The Issue Whether the Petitioner has been the victim of an unlawful Housing Practice, as addressed in Sections 760.20 through 760.37, Florida Statutes, by being subjected to discriminatory terms, conditions, or privileges in the rental of a dwelling, and in the provision of services or facilities in connection with such dwelling, because of a handicap of the Petitioner.
Findings Of Fact The hearing in this matter was convened at the duly- noticed time and location at the Visiting Judge's Chambers at the Okaloosa County Courthouse Annex, at 10:00 a.m., Central Standard Time. The Petitioner failed to appear. The Respondent, the court reporter and the undersigned waited at the hearing room for 45 minutes and the Petitioner never appeared. The Petitioner was appropriately served with the Notice of Hearing, at her last-known address of record. Counsel for the Respondent represented, on the record, that neither he, nor any person present who was acquainted with the Petitioner, had observed the Petitioner in the vicinity of the hearing site. In light of this circumstance, no evidence was taken, because the Petitioner, as the party with the burden of proof, had not appeared to advance her claim. The hearing was therefore adjourned and the above-referenced Order to Show Cause was issued, requiring a showing of good cause for the failure to appear, on pain of dismissal for a failure to timely respond. The response was due on August 23, 2009. No response was filed.
Findings Of Fact Outdoor Advertising Art, Inc. is the owner of a 12 x 40 foot sign located on State Road 540 in Polk County. The records of the Department of Transportation show the last valid permit for this sign was issued in 1973. The Respondent forgot to renew the permit for 1974 due to clerical error of its staff although it received notice as required by statute from the Department of Transportation. On October 2, 1975, Outdoor Advertising Art, Inc. attempted to obtain a permit for this sign for the year 1974 and 1975, and tendered a check to Department of Transportation in the amount of $20. In doing so, the Respondent relied upon what it stated the policy of the Department had been regarding renewal of delinquent permits; however, it did not fail to renew in reliance on this policy but through its own oversight. The Department of Transportation denied the permit on the sign which did not conform to the existing rules and regulations adopted by the State of Florida as part of the federal highways beautification program. Testimony was received that delinquent applications have been allowed to be filed by the Department of Transportation, but not in District I of the Department of Transportation.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, this Hearing Officer recommends that the sign be removed. DONE and ENTERED this 27th day of January, 1978, in Tallahassee, Florida. STEPHEN F. DEAN, Hearing Officer Division of Administrative Hearings Room 530, Carlton Building Tallahassee, Florida 32304 (904) 488-9675 COPIES FURNISHED: John J. Rimes, Esquire Office of Legal Operations Department of Transportation Haydon Burns Building Tallahassee, Florida 32304 William D. Rowland, Esquire Post Office Box 539 Winter Park, Florida 32789
The Issue Are the four notices of violation against Respondents valid, and if valid, may the Department of Transportation require that the allegedly offending signs be removed?
Findings Of Fact On or about September 21, 2000, DOT became aware that two trucks bearing written material were parked adjacent to DOT's right-of-way on the west side of Interstate 95 (I-95) in St. Johns County in such a manner that the written material was visible from the main-traveled way of I-95. DOT issued four Notices of Violation against the two trucks. Notice of Violation number 10B TS 2000 539 was issued to Café Erotica of Florida, Inc., d/b/a Café Erotica on September 21, 2000, against a truck located adjacent to I-95, 2.015 miles north of SR 207, at milepost 15.823. This violation notice became DOAH Case No. 00-4188T. Notice of Violation number 10B TS 2000 540 was issued to Café Erotica of Florida, Inc., d/b/a Café Erotica on September 21, 2000, against a truck located adjacent to I-95, 2.041 miles north of SR 207, at milepost 15.849. This violation notice became DOAH Case No. 00-4189T. Notice of Violation number 10B BB 2000 539 was issued to Café Erotica/We Dare to Bare/Adult Toys/Great Food/Exit 94, Inc., c/o Gary Edinger, the registered agent for the corporation, on October 10, 2000, against the truck located adjacent to I-95, 2.015 miles north of SR 207. This violation notice became DOAH Case No. 00-4423T. Notice of Violation number 10B BB 2000 540 was issued to Café Erotica/We Dare to Bare/Adult Toys/Great Food/Exit 94, Inc., c/o Gary Edinger, the registered agent for the corporation, on October 10, 2000, against the truck located adjacent to I-95, 2.041 miles north of SR 207. This violation notice became DOAH Case No. 00-4424T. All of the foregoing notices alleged that the trucks are in violation of Chapter 479, Florida Statutes, in that they are unpermitted signs. On October 24, 2000, DOT issued a letter to Café Erotica/We Dare to Bare/Adult Toys/Great Food/Exit 94, Inc., advising it that the trucks which were issued the above- referenced notices of violation had been moved temporarily out of view and then returned to visibility at each other's previous milepost location. The letter advised that notwithstanding the movement of the trucks within their general location, the trucks remained illegal signs pursuant to Chapter 479, Florida Statutes. I-95 is part of the Interstate Highway System. The two trucks are located at times within 660 feet of the nearest edge of the right-of-way of I-95. The trucks can be seen without visual aid by motorists of normal visual acuity traveling on I-95. Admitted Fact Four of the parties' prehearing stipulation was that at the time the notices of violation were issued, the trucks displayed the words "Café Erotica/We Dare to Bare/Adult Toys/Great Food/Exit 94, Inc." However, their Admitted Fact Five, incorporating photographs, and other photographs in evidence reveal that one truck had the foregoing display without the slashes and one truck juxtaposed the phrases "Great Food" and "Adult Toys," also without the slashes. The trucks were located within 15 feet of the right-of-way fence and were parked on raised mounds of dirt, elevating them above the surrounding terrain. Immediately adjacent to the trucks were light fixtures with halogen lights aimed at the sides of the trucks. If electricity had been available, the lights could have illuminated the vehicles. The trucks were intentionally placed at their locations. As of January 5, 2001, additional verbiage was added to the trucks which states, "Hunt & Fish Camp." As of the March 7, 2001, date of hearing, the trucks still contained this additional verbiage. On both trucks, the letters are all capitalized; the size of the letters and the paint colors used call the viewer's attention to the phrases, "CAFE? EROTICA," "WE DARE TO BARE," "ADULT TOYS," "GREAT FOOD," and "EXIT 94." The abbreviation "INC.," is the phrase smallest in size, located at the very bottom right, relatively inconspicuous, and the words, "hunt & fish camp," follow, vertical to the rest of the verbiage. There are no addresses, telephone numbers, arrows, or other identifying information. Respondent Cafe Erotica/We Dare to Bare/Adult Toys/Great Food/Exit 94, Inc., is a Florida corporation. At all times material, Café Erotica/We Dare to Bare/Adult Toys/Great Food/Exit 94, Inc., has been a corporation in good standing with the Florida Department of State, which has registered and approved its corporate name pursuant to Section 607.0401, Florida Statutes. Asher G. Sullivan, Jr., a/k/a Jerry Sullivan, is incorporator, President, shareholder, and Director of the corporation, which will hereafter be referred to as "Exit 94, Inc." Exit 94, Inc., owns, insures, and maintains the two trucks which are the subject of this proceeding. Exit 94, Inc., likewise owns the real property on which the trucks are located, which parcel consists of approximately 11 acres situated between I-95 exits 94 and 95. Exit 94, Inc., does not sell food or adult toys. It does not offer dancers for public viewing. The business of Exit 94, Inc., is developing a hunting and fishing camp at the property it owns, the property where its trucks were cited by DOT, between I-95 exits 94 and 95. Respondent Café Erotica of Florida, Inc., d/b/a Café Erotica, is a Florida corporation which holds the license and owns the assets of the Café Erotica restaurant. Jerry Sullivan also is president, shareholder, and owner of Café Erotica of Florida, Inc., which will hereafter be referred-to as "Café Erotica." The St. Johns Management Company manages the Café Erotica restaurant. Jerry Sullivan also is the President and shareholder of the St. Johns Management Company. The Café Erotica restaurant is a 24-hour per day, full-service restaurant which features dancers clad in bathing suits and which sells adult toys. The Café Erotica restaurant is located at 2620 State Road 207 (SR-207), at the intersection of SR 207 and the exit 94 off-ramps from I-95. The real property owned by Café Erotica is not contiguous to the subject real property owned by Exit 94, Inc. The real property owned by Exit 94, Inc., which is the subject of DOT's notices of violation is approximately seven miles from the Café Erotica restaurant. The Café Erotica restaurant currently advertises on its premises and on a billboard at exit 94 of I-95. In the past, Café Erotica has advertised "we dare to bare," "adult toys," and "exit 94" on other billboards located adjacent to I- 95 in St. Johns County. Café Erotica no longer rents billboards in these locations. The advertisements of Café Erotica currently at exit 94 of I-95 include the words, "private dances," and "great food/adult toys." The advertising is specifically directed at motorists, including truck drivers, on I-95. In addition to the real property where its trucks were cited by DOT, which real property Exit 94, Inc., holds by warranty deed, Exit 94, Inc., leases property at the southeast corner of I-95's exit 93, where SR-206 intersects with I-95. At that location, Exit 94, Inc., displays a 14-foot by 25-foot permanent billboard sign reading "Café Erotica/We Dare to Bare/Great Food/Adult Toys/Exit 94, Inc." (Note juxtaposition of part of the corporate name). Below this billboard, on the same leased property, is a smaller sign stating "Fish Camp" with a telephone number (P-11; TR 66-64, 73- 74, 183-184). Exit 94, Inc., claims to maintain an office and a telephone on this leased property. Mr. Sullivan's primary business is that of renting billboards for advertising purposes, which he owns. He has advertised on leased signs and has knowledge of DOT's sign permit requirements. At one time, Mr. Sullivan intended to place a billboard on the property owned by Exit 94, Inc. He has not done so. Neither Café Erotica nor Exit 94, Inc., has applied to DOT for sign permits for the subject trucks, nor paid any sign permit fees for them. No sign permits have been issued to any entity for the subject trucks. When the Notices of Violation were issued, DOT inspectors did not enter on the real property owned by Exit 94, Inc., or pull any business licenses for the property. They viewed the trucks from I-95. No improvements were visible from I-95. DOT did not undertake any investigation to determine the owner(s) of the subject trucks or subject real property. Café Erotica does not own any interest in the subject trucks or real property, and no citizen testified that the trucks had caused him/her to patronize the Café Erotica. DOT witnesses acknowledged that the Notices of Violation issued to Café Erotica were essentially issued in error because DOT did not know the identity of the owner of the subject trucks and real property. Upon discovering that Café Erotica did not own any interest in the subject trucks or real property, DOT made no effort to dismiss the violations against Café Erotica. Jerry Sullivan has decision-making authority for both Respondents as a corporate officer of both corporations. Jerry Sullivan makes management decisions concerning Café Erotica, including whether, and how, to advertise. Jerry Sullivan has directed all activity on the Exit 94, Inc., property. He anticipates creating, maintaining, and charging people for the privilege of using the subject property as a fishing and hunting camp. He also intends to reward employees and clients of his various enterprises with free privileges at the camp. Ninety percent of the time, the subject trucks are parked on the subject property. However, from time to time, the trucks, one of which was burned out and one of which has a "for sale" sign painted on its windshield, are driven off the Exit 94, Inc., property to haul equipment and corn to the subject property, for "truck maintenance," and for incidental uses in connection with Exit 94, Inc., and Mr. Sullivan's other business entities, including Café Erotica. On some of these occasions, the trucks are parked in the parking lot of the Café Erotica restaurant. The trucks are used off the Exit 94, Inc., property only two or three times per month. Except when under repair, they can be driven on the roads and highways. Exit 94, Inc., paid approximately $35,000 for the subject property on or about April 9, 1999, well before the notices of violation. Eight months prior to hearing (approximately three months before the notices of violation), Exit 94, Inc. dug a pond in a naturally low spot and/or a natural basin where Mr. Sullivan believed a pond originally had been on the subject property. A solar panel pump was installed to put water into the excavation because getting electricity run to the property was prohibitively expensive. Inspection of the subject property by DOT personnel only occurred about two-and-one-half weeks before the disputed- fact hearing. At that time, the solar pump used to fill the pond with water was not working well, so that the possibility of fish living in the rather shallow pond was highly unlikely. The pond was not stocked with fish. The property was not stocked with game animals. There was also one very ramshackle deer blind on the property and a permanent metal, utility pole had been erected to support another deer blind. There were no utilities, restrooms, offices, or facilities to clean game on the premises. No fishing equipment was available for purchase. This situation was memorialized by photographs in evidence. The Exit 94, Inc., property has only one entrance which is not directly accessible from a public roadway. To reach Exit 94, Inc.'s, only entrance, a car gets off I-95 at exit 94, where Café Erotica is located, and proceeds to a private dirt road created and owned by Georgia-Pacific timber company, and then drives approximately one mile along that dirt road over the timber company's land. Thousands of acres of scrub pine belonging to the timber company surround Exit 94, Inc.'s property. Entrance to the timber company land is through a fence/gate. The timber company gate is "posted," warning that hunting is not permitted on its land and that violators will be prosecuted. The Exit 94, Inc., property is also "posted," and therefore not open to the general public. There is a "Café Erotica/We Dare to Bare/Adult Toys/Great Food/Exit 94, Inc., Hunt & Fish Camp" sign at its entrance. It cannot be inferred, as urged by DOT, that if a real property owner "posts" its property so the owner may subsequently prosecute trespassers and poachers, the owner also cannot charge a fee to customers, invited guests, or business invitees who hunt or fish on its property with its permission. Travelling as described above, there are approximately nine and one-half miles between exit 94 of I-95 and the Exit 94, Inc., property. There are no signs advertising a "hunt and fish camp" on this stretch of land, but Exit 94, Inc., has its billboard and other sign at Exit 93. (See Finding of Fact 22.) Exit 94, Inc., presented accounts showing it spent over $7,003 maintaining its signs since 1999 and over $12,000 on the subject trucks. Exit 94, Inc., lists addresses and locations other than the subject property as its business address(es) for various purposes. It maintains no office or telephone on the subject property. The only building on the subject property is a very small storage shack, placed there by Exit 94, Inc. The shack is not habitable as overnight lodging. It was designed to hold repair equipment and corn for seeding the pond for waterfowl and seeding the woods for deer. There is no evidence whether this method of luring game from the surrounding area is legal or illegal, but it is certainly feasible, given the location of the subject property. (See Finding of Fact 38.) Russell Market is General Manager for the Café Erotica restaurant. He was directed by Mr. Sullivan to check on Exit 94, Inc.'s, subject property, and he did so once a week and scattered corn for nine months. He saw wild turkeys on the subject property. Bill King is affiliated with Mr. Sullivan's companies. He has not hunted the subject property, but he sighted one of the deer stands. No witness testified to having camped overnight on the subject property. Bill Harry, who is employed by Mr. Sullivan, has hunted the subject property three or four times without success, despite once seeing a deer. Jerry Sullivan killed a deer on the subject property. There is no parking lot on the subject property. Respondents' witnesses testified that the subject trucks are parked on raised mounds of earth because the subject property is swampy. Only several hundred-by-60 feet have been cleared of brush. There is no telephone service to the subject property. If someone dials the telephone number listed for Exit 94, Inc. on its application to be a fish farm (see Finding of Fact 55) which is the same number on its sign at I-95's exit number 93 (see Finding of Fact 22), a recorded message relays the caller to a telephone number for the cell phone Mr. Sullivan carries on his person. No utilities are currently available on the subject property, but the solar pump is in use at the pond. Bill Harry repaired the pond pump a few days after showing DOT personnel around the subject property. (See Finding of Fact 36.) At hearing, he testified that the pond is now filling well with water. When the pond is full, Mr. Sullivan intends to stock it with fish. Exit 94, Inc., holds an occupational license from St. Johns County as a "fish camp." In issuing this license, the County accepted Exit 94, Inc.'s, designation of its business without further inquiry. Exit 94, Inc., has applied for a "fish farm" license from the Florida Game and Freshwater Fish Commission. Exit 94, Inc., produced invoices sent to clients for hunting and fishing privileges on the subject property, corresponding checks in payment, and tax returns. Patricia Doorbar, bookkeeper for Exit 94, Inc. and all of Mr. Sullivan's other business entities, testified that she had drafted all of the invoices, and had prepared the tax returns. She further testified that she maintained Exit 94, Inc.'s corporate financial books in accord with generally accepted accounting principles. The invoices and payments reflect that other business entities controlled by Mr. Sullivan or his family members were billed and paid for use of the Exit 94, Inc., property. Exit 94, Inc., currently operates at a loss, made up as necessary by Mr. Sullivan. No legitimate reason was demonstrated to pierce the corporate veil of any of Mr. Sullivan's corporations. Approximately two weeks before the disputed-fact hearing, Exit 94, Inc., made improvements to the subject property. These included laying out feed corn on the ground, repairing a deer stand so it could support one or more hunters, and repairing the solar pump. See supra. These improvements were memorialized by photographs in evidence. Respondents asserted that DOT has selectively enforced the sign law against them on the basis of many photographs of trucks bearing written material which were admitted in evidence. The trucks typically carry a business name, address and telephone number. Some carried only a business name. DOT rarely issues notices of violations for trucks. Within the last three-and-one-half years, trucks constituted approximately five such notices out of 3500 sign violation notices of all kinds, not just off-premises signs. The notices to these two Respondents constitute four of the five notices. DOT has promulgated no rules or policies specifying the factors to be considered when evaluating whether an operational truck constitutes an "off-premises sign" worthy of a violation notice. In the normal course of business, DOT inspectors determine whether trucks constitute "on-premises signs" on a case-by-case analysis which weighs content of the sign, usage of the truck, location and length of time the truck is in a single location, and whether the sign content advertises the business at the location where the truck is parked, advertises another business, or advertises anything at all. Inspectors have wide discretion in issuing notices of violation. With respect to the majority of Respondents' photographs presented at hearing, DOT representatives gave reasonable explanations why the truck owners had not been notified of violations, usually because the truck was being operated on the highway, was not parked over-long away from the business premises which it named, or was parked on the property of the business to which it belonged or which it named. In one instance, a contractor's truck was not charged with a violation because it was parked at a construction site which also bore a sign proclaiming that the construction work was being done by that contractor. Sometimes the reason a truck had not been cited was because the truck had not been located. DOT does not research which corporations or persons own or operate trucks painted with business names, and apparently, precision in painting a business name on other operable trucks had no effect on DOT's decision to treat other operable trucks as "on-premises signs" so that no notices of violation were issued against them. Similar photographs of trucks which Mr. Sullivan had sent to DOT were personally evaluated by DOT's Assistant Right- of-Way Manager for Operations, but this measure was only in response to the Respondents' allegations of selective enforcement in the instant case. The Assistant Right-of-Way Manager directed DOT district personnel to take either further investigative or regulatory action as she instructed on a case- by-case basis. One truck for "Smiley's" was subsequently issued a violation notice.
Recommendation Upon the foregoing findings of fact and conclusions of law, it is
The Issue The issue is whether Respondent is guilty of committing a discriminatory housing practice against Petitioners, based on their national origin, in violation of the Florida Fair Housing Act, sections 760.20-769.37, Florida Statutes.
Findings Of Fact In 2006, Petitioners purchased the single-family detached residence located at 1360 Northeast 41st Place in Homestead, Florida. The home is located behind an access gate that requires a card to operate. The card is serviced by Respondent through its management company, The Continental Group. Petitioners claim that Respondent's harassment forced them to move out of their home in October 2012. It is likely, though, that the timing of their relocation was influenced by a foreclosure judgment entered on March 7, 2012. The foreclosure judgment calculated interest on the unpaid mortgage note from September 1, 2008, suggesting that Petitioners had not made mortgage payments for the four years immediately preceding their moving out of the house. Petitioners' residence is subject to a declaration of covenants and bylaws. Respondent and The Continental Group are responsible for enforcing the provisions of these homeowner documents. Petitioners have a long history of violations of the homeowner documents dating as far back as at least late 2008. A notice dated December 31, 2008, advised Petitioners of a noncompliant lease. Notices dated June 30 and December 15, 2009, advised Petitioners that their landscaping lacked mulch. Notices dated August 10 and 25, 2009, advised Petitioners of a vehicle blocking the sidewalk. A notice dated September 24, 2009, advised Petitioners of a driveway that required pressure- cleaning. The notices became more numerous in 2010 and 2011. Claimed violations included an oil stain on the driveway, mildew on one or more exterior walls, and more landscaping issues, almost all of which involved shrubs that needed trimming. On occasion, the inspector cited the failure to trim dead branches or small amounts of grass growing between driveway pavers, but, mostly, she cited the failure to trim live vegetation. The evidentiary record contains 18 citations for overgrown shrubs, even though the photographs that are part of the citations reveal only a conventional foundation planting under the front windows that at no time extends above the bottom of the window frame. There are seven citations for grassy driveway pavers, although only one photograph clearly reveals any such grass--perhaps one linear foot of a few blades of grass wedged between a few pavers immediately in front of the garage door. A similar pattern of citations extended into 2012. Petitioners do not ground their claim of discrimination of these violations, though. Respondent produced a thick written summation of citations and fines that it imposed on homeowners in 2011-12, and Petitioners do not stand out in this document. Respondent clearly enforced the homeowner documents closely, so all that can be gleaned from Petitioners' long citation history is that relations between Petitioners, on the one hand, and Respondent and The Continental Group, on the other hand, may have been strained at times. In any event, the evidentiary record discloses that Petitioners were fined 17 times for untrimmed shrubs and 11 times for failing to remove the mildew from exterior walls. This record of fines is illustrative, not exhaustive. Petitioners believe they have been fined about $10,000. Regardless whether this figure is correct, Petitioners have been fined a substantial amount of money, but they have never paid any of these fines. Petitioners also failed to stay current on their homeowner assessment and maintenance fees. By August 12, 2011, Petitioners overdue balance on these items totaled $1,145 plus another $1,000 in costs in connection with filing a lien against their residence. In mid-August 2011, Respondent sent a notice to all homeowners that their access cards would be deactivated, necessitating the reregistration of the vehicles and recoding of their cards. The notice warned that Respondent would recode only the cards of residents who were current with their maintenance fees. Shortly after receiving this notice, Petitioners visited the management office to reregister their two vehicles and have The Continental Group recode their two access cards. Petitioners first met Ivan Arguello, who is an administrative assistant for The Continental Group. Mr. Woolley presented his access card to Mr. Arguello, so he could recode it. Pursuant to Respondent's policy, Mr. Arguello checked Petitioners' account and found them delinquent, so, again pursuant to Respondent's policy, Mr. Arguello informed them that he could only activate one card, not both cards, unless they paid their balance in full or entered into a payment plan approved by Respondent or its attorney. Mr. Woolley was irate and retrieved his card from Mr. Arguello. Mr. Woolley proceeded to address the issue with Mr. Arguello's supervisor, Mr. Gonzalez, who, at the time of the hearing, no longer was employed with The Continental Group. Petitioners stepped into Mr. Gonzalez's office, which was near the desk occupied by Mr. Arguello. Mr. Woolley and Mr. Gonzalez became angry and argued loudly. Although Mr. Woolley was aware that he could have obtained the recoding of one card, he was unwilling to accept this offer and instead left without the recoding of either card. All of the evidence offered by Petitioners' witnesses of the inconvenience posed by having no access card was entirely attributable to Mr. Woolley's decision not to accept the offer to recode one of his and his wife's two cards. At no time after this confrontation in the office did either Petitioner ever ask an employee of The Continental Group or Respondent to recode one of their access cards; Mr. Woolley merely retained an attorney to pursue the matter. For their part, Mr. Gonzalez did not direct Mr. Arguello to recode one of Petitioners' cards, nor did Mr. Arguello choose to do so on his own. The policy of the management company or Respondent was to require that the resident produce the card to be recoded, and Mr. Woolley had done that when he had handed his card to Mr. Arguello. Although Mr. Woolley left with his card, the actual recoding required Mr. Arguello, who had noted the card number, only to enter some information on his computer. Under Respondent's policy, Petitioners were entitled to the recoding of one of their cards. Under Mr. Arguello's personal policy, which he testified that he has applied to other loudly confrontational residents, he would not recode a card of a vocally abusive resident. When asked if the resident had to return to the office "contrite," Mr. Arguello answered: "No, no. They just have to come back not yelling." Tr. 57-58. No evidence suggests that the failure of The Continental Group to recode the one card was due to discrimination based on national origin. Petitioners alleged that The Continental Group and Respondent selectively enforced these policies against Petitioners, but they produced absolutely no proof to support this claim, even as to Mr. Arguello's personal policy. At the time of the incident in the office, Petitioners had already incurred a number of unpaid fines and maintenance fees. When Mr. Woolley became irate at the prospect of being restricted to a single access card, despite his failure to meet all of his financial obligations to the community association, it is an easy inference that Mr. Gonzalez and Mr. Arguello found Mr. Woolley's attitude inappropriate and decided not go out of their way to help Mr. Woolley, such as by activating one of his cards, unless he asked again in a more civilized fashion. Essentially, the only evidence of discrimination in this case is that Petitioners are Haitian, they did not get two access cards when they visited the management company's office, and The Continental Group did not complete the recoding of one of their cards after they left the office. Respondent argues that none of the representatives of Respondent or The Continental Group knew that Petitioners are Haitian. Certainly, this is the testimony of these witnesses. Both petitioners are dark-complected and speak English with a French accent, but it is unnecessary to determine if these facts are sufficient to support an inference of a different national origin because two additional facts stand between Petitioners and a prima facie case. First, even if The Continental Group employees knew that Petitioners are Haitian, there is no evidence of discrimination based on this place of origin. There is no evidence that Mr. Arguello or Mr. Gonzalez treated Petitioners differently from other residents who did not pay their fines and fees when it came to recoding access cards. This is true as to Respondent's policies and Mr. Arguello's personal policy. Second, there is no proof of any harm to Petitioners that they did not cause to themselves. At any time, in a normal tone of voice, they could have obtained a single access card, but they chose not to do so. If Mr. Arguello had not implemented his personal policy, Respondent perhaps could have proved that Petitioners commenced this proceeding for an improper purpose--namely, to harass Respondent. Respondent's policies restricting the availability of access cards based on whether residents were current on their obligations to the community association was written and disseminated among the residents. Thus, if Petitioners' claim of discrimination had been based exclusively on the implementation of these sensible, written policies, they might have exposed themselves to paying Respondent's reasonable attorneys' fees and costs. However, Mr. Arguello's implementation of his personal policy--while understandable--raises a different issue in requiring the analysis of the intent and effect of another tier of decisionmaking by Respondent or, in this case, The Continental Group. Ultimately, as noted above, Mr. Arguello's implementation of his personal policy does not support a finding of a prima facie case of discrimination, but his policy's subjective standard makes the inference of an intent to harass on the part of Petitioners more difficult to make--to the point that such an inference cannot be made.
Recommendation It is RECOMMENDED that the Florida Commission on Human Relations enter a final order dismissing the Petition for Relief. DONE AND ENTERED this 30th day of January, 2013, in Tallahassee, Leon County, Florida. S ROBERT E. MEALE 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 30th day of January, 2013. COPIES FURNISHED: Denise Crawford, Agency Clerk Florida Commission on Human Relations Suite 100 2009 Apalachee Parkway Tallahassee, Florida 32301 Cheyanne Costilla, Interim General Counsel Florida Commission on Human Relations Suite 100 2009 Apalachee Parkway Tallahassee, Florida 32301 Margaret H. Mevers, Esquire Teresita M. Perez, Esquire Lydecker | Diaz 19th Floor 1221 Brickell Avenue Miami, Florida 33131 Pierre Woolley Emmanuella Woolley 2033 Northwest 178th Way Pembroke Pines, Florida 33029
