STATE OF FLORIDA
DIVISION OF ADMINISTRATIVE HEARINGS
APRIL WILLIAMS,
Petitioner,
vs.
ORION REAL ESTATE SERVICES, AND HOUSING AUTHORITY OF THE CITY OF WINTER PARK,
Respondents.
/
Case No. 20-2125
RECOMMENDED ORDER
On July 23, 2020, Administrative Law Judge Hetal Desai of the Florida Division of Administrative Hearings (DOAH) conducted the final hearing via video teleconferencing with locations in Altamonte Springs and Tallahassee, Florida.
APPEARANCES
For Petitioner: April Williams, pro se
746 Margaret Square Winter Park, Florida 32789
For Respondent Orion Real Estate Services:
Kevin Fulton, Esquire
Fulton Strahan Law Group, PLLC 7676 Hillmont Street, Suite 191
Houston, Texas 77040
For Respondent Housing Authority of the City of Winter Park:
Ricardo L. Gilmore, Esquire
Saxon, Gilmore, Carraway and Gibbons, P.A. 201 East Kennedy Boulevard, Suite 600
Tampa, Florida 33602
STATEMENT OF THE ISSUE
Whether Respondents Orion Real Estate Services (Orion) and the Housing Authority of the City of Winter Park (Housing Authority) subjected Petitioner April Williams to discriminatory housing practices based on her race (African American, non-Hispanic), in violation of the Florida Fair Housing Act, chapter 760, part II, Florida Statutes (2019) (FHA).1
PRELIMINARY STATEMENT
On, November 19, 2019, Petitioner filed a charge of housing discrimination with the Florida Commission on Human Relations (FCHR), alleging Respondents discriminated against her based upon her race (African-American, non-Hispanic), in violation of the FHA.
On February 26, 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 Petitioner.
On April 1, 2020, Ms. Williams filed a Petition for Relief with FCHR, again alleging that Respondents had committed a discriminatory housing practice against her based on her race. FCHR transmitted the Petition to DOAH and assigned the undersigned to conduct an evidentiary hearing.2
On July 16, 2020, the undersigned conducted a telephonic pre-hearing conference with all of the parties. During that conference call, the undersigned reminded the parties of the deadline to exchange witness and
1 All statutory references are to the 2019 codification of the Florida Statutes, unless otherwise indicated.
2 The Petition also alleges the FCHR investigator who was assigned to Ms. Williams's complaint was bias and discriminated against Ms. Williams. That issue was not properly raised in this proceeding, nor is it addressed in this Recommended Order.
exhibit lists, the deadline to provide the undersigned with potential exhibits, and the method to submit the potential exhibits to DOAH prior to the hearing.
The undersigned conducted the final hearing on July 23, 2020. Orion's counsel participated remotely by telephone; Petitioner and the Housing Authority appeared by video.
Petitioner presented her own testimony; the testimony of LiMarys Rivera, a Hispanic female and the Property Manager for Orion; and La Shanda Lovett, an African American female and the Executive Director of the Housing Authority. None of Petitioner's exhibits were admitted into evidence because she did not timely disclose them to Respondents and did not provide them to the undersigned until an hour before the hearing, contrary to the instructions provided in the Notice of Hearing and Pre-Hearing Instructions. Orion presented the testimony of Ms. Rivera and Orion's Exhibits OR2 through OR7 were admitted into evidence. The Housing Authority put on no witnesses and offered no evidence.
Although there was a court reporter at the final hearing, the parties did not order a transcript. At the conclusion of the hearing, the undersigned instructed the parties that they had ten days from the date of the final hearing to submit their proposed recommended orders (PROs), or by no later than August 3, 2020. The Housing Authority timely submitted a PRO, and it has been considered in the preparation of this Recommended Order. Orion's PRO was filed on August 4, 2020, and is considered untimely. Petitioner failed to timely submit a proposed recommended order.
FINDINGS OF FACT
Ms. Williams, an African American female, lives in an apartment in the Meadows, a low-income housing complex located in Winter Park, Florida.
The Housing Authority is a governmental entity that provides low- income housing through federal funds provided by the United States Department of Housing and Urban Development. It contracts with outside companies to manage the properties it owns. The Housing Authority owns the Meadows.
Orion is a real estate services company that manages residential properties for landlords and investors. At the time relevant to these proceedings, Orion managed the Meadows for the Housing Authority.
Ms. Williams had to climb up a stairwell to reach her unit. Her apartment was located above one unit and next to another. She shared a front porch with her next-door neighbor.
The Meadows housed 300 residents during the relevant time period. Of those residents, 264 identified themselves as "Black" and 280 identified themselves as "Ethnic." There was no testimony or evidence as to how many identified as Hispanic.
The Housing Authority claims it took no action against Ms. Williams, and therefore cannot be liable for discrimination. The Community Manager for the Meadows, LiMarys Rivera, testified she was an employee of Orion. However, she issued documentation on letterhead titled "The Housing Authority of the City of Winter Park." Ms. Rivera's signature line states that her title is "Property Manager Agent for the Winter Park Housing Authority." As such, the undersigned finds Ms. Rivera was a dual agent for both Orion and the Housing Authority.
Ms. Rivera testified that once she received a complaint against a tenant, regardless of who made the complaint, it was standard procedure to first reach out to the alleged violator by telephone as a courtesy, and then if there was a subsequent complaint to send out a written "Notice to Cure" or
"Notice of Material Non-Compliance with Opportunity to Cure and Proposed Adverse Action" (non-compliance notice) to that tenant.
Respondents provided numerous non-compliance notices to tenants regarding various types of complaints. Ms. Rivera testified these non- compliance notices were issued to tenants of all races, and both Hispanic and non-Hispanic tenants.
Over the course of a year to 18 months, Ms. Williams had made somewhere between 20 and 29 complaints against her next-door neighbor and her downstairs neighbor. Ms. Williams described both of these neighbors as Hispanic.
Ms. Williams complained that her next-door neighbor was noisy and would smoke (and allow guests to smoke) on the front porch even though her building was designated as a non-smoking area. Ms. Williams also complained that the downstairs neighbor left items on the stairwell causing a hazard. These items included pizza boxes, shoes, rugs, and bags of trash.
As a result of these complaints, both of Ms. Williams's neighbors were issued non-compliance notices. The downstairs neighbor received a non- compliance notice for leaving pizza boxes, trash, and the other objects outside her front door. Similarly, the next-door neighbor received a non-compliance notice for smoking in her apartment and common areas.
Additionally, Respondents issued community flyers to all the tenants in the Meadows reminding them of basic rules, including not smoking, not leaving trash and debris outside, and keeping front porches clean.
Ms. Williams also complained to Respondents that workmen who were performing maintenance in her unit were speaking Spanish. She requested that Respondents provide workmen that speak only English while on the Meadows property.
At some point, Ms. Williams's neighbors made noise complaints against her. Respondents did not initially issue a non-compliance notice to
Ms. Williams because she and her neighbors had numerous complaints against each other.
Instead, Ms. Rivera attempted to hold a conciliation or mediation meeting with all of them. Ms. Williams refused. She did not see the point of the meeting, and believed Ms. Rivera would take the neighbors' side because Ms. Rivera, like the neighbors, was Hispanic.
After Ms. Williams refused to meet, Respondents issued her a non- compliance notice for excessive noise. There was no evidence that she was required to pay any fees or fines as a result of the non-compliance notice against her.
Ms. Williams testified she felt Ms. Rivera gave preferential treatment to Hispanics. When asked how they were treated better, Ms. Williams testified that her neighbors were not evicted despite the complaints made against them. Ms. Williams admitted, however, that Respondents did not evict her either.
CONCLUSIONS OF LAW
The undersigned and DOAH have 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), Florida Statutes.
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 generally, Glass v. Captain Katanna's, Inc., 950 F. Supp. 2d 1235, 1244 (M.D. Fla. 2013)("a
Florida law mirrored after a federal law generally will be construed in conformity with the federal law.").
In cases involving claims of rental housing discrimination, 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).
Petitioner's allegations amount to a claim of disparate treatment in the terms of enforcement of the rules and regulations of the Meadows.
To establish a prima facie case of disparate treatment, Petitioner must present evidence that she was treated differently than similarly-situated tenants. See Schwarz v. City of Treasure Island, 544 F.3d 1201, 1216 (11th Cir. 2008). She can do so either by direct evidence, or through circumstantial evidence established through the burden-shifting framework of McDonnell Douglas Corp. 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, 1358-59 (11th Cir. 1999) (citations omitted).
Ms. Williams presented no direct evidence of discrimination by Respondents related to, or affecting the terms of, her tenancy at the Meadows, or in the way she was treated by Respondents.
Alternatively, Ms. Williams must show that she: (1) is a member of a protected class; (2) was treated differently in the enforcement of rules and regulations than other tenants; and (3) this different treatment was based on her race or non-Hispanic status. See McDonnell Douglas Corp., 411 U.S. at 802-4. She must also show that as a result of the differential treatment, she was denied services or access protected by the FHA, which were available to other tenants. See Savanna Club Worship Serv., Inc. v. Savanna Club Homeowners' Ass'n, Inc., 456 F. Supp. 2d 1223, 1232 (S.D. Fla. 2005)(plaintiff alleging housing discrimination must prove denial of access to use of facilities or common areas available to other homeowners based upon religion).
Ms. Williams established the first element: she is a member of a protected class because she is African American and non-Hispanic.
Ms. Williams, however, did not establish the remaining elements of a prima facie case. She presented no credible or persuasive evidence that Respondents treated her differently than other tenants or that such treatment was because of her race and she was not Hispanic. She was issued a non-compliance notice, just as Hispanic tenants and tenants of other races had been. Moreover, although she complained her neighbors were not evicted as a result of their violations, neither was she.
Ms. Williams also presented no credible evidence that she was denied any services by Respondents. Although she received a non-compliance notice, she was not fined or evicted.
Ms. Williams failed to meet her burden to establish a prima facie case of discrimination or disparate treatment under the FHA. Ms. Williams failed to present persuasive evidence that any actions or inactions by Respondents were influenced by her race or her non-Hispanic status.
Based upon the foregoing Findings of Fact and Conclusions of Law, the undersigned hereby RECOMMENDS that the Florida Commission on Human Relations issue a final order dismissing the Petition for Relief filed by April Williams.
DONE AND ENTERED this 21st day of August, 2020, in Tallahassee, Leon County, Florida.
S
HETAL DESAI
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 21st day of August, 2020.
COPIES FURNISHED:
Tammy S. Barton, Agency Clerk
Florida Commission on Human Relations 4075 Esplanade Way, Room 110
Tallahassee, Florida 32399-7020 (eServed)
Ricardo L. Gilmore, Esquire
Saxon, Gilmore, Carraway and Gibbons, P.A. 201 East Kennedy Boulevard, Suite 600
Tampa, Florida 33602 (eServed)
Kevin Fulton, Esquire
Fulton Strahan Law Group, PLLC 7676 Hillmont Street, Suite 191
Houston, Texas 77040 (eServed)
April Williams
746 Margaret Square Winter Park, Florida 32789 (eServed)
Cheyanne Costilla, General Counsel Florida Commission on Human Relations 4075 Esplanade Way, Room 110
Tallahassee, Florida 32399 (eServed)
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 |
|---|---|---|
| Jun. 23, 2021 | Agency Final Order | APRIL WILLIAMS, HUD Case No. 04-20-9620-8 
 Petitioner, FCHR No. 202022546 
v. DOAH No. 20-2125 
ORION REAL ESTATE SERVICES, AND, FCHR Order No. 21-034 
HOUSING AUTHORITY OF THE CITY OF 
WINTER PARK 
 Respondents. 
_________________________________/ 
FINAL ORDER DISMISSING PETITION FOR 
RELIEF FROM A DISCRIMINATORY HOUSING PRACTICE 
Preliminary Matters 
On November 20, 2019, Petitioner, April Williams, filed a housing discrimination complaint pursuant to the Fair Housing Act, Sections 760.20 - 760.37, Florida Statutes (2019), alleging that Respondents, Orion Real Estate Services and the Housing Authority of the City of Winter Park, committed discriminatory housing practices against Complainant due to her race. 
The allegations set forth in the complaint were investigated, and, on February 26, 2020, the Executive Director issued a determination finding that there was no reasonable cause to believe that a discriminatory housing practice had occurred. 
On April 3, 2020, Petitioner filed a Petition for Relief from a Discriminatory Housing Practice, and the case was transmitted to the Division of Administrative Hearings for the conduct of a formal proceeding. 
On July 16, 2020, Administrative Law Judge Hetal Desai conducted a telephonic pre-hearing conference with the parties. 
A final evidentiary hearing took place on July 23, 2020, before Judge Desai via video teleconferencing in Altamonte Springs and Tallahassee, Florida. 
On August 21, 2020, Judge Desai issued a Recommended Order, which would result in a dismissal of the Petition for Relief. 
The Commission panel designated below considered the record of this matter and determined the action to be taken on the Recommended Order. 
Findings of Fact 
A transcript of the proceeding before the Administrative Law Judge was not filed with the Commission. In the absence of a transcript of the proceeding before the Administrative Law Judge, the Recommended Order is the only evidence for the Commission to consider. See National Industries, Inc. v. Commission on Human Relations, et al., 527 So. 2d 894, at 897, 898 (Fla. 5th DCA 1988). Accord, Coleman v. Daytona Beach, Ocean Center Parking Garage, FCHR Order No. 14-034 (September 10, 2014), Gantz, et al. v. Zion’s Hope, Inc., d/b/a Holy 
Land Experience, FCHR Order No. 11-048 (June 6, 2011), and Hall v. Villages of West Oaks HOA, FCHR Order No. 08-007 (January 14, 2008). 
We adopt the Administrative Law Judge’s findings of fact. 
Conclusions of Law 
We find the Administrative Law Judge’s application of the law to the facts to result in a correct disposition of the matter. 
We adopt the Administrative Law Judge’s conclusions of law. 
Exceptions 
 Petitioner filed Exceptions with the Commission in a document titled “Petitioner’s Exceptions to Administrative Law Judge’s Recommended Order” on September 5, 2020. Petitioner took exception to Paragraphs 13, 14, and 17 under the Findings of Fact section of the Administrative Law Judge’s Recommended Order. Petitioner also took exception to the Administrative Law Judge’s Recommendation in the Recommended Order. 
In the absence of a transcript of the proceeding before the Administrative Law Judge, the Commission is bound by the facts found in the Recommended Order, since there is no way for the Commission to determine the extent to which the facts found are supported by the testimony presented. See, e.g., Gainey v. Winn Dixie Stores, Inc., FCHR Order No. 07-054 (October 12, 2007), Herring v. Department of Corrections, FCHR Order No. 12-004 (February 21, 2012) and Holloman v. Lee Wesley Restaurants, d/b/a Burger King, FCHR Order No. 14-041 (October 9, 2014). 
 With regard to findings of fact set out in Recommended Orders, the Administrative Procedure Act states, “The agency may not reject or modify the findings of fact unless the agency first determines from a review of the entire record, and states with particularity in the order, that the findings of fact were not based on competent substantial evidence or that the proceedings on which the findings were based did not comply with the essential requirements of law [emphasis added].” Section 120.57(1)(l), Florida Statutes (2019). As indicated, above, in the absence of a transcript of the proceeding before the Administrative Law Judge, the Recommended Order is the only evidence for the Commission to consider. See, National Industries, Inc., supra. Accord, Hall, supra, Jones v. Suwannee County School Board, FCHR Order No. 06-088 (September 11, 2006), Johnson v. Tree of Life, Inc., FCHR Order No 05-087 (July 12, 2005), Coleman, supra, and Gantz, supra. 
 Further, the Commission has stated, “It is well settled that it is the Administrative Law Judge’s function ‘to consider all of the evidence presented and reach ultimate conclusions of fact based on competent substantial evidence by resolving conflicts, judging the credibility of witnesses and drawing permissible inferences therefrom. If the evidence presented supports two inconsistent findings, it is the Administrative Law Judge’s role to decide between them.’ Beckton v. Department of Children and Family Services, 21 F.A.L.R. 1735, at 1736 (FCHR 1998), citing Maggio v. Martin Marietta Aerospace, 9 F.A.L.R. 2168, at 2171 (FCHR 1986).” Barr v. Columbia Ocala Regional Medical Center, 22 F.A.L.R. 1729, at 1730 (FCHR 1999). Accord, Bowles v. Jackson County Hospital Corporation, FCHR Order No. 05-135 (December 6, 2005) and Eaves v. IMT-LB Central Florida Portfolio, LLC, FCHR Order No. 11-029 (March 17, 2011). 
 In addition, it has been stated, “The ultimate question of the existence of discrimination is a question of fact.” Florida Department of Community Affairs v. Bryant, 586 So. 2d 1205, at 1209 (Fla. 1st DCA 1991). Accord, Coley v. Bay County Board of County Commissioners, FCHR Order No. 10-027 (March 17, 2010) and Eaves, supra. 
Therefore, Petitioner’s exceptions are rejected. 
Dismissal 
The Petition for Relief and Housing Discrimination Complaint are DISMISSED with prejudice. 
The parties have the right to seek judicial review of this Order. The Commission and the appropriate District Court of Appeal must receive notice of appeal within 30 days of the date this Order is filed with the Clerk of the Commission. Explanation of the right to appeal is found in Section 120.68, Florida Statutes, and in the Florida Rules of Appellate Procedure 9.110. 
 DONE AND ORDERED this day of , 2021. 
 FOR THE FLORIDA COMMISSION ON HUMAN RELATIONS: 
Commissioner Darrick McGhee, Panel Chairperson; 
 Commissioner Larry Hart; and 
Commissioner Jay Pichard 
 Filed this day of , 2021, in Tallahassee, Florida. 
________________________________
 Clerk 
Commission on Human Relations 
 4075 Esplanade Way, Room 110 
 Tallahassee, FL 32399 
(850)488-7082
Copies furnished to: 
April Williams 
746 Margaret Square 
Winter Park, Florida 32789 
Orion Real Estate Services 
c/o Kevin Fulton, Esquire 
Fulton Strahan Law Group, PLLC 
7676 Hillmont Street, Suite 191 
Houston, Texas 77040 
Housing Authority of the City of Winter Park 
c/o Ricardo Lanier Gilmore, Esquire 
Saxon Gilmore & Carraway, P.A. 
201 East Kennedy Boulevard, Suite 600 
Tampa, Florida 33602 
Hetal Desai, Administrative Law Judge, DOAH 
Sarah Stewart, Legal Advisor for Commission Panel 
 I HEREBY CERTIFY that a copy of the foregoing has been mailed to the above listed addressees this _______ day of , 2021. 
 By: _____________________________
Clerk of the Commission 
 Florida Commission on Human Relations |
| Aug. 21, 2020 | Recommended Order | Petitioner failed to show by a preponderance of the evidence that Respondents committed a discriminatory housing practice against her because of her race. |
