STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

REVERENDS WILLIAM & )

JACQUELINE CARACTOR, )

)

Petitioners, )

)

vs. ) CASE NO. 91-7743

) CINDY CAMMAROTA; QUAIL OAK ) APARTMENTS, )

)

Respondents, )

)

and )

) HILLSBOROUGH COUNTY EQUAL ) OPPORTUNITY AND HUMAN )

RELATIONS DEPARTMENT, )

)

Intervenor. )

)

RECOMMENDED ORDER

This case came before Veronica E. Donnelly, duly designated Hearing Officer of the Division of Administrative Hearings, pursuant to Section 120.65(9), Florida Statutes, and the Hillsborough County Human Rights Ordinance (Ord. 88-9 as amended). Final hearing was held on May 15, 1992, in Tampa, Florida.

APPEARANCES

For Petitioners: Reverend William Caractor

Qualified Representative 4747 W. Waters Avenue #3807

Tampa, Florida 33614

For Respondents: John McMillan, Esquire

Levin & McMillan

9385 N. 56th Street, #200

Temple Terrace, Florida 33617-5594

For Intervenor: Catherine P. Teti, Esquire

Assistant County Attorney

P.O. Box 1110

Tampa, Florida 33601

STATEMENT OF THE ISSUE

Whether Cindy Cammarota and Quail Oaks Apartments violated the Hillsborough County Human Rights Ordinance (Ord. 88-9 as amended) by discriminating on grounds of race and religion against Petitioners, Reverends William and Jacqueline Caractor with respect to an attempted eviction action.

PRELIMINARY STATEMENT

On November 28, 1990, Reverend William Caractor timely filed a Housing Discrimination Complaint with the Hillsborough County Board of County Commissioners Equal Opportunity Office. Essentially, the complaint alleged that Cynthia Cammarota and Quail Oaks Apartments discriminated against Reverends William and Jacqueline Caractor in terms of an apartment rental on the basis of race and religion. The Equal Opportunity and Human Relations Department for Hillsborough County completed an investigation of the complaint and attempted conciliation. The conciliation efforts were unsuccessful and the Board of County Commissions were so notified by the Department Director. As a result, the County Administrator requested an administrative hearing from the Division of Administrative Hearings on December 5, 1991. The Petition to Intervene filed by the Hillsborough County Equal Opportunity and Human Relations Department was granted on January 2, 1992.

The final hearing scheduled on March 24, 1992, was ultimately rescheduled to May 15, 1992 to allow the parties to complete discovery and prepare for hearing as requested in a series of Motions for Continuance.

During the hearing, the Hillsborough County Equal Opportunity and Human Relations Department (HCEOHR) and the Reverends Caractor (Caractor) presented three witnesses during their combined presentation of the case-in-chief.

Sixteen exhibits were marked as Petitioner's exhibits and were accepted into evidence. The Respondents, Cindy Cammarota (Cammarota) and Quail Oaks Apartments (Quail Oaks) called one witness in their responsive case and moved one exhibit into evidence. The Hearing Officer requested an additional, clearer copy of the same exhibit which has been marked as Hearing Officer Exhibit A. Petitioners and HCEOHR recalled two witnesses in rebuttal and presented one additional witness.

A transcript of the proceeding was filed on June 8, 1992. HCEOHR and Respondents Cammarota and Quail Oaks timely filed Proposed Recommended Orders. Petitioners, who neither committed to filing proposed findings of fact nor waived the opportunity at hearing did not submit a Proposed Recommended Order. Rulings on the proposed findings of fact submitted are in the Appendix to the Recommended Order.

FINDINGS OF FACT

1. Respondent Cammarota is the resident manager of Quail Oak Apartments. Respondent Quail Oak is an apartment complex in Hillsborough County which is subject to the Hillsborough County Human Rights Ordinance.

   
   

2. Petitioners, who are black, are husband and wife. They are ordained ministers, who reside in Quail Oaks. They have used the community center at the apartment complex for services and frequently pray with other residents. They wear clerical garb and read their Bible in common areas at the complex. At all times material to these proceedings, Respondent Cammarota knew Petitioners were ministers at Mt. Carmel African Methodist Espiscopal Church.

   
   

3. On July 30, 1990, a written rental agreement was entered into between Quail Oaks, lessor, and Petitioners, lessees, for an apartment at the complex. The term of the lease was from September 1, 1990 through August 31, 1991.

   
   

4. At the option of Quail Oaks, payment of rent could be accepted conditionally by means of a personal check from the lessees. If the check was rejected for insufficient funds, Quail Oaks could require rent plus late charges to be paid by cashier's check, certified check or money order. In addition, Quail Oaks could terminate the lease for nonpayment of rent.

   
   

5. Prior to leaving for vacation in November 1990, Petitioner Jacqueline Caractor issued a check in the amount of $645.00 for the November rent. The check was drawn upon the personal checking account belonging to her and her husband at Citizens and Southern National Bank (C & S). It was payable upon demand to Quail Oaks. Although a C & S counter check was used, all of the information on the check was correct.

   
   

6. This check was accepted by Respondent Cammarota on behalf of Quail Oaks. It was presented to Barnett Bank of Tampa (Barnett) for collection and the bank was instructed to deposit the funds in Quail Oaks' account at the bank.

   
   

7. Barnett Bank did not exercise ordinary care in regard to the check as required by the Uniform Commercial Code. Instead of collecting the funds from the payor bank, Barnett returned the check unpaid to Quail Oaks on November 5, 1990. Notice of the bank's dishonor was sent to Quail Oaks in a notice of debit with respect to the instrument together with the check itself. No reason was given by the bank for the dishonor.

   
   

8. The provisional settlement of the check made by Barnett with Quail Oaks was revoked and the amount of credit given was charged back to Quail Oaks' account.

   
   

9. Respondent Cammarota, who managed the Quail Oaks account with Barnett, misinterpreted this activity in the account as nonpayment of rent. A "three day notice" was issued by Quail Oaks to Petitioners for payment of rent or possession of the premises on November 7, 1990. The deadline for payment was November 13, 1990.

   
   

10. Petitioners received actual notice on November 16, 1990, when they returned from vacation and found the notice posted on the front door of their apartment. A message concerning the matter was also on their answering machine. The message advised them that their check had been returned for insufficient funds.

11. Petitioners went to their bank to determine why their check had not been honored. They had always paid their rent on time and they were concerned about the current state of affairs.

    
    

12. The C & S Bank investigated the matter and discovered the check had never been submitted to it for payment. While Petitioners were present, a representative of the bank telephoned Respondent Cammarota and told her a bank error must have occurred as sufficient funds had always been available in Petitioners' account to cover the check, which had never been submitted to C & S for collection.

    
    

13. Once Petitioners established that insufficient funds was not the basis for a dishonor of their personal check, they went to Respondent Cammarota to discuss the resolution of the problem.

    
    

14. Respondent Cammarota was asked to resubmit the personal check for payment. She refused and requested a money order that included additional charges for the costs Quail Oaks incurred as a result of Barnett Bank's dishonor of the check. Respondent did not believe Petitioners' claim that the original check was a good check.

    
    

15. Petitioners advised that they would not pay additional charges because they had complied with all of their responsibilities. They asked for the return of the original check and offered to pay the rent only by money order. Respondent Cammarota refused this potential solution of the problem.

    
    

16. Respondent Cammarota did not believe Petitioners were at the office in order to make the check good. She did not believe that Petitioners were merely asserting their legal rights under the lease and negotiable instruments law. As a result, she was suspicious and unyielding during the discussion. She wanted them to pay late fees in order to remain in possession of their apartment.

    
    

17. Petitioners, who were tired from their journey and surprised by Respondent Cammarota's lack of receptiveness to very reasonable requests, became somewhat excited by the fact that the process to remove them from their home had begun and they were being told to pay more money than they legally owed to remain in

    possession.

    
    

18. In their response to the situation, Petitioners reminded Respondent Cammarota that they were Reverends. A suggestion that Respondent Cammarota should listen to God was construed by her as "preaching".

    
    

19. The excited utterances from Petitioners caused the leasing agent in the office to ask them to leave, which they refused to do until they had read the notice of debit Respondent had received from Barnett Bank about their check.

    
    

20. After the notice of debit was read and returned to Quail Oaks, Petitioners began to take their leave. At this point, Respondent Cammarota said something like, "And you people call yourself ministers".

    
    

21. On November 20, 1990, Petitioner Jacqueline Caractor gave Quail Oaks a second November 1990 rent payment in the form of a money order. A letter dated the same day from Quail Oaks advised Petitioners that the money order could not be accepted because their account had already been turned over to Quail Oaks' attorney for eviction proceedings.

    
    

22. On November 21, 1990, eviction proceedings were filed against Petitioners by Respondent Quail Oaks for nonpayment of rent.

    
    

23. On November 28, 1990, Petitioners filed a housing discrimination complaint against Respondents.

    
    

24. Attempts to resolve the housing discrimination complaint through conciliation was unsuccessful.

    
    

25. Respondent Cammarota uses the term "you people" in conversation whenever she refers to two or more people in her presence. Ordinarily, it is not used to differentiate blacks from whites. In her conversation with the Petitioners, however, the term referred to their race or religion or both.

    
    

26. It is Respondent Cammarota's opinion that ministers should behave differently than the Petitioners were behaving when they were asserting their legal rights in her office on November 16, 1990.

    
    

27. Respondents did not articulate some legitimate, non-discriminatory reason for the eviction action for non-payment of rent.

    
    

    CONCLUSIONS OF LAW

    
    

28. The Division of Administrative Hearings has jurisdiction over the parties and the subject matter pursuant to Section 120.57(1), Florida Statutes and the Hillsborough County Human Rights Ordinance (Ord. 88-9, as amended).

    
    

29. Section 5 of the Human Rights Ordinance (Ord. 88-9, as amended) provides in pertinent part:

    
    

    1. Unlawful Discriminatory Practices in Public Accommodations.

       
       

       1. It is an unlawful discriminatory practice for a person to deny, withhold, or refuse an individual or group the full and equal enjoyment of the goods, services,

          facilities, privileges, advantages, and accommodations of a place of public accommodation because of race, color, religion . . .

          
          

       2. It is an unlawful discriminatory practice for a person to interfere with the full and equal enjoyment of the goods, services, facilities, privileges, advantages, and accommodations of a place of public accommodation for the reason that an individual's presence at a place of accommodation is objectionable, unwelcome, unacceptable, or undesirable because of race, color, religion . . .

          
          

30. Under the housing discrimination complaint filed in this case, Petitioners contend that Respondents Cammarota and Quail Oaks discriminated in the conditions or terms of rental and occupancy because of their race or color and religion.

    
    

31. The evidence adduced at hearing established by a preponderance of the evidence that a prima facie case of discrimination occurred. Petitioners are black ministers who are tenants in a predominantly white apartment complex. They complied with the terms of their written rental agreement concerning periodic rent payments. In spite of their compliance, Respondents instituted eviction proceedings against them.

    
    

32. Once Petitioners established their prima facie case, the burden shifted to the Defendants to articulate some legitimate non-discriminatory reason for its action. McDonnell-Douglas Corp. v. Green, 422 U.S. 792 (1973).

    
    

33. Respondents were unable to adequately explain the adverse action that was taken against Petitioners in the eviction proceeding. It was clear from the time a representative of C & S Bank telephoned Respondent Cammarota and advised her that sufficient funds had always been available in Petitioners' account that the personal check originally accepted could not now be rejected by Respondents. The only condition attached to its original acceptance by Respondents was that it could not be rejected for insufficient funds. Such a rejection never occurred and Petitioners properly exercised their rights under the lease and their agreement with their bank when they requested a second collection attempt by Respondent Cammarota with the personal check they issued in October for the November rent.

    
    

34. Respondent Cammarota's disbelief in the validity of Petitioners' personal check, their honesty, their ability to pay the rent, and the strength of their religious calling was completely without merit. All of the information available to her when she chose to believe the check would be dishonored reflected just the opposite. This conclusion is based on the following information: the check was a negotiable instrument on its face; the funds were known to be available; the check was never presented to the payor bank; Petitioners had a long history of prompt rent payment; they actively lived and practiced their religion; and they held themselves out as role models in the community at large.

    
    

35. Respondent Cammarota had no legitimate legal basis for her decision to initiate eviction proceedings. Petitioners timely made their rent payment with

    a properly completed negotiable instrument backed by sufficient funds. This was or should have been reasonably known by Respondent Cammarota when the eviction proceeding began.

    
    

36. The evidence demonstrates that Respondent Cammarota committed an unlawful discriminatory practice when she interfered with Petitioners' enjoyment of their rights under the lease when she ignored these rights and instituted eviction proceedings. Her comments to them as they were leaving the office on November 16, 1990, after asserting their legal rights show she found their presence at the accommodation objectionable because because of their religion ministry at Mt. Carmel African Methodist Episcopal Church. By analogy, see United States v. Real Estate Development Corporation, 347 F. Supp. 776 (1972).

    
    

37. The maximum financial penalty for a violation of the Hillsborough County Human Rights Ordinance is a fine of $500 payable to Hillsborough County. Human Rights Ordinance, Section 13. Such a fine is appropriate in this case due to the complete lack of a legal basis for the open and obvious discrimination.

RECOMMENDATION

Based upon the foregoing, it is RECOMMENDED:

1. That the Board of County Commissioners enter a Final Order finding that an unlawful discriminatory housing practice occurred when Respondent Cammarota, agent for Respondent Quail Oaks, unlawfully discriminated against Petitioners because of race or color and religion.

   
   

2. That Respondents be required to pay a $500 fine to Hillsborough County.

DONE and ENTERED this 23rd day of September, 1992, at Tallahassee, Florida.

VERONICA E. DONNELLY

Hearing Officer

Division of Administrative Hearings The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-1550

(904) 488-9675

Filed with the Clerk of the Division of Administrative Hearings this 23rd day of September, 1992.

APPENDIX

Petitioner's proposed findings of fact are addressed as follows:

1. Rejected. Irrelevant. Docket speaks for itself. See HO #22.

2. Rejected. Irrelevant.

3. Accepted. See HO #22.

4. Accepted.

5. Rejected. Contrary to fact and loose agreements.

6. Rejected. Inconclusive evidence.

7. Accepted. See HO #7.

8. Accepted. See HO #13.

9. Accepted.

10. Accepted.

11. Accepted.

12. Rejected. Contrary to fact.

13. Accepted.

14. Accepted. See HO #16.

15. Rejected. Argumentative.

16. Accepted.

17. Accepted.

18. Accepted.

19. Accepted.

20. Accepted.

21. Rejected. Irrelevant.

22. Rejected. Irrelevant.

23. Rejected. Irrelevant.

24. Accepted.

25. Accepted. See HO #2.

26. Accepted. See HO #2.

27. Accepted.

28. Accepted. #17.

29. Accepted. See HO #2.

30. Accepted. See HO #2.

31. Rejected. Redundant.

49.-57. Rejected. Irrelevant.

Respondent's proposed findings of fact are addressed as follows:

1. Accepted. See HO #3.

2. Accepted. See HO #5, #7 and #8.

3. Accepted. See HO #9.

4. Accepted. See HO #11.

5. Accepted. See HO #12.

6. Accepted. See HO #13-#14.

7. Rejected. Self serving.

8. Accepted. See HO #21.

9. Accepted. See HO #22.

10. Rejected. Irrelevant.

11. Rejected. Contrary to lease.

12. Accepted.

13. Accepted. See HO #2.

14. Accepted.

15. Accepted.

16. Rejected. Contrary to fact and legal test for unlawful discrimination.

COPIES FURNISHED:

Cretta Johnson, Director

Hillsborough County Equal Opportunity and Human Relations Department

P.O. Box 1110 Tampa, FL 33601

John McMillan, Esquire Levin & McMillan

9385 N. 56th Street, #200 Temple Terrace, FL 33617-5594

Catherine P. Teti, Esquire Assistant County Attorney

P.O. Box 1110 Tampa, FL 33601

Reverend William Caractor Qualified Representative 4747 W. Waters Avenue #3807

Tampa, FL 33614

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

All parties have the right to submit written exceptions to this Recommended Order. All agencies allow each party at least 10 days in which to submit written exceptions. Some agencies allow a larger period within which to submit written exceptions. You should consult with the agency that will issue the final order in this case concerning agency rules on the deadline for filing exceptions to this Recommended Order. Any exceptions to this Recommended Order should be filed with the agency that will issue the final order in this case.

Docket for Case No: 91-007743

Orders for Case No: 91-007743