsanitary condition, all of which were violations of his Lease Agreement.
Mr. Kotecha’s claim for discrimination/disparate treatment also fails, even if the undersigned were to assume he established a prima facie case of FHA discrimination, thus creating a presumption of housing discrimination. The burden would then shift to Respondents to articulate a legitimate, non- discriminatory reason for its actions. See Bone v. Vill. Club, Inc., 223 F. Supp. 3d 1203, 1218 (M.D. Fla. 2016). The reason for Respondents’ decision should be clear, reasonably specific, and worthy of credence. See Dep’t of Corr. v. Chandler, 582 So. 2d 1183, 1186 (Fla. 1st DCA 1991). The burden on Respondents is one of production, not persuasion, to demonstrate to the undersigned that its action was non-retaliatory. See Wilson v. B/E Aerospace, Inc., 376 F.3d 1079, 1087 (11th Cir. 2004). This burden of production is “exceedingly light.” Holifield v. Reno, 115 F.3d 1555, 1564 (11th Cir. 1997), abrogated on other grounds, Lewis v. City of Union, 918 F.3d 1213 (11th Cir. 2019)(en banc).
If Respondents meet this burden, the presumption of discrimination disappears. The burden then shifts back to Mr. Kotecha to prove that Respondents’ proffered reason was not the true reason, but merely a “pretext” for discrimination. See Bone, 223 F. Supp. 3d at 1218.
To satisfy this final step, Mr. Kotecha must show “either directly by persuading the court that a discriminatory reason more likely motivated [Respondents] or indirectly by showing that [Respondents’] proffered explanation is not worthy of credence.” Texas Dep’t of Community Affairs v.
Burdine, 450 U.S. 248, 256 (1981). Mr. Kotecha must prove that the reasons articulated were false and that discrimination was the real reason for the action. See City of Miami v. Hervis, 65 So. 3d 1110, 1117 (Fla. 3d DCA 2011).
For the same reasons as concluded in paragraph 54 above, Respondents articulated legitimate, nondiscriminatory, and nonretaliatory reasons for its decision to issue the Notice of Termination and commence eviction proceedings.
The undersigned further concludes that Mr. Kotecha failed to meet his burden of proving pretext. The competent substantial evidence presented at the final hearing does not support a conclusion that Respondents’ explanation for issuing the Notice of Termination, or commencing eviction proceedings, was false or not worthy of credence.
Mr. Kotecha’s use of comparators also fails. In Mac Papers, Inc. v. Boyd, 304 So. 3d 406, 409 (Fla. 1st DCA 2020), the First District recently held that comparators must be “similarly situated in all material respects.” (quoting Lewis v. City of Union City, Ga., 918 F.3d 1213, 1218 (11th Cir. 2019)(en banc)). With respect to the unpersuasive testimony concerning the taking of other residents’ walkers, there was no competent substantial evidence presented at the final hearing that the individuals who mistakenly took walkers were the subject of arrest, had received notices of previous violations of their lease agreements, or were found to have unsanitary conditions in their apartments. With respect to the testimony concerning the taking of Mr. Kotecha’s bike by Ms. Shillings, again, there was no competent substantial evidence presented that Ms. Shillings believed the bike to be free for the taking, that she had been arrested at Asbury Arms North, that she had received previous notices of violations of her lease agreement, or was found to have unsanitary conditions in her apartment. See Id. (“[t]hough fact- finders are typically given much deference in determining whether a comparator is similarly-situated, the absence of evidence showing a similar disciplinary record can render a discrimination claim nonactionable as a matter of law.”). In fact, according to Mr. Downs, Respondents are monitoring her criminal case and will act accordingly.
Mr. Kotecha failed to meet his burden to establish a prima facie case of discrimination or disparate treatment under the FHA. Mr. Kotecha failed to present persuasive evidence that any actions or inactions by Respondents were influenced by his national origin.
Section 120.595, entitled Attorney’s Fees, provides, in pertinent part:
(1) CHALLENGES TO AGENCY ACTION PURSUANT TO SECTION 120.57(1).—
The provisions of this subsection are supplemental to, and do not abrogate, other provisions allowing the award of fees or costs in administrative proceedings.
The final order in a proceeding pursuant to s. 120.57(1) shall award reasonable costs and a reasonable attorney’s fee to the prevailing party only where the nonprevailing adverse party has been determined by the administrative law judge to have participated in the proceeding for an improper purpose.
In proceedings pursuant to s. 120.57(1), and upon motion, the administrative law judge shall determine whether any party participated in the proceeding for an improper purpose as defined by this subsection. In making such determination, the administrative law judge shall consider whether the nonprevailing adverse party has participated in two or more other such proceedings involving the same prevailing party and the same project as an adverse party and in which such two or more proceedings the nonprevailing adverse party did not establish either the factual or legal merits of its position, and shall consider whether the factual or legal position asserted in the instant proceeding would have been cognizable in the previous proceedings. In such event, it shall be rebuttably presumed that the nonprevailing adverse party participated in the pending proceeding for an improper purpose.
In any proceeding in which the administrative law judge determines that a party participated in the proceeding for an improper purpose, the recommended order shall so designate and shall determine the award of costs and attorney’s fees.
For purpose of this subsection:
“Improper purpose” means participation in a proceeding pursuant to s. 120.57(1) primarily to harass or to cause unnecessary delay or for frivolous purpose or to needlessly increase the cost of litigation, licensing, or securing the approval of an activity.
“Costs” has the same meaning as the costs allowed in civil actions in this state as provided in chapter 57.
“Nonprevailing adverse party” means a party that has failed to have substantially changed the outcome of the proposed or final agency action which is the subject of a proceeding. In the event that a proceeding results in any substantial modification or condition intended to resolve the matters raised in a party’s petition, it shall be determined that the party having raised the issue addressed is not a nonprevailing adverse party. The recommended order shall state whether the change is substantial for purposes of this subsection. In no event shall the term “nonprevailing party” or “prevailing party” be deemed to include any party that has intervened in a previously existing proceeding to support the position of an agency.
Based on the evidence and testimony presented, which, as the undersigned found with respect to Mr. Kotecha, lacked credibility, the undersigned concludes that Mr. Kotecha, who is the nonprevailing adverse party, did not participate in this proceeding for an improper purpose, and thus should not be responsible for Respondents’ attorneys’ fees and costs for this proceeding pursuant to section 120.595. The undersigned notes that
Mr. Kotecha was pro se when he filed a charge with FCHR, and when he filed a Petition for Relief. He retained counsel after FCHR referred this matter to DOAH, and his counsel facilitated the presentation of testimony and evidence that the undersigned cannot conclude was “primarily to harass or to cause unnecessary delay or for frivolous purpose or to needlessly increase the cost of litigation[,]” as required under section 120.595(1).
Based upon the foregoing Findings of Fact and Conclusions of Law, the undersigned hereby RECOMMENDS that: (a) the Florida Commission on
Human Relations issue a final order dismissing Sudhir Kotecha’s Petition for Relief; and (b) deny Respondents’ Motion for Attorney’s Fees, filed
February 5, 2021, pursuant to section 120.595, Florida Statutes.
DONE AND ENTERED this 3rd day of May, 2021, in Tallahassee, Leon County, Florida.
S
ROBERT J. TELFER III
Administrative Law Judge 1230 Apalachee Parkway
Tallahassee, Florida 32399-3060
(850) 488-9675
COPIES FURNISHED:
Filed with the Clerk of the
Division of Administrative Hearings this 3rd day of May, 2021.
Tammy S. Barton, Agency Clerk
Florida Commission on Human Relations 4075 Esplanade Way, Room 110
Tallahassee, Florida 32399-7020
Henry Keith
Presbyterian Retirement Communities, Inc. d/b/a Westminster Towers
80 West Lucerne Circle Orlando, Florida 32801
Stephen G. Henderson, Esquire Henderson Legal Group
5419 Village Drive
Viera, Florida 32955
Denise Miles
1200 Clearlake Road
Cocoa, Florida 32922
Maria Vaeth Henderson, Esquire Henderson Legal Group
5419 Village Drive
Viera, Florida 32955
Nicholas A. Vidoni, Esquire Vidoni Law PLLC
959 North Cocoa Boulevard, Unit 5
Cocoa, Florida 32922
Joseph Down
1430 Dixon Boulevard
Cocoa, Florida 32922
Cheyanne Costilla, General Counsel Florida Commission on Human Relations 4075 Esplanade Way, Room 110
Tallahassee, Florida 32399-7020
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.
| Issue Date | Document | Summary |
|---|---|---|
| May 03, 2021 | Recommended Order | Petitioner failed to establish that Respondents discriminated against him in violation of the Fair Housing Act. |
