STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

RECOMMENDED ORDER

Pursuant to notice, a final hearing was conducted in this case on August 26, 2008, in Orlando, Florida, before Administrative Law Judge R. Bruce McKibben of the Division of

Administrative Hearings.

APPEARANCES

For Petitioner: Michael L. Moore, Esquire

2208 Hillcrest Street

Orlando, Florida 32803

For Respondent: Thomas Ray Slaten, Esquire

Larsen & Associates, P.A.

300 South Orange Avenue, Suite 1200 Orlando, Florida 32801

STATEMENT OF THE ISSUE

The issue in this case is whether Respondent wrongfully discriminated against Petitioner in violation of the Florida Fair Housing Act.

PRELIMINARY STATEMENT

In November 2007, Petitioner, Victoria Laney, was serving on the Board of Directors (the "Board") of the Homeowners' Association of the Hammocks, a development in Ocoee, Florida. Petitioner believes she was discriminated against during a Board meeting held on November 26, 2007, and by subsequent actions of the Board. Petitioner filed a Housing Discrimination Complaint with the Florida Commission on Human Relations, which thereafter issued a Notice of Determination: No Cause, followed by a Determination: No Cause. Petitioner was subsequently recalled from the Board by a vote of homeowners.

Petitioner timely filed a Petition for Relief requesting an administrative hearing, which was then forwarded to the Division of Administrative Hearings (DOAH) on June 5, 2008. At the final hearing held pursuant to that request, Petitioner testified on her own behalf and offered four exhibits into evidence, each of which was received. Respondent presented the testimony of two witnesses: Gary Comstock, vice-president of Southwest Property Management of Central Florida, Inc. (the "Management Company"); and Spencer Solomon (Respondent), president of the Management Company. Respondent offered no exhibits into evidence.

The parties advised the undersigned that a transcript would be ordered of the final hearing. They were given ten days from the date the transcript was filed at DOAH to submit proposed

findings of fact and conclusions of law. The Transcript was filed at DOAH on October 21, 2008. Petitioner timely filed Proposed Findings of Fact and Conclusions of Law which were duly considered in the preparation of this Recommended Order.

Respondent filed a "Closing Argument & Recommended Order" on November 6, 2008.

FINDINGS OF FACT

1. Petitioner is a female residing in the community known as the Hammocks in Ocoee, Florida. She was a frequent attendee at Homeowners' Association meetings for a number of years. In April 2007, Petitioner was elected to the Board by its members in recognition of her interest in the community.

2. Petitioner was elected as a director on the Board; she was not an officer. She regularly attended Board meetings and was active and involved. There were no complaints raised by the Board concerning Petitioner's exercise of her duties as a director.

3. The Homeowners' Association of the Hammocks was established to monitor and manage all issues relating to the Hammocks, e.g., maintenance of homes and lots, noise issues, safety, etc. The Homeowners' Association was not named as a Respondent in the instant action.1

4. The Management Company provided services to the Hammocks and to other properties and communities as well. The

   responsibility of the Management Company was to manage the day-to-day affairs of the community. For example, the Management Company would ensure that all homeowners were in

   compliance with restrictive covenants and community rules. It would insure that maintenance of the common grounds was kept current. It would provide consultation concerning any issues that arose within the community concerning enjoyment of the property by homeowners.

5. The Management Company has been under contract with the Hammocks since approximately calendar year 2003. Gary Comstock, vice-president of the Management Company, regularly attends Board meetings as the representative of the Management Company, but does not attend all meetings.

6. During the same period the Management Company was employed by the Hammocks, it was also serving another community known as West Oaks Villages. It provided the same kind of services to West Oaks Villages that it provided to the Hammocks.

7. Some time during calendar year 2007, Petitioner became acquainted with a person by the name of Catherine Hall who resided in West Oak Villages.2 Petitioner met Hall at a polling place during an election period. At that time Hall was involved in a dispute with her own Homeowners' Association at West Oaks Villages. Hall was also concerned about the Management Company

   and what she saw as possible shortcomings on its part,

   
   

   vis-à-vis, duties and responsibilities to West Oaks Villages.

   
   

8. Hall's case was ultimately forwarded to the Division of Administrative Hearings and assigned Case No. 07-3368; the case style included both West Oaks Villages and the Management Company as named respondents. A final hearing was held in that case on September 17, 2007, before Administrative Law Judge Clark. Petitioner testified in Ms. Hall's case at final hearing. At that time, Petitioner was serving as a director on the Board of the Hammocks Homeowners' Association.3 During her testimony, Petitioner expressed concern about the Management Company. Petitioner's testimony in the Hall case was ultimately disregarded by the Administrative Law Judge as being irrelevant.

9. A resident of the Hammocks (Renee Reynolds) somehow became aware of Petitioner's testimony at the Hall final hearing. Reynolds sent a letter to the Board dated October 20, 2007, expressing concern that Petitioner--while serving on the Hammocks Board--would testify against its management company in a DOAH proceeding. The resident felt like this was a conflict of interest and suggested Petitioner might not deserve a "seat" on the Board.

10. Petitioner somehow discovered the letter (which had apparently been attached to an email to her on the day it was written). Petitioner responded to the letter and submitted her

    written response to the Board on October 21, 2007, i.e., the day after Reynolds' letter was written. Petitioner's response was delivered to the Board at a regularly scheduled meeting on that day. The Reynolds letter and Petitioner's response were discussed at the October 21 meeting.

11. The next Board meeting (hereinafter referred to as the "November Meeting") was held on November 26, 2007. At the November Meeting, one of the issues on the agenda had to do with maintenance of certain lots and houses within the community. Petitioner was told by the Board that she could not cast a vote as the homeowner of a house she was maintaining for some friends. The Board's attorney cited legal precedence for this denial, but Petitioner was not happy with the decision. There were some contentious moments in the November Meeting between Petitioner and other Board members.

12. During the November Meeting, Petitioner brought up the Hall case in reference to some complaints she was making about the Management Company. Review of the video of the November Meeting4 shows that Petitioner was very agitated at this time. In response to some of Petitioner's comments, Comstock asked to make a statement. After his comments, Petitioner was given a brief opportunity to reply.

13. Comstock's comments to Petitioner were also somewhat heated in nature. He said that Petitioner had denigrated the

    Management Company for quite a number of years, and he was tired of it. He said her unwarranted criticisms were akin to the techniques used by Hitler, i.e., that if they were said often enough, people might actually begin to believe them. He also said that Petitioner's complaints were like those used by bigots in the 1960's to degrade people of color without any basis. His analogies did not compare Petitioner to Hitler or to a bigot; they merely attacked Petitioner's method of making complaints against the Management Company.

14. Comstock also stated at the meeting that if Petitioner continued her verbal abuse of the Management Company, it would take whatever action necessary--even litigation--to put an end to the abuse. Petitioner perceived that comment to be a threat. Comstock says they were not meant as such. Upon review of the videotape and consideration of the context, the comments do not appear threatening.

15. Petitioner took great exception to Comstock's statements and took them personally. However, upon review of the videotape of the November Meeting, the statements do not appear offensive in and of themselves. None of the Board members addressed Comstock's remarks when he finished talking. That is, no one chastised him or said his comments were inappropriate.

16. Also, in attendance at the November Meeting was Spencer Solomon (Respondent in this case), president of the Management Company. Solomon's involvement with the Hammocks had to do solely with financial matters. That is, he handled the financial issues and left day-to-day management issues to Comstock. Solomon rarely attended Board meetings, but was asked by Comstock to attend the November Meeting because of expected "uncomfortable-ness" relating to Petitioner.5 Solomon attended and spoke briefly, during which time he mistakenly said that the Management Company was not a party in the Hall case. That was erroneous and Solomon admitted so at final hearing. His misstatement was not intentional; he believed it to be true at the time it was made.

17. At the November Meeting, Petitioner was allowed to present her side of the story concerning the Hall issue. She explained that she testified in Hall's case as a private person, not as a Hammocks Board member. Petitioner had met Hall prior to taking a position on the Board, but Hall's hearing was held after Petitioner had been appointed to the Board. Petitioner said that she was genuinely concerned about how the Management Company was performing its duties for the Homeowners' Association.

18. Following discussions at the November Meeting, Terri Ballard, the Homeowners' Association representative, advised

    Board members as to the process for removing a Board member. (There was no testimony or evidence presented at final hearing as to why Ballard raised this issue.) A Board member could be removed by way of one of three methods: They could resign; they could serve their full term and not be re-elected; or, they could be recalled. The recall process was to circulate a petition among homeowners and if a sufficient number signed the petition, the Board member could be removed. A petition was thereafter created and dispersed by Ballard to homeowners.

19. Ballard was responsible for obtaining signatures on the petitions and collecting the petitions from homeowners. Of the approximately 125 lots within the Hammocks, about 65 homeowners (52 percent of the lots) returned signed petitions to Ballard.6

20. Ballard collected the petitions (also referred to as ballots) and turned them over to Comstock as representative of the Management Company. Comstock then turned the ballots over to the attorney representing the Board.

21. At a specially called meeting in May 2008, the Board voted to recall Petitioner from her position on the Board. The vote followed review of the recall petitions that had been circulated among the other residents of the Hammocks. The petitions were not introduced into evidence, and there is no evidence as to what they said or how the language was worded.

    Petitioner was allowed to briefly review some of the ballots, but did not review each and every one of them. So far as she knows, no official audit was done to ascertain that all ballots were true and correct or that a sufficient number had been collected.

22. Petitioner believes her recall was retaliation for her testimony in the Hall case. However, her testimony in that case was against the Management Company; she was recalled by the Board. It is clear that the Management Company has no authority or control over the Board. Rather, the Management Company operates under a contract with the Board to perform certain functions. Election and retention of Board members is not one of the Management Company's enumerated tasks.

23. Further, the comments made by Comstock at the November Meeting appeared to be the culmination of years of attacks by Petitioner against the Management Company. There is nothing to suggest that Comstock's comments were limited to or even specifically directed at the Hall matter. Even so, the Board was not a party to the Hall case, and the Hammocks was not discussed at the final hearing in that case. Thus, there could be no retaliation by the Board relating to that case.

    CONCLUSIONS OF LAW

    
    

24. 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 (2008).

25. The Florida Civil Rights Act of 1992 (the "Act") is codified in Sections 760.01 through 760.11 and 509.092, Florida Statutes (2008).7 Among other things, the Act makes certain actions by employers "unlawful employment practices" and gives the Commission authority--following an administrative hearing conducted pursuant to Sections 120.569 and 120.57, Florida Statutes--to issue an order "prohibiting the practice and providing affirmative relief from the effects of the practice, including back pay." §§ 760.10 and 760.11(6), Fla. Stat.

26. Petitioner has the burden of proof that she was the victim of a discriminatory act. See Department of Banking and Finance, Division of Securities and Investor Protection v. Osborne Stern and Company, 670 So. 2d 932, 934 (Fla. 1996), wherein the Court stated, "[t]he general rule is that a party asserting the affirmative of an issue has the burden of presenting evidence as to that issue."

27. At final hearing, Petitioner did not allege or present evidence that Respondent (Spencer Solomon) engaged in any activity that is relevant to Petitioner's claim of discrimination or retaliation. Solomon is an individual and has no power, direct or indirect, to remove Petitioner from the Board. He is president of the Management Company, but there is

    no evidence that the Management Company could remove Petitioner from the Board. In short, Petitioner has no cause of action against Respondent.

28. In order to establish a claim of retaliatory conduct, a petitioner must prove that: (1) she engaged in a statutorily protected expression; (2) the employer took an adverse employment action against her; and (3) there is a causal connection between the protected activity and the adverse employment action. Shannon v. BellSouth Telecommunications, Inc., 292 F.3d 712, 715 (11th Cir. 2002). Petitioner's testimony at a formal administrative hearing (the Hall case) is a statutorily protected action. There is no evidence Respondent took any adverse action against Petitioner because of that testimony. There is no causal connection between the protected action and subsequently alleged adverse action, because Solomon took no action at all against Petitioner. Petitioner did not, therefore, prove a prima facie case of retaliation by Respondent.

29. Petitioner did not meet her burden of proof in this matter. Petitioner did not establish a prima facie case that her "employer" (the Board) retaliated against her in any fashion; the employer is not even a party to the instant case. There is no evidence of discrimination.

30. There is no evidence to support an award of damages against Respondent.

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 finding Respondent, Spencer Solomon, not guilty of an unlawful employment practice and dismissing Petitioner, Victoria Laney's, Petition for Relief.

DONE AND ENTERED this 19th day of November, 2008, in Tallahassee, Leon County, Florida.

R. BRUCE MCKIBBEN Administrative Law Judge

Division of Administrative Hearings The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-3060

(850) 488-9675

Fax Filing (850) 921-6847 www.doah.state.fl.us

Filed with the Clerk of the Division of Administrative Hearings this 19th day of November, 2008.

ENDNOTES

1/ Just prior to the final hearing in this matter, Petitioner attempted to amend the style of the case to add the management company which worked for the Homeowners' Association and its

vice-president as named Respondents. Inasmuch as that would have created an entirely new cause of action, the request was denied. Neither at that time, nor later, did Petitioner request adding the Homeowner's Association or its Board as a Respondent.

2/ Petitioner had not yet been elected to the Board as a director at the time she first met Hall.

3/ Petitioner asserted at final hearing that she had consulted an attorney prior to testifying to make sure she was not violating her role as a Board member. She did not, however, ask anyone on the Board or its attorney whether her testimony would be problematic.

4/ Petitioner videotaped many of the Board meetings with permission of the Board. The Board did not independently record or videotape the meetings, but minutes were kept.

5/ The Board also wanted to discuss the movement of certain funds and accounts at the November Meeting. Solomon was the primary financial advisor for the Board and would have been in attendance for that reason as well.

6/ The testimony at final hearing did not make it clear as to what percentage of homeowners needed to sign the petition in order for it to be valid. Nor did testimony state whether the necessary percentage was of ballots received or of the community in whole. Nonetheless, the Board accepted the submitted ballots as a mandate for recalling Petitioner.

7/ All references are to 2008 Florida Statutes, unless otherwise indicated.

COPIES FURNISHED:

Denise Crawford, Agency Clerk

Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100

Tallahassee, Florida 32301

Larry Kranert, General Counsel Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100

Tallahassee, Florida 32301

Michael L. Moore, Esquire 2208 Hillcrest Street

Orlando, Florida 32803

Thomas Ray Slaten, Esquire Larsen & Associates, P.A.

300 South Orange Avenue, Suite 1200 Orlando, Florida 32801

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: 08-002670

Orders for Case No: 08-002670