The Issue The issue in this case is whether Respondents unlawfully discriminated against Petitioner on the basis of her race, religion, or disability in violation of the Florida Fair Housing Act.
Findings Of Fact Parklife is the owner of a mobile home community known as St. Lucie Mobile Village (the “Village”), which comprises approximately 220 homes. For the last 21 years, McGrath has leased a lot in the Village, upon which her double-wide mobile home sits. She is a white woman, approximately 60 years old, who claims to suffer from post-traumatic stress disorder (“PTSD”) and other unspecified anxiety disorders, and to be a practicing Jehovah’s Witness. This is a case of alleged housing discrimination brought under Florida’s Fair Housing Act (the “Act”). McGrath alleges that Parklife has discriminated against her in several ways, which can be classified as selective enforcement, disparate treatment, and retaliation. Specifically, McGrath alleges that Parklife required her to upgrade the skirting around, and also to re-level, her home, while excusing other (predominately Hispanic) residents, whose homes were in comparable condition, from making similar improvements. McGrath alleges that Parklife issued warnings to her for violating the “two vehicle” rule, while allowing other (predominately Hispanic) residents to keep three or more cars on their lots. She alleges that Parklife permitted Hispanic residents to shoot off fireworks and make noise in violation of park rules, depriving her of the peaceful enjoyment of her premises. Finally, McGrath alleges that Parklife commenced a retaliatory eviction proceeding against her for being a whistle blower. McGrath does not dispute that her home needed new skirting and to be leveled, and she admits having violated the two vehicle rule. She claims, nevertheless, that Parklife took action against her on the basis of her race (white), religion (Jehovah’s Witness), disability (PTSD), or some combination of these, as shown by its more lenient treatment of residents outside the protected categories. McGrath’s allegations are legally sufficient to state a claim of housing discrimination. That is, if McGrath were able to prove the facts she has alleged, she would be entitled to relief. She failed, however, to present sufficient, persuasive evidence in support of the charges. It is not that there is no evidence behind McGrath’s claims. She and her witness, Kassandra Rosa, testified that other residents have violated park rules regarding skirting, leveling, and allowable vehicles––seemingly without consequence. To determine whether the circumstances of these other residents were truly comparable to McGrath’s, however, so as to conclude that she was singled out for different treatment, requires more information than the evidence affords. Taken together, McGraths’s testimony and that of Ms. Rosa was simply too vague and lacking in relevant detail to support findings of disparate treatment or selective enforcement on the basis of race, religion, or handicap. Indeed, the persuasive evidence fails to establish that Parklife declined to take appropriate action with regard to similarly-situated violators, or that it otherwise condoned, or acquiesced to, the rulebreaking of such residents. At most, the evidence shows that other residents violated the same rules as McGrath––not that they got off scot-free, which is a different matter. As for the eviction proceeding, which was pending in county court at the time of the final hearing, there is insufficient evidence (if any) to support McGrath’s contention that Parklife is retaliating against her or using the legal process as a pretext for unlawfully depriving her of a dwelling in violation of the Act. In terms of timing, Parklife initiated the eviction proceeding before it became aware that McGrath had filed a complaint of housing discrimination, which tends to undermine the assertion that the eviction was brought to retaliate against McGrath for exercising her rights under the Act. More important is that Parklife has articulated and proved nondiscriminatory grounds for seeking to terminate McGrath’s lease. Residents have complained to the Village’s management that McGrath has harassed her neighbors at various times, in various ways. While there is insufficient nonhearsay evidence in the instant record for the undersigned to make findings as to whether McGrath did, in fact, harass other residents in violation of park rules, Parklife proved by a preponderance of the competent substantial evidence that it was on notice of such alleged misconduct on McGrath’s part. The fact that Parklife had such notice is sufficient to show that its bringing an action to evict McGrath was not merely a pretext for unlawful discrimination against her. Of course, the question of whether Parklife is entitled to terminate McGrath’s tenancy is one that need not, and cannot, be decided in this proceeding. It is determined as a matter of ultimate fact that McGrath has failed to establish by the greater weight of the evidence that Parklife or any of the Respondents, jointly or severally, committed an unlawful housing practice.
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 Parklife not liable for housing discrimination and awarding McGrath no relief. DONE AND ENTERED this 2nd day of November, 2020, 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 2nd day of November, 2020. COPIES FURNISHED: Tammy S. Barton, Agency Clerk Florida Commission on Human Relations 4075 Esplanade Way, Room 110 Tallahassee, Florida 32399-7020 (eServed) Laney H. McGrath 11500 Southwest Kanner Highway, Lot 317 Indiantown, Florida 34956 (eServed) Teresa Schenk St. Lucie Village Parklife, LLC 11500 Southwest Kanner Highway Indiantown, Florida 34956 (eServed) Cheyanne Costilla, General Counsel Florida Commission on Human Relations 4075 Esplanade Way, Room 110 Tallahassee, Florida 32399-7020 (eServed)
The Issue The issue is whether the Florida Commission on Human Relations (FCHR) properly dismissed this matter for lack of jurisdiction.
Findings Of Fact Petitioner, as a first-time home buyer, applied for and was pre-approved by Cendant Mortgage Corporation d/b/a/ Century 21 Mortgage for a mortgage loan. The loan, in the amount of $28,687.00, was to be insured by the Federal Housing Administration (FHA). In February 2003, Respondent agreed to sell Petitioner his home. They agreed that Petitioner would pay Respondent $29,000.00 for the house. Respondent subsequently stated in writing that he agreed to sell his house to Petitioner for that amount. On March 5, 2003, Petitioner signed a form entitled No Brokerage Relationship Disclosure. The form made it clear that Century 21 Prime Property Resources, Inc., a local real estate agency, and its associates did not have a brokerage relationship with Petitioner. There is no evidence that the professional services of a licensed real estate agent was involved at all in this case. However, the local Century 21 real estate office gratuitously sent a few documents on Petitioner's behalf by facsimile transmission to Century 21 Mortgage in New Jersey. Respondent did not use the sales facilities or services of Century 21 for any purpose. On March 7, 2003, Cheryl Barnes, a certified appraiser, completed an appraisal of the property. The U.S. Department of Housing and Urban Development and/or FHA required the appraisal in order for Petitioner to receive the loan insured by FHA. Neither Petitioner nor Respondent was required to pay for the appraisal. In a letter dated March 10, 2003, Century 21 Mortgage advised Petitioner that the closing date was scheduled for April 16, 2003. The letter enclosed additional forms that Petitioner needed to complete in order to close the loan. The Housing Department, Division of Planning and Development, in Sumter County, Florida, sent Petitioner a letter dated March 19, 2003. The letter advised Petitioner that she was eligible for an award of Supplemental Household Income Protection funds to cover the down payment and closing costs on the loan. Subsequently, Respondent refused to sign any papers related to the sale of the house. The loan could not be closed without Respondent's cooperation. Petitioner had placed $250 in an escrow account with Century 21 Mortgage. The mortgage broker refunded all of the money in the escrow account to Petitioner after Respondent refused to sign any more paperwork. Finally, there is no evidence of the following: (a) that Respondent owned more than three single-family houses at any one time; (b) that Respondent sold more than one single- family home within any 24-month period; (c) that Respondent had an interest in the proceeds from the sale or rental of more than three single-family houses at any one time; and (d) the sale of the subject house did not involve the posting, mailing, or publication of any written notice.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED: That FCHR enter a final order dismissing the Petition for Relief. DONE AND ENTERED this 5th day of January, 2005, in Tallahassee, Leon County, Florida. S SUZANNE F. HOOD 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 5th day of January, 2005. COPIES FURNISHED: Cecil Howard, General Counsel Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301 Denise Crawford, Agency Clerk Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301 Susan M. Parker 3840 East County Road 478 Apartment D-30 Webster, Florida 33597 Paul Moore 2396 County Road 608 Bushnell, Florida 33513
The Issue Whether the Florida Commission on Human Relations and the Division of Administrative Hearings have jurisdiction pursuant to Section 760.34, Florida Statutes, to consider Petitioner's Petition for Relief; and Whether Petitioner timely filed his Petition for Relief with the Florida Commission on Human Relations.
Findings Of Fact Based on the oral and documentary evidence presented at the final hearing, the following Findings of Facts are made: Petitioner contracted to purchase a condominium, "unit 206 in Building 425 at Serravella at Spring Valley" from Respondent. For reasons not relevant to the issues presented for determination, closing was deferred; and on December 22, 2006, Petitioner signed and submitted an "Addendum to Contract" to Respondent that sought "to revise contract closing date to 2/28/2007." Sometime in late December 2006, a telephone conversation took place among Steve Myers, a realtor for Serra Villa, Petitioner, and Barefield. Barefield was in Alabama, and Myers and Petitioner were in Florida on a speakerphone. Barefield advised Petitioner that the addendum would not be accepted by Respondent. Barefield and Petitioner did not speak to each other after this December telephone conversation. All communication was accomplished through third parties. Subsequent to Respondent's refusal to accept Petitioner's addendum, there is lengthy correspondence and litigation involving the parties. For some time after Respondent rejected Petitioner's addendum, Petitioner desired to purchase the condominium and, apparently, indicated so in various offers communicated by his attorneys to Respondent. If an unlawful discriminatory act occurred, the determination of which is not an issue presented for determination, the act occurred in December 2006. Petitioner's Housing Discrimination Complaint dated September 17, 2008, and signed by Petitioner on September 22, 2008, was filed with United States Department of Housing and Urban Development more than one year after the alleged act of discrimination. On November 6, 2008, Petitioner sent a four-page fax transmission to Lisa Sutherland, a FCHR employee, which included a Petition for Relief. On November 13, 2008, Petitioner sent a second fax transmission of seven pages to Lisa Sutherland. Apparently, this second transmission included a Petition for Relief. On December 4, 2008, Petitioner sent a third fax transmission addressed to "Mrs. Crawford/Lisa Sutherland." While the fax transmission cover sheet is dated "11-13-08," the report of transmission shows that this 11-page transmission was sent on "12/04 15:24." The Petition for Relief forwarded by FCHR to DOAH was date-stamped "2008 DEC-4 PM 3:25."
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that FCHR dismiss the Petition for Relief as being time-barred as a result of the late filing of Petitioner, Ricardo Vega's, Housing Discrimination Complaint. DONE AND ENTERED this 27th day of April, 2009, 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 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, 2009. COPIES FURNISHED: Denise Crawford, Agency Clerk Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301 Larry Kranert, General Counsel Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301 Richard S. Taylor, Jr., Esquire 531 Dog Track Road Longwood, Florida 32750-6547 Barbara Billiot-Stage, Esquire Law Offices of Barbara Billiot-Stage, PA 5401 South Kirkman Road, Suite 310 Orlando, Florida 32819
The Issue Whether Respondents Bonavida Condominium Association, Inc., Lorne Rovet, and John McNamee discriminated against Petitioners Carlos Rodriguez and Monica Bontempi in the terms, conditions, or privileges of the sale or rental of a dwelling, or in the provision of services or facilities in connection therewith, because of their national origin; and retaliated against Petitioners on account of their having exercised any right granted under the Florida Fair Housing Act, in violation of sections 760.23(2) and 760.37, Florida Statutes (2018); and, if so, the relief to which Petitioners are entitled.1
Findings Of Fact Parties Petitioners are husband and wife who, until recently, worked and lived in their country of origin, Argentina. Petitioners are headstrong, well- educated, and very proud of their Argentinian national origin. While living in Argentina, Rodriguez worked as a renowned physicist and research professor and Bontempi as a physician and renowned immunologist. After successful careers in Argentina, Petitioners retired and moved from Argentina to Aventura, Florida, where, in 2015, they purchased Unit 1505 at Bonavida. Petitioners own the condominium unit through Tina Trust, LLC, named after their native country of Argentina. Bonavida is a multi-cultural condominium community governed by an association, which, in turn, is governed by a board of directors. At all times material hereto, the board has been comprised of individuals of many different cultures, backgrounds, and countries of origin. Many of the individual board members are headstrong, which often led to confrontational interactions, disputes, and bickering among board members relating to various matters of association business. Rovet has been a unit owner at Bonavida since 2009 and McNamee since 1985. Rovet is not retired and works full-time as an accountant. McNamee retired following a distinguished career in law enforcement in New York City. "The Three Musketeers" Join the Board Together in 2018 For several years, Petitioners, Rovet, and McNamee were good friends and socialized together. In 2016, Rodriguez was president of the board. By the end of 2016, a dispute arose regarding Rodriguez's presidency and he was removed as president. However, Rodriguez remained on the board as a director for unspecified periods of time during 2016 and 2017. By the end of 2017, Rodriguez was no longer on the board. However, Rodriguez, McNamee, and Rovet were dissatisfied with the prior management company at Bonavida and condition of the property, so they agreed to become more active in the association. To this end, McNamee asked Rodriguez to join the board with him and Rovet. In January 2018, Rodriguez, McNamee, and Rovet joined the board together determined to collectively combat the problems at Bonavida. McNamee became vice president, Rovet became treasurer, and Rodriguez was a director. At the time, Petitioners, McNamee, and Rovet, were still good friends. In fact, Rodriguez, McNamee, and Rovet fondly referred to each other as "the three musketeers" in reference to their plan to combat the problems at Bonavida. Deterioration of the Relationship and the July 30, 2018, Board Meeting Not long after joining the board together in January 2018, the friendship between Petitioners, McNamee, and Rovet deteriorated. A dispute arose between Petitioners, McNamee, and Rovet over the management of the board and how to address the condition of the property. These disputes are gleaned from a review of numerous emails exchanged between Rodriguez, McNamee, and Rovet on June 22, 2018. On June 25, 2018, on the heels of these emails, a Bonavida board meeting was held. During the meeting, Rodriguez became angry, took the floor, and to McNamee's and Rovet's surprise, challenged McNamee's and Rovet's qualifications to be on the board. Rodriguez argued that McNamee and Rovet were not full-time residents of Bonavida (McNamee was a resident of New York and Rovet was a resident of Canada); and, therefore, they were not qualified to be on the board. Bonavida's condominium attorney was present at the June 25, 2018, board meeting and the matter was addressed and resolved at the meeting in favor of McNamee and Rovet. Nonetheless, after the meeting, Rodriguez unilaterally contacted the board's attorney causing Bonavida to incur additional legal expense. Understandably, after the June 25, 2018, board meeting, Petitioners, McNamee, and Rovet were no longer friends and they did not speak to each other, although they each remained on the board. In the meantime, Rovet, as treasurer, had discovered that Bonavida's finances were in poor shape, and one of the reasons was the incurrence of unauthorized legal fees incurred by Rodriguez. The matter was noticed to be discussed during a board meeting to occur on July 30, 2020, where other fees potentially owing and due to Bonavida from other unit owners would also be discussed. The agenda for the July 30, 2018, board meeting was posted in common areas. The agenda items included "Carlos Rodriguez-Legal Fees" and various types of fees attributable to other units. The meeting commenced at 5:04 p.m., and did not conclude until 7:20 p.m. The meeting began in chaotic fashion with Rodriguez interrupting other speakers and bickering over the approval of the prior board meeting minutes. After several minutes of bickering, a vote was taken and the reading and approval of the previous meeting minutes was tabled so that the board could move forward and address the agenda items. Even after this vote, Rodriguez continued to argue about the prior meeting minutes and interrupted other speakers. At one point, an unidentified speaker chastised Rodriguez for always interrupting other speakers at board meetings, which invoked a loud applause and "thank yous," from other attendees at the meeting. The meeting then turned to the first agenda item, which was a discussion and vote on a proposal requiring Petitioners' unit to reimburse Bonavida for legal fees. As treasurer, Rovet took the floor to speak on the matter. He was immediately interrupted by Rodriguez, which resulted in further bickering until Rodriguez momentarily stopped talking. At the meeting, Rovet explained that the legal fees were incurred by Bonavida in 2017, and arose from five invoices totaling $5,332.52. Each invoice was attributable to Petitioners' unit. Four of the invoices (totaling $4,448.52) related to a conflict between the former association manager, Beth Natland, and Bontempi, in which Bontempi was accused of threatening Ms. Natland. Another invoice in the amount of $884.00 related to an attempted transfer in 2017 of Petitioners' unit from an "LLC to their trust." There was a heated and chaotic discussion on the item for almost one hour. Petitioners disagreed with Bonavida's legal authority to recover the legal fees. Following a vote, a majority of the board voted to hold Petitioners' unit responsible to reimburse Bonavida for the legal fees ($5,332.52). After the vote, no action was ever taken to seek to recover the legal fees. The legal fees have never been placed on Petitioners' unit ledger; Bonavida has not sought to collect the fees; the fees have never been paid; no lien, lawsuit, or foreclosure action was filed; and Petitioners have never been threatened with eviction or evicted. On December 10, 2018, the president of Bonavida sent Petitioners a letter stating that no action would be taken to collect any of the legal fees. Petitioners do not owe any assessments, expenses, or fees to the association and they own their unit free and clear of any mortgage liens, fees, expenses, or assessments owed to Bonavida. Notably, Petitioners have resided at the unit without interruption since they moved into Bonavida in 2015. At no time have Petitioners been denied the provision of services or facilities in connection with the sale or rental of a dwelling. Nevertheless, Petitioners assert that the agenda's reference to Rodriguez by name and the board's action at the July 30, 2018, meeting to recover the legal fees of $5,332.52 against their unit is based on national origin discrimination. Significantly, at no time during the meeting did Petitioners contend that the agenda or attempt to recover the legal fees was based on national origin discrimination. At hearing, Rodriguez could not explain how the attribution of the legal fees incurred in 2017 related to Petitioners' unit are based on his national origin. Rather, Rodriguez contends Petitioners could not be legally held responsible for the attorneys' fees; a point he stated at the meeting and reiterated at the final hearing. The evidence presented at hearing demonstrates that other unit owners who are not Argentinian have been identified at board meetings as being responsible for various types of fees owed to Bonavida. In sum, Petitioners failed to present persuasive and credible evidence that Respondents discriminated against them based on their national origin with respect to the meeting agenda, the July 30, 2018, board meeting, and any attempt to recover the legal fees from Petitioners' unit in the amount of $5,332.52. Emails Petitioners further assert that they were discriminated against because of their national origin based on emails authored by Rovet. On April 3, 2018, Rovet sent an email to Brenda Friend, the president of Bonavida, in which numerous other persons, including Rodriguez, were copied, stating: Great suggestion Brenda. We should only allow Brazilians into the building. My ideas would be to have everyone speak one language, like Swedish. A great rule change would be to require all residents to change their underwear every day and to wear the underwear [on] the outside of their clothing so we can check. Good work team! Rovet's April 3, 2018, email was not directed at Petitioners and does not refer to their national origin. At hearing, Rovet testified that he is a fan of movies and music, and that he often refers to various movies and songs in his communications with others in an attempt at "dry humor." Rovet testified that his reference to "Brazilians," "Swedish," and individuals with underwear outside their clothing was an attempt at humor and in reference to a "Woody Allen movie." The email was in no way intended to disparage Petitioners based on their national origin. At hearing, Rodriguez acknowledged that Rovet is sarcastic and that it is important to consider the full context of email conversations. Petitioners also point to an email by Rovet dated April 15, 2018, which he sent to Rodriguez and other board members regarding "Violations and Enforcement Committee," stating: Before leaving there Brenda and I discussed this issue and concluded that regardless of what our rules state and what state laws state we should be reasonably aggressive against violators because we have to in order to change the culture but also because most residents will not know the rules nor take the time to learn about them. If confronted by anyone surpassing that assumption we can always withdraw from our position. This email does not refer to Petitioners and makes no reference to their national origin. In no way was this email intended by Rovet to disparage Petitioners' national origin. Petitioners also point to the following string of emails by Rovet dated May 28, 2018. At 4:38 a.m. that morning, Rovet stated: "How do you know its pee?" A couple of hours later, McNamee responded; "?? Shouldn't pee be on the pillar. I only see it on the floor therefore, if pee, it's not a male dog?" In response, Rovet sent an email to McNamee, Rodriguez, and others stating: "We need a pee detective to get to the bottom of this." At hearing, Rovet testified that he wrote the May 28, 2018, emails because a dog was allegedly "peeing" somewhere near his building. Rovet's reference to "pee detective" was in reference to the Jim Carrey movie, "Pet Detective." The May 28, 2018, emails were another attempt by Rovet at dry humor and in no way intended to disparage Petitioners based on their national origin. Petitioners also point to an email written by Rovet on July 25, 2018, at 4:03 p.m. to McNamee, Rodriguez, and other board members, stating: "Let[']s put that in the new condo rules – all board members required to sit at same table facing same way unless they have BO and/or excess gas and are over smiling." This email does not refer to Petitioners. This email was another attempt by Rovet at dry humor and was in no way intended to disparage Petitioners based on their national origin. Petitioners also point to an email written by Rovet on July 26, 2018, at 5:27 p.m., to Rodriguez and other board members, stating: "can't help but think of Staff Sergeant Bob Barnes in Platoon--terrible what happened to Sergeant Elias, no relation to our President, at the end." This email does not refer to Petitioners, was another attempt by Rovet at dry humor, and was in no way intended to disparage Petitioners based on their national origin. Petitioners also point to an email written by Rovet on July 27, 2018, at 2:26 p.m., stating, "sung to the tune 'Cry For Me Argentina.' [The song title is actually 'Don't Cry for Me Argentina']." This is the only email authored by Rovet that actually mentions Argentina. This email was written by Rovet following a dispute among the board members as to how meetings and votes should be conducted. Significantly, Rodriguez interjected the issue of Argentina into the discussion in reference to the past-oppressive Argentinian government and as an example of how meetings at Bonavida should not be conducted, which prompted Rovet to write the email, "sung to the tune 'Cry for Me Argentina.'" In response to Rovet's email, Rodriguez wrote back to Rovet moments later, stating: "Please don't make fun of the death and disappearance of 30,000 people." Moments later, Rovet responded: "I love to sing. I have a right to sing and I shall sing. Can we sing together?" Later that afternoon, Rovet also sent an email, stating: "stand and sing with you John—let[']s stand and sing together a song called 'Oh That Sweet Lovely Bully Boy.'" At hearing, Rovet testified that the email "sung to the tune 'Cry For Me Argentina,'" was in reference to the song by Madonna titled: "Don't Cry For Me Argentina," which Rovet had just heard prior to writing the email. At hearing, Rodriguez acknowledged he is aware of the Madonna song; that Rovet made the statement "Cry For Me Argentina" as a joke; and that he (Rodriguez) interjected the issue of Argentina into the conversation before Rovet's email. Rovet's emails were another attempt at dry humor and were in no way intended to disparage Petitioners based on their national origin. Petitioners also point to an email written by Rovet to Rodriguez and others on August 19, 2018, stating: "Let[']s give Arthur a piece of our hearts so he might have some peace in his heart and maybe he will respect our parking rules." This email makes no reference to Petitioners' national origin and is in no way disparaging against Petitioners based on their national origin. Petitioners also point to an email written by Rovet on September 1, 2018, to various persons regarding "Unauthorized notice at mail room," stating: Well said Elisa, the guy's real intentions have been apparent for some time. Yes I agree, he needs a shrink. A football team of them, in fact. (It's never easy as an adult if beaten as a child). Meanwhile, the fencing will go on, and that's the main thing. I don't mind Carlos around, even if his intentions are nefarious, because these little things he comes up with (a piece of paper, a missing flag and the fence permit, for example), makes us all step up our game and that's never a bad thing because there are cracks and stuff inadvertently falls in them. Almost can[']t wait for his next amusing electioneering gambit. Probably the parking system. He dislikes it. But I appreciate the feedback, even if delivered negatively, and any help he has to lend us which can serve to make us better. This email refers to Rodriguez's ongoing disputes and bickering with board members regarding various issues before the board. The email in no way disparages Petitioners based on their national origin; and, in fact, demonstrates Rovet's tolerance of Rodriguez's positions on various issues pertaining to Bonavida. Petitioners also point to an email from McNamee to Rovet and other persons on September 2, 2018, at 6:32 p.m., stating, "Try dictator instead of director?" This email does not refer to Petitioners and their national origin. Even if it referred to Rodriguez, however, it illustrates the personal dispute and bickering between McNamee and Rodriguez over the handling of board matters and in no way was intended to disparage Petitioners based on their national origin. The undersigned carefully considered all the emails received into evidence which are alleged by Petitioners to be discriminatory against them based on their national origin, even if every email is not specifically referenced herein. Suffice it to say that none of the emails demonstrate a discriminatory animus by Respondents against Petitioners based on their national origin, and, in any event, Petitioners did not suffer any injuries from the emails. In sum, Petitioners failed to present persuasive and credible evidence that Respondents discriminated against them based on their national origin with respect to any emails. McNamee's "Bullshit" Comment During the October 22, 2018, Meeting During this chaotic board meeting, an ongoing parking issue was discussed. The discussion was supposed to be very brief. After a few minutes, Rodriguez took the floor and while he was speaking on the matter and discussing a possible solution, McNamee, who was attending the meeting over a speakerphone, blurted out: "Stop the bullshit." Not to be deterred, Rodriguez spoke for several more minutes explaining his proposal. At hearing, McNamee testified that the "stop the bullshit" comment was directed at his wife, who was in the same room with him. McNamee thought his speakerphone was muted when he made the comment to his wife. McNamee further testified that the same comment had been used by Rodriguez on prior multiple occasions. The phrase "stop the bullshit" is commonly used in today's vernacular. Even if the comment was directed at Rodriguez, it had nothing to do with Petitioners' national origin. In sum, Petitioners failed to present persuasive and credible evidence that Respondents discriminated against them based on their national origin with respect to the "stop the bullshit" comment made by McNamee during the October 22, 2018, board meeting. Petitioners' Retaliation Claim Based on Emails Petitioners contend Respondents subjected them to retaliation beginning in March 2019, after the filing of Petitioners' HUD complaint. In support of their position, Petitioners again rely on various emails. On March 14, 2019, at 2:49 p.m., Rodriguez wrote to Elisa Souza and copied other board members, including Brenda Friend, regarding "Generator repair quotes," stating, Hi Elisa Please note that the most important issue was not replied by you. Are you against transparency? Are you against to having 3 bids? Respectfully Carlos At 3:05 p.m., Ms. Friend wrote to the other board members, stating: "Elisa let him 'die' wondering of that!" At 3:13 p.m., Ms. Friend wrote again to other board members: "It seems Carlos has adopted the bad so well known 'leftist' habit/strategy which is: 'Always accuse others of what you are and do.' So people (the masses) of poor intellect can believe." Ms. Friend did not testify at the final hearing, so it is unclear what she meant by the emails she authored on March 14, 2019. Nevertheless, a plain reading of the email string indicates her comments were made in direct response to emails written by Rodriguez challenging her transparency and decisions, not in response to Petitioners' HUD complaint; and, in any event, no action was taken against Petitioners in the emails. On April 9, 2019, at 1:40 p.m., the Bonavida manager wrote an email to unidentified individuals regarding an insurance carrier's approval of a law firm to defend against Petitioners' HUD complaint filed against Bonavida and two directors. In response, at 2:18 p.m., Rovet wrote "another reason not to do the pool now," which elicited an email from McNamee to unidentified persons at 7:44 p.m., stating: "After the association wins the case, can they sue for expenses incurred for defending this libelous action or does every one of us sue individually?" Merely questioning whether expenses may be recovered and referring to Petitioners' complaint as "libelous" is not retaliation. Again, no action was taken against Petitioners in these emails. On May 29, 2019, at 10:33 a.m. an unidentified person wrote to Ms. Friend and other board members, stating: Dear Ms[.] Friend I do not want you to think I'm ignoring your questions but I'm going down to speak to the manager in person about what requires permits what doesn't require permits, is there a list of things that absolutely must be inspected by County inspectors, is there a list of things that absolutely don't have to be inspected. Etc etc etc] I wish there were such a list I would love to shove it in our antagonists face ??? At 11:02 a.m., McNamee replied, stating, "Does the City of Aventura reward whistle blowers for creating revenue? The City of NY does[.]" Rodriguez takes issue with McNamee's email at 11:02 a.m. At hearing, Rodriguez acknowledged that because of his "scientific preparation and attitude," he was "obsessive on getting the permits…," and ensuring they were correct. Based on Rodriguez's own testimony, the email authored by McNamee was in reference to permits, not Petitioners' HUD complaint. In any event, no action was taken against Petitioners in the email. The undersigned carefully considered all the emails received into evidence which are alleged by Petitioners to be retaliation against them based on their HUD complaint, even if every email is not specifically referenced herein. Suffice it to say that none of the emails demonstrate a retaliatory animus by Respondents against Petitioners based on their HUD complaint, and no action was taken against Petitioners in the emails. In sum, Petitioners' failed to present persuasive and credible evidence that Respondents retaliated against them for filing their HUD complaint based on any emails. Petitioners' Retaliation Claim Based on the Cardroom Incident Finally, Petitioners contend that McNamee's inquiry to the Bonavida manager regarding a gathering of owners, including Rodriguez, at a Bonavida cardroom on December 8, 2019, is further evidence of retaliation. However, McNamee's inquiry legitimately pertained to whether Rodriguez had paid the required deposit to reserve the cardroom for the gathering. In any event, no action was taken against Petitioners. In sum, Petitioners failed to present persuasive and credible evidence that Respondents retaliated against them for filing their HUD complaint based on McNamee's inquiry to the manager regarding the cardroom.
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 6th day of October, 2020, in Tallahassee, Leon County, Florida. S DARREN A. SCHWARTZ 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 4 On pages 29 and 30 of their Proposed Recommended Order, Petitioners assert that Respondents also violated section 760.23(3) with regard to an unspecified "chain of emails" 15 days before the July 30, 2018, board meeting and the posting of the agenda for the July 30, 2018, meeting. Under section 760.23(3), "[i]t is unlawful to make, print, or publish, or cause to be made, printed, or published, any notice, statement, or advertisement with respect to the sale or rental of a dwelling that indicates any preference, limitation, or discrimination based on … national origin or an intention to make any such preference, limitation, or discrimination." However, whether Respondents violated section 760.23(3) was not identified as an issue in the notices of hearing or at the final hearing. It is also not identified as an issue at the beginning of the parties' proposed recommended orders. Accordingly, the issue has been waived. Even if the undersigned were to address the issue, however, Petitioners' claim under section 760.23(3) fails for the same reasons their claim under section 760.23(2) fails. Respondents did not make, print, or publish, or caused to be made, printed, or published, any notice, statement, or advertisement with respect to the sale or rental of a dwelling that indicates any preference, limitation, or discrimination based on their national origin or an intention to make any such preference, limitation, or discrimination. Filed with the Clerk of the Division of Administrative Hearings this 6th day of October, 2020. COPIES FURNISHED: Tammy S. Barton, Agency Clerk Florida Commission on Human Relations 4075 Esplanade Way, Room 110 Tallahassee, Florida 32399-7020 (eServed) Carlos O. Rodriguez Monica Bontempi 20100 West Country Club Drive, Unit 1505 Aventura, Florida 33180 (eServed) S. Jonathan Vine, Esquire Cole, Scott & Kissane, P.A. 222 Lakeview Avenue, Suite 120 West Palm Beach, Florida 33401 Stuart S. Schneider, Esquire Cole, Scott & Kissane, P.A. 222 Lakeview Avenue, Suite 120 West Palm Beach, Florida 33401 (eServed) Cheyenne Costilla, General Counsel Florida Commission on Human Relations 4075 Esplanade Way, Room 110 Tallahassee, Florida 32399-7020 (eServed)
The Issue Whether petitioners have standing to challenge the validity of respondent's proposed rules, 38F-5.30 through 38F-5.70, Florida Administrative Code I.
