The Issue The issue to be resolved is whether Petitioners were the victims of a discriminatory housing practice, by allegedly being denied the opportunity to renew the lease of an apartment from Respondents, based upon their race.
Findings Of Fact Petitioners Vernon and Glenda Shaw are husband and wife. They and their children are African-Americans. Respondent EPI Townsend, LLC owns an apartment community located in Gainesville, Florida, known as Uptown Village. Respondent Epoch Management, Inc. (Epoch) manages Uptown Village on behalf of EPI Townsend, LLC. On June 25, 2010, Ms. Shaw submitted an application to lease an apartment at Uptown Village. She listed herself, her husband, and her two children as the proposed occupants. Ms. Shaw noted the family had a dog. She provided her email address on the application, as requested. At the time of application, prospective tenants of Uptown Village are given a document entitled ?Epoch Management, Inc. Rental Application Approval Criteria.? It contains an ?Equal Housing Opportunity? statement and displays the ?Equal Housing? logo approved by the U.S. Department of Housing and Urban Development (?HUD?). When she submitted her application, Ms. Shaw acknowledged receipt of the Rental Application Approval Criteria form. The Shaws’ application was approved, and Ms. Shaw subsequently signed a one-year lease (?the Lease?) agreement on June 26, 2010. Soon thereafter Ms. Shaw moved into Apartment 2- 201 of Uptown Village with her children and their dog. Mr. Shaw was living in Alabama at the time and planned on moving to Gainesville at a later date to join his family.1/ At the time the Shaws began their tenancy at Uptown Village, Rhonda Hayden served as the property manager and Stacy Brown as the assistant property manager for Epoch. Both were experienced property managers and both had received Fair Housing training. Ms. Hayden and Ms. Brown testified that Epoch tries to create a sense of community among its tenants. Its efforts include hosting monthly breakfasts and other events for tenants. Information about upcoming community events is sent to all tenants with email addresses on file via Constant Contact, an on-line social and business networking platform. The email address provided on Ms. Shaw's rental application was entered into Epoch’s Constant Contact list. The Uptown Village Lease The Lease contained several provisions intended to ensure a safe and peaceful living environment for tenants. For example, paragraph 4 of the Lease provided that a resident shall ?. . . not permit any disturbance, noises or annoyance whatsoever detrimental to the comfort and peace of any of the inhabitants of the community or its Landlord.? Similarly, paragraph 30(G) provided that the ?Resident shall ensure that the pet(s) does not, at any time, disturb any other Resident of the apartment community.? The Lease reserved to Epoch the right to determine, in its sole discretion, whether a pet was disturbing residents. The Lease also incorporated a code of community rules (?the Rules?) for Uptown Village, which provided in pertinent part, ?all garbage, refuse and other types of waste shall be placed in garbage receptacles? and that ?loud and boisterous noise or any other objectionable behavior by any Resident or guests is not permitted.? The Rules also noted that the "quiet time" hours of the complex were from 10:00 p.m. to 8:00 a.m. Paragraph 12 of the Lease provided that a tenant must give 60 days’ advance notice of his or her intent not to renew the Lease. If notice was not given, then the Lease would renew on a month-to-month basis at the then current market rate, plus $50.00. The Shaws' Neighbors The Alcubilla family, who are Hispanic, lived across from Petitioners’ apartment, in Apartment 2-202. The Alcubilla family included a husband and wife, as well as the wife’s mother (Mrs. Alcubilla), who spoke little English. A Caucasian graduate student, Amanda Watson, lived on the third floor of the building directly above the Shaws in Apartment 3-201. A Hispanic tenant, Angelo Caruso, lived with his girlfriend on the same floor as Ms. Watson. In October 2010, four months after the Shaws became residents, the Kohl family moved into Apartment 2-101, the first floor apartment directly beneath the Shaws’ apartment. Trouble in Paradise The Shaws' first rent check, dated July 9, 2010, was returned for insufficient funds. This was a Lease violation. On July 14, 2010, Epoch issued a reminder to Ms. Shaw advising her that a neighbor had complained about her dog barking all hours of the day. This was a violation of the Lease and the Community Rules. Mr. Shaw joined his family at Uptown Village on or about August 8, 2010. On the day he moved in, Epoch leasing agent Breanne Parks was conducting a survey of the community grounds and noticed empty boxes outside the Shaws’ apartment on the walkway, as well as trash outside another tenant’s apartment. She issued a warning notice to the Shaws and the other tenant in the building. Leaving trash outside of an apartment is a violation of the Lease and Community Rules. On August 20, 2010, the Shaws’ rent check was returned for insufficient funds. This was a Lease Violation. On October 8, 2010, the Shaws were notified by Epoch that they were being assessed a late fee for failure to pay their rent on time. One week later, on October 15, 2010, Epoch sent the Shaws notification about an outstanding balance on their account. The notices concerned Lease violations. On October 21, 2010, Ms. Watson complained to the office about loud arguments and sounds emanating from the Shaws’ apartment the night before. One of the noises sounded like someone or something had been thrown against a wall. Though she feared that someone was being physically abused due to the intensity of the impact, she decided not call the police. In response to Ms. Watson's complaint, Epoch posted a notice on the Shaws’ door for a second time warning them about noise and asking them to be considerate of their neighbors. The noise violation was considered a violation of the Lease and Community Rules. The same day Epoch posted the noise violation notice on the Shaws' door, Ms. Shaw called the management office and lodged a retaliatory noise complaint against Ms. Watson. As a consequence of this complaint, a warning notice was sent by Epoch to Ms. Watson. The noise violation was considered a violation of the Lease and Community Rules. On November 4, 2010, the Shaws’ rent check was returned for insufficient funds. This was a Lease violation. Epoch allows sworn officers from the Gainesville Police Department to reside on the premises in exchange for services to the community as a Courtesy Officer. At some point during the Shaws' tenancy, Courtesy Officer Farah Lormil, an African-American female police detective, noticed a car belonging to the Shaws parked in an area that was not a designated parking space. This was a violation of Community Rules. Detective Lormil testified that she left a note on the car asking the owner to move the vehicle because "your car doesn't belong here." Detective Lormil also included her name and badge number on the note. At hearing, Ms. Shaw testified that the note read "you don't belong here." Inasmuch as Petitioners did not offer the note in evidence, and given the context in which the note was written (a parking violation), the testimony of Detective Lormil as to the actual wording of the note is the more credible. On December 27, 2010, leasing agent Erin Napolitano wrote a memo to Ms. Parks reporting that Mrs. Alcubilla’s daughter, Mater Alcubilla, had come to the management office the prior weekend to complain about an incident involving Ms. Shaw. Consistent with her memo, Ms. Napolitano testified that Mater Alcubilla had told her that Ms. Shaw had screamed at her family, followed them up and down the stairs to their apartment, and loudly knocked on their door. Mater Alcubilla also accused Ms. Shaw of stating that she knew what type of vehicles the Alcubillas drove and dared them to call the police. The memo recorded Ms. Alcubilla’s daughter as stating the police were called but when they arrived at Building 2, Ms. Shaw already was gone and therefore, no enforcement action was taken. Ms. Napolitano ended her memo to Ms. Parks with a personal observation: ?I just don’t know what to do about all of this but it certainly seems to be escalating.? Whatever the source of the friction between the two families, Ms. Napolitano testified that she had no reason to believe there was any racial animus on the part of the Alcubillas. On December 30, 2010, Ms. Hayden invited Mater Alcubilla to the office to discuss the incident with Ms. Shaw. Following their meeting, Ms. Hayden notated the date of the meeting and substance of their discussion in the Alcubilla’s resident conversation log. Ms. Hayden recorded in her own handwriting: ?Resident very frightened, Resident plans on moving at the end of her lease-Resident claimed Ms. Shaw yelled at her and threatened her and told her she needed to return to her country.? Ms. Hayden considered this to be an interpersonal dispute between the Alcubillas and Ms. Shaw. Also on December 30, 2010, Ms. Hayden and Ms. Parks invited Ms. Shaw to the management office to discuss the Alcubillas’ complaints. Ms. Hayden recorded in the Alcubilla’s resident log that Ms. Shaw denied the Alcubillas’ accusations, became upset and told Ms. Hayden and Ms. Parks that her neighbors needed to mind their own business. Ms. Hayden also noted that the meeting ended when Ms. Shaw got up, stated, ?you wait? and left the office. Based on what she perceived as a threat by Ms. Shaw of continuing trouble with the Alcubillas, Ms. Hayden recorded her intent to notify a Courtesy Officer of the situation. On February 15, 2011, the Shaws received a three-day notice from Epoch for failure to pay rent, and a notice of an outstanding balance due. This was a Lease violation. Three weeks later, on March 4, 2011, the Shaws were issued another three-day notice for failure to pay rent. This concerned a Lease violation. Ms. Watson continued to hear the Shaws' dog barking and loud voices and other noises, included stomping and footsteps, emanating from the Shaws' apartment. On one occasion, the Shaws left Gainesville for the weekend and placed their dog out on the balcony because it barked continuously. The noise and barking interfered with Ms. Watson’s ability to study and to enjoy her residence. On March 5, 2011, Epoch posted a letter on the Shaws' door regarding complaints received from the Shaws' neighbors about the dog barking for hours at a time, often late at night and in particular on March 3, 2011. This concerned a Lease violation. The loud barking, stomping, and talking within the Shaws' apartment did not abate, and on March 9, 2011, Epoch sent the Shaws a "Seven Day Notice to Cure Lease Violation" which cited their violation of Lease Provision 30 and Community Rule Y. On March 17, 2011, Epoch send the Shaws an ?Urgent Outstanding Balance Due? notice regarding their outstanding unpaid utility bill. This concerned a Lease violation. Also on March 17, 2011, an email was generated by Epoch’s answering service which reported that Tara Kohl of Apt. 2-101 had called. The generated message stated Ms. Kohl’s complaint as, ?Apt. Above Very Noisy/Heavy Walking Again.? On March 19, 2011, Ms. Napolitano printed off the email note and called Ms. Kohl to get more information about the complaint. Ms. Napolitano recorded hand-written notes about the conversation on a printed copy of the email which read: ?Last couple nights—beating down on floor–jumping/walking. 3-4 am can hear them all the time.? The email with Ms. Napitano’s hand- written notes was placed in the Kohl’s tenant file. Immediately following Ms. Kohl’s complaint, Ms. Shaw wrote the following note and faxed it to the management office: To Uptown Village On Saturday night, March 19, 2011, I noted a very loud bumping noise coming from my floor. I was home alone and very afraid. I even feared calling the office or security in fear of retaliation. From past experiences when I have voiced a complaint, I receive notes on my door alleging that my dog was barking, that I had trash beside my door, we were stomping, we were too loud and have even found handwritten notes on my car. My family and I can no longer live in such turmoil. Please accept this letter as a formal complaint regarding harassment. If these occurrences continue, I will have no other choice than to contact HUD. Thank you in advance for your help. Glenda Shaw Prior to the date of the faxed letter neither Petitioner had ever complained about discrimination of any kind to anyone at Epoch. Ms. Hayden and Ms. Brown discussed the content of Ms. Shaw's fax and how to handle its allegations. They viewed Ms. Shaw’s complaint against the Kohls as retaliation against the Kohls for making a complaint about noise from the Shaws’ apartment the day before, and therefore a personal dispute. They also considered whether to respond to Ms. Shaw’s allegation of harassment by Epoch, and decided that any response would just be viewed by Ms. Shaw as evidence of further harassment. They decided to place the faxed letter in the Shaw’s tenant file and take no other action. It was a normal business practice of Epoch to generate a list of tenants whose leases were due to expire within the following 90 days. The list was used to create flyers reminding those tenants to contact the management office regarding renewal. Flyers were sent to each tenant on the list regardless of whether the tenant was in default of the lease or potentially a candidate for non-renewal. A renewal flyer was placed on the Shaws’ door in late March and a second renewal flyer was posted on the Shaws' door the following month. Neither renewal notice elicited a response from the Shaws. On March 25, 2011, Epoch sent the Shaws an ?Urgent Outstanding Balance Due Notice? regarding their overdue utility bill. This concerned a Lease violation. Just prior to Easter, 2011, an Uptown Village tenant asked the management office for permission to hold a private Easter egg hunt for their friends on the community’s volleyball court. Epoch approved the request. Uptown Village residents were not notified of the event through Constant Contact because the Easter egg hunt was not an Epoch-sponsored event. The individual who organized the event made the decision whom to invite. On May 10, 2011, Ms. Shaw came to the management office and was assisted by Ms. Brown. Ms. Shaw accused Brian Kohl of confronting her daughter and calling her ?two-faced.? Ms. Shaw demanded that Epoch take action against Mr. Kohl and stated that if Epoch would not do anything about the situation, she was going to call the police or the Florida Department of Children and Families. Before Ms. Shaw left, Ms. Brown asked about the Shaws' intentions to remain residents upon the expiration of their Lease. Ms. Shaw did not give a definitive answer. Ms. Brown then told Ms. Shaw that if the Shaws decided not to renew, Epoch would not hold them to the 60-day advance notice required by the Lease. Three days after this meeting, Ms. Brown notified Ms. Shaw that Epoch could not send a notice of violation to Mr. Kohl because the accusations against him were not Lease violations. However, Ms. Brown offered to discuss the allegations with Mr. Kohl, a truck-driver who was often on the road. On May 18, 2011, Ms. Brown met with Brian Kohl to discuss Ms. Shaw’s complaint. Mr. Kohl gave his side of the story. After he left, Ms. Brown entered the following note in the Kohl’s resident conversation log: Brian came in wanting to break lease b/c [because] daughter is being harassed by girls in 2-111 and 2-1012/ so badly that she won’t go outside. Told him that one 2-111 should be finish soon (they are on NTV [Notice to Vacate] and the other may too, (2-101) lease expires 6/25. Otherwise would do what I can and to give us the opportunity to help before he moves. Ms. Brown also made an entry in the Shaws' resident conversation log regarding Mr. Kohl’s allegation that the Shaws' daughter was bullying the Kohl’s daughter. The following day, May 19, 2011, Ms. Watson came to the management office and gave notice that she was moving out of Uptown Village when her lease expired in August 2011. She was asked to complete a form entitled ?Notice to Vacate from Resident.? In her own handwriting, she wrote the reason for vacating as ?loud tenants.? The Notice to Vacate from Resident was placed in Ms. Watson’s tenant file as part of Epoch’s regular business practices. At hearing, Ms. Watson testified that she and her fiancé had considered living in her apartment after they married and decided they could not live there due to the continued noise and disturbances emanating from the apartment below. With Ms. Watson’s notice to vacate, Ms. Hayden and Ms. Brown came to the realization that three tenants in Building 2 had levied complaints against the Shaws and two had made decisions to move out in whole or in part due to the Shaws’ conduct. Ms. Hayden and Ms. Brown then conducted a more thorough review of the Shaws’ tenant history, and discussed whether the Shaws should continue to reside at Uptown Village. They called Epoch’s attorneys to get legal advice and left a message. On May 29, 2011, Epoch received a handwritten letter from Tara Kohl making numerous complaints against the Shaws, including loud noises late at night, and the Shaws parking one of their cars in a handicapped parking space. On June 8, 2011, the management office received a hand-written letter from Brian Kohl giving notice of his family’s intent to break their lease and move out. The reasons given all centered on the noise being generated in the Shaws' apartment, and alleged threats that had been made by Ms. Shaw against Ms. Kohl. On June 17, 2011, Ms. Shaw called the management office and spoke with Ms. Brown. Ms. Shaw asked for a copy of her lease, inquired about the shortest lease term possible, and the amount of any rent increase. Ms. Brown did not commit that the Shaws' lease would be renewed nor did she quote a renewal rate. Ms. Shaw continued to press the issue and Ms. Brown finally stated that a normal rent increase on renewal was $100 a month. On June 20, 2011, Ms. Hayden and Ms. Brown spoke to Epoch’s attorneys regarding options for ending the Shaws' tenancy. A decision was made to non-renew their lease as that would cause the least disruption to the Shaws. Ms. Hayden prepared a non-renewal letter, and it was posted on the Shaws' door the same day. Later that afternoon, Mr. and Ms. Shaw came to the management office, met with Ms. Brown, and demanded to know the reason why their Lease would not be renewed. Ms. Shaw insisted that Ms. Brown had told her their Lease would be renewed at a rate of $937.00. Ms. Brown denied she made this statement. Ms. Brown asked Ms. Hayden to intervene in the dispute. Ms. Hayden explained that Epoch had a right to issue a non-renewal notice and that the decision was based on the numerous complaints received about the Shaws. Ms. Shaw insisted that if there were grounds to terminate the Lease for cause, Epoch should issue them a seven-day notice to vacate. Ms. Hayden explained that they had decided to issue a non- renewal notice rather than a notice to vacate to allow the Shaws more time to make arrangements and to foster an amicable parting. Epoch has sent non-African-American, White and Hispanic tenants notices of violation regarding excessive noise and non-payment of rent and fees, and also has terminated leases (through eviction) on these bases. There is no competent substantial evidence in this record to even suggest that the decision to non-renew the Shaws' lease was in any way related to their status as African-Americans. On June 23, 2011, Mr. Caruso’s girlfriend was walking their dog outside Building 2 off leash (in violation of the Rules) when it began to chase the Shaws' son. The dog nipped at their son’s leg but did not draw blood or break his skin. When Mr. Caruso learned of the incident, he came to the Shaws' apartment to apologize. He later returned and asked to take a photo of their son’s leg because he feared Ms. Shaw might bring legal action against him, given her hostility after he had offered her a bag to clean up her dog’s waste on a previous occasion. Ms. Shaw refused to allow Mr. Caruso to photograph her son’s leg. Instead, she told him if he did not leave she would call the police, and if his dog ever attacked again she would report him and have the dog put to sleep. On June 27, 2011, a second non-renewal letter was posted on the Shaws' door to ensure that Petitioner’s understood their lease would not be renewed. The following day the Shaws returned to the management office and insisted that at the end of the June 20th meeting, they had been told their lease would be renewed. Ms. Hayden denied this and reiterated that their lease was being non-renewed based on complaints from neighbors. As the meeting continued, Ms. Shaw became increasingly agitated; she turned to Ms. Brown and asked if Ms. Brown found her to be confrontational. Ms. Brown responded that she thought Ms. Shaw had a ?strong personality.? To that, Ms. Shaw replied, ?It’s my culture.? As the meeting continued, Ms. Shaw began to inject the issue of race into the conversation. For example, in response to Ms. Hayden’s remark that the decision to non-renew was not personal, since she would not even recognize Ms. Shaw if she saw her at a mall, Ms. Shaw stated that ?white people think we all look alike.? As the conversation was taking an uncomfortable turn, Ms. Hayden ended the meeting and referred the Shaws to Epoch’s attorneys if they had any further questions or concerns. In early July 2011, Mr. Caruso was returning to Building 2 after walking his dog on leash and encountered Mr. Shaw. Mr. Shaw told Mr. Caruso to keep his dog away or he would kick it. On July 11, 2011, Ms. Shaw complained to the management office about Mr. Caruso’s dog charging at her while it was on a leash. She noted this was the second incident involving the dog. Ms. Brown told Ms. Shaw she would look into the matter, since this would be considered a violation of the Lease and Community Rules. On July 12, 2011, Ms. Brown spoke with Mr. Caruso’s girlfriend and cautioned her to keep the dog under control. Ms. Brown noted their conversation in both the Shaws’ and Mr. Caruso's resident conversation log. On August 4, 2011, Ms. Watson completed a "Move Out Survey" and in response to a question about what could have been done by management to encourage her to stay, wrote in her own hand-writing: ?Dealt with loud neighbors more consistently and effectively . . .? She added that her reason for leaving was ?loud, inconsiderate tenants.? The Shaws refused to move out by the date given in their non-renewal notice and stopped paying rent. On August 3, 2011, the Shaws dual-filed a charge of housing discrimination (race and color) with the Commission and the Federal Department of Housing and Urban Development. The charge alleged that Epoch had refused to rent to them, made discriminatory statements, and had offered them less favorable terms, conditions, privileges, services or facilities than other non-African-American tenants. The facts supporting their charge were that they were not invited to the Easter egg hunt; that they had been told their lease would be renewed yet it was not; and that Ms. Hayden had made racist statements. The Shaws did not pay rent for July 2011,3/ and on August 4, 2011, were sent a "Notice to Pay Rent" by Epoch. The Commission investigated the Shaws' charge of housing discrimination and issued a determination on August 31, 2011, finding there was no probable cause to support the claims. On September 29, 2011, the Shaws filed a Petition for Relief from an alleged discriminatory housing practice, giving rise to the instant proceeding. During the pendency of this matter, the Shaws were evicted from Uptown Village for non- payment of rent.
Recommendation Having considered the foregoing Findings of Fact, Conclusions of Law, the evidence of record, the candor and demeanor of the witnesses, and the pleadings and arguments of the parties, it is, therefore, RECOMMENDED that a final order be entered by the Florida Commission on Human Relations, determining that Respondents did not commit a discriminatory housing practice based upon Petitioners’ race and that the Petition be dismissed in its entirety. DONE AND ENTERED this 3rd day of October, 2012, in Tallahassee, Leon County, Florida. S W. DAVID WATKINS 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 3rd day of October, 2012.
The Issue The issue in this case is whether the Respondent has committed a discriminatory housing practice based on the Petitioner's physical handicap, in violation of the Fair Housing Act, Sections 760.20-760.37, Florida Statutes.
Findings Of Fact In September of 1993, the Petitioner rented an efficiency unit from the Respondent. They had an unwritten month-to-month tenancy agreement. In addition to the monthly rent for the efficiency unit, the Respondent also billed the Petitioner monthly for the electricity used in the efficiency unit. The Petitioner resided in the efficiency unit with his wife. The efficiency unit was part of the house in which the Respondent lived with his wife and their minor child. In September of 1993, the Petitioner was suffering from the disease Lupus. When he rented the efficiency the Petitioner told the Respondent that he was suffering from Lupus and provided the Respondent with some information about the disease. As a result of the Lupus, in September of 1993, the Petitioner suffered from symptoms which were, to some extent, disabling, but at that time the Petitioner was still able to work and was employed as a security guard. For approximately two years the Petitioner and the Respondent had a substantially harmonious relationship. During that time the Petitioner and his wife were frequently invited to participate in social occasions in the Respondent's home. During that time the Respondent twice loaned money to the Petitioner so that the Petitioner could buy automobiles. On several occasions the Respondent worked on the Petitioner's automobiles without charging the Petitioner for his labor. On several occasions the Respondent helped the Petitioner find work when the Petitioner was unemployed. During 1995 the Petitioner was hospitalized as a result of his Lupus and other medical complications caused by the Lupus. During the course of the 1995 hospitalization, all of the Petitioner's toes were surgically removed and portions of all ten of his fingers were surgically removed. After a lengthy hospitalization, the Petitioner returned to reside in the efficiency unit he rented from the Respondent. While recuperating from the surgery, it was necessary for the Petitioner to use a wheelchair. To facilitate the Petitioner's access to the efficiency unit, the Respondent built and installed a ramp at the entrance to the efficiency unit. During the Petitioner's recuperation, the Petitioner's wife had to make a two-week trip to Cuba. The Respondent installed an intercom between the efficiency unit and the portion of the house in which the Respondent resided, so that the Petitioner would be able to contact the Respondent if he needed assistance. While the Petitioner's wife was in Cuba, the Respondent's wife assisted the Petitioner on several occasions and prepared several meals for the Petitioner. During the latter part of 1995 the Petitioner's attitude and conduct began to change. He became very confrontational and argumentative. He also made a number of threatening statements to his wife, to the Respondent's wife, and to others. He also engaged in frequent loud and abusive arguments with his wife. On November 14, 1995, the Petitioner's wife called the police because her husband had threatened to kill her and himself with a revolver. The police impounded for safekeeping the Petitioner's .38 caliber revolver and several rounds of ammunition. During the following months, the Petitioner continued to be confrontational and argumentative, and continued to make threatening remarks. On at least one occasion the Petitioner made remarks to the Respondent's wife to the effect that he could burn down the house or blow up the house. These remarks caused the Respondent's wife to worry about her safety and the safety of her family. As a result of those worries, on one occasion in April of 1996 when the Respondent's wife heard a "ticking" sound in the Petitioner's efficiency unit, she became frightened that the Petitioner might have left a bomb in the efficiency, and she called the police. The police searched the efficiency unit and did not find a bomb. In April of 1996, the Respondent began eviction proceedings against the Petitioner by filing a Complaint for Tenant Eviction in the County Court. The grounds for the eviction were that the Petitioner had failed to pay rent for one month and had failed to pay for electricity for two months. The Petitioner never paid the past due rent and electricity bills. The Petitioner and his wife moved out of the Respondent's efficiency unit the day before he was to be evicted. The Respondent's act of evicting the Petitioner was not motivated by the Respondent's handicap. The Respondent's act of evicting the Petitioner was motivated solely by the Petitioner's failure to pay past-due rent and electricity bills and by the Petitioner's confrontational and threatening conduct.2
Recommendation On the basis of all of the foregoing it is RECOMMENDED that a Final Order be issued in this case dismissing the Petition and denying all relief requested by the Petitioner. DONE AND ENTERED this 1st day of October, 1998, in Tallahassee, Leon County, Florida. MICHAEL M. PARRISH Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32301-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 Filed with the Clerk of the Division of Administrative Hearings this 1st day of October, 1998.
Findings Of Fact On May 24, 1986, Joseph C. Devine, Petitioner, the complaining party, saw an advertisement in the Clearwater Sun for an apartment for rent. He called the number listed and was given directions to locate the restaurant which is adjacent to the apartment for rent. Devine proceeded to the location given and upon arrival some 10 minutes later was told that the apartment had already been rented. Ali Likmeta, Respondent, is the owner of the restaurant and of the 4- unit apartment building adjacent thereto. Likmeta was born in Albania, has been in the United States for 18 years and is a naturalized citizen. He speaks English with a heavy accent and does not fully understand everything said to him in English. Likmeta placed an ad in the Clearwater Sun to run for one week advertising a vacant apartment for rent. At the time this apartment became vacant, the tenants in the three other apartments were Albanian, Greek and Italian. On the evening of May 23, 1986, Mr. and Mrs. Agaj, the former owners of the apartments who had sold them to Respondent and were aware of the vacancy, drove to Safety Harbor where they picked up two Albanian men who had recently arrived in the United States. They drove these men to Respondent's place of business for the purpose of renting the apartment; however, the business was closed and the men were returned to Safety Harbor and instructed to return early the following morning to the restaurant. The vacant apartment was, in fact, rented to the Albanian, Gezim Muca, on May 24, 1986, who had been brought down the evening before by the Agajs. On June 2, 1986, Devine filed a complaint with the Clearwater Human Relations Commission alleging that he was discriminated against in housing because of his race (black). During the investigation and conferences between the parties that followed the filing of this complaint, Devine indicated he would accept payment in the amount of $1200 to drop the charges which Likmeta refused. Likmeta offered to rent to Devine the next apartment to become vacant which Devine refused for the reason as he testified at this hearing "I didn't want to risk my life in that environment." When asked by the Hearing Officer what he expected to obtain through these proceedings Devine replied, justice. When told that this tribunal lacked jurisdiction to place Likmeta in jail or award money damages to Devine, the latter responded that the Hearing Officer was prejudiced and it was obvious that he would not get justice at these proceedings and would take this case to the Supreme Court if neccesary.
The Issue Whether Respondent Employer discharged Petitioner because of her sex, in violation of Section 23.167(1), Florida Statutes (1979).
Findings Of Fact Based on the evidence presented at hearing, the following findings are determined and organized in accordance with the allocation of proof applicable to employment discrimination cases. I. The Parties The EMPLOYER is an incorporated condominium association responsible for the operation and maintenance of Regency Towers Condominium, a 171-unit condominium in Panama City Beach, Florida. In 1977, the developer of Regency Towers relinquished responsibility for and control over the completed condominium to the nearly formed association. The association ("EMPLOYER") is owned by the Regency Tower Condominium unit owners who elect a Board of Directors; the Board, in turn, hires and supervises a condominium manager who directs and is responsible for the day-to-day operations and maintenance of the facility. (Testimony of Pettigrew.) COMPLAINANT, a female, was employed by EMPLOYER as its manager from February 1976, until September 5, 1978, when she was terminated by its Board of Directors. In addition to her salary, the EMPLOYER allowed COMPLAINANT to engage in resale of condominium units through the office of a local real estate broker. (Testimony of Pettigrew.) During 1978, the calendar year preceding COMPLAINANT's termination, EMPLOYER employed 15 or more employees during 20 or more calendar weeks. In this connection, Findings of Fact Nos. 1 through 10 as contained in the previous Order Denying Respondent's Motion to Dismiss, entered on August 6, 1980, are adopted and incorporated by reference. (Order Denying Respondent's Motion to Dismiss, dated August 6, 1980.) II. Complainant's Initial Burden: Establish Prima Facie Case of Employment Discrimination Based on Sex COMPLAINANT presented evidence sufficient to establish a prima facie case of employment discrimination on the basis of her sex, the EMPLOYER admits such prima facie showing was made. (See Respondent's Suggested Findings of Fact, p. 1.) COMPLAINANT is a female who was discharged by EMPLOYER; thereafter, her position was filled by a male, David Lacey. Prior to and after her termination, there was a small but vocal group of condominium unit owners who openly expressed a view that the job of condominium manager cold not be performed by a woman: that it could be better done by a man. Remarks were made such as: "we need a man to run this business"; (Tr. 79) "the place won't run with a woman in there . . ." (Tr. 116); "a man could do . . . [the job] better," (Tr. 131) and "a man [is] needed to have that position, that a woman could not . . . adequately fill, [or] fulfill the job." (P-2, p. 13) The COMPLAINANT testified that the sole basis for her termination was her sex. (Tr. 236) One of the owners who articulated such a bias in favor of a male, as opposed to a female manager, was Henry Christmas; he was also a member of EMPLOYER's Board of Directors, and made the motion which resulted in COMPLAINANT's termination. 2/ (Testimony of Pettigrew, Truman, Sullivan, Williams, Johnson, Christmas.) EMPLOYER's actions toward COMPLAINANT, infra, standing alone, support a reasonable inference that she was terminated because of her sex. The burden, therefore, shifts to EMPLOYER to articulate some legitimate, nondiscriminatory reason for its action. III Employer's Burden: Articulate Legitimate Nondiscriminatory Reason for Complainant's Termination EMPLOYER denied that its termination of COMPLAINANT was motivated by her sex, and supplied a legitimate, nondiscriminatory reason: her poor work performance. Members of EMPLOYER's Board of Directors had received numerous complaints concerning COMPLAINANT's job performance from owners, renters, and employees. At the Board's meeting on September 3, 1978, the decision to terminate COMPLAINANT was preceded by a discussion of numerous examples of her inefficiency, ineffectiveness, and failure to satisfactorily perform her job. Specific deficiencies discussed and offered as cause for her termination were her: Refusal to implement Board directives; Inability to get along with owners; Inability to supervise and get maximum efficiency from employees, including high turnover and expense involved in training and hiring new employees; Failure to submit to the Board a job description for herself and other employees; Failure to place ads in newspapers for the condominium's rental program; and Failure to keep adequate records and daily check sheets required by the rental program. (Testimony of Truman, Hodges, Lee, Christmas, Rosborough; R-2) During 1978, complaints had been received by Board members from owners, renters, and employees claiming she: Failed to adequately maintain grounds, parking lot, walkways, and shrubbery; Was unable to get along with owners and renters; Was verbally abusive and rude toward renters and owners; and Inadequately managed employees. (Testimony of Lee, Hodges, Truman) EMPLOYER having articulated the above legitimate, nondiscriminatory reason for its termination of COMPLAINANT, the burden then shifts to the COMPLAINANT to show that the stated reason--poor work performance--is, in fact, a pretext or mask for a discriminatory decision. IV. Complainant's Burden: Show Employer's Stated Nondiscriminatory Reason is Pretextual COMPLAINANT did not establish or provide a sufficient basis to infer that EMPLOYER's stated reason for her termination was pretextual, or a mask for a discriminatory motive. Events which occurred before and after COMPLAINANT's termination substantiate EMPLOYER's contention that there were numerous and serious deficiencies in COMPLAINANT's job performance, and increasing criticism of her actions by owners. (Testimony of Webb, Johnson) Charles T. Webb served as president of EMPLOYER's Board of Directors from September 1977 through August 1978. He had regular contact with COMPLAINANT and received numerous complaints from owners concerning her job performance and attitude toward owners. It occurred to him that, during 1978, COMPLAINANT became increasingly unable to effectively carry out her duties. She would call him at his business and his home--sometimes late in the evening--to discuss matters which, in his view, she should have routinely handled. (Testimony of Webb) Since her hiring in 1977, there was a small group of owners who openly and constantly criticized COMPLAINANT. J. H. Christmas and Otis Rosborough were its most vocal members. On most days, they and several others could be found in the lobby in the vicinity of COMPLAINANT's office. There, over coffee, they would continually criticize her actions in the presence of owners and employees. Sometimes they would interfere with her directives to employees, and attempt to undermine her authority. It seemed to the head housekeeper that nothing that COMPLAINANT did was acceptable to these critics, that they could not be satisfied. It is clear that the actions of this handful of owners were, at least in part, motivated by their frequently voiced belief, that a woman could not properly do the job, that a man could do it better. (Testimony of Williams, Pettigrew, Weaver, Truman, Williams, Lilly) The unrelenting criticism of this small group of owners, the pressing and sometimes unreasonable demands of owners and renters, employee turnover and complaints--all imposed a heavy burden on COMPLAINANT. Owners increasingly began to complain about her rude treatment; her job performance began to deteriorate. Friction and conflict between COMPLAINANT and others became more frequent. Incidents would upset her, and sometimes she would be crying when she called Webb for his assistance. Owner dissatisfaction became so widespread that, several times during Webb's term as president, the Board of Directors considered terminating her. (Testimony of Webb, Truman, Pettigrew, Williams; R- 7, R-9) In July 1978, Webb met with COMPLAINANT to discuss her worsening work performance. He gave her the choice of resigning, or improving her performance. She indicated she desired to remain. At 2:00 a.m., on July 21, 1978, she called him, in tears, to relate an incident involving an owner. On July 22, 1978, Webb wrote her a letter listing problems with her work performance, including her difficulties with employees and owners, and her failure to carry out one of his previous requests. He asked for attention to those problems, "so that no other administrative action will be necessary." (R-7) (Testimony of Webb, Pettigrew; R-7) On September 1, 1978, at the end of his term of office as president of the Board of Directors, Webb wrote the newly elected Board describing his problems with COMPLAINANT's work performance. He cited her "continuous turmoil" with owners and renters, her failure to carry out the Board's directives, and her inability to handle routine management problems. Two days later, the newly elected Board of Directors discussed numerous deficiencies in COMPLAINANT's performance and terminated her employment. (Testimony of Webb, Truman; R-6, R-2) At the time of COMPLAINANT's termination, the owners had split into factions opposing and supporting her. On September 21, 1978, Lomax Johnson, one of the owners who supported COMPLAINANT, polled, by written ballot, all unit owners and members of EMPLOYER for the purpose of "trying to right a wrong that has been done to an individual . . ." (R-3) The principle question on the ballot was whether they agreed or disagreed with the Board's termination of COMPLAINANT. Of the 54 owners' ballots responding, 26-27 disagreed with her termination, 24 agreed, and 3-4 abstained. (Testimony of Johnson; R-4) In a lengthy explanatory letter accompanying the ballot, Johnson gave COMPLAINANT's answer to each of the reasons given as cause for her discharge. He defended her work performance, and maintained that she had been unjustly treated. However, in criticizing the Board's treatment of COMPLAINANT, Johnson did not assert that it was motivated by sex discrimination. (Testimony of Johnson; P-3) The Board of Directors which terminated COMPLAINANT contained both males and females. Board members who testified denied that their action was motivated by her sex, and no member testified otherwise. Prior to and after her termination, both male and female owners expressed dissatisfaction with COMPLAINANT's job performance. The fact that some of the complaints were unwarranted and self-serving does not negate their existence or the Board's belief that complaints were occurring with increasing frequency. (Testimony of McKay, Wade, Thigpen, Davis, Martin, Lee, Truman, Webb; P-2, R-4)
Conclusions Petitioner established a prima facie case of sexual discrimination; Respondent stated a legitimate, nondiscriminatory reason for its action. Petitioner, however, failed to prove that Respondent's stated reason--her poor work performance--is a pretext for a discriminatory motive. The Commission on Human Relations should, therefore, enter an order finding Respondent not guilty of the alleged unlawful employment practice, and denying Petitioner's petition for relief.
Recommendation Based upon the foregoing findings of fact and conclusions of law, it is RECOMMENDED: That the Florida Commission on Human Relations enter a final order finding the EMPLOYER not guilty of the unlawful employment practice alleged by COMPLAINANT, and denying her petition for relief. DONE AND ENTERED this 20th day of January 1981, in Tallahassee, Florida. R. L. CALEEN, JR. Hearing Officer Division of Administrative Hearings Room 101, Collins Building Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 20th day of January 1981.
The Issue The issue in this case is whether Respondent unlawfully discriminated against Petitioner because of handicap in violation of the Florida Fair Housing Act.
Findings Of Fact At all relevant times, Petitioner Shelley M. Wright ("Wright") was a graduate student at Florida International University ("FIU") in Miami, Florida. Wright has a physical disability that affects her mobility, and, as a result, she uses a wheelchair or scooter to get around. There is no dispute that Wright falls within a class of persons protected against discrimination under the Florida Fair Housing Act ("FFHA"). Respondent Servitas Management Group, LLC ("SMG"), manages Bayview Student Living ("Bayview"), a privately owned student housing community located on FIU's campus. Bayview's owner, NCCD — Biscayne Properties, LLC, leases (from FIU) the real estate on which the project is situated. Bayview is a recently built apartment complex, which first opened its doors to students for the 2016-2017 school year. On November 20, 2015, Wright submitted a rental application for a single occupancy efficiency apartment in Bayview, fitted out for residents with disabilities. She was charged an application fee of $100.00, as were all applicants, plus a "convenience fee" of $6.45. Much later, Wright would request that SMG refund the application fee, and SMG would deny her request, although it would give her a credit of $6.45 to erase the convenience fee on the grounds that it had been charged in error. Wright complains that this transaction was tainted with unlawful discrimination, but there is no evidence of such, and thus the fees will not be discussed further. Wright's application was approved, and, accordingly, she soon executed a Student Housing Lease Contract ("First Lease") for a term commencing on August 20, 2016, and ending on July 31, 2017. The First Lease stated that her rent would be $1,153.00 per month, and that the total rent for the lease term would be $12,683.00. Because Wright was one of the first students to sign a lease, she won some incentives, namely $500.00 in Visa gift cards and an iPad Pro. The First Lease provided that she would receive a $200.00 gift card upon lease execution and the balance of $300.00 upon moving in. As it happened, Wright did not receive the gift cards in two installments, but instead accepted five cards worth $500.00, in the aggregate, on August 20, 2016. There were two reasons for this. One was that SMG required lease holders to appear in-person to take possession of the gift cards and sign a receipt acknowledging delivery. Wright was unable (or unwilling) to travel to SMG's office until she moved to Miami in August 2016 to attend FIU. The other was that SMG decided not to use gift cards as the means of paying this particular incentive after integrating its rent collection operation with FIU's student accounts. Instead, SMG would issue a credit to the lease holders' student accounts in the amount of $500.00. Wright, however, insisted upon the gift cards, and so she was given them rather than the $500.00 credit. Wright has alleged that the untimely (or inconvenient) delivery of the gift cards constituted unlawful discrimination, but the evidence fails to sustain the allegation, which merits no further discussion. In May 2016, SMG asked Wright (and all other Bayview lease holders) to sign an amended lease. The revised lease made several changes that SMG called "improvements," most of which stemmed from SMG's entering into a closer working relationship with FIU. (One such change was the aforementioned substitution of a $500.00 credit for gift cards.) The amended lease, however, specified that Wright's total rent for the term would be $13,836.00——an increase of $1,153.00 over the amount stated in the First Lease. The explanation was that, in the First Lease, the total rent had been calculated by multiplying the monthly installment ($1,153.00) by 11, which did not account for the 12 days in August 2016 included in the lease term. SMG claimed that the intent all along had been to charge 12 monthly installments of $1,153.00 without proration (even though the tenant would not have possession of the premises for a full 12 months) and thus that the First Lease had erroneously shown the total rent as $12,683.00. As SMG saw it, the revised lease simply fixed this mistake. Wright executed the amended lease on or about May 10, 2016 (the "Second Lease"). Wright alleges that this rent "increase" was the product of unlawful discrimination, retaliation, or both. There is, however, no persuasive evidence supporting this allegation. The same rental amount was charged to all occupants of the efficiency apartments, regardless of their disabilities or lack thereof, and each of them signed the same amended lease document that Wright executed. To be sure, Wright had reason to be upset about SMG's revision of the total rent amount, which was not an improvement from her standpoint, and perhaps she had (or has) legal or equitable remedies available for breach of lease. But this administrative proceeding is not the forum for redressing such wrongs (if any). Relatedly, some tenants received a rent reduction through the amended leases SMG presented in May 2016, because the rates were reduced therein for two- and four-bedroom apartments. As was made clear at the time, however, rates were not reduced on the one-bedroom studios due to their popularity. Wright alleges that she subsequently requested an "accommodation" in the form of a rent reduction, which she argues was necessary because she leased a more expensive studio apartment, not by choice, but of necessity (since only the one- bedroom unit met her needs in light of her disabilities). This claim fails because allowing Wright to pay less for her apartment than every other tenant is charged for the same type of apartment would amount to preferential treatment, which the law does not require. Wright makes two claims of alleged discrimination that, unlike her other charges, are facially plausible. She asserts that the handicapped parking spaces at Bayview are unreasonably far away for her, given her limited mobility. She further asserts that the main entrance doors (and others in the building) do not afford two-way automatic entry, and that as a result, she has difficulty exiting through these doors. The undersigned believes it is possible, even likely, that the refusal to offer Wright a reasonable and necessary accommodation with regard to the alleged parking situation, her problems with ingress and egress, or both, if properly requested, might afford grounds for relief under the FFHA. The shortcoming in Wright's current case is the absence of persuasive proof that she ever presented an actual request for such an accommodation, explaining the necessity thereof, for SMG's consideration. There is evidence suggesting that Wright complained about the parking and the doors, perhaps even to SMG employees, but a gripe, without more, is not equivalent to a request for reasonable accommodation. Determinations of Ultimate Fact There is no persuasive evidence that any of SMG's decisions concerning, or actions affecting, Wright, directly or indirectly, were motivated in any way by discriminatory animus directed toward Wright. There is no persuasive evidence that SMG denied a request of Wright's for a reasonable accommodation at Bayview. 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 could be made. Ultimately, therefore, it is determined that SMG did not commit any prohibited act.
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 SMG not liable for housing discrimination and awarding Wright no relief. DONE AND ENTERED this 27th day of September, 2017, 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 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 27th day of September, 2017.
