vs.
JAMES L. WHITAKER AND COUNTY OF VOLUSIA COMMUNITY SERVICE GROUP,
Respondents.
) Case No. 02-1411
Upon due notice, a disputed-fact hearing was held on August 13, 2002, in Deland, Florida, before Ella Jane P. Davis, a duly assigned Administrative Law Judge of the Division of Administrative Hearings.
For Petitioner: Jerome D. Mitchell, Esquire
Riggio & Mitchell, P.A.
For Respondent: Randell H. Rowe, Esquire
Whether Respondent is guilty of discrimination, as defined by the Florida Fair Housing Act, Chapter 760, Part II,
Florida Statutes, against Petitioner, on the basis of her age and/or handicap.
Petitioner filed a charge of discrimination in fair housing against Respondents. A Determination of No Reasonable Cause was entered by the Florida Commission on Human Relations (Commission) on or about March 20, 2002.
Petitioner timely filed a Petition for Relief on the basis of age and handicap, which was referred to the Division of Administrative Hearings on or about April 9, 2002. The case was scheduled for hearing on June 13, 2002. On April 29, 2002, Respondents filed their Motion to Dismiss on the basis that because they are not "agencies," pursuant to Section 120.52, Florida Statutes, this cause may not proceed against them. That Motion was denied by an Order entered May 21, 2002.
On June 12, 2002, Petitioner filed a Motion for Continuance which was granted on June 13, 2002. The final hearing was rescheduled for August 13, 2002.
At final hearing, Petitioner testified on her own behalf and had Exhibits P-1 through P-7 admitted in evidence.
Respondents presented the testimony of James L. Whittaker, Jr., Barbara Herrin, and David Hakojarvi, and had Exhibits R-1 through R-7 admitted in evidence.
No transcript was provided, but each of the parties timely filed a Proposed Recommended Order, pursuant to their post- hearing agreement. These proposals have been considered.
Petitioner is a 73-year-old woman on a fixed income.
She suffers from congestive heart failure, for which she takes medication. She has been treated one time for an allergic reaction to pesticides, but an on-going allergy to pesticides was not proven. She lives alone in a mortgaged home in the County of Volusia.
Respondent James A. Whittaker has been the Housing Manager for Respondent County of Volusia Community Service Group (Group) only since 1998.
Respondent Group is part of the Community Services Department of the Volusia County government. The Group receives grants, lets construction bids/contracts, and provides low-cost funding to pay for maintenance/repair/improvement work on the homes of low-income homeowners in Volusia County. There is no age factor involved in the Group's determination of a homeowner's eligibility. Eligibility is determined based almost entirely upon income.
The vehicle for Volusia County's maintaining/ repairing/improving low-income homes is called a "rehabilitation loan." The normal sequence of events for a homeowner is to:
apply for eligibility; be determined eligible by the Group; be placed on a waiting list; rise to the top of the waiting list; sign a Rehabilitation Loan Agreement; and participate in a home inspection/pre-bid conference in the home. After this, the Group bids out a contract and accepts a bidder. Then, the successful bidder repairs the home and is paid by the Group.
Homeowners over 62 years of age are not required to pay back any of the money; younger homeowners are required to repay 50 percent.
Effective in the autumn of 2000, the Group, on behalf of the County, began to require, as part of the Rehabilitation Loan Agreement, that each homeowner execute permission for a timed lien on the home which would protect 50 percent of the Group's investment if, within a specified time period after the work is completed, the homeowner rents, sells, or vacates the real property which has been improved at public expense. The time period for each lien is based on the amount of the loan. Larger loans result in longer lien periods. There is a similar provision for a lien if the homeowner dies within a specified period and the new client is less than 62 years of age. In the case of death of a homeowner, accommodations with regard to the lien can be made for familial heirs less than 62 years of age who inherit from homeowners over 62 years of age. (R-1)
In 1994, Petitioner sought housing assistance/a rehabilitation loan from the Group. She filled out the necessary application paperwork and was determined to be eligible for assistance. Her name was placed on a waiting list ranked solely by the date she was deemed eligible. At that time, the immediacy of her repair needs was not part of her ranking or that of any other applicant. She was told the Group would get to her in approximately two years.
Before Petitioner's name moved to the top of the waiting list so that her repair/maintenance problem could be assessed, and possibly addressed, by the Group, her name was either removed from the list inadvertently or because she did not respond to periodic notification(s) that she must affirmatively state whether she still wished to remain on the list or not. Mr. Whittaker did not work in any capacity that would have permitted him to remove her name prior to 1998. There is no proof that Mr. Whittaker or his predecessor(s) did any affirmative act at any time to remove her name, let alone removed her name for a discriminatory reason.
Between 1994 and 2000, Petitioner was required to sign up several times to get back on the list. She found this confusing and unfair. She has complained about this to many people.
By 2000, the hole in Petitioner's floor, which she had originally approached the Group to fix, had become substantially larger than it was when she first applied. She maintains that this was because the hole had gone unattended from 1994 to 2000. She blames the Group for the interim deterioration of her house. (P-2, P-3)
Petitioner also has had roofing problems. She maintains that the Group's delay in addressing her roofing problems has caused minor roofing damage to increase to substantial water damage inside the home. She testified that the original problem was exacerbated when an inspector stepped through a room ceiling weakened by rain coming through the roof into the attic. It was proven that she currently has a bad leak in her dining room, and considerable damage to the ceiling and dry wall, but it was not proven when or how this problem began. Petitioner has a particular kind of roofing shingle that she wants replaced and warranted, and she does not want to accept any substitutes. (P-2, P-3)
Sometime in 2000, in response to Petitioner's complaints, Ms. Herrin, the Housing Coordinator in
Mr. Whittaker's office, went to Petitioner's home to determine what Petitioner's situation was, because none of her papers could be located. Ms. Herrin assisted Petitioner in making out
and submitting new application papers. Petitioner was declared eligible and placed on an emergency repairs waiting list.
In response to Petitioner's complaints, a County Inspector came to her house. Upon this inspector's recommendation, the Group paid for someone to do a temporary repair to Petitioner's floor. This inspector may have been the person who stepped through Petitioner's ceiling, but Petitioner's testimony is not clear in this regard. The floor repair was admittedly only a temporary one, and Petitioner does not like it. She is concerned about people and animals crawling under her house and losing her insurance as a result.
On February 24, 2000, the Group sent Petitioner a letter, over the signature of a staff assistant, stating that Petitioner's name was being removed from the emergency waiting list because the inspection had determined that no emergency existed, and that Petitioner would be retained on the regular rehabilitation list and receive assistance when her name reached the top of that list. (P-4)
In response to Petitioner's continued complaints, on March 24, 2000, Mr. Whittaker reported to the SHIP Analyst at the Florida Housing Finance Corporation that the Group had stabilized Petitioner's bedroom wall and caulked the areas around her window. An inspector had explained to Petitioner the work that had been done and needed to be done and that the
present temporary repairs would be sufficient until she became eligible for a substantial rehabilitation loan. (P-1) Petitioner has not refuted this information.
The materials forwarded by the Commission to the Division show that Petitioner prepared her discrimination charge, based on age and disability, on August 21, 2001, stating that the last discrimination had occurred on "July 31, 2001 and continuing." The charge bears no signature of Petitioner and no date stamp by the Commission. However, these pleadings show that Petitioner objected to the designation of her problems as "non-emergency," and further show that she does not want to sign the lien agreement required of all participating homeowners. At hearing, Petitioner pointed out that a lien was not required when she first applied in 1994 and, indeed, was not required prior to the autumn of 2000, but whether the contract to repair/improve Petitioner's home, described below, was bid before or after she filed her charge of discrimination, is not clear on the record.
At some point in time after autumn 2000, Petitioner was offered a rehabilitation loan to make major repairs and improvements to her home. Petitioner objected to some of the terms and conditions of the loan, including but not limited to the lien requirements, and refused to sign the County of Volusia Rehabilitation Agreement. (R-1) Assuming that she would
eventually sign the agreement, the Group went ahead and bid out the work for the rehabilitation of Petitioner's home.
Charles Coleman, the building contractor who was awarded the bid, required that Petitioner move out of the house while the contracting work was being done. This is such a common requirement by contractors that the Group has pre-printed Temporary Relocation Notices, which staff merely fill out to specify dates for the respective participant-homeowners to be in and out of their houses and which instruct them to pack up any breakables and valuables for that interim period. The form letter is applied to all applicants by the Group, regardless of which contractor makes the request. The Group, like the contractors, fear liability if a homeowner is hurt or any damage is done to his or her possessions during construction. Also, a construction crew cannot proceed in a timely, efficient, and cost-effective manner with laymen, including the homeowner, present on a project.
Petitioner refused to temporarily vacate her house while the contractor did the rehabilitation work.
Ms. Herrin met with Petitioner five times to explain the health considerations of Petitioner remaining in the house during construction, but this is not sufficient, in light of the remainder of the evidence, to support a finding that anyone associated with the Group or the County perceived Petitioner to
be "handicapped," as defined by the applicable statutes. Petitioner maintained to the Group, and further maintained at hearing, that plaster dust would not bother her. Despite the obvious danger of construction to someone with congestive heart failure and pesticide allergies, Petitioner continued to insist upon remaining in her home for the duration of the construction. She also testified that her doctor believed it more stressful for her to "run back and forth" than to stay in the house during the construction. Petitioner did not establish that her doctor was aware of the lengths to which the Group was willing to go to make other living arrangements for her, which are detailed below; but based upon Petitioner's testimony, the undersigned is forced to conclude that Petitioner has not established that her medical condition(s) substantially limit one or more of her major life activities.
Contractor Coleman refused to do the work if Petitioner remained in the house during construction, so on November 20, 2001, Mr. Whittaker wrote a letter (R-3) to Petitioner explaining that Mr. Coleman would need Petitioner to be out of her home for only nine days and that his crew would move all her furniture into a storage box and keep it on her property while the work was being done. He pointed out that all her home's electricity and water would be shut off during the nine days of construction. He stated that Petitioner could move
back into her house after the primary work was finished. This letter's explanation comports with the rather lengthy list of repairs on which the contractor had bid, which, in addition to fixing Petitioner's roof and floor, included some plumbing and replacement of major kitchen appliances. (P-5, R-3)
While it is possible that repair costs could run so high that the Group would not replace Petitioner's stove and refrigerator, apparently that determination would have had to wait until construction was underway. In other words, Petitioner wanted a new stove and refrigerator but might not have gotten them due to the existing funding scheme.
However, it is clear that the Group and Mr. Coleman agreed to make sure that Petitioner got the best warranty possible on the type of shingle she was requesting; that her wishes with regard to her interior doors were met; and that her other requests were honored wherever they did not offend either the legal requirements for construction contracts or building permits/codes. (P-5, R-3)
Mr. Whittaker's November 20, 2001, letter also advised Petitioner that the second lowest bid was $5,000 more than
Mr. Coleman's bid; that the third lowest bid was $6,000 more than Mr. Coleman's bid; and that the second and third lowest bidders would require Petitioner to be out of her house for
60 days, or neither of them would do the job. Petitioner has not refuted any of this information. (R-3)
At hearing, it was shown that Petitioner has a grown son residing in Volusia County, with the potential to house her during construction. It was not shown that he would be able to house Petitioner during construction. However, in his
November 20, 2001, letter, Mr. Whittaker offered to find Petitioner a place to stay for the nine days' duration of construction. (R-3)
After Petitioner repeatedly refused to leave her home for the nine days of construction, Mr. Coleman withdrew his bid on the project.
Prior to filing her discrimination complaint on or about August 21, 2001, Petitioner complained a lot about delays and paperwork, but she never stated or wrote to anyone with the County or Group that she felt she had been discriminated against. In hearing, when first asked why she thought she had been turned down for a rehabilitation loan, she replied, "I don't know," but later she stated it was because of her age and heart condition. When first examined about Mr. Whittaker's involvement in this case, Petitioner stated that she had never met or talked to Mr. Whittaker, but later in the hearing, she insisted that at some undesignated time, Mr. Whittaker screamed at her over the phone that he would never fix her house or allow
his inspectors to enter it because she had written Governor Bush about him. Mr. Whittaker credibly denied making such a statement, and his letters in evidence demonstrate his efforts to work with Petitioner, not against her. Even if Mr. Whittaker had made the statement of which he is accused, such a reason as "retaliation for calling the Governor" would not be probative of discrimination on the basis of age or handicap.
On January 28, 2002, Mr. Whittaker wrote Petitioner offering to rebid the job if she would cooperate by leaving the house just during primary construction. The letter requested that Petitioner let him know what her intentions were by February 12, 2002, or he would close her file. (R-4)
On February 13, 2002, Mr. Whittaker answered a letter from Petitioner's attorney, informing him that in order for Petitioner to participate in the rehabilitation program, she would have to agree to vacate her premises until the contractor had completed a substantial portion of the work and that he, Mr. Whittaker, could not rebid the project until Petitioner complied. (P-7, R-5)
On March 20, 2002, the Commission returned a Determination of No Probable Cause against Petitioner. On April 9, 2002, Petitioner filed her Petition for Relief.
On April 12, 2002, the Director of the County of Volusia Community Services Department wrote a final time to
Petitioner stating that because she refused to relocate temporarily from her home for just nine days, the contractor had relinquished the bid, and accordingly the Director was closing her file. (R-6)
CONCLUSIONS OF LAW
If jurisdiction exists in this cause, it is dependent on the referral of the case from the Florida Commission on Human Relations, and must be derivative, pursuant to Section 120.57(1) and Chapter 760, Part II, Florida Statutes.
The fact that Respondent Group is not an "agency" as defined in Section 120.52, Florida Statutes, is immaterial to these proceedings. Herein, the Group is a litigant, and this de novo proceeding, pursuant to Section 120.57(1), Florida Statutes, results in a Recommended Order to the Florida Commission on Human Relations, which is such an agency.
In her Proposed Recommended Order, even Petitioner concludes that Mr. Whittaker is not a proper party hereto and that he should be dismissed from this case. The undersigned concurs. Mr. Whittaker has performed no act in connection with this case outside the cover of his office. He is merely an employee of a party. More to the point, no discrimination either personally or as Respondent Group's agent has been proven against Mr. Whittaker.
If Respondent Group is a proper party to this cause, it would be pursuant to Sub-sections 760.25 (2) (a) and (b), Florida Statutes. These sub-sections provide as follows:
760.25 Discrimination in the financing of housing or in residential real estate transactions.
(2)(a) It is unlawful for any person or entity whose business includes engaging in residential real estate transactions to discriminate against any person in making available such a transaction, or in the terms or conditions of such a transaction, because of race, color, national origin, sex, handicap, familial status, or religion.
(b) As used in this subsection, the term "residential real estate transaction" means any of the following:
The making or purchasing of loans or providing other financial assistance:
For purchasing, constructing, improving, repairing, or maintaining a dwelling; or
Secured by residential real estate.
The selling, brokering, or appraising of residential real property.
The foregoing is a very shaky assertion of jurisdiction, because the definition of "person," found at Section 760.22 (8), Florida Statutes, does not specifically include a department of a political subdivision, such as the County of Volusia. See,
760.22 Definitions--As used in ss. 760.20- 760.37, the term:
(8) "Person" includes one or more individuals, corporations, partnerships, associations, labor organizations, legal representatives, mutual companies, joint- stock companies, trusts, unincorporated organizations, trustees, trustees in bankruptcy, receivers, and fiduciaries.
The legal concept that the legislature's failure to include a department of a political sub-division in such a statutory list means that the legislature intended to exclude such a department is very persuasive. It also is not logical that the Group can be considered to be "doing business," as that phrase is commonly understood. Finally, it has never been shown that the County of Volusia is not protected against this sort of action by the concept of "sovereign immunity," which concept has recently been applied to certain Commission cases.
That said, assuming arguendo, that the words "or entity" in Section 760.25(2)(a) apply to Respondent Group and that "residential real estate transaction," as defined at Section 760.25(2)(b)1. applies to this public aid situation so as to permit this action against Respondent Group, Petitioner still cannot prevail herein. First, she has not proven a "handicap" by any definition contained in Section 760.22 (7), Florida Statutes:
(7) Handicapped means:
A person has a physical or mental impairment which substantially limits one or
more major life activities, or he or she has a record of having, or is regarded as having, such physical or mental impairment; or
A person has a developmental disability as defined in Section 393.063.
Next, Section 760.25, Florida Statutes, supra., which defines discrimination in housing and other prohibited practices, only forbids discrimination on the basis of race, color, national origin, sex, handicap, familial status, or religion. It does not define the elderly or aged as a protected class. Moreover, it does not even define what group constitutes the "elderly" or "aged." Finally, and once more to the point, no discrimination on the basis of handicap, or on the basis of any "covered" reason, or even on the basis of Petitioner's age, has been proven.
Petitioner had the right to refuse to sign the rehabilitation loan agreement and she did. Respondent Group had the right to refuse to give her a rehabilitation loan on her terms, which it did. That is all that has happened here. The Petition should be dismissed as against both Respondents.
That the Florida Commission on Human Relations enter a Final Order dismissing the Petition for Relief and Charge of Discrimination.
DONE AND ENTERED this 2nd day of October, 2002, in Tallahassee, Leon County, Florida.
ELLA JANE P. DAVIS
Jerome D. Mitchell, Esquire Riggio & Mitchell, P.A.
Filed with the Clerk of the Division of Administrative Hearings this 2nd day of October, 2002.
Randell H. Rowe, Esquire County of Volusia
James L. Whittaker, Housing Manager County of Volusia Community Service Group
Denise Crawford, Agency Clerk Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100
15 days from the date of this Recommended Order. Any exceptions to this Recommended Order should be filed with the agency that will issue the Final Order in this case.
