ANTHONY L. HESTER, and )
vs. ) Case No. 06-1954
Respondent. )
Robert E. Meale, Administrative Law Judge of the Division of Administrative Hearings, conducted the final hearing in Stuart, Florida, on August 28, September 26, November 3, and December 21, 2006, and January 26, 2007.
For Petitioners: Anthony L. Hester, pro se
For Respondent: Ron M. Campbell
Lee M. Cohen
Cole, Scott & Kissane, P.A. 1645 Palm Beach Lakes Boulevard Second Floor
The issue is whether Respondent committed an act of housing discrimination against either petitioner.
By Housing Discrimination Complaint filed July 12, 2005, Petitioners alleged that Respondent committed discrimination against them, based on race, in connection with housing. The complaint alleges that Petitioner Anthony L. Hester is black and Petitioner Kristina Rosen-Hester is white. The complaint is against Kathleen Wall, as president of Signature Property Management; Nancy Budd, as a member of the Board of Directors of Respondent; and Evelyn Krause, as a member of the Board of Directors of Respondent. The complaint alleges that the respondents, or some of them, made numerous complaints against Petitioners, such as concerning their pets, and committed an act of vandalism to Petitioners' water pump--all with an intent to force Petitioners to move from their home.
By letter dated May 15, 2006, the Florida Commission of Human Relations (Commission) entered a Determination of No Reasonable Cause. The letter notes that the Commission and the United States Department of Housing and Urban Development (HUD) jointly administer the Fair Housing Act in Florida. The letter states that, based on its investigation, the Commission found no reasonable cause to determine that a discriminatory housing practice had occurred.
On June 1, 2006, Petitioner Anthony L. Hester filed a Petition for Relief that names Respondent as the sole
perpetrator of discrimination. The petition states that the Commission's Determination is in error and another act of discrimination took place the preceding month. An attached Trespass Warning notes that Petitioner Anthony L. Hester had contacted the sheriff's department and authorized them to warn one Tony Petralli not to trespass on Petitioner's residential property.
At the hearing, Petitioner Anthony L. Hester asked for leave to amend his petition to add his wife as a petitioner. Respondent objected. The Administrative Law Judge reserved ruling, but allowed Petitioner Kristina Rosen-Hester to participate fully in the proceeding, as though she were a party. The request is now granted, and the style of the case has been amended to show both petitioners.
At the hearing, Petitioners called 13 witnesses: Petitioner Kristina Rosen-Hester, Anthony Petralli, Dennis Fritchie, Blanche Wells, Angie Laviano, Cindy Carson, Michael Ferguson, Nicki van Vonno, Tracy Case, Patricia McLaughlin, Phil Owen, Jason Glenn, and Eric Price. Petitioners offered into evidence 44 exhibits: Petitioners Exhibits 1-44. Respondent called one witness: Evelyn Krause. Respondent offered into evidence 31 exhibits: Respondent Exhibits 1-18, 20-31, and 33. All exhibits were admitted except Petitioners Exhibits 24, 33,
36, and 38 and Respondent Exhibits 4 and 20-21, which were proffered.
The parties did not order a transcript. They filed their proposed findings of fact by March 14, 2007.
Petitioners are married with three children living at home at the time of the incidents described below. Petitioner Anthony L. Hester (Mr. Hester) is black, and Petitioner Kristina Rosen-Hester (Ms. Rosen-Hester) is white. In November 2003, Petitioners purchased a single-family residence in a 46-home subdivision known as Granada in Palm City, which is in unincorporated Martin County near Stuart. The subdivision is subject to restrictive covenants that are administered by Respondent, which is a resident-controlled homeowners' association.
Petitioners moved out of their home in Granada almost two years later, in October 2005. They claim they were victims of racial discrimination targeting Mr. Hester because he is black and Ms. Rosen-Hester because she is married to a black man. Petitioners rely on two broad categories of evidence in support of their claims of racial discrimination. First, they claim that they were the subject of a number of unfounded complaints, many of which, though, not initiated by Respondent. Second, they claim that Respondent enforced the restrictive
covenants unfairly against Petitioners when they had complied with the restrictions and when other residents were not required to comply with the restrictions.
Ultimately, Petitioners have failed to prove that Respondent discriminated against them due to race. Several factors undermine each of their two main categories of evidence. As to the complaints filed against them, a major problem is that Respondent was not typically the complaining party. These complaints are to the Martin County Building Department from neighbors--in one case, at least, Steven or Nancy Budd, the
next-door neighbors of the Hesters. Good grounds existed for all but one complaint to the Building Department, and whatever animosity existed between Mr. Hester and Mr. Budd seems due to personality differences.
The main problems with Petitioners' reliance on the alleged unfair enforcement of the restrictive covenants by Respondent are the appearance of good grounds for the actions taken by Respondent against Petitioners, the appearance of good grounds for the failure to act against certain of the other Granada homeowners, and the obvious inexpertness of a volunteer board drawn from a fairly small subdivision with limited funds to hire outside help. Again, whatever animosity may have existed between Mr. Hester and any individual board members, of whom Ms. Budd was one, seems due to personality differences.
Mr. Hester's personality is an issue in this case.
During more than 40 hours of hearing, Mr. Hester presented himself as intelligent and capable of the insight necessary to modify his behavior to achieve desired ends. At times, he displayed self-insight, sensitivity, and a pleasant demeanor. However, Mr. Hester also displayed self-absorption, intransigence, and, most of all, anger, and he displayed these traits repeatedly. Although the anxiety produced by the hearing and occasional provocations by one of the opposing counsel may have accounted for some of these displays, it is highly unlikely that Mr. Hester did not display these traits at times while living in Granada. Some of the nonresidents who dealt with
Mr. Hester at the time of these incidents likewise describe him as angry. It is thus more than a theoretical possibility that other Granada residents were repelled by these negative traits, regardless of Mr. Hester's race.
Two facts undermining Petitioners' claims of racial discrimination are the delayed onset of problems in Granada and the gradual deterioration that took place once problems surfaced. For the most part, the Hesters' first year in Granada was free of serious problems. Mr. Hester moved into the home at the time of the purchase, so all of his neighbors had ample opportunity to notice that he was black. It is true that no other black persons own homes in Granada, although some black
persons have resided in the subdivision. But the absence of immediate rejection, as well as the slow deterioration in relations once problems started, militate against an inference of racial discrimination.
According to Ms. Rosen-Hester, there were no major problems for the first six to eight months after Petitioners moved in. She testified that their house was a favorite gathering place for neighborhood children the age of their children. However, she made her first call to the Martin County Sheriff's Department in August 2004 to complain about what Lieutenant Dennis Fritchie described as "ongoing neighborhood disputes." Ms. Rosen-Hester made 21 such calls from August 29, 2004, through June 22, 2006, but no arrests resulted. The deterioration in relations was gradual, as Ms. Rosen-Hester noted that neighborhood children only quit coming over to the Hesters' house to play around Christmas 2004.
Presumably the eight-month period to which
Ms. Rosen-Hester referred ended about the time of a letter dated April 27, 2004, from Mr. Hester to Respondent claiming harassment from Ms. Budd, who had just become a board member.
He threatened to file a lawsuit seeking her removal if she was not already removed from the board within 30 days. It is unclear from the record what were Mr. Hester's problems with Ms. Budd, except that the letter also complains about attempts
to force him to move the two boats in his yard. The letter limits the problems, though, to Ms. Budd, concluding that
Mr. Hester regretted resorting to these measures, but had to due to the "hatred exhibited from this community, or should I say one member."
Six weeks later, in a more detailed letter, Mr. Hester expressed his dissatisfaction with another board member, Eric Price. By letter dated June 6, 2004, to Respondent, Mr. Hester repeated the same threat of litigation if Mr. Price was not removed from the board within 30 days. The letter states that Petitioners encountered Eric one day while riding their bikes and approached him to hand him a form concerning one of
Mr. Hester's boats. As he took the form, Mr. Price reportedly became very upset and told the Hesters that he was going to resign as Respondent's president, someone else would become president, and she would have trouble with Mr. Price.
Mr. Hester replied that he was seeking information from the County about a road in Granada, and Mr. Price became more upset, reportedly stating, "fuck this shit." The Hesters approached Mr. Price's wife, who was walking down the street separate from her husband, and said that they had not intended to upset him.
Mr. Price then yelled from several houses away for her not to speak to the Hesters.
By letter dated June 7, 2004, Respondent's attorneys advised Mr. Hester that only a majority of homeowners could remove a board member. The letter requests Mr. Hester to direct future communications to the property manager, but not individual board members, unless it was at a board meeting.
By letter dated June 14, 2004, from Mr. Hester to Respondent, Mr. Hester stated that Mr. Budd had approached
Mr. Hester and told him, in a vulgar manner, about his right to inquire about financial matters, evidently discouraging him from doing so. The letter states that Mr. Hester has "no other choice but to have this matter presented to the courts" due to the intimidation that he and his family feel. He sent copies of the letter to the State Attorney's office and U.S. Attorney's office because of the feeling that this treatment was racially motivated. This was Mr. Hester's third threat to commence litigation in 60 days.
In these three threats, within 60 days, to commence litigation, Mr. Hester offered no details of racial discrimination by Ms. Budd, Mr. Price, or Mr. Budd. Conflicts between Mr. Hester and these three persons had arisen, probably due to the storage of his boat, and Mr. Price at least, if not also Mr. Budd, likely viewed Mr. Hester as a troublesome association member. These types of problems are not unprecedented in homeowner or condominium associations, but
Mr. Hester, joined by his wife, promptly attributed the conflicts to racial discrimination, evidently strictly on the basis that Mr. Hester is black.
Another early sign of neighborhood friction arose concerning Petitioners' pets. The Hesters provide foster care for animals. During their two years' residence in Granada, they cared for a total of seven animals, including two dogs (no more than one at a time), several cats (including two kittens that were the subject of at least one complaint), a macaw (bird), and ferrets. Ms. Rosen-Hester testified that they received their first complaint concerning pets on the day after they moved it.
However, complaints regarding the pets seemed always to involve wandering animals and, again showing a pattern of slow deterioration in relations, did not ripen to complaints to animal control for the first year. According to animal-control records, officers received pet complaints only in October 2004 and January and June 2005--the first complaint, at least, made by Ms. Budd.
September 2004 was notable as the month in which Hurricanes Frances and Jeanne made landfall in Stuart. These storms caused considerable property damage, including to Petitioners' roof, garage, and fence. Obviously, this storm damage necessitated numerous repairs and rebuilding.
Hastening the deterioration in neighborhood relations was a complaint, probably by Mr. Budd, to the Martin County Building Department on December 22, 2004. The complainant reported that Mr. Hester had rebuilt his roof without pulling a permit or having the work inspected, and the complainant was concerned about the safety of the finished roof. A building inspector visited the Hesters' home and inspected a roof that they had recently repaired. According to the inspector,
Mr. Hester was "very upset at everybody and everything."
Mr. Hester was angry that someone had reported him for undertaking this work without a permit, but agreed to call for an inspection when the work was ready to be inspected.
About one month later, someone called the Building Department and, possibly misleading the Building Department employee into thinking he or she was Mr. Hester or
Ms. Rosen-Hester, requested an inspection. On April 16, 2005, after Mr. Hester requested an inspection, the Building Department inspector failed the roof because it lacked documentation from the manufacturer. Eventually, the missing information was obtained, and the Building Department inspector passed the roof later in the year.
Two more complaints to the Building Department followed in rapid succession. The first, which claimed that a fence that Petitioners had constructed was over their property
line, was made two days after someone had prematurely called for an inspection of the roof, and the second, which claimed that Petitioners had installed a large shed/garage without a permit, was made two days after that. Building Department records indicate that the shed/garage failed inspections in late March and mid April, but passed final inspection on April 29, 2005.
Building Department records indicate that it declined to involve itself in a boundary-line dispute between neighbors, although Petitioners did obtain an after-the-fact permit for their fence.
Again, the evidence fails to reveal, directly or indirectly, racial discrimination involved in these complaints to the Building Department. Perhaps due to the exigencies of hurricane-related repairs, Petitioners proceeded to make major repairs without permits, but neighbors could legitimately consider an unpermitted roof and manufactured shed/garage as threats to their safety, especially after having just experienced the force of two major hurricanes in a single month. Additionally, both the roof and shed/garage failed inspections prior to passing. The fence may have posed less of a safety threat, if it was properly installed, but the fence complaint likely reflected nothing more than the deterioration in relations between Mr. Hester and the unknown complainant.
Relations between Mr. Hester and Respondent deteriorated quickly in early 2005. By January 2005, the
Hesters had commenced some sort of legal action against Respondent, the property manager, and/or individual board members. On January 6, 2005, Mr. Hester filed with Respondent an application for an architectural review board (ARB) approval. The restrictive covenants authorize Respondent to form an ARB to approve, prior to construction, a wide range of improvements to homes within Granada. At the time of these incidents, the ARB consisted of all or some of the board members and probably no other association members, so this recommended order treats the ARB as identical to Respondent.
The January 6 ARB application includes the installation of a "detached garage--approved & permitted by Martin County." As noted above, this was a misrepresentation, as Petitioners had not even applied for a building permit for this structure. The January 6 ARB application also covers a driveway to the garage and the replacement of gutters damaged by the hurricanes.
A discrepancy in diagrams of the shed/garage submitted with the January 6 ARP application resulted in a letter dated January 12, 2005, from Respondent's property manager asking for a picture of the shed and a defined location for it on Petitioner's property. By letter dated January 14, 2005, rather than comply with the request, Mr. Hester brusquely told the property manager that it "may take a picture after it [the
garage] is built, and from this point forward, please send all communications for us to our attorney . . . and a copy to the Department of Business and Professional Regulation." The letter adds that Petitioner's garage was destroyed by the hurricanes and warns Respondent not to attempt to tow his boats off his property--a reference to another letter dated January 12, 2005, sent to him by Respondent demanding that Mr. Hester relocate the boats to the RV parking area and remove the swimming pool contractor's sign in his front yard.
By letter dated January 24, 2005, Respondent's attorney advised Petitioners' attorney that the ARB had approved the gutters, disapproved the driveway that would have provided secondary access to a busy road outside of Granada in violation of the plat for Granada, and disapproved the two-car garage because Granada has no other free-standing garages and, if the proposed structure were a shed, it would be considerably larger than any other free-standing shed previously approved. The letter adds that Mr. Hester has removed the association's chain- link fence adjoining his lot, presumably in preparation of the installation of the driveway, and requests Petitioners to reinstall the fence without delay. The letter concludes that parking the boats in the yard also violates the restrictive covenants.
By undated letter, probably faxed on February 4, 2005, Mr. Hester sent Respondent's attorney three ARB applications, including one for a revised driveway already approved by Martin County, one for a swimming pool, and one for the replacement of Petitioners' fence. The letter advises that Mr. Hester will remove a chain-link fence on his property, if Respondent does not repair it within 10 days. By letter dated February 28, 2005, Respondent's attorney advised Petitioners' attorney that the ARB approved the swimming pool (which was completed by May 2005), denied the fence (already installed by Petitioners) until they evened the height, straightened it out, and removed the gate leading to the busy road outside of the subdivision, and denied the driveway because it would lead to an already-denied two-car garage and would be the only free-standing garage in Granada.
By letter dated April 28, 2005, the property manager advised Petitioners' attorney that Petitioners had installed a wood fence atop the concrete common wall without ARB approval and asked that they submit an ARB application within seven days. By ARB application dated May 2, 2005, Mr. Hester requested ARB approval, which was denied the next day.
Ms. Rosen-Hester testified that the Hesters felt threatened in 2005 due to neighborhood animosity. On May 23, 2005, the Hesters discovered that their water line had broken
just on the customer side of the meter. They had previously installed several surveillance cameras on the outside of their home, and one camera videotaped Mr. Budd mowing his lawn beside the Hester's property. At the time, Petitioners' water meter was on the Budds' property. The videotape appears to reveal Mr. Budd pausing, while mowing the lawn, to do something in or around the water meter box on three occasions early in the afternoon of Sunday, May 22. The Sheriff's Office investigated this matter, reviewed the surveillance tape, obtained a statement from the utility director that he thought the break in the PVC pipe was a defect, obtained a statement from Mr. Budd that he discovered water while mowing the lawn, and closed the file without making any arrests. Interestingly, Mr. Budd's statement states that he asked his wife to call the Martin County utility department the next day, which she did, but not to contact the Hesters on the advice of an attorney due to pending litigation involving the Hesters.
It is unclear why Mr. Budd would vandalize the Hesters' water line in broad daylight on a Sunday afternoon in clear view of the road in front of their houses. It is unclear why Mr. Budd would so vandalize the Hesters' water line and tell his wife to report the leak. Even if the break in the line were not due to a defect, but was due to something that Mr. Budd did, the evidence fails to establish that Mr. Budd cut the line
intentionally, rather than negligently. Even if the evidence had established--and it did not--that Mr. Budd cut the line intentionally, absolutely nothing suggests that Mr. Budd would have done so out of anything but the growing animosity that existed between him and Mr. Hester, without regard to race. The utility department resolved the matter by moving the Hesters' water meter box to their property.
As it is difficult to characterize the broken water line as an act of vandalism, so is it difficult to characterize the appearance of one or more dead rats in the vicinity of the Hesters' home. The only relevant evidence concerning the rats was that the Hesters owned cats that roamed free and hunted small animals, such as rats, and Mr. Hester owned pesticides that could poison rats. Again, even if someone placed one or more dead rats in the vicinity of the Hesters' home, nothing in the record suggests who did so or that it was due to racial discrimination.
Petitioners raised the issue of selective enforcement by Respondent of the restrictive covenants when Ms. Rosen-Hester wrote Respondent, by letter dated February 9, 2005, complaining of conditions in Granada that allegedly violated the restrictive covenants. These included improper parking of commercial and private vehicles, a broken association fence, weeds in common areas and the yards of certain residents, vandalism by board
members to the property of homeowners, and the lack of financial information.
At the following homeowners' meeting, Respondent noted problems with obtaining good financial information due to a recent change in management companies. In the minutes of the discussion of approvals sought by the Hesters for improvements to their property in the form of a pool, fence, and driveway, Respondent noted that past experience with Petitioners suggested that there would be problems with the maintenance of a common perimeter wall and thus the setback of the pool was a problem, the fence was unaesthetic, suffered from shoddy workmanship and contained a gate onto a busy road in violation of a county restriction, and the driveway would connect to the shed/garage, which Respondent had already declined to approve. Respondent also discussed other matters, such as one resident who had been slow to clean up after the hurricanes and had abandoned her home and another who had been slow to clean up after repairs.
Any evidence concerning slack enforcement of requirements to maintain houses and yards was irrelevant because Petitioners never allowed their home or yard to deteriorate. Enforcement of these requirements was sometimes not strict, but other factors, besides race, clearly accounted for this practice, such as the unusual damage suffered during September 2004 from two hurricanes, the limited financial ability of
certain homeowners to undertake repairs and maintenance (at least one home in Granada was abandoned after the storms), and the ability of a volunteer board of a small homeowners' association to address all of the details in enforcing requirements as to upkeep.
Petitioner made only a slightly better case as to selective enforcement of the ARB approvals and the presence of illegally parked vehicles. Again, though, a volunteer board in a small subdivision may be expected not to enforce the approval process at all times as it is written in the association documents. However, the revival of ARB-approval enforcement as to Petitioners is much less likely attributable to Mr. Hester's race and much more likely attributable to the trouble Mr. Hester had stirred up about his boats, his constant threats of litigation followed by actual litigation, and the specific improvements proposed or already constructed by Petitioners.
The record does not suggest that any other resident in Granada had ever shown such complete disregard for the restrictive covenants as had Mr. Hester in undertaking his improvements and made so much trouble for the board while doing so. Undoubtedly, this is why Respondent carefully enforced the ARB requirements in Mr. Hester's case.
CONCLUSIONS OF LAW
The Division of Administrative Hearings has jurisdiction over the subject matter. §§ 120.569, 120.57(1), and 760.35(3)(b), Fla. Stat. (2006).
Section 760.23(2), Florida Statutes, provides:
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.
Section 760.37, Florida Statutes, provides:
It is unlawful to coerce, intimidate, threaten, or interfere with any person in the exercise of, or on account of her or his having exercised, or on account of her or his having aided or encouraged any other person in the exercise of any right granted under ss. 760.20-760.37. This section may be enforced by appropriate administrative or civil action.
Section 760.35(3)(b), Florida Statutes, limits relief in administrative proceedings to a "recommended order to the commission prohibiting the practice and recommending affirmative relief from the effects of the practice, including quantifiable damages and reasonable attorney's fees and costs." Pursuant to this statute, Laborers' International Union of North America,
Local 478 v. Burroughs, 541 So. 2d 1160 (Fla. 1989), and Hotelera Naco, Inc., v. Chinea, 708 So. 2d 961 (Fla. 3d DCA
1998), the Administrative Law Judge excluded Petitioners' evidence during the hearing concerning pain and suffering, as such damages are not "quantifiable."
Florida's Fair Housing Act, Sections 760.20-760.37, Florida Statutes, is "substantially identical" to the provisions of the U.S. Fair Housing Act, 42 United States Code Sections 3601 et seq., so case law concerning the federal statutes is applicable to Florida statutes. See, e.g., Loren v. Sasser, 309 F.3d 1296 (11th Cir. 2002). This decision assumes without deciding, contrary to one of Respondent's arguments, that a homeowners' association is subject to claims of violations of the Fair Housing Act in the discriminatory enforcement of its restrictive covenants against a member of a protected class, but that such a claim requires a showing of a discriminatory intent.
In Hallmark Developers, Inc. v. Fulton County, Georgia, 466 F.3d 1276 (11th Cir. 2006), a developer challenged a local government's refusal to rezone property to allow the development of affordable housing. The plaintiff alleged discrimination in treatment, also alleged in the subject case, and disparate effect, not alleged in the subject case. The district court entered a summary judgment on the claim of intentional discrimination and a judgment after trial on the claim of disparate effect.
The Hallmark Developers court stated that the claim of intentional discrimination requires proof that "'race played some role' in the decision." 466 F.3d at 1283 (citing Sofarelli v. Pinellas County, 931 F.2d 718, 722 (11th Cir. 1991)). The court cited additional language concerning the evidence required to prove such a claim:
Because explicit statements of racially discriminatory motivation are decreasing, circumstantial evidence must often be used to establish the requisite intent. Among the factors that are instructive in determining whether racially discriminatory intent is present are: discriminatory or segregative effect, historical background, the sequence of events leading up to the challenged actions, and whether there were any departures from normal or substantive criteria.
United States v. Hous. Authority of the City of Chickasaw, 504 F. Supp. 716, 727 (S.D. Ala. 1980) (citing Vill. of Arlington Heights v. Metropolitan Hous. Dev. Corp., 429 U.S. 252, 97 S. Ct. 555, 50 L. Ed. 2d
450 (1977)); see also United States v. City of Birmingham, Mich., 727 F.2d 560, 566 (6th Cir. 1984) (articulating same test).
Analyzing the evidence, the Hallmark Developer court found evidence of class animus, but not racial animus, and sustained the district court's summary judgment as to discriminatory intent. The court concluded that the plaintiff had failed to prove, by direct or circumstantial evidence, any intent to discriminate.
Petitioners' burden is to prove that Respondent is guilty of an intent to discriminate based on race. They do not prevail merely by showing that Respondent's administration of the restrictive covenants was flawed or imperfect. Compare St. Mary's Honor Center v. Hicks, 509 U.S. 502, 113 S. Ct. 2742 (1993).
Petitioners have failed to prove that Respondent is guilty of any racial discrimination against either of them in this case.
RECOMMENDED that the Florida Commission on Human Relations enter a final order dismissing Petitioners' Petition for Relief, as amended to include Ms. Rosen-Hester as a petitioner.
DONE AND ENTERED this 9th day of May, 2007, in Tallahassee, Leon County, Florida.
ROBERT E. MEALE
Filed with the Clerk of the Division of Administrative Hearings this 9th day of May, 2007.
Cecil Howard, General Counsel Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100
Denise Crawford, Agency Clerk Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100
Anthony L. Hester Kristina Rosen-Hester
Ron M. Campbell Lee M. Cohen
Cole, Scott & Kissane, P.A. 1645 Palm Beach Lakes Boulevard Second Floor
15 days from the date of this recommended order. Any exceptions to this recommended order must be filed with the agency that will issue the final order in this case.
