STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

RECOMMENDED ORDER

Pursuant to notice, this cause came on for formal proceeding before Lawrence P. Stevenson, a duly-designated Administrative Law Judge, in Viera, Florida, on November 25, 2008.

APPEARANCES

For Petitioner: Eduardo Mory, pro se

276 Timber Run Way Cocoa, Florida 32926

For Respondents: Carlos Arias, Esquire

1065 Maitland Center Commons Boulevard Maitland, Florida 32751-7437

STATEMENT OF THE ISSUE

Whether Petitioner has been subjected to an unlawful housing practice by Respondents, as alleged in the Amended Housing Discrimination Complaint filed by Petitioner on May 30, 2008.

PRELIMINARY STATEMENT

On May 21, 2008, Petitioner Eduardo Mory filed a Housing Discrimination Complaint with the Florida Commission on Human Relations ("FCHR"). On May 30, 2008, Petitioner filed an Amended Housing Discrimination Complaint with FCHR (the "Complaint"). The Complaint alleged that Respondents, Northwest Lake Condo Association ("Northwest Lakes") and its president, Linda Miklosovic, violated Sections 804b or 804f and 818 of Title VIII of the Civil Rights Act of 1968, as amended by the Fair Housing Act of 1988, and Title VI of the 1964 Civil Rights Act, by discriminating against him on the basis of skin color and national origin.

The allegations were investigated. On July 14, 2008, FCHR issued its Determination of No Reasonable Cause. A Petition for Relief was filed by Petitioner on July 12, 2008. FCHR transmitted the case to the Division of Administrative Hearings ("DOAH") on August 15, 2008. A Notice of Hearing was issued on August 29, 2008, setting the case for formal hearing on

November 25, 2008.

At the hearing, Petitioner testified on his own behalf and presented the testimony of Donald Feeser, the former president of Northwest Lakes, and of Helen Gregor, the treasurer of Northwest Lakes. Petitioner's Composite Exhibit 1 and Exhibit 2 were admitted into evidence. Respondents presented the

testimony of Ms. Miklosovic. Respondents' Exhibits 1 through 5 were admitted into evidence.

The hearing has not been transcribed. Neither party filed a proposed recommended order.

Unless otherwise stated, all statutory references are to the 2008 edition of the Florida Statutes.

FINDINGS OF FACT

Based on the oral and documentary evidence adduced at the final hearing, and the entire record in this proceeding, the following findings of fact are made:

1. Eduardo Mory is a dark-skinned Peruvian. In July 2004, he purchased a condominium unit at 276 Timber Run Way, Cocoa, Florida. The condominium unit was part of a condominium development governed by Northwest Lakes pursuant to a declaration of condominium dated September 24, 1998.

2. In 2001, Northwest Lakes negotiated a bulk cable television service and easement agreement with Time Warner Communications, which became Bright House Networks in the Orlando market in 2003. Under the terms of the agreement, Northwest Lakes pays Bright House a monthly service fee for each of its 250 units. The fee is discounted from the standard rate that a unit owner would pay if he purchased service directly from Bright House.

3. Pursuant to its declaration of condominium, Northwest Lakes passes the bulk cable fee through to each unit owner as a common expense. The fee is included in the unit owner's monthly maintenance fee. As of 2008, the monthly maintenance fee for unit owners in Northwest Lakes was $130.00, which included

   $28.00 for the bulk cable fee.

   
   

4. In a letter to Mr. Mory dated February 22, 2008, Linda Miklosovic, the new president of Northwest Lakes, wrote that it had come to her attention that Mr. Mory had not paid the bulk cable fee for several years. She calculated that for the years 2006, 2007, and 2008, Mr. Mory owed $1,132.00 in maintenance fees, of which roughly $600 consisted of unpaid bulk cable fees.

5. Mr. Mory responded that he was not required to pay the bulk cable fee. Mr. Mory had never wanted cable service in his unit. He testified that in 2006, he had arrived at an arrangement with Donald Feeser, then the president of Northwest Lakes, whereby he would not have to pay the bulk cable fee.

6. The details of the arrangement between Mr. Mory and Mr. Feeser were not entirely comprehensible.1 However, those details are not of particular importance as this hearing is not intended to resolve the monetary dispute between Mr. Mory and Northwest Lakes.

7. Mr. Feeser testified that he told Mr. Mory that he did not have to pay the bulk cable fee. Mr. Feeser testified that

   the issue was discussed at a meeting of the full Northwest Lakes board, but that the board did not vote on whether to waive the fee for Mr. Mory.

8. Correspondence went back and forth between Mr. Mory and Ms. Miklosovic. Mr. Mory accused Ms. Miklosovic and Northwest Lakes of "stereotype discrimination."

9. Ms. Miklosovic was adamant that no unit owner was excused from paying the bulk cable fee. She testified that she had confirmed this position with Bright House. She searched Northwest Lakes' records for some document to support Mr. Mory's exemption claim, but could find none.

10. On May 12, 2008, Ms. Miklosovic sent Mr. Mory a final notice, giving him until May 23, 2008, to bring his account up to date or face legal proceedings. On July 31, 2008, counsel for Northwest Lakes sent Mr. Mory a demand letter for $1,076.43.

11. At the hearing, Mr. Mory testified that he is the only black person in a 340-unit community, and believes that the actions of Ms. Miklosovic and Northwest Lakes are premised on a feeling that he does not belong there. While he offered testimony regarding disputes with Northwest Lakes over parking a recreational vehicle, Mr. Mory could provide no specific examples of speech or behavior by residents of the condominium or by officers of Northwest Lakes that in any way referenced his

    skin color or national origin, or that could even be inferred as discriminatory.

12. Ms. Miklosovic credibly testified that this is simply a collection dispute. She provided records demonstrating that every unit in Northwest Lakes is billed for the bulk cable fee. She testified that every unit owner except Mr. Mory pays the bulk cable fee. At the time she sent the February 22, 2008, letter, Ms. Miklosovic had not met Mr. Mory.

    CONCLUSIONS OF LAW

    
    

13. The Division of Administrative Hearings has jurisdiction over the parties and subject matter in this case.

    §§ 120.569 and 120.57, Fla. Stat.

    
    

14. Subsection 760.23(2), Florida Statutes, reads as follows:

    (2) 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.

    
    

15. Petitioner has the burden of proving by a preponderance of the evidence that Respondents violated the Florida Fair Housing Act. § 760.34(5), Fla. Stat.

16. The well-established, three-part burden of proof test developed in McDonnell Douglas Corp. 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, nondiscriminatory 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.

    
    

    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).

    
    

17. Petitioner has not established a prima facie case of housing discrimination. While Mr. Mory is a member of a protected class (color and national origin), there is no record evidence that any actions were taken by Ms. Miklosovic or anyone else associated with Northwest Lakes because of Petitioner's skin color or national origin. Mr. Mory's inchoate suspicions do not establish that Respondents committed discriminatory acts.

RECOMMENDATION

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 dismissing the Petition for Relief.

DONE AND ENTERED this 5th day of February, 2009, in Tallahassee, Leon County, Florida.

S

LAWRENCE P. STEVENSON

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 5th day of February, 2009.

ENDNOTE

1/ Mr. Mory's explanation of the situation was convoluted. From Mr. Feeser's testimony, and an affidavit from Howard Nicholls, the developer of the condominium, the undersigned gleaned that in 2006 Mr. Mory was not living in the unit, intended to sell it, and therefore sought some way not to pay the bulk cable fee.

Mr. Nicholls called Bright House and learned that by not pre-wiring the next new unit of the condominium for cable,

enough time could somehow be bought for Mr. Mory to sell his unit without paying the bulk cable fee in the interim. Mr. Mory did not sell the unit, but continued to withhold payment of the bulk cable fee.

COPIES FURNISHED:

Derick Daniel, Executive Director 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

Denise Crawford, Agency Clerk

Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100

Tallahassee, Florida 32301

Carlos Arias, Esquire

1065 Maitland Center Commons Boulevard Maitland, Florida 32751-7437

Eduardo Mory

276 Timber Run Way Cocoa, Florida 32926

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: 08-003966

Orders for Case No: 08-003966