STATE OF FLORIDA
DIVISION OF ADMINISTRATIVE HEARINGS
CALLIE GLOVER AND DEBRA GLOVER, )
)
Petitioners, )
)
vs. )
) THE SUMMIT AT HUNTER'S CREEK, )
)
Respondent. )
Case No. 06-3112
)
RECOMMENDED ORDER
Pursuant to notice, a final hearing was conducted in this case on December 19, 2006, in Sanford, Florida, before Administrative Law Judge R. Bruce McKibben of the Division of Administrative Hearings.
APPEARANCES
For Petitioners: Callie Glover, pro se
404 Summit Ridge Place, No. 210 Longwood, Florida 32779
Debra Glover (No appearance)
For Respondent: Theresa Kitay, Esquire
The Summit at Hunters Creek
578 Washington Boulevard, Suite 836 Marina Del Rey, California 90292
STATEMENT OF THE ISSUES
The first issue in this case is whether Respondent violated the Fair Housing Act, Section 760.20, et seq., Florida Statutes (2004),1 by denying Petitioners housing based on their race.
There is also a jurisdictional issue in this matter: whether Petitioners' initial complaint of housing discrimination was timely filed pursuant to the Florida Fair Housing Act, Section 760.34, Florida Statutes.
PRELIMINARY STATEMENT
On or about April 3, 2006, Petitioners filed a Housing Discrimination Complaint (Complaint) with the Florida Commission on Human Relations (Commission). Upon review of the Complaint, the Commission entered a "Legal Concurrence: No Cause (untimely)," followed by a "Notice of Determination: No Jurisdiction." A Notice of Dismissal (Notice) was then entered, but that Notice was rescinded because it had been issued prematurely.
Petitioners then filed a Petition for Relief, which was transmitted to the Division of Administrative Hearings (DOAH) on August 22, 2006. On December 7, 2006, Respondent filed with DOAH a "Motion for Summary Order of Final Judgment." The Motion avers that Petitioners failed to timely file their initial Complaint with the Commission, and, therefore, DOAH has no jurisdiction. The Administrative Law Judge entered an Order to Show Cause why the case should not be dismissed on those grounds. In response, Petitioners alleged that (1) evidence existed that their original Complaint had been timely filed and
their dispute was on-going, thus expanding the time frames
for filing the Complaint. On that representation, the Motion was denied pending proof by Petitioners at final hearing.
At the final hearing held on December 19, 2006, Petitioner Callie Glover testified on her own behalf and also presented the testimony of Lisa Glover. Petitioner Debra Glover was not present. Petitioner offered five exhibits into evidence.
Objections were sustained to Petitioner's Exhibits numbered 3 and 4. The rest of Petitioner's exhibits were received in evidence. Respondent presented the testimony of one witness, Lizzette Herron. Respondent also offered six exhibits, all of which were received in evidence.
At the close of the evidentiary portion of the final hearing, the parties were allowed ten days from the filing of the hearing transcript at DOAH to file their respective proposed recommended orders. (See discussion at page 156 of the hearing Transcript. It was anticipated the Transcript would be filed on or about January 8, 2007, but it was not actually filed until February 21, 2007.) Respondent timely filed a Proposed Final Order [sic], containing proposed findings of fact and conclusions of law on March 2, 2007. Petitioners did not timely file a proposed recommended order, but indicated via telephone call to DOAH on March 12, 2007, that they intended to seek indigent status and obtain a copy of the Transcript. On
March 14, 2007, Petitioner submitted (via fax) a Proposed Final Order [sic] followed by a one-page statement concerning an objection to certain evidence admitted during the final hearing. All submissions by the parties were considered in the preparation of this Recommended Order.
FINDINGS OF FACT
Callie Glover is an elderly African-American woman.
She and her daughter, Debra Glover (jointly referred to herein as the Petitioners), are residents of the State of Florida.
Respondent, The Summit at Hunter's Creek (now known as Camden Hunter's Creek and referred to herein as "Hunter's Creek"), is an upscale, multifamily apartment community located in Orlando, Florida.
On April 17, 2004, Petitioners applied for residency at Hunter's Creek. Each Petitioner filled out an Application for Residency setting forth her current place of residence, occupation, educational background, etc. The application forms were pre-printed by Hunter's Creek and filled out in pen by the Petitioners. Each Petitioner signed her respective application on April 17, 2004, and each paid a non-refundable $50 application fee. A $150 administrative fee was also paid, but was refundable only if the application was denied or if the applicants canceled or withdrew their application within three days.
Petitioners advised Hunter's Creek that they would be utilizing a Section 8 voucher to pay rent. The property manager, Lizzette Herron, who was ultimately responsible for the applications, had to consult with the property vice president on how to handle a Section 8 application because she had little experience with them. She was advised that Petitioners would need to meet the regular financial criteria, i.e., an income three times the rental amount, in order to be approved. At the time they filed the applications, neither Petitioner indicated a place of employment, but each had some income (Petitioner Callie Glover from Social Security and Petitioner Debra Glover from an undisclosed source).
Hunter's Creek conducted a financial screening of the Petitioners through SafeRent, a company used by Hunter's Creek to investigate every applicant's financial condition. Upon completion of the screening, Petitioners were deemed to have insufficient income to meet the required threshold. However, Petitioners agreed to obtain a guarantee of payment from a friend with sufficient financial resources. This arrangement was acceptable to Hunter's Creek.
Petitioners' application for a first-floor apartment was preliminarily approved pending receipt of a commitment letter from their chosen guarantor. A one-page fax sheet entitled "Promissory Note (The Summit Properties)" was received
at Hunter's Creek on April 20, 2006. The sum and substance of the fax was this statement: "I Michelle McKnight promise to contribute $1400.00 a month towards rent to Debra Glover." This fax was accepted by Hunter's Creek as a sufficient guarantee of payment.
Upon receipt of the guarantee, Hunter's Creek approved the application and issued a "Welcome Home" sheet to Petitioners, outlining the provisions of the rental agreement, i.e., apartment number, rent amount, move-in date, term of lease, and acknowledging that the application fee and administrative fee had been paid. The Welcome Sheet indicated Petitioners were approved to move in on June 1 and advised them how to arrange for utilities.
The very day Hunter's Creek approved the application, Petitioners notified Hunter's Creek that Section 8 would not approve payment of the rent because the rental amount was too high. Petitioners cancelled (or withdrew) their application, and Respondent closed their file.
Subsequently, Petitioners asked Hunter's Creek to refund their application fee and administrative fee. Both requests were denied because the application fees were non- refundable, and Petitioners had waited too long to request the administrative fee. Hunter's Creek calculated the time for requesting a refund as follows: April 17, the day the
application was submitted, was day one. April 18 was day two, April 19 was day three, and April 20 was day four. A more traditional calculation of days would be for the day after the application (April 18) to be day one, meaning April 20 would have been day three. However, at no point did Petitioners contest the method of calculating the days.
Herron noted the closing of Petitioner's file by a contemporaneous writing on the face of the file folder containing Petitioners' lease paperwork. Her note indicated the application had been cancelled on that day, April 20, 2004. Herron began to describe the reason for the cancellation when she wrote, "Section 8 would not . . . ," but for some reason did not complete the sentence. Her testimony that the file was closed on that date pursuant to discussions with Petitioners is credible.
There is no evidence that Petitioners' applications were denied or rejected. Rather, it is clear that Petitioners withdrew their applications because Section 8 funds were not forthcoming to assist with rent payments.
After being denied return of their fees, Petitioners filed a complaint with HUD on March 1, 2006. Petitioners maintain the complaint was filed on February 1, 2005, but there is no competent, substantial evidence to support that claim. In the alternative, Petitioners claim their request for
reimbursement of fees is an on-going matter and that the complaint to HUD was made within one year of the last act of denial by Hunter's Creek. Petitioner's testimony and evidence on that issue is not credible.
Hunter's Creek rents apartments to people of all races, nationalities, genders and backgrounds. The property manager, a female Cuban-American, has conducted training on fair housing laws for new employees. She is well versed in the law and strives to ensure compliance at the properties she manages.
There is no evidence of discrimination. Hunter's Creek not only accepted Petitioners' applications, but had already approved them by the time Petitioners withdrew the applications.
CONCLUSIONS OF LAW
The Division of Administrative Hearings has jurisdiction over the parties to and the subject matter of this proceeding pursuant to Section 120.569 and Subsection 120.57(1), Florida Statutes (2006).
Florida's Fair Housing Act (the "Act") is codified in Sections 760.20 through 760.37, Florida Statutes. Section 760.23, Florida Statutes, reads in pertinent part:
Discrimination in the sale or rental of housing and other prohibited practices. --
It is unlawful to refuse to sell or rent after the making of a bona fide offer,
to refuse to negotiate for the sale or rental of, or otherwise to make unavailable or deny a dwelling to any person because of race, color, national origin, sex, handicap, familial status, or religion.
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.
Petitioners have the burden of proving by a preponderance of the evidence that Hunter's Creek violated the Act by discriminating against them as alleged. §§ 120.57(1)(j) and 760.34(5), Fla. Stat.
There is a well-established three-prong test used to analyze cases brought under the Act, which is set forth in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). This test is stated as follows:
First, the plaintiff has the burden of proving a prima facie case of discrimination by a preponderance of the evidence. Second, if the plaintiff sufficiently establishes a prima facie case, the burden shifts to the defendant to "articulate some legitimate, nondiscriminatory reason" for its action.
Third, if the defendant satisfies this burden, the plaintiff has the opportunity to prove by preponderance that the legitimate reasons asserted by the defendant are in fact mere pretext.
United States Department of Housing and Urban Development v. Blackwell, 908 F. 2d 864, 870 (11th Cir. 1990), quoting Pollitt
v. Bramel, 669 F. Supp. 172, 175 (S.D. Ohio 1987).
A prima facie showing of housing discrimination simply requires Petitioners to show they applied to purchase an available unit for which they were qualified, their application had been rejected, and, at the time of such rejection, they had been members of a class protected by the Act. See Soules v. United States Department of Housing and Urban Development, 967 F.2d 817, 822 (2d Cir. 1992). Petitioners, both African- American women, are members of a protected class. They qualified for the selected apartment based on a guarantee provided by a third party. However, there is no evidence that their application was rejected. Rather, the evidence supports a conclusion that Petitioners withdrew their application from further consideration.
However, assuming in arguendo that Petitioners met the burden of proving a prima facie case, the burden then shifts to Hunter's Creek. The evidence supports Hunter's Creek's position that they treated Petitioners fairly. Hunter's Creek's actions appear to have been legitimate and nondiscriminatory in all regards. The burden then shifted back to Petitioners, but they provided no evidence that any of Hunter's Creek's actions were mere pretext.
Petitioners did not meet their burden of proof, and their claim of discrimination fails.
Further, Petitioners did not provide evidence to support their claim that the initial complaint filed with the Commission was timely. There is no evidence that the denial of return of their fees is an on-going or continuing violation. Nor could Petitioners produce any documentation to support their contention that the initial Complaint was filed within one year of the alleged discriminatory event.
Based on the foregoing Findings of Fact and Conclusions of Law, it is
RECOMMENDED that a final order be entered by the Commission denying Petitioners' claim of discrimination.
DONE AND ENTERED this 22nd day of March, 2007, in Tallahassee, Leon County, Florida.
S
R. BRUCE MCKIBBEN 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 22nd day of March, 2007.
ENDNOTE
1/ All references to Florida Statutes herein shall be to the 2004 version unless specifically stated otherwise.
COPIES FURNISHED:
Denise Crawford, Agency Clerk Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100
Tallahassee, Florida 32301
Callie Glover Debra Glover
404 Summit Ridge Place, No. 210 Longwood, Florida 32779
Theresa Kitay, Esquire
The Summit at Hunters Creek
578 Washington Boulevard, Suite 836 Marina Del Rey, California 90292
Cecil Howard, General Counsel 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.
| Issue Date | Document | Summary |
|---|---|---|
| Jun. 15, 2007 | Agency Final Order | |
| Mar. 22, 2007 | Recommended Order | Petitioners did not timely file a claim of discrimination, nor did they meet the burden of proof. |
