The Issue Whether Respondent discriminated against Petitioner by evicting him from his apartment as alleged in the Petition for Relief filed by Petitioner.
Findings Of Fact Based on the oral and documentary evidence presented at the final hearing, the following findings of fact are made: Petitioner is a Cuban. Prior to his eviction on or about June 29, 2005, Petitioner occupied an apartment located at 1332 20th Street, Orlando, Florida 32805. Respondent is owner-operator of the dwelling house located at 1332 20th Street, Orlando, Florida 32805, and had rented to Petitioner for six or seven years. Respondent instituted an eviction proceeding in Orange County, Florida, County Court for Petitioner's failure to pay weekly rent. Petitioner was evicted by Court Order. At the time of his eviction, Petitioner owed Respondent $780.00 on an apartment that rented for between $70.00 and $110.00 per week. There was insufficient evidence to establish that Petitioner was evicted for any reason other than the fact that he had not paid his rent. Other than Petitioner's rambling allegation that Respondent had told him, "[Y]ou are a no good Cuban, go back to Cuba," or words to that effect, there was no evidence that Petitioner was evicted because of his national origin. In fact, Petitioner's witness, Fausto Alavarado, a Puerto Rican gentleman, who had rented from Respondent a similarly long time, had not heard such comments and testified that Respondent "never treated him inappropriately." Respondent and other witnesses denied discriminatory statements and indicated that Respondent had evicted others for non-payment of rent. Respondent and these witnesses are credible.
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. DONE AND ENTERED this 14th day of March, 2006, in Tallahassee, Leon County, Florida. S JEFF B. CLARK 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 14th day of March, 2006. COPIES FURNISHED: Denise Crawford, Agency Clerk Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301 Tom Peters 138 North Hart Boulevard Orlando, Florida 32835 Alejo Fernandez 2000 South Orange Blossom Trail Orlando, Florida 32805 Cecil Howard, General Counsel Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301
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 Whether Respondent committed a discriminatory housing practice by denying Petitioners the opportunity to rent or purchase and ordering them to vacate their unit immediately and, if so, what relief should the Florida Commission on Human Relations provide Petitioners.
Findings Of Fact Because no evidence was offered at the final hearing held in the instant case, no findings of fact are made.
Recommendation Based upon the foregoing, it is hereby RECOMMENDED that the Commission issue a Final Order dismissing Petitioners' Petition. DONE AND ENTERED this 29th day of July, 2005, in Tallahassee, Leon County, Florida. S STUART M. LERNER 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 29th day of July, 2005. COPIES FURNISHED: Denise Crawford, Agency Clerk Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301 Cecil Howard, General Counsel Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301 Remberto Gomez Marta Gonzalez 15220 Southwest 300th Street, Lot 534 Miami, Florida 33033 Robert E. Paige, Esquire 9500 South Dadeland Boulevard, Suite 550 Miami, Florida 33156
The Issue Whether G.G. & W., LLC (Respondent) unlawfully engaged in discriminatory housing practices against Harriet E. Harris (Petitioner) on the basis of Petitioner’s race.
Findings Of Fact Petitioner is an African American female. Petitioner’s Complaint is summarized in paragraph 7 of the typed Housing Discrimination Complaint form as follows: Complainant Harriet Harris identifies as African American/Black. Therefore, Complainant belongs to a class of persons whom the Fair Housing Act (“the Act”) protects from unlawful discrimination by virtue of race. The subject property is a single family home within “99 Oaks Mobile Home Park,” located at 8521 Fowler Avenue, Lot 18, Pensacola FL 32534; owned by Respondent G, G,. & W, LLC. Complainant identified Respondent Chris Garret as the property manager associated with the subject property. Complainant alleged that she resided with Witness Rickey Wilder at 99 Oaks Mobile Home Park, which is owned and managed by Respondents. Complainant alleged that Respondent Garret told witness Wilder that, “he (Respondent) could not believe that he (Wilder) was living with a Black woman.” Complainant alleged that she later made arrangements with Respondents to rent a vacant mobile home at another location within the community, but was later told that the subject property had already been rented. Complainant alleged that she heard Respondent Garret telling another resident in the community that, “he (Respondent) would not rent to a Black woman, because they do not pay their rent.” Complainant explained that based on Respondent Garret's statements, she believes that Respondents denied her the opportunity to rent because of her race. As such, Complainant believes that Respondents subjected her to discriminatory terms and conditions and refused to rent to her in a discriminatory manner based on race. At the final hearing, it was revealed that the person identified as “Chris Garret” in the Complaint is actually Gary S. Crisp, who is the manager of Respondent’s mobile home park and who appeared at the final hearing on behalf of Respondent. Respondent’s mobile home park is known as “99 Oaks Mobile Home Park.” Petitioner’s testimony at the final hearing was somewhat consistent with the allegations of her Complaint as summarized above. Petitioner’s testimony, however, was not credible. While the one witness called by Petitioner verified that Petitioner had a telephone conversation with Mr. Crisp in June of 2014, that testimony did not bolster the credibility of Petitioner’s allegations. Mr. Crisp’s testimony explained that his contact with Petitioner was limited to a few occasions in 2014. He further testified that he did not refuse to rent a mobile home to Petitioner and that he did not otherwise discriminate against Petitioner. Mr. Crisp’s testimony was credible. There was no credible evidence presented that would support even a prima facie case against Respondent for engaging in a discriminatory housing practice. Petitioner lived with Rickey Wilder at 99 Oaks Mobile Home Park during the summer and early fall of 2014. During that time, Mr. Wilder was living in one of Respondent’s mobile homes as a benefit of Mr. Wilder’s employment with one of Respondent’s other companies. In October 2014, Mr. Wilder was evicted from 99 Oaks Mobile Home Park. There has been no contact between Petitioner and Respondent, or between Petitioner and Mr. Crisp, since that time. Petitioner did not file her Complaint until more than one year from any alleged discriminatory housing practice. Therefore, Petitioner’s Complaint is untimely. This finding is consistent with the Commission’s Determination dated April 1, 2016, where, in the second paragraph under section III, the Commission found: The actual most recent date of harm was August 15, 2014, when Complainant was allegedly told that the unit was no longer available; this was confirmed in an interview with Complainant on March 30, 2016. Complainant did not sign her complaint until January 23, 2016 and it was not received by the Florida Commission on Human Relations until January 28, 2016. In order for a complaint to be timely filed, it must be filed within one year of the last date of harm.
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 Complaint and Petition for Relief. DONE AND ENTERED the 14th day of October, 2016, in Tallahassee, Leon County, Florida. S JAMES H. PETERSON, 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 14th day of October, 2016.
