The Issue The issues are whether Respondent engaged in a discriminatory housing practice by allegedly excluding Petitioner from participating in a homeowner’s meeting on January 14, 2009, or ejecting Petitioner from the meeting, based on Petitioner’s religion and alleged handicap, in violation of Section 760.37 and Subsections 760.23(2), 760.23(8), 760.23(8)(2)(b), and 784.03(1)(a)(l), Florida Statutes (2008),1 and, if not, whether Respondent is entitled to attorney fees and costs pursuant to Section 120.595, Florida Statutes (2009).
Findings Of Fact Respondent is a condominium association defined in Section 718.103, Florida Statutes. Respondent manages a condominium development, identified in the record as Tregate East Condominiums (Tregate). Tregate is a covered multifamily dwelling within the meaning of Subsection 760.22(2), Florida Statutes. Petitioner is a Jewish male whose age is not evidenced in the record. A preponderance of the evidence presented at the final hearing does not establish a prima facie case of discrimination on the basis of religion, ethnicity, medical, or mental disability, or perceived disability. Rather, a preponderance of the evidence shows that Respondent did not discriminate against Petitioner in the association meeting on January 14, 2009. In particular, the fact-finder reviewed the videotape of the entire meeting that took place on January 14, 2009. The meeting evidenced controversy, acrimony, and differences of opinion over issues confronting the homeowners present. However, the video tape did not establish a prima facie case of discrimination based on Petitioner’s religion, ethnicity, or alleged handicap. Respondent seeks attorney’s fees in this proceeding pursuant to Section 120.595, Florida Statutes (2009). Pursuant to Subsection 120.595(1)(c), Florida Statutes (2009), this Recommended Order finds that Petitioner has participated in this proceeding for an improper purpose. Petitioner participated in this proceeding for a frivolous purpose within the meaning of Subsection 120.595(1)(e)1., Florida Statutes (2009). The evidence submitted by Petitioner presented no justiciable issue of fact or law. Petitioner provided no evidence to support a finding that he suffers from a handicap defined in Subsection 760.22(7), Florida Statutes. Petitioner claims to have a disability based on migraine headaches but offered no medical evidence to support a finding that Petitioner suffers from migraine headaches or any medical or mental disability. Petitioner’s testimony was vague and ambiguous, lacked precision, and was not specific as to material facts. Petitioner called four other witnesses and cross-examined Respondent’s witnesses. Petitioner’s examination of his witnesses and cross-examination of Respondent’s witnesses may be fairly summarized as consisting of comments on the answers to questions and argument with the witnesses. Petitioner repeatedly disregarded instructions from the ALJ not to argue with witnesses and not to comment on the testimony of a witness. Petitioner offered no evidence or legal authority that the alleged exclusion from the homeowners meeting on January 14, 2009, was prohibited under Florida’s Fair Housing Act.3 Petitioner offered no evidence that he is a “buyer” or “renter” of a Tregate condominium within the meaning of Section 760.23, Florida Statutes. Rather, the undisputed evidence shows that Petitioner is not a buyer or renter of a Tregate condominium. Petitioner attended the homeowners meeting on January 14, 2009, pursuant to a power of attorney executed by the owner of the condominium. If a preponderance of the evidence were to have shown that the owner’s representative had been excluded from the meeting, the harm allegedly prohibited by the Fair Housing Act would have been suffered vicariously by the condominium owner, not the non-owner and non-renter who was attending the meeting in a representative capacity for the owner. The condominium owner is not a party to this proceeding. A preponderance of the evidence does not support a finding that Petitioner has standing to bring this action. Petitioner was neither an owner nor a renter on January 14, 2009. Petitioner’s only legal right to be present at the meeting was in a representative capacity for the owner. The alleged exclusion of Petitioner was an alleged harm to the principal under the Fair Housing Act. Respondent is the prevailing party in this proceeding, and Petitioner is the non-prevailing party. Petitioner has participated in two or more similar proceedings involving Respondent. The parties resolved those proceedings through settlement. The resolution is detailed in the Determination of No Cause by the Commission and incorporated herein by this reference. Respondent seeks attorney’s fees totaling $3,412.00 and costs totaling $1,001.50. No finding is made as to the reasonableness of the attorney fees costs because Respondent did not include an hourly rate and did not submit an affidavit of fees and costs. However, the referring agency has statutory authority to award fees costs in the final order pursuant to Subsection 760.11(7), Florida Statutes.
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 and requiring Petitioner to pay reasonable attorney’s fees and costs in the amounts to be determined by the Commission after hearing further evidence on fees and costs in accordance with Subsection 760.11(7), Florida Statutes. DONE AND ENTERED this 15th day of April, 2010, in Tallahassee, Leon County, Florida. S DANIEL MANRY 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 15th day of April, 2010.
The Issue The issue in this case is whether Respondent, Christina Viering, discriminated against Petitioner, Bahiyyih Watson, on the basis of Watson's race and/or religion in violation of the Florida Fair Housing Act.
Findings Of Fact Petitioner, Bahiyyih Watson ("Watson") is a light-skinned Black American3/ female. Watson is an adjunct professor at Valencia Community College, where she teaches cultural anthropology. Watson holds a Ph.D. in anthropology. Watson practices the religion known as Yoruba, which has a tradition of Orishas and places a great emphasis on ancestors. The religion emphasizes African traditions and a respect for elders as well. At all times relevant hereto, Watson was residing in a house at 1830 Dover Road, Winter Park, Florida (the "House"). The House is owned by Respondent, Christina Viering ("Viering"). The House is a three-bedroom house in a residential neighborhood. It has a dining room, living room, kitchen and sun room, each of which was considered a common area for all residents. On August 2, 2008, Watson and Viering entered into a legal document erroneously entitled, "Assignment of Lease" (hereinafter the "Lease"), which called for Viering to rent a room in the House. The Lease has a term of six months, i.e., from August 30, 2008, until February 28, 2009. Viering identified the Lease as a month-to-month lease, but there is no language in the Lease to confirm that description. There is a document attached to the Lease entitled, "Tenant Policies," setting forth various issues relating to the Lease. The attachment contains a provision which states: "MONTH TO MONTH LEASE TERMINATING WITH PROPER NOTICE. WHEN TERMINATING YOUR LEASE, A 30 DAY WRITTEN NOTICE IS REQUIRED." The provision does not explain how it would be interpreted in contravention of the plain language of the Lease. There is nothing in the Lease specifying a particular room for Watson, but the parties testified that Watson occupied the bedroom with a bath, presumably the master suite. The Lease did not identify a specific room for Viering. Viering testified that she resided at the House during the term of the Lease between her and Watson, but did not sleep there every night. Watson said Viering never slept at the House while she, Watson, was there. One neighbor who lived across the street said she believed Viering lived at the House during the time Watson lived there. Another neighbor said she never saw Viering's car at the House overnight and only rarely during the day. The greater weight of the evidence suggests that Viering was at the House only sporadically and probably did not reside there as a residence. At the time Watson signed the Lease, she was working as an adjunct professor at Valencia Community College. She was in the process of submitting an application, including extensive paperwork, to become a tenured professor at the University of South Florida. The application process was intense and required considerable concentration and attention to detail to complete. The application was the most important matter in Watson's life at that time. One of her reasons for selecting the House as a residence was because it was on a quiet street and appeared to be a place where she could work without major distractions. Viering was made aware of this situation. On or about March 17, 2008, another resident, Abbey Nichols, moved into one of the other bedrooms in the House. On October 17, 2008, yet another resident, Kristen Bryan, moved into the third bedroom. Both of the two new tenants were young (twenty-ish) Caucasian women who were of the Christian faith. Each of the new tenants entered into an agreement identical to the Lease, but with different dates of residency. The two new tenants were not inclined to help Watson clean or maintain the House. Viering testified that she slept overnight at the House only two or three times a month. When she slept there, she slept in the Florida room at the rear of the House. The washer and dryer were located in the Florida Room. Again, Watson does not remember Viering ever staying overnight at the House, taking her meals there, or otherwise treating it as her place of residence. Landlord-Tenant Disputes Almost immediately upon Watson taking residence in the House, she and Viering began to have disputes about various and sundry issues. For example: Watson complained that Viering was moving her personal belongings around; Viering said she only moved items off the kitchen table so that she could wash the tablecloth. Watson said that Viering had thrown away some of Watson's kitchenware; Viering said she threw away a styrofoam cup when she was cleaning the kitchen. The disputes soon escalated. On September 17, 2008, less than one month into the six-month lease, Viering sent Watson a notice to vacate the premises within 30 days. The parties must have worked out an agreement, however, because Watson remained in the House after the proffered termination date. The relationship between Viering and Watson, however, did not improve. They continued to disagree about things and communication between the two seemed quite strained. On or about November 8, 2008, Viering went to the House to check on a leak which had been reported. A neighbor from across the street, Ms. Wilson, accompanied her as she looked around the House. Viering testified under oath that while doing the inspection, she noticed mail in Watson's room that appeared to belong to Viering. When she inspected the mail and determined that it belonged to her, Viering was concerned about possible identity theft. Viering then went to the local post office and requested an address change so that her mail would not go to the House. Wilson remembers the event somewhat differently: She says that Viering said she (Viering) believed Watson had some of her mail and wanted to go into the room to check. Watson saw Viering take some mail that she claimed belonged to her, but Watson never personally identified the names on the letters. Watson denies ever having mail that belonged to Viering. The only certain fact concerning this situation was that Viering did go into Watson's room and retrieved some mail. It is not certain who the mail belonged to or whether Viering identified the mail as hers before going into Watson's room. Plumbing Problems Two days later, one of the tenants reported to Viering that the plumbing at the House was stopped up. Viering told the tenants that it was their responsibility to call a plumber and get the stoppage cleared up. She took this stance because, some ten years prior, some of Viering's tenants had flushed items down the toilet, causing a back-up in the plumbing. Viering believed her current tenants had done the same. One of the young tenant's fathers then called Viering and suggested that the plumbing problem could be caused by roots growing into the pipes, and, if so, then the problem would be the landlord's responsibility. Viering agreed then to call the plumber herself. Jamaal Crooks, a plumber working for Bryan Plumbing, came to the House on November 14, 2008, to work on the problem. He went into the House, but only into the hallway bathroom. He did not enter Watson's room or the bathroom in her room. Crooks then went outside and used a cable to reach inside the main sewer line. He pulled three tampons out of the line, thus, clearing the blockage. Crooks could not say if there were more tampons in the line at that time, but the ones he removed were sufficient to allow the sewage to flow. Crooks apparently gave Viering a bill for his services at that time. The amount on the bill was $178.00. Viering demanded that Watson pay the bill or that she at least pay her one-third share. Viering did not believe she should share in the cost, because she was not staying at the House on a permanent basis. That testimony contradicts her statements that she was at the House regularly and that it was her residence at that time. Watson refused to pay the bill, because she did not feel responsible for the stoppage. Some six days later, Bryan Plumbing issued another invoice in the amount of $178.00. The invoice included a note that said, "Tenant refused to pay bill. Christina was present the whole time." It is unclear from the testimony why this invoice was issued if a bill had been presented on the day of service. Viering ultimately paid the plumbing bill and asked each of her tenants to pay a portion of it. Watson said the plumbing worked for only four or five hours after Crooks left the premises. Viering says the plumbing was working for up to a week. It is clear the plumbing problem was not totally resolved. When a tenant would attempt to shower or flush the toilet, sewage would back up into the bathtub and shower stall. The tenants were afraid to drink water from the faucet because they did not know if it was contaminated or not. As will be discussed below, the two Caucasian tenants left the House soon after the November 14, 2008, plumbing issue. Watson, who could not afford to move and had no friends or family with space to accommodate her, remained at the House. There was no working toilet, so Watson had to find other means of performing daily hygiene. She would bathe as well as possible at local stores or gas stations. She would drive to stores to use their restrooms. At night when the stores were closed, she would reluctantly go into the backyard and dig a hole to use as a latrine. By that time she was becoming physically ill from all the stress. When she needed to vomit, she would have to use the hole in the ground for that purpose as well. Watson endured this situation for almost three weeks before finally finding another place to live. On December 19, 2008, a little over a month after the initial plumbing problem, Crooks came back to the House to fix the plumbing again. By that time, all three tenants, including Watson, had already moved out of the House. Although Crooks had no independent recollection of being at the House on that date, he identified a written statement he had made on that date saying he had "found more tampons in line [sic]." Crooks could not say if the tampons were left over from the prior visit, but inasmuch as the plumbing was not working in the interim, that is probable. Notices to Vacate On November 12, 2008, just two days after receiving her initial notice about the plumbing problem, Viering gave all three tenants a Lease Violation Warning setting forth certain alleged violations and giving the tenants three days to come into compliance. Two days later, on the day the plumbing was initially fixed, Viering gave each tenant a 30-day notice to vacate the premises. The basis for the notices, as set forth in another letter from Viering to the tenants, was that a police officer had advised her that she should evict the three tenants. Viering said that action was "radical" and that she opted for a 30-day notice of termination of the Leases instead. On the same day she gave the tenants the 30-day notice, she gave each of them a seven-day notice which specified lease violations. The notice to Bryan set forth the following violations: Failure to maintain plumbing Failure to pay share of utilities and repairs Unauthorized guests on property Unauthorized overnight guests Harassment by unauthorized guests Disturbing the peace Failure to maintain sanitary conditions The notice to Nichols set forth very similar violations, to wit: Failure to maintain premises in a sanitary manner Negligent use of plumbing Failure to pay plumbing repair Unauthorized guests on the property Unauthorized overnight guests on the property Destruction of property belonging to the landlord or permitting another person do so The notice given to Watson contained the following alleged violations: Failure to maintain plumbing Failure to comply with payments due [sic] Share of utilities to be paid Share of repair to plumbing Disposal of garbage in sanitary manner Maintaining the premises in sanitary condition Unauthorized overnight guests on a regular basis Harassment to me by yourself and guests On the same date that Viering gave the tenants their seven-day notices and 30-day termination notices, she gave Watson two additional letters: One was a letter advising Watson that her security deposit amount was being increased by an additional $100.00; the second was a demand to have Viering's dresser (which Watson was using) ready to be picked up on the upcoming weekend. Religious Controversy The rash of notices on November 14, 2008, indicates some irrationality on Viering's part. It also indicates that the landlord-client relationship was not working effectively. On that same day, Watson called the police to report Viering for harassment. While waiting for the police, Watson went into the backyard to avoid contact with Viering. Viering, however, came into the backyard and confronted Watson. Watson remembers Viering coming toward her with something in her hand, raised above her head. Viering was chanting some incantations and acting bizarre. Viering remembers only that she wanted to talk to Watson and was going to use her cell phone to videotape Watson as she talked. As she approached Watson, she recited the Lord's Prayer to cover herself with God's protection.4/ On November 15, 2008, one day after the aforementioned notices, Viering posted a Notice of Non-Renewal at the House, advising Nichols that her lease would not be renewed and that Nichols must vacate the premises no later than December 1, 2008. On that same day, Viering cut out cross-shaped designs from some magazines and posted them around the House. Viering did so as a part of her Christian religious beliefs, thinking there was "evil" in the House and hoping to eradicate it. When Watson took the crosses down because she considered them offensive, Viering made replacement crosses. Watson says Viering used paper from Watson's room to make the crosses; Viering says she used liner paper from her dresser and a Home Depot catalogue. The crosses were placed on various windows around the House. Watson states that she sent Viering a letter complaining that the crosses were traumatizing to her as a black woman. Viering does not remember any complaint from Watson about the crosses. Watson's written missive to Viering on this subject could not be produced. Watson says she also left voice messages on Viering's telephone. Viering said that she does not remember any such message, but since Watson sent her so many text and emails that were harassing in nature, Viering would frequently delete messages before reading them. The following day, Sunday, November 16, 2008, Viering returned to the House and put up wooden crosses in the front flower beds. She also painted black crosses on each slat of the privacy fence behind the House and on some windows in the House. The crosses were accompanied by messages such as, "The pure white light of Christ" and other inspirational sayings from Viering's Christian literature. The black crosses were crudely painted using a paper towel because Viering could not find a paint brush. Watson arrived home after dark and found the large cross in the front yard and the crosses painted on all the windows, which frightened her, so she asked a male neighbor to accompany her into the House to make sure no one was there. Inside the House, there were numerous crosses painted on windows and doors. All of this made Watson extremely frightened, so she called the police. She was told that unless the crosses were on fire, they could not investigate. Additional Disputes On November 17, 2008, Viering provided additional notices to the tenants: Watson was advised that her bedroom would be inspected, that she should return all items that were not her property, and that she should remove her property from the common areas of the House. Bryan received yet another Notice of Termination, effective immediately. Both Bryan and Nichols moved out of the House shortly thereafter. At some point, Watson remembers receiving a written notice telling her to vacate within seven days. The reason for the notice was that Viering had gotten into a confrontation with a black woman outside the House and presumed that the woman was Watson's friend. In fact, the woman was the mother of one of Bryan's friends.5/ Viering had borrowed a bicycle off the front porch of the House. The bike belonged to a young man who was visiting Bryan, and he thought someone had stolen the bike. The young man's mother accosted Viering for taking the bike without asking. That altercation appears to have been the genesis of the notice to Watson. On November 19, 2008, Watson contacted the Seminole County Sheriff's Office and filed a complaint against Viering. The complaint was for harassment and violation of landlord- tenant laws. Watson also contacted every state agency she could think of to seek some sort of redress from the conditions she was living in. She called, by her account, the Public Works department, the Utilities Commission, Health and Safety, and Sanitation, to name a few. None of the agencies acknowledged jurisdiction over the matter. On December 9, 2008, Viering received a letter from a local television station stating that a consumer had filed a complaint alleging denial of basic services by Viering. Thereafter, the television station broadcasted a consumer human-interest story concerning Watson's plight. At some point in time, Watson filed a Petition for Temporary Injunction against Viering, claiming some sort of violence by Viering. The Injunction proceeding was dismissed on January 6, 2009, when Watson failed to appear at the court hearing on the matter. By that date, Watson was no longer residing at the House. On or about November 30, 2008, Watson had vacated the House, ending the relationship between herself and Viering. Watson alleges discrimination based on her race due to the fact that she received more notices than the other (Caucasian) tenants from Viering. However, Watson was the longest serving tenant and had the most interaction with Viering, so there is no way to establish discrimination based solely on the number of notices. Watson alleges religious discrimination based on the bizarre behavior of Viering, such as placing crosses and religious sayings around the House, chanting the Lord's Prayer or other incantations, and referencing evil in the House. However, there is no persuasive evidence that Viering was aware of Watson's religion, Yoruba. Although Viering was in Watson's room on occasion and must have seen Watson's shrines, there is no evidence that Viering was aware of what the shrines stood for. Watson claims discrimination based on the fact that Viering was less tolerant of her than of the white, Christian tenants. The other tenants did not testify at final hearing, so it is impossible to compare their treatment to Watson's. Viering clearly acted in a very strange and unusual fashion. She was not a pleasant landlord. However, her actions appear to be based on her own personality and demeanor, rather than on any intent to discriminate based on race or religion.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a final order be entered by the Florida Commission on Human Relations dismissing the Petition for Relief filed by Bahiyyih Watson in its entirety. DONE AND ENTERED this 11th day of May, 2011, in Tallahassee, Leon County, Florida. S R. BRUCE MCKIBBEN 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 11th day of May, 2011.
The Issue Whether Respondent, Century Realty Funds, Inc., violated the Florida Fair Housing Act, Chapters 760.20 through 760.37, Florida Statutes (2006), by failing to install a poolside chairlift as requested by Petitioner.
Findings Of Fact Based on the oral and documentary evidence presented at the formal hearing and on the entire record of this proceeding, the following Findings of Fact are made: Petitioner is physically disabled and protected for the purposes of the Florida Fair Housing Act. Respondent is the owner of Plantation Landings Mobile Home Park ("Plantation Landings") in Haines City, Florida. Plantation Landings is a 55-year-old and older community. It owns and leases the lots to the owner-tenants of Plantation Landings. Because Respondent owns the Plantation Landings real estate and the subject swimming pool, it has the sole discretion to approve the requested improvements. The swimming pool area is handicap accessible. It is a public swimming pool and regulated by the State of Florida, Department of Health. It was built approximately 30 years ago; there are no known existing construction plans for the pool. The swimming pool is surrounded by a wheelchair-accessible path, and the pool itself has two separate sets of handrails; one for the deep end and one for the shallow end. There are steps leading into the shallow end of the pool and a ladder leading into the deep end. The swimming pool does not have a poolside chairlift. The swimming pool area is not supervised by life guards. Plantation Landings does not provide any supportive services to its residents, such as counseling, medical, therapeutic, or social services. The owner-tenants of Plantation Landings are members of the Plantation Landings Mobile Home Park Homeowners' Association ("Homeowners' Association"), which is a voluntary homeowners' association. Petitioner and his wife are members of the Homeowners' Association. Petitioner and his wife purchased a home in Plantation Landings and leased a lot from Respondent on February 8, 2001, pursuant to a Lease Agreement of the same date. Petitioner is a paraplegic and is able to move about by wheelchair. He is able to access the swimming pool common area in his wheelchair. However, he is not able to get in and out of the pool by himself. He has attempted to get into the swimming pool with the assistance of other residents. He would like to be able to have access into the swimming pool without relying upon the assistance of other residents so that he can exercise. In April 2003, Petitioner discussed the feasibility of installing a poolside chairlift at the swimming pool with Respondent's agent. Petitioner offered to pay for the poolside chairlift and installation at his own expense. On April 1, 2003, Petitioner submitted a written request to Respondent requesting that Respondent install a poolside chairlift. Petitioner delivered his April 1, 2003, written request, literature, and video regarding the poolside chairlift to Respondent's agent. The request did not include any specifications or engineered drawings, nor did it state the proposed location for the poolside chairlift. The poolside chairlift initially proposed by Petitioner was the Model IGMT, which was an in-ground manually-operated lift with a 360-degree seat rotation. In its consideration of Petitioner's request, Respondent determined that the design and construction of the pool and the surrounding common areas were in compliance with all state and federal statutes and regulations and that the pool area and common areas to the pool were accessible by wheelchair. Respondent determined that it was not required to install a poolside chairlift for access into the pool. Respondent also learned that the IGMT model was not Americans With Disabilities Act compliant. It was Respondent's conclusion that the poolside chairlift was cost-prohibitive and a dangerous hazard. When Petitioner returned to Plantation Landings in November 2003, he was advised of Respondent's decision not to provide the requested poolside chairlift. In March 2004, Petitioner requested the assistance of James Childs, president of the Homeowners' Association, for the purpose of making a second request to Respondent for the installation of a poolside chairlift. On March 7, 2004, Mr. Childs, on Petitioner's behalf, wrote Respondent requesting a poolside chairlift. On May 3, 2004, Respondent wrote Mr. Childs denying the request. Over the several years Petitioner has resided in Plantation Landings, he has requested modifications to accommodate wheelchair accessibility. These requests included modifications to the ramp at the front of the clubhouse, modifications adding an additional wheelchair ramp to the back of the clubhouse for access into the clubhouse, and modifications to the handicap parking spaces in front of the clubhouse. All of Petitioner's requests for modifications were honored. In May 2006, Petitioner, again with the assistance of Mr. Childs, made a third request to install a poolside chairlift. This third request was identical to his two prior requests made in 2003 and 2004. This request was denied by letter on April 27, 2006. On December 23, 2006, Petitioner filed a Complaint with the U.S. Department of Housing and Urban Development alleging that Respondent had discriminated against him on the basis of his disability by refusing to allow him to install a poolside chairlift at his own expense.
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 dismissing with prejudice the Petition for Relief for failure to establish an unlawful discriminatory act by Respondent, or, alternatively, that the claim is time-barred and that the Commission lacks jurisdiction to consider the Petition for Relief. DONE AND ENTERED this 15th day of February, 2008, in Tallahassee, Leon County, Florida. S JEFF B. CLARK Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 15th day of February, 2008.
The Issue Whether Petitioner's housing discrimination complaint alleging violations of the Florida Fair Housing Act, chapter 760, part II, Florida Statutes (2020) (FFHA), was timely filed.1 1 Unless otherwise indicated, all federal and state statutory and administrative rule references are to the 2020 versions.
Findings Of Fact The following Findings of Fact are made based on the exhibits and testimony offered at the final hearing, the stipulated facts, and the additional documents accepted for official recognition as indicated above. The Lease Petitioner, Ross Couples, leased a house located at 11635 Meadowrun Circle in Fort Meyers, Florida (Property), from Respondent Xuan Ren. At all times relevant to this case, Respondent Ren owned the Property. At all times relevant to this case, Respondent Timothy Cloud managed the Property and served as an agent for Respondent Ren. The Property was part of Marina Bay Homeowners' Association (HOA) and subject to the HOA's rules and regulations regarding lease arrangements. On December 12, 2018, Respondent Ren and Petitioner executed a year lease for the Property from January 15, 2018, to January 15, 2019. The lease included the following provision for its renewal: 18. RENEWAL/EXTENSION. The Lease can be renewed or extended only by a written agreement signed by both Landlord and Tenant, but the term of a renewal or extension together with the original Lease Term may not exceed 12 months. … A new lease is required for each period of lease. At some point prior to January 15, 2019, Respondent offered Petitioner another lease agreement. Petitioner refused to pay a $100 leasing fee required by the HOA. The parties did not renew or enter into another 12-month lease, nor did Petitioner move out. As a result, after January 15, 2019, the parties switched to a month-to- month arrangement.4 This arrangement, however, was not approved by the HOA. On February 23, 2019, Petitioner sent an email to the HOA manager and Respondent Cloud. In that email, Petitioner made numerous complaints and mentioned the need for a larger hot water heater for his hydrotherapy tub, which he claimed he needed for health issues. He also discussed at length his opposition to the $100 fee imposed by the HOA for entering into a new lease. On February 27, 2019, Respondent Cloud issued a "Notice of Termination of Month-to-Month Tenancy Notice to Vacate" (Notice) to Petitioner. The Notice indicated that the current leasing arrangement had 4 No written lease agreement for the month-to-month arrangement was offered into evidence. been terminated and Petitioner was to vacate the Property on or before May 15, 2019. Petitioner did not move out of the Property on or before May 15, 2019. On May 20, 2019, Respondent Ren filed the eviction action against Petitioner in the appropriate court. A final judgment in the eviction action was rendered on June 6, 2019, and a writ of possession was issued for the Property on June 7, 2019. Petitioner vacated the Property and turned over possession to the Lee County Sheriff on June 12, 2019. Housing Complaints Petitioner testified that on April 5, 2019, he filed a complaint of discrimination with the U.S. Housing and Urban Development (HUD) regarding his claim of disability discrimination against Respondents. On January 17, 2020, HUD issued a letter to Respondent Cloud (HUD Letter) indicating it was dismissing the case brought by Petitioner, and specifically finding "that no reasonable cause exists to believe that a discriminatory housing practice has occurred. … No evidence was found to support Petitioner's contention that his disability was used as a basis to evict him." The HUD Letter does not indicate Petitioner could re-open the HUD case or file anything else with HUD based on the same facts. It does not mention the FFHA or FCHR, and it does not provide any instruction or information on how to pursue claims pursuant to state housing discrimination laws.5 Petitioner claims a HUD employee, Mr. Jordan, told him he had a year from his last date of possession of the Property to "file the proper paperwork." 5 The HUD Letter does mention that Petitioner could file a civil lawsuit "in an appropriate federal district court or state court within two (2) years of the date on which the alleged discriminatory housing practice occurred or ended." The letter also has instructions as to what Petitioner may be able to file if he was retaliated against for filing the HUD complaint. This proceeding does not involve either of those situations. Petitioner also states Mr. Jordon told him he could file a claim with either HUD or the Florida Fair Housing Commission.6 It is unclear when this conversation occurred, what Mr. Jordan's role was at HUD, and whether the discussion was in person or over the phone. Regardless, this testimony is hearsay and not corroborated by any non-hearsay evidence or documentation. There is no credible evidence to establish that anyone at either HUD or FCHR informed Petitioner that he had one year from the last date of possession of the Property to file an FFHA discrimination complaint with FCHR. The date Petitioner filed his FFHA Complaint with FCHR is contested. Petitioner testified he contacted the "Florida Fair Housing Commission" on June 10, 2020, regarding his FFHA claim. He admits he did not file his FFHA complaint immediately. Rather, at that time, he spoke with an "intake clerk," who sent him a complaint form, which he then filled out and returned. There is no competent evidence corroborating Petitioner's assertion in his Response that he filed the Complaint with FCHR on June 10, 2021. Rather, the top of the front page of the Complaint is dated July 22, 2020, and indicates Petitioner verified the facts in the Complaint on July 21, 2020. Moreover, the Determination dated September 18, 2020, also references that the Complaint was submitted on July 21, 2020. Based on Petitioner's testimony and the date that Petitioner verified the Complaint with his signature, the undersigned finds Petitioner's Complaint was filed with FCHR on July 21, 2020. 6 The undersigned is unaware of an agency operating under the name of "Florida Fair Housing Commission." The undersigned assumes that Petitioner is referring to FCHR. See § 760.22(1), Fla. Stat. (defining “Commission” to mean the Florida Commission on Human Relations).
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that that the Florida Commission on Human Relations issue a final order dismissing the Petition for Relief filed by Ross J. Couples. DONE AND ENTERED this 7th day of May, 2021, in Tallahassee, Leon County, Florida. COPIES FURNISHED: Tammy S. Barton, Agency Clerk S HETAL DESAI Administrative Law Judge 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 7th day of May, 2021. Ross Joseph Couples Florida Commission on Human Relations 4075 Esplanade Way, Room 110 Tallahassee, Florida 32399-7020 Steven Klaus Teuber, Esquire Teuber Law, PLLC Post Office Box 49885 Sarasota, Florida 34230 Timothy Cloud D-15 # 514 106 Hancock Bridge Parkway Cape Coral, Florida 33991 Christopher J. DeCosta, Esquire Mahshie & DeCosta 1560 Matthew Drive, Suite E Fort Myers, Florida 33907 Suite 202-200 13650 Fiddlesticks Boulevard Fort Myers, Florida 33912 Xuan Ren D-15 # 514 106 Hancock Bridge Parkway Cape Coral, Florida 33991 Paul Edward Olah, Esquire Law Offices of Wells Olah, P.A. 1800 Second Street, Suite 808 Sarasota, Florida 34236 Cheyanne Costilla, General Counsel Florida Commission on Human Relations 4075 Esplanade Way, Room 110 Tallahassee, Florida 32399-7020
The Issue Whether Respondent discriminated against Petitioner based upon Petitioner’s race or handicap in providing housing assistance. Whether Respondent, in providing housing assistance, failed to make reasonable accommodations for Petitioner’s physical disability.
Findings Of Fact Petitioner and his family have been in subsidized housing for many years. Most recently, housing assistance has been provided by the Alachua County Housing Authority, first through the Tenant Based Rental Assistance (TBRA) program and, currently, through Section 8 subsidized housing. At the time of the administrative hearing, Petitioner and his family were still in Section 8 housing administered by Respondent. Under the TBRA program, the Castellio family was required to meet regularly with Housing Authority staff and their affiliates. They also had to meet certain performance standards relative to employment searches and maintenance of the household. Petitioner’s family was often unable to meet those performance standards-–particularly with respect to employment and payment of electrical bills. Because of his interactions with Respondent's staff, Petitioner had earned the reputation of being loud, demanding, and physically imposing. In one incident, Petitioner tried to prevent one of Respondent's workers from mowing his yard by physically blocking the lawn mower, even though such maintenance was required under the government program and was also an issue of local code enforcement. More than one of Respondent's staff reported that Petitioner would raise his voice when he was in Respondent's Housing Authority office. Some of Respondent's staff were intimidated by Petitioner. Because of this, the director of the Alachua Housing Authority, Gail Monahan, was tasked with dealing with Petitioner and the Castellio family. The pertinent part of Petitioner's Complaint states: My name is Christopher S.A. Castellio. My wife's name is Ethelyn L. Reese-Castello. We are the proud parents of five children which ages are 5, 7, 9, 11, and 16. Our 16 year old is living in Bend, Oregon with his uncle who has more resources to provide for him. Approximately for two years now, my family and I have lived on Section 8 through the Alachua County Housing Authority here in Gainesville, Florida. We have to report to the Executive Director of the Alachua County Housing Authority, Ms. Gail Monahan, every Wednesday of every week in order to report progress of trying to become self supporting and financial independent. During this time I have been humiliated in front of my wife, Ms. Monahan's office staff, other customers and patrons and, most humiliating, in front of my own kids. Ms. Gail Monahan has absolutely no compassion, professionalism, or moral conduct. Ms. Gail Monahan has called me everything but a child of God. In front of my kids, she has called me a lying sack of s-t, a sorry son of a b--h, a con artist, a--hole, and an f--wad. One day I just walked into her office and the first thing she said was, "hay you little s--tbird, what have you done s--ted out today." I served 6 years in the United States Marine Corps during Desert Storm from 1986 until 1992. While serving I injured my knee in Kuwait. I returned to the states where I underwent knee surgery. I was honorably discharged several months later. Ms. Monahan says I'm lying about my service, despite my service and medical records. Right now I am in constant pain in both my knees and my back. I have taken two MRI's for both knees and my doctor says that I desperately need a total right knee replacement and a basic left knee operation based on my MRI's. Ms. Monahan also says that's a lie. And she refuses to look at any doctor's reports. She said I probably faked them. Ever since I've been meeting with Ms. Monahan she has always had something discrimitory [sic], degrading, intimidating, and threaten [sic] to say to me. She always threatens to take our housing away from us, like she's doing right now, if we don't do exactly what she says to do. I do believe that she is prejudice [sic] against me because I am a very, very light-skinned black man with red hair and freckles. I do look like a white man to most people and my wife is very dark skinned African American. We have done everything she has told us to do but still she says that we have done nothing. She does not take into consideration the bad economy and that jobs are very hard to come by and that more and more people are being laid off every day. So she is going to make a family with 4 small children become homeless just because I can't work because of my back and my knees and because my wife couldn't find a job in today's economy. By the way, my wife has finally found a job working at Wal-mart. We finally received a letter from Ms. Monahan informing us of the termination of tenant based rental assistance. In the allotted time of seven working days, I have answered her letter in writing, requesting a hearing to appeal her decision. As of the date of this letter, I have not received anything or any notice of any hearing from Ms. Monahan. I will fax you a copy of both letters. Our move out date has been set as December 31st, 2009. Consistent with his Complaint, Petitioner testified that Ms. Monahan, the director of the Alachua County Housing Authority treated him badly, believed he was lazy, and questioned whether he suffered from a physical disability. In further support of the allegations, Petitioner’s wife, Ms. Reese-Castellio, testified that Gail Monahan was “mean” to their family. According to Ms. Reese-Castellio, Ms. Monahan called Petitioner a liar, said that he “didn’t give a damn” about his family, and suggested to her that she should consider leaving Petitioner. At the final hearing, Ms. Monahan admitted that she did not respect Mr. Castellio because he did not appear to be making any effort to support his family. She denied, however, that she cursed at him, and testified that she never discriminated against Petitioner or his family. While it is clear that there was personal animosity between Petitioner and Ms. Monahan, the evidence was insufficient to show that either Ms. Monahan or Respondent discriminated against Petitioner or his family. On cross-examination, Ms. Reese-Castellio disclosed that Ms. Monahan's remarks were only directed toward Petitioner, and that Ms. Monahan did not use racial epithets or otherwise give any indication that she was discriminating against Petitioner or his family because of race, handicap, or any other impermissible factor. Petitioner's wife further testified that she had no complaints about any of the other staff members at the Housing Authority. Likewise, Petitioner failed to provide evidence that either Ms. Monahan or Respondent has ever acted in a discriminatory manner toward him or his family based on race, ethnicity, handicap, or any other impermissible basis. Further, the evidence presented at the final hearing did not show that either Petitioner or his family have ever been denied housing assistance by Respondent. In fact, the evidence revealed that Petitioner and his family’s housing benefits administered by Respondent have never been interrupted or denied, and that the Castellio family has been treated at least as well, if not better, than other housing clients served by Respondent. In addition to administering basic housing benefits under TBRA and the Section 8 program, Respondent arranged to pay over $1,300 to repair Petitioner’s family car, paid for utilities when the Castellios were unable to do so, and provided bus vouchers and other transportation for the family on a regular basis. Respondent’s decision to provide these additional benefits was made by Ms. Monahan. At the final hearing, both Petitioner and his wife confirmed that Respondent had provided additional assistance and that Gail Monahan had control over these additional benefits. Neither Petitioner nor Ms. Reese-Castellio offered an explanation for why Ms. Monahan would go “above and beyond” the requirements of subsidized housing in order to assist the Castellio family. Ms. Monahan, in her credible testimony, explained that she had considerable compassion for Ethelyn Castellio and the Petitioner’s children, and that her compassion led her to offer extensive support for the Castellio family beyond simple housing assistance. Although Petitioner testified that the family was rejected as potential tenants at an apartment complex known as “Eden Park” after initially being accepted by the private landlord, and said that he believed that Gail Monahan had something to do with the rejection, Petitioner offered no evidence to support that belief. Ms. Monahan stated that neither she nor anyone from the Housing Authority spoke to anyone at Eden Park regarding the Petitioner or his family. She explained that tenants are responsible for locating suitable housing which is then inspected and approved by the Housing Authority. The credible testimony of Ms. Monahan, together with Petitioner's own testimony and admissions, demonstrated that Respondent did not interfere in the Eden Park situation, and never delayed inspections or unreasonably rejected any housing benefits for the Castellio family. In addition, while indeed, as alleged in the Complaint, Respondent issued a letter informing Petitioner that his family's rental assistance was scheduled to be terminated, the evidence adduced at the final hearing showed that the letter was issued in error, and that it was withdrawn. Finally, while the Commission states on page 5 of its Determination of no cause dated February 16, 2010, that “Complainant alleged he requested a reasonable accommodation, and Respondents denied his request,” a plain reading of the Complaint, quoted in paragraph 7, above, does not reveal that Petitioner ever alleged that Respondent failed to accommodate his disability. Moreover, the applications Petitioner and his family filed in 2008 and 2009 to obtain housing assistance from the Respondent state that the family was not seeking any accommodations on account of disability and that no one in the family suffered from any physical handicap. At the final hearing, Petitioner confirmed that the family never asked Respondent for accommodation based on any physical disability and reported in their applications that no member of the family was handicapped or required an accommodation.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Florida Commission on Human Relations enter a final order dismissing the Complaint and Petition for Relief. DONE AND ENTERED this 24th day of November, 2010, in Tallahassee, Leon County, Florida. S JAMES H. PETERSON, III Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 24th day of November, 2010.
The Issue Whether Petitioner was the subject of discriminatory housing practices based on his race or his handicap, in violation of the Florida Fair Housing Act, chapter 760, Part II, Florida Statutes.
Findings Of Fact At all times relevant to this cause, Petitioner was a tenant of a rental apartment located at 284 South First Street, Apartment 6, Macclenny, Florida (the Apartment). Petitioner?s tenancy was established by a lease agreement with a final effective date of November 24, 2009. Petitioner moved out of the apartment on May 3, 2012. Respondent is a Florida Limited Liability Company. Among its other holdings, Respondent owns four 4-plex units located on First Street, Second Street, and Third Street in Macclenny, one of which includes the Apartment. The racial make-up of the tenants occupying Respondent?s apartments in the vicinity is roughly 50 percent African-American and 50 percent Caucasian. Petitioner is African-American. Petitioner has an unspecified mental condition. He takes medications for management of his symptoms, and receives periodic visits from Ms. Gadsby to ensure that he is complying with his medication regimen. Petitioner does not receive disability benefits from the Social Security Administration. Petitioner holds a bachelor?s degree in criminal justice from Benedict College in South Carolina. As part of the application for rental of the Apartment, Petitioner was asked “[h]ave you been arrested or had criminal charges filed against you? (If yes, please list them).” In response to the application question, Petitioner answered “yes Trepass [sic.].” The trespass charge was related to a misdemeanor incident that occurred at an unspecified time in Fort Lauderdale, Florida. Petitioner failed to disclose a felony conviction for an incident that had occurred in South Carolina. Petitioner stated that he thought the requirement to disclose criminal charges applied only to charges arising from incidents having occurred in Florida. However, nothing in the application can be read to support that limitation. As such, Petitioner materially falsified his lease application. Petitioner cut hair for members of his church, neighbors, family, and friends at the Apartment, and had done so for the two-and-one-half years of his tenancy. He equipped the Apartment with a barber chair and a small waiting area. He accepted “donations” of food, clothes, and cash for his services. The cash receipts were used to pay his electric and water bills, among other things. Thus, despite its small scale and limited clientele, Petitioner operated what can only be described as a barbershop from the Apartment. The Lease Agreement between Petitioner and Respondent provides that the Apartment was not to be used “for any other purpose than as a private dwelling unit.” The Lease Agreement also provides that Petitioner was to comply with all applicable building and housing codes. The Macclenny Code of Ordinances, Part III, Section 4-105, provides that home occupations are subordinate and incidental to a residential neighborhood, but that certain occupations, including barbershops, “shall not be considered as home occupations under any circumstance.” Thus, Petitioner?s operation of a barbershop from the Apartment was a violation of the Lease Agreement. There were no apparent landlord/tenant disputes involving Petitioner?s tenancy until late 2011. Mr. Stivender testified that he began to receive periodic complaints from tenants in the area regarding the Apartment, including cars being parked on the grass and in the road, loud music, and people milling about the premises. He testified that at least one tenant advised Respondent that she was afraid to venture out of her apartment due to the number of people in the area. The testimony of Mr. Stivender regarding complaints of other tenants would be hearsay if taken for the truth of the matters asserted. However, the undersigned accepts his testimony as evidence, not of the facts surrounding the alleged complaints, but of a non-discriminatory reason for actions to be described herein, most notably the events of March 6, 2012. At the end of October 2011, Petitioner was cited by Respondent for having more than one car regularly parked at the Apartment. Petitioner?s car was not in running condition. The other cars parked at the Apartment belonged to friends or relatives. Petitioner subsequently sold his vehicle, and would borrow his father?s or his cousin?s car when needed. The incident caused bad feelings between the parties. On November 1, 2011, Respondent sent a notice to each of its tenants in Macclenny. Although the notice was precipitated by the complaints against Petitioner and Respondent?s observations of activities in and around the Apartment, the notice was not limited to Petitioner. The notice cited provisions of the common lease agreement regarding the use of the premises and tenant conduct, and advised that excessive noise, driving on the grass, and “loitering” would be cause for eviction. The notice further advised that the landlord would “be patrolling the area on a regular basis at night to check for violations.” On March 6, 2012, Mr. Ferreria was driving by the Apartment at approximately 10:30 p.m. There were, along with Petitioner and his daughter, three guests at the Apartment, Bianca Gaines-Givens, Jacoby Givens, and Misty Lee. They were playing music on an electronic keyboard. Mr. Ferreria stopped his car on the side of the road. He called his property manager, Mr. Stivender, and advised him that he was going to go speak with Petitioner about the noise coming from the Apartment. Mr. Stivender works for a gas company, and was at work routing gas trucks. Mr. Stivender advised that he was going to come to the Apartment, and asked Mr. Ferreria to wait for him before speaking with Petitioner. Ms. Gaines-Givens and Mr. Jacoby Givens left the Apartment after Mr. Ferreria?s arrival in the neighborhood, and noticed Mr. Ferreria sitting in his vehicle. They drove away from the Apartment, but decided to return shortly thereafter. By the time they returned, Mr. Ferreria and Mr. Stivender were leaving. Thus, they did not witness the confrontation described herein. After Ms. Gaines-Givens and Mr. Jacoby Givens drove off, Mr. Ferreria, disregarding Mr. Stivender?s request, went to the Apartment and knocked on the door. It was, by then, approximately 10:45 p.m. When Petitioner answered the door, the two immediately began a heated discussion over the music and the cars. Ms. Lee went to the back of the Apartment when Mr. Ferreria arrived. She heard yelling, but heard nothing of a racial nature. Shortly after Mr. Ferreria arrived at the Apartment, Mr. Stivender arrived on the scene. Mr. Stivender is a solidly built man, and could be an intimidating presence under the right circumstances. These were the right circumstances. Mr. Stivender physically moved Mr. Ferreria out of the way, and came between Mr. Ferreria and Petitioner. He was primed for a confrontation. He had his hand in his pocket, but testified convincingly that he was not armed.1/ He and Petitioner had a loud and angry exchange of words, and Mr. Stivender forcefully suggested to Petitioner that it would probably be best if he moved out of the Apartment. After Mr. Stivender appeared on the scene, Ms. Lee came out from the back of the Apartment. She recognized Mr. Stivender as Respondent?s “office manager.” She noted that Mr. Stivender had his hand in his pocket, and was talking loudly and pointing his finger in Petitioner?s face. Ms. Lee went outside and spoke with Mr. Ferreria. She testified that Mr. Ferreria indicated that some of the neighbors were afraid of Petitioner because of the noise and the number of people who hung around the Apartment. The confrontation ended with Mr. Ferreria and Mr. Stivender leaving the premises. The police were not called. The next morning, Petitioner called Ms. Gadsby. Petitioner frequently called Ms. Gadsby when he was feeling “stressed.” She went to see him that morning, and testified that he was very upset over the events of the previous evening. She returned that afternoon for a “well-check,” and he was doing better. On March 15, 2012, Petitioner called the Baker County Sheriff?s Office to report the March 6, 2012, incident. A deputy went to the Apartment, spoke with Petitioner and Ms. Lee, took their sworn statements, and prepared an offense report. The description of the incident as reflected in the report, including statements made by Petitioner and Ms. Lee, did not contain any account of racial threats or epithets, or any allegation of discriminatory intent based on race or handicap.2/ Other than Mr. Stivender?s statement made in the heat of the March 6 argument, Respondent made no effort to evict or otherwise remove Petitioner from the Apartment. On March 31, 2012, Petitioner noticed water coming from behind a wall of the Apartment. He called Respondent, and Mr. Stivender came to the Apartment to inspect. Mr. Stivender first suspected that the air-conditioning unit was leaking. The air conditioner was turned off and Mr. Stivender left, intending to contact an air-conditioning repair service. By 6:00 p.m. on March 31, 2012, the rate of the leak was such that it was determined that a water pipe had burst under the foundation of the Apartment. Petitioner did not know where the shut-off valve was located, and was unable to stop the flow, which began to cover the floor in several rooms of the Apartment. Mr. Stivender returned to the Apartment, and determined that a car owned by one of Petitioner?s guests was parked on the grass, and was over the meter box with the shut- off valve. The car was moved, and the water turned off. Respondent called a plumber to fix the pipe. Since the pipe was under the foundation, and in order to avoid breaking up the slab, the repair was accomplished by re-routing the pipe in the wall of the Apartment. The repair entailed cutting an access hole in the drywall. That hole was not immediately repaired. Respondent also called Servpro to perform water cleanup services. The standing water was vacuumed up, and large fans and dehumidifiers were placed in the Apartment to dry it out. While the repairs and drying activities were ongoing, Respondent paid for Petitioner and his daughter to stay in a motel in Macclenny. They were there for three to four days. Respondent paid Petitioner?s power bill for the days that Petitioner was unable to use the Apartment. Petitioner returned to the Apartment, and stayed there for some time. He was upset that the access hole for the pipe repair had not been closed up, and that the baseboards had not been replaced in some areas. On April 9, 2012, Petitioner wrote to Respondent about the effects of the water leak. After thanking Respondent for the “compassion” shown to Petitioner and his family during the event, he complained about the damage to his personal property resulting from the water leak, and an odor “suggesting the presence of mold.” He stated his belief that his daughter?s preexisting asthma was aggravated by the smell in the Apartment. In his April 9, 2012, letter, Petitioner also stated that “due to my mental health condition, I am on prescribed medicine that has now been adjusted to assist me through this stressful situation.” Petitioner?s statement, which was not accompanied by any form of medical evidence, was not sufficient to place Respondent on notice that Petitioner had a record of having, or was regarded as having, any form of mental disability. Mr. Stivender testified that no one ever advised Respondent that Petitioner had a mental disability, and that Respondent had no such knowledge. The April 9, 2012, letter being insufficient on its own to convey such information, Mr. Stivender?s testimony is credited. On May 3, 2012, Petitioner moved out of the Apartment. He had been served with no eviction notice or other written request to vacate. Petitioner gave no notice to Respondent, but dropped off his key at Mr. Ferreria?s business on the day he moved out. Mr. Stivender testified that Petitioner left the Apartment in a filthy, deplorable condition. As a result, Respondent withheld Petitioner?s $400.00 security deposit to offset the costs of returning the Apartment to rentable condition. Petitioner testified that the Apartment was not in poor condition when he moved out, and that some of the damage was the result of the pipe leak. However, Petitioner did not testify, or even suggest, that the decision to withhold the deposit was the result of any racial hostility or animus, or of any reaction to his handicap. Petitioner failed to introduce any evidence that he was treated differently under similar circumstances than were tenants of Respondent who were not African-American, or who did not have comparable mental disabilities. Ultimate Findings of Fact There was no competent, substantial evidence adduced at the hearing that Respondent undertook any act pertaining to Petitioner?s occupancy of the Apartment based on Petitioner?s race. Petitioner failed to prove that Respondent knew of Petitioner?s mental disability or handicap, or that Respondent regarded Petitioner as having any such mental disability or handicap. Petitioner failed to prove that Petitioner?s race or handicap caused or contributed to the March 6, 2012, confrontation. Rather, the evidence demonstrates that the confrontation resulted from noise, issues with cars and parking, and complaints directed to Petitioner by other tenants. Petitioner failed to prove that he was ready, willing, and able to continue to rent the Apartment, but that Respondent refused to allow him to do so. Petitioner failed to prove that Respondent took any action to evict him from the Apartment, or to otherwise intentionally interfere with Petitioner?s occupancy of the premises. To the contrary, the evidence supports a finding that Respondent took reasonable and appropriate steps to repair and remediate the Apartment after the water line break, and provided no-cost accommodations to Petitioner while the Apartment was not habitable. The repairs may not have been completed to Petitioner?s satisfaction, but any such deficiency was not the result of discrimination against Petitioner based on his race or his handicap. Petitioner failed to prove that Respondent?s decision to withhold his security deposit was based on Petitioner?s race or handicap. In sum, the evidence did not establish that Petitioner was the subject of unlawful discrimination in the provision of services or facilities in connection with his dwelling based on his race or his handicap.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Florida Commission on Human Relations issue a final order dismissing the Petition for Relief filed in FCHR No. 2013H0034. DONE AND ENTERED this 7th day of February, 2013, in Tallahassee, Leon County, Florida. S E. GARY EARLY 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 7th day of February, 2013.
The Issue Whether Respondents Orion Real Estate Services (Orion) and the Housing Authority of the City of Winter Park (Housing Authority) subjected Petitioner April Williams to discriminatory housing practices based on her race (African American, non-Hispanic), in violation of the Florida Fair Housing Act, chapter 760, part II, Florida Statutes (2019) (FHA).1
Findings Of Fact Ms. Williams, an African American female, lives in an apartment in the Meadows, a low-income housing complex located in Winter Park, Florida. The Housing Authority is a governmental entity that provides low- income housing through federal funds provided by the United States Department of Housing and Urban Development. It contracts with outside companies to manage the properties it owns. The Housing Authority owns the Meadows. Orion is a real estate services company that manages residential properties for landlords and investors. At the time relevant to these proceedings, Orion managed the Meadows for the Housing Authority. Ms. Williams had to climb up a stairwell to reach her unit. Her apartment was located above one unit and next to another. She shared a front porch with her next-door neighbor. The Meadows housed 300 residents during the relevant time period. Of those residents, 264 identified themselves as "Black" and 280 identified themselves as "Ethnic." There was no testimony or evidence as to how many identified as Hispanic. The Housing Authority claims it took no action against Ms. Williams, and therefore cannot be liable for discrimination. The Community Manager for the Meadows, LiMarys Rivera, testified she was an employee of Orion. However, she issued documentation on letterhead titled "The Housing Authority of the City of Winter Park." Ms. Rivera's signature line states that her title is "Property Manager Agent for the Winter Park Housing Authority." As such, the undersigned finds Ms. Rivera was a dual agent for both Orion and the Housing Authority. Ms. Rivera testified that once she received a complaint against a tenant, regardless of who made the complaint, it was standard procedure to first reach out to the alleged violator by telephone as a courtesy, and then if there was a subsequent complaint to send out a written "Notice to Cure" or "Notice of Material Non-Compliance with Opportunity to Cure and Proposed Adverse Action" (non-compliance notice) to that tenant. Respondents provided numerous non-compliance notices to tenants regarding various types of complaints. Ms. Rivera testified these non- compliance notices were issued to tenants of all races, and both Hispanic and non-Hispanic tenants. Over the course of a year to 18 months, Ms. Williams had made somewhere between 20 and 29 complaints against her next-door neighbor and her downstairs neighbor. Ms. Williams described both of these neighbors as Hispanic. Ms. Williams complained that her next-door neighbor was noisy and would smoke (and allow guests to smoke) on the front porch even though her building was designated as a non-smoking area. Ms. Williams also complained that the downstairs neighbor left items on the stairwell causing a hazard. These items included pizza boxes, shoes, rugs, and bags of trash. As a result of these complaints, both of Ms. Williams's neighbors were issued non-compliance notices. The downstairs neighbor received a non- compliance notice for leaving pizza boxes, trash, and the other objects outside her front door. Similarly, the next-door neighbor received a non-compliance notice for smoking in her apartment and common areas. Additionally, Respondents issued community flyers to all the tenants in the Meadows reminding them of basic rules, including not smoking, not leaving trash and debris outside, and keeping front porches clean. Ms. Williams also complained to Respondents that workmen who were performing maintenance in her unit were speaking Spanish. She requested that Respondents provide workmen that speak only English while on the Meadows property. At some point, Ms. Williams's neighbors made noise complaints against her. Respondents did not initially issue a non-compliance notice to Ms. Williams because she and her neighbors had numerous complaints against each other. Instead, Ms. Rivera attempted to hold a conciliation or mediation meeting with all of them. Ms. Williams refused. She did not see the point of the meeting, and believed Ms. Rivera would take the neighbors' side because Ms. Rivera, like the neighbors, was Hispanic. After Ms. Williams refused to meet, Respondents issued her a non- compliance notice for excessive noise. There was no evidence that she was required to pay any fees or fines as a result of the non-compliance notice against her. Ms. Williams testified she felt Ms. Rivera gave preferential treatment to Hispanics. When asked how they were treated better, Ms. Williams testified that her neighbors were not evicted despite the complaints made against them. Ms. Williams admitted, however, that Respondents did not evict her either.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, the undersigned hereby RECOMMENDS that the Florida Commission on Human Relations issue a final order dismissing the Petition for Relief filed by April Williams. DONE AND ENTERED this 21st day of August, 2020, in Tallahassee, Leon County, Florida. S HETAL DESAI 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 21st day of August, 2020. COPIES FURNISHED: Tammy S. Barton, Agency Clerk Florida Commission on Human Relations 4075 Esplanade Way, Room 110 Tallahassee, Florida 32399-7020 (eServed) Ricardo L. Gilmore, Esquire Saxon, Gilmore, Carraway and Gibbons, P.A. 201 East Kennedy Boulevard, Suite 600 Tampa, Florida 33602 (eServed) Kevin Fulton, Esquire Fulton Strahan Law Group, PLLC 7676 Hillmont Street, Suite 191 Houston, Texas 77040 (eServed) April Williams 746 Margaret Square Winter Park, Florida 32789 (eServed) Cheyanne Costilla, General Counsel Florida Commission on Human Relations 4075 Esplanade Way, Room 110 Tallahassee, Florida 32399 (eServed)
The Issue Whether Respondent discriminated against Petitioner, Patricia McDonough, on the basis of her race, violating Subsections 760.23(1), (2), or (4), Florida Statutes (2002). If discriminatory conduct has been proven, whether quantifiable damages, or other allowable remedies, have been proven under Section 760.35(3)(b), Florida Statutes (2002).
Findings Of Fact Petitioner, Patricia McDonough, is a Caucasian female who, at one time, qualified for housing assistance under the Section 8 Rental Voucher (Voucher) Program and is a protected person under the FHA. Respondent, Osceola County Housing Authority, is a department of the Osceola County Board of County Commissioners, a political subdivision of the State of Florida, and is the local housing authority (HA) under the Federal FHA. In 1997, Petitioner participated in the Voucher program, which is administered by the United States Department of Housing and Urban Development (HUD). The Vouchers are portable, which allows a participant to move to another jurisdiction and request a transfer from one local HA to another. A portability packet of necessary paperwork is prepared by the originating HA and mailed directly to the receiving HA to facilitate the transfer and to prevent fraud. If the receiving HA accepts the transferred Voucher to administer, the originating HA pays the receiving HA 80 percent of the administrative fee it receives from HUD, in addition to the rental and utility assistance payments. Petitioner had a valid Voucher in 1997 that was administered at the local level by the Maryland Housing Opportunity Commission located at 10400 Detrick Avenue, Kensington, Maryland 20895 (Maryland). Petitioner requested Maryland to transfer her Voucher to the City of Kissimmee, Florida (Kissimmee), in 1997, which was the local HA for Osceola County, Florida, at that time. Kissimmee accepted the Maryland Voucher on August 28, 1997, and agreed to administer it on behalf of Maryland. Respondent assumed responsibility for the Voucher program from Kissimmee on October 1, 2000. From 1997 to the present, Kissimmee and Respondent contracted with HUD for a total of 193 Vouchers. This does not include any transferred Vouchers administered through the portability requirements of the HUD program. Kissimmee created a waiting list in 1998 that contained more than 500 names of eligible participants for the 193 Vouchers. The waiting list has not been reopened since it was created. The list was created and is administered in a nondiscriminatory and race-neutral manner by the HA. Respondent accepts and administers transferred Vouchers and currently administers in excess of 700 such Vouchers. A transferred Voucher does not affect the 193 contracted Vouchers. A participant must be recertified annually to keep one of the 193 Vouchers. As participants surrender one of these 193 Vouchers, a new participant is awarded the Voucher from Respondent's waiting list. As participants surrender one of the 700 transferred Vouchers, Respondent has no authority to award it to anyone, whether on the waiting list or not. Petitioner was never on Respondent's waiting list, since Petitioner's Voucher was a transferred Voucher from Maryland. On or about July 13, 2000, Petitioner requested Kissimmee to transfer her Voucher to the County of Fairfax, Department of Housing, Fairfax, Virginia (Virginia). Kissimmee prepared the transfer packet and mailed it to Virginia at Petitioner's request. Petitioner moved from Virginia back to Osceola County in early May 2001. Petitioner testified that when she moved back to Osceola County, she brought her paperwork with her. She then requested Respondent, in a letter dated May 10, 2001, to reinstate her transfer Voucher from Virginia. Petitioner testified that she included her paperwork with the letter. However, there is no credible evidence to support her position. Petitioner has not shown that she had a valid portable Voucher from another HA to transfer to Respondent when she returned from Virginia in May 2001, nor did she offer proof that she requested Virginia to mail her voucher and transfer request directly to Respondent, as HUD policy requires. Respondent has never received paperwork for a transfer Voucher for Petitioner from another jurisdiction, including Maryland or Virginia, after Kissimmee transferred Petitioner's Voucher to Virginia in 2000. Respondent cannot reinstate a Voucher from another HA. Respondent has policies and procedures in place to prevent racial discrimination. Respondent denied Petitioner's request based upon its policies and procedures. Respondent did not discriminate against Petitioner based upon her race. Petitioner is not eligible for one of the 193 Vouchers Respondent is contracted for through HUD. Respondent does not have any Vouchers available to award to Petitioner and has not reopened the waiting list since it was created in 1998. Petitioner has failed to produce any evidence that Respondent racially discriminated against her in regard to the administration of the Voucher program or failed to rent her a dwelling unit for which she was eligible.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Florida Commission on Human Relations issue a final order denying the relief sought and dismissing the petition filed in this matter. DONE AND ENTERED this 4th day of March, 2004, in Tallahassee, Leon County, Florida. S DANIEL M. KILBRIDE 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 4th day of March, 2004. COPIES FURNISHED: Denise Crawford, Agency Clerk Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301 Patricia McDonough 5121 Violet Lane Kissimmee, Florida 34758 Scott Polodna, Esquire Osceola County Housing Authority One Courthouse Square, Suite 4200 Kissimmee, Florida 34741 Cecil Howard, General Counsel Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301
