Pursuant to notice, this cause came on for formal hearing before P. Michael Ruff, duly designated Administrative Law Judge of the Division of Administrative Hearings, in Pensacola, Florida, on January 14, 2009 and February 23, 2009. The appearances were as follows:
3382 Greenbriar Circle, Apt. B Gulf Breeze, Florida 32561
The issue to be resolved concerns whether the Petitioner was the victim of a discriminatory housing practice, by allegedly being denied the opportunity to rent an apartment from the Respondents, and by being falsely informed of its non- availability, based upon her race.
This proceeding arose upon the filing of a Petition for Relief by Sylvia Mims (Petitioner) in which she alleges that she was the victim of a discriminatory housing practice, by being denied the opportunity to rent an apartment, and being allegedly falsely informed that the apartment was unavailable for rental. She claims that these alleged discriminatory acts were based upon her race, African-American.
The Respondents contend that the apartment was rented to someone else (a mixed-race couple) immediately after the Petitioner had inquired about renting it and after inspecting it. The Respondents state that the apartment was available for rental, on a "first-come-first-served" basis, and that the Petitioner told the Respondent, Ms. Lindsay, in a phone conversation on a Monday or Tuesday in early January, 2007, after her inspection of the apartment, that she could bring the Respondent a deposit on the ensuing Friday. Before she did that or completed an application, which was required of all renters,
a couple brought a deposit, completed an application, and rented the apartment.
The Petitioner filed a Complaint with the Florida Commission on Human Relations (Commission) and the matter was investigated. A finding of "No Cause" was made by the Commission and a Petition for Relief was thereafter filed by the Petitioner. The matter was then transferred to the Division of Administrative Hearings (DOAH) and a formal proceeding ensued.
The cause came on for hearing, as noticed. The Petitioner presented her own testimony, as well as that of witnesses Rosie Clas and Lyn Kliesch. The Petitioner presented no exhibits.
The Respondents presented the testimony of Beverly Lindsay and Michael Houser and had five exhibits admitted into evidence.
The Petitioner had a witness, purportedly under subpoena, who failed to appear. Because of this circumstance, the Petitioner was allowed a second opportunity to adduce the testimony of witness Clint Cook at a video hearing conducted on February 23, 2009, between hearing rooms in Tallahassee and Pensacola. The witness again was not produced by the Petitioner. In light of this, the record was closed at that juncture, upon the adjournment of the hearing.
No transcript has been filed in this proceeding.
The parties were given an opportunity to submit proposed recommended orders. Their post-hearing submittals have been considered in the rendition of this Recommended Order.
The Petitioner is an African-American female. In early January 2007, she learned of an apartment for rent, owned or managed by the Respondents. She called to inquire about the apartment and was told by the Respondent, Ms. Lindsay, that the rent would be $625.00 per month, with a one-month rent amount and security deposit due in advance. She was told that the Lessee of a neighboring apartment, Clint Cook, would have a key and would show her the apartment.
She went to view the apartment, and decided that she wished to rent it. She then telephoned Ms. Lindsay, and
Ms. Lindsey faxed an application to her to complete. In the conversation, she told Ms. Lindsay she would not have the required deposit money until Friday. This was on a Monday or Tuesday. Ms. Lindsay then told her securing the apartment was on a “first come-first-served” basis. The Petitioner never completed the application and never tendered the security deposit.
Shortly after that telephone conversation, Ms. Lindsay was contacted by Stacey Edwards, while the apartment was still available for rent, concerning rental. Ms. Edwards, on behalf
of herself and her boyfriend/husband, submitted an application to rent the apartment, together with the appropriate required deposit and rental amount on January 15, 2007. Ms. Lindsay leased the apartment to the couple. They had a planned move-in date of February 1, 2007. They are a mixed-race couple, and Ms. Lindsay was aware of that fact when renting to them.
Sometime after January 15, 2007, the Petitioner called Ms. Lindsay a second time, and was told that the apartment had been rented (to the Edwards couple) and was no longer available. Testimony to this effect is corroborated by the Edwards rental application and deposit receipt, which are in evidence. The Edwards rental was documented on January 15, 2007. Later that month, the Petitioner noticed the “for rent" sign displayed, or displayed again, and she and/or her witness, Lynn Kliesch, called about the apartment’s availability. Ms. Lindsay again stated that it was rented. Indeed, it was, to the Edwards. The rental sign had been left up because the Edwards couple were not scheduled to move in until February 1, 2007. This communication between the parties occurred before Ms. Edwards informed
Ms. Lindsay that they would not be moving in.
Shortly before February 1,2007. Ms Edwards and her husband/boyfriend learned that his employment had ended (or he was transferred to another job location). They therefore informed Ms. Lindsay that they had to re-locate to South Florida
and could not take the apartment. She charged them for the two weeks of rental, and refunded their deposit. She then placed the apartment back on the rental market.
On January 31, 2007, Ms. Mari Ferguson inquired of
Ms. Lindsay about the apartment’s availability. This was after Ms. Edwards had informed Ms. Lindsay that she would not be renting the apartment. Ms. Lindsay told Ms. Ferguson that the property was available and she rented it to Ms. Ferguson that same day. Ms. Ferguson and her boyfriend, who occupied the apartment with her, were also a mixed-race couple, with children. In fact, the boyfriend is the nephew of the Petitioner herein.
Ms. Ferguson and family moved into the apartment. Some months later a hostile situation arose between the Respondents and Ms. Ferguson. Ms. Lindsay apparently received reports that “drug dealing” was occurring in the apartment. Ms. Ferguson and/or the other occupants were responsible for some damage, and Ms. Ferguson became several months behind on rental payments. The Respondents therefore, through legal process, had her evicted.
The Respondent, Ms. Lindsay, through her firm, Elite Properties of Northwest Florida, Inc., manages some 37 rental properties in Escambia and Santa Rosa Counties. She is the president and broker for the firm and has no employees or
agents. Among the rental property owners she and her firm represent is her Co-Respondent, Michael Houser. Both
Ms. Lindsay and Elite Properties, as well as Mr. Houser, have a significant number of minority tenants, both Hispanic and African-American. A substantial number of those, both historically, and at the time of the hearing are single, African-American females, as heads of households. There is no evidence, aside from the Petitioner’s unsubstantiated opinion, that either the Respondent has ever refused to rent to the Petitioner or anyone else, based upon race, nor that they have falsely denied availability of a dwelling for rent or sale for that reason. There is no evidence that they have refused or attempted to avoid holding out a property for rent or sale for reasons based on racial animus.
CONCLUSIONS OF LAW
The Division of Administrative Hearings has jurisdiction of the subject matter of and the parties to this proceeding. §§ 120.569 and 120.57(1), Fla. Stat. (2008).
The Petitioner has alleged, in effect, that the Respondent violated the Florida Fair Housing Act, Sections 760.20-760.37, Florida Statutes (2007). Section 760.23(2), Florida Statutes (2007), prohibits discrimination against a person, in the terms, conditions, or privileges of rental of a dwelling, or in the provision of services or facilities in
connection with rental of a dwelling, because of that person's race.
In all respects material here, the language in Section 760.23(2), Florida Statutes (2007), is identical to that in Title 42, Section 3604(b), United States Code, which is part of the Federal Fair Housing Act, as amended. "If a Florida statute is modeled after a federal law on the same subject, the Florida statute will take on the same construction as placed on its federal prototype, insofar as such interpretation is harmonious with the spirit and policy of the Florida Legislation." See Brand v. Florida Power Corporation, 633 So. 2d 504, 509-510 (Fla. 1st DCA 1994).
The Petitioner herein has the ultimate burden of proving that a discriminatory housing practice was committed by the Respondents, based upon the Petitioner's race (African- American). See § 760.34(5), Fla. Stat. (2007). In the absence of direct evidence of intentional discrimination, of which there is none in this record, the following well-established, three- part burden of proof analysis, derived from McDonnell-Douglas Corporation v. Green, 411 U.S. 792 (1973), is used in analyzing cases brought under the Federal Fair Housing Act:
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, non-discriminatory reason for its action.
Third, if the defendant satisfies this burden, the plaintiff has the opportunity to prove by a preponderance that the legitimate reasons asserted by the defendant are in fact mere pretext.
See United States Department of Housing and Urban Development v. Blackwell, 908 F.2d 864, 872 (11th Cir. 1990), quoting from
Pollitt v. Bramel, 669 F. Supp. 172, 175 (S.D. Ohio 1987).
In accord with the burden-shifting analysis of McDonnell-Douglas, referenced above, the Petitioner must establish a prima facie case, but still retains the ultimate burden of persuasion concerning the discrimination claim, after showing a prima facie case, by coming forward with evidence to show that any legitimate, non-discriminatory reason put forth by the Respondent is pretextual. See St. Mary's Honor Center v. Hicks, 509 U.S. 502 (1993).
In the context of this alleged discriminatory housing or public accommodation action, predicated on alleged denial of the opportunity to rent an apartment based upon the Petitioner's race, a prima facie case must be demonstrated as follows: (a) the Petitioner is a member of a protected group or class of persons whom the Fair Housing Act protects from unlawful discrimination relative to her race; (b) the Petitioner must have asked about the availability for rental of the dwelling, or for an opportunity to inspect the dwelling, consistent with the
terms, conditions, policies, and practice of the Respondent, on a date and time when the dwelling was available for inspection or rental; (c) the Respondent, with knowledge of availability, willfully failed or refused to provide information about the availability of a dwelling for rent, or to permit the Petitioner to inspect the dwelling under the same terms and conditions applicable to all persons; and (d) after the Petitioner was told the property was not available for inspection or rental, or was denied the opportunity to inspect the dwelling, the Respondent then told another person from a comparable class of persons, but outside the protected class, that the property was available for inspection or rental.
There is no question that the Petitioner meets the first element of a prima facie case, described above, and that she belongs to a class of persons whom the Fair Housing Act protects from unlawful discrimination, by being African- American. There is also no question, with regard to the second criterion, that the Petitioner inquired about the availability for rental or for an opportunity to inspect the dwelling, the apartment, in a manner consistent with the terms, conditions, policies and practice of the Respondent Lessor, on a date when the dwelling was actually available for rental or inspection.
The Petitioner contacted the Respondent, Ms. Beverly Lindsay, sometime in early January 2007, about renting the
property. Ms. Lindsay informed her that the property was available for rental at that time. She did not conceal that fact from the Petitioner. Ms. Lindsay informed her of the rental amount, the necessity for a deposit, of the need to complete an application and to pay the deposit and a first month's rental. She also told the Petitioner that she could obtain a key from a nearby resident, Clint Cook, in order to view the apartment.
Thereafter, when the Petitioner contacted Ms. Lindsay, expressing a desire to rent the apartment, Ms. Lindsay faxed her the application and told her that rental would be upon a first- come-first-served basis, meaning that she had to complete the application and provide the necessary first month's rent and security deposit before she could secure the right to the apartment. The Petitioner informed Ms. Lindsay that she would be able to pay the required funds to the Respondent by that Friday (this was on a Monday or Tuesday).
Thus the Respondent, with knowledge of availability, freely disclosed that the apartment was available for rent and described to the Petitioner the terms and conditions of the rental. She allowed the Petitioner to inspect the apartment, in the same manner that she accorded such opportunities to all potential renters. Therefore, the third element of the prima
facie case referenced above, has not been established by the Petitioner.
Moreover, the evidence does not establish that the Petitioner ever completed an application nor paid the subject deposit and first month's rental, in order to secure the apartment rental for herself. The Respondent had clearly informed her that this was necessary, and must be done on a first-come-first-served basis, in relation to other potential renters.
The fourth element of the prima facie case, referenced above has not been established either. The preponderant, persuasive evidence does not establish that the Petitioner was falsely told that the property was not available for rental or inspection, or was denied an opportunity to rent or inspect the property, and that then the Respondent represented to another person, outside the protected class, that the property was available for rental or inspection.
In fact, the Petitioner was given an opportunity to rent the apartment and was freely informed of the terms and conditions that apply to all potential renters of the dwellings at that location. The Petitioner was given the opportunity to inspect the premises, to decide to rent the apartment and then to execute an application and provide the necessary funds required of all potential renters. Under the first-come-first-
served policy, which was announced in advance to the Petitioner, the Petitioner did not execute an application nor provide the necessary deposit and first month rental before Ms. Stacy Edwards did so. Consequently, under that policy the Respondent rented the apartment to Ms. Edwards.
Thereafter, when Ms. Lindsay informed the Petitioner that the property was rented, she was not misrepresenting that fact, but was truthfully advising the Petitioner that
Ms. Edwards had complied with the terms and conditions before the Petitioner had, and therefore secured the apartment for herself. Thus the availability of the property for rental, with regard to the fourth referenced element of a prima facie case, was not misrepresented by the Respondent.
Ms. Edwards is a white person, but the Respondent was aware, at the time Ms. Edwards rented the apartment, that she was part of a mixed-race couple who would rent and be living in the apartment. She freely agreed to rent the premises to them.
Assuming, arguendo, that a prima facie case had been established, the Respondents brought forward legitimate, non- discriminatory reasons for not renting the apartment to the Petitioner. Essentially, the Respondents did not rent the premises to the Petitioner because, under their regular policy as to which potential renter would get the opportunity to rent an apartment, the Respondents received a completed application
and the required prepaid funds from Ms. Edwards before she received such from the Petitioner. In fact, she was never assured of receiving such from the Petitioner.
Thus, when the Petitioner thereafter inquired of the Respondents as to the apartment's availability, it truthfully was no longer available. It was legitimately rented to
Ms. Edwards, who first performed the prerequisites for rental, and who represented a mixed-race couple as tenants or occupants of the apartment.
The Petitioner did not come forward with any additional evidence to show that the Respondent's reason for not renting the premises to the Petitioner was pretextual, and that the reason really amounted to racial discrimination. In fact, when Ms. Edwards and her boyfriend/husband learned that they would have to move to South Florida, near the end of January, and informed the Respondent at that time that they could not occupy the apartment, only then did the apartment again become available.
Thus, on January 31, 2007, when Mari Ferguson, who is white, inquired about the rental availability of the apartment, she was truthfully told that it was available, but the evidence conclusively shows that it was only available because on that day or no more than one or two days previously, the Edwards couple had decided not to take the apartment, which they had
already rented. The legitimacy of the evidence of the close proximity in time between the Edwards' communicating to the Respondents that they would not take the apartment, and
Ms. Ferguson inquiring about its availability, is corroborated by the evidence that shows that the Edwards couple was charged for two weeks rental, which commenced on January 15, 2007. This fact shows that they had the right of possession of those premises through the end of the month of January 2007. When
Ms. Ferguson inquired about the availability of the rental, she was told that it was available, and on that same day she also performed the required terms and conditions of a prospective tenant and was therefore rented the apartment on January 31, 2007, or February 1, 2007. The Petitioner had never thus performed.
Ms. Ferguson also represented a mixed-race couple.
Her boyfriend/husband (as the case may be), is African-American and, in fact, is the nephew of the Petitioner. Some months later, as the above facts showed, Ms. Ferguson and her fellow occupant of the premises, were evicted, for delinquent rent and for being responsible for damage to the premises, as well as for the fact that the Respondents received reports that illicit
drug-dealing may have been occurring in the apartment. Thus, as found above, a hostile relationship arose between the Respondents, particularly Ms. Lindsay, and Ms. Ferguson and her
roommate. It is inferred that this may have colored, and rendered less substantial and credible, the testimony adduced by the Petitioner.
In summary, the Petitioner has not shown all the elements of a prima facie case as discussed and explained above. The Petitioner has not shown, by persuasive evidence, that the Respondents' reasons for the action taken, in terms of the Respondents' not renting the premises to the Petitioner, was a pretext for a discriminatory housing practice based on the Petitioner's race. The preponderant, persuasive evidence shows that the Respondents applied the terms and conditions of their rental policies to all prospective tenants on an equal basis, without regard to their race. This is borne out, in part, by the fact that the Respondents knowingly rented the premises to a mixed-race couple (or two such). It is also corroborated by statistical evidence, as well as unrefuted, persuasive testimony by the Respondents, that a substantial number of their rental lessees are African-American or Hispanic, and that a significant number of them are African-American females, as single heads of households.
There simply has been no preponderant, persuasive proof that racial animus on the part of the Respondents had any part to play in the Petitioner's failure to secure rental of the subject premises. The Petitioner's opinion or good faith
belief, standing alone, cannot carry the Petitioner's ultimate burden of persuasion and constitute competent evidence of discrimination. Swanson v. General Services Administration, 110 F.3d 1180, 1186 (5th Cir. 1997); Little v. Republic Refining,
Co., 924 F.2d 93, 96 (5th Cir. 1991); and Elliott v. Group
Medical and Surgical Service, 714 F.2d 556, 567 (5th Cir. 1983).
Having considered the foregoing Findings of Fact, Conclusions of Law, the evidence of record, the candor and demeanor of the witnesses, and the pleadings and arguments of the parties, it is, therefore,
RECOMMENDED that a final order be entered by the Florida Commission on Human Relations, determining that the Respondents did not commit a discriminatory housing practice based upon the Petitioner's race and that the Petition be dismissed in its entirety.
DONE AND ENTERED this 16th day of April, 2009, in Tallahassee, Leon County, Florida.
P. MICHAEL RUFF Administrative Law Judge
Filed with the Clerk of the Division of Administrative Hearings this 16th day of April, 2009.
3382 Greenbriar Circle, Apt. B Gulf Breeze, Florida 32561
Larry Kranert, General Counsel Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100
15 days from the date of this Recommended Order. Any exceptions to this Recommended Order should be filed with the agency that will issue the Final Order in this case.
