STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

EDWARD EAVES,

Petitioner,

vs.

IMT-LB CENTRAL FLORIDA PORTFOLIO, LLC,

Respondent.

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)

)

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) Case No. 10-3324

)

) *AMENDED AS TO

) RECOMMENDATION ONLY

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)

)

*AMENDED RECOMMENDED ORDER

Pursuant to notice, a hearing was held on September 20, 2010, in the above-styled case by video teleconference with the parties appearing from Orlando, Florida, before J. D. Parrish, an Administrative Law Judge with the Division of Administrative Hearings (DOAH), in Tallahassee, Florida.

APPEARANCES

For Petitioner: Edward Eaves, pro se

5274 North Orange Blossom Trail Apartment 105

Orlando, Florida 32810

For Respondent: James I. Barron, III, Esquire

James I. Barron, III, P.A.

301 East Pine Street Suite 150

Orlando, Florida 32801

STATEMENT OF THE ISSUE

Whether Respondent, IMT-LB Central Florida Portfolio, LLC (Respondent), committed a discriminatory practice in violation of Chapter 760, Florida Statutes (2009).1

PRELIMINARY STATEMENT

On June 16, 2010, the Florida Commission on Human Relations (FCHR) forwarded a Petition for Relief to DOAH. In summary, Petitioner claimed that Respondent had retaliated against him for making complaints against a landlord with regard to the conditions of an apartment located at Village Park Apartments, 4400 Martin’s Way, Orlando, Florida. In essence, Petitioner maintained that he was discriminated against based upon his race and that Respondent further retaliated against him when complaints to Orange County authorities were made concerning the conditions of the apartment and its grounds. In response, Respondent maintains it did not discriminate against Petitioner in any manner, but that Petitioner affirmatively failed to comply with the terms of his lease, refused to make his apartment available for repairs, and failed or otherwise refused to honor the terms of an agreement reached in an eviction proceeding that was pursued in Orange County, Florida.

At hearing, Petitioner testified in his own behalf and presented testimony from Robert Lee Wayne, an environmental specialist II employed by the Orange County Health Department;

and Lorene Johnson, code enforcement officer for the City of Orlando (City). Petitioner’s Exhibits 1 through 19 were admitted into evidence. Respondent presented testimony from Kevin Jowers, Yvette Colon, and John Ferrulo. Respondent’s Exhibits 1 through 9 were admitted into evidence.

The Transcript of the proceeding was filed with DOAH on October 11, 2010. Proposed Recommended Orders were filed by the parties on October 25, 2010, and October 29, 2010. Each of the parties' proposals have been considered in the preparation of this Recommended Order. Petitioner filed an Emergency Supplement Motion under Newly Discovered Evidence Obtained Friday November 19, 2010, Amended Supplement Motion Section (2), and Second Amended Supplemental Motion Section (2) on

November 19, 2010. On November 23, 2010, Petitioner filed a Supplement Motion to Intercede. Respondent replied to the allegations set forth in Petitioner’s pleadings on November 24, 2010. Thereafter, Petitioner filed a Response to Respondent’s Letter to Judge Parrish. The matters addressed in Petitioner’s supplemental requests are addressed in the Conclusions of Law that follow. This Recommended Order is entered to resolve all outstanding issues in this cause.

FINDINGS OF FACT

1. Respondent owns and/or operates a residential rental property located at 4400 Martin’s Way, Orlando, Florida. The

   
   

   property, identified in this record as Village Park Apartments (Village Park), consisted of a two-story, multi-building, multi- apartment complex.

2. Sometime in late October 2009, Petitioner leased an apartment at Village Park. Petitioner’s apartment was on the second floor and no other apartments were above his.

3. Petitioner’s lease agreement required that Petitioner obtain and provide public utilities for his apartment. Although Petitioner claims he did not timely receive a copy of his lease in order to be on notice of this provision, the record is clear that after Petitioner became aware of the provision, he did not obtain public utilities for the apartment.

4. Shortly after Petitioner received a bill for utility service for his apartment from Respondent in December 2009, Petitioner complained to governmental authorities about conditions at the apartment complex.

5. With regard to the conditions of his living unit, Petitioner maintained there was a roof leak, a vanity pipe leak, and a non-working toilet. Ms. Johnson, an inspector for the City, came out to Village Park and inspected the unit. She found that the toilet and vanity required repair. She further determined that Respondent would need to get a certified roofing person to verify the condition of the roof, and to certify to the City that the roof was water tight. It was Ms. Johnson’s

   
   

   position that water damage was evident on the ceiling in Petitioner’s unit, and that Respondent would need to get a certified roofing person to verify the condition of the roof, as well as someone to restore the interior of Petitioner’s unit by repairing and/or painting the ceiling.

6. An inspector from the Orange County Health Department also visited Village Park concerning a complaint about rats at the dumpster. Respondent timely addressed the rodent issue and the property is under contract with an extermination company that provides appropriate rodent deterrence.

7. Respondent timely repaired the vanity leak and the toilet issue in Petitioner’s apartment. The roof issue, however, was not quickly resolved. Initially, Petitioner refused to allow Respondent into the unit to repair the ceiling. Ms. Johnson advised Petitioner that he would have to allow Respondent entry in order for them to be able to fix the ceiling and restore it to an appropriate condition. According to

   Ms. Johnson, the ceiling in Petitioner’s unit did not collapse as alleged by Petitioner.

8. Ms. Johnson also noted that there was debris around the dumpster at Village Park. She was favorably impressed with the speed with which the maintenance crew cleaned up the mess at the dumpster site.

   
   

9. Despite some delays in getting the roof inspection completed to Ms. Johnson’s satisfaction, all issues with Petitioner’s unit were resolved to the City’s satisfaction.

10. Concurrent with the repair timeline to Petitioner’s unit, Respondent filed an eviction proceeding against Petitioner. That action progressed through the court, through mediation, and resulted in a stipulated settlement agreement. The Landlord/Tenant Stipulation was executed on January 27, 2010, and provided, in pertinent part:

    Defendant [Petitioner] agrees to place utilities in his own name at OUC no later than Feb. 3, 2010.

    
    

    * * *

    
    

    Defendant agrees to allow Plaintiff [Respondent] to enter his apartment for repairs on Feb. 1, 2010 between 9:00 a.m.

    and 5:00 p.m.

    
    

11. Petitioner failed to abide by the terms of the stipulation. Ultimately the court issued a Final Judgment for Possession and Writ of Possession for Petitioner’s unit. Petitioner's claim that the eviction process was retaliation for the complaints made to the county and city authorities, belies the fact that Petitioner failed to honor the terms of the lease, and the stipulation reached in the eviction proceeding. Petitioner’s race was not directly or indirectly involved in any

    
    

    manner. Nor was Petitioner treated less favorably than a similarly situated party not of Petitioner’s race.

    CONCLUSIONS OF LAW

    
    

12. DOAH has jurisdiction over the parties to and the subject matter of these proceedings. §§ 120.569 and 120.57(1), Fla. Stat.

13. Under the Florida Fair Housing Act (the act), it is unlawful to discriminate in the financing, sale or rental of housing. Section 760.23, Florida Statutes, provides in 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.

       
       

14. Section 83.64, Florida Statutes, provides:

    
    

    83.64 Retaliatory conduct.--

    
    

    1. It is unlawful for a landlord to discriminatorily increase a tenant's rent or decrease services to a tenant, or to bring or threaten to bring an action for possession or other civil action, primarily because the landlord is retaliating against the tenant. In order for the tenant to raise the defense of retaliatory conduct, the tenant must have acted in good faith.

       
       

       Examples of conduct for which the landlord may not retaliate include, but are not limited to, situations where:

       
       

       1. The tenant has complained to a governmental agency charged with responsibility for enforcement of a building, housing, or health code of a suspected violation applicable to the premises;

          
          

       2. The tenant has organized, encouraged, or participated in a tenants' organization;

          
          

       3. The tenant has complained to the landlord pursuant to s. 83.56(1); or

          
          

       4. The tenant is a service member who has terminated a rental agreement pursuant to s. 83.682.

          
          

    2. Evidence of retaliatory conduct may be raised by the tenant as a defense in any action brought against him or her for possession.

       
       

    3. In any event, this section does not apply if the landlord proves that the eviction is for good cause. Examples of good cause include, but are not limited to, good faith actions for nonpayment of rent, violation of the rental agreement or of reasonable rules, or violation of the terms of this chapter.

       
       

    4. "Discrimination" under this section means that a tenant is being treated differently as to the rent charged, the services rendered, or the action being taken by the landlord, which shall be a prerequisite to a finding of retaliatory conduct.

    
    

    (Emphasis added).

    
    

15. In this matter, Petitioner bears the initial burden of proof to establish a case of discrimination in violation of the act by a preponderance of the evidence. Generally, once a complainant establishes membership in a protected class, and proof that he or she was treated differently than others not in the class, the burden of proof would shift requiring the offending party to articulate a nondiscriminatory motive or objective for the alleged discriminatory conduct. If, however, the complainant (in this case Petitioner) fails to establish a case of discrimination, the matter ends. See Nat'l Indust., Inc. v. Comm'n on Human Relations, 527 So. 2d 894 (Fla. 5th DCA 1988).

16. In this case, Petitioner failed to produce evidence that he was discriminated against in any manner. Proof that is the conjecture or speculation on the part of a complainant is insufficient to establish a case of discrimination. There must be some evidence of racial animus. See Lizardo v. Denny’s, Inc., 270 F.3d 94 (2d Cir. 2001).

17. Similarly, Petitioner failed to establish that the terms or conditions of his rental were adversely affected in retaliation for complaints made to governmental authorities. The County Court Judge would have had jurisdiction to consider such a defense, had it been raised, in conjunction with the eviction proceedings. Instead, Petitioner and Respondent

    
    

    reached a stipulation regarding the terms of Petitioner’s tenancy. Petitioner acted in bad faith by failing to comply with the terms of the stipulation and with the terms of his lease agreement. Respondent was entitled to hold Petitioner to the terms of the agreement. Petitioner submitted no credible proof that any of Respondent’s acts were racially motivated.

    Respondent had a legitimate basis for the eviction sought against Petitioner.

18. Finally, with regard to Petitioner’s supplemental motions filed post-hearing. Allegations of attempted bribery are serious criminal claims. This is an administrative proceeding. The undersigned has no jurisdiction to consider such matters, even if true. Moreover, such claims would not demonstrate a racial animus for alleged discrimination by Respondent against Petitioner. If Petitioner has proof of criminal wrong-doing, such claims should be presented to law enforcement authorities. Accordingly, Petitioner’s post-hearing supplemental requests are denied.

RECOMMENDATION

Based upon the foregoing Findings of Facts and Conclusions of Law, it is hereby RECOMMENDED that the Florida Commission on Human Relations enter a final order dismissing the petition filed by Petitioner, Edward Eaves, against Respondent, IMT-LB Central Florida Portfolio, LLC.

DONE AND ENTERED this 5th day of January, 2011, in Tallahassee, Leon County, Florida.

S

J. D. PARRISH

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 January, 2011.

ENDNOTE

1/ All statutory references are to Florida Statutes (2009), unless otherwise indicated.

COPIES FURNISHED:

Denise Crawford, Agency Clerk

Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100

Tallahassee, Florida 32301

Edward Eaves

5267 Crisfield Court

Orlando, Florida 32808

James I. Barron, III, Esquire Picerne Management Corporation Tower Point Apartments

301 East Pine Street, Suite 150 Orlando, Florida 32801

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: 10-003324

Orders for Case No: 10-003324