STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

CELESTE WASHINGTON, )

)

Petitioner, )

)

vs. ) Case No. 03-1718

)

HARDIN HAMMOCK ESTATES, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, a formal hearing was held in this case before Larry J. Sartin, an Administrative Law Judge of the Division of Administrative Hearings, on August 13, 2003, in Miami, Florida.

APPEARANCES

For Petitioner: Celeste Washington, pro se

11261 Southwest 220th Street Miami, Florida 33710-2914

For Respondent: Martin P. McDonnell, Esquire

Rutledge, Ecenia, Purnell & Hoffman, P.A. Post Office Box 551

Tallahassee, Florida 32302 STATEMENT OF THE ISSUE

The issue in this case is whether Respondent, Hardin

Hammock Estates (hereinafter referred to as "Hardin"), discriminated against Petitioner, Ms. Celeste Washington (hereinafter referred to as Ms. Washington), on the basis of her

race in violation of the Florida Fair Housing Act, Sections

1. through 760.37, Florida Statutes.

   
   

   PRELIMINARY STATEMENT

   
   

   On or about August 29, 2002, Ms. Washington, filed a Housing Discrimination Complaint (hereinafter referred to as the "Complaint") with the Florida Commission on Human Relations (hereinafter referred to as the "Commission"). The Complaint alleged that Hardin and Aimco Management Company, Inc. (hereinafter referred to as "Aimco") had refused to rent her an apartment because of her race. After investigation of the Complaint, the Commission issued a Determination of No Reasonable Cause,1 concluding that "reasonable cause does not exist to believe that a discriminatory housing practice has occurred" and dismissing the Complaint.

   On or about May 5, 2003, Ms. Washington filed a Petition for Relief with the Commission (hereinafter referred to as the "Petition"). Ms. Washington alleged in the Petition that Hardin2 had violated the Florida Fair Housing Act, Sections 760.20 through 760.37, Florida Statutes.

   By Transmittal of Petition, the Commission referred Ms. Washington's Petition to the Division of Administrative

   Hearings on May 12, 2003. The matter was designated DOAH Case No. 03-1718 and initially assigned to Administrative Law Judge

   Robert Meale. The case was reassigned to the undersigned to conduct the final hearing.

   At the final hearing, Ms. Washington testified on her own behalf. She offered no exhibits. Hardin presented the testimony of Salah Youssif. Respondent's Exhibits 1 through 7 were offered and received in evidence.

   By Notice of Filing of Transcript issued September 3, 2003, the parties were informed that the Transcript of the final hearing had been filed on August 29, 2003. The parties, pursuant to agreement, therefore, had until October 13, 2003, to file proposed recommended orders. On October 13, 2003, Hardin filed a Proposed Recommended Order. Ms. Washington did not file a post-hearing pleading. The post-hearing submittal of Hardin has been fully considered.

   FINDINGS OF FACT

   
   

   1. The Parties.

      
      

      1. Celeste Washington is a black adult.

         
         

      2. Hardin is a housing rental complex with 200 single- family residences. Hardin is located in Miami-Dade County, Florida. Hardin provides "affordable housing" to lower-income individuals and, therefore, its residents are required to meet certain income requirements in order to be eligible for a residence at Hardin.

      3. At the times material to this proceeding, Hardin was managed by Reliance Management Incorporated (hereinafter referred to as "Reliance").

      4. At the times material to this proceeding, Salah Youssif, an employee of Reliance, acted as the property manager at Hardin. Mr. Youssif is himself black, having been born in Sudan.

   2. Ms. Washington's Charge.

      
      

      1. On or about August 29, 2002, Ms. Washington filed a Complaint with the Commission. After investigation of the Complaint, the Commission issued a Determination of No Reasonable Cause, concluding that "reasonable cause does not exist to believe that a discriminatory housing practice has occurred" and dismissing the Complaint.

      2. On or about May 5, 2003, Ms. Washington filed a Petition with the Commission. Ms. Washington alleged in the Petition that Hardin had violated the Florida Fair Housing Act, Sections 760.20 through 760.36, Florida Statutes. In particular, Ms. Washington alleged that Hardin had "violated the Florida Fair Housing Act, as amended, in the manner described below":

         Washington was told that the waiting list at Hardin Hammock Estates was closed.

         She visited this development twice and was told the waiting [sic] was close [sic]. At that time she viewed the wating [sic] list and the majority of the names are [sic] Hispanic. Islanders do not consider themselves as Black Americans.

         
         

      3. The "ultimate facts alleged & entitlement to relief" asserted in the Petition are as follows:

         Hardin Hammocks has willful [sic] and [knowingly] practice [sic] discrimination in there [sic] selection practice and a strong possibility that the same incomes for Blacks & others [sic]. Black Americans rent is [sic] higher than others living in these [sic] developments.

         
         

      4. At hearing, Ms. Washington testified that Hardin had discriminated against her when an unidentified person refused to give her an application and that she believes the refusal was based upon her race.

   3. Management of Hardin; General Anti-Discrimination

      
      

      Policies.

      
      

      1. The residence selection policy established by Reliance specifically precludes discrimination based upon race. A human resource manual which describes the policy has been adopted by Reliance and all employees of Reliance working at Hardin have attended a workshop conducted by Reliances' human resource manager at which the anti-discrimination policy was addressed.

      2. An explanation of the Federal Fair Housing Law of the United States Department of Housing and Urban Development is

         prominently displayed in the public area of Hardin's offices in both English and Spanish.

      3. As of July 1, 2002, approximately 52 of Hardin's 200 units were rented to African-American families.

   4. Hardin's Application Policy.

      
      

      1. When Mr. Youssif became the property manager at Hardin, there were no vacancies and he found a disorganized, outdated waiting list of questionable accuracy. Mr. Youssif undertook the task of updating the list and organizing it. He determined that there were approximately 70 to 80 individuals or families waiting for vacancies at Hardin.

      2. Due to the rate of families moving out of Hardin, approximately one to two families a month, Mr. Youssif realized that if he maintained a waiting list of 50 individuals it would still take approximately two years for a residence to become available for all 50 individuals on the list. Mr. Youssif also realized that, over a two-year or longer period, the individuals on a waiting list of 50 or more individuals could change drastically: their incomes could change; they could find other affordable housing before a residence became available at Hardin; or they could move out of the area. Mr. Youssif decided that it would be best for Hardin and for individuals interested in finding affordable housing that Hardin would maintain a waiting list of only 50 individuals and that applications would

         not be given to any person, regardless of their race, while there were 50 individuals on the waiting list.

      3. Mr. Youssif instituted the new waiting list policy and applied it regardless of the race of an applicant. If there were less than 50 names on the waiting list, applications were accepted regardless of an individual's race; and if there were

         50 or more names on the waiting list, no application was accepted regardless of an individual's race.

   5. Lack of Evidence of Discrimination.

1. The only evidence Ms. Washington presented concerning her allegations of discriminatory treatment is that she is black.

2. Although Ms. Washington was refused an application for housing at Hardin,3 the evidence failed to prove that

   Ms. Washington's race played any part in the decision not to give her an application.

   CONCLUSIONS OF LAW

   
   

   1. Jurisdiction.

      
      

3. The Division of Administrative Hearings has jurisdiction over the subject matter of this proceeding and of the parties thereto pursuant to Sections 120.569 and 120.57(1), Florida Statutes (2003).

   1. Florida's Fair Housing Act.

      
      

4. Florida's Fair Housing Act (hereinafter referred to as the "Act") is codified in Sections 760.20 through 760.37 of the Act. 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."

   § 760.35(3)(b), Fla. Stat.

   
   

5. In order for an individual to obtain the relief authorized by Section 760.35(3)(b) of the Act 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) of the Act, 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).

6. Section 760.22 of the Act defines "discriminatory housing practices" as "an act that is unlawful under the terms of ss. 760.20-760.37."

7. In determining whether a prohibited "discriminatory housing practice" has taken place in this matter, it must first be understood that Ms. Washington has not alleged that Hardin refused to rent to her on the basis of her race. Rather, she alleged that Hardin refused to give her an application based upon her race. Consequently, it is Section 760.23(2) of the Act which must be considered. Section 760.23(2) of the Act provides

   as follows:

   
   

   It is unlawful to discriminate against any

   person in the terms, conditions, or privileges or 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.

   
   

8. Section 760.22 of the Act defines various terms pertinent to Section 760.23(2) of the Act:

   . . . .

   
   

   (4) "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.

   
   

   . . . .

   
   

   (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.

   
   

   . . . .

   
   

9. The Hardin properties constitute a dwelling, and Ms. Washington is a person under the Act. The evidence failed to prove, however, that Hardin committed any act against

   Ms. Washington or refused to do something for Ms. Washington based upon her race.

   1. The Burden and Method of Proof.

      
      

10. Section 760.34(5) of the Act provides that the burden of proof in an action alleging a discriminatory housing practice filed with the Commission is on the complainant. Therefore, Ms. Washington had the burden of proving the allegations in the Petition. Ms. Washington failed to meet her burden.

11. In cases involving a claim of rental housing discrimination on the basis of race, such as this one, the complainant has the burden of proving a prima facie case of discrimination by a preponderance of the evidence. In order to make a prima facie showing of rental housing discrimination a complainant is required to first prove that he or she requested a rental application to rent a unit for which he or she was

    qualified, that the request for an application was rejected, and, at the time of such rejection, the complainant was a member of a class protected by the Act. See Soules v. U.S. Dept. of Housing and Urban Development, 967 F.2d 817, 822 (2d Cir. 1992). Failure to establish a prima facie case of discrimination ends the inquiry. See Ratliff v. State, 666 So. 2d 1008, 1012 n.6 (Fla. 1st DCA), aff’d, 679 So. 2d 1183 (1996)(citing Arnold v.

    Burger Queen Systems, 509 So. 2d 958 (Fla. 2d DCA 1987)).

    
    

12. If a complainant sufficiently establishes a prima facie case, the burden then shifts to the respondent to articulate some legitimate, nondiscriminatory reason for its action. If the respondent satisfies this burden, then the complainant must establish by a preponderance of the evidence that the reason asserted by the respondent is, in fact, merely a pretext for discrimination. See Massaro v. Mainlands Section 1 & 2 Civic Ass’n, Inc., 3 F.3d 1472, 1476 n.6 (11th Cir. 1993), cert. denied, 513 U.S. 808, 115 S. Ct. 56, 130 L.Ed.2d 15 (1994)(“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).”); Secretary, U.S. Dept. 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].”).

    1. Lack of Proof of Discrimination.

       
       

13. A claimant may meet his or her burden of proof by direct evidence of intentional discrimination. McDonnell

    Douglas Corp. v. Green, 411 U.S. 792 (1973). "Discriminatory intent may be established through direct or indirect circumstantial evidence." Johnson v. Hamrick, 155 F.Supp.2d 1355, 1377 (N.D. Ga. 2001).

14. "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).

15. The proof offered by Ms. Washington in this case amounted to no more than conjecture. 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). Ms. Washington, therefore, failed to offer a prima facie case of intentional discrimination.

16. The foregoing conclusion does not, however, end the inquiry, for 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).

17. "[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).

18. Ms. Washington offered absolutely no statistical or other evidence that would support a finding that Hardin's practices have a discriminatory effect. She has, therefore, failed to present a prima facie case of discriminatory effect.

19. Had Ms. Washington presented a prima facie case of discrimination in this case, the evidence presented by Hardin established a legitimate, non-discriminatory reason for its actions in this matter and Ms. Washington failed to prove that those non-discriminatory reasons for its actions were mere pretext.

    1. Attorney's Fees.

    
    

20. Hardin has requested in its Proposed Recommended Order an award of attorney's fees pursuant to Section 57.105, Florida

Statutes. Such an award may be made upon the "court's initiative or motion of any party . . . ." This forum is not inclined to award fees on its own initiative and no motion for an award of fees, which would give Ms. Washington an opportunity to respond, has been made. No award will, therefore, be made in this Recommended Order.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a final order be entered by the Florida Commission on Human Relations dismissing Celeste Washington's Petition for Relief.

DONE AND ENTERED this 20th day of November, 2003, in Tallahassee, Leon County, Florida.

S

LARRY J. SARTIN

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 20th day of November, 2003.

ENDNOTES

1/ The Determination of No Reasonable Cause was signed by the Executive Director of the Commission on March 18, 2003, but not filed with the Clerk of the Commission until April 14, 2003.

2/ Aimco was not named in the Petition and, therefore, is not a party to this proceeding.

3/ When Ms. Hardin requested an application was not proved. Ms. Washington testified that she went to Hardin in October of 2002; she also testified that she went to Hardin in July of

2002. Page 25 and 26 of the Transcript. During her examination of Mr. Youssif, she suggested that she had been at Hardin August 2nd, presumably 2002. Page 48 of the Transcript.

COPIES FURNISHED:

Celeste Washington

11261 Southwest 220th Street Miami, Florida 33710-2914

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 32301

Derick Daniel, Executive Director Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100

Tallahassee, Florida 32301

Denise Crawford, Agency Clerk Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100

Tallahassee, Florida 32301

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.

Docket for Case No: 03-001718

Orders for Case No: 03-001718