STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

MELANIE A. HILS, )

)

Petitioner, )

)

vs. ) CASE NO. 96-4160

)

ADVANTAGE PROPERTY )

MANGEMENT, INC., )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, this matter was heard before the Division of Administrative Hearings by its assigned Administrative Law Judge, Donald R. Alexander, on March 14, 1997, in Jacksonville, Florida.

APPEARANCES

For Petitioner: Migdalia Figueroa, Esquire

126 West Adams Street Jacksonville, Florida 32207

For Respondent: Vernon L. Dean, pro se

1974 Fulton Place

Jacksonville, Florida 32207

STATEMENT OF THE ISSUE

The issue is whether respondent committed a violation of the Fair Housing Act as alleged in the petition for relief filed on August 21, 1996.

PRELIMINARY STATEMENT

This matter began on August 26, 1995, when petitioner,

Melanie A. Hils, filed a complaint of discrimination with the United States Department of Housing and Urban Development alleging that respondent, Advantage Property Management, Inc., had violated the federal Fair Housing Act. After the complaint was referred by the federal agency to the Commission on Human Relations, that agency conducted an investigation and issued its Determination of No Reasonable Cause on July 16, 1996. On August 21, 1996, petitioner filed a petition for relief alleging that respondent visited her apartment four times “without good reason or invitation,” “made a sexual phone call,” and “used a song to threaten (her) life.” She further alleged that such conduct constituted a violation of Part II, Chapter 760, Florida Statutes, known as the Fair Housing Act.

The case was referred by the agency to the Division of Administrative Hearings on September 3, 1996, with a request that an Administrative Law Judge be assigned to conduct a formal hearing. By Notice of Hearing dated September 25, 1996, a final hearing was scheduled on October 15, 1996, in Jacksonville, Florida. At petitioner’s request, the matter was rescheduled to March 25, 1997, at the same location.

At final hearing, petitioner testified on her own behalf and presented the testimony of respondent’s president and owner, Vernon L. Dean. Also, she offered petitioner’s exhibits 1-11. All exhibits were received in evidence. Respondent, which was

represented by its owner, offered respondent’s exhibits 1-4. All exhibits were received in evidence.

The transcript of hearing was filed on April 7, 1997. Proposed findings of fact and conclusions of law were filed by petitioner on April 9, 1997, and they have been considered by the undersigned in the preparation of this Recommended Order.

FINDINGS OF FACT

Based upon all of the evidence, the following findings of fact are determined:

1. Petitioner, Melanie A. Hils, resides in Jacksonville, Florida. She is disabled by virtue of “birth defects in (her) legs,” and she receives a monthly disability check from the Social Security Administration, her sole income. Respondent, Advantage Property Management, Inc., is a Subchapter S corporation owned by Vernon L. Dean and is engaged in the business of managing residential rental properties in

   Jacksonville, Florida.	In this case,	petitioner contends	that
   respondent, through the	actions of its	owner, violated the	Fair

   
   

   Housing Act while she was a tenant in a property managed by respondent. Respondent denies the allegation. A preliminary investigation by the Commission on Human Relations (Commission) resulted in a Determination of No Reasonable Cause.

2. The facts underlying this controversy are not lengthy but they are sharply in dispute. Petitioner first met Dean in March 1993 when she executed a lease agreement with him to rent

   an apartment at 1614 LaRue Avenue. She stayed in that apartment until April 30, 1994, when she moved into her husband’s mobile home.

3. On June 8, 1995, petitioner signed a one-year lease with respondent to rent a one-bedroom apartment located at 2905 Downing Street. She agreed to pay $285.00 per month, including water. Shortly after she moved into the apartment, the hot water heater became inoperative, and petitioner called respondent’s office manager, Barbara, to request that a repair be made. The water heater was repaired by a local plumbing service on June 20, 1995.

4. In her petition for relief, petitioner alleged that Dean made four unannounced visits to her apartment between June 12 and July 5, 1995. At hearing, however, she claimed that, without notice or invitation, he visited her on five occasions between the same dates, and they spoke for approximately thirty minutes each time. Petitioner says that respondent visited her to see if she “got moved in okay,” say “hello,” check the breaker on the water heater, “see if (her) hot water heater had been fixed,” and on the last visit, to “pick up her rent check” for July. On each of those occasions, she says they discussed a variety of subjects, ranging from music to boating, but nothing offensive or of a sexual nature.

5. Except for a visit to check the water heater breaker, respondent denies that he ever visited the apartment. Assuming,

   however, that these visits occurred as described, they still did not constitute sexual harassment or rise to a level of being so pervasive or severe as to alter the terms, conditions or privilege of her tenacy.

6. Petitioner also says that respondent, while in an excited state and breathing irregularly, telephoned her early one Sunday morning suggesting that she ”have sex with him.” Respondent denies that such a call ever occurred, and his testimony is accepted on this issue.

7. On July 5, petitioner says respondent appeared at her front door and asked for the July rent check. She described him as having “a very angry look on his face.” Petitioner’s contention that respondent followed her into the bedroom when she was writing a rent check and “took (her) glasses off,” but nothing more, is not deemed to be credible. Indeed, petitioner did not even allege this occurred in her complaints filed with HUD and the Commission.

8. On August 29, 1995, petitioner gave respondent thirty days’ notice on her lease. She did so after receiving a telephone call from an unidentified person who said nothing but played a song with lyrics which “frightened” her. There is no evidence that respondent was the person who made the call. Although she remained in the apartment until at least the end of September, petitioner acknowledged that Dean never returned to the apartment after July 5.

9. Given the totality of the circumstances, it is found that a hostile housing environment based on sexual harassment did not occur. Accepting petitioner’s allegation that respondent made five unwelcome visits to her apartment, such visits were not so severe or pervasive as to alter the terms, conditions or privilege of petitioner’s tenency.

10. Petitioner has requested quantifiable damages, fees and costs occasioned by her leaving respondent’s apartment. When she gave thirty days notice before the expiration of her lease, she lost her $200.00 deposit. She also incurred moving expenses of

    $150.00. She then signed a seven-month lease on an apartment on Oak Street for $260.00 per month, but later found it unsatisfactory because of foul odors and repairs which were never fixed by the landlord. When she terminated that lease before its expiration, she lost her $260.00 security deposit. On December 5, 1995, she moved into the Kings Inn at Regency, a motel, for which she paid a weekly rent of approximately $161.50. She departed the motel on July 8, 1996, and moved into an apartment in the Riverside area, where she has lived since July 1996. Petitioner asks for the difference between the rent paid at Downing Street and the higher rents she has paid since that time, plus any lost security deposits. In addition, she has incurred costs to pursue this action, including fees for a deposition and transcript. She has also asked for the payment of a “civil penalty” to the Jacksonville Area Legal Aid, Inc., which

    represented her in this action, and for damages for the “emotional distress suffered due to Respondent’s sexual harassment.”

    CONCLUSIONS OF LAW

    
    

11. The Division of Administrative Hearings has jurisdiction over the subject matter and the parties hereto pursuant to Section 120.57(1), Florida Statutes.

12. In her petition for relief, which was prepared without the benefit of counsel, petitioner alleged that a Fair Housing Act violation occurred because respondent “came over four times from June 12, 1995 until July 5, 1995 without good reason or invitation,” “(h)e made a sexual phone call to (her),” “(h)e called (her) from his car phone and used a song to threaten (her) life,” and “(t)he nature of his discrimination is based on (her) disability.” As further clarified by her counsel at hearing, petitioner contends that the foregoing conduct constitutes a violation of Section 760.23(2), Florida Statutes, which provides as follows:

    (2) It is unlawful to discriminate against any person in the terms, conditions, or privileges of sale or rental of a dwelling, or in the provisions of services or facilities in connection therewith, because of race, color, national origin, sex, handicap, familial status, or religion.

    
    

    Petitioner essentially claims that Dean’s conduct reduced the desirability of her tenacy and thus he discriminated against her

    in a term, condition, or privilege of her tenancy, as proscribed by section 760.23(2).

13. Petitioner has cited no Florida precedent, neither Commission final order or decisional law, which supports her position, and a less than exhaustive independent research by the undersigned has disclosed none. In her proposed order, she relies principally upon a final order issued by the United States Department of Housing and Urban Development (HUD) in HUD v. DiCenso, Fair Housing-Fair Lending Rptr. (P-H), par. 25,101 at 25,908 (HUD Secretary, April 18, 1995), and cases cited therein. That agency final order construed a claim of sexual harassment filed with HUD under 42 U.S.C. s. 3604(b), a provision in the federal Fair Housing Act which is identical to section 760.23(2). Because section 760.23(2) is modeled after a federal law on the same subject, “the Florida statute (should) take on the same construction as placed on its federal prototype, insofar as such interpretation is harmonious with the spirit and policy of the Florida legislation.” Brand v. Fla. Power Corp., 633 So.2d 504,

    509 (Fla. 1st DCA 1994). This is especially true here where no Florida precedent exists.

14. Since 1983, federal courts have recognized sexual harassment as a basis for a federal Fair Housing Act discrimination claim. Shellhammer v. Lewallen, Fair Housing-Fair Lending Rptr. (P-H), par. 15,142 (W.D. Ohio 1983), aff’d 770 F.2d

    167 (6th Cir. 1985). A claim may be brought under two theories:

    (a) “quid pro quo” sexual harassment, when housing benefits are explicitly or implicitly conditioned on sexual favors, and (b) hostile housing environment sexual harassment, when offensive conduct (either verbal or physical) creates such a burdensome situation that the tenacy becomes undesirable. Honce v. Vigil, 1 F.3d 1085, 1089 (10th Cir. 1993). In her proposed order, petitioner relies upon the latter theory.

15. In order to establish a hostile environment case, the actions of the landlord must be pervasive and persistent, and they must be “sufficiently severe or pervasive” to alter the conditions of the housing arrangement. Honce at 1090. In other words, in order to succeed, a plaintiff “must demonstrate severe and pervasive sexual harassment, not isolated or trivial instances of harassment, and a relationship between the harassment and housing.” New York ex rel. Abrams v. Merlino, 694

    F. Supp. 1101, 1104 (S.D.N.Y. 1988). Any offensive touching amounting to a sexual battery, however, would support a sexual harassment claim under the federal Fair Housing Act. Beliveau v. Caras, 873 F. Supp. 1393, 1398 (C.D. Cal. 1995)(cause of action stated where plaintiff alleged landlord put his hand around her and grabbed her breast and buttock). In DiCenso, supra, HUD overruled its administrative law judge and found a violation of the Fair Housing Act where, on one occasion, the landlord had “caressed (a tenant’s) arm and back . . . at her residence,” made sexually suggestive remarks about trading sex for rent, and then

    called her sexually derogatory names after the tenant spurned his offers. Id. at 25,911. Under that agency’s analysis, a single instance of sexual harassment in housing, if severe enough when considering all circumstances, can form the basis of an actionable claim under the Fair Housing Act.

16. To establish a prima facie case of a hostile housing environment based on sexual harassment, petitioner must show that

    (a) she is a member of a protected class, (b) she was subject to unwelcome sexual harassment, (c) the harassment complained of was based on sex, and (d) the harassment complained of affected a term, condition, or privilege of housing. As to the latter element of proof, the cases suggest that the totality of the circumstances must be considered to determine if the harassment is of such a nature as to make the tenancy significantly less desirable than if the harassment had not occurred.

17. In considering whether petitioner has made out a prima facie case, it is noted that the allegations that respondent made a telephone call of a sexual nature, played a “theatening” song over the telephone, and removed petitioner’s glasses in her bedroom while she was writing a rent check, have been discredited. Therefore, unlike DiCenso, there was no offensive touching, sexual innuendo, or other conduct of a non-sexual nature that would support a sexual harassment claim. While it is true that petitioner has demonstrated that she is a member of a protected class (female), there is insufficient credible evidence

to establish that she was subjected to harassment based on sex. Even if petitioner was forced to endure several unannounced visits by her landlord, a most unpleasant undertaking for many tenants, the subjects discussed during those visits ranged from music to boating and did not involve anything of a sexual or otherwise offensive nature. Assuming for the sake of argument that these visits would not have occurred but for petitioner’s gender, and thus they arguably constituted harassment based on sex, the totality of the circumstances does not warrant a conclusion that the conduct was not so pervasive or severe as to alter petitioner’s privilege of tenancy. Therefore, the petition should be denied.

RECOMMENDATION

Based on the foregoing findings of fact and conclusions of law, it is

RECOMMENDED that the Commission on Human Relations enter a final order denying the petition for relief.

DONE AND ENTERED this 6th day of May, 1997, in Tallahassee, Florida.

DONALD R. ALEXANDER

Administrative Law Judge

Division of Administrative Hearings The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-1550

(904) 488-9675, SUNCOM 278-9675

Fax Filing (904) 921-6847

COPIES FURNISHED:

Migdalia Figueroa, Esquire

126 West Adams Street Jacksonville, Florida 32202

Vernon Dean

Filed with the Clerk of the Division of Administrative Hearings this 6th day of May, 1997.

Advantage Property Management, Inc. 1974 Fulton Place

Jacksonville, Florida 32207

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

325 John Knox Road

Tallahassee, Florida 32303-4149

Dana A. Baird, Esquire Commission on Human Relations Building F, Suite 240

325 John Knox Road

Tallahassee, Florida 32303-4149

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

All parties have the right to submit written exceptions to this Recommended Order within fifteen days. Any exceptions to this Recommended Order should be filed with the Commission on Human Relations.

Docket for Case No: 96-004160

Orders for Case No: 96-004160