STATE OF FLORIDA
DIVISION OF ADMINISTRATIVE HEARINGS
IRA BACON, | ) ) | |||
Petitioner, | ) ) | |||
vs. | ) | Case | No. | 09-0036 |
) | ||||
SUMMER BREEZE APARTMENTS, | ) | |||
) | ||||
Respondent. | ) | |||
) |
RECOMMENDED ORDER
Upon due notice, a disputed-fact hearing was held in this case on April 14, 2009, in St. Augustine, Florida, before Ella Jane P. Davis, a duly-assigned Administrative Law Judge of the Division of Administrative Hearings.
APPEARANCES
For Petitioner: Richardean Milton
Qualified Representative
200 Summer Breeze, Apartment 236 St. Augustine Florida 32086
For Respondent: Brian C. Blair, Esquire
Baker & Hostetler, LLP
200 South Orange Avenue, Suite 2300 Orlando, Florida 32801
STATEMENT OF THE ISSUES
Whether Respondents committed discriminatory housing practices against Petitioner on the basis of race or mental handicap, or retaliated against his discrimination claims.
PRELIMINARY STATEMENT
Petitioner filed a housing charge/complaint with the Florida Commission on Human Relations (FCHR). FCHR entered a Determination: No Cause. Petitioner filed a timely Petition for Relief, and the cause was referred to the Division of Administrative Hearings (DOAH) on or about January 6, 2009.
DOAH’s file reflects all pleadings, notices and orders intervening before final hearing on April 4, 2009.
At final hearing, Richardean Milton was examined and accepted as Petitioner’s Qualified Representative. Petitioner presented the oral testimony of Ms. Milton and of Petitioner, and had Exhibits P-1 through P-13, admitted into evidence.
Respondents1/ presented the oral testimony of Michelle Mackie, and had Exhibits R-1 through R-5, admitted in evidence. FCHR abrogated its statutory duty to provide a means of preserving a record of the final hearing before DOAH. There is no Transcript.
Respondents timely filed a Proposed Recommended Order on May 4, 2009. Petitioner moved the same day for an extension of time in which to file Petitioner’s Proposed Recommended Order. Respondents did not file a timely response in opposition to the Motion, as permitted by Florida Administrative Code Rule 28- 106.204, and Petitioner, in fact, filed his proposal on May 8, 2009. Respondents made no objection thereto. Accordingly, both
Proposed Recommended Orders have been considered in preparation of this Recommended Order.
FINDINGS OF FACT
Petitioner is an African-American male. He receives an SSI income on the basis of “disability” (not further described), as determined by the federal Social Security Administration, and a rental subsidy for low income housing under Section VIII.
Petitioner’s FCHR complaint, signed October 21, 2008, was filed with FCHR on October 23, 2008. It claimed that the most recent discrimination had occurred “on September 3, 2008, and continuing,” and clearly alleges the categories of race and handicap/disability. After FCHR’s Determination: No Cause on November 25, 2008, Petitioner timely filed a Petition for Relief, which Petition again clearly alleged discrimination on the basis of race and handicap/disability and which discussed coercion and harassment in terms of retaliation by Respondents against both Petitioner and his Qualified Representative because Petitioner had filed the FCHR complaint, although the Petition does not use the term “retaliation.” The Qualified Representative has no standing as a petitioner in this case and no evidence of discriminatory treatment of her was presented.2/
Transom Development, Inc., was the developer of Summer Breeze Apartments. Summerset Village, LLC, incorrectly named in the Petition as “Summer Breeze Apartments,” is the owner of the
Summer Breeze Apartments. Royal American Management, Inc. manages the Summer Breeze Apartments. All three entities were involved and participating as Respondents before FCHR and before DOAH.
In 2007, Petitioner was living in supported housing in Putnam County. That housing unit was about to close, and Respondents approached that facility with the offer to take some of its residents into the supported housing portion of their development in St. Augustine, St. Johns County, Florida.
Petitioner toured Respondents’ facility, Summer Breeze Apartments, liked what he saw, and applied for the affordable, subsidized housing offered.
In renting Summer Breeze Apartments, Respondents use uniform policies and procedures applicable to all applicants. The same rental application packet is used for each prospective tenant, regardless of race or other protected class, such as handicap.
Respondents’ target tenants are persons who, like Petitioner, are for one reason or another eligible for subsidized housing.
Respondents have adopted a policy and procedure for credit and criminal record checks on applicants and tenants for the safety of tenants.
The Rental Application requests that an applicant disclose whether he or she has ever been convicted of a felony.
When executing the Rental Application, an applicant certifies that “all information and answers to the above questions are true and complete to the best of my knowledge,” and that “providing false information or making false statements may be grounds for denial of my application.” By completing and signing the Rental Application, an applicant consents to allow Respondents to verify the information the applicant has provided. Applicants also sign a Release of Information Consent Form, so that a background check may be made.
Respondents also provide a Resident Selection Criteria Form to potential tenants. That form states, “IT IS THE POLICY OF ROYAL AMERICAN MANAGEMENT TO PROVIDE HOUSING ON AN EQUAL OPPORTUNITY BASIS. WE DO NOT DISCRIMINATE ON THE BASIS OF RACE, RELIGION, COLOR, SEX, FAMILIAL STATUS, NATIONAL ORIGIN OR HANDICAP.” Without such a policy, Respondents would not be in compliance with the various subsidized housing laws.
The Resident Selection Criteria Form contains “Acceptance Criteria” and “Rejection Criteria,” both of which advise that, in order to be approved to rent an apartment, all applicants must have an acceptable criminal history. Each section specifies, in pertinent part, as follows:
ACCEPTANCE CRITERIA
All applicants must cooperate in completing the rental application and providing information necessary to determine an acceptable credit, rental, and criminal history. For acceptance, the applicant and all members of the household must demonstrate:
* * *
3. Good Criminal Record: A history of the applicant or any household member, which does not include any unacceptable criminal history.
REJECTION CRITERIA
Management reserves the right to reject applicants for admission if it is determined that the applicant or any member of the household falls within any one or more of the following categories:
1. Misrepresentation: Willful or serious misrepresentation in the application procedure for the apartment or certification process for any apartment home.
* * *
Criminal Activity: Management has established a policy to reject all applications where the applicant or any household member has engaged in certain criminal activity. The activities that are grounds for rejection of an application include but are not limited to:
Any conviction or adjudication other than acquittal within the last 7 years which involved injury to a person or property or theft of property.
Any conviction or adjudication other than acquittal for the sale, distribution, possession, illegal use, or manufacture of any controlled or illegal substance.
Any conviction or adjudication other than acquittal, for any sexual offense or terrorist related crimes.
Management reserves the right to require criminal background checks at each recertification/renewal. (Emphasis in original)
On September 26, 2007, Petitioner signed the foregoing form, and by doing so agreed that:
I have been given the opportunity to ask any questions that pertain to the Resident Selection Guidelines. Anyone who falsifies any information on their [sic.] application will be denied acceptance.
On his 2007, Rental Application, Petitioner checked “NO” for the question, “Have you ever been convicted of a felony?” Then, following the form’s instruction, “If YES, please explain circumstances of conviction:” Petitioner wrote in, “violation of probation.”
Respondents use an independent organization, Credit Retriever (Vantage Data Solutions), to do a national criminal records check on every applicant/tenant. The criminal records check is first done prior to initial leasing to that applicant and is done annually thereafter so long as the tenant lives in Respondents' facility.
Respondents’ employees’ sole involvement in the background check process is to enter an applicant’s/tenant’s name, existing address, and social security number, on a computer which transmits the data to Vantage Data Solutions. The only results that can be received by Respondents’ employees
from Vantage is “accept,” “reject,” or “incomplete.” Respondents receive no further information from Vantage on any applicant/tenant. It is Respondents’ policy to enter into a lease with those applicants for whom they get an “accept” response and not to enter into a lease with those for whom they get a “reject” response. What, specifically, occurs with an “incomplete” response was not fully explained and is immaterial to this case.
Apparently, Vantage Data Solutions did a criminal records check on Petitioner in connection with Petitioner’s initial application for housing in 2007. However, at all times material, Respondents' file did not reflect that any of the foregoing three possible results had been received by Respondents from Vantage prior to negotiating Petitioner’s first lease in 2007. Whether Vantage’s 2007, national criminal screening results were never received by Respondents or were received but lost, misplaced, or removed from Petitioner’s file after their receipt in 2007, was not explained.
However, in 2008, Respondents' file only reflected that a 2007, background check limited to Putnam County, Florida’s criminal records did not disclose that Petitioner had any felony record, or any criminal record at all, in Putnam County.
There is no persuasive evidence that Respondents had reason to know Petitioner’s criminal record involved illegal substances prior to the time his lease came up for renewal in 2008.
Respondents leased an apartment in Summer Breeze Apartments to Petitioner, effective October 31, 2007, and subject to renewal on September 30, 2008.
Summer Breeze Apartments’ leases are for only 11 months, and renewals begin to be processed approximately 120 days before the close of the lease. The renewal process does not require a new application but does require a resident to execute another Release of Information Consent Form for a new credit and criminal records check. After the new/annual criminal record check comes back, if the current tenant still meets all of the Resident Selection Criteria, Respondents approve and renew his lease for another 11 months. If the tenant does not meet all of the Resident Selection Criteria, the tenant is notified that the lease will not be renewed, and is further informed, in accord with fair credit reporting practices and other laws, that the tenant may contact Vantage Data Solutions for more information.
By all accounts, Petitioner was a model tenant, bothered no one, and got along well with other tenants and Respondents’ on-site personnel. He had a record of regularly
paying his rent on time, via a money order he obtained monthly from a grocery store.
As Petitioner’s lease renewal date approached, Respondents notified Petitioner, got his newly executed release, dated July 27, 2008, and ordered a new national criminal records check on him from Vantage Data Solutions.
The results of Petitioner’s subsequent national criminal records check showed that Petitioner’s renewal should be denied due to his prior criminal history.
Respondents made no analysis of whether there had been a new offense since the existing lease had been signed, or whether there was an old offense. They did not, in any way, analyze what was involved in the “reject” response from Vantage.
By a memorandum/letter generated (probably by Vantage Data Solutions) on September 3, 2008, and signed-off on by Respondents’ on-site manager, on September 7, 2008, Petitioner was advised that his lease would not be renewed due to his prior criminal history. He was advised to contact a specific telephone number for Vantage to inquire about the information Vantage had provided to Respondents, and also was provided with a phone number for the manager’s office at Summer Breeze Apartments so that he could ask any other questions. Petitioner received this item on September 7, 2008.
On September 11, 2008, Petitioner wrote an inquiry to the Summer Breeze Apartments management office inquiring about what authorities governed Respondents’ non-renewal decision and about how he could contest it. The manager wrote him back the same day, telling him the rental denial would be effective with the end of his lease on “9/31/08” [sic]; attaching a copy of the Resident Selection Criteria Petitioner had previously signed for the original lease, with paragraph nine highlighted (see Finding of Fact 12); and suggesting that Petitioner contact Vantage for any further information about why Vantage had recommended non- renewal. Petitioner probably received this missive at his apartment on September 12, 2008.
On September 17, 2008, Petitioner again wrote the local management office asking for the same information he had asked for on September 11, 2008; asking who now makes the final decision on renewal rejections; and stating, “... I would appreciate all communications in this matter [sic] in written communications please.”
There is some information in the record to the effect that at some point, Petitioner contacted Vantage by telephone and was told he could have his criminal record if he sent the request in writing, but Petitioner testified at hearing that he never contacted Vantage. It is not necessary to resolve this discrepancy, because Petitioner put into evidence at hearing,
Exhibit P-6, which purports to be a TransUnion/Vantage Data “Rapsheet,” showing a significant criminal history for Petitioner, within which history there is a 1998, conviction for “sale, delivery, manufacture, or possession with intent to sell cocaine,” and a 2001, “solicitation to deliver cocaine,” third degree, adjudication of guilt. This “Rapsheet” includes the standard exculpatory statement that “The provider cannot guarantee or warrant the accuracy, correctness, or completeness of the data.”
Petitioner conceived the notion that he was being treated differently than other tenants because of something to the following effect: that a criminal charge against him which was considered disqualifying by Respondents had not involved drugs but had been based on a determination that Petitioner's previous parole revocation had been “raised to a felony” by law enforcement personnel in a year subsequent to his prison time, but that his prison time had not been “drug-related.” Petitioner did spend some time in jail or prison.
Petitioner’s foregoing concept was not fully explained by his testimony, but in a light most favorable to Petitioner, that testimony expressed that Petitioner believes that Vantage recommended against renewing his lease because Vantage believed the disqualifying crime was more serious than it actually had been, and that, in fact, adjudication previously withheld on a
cocaine charge against Petitioner had been elevated to a felony conviction when Petitioner committed some subsequent offense, not necessarily drug-related, so as to revoke his original probation, and that Petitioner further believes that Respondents erroneously accepted Vantage’s report as correct. Petitioner’s explanation amounts to Vantage and Respondents each misunderstanding Petitioner’s criminal record, but Petitioner’s explanation does not amount to a description of discrimination against his race or handicap by either Respondents or Vantage.
Petitioner introduced into evidence a Certificate of Restoration of Civil Rights, dated September 9, 2005, but this document neither pardons nor exculpates him from any prior disqualifying drug charge. At no time prior to filing his Charge of Discrimination did Petitioner provide this item to Respondents or Vantage. Petitioner also did not prove that this item related to the disqualifying offense(s) reported by Vantage.
At hearing, Petitioner claimed to have consulted lawyers, government officials, and HUD or FCHR personnel between September 11, 2008, and the date he filed his discrimination complaint, which consultations could have resulted in phone calls by third parties to managers at Summer Breeze Apartments. Petitioner’s discrimination charge before FCHR shows the typed phrase, “Amended October 17, 2008,” and some HUD and FCHR
numbers. However, Petitioner did not sign this item until October 21, 2008, and it was not filed with FCHR until October 23, 2008. (See Finding of Fact 2.) There is no evidence herein when or if an earlier complaint was filed with HUD or FCHR.
Petitioner and his witness testified that on September 22, 2008, Petitioner considered himself the victim of “verbal assault, harassment and retaliation for filing a discrimination case” because a manager asked him to step into her office, and said to him, “I have been receiving a lot of phone calls about you . . . not good, Ira.”
Petitioner and his witness testified that on September 24, 2008, Petitioner considered himself “verbally harassed,” because another management employee asked him to step into the office, handed him a letter, and said, “You need to vacate the building as soon as possible. We need a move out date.” The letter handed to Petitioner read:
Summer Breeze records indict [sic] that you did not pay the residents [sic]) portion of the rent for September of $141.00, please rectify this as soon as possible or provide a money order receipt, plus there will be a
$50- late charge added to this.
Due to your lease expiration would you please give us written notice of when you will be vacating the apartment with a forwarding address.
Summer Breeze had made an agreement with you at Move-in [sic] we will pay the moving company up to $300.00 in moving expenses should you relocate within your lease, we would still like to honor this agreement.
Let us know what you decide in writing.
The foregoing notice agitated Petitioner considerably because it was a point of pride for him to have always paid his full rent on time. However, the very same day, September 24, 2008, Petitioner provided the apartment manager with a copy of his money order to demonstrate that he had, indeed, paid his September rent in full. Respondents determined they had made a bookkeeping error and corrected Petitioner’s account. Nothing more came of their September 24, 2008, notice to Petitioner.
Petitioner testified that on October 2, 2008, a manager called Petitioner into the office and asked his plans for moving; said she did not want to ask him to vacate because it would not look good on his record; and added that he could write all the letters he wanted (apparently to lawyers, officials, HUD, and FCHR), but it would do no good.
On October 3, 2008, Petitioner was hospitalized at Flagler Hospital due to a diagnosis of “depression.” He was released on October 4, 2008. The record is insufficient to find that he was “Baker-Acted.”
Despite prior notification to Petitioner that he would have to move out of the Summer Breeze Apartments on
September 30, 2008, (see Findings of Fact 20 and 27), Respondents allowed Petitioner to remain in his apartment until October 31, 2008, and Respondents paid his moving expenses.
The foregoing series of events upset Petitioner out of proportion to the situation, but there is no evidence whatsoever that Respondents singled out Petitioner or treated him differently than any other tenant.
CONCLUSIONS OF LAW
The Division of Administrative Hearings has jurisdiction over the parties and subject matter of this cause, pursuant to Sections 120.569, 120.57(1), and 760.20-760.37, Florida Statutes (2008).
Section 760.23, Florida Statutes, provides, in pertinent part:
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.
Petitioner has the burden of establishing facts to prove a prima facie case of discrimination. McCloud v. Jones,
DOAH Case No. 98-1925 (RO: 8/25/1998; FO: 5/17/99); U.S.
Department of Housing and Urban Development v. Blackwell, 908 F.2d 864 (11th Cir. 1990).
The three-part "burden of proof" pattern developed in McDonnell Douglas Corp. v. Green, 411 U.S. 792, 93 S. Ct. 1817 (1973), an employment discrimination case, also applies herein. Under that test, Petitioner must first prove, by a preponderance of the evidence, that discrimination has occurred. If the Respondent then articulates some legitimate, non-discriminatory reason for its action, the burden shifts back to Petitioner to prove that the reason provided by Respondent is merely pre- textual and not bona fide. See Pollitt v. Bramel, 669 F. Supp. 172, 175 (S. D. Ohio 1987).
Even assuming, arguendo, but not holding, that Petitioner’s social security disability determination meets the definition of “handicapped” or “disabled” under the black letter or case law, which it did not,3/ Petitioner has not presented sufficient evidence upon which to conclude that he received disparate treatment on the basis of handicap or race.
Petitioner presented no evidence that Respondents treated any other person, be that person a non-African-American, a non-disabled person, or even a person without depression, differently under the same or similar circumstances than Respondents treated Petitioner. Therefore, Petitioner did not
establish a prima facie case of discrimination on the basis of race or handicap.
Even so, Respondents established the existence of a uniform policy which was intended to eliminate any different treatment of tenants because of race or handicap. Respondent also put forth affirmative evidence showing that it was not to Respondent’s advantage to make discriminatory choices on those bases; that Respondent, in fact, had policies in place to protect persons in those protected classes; and that Respondent only targeted for non-renewal those tenants whose criminal records posed a threat to other tenants. Respondent had a “blind search” for criminal records done by an outside entity (Vantage) and relied on that entity’s search results as to every renewing tenant, not just Petitioner and not just African- American or handicapped tenants. That is not to say that it was not possible for Vantage’s search results to be wrong, but Respondents relied on Vantage, regardless of the race or handicap of any tenant up for lease renewal, and Respondents treated alike everyone with a Vantage-reported drug-related felony record.
As an aside, in September and October 2008, Petitioner had the opportunity to challenge Vantage’s records search and disprove Vantage’s findings to Respondents, but he did not attempt this until hearing. At hearing, Petitioner did not
establish that Vantage’s records search was in error or that there was any reason Respondents should have disbelieved Vantage's records search back in September and October 2008.
Respondents claim that retaliation was never an issue before FCHR and that evidence thereof should not have been admitted in the DOAH hearing. However, it is here concluded that the issue of retaliation was sufficiently raised before, and considered by, FCHR, via the discrimination complaint, and was sufficiently raised in the Petition for Relief that brought this case to DOAH.
That said, Petitioner did not bear his burden to establish the facts of a prima facie case that Respondents would not renew his lease or otherwise mistreated him during the months of September and October 2008, because he raised issues of discrimination with third parties or filed a complaint of discrimination.
Respondents’ 2008, records search via Vantage was a routine applied to every renewing tenant. Petitioner was not “punished” individually by it.
After Vantage’s 2008, records search came back against Petitioner, Respondent notified Petitioner his lease would not be renewed. Thereafter, Respondents had a right to make repeated oral and written notifications to Petitioner with regard to management’s need for information about when
Petitioner would be moving out, so that Respondents could prepare and rent the apartment to the next eligible tenant. These inquiries were, essentially, neutral comments/activities.
Respondents’ September 24, 2008, request to Petitioner for an unpaid September 1, 2008, rent installment turned out to be a bookkeeping error on Respondents’ part. Petitioner provided proof he had already paid his rent on time, and Respondents did not pursue any late fee. The event does not amount to retaliation.
The single September 22, 2008, comment to Petitioner that third party telephone calls to the apartment manager about Petitioner’s situation were “not good” is innocuous. The comment contained no direct or camouflaged threat or intimidation. One might speculate that the comment occurred after Respondents knew that a charge of discrimination might be filed at HUD or FCHR, but Petitioner did not prove that it occurred after a charge of discrimination was filed anywhere.
The same may be said of the October 2, 2008, “letters won’t do you any good” comment from Respondent’s manager, concerning Petitioner’s writing letters. There was no threat of retribution for a past filing of a discrimination complaint and there was no intimidation applied to coerce Petitioner into not filing a discrimination complaint in the future. In short, Respondents were merely continuing to pursue their original
September 7, 2008, request to vacate, and one of their employees expressed an opinion that Petitioner’s letters to third parties (only conjecturally Petitioner’s plans to file formal complaints) would be unsuccessful in permitting him to stay in his apartment.
Finally, all the events that occurred after the September 11, 2008, denial of renewal letter (see Conclusions of Law 52-55), occurred before Petitioner even signed his only complaint to FCHR in evidence, so that the chronology presented by Petitioner at hearing does not support a prima facie case of retaliation.
Based on the foregoing Findings of Fact and Conclusions of Law, it is
RECOMMENDED that the Florida Commission on Human Relations enter a final order dismissing the Charge of Discrimination and the Petition for Relief.
DONE AND ENTERED this 15th day of June, 2009, in Tallahassee, Leon County, Florida.
S
ELLA JANE P. DAVIS
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 15th day of June, 2009.
ENDNOTES
1/ Despite the style of the Petition for Relief honored by DOAH’s Clerk, all three Respondents discussed in Finding of Fact No. 3, are named in the Determination: No Cause, and all three Respondents defended in the instant cause before DOAH.
2/ It is unknown whether the Qualified Representative has a separate case pending.
3/ Section 760.22 (7) Florida Statutes, codifies the case law by setting out:
(7) Handicapped means:
A person has a physical or mental impairment which substantially limits one or more major life activities, or he or she has a record of having, or is regarded as having, such a physical or mental impairment; or
A person has a developmental disability as defined in Section 393.063.
Petitioner did not prove that he had a mental impairment which substantially limits one or more major life activities or that
he was regarded (by anyone other than the Social Security Administration) as having such a mental impairment. It might be said, very loosely, that he “had a record of having such a mental impairment.”
COPIES FURNISHED:
Brian C. Blair, Esquire Baker & Hostetler, LLP
200 South Orange Avenue, Suite 2300 Orlando, Florida 32801
Richardean Milton Qualified Representative
200 Summer Breeze, Apartment 236 St. Augustine, Florida 32086
Richardean Milton Qualified Representative
507 North 13th Street Palatka, Florida 32086
Ira Lee Bacon
5210 E. Blanche Drive Scottsdale, Arizona 85284
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
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 |
|---|---|---|
| Aug. 26, 2009 | Agency Final Order | |
| Jun. 15, 2009 | Recommended Order | Petitioner did not present a prima facie case for housing discrimination on theories of race, handicap, or retaliation. |
