A formal hearing was held in this matter before Daniel M. Kilbride, Administrative Law Judge, Division of Administrative Hearings, on May 6, 2009, in Naples, Florida.
4050 Golden Gate Parkway, No. C-233 Naples, Florida 34116
For Respondent: Robert W. McClure, Esquire
Law Office of Robert W. McClure, P.A. 3511 Bonita Bay Boulevard
Whether Respondent discriminated against Petitioner on the basis of his familial status, violating Subsection 760.23(2), Florida Statutes (2008).1
If discriminatory conduct has been proven, whether quantifiable damages, or other allowable remedies, have been proven under Subsection 760.35(3)(b), Florida Statutes.
Petitioner, Arthur MacMillan, filed a Housing Discrimination Complaint with the Florida Commission on Human Relations (FCHR) on or about November 5, 2008. Pursuant to the Florida Fair Housing Act (FHA), Petitioner alleged that Respondent, Golf Crest of Naples Condominium Association, Inc., unlawfully discriminated against him and his family, on the basis of familial status by seeking to have the family move out of the condominium owned by Petitioner, based on an alleged violation of Respondent’s condominium documents.
FCHR investigated Petitioner’s allegations, and its executive director issued a Determination of “No Reasonable Cause” on February 5, 2009, finding there was no reasonable cause to believe that a discriminatory housing practice had occurred. Thereafter, Petitioner filed a Petition for Relief, dated February 13, 2009. On February 24, 2009, FCHR referred this matter to the Division of Administrative Hearings (DOAH) to conduct a formal proceeding. A formal hearing was scheduled and held on May 6, 2009, in Naples, Florida.
At the formal hearing, Petitioner testified in his own behalf and offered seven exhibits, which were admitted into
evidence. Sue Johnson, Larry W. Raab, and Radolfo Barrenechie testified on behalf of Respondent. Four exhibits were admitted into evidence on behalf of Respondent. The hearing was recorded, but a transcript of the proceedings was not prepared. Both Petitioner and Respondent have timely-filed post-hearing submittals, and they have been considered during the preparation of this Order.
Petitioner is a Caucasian male, who claims to be a person in a familial status that is entitled to protection under the Florida FHA. Petitioner has based his claim on the fact that he and his fiancée, Victoria Leonard, are the parents of three daughters who reside together in Unit C-233, Golf Crest Condominiums, 4050 Golden Gate Parkway, Naples, Florida.
Respondent is a Florida corporation.
In 1994, Respondent recorded an Amended and Restated Declaration of Condominium of Golf Crest of Naples (Declaration) in the Public Records of Lee County, Florida, at Official Record Book 1966, Page 2216.
The first sentence of Subsection 12.1 of the Declaration states, “Each unit shall be occupied by not more than two (2) persons at any time, as a residence and for no other purpose.”
Petitioner acquired title to Unit C-233 by warranty deed dated February 29, 2000. The deed states “subject to easements and restrictions of record, if any, which are specifically not extended or reimposed hereby.”
Upon acquiring the unit, Petitioner moved in by himself.
In September 2000, Leonard moved into the unit with
him.
In October 2001, twin daughters were born to Petitioner
and Leonard.
In September 2004, Petitioner, Leonard, and their twin daughters moved out of the unit and leased it to a tenant, which was approved by Respondent.
In August 2006, Petitioner and Leonard gave birth to a third daughter.
On July 4, 2008, Petitioner, Leonard, and their three daughters moved back into the unit.
On July 14, 2008, the property manager for Respondent, Sue Johnson, delivered a covenant violation letter to Petitioner. It advised him of the two-person per unit rule.
On October 29, 2008, Robert W. McClure, attorney for Respondent, sent a final covenant violation letter to Petitioner regarding the two-person per unit rule. The letter demanded that the violation stop immediately. It also stated that if it
did not stop within 30 days from the date of the letter, Respondent would take legal action and seek injunctive relief to enforce the covenant violation.
Petitioner sought an exemption from the rule from Respondent’s Board, but was denied.
Respondent has not sought to enforce this rule prior to July 2008.
Petitioner, on November 10, 2008, filed a complaint of discrimination with the FCHR.
Petitioner’s unit can be described as follows: the air-conditioned inside portion of the unit is approximately 22.9 feet long and 13.4 feet wide, for a total of 306 square feet.
It contains a kitchen and bathroom in the front of the unit. The living area of the unit consists of one room containing queen-size bunk beds, a couch, ottoman, television and stand, computer and stand, and an armoire. There is no separation of the living area and sleeping area. To the rear of the unit is a screened outdoor lanai approximately five feet by 14 feet.
The Golf Crest of Naples property consists of three buildings: Building A containing 28 units, Building B containing 12 units, and Building C containing 12 units. The buildings were originally a motel until converted to condominiums. All units within Building C are uniform in size
and a have a length of 22.9 feet and width of 13.4 feet, equaling 306 square feet.
Larry Raab, current board member of Respondent and past president, stated his opinion that, given the size of the units, the two-person rule was reasonable to protect the well- being of the occupants. Further, he testified Respondent has never, during his membership on the board beginning in 2001, denied occupancy to any prospective buyer or tenant whose family consisted of an adult and child and had no knowledge of any discriminatory activity.
Property Manager Sue Johnson testified that she has been manager of Respondent since 2004. During that time, she was involved in the approval process for both new buyers and tenants. To her knowledge, Respondent had never refused to allow the sale or rental of a unit to an adult and child, and no one on Respondent’s board had ever exhibited any indication to her that he or she did not wish to have children in the community.
Radolfo Barrenechie testified that he is a member of the Board of Directors and its current president. He currently owns six units in Golf Crest and has owned as many as ten units since 2004. All units were rented for investment purposes and not for personal use. He stated, during his ownership of the units, two were occupied by tenants consisting of an adult and
minor child. He had purchased one of the units with such tenants existing and for whom he did not need to seek approval from the Board. As to the second unit, the adult and child became tenants after he acquired ownership, and Board approval was required. The approval was granted.
The two-person rule is reasonable given the size of the units. Respondent does not discriminate against children who live on the property.
CONCLUSIONS OF LAW
The Division of Administrative Hearings has jurisdiction over the parties to and subject matter of this cause pursuant to Section 120.569 and Subsections 120.57(1) and 760.35(2)(b), Florida Statutes. Upon a determination that a discriminatory housing practice has occurred, the Administrative Law Judge may issue a recommended order prohibiting the discriminatory housing practice and recommending affirmative relief, including quantifiable damages.
FCHR is charged with administration of the Florida Civil Rights Act of 1992, as amended, and the Florida Fair Housing Act, Chapter 760, Parts I and II, Florida Statutes.
The Florida FHA provides in pertinent part:
760.23 Discrimination in the sale or rental of housing and other prohibited practices.
* * *
(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.
The burden of proof in a familial status discrimination housing case involves the “traditional” standard set forth in McDonnell Douglas v. Green, 411 U.S. 792, 93 S. Ct. 1817, 36 L. Ed. 2d. 668 (1973), and Texas Department of Community Affairs v. Burdine, 450 U.S. 248, 101 S. Ct. 1089, 67
L. Ed. 2d. 207 (1981). That is, Petitioner has the burden of establishing by a preponderance of evidence a prima facie case of unlawful discrimination. If he can demonstrate a prima facie
case, a presumption of discrimination arises, and the burden shifts to the housing provider to articulate a legitimate, nondiscriminatory reason for its action. The burden of producing evidence is next-placed on Petitioner to demonstrate that the proffered reason was pretextual. However, the ultimate burden of persuasion remains with Petitioner at all times. See St. Mary’s Honor Center vs. Hicks, 509 U.S. 502, 507, 113 S. Ct.
2742, 2747 (1993).
In order for Petitioner to demonstrate a prima facie case under the proof standard set forth above, Petitioner must demonstrate that:
He is part of a protected class.
He is qualified to own the apartment unit in question.
He suffered a loss of housing opportunity under circumstances which lead to an inference that Respondent based its action solely upon his familial status.
Petitioner has demonstrated that he is a part of a protected class, as the father of three children who live with him and their mother. He has proven that he properly purchased the apartment from the prior owner and that he is qualified to live in the apartment. Petitioner is subject to lawful condominium declarations and rules for which he should have been aware. However, Respondent has not previously sought to enforce the two-person rule, and has threatened to seek injunctive relief in the circuit court in order to enforce it. If so, this would cause Petitioner a loss of housing opportunity.
Therefore, Petitioner may have demonstrated a prima facie case.
More importantly, he has not yet suffered a loss.
Petitioner has only been notified that Respondent desires for him and his family to move; they have not yet acted on their request.
Nor has Petitioner pled, proved or attempted to prove that Respondent demonstrated any discriminatory or disparate effect. To establish a prima facie case of withholding of housing for an unlawful reason under the FHA, a plaintiff must show at least that the defendant’s action had a discriminatory
effect. Discriminatory effect means that the conduct of the defendant actually or predictably results in discrimination. Keith v. Volpe, 858 F.2d 467 (9th Cir. 1988).
In Pfaff v. U.S. Department of Housing, 88 F.3d 739 (9th Cir. 1996), the court rejected the Administrative Law Judge’s holding that a defendant who imposes an occupancy limitation must prove that the restriction has a compelling business necessity. It held that a “reasonableness” test applied. The court noted that HUD’s original interpretation of the 1988 amendments stated:
[T]here is no support in the statute or its legislative history which indicates any intent on the part of Congress to provide for the development of a national occupancy code.
On the other hand, there is no basis to conclude that Congress intended that an owner or manager of dwellings would be unable in any way to restrict the number of occupants who could reside in a dwelling.
Thus, the Department believes that in appropriate circumstances, owners and managers may develop and implement reasonable occupancy requirements based on factors such as the number and size of sleeping areas or bedrooms and the overall size of the dwelling unit. In this regard, it must be noted that, in connection with a complaint alleging discrimination on the basis of familial status, the Department will carefully examine any such nongovernmental restrictions to determine whether it operates unreasonably to limit or exclude families with children.
Id. at 748.
The court concluded that the compelling business interest test departs from HUD’s reasonableness standard. Based upon such standard, the Pfaff court held a landlord’s four-person occupancy restriction as to a small three-bedroom house was reasonable.
In Housing Opportunities Project for Excellence, Inc. v. Key Colony No. 4 Condominium Association, 510 F. Supp. 2d 1003 (S.D. Fla. 2007), it was held that a claim for disparate treatment must demonstrate that other unit owners similarly situated to themselves were treated differently than they were based on familial status. No such showing was made or attempted to be made by Petitioner.
Aside from unproven general allegations of discrimination, Petitioner’s case, in both his direct testimony and cross-examination of Respondent’s witnesses, relied primarily on two matters which were irrelevant to the issue of violation of his familial status. The first matter was that Respondent had allowed certain persons who were either accused or convicted of crimes to become occupants. He failed to prove by any competent evidence that any person had been convicted of a crime; what legal duty, if any, Respondent had to prevent such persons from occupying a unit; and what relationship, if any, an unproven breach of that duty had on his claim of a violation of
his familial status. Second, he claimed there was a conflict or ambiguity between the two-person per unit rule and the word “family” in the Declaration. Again there was no showing as to how this was related to or proved a violation of the FHA. Petitioner failed to prove or even attempt to prove that Respondent had violated his protected familial rights.
Even if such evidence was properly pled and proved, it would be irrelevant and immaterial to a petition based on a violation of the FHA.
Subsection 120.569(2)(g), Florida Statutes, states that “irrelevant, immaterial, or unduly repetitious evidence shall be excluded . . .” Section 90.401, Florida Statutes (the Florida Evidence Code), states, “Relevant evidence is evidence tending to prove or disprove a material fact.” It is fundamental that the introduction of evidence of collateral facts which by their nature are incapable of affording any reasonable presumption or inference as to the principal matter at issue is forbidden. Evidence and Witnesses. 23 Fla. Jur 2d Sect. 122.
Assuming arguendo that Petitioner has proven a prima
facie case of familial status discrimination, the burden to go forward with the evidence shifts to Respondent.
Testimony was given by both President Barrenechie and former President Raab that the two-person per unit rule was
reasonable given the unit size of 306 square feet. Petitioner failed to produce any evidence or testimony that Respondent’s occupancy limitation rule is unreasonable. A living space of
306 square feet is not accommodating to three or more persons and abjectly unreasonable for five persons.
However, Petitioner has neither pleaded nor produced any evidence at the hearing that Respondent discriminated against, nor had any intent to discriminate against his familial status. To establish a prima facie case of discrimination without intent, the Petitioner must prove discrimination or discriminatory impact. Merely raising an inference of discrimination is insufficient. Pfaff v. U.S. Department of
Housing, 88 F.3d 739 (9th Cir. 1996); Palmer v. United States, 794 F.2d 534 at 539 (9th Cir. 1986) (citing Moore v. Hughes
Helicopter, Inc., 708 F.2d 475 (9th Cir. 1983)).
Petitioner also failed to produce any evidence that Respondent’s two-person rule had a discriminatory impact. To the contrary, the evidence is credible that Barrenechie had rented two units to an adult and child with approval by Respondent and that he was aware of other units in Golf Crest of Naples occupied by an adult and child.
Although hearsay evidence may be admissible in a formal hearing (§ 120.569(2)(g), Fla. Stat.), it is not sufficient in itself to support a finding unless it is
admissible over objection in civil actions. § 120.57(1)(c), Fla. Stat. Petitioner’s hearsay evidence does not fall into any of the hearsay exceptions found in Section 90.803, Florida Statutes. Under Subsection 120.57(1)(c), Florida Statutes, this hearsay evidence is not sufficient in itself to support findings of fact. Department of Environmental Protection v. Department of Management Services, Division of Administrative Hearings, 667 So. 2d 369, 370 (Fla. 1st DCA 1995); Department of Administration, Division of Retirement v. Porter, 591 So. 2d 1108 (Fla. 2nd DCA 1992); Harris v. Game and Fresh Water Fish Commission, 495 So. 2d 806, 809 (Fla. 1st DCA 1986). Without the hearsay evidence, Petitioner’s evidence did not prove that Respondent’s articulated reasons for denying his application for an exemption from the two-person rule were pretextual. In addition, Respondent’s witnesses’ testimony was credible.
Subsection 760.35(3)(b), Florida Statutes, provides that in the event the Administrative Law Judge determines that a discriminatory act has been committed, the Administrative Law Judge shall recommend to FCHR an order prohibiting or requiring Respondent to cease and desist its activity and shall recommend an order finding quantifiable damages.
There has been insufficient evidence to support the issuance of a cease and desist order, and no evidence has been submitted by Petitioner of any quantifiable damages which FCHR
has authority to levy in such cases. As the Court determined in Laborers’ International Local 478 v. Burroughs, 541 So. 2d 1160 (Fla. 1989), quantifiable damages can be authorized by an administrative agency. However, humiliation, pain and suffering, discomfort, and inconvenience are damages which are not quantifiable and may not be awarded through administrative procedures; see also Broward County v. LaRosa, 505 So. 2d 422 (Fla. 1987).
RECOMMENDED that the Florida Commission on Human Relations issue a final order denying the relief sought and dismissing the petition filed in this matter.
DONE AND ENTERED this 17th day of June, 2009, in Tallahassee, Leon County, Florida.
DANIEL M. KILBRIDE
Filed with the Clerk of the Division of Administrative Hearings this 17th day of June, 2009.
1/ All references to Florida Statutes are to Florida Statutes (2008), unless otherwise indicated.
Larry Kranert, General Counsel Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100
4050 Golden Gate Parkway, No. C-233 Naples, Florida 34116
Robert W. McClure, Esquire
Law Office of Robert W. McClure, P.A. 3511 Bonita Bay Boulevard
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.
