The Issue The issue in this case is whether the Respondent committed an unlawful housing practice by discriminating against the Petitioner on the basis of race, in violation of the Florida Fair Housing Act, sections 760.20 through 760.37, Florida Statutes.
Findings Of Fact Petitioner, Dr. Rubye Johnson, is an African-American woman and, thus, is a member of a class protected under the Florida Fair Housing Act, sections 760.20 through 760.37, Florida Statutes. Respondent, Canongate Condominium Apartments No. One, Inc., is the condominium association responsible for operation of the Canongate Condominium Apartments No. One ("Canongate"). Petitioner is a resident of Canongate and currently resides in Unit 201. She previously owned and lived in Canongate Unit 207, the unit at issue in this proceeding.3 She no longer owns Unit 207. Petitioner could not recall precisely when she became a resident of Canongate.4 She testified that when she became a resident of Canongate she was a renter, and she rented Unit 207. The evidence indicates that she likely moved into Unit 207 sometime before February 4, 2000. On February 4, 2000, the Association voted to amend Canongate's Declaration of Condominium, Article VII, Paragraph G, Section i. This amendment (the "2000 Amendment") prohibits the leasing or rental of units in Canongate. Existing leases and tenants as of the amendment's effective date were grandfathered for the balance of the lease term; however, no lease extensions or renewals were allowed. Institutional mortgagees' existing rights under the Declaration of Condominium were expressly preserved. At some point after Petitioner began renting Unit 207, the unit owner told her that due to the 2000 Amendment, she either would have to purchase the unit or move out in five years' time. The owner told her he thought the 2000 Amendment was approved because Respondent's Board of Directors ("Board") did not want any more black residents in the building.5 Petitioner purchased Unit 207 in or about 2004. When she purchased the unit, she was aware of the 2000 Amendment. She acknowledged that the 2000 Amendment prohibits the leasing or rental of units in Canongate without regard to race or gender. Petitioner testified that when she came home one day, Laura Ochacher, who had owned Unit 210, approached her about renting one of her units. Ms. Ochacher told Petitioner that Unit 210 was the subject of foreclosure and that her family was being evicted. Petitioner saw the eviction notice. Ms. Ochacher told Petitioner that Canongate property manager Marsha Allen had found a company to purchase Unit 210, and that the company had allowed them to remain in and rent Unit 210. Through examining a document printed out from the Miami-Dade County Property Appraiser's Office website, Petitioner learned that Lansdowne Real Estate Holdings, LLC ("Lansdowne") owned Unit 210. From this information, Petitioner surmised that Lansdowne had purchased Unit 210 and rented it to the Ochachers. She believed that Ms. Allen and the Board were complicit in what she viewed as a rental arrangement that violated the 2000 Amendment. Her belief was based on her knowledge of the screening and approval process entailed in purchasing a unit in Canongate. Petitioner did not independently investigate the matters that Ms. Ochacher relayed to her. She did not ask Ms. Allen whether she had found a company to purchase Unit 210; whether Unit 210 was, in fact, being rented; or whether she or the Board knew of and allowed rental of the unit. Petitioner understood Lansdowne to be a land company that bought and sold land on a large scale. She did not know whether Lansdowne is white, black, or of any other race. Petitioner also heard rumors from other Canongate residents that other units were being rented. She identified these units as 618, 520, 602, 105, 309, 106, 115, 120, 315, 515, 313, 410, 430, 503, 514, "and perhaps more." She did not identify who told her about these units, nor did she independently investigate whether the units were, in fact, being rented. Following her discussion with Ms. Ochacher, Petitioner decided to ask the Board whether she could rent Unit 207. She sent a communication to the Board, dated April 11, 2009, entitled "Issues and Concerns."6 Item 12 of this communication states: 12. It is rumored that there are renters in the building and that the board of directors are [sic] sanctioning these arrangements. Is this true? If so, under what circumstance would the board of director's [sic] sanctions [sic] renters in the building? If not, do you have a clue how this perception has been generated? Petitioner's testimony regarding whether she had actually requested permission from the Board to rent her unit was inconsistent. In her deposition, she testified that she viewed the statement in Item 12 as a request to rent Unit 207, but conceded that the request was "implied." At the final hearing, she acknowledged that her statement in Item 12 did not constitute a specific request, but stated that she previously had sent letters asking to rent the unit. She was unable to recall any specific letters she sent, when she sent them, or to whom the letters were sent. No such letters were proffered or admitted into evidence. Petitioner claimed that she had orally asked Ms. Allen and various Board members, on numerous occasions, whether she could rent her unit. However, she could not recall who, other than Ms. Allen, she ostensibly had asked, nor did she recall the substance or details of such conversations. Petitioner testified that, "by the way they acted," she knew she was not allowed to rent her unit. She stated that she also had been informed, orally and in writing, that she could not rent her unit. However, she could not recall who informed her, or any details of those discussions. She did not provide any evidence of written refusal to allow her to rent her unit. Petitioner testified that she had discussed with Marsha Allen her concern that white unit owners were allowed to rent their units, while she was not. She acknowledged that no one had ever told her she was not allowed to rent her unit because she is black. Canongate property manager Marsha Allen testified on behalf of Respondent. Ms. Allen's duties as property manager include overseeing the day-to-day operation of Canongate, reporting to the Board, and serving as Respondent's records custodian. Ms. Allen testified that rental of units in Canongate is prohibited under the 2000 Amendment. She testified that neither she nor the Board have allowed Canongate owners to rent their units, and that whenever owners have asked, they have been denied permission because of the rental prohibition. Ms. Allen testified that none of the units Petitioner identified was, in fact, being rented. Ms. Allen stated that Petitioner never had asked her whether she could rent her unit. She was not aware of Petitioner ever having asked the Board or any Board member whether she could rent her unit. Ms. Allen did not interpret Item 12 of Petitioner's April 11, 2009, communication as constituting a request for permission to rent her unit. Ms. Allen also stated that she never had discussed Canongate's rental policy with Petitioner, and she never had refused a request from Petitioner to rent her unit. She testified that she never had been directed by the Board or any Board member to refuse to allow Petitioner to rent her unit. Ms. Allen testified that Petitioner never had complained to her that she was being discriminated against by not being allowed to rent her unit, while white owners were allowed to rent theirs. Lansdowne sent a letter dated October 30, 2008, to Ms. Allen. The letter asked her to inform the Board that Lansdowne had acquired title to Unit 210 through foreclosure and that they were entering into an agreement with the borrower, Laura Ochacher, to continue her occupancy for 12 months, during which she could redeem the property by paying the foreclosure judgment. The letter stated: "[t]his should not be considered a rental arrangement." The letter explained that Lansdowne had paid the past due assessments for the unit and would pay outstanding legal fees once the Board approved the occupancy agreement. Upon receiving the letter, Ms. Allen reviewed the Canongate Declaration of Condominium, specifically, Article VII, Paragraph H., to ensure that the occupancy agreement for Unit 210 did not violate the 2000 Amendment's rental prohibition. Article VII, Paragraph H., provides that if the mortgagee of a condominium unit subject to an institutional mortgage given as security becomes the owner of the unit, the owner has the unqualified right to sell, lease, or otherwise dispose of the unit. Ms. Allen determined that, based on this provision, the occupancy agreement did not violate the 2000 Amendment. Ms. Allen consulted with Respondent's legal counsel, who independently verified that the occupancy agreement did not violate the 2000 Amendment. Respondent also presented the testimony of Joyce Meade, who has served as Respondent's president since 2008. Ms. Meade's duties as President include enforcing Respondent's condominium documents, overseeing the Board, conducting meetings, and supervising Canongate's property manager. Ms. Meade testified that Petitioner did not ask her for permission to rent her unit. She also testified that, to the best of her knowledge, Petitioner did not ask the Board for permission to rent her unit, and the Board did not specifically refuse. Ms. Meade testified that had Petitioner asked to rent her unit, she would not have been allowed because all rental requests are refused due to the 2000 Amendment. Ms. Meade testified that Petitioner never complained to her that she was being discriminated against because she was not allowed to rent her unit, while white owners were allowed to rent theirs. She also was not aware of any such complaints by Petitioner to the Board. Determinations of Ultimate Fact Petitioner failed to present persuasive evidence that she requested Respondent's permission to rent Unit 207. Petitioner subjectively may have believed that she requested permission in Item 12 of her April 11, 2009, communication, but that item cannot reasonably be read to constitute such a request. Item 12 merely asks if there are renters in Canongate and the circumstances under which the Board would allow renters. No other items in the April 11, 2009, communication constitute a request to rent the unit. Petitioner did not present any evidence that she submitted other written requests to rent her unit, and her testimony that she had orally requested to rent her unit was unpersuasive. Respondent's witnesses credibly testified that Petitioner had never requested, orally or in writing, to rent her unit. Petitioner also failed to establish that her request to rent her unit was refused. Her testimony on this point was unclear, imprecise, and unpersuasive, and she provided no evidence of written refusal to allow her to rent her unit. By contrast, Respondent's witnesses testified unequivocally that they had not refused to allow Petitioner to rent her unit. They also credibly testified that Petitioner never had complained to them that she was refused permission to rent her unit because she is black, while white owners were allowed to rent theirs. Petitioner did not establish that she was qualified and able to rent out her unit. The uncontroverted evidence established that the Canongate Declaration of Condominium prohibits leasing or rental of units. Accordingly, Petitioner could not have been allowed to rent her unit, even if had she asked. Petitioner did not present any competent substantial evidence establishing that Respondent allows similarly situated white unit owners to rent their units, while refusing to allow Petitioner to rent hers. Petitioner's testimony that Lansdowne was a purchaser and that the occupancy agreement for Unit 210 actually constituted a rental arrangement was merely her personal opinion, unsupported by any competent substantial evidence. Respondent showed that Lansdowne is an institutional mortgagee that took title through foreclosure and, therefore, was not similarly situated to Petitioner and the other owners who had purchased their units. Moreover, Petitioner presented no evidence that Lansdowne was white. In sum, there is no competent substantial evidence in the record to support a finding of unlawful housing discrimination.
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 finding Canongate Condominium Apartments No. One, Inc., not liable for housing discrimination and awarding no relief. DONE AND ENTERED this 9th day of August, 2011, in Tallahassee, Leon County, Florida. S CATHY M. SELLERS 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 9th day of August, 2011.
The Issue The issue is whether the Petition for Relief should be dismissed for lack of jurisdiction.
Findings Of Fact Petitioner alleges in the petition that she was “the victim of racial discrimination and unfair business practice” in August 2007 when she went into Respondent’s store to purchase a cellular phone and one of Respondent’s employees became hostile and yelled racial epithets at her for no apparent reason.2/ The petition refers to Respondent as “a phone store.” The Executive Director of FCHR advised Petitioner in a letter dated October 8, 2008, that FCHR does not have jurisdiction to investigate her discrimination complaint. The letter explained the basis for this determination as follows: The information provided indicates that [Respondent] is strictly a retail store. It is not in the business of providing lodging, selling food for consumption on the premises, and is not a gasoline station or a place of exhibition or entertainment. Moreover, no covered establishment is located within [Respondent]’s actual physical boundaries. Therefore, [Respondent] is not a “public accommodation” as defined [in Section 760.02(11), Florida Statutes]. The petition was filed with FCHR on November 14, 2008.3/ The petition does not allege that Respondent is a “public accommodation” as defined by statute. Rather, as noted above, it characterizes Respondent as “a phone store.” The petition includes two attachments. The first attachment provides a narrative of the alleged discrimination. The second attachment includes excerpts from Sections 760.01 and 760.06, Florida Statutes, and what amounts to legal argument concerning the scope of FCHR’s duties under those statutes and Section 760.07, Florida Statutes. On December 2, 2008, the undersigned entered an Order to Show Cause because the petition did not appear to raise any disputed issues of material fact as to whether Respondent is a “public accommodation.”4/ The Order to Show Cause directed Petitioner to: show cause in writing as to why an Order Closing File or a Recommended Order of Dismissal should not be entered for the reasons set forth above and/or Petitioner shall file an amended petition that identifies the factual basis upon which she contends that Respondent is a “public accommodation” . . . . The Order to Show Cause advised Petitioner that: Failure . . . to allege disputed issues of fact as to whether Respondent is a “public accommodation” will result in the entry of an Order Closing File or a Recommended Order of Dismissal. Petitioner filed a response to the Order to Show Cause on December 16, 2008. The response does not include any factual allegations that would establish that Respondent is anything other than a retail store. The response simply includes what amounts to additional legal argument concerning the scope of FCHR’s jurisdiction. Neither the petition, nor the response to the Order to Show Cause raises factual allegations that, if proven, would establish that Respondent is a “public accommodation” as defined by statute. Moreover, based upon the petition’s characterization of Respondent as “a phone store,” there is no dispute concerning the determination in the Executive Director’s letter that Respondent “is strictly a retail store” and not a “public accommodation.” This is the only material issue as this case is presently postured.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that FCHR issue a final order dismissing the petition with prejudice DONE AND ENTERED this 22nd day of December, 2008, in Tallahassee, Leon County, Florida. S T. KENT WETHERELL, II 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 22nd day of December, 2008.
Findings Of Fact A transcript of the proceeding before the Administrative Law Judge was not filed with the Commission. We adopt the Administrative Law Judge’s findings of fact. FCHR Order No. 05-093 Page 2 Conclusions of Law We find the Administrative Law Judge’s application of the law to the facts to result in a correct disposition of the matter. We note that the Administrative Law Judge concluded, “Mr. Dill, on a single occasion, behaved in a prejudiced, rude and verbally abusive manner to Petitioner. Although he was named in the Petition for Relief, no valid address was provided for him. He has had no notice of this proceeding, and therefore, jurisdiction over him by the Division has not been acquired. To rule with regard to his rights at this time would be a denial of due process...the undersigned is not satisfied that, as a mere employee of the other Respondents, Mr. Dill could bear any liability to Petitioner under the facts of this case...” Recommended Order, {| 29. We note that the Commission has concluded that individuals can bear liability under the Fair Housing Act. See, Thorhill v. Admiral Farragut Condominium Association, et al., FCHR Order No. 01-018 (March 15, 2001); see, also, Sections 760.22(8) and 760.34(1), Florida Statutes (2005). Further, we note that in a case involving findings of the utterance of racially repugnant remarks, a Commission panel has stated, “We note the Hearing Officer’s finding that, ‘The racially repugnant comments of the Respondent, in the absence of any acts infringing on the tenants’ free use of the leasehold, are not a violation of Section 760.23, Florida Statutes.’... We hereby clarify that this finding does not mean that racially-repugnant comments can never amount to a violation of the Fair Housing Act.” Fletcher v. Hatfield, 18 F.A.L.R. 1590, at 1591 (FCHR 1995). Nevertheless, given the Administrative Law Judge’s finding that Mr. Dill had no notice of the proceeding, and the finding that “[bly firing Mr. Dill, Oak Pointe and Flournoy took steps to prevent further bad acts or bad words by him against Petitioner and others (Recommended Order, § 28),” and in the absence of a transcript of the proceeding before the Administrative Law Judge, we adopt the Administrative Law Judge’s conclusions of law, with these clarifying comments. 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 FCHR Order No. 05-093 Page 3 to appeal is found in Section 120.68, Florida Statutes, and in the Florida Rules of Appellate Procedure 9.110. DONE AND ORDERED this _9"__ day of September , 2005. FOR THE FLORIDA COMMISSION ON HUMAN RELATIONS: Commissioner Mario M. Valle, Panel Chairperson; Commissioner Dominique B. Saliba, M.D.; and Commissioner Billy Whitefox Stall Filed this_ 9" day of September 2005, in Tallahassee, Florida. Vit braferd Violet Crawford, Clerk Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, FL 32301 (850) 488-7082 Copies furnished to: Karla Maxwell Post Office Box 438 Monticello, FL 32345 Oakpointe Apartments and Flournoy Properties c/o Jack R. Lee Vice President, Flournoy Properties 2673 Mountain Brook Road Canton, GA 30114 Ella Jane P. Davis, Administrative Law Judge, DOAH James Mallue, Legal Advisor for Commission Panel 1 21S wom ernest FCHR Order No. 05-093 Page 4 THEREBY CERTIFY that a copy of the foregoing has been mailed to the above listed addressees this gt day of September , 2005. By: Vite Cumefrsl Clerk of the Commission Florida Commission on Human Relations
The Issue Whether Respondent is liable to Petitioner for public accommodation discrimination based on Petitioner’s handicap, in violation of the Florida Civil Rights Act of 1992.
Findings Of Fact Petitioner, Eric Wendell Holloman, is a 60-year-old man who resides in Jacksonville, Florida, and has been diagnosed with arthritis, diabetes, and high blood pressure. Respondent, Lee Wesley Restaurants, LLC, is the owner and operator of the Burger King restaurant located at 210 East State Street in Jacksonville, Florida. The corporate headquarters are located at 6817 Southpoint Parkway, Suite 2101, Jacksonville, Florida 32216. At all times relevant hereto, Respondent employed more than 15 employees. Petitioner has a driver’s license, but he asserted that he does not know how to drive a car. Petitioner’s primary method of transportation is his bicycle. Petitioner eats at a number of fast-food restaurants in the area of State Street in Jacksonville. Petitioner testified that he can’t cook because he doesn’t have a wife. Petitioner administers his own insulin to treat his diabetes and takes medication for high blood pressure. Petitioner uses a walking cane which was provided to him by the local Veteran’s Administration where he receives medical care. Petitioner’s cane is metal with four “legs” extending outward from the bottom of the upright metal post. Each leg is capped with a rubber “foot.” The cane will stand up on its own when not in use. Petitioner recounts the following events in support of his claim of public accommodation discrimination: On June 4, 2013, Petitioner entered the Burger King in question, ordered a meal with a drink, and took it to a table in the dining area where he proceeded to eat. At some point while he was dining, Petitioner accidentally knocked over his drink with his cane, which he testified was on the table with his food. Petitioner testified that no employee of the restaurant spoke to Petitioner about the spill, offered to help him clean it up, or otherwise acknowledged that he spilled his drink. Petitioner did not clean up the spill either. Petitioner helped himself to a drink refill and left the restaurant without incident. The following day, June 5, 2013, he entered the same restaurant and attempted to order a meal. According to Petitioner, he was told by an employee that he must leave and he would not be served at that restaurant. Petitioner identified Randall Gibson, the man seated with Respondent’s Qualified Representative at the final hearing, as the employee that asked him to leave the restaurant on June 5, 2013. Petitioner exited the restaurant via the rear door, which he testified was close to the flag pole where he had parked his bicycle. According to Petitioner, two Burger King employees followed him outside and threatened him with “bodily harm” if he returned to the restaurant. Petitioner was clearly upset with Mr. Gibson and other employees of the Burger King. Petitioner explained that on June 4, 2013, when Petitioner ordered his food at the counter, Mr. Gibson and a female employee were engaged in behavior he found offensive. Specifically, Petitioner testified that Mr. Gibson was “up behind” the female employee engaging in hip and pelvic gyrations. Petitioner twice stood up from his chair and demonstrated the hip and pelvic gyrations to the undersigned. Petitioner testified that he has at least 50 cases pending in state and federal courts alleging civil rights violations. The final hearing was one and one-half hours in duration. Only a small portion of the hearing time was devoted to presentation of evidence relevant to Petitioner’s claim of discrimination based on a disability. During his testimony, Petitioner often strayed into lengthy tirades against racial discrimination, quoting from the United States Constitution, as well as the writings of Dr. Martin Luther King, Jr., and other leaders of the Civil Rights Movement. The undersigned had to frequently reign in Petitioner’s testimony to relevant events.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Florida Commission on Human Relations issue a final order dismissing the Petition for Relief filed by Eric Wendell Holloman in FCHR No. 2013-02160. DONE AND ENTERED this 28th day of July, 2014, in Tallahassee, Leon County, Florida. S SUZANNE VAN WYK 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 28th day of July, 2014.
