STATE OF FLORIDA
DIVISION OF ADMINISTRATIVE HEARINGS
NIDIA CRUZ,
Petitioner,
vs.
ALFRED HOMES AND FELICIA HOMES FOSTER,
Respondents.
/
Case No. 20-1279
RECOMMENDED ORDER
On June 2, 2020, Administrative Law Judge Robert J. Telfer III, of the Florida Division of Administrative Hearings (Division), conducted an evidentiary hearing pursuant to section 120.57(1), Florida Statutes (2018), in Tallahassee, Florida, via ZOOM webconference.
APPEARANCES
For Petitioner: Nidia Cruz, pro se
Post Office Box 1923 Callahan, Florida 32011
For Respondents: James Pratt O’Conner, Esquire
James Pratt O’Conner, P.A. Post Office Box 471
Fernandina Beach, Florida 32035
STATEMENT OF THE ISSUE
Whether Respondents Alfred Homes and Felicia Homes Foster1 subjected Petitioner Nidia Cruz to discriminatory housing practices based on
Ms. Cruz’s national origin, in violation of the Florida Fair Housing Act, chapter 760, part II, Florida Statutes (FHA).
PRELIMINARY STATEMENT
On November 6, 2018, Petitioner Nidia Cruz (Ms. Cruz), along with her daughter Daisy Cruz, filed a charge of housing discrimination with the Florida Commission on Human Relations (FCHR), alleging that Respondents
discriminated against them based upon their national origin, in violation of the FHA. Ms. Cruz’s charge stated:
Complainants Nidia and Daisy Cruz identify themselves as persons of Puerto Rican national origin. As such, Complainant belongs to a class of persons whom the Fair Housing Act (“the Act”) protects from unlawful discrimination by virtue of national origin. Complainants rented a mobile home at 1300 South 10th Street, Lot #9, Fernandina Beach, FL 32034; which is owned by Respondent Alfred Holmes [sic]. Falicia Holmes Foster [sic] is the daughter of Respondent Alfred Holmes [sic] and acts as property manager.
Complainants alleged that they contacted Respondent Holmes Foster [sic] to fix many maintenance problems at the subject property for a period of two years. Complainants alleged that in June 2018, they continued to request Respondents to fix roof leaks, mold, roach and rat infestations. Complainants alleged became ill [sic] due to the unsanitary living conditions at the subject property. Complainants received an eviction notice
1 Based on the testimony and evidence presented at the final hearing, the undersigned has noted a misspelling of the Respondents’ names, previously used in the proceedings before the Florida Commission on Human Relations, which the undersigned has corrected in the case style and this Recommended Order.
on July 31, 2018, they requested an extension to stay. Complainants alleged that on July 31, 2018, Respondent that Alfred Holmes [sic] shouted outside the subject property that he did not want Hispanic people living in his properties anymore. Complainants alleged another tenant was evicted because of her race. On October 9, 2018, Complainants also alleged that Respondent Holmes Foster [sic] made threats to them if they filed against the subject property owner. Complainants finally decided to leave the subject property on September 29, 2018. They received an eviction notice to leave the premises in 24 hours. Complainants alleged that on 11/21/2017, they had one of many harassment experiences with their neighbor who lives in Lot #10. Complainants alleged Respondents knew about this harassment going on and they stated, the neighbor made derogatory comments against Hispanics and other acts that they considered harassment, but Respondents did not act or try to correct the ongoing situation. As such, Complainants believe that Respondents subjected them to discriminatory terms and conditions based on her national origin.
On February 21, 2020, FCHR issued a “Notice of Determination of No Cause,” finding that there was no reasonable cause to believe that Respondents had committed a discriminatory practice against Ms. Cruz.
On March 6, 2020, Ms. Cruz filed a Petition for Relief with FCHR, again alleging that Respondents had committed a discriminatory housing practice against her.2 FCHR transmitted the Petition to the Division and assigned the undersigned Administrative Law Judge (ALJ) to conduct an evidentiary hearing.
The undersigned conducted the final hearing on June 2, 2020, by ZOOM webconference. Petitioner presented the testimony of Daisy Burgos, and
2 Co-complainant Daisy Burgos (nee Cruz) did not join Ms. Cruz as a party in the Petition for Relief.
testified on her own behalf. The undersigned admitted Petitioner’s Exhibits P1, P2, P4, and P5 into evidence. Michael Hamilton, Felicia Homes Foster, Alfred Homes, and Christopher Cummings testified on behalf of Respondents. The undersigned admitted Respondents’ Exhibits R1 through R12 into evidence.
The parties did not order a transcript of the final hearing. As stated at the final hearing, the undersigned provided the parties 10 days from the date of the final hearing to submit their proposed recommended orders. On June 12, 2020, Respondents timely submitted a Proposed Recommended Order, which the undersigned has considered in the preparation of this Recommended Order. Petitioner failed to timely submit a proposed recommended order.
All statutory references are to the 2018 codification of the Florida Statutes, unless otherwise indicated.
FINDINGS OF FACT
Ms. Cruz, who is Hispanic in national origin, rented and occupied a mobile home at lot #9 in Pine Grove Trailer Park (Pine Grove), in an unincorporated area adjacent to Fernandina Beach, Florida.
Respondent Alfred Homes owns Pine Grove. His daughter, Respondent Felicia Homes Foster, oversees the business operations of Pine Grove.
Ms. Foster lives in a mobile home at Pine Grove, and owns two other mobile homes that are rental units. Ms. Cruz rented one of these mobile homes from Ms. Foster. The remaining mobile homes in Pine Grove are owner-occupied, with those owners renting their lots from Respondents.
Neither party could produce a lease between Respondents and Petitioner concerning the mobile home. Based on the parties’ testimony and other evidence presented at the final hearing, the undersigned finds that Petitioner’s tenancy for the mobile home commenced on or about October 15, 2016, for an approximately one-year term ending November 30, 2017.
Respondents charged a $500 security deposit, and $600 per month for rent, which included water and sanitary sewer that Pine Grove’s well and septic system provided. Ms. Cruz was responsible for electrical services to the mobile home.
After the expiration of the lease on November 30, 2017, the parties did not renew the lease, and Ms. Cruz continued to occupy the mobile home under a month-to-month agreement, until she vacated the mobile home on or about September 29, 2018.
Ms. Cruz sought out Respondents to rent a mobile home, as her previous landlord had terminated the lease for her previous residence because of her unauthorized possession of pets. Ms. Foster informed Ms. Cruz that she had an available mobile home to rent, but as the previous tenants had just moved out, she needed to make repairs to the mobile home before it could be occupied. Ms. Cruz requested to move in immediately while the Respondents repaired the mobile home, because she and her daughter were, at that point, homeless.
Respondents employed Michael Hamilton to repair and provide maintenance work to the mobile homes in Pine Grove. Mr. Hamilton worked for Respondents on weekends, as he had a full-time job during the week.
Within approximately one month of Ms. Cruz moving into her mobile home, Mr. Hamilton made the needed repairs to its interior, including replacing the refrigerator, carpet, commode, and door locks.
After moving into the mobile home, Ms. Cruz was involved in an incident at a nearby McDonald’s restaurant with an employee. That employee, Theresa McKenzie, was a tenant of Pine Grove and resided in lot #10, which was adjacent to Ms. Cruz’s mobile home.
Ms. Cruz and her daughter, Ms. Burgos, complained to Ms. Foster that Ms. McKenzie and her co-tenant Earnest Roberts made loud, harassing, and defamatory statements about Ms. Cruz and her national origin. Respondents,
individually, warned Ms. McKenzie and Mr. Roberts to refrain from calling Ms. Cruz and Ms. Burgos names.
The feud between Ms. Cruz and Ms. McKenzie was interrupted when Ms. Cruz was arrested on November 18, 2016. Ms. Cruz was charged with, among other offenses, aggravated stalking arising from a violation of an order of protection and filing a false police report. The victim of these offenses was a previous landlord from whom Ms. Cruz had rented a room. While in pretrial detention, a psychologist evaluated Ms. Cruz, and determined her
to be incompetent to proceed in the criminal proceeding. The trial court subsequently committed Ms. Cruz to a mental health facility, and she pled guilty to filing a false police report. The trial court sentenced Ms. Cruz to a split sentence of two years with special conditions, which included enrollment into the mental health court program. After acceptance into the mental health court program, Ms. Cruz was released from the Nassau County Jail.
On February 13, 2017, Ms. Foster hand delivered a letter to
Ms. McKenzie and Mr. Roberts, which warned them that if they did not refrain from verbal attacks against Ms. Cruz, Respondents would evict them from Pine Grove and obtain a no trespassing order.
Chris Cummings, who was a Pine Grove resident at lot #4, testified he was aware of the incident at McDonald’s involving Ms. Cruz and
Ms. McKenzie, as his wife also worked at that McDonald’s. Mr. Cummings observed, but could not hear, Ms. Cruz and Ms. McKenzie “squaring off” against each other. Mr. Cummings recounted that he observed Ms. Cruz lift her skirt and bend over, in a manner that he interpreted to mean that Ms. McKenize could kiss her rear end.
In August 2017, Hurricane Irma caused a large branch from a pine tree to fall on top of Ms. Cruz’s mobile home, puncturing the exterior metal skin of the mobile home’s roof, which allowed water to intrude into the interior of the mobile home. The water intrusion caused significant damage to the ceilings, walls, and floor coverings of the mobile home. It is undisputed
that Hurricane Irma inflicted serious damage to the mobile home, and that Ms. Cruz resorted to using buckets to catch water leaking from the roof.
Shortly after Hurricane Irma passed, Mr. Hamilton placed a tarp over the top of the mobile home to stop the water intrusion. He then began repairs to Ms. Cruz’s mobile home over the course of several weekends, which included removing and replacing damaged sheet rock, patching the metal roof, and installing new carpet and linoleum flooring. Mr. Hamilton testified that Ms. Cruz, on several occasions, frustrated his ability to complete these repairs by denying him entry into the mobile home.
Ms. Cruz presented evidence that her mobile home required extensive repairs upon moving in, and that it sustained severe damage from Hurricane Irma. However, she presented no credible evidence to rebut the testimony that Mr. Hamilton, on behalf of Respondents, completed all necessary repairs. Additionally, Ms. Cruz presented no credible evidence that Respondents treated her differently than other Pine Grove tenants in responding to and completing any necessary repairs to other tenant’s mobile homes.
Neither the passage of time, incarceration, nor the trauma of Hurricane Irma, ended the feud between Ms. Cruz and Ms. McKenzie. The Nassau County Sheriff’s Office had regular call-outs to Pine Grove regarding Ms. Cruz and Ms. McKenzie. The feud escalated when, on January 4, 2018, Ms. McKenzie filed a petition for an injunction for protection against
Ms. Cruz, and the circuit court entered a temporary injunction that same day. The next day, January 5, 2018, Ms. Cruz and Ms. Burgos each filed petitions for an injunction for protection against Ms. McKenzie. Then, on January 16, 2018, Ms. Cruz sought a petition for an injunction for protection against Mr. Roberts, which the circuit court granted, as a temporary injunction, that same day. On January 17, 2018, the circuit court held
a hearing on the petition against Ms. Cruz and Ms. Burgos’s petition against Ms. McKenzie, and on January 18, 2018, granted a final injunction
in each case. On January 18, 2018, Ms. Burgos filed a petition for an injunction for protection against Mr. Roberts, which the circuit court denied. On January 24, 2018, the circuit court heard Ms. Cruz’s petitions against Ms. McKenzie and Mr. Roberts; the circuit court denied the injunction
against Ms. McKenzie, but granted a final injunction against Mr. Roberts. On January 29 and February 9, 2018, the circuit court entered orders to show cause in Ms. Burgos’s injunction against Ms. McKenzie, and after hearing argument, dismissed them on February 15, 2018.
Despite these multiple injunction proceedings, Ms. Cruz and
Ms. McKenzie continued their feud. On January 22, 2018, Ms. Cruz was arrested for violation of the protection order in favor of Ms. McKenzie.
Ms. Cruz’s arrest triggered a violation of her felony probation. While in pretrial detention, she was again evaluated by a psychologist, who determined her to be incompetent to proceed. The circuit court committed Ms. Cruz to a mental health facility. She subsequently returned to court and pled guilty to a violation of probation. The circuit court sentenced Ms. Cruz to a split sentence of time served, reinstated probation, and extended probation with an added special condition for 12 months. Ms. Cruz was released from the Nassau County Jail on July 27, 2018.
On July 31, 2018, Ms. Foster hand delivered a notice to terminate the lease, stating that the lease will end on August 31, 2018, and that Ms. Cruz should vacate the mobile home no later than September 1, 2018. Ms. Cruz and Ms. Burgos continued to hold over in the mobile home until they moved out on September 29, 2018.
Ms. Cruz failed to provide any credible evidence that Respondents, or Mr. Hamilton, made any disparaging statements to Ms. Cruz regarding her national origin.
Ms. Cruz failed to provide any credible evidence that Respondents treated her less favorably than other tenants with regard to her feud with Ms. McKenzie. Put differently, Ms. Cruz failed to provide any credible
evidence that Respondents treated any other tenant disputes differently than the way they treated the dispute between Ms. Cruz and Ms. McKenzie.
Ms. Foster attempted to intervene on behalf of Ms. Cruz to end the feud, when she hand-delivered the letter to Ms. McKenzie on February 13, 2017, that threatened eviction. The credible evidence presented demonstrated that Ms. Cruz often created or exacerbated this feud, which ultimately led to her incarceration.
Ms. Cruz failed to provide any credible evidence that Respondents’ decision to end the month-to-month holdover of the lease of the mobile home was based on her national origin, or that Respondents treated Ms. Cruz differently than any other tenants who resided at Pine Grove in ending the month-to-month holdover of a lease.
CONCLUSIONS OF LAW
The Division has jurisdiction over the subject matter and the parties to this proceeding in accordance with sections 120.569, 120.57(1),
and 760.35(3)(b), Florida Statutes.
The FHA 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.” § 760.23(2), Fla. Stat.
The FHA is patterned after Title VII of the Civil Rights Act of 1968, as amended by the Fair Housing Act of 1988. As such, discriminatory acts prohibited under the federal Fair Housing Act are also prohibited under the FHA, and federal case law interpreting the federal Fair Housing Act is applicable to proceedings brought under the FHA. See Brand v. Fla. Power Corp., 633 So. 2d 504, 509 (Fla. 1st DCA 1994) (noting that “the Florida statute will take on the same constructions as placed on its federal protoype.”).
In cases involving claims of rental housing discrimination, the complainant has the burden to prove a prima facie case of discrimination by a preponderance of the evidence. § 760.34(5), Fla. Stat.; Fla. Dep’t of Transp. v.
J.W.C. Co., 396 So. 2d 778 (Fla. 1st DCA 1981). A “preponderance of the evidence” means the “greater weight” of the evidence, or evidence that “more likely than not” tends to prove the fact at issue. Gross v. Lyons, 763 So. 2d 276, 289 n.1 (Fla. 2000).
Ms. Cruz’s allegations amount to a claim of disparate treatment in the terms of her mobile home rental (i.e., Respondents’ notice of non-renewal
of the lease, and how they handled the feud between Ms. Cruz and
Ms. McKenzie), as well as in the provision of services in connection with that rental (i.e., Respondents’ failure to repair numerous issues with the mobile home).
To establish a prima facie case of disparate treatment, Ms. Cruz must present evidence that she was treated differently than similarly-situated tenants. See Schwarz v. City of Treasure Island, 544 F.3d 1201, 1216 (11th Cir. 2008).
Regarding disparate treatment, Ms. Cruz may establish a violation of the FHA through either direct evidence, or through circumstantial evidence established through the burden-shifting framework of McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). See Noel v. Aqua Vista Townhomes Condo. Ass’n, Inc., 2019 WL 4345903 at *3 (S.D. Fla. Sept. 12, 2019). Direct evidence is that which, if believed, would prove the existence of discriminatory intent without resort to inference or presumption. Denney v. City of Albany, 247 F.3d 1172, 1182 (11th Cir. 2001). “Direct evidence encompasses conduct or statements that both (1) reflect directly the alleged discriminatory attitude, and (2) bear directly on the contested [housing] decision.” Noel, 2019 WL 4345903 at *3. As to the nature of the evidence, “only the most blatant remarks, whose intent could be nothing other than to discriminate … will constitute direct evidence of discrimination.” Damon v.
Fleming Supermarkets of Fla., Inc., 196 F.3d 1354, 1358-59 (11th Cir. 1999) (citations omitted).
Ms. Cruz presented no direct evidence of discrimination by Respondents related to, or affecting the terms of, her tenancy at Pine Grove, or in the provision of services in connection therewith.
Under the McDonnell Douglas framework, Ms. Cruz must show that she: (a) is a member of a protected class; (b) requested services be performed on terms comparable to others living in the trailer park, or requested that Respondents stop Ms. McKenzie or other tenants from harassing or causing disturbances directed at her; and (c) that, based on her national origin, Respondents denied her the provision of services protected by the FHA, which were available to other tenants, or Respondents treated her less favorably than other tenants in Pine Grove, in regard to tenant disturbances. See Miller v. Richman Prop. Servs., Laurel Oaks Apts., Case No. 12-3237 (Fla. DOAH Dec. 27, 2012, Fla. FCHR Mar. 11, 2013) (setting forth the elements of a prima facie case of a disparate treatment claim based on race). With regard to her claim of disparate treatment in the terms of her rental, Ms. Cruz must establish that she: (a) is a member of a protected class; (b) requested renewal of her lease on terms comparable to others living in Pine Grove; and (c) that, based on her national origin, was denied renewal of her lease based on the same terms available to other tenants.
Ms. Cruz established the first element of a prima facie case: that she is a member of a protected class (Puerto Rican/Hispanic). Likewise, with respect to her disparate treatment claim for services in connection with her rental mobile home, she established the second element: that she requested services be performed on her rental mobile home on terms comparable to others living in Pine Grove, and that she intended to continue living in her rental mobile home.
However, Ms. Cruz presented no credible or persuasive evidence that Respondents denied provision of services, denied renewal of her lease, or treated her differently than others during the feud between her and
Ms. McKenize, based on her national origin.
Ms. Cruz’s allegations are, in essence, that Respondents were bad landlords. She alleged that Respondents had been cited for various code violations, that there was a stoppage of electrical and water services, and that the water had a bad odor. Although Respondents generally denied these allegations, these issues would be encountered by all of Pine Grove’s tenants. Ms. Cruz presented no credible evidence that Respondents discriminated against her, on the basis of her national origin, in their management of Pine Grove. General landlord-tenant issues do not create a cause of action under the FHA.
Ms. Cruz failed to meet her burden to establish a prima facie case of discrimination or disparate treatment under the FHA. Ms. Cruz failed to present persuasive evidence that any actions or inactions by Respondents were influenced by Ms. Cruz’s national origin.
Based upon the foregoing Findings of Fact and Conclusions of Law, the undersigned hereby RECOMMENDS that the Florida Commission on Human Relations issue a final order dismissing Nidia Cruz’s Petition for Relief.
DONE AND ENTERED this 1st day of July, 2020, in Tallahassee, Leon County, Florida.
S
ROBERT J. TELFER III
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 1st day of July, 2020.
COPIES FURNISHED:
Tammy S. Barton, Agency Clerk
Florida Commission on Human Relations Room 110
4075 Esplanade Way
Tallahassee, Florida 32399-7020 (eServed)
Nidia Cruz
Post Office Box 1923 Callahan, Florida 32011 (eServed)
James Pratt O'Conner, Esquire James Pratt O'Conner, P.A. Post Office Box 471
Fernandina Beach, Florida 32035 (eServed)
Cheyanne Costilla, General Counsel Florida Commission on Human Relations Room 110
4075 Esplanade Way
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.
| Issue Date | Document | Summary |
|---|---|---|
| Aug. 19, 2021 | Agency Final Order | FCHR Order No. 21-048 Page2 
Conclusions ofLaw 
We find the Administrative Law Judge's application of the law to the facts to result in a correct disposition of the matter. We adopt the Administrative Law Judge's conclusions of law. 
Exceptions 
Neither party filed exceptions to the Administrative Law Judge's Recommended Order. 
Dismissal 
The Petition for Relief and Housing Discrimination Complaint are DISMISSED with prejudice. 
The parties have the right to seek judicial review of this Order. The Commission and the appropriate District Court of Appeal must receive notice of appeal within 30 days of the date this Order is filed with the Clerk of the Commission. Explanation of the right to appeal is found in Section 120.68, Florida Statutes, and in the Florida Rules of Appellate Procedure 9.110. 
DONEANDORDEREDthisJi_ dayof ~ ,2021. 
FOR THE FLORIDA COMMISSION ONH N RELATIONS: 
Commissioner Darrick McGhee, Panel Chairperson; Commissioner Libby Farmer; and Commissioner Angela Primiano 
Filed this lq day of ~,.,._;e-,2021, in Tallahassee, Florida. 
Co1 · sion on Human Relations 4075 Esplanade Way, Room 110 Tallahassee, FL 32399 (850) 488-7082 FCHR Order No. 21-048 Page 3 
Copies furnished to: 
Ms. Nidia Cruz Post Office Box 1923 Callahan, Florida 32011 
Mr. Alfred Homes and Ms. Felicia Homes Foster c/o Mr. James Pratt O'Conner, Esquire James Pratt O'Conner, P.A. Post Office Box 4 71 Fernandina Beach, Florida 32035 
Robert J. Telfer III, Administrative Law Judge, DOAH 
Sarah Stewart, Legal Advisor for Commission Panel 
I HEREBY Cg RTIFY that a opy ofthe foregoing has been mailed to the above listed 
addressees this ( day of ~ 2021. 
~i~rk4:g}J,.0 Florida Commission on Human Relations |
| Aug. 19, 2021 | Agency Final Order | |
| Jul. 01, 2020 | Recommended Order | Petitioner failed to establish that Respondents discriminated against or treated Petitioner disparately, based on national origin, in violation of the Florida Fair Housing Act. |
