Findings Of Fact At all times pertinent to the allegations contained in Ms. Cheren's April 15, 1988 letter of denial of renewal, Petitioner, Earlen Braddy operated Earlen's ACLF home at 2840 47th Avenue South, St. Petersburg, Florida. Respondent, DHRS, is the state agency responsible for licensing ACLF's in Florida. Ms. Braddy has operated the ACLF in question at the current location for about four years during which time she has had as many as five residents at one time. Currently, and for the past year, she has had only three residents in the facility which she also occupies as her home. One current resident has been with her since she opened. On December 4 and 9, 1986, while Ms. Braddy was operating her ACLF in a licensed status, her facility was inspected by representatives of Respondent's Office of Licensure and Certification on its yearly survey. During the survey, the inspectors found several deficiencies, all of a Class III, (least serious) category, in such areas as Administration; Management and Staffing Standards, (6 deficiencies); Admission Criteria and Resident Standards, (3 deficiencies); Food Service, (12 deficiencies); Physical Plant, (5 deficiencies); Fire Safety, (1 deficiency); and Other Administrative Rule Requirements, (4 deficiencies). Though most deficiencies related to the failure to keep or provide the surveyors with the paperwork required to be kept by statute and the rules of the Department, some of the deficiencies related to resident care. These deficiencies were identified to Ms. Braddy in person by the inspectors at the time of discovery and again at the out-briefing. She was also advised as to how to correct them and where to secure assistance in doing so, if necessary. Nevertheless, and notwithstanding the uncorrected deficiencies identified in the December, 1986 survey and the March, 1987 follow-up, the Petitioner's license was renewed in April, 1987. Follow-up surveys were conducted in March, June, and October, 1987, at the next annual survey in 1988, and at its follow-ups. While some deficiencies originally identified were thereafter corrected, many were not. Another annual survey of the facility was conducted on February 16, 1988, prior to the issuance by the Department of the yearly renewal license. At this survey, again, numerous Class III deficiencies were identified including: Administrative, (5 deficiencies); Admission, (3 deficiencies); Food Service, (9 deficiencies); Physical Plant, (1 deficiency); Fire Safety, (3 deficiencies); and Other Administrative, (3 deficiencies). Many of these were carried over uncorrected from the previous year's survey, (December, 1986) and its follow- ups, and some were new. Some of the former remained uncorrected through the June, 1988 follow-up to the February, 1988 survey. In August, 1988, the Department filed three Administrative Complaints against the Petitioner seeking to impose monetary civil penalties against her. All three resulted in Final Orders being entered. In the last of the three, Petitioner was alleged to have committed five violations of the statutes and Departmental rules, all of which relate to Petitioner's alleged failure to "provide or make available for review documentation" in five certain areas. Petitioner and Respondent agree that these areas are those primarily involved in the uncorrected deficiencies outlined in the survey reports and upon which the Department relies to support denial of Petitioner's renewal. Petitioner readily agrees that the deficiencies cited by the Department both in the survey reports and in the Administrative Complaints existed at the time of identification and, in many cases, for some time thereafter. While Petitioner now claims all deficiencies have been corrected, her accountant, Mr. Schaub, indicates that at least one, that relating to the failure to document and keep on file scheduled leisure time, had not been accomplished previously and was not now being accomplished. As to the others, those requirements which were not being complied with at the time of the surveys are now being met. Some identified deficiencies were not actually defects. The documentation was being kept, but due to Petitioner's inability to keep up with it, was not made available to the surveyors. Mr. Schaub is convinced that Petitioner has a paperwork problem and needs help with it. She spends her time taking care of the residents without much help and does not keep up with the required paperwork. As he describes it, she is being "choked with red tape" due to the paperwork requirements imposed by the Department whose rules do not differentiate much in the requirements for record keeping between large facilities and very small ones as this is. In his opinion, however, and also in the opinion of the surveyors who visited the facility, the residents appeared to be clean, appropriately dressed, well fed, and content. Ms. Braddy contends that at the present, all the actions the rules require are being taken and while in the past she may not have done everything correctly, she has made the effort to comply with the instructions she received from the Department. She has recently hired an individual to help her and stay with the residents while she is gone. Before he came to work, she received some assistance from her children who, without pay, helped her from time to time. She believes her facility is now operating within the Department's requirements and there has been no survey conducted since June, 1988, to indicate whether this true or not.
Recommendation Based on the foregoing Finding of Facts and Conclusions of Law, it is, therefore: RECOMMENDED that Petitioner, Earlen Braddy, be issued a conditional license to operate an Adult Congregate Living Facility for a period of 6 months at which time, if all deficiencies are not corrected, the application for renewal be denied. RECOMMENDED this 12th day of December, 1988, at Tallahassee, Florida. ARNOLD H. POLLOCK, Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 12th day of December, 1988. APPENDIX TO RECOMMENDED ORDER, CASE NO. 88-3025 The following constitutes my specific rulings pursuant to Section 120.59(2), Florida Statutes, on all of the Proposed Findings of Fact submitted by the parties to this case. BY THE PETITIONER None submitted. BY THE RESPONDENT 1. - 7. Accepted and incorporated herein Accepted and incorporated herein though the problem appears to be more a question of inability rather than unwillingness. Rejected as contra to the state of the evidence. Mr. Schaub indicated she would continue to have paperwork problems but with help could master the problem Not a Finding of Fact but a comment of the state of the evidence. COPIES FURNISHED: Gardner Beckett, Esquire 123 8th Street North St. Petersburg, Florida 33701 Edward Haman, Esquire Office of Licensure and Certification Legal Counsel Department of Health and Rehabilitative Services 7827 North Dale Mabry Highway Tampa, Florida 33614 Gregory L. Coler, Secretary Department of Health and Rehabilitative Services 1323 Winewood Blvd. Tallahassee, Florida 32399-0700 R. S. Power, Agency Clerk Department of Health and Rehabilitative Services 1323 Winewood Blvd. Tallahassee, Florida 32399-0700
The Issue Whether Respondent discriminated against Polly Leggitt on the basis of her handicap, violating Sections 760.23(1), (2) and (7)(a), Florida Statutes (1992). If discriminatory conduct has been proven, whether quantifiable damages, or other allowable remedies, have been proven under Section 760.35(3)(b), Florida Statutes. Whether Florida Commission on Human Relations’ failure to conclude its investigation within one year requires dismissal of the complaint/charge; and Whether Florida Commission on Human Relations’ delay has prejudiced the Respondent and whether the complaint should be dismissed on the basis of violation of the statute of limitations or laches.
Findings Of Fact Petitioner is charged with the administration of the Florida Civil Rights Act of 1992, as amended, Section 760.30, Florida Statutes (1995). If Petitioner is unable to obtain voluntary compliance with sections 760.20-760.37, Florida Statutes, or has reasonable cause to believe a discriminatory housing practice has occurred, Petitioner may institute an administrative proceeding under Chapter 120, Florida Statutes on behalf of the aggrieved party. On February 3, 1993, Leggitt filed a complaint with the Petitioner, and the United States Department of Housing and Urban Development. The complaint names Carole Naylor, Property Administrator, as the person who discriminated against her. On March 24, 1993, the Petitioner notified Regency Place Apartments and Carole Naylor that the complaint had been filed, and stated that within 100 days the Petitioner would investigate the complaint and give notice whether there was or was not reasonable cause to believe that a discriminatory housing practice had occurred. The Notice further provided that a final administrative disposition of the complaint would be completed within one year (on or about February 3, 1994). A Notice of Determination: Cause and Issuance of an Administrative Charge was made and issued by document dated and served on August 28, 1996. It named Regency Place Apartments; Carole Naylor, Property Administrator; Frank Cutrona, Property Manager; and Robert Stitzel, Owner. The notice was issued more than one year after the filing of the complaint. Respondent was the developer and owner of Regency Place Apartments in Melbourne, Florida, at all times relevant. Respondent hired Frank Cutrona as manager of Regency Place Apartments and was the manager during the relevant period. Respondent hired Carole Naylor as a clerical worker and gave her the title of Property Administrator. On September 9, 1992, Regency Place Apartments located in Melbourne, Florida, responded to a letter of inquiry from Polly Leggitt, and offered certain apartments for rent. The letter of September 9, 1992, was signed by Frank Cutrona and his wife (resident managers) offered a $100.00 discount, and invited Leggitt to visit the complex. At that time, Leggitt was a resident of Richardson Apartments located in Fort Myers, Florida. Leggitt indicated that she wanted to leave that area and move to Brevard County, Florida. On or about October 11 or 12, 1992, Leggitt visited the apartment complex and was shown an upstairs one-bedroom apartment, by a woman who she did not identify. Leggitt did not advise the woman that she had a disability, and Leggitt did not have a seeing-eye dog with her at that time. Leggitt found that the price and location of the apartments were suitable to her needs. Leggitt wanted to move to Regency Place because the apartments were accessible to all that was important to her. She used a guide dog at the time to help her with traffic. There was a veterinary clinic nearby; a light to cross the street; a bus stop so that she could get the mall; and a bank and grocery store directly across the street. Leggitt did not contact the apartment complex again until after Christmas of 1992, at which time she called and spoke to a person she believed was Frank Cutrona, the apartment manager. Leggitt was sent an application which she filled out and returned sometime after January 8, 1993. On the application she noted in the place where it requested information about automobiles, “None- (legally blind - no license)”. The application form requested information regarding pet ownership and indicated that there would be a separate application for pets. She wrote in the application that she had a guide dog, and that federal and state laws prohibited discrimination by charging a fee for guide dogs. The application stated that she was self-employed and obtained $281.34 per month in Social Security disability income. In the application, she stated “Mom pays rental and ut’s” (presumably utilities). The proposed monthly rental for a one-bedroom apartment was $380 per month, plus utilities. Leggitt sent a deposit and application fee on or about January 11, 1993. No specific amount of contribution towards Leggitt’s income was shown for her mother on the application. By letter dated January 18, 1993, Leggitt’s application was declined, citing the unavailability of the kind and location of the apartment which she desired and insufficient income to qualify. The letter was signed by Carole Naylor, “Property Administrator.” The original cashiers check for the deposit was also returned. Subsequent conversations took place between Leggitt and Frank Cutrona regarding her ability to pay and whether or not her mother’s income could be considered for credit requirements. Leggitt asked him to speak to her mother. Leggitt stated that she did not submit any information regarding her mother being a co-signer. Polly testified “[t]hey told me they would send her an application.” Christine Puchalski testified that she knew Leggitt as a resident of the apartment complex where she was a resident manager. In response to an inquiry by an unknown person calling on behalf of Regency Place Apartments, Puchalski stated that she did not go into any details other than that Leggitt paid her rent on time, that she did not have any returned checks, and there were no problems with Leggitt’s tenancy. By letter of January 28, 1993, Leggitt was advised that her application was not approved, stating that “We require the tenant/occupant to have sufficient income to qualify. Your mother living out of state, and not occupying the apartment would preclude her income from being part of the calculation.” This letter was signed by Carole Naylor, Property Administrator. Leggitt acknowledged that her application was not very specific as to income and that there were times that her mother paid rent directly to the apartment complex and sometimes she sent the sum directly to her. Following the rejection of her application, Leggitt moved to Titusville, Florida, to an apartment that was not accessible for her handicap. This apartment was on a very dangerous road, with no reliable public transportation and three miles to the grocery store. She had to buy a bicycle and risk her life on the dangerous road leading to the apartment, to buy groceries. She lived there eight-and-a-half months before moving to Merritt Island, Florida. Regency Apartments, containing 219 units, was built by Robert Stitzel in 1983 and owned by him until it was sold on April 30, 1993, to a third party corporation. The contract to sell the property had been executed in December, 1992. Frank Cutrona had worked for Stitzel between 4 and 6 years. He died on December 26, 1996. Carole Naylor did not work in the rental office. She made no judgments regarding the rental of the apartment, nor the creditworthiness of the prospective tenants. Her title “Property Administrator” appears to be a title only. Her duties were administrative, typing, and bookkeeping. She composed and typed the two letters that were sent to Leggitt, but the contents of the letters were given to her by Cutrona. She had no conversations with Polly Leggitt or Frances Leggitt. Robert Stitzel made no judgments regarding the tenants. Regency Apartments would require income equaling three times the gross rental. The creditworthiness and the determination of who would rent apartments was left solely with the resident manager. The proposed rent for a one-bedroom apartment was $380. Therefore, three times that amount equals $1,140.00. Respondent demonstrated that many disabled people had lived in the apartment complex. There was a person who was legally blind. There were amputees and physically challenged people of many different disabilities over the years. Accommodations were made for people with disabilities by Cutrona and such costs for these accommodations were paid by Regency. It does not appear that Regency Apartments is a legal entity. The owner of the apartment complex at the time of the alleged discrimination was Regency Place, Ltd., a Florida limited partnership, which no longer owns the apartment complex. Frank Cutrona is deceased, and his estate has not been made party to this proceeding. Cutrona has been described as a caring, disabled man who was kind and considerate of his tenants with disabilities and made innovative accommodations for their benefit. The specific reasons or motivations for the rejection of the application by Cutrona cannot be clarified because of his death in December, 1996. Respondent was aware that the complex could not discriminate on the basis of race, color, sex or disabilities. The Petitioner has made a prima facie case of discrimination in that Leggitt is a handicapped person, who is otherwise qualified to rent the apartment, and she suffered a loss of a housing opportunity, under circumstances which lead to an inference that Respondent based its action solely upon her handicap. Respondent presented evidence that Regency’s requirement of gross income equaling three times the monthly rent had not been satisfied by Leggitt’s mother’s agreement to contribute $550 per month. Leggitt’s income of $281.34, plus her mother’s contribution, would come to $831.34 per month. Three times the monthly rent was $1,140, thus rendering their income short by $308.66 per month. The motivation for rejecting the application is recited in those letters which stated that the apartment which Leggitt wanted was not available, and Leggitt did not have sufficient income to qualify. There is no evidence of a discriminatory motive on the part of Cutrona, Naylor, Stitzel, or Regency Apartments, other than conjecture. There is no evidence that suggests the reasons given were not true at the time the letters were written or that they were merely pretextual. Further, it does not appear from the evidence that any discriminatory motive has been proven. There is nothing in the evidence that proves that Leggitt’s legal blindness was a cause of the rejection of her application. There is no evidence of any act or conduct which would suggest discriminatory conduct or a discriminatory animus by any of the persons named as Respondents. Taken as a whole, the credible evidence indicates that the sole basis for rejecting her application was the unavailability of the unit that she requested, and her failure to satisfy management of her financial ability to meet the financial requirements of Regency Apartments. Although Leggitt testified as to her inconvenience caused by the denial of her application, there is no evidence of any quantifiable damages.
Recommendation 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. RECOMMENDED this 7th day of July, 1997, at Tallahassee, Leon County, Florida. DANIEL M. KILBRIDE Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (904) 488-9675 SUNCOM 278-9675 Fax Filing (904) 921-6847 Filed with the Clerk of the Division of Administrative Hearings this 7th day of July, 1997. COPIES FURNISHED: Sharon Moultry, Clerk Commission on Human Relations 325 John Knox Road Building F, Suite 249 Tallahassee, Florida 32303-4149 Dana Baird, Esquire Commission on Human Relations 325 John Knox Road, Building F, Suite 240 Tallahassee, Florida 32303-4149 Evelyn Davis Golden, Esquire Assistant General Counsel Commission on Human Relations 325 John Knox Road, Building F, Suite 240 Tallahassee, Florida 32303-4149 Ms. Polly Leggitt 505 Landings Way, Apartment Number 12 Merritt Island, Florida 32952 Mike Krasny, Esquire Krasny & Dettmer Post Office Box 428 Melbourne, Florida 32902-0428
Findings Of Fact A transcript of the proceeding before the Administrative Law Judge was not filed with the Commission. We adopt the Administrative Law Judge’s findings of fact. FCHR Order No. 05-093 Page 2 Conclusions of Law We find the Administrative Law Judge’s application of the law to the facts to result in a correct disposition of the matter. We note that the Administrative Law Judge concluded, “Mr. Dill, on a single occasion, behaved in a prejudiced, rude and verbally abusive manner to Petitioner. Although he was named in the Petition for Relief, no valid address was provided for him. He has had no notice of this proceeding, and therefore, jurisdiction over him by the Division has not been acquired. To rule with regard to his rights at this time would be a denial of due process...the undersigned is not satisfied that, as a mere employee of the other Respondents, Mr. Dill could bear any liability to Petitioner under the facts of this case...” Recommended Order, {| 29. We note that the Commission has concluded that individuals can bear liability under the Fair Housing Act. See, Thorhill v. Admiral Farragut Condominium Association, et al., FCHR Order No. 01-018 (March 15, 2001); see, also, Sections 760.22(8) and 760.34(1), Florida Statutes (2005). Further, we note that in a case involving findings of the utterance of racially repugnant remarks, a Commission panel has stated, “We note the Hearing Officer’s finding that, ‘The racially repugnant comments of the Respondent, in the absence of any acts infringing on the tenants’ free use of the leasehold, are not a violation of Section 760.23, Florida Statutes.’... We hereby clarify that this finding does not mean that racially-repugnant comments can never amount to a violation of the Fair Housing Act.” Fletcher v. Hatfield, 18 F.A.L.R. 1590, at 1591 (FCHR 1995). Nevertheless, given the Administrative Law Judge’s finding that Mr. Dill had no notice of the proceeding, and the finding that “[bly firing Mr. Dill, Oak Pointe and Flournoy took steps to prevent further bad acts or bad words by him against Petitioner and others (Recommended Order, § 28),” and in the absence of a transcript of the proceeding before the Administrative Law Judge, we adopt the Administrative Law Judge’s conclusions of law, with these clarifying comments. Exceptions Neither party filed exceptions to the Administrative Law Judge’s Recommended Order. Dismissal The Petition for Relief and Housing Discrimination Complaint are DISMISSED with prejudice. The parties have the right to seek judicial review of this Order. The Commission and the appropriate District Court of Appeal must receive notice of appeal within 30 days of the date this Order is filed with the Clerk of the Commission. Explanation of the right FCHR Order No. 05-093 Page 3 to appeal is found in Section 120.68, Florida Statutes, and in the Florida Rules of Appellate Procedure 9.110. DONE AND ORDERED this _9"__ day of September , 2005. FOR THE FLORIDA COMMISSION ON HUMAN RELATIONS: Commissioner Mario M. Valle, Panel Chairperson; Commissioner Dominique B. Saliba, M.D.; and Commissioner Billy Whitefox Stall Filed this_ 9" day of September 2005, in Tallahassee, Florida. Vit braferd Violet Crawford, Clerk Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, FL 32301 (850) 488-7082 Copies furnished to: Karla Maxwell Post Office Box 438 Monticello, FL 32345 Oakpointe Apartments and Flournoy Properties c/o Jack R. Lee Vice President, Flournoy Properties 2673 Mountain Brook Road Canton, GA 30114 Ella Jane P. Davis, Administrative Law Judge, DOAH James Mallue, Legal Advisor for Commission Panel 1 21S wom ernest FCHR Order No. 05-093 Page 4 THEREBY CERTIFY that a copy of the foregoing has been mailed to the above listed addressees this gt day of September , 2005. By: Vite Cumefrsl Clerk of the Commission Florida Commission on Human Relations
Recommendation Based upon the findings of fact and conclusions of law recited above, it is recommended that respondent's registration as a real estate broker be suspended for a period of seven (7) days. Respectfully submitted and entered this 3rd day of June, 1977, in Tallahassee, Florida. DIANE D. TREMOR, Hearing Officer Division of Administrative Hearings Room 530, Carlton Building Tallahassee, Florida 32304 (904) 488-9675 COPIES FURNISHED: Louis B. Guttmann III Staff Counsel Florida Real Estate Commission 2699 Lee Road Winter Park, Florida 32789 Gerard L. Crawford Route L, Box 157 Feeport, Florida 32439 ================================================================= AGENCY FINAL ORDER ================================================================= STATE OF FLORIDA DIVISION OF OCCUPATIONS DEPARTMENT OF PROFESSIONAL AND OCCUPATIONAL REGULATION FLORIDA REAL ESTATE COMMISSION FLORIDA REAL ESTATE COMMISSION, An Agency of the State of Florida, Plaintiff, PROGRESS DOCKET NO. 2853 WALTON COUNTY vs. DOAH CASE NO. 76-1034 GERARD L. CRAWFORD, Defendant. /
The Issue Whether Respondent is guilty of discrimination, as defined by the Florida Fair Housing Act, Chapter 760, Part II, Florida Statutes, against Petitioner, on the basis of her age and/or handicap.
Findings Of Fact Petitioner is a 73-year-old woman on a fixed income. She suffers from congestive heart failure, for which she takes medication. She has been treated one time for an allergic reaction to pesticides, but an on-going allergy to pesticides was not proven. She lives alone in a mortgaged home in the County of Volusia. Respondent James A. Whittaker has been the Housing Manager for Respondent County of Volusia Community Service Group (Group) only since 1998. Respondent Group is part of the Community Services Department of the Volusia County government. The Group receives grants, lets construction bids/contracts, and provides low-cost funding to pay for maintenance/repair/improvement work on the homes of low-income homeowners in Volusia County. There is no age factor involved in the Group's determination of a homeowner's eligibility. Eligibility is determined based almost entirely upon income. The vehicle for Volusia County's maintaining/ repairing/improving low-income homes is called a "rehabilitation loan." The normal sequence of events for a homeowner is to: apply for eligibility; be determined eligible by the Group; be placed on a waiting list; rise to the top of the waiting list; sign a Rehabilitation Loan Agreement; and participate in a home inspection/pre-bid conference in the home. After this, the Group bids out a contract and accepts a bidder. Then, the successful bidder repairs the home and is paid by the Group. Homeowners over 62 years of age are not required to pay back any of the money; younger homeowners are required to repay 50 percent. Effective in the autumn of 2000, the Group, on behalf of the County, began to require, as part of the Rehabilitation Loan Agreement, that each homeowner execute permission for a timed lien on the home which would protect 50 percent of the Group's investment if, within a specified time period after the work is completed, the homeowner rents, sells, or vacates the real property which has been improved at public expense. The time period for each lien is based on the amount of the loan. Larger loans result in longer lien periods. There is a similar provision for a lien if the homeowner dies within a specified period and the new client is less than 62 years of age. In the case of death of a homeowner, accommodations with regard to the lien can be made for familial heirs less than 62 years of age who inherit from homeowners over 62 years of age. (R-1) In 1994, Petitioner sought housing assistance/a rehabilitation loan from the Group. She filled out the necessary application paperwork and was determined to be eligible for assistance. Her name was placed on a waiting list ranked solely by the date she was deemed eligible. At that time, the immediacy of her repair needs was not part of her ranking or that of any other applicant. She was told the Group would get to her in approximately two years. Before Petitioner's name moved to the top of the waiting list so that her repair/maintenance problem could be assessed, and possibly addressed, by the Group, her name was either removed from the list inadvertently or because she did not respond to periodic notification(s) that she must affirmatively state whether she still wished to remain on the list or not. Mr. Whittaker did not work in any capacity that would have permitted him to remove her name prior to 1998. There is no proof that Mr. Whittaker or his predecessor(s) did any affirmative act at any time to remove her name, let alone removed her name for a discriminatory reason. Between 1994 and 2000, Petitioner was required to sign up several times to get back on the list. She found this confusing and unfair. She has complained about this to many people. By 2000, the hole in Petitioner's floor, which she had originally approached the Group to fix, had become substantially larger than it was when she first applied. She maintains that this was because the hole had gone unattended from 1994 to 2000. She blames the Group for the interim deterioration of her house. (P-2, P-3) Petitioner also has had roofing problems. She maintains that the Group's delay in addressing her roofing problems has caused minor roofing damage to increase to substantial water damage inside the home. She testified that the original problem was exacerbated when an inspector stepped through a room ceiling weakened by rain coming through the roof into the attic. It was proven that she currently has a bad leak in her dining room, and considerable damage to the ceiling and dry wall, but it was not proven when or how this problem began. Petitioner has a particular kind of roofing shingle that she wants replaced and warranted, and she does not want to accept any substitutes. (P-2, P-3) Sometime in 2000, in response to Petitioner's complaints, Ms. Herrin, the Housing Coordinator in Mr. Whittaker's office, went to Petitioner's home to determine what Petitioner's situation was, because none of her papers could be located. Ms. Herrin assisted Petitioner in making out and submitting new application papers. Petitioner was declared eligible and placed on an emergency repairs waiting list. In response to Petitioner's complaints, a County Inspector came to her house. Upon this inspector's recommendation, the Group paid for someone to do a temporary repair to Petitioner's floor. This inspector may have been the person who stepped through Petitioner's ceiling, but Petitioner's testimony is not clear in this regard. The floor repair was admittedly only a temporary one, and Petitioner does not like it. She is concerned about people and animals crawling under her house and losing her insurance as a result. On February 24, 2000, the Group sent Petitioner a letter, over the signature of a staff assistant, stating that Petitioner's name was being removed from the emergency waiting list because the inspection had determined that no emergency existed, and that Petitioner would be retained on the regular rehabilitation list and receive assistance when her name reached the top of that list. (P-4) In response to Petitioner's continued complaints, on March 24, 2000, Mr. Whittaker reported to the SHIP Analyst at the Florida Housing Finance Corporation that the Group had stabilized Petitioner's bedroom wall and caulked the areas around her window. An inspector had explained to Petitioner the work that had been done and needed to be done and that the present temporary repairs would be sufficient until she became eligible for a substantial rehabilitation loan. (P-1) Petitioner has not refuted this information. The materials forwarded by the Commission to the Division show that Petitioner prepared her discrimination charge, based on age and disability, on August 21, 2001, stating that the last discrimination had occurred on "July 31, 2001 and continuing." The charge bears no signature of Petitioner and no date stamp by the Commission. However, these pleadings show that Petitioner objected to the designation of her problems as "non-emergency," and further show that she does not want to sign the lien agreement required of all participating homeowners. At hearing, Petitioner pointed out that a lien was not required when she first applied in 1994 and, indeed, was not required prior to the autumn of 2000, but whether the contract to repair/improve Petitioner's home, described below, was bid before or after she filed her charge of discrimination, is not clear on the record. At some point in time after autumn 2000, Petitioner was offered a rehabilitation loan to make major repairs and improvements to her home. Petitioner objected to some of the terms and conditions of the loan, including but not limited to the lien requirements, and refused to sign the County of Volusia Rehabilitation Agreement. (R-1) Assuming that she would eventually sign the agreement, the Group went ahead and bid out the work for the rehabilitation of Petitioner's home. Charles Coleman, the building contractor who was awarded the bid, required that Petitioner move out of the house while the contracting work was being done. This is such a common requirement by contractors that the Group has pre-printed Temporary Relocation Notices, which staff merely fill out to specify dates for the respective participant-homeowners to be in and out of their houses and which instruct them to pack up any breakables and valuables for that interim period. The form letter is applied to all applicants by the Group, regardless of which contractor makes the request. The Group, like the contractors, fear liability if a homeowner is hurt or any damage is done to his or her possessions during construction. Also, a construction crew cannot proceed in a timely, efficient, and cost-effective manner with laymen, including the homeowner, present on a project. Petitioner refused to temporarily vacate her house while the contractor did the rehabilitation work. Ms. Herrin met with Petitioner five times to explain the health considerations of Petitioner remaining in the house during construction, but this is not sufficient, in light of the remainder of the evidence, to support a finding that anyone associated with the Group or the County perceived Petitioner to be "handicapped," as defined by the applicable statutes. Petitioner maintained to the Group, and further maintained at hearing, that plaster dust would not bother her. Despite the obvious danger of construction to someone with congestive heart failure and pesticide allergies, Petitioner continued to insist upon remaining in her home for the duration of the construction. She also testified that her doctor believed it more stressful for her to "run back and forth" than to stay in the house during the construction. Petitioner did not establish that her doctor was aware of the lengths to which the Group was willing to go to make other living arrangements for her, which are detailed below; but based upon Petitioner's testimony, the undersigned is forced to conclude that Petitioner has not established that her medical condition(s) substantially limit one or more of her major life activities. Contractor Coleman refused to do the work if Petitioner remained in the house during construction, so on November 20, 2001, Mr. Whittaker wrote a letter (R-3) to Petitioner explaining that Mr. Coleman would need Petitioner to be out of her home for only nine days and that his crew would move all her furniture into a storage box and keep it on her property while the work was being done. He pointed out that all her home's electricity and water would be shut off during the nine days of construction. He stated that Petitioner could move back into her house after the primary work was finished. This letter's explanation comports with the rather lengthy list of repairs on which the contractor had bid, which, in addition to fixing Petitioner's roof and floor, included some plumbing and replacement of major kitchen appliances. (P-5, R-3) While it is possible that repair costs could run so high that the Group would not replace Petitioner's stove and refrigerator, apparently that determination would have had to wait until construction was underway. In other words, Petitioner wanted a new stove and refrigerator but might not have gotten them due to the existing funding scheme. However, it is clear that the Group and Mr. Coleman agreed to make sure that Petitioner got the best warranty possible on the type of shingle she was requesting; that her wishes with regard to her interior doors were met; and that her other requests were honored wherever they did not offend either the legal requirements for construction contracts or building permits/codes. (P-5, R-3) Mr. Whittaker's November 20, 2001, letter also advised Petitioner that the second lowest bid was $5,000 more than Mr. Coleman's bid; that the third lowest bid was $6,000 more than Mr. Coleman's bid; and that the second and third lowest bidders would require Petitioner to be out of her house for 60 days, or neither of them would do the job. Petitioner has not refuted any of this information. (R-3) At hearing, it was shown that Petitioner has a grown son residing in Volusia County, with the potential to house her during construction. It was not shown that he would be able to house Petitioner during construction. However, in his November 20, 2001, letter, Mr. Whittaker offered to find Petitioner a place to stay for the nine days' duration of construction. (R-3) After Petitioner repeatedly refused to leave her home for the nine days of construction, Mr. Coleman withdrew his bid on the project. Prior to filing her discrimination complaint on or about August 21, 2001, Petitioner complained a lot about delays and paperwork, but she never stated or wrote to anyone with the County or Group that she felt she had been discriminated against. In hearing, when first asked why she thought she had been turned down for a rehabilitation loan, she replied, "I don't know," but later she stated it was because of her age and heart condition. When first examined about Mr. Whittaker's involvement in this case, Petitioner stated that she had never met or talked to Mr. Whittaker, but later in the hearing, she insisted that at some undesignated time, Mr. Whittaker screamed at her over the phone that he would never fix her house or allow his inspectors to enter it because she had written Governor Bush about him. Mr. Whittaker credibly denied making such a statement, and his letters in evidence demonstrate his efforts to work with Petitioner, not against her. Even if Mr. Whittaker had made the statement of which he is accused, such a reason as "retaliation for calling the Governor" would not be probative of discrimination on the basis of age or handicap. On January 28, 2002, Mr. Whittaker wrote Petitioner offering to rebid the job if she would cooperate by leaving the house just during primary construction. The letter requested that Petitioner let him know what her intentions were by February 12, 2002, or he would close her file. (R-4) On February 13, 2002, Mr. Whittaker answered a letter from Petitioner's attorney, informing him that in order for Petitioner to participate in the rehabilitation program, she would have to agree to vacate her premises until the contractor had completed a substantial portion of the work and that he, Mr. Whittaker, could not rebid the project until Petitioner complied. (P-7, R-5) On March 20, 2002, the Commission returned a Determination of No Probable Cause against Petitioner. On April 9, 2002, Petitioner filed her Petition for Relief. On April 12, 2002, the Director of the County of Volusia Community Services Department wrote a final time to Petitioner stating that because she refused to relocate temporarily from her home for just nine days, the contractor had relinquished the bid, and accordingly the Director was closing her file. (R-6)
Recommendation 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 the Petition for Relief and Charge of Discrimination. DONE AND ENTERED this 2nd day of October, 2002, in Tallahassee, Leon County, Florida. ELLA JANE P. DAVIS 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 COPIES FURNISHED: Jerome D. Mitchell, Esquire Riggio & Mitchell, P.A. 400 South Palmetto Avenue Filed with the Clerk of the Division of Administrative Hearings this 2nd day of October, 2002. Daytona Beach, Florida 32114 Randell H. Rowe, Esquire County of Volusia 123 West Indiana Avenue Deland, Florida 32720-4613 James L. Whittaker, Housing Manager County of Volusia Community Service Group 123 West Indiana Avenue, Room 203 Deland, Florida 32720-4611 Cecil Howard, General Counsel Florida Commission on Human Relations 325 John Knox Road Building F, Suite 240 Tallahassee, Florida 32303-4149 Denise Crawford, Agency Clerk Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301
Findings Of Fact Upon consideration of the oral and documentary evidence adduced at the hearing, the following facts are found: During the development stage of a condominium project, known as Lake Villas Condominium, in Altamonte Springs, Florida, First Federal Savings and Loan of Orlando foreclosed on some forty (40) units of the project. At that time, approximately in November of 1975, thirty-one (31) units already had fee- simple owners or were under a lease/purchase option and they were not involved in the foreclosure proceedings. Mr. David McComb, a vice-president and mortgage loan officer with First Federal Savings and Loan of Orlando, was given the responsibility of assuring the completion of the remaining units, selling the units and setting up a homeowners' association for the Lake Villas Condominium. The petitioner Lake Villas Condominium Association's five-position board of directors was originally comprised of three members who were personnel of First Federal Savings and Loan of Orlando, so that First Federal would have majority control at a time when it held the ownership to the majority of the units. In June of 1976, thirty-seven of the seventy-one units had been sold to individuals. Thereafter, the composition of the petitioner's board of directors changed and the individual-unit owners held the majority of the five positions. Mr. McComb, as a representative of First Federal Savings and Loan of Orlando, remained on the board of directors and continued First Federal's attempts to sell the remaining unsold units. First Federal retained a sales representative who lived in one of the condominium units, operated her sales office from one of the vacant units owned by First Federal and was paid a real estate commission when she sold a unit. The sales contract on the last of the units owned by First Federal was closed on December 12, 1977. Prior to mid-1976, the Florida Power Corporation account for seven or eight common element meters was in the name of First Federal Savings and Loan of Orlando, doing business as Lake Villas Condominium Association, and the billing statements were mailed to the Orlando office of First Federal Savings and Loan. In June or July of 1976, after the majority of units had been purchased by individual owners and majority control of the board of directors was obtained by the individual owners, Mr. McComb of First Federal placed a telephone call to the respondent's Winter Park office. The purpose of this call was to inform respondent that First Federal wanted the account name and address for the seven or eight meters changed and to inform respondent that the Lake Villas Condominium Association had taken over responsibility for the accounts. Mr. McComb spoke on the telephone to a female who handled commercial accounts for the respondent's Winter Park office and informed her that he wanted the name of First Federal Savings and Loan taken off the account and the bills to be mailed to the Lake Villas Condominium Association at a post office box in Altamonte Springs. The female to whom Mr. McComb spoke took down the information regarding the account numbers and change of billing names and addresses, and told him she would take care of it. Mr. McComb did not inquire about a rate adjustment, and no discussion was had concerning rates for the seven or eight meters. Following the June or July, 1976, discussion between Mr. McComb and a female at the respondent's Winter Park office concerning a change in billing name and address, the billing statements were sent and received at the post office address of the Lake Villas Condominium Association, Inc. in Altamonte Springs. Approximately one year later, in mid-1977, Mr. McComb was forwarded some delinquent notices on the seven or eight meters. They had originally been sent to the petitioner's post office box in Altamonte Springs, but were thereafter forwarded to Mr. McComb's attention at First Federal. Mr. McComb noticed that, although the post office address had been changed, the accounts were still in the name of First Federal Savings and Loan of Orlando. He then placed another telephone call to the respondent's Winter Park office, spoke with a female in the commercial department and requested that the name of First Federal Savings and Loan of Orlando be removed from the account and that the Lake Villas Condominium Association, Inc. be inserted as the new-named customer. The female informed Mr. McComb that this request would be taken care of and that nothing further need be done. No inquiry by Mr. McComb or discussion was had concerning a rate adjustment for these seven or eight meters. Electricity for the individual living units of the Lake Villas Condominiums are separately metered. In addition, there are seven or eight separately billed meters which service the common areas of the condominium, such as the two swimming pools, the internal street and sidewalk lighting, the clubhouse and small post lamps for an open green area. From at least April of 1979 through October of 1980, no commercial activity occurred in any of the condominium units. In April of 1979, Mr. O. K. Armstrong became the manager of the Lake Villas Condominiums and was responsible for the association's financial transactions. He noticed in May of 1979 that the bills for the seven or eight subject meters contained the name of First Federal Savings and Loan of Orlando, though they did list the condominium's post office box number for the address. After speaking with Mr. McComb about the matter, Mr. Armstrong telephoned a Mr. Harbour at the respondent's Winter Park office. It was during this discussion that petitioner, through Mr. Armstrong, learned that the seven or eight common element meters might qualify for a residential, as opposed to the higher commercial, rate. Thereafter, the rates for the seven or eight meters were changed by Florida Power Corporation from commercial to residential. The request of Mr. Armstrong for a retroactive application of those residential rates to January 1, 1976, which would amount to a refund of all amounts paid in excess of the residential rates from that date, was denied by Mr. Harbour, respondent's office manager in Winter Park. During the hearing, the petitioner verbally amended the request for retroactive application of the residential rate from January 1, 1976, to July of 1976.
Recommendation Based upon the findings of fact and conclusions of law recited above, it is RECOMMENDED that the petition filed by the Lake Villas Condominium Association, Inc. be DISMISSED. Respectfully submitted and entered this 17th day of June, 1981, in Tallahassee, Florida. DIANE D. TREMOR, Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 17th day of June, 1981. COPIES FURNISHED: James D. Mapp Hunter, Pattillo, Marchman, Mapp and Davis Post Office Box 340 Winter Park, Florida 32790 Blair W. Clack Assistant Counsel Post Office Box 14042 St. Petersburg, Florida 33733 Arthur Shell Public Service Commission Legal Department 101 East Gaines Street Tallahassee, Florida 32301 Steve Tribble, Clerk Florida Public Service Commission 101 East Gaines Street Tallahassee, Florida 32301
The Issue Whether Petitioners have been subjected to an unlawful housing practice by Respondents, as alleged in the Housing Discrimination Complaint filed by Petitioners on March 13, 2004.
Findings Of Fact Petitioners, Ingrid Gomez and Luis Moran, are married. They and their son moved into Coral Gardens Apartments in early 2000. Petitioners entered into a one-year lease on January 13, 2000. The lease was not renewed at the end of one year, and Petitioners, thereafter, lived in their apartment as month-to- month tenants. Coral Gardens Apartments is a 36-unit apartment complex located in Naples, Florida. Many of the residents are minorities. Respondent DeMarco Investments is the absentee owner of the complex, which is managed through a Fort Myers company called Services-Taylor Made, Inc. Respondents Jim and Judy Hill were hired to manage the complex in March 2003. At some point in June 2003, Ms. Hill sent a notice to all tenants that stated as follows, set forth verbatim:1/ Now we have [sic] ask you to please make sure that when you give your children snacks, drinks, or what ever [sic] to eat that you the parent would make sure your children discard the trash inside the unit or in the dumpster. Apparently this went in one ear and out the other. Now all unit [sic] has to suffer this price because no one wants to help keep the trash up by disposing of it yourself [sic]. The adults are getting just as bad. So every unit is going to pay an additional $35.00 a month trash clean up fee. You want to live trashy MOVE across the street. So when you pay your July Rent pay an extra $35.00 to pay for the person that has to clean up YOUR trash. I sent out letters to everyone that it was $25.00 and if it didn't improve I would raise it. Well I didn't inforced [sic] the $25.00 and it hasn't changed at all. So it [sic] in effect for sure now [sic]. YOU WILL PAY $35.00 WITH JULY'S RENT. Now you don't want to pay it next month then start picking up the TRASH! Also from now on you put furniture out at the dumpster it will cost you $50.00 first piece and $15.00 per piece after that. They charge me to come and get the stuff then I charge you. The camera's [sic] will be watching and don't get caught. I hate to inform all of you we are not the old managers, the old owners, the old maintenance personal [sic]. We are new and we are the LAW here. We are working to improve this place and if you can't help with keeping this place clean then I DON"T [sic] want to here [sic]. I AM NOT GOING TO LIVE IN A TRASHY PLACE! After receiving this notice, Mr. Moran and Mr. Novarro went to the manager's office to discuss the propriety of the proposed $35.00 trash pick-up fee. Mr. Moran stated to Ms. Hill that he believed an imposition of such a fee on tenants was against the law. Mr. Moran testified that Ms. Hill stated, "I am the law." Mr. Moran demanded that Ms. Hill give him the phone number of Mr. DeMarco. He told her, "I want to talk to the owner of the circus, not the clowns." Mr. Moran testified that at this point, Ms. Hill became apoplectic. She called Mr. Moran "a fucking nigger Latino." Mr. Novarro, whose English was very sketchy, confirmed that Ms. Hill used those words. Ms. Gomez, who speaks relatively fluent English, testified that on another occasion Ms. Hill stated that she was "tired of the fucking negros Latinos." This raised a question whether Ms. Hill also used the term "negros" in her confrontation with Mr. Moran and whether it became "nigger" only in the imperfect translation. In any event, Ms. Hill's use of the word "fucking" was unambiguous and certainly indicated a racial animus against Mr. Moran, who is indeed a black Latino. In a second notice to all tenants dated June 22, 2003, Ms. Hill acknowledged tenant complaints about the $35.00 fee. She had "consulted the Florida Landlord/Tenant Act and state officials in Tallahassee," and concluded that she was required to rescind the $35.00 trash fee. Thus, the controversial fee was never collected. Dennis Gomez, Petitioners' middle-school-aged son, testified that Ms. Hill told him she would pay him $5.00 per week to pick up trash on the property. Mr. Moran told Dennis not to accept, because tenants paid Ms. Hill $10.00 per month to clean up the property. Dennis testified that after he refused the offer, Ms. Hill told him that he had to pick up the trash anyway because he "was a slave." When Dennis asked why he was a slave, Ms. Hill stated that Dennis' father was a "nigger and a slave," and that made Dennis a "slave, too." Dennis Gomez' testimony is not credible. There is undoubtedly a kernel of truth in his story, but Dennis' obvious embellishments of his conversations with Ms. Hill render his testimony of doubtful probative value. At some point in June 2003, Ms. Hill served Petitioners with a seven-day notice to vacate the premises, because of her confrontation with Mr. Moran. However, the notice was never enforced and the Petitioners stayed on until August 1, 2003, when they voluntarily terminated their tenancy. There was a problem with the return of Petitioners' deposit. Ms. Gomez contacted Mr. DeMarco, who returned the deposit to Petitioners after a two-month delay caused by cash flow problems with his businesses. Mr. DeMarco credibly testified that he knew nothing of the controversy between Petitioners and Ms. Hill until he received the Housing Discrimination Complaint. His only contact with Petitioners was the telephone conversation with Ms. Gomez in August 2003 concerning the Petitioners' deposit. From the weight of the testimony, it is apparent that there was a great deal of animosity between Petitioners and the Hills. The notices authored by Ms. Hill were crude and insulting, but were not directed toward Petitioners in particular. There is credible evidence that on at least one occasion Ms. Hill uttered a derogatory and insulting racial comment to Mr. Moran. However, the record evidence does not demonstrate that Ms. Hill took any action against Petitioners on the basis of their race or familial status. The $35.00 trash fee notice was provided to all tenants. The fee itself was never collected. Petitioners were given a seven-day notice, but it was never enforced. Petitioners chose to vacate their tenancy. No adverse action whatever was taken against Petitioners. DeMarco Investments was unaware of the hostile situation between Petitioners and the Hills. Mr. DeMarco's delay in returning Petitioners' deposit was due to legitimate business reasons.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law set forth herein, it is RECOMMENDED: That the Florida Commission on Human Relations enter a final order dismissing the Petition for Relief. DONE AND ENTERED this 8th day of September, 2004, in Tallahassee, Leon County, Florida. S LAWRENCE P. STEVENSON 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 8th day of September, 2004.
