STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

CRAIG A. FLETCHER, )

)

Petitioner, )

)

vs. ) CASE NO. 93-5540

)

JOSEPH HATFIELD, )

)

Respondent. )

)

RECOMMENDED ORDER

The final hearing in the above-styled matter was heard pursuant to notice by Stephen F. Dean, assigned Hearing Officer of the Division of Administrative Hearings, on April 20, 1994, in Tallahassee, Florida.

APPEARANCES

For Petitioner: Craig Fletcher, pro se

HC2, Box 7281

Tallahassee, Florida 32310

For Respondent: Barrett G. Johnson, Esquire

Johnson & Associates Post Office Box 1308

Tallahassee, Florida 32301 STATEMENT OF ISSUES

The Petitioner raised several complaints with the Florida Commission of Human Relations (Commission), as follows:

1. The Respondent harassed the Petitioner regarding black guests, whom the Petitioner invited to his home;

   
   

2. The Respondent refused to rent to Blacks; and

   
   

3. The Respondent evicted the Petitioner because of Petitioner's association with Blacks.

PRELIMINARY STATEMENT

On September 7, 1993, the Petitioner filed a Petition for Relief with the Commission alleging that the Respondent had discriminated against him as indicated above. The Petition was forwarded to the Division of Administrative Hearings on September 27, 1993 by the Commission to conduct a hearing and submit a Recommended Order. The Respondent filed an Answer, Affirmative Defenses, Contested Subjected Matter Jurisdiction, and Counterclaim for Costs and Attorney's fees.

Prior to hearing, the Respondent's Motion to Dismiss for Lack of Jurisdiction was heard; and by order dated February 25, 1994, the Motion was denied. Subsequently, the case was noticed for hearing; however, at the hearing, it was determined that the Petitioner had not advised the Respondent of the names of his witnesses, and the Respondent requested a continuance in order to be able to depose them. The motion was granted, and the case reset for April 20, 1994. The parties were encouraged to take the depositions of the witnesses at that time because they were present, the court reporter was ready, and the parties were available. The case was subsequently heard as noticed.

At hearing, the Petitioner testified, the depositions of the witnesses who had attended the first hearing were introduced, and several exhibits were identified and received into evidence. The Respondent did not present any witnesses. After the hearing, both parties filed proposed findings of fact, which were read and considered. Several post-hearing pleadings not permitted under the rules which addressed evidentiary matters and arguments on issues already presented were filed by both parties. These were read and were considered only insofar as the matters were already before the Hearing Officer based upon the record at the hearing. The Appendix to this Recommended Order states which of the proposed findings were adopted, and which were rejected, and why.

FINDINGS OF FACT

1. The Respondent, Mr. Joseph Hatfield, owns and manages an rental complex at 1839 Portland Avenue, Tallahassee, Florida 32303, also known as Astoria Hills Town Houses. The complex consist of two (2) buildings, each of which contains four (4) town house apartments. The Respondent occupies one of these apartments.

   
   

2. Astoria Hills Town Houses are located within the city limits of the City of Tallahassee in the area of the city commonly known as Astoria Hills.

   
   

3. The Petitioner, Craig Fletcher, leased on June 29, 1991 from the Respondent one of the town house apartments located in the building opposite from the building occupied by the Respondent. The lease was until June 30, 1992. The rent was due on the fifth day of each month, and the Petitioner occupied the leasehold on July 5, 1991.

   
   

4. The Petitioner lived in the leasehold until May, 1994, during which time he and his wife maintained a social relationship with the Respondent, as well as a landlord/tenant relationship. They were guests in his apartment, and he was a guest in their apartment.

   
   

5. The Petitioner was in the Respondent's apartment when calls came in on the Respondent's telephone answering machine. The Respondent listened to the calls and stated to the Petitioner that he used the machine to screen calls, and he did not call Blacks back because he did not desire to rent to them.

   
   

6. The Respondent is over 70 years old, suffers from physical/medical problems as the result of an automobile accident, to include chronic pain as a result of the accident. The Respondent is known by the tenants to be irascible and to hold views on racial matters which are repugnant to most people.

7. The Respondent has declared to the Petitioner and others that his automobile was struck by an uninsured vehicle driven by "niggers." As a result of the accident, the Respondent's attitude towards Blacks is, at best, uncharitable. The Petitioner testified that the Respondent told him that he hated Blacks because of the injuries he suffered in the automobile accident.

   
   

8. When angry, the Respondent made statements and comments about Blacks which were racially offensive. The Respondent stated that he did not want Blacks on his property and did not desire to rent to Blacks. The Respondent screened telephonic inquiries about his apartment rentals and would not contact callers who he identified as black.

   
   

9. On December 5, 1991, the Petitioner anonymously contacted the City of Tallahassee Fair Housing Office and complained about the Respondent's alleged discrimination in refusing to rent to Blacks; however, he would not initiate a formal complaint.

   
   

10. The Respondent inquired of the Petitioner on several occasions whether he had seen Blacks in the vicinity of the complex or entering apartments at the complex. The Respondent indicated, during these exchanges, that he did not like Blacks even visiting the complex.

    
    

11. After the first such exchange, the Petitioner, who had previous entered his apartment through the back door with his black guest, entered with them through his front door.

    
    

12. In January, 1992, upon learning from the Petitioner that he had had Blacks over, the Respondent commented, "I try to keep a nice, clean place around here and now you are doing this. I just don't know what I am going to do." The last such conversation between the Petitioner and the Respondent was in April, 1992.

    
    

13. In January, 1992, the Petitioner again contacted the City of Tallahassee Fair Housing Office regarding allegations of racial discrimination by the Respondent. As with the previous contact, the Petitioner did not make a formal complaint.

    
    

14. On May 8, 1992, the Respondent went to the Petitioner's apartment and demanded the rent that he had not received for May. The Petitioner explained that he was without funds; however, he expected a tax refund check which was over due and would soon be able to pay the rent. In the ensuing discussion, the Petitioner advised the Respondent that he would not be renewing his lease at the end of the term because of the differences he had with the Respondent about Blacks.

    
    

15. The Petitioner testified that the Respondent accepted the Petitioner's proposal to use his rental deposit as partial payment of the rent, plus a check for $25, and $10 in cash for the late fee.

    
    

16. On May 18, 1992, the Respondent delivered to the Petitioner a letter which referenced the terms of the lease requiring payment by the fifth of each month, rejected the tender of the rental deposit as payment of the rent due, and made demand for payment of the rent then due. The Respondent was accompanied by his maintenance man, Mr. Frisbee, and requested access to the Petitioner's apartment for purposes of inspecting it. The Respondent wanted to know when the Petitioner would be leaving and threatened to take the Petitioner to court for the rent then due.

17. The Petitioner pointed out that the Respondent had agreed to accept the deposit as partial payment of May's rent previously, and he denied this. Mr. Frisbee, who had been there on May 8th, reminded the Respondent that he had agreed to accept the deposit.

    
    

18. At this point, the Respondent became angry; and the Petitioner angered him further by reminding him of their discussion of their differences regarding racial issues. The Respondent became livid and said that he wanted the Petitioner out. Mr. Frisbee had to encourage the Respondent to leave because he was so upset.

    
    

19. Mr. Frisbee could not confirm the Petitioner's testimony that the Respondent told the Petitioner that he would not rent to Blacks and that the Respondent would have to move out. Not even the Petitioner reported that the Respondent had told him he had to move out because of his black guests.

    
    

20. On May 19, 1992, the Petitioner contacted the City of Tallahassee Fair Housing Office a third time and was advised how to write a letter to the Respondent advising him that the Petitioner was leaving. The Petitioner followed up his letter to the Respondent, dated May 21, 1992, filing a formal complaint on May 26, 1992 with the Fair Housing Office.

    
    

21. On June 5, 1992, the Petitioner paid the Respondent one month's rent. The Petitioner asserts that this was payment for the month of June.

    
    

22. On June 9, 1992, the Petitioner vacated the leasehold and returned the keys to the Respondent on June 17, 1992.

    
    

23. A copy of the lease and lease application was introduced into evidence as Exhibit 11.

    
    

24. No evidence was introduced that the Respondent confronting the Petitioner over his overdue rent was unusual. To the contrary, that conduct by the Respondent was consistent with the picture painted of him by the tenants.

    
    

25. A statement of the Petitioner's expenses was submitted with his post- hearing filing. These are considered as part of the evidentiary record. The costs involved in this litigation are as follows:

    Photocopies (300x$.05) $ 15.00 Photocopies-FCHR 3.60

    Notary costs (5x$5.00) 25.00

    Subpoenas 123.20

    Postage 13.22

    Mileage 77.80

    Paper, envelopes, etc. 2.00

    
    

    $259.82

    
    

    CONCLUSIONS OF LAW

    
    

26. The Division of Administrative Hearings has jurisdiction over the parties to this action in accordance with Sections 120.57(1) and 760.35, Florida Statutes.

27. The burden is on the Petitioner in this case to prove that race was a significant factor in the treatment of the Petitioner by the Respondent in order to establish a violation. See Section 760.34(5), Florida Statutes.

    
    

28. The Respondent moved to dismiss the petition because the leasehold involved was exempt, pursuant to Section 760.29(1)(a)2., Florida Statutes, which "exempts rooms or units in dwellings containing living quarters occupied . . . by no more than four families living independently of each other, if the owner actually maintains and occupies one of such living quarters as his residence." Having heard the facts and argument, it was determined in the Order issued February 25, 1994 that the leasehold involved was not exempt because the statute exempted only buildings in which the owner resided in one of the apartments.

    The Petitioner resided in a building opposite the building occupied by the Respondent. The exemption was determined not to apply.

    
    

29. The lease and rental application are racially neutral on their face and contain no terms which violate Section 760.23, Florida Statutes. Any discriminatory acts by the Respondent based upon racial motives must be determined from the events and actions of the participants.

    
    

30. The Petitioner presented evidence on the following acts and alleges they were racially discriminatory:

    
    

    1. The Respondent harassed Petitioner regarding black guest(s), whom the Petitioner invited to his home;

       
       

    2. The Respondent refused to rent to Blacks; and

       
       

    3. The Respondent evicted the Petitioner because of the Petitioner's association with Blacks.

    
    

31. Regarding the allegations of (b) above, Section 760.23(1), Florida Statutes, provides that it is unlawful to refuse to rent after the making of a bona fide offer, to refuse to negotiate for the rental of, or otherwise to make unavailable or deny a dwelling to any person because of race, color, national origin, sex, handicap, familial status, or religion. The statute is similar to

    42 U.S.C. 3604(a), and federal decisions are persuasive.

    
    

32. The Petitioner has standing to raise this issue, although he is white and has not personally suffered an injury; however, Section 760.35(3)(b), Florida Statute, limits the penalties which the Hearing Officer may recommend to the Commission to quantifiable damages and attorney's fees and costs.

    
    

33. The Petitioner recalled instances in which he was in the Respondent's apartment when a call came in on the Respondent's telephone answering machine. The Respondent listened to the call and stated to the Petitioner that he used the machine to screen calls and that he did not call Blacks back because he did not desire to rent to them. This constitutes screening calls to prevent discussing rental with Blacks and violates Section 760.23(1), Florida Statute, because the Respondent "otherwise make(s) unavailable or den(ies) a dwelling to a person because of race" and "refuse(s) to negotiate for the sale or rental of a dwelling." However, the Petitioner did not show that he suffered injury and did not list any quantifiable damages attributable to the Respondent's failure to rent to Blacks. While the Respondent engaged in a racially-discriminatory practice by refusing to rent to Blacks, the only relief applicable is an order directing that the Respondent cease this conduct. See U.S. v. L & H Land Corp., Inc., 407 F. Supp. 576 (S.D. Fla. 1976).

34. Regarding the allegations of (a) above, Section 760.23(2), Florida Statutes, provides that it is unlawful to discriminate against any person on 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. Again, this statute is very similar to 42 U.S.C. 3604(b), and federal case law is considered persuasive in these cases.

    
    

35. The federal and Florida courts have had no difficulty holding that whites may assert and recover claims under these statutes for discriminatory acts taken against them on the basis of their association with Blacks, finding that injury to a member of the protected class is not necessary. See U.S. v. L & H Land Corp., Inc., supra., and Gordon v. City of Cartersville, Georgia, 522

    F. Supp. 753 (N.D. Ga. 1981). Although the Petitioner has standing to maintain the claim, the instant case is distinguishable on its facts from the cases cited above.

    
    

36. In the two cases cited above, the landlord or his agent clearly stated that Blacks could not be guests of the tenants, and refused entry to Blacks to the property in one case. In this case, the Petitioner does not assert that the Respondent said that he could not have black guests. The Petitioner asserts that the Respondent harassed him by asking about his guests and stating that he did not approve of Blacks. He hints that he was afraid of the Respondent's actions. However, he continued throughout his tenancy to have black guests to his apartment; and after being confronted in January (when the Respondent stated, "I try to keep a nice, clean place around here and now you are doing this. . . . I just don't know what I am going to do,"), the Petitioner brought his black guests to his front door. The Petitioner's conduct belies his alleged fear and the Respondent's alleged constraint on the use of the Petitioner's leasehold.

    
    

37. The statute prohibits acts, not opinions or speech, regardless of how repugnant they might be. The Respondent's speech can be considered proof of racially-discriminatory animus if the Respondent prohibits black visitors or denies services to his tenants because of their association with Blacks; however, this was not the case. The facts indicate that, notwithstanding the Respondent's racially-biased views, he did not alter services to his various tenants or prohibit black guests.

    
    

38. As indicated above, the Petitioner's testimony reflects that he occupied the leasehold for eleven months and invited black friends to his home whenever he wanted during that time. There is no evidence that the Respondent's comments or personal attitudes, whatever their motivation, improperly infringed upon the Petitioner's enjoyment of his leasehold interest prior to May 18, 1992. The Petitioner invited whom he wanted to his home, as did the other residents. When Blacks visited the Petitioner, the Respondent would frequently confront him and repeat his comments about not liking Blacks and not wanting them around.

    The other residents had the same or similar experiences with the Respondent; however, the Respondent did not evict them, did not reduce or alter any services to their leasehold, and renewed their leases at the end of their term. The racially-repugnant comments of the Respondent, in the absence of any acts infringing on the tenants' free use of the leasehold, are not a violation of Section 760.23, Florida Statute.

39. The last allegation of paragraph (c) above, alleges that the Respondent evicted the Petitioner because of racially-motivated animus because the Petitioner had black guests to his home. The Petitioner points to the Respondent's racially-repugnant comments and his alleged eviction as proof of the Respondent's violation of Section 760.23(2), Florida Statutes. The Respondent points to the Petitioner's failure to pay May's rent and defends his actions as not being motivated by racial animus.

    
    

40. The evidence shows that on May 8, 1992, the Petitioner was unable to pay his rent, which was due on May 5, 1992. The Petitioner argues in his brief that he and the Respondent had altered the terms of the lease; however, the letter of May 18, 1992 from the Respondent to the Petitioner indicates that the Respondent had not agreed to this change or had changed his mind about accepting the change.

    
    

41. This incident indicates the problems inherent in oral agreements amending written ones; however, whether the changes were effective is irrelevant to consideration of whether the eviction was racially motivated. The issue is whether the Respondent was motivated to evict the Petitioner on a racially discriminatory basis. If the Respondent sought to evict the Petitioner on May 8th because of racial grounds, the Petitioner would not have agreed to alternative payment as the Petitioner asserts he did. The Petitioner had had no black guests between May 8th and May 18th. There was no event which would have created a racial motivation between May 8th and May 18th raised by the Petitioner.

    
    

42. Section 83.49, Florida Statutes, prohibits the Respondent from accepting the Petitioner's deposit as partial payment. It is probable that the Respondent determined that he could not accept the deposit, whereupon, he presented the Petitioner with the May 18th letter establishing a predicate for Petitioner's eviction for nonpayment. See, Section 83.56(3), Florida Statutes. The tenor of the Respondent's remarks to the the Petitioner on May 8th and May 18th was that he expected the Respondent to pay the rent or vacate the apartment. It was the Petitioner who raised the differences they had discussed regarding Blacks, interjecting race into both conversations. As the Petitioner perhaps anticipated, the Respondent repeated his well-known position regarding Blacks in conjunction with demands that the Petitioner move out. It is on this basis that the Petitioner asserts that the Respondent evicted him for racially- motivated reasons.

    
    

43. While the Respondent made racially-repugnant remarks on May 18th and made demands for the Petitioner to leave, it is clear that the Respondent's motivation for having the Petitioner leave was not racial, but failure to pay his rent. The Petitioner did not present any evidence that the Respondent's actions surrounding his nonpayment of rent were different from the Respondent's treatment of other tenants. The facts do not support that the Respondent's eviction of the Petitioner was racially motivated.

    
    

44. In summary, the Petitioner showed that the Respondent was screening potential tenants to avoid renting to Blacks, contrary to Section 760.23(1), Florida Statutes. The Petitioner did not claim any damage as a result of this act. The Petitioner did not show that the services provided by the Respondent were reduced or that he was prohibited from having black guests. The Petitioner continued to see his black friends, and, after being confronted by the Respondent, took them in the front door to his residence. Lastly, it cannot be concluded that the Petitioner was evicted because of the Respondent's racial

    prejudice. The facts show that the Respondent was attempting to evict the Petitioner for nonpayment of rent, and the Petitioner surrendered the leasehold prior to the Respondent's action being concluded.

    
    

45. Having found that the Respondent violated Section 760.23, Florida Statutes, the Commission should direct the Respondent to stop this practice.

The Petitioner, who had standing to raise the issue, having proven this element of the allegations, is entitled to his costs of litigation, which are limited to those items in Paragraph 19, above.

RECOMMENDATION

Based upon the consideration of the facts found and the conclusions of law reached, it is,

RECOMMENDED:

1. That a Final Order be entered enjoining the Respondent from screening potential tenants; and

   
   

2. That the Petitioner be awarded costs in the amount of $259.82.

DONE and ENTERED this 16th day of June, 1994, in Tallahassee, Florida.

STEPHEN F. DEAN, 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 16th day of June, 1994.

APPENDIX TO RECOMMENDED ORDER CASE NO. 93-5540

The parties submitted proposed findings of fact, which were read and considered. The following states which facts were adopted and which were rejected, and why:

Petitioner's Findings Recommended Order Paragraph 1,2 Paragraph 1,2

Paragraph 3-9 Irrelevant

Paragraph 10 Paragraph 3

Paragraph 11 Subsumed in 6,7

Paragraph 12,13 Paragraph 6,7

Paragraph 14 Paragraph 8,10,16

Paragraph 15 Paragraph 6,7

Paragraph 16 Subsumed in 6,7

Paragraph 17 Irrelevant

Paragraph 18,19 Paragraph 11,12

Paragraph 20 Paragraph 13

Paragraph 21 Rejected as argument

Paragraph 22,23 Irrelevant

Paragraph 24 Subsumed in 15

Paragraph 25,26 Paragraph 16

Paragraph 27 Paragraph 17

Paragraph 28,29,30 Irrelevant

Respondent's Findings Recommended Order Paragraph 1,2 Paragraph 1,3

Paragraph 3 Paragraph 16

Paragraph 4 Paragraph 17

Paragraph 5 Subsumed in Paragraph 11

Paragraph 6 Subsumed in Paragraph 12

Paragraph 7-12 Rejected as Argument

Paragraph 13,14 Subsumed by Paragraph 5,6,7

Paragraph 15 Irrelevant

Paragraph 16 Paragraph 5

Paragraph 17-19 Rejected as contrary to more credible evidence

Paragraph 20-24 Rejected as Argument

Paragraph 25,26 Paragraph 18

Paragraph 27 Rejected as Argument

Paragraph 28 Paragraph 17

Paragraph 29-32 Rejected as Argument

COPIES FURNISHED:

Mr. Craig Fletcher HC2, Box 7281

Tallahassee, FL 32310

Barrett G. Johnson, Esq. Johnson & Associates

P.O. Box 1308 Tallahassee, FL 32301

Sharon Moultry, Clerk Human Relations Commission Building F, Suite 240

325 John Knox Road Tallahassee, FL 32303-4149

Dana C. Baird, Esq.

General Counsel

Human Relations Commission Building F, Suite 240

325 John Knox Road Tallahassee, FL 32303-4149

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 contact 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: 93-005540

Orders for Case No: 93-005540