STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

RECOMMENDED ORDER

This matter came on for final hearing before Robert S. Cohen, Administrative Law Judge with the Division of Administrative Hearings, on August 27, 2009, in Pensacola,

Florida.

APPEARANCES

For Petitioner: Donald Travis, pro se

Lisa Harrell, pro se 1008 West Young Street Pensacola, Florida 32501

For Respondent: Anne Cutler, pro se

John Cutler, pro se 5970 Limestone Road

Pensacola, Florida 32504 STATEMENT OF THE ISSUE

The issue for determination in this matter is whether Respondents engaged in acts of housing discrimination against Petitioners on the basis of race in violation of the Florida Fair Housing Act.

PRELIMINARY STATEMENT

Petitioners filed a complaint with the Department of Housing and Urban Development on March 19, 2009, alleging discriminatory acts on the basis of race by Respondents for not offering them different housing in their apartment complex. The Florida Commission on Human Relations issued a Notice of Determination of No Cause on June 19, 2009. By timely filing a Petition for Relief, Petitioners challenged the Commission's determination, and the case was referred to the Division of Administrative Hearings.

The matter proceeded to final hearing on August 27, 2009, in Pensacola, Florida. At the hearing, Petitioners testified on their own behalf and offered into evidence Exhibits 1 through 4 (Exhibit 3 was a composite of 14 photographs), all of which were admitted into evidence. Respondents testified on their own behalf, called Gary Denton as an additional witness, and offered one exhibit which was admitted into evidence. Neither party ordered a transcript of the proceedings. Following the hearing, the parties were given the opportunity to submit proposed recommended orders, but neither party elected to do so.

References to statutes are to Florida Statutes (2008), unless otherwise noted.

FINDINGS OF FACT

1. Petitioners, Donald Travis and Lisa Harrell, are a

   
   

   bi-racial couple (Mr. Travis is African-American and, therefore, belongs to a class of persons subject to protection under Florida's Fair Housing Act, Sections 760.20 through 760.37, Florida Statutes, and Ms. Harrell is white). They have two sons who are bi-racial (one is African-American and white, the other is white and Asian).

2. Petitioners lived in Apartment 163 at 10075 West Highway 98, Pensacola, Florida 32506.

3. Respondents, John and Anne Cutler, are the owners of two four-plex apartments at 10075 West Highway 98, Pensacola, Florida 32506, including the unit occupied by Petitioners that gave rise to this matter. They are both retired educators who own and operate their apartment rental business in their retirement. In their teaching and professional careers, both have instructed students of various races and national origins.

4. Petitioner, Donald Travis, is a veteran of Desert Storm and has been treated for Post Traumatic Stress Disorder. He regularly takes medications to treat anxiety and depression.

5. On April 4, 2008, Petitioners moved into Apartment 163, which had been recently painted, carpeted, and had a new ceiling fan and light installed in the living room.

6. Everything went smoothly between Petitioners and Respondents for several months. Mr. Cutler had to unplug the downstairs toilet with a plunger a few times, but everything else seemed to be in working order.

7. Both Mr. and Ms. Cutler considered Petitioners to be good tenants.

8. As summer approached, Mr. Travis asked Mr. Cutler about installing a screen door for the sliding glass doors. This could not be done without replacing the entire sliding glass doors. When Apartment 131 became vacant, its screen door was moved to Petitioners' apartment. The screen door had a slit in it, which Ms. Cutler repaired with tape. When Apartment 132 became vacant, the good screen door from that apartment was used to replace the taped one in Petitioners' apartment.

9. Respondents tried to keep everything in working order in Petitioners' apartment. When Petitioners' refrigerator door would not close, Respondents replaced the refrigerator. Respondents thought Petitioners were happy with their apartment.

10. Petitioners called Respondents about a plumbing leak and said feces was running down the wall. The leak and pipe were fixed by B & G Plumbing. Petitioners were shown the water shut-off valve in case of future leaks.

11. Petitioners believe that Respondents treated them differently from other tenants in the apartment buildings.

12. Petitioners believe that other tenants were allowed to keep pets in their apartments while they were not. Respondents allowed tenants who had pets when they purchased the apartments to keep them, but banned pets on all future rentals.

13. The rent for Petitioners' apartment, including water, sewer, and garbage, was $650.00. Petitioners always paid their rent on time.

14. Petitioners asked to be moved into a better unit since they believed their unit was inferior to others in the complex.

15. Petitioners wanted to move into Apartment 162 which, in their opinion, was in much better shape than their unit.

16. Respondents offered to put new carpet into Apartment 162 before Petitioners moved in, but they refused.

17. Petitioners decided to leave the apartment because they believed the maintenance was not properly performed.

18. On December 5, 2008, the day Petitioners made known their desire to leave the apartment, Mr. Travis confronted Mr. Cutler. Mr. Cutler offered Apartment 132 to Petitioners

    because it was ready for occupancy after its occupants had moved out. Apartment 133 would soon be ready, and was also offered to Petitioners.

19. Mr. Travis angrily refused to move into any apartments in the two four-plexes. He yelled at Mr. Cutler and told him he hated him. This exchange was witnessed by a neighbor, Gary

    Denton. Mr. Cutler offered to let Petitioners move out without penalty, and agreed to return their $650.00 deposit.

20. Petitioners accepted the offer and received the deposit in full as well as a waiver of the first five days' rent for December and an additional four days of rent to allow them time to pack and move.

21. Petitioners accused Respondents of renting one four-plex to whites only and the other to minorities.

22. At the time Petitioners moved out, both four-plexes had tenants of different races. As of the date of the hearing, five of the six total units rented were to non-white tenants. Only one was rented to a white couple.

    CONCLUSIONS OF LAW

    
    

23. DOAH has jurisdiction over the parties to and the subject matter of this proceeding pursuant to Section 120.569 and Subsections 120.57(1) and 760.35(3), Florida Statutes.

24. Under Florida's Fair Housing Act, Sections 760.20 through 760.37, Florida Statutes, it is unlawful to discriminate in the sale or rental of housing. Section 760.23, Florida Statutes, states in pertinent part:

    1. 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.

       
       

    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.

       
       

25. In interpreting and applying Florida's Fair Housing Act, the Commission and the Florida courts regularly seek guidance from federal court decisions interpreting similar provisions of federal fair housing laws.

26. In cases involving a claim of housing discrimination, the complainant has the burden of proving a prima facie case of discrimination by a preponderance of the evidence. See U.S. v. California Mobile Home Park Mgmt., 107 F.3d 1374, 1380 (9th Cir. 1997); Schantz v. Village Apartments, 998 F. Supp. 784, 791 (E.D. Mich. 1998).

27. Failure to establish a prima facie case of discrimination ends the inquiry. See Ratliff v. State, 666 So. 2d 1008, 1013, n.7 (Fla. 1st DCA 1996), aff'd, 679 So. 2d, 1183 (Fla. 1996).

28. If, however, the complainant establishes a prima facie case, the burden then shifts to the respondent to articulate some legitimate, nondiscriminatory reason for its action. If the respondent satisfies this burden, then the complainant must establish by a preponderance of the evidence that the reason

    asserted by the respondent is, in fact, merely a pretext for discrimination. See Massaro v. Mainlands Section 1 & 2 Civic Ass'n, Inc., 3 F.3d 1472, 1476, n.6 (11th Cir. 1993), cert.

    denied, 513 U.S. 808 (1994) (Fair housing discrimination cases are subject to the three-part test articulated in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973)).

29. Petitioners did not meet their burden to establish a prima facie case of discrimination. Petitioners failed to prove that any actions on the part of Respondents were discriminatory in nature. In fact, Respondents were responsive to every call made by Petitioners for repairs or even for a possible move to another unit within the two four-plexes. Respondents rented units to people who they deemed able to pay the monthly rent, regardless of their race. Petitioners did not prove by a preponderance of the evidence that Respondents treated them differently than other tenants or applicants for tenancy based on their race.

RECOMMENDATION

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 Petition for Relief.

DONE AND ENTERED this 25th day of November, 2009, in Tallahassee, Leon County, Florida.

S

ROBERT S. COHEN

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 25th day of November, 2009.

COPIES FURNISHED:

John Cutler Anne Cutler

5970 Limestone Road

Pensacola, Florida 32504

Donald Travis Lisa Harrell

1008 West Young Street Pensacola, Florida 32501

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.

Docket for Case No: 09-003577

Orders for Case No: 09-003577