The Issue Whether this case should be dismissed based on Petitioners’ failure to appear at the scheduled telephonic final hearing.
Findings Of Fact Upon receipt of the Petitions for Relief at the Division, Initial Orders were issued on October 24, 2012, requiring Petitioners to coordinate a joint response to provide certain information within seven days or to file a unilateral response if a joint response was not possible. Neither Petitioners nor Respondents responded to the Initial Order in either case. Case I was initially set for final hearing on December 17, 2012, by video teleconference at sites in Pensacola and Tallahassee, Florida. Case II was initially set for final hearing on December 27, 2012, in Tallahassee, Florida. Prior to consolidation of the cases, Respondent Hamilton requested a continuance of the final hearing scheduled in Case I. Hamilton’s correspondence, which was taken as a motion, represented that Hamilton had attempted to contact Petitioners to determine whether they would agree to a continuance, that Hamilton had left a voice message with Petitioners, and that Petitioners had not responded. At the direction of the undersigned, the Division also attempted to contact Petitioners to determine their position on the requested continuance. Division personnel also left voice messages with Petitioners. On December 10, 2012, Michael Edwards contacted Division staff, identified himself as Petitioners’ son, stated he had received the messages, and represented that Petitioners had no objection to a continuance. Further, Mr. Edwards explained that a continuation would be needed because Myrna Edwards was recovering from major surgery and McArthur Edwards was suffering with complications from Post Traumatic Stress Disorder. Having received confirmation that Petitioners did not oppose continuance, and would likely have been unable to attend the final hearing as scheduled, the undersigned entered an Order Canceling Hearing and Placing Case in Abeyance on December 10, 2012. The Order required Petitioners to confer with Respondents’ counsel and advise as to the status of the matter no later than January 30, 2013. Further, Petitioners were required to include in the status report mutually-agreeable dates for scheduling the final hearing if Petitioners intended to pursue the matter. The cases were consolidated on December 17, 2012, thus the Order was binding in both cases. Neither the original Notice of Hearing nor the Order Canceling Hearing and Placing Case in Abeyance mailed to Petitioners was returned as “undeliverable.” On January 30, 2013, Respondent Bristol filed a status report representing that Bristol had not been contacted by the Petitioners to coordinate the status report as directed in the Order. Further, Bristol represented that it had attempted to reach Petitioners by phone the previous day and had left a voice message, but had received no return call from Petitioners. Despite the fact that Petitioners did not comply with the Order, the undersigned requested Division personnel to contact Petitioners to determine whether Petitioners intended to pursue the matter. Division staff called Petitioners’ residence and left messages for Petitioners to contact the Division regarding this case. The Division received no return call. In an abundance of caution, the undersigned scheduled the case for telephonic final hearing on February 28, 2013. Telephonic hearing was chosen to afford Petitioners, now residing out of state, every opportunity to be heard on their complaints. The undersigned also issued an Order of Pre-hearing Instructions (Order) requiring the parties to confer no later than seven days prior to the final hearing to determine whether the matter could be resolved amicably and to exchange witness lists and copies of proposed exhibits. Neither the Notice of Telephonic Hearing nor the Order mailed to Petitioners was returned “undeliverable.” On February 20, 2013, Respondent Hamic filed its witness list and served proposed exhibits on all other parties. On February 21, 2013, the same Respondents provided copies of proposed exhibits to the undersigned. On February 21, 2013, Respondent Bristol filed its witness and exhibit lists and provided copies of proposed exhibits to the undersigned. Petitioners filed neither a witness list nor an exhibit list and did not provide the undersigned with any proposed exhibits. On February 21, 2013, Respondent Hamic filed a Notice of Attempt to Comply in response to the undersigned’s Order. The Notice documents Respondents’ unsuccessful attempts to reach Petitioners to confer and exchange witness lists and proposed exhibits. On February 22, 2013, Respondent Hamic filed a Motion to Dismiss, or, Alternatively, to Close the Case. The Motion represented that Petitioners had not contacted Respondents as required by the Order to confer and exchange witness lists and exhibits. The Motion was denied. The final hearing commenced as scheduled, via telephone, on February 28, 2013. Respondents Hamic and Bristol entered appearances. Petitioners did not appear. The undersigned allowed 20 minutes from the noticed hearing time, 9:30 a.m., for Petitioners to make an appearance. None was made. Respondent Hamic offered Exhibits 1 through 41 into evidence, which were received without objection. Respondent Bristol offered Exhibits B-1 through B-8 into evidence, which were received without objection. No witnesses were called. The proceedings closed at approximately 10:00 a.m. No transcript of the proceedings was made.
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 Petitioners McArthur and Myrna Edwards’ Petition for Relief. DONE AND ENTERED this 6th day of March, 2013, 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 6th day of March, 2013.
The Issue The issue for determination is whether Respondent discriminated against Petitioners in violation of the Fair Housing Act by failing to release them from a 20-year affordable housing deed restriction.
Findings Of Fact No dispute exists that Mr. Discher is handicapped, as indicated in his medical records, for purposes of the Fair Housing Act. John and Ruth Discher own the property located at 22916 Bluegill Lane, Cudjoe Key, Florida, with the following legal description: Lot 32, Block 10, Cudjoe Ocean Shores, as recorded in Plat Book 6, Page 76, of the Public Records of Monroe County, Florida. At the time of hearing, the Dischers did not live in the residential home on the property but rented it. No dispute exists that Monroe County is a political subdivision of the State of Florida having regulatory jurisdiction over the Dischers’ property. Since around 1979, Monroe County has been designated as an Area of Critical State Concern (ACSC). As an ACSC, increased State oversight of and involvement in local planning decisions is required by the Governor and Cabinet, sitting as the Florida Administrative Commission, and the Department of Community Affairs (DCA), as the State land planning agency. The Florida Legislature imposed a series of “principles for guiding development” in the Florid Keys. § 380.0552(7), Fla. Stat. One of the principles for guiding development imposed by the State is “to make available adequate affordable housing for all sectors of the population of the Florida Keys.” § 380.0552(7)(j), Fla. Stat. In 1992, the Rate of Growth Ordinance (ROGO) was adopted by the Florida Administrative Commission on behalf of Monroe County in order to limit growth in the Keys. The purpose and intent of ROGO was to facilitate implementation of goals, objective and policies set forth in Monroe County’s comprehensive plan relating to many areas of concern, including the protection of the environment (including endangered species and species on the concerned list), residents, and visitors; hurricane evacuation; road improvement; property and property development. ROGO consists of a competitive point system, based on a complex scoring system, and those who obtain the top points receive allocations. Point values are accessed on and using a number of criteria. Under the ROGO system, property owners, who wish to build houses on vacant land, must compete to receive a limited number of residential allocations. The yearly number of building allocations is limited by state administrative rule. Property owners seeking building allocations compete against each other in order to receive one of the limited number of allocations. In 1996, Monroe County’s comprehensive plan was effective. Prior to 1996, Monroe County received very few applicants for ROGO; however, after the comprehensive plan became effective the competition under ROGO increased tremendously. Developers and persons with high economic means became the majority of those able to receive points in order to obtain the majority of the limited allocations. With the increase in competition, affordable housing became a concern. The ultimate goal of Monroe County under the ACSC program is for it (Monroe County) to get into the position of being able to protect the environmental resources, provide for hurricane evacuation, and do everything that is required in Chapter 380, Florida Statutes, and be removed or “de-designated” as an ACSC. Applicable to the instant matter, affordable housing was defined in Monroe County Code, Land Development Regulations, Section 9.5-4, which provided in pertinent part: (A-5) Affordable housing means housing which: * * * With respect to a housing unit to be occupied by moderate-income persons, that monthly rents, or monthly mortgage payments, including taxes and insurance, do not exceed thirty (30) percent of that amount which represents one hundred twenty (120) percent of the median adjusted gross annual income for households within Monroe County, divided by 12 for a period of twenty (20) years. The dwelling unit must also meet all applicable requirements of the United States Department of Housing and Urban Development minimum property standards as to room sizes, fixtures, landscaping and building materials, when not in conflict with applicable laws of Monroe County. For the purposes of this section, “adjusted gross income” means all wages, assets, regular cash or noncash contributions or gifts from persons outside the household, and such other resources and benefits as may be determined to be income by rule of the department of community affairs, adjusted for family size, less deductions allowable under section 62 of the Internal Revenue code; and In which, if permitted by law, preference is given to local contractors. The threshold for a household’s income to qualify for affordable housing was set by this regulation. Further, Monroe County Code, Land Development Regulations, Section 9.5-266, applicable to the instant matter, provided in pertinent part: (a) Affordable Housing: (1) Notwithstanding the density limitation in section 9.5-262, the owner of a parcel of land shall be entitled to develop affordable housing as defined in section 9.5-4(A-5). . . . * * * Before any certificate of occupancy may be issued for any structure, portion or phase of a project subject to this section, restrictive covenant(s), limiting the required number of dwelling units to households meeting the income criteria described in paragraph (4)(a)-(f) of this subsection (a) running in favor of Monroe County and enforceable by the county, shall be filed in the official records of Monroe County. The covenant(s) shall be effective for twenty (20) years but shall not commence running until a certificate of occupancy has been issued by the building official for the dwelling unit or units to which the covenant or covenants apply. In order for the owner of a parcel of land to be entitled to the incentives outlined in this section, the owner must ensure that: a. The use of the dwelling is restricted to households that derive at least seventy (70) percent of their household income from gainful employment in Monroe County; and * * * e. The use of the dwelling is restricted for a period of at least twenty (20) years to households with an income no greater than one hundred twenty (120) percent of the median household income for Monroe County . . . . This regulation sets the limitation for covenants at 20 years, with the time period beginning to run at the issuance of the certificate of occupancy by the building department. Under the ROGO plan, a person was awarded additional points if the person agreed to the imposition of an affordable housing deed restriction. Being awarded the additional points meant that a person would receive an allocation in a shorter period of time. At that time, Mrs. Discher was an employee of the Monroe County Sheriffs Department. The Dischers completed a ROGO application. They wanted to be awarded additional points to reduce the period of time for them to receive an allocation for the construction of their home. The Dischers completed an Annual Affidavit of Qualification for Affordable Housing (Residential Dwelling Unit). The Affidavit provided, among other things, an acknowledgement by the Dischers that the Affidavit was a waiver of payment of the required impact fees; that Mrs. Discher was an employee of the Monroe County Sheriff’s Department and at least 70 percent of the household’s income was derived from that employment; that the single family home was restricted for 20 years to household’s with adjusted gross income of a certain amount; that the Dischers would file an approved deed restriction indicating “that, either (1) the deferred impact fees shall become due and owing if the unit no longer qualifies as Affordable Housing, or, (2) that the dwelling unit shall be restricted by the affordable housing criteria for twenty years commencing from the issuance of the certificate of occupancy”; and that the Dischers understood that, if affordable housing was used to gain points in the allocation system, the single-family home would be restricted by the covenants for 20 years. Mr. Discher prepared an affordable housing deed restriction for a residential dwelling unit in 1997. The Affordable Housing Deed Restriction, prepared by Mr. Discher, was executed by the Dischers on July 2, 1997. Provision II of the Affordable Housing Deed Restriction provided, among other things, an acknowledgement that “fair share impact fees” shall be paid by any person prior to receiving a building permit for any new land development. Provision III of the Affordable Housing Deed Restriction provided, among other things, an acknowledgement by the Dischers that they were being exempt from payment of their fair share impact fees for the single family home to be constructed by them on their property. Provision IV of the Affordable Housing Deed Restriction provided, among other things, that the sale, transfer or rental of their single family home shall only be to persons who qualify under Monroe County’s current affordable housing eligibility requirements as established and amended from time to time. Provision V of the Affordable Housing Deed Restriction provides, among other things, that the covenants shall be effective for 20 years and shall begin to run at the issuance of certificate of occupancy by the building department. Provision VI of the Affordable Housing Deed Restriction provides, among other things, that the Dischers used the affordable housing program to gain additional points in the permit allocation system. The Affordable Housing Deed Restriction contains no provision for removal of the affordable housing deed restriction. The Dischers were given additional points. Their wait-time for an allocation was reduced, and they received an allocation to build their single family home. The Dischers attempted to pay impact fees on or about October 2, 1997. They were informed by the building department that they were not required to pay the impact fees and their check for the impact fees was returned to them. They obtained a mortgage loan and completed their single family home. A certificate of occupancy was issued on June 30, 1999. Mr. Discher testified at hearing that the only reason that he and his wife applied for the ROGO program and that he prepared and he and his wife executed the Affordable Housing Deed Restriction was because an employee of the Monroe County Building Department informed him that they (the Dischers) could be released from the affordable housing deed restriction simply by paying the fair share impact fee at any time. Before ROGO, Monroe County had an affordable housing ordinance that permitted the removal from affordable housing by paying the impact fees. A household benefited by not initially paying impact fees; but, the household could later decide to pay the impact fees, come forward and pay the impact fees, and be removed from affordable housing. However, after ROGO was adopted, the option to later pay the impact fees and be removed from affordable housing no longer existed. ROGO contained no mechanism for a person to pay the impact fees and be removed from affordable housing before the time limit expired or to be removed from affordable housing before the time limit expired. At hearing, the building official was identified but did not testify. Insufficient evidence was presented to ascertain whether the building official had the apparent authority to allow the Dischers to pay the impact fees and remove them from the affordable housing restrictions prior to the 20 years. Consequently, the evidence is insufficient to demonstrate that the Dischers reasonably relied upon the building official’s representation to support a release from the affordable housing restrictions. No copy of any release from the affordable housing deed restrictions recorded in the official records of Monroe County was presented at hearing. The evidence is insufficient to demonstrate that Monroe County had released any persons from affordable housing deed restrictions. In 2005, the Dischers made a request to Monroe County for removal of the affordable housing deed restrictions. The Dischers were notified by Monroe County that no provision existed in the Monroe County Code or Monroe County’s Comprehensive Plan for removal of the affordable deed restrictions prior the effective date of their expiration or termination and that its Comprehensive Plan provided that affordable housing projects shall be required to maintain the project as affordable housing on a long-term basis in accordance with deed restrictions. Furthermore, the Dischers were notified by Monroe County that prospective occupant(s) of the affordable housing must meet the qualifications for affordable housing. The Dischers attempted to pay the impact fees in order to be released from the affordable housing deed restrictions. They attempted to pay the impact fees on at least two occasions— March 20, 2006, and February 20, 2007. On each occasion, their payment was refused by Monroe County. Monroe County determined that payment of the impact fees would not release the Dischers from the affordable housing deed restrictions, and, therefore, refused and returned the Dischers’ payments. Moreover, no provision in the Monroe County Code permitted the removal of the affordable housing deed restrictions. Monroe County admits that, under the guidelines in place when the Dischers obtained affordable housing, the Dischers are not restricted to a selling or renting price for their single family home. However, they are restricted as to the income of prospective buyer(s) or renter(s), i.e., the prospective buyer(s) or renter(s) must meet the income guidelines set forth in the Monroe County Code. Prior to and during the entire process involving the ROGO program, Mr. Discher was disabled. A copy of a letter written by the Dischers in September 1997, in which Mr. Discher indicated his disability, was forwarded to Monroe County. After the completion of the Dischers’ home, Mr. Discher’s health deteriorated. At hearing, Mr. Discher admitted that, prior to filing the discriminatory fair housing complaint, he had never mentioned his disability to Monroe County in relation to having the affordable housing deed restrictions removed. Moreover, at hearing, he admitted that Monroe County had not discriminated against him on the basis of his disability by refusing to remove the affordable housing deed restrictions. Mr. Discher’s physicians recommended to him that he move away from the Keys to improve his health. Furthermore, eventually, Mr. Discher needed to be closer to the locations where he was receiving his medical treatments, which were outside of the Keys. The Dischers finally moved away from the Keys to be closer to the locations where Mr. Discher was receiving his medical treatments. They rented their single-family home in Monroe County. Mrs. Discher was forced to return to work. If the Dischers are released from the affordable housing deed restrictions or if the affordable housing deed restrictions are removed, the Dischers would sell the single-family home. A Senior Planner with DCA, Ada Mayte Santamaria, testified at hearing as an expert in community planning. Ms. Santamaria testified that neither Monroe County’s Comprehensive Plan nor its Land Development Regulations allow for the removal of the Dischers’ affordable housing deed restrictions; and that, if the affordable housing deed restrictions were released, DCA would probably issue a notice of violation against Monroe County for not properly implementing its Comprehensive Plan and Land Development Regulations and probably recommend to the Administration Commission that Monroe County’s allocations for the year following such release be reduced because of the failure of Monroe County to enforce and implement its Comprehensive Plan and Land Development Regulations. Ms. Santamaria further testified that Monroe County is allowed to submit two proposed comprehensive plan amendments per year; and that, because of the process involved in proposed amendments, including review by DCA, a proposed amendment by Monroe County to release affordable housing deed restrictions would take a minimum of six months and could take up to a year and a half to complete the process. At a Monroe County Commission meeting held on January 17, 2007, the Dischers requested to be released from their affordable housing deed restrictions based on hardship due to Mr. Discher’s medical conditions. At the meeting, copy of his medical documents, identifying his disability, was distributed to the Commissioners. The Commissioners denied the Dischers’ request. However, the Commissioners also decided that they wanted to address extreme hardship situations and unanimously voted to direct its staff to begin work on an “exit strategy” for affordable housing deed restrictions on the basis of extreme hardship situations. The Commission staff represented at the meeting that such a process would take at least three months and indicated that Monroe County’s Comprehensive Plan may have to be amended in conjunction with what the Commission wanted. At the time of the final hearing in the instant matter, approximately a year and a half later, no “exit strategy” had been brought before the Commission. No evidence was presented that the Commission had decided that it no longer wanted to develop an “exit strategy.” No evidence was presented as to why the process had not begun. The Dischers are convinced that Monroe County wants to take their property. The evidence is insufficient to demonstrate that Monroe County wants to take the Dischers’ property.
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 that Monroe County Commissioners did not commit a discriminating housing practice against John and Ruth Discher in violation of the Fair Housing Act by failing to release or remove the affordable housing deed restrictions. DONE AND ENTERED this 31st day of December, 2008, in Tallahassee, Leon County, Florida. ERROL H. POWELL Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 31st day of December, 2008.
The Issue The issue in this supplemental proceeding is whether Respondents Soo Y. and Myung S. Chung, separately or together, retaliated against Petitioners as a result of Petitioners' exercise, or attempted exercise, of a protected housing right.
Findings Of Fact From August 2012 through January 2015, Petitioners Verdell Carter ("V. Carter") and her daughter Courtney Carter ("C. Carter"), who are African-Americans, rented and occupied a residential unit in Cité Condominiums ("Cité") in Miami, Florida, which served as their principal residence. At all relevant times, the owners of this unit were Soo Y. Chung and Myung S. Chung (collectively, the "Lessor"). Respondent Cité Condominium Association, Inc. (the "Association"), oversees the operation of the property. The Association's Board of Directors (the "Board") is its governing body. At all relevant times, a third-party property management company, FirstService Residential Florida, Inc. ("Management"), performed on-site management services at Cité. V. Carter and the Lessor entered into a lease agreement concerning Unit No. 3206 at Cité in July 2012. Pursuant to the applicable declaration of condominium, this lease (like all such leases of units at Cité) was subject to Board approval as a condition precedent of V. Carter's taking possession of the leased premises. To obtain Board approval, V. Carter and the Lessor were required (as were all persons entering into such leases) to execute an Addendum to Lease, which made the Association a third-party beneficiary of the lease and, among other things, bound the lessee to all of the rules and conditions applicable to unit owners. There is some dispute concerning the term of the subject lease. It commenced on or around August 15, 2012——that much is certain. The Carters assert that the lease was for three years, until August 15, 2015. The Association contends that the lease had a one-year term with options to renew annually for up to two additional years. The Association maintains——and acted on the belief——that it had the right to veto any attempt to renew the lease. This particular dispute is immaterial, however, for whether or not the Association could veto a renewal attempt, it clearly had the right to dispossess the Carters if they disobeyed the Association's rules. The Addendum to Lease provides, in pertinent part, as follows: Lessee agrees to abide by this Addendum, the [provisions of the Association's Declaration, By-Laws, Articles of Incorporation, Rules and Regulations, as same may be amended from time to time,] and all applicable laws, ordinances and regulations. If Lessee fails to comply with [any of these], Lessor shall promptly commence action to evict Lessee. If Lessor fails to promptly commence action to evict Lessee, Lessor hereby authorizes the Association . . . to commence eviction proceedings [on Lessor's behalf.] Unfortunately for everyone concerned, the Carters repeatedly violated the rules. Early in the lease term, V. Carter brought her dog into the unit without first registering the pet with the Association as required. After Management became aware in November 2012 that V. Carter had an unregistered pet on the premises, it provided her the form for curing the violation, but she failed timely to return the paperwork. As a result, on November 26, 2012, the Association assessed a charge of $56 against the Lessor's account.3/ Meanwhile, C. Carter moved into Unit No. 3206 without informing the Association, which gave rise to a series of violations. Although C. Carter initially occupied the premises as a guest, before long she decided to remain as a resident. In time, Management noticed that C. Carter's stay had exceeded 30 days, making her an "unregistered visitor." Additionally, C. Carter parked her car——which was an "unregistered vehicle"—— in spaces reserved for Cité's owners and tenants (both residential and commercial). This resulted in several $56 charges being posted to the Lessor's account in November 2012 for unauthorized parking and for parking an unregistered vehicle in an unauthorized area. In January 2013, the Lessor was again assessed a $56 charge because C. Carter had parked her unregistered vehicle in an unauthorized area, along with a separate $56 charge for the presence an unregistered visitor (namely C. Carter). By letter dated January 23, 2013, the Association notified the Lessor that it intended to take steps to terminate the lease between the Lessor and V. Carter due to the Carters' failure to comply with the Association's rules. Before that could happen, however, V. Carter registered her dog, C. Carter became a registered tenant, and C. Carter rented an additional parking space from the Association for her car. The Carters assured the Lessor and the Association that, in the future, they would comply with all of the Association's rules. In due course, the Board agreed to acquiesce to the continuation of the lease, and——with the exception of a few relatively minor issues too trivial to recount——relations between the Carters, Management, the Association, and the Lessor calmed down to a reasonably peaceful state of affairs. This détente ended on Sunday, June 22, 2014. On or around that date, the commercial tenant directly below Unit No. 3206 experienced damage from water intrusion at the ceiling. Minor dampness was observed on the carpet outside the front of Unit No. 3206. Management contacted V. Carter and notified her that maintenance personnel needed to enter her unit immediately to locate the source of the leak, which there were grounds to believe was inside. Management's authority to enter the unit was clear and is not disputed. The Addendum to Lease provides: The Association and/or its authorized agent(s) shall have the irrevocable right to have access to the Unit as may be necessary for inspection, maintenance, repair or replacement of any Common Elements accessible therefrom, or for making emergency repairs necessary to prevent damages to the Common Elements or other units. Claiming that she was in the process of showering and in a state of partial undress, V. Carter refused to admit the maintenance men that Sunday morning. They left, so that V. Carter could finish getting ready. When the repair crew returned a short while later, however, V. Carter turned them away again, explaining that she was leaving for church. First thing the next day, June 23, Management notified the Lessor that V. Carter had refused to let maintenance personnel into the unit so that they could identify and repair the source of a suspected leak. The Lessor authorized Management to access the unit that morning. V. Carter, however, again refused to allow the maintenance men to enter the unit. This obstinacy violated the Association's rules and resulted in the imposition of charges totaling $126, for which the Association billed the Lessor. Eventually, Management gained access to the unit and fixed the problem in the bathroom which had caused the leak. Because V. Carter had refused access to the unit in violation of the Association's rules, the Association notified the Lessor and the Carters that it would not approve an extension of the lease beyond August 15, 2014. On June 25, 2014, V. Carter requested a meeting with the Board to discuss this decision. Her request was denied. By letter dated July 11, 2014, the Lessor notified the Carters that the lease would terminate on August 15, 2014. The Lessor also demanded payment of past due rent for April ($500) and July ($1,500) plus reimbursement of a returned-check charge of $30 that the Lessors had incurred when the Carters' June rent check bounced. A few weeks later, a heavy rainstorm, which took place late at night on Sunday, August 3, 2014, and during the early morning hours of August 4, caused Unit No. 3206 to flood. Other units flooded as well, causing an emergency situation for Management, which by all accounts responded promptly. The Carters claim to have been out of town at the time of this incident. Regardless, V. Carter acknowledges that Management contacted her by phone and requested permission——which she gave——to enter her unit to take remedial measures. Maintenance personnel entered the unit and extracted the water. In doing so, they discovered that the patio drain had been plugged with a flower pot, which likely had allowed water to pool on the patio and ultimately flood into the unit through the patio door. The Carters allege that the maintenance men discriminated against them on the basis or race or color by entering other units before taking care of Unit No. 3206. There is no persuasive evidence, however, of any sort of delay (discriminatory or otherwise) on the part of the maintenance crew, which as mentioned responded quickly and reasonably to an overnight situation affecting multiple units in addition to the Carters'. The Carters did not vacate Unit No. 3206 on or before August 15, 2014. As it happened, however, there was another rainstorm on that day which caused further flooding in the unit. C. Carter was present at the time, and she contacted Management, which addressed the immediate problem. After that, a months-long struggle ensued, during which Management and the Lessor attempted to arrange for repairs to be made to fix the damages that had resulted from the August floods and the earlier, June leak, and the Carters, while demanding that the repairs be made, refused access to repairmen and generally failed reasonably to cooperate. Around this time, as well, the Carters——who in the Lessor's eyes had become holdover tenants as of August 15——stopped paying rent to the Lessor. On August 19, 2014, the Lessor gave the Carters a statutory three-day notice to pay rent or vacate the premises on or before August 22, 2014. The Carters did not leave. On September 12, 2014, the Lessor gave the Carters another statutory three-day notice. The Carters, however, did not quit the premises. On or around September 19, 2014, the Lessor commenced an action for eviction in the Miami-Dade County Court. Several months later, the county court entered a judgment of eviction against the Carters, and, on January 20, 2015, a writ of possession was issued. The Carters moved out of Unit No. 3206 on January 23, 2015, but not without incident. Association rules prohibit the use of the stairways when moving furniture and other household goods. Residents who are moving in or out of Cité must reserve (and pay a fee for the use of) the freight elevator and loading dock. The Carters had not arranged to use the freight elevator, preferring instead to use the stairs. Management saw this violation in progress and sought to stop the Carters from moving their belongings down the stairs. The Carters would not be deterred. Management called the police, an officer arrived, and the unauthorized transport of goods through the stairwell was arrested. Meantime, V. Carter's dog urinated on the hallway carpet and on the wall. As a result of this memorable departure, the Association imposed charges against the Lessor's account totaling $950. V. Carter claims to suffer from post-traumatic stress disorder, which she characterizes as a "non-visible" disability. C. Carter claims to suffer from attention deficit hyperactivity disorder, which she characterizes as a "non- visible" disability. Determinations of Ultimate Fact There is no persuasive evidence that any of the Association's decisions concerning, or actions affecting, the Carters, or either of them, directly or indirectly, were motivated in any way by discriminatory animus directed toward V. Carter or C. Carter. There is no persuasive evidence that the Association refused, upon request, to make a reasonable accommodation for either V. Carter or C. Carter. There is likewise no persuasive evidence that any of the Lessor's actions, including bringing suit to evict the Carters, were motivated by discriminatory animus or were taken to retaliate against the Carters for their exercise of a protected housing right. In sum, there is no competent, persuasive evidence in the record, direct or circumstantial, upon which a finding of any sort of unlawful housing discrimination or retaliation could be made. Ultimately, therefore, it is determined that the Association did not commit any prohibited act.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the FCHR enter a final order finding the Association not liable for housing discrimination and awarding the Carters no relief. DONE AND ENTERED this 27th day of April, 2015, in Tallahassee, Leon County, Florida. S JOHN G. VAN LANINGHAM Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 27th day of April, 2015.
