STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

JOSEPH C. DEVINE, )

)

Petitioner, )

)

vs. ) CASE NO. 87-1450

)

ALI and SHERIFE LIKMETA, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, the Division of Administrative Hearings, by its duly designated Hearing Officer, K. N. Ayers, held a public hearing in the above- styled case on May 11, 1987, at Clearwater, Florida.

APPEARANCES

For Petitioner: Joseph C. Devine, pro se

1924 Nassau Street

Tampa, Florida 33607

For Respondent: Ali Likmeta, pro se

1420 Eastfield Drive

Clearwater, Florida 33546

By letter dated April 2, 1987, the Office of Community Relations forwarded their file in the above-styled case and requested the case be assigned to a hearing officer and scheduled for hearing on the complaining party's charge of discrimination in housing because of race.

At the hearing Petitioner testified in his own behalf, Respondent called two witnesses, including himself, and no exhibits were admitted into evidence.

FINDINGS OF FACT

1. On May 24, 1986, Joseph C. Devine, Petitioner, the complaining party, saw an advertisement in the Clearwater Sun for an apartment for rent. He called the number listed and was given directions to locate the restaurant which is adjacent to the apartment for rent. Devine proceeded to the location given and upon arrival some 10 minutes later was told that the apartment had already been rented.

   
   

2. Ali Likmeta, Respondent, is the owner of the restaurant and of the 4- unit apartment building adjacent thereto. Likmeta was born in Albania, has been in the United States for 18 years and is a naturalized citizen. He speaks English with a heavy accent and does not fully understand everything said to him in English.

3. Likmeta placed an ad in the Clearwater Sun to run for one week advertising a vacant apartment for rent. At the time this apartment became vacant, the tenants in the three other apartments were Albanian, Greek and Italian.

   
   

4. On the evening of May 23, 1986, Mr. and Mrs. Agaj, the former owners of the apartments who had sold them to Respondent and were aware of the vacancy, drove to Safety Harbor where they picked up two Albanian men who had recently arrived in the United States. They drove these men to Respondent's place of business for the purpose of renting the apartment; however, the business was closed and the men were returned to Safety Harbor and instructed to return early the following morning to the restaurant.

   
   

5. The vacant apartment was, in fact, rented to the Albanian, Gezim Muca, on May 24, 1986, who had been brought down the evening before by the Agajs.

   
   

6. On June 2, 1986, Devine filed a complaint with the Clearwater Human Relations Commission alleging that he was discriminated against in housing because of his race (black).

   
   

7. During the investigation and conferences between the parties that followed the filing of this complaint, Devine indicated he would accept payment in the amount of $1200 to drop the charges which Likmeta refused. Likmeta offered to rent to Devine the next apartment to become vacant which Devine refused for the reason as he testified at this hearing "I didn't want to risk my life in that environment." When asked by the Hearing Officer what he expected to obtain through these proceedings Devine replied, justice. When told that this tribunal lacked jurisdiction to place Likmeta in jail or award money damages to Devine, the latter responded that the Hearing Officer was prejudiced and it was obvious that he would not get justice at these proceedings and would take this case to the Supreme Court if neccesary.

   
   

   CONCLUSIONS OF LAW

   
   

8. The Division of Administrative Hearings has jurisdiction over the parties to, and the subject matter of, these proceedings.

   
   

9. Section 7B-14 of Clearwater, Ordinance No. 2186, makes it an unlawful discriminatory housing practice for any owner to refuse to rent public accommodations to one because of race, color, religion, national origin, sex, handicap or marital status. Section 7B-20 makes discrimination a criminal offense subject to a fine not exceeding $500 and/or imprisonment not exceeding

   60 days. Section 7B-21 provides a civil remedy by which the City Attorney may obtain an injunction to enforce any final administrative order issued by a Hearing Officer. The ordinance does not provide for an administrative fine or for requiring the payment to the claimant for actual damges for injury due to such wrongful discrimination. If such damages were provided the case of Broward County v. LaRosa, 484 So.2d 1374 (Fla. 4th DCA 1986) indicates such an ordinance would be Unconstitutional.

   
   

10. In a discrimination case the Petitioner has the initial burden of establishing a prima facie case of discrimination. If Petitioner succeeds in proving the prima facie case, the burden shifts to the Respondent to articulate some legitimate reason for the Petitioner's rejection. Should Respondent carry this burden, Petitioner must then have the opportunity to prove, by a preponderance of the evidence, that the legitimate reasons offered by the Respondent were not his true reasons, but were a pretext for discrimination.

    Texas Department of Community Affairs v. Burdine, 450 U.S. 248, 253, 101 S.Ct.

    1089, 1093, 67 L.Ed.2d 207 (1981).

    
    

11. To present a prima facie case, Petitioner must present facts which "raise an inference of discrimination only because we presume those acts, if otherwise unexplained, are more likely than not based on the consideration of impermissible factors". Id. at 450 U.S. 254. The prima facie case serves to eliminate the most common non-discriminatory reasons for the Plantiff's rejection. See Teamsters v. United States, 431 U.S. 324, 358 and n. 44, 97 S.Ct. 1843, 1866, 52 L.Ed.2d 396 (1977).

    
    

12. Here Petitioner established that he is black and that when he appeared to look at the apartment he was told that the apartment had already been rented and he was not shown the apartment. Petitioner's contention that he arrived within 10 minutes of his telephone call was not rebutted by Respondent, nor was it supplemented with any evidence relating to Petitioner's location in respect to the restaurant when he made the telephone call and how he traveled to the site.

    
    

13. While it appears unlikely that the apartment would be rented during this 10 minute interval between Devine's telephone call and his arrival, such a scenario is certainly possible. Factually, the apartment was rented to Muca but no evidence was submitted regarding when or how Muca arrived to rent the apartment on May 24, 1986. If the apartment was actually rented to Muca before Petitioner arrived, this is clearly a non- discriminatory reason for refusing to rent the apartment to Petitioner.

    
    

14. This hearing was punctuated with each party accusing the other of testifying falsely and with Petitioner accusing Respondent of being a "foreigner", enjoying the fruits of living in America, and who had denied Petitioner rights guaranteed him by law. In fact, Petitioner testified he was so incensed at the time he was told the apartment was already rented that he doesn't know why he didn't destroy the building before he left.

    
    

15. By subsequently offering to rent to Petitioner the next apartment which became available, Respondent attempted to comply with the objectives of Ordinance No. 1843.

    
    

16. From the foregoing it is concluded that Petitioner has failed to establish, by a preponderance of the evidence, a prima facie case of discrimination in housing because of his race. It is further concluded that had a prima facie case of discrimination been established, Respondent's offer to rent the next available apartment to Petitioner removes any basis for preferring criminal charges or instituting a civil action for an injunction against Respondent. It is,

RECOMMENDED that the complaint of Joseph C. Devine alleging discrimination in housing because of race, be dismissed.

DONE and ORDERED this 11th day of June, 1987, in Tallahassee, Florida.

K. N. AYERS Hearing Officer

Division of Administrative Hearings The Oakland Building

2009 Apalachee Parkway

Tallahassee, Florida 32399-1550

(904) 488-9675

Filed with the Clerk of the Division of Administrative Hearings this 11th day of June, 1987.

COPIES FURNISHED:

Ronald M. McElrath Coordinator

Office of Community Relations City of Clearwater

Post Office Box 4748 Clearwater, Florida 33518-4748

Mr. Joseph Carl Devine 925 7th Street North

Safety Harbor, Florida 33572

Mr. Ali Likmeta

1420 Eastfield Drive

Clearwater, Florida 33546

Docket for Case No: 87-001450

Orders for Case No: 87-001450