STATE OF FLORIDA
DIVISION OF ADMINISTRATIVE HEARINGS
MONICA AND VINCENT WILLIAMS, )
)
Petitioners, )
)
vs. ) Case No. 02-3002
) SAMARI LAKE EAST CONDOMINIUM ) ASSOCIATION, INC.; RAFAEL ) PENALVER; AND CARLOS REYES, )
)
Respondents. )
)
RECOMMENDED ORDER
Pursuant to notice, a hearing was conducted in this case pursuant to Sections 120.569 and 120.57(1), Florida Statutes, before Stuart M. Lerner, a duly-designated Administrative Law Judge of the Division of Administrative Hearings, on October 3, 2002, November 25 and 26, 2002, and January 17 and 24, 2003, by video teleconference at sites in Miami and Tallahassee, Florida, and on January 8 and 9, 2003, in Miami, Florida.
APPEARANCES
For Petitioners: Monica and Vincent Williams, pro se
Post Office Box 013221 Miami, Florida 33101-3221
For Respondents: Rafael Penalver, Esquire
Penalver and Penalver, P.A. 1101 Brickell Avenue
Suite 1700
Miami, Florida 33131
Martin P. McDonnell, Esquire Rutledge, Ecenia, Purnell
& Hoffman, P. A. Post Office Box 551
Tallahassee, Florida 32302 STATEMENT OF THE ISSUE
Whether Petitioners' Petition for Relief from a Discriminatory Housing Practice (Petition for Relief) filed against Respondents should be granted by the Florida Commission on Human Relations (Commission).
PRELIMINARY STATEMENT
On July 27, 2001, Petitioners filed a housing discrimination complaint with the United States Department of Housing and Urban Development, Office of the Fair Housing and Equal Opportunity (HUD) alleging that they were discriminated against by Respondents on the basis of their race or color (black) and familial status (presence of children under 18 in the family). The complaint contained the following "summariz[ation]" of the facts alleged by Petitioners:
Cons[]tant overlook[ing] of family using commonly owned facilities by (har[]assment and discrimination and mainten[an]ce).
Received notice of violation of family status.
Family members accused (stereotyped) of breaking into cars in parking lot.
Family member ordered out of pool/recreation.
The complaint was subsequently "dual-filed" with the Commission. On June 21, 2002, following the completion of its investigation of Petitioners' complaint, the Commission issued a Determination of No Reasonable Cause.
Petitioners, on July 24, 2002, filed with the Commission a Petition for Relief. In their petition, Petitioners alleged that Respondents had "violated the Florida Fair Housing Act, as amended, in the [following] manner":
We are an afro-american family and members of a protected class. My family and visitors, professional and private, are constantly har[]assed, assaulted and intimidated, discriminated [against], and treated differently when attempting to use commonly owned facilities th[a]n our Hispanic neighbors. We own our own single family unit. We are har[]assed about our family status and have received several notices of violations to father, mother, and minor children. After many notices of common problems at our unit, our unit has become [un]inhabitab[le] due to lack of common mainten[a]nce and repairs. All meetings and notifications posted are in Spanish.
On July 29, 2002, the Commission referred the matter to the Division of Administrative Hearings (Division) for the assignment of a Division Administrative Law Judge to conduct a hearing on the allegations in Petitioners' Petition for Relief.
As noted above, the hearing was held on October 3, 2002,1 November 25 and 26, 2002, and January 8, 9, 17, and 24, 2003. Twenty-three witnesses testified at the hearing: Officer
Roberto Porto; Officer Alexandria Clayton; Aristides Hernandez; Maria Joffee; Michael Chadrow, Esquire; Larry Williams, Jr.; Iris Thomas; Seidel Sanchez; Sergeant Angel Lopez; Respondent Rafael Penalver; Respondent Carlos Reyes; Darrell Williams; Alexander Santiero; Roberto Siota; Yadira Sobral; Audie McStevens; Petitioner Monica Williams; Petitioner Vincent Williams; Abraham Feldsztejn; Cosme Rodriguez; Paul Martinez; Ricardo Frankie; and Pablo Diaz de la Rocha; In addition, 27 exhibits (Petitioners' Exhibits 1 through 17 and Respondents' Exhibits 1 through 10) were offered and received into evidence.
On February 7, 2003, following the conclusion of the hearing, the undersigned issued an order "formally notif[ying] [the parties] that proposed recommended orders [had to] be filed (that is, received by the Clerk of the Division of Administrative Hearings) no later than 60 days from the date of this order."
On that same date (February 7, 2003), Respondents filed with the Division copies of its Exhibits 1 and 4, which had not been previously furnished the undersigned. Accompanying this submission was a cover letter from co-counsel for Respondents, Martin P. McDonnell, Esquire, which read, in pertinent part, as follows:
Previously, the court advised that it did not have a copy of Respondents' Exhibit No.
2 (the condominium's Rules and Regulations),
although it was received in evidence. I have reviewed numerous rules and regulations of Samari Lake and am unsure what was submitted to the court as Exhibit No. 2.
Therefore, I feel it is best left to the court's recollection as to the rules and regulations that were discussed and introduced, rather than Respondents' mistakenly submitting a copy of a set of rules and regulations that was not formally introduced into evidence.
In response, the undersigned, on February 11, 2003, issued an Order Regarding Submission of Exhibits, in which he announced the following:
Inasmuch as Respondents will not be providing the undersigned a copy of Respondents' Exhibit Number 2, said exhibit will not be a part of the evidentiary record in this case, and it will not (nor is there any way it could) be considered by the undersigned (who has never had the opportunity to examine the exhibit).
On March 5, 2003, the Transcript of that portion of the hearing in this case held on January 8, 2003 (consisting of one volume) was filed with the Division. No other transcript (of any remaining portion of the hearing) has been filed.
Respondents and Petitioners filed their Proposed Recommended Orders on April 8, 2003, and April 10, 2003, respectively. The contents of these post-hearing pleadings have been carefully considered by the undersigned.
Petitioners appended to their Proposed Recommended Order numerous documents in an effort to show the monetary damages
they suffered as a result of Respondents' alleged "discriminatory housing practices." None of these documents was offered or received into evidence at the hearing. Because they are outside the scope of the evidentiary record in this case, these documents cannot provide a basis for any finding of fact.2 See General Development Utilities, Inc. v. Hawkins, 357 So. 2d 408, 409 (Fla. 1978)("The Commission selected a ratio which nowhere appears in the record, apparently fabricating one for the company based on information it has compiled for water companies generally. The arbitrary selection of this ratio as a 'fact' comes from outside the record of the proceeding and plainly violates the notions of agency due process which are embodied in the administrative procedure act."); and Section 120.57(1)(j), Florida Statutes ("Findings of fact . . . shall be based exclusively on the evidence of record and on matters officially recognized."). Accordingly, Respondents' Motion to Strike these documents, which was filed April 17, 2003, is hereby GRANTED.
FINDINGS OF FACT
Based on the evidence adduced at hearing, and the record as a whole, the following findings of fact are made:
Samari Lake East (Development) is a residential condominium apartment development located on approximately 16 or
17 acres of land in the City of Hialeah Gardens, Florida. It is one of the largest such developments in Miami-Dade County.
The Development is home to a racially and ethnically diverse group of persons. Because of the diversity of its residents, it has been described, appropriately, as a "rainbow community."
While the majority of the residents are of Hispanic origin and speak Spanish, many different countries and cultures are represented in the community.
There are some, but not a relatively large number of, black and African-American residents. The exact number is difficult to ascertain. No records are kept which keep track of such information.
Persons of all ages, including approximately 500 children, reside in the Development. There are no age restrictions barring children from living in the Development.
Petitioners are an African-American married couple with eight children.
They have owned a two-bedroom, two-bath unit in the Development since approximately 1990.
They resided in the unit from approximately 1990 until early July of 2002 when they were forced to vacate because the premises became uninhabitable as a result of an overflow of
water and waste materials from within the unit's plumbing system.
When they moved into the unit in 1990, Petitioners had only one child and Ms. Williams was pregnant with the couple's second child.
At the time that they had to move out of the unit, Petitioners and their children had the following living arrangements: Petitioners and their two youngest children shared the master bedroom; three children (all girls) shared the second bedroom; two children (both boys) shared the living room; and the oldest child (a boy) lived on the balcony, which was enclosed.
The Development is comprised of eight five-story multi-family, elevatored buildings having a total of 635 units (60 of which have three bedrooms and two baths, 510 of which have two bedrooms and two baths, and 65 of which have one bedroom and one and a half baths). First-floor units have porches. Units above the first floor have balconies. Most of the balconies, unlike the balcony in Petitioners' unit, are "open."3 Access to the units are by common exterior corridors and catwalks.
Pursuant to Section 14A of the Development's Declaration of Condominium, "[e]ach Unit shall be used only as a single family residence" and "[n]o separate part of a Unit may
be rented and no short term tenants (i.e., tenants for less than one month) may be accommodated in any Unit."
The Development has two phases.
Phase I consists of Buildings 1, 2, 3, and 4, which together contain 330 units. One of these units is Petitioners' unit, Unit 2314, which is on the third floor in Building 4.
Phase II consists of Buildings 5, 6, 7, and 8, which together contain 305 units.
The buildings in Phase I were constructed more than a quarter of a century ago (in or around 1976 or 1977).
The buildings in Phase II were constructed sometime later, and, as a result, they are in better general, overall condition than those in Phase I.
Each phase has its own swimming pool and clubhouse.
Residents and their guests are free to use the swimming pool from 9:00 a.m. to 8:00 p.m.
Children under 12 years of age must be accompanied by an adult when at the pool.
Persons who use the pool are expected to wear appropriate attire and refrain from activities that endanger themselves or others or that otherwise unreasonably interfere with others' peaceful enjoyment of the pool.
The rules and regulations regarding the use of the pool are posted. In addition, individual copies of these rules and regulations are given to the residents.
The clubhouse is available for use by residents (for a fee) for parties and similar functions.
Residents, if they want to rent the clubhouse, must fill out a form in the management office in the Development and put down a refundable $100.00 rental deposit at least seven days in advance of the date of the desired rental date. If the clubhouse is available on the requested date, the resident will be permitted to use it. There is a $150.00 rental charge.
There are parking areas in the Development for residents and visitors. These parking areas include spaces reserved for the handicapped.
The resident parking area is closer to the buildings than is the visitor parking area.
Each unit is assigned one primary reserved parking space.
Since there are not enough parking spaces for each unit to be assigned a second reserved parking space, secondary reserved parking spaces are assigned on a "first come, first served basis."
Unit owners fortunate enough to have a secondary reserved parking space must pay $30.00 for a parking sticker
(with a bar code), as well as a monthly fee of $20.00. If they do not make these payments, they forfeit the space.
Unit owners desiring to obtain a secondary reserved parking space must go to the management office in the Development and make a request that their names be placed on a "waiting list." There are 50 to 60 names on the list at any one time.
When a secondary reserved parking space becomes available, the unit owner at the top of the list is awarded the space, provided that the unit's account is current. If the unit owner is delinquent in paying any assessed common expenses, the unit owner will be bypassed and the space will be given to the next non-delinquent unit owner on the list.
The Development has a gated, two-lane entrance, at which there is a guardhouse manned 24 hours a day, seven days a week by at least one member of the Development's in-house security staff4 (whose members also patrol the Development on foot and in golf carts).
All vehicles must pass through this gated entrance to enter the Development. Hundreds of vehicles pass through each day.
The lane farthest from the guardhouse is for residents with reserved parking spaces and current parking stickers (with bar codes) affixed to their vehicles. If the equipment (which
includes a laser bar code reader) is working properly, the gate arm will automatically rise when a vehicle with a properly affixed parking sticker is approaching. If the equipment malfunctions, the security guard stationed at the guardhouse will let the resident in (after asking for the resident's name and apartment number and confirming, from a list of current residents, which all security guards are required to carry with them, that the resident lives in the Development). Once inside the gate, the resident must park in his or her unit's assigned space.
The lane closest to the guardhouse is for visitors.
Visitors must stop at the guardhouse to be cleared for entry and given a yellow visitor's pass (which expires at midnight that day and is good only for that visit) by the security guard on duty. There is a switch inside the guardhouse that the security guard moves to raise the gate arm in the visitor's lane and let properly screened and authorized visitors into the Development.
The "post orders" that the security guards are given contain the following instructions regarding their dealing with visitors at the entrance to the Development:
The security officer should fill in visitor's pass completely. The unit number, telephone number and the vehicle tag must be written. Do not tear identification numbers off passes.
In the future, the security officer will be required to announce all visitors before allowing entry to the property. The only person that can grant a visitor entry, is the person they are visiting. Night & Day shifts should call when there is low traffic, or when suspicion exists.
Security must verify the telephone number by:
Using a residents telephone list. Do not ask the visitor for the telephone number.
In the event that a telephone number is not [o]n the list, you may ask visitor for the number.
The officer will thereafter obtain entry clearance from the resident.
Place the new telephone number on the list.
File an entry in the logbook for building manager.
If telephone happens to be disconnected
Make an entry in the log and highlight for future follow up.
Entry will not be granted without authorization of resident or person being visited. NO PHONE NO ENTRY.
After clearance, for the guest, has been obtained, the Security Officer is to:
Give visitor a Guest Pass; the pass should be h[u]ng [on] front rear view mirror.
Advise guest that pass needs to be visible at all times and th[at] he/she needs to park in visitors parking.
Have guest sign the pass on the back, which authorizes us to tow after 2359.
Visitors must proceed directly to the visitor parking area (which is to the left of the guardhouse as one enters the Development). The resident parking area is off limits to visitors, except when they are dropping off an infant or a handicapped or elderly person.
Security guards on patrol inside the Development attempt to make sure that no persons have entered the Development who do not belong there. It is not unusual for them, particularly in the pool areas in the Development (where uninvited guests have been discovered in the past) to stop and question persons with whom they are unfamiliar to find out if they are residents or invited guests. If a security guard determines that the person is an uninvited guest, the security guard will call the police to obtain a trespass warning against the person.
Respondent Samari Lake East Condominium Association, Inc. (Association), was incorporated in August of 1977.
Pursuant to the Development's Declaration of Condominium, the Association is responsible for the operation of the Development and the maintenance, repair and replacement of the common elements (that is all parts of the Development except for the units themselves), and unit owners are obligated to pay
assessments (regular and special) imposed by the Association for the costs and expenses incurred by the Association in the performance of its duties. The amount of a unit owner's regular assessment (or maintenance fee, as it is sometimes called) is based on the number of bedrooms in the unit and the unit's square footage. It includes charges for water and sanitary sewer services. (The Association is billed by the City of Hialeah Gardens for water and sanitary sewer services provided all of the units in the Development.5 The city does not bill individual unit owners.)
According to Section 10B, C, and D of the Development's Declaration of Condominium:
Assessments that are unpaid for over fifteen (15) days after the due date shall bear interest at a rate equal to the lesser of (i) eight percent (8%) per annum, or (ii) the maximum legal rate permitted under controlling law, from the due date until paid. In the sole discretion of the Board of Directors, a late charge, in an amount determined by the Board of Directors from time to time, for Assessments not paid when due may be assessed against a delinquent Unit Owner. Regular Assessments shall be due and payable monthly on the first (1st) of each month, unless the Board of Directors shall otherwise determine.
The Condominium Association shall have a lien on each Unit for any unpaid Assessments, together with interest thereon, owed by the Unit Owner of such Unit. Reasonable attorney's fees (including fees in appellate proceedings) incurred by the Condominium Association incident to the
collection of any Assessment or the enforcement of such lien (whether or not suit is instituted), together with sums advanced or paid by the Condominium Association in order to preserve and protect its lien, shall be payable by the Unit Owner upon demand and shall be secured by such lien.
The Board of Directors may take such action as it deems necessary to collect Assessments by personal action, or by enforcing and foreclosing such lien, and may settle and compromise the same, if it shall so determine. Such lien shall be effective from and after the recording of a claim or lien as and in the manner provided by the Condominium Act. The Condominium Association shall be entitled to bid at any sale held pursuant to a suit to foreclose an Assessment lien, and to apply as a cash credit against its bid all sums due the Condominium Association covered by the lien enforced. In case of such foreclosure, the Unit Owner shall be required to pay a reasonable rental for the Unit, and the plaintiff in such foreclosure shall be entitled to the appointment of a receiver to collect such rental from the Unit Owner and/or Occupant.
To assist it in discharging its responsibility to maintain the common elements in the Development, the Association employs a maintenance supervisor.
Cosme Rodriguez has been employed by the Association as the Development's maintenance supervisor since 1993.
He and his wife (who is black) live in the Development.
Unit owners have been instructed to come to the management office if they have a maintenance-related complaint.
After such a complaint is made, Mr. Rodriguez is sent out to investigate and determine what action if any, the Association should take to address the problem. On occasion, a "specialist," such as a plumber in the case of a plumbing problem, is hired to help.
If it is determined that the problem is within the boundaries of the unit (which includes, among other things, according to Section 3B4(e), (f) and (l) of the Development's Declaration of Condominium, "[a]ll plumbing fixtures located within [the unit]," "[a]ll piping, ducts and wiring serving only [the] [u]nit," and "[t]he fresh water pipes, discharge pipes and all other plumbing, pipes and conduits serving only [the] [u]nit"), the Association will not take any action other than to tell the unit owner of its determination.
The Development is a much more desirable place to live today than it was in the mid-1990's, when units were selling for less than a third of their present value.6
By the mid-1990's, conditions in the Development had become, in a word, "deplorable," so bad that condemnation proceedings had commenced and one of the buildings (Building 5) had been ordered to be demolished.
There were a number of fire code and building code violations, some of which were "life-threatening."
The fire alarm system was not operational, and replacement parts could not be found because the system was "obsolete."
There were railings on the exterior corridors and catwalks above the first floor that had rusted and were loose. Some railings had already fallen off.
The elevators did not work.
There were cracks and spalls in the walkways, fire stairs, and building exteriors.
Water was leaking into the buildings through the roofs.
The swimming pools were closed because the water (which had turned green) was no longer safe to swim in, and they had become a dumping ground for used tires and other unwanted items.
Crime was rampant in the Development.
Two gangs considered the Development their turf.
Light bulbs and fixtures in common areas in the Development were constantly being broken, largely due to gang activity. Consequently, "[t]he place was dark at night."
The parking lot was littered with abandoned and stolen vehicles, as well the parts of vehicles.
A "clandestine" car repair business was being operated out of the parking lot.
When there was a significant rain event, the parking lot would flood because of poor drainage. Sometimes the water would be knee deep.
Visitors commonly and, with impunity, parked in residents' reserved parking spaces or elsewhere where they did not belong (such as on the sprinklers).
Overpopulation was a serious problem.
Notwithstanding the mandate in the Development's Declaration of Condominium that "[e]ach Unit shall be used only as a single family residence," some units were shared by more than one family and had as many as 15 occupants.
There were instances where a single room in a unit (either a bedroom or the living room) was rented out by the family living in the unit to another family (or families7), in violation of the prohibition in the Development's Declaration of Condominium that "[n]o separate part of a Unit may be
rented "
The large number of residents overwhelmed, not only the Development's facilities, but also the Association's financial resources.
The cost of water and sewage usage was more than the Association was able to pay.
The Association was in arrears to the City of Hialeah Gardens approximately $350,000.00 for water and sanitary sewer services.
The Association also owed money for trash removal services.
Making it even more difficult for the Association to meet its financial obligations was that some unit owners (particularly the younger ones) were not paying their assessments.
With the Association paralyzed by debt, unable to meet its responsibilities, "chaos" reigned in the Development.
Finally, in 1995, a group of unit owners, led by Maria Colson, went to court and requested that the Association be placed in receivership and that the court, through a receiver, administer the Association. The request was granted by Miami- Dade County Circuit Court Judge Rosemary Usher Jones, who, in or around September of 1995, appointed Stanley Tate to serve as receiver for the Association.8
In or around November of 1995, Mr. Tate was succeeded as receiver by a team of three persons, one of whom later became the sole receiver.
The plight of the unit owners and the Association had not improved appreciably by May of 1996, when Judge Jones
appointed Respondent Rafael Penalver to serve as receiver for the Association.
Mr. Penalver is a Florida-licensed attorney who has been practicing law since 1976. He presently is a partner in the law firm of Penalver and Penalver, P.A.
Since high school, Mr. Penalver has been actively involved in civil rights activities. Among the most notable of these activities was his service as a member of the Commission for four years.
Mr. Penalver began actively serving in his capacity as receiver for the Association on July 1, 1996.
A couple of months later, Mr. Penalver, on behalf of the Association, contracted with SPM Group, Inc. (SPM), an established community association management firm, to provide a site manager for the Development to oversee the Association's day-to-day operations.
The site manager that SPM provided was Respondent Carlos Reyes, one of its employees.
Mr. Reyes is a Florida-licensed community association manager.
The Association is still in receivership today.
Mr. Reyes continues to act as site manager.
Mr. Penalver remains the receiver, however, he now serves at the pleasure, and under the supervision, of Miami-Dade
County Circuit Court Judge Michael Chavies, who was assigned the case in 1999.9
Judge Chavies is "very involved" in administering the Association.
He holds hearings once or twice a month.
Unit owners are given the opportunity to address Judge Chavies at these hearings and to air their concerns.
Notices of the hearings before Judge Chavies are posted at various places in the Development.
These notices are in both English and Spanish, as are all other notices that are posted by Respondents in the Development.10
Unit owners also have the opportunity to attend meetings conducted from time to time by Mr. Penalver and Mr. Reyes (including the annual meeting of unit members, at which Mr. Penalver presents them with a copy of the annual report that he prepares.)
Spanish is spoken at these meetings; however, both Mr. Penalver and Mr. Reyes are fluent in Spanish and English,11 and they have never refused any request to serve as interpreter for English-speaking attendees who do not understand or speak Spanish. (Ms. Williams is not someone who would need such help from Mr. Penalver or Mr. Reyes. As she testified at hearing,
while she does not read or write Spanish "very well," she does "speak it and understand it."12)
The Development has experienced a "turn[] around" in the time that Mr. Penalver and Mr. Reyes have been there.
Many physical improvements have been made, and, as a result, the condemnation proceedings that had been initiated before their arrival have been "halted."
New railings have been installed.13
There is a new sprinkler system.
Fire extinguishers are now properly located (every 75 feet) in the common exterior corridors.
A new fire alarm system (including mini-horns in each unit), financed by a special assessment imposed in July 1999, has been installed. The project began in or around late 1999 or early 2000. Efforts to complete the project in a timely manner were stymied by unit owners who did not allow the contractor into their units when asked to do so. In some instances, court orders were needed to gain access. (The contractor experienced some problem, initially, in gaining access to Petitioners' unit.)
Four buildings, including Building 4, Petitioners' building, have new elevators, and the elevators in all of the buildings now operate reliably.
New lighting has been installed.
The swimming pools are open and safe to use.
The parking areas have been repaved and equipped with a new storm drainage system, which has alleviated the previous flooding problems.
This project (which was first approved in 1995 or 1996, before Mr. Penalver was appointed receiver) was finished in September of 2001.
The project cost $377,000.00 and was paid for with federal funds obtained through the Community Development Block Grants program. The recipient of the funds was the City of Hialeah Gardens, not the Association. The funds were administered by Miami-Dade County.
Acosta Constructors, which performed work on the project pursuant to a contract with the City of Hialeah Gardens, posted signs (on barricades) in the parking areas, in Spanish, advising motorists as to where there was construction work ongoing and where they therefore could not park.
The Association was required by law, after the project had been completed, to increase the size and number of handicapped spaces and to locate these spaces closer to the buildings in the Development than the old handicapped spaces had been.
To comply with this requirement, the parking areas had to be reconfigured.
The reconfiguration has resulted in a reduction of the total number of parking spaces in the Development, making an already tight parking situation worse. Before the project, there were a total of 953 parking spaces (including resident, visitor, and handicapped spaces). There are now a total of approximately 920 parking spaces, 870 of which are for residents. Of the 870 resident parking spaces, 635 are primary reserved parking spaces (one for each unit) and the remaining spaces are secondary reserved parking spaces.
Unit owners had to be assigned new primary reserved parking spaces following the reconfiguration.
Mr. Penalver enlisted the assistance of a unit owners' advisory committee to help him determine how these reassignments should be made.
Taking into consideration the input he received from the unit owners' advisory committee, Mr. Penalver recommended to Judge Chavies that new primary reserved parking spaces be assigned based on "proximity" (distance from the unit), with first floor unit owners given the opportunity to park directly behind their units, where possible, so as to minimize the noise and other disturbances they had to contend with due to the location of their units and for the additional purpose of
enhancing the value of these first-floor units (which have a lower value than comparable units on the floors above them).
Judge Chavies adopted Mr. Penalver's recommendation at a hearing held on the matter (of which unit owners were given written notification, in both English and Spanish).
Thereafter, Petitioners were assigned a new primary reserved parking space (space number 503), which is farther away from their unit than was their old space (304).
Others owning units above the first floor, including Petitioners' next door neighbors (whose new primary reserved parking spaces are next to Petitioners') now also have to walk a greater distance to get from their primary reserved parking space to their unit than they did prior to the reconfiguration of the parking areas.
Petitioners' race and familial status played no role in the assignment of their new primary reserved parking space.
While much progress has been made, there are still physical improvements that need to made by the Association.
The buildings' roofs still leak and need to be repaired. Steps, however, have been taken to fix the problem. A special assessment of approximately $2,000.00 per unit (approved by Judge Chavies) has been imposed for a roof replacement project and a contractor to do the work has been hired.
There are still cracks and spalls in the walkways,14 fire stairs, and building exteriors.
There are such cracks and spalls in the area outside of Petitioners' unit15 and elsewhere in the Development, including, most notably, in Buildings 1 and 2, which have the greatest number, and in the fire stairs in the Phase II buildings.
The next major project the Association intends to undertake (following the completion of the roof replacement project) is the replacement of these fire stairs.
After all structural repairs have been made, the buildings will be painted.
Petitioners' race and familial status have played no role in the Association's prioritization of physical improvements.
The Association's efforts to make physical improvements have been hampered by the failure of some unit owners to pay their assessments when due.
Initially, Mr. Penalver simply "begged" delinquent unit owners to pay the money they owed and took no other action. After three years of employing this strategy, he started sending cases to a collection attorney, Michael Chadrow, Esquire, of the law firm of Bakalar, Brough & Chadrow, P. A. (Bakalar law firm) to take appropriate legal action.
Since March of 1999, Mr. Chadrow and others in the Bakalar law firm have filed 112 foreclosure actions on behalf of the Association.
Once a matter is turned over to the collection attorney, Mr. Penalver takes a "hands off approach" and lets the attorney handle all communications with the delinquent unit owner regarding the unit owner's arrearage.
Petitioners were among the unit owners who did not pay their assessments and whose cases were sent by Mr. Penalver to the collection attorney.
Petitioners' case was one of the last to be sent,16 even though their outstanding unpaid balance was greater than most, if not all, other delinquent unit owners.
They had made no payments from August 31, 1996, until the time Mr. Penalver turned their case over to the collection attorney.
As a consequence of being behind in their payments, Petitioners were unable to obtain a secondary reserved parking space. They had requested that their names be placed on the "waiting list" for such a space and they were next on the list when a space became available, but were bypassed because they were in arrears at the time.
Petitioners' race and familial status played no role in their not being able to obtain a secondary reserved parking space.
Mr. Penalver delayed in turning Petitioners' case over to the collection attorney because he thought that it might be difficult for Petitioners, due to the large size of their family, to meet their financial obligations to the Association.
Before sending their case to the collection attorney, Mr. Penalver made an effort to speak with Petitioners. He went to their unit several times and knocked on the door, but no one answered. Mr. Penalver was finally able to make contact with Mr. Williams, when he spotted Mr. Williams outside of Petitioners' unit. Mr. Penalver asked if Williams would be willing to work out a "payment plan." Mr. Williams responded by telling Mr. Penalver that he would be filing a harassment action against Mr. Penalver.
Petitioners' race and familial status played no role in Mr. Penalver's decision to send their case to the collection attorney (although their familial status was a factor in his not sending it sooner).
Mr. Penalver believed that not pursuing legal action against Petitioners after having waited as long he did for Petitioners to bring their account current would have been
unfair to the ninety percent or so of the unit owners who were up-to-date in their assessment payments.
On May 1, 2001, a Final Summary Judgment of Foreclosure and Order Taxing Costs and Attorney's Fees was entered against Petitioners and in favor of the Association in Miami-Dade County Circuit Court.
As of June 29, 2001, Petitioners had not made any assessment payments since August 31, 1996, and their outstanding unpaid balance was $15,616.00.
On that date, faced with the imminent public sale of their unit, they tendered payment to the Association, bringing their account current and satisfying the judgment that had been entered against them.
By the next month, Petitioners were already in arrears again, and, in the following months, they continued to fail to make their assessment payments.
A second foreclosure action was commenced by the Association against Petitioners in Miami-Dade County Circuit Court.
A Final Judgment of Foreclosure was entered against Petitioners and in favor of the Association on October 18, 2002.
A Clerk's Certificate of Satisfaction of Final Judgment of Foreclosure was issued on December 19, 2002.
Petitioners corresponded in writing with the Bakalar law firm during the time the law firm was working on collecting the monies Petitioners owed the Association. In their correspondence to the law firm, after complaining about the conditions in the Development and the manner in which they and their family and friends had been treated by the Association and its agents, Petitioners expressed their willingness to "come to some type of agreement" with the Association. Following his routine practice, Mr. Penalver determined that the issues raised in the correspondence should be dealt with by the collection attorney handling the case.
Despite not having the cooperation of all unit owners, the Association's financial situation is not nearly as bleak now as it was when Mr. Penalver became receiver.
For example, the amount of the Association's indebtedness to the City of Hialeah Gardens is presently
$35,000.00, a tenth of what it was at the start of Mr. Penalver's receivership.
Like the Association's indebtedness, crime in the Development has also been reduced dramatically.
A significant contributing factor to the reduction in crime in the community has been the Association's stepped-up efforts to prevent unauthorized persons from gaining entry to and loitering in the Development.
The Association's first line of defense against intruders is the security guard stationed at the guardhouse, who is responsible for screening visitors seeking to enter the Development and instructing those permitted entry where to park.
Ms. Williams' sister, Iris Thomas, was involved in an incident with security staff at the entrance to the Development on the evening of October 24, 2001.
Ms. Thomas had been given a visitor's pass and allowed to enter the Development earlier in the day to pick up three of Petitioners' children. When she returned to the Development with the children,17 she got into a dispute with the security guard manning the entrance. She wanted to drive into the resident parking area closest to Petitioners' unit so she could quickly drop off the children and then leave. The security guard told her, however, that she had to park in the visitor parking area inasmuch as none of the children in the vehicle were infants. Ms. Thomas expressed her displeasure upon being told this. The security guard contacted his immediate supervisor (the shift supervisor that evening), Alexander Santiero, and asked him to come to the guardhouse to assist in dealing with Ms. Thomas. As he approached the guardhouse and started speaking with the security guard, Mr. Santiero saw one of the children in Ms. Thomas' vehicle exit the vehicle and go into the guardhouse. The child apparently touched the switch
controlling the gate arm in the visitor's lane because the arm began to rise. Mr. Santiero reacted by getting a portable metal sign to drag over an "access sensor" on the pavement in front of Ms. Thomas' vehicle (on the other side of the gate) so that the arm would lower. As he moved in front of Ms. Thomas's vehicle with the sign in his hand, Ms. Thomas' vehicle lurched forward, hitting Mr. Santiero and injuring his ankle. In anger,
Mr Santiero threw the sign that he was still holding onto at Ms. Thomas' vehicle. Police were called to the scene, but no arrests were made.
The determination to deny Ms. Thomas access to the resident parking area was in keeping with reasonable Association policy and, like Mr. Santiero's reaction to being hit by
Ms. Thomas' vehicle, was not based on racial or other impermissible considerations.18
The security guards who patrol the Development are responsible for checking to see that no unauthorized persons have been successful in gaining entry to the Development. It is also their responsibility to make sure that those who are authorized to be there (invited guests and residents) are acting in compliance with the Association's rules and regulations and, if they are not, to take appropriate action.
Discharging these responsibilities frequently draw the security guards to the pool areas, which are magnets for
uninvited outsiders who enter the Development by jumping over the fence that separates the Development from the property around it.
Ms. Williams has had two encounters with security guards in the pool area (in Phase I) that have left her upset.
The first encounter occurred in or around June of 1999. Ms. Williams was in the pool with her two-year old son, who was wearing only a diaper, when she was approached by a security guard asking that she change her son into shorts.
Ms. Williams complied with the request. At no time was she told that she could not use the pool.
The second encounter occurred in or around June of 2000. Ms. Williams was in the pool area with her children and other family members (her mother-in-law, her younger sister, and a nephew) when she got into a dispute with a security guard who had been dispatched to the area to investigate a complaint of excessive noise. Ms. Williams was unable to convince the security guard that she lived in the Development. Consequently, the security guard asked her and her family to leave.
Ms. Williams became "outraged." The security guard contacted Mr. Reyes and asked him to come to the pool area. When he arrived on the scene, Mr. Reyes walked up to Ms. Williams, whom he recognized, and told her to calm down. He then spoke to the security guard and told him that Ms. Williams lived in the
Development and that therefore she and her family were entitled to use the pool. The security guard responded by apologizing to Ms. Williams. After speaking with the security guard, Mr. Reyes turned his attention back to Ms. Williams. One of her sons, who appeared to Mr. Reyes to be between six and seven years of age, was naked. Mr. Reyes told Ms. Williams that she and her family could stay in the pool area, but that the young boy needed to have on appropriate attire.
There is no indication in the evidentiary record in the instant case that the actions of the security guards and Mr. Reyes in the two pool area incidents related above involving Ms. Williams and her family were the product of any racial animus or any other illicit motivation.
Petitioners and their family have not used the pool since the last of these two incidents. They have not done so, however, of their own choosing, not because they have been denied use of the pool.
Another common facility that Petitioners have not used is the clubhouse.
It cannot be said, though, that they have been unfairly denied use of the clubhouse inasmuch as, at no time, have they followed the established procedure to which all unit owners must adhere in order to be able to enjoy such use.
The security guards are not the only ones who patrol the grounds of the Development. Mr. Penalver and Mr. Reyes do so as well.
On the evening of March 22, 2001, at around 9:00 p.m., Mr. Penalver observed a young man in a ski cap pulled down to his eyes walking slowly on the "island" between two rows of parked vehicles in the resident parking area. It appeared to Mr. Penalver that the young man was looking inside the parked vehicles.
This aroused Mr. Penalver's suspicion, particularly since there had been a car burglary in the Development a couple of nights before.
Mr. Penalver approached the young man, whom he did not recognize, and asked him if he lived there. He asked no other questions, nor did he stop or detain the young man.
The young man, it turned out, was Darrell Williams, Petitioners' teenage son.
Darrell responded to Mr. Penalver's inquiry by calling Mr. Penalver a "racist." He then walked away, went up to his parents' unit, and told them about what had just happened.
Mr. Williams decided to call the police "to put this on record" because he believed (erroneously) that Darrell had
been unfairly harassed and discriminated against by Mr. Penalver.
After contacting the police, Mr. Williams went downstairs to the resident parking area and confronted Mr. Penalver in a hostile manner.
He informed Mr. Penalver that he had called the police and demanded that Mr. Penalver wait with him until the police arrived.
Mr. Penalver remained with Mr. Williams, waiting for the police to respond to Mr. Williams' call.
The police officer who responded to the scene spoke with Mr. Williams and Mr. Penalver, filled out paperwork, and then left.
That evening, Mr. Penalver did not treat Darrell any differently than he would have treated anyone else, unfamiliar to him, doing what he observed Darrell doing.
The reduction in the Association's indebtedness and in crime in the Development has coincided with a decrease in the number of persons residing in the Development.
To address the overpopulation problem that plagued the Development at the time Mr. Penalver took over as receiver, the Association, in November of 1996, adopted, with court approval, the following reasonable occupancy limits, which are consistent with HUD guidelines: a maximum of two persons in a
one-bedroom unit; a maximum of four persons in a two-bedroom unit; and a maximum of six persons in a three-bedroom unit.
This policy was designed to reduce, not the number of families with children who lived in the Development,19 but the total number of persons of all ages who called the Development home.
Notices of this policy are posted at the entrance to every building in the Development.
The Association has issued anywhere from 50 to 100 notices of violation to unit owners in violation of this policy.
In those instances where the unit having a greater number occupants than allowed is being used by more than one family, a fine has been imposed against the unit owner.
The Association has not taken any other action to enforce its adopted occupancy limits.
After receiving complaints from Petitioners' neighbors about the noise and the number of persons living in Petitioners' unit, Mr. Reyes, on March 29, 2001, sent Petitioners a notice of violation advising Petitioners that there were "too many people" in their unit. No fine was imposed, however.
Although Petitioners continued to be in violation of the occupancy limit for a two-bedroom unit, no enforcement
action was taken against them pursuant to Mr. Penalver's instructions.
Mr. Penalver, however, did recommend to Petitioners, when there were three-bedroom units available, that they consider moving into such a unit,20 a recommendation Petitioners declined to follow.
Mr. Penalver has been criticized by some unit owners for not strictly enforcing the Association's occupancy limits. He has endured this criticism since he "does not have the heart to force people out" due to the size of their families.
In addition to the March 29, 2001, notice of violation for having "too many people" in their unit, Petitioners have received several other notices of violation during Mr. Penalver's receivership.
Like the March 29, 2001, notice of violation, these other notices of violation were signed by Mr. Reyes (or for him, by his secretary) and contained the following advisement:
If the above mentioned violation(s) is(are) true, then we respectfully request that you immediately correct them[.] [I]f you disagree [,] [p]lease notify us in writing within 7 days. If the violation(s) re- occurs, per Florida Statute 718.112[,] . . . you can be subjected to a fine of $50.00 per day up to $1,000.00.
Your cooperation in observing the rules and regulations would be greatly appreciated[.] [T]his will help us in maintaining a peaceful and safe place to live.
These other violations were based on reports received by Mr. Reyes of misconduct involving Petitioners' children.
One notice of violation was dated January 24, 2000.
It advised Petitioners that their "account ha[d] been fined
$50.00." The violation alleged was "throwing a mustard bottle."
Another notice of violation was dated February 7, 2000. The violation alleged was "breaking glass bottle, threatening other children." Mr. Reyes had been told about the incident by two or three young residents (approximately nine to
11 years of age). The children reported to Mr. Reyes that the incident took place on the grounds of the Development. The notice reflected that no fine was being imposed against Petitioners.
A few days later, Petitioners received a notice of violation, signed by Mr. Reyes' secretary, advising them a second time of the violation that had been described in the February 7, 2000, notice of violation. This notice of violation, like the February 7, 2000, notice of violation, indicated that Petitioners were not being fined.
There was a notice of violation dated February 10, 2000, advising Petitioners that their "account ha[d] been fined
$100.00" for "threat[en]ing other kids, picking fights." Petitioners were fined because this was a repeat offense.21
Petitioners received another notice of violation dated February 10, 2000. The violation alleged was "jumping on vehicles." The notice reflected that Petitioners' "account ha[d] been fined $100.00." Earlier in the month, the Development's director of security, Pablo Diaz de la Rocha, had observed two of Petitioners' sons, Larry Williams, Jr., and Jordan Williams, jumping on the hoods of parked vehicles in the Development. Mr. de la Rocha took their names and wrote a report, which he subsequently sent to Mr. Reyes. He also entered into an agreement with Larry and Jordan, allowing them to perform "community service" (by taking to the bus bench, outside the Development's entrance, shopping carts that had been brought into the Development from a nearby supermarket) in lieu of their parents' having to pay a fine for their misconduct. To Mr. de la Rocha's knowledge, Larry and Jordan did not live up to their end of the bargain. It was only after being advised by Mr. de la Rocha of the brothers' noncompliance that Mr. Reyes sent Petitioners the notice of violation described above.
Mr. Reyes has not issued a notice of violation every time he has received a complaint about the conduct of Petitioners' children.
The notices of violation he has sent to Petitioners (which number no more than seven or eight) represent a very
small percentage of the total number of notices he has issued since becoming site manager.
Other families whose children have engaged in misconduct of which Mr. Reyes has been made aware have also received notices of violation.
Petitioners have not been unfairly singled out.
No notice of violation has been sent to Petitioners, nor has any fine been imposed upon them, based on racial considerations or on their familial status.
Unfortunately, Petitioners are not able to enjoy the overall improved conditions in the Development because the conditions inside their unit are such that they can no longer live in it.
The unit has been uninhabitable since on or about Saturday, July 6, 2002.
On that day, Ms. Williams and her children, upon returning to their unit, discovered the unit "ankle deep" in water and waste materials. Ms. Williams telephoned the guardhouse and advised the security guard on duty of the situation. The family then left, taking with them what they could.
That same day, Mr. Rodriguez was asked by Mr. Reyes to check out a "plumbing problem" in Petitioners' unit.
Mr. Rodriguez went to Petitioners' unit to investigate.
It was his routine practice, as maintenance supervisor, to check out all maintenance-related problems referred to him, regardless of who the unit owner was complaining about the problem. He treated Petitioners' complaints no differently than those made by other unit owners.
Mr. Rodriguez knocked on the door to Petitioners' unit, but no one answered.
He then went up to the roof. Using a motorized snake, he made sure that the main lines servicing Petitioners' unit and the units beneath and above Petitioners' unit (which main lines are common elements that the Association is responsible for maintaining) were unclogged. He then returned to his unit, thinking "everything was okay."
The following Monday (July 8, 2002), Mr. Rodriguez was asked to look into a complaint from Petitioners' next door neighbor (in unit 2316) that water was leaking into her unit from Petitioners' unit.
Mr. Rodriguez went back to Petitioners' unit.
Mr. Williams was there. He let Mr. Rodriguez in and showed him the flooding in the unit.
Mr. Rodriguez then returned to the roof. He put the snake down the main lines and found no obstructions.
Mr. Rodriguez reported back to Mr. Reyes, telling him that the flooding in Petitioners' unit did not appear to be caused by any problem in the main lines.
After obtaining Mr. Penalver's approval, Mr. Reyes hired a plumber to determine the cause of the flooding in Petitioners' unit.
The plumber Mr. Reyes hired was Ricardo Frankie.
Mr. Frankie has worked as a plumber for the past 23 years.
Mr. Frankie came out to the Development the same day he was called (July 8, 2002). After conducting the tests he typically performs to determine the source of a overflow problem in a multi-story building, Mr. Frankie concluded that there was a blockage, not in the main lines, but in a pipe or pipes serving only Petitioners' unit.
Before leaving, Mr. Frankie verbally advised
Mr. Rodriguez of his conclusion. He subsequently provided a written report.
Mr. Rodriquez informed Mr. Williams that, because the obstruction was within the interior boundaries of Petitioners' unit, it was Petitioners', not the Association's, responsibility to take care of the problem.
On July 11, 2002, Mr. Williams contacted the Miami- Dade County Health Department complaining that there was "sewage backup throughout [his] building."
A Health Department inspector, Paul Silvestri, was dispatched to the Development that same day, but Mr. Silvestri was unable to make contact with Petitioners.
Another Health Department inspector, Seidel Sanchez, went to the Development the following day.
Based on what he observed and the information he obtained from speaking with Mr. Rodriguez, with Mr. Williams, and with others, Mr. Sanchez decided to issue Mr. Williams an Official Notice to Abate a Sanitary Nuisance, which directed Mr. Williams to abate, within 48 hours, the "unsanitary condition existing on property under [his] control," to wit: "sewage water inside unit 2314, also [going] into unit 2316 closet and room."
Petitioners had a plumber, Lee Allen, come to their unit that same day to look at the problem.
The Association's failure to take any further action to address the flooding problem in Petitioners' unit was based on the reasonable belief that the Association was under no legal obligation to take such action. Petitioners' race and familial status played no role in the Association's failure to act.
In summary, there has been no showing of any acts of commission or omission by Respondents the purpose or effect of which was to disadvantage Petitioners based on their race or familial status.
CONCLUSIONS OF LAW
Florida's Fair Housing Act (Act) is codified in Sections 760.20 through 760.37, Florida Statutes.
Section 760.22, Florida Statutes, defines various terms used in the Act. It provides, in pertinent part, as follows:
As used in ss. 760.20-760.37, the term: . . . .
* * *
"Dwelling" means any building or structure, or portion thereof, which is occupied as, or designed or intended for occupancy as, a residence by one or more families, and any vacant land which is offered for sale or lease for the construction or location on the land of any such building or structure, or portion thereof.
"Familial status" is established when an individual who has not attained the age of 18 years is domiciled with:
A parent or other person having legal custody of such individual; or
A designee of a parent or other person having legal custody, with the written permission of such parent or other person.
"Family" includes a single individual.
* * *
(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.
* * *
Among other things, the Act makes certain acts "discriminatory housing practices" and gives the Commission the authority, if it finds (following an administrative hearing conducted by an Administrative Law Judge) that such a "discriminatory housing practice" has occurred, to issue an order "prohibiting the practice" and providing "affirmative relief from the effects of the practice, including quantifiable damages and reasonable attorney's fees and costs." Section 760.35(3)(b), Florida Statutes.
To obtain such relief from the Commission, a person who claims to have been injured by a "discriminatory housing practice" must "file a complaint within 1 year after the alleged discriminatory housing practice occurred." Section 760.34(2), Florida Statutes; however, "an otherwise time-barred claim may be considered timely if it and a timely-filed claim are treated as a single claim directed at continuing discriminatory conduct, part of which occurred within the statutory filing period." LeBlanc v. City of Tallahassee, 2003 WL 1485063 (N.D. Fla. 2003).
The "discriminatory housing practices" prohibited by the Act include those described in Section 760.23(2), Florida Statutes, which provides as follows:
It is unlawful to discriminate against any person in 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.
Race, color, national origin, sex, handicap, familial status, or religion-based harassment that creates a hostile housing environment constitutes a "discriminatory housing practice" prohibited by Section 760.23(2), Florida Statutes. "[A] [hostile housing environment] claim is actionable when the offensive behavior unreasonably interferes with use and enjoyment of the premises. The harassment must be sufficiently severe or pervasive to alter the conditions of the housing arrangement. It is not sufficient if the harassment is isolated or trivial. Casual or isolated manifestations of a discriminatory environment . . . may not raise a cause of action." Honce v. Vigil, 1 F.3d 1085, 1090 (10th Cir. 1993)(citations and internal quotations omitted).
The Act prohibits, not only practices that are intended to be discriminatory, but also those that have a discriminatory effect. Cf. Jackson v. Okaloosa County, Fla., 21 F.3d 1531, 1543 (11th Cir. 1994), quoting from United States v.
Mitchell, 580 F.2d 789, 791 (5th Cir. 1978)(["T]he Fair Housing Act prohibits 'not only direct discrimination but practices with racially discouraging effects . . . .'; thus, a showing of a significant discriminatory effect suffices to demonstrate a violation of the Fair Housing Act.").
"[D]iscriminatory effect is generally shown by statistical evidence[.] [A]ny statistical analysis must involve the appropriate comparables." Mountain Side Mobile Estates Partnership v. Secretary of Housing and Urban Development, 56 F.3d 1243, 1253 (10th Cir. 1995).
"Discriminatory intent may be established through direct or indirect circumstantial evidence." Johnson v. Hamrick, 155 F.Supp.2d 1355, 1377 (N.D. Ga. 2001).
"Direct evidence is evidence that, if believed, would prove the existence of discriminatory intent without resort to inference or presumption." King v. La Playa-De Varadero Restaurant, No. 02-2502, 2003 WL 435084 (Fla. DOAH 2003)(Recommended Order).
"Direct evidence of intent is often unavailable." Shealy v. City of Albany, Ga., 89 F.3d 804, 806 (11th Cir. 1996). For this reason, those who claim to be victims of discrimination "are permitted to establish their cases through inferential and circumstantial proof." Kline v. Tennessee Valley Authority, 128 F.3d 337, 348 (6th Cir. 1997).
Pursuant to Section 760.34(5), Florida Statutes, regardless of whether the complainant is proceeding under a theory of discriminatory effect or one of discriminatory intent, the burden is on the complainant to prove (at the administrative hearing) the occurrence of the "discriminatory housing practice" alleged in the complaint.
Where a complainant attempts to prove intentional discrimination using circumstantial evidence, a "shifting burden framework" is applied. "Under this framework, the [complainant] has the initial burden of establishing a prima facie case of discrimination. If [the complainant] meets that burden, then an inference arises that the challenged action was motivated by a discriminatory intent. The burden then shifts to the [respondent] to 'articulate' a legitimate, non-discriminatory reason for its action. If the [respondent] successfully articulates such a reason, then the burden shifts back to the [complainant] to show that the proffered reason is really pretext for unlawful discrimination." Schoenfeld v. Babbitt,
168 F.3d 1257, 1267 (11th Cir. 1999)(citations omitted.); see also Massaro v. Mainlands Section 1 and 2 Civic Association, Inc., 3 F.3d 1472, 1476 n.6 (11th Cir. 1993)("Fair housing discrimination cases are subject to the three-part test articulated in McDonnell Douglas Corp. v. Green, 411 U.S. 792, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973)."); and Secretary of the
United States Department of Housing and Urban Development on Behalf of Herron v. Blackwell, 908 F.2d 864, 870 (11th Cir. 1990)("We agree with the ALJ that the three-part burden of proof test developed in McDonnell Douglas [for claims brought under Title VII of the Civil Rights Act] governs in this case [involving a claim of discrimination in violation of the federal Fair Housing Act].")
Proof that, in essence, amounts to no more than mere speculation and self-serving belief on the part of the complainant concerning the motives of the respondent is insufficient, standing alone, to establish a prima facie case of intentional discrimination. See Lizardo v. Denny's, Inc., 270 F.3d 94, 104 (2d Cir. 2001)("The record is barren of any direct evidence of racial animus. Of course, direct evidence of discrimination is not necessary. However, a jury cannot infer discrimination from thin air. Plaintiffs have done little more than cite to their mistreatment and ask the court to conclude that it must have been related to their race. This is not sufficient.")(citations omitted.); Reyes v. Pacific Bell, 21 F.3d 1115 (Table), 1994 WL 107994 *4 n.1 (9th Cir. 1994)("The only such evidence [of discrimination] in the record is Reyes's own testimony that it is his belief that he was fired for discriminatory reasons. This subjective belief is insufficient to establish a prima facie case."); Little v. Republic Refining
Co., Ltd., 924 F.2d 93, 96 (5th Cir. 1991)("Little points to his own subjective belief that age motivated Boyd. An age discrimination plaintiff's own good faith belief that his age motivated his employer's action is of little value."); Elliott v. Group Medical & Surgical Service, 714 F.2d 556, 567 (5th Cir. 1983)("We are not prepared to hold that a subjective belief of discrimination, however genuine, can be the basis of judicial relief."); Jackson v. Waguespack, 2002 WL 31427316 (E.D. La.
2002)("[T]he Plaintiff has no evidence to show Waguespack was motivated by racial animus. Speculation and belief are insufficient to create a fact issue as to pretext nor can pretext be established by mere conclusory statements of a Plaintiff that feels she has been discriminated against. The Plaintiff's evidence on this issue is entirely conclusory, she was the only black person seated there. The Plaintiff did not witness Defendant Waguespack make any racial remarks or racial epithets."); Coleman v. Exxon Chemical Corp., 162 F.Supp.2d 593, 622 (S.D. Tex. 2001)("Plaintiff's conclusory, subjective belief that he has suffered discrimination by Cardinal is not probative of unlawful racial animus."); Cleveland-Goins v. City of New York, 1999 WL 673343 (S.D. N.Y. 1999)("Plaintiff has failed to proffer any relevant evidence that her race was a factor in defendants' decision to terminate her. Plaintiff alleges nothing more than that she 'was the only African-American man
[sic] to hold the position of administrative assistant/secretary at Manhattan Construction.' (Compl.¶ 9.) The Court finds that this single allegation, accompanied by unsupported and speculative statements as to defendants' discriminatory animus, is entirely insufficient to make out a prima facie case or to state a claim under Title VII."); Umansky v. Masterpiece
International Ltd., 1998 WL 433779 (S.D. N.Y. 1998)("Plaintiff proffers no support for her allegations of race and gender discrimination other than her own speculations and assumptions. The Court finds that plaintiff cannot demonstrate that she was discharged in circumstances giving rise to an inference of discrimination, and therefore has failed to make out a prima facie case of race or gender discrimination."); and Lo v.
F.D.I.C., 846 F.Supp. 557, 563 (S.D. Tex. 1994)("Lo's subjective belief of race and national origin discrimination is legally insufficient to support his claims under Title VII.").
In the instant case, Petitioners did not meet their burden of proving at the administrative hearing that Respondents discriminated against them on the basis of their race and familial status, as they alleged in their complaint.22
Petitioners failed to show, through statistical evidence or otherwise, any policies or practices of Respondents that had the effect, whether intended or not, of discriminating against them because of their race and familial status.23
Nor did they present direct or circumstantial evidence establishing, even prima facie, that they were victims of intentional race and familial status-based discrimination by Respondents. While Petitioners may sincerely and genuinely believe that the actions and inactions of Respondents that they have called into question in this case were motivated by discriminatory animus on the basis of Petitioners' race and familial status, such a good faith belief, unaccompanied by any persuasive proof establishing a nexus between Petitioners' race and familial status and Respondents' conduct, is simply insufficient to prove intentional discrimination on the part of Respondents. In any event, although not required to do so inasmuch as the burden of production never shifted to them, Respondents advanced legitimate, non-discriminatory explanations for their challenged conduct and the evidentiary record affirmatively establishes the non-pretextual nature of these explanations.
In view of the foregoing, no "discriminatory housing practice" should be found to have occurred and Petitioners' Petition for Relief should therefore be dismissed.24
Based on the foregoing Findings of Fact and Conclusions of Law, it is
RECOMMENDED that the Commission issue a final order finding that Respondents are not guilty of any "discriminatory housing practice" and dismissing Petitioners' Petition for Relief based on such finding.
DONE AND ENTERED this 29th day of April, 2003, in Tallahassee, Leon County, Florida.
STUART M. LERNER
Administrative Law Judge
Division of Administrative Hearings The DeSoto Building
1230 Apalachee Parkway
Tallahassee, Florida 32399-3060
(850) 488-9675 SUNCOM 278-9675
Fax Filing (850) 921-6847 www.doah.state.fl.us
Filed with the Clerk of the Division of Administrative Hearings this 29th day of April, 2003.
ENDNOTES
1/ The hearing was originally scheduled to commence on September 13, 2002, but was continued at Respondents' request.
2/ In any event, even if these documents were considered part of the evidentiary record (on which findings of fact could be based), the outcome of the instant case would still be the same.
3/ All of buildings were constructed with "open balconies." Over the years, approximately 100 to 150 of these once "open balconies" have been enclosed by unit owners.
4/ All security staff members are bi-lingual (in Spanish and English). Some are black.
5/ There is a "master sewer and water meter" in each phase of the Development.
6/ In the mid-1990's, a two-bedroom, two-bath unit in the Development sold for approximately $18,000.00 to $20,0000.00.
7/ Two different families, on occasion, would rent a single room, with one family occupying the room during one part of the day and the other family occupying the room the remainder of the day.
8/ Such action effectively took control of the Association away from the unit owners.
9/ Judge Chavies took over the case from Miami-Dade County Circuit Court Judge Frederica Smith, who had been reassigned the case from Judge Jones.
10/ Pursuant to Article II, Section 9, of the Florida Constitution, "English is the official language of the State of Florida." Accordingly, all official proceedings before Judge Chavies must be in English (although there is no prohibition against the use of interpreter services for those unable to understand or communicate in English).
11/ Mr. Penalver also has a working knowledge of French.
12/ See page 18, lines 5 through 11, of the Transcript of the January 8, 2003, hearing proceedings.
13/ Petitioners presented evidence that one of their children, Jordan Williams, cut his foot on the railing outside of Petitioners' unit and had to be taken to the emergency room, where he received stitches. This incident occurred, however, on May 10, 1996, before either Mr. Penalver or Mr. Reyes had anything to do with the Development.
14/ Some walkways have been "resmoothed," but by individual unit owners, not by the Association.
15/ When exiting the unit door one day (May 31, 2000), Ms. Williams was hit on the head by a piece of falling plaster and sustained an injury which required medical attention.
16/ The first cases that Mr. Penalver sent to the collection attorney were those of unit owners who did not live in the Development.
17/ There were two other children in the vehicle with Ms. Thomas.
18/ Ms. Williams testified that her brothers also had "problems" with the Association's security staff on various occasions; however, she did not provide details and it is unclear whether she herself actually witnessed the encounters about which she testified or was simply told about them by her brothers or someone else.
19/ Indicative of the lack of any bias on Respondents' part against families with children living in the Development are the arrangements that they made to establish a free after school tutorial program (staffed with a teacher) to help children in the Development with their schoolwork.
20/ He made this recommendation notwithstanding that the number of persons in Petitioners' unit exceeded the occupancy limit for even a three-bedroom unit.
21/ Petitioners' children have an ongoing feud (that started approximately six or seven years ago) with the children of another family living in the Development, the Garcia family.
22/ In their Proposed Recommended Order, Petitioners further allege that Respondents are guilty of the tort of negligence and of violating Florida's Deceptive and Unfair Trade Practices Acts. These allegations, however, are beyond the scope of this proceeding and therefore have not be addressed in this Recommended Order.
23/ Worthy of special mention are the occupancy limits adopted by the Association. Not only are these occupancy limits reasonable (particularly given the circumstances that led to their adoption) and facially neutral (in terms race and familial status), they were not enforced against Petitioners. Although Respondents advised Petitioners that Petitioners were in violation of the occupancy limit applicable to two-bedroom units, Respondents never fined Petitioners for their violation of the occupancy limit and they took no action to attempt to remove Petitioners from their unit despite Petitioners' continuing violation of the limit. Accordingly, the Association's occupancy limits cannot be said to have had any effect, discriminatory or otherwise, on Petitioners.
24/ It has been held that "court-appointed receivers, such as [Mr. Penalver], enjoy judicial immunity for acts within the
scope of their authority, and that their authority extends to carrying out faithfully and carefully the orders of the appointing judge." Property Management & Investments, Inc. v. Lewis, 752 F.2d 599, 602 (11th Cir. 1985). There is also case law to the effect that receivers are entitled to such immunity even if their actions are "motivated by unfair, or even malicious, reasons." Murray v. Gilmore, 231 F.Supp.2d 82, 89 (D.C. Cir. 2002). Mr. Penalver, however, has not claimed that he is immune from being held liable for his conduct on the ground that he was acting within the scope of his authority as a court-appointed receiver, and it therefore would be inappropriate to consider the merits of such a defense, even if the evidence supported a finding that he discriminated against Petitioners, as Petitioners have alleged (which the record does not).
COPIES FURNISHED:
Monica and Vincent Williams Post Office Box 013221 Miami, Florida 33101-3221
Rafael Penalver, Esquire Penalver and Penalver, P.A. 1101 Brickell Avenue
Suite 1700
Miami, Florida 33131
Martin P. McDonnell, Esquire
Rutledge, Ecenia, Purnell & Hoffman, P. A. Post Office Box 551
Tallahassee, Florida 32302
Cecil Howard, General Counsel Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100
Tallahassee, Florida 323301
Denise Crawford, Agency Clerk Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100
Tallahassee, Florida 323301
NOTICE OF RIGHT TO SUBMIT EXCEPTIONS
All parties have the right to submit written exceptions within
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.
| Issue Date | Document | Summary |
|---|---|---|
| Aug. 12, 2003 | Agency Final Order | |
| Apr. 29, 2003 | Recommended Order | African-American couple with eight children under age 18 who owned unit in condo development failed to prove discrimination based on race and familial status by condo association (which was in receivership), the receiver and site manager. |
