STATE OF FLORIDA

DIVISION OF ADMINSTRATIVE HEARINGS

JULIA M. SHORTER, )

)

Petitioner, )

)

vs. ) Case No. 85-2472

)

HIGHLANDS APARTMENTS, )

)

Respondent, )

)

and )

)

HILLSBOROUGH COUNTY EQUAL )

OPPORTUNITY OFFICE, )

)

Intervenor. )

)

RECOMMENDED ORDER

Pursuant to notice, a final hearing was held before Diane D. Tremor, Hearing Officer with the Division of Administrative Hearings, on November 13, 1985, in Tampa, Florida. The issue for determination in this proceeding is whether the respondent Highlands Apartments committed a violation of the Fair Housing Ordinance of Hillsborough County.

APPEARANCES

For Petitioner: Julia M. Shorter

8307 Bahia Street

Tampa, Florida 33619

For Respondent: George W. Phillips

P. O. Box 270504

Tampa, Florida 33688

For Intervenor: Amelia G. Brown

Assistant County Attorney

P. O. Box 1110

Tampa, Florida 33601

INTRODUCTION

By letter dated July 16, 1985, and received by the -Division of Administrative Hearings on July 22, 1985, the Director of the Equal Opportunity Office of Hillsborough County requested a hearing regarding the petitioner's complaint filed pursuant to Hillsborough County's Fair Housing Ordinance. The cause was first scheduled for hearing on October 11, 1985, by Notice of Hearing dated August 9, 1985. Present at the scheduled October

11 hearing were the petitioner, counsel for the respondent and two representatives from the Equal Opportunity Office (EOO).

When representatives of the EOO were informed that they could not simply introduce into evidence their investigative report to prove the truth of the matters asserted therein, they requested a continuance of the hearing in order to have witnesses present.

This request was granted, and the hearing was rescheduled and held on November 13, 1985.

At the final hearing, the intervenor presented the testimony of Jeanese Wells, petitioner Julia M. Shorter, Laurie J. Turner and Jeanette Fenton, and its Exhibit 1 was received into evidence. The respondent presented the testimony of Roy Hansen, one of several owners of the Highlands Apartments, and its Exhibits 1 and 2 were received into evidence.

After the granting of several requests for extensions of time for the filing of proposed findings of fact had proposed conclusions of law, the intervenor filed its proposals on March 10, 1986, and the respondent filed proposals on April 4, 1986. The transcript of the final hearing was filed with the Division of Administrative Hearings on April 7, 1986. The undersigned has carefully considered the parties proposed findings of fact.

Except as noted in the Appendix to this Recommended Order, they have been accepted and/or incorporated herein.

FINDINGS OF FACT

Upon consideration of the oral and documentary evidence received at the final hearing, the following relevant facts are found:

1. At approximately 9:30 A.M. on February 10, 1984, petitioner, a black female, telephoned a number listed in the newspaper to inquire about a duplex for rent. She was informed that an apartment was available and that she would need to bring

   $410.00 which included $200.00 for a security deposit and a monthly rental fee of $210.00. Petitioner informed the lady on

   the telephone that she would be there to see the apartment around 11:30 A.M. Petitioner went to the bank to get the $410.00 and then drove to the Highlands Apartments rental office. When she drove up in the driveway, a lady came running out and introduced herself as Evelyn Massey. According to the petitioner, Ms.

   Massey said "I told you on the phone that I had an apartment for you, but I don't have." She went on to explain that another lady had previously paid a deposit on the apartment and had not come back; but, between the time of talking to petitioner that morning and then, the lady had come back and paid the rest of the money and thus had the apartment. Ms. Massey also informed the petitioner that that unit was the only apartment available and that she had no other vacancies.

   
   

2. After this incident, petitioner telephoned Laurie J. Turner between 12:30 and 1:00 P.M., told her what had happened and requested her to call the same telephone number petitioner had called and to inquire about an apartment. Ms. Turner, a white female, did call the number given her by petitioner, a gentleman answered the telephone, she inquired about the availability of the apartment in the newspaper and he told her, according to Ms. Turner, that it was still available. Ms. Turner then related this information to petitioner.

   
   

3. In response to petitioner's contact with the EOO on February 10, 1984, Jeanette Fenton, the Equal Opportunity Assistant/Fair Housing Administrator, began her investigation and made several telephone calls to the Highlands Apartments on that same day. According to Ms. Fenton, "various responses, contradictory responses, were received as to the availability of apartments there." Ms. Fenton also decided to send a black female and a white female as testers to determine the type of treatment that would be received at the Highlands Apartments.

   
   

4. On February 10, 1984, Ms. Fenton called Jeanese Wells, a black female, explained that she had a complaint of discrimination against the Highlands Apartments and requested her to go out there and inquire about an apartment. Ms. Wells telephoned the Highlands Apartments on February 11, 1984, spoke to a woman who did not identify herself and inquired if there was a unit available for rent. The woman indicated that there was and gave Ms. Wells directions to the apartments. When Ms. Wells arrived, a woman named Evelyn showed her an apartment and told her that the charges and terms would be a $350.00 deposit, a

   $35.00 application fee and a one-year lease. Ms. Wells was also informed that her credit references and previous residences would be checked. When Ms. Wells inquired as to whether anyone else was interested in the apartment, Evelyn replied that she had had several phone calls on it, but no firm commitments. According to

   Ms. Wells, Evelyn showed no reluctance to lease the apartment to her and "there was no negative interaction between the two of us." Ms. Wells did not describe the apartment she inspected.

   
   

5. On the same day, February 11, 1984, Ms. Fenton, a white female, telephoned the number listed in the newspaper, spoke with a female named Evelyn, was informed that a unit was available and was given directions to the Highlands Apartments. Ms. Fenton drove out there and inspected a one-bedroom unit, accompanied by Evelyn. According to Ms. Fenton, Evelyn informed her that the requirements for renting the unit would be a $200.00 deposit, rental payments in the amount of $60.00 a week or $210.00 a month, and a six month's lease. No application fee would be required, but there was an application form which required information regarding employment, credit references and landlord references. Ms. Fenton was told, however, that she could move into the unit that day if she wished, that there were no other apartments that were vacant and that the one-bedroom apartment she was viewing was the one that was advertised in the newspaper.

1. Petitioner submitted her formal housing discrimination complaint to the EOO on February 15, 1984. By letter dated March 1, 1984, the EOO informed Roy Hansen that a complaint involving the Highlands Apartments had been filed and transmitted a copy of the complaint to him. The EOO continued to investigate the matter, found probable cause that a violation of the Fair Housing Ordinance had occurred and attempted conciliation. Petitioner Shorter left Hillsborough County for six to eight months between February 15, 1984 and June of 1985. During the conciliation process, petitioner no longer wished to lease a unit at the Highlands Apartments and desired to settle her complaint for an amount of $10,000.00 in damages as compensation. Mr. Hansen was willing to settle the complaint for $200.00 to avoid the expense of attorney's fees. Petitioner rejected Mr. Hansen's counter- offer and requested a hearing by letter dated June 19, 1985.

   
   

2. Ms. Evelyn Massey left the State of Florida shortly after the events which occurred on February 10 and 11, 1984. She did not testify in this proceeding and her whereabouts are unknown. Mr. Ron Massey left Florida around November of 1984 and his whereabouts are likewise unknown.

   
   

3. Roy Hansen is a professor of sociology at the University of South Florida, a private consultant and a part- owner of the Highlands Apartments, which contains several complexes and includes 104 separate units. He employed a manager, Ron Massey, to care for the apartments on a day-to-day basis and to handle rentals. One of the reasons Mr. Massey was hired was because he had had prior experience in managing a predominantly black rental complex. In February of 1984, Ron

   Massey was married to Evelyn Massey and they lived together in one of the Highlands Apartment units which was also utilized as the rental office. While Evelyn Massey did answer the telephone in that office and did show apartments to potential tenants, only Ron Massey was employed as the manager and only he received a salary therefor. Mr. Hansen instructed the Masseys to apply equal criteria to all potential tenants. Out of 104 units, approximately 17 are rented to minorities. The normal deposit required at the Highlands Apartments was $200 or $350 if the tenant had a pet.

   
   

   CONCLUSIONS OF LAW

   
   

4. Counsel for the respondent has moved to dismiss the complaint against the Highlands Apartments on the ground that the EOO failed to notify the respondent within 10 days after the filing of the complaint, in violation of Section 16 1/2-38 of the Fair Housing Ordinance of Hillsborough County. The undersigned initially denied this motion on the ground that Section 16 1/2-38 was not jurisdictional, but the ruling was made without prejudice to the respondent to demonstrate that failure to comply with the Ordinance's 10-day requirement prejudiced the respondent or otherwise impaired the fairness of this proceeding. After considering the evidence adduced in this proceeding, it is concluded that the notification of the respondent by letter dated March 1, 1984, of the complaint filed on February 15, 1984, did not, by itself, unduly prejudice the respondent in this proceeding. This is not to say, however, that the unexplained delay in processing this complaint (from February of 1984 through June of 1985) may have worked to the detriment of all parties due to the unavailability of witnesses whose testimony would have been relevant to the charges in dispute in this proceeding.

5. Section 16 1/2-35 of the Hillsborough County Fair Housing Ordinance (Ordinance No. 77-22, Section 5, as amended) makes it unlawful and a discriminatory housing practice for any person engaging in a real estate transaction, because of race, color, religion, sex or national origin;

   
   

   1. To refuse to engage in a real estate transaction with a person or otherwise make unavailable or deny housing to any person.

      
      

   2. To discriminate against a person in the terms, conditions or privileges of a real estate transaction or in the furnishing of facilities or services in connection therewith.

      
      

      . . .

      (5) To represent to a person that housing is not available for inspection, sale, rental or lease when in fact it is so available, or to fail to bring a property listing to the person's attention, or to refuse to permit said person to inspect the housing.

      
      

6. The intervenor, and presumably the petitioner in this proceeding, contend that the respondent is guilty of racial discrimination against the petitioner in that Mrs. Massey falsely represented that housing was not available to petitioner and that less favorable terms and more stringent requirements were quoted to a black female tester than were given to the white female tester. The evidence in the record of this proceeding lends no support to such contentions and does not otherwise demonstrate a violation of the Fair Housing Ordinance.

   
   

7. Neither Evelyn Massey nor Ron Massey testified in this proceeding. All statements attributable to Evelyn Massey constitute hearsay and, while hearsay is admissible in an administrative proceeding, it is not, by itself, sufficient to form the basis for a factual finding or conclusion.

   
   

8. The testimony of the intervenor's four witnesses do not establish a violation of the Fair Housing Ordinance. First, there was insufficient evidence to demonstrate that the four persons who made inquiry of the Highlands Apartments on February

   10 and 11, 1984, were inquiring about, made inspection of or were given information concerning the same rental unit. The newspaper article or articles which prompted petitioner Shorter's telephone call or which was observed by Ms. Wells or Ms. Fenton was not offered into evidence or otherwise produced at the hearing. Ms. Shorter described the unit as a "duplex," Ms. Fenton described the unit she inspected as a "one-bedroom unit," Ms. Wells did not describe the unit at all and Ms. Turner simply asked a "gentleman" over the telephone if the "apartment in the paper" was still available. It is entirely possible that, on February

   10 when Ms. Turner called, the "gentleman" was not aware that the apartment which Ms. Shorter had inquired about had been previously rented. It is possible that the "gentleman" was aware of another vacancy in the Highlands Apartments of which Evelyn Massey was not aware. And, it is possible that the lady who had previously left a deposit and had come back between the time of petitioner's phone call and petitioner's arrival at the Highlands Apartments had again changed her mind and decided not to rent the apartment. Any of these possibilities would be consistent with Ms. Fenton's testimony that when she called the Apartments on February 10, she received various, contradictory responses as to the availability of apartments there.

9. It is also entirely possible that when testers Wells and Fenton visited the Highlands Apartments, they inspected different units, thus explaining the difference in the terms and conditions of rental.

   
   

10. As to the rental terms and conditions, the evidence does not establish any basis for a finding of racial discrimination. Petitioner Shorter was allegedly informed that she would have to pay $410, which included a $200 deposit and a

    $210 monthly rental fee. She was not informed of an application fee or a lease term. Ms. Fenton was likewise informed of the identical total amount, deposit amount, monthly rental amount and lack of an application fee. The total amount allegedly quoted Ms. Wells, the black tester, was actually less than that quoted to petitioner Shorter or Ms. Fenton. It was $385, being comprised of a $350 deposit and a $35 application fee. Ms. Wells did not testify as to whether she was asked if she had pets, in which case the normal deposit requirement of $350 would be applicable. Ms. Wells herself felt that Evelyn Massey displayed no reluctance to rent to her and she perceived no negative interaction between herself and Ms. Massey. Without competent sufficient evidence that Ms. Shorter, Ms. Wells and Ms. Fenton were inquiring about the same apartment unit, no conclusion can be drawn as to any disparities in the terms and conditions for rental.

11. In conclusion, the complainant or petitioner Shorter bore the initial burden of proof in this proceeding, a burden apparently voluntarily assumed by the intervenor. There was no, competent evidence adduced to demonstrate that the respondent, or anyone acting on its behalf, falsely represented the unavailability of an apartment to Ms. Shorter or imposed more stringent rental conditions on a potential tenant because of their race or color. Absent such evidence, there can be no finding that the respondent Highlands Apartments violated the provisions of the Fair Housing Ordinance of Hillsborough County.

RECOMMENDATION

Based upon the findings of fact and conclusions of law recited herein, it is RECOMMENDED that the housing discrimination complaint filed by Julia M. Shorter on February 15, 1984, be DISMISSED.

Respectfully submitted and entered this 11th day of April, 1986, in Tallahassee, Florida.

DIANE D. TREMOR, Hearing Officer Division of Administrative Hearings The Oakland Building

2009 Apalachee Parkway

Tallahassee, Florida 32399

(904) 488-9675

Filed with the Clerk of the Division of Administrative Hearings this 11th day of April, 1986.

COPIES FURNISHED:

Julia M. Shorter 8307 Bahia Street

Tampa, Florida 33619

George W. Phillips P. O. Box 270504

Tampa, Florida 33688

Amelia G. Brown

Assistant County Attorney

P. O. Box 1110

Tampa, Florida 33601

Robert W. Saunders, Director Equal Opportunity Office

P. O. Box 1110

Tampa, Florida 33601

APPENDIX

The proposed findings of fact submitted by the respondent and the intervenor have been approved and/or incorporated in this Recommended Order, except as noted below:

Respondent

3. Rejected, contrary to the evidence of record.

Intervenor

1. No substantial evidence that Ms. Shorter applied for a "one bedroom apartment."

8. Rejected, not supported by competent substantial evidence.

Docket for Case No: 85-002472

Orders for Case No: 85-002472