CYNTHIA FAISON,

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

vs.

Petitioner,

Case No. 18-0946

COMMUNITY ASSISTED AND SUPPORTED LIVING, INC.,

Respondent.

/

RECOMMENDED ORDER

Administrative Law Judge D. R. Alexander conducted a hearing in this matter by video teleconference on May 31, 2018, at sites in Fort Myers and Tallahassee, Florida.

APPEARANCES

For Petitioner: Cynthia Faison, pro se

Unit 5104

1840 Florida Club Circle Naples, Florida 34112-8705

For Respondent: Kevin D. Micale, Esquire

Ulrich Scarlett Wickman & Dean Suite 201

713 South Orange Avenue Sarasota, Florida 34236-7755

STATEMENT OF THE ISSUE

The issue is whether Respondent unlawfully discriminated against Petitioner on the basis of her race in violation of the Florida Fair Housing Act (FFHA).

PRELIMINARY STATEMENT

On May 25, 2017, Petitioner filed a Housing Discrimination Complaint (Complaint) with the Florida Commission on Human Relations (FCHR) alleging that Community Assisted and Supported Living, Inc., subjected her to discriminatory terms and conditions and made housing unavailable to her based on her race. After investigating the matter, the FCHR issued a Notice of Determination: No Cause on January 19, 2018, in which it determined there was no reasonable cause to believe a discriminatory housing practice occurred. Petitioner timely filed a Petition for Relief alleging that Respondent violated the law “by offering different rental conditions based on Petitioner’s race” and providing only 15 days’ notice for her to terminate the unit, rather than 30 days’ notice. The matter was then referred by the FCHR to the Division of Administrative Hearings to conduct a hearing to resolve the dispute.

At the hearing, Petitioner testified on her own behalf. Petitioner’s Exhibits 1 through 5 were accepted in evidence.1/ Respondent presented no witnesses, but offered Respondent’s Exhibits 1 through 18, which were accepted in evidence.

A transcript of the proceeding was not prepared. Both parties filed proposed recommended orders (PROs), which have been considered.

FINDINGS OF FACT

1. Petitioner is an African-American female. Her Housing Discrimination Complaint alleges that Respondent “charged her

   $300 more than her White neighbor who has the same disability and the same income”; “she did not have a washer/dryer upon moving into the unit, but her white neighbor had a washer/dryer when she moved in[to] her unit”; “she was required to pay her utilities herself while her white neighbor was given a grant to cover her utilities”; and “she was given a fifteen day notice to vacate on March 9, 2017 that required her to vacate the property by

   March 31, 2017.” To resolve these allegations, the undersigned has relied on a record that consists only of brief testimony by Petitioner, limited cross-examination by counsel, and documentary evidence submitted by the parties.

2. From November 2014 until she was evicted in March 2017 for non-payment of rent, Petitioner rented a two-bedroom unit owned and managed by Respondent. The property is located at 2418 Santa Barbara Boulevard, Naples, Florida.

3. Petitioner’s final lease agreement was executed on March 1, 2016, on a month-to-month basis, and provided that

   Respondent could terminate the lease with a 15-day written notice prior to the end of the monthly period. It also provided that the agreement could be terminated for a failure to timely pay the rent.

   
   

4. Two-bedroom units are normally shared by two residents, who split the monthly rent. Petitioner has two service animals who reside with her, and she testified that a housemate might not wish to share a unit with two service animals. Accordingly, she agreed to pay $800.00 per month for single occupancy of the unit.

5. The lease agreement required Petitioner to pay her rent the first day of each month. Petitioner testified that she had an oral agreement with management to pay the rent on the third Wednesday of each month, when she received her Social Security disability check. There is no written agreement to confirm this arrangement, and even if an oral modification was agreed to by the parties, Respondent’s accounts receivable ledger reflects that Petitioner frequently did not pay her rent until the end of the month.

6. According to the lease, the monthly rent includes a

   
   

   $75.00 allowance for utilities. Presumably, any charges in excess of that amount are the responsibility of the tenant.

7. Petitioner testified that her next door neighbor is not a member of a protected class and was given more preferential treatment than she was. As an example, Petitioner points out that she paid her own electric bills from November 2014 until February 2016, while her neighbor received a utility subsidy. However, there is no competent evidence in the record to establish what type of arrangement the neighbor had for paying

   
   

   electric bills or whether the neighbor received some type of assistance for this expense. In any event, this allegation is based on events that occurred more than a year before the Complaint was filed and is time-barred. § 760.34(2), Fla. Stat.

8. Petitioner also contends she was charged $300 more per month than her neighbor. Records submitted by Respondent show that the next door neighbor was also in a two-bedroom unit, but was assigned a housemate and paid $495.00 per month during the

   12 months preceding the filing of the Complaint. Therefore, both the neighbor and Petitioner were charged the correct amount for their units.2/

9. Petitioner alleges her next door neighbor’s unit had a washer/dryer when the neighbor moved in, but Petitioner’s unit did not receive these appliances until February 2016. No evidence regarding this issue was presented, and a claim based on acts that occurred more than a year before the Complaint was filed is time-barred. Id.

10. Throughout her tenancy, Petitioner consistently paid her rent late and failed to pay any rent during certain months. As of January 17, 2017, Petitioner was $1,521.00 in arrears on rent. Accordingly, that day, a three-day notice for nonpayment of rent and demand for rent or possession within three days was posted on the premises. On February 22, 2017, a second three-day notice for nonpayment of rent in the amount of $800.00

    
    

    (presumably based on non-payment of the February rent) and demand for rent or possession within three days was hand-delivered to Petitioner. On March 8, 2017, a 15-day notice of termination of tenancy pursuant to section 83.58, Florida Statutes, was posted at the unit. The notice informed Petitioner that she must vacate the premises by the end of the month. On March 31, 2017, Petitioner vacated the premises, without paying the March rent.

    Petitioner’s Complaint was filed with FCHR on May 22, 2017.

    
    

11. The eviction action was taken only because Petitioner failed to pay the rent, and not because of her race.

12. In her Petition for Relief, Petitioner added an allegation that “FCHR’s Determination: No Cause” was based in part on the erroneous assumption that Respondent does not receive federal housing assistance. Petitioner testified that Respondent receives federal funds and is subject to eviction regulations promulgated by the United States Department of Housing and Urban Development (HUD). She points out that a 30-day eviction notice is required under HUD regulations, but she was only given

    15 days’ notice pursuant to state law. Even if this is true, it does not support a charge of discrimination, as the eviction here was based on a non-discriminatory reason, a failure to pay rent, and not because of her race.

13. Finally, Petitioner alleges that Respondent “made housing unavailable to her based on her race,” and that other

    
    

    persons similarly situated to her, but outside her protected class, were treated more favorably. The evidence shows that at least ten other tenants, including white tenants, were evicted for non-payment of rent during the same time period. See Resp. Ex. 14.

14. There is no evidence, direct or indirect, to support a claim of housing discrimination.

    CONCLUSIONS OF LAW

    
    

15. Under the FFHA, it is unlawful to discriminate in the sale or rental of housing. Section 760.23(1) makes it unlawful to refuse to rent a dwelling to any person because of his or her race, while section 760.23(2) makes it 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.”

16. As the complainant, Ms. Faison has the burden of establishing facts to prove discrimination by a preponderance of the evidence. §§ 120.57(1)(j) and 760.34(5), Fla. Stat.

17. To establish a prima facie case of housing discrimination under section 760.23(1), Ms. Faison must prove that: a) she is a member of a protected class; b) she attempted to rent or continue to rent the dwelling consistent with the terms and conditions offered by Respondent and that she met all

    
    

    relevant qualifications for doing so; c) Respondent denied her housing despite her qualifications; and d) Respondent allowed similarly qualified persons, outside of Ms. Faison’s protected class, to rent an apartment. Sec’y, Hous. & Urban Dev. ex. Rel. Herron v. Blackwell, 908 F.2d 864, 870 (11th Cir. 1990);

    Billingsley v. Housing Auth. of the City of Winter Park, Case No. 10-10304 (Fla. DOAH Mar. 21, 2011; FCHR June 7, 2011). A

    failure to establish a prima facie case of discrimination ends the inquiry.

18. Although Ms. Faison is an African-American and a member of a protected class, it is undisputed that, as of January 17, 2017, Ms. Faison violated her written lease by non-payment of rent. She continued to violate the terms of the lease until she was evicted in March 2017. Consequently, she was not qualified as a renter and did not meet the terms offered by Respondent to continue residing in her unit. Moreover, other tenants who were similarly situated to her, but not members of her protected class, were evicted for non-payment of rent during the same time period. Therefore, Ms. Faison did not establish a prima facie case of housing discrimination under section 760.23(1) on the basis of race.

19. Petitioner also contends that Respondent violated section 760.23(2) by failing to provide the same terms, privileges, conditions, services, or facilities as were offered

    
    

    to other tenants outside of her protected class. Except for an allegation that Petitioner paid more rent than her white neighbor for the same type of unit, the other allegations raised in the Complaint were either not addressed at hearing, or they are time- barred because the underlying acts occurred more than a year before the Complaint was filed. As to the allegation regarding rent, the evidence shows that both Petitioner and her neighbor were charged the correct rent during the time period in question. Therefore, Petitioner’s contention that Respondent violated section 760.23(2) must fail.

20. In summary, the evidence here is no more than Petitioner’s subjective belief that Respondent’s actions were discriminatory. This belief is insufficient to support her claim.

21. Given the foregoing considerations, the Petition for Relief should be dismissed, with prejudice.

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, with prejudice.

DONE AND ENTERED this 20th day of June, 2018, in Tallahassee, Leon County, Florida.

S

D. R. ALEXANDER 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 20th day of June, 2018.

ENDNOTES

1/ Petitioner’s Exhibit 2 is a letter from Florida Power and Light Company confirming that she paid her own electric bill from November 2014 until February 2016. Because the exhibit was not pre-filed before the hearing, the undersigned requested that Petitioner late-file a copy for the record. The exhibit was never filed. However, based on her testimony at hearing, this fact was incorporated into Finding of Fact 7. As noted in that finding, this occurred more than a year before the Complaint was filed and is time-barred.

2/ In her PRO, Ms. Faison points out that her grandson moved into the unit for six months in the first half of 2016 to assist her with medical issues. Because he also had a disability, the PRO asserts that in order for him to be eligible for housing assistance, the grandson was required to have his own lease for the second bedroom. She argues that Respondent was then required to reduce her rent to $495 per month, as it did for her white neighbor who also had a housemate, but it failed to do so because of her race. Aside from a lack of evidence to support this contention, it was not specifically raised in the Complaint, was not considered by the FCHR in making its initial determination, and is untimely.

COPIES FURNISHED:

Tammy S. Barton, Agency Clerk

Florida Commission on Human Relations Room 110

4075 Esplanade Way

Tallahassee, Florida 32399-7020 (eServed)

Cynthia Faison Unit 5104

1840 Florida Club Circle Naples, Florida 34112-8705 (eServed)

Kevin D. Micale, Esquire Ulrich Scarlett Wickman & Dean Suite 201

713 South Orange Avenue Sarasota, Florida 34236-7755 (eServed)

Cheyanne M. Costilla, General Counsel Florida Commission on Human Relations 4075 Esplanade Way, Suite 110

Tallahassee, Florida 32399-7020 (eServed)

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: 18-000946

Orders for Case No: 18-000946