The Issue The two issues raised in this proceeding are: (1) whether the basis and reason Respondent, Vestcor Companies, d/b/a Madalyn Landings (Vestcor), terminated Petitioner, Carlos Gomez's (Petitioner), employment on June 28, 2002, was in retaliation for Petitioner's protected conduct during his normal course of employment; and (2) whether Vestcor committed unlawful housing practice by permitting Vestcor employees without families to reside on its property, Madalyn Landing Apartments, without paying rent, while requiring Vestcor employees with families to pay rent in violation of Title VII of the Civil Rights Act of 1968, as amended, and Chapter 760.23, Florida Statutes (2002).
Findings Of Fact Based upon observation of the demeanor and candor of each witness while testifying, exhibits offered in support of and in opposition to the respective position of the parties received in evidence, stipulations of the parties, evidentiary rulings made pursuant to Section 120.57, Florida Statutes (2002), and the entire record compiled herein, the following relevant, material, and substantial facts are determined: Petitioner filed charges of housing discrimination against Vestcor with the Commission on August 30, 2002. Petitioner alleged that Vestcor discriminated against him based on his familial status and his June 28, 2002, termination was in retaliation for filing the charge of discrimination. Vestcor denied the allegations and contended that Petitioner's termination was for cause. Additionally, Vestcor maintained Petitioner relinquished his claim of retaliation before the final hearing; and under oath during his deposition, asserted he would not pursue a claim for retaliation. Petitioner was permitted to proffer evidence of retaliation because Vestcor terminated his employment. The Commission's Notice was issued on January 7, 2005. The parties agree that Petitioner was hired by Vestcor on June 25, 2001, as a leasing consultant agent for Madalyn Landing Apartments located in Palm Bay, Florida. Petitioner's job responsibilities as a leasing consultant agent included showing the property, leasing the property (apartment units), and assisting with tenant relations by responding to concerns and questions, and preparing and following up on maintenance orders. Petitioner had access to keys to all apartments on site. At the time of his hire, Petitioner was, as was all of Vestcor employees, given a copy of Vestcor's Employee Handbook. This handbook is required reading for each employee for personal information and familiarity with company policies and procedures, to include the company requirement that each employee personally telephone and speak with his/her supervisor when the employee, for whatever reason, could not appear at work as scheduled, which is a basis and cause for termination. The parties agree that Vestcor's handbook, among other things, contains company policies regarding equal employment; prohibition against unlawful conduct and appropriate workplace conduct; procedures for handling employee problems and complaints associated with their employment; and procedures for reporting illness or absences from work, which include personal notification to supervisors, and not messages left on the answering service. Failure to comply with employment reporting polices may result in progressive disciplinary action. The parties agree that employee benefits were also contained in the handbook. One such employee benefit, at issue in this proceeding, is the live-on-site benefit. The live-on- site benefit first requires eligible employees to complete a 90-day orientation period, meet the rental criteria for a tax credit property, and be a full-time employee. The eligible employee must pay all applicable security deposits and utility expenses for the live-on-site unit. Rent-free, live-on-site benefits are available only to employees who occupy the positions of (1) site community managers, (2) maintenance supervisors, and (3) courtesy officers. These individuals received a free two-bedroom, two-bathroom apartment at the apartment complex in which they work as part of their employment compensation package. The rent-free, live-on-site benefit is not available for Vestcor's leasing consultant agent employees, such as Petitioner. On or about July 3, 2001, Petitioner entered into a lease agreement with Vestcor to move into Apartment No. 202-24 located at Madalyn Landing Apartments. The lease agreement ended on January 31, 2002. The lease agreement set forth terms that Petitioner was to receive a $50.00 monthly rental concession, which became effective on September 3, 2001. Although he was eligible for the 25-percent monthly rental concession, to have given Petitioner the full 25 percent of his monthly rental cost would have over-qualified Petitioner based upon Madalyn Landing Apartment's tax credit property status. Petitioner and Vestcor agreed he would receive a $50.00 monthly rental concession, thereby qualifying him as a resident on the property. Petitioner understood and accepted the fact that he did not qualify for rent-free, live-on-site benefits because of his employment status as a leasing consultant agent. Petitioner understood and accepted Vestcor's $50.00 monthly rental concession because of his employment status as a leasing consultant agent. The rental concession meant Petitioner's regular monthly rental would be reduced by $50.00 each month. On September 1, 2001, Henry Oliver was hired by Vestcor as a maintenance technician. Maintenance technicians do not qualify for rent-free, live-on-site benefits. At the time of his hire, Mr. Oliver did not live on site. As with other employees, to become eligible for the standard 25-percent monthly rental concession benefits, Mr. Oliver was required to complete a 90-day orientation period, meet the rental criteria for a tax credit property, be a full-time employee, and pay all applicable security deposits and utility expenses for the unit. On November 13, 2001, Michael Gomez, the brother of Petitioner (Mr. Gomez), commenced his employment with Vestcor as a groundskeeper. Groundskeepers did not meet the qualifications for rent-free, live-on-site benefits. At the time of his hire, Mr. Gomez did not live on site. As with other employees, to become eligible for the standard 25-percent monthly rental concession benefits, Mr. Gomez was required to complete a 90-day orientation period, meet the rental criteria for a tax credit property, be a full-time employee, and pay all applicable security deposits and utility expenses for the unit. On November 21, 2001, 81 days after his hire, Mr. Oliver commenced his lease application process to reside in Apartment No. 203-44 at Madalyn Landing Apartments. Mr. Oliver's leasing consultant agent was Petitioner in this cause. Like other eligible Vestcor employees and as a part of the lease application process, Mr. Oliver completed all required paperwork, which included, but not limited to, completing a credit check, employment verification, and income test to ensure that he was qualified to reside at Madalyn Landing Apartments. Fifteen days later, on November 28, 2001, Mr. Gomez commenced his lease application process to reside in Apartment No. 206-24 at Madalyn Landing Apartments. As part of the leasing process, Mr. Gomez, as other eligible Vestcor employees who intend to reside on Vestcor property, completed all necessary paperwork including, but not limited to, a credit check and employment verification and income test to ensure he was qualified to reside at Madalyn Landing Apartments. Included in the paperwork was a list of rental criteria requiring Mr. Gomez to execute a lease agreement to obligate himself to pay the required rent payment, consent to a credit check, pay an application fee and required security deposit, and agree not to take possession of an apartment until all supporting paperwork was completed and approved. Mr. Gomez's leasing consultant was Petitioner. On December 28, 2001, Petitioner signed a Notice to Vacate Apartment No. 206-24, effective February 1, 2002. The Notice to Vacate was placed in Vestcor's office files. Petitioner's reasons for vacating his apartment stated he "needed a yard, garage, more space, a big family room, and some privacy." Thirty-four days later, February 1, 2002, Mr. Gomez moved into Apartment No. 206-24 at Madalyn Landing Apartments without the approval or knowledge of Vestcor management. On January 9, 2002, a "Corrective Action Notice" was placed in Petitioner's employee file by his supervisor, Genea Closs. The notice cited two violations of Vestcor's policies and procedures. Specifically, his supervisor noted Petitioner did not collect administration fees from two unidentified rental units, and he had taken an unidentified resident's rental check home with him, rather than directly to the office as required by policy. As a direct result of those policy violations, Ms. Closs placed Petitioner on 180 days' probation and instructed him to re-read all Vestcor employees' handbook and manuals. Petitioner acknowledged receiving and understanding the warning. At the time she took the above action against Petitioner, there is no evidence that Ms. Closs had knowledge of Petitioner's past or present efforts to gather statements and other information from Mr. Gomez and/or Mr. Oliver in anticipation and preparation for his subsequent filing of claims of discrimination against Vestcor. Also, on January 9, 2002, Petitioner was notified that his brother, Mr. Gomez, did not qualify to reside at Madalyn Landing Apartments because of insufficient credit. Further, Petitioner was advised that should Mr. Gomez wish to continue with the application process, he would need a co-signer on his lease agreement or pay an additional security deposit. Mr. Gomez produced an unidentified co-signer, who also completed a lease application. On January 30, 2002, the lease application submitted by Mr. Gomez's co-signor was denied. As a result of the denial of Mr. Gomez's co-signor lease application, Vestcor did not approve Mr. Gomez's lease application. When he was made aware that his co-signor's application was denied and of management's request for him to pay an additional security deposit, as was previously agreed, Mr. Gomez refused to pay the additional security deposit. As a direct result of his refusal, his lease application was never approved, and he was not authorized by Vestcor to move into any Madalyn Landing's rental apartment units. At some unspecified time thereafter, Vestcor's management became aware that Mr. Gomez had moved into Apartment No. 206-24, even though he was never approved or authorized to move into an on site apartment. Vestcor's management ordered Mr. Gomez to remove his belongings from Apartment No. 206-24. Subsequent to the removal order, Mr. Gomez moved his belongings from Apartment No. 206-24 into Apartment No. 103-20. Mr. Gomez's move into Apartment No. 103-20, as was his move into Apartment No. 206-04, was without approval and/or authorization from Vestcor's management. Upon learning that his belonging had been placed in Apartment No. 103-20, Mr. Gomez was again instructed by management to remove his belongings. After he failed and refused to move his belongings from Apartment No. 103-20, Vestcor's management entered the apartment and gathered and discarded Mr. Gomez's belongings. As a leasing contract agent, Petitioner had access to keys to all vacant apartments. His brother, Mr. Gomez, who was a groundskeeper, did not have access to keys to any apartment, save the one he occupied. Any apartment occupied by Ms. Gomez after his Notice to Vacate Apartment No. 103-20 was without the knowledge or approval of Vestcor and in violation of Vestcor's policies and procedures. Therefore, any period of apartment occupancy by Mr. Gomez was not discriminatory against Petitioner (rent-free and/or reduced rent), but was a direct violation of Vestcor's policies. On February 10, 2002, Mr. Oliver signed a one-year lease agreement with Vestcor. Mr. Oliver's lease agreement reflected a 25-percent employee rental concession. Throughout Mr. Oliver's occupancy of Apartment No. 203-64 and pursuant to his lease agreement duration, Mr. Oliver's rental history reflected his monthly payment of $413.00. There is no evidence that Mr. Oliver lived on site without paying rent or that Vestcor authorized or permitted Mr. Oliver to live on site without paying rent, as alleged by Petitioner. On June 2, 2002, Ms. Closs completed Petitioner's annual performance appraisal report. Performance ratings range from a one -- below expectations, to a four -- exceeds expectations. Petitioner received ratings in the categories appraised as follows: Leasing skills -- 4; Administrative skills -- 2, with comments of improvement needed in paperwork, computer updating, and policy adherence; Marketing skills -- 4, with comments that Petitioner had a flair for finding the right markets; Community awareness -- 3, with no comment; Professionalism -- 2, with comments of improvement needed in paperwork reporting; Dependability -- 2, with comments of improvement needed in attendance; Interpersonal skills -- 3, with no comments; Judgment/Decision-making -- 3, with no comments; Quality of Work -- 2, with comments that work lacked accuracy; Initiative -- 4, with no comment; Customer service -- 3, with no comments; Team work -- 2, with comments of improvement needed in the area of resident confidence; Company loyalty -- 2, with comments of improvement needed in adherence to company policy and procedures; and Training and development -- 3, with no comments. Petitioner's Overall rating was 2.5, with comments that there was "room for improvement." On June 27, 2002, while on 180 days' probation that began on January 9, 2002, Petitioner failed to report to work and failed to report his absence to his supervisor, Ms. Closs, by a person-to-person telephone call. This conduct constituted a violation of Vestcor's policy requiring all its employees to personally contact their supervisor when late and/or absent from work and prohibited leaving messages on the community answering service machine. On June 28, 2002, Petitioner reported to work. Ms. Closs, his supervisor, informed Petitioner of his termination of employment with Vestcor for failure to report to work (i.e. job abandonment) and for probation violation, as he had been warned on January 9, 2002, what would happen should a policy violation re-occur. It was after his June 28, 2002, termination that Petitioner began his personal investigation and gathering of information (i.e., interviews and statements from other Vestcor employees) in preparation to file this complaint. Considering the findings favorable to Petitioner, he failed to establish a prima facie case of retaliation by Vestcor, when they terminated his employment on June 28, 2002. Considering the findings of record favorable to Petitioner, he failed to establish a prima facie case of housing and/or rental adjustment discrimination by Vestcor, based upon familial status of himself or any other employer. Petitioner failed to prove Vestcor knowingly and/or intentionally permitted, approved, or allowed either Mr. Gomez or Mr. Oliver to live on site without a completed and approved application followed by appropriate rent adjustments according to their employment status and keeping within the tax credit requirement, while requiring Vestcor employees with families (or different employment status) to pay a different monthly rent in violation of Title VII of the Civil Rights Act of 1968. Petitioner failed to prove his termination on June 28, 2002, was in retaliation for his actions and conduct other than his personal violation, while on probation, of Vestcor's policies and procedures.
Recommendation Based on the foregoing, Findings of Fact and Conclusions of Law, it is RECOMMENDED the Florida Commission on Human Rights enter a final order dismissing the Petition for Relief alleging discrimination filed by Petitioner, Carlos Gomez. DONE AND ENTERED this 29th day of August, 2005, in Tallahassee, Leon County, Florida. S FRED L. BUCKINE 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 29th day of August, 2005.
The Issue Whether Respondents have violated Florida's Fair Housing Act by refusing to rent an apartment to Petitioner because of her mental disability and familial status. If so, whether Petitioner should be granted the relief she has requested.
Findings Of Fact Based upon the evidence adduced at hearing and the record as a whole, the following findings of fact are made: Petitioner is a single parent. She has three sons, aged 10, 12, and 14. At all times material to the instant case, her sons have lived with her in the same household. At all times material to the instant case, Petitioner has suffered from phobias and from anxiety and panic attacks. At all times material to the instant case, Petitioner has received social security disability benefits from the federal government based upon her mental disability. Summer Lakes is a rental apartment community in Oakland Park, Florida. Petitioner lived in an apartment at Summer Lakes with her three sons from June of 1994 to January of 1995. During the period of her tenancy, Petitioner experienced financial problems. As a result, she had difficulty making her rent payments. In January of 1995, she was evicted from her Summer Lakes apartment for nonpayment of rent. Following her eviction, she and her sons lived with her mother in her mother's house (where Petitioner and her sons still live). Petitioner's financial situation improved following her eviction. By August 12, 1996, she had been able to save a substantial sum of money. On or about that date (August 12, 1996), Petitioner returned to Summer Lakes to inquire about again renting an apartment in the community. Flags outside the rental office indicated that apartments were available for rent. Upon entering the rental office, Petitioner was greeted by Vicki Atkinson (now Keating), Summer Lakes' manager. Summer Lakes had had another manager when Petitioner had lived there previously. Petitioner filled out an application to lease an apartment in the community and handed it to Ms. Atkinson. She also presented to Ms. Atkinson various documents in an effort to show that she would be financially able to make the required rent payments. Among these documents were bank statements which reflected that Petitioner had approximately $25,000 in the bank. Petitioner, in addition, showed Ms. Atkinson paperwork Petitioner had received from the federal government regarding her social security disability benefits. The paperwork indicated that Petitioner had been awarded these benefits (monthly payments of $910.00) based upon the finding that she had a mental disability. Immediately after reviewing the paperwork, Ms. Atkinson told Petitioner, "We don't want your kind here." Petitioner pleaded with Ms. Atkinson to let her rent an apartment in the Summer Lakes community. She even offered to have someone co-sign her lease. Ms. Atkinson was unmoved. Claiming that Petitioner's income was insufficient, she refused to rent an apartment to Petitioner. Her refusal was actually based upon her desire not to rent to a person with a mental disability. In refusing to rent an apartment to Petitioner, Ms. Atkinson was acting on behalf of the owner of Summer Lakes, Pittco Summer Lakes Associates, Ltd. (Pittco). Pittco no longer owns Summer Lakes and Ms. Atkinson no longer is its manager. Pittco sold Summer Lakes to SummerLake Oakland Park, Ltd., on or some time before July 1, 1998.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Florida Commission on Human Relations enter a final order finding that, although Ms. Atkinson and Pittco committed a "discriminatory housing practice" by refusing to rent an apartment to Petitioner because of Petitioner's mental disability and familial status, the Commission is without authority to grant the relief Petitioner has requested. DONE AND ENTERED this 1st day of October, 1998, in Tallahassee, Leon County, Florida. STUART M. LERNER 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 Filed with the Clerk of the Division of Administrative Hearings this 1st day of October, 1998.
The Issue The issue to be resolved concerns whether the Petitioner was the victim of a discriminatory housing practice, by allegedly being denied the opportunity to rent an apartment from the Respondents, and by being falsely informed of its non- availability, based upon her race.
Findings Of Fact The Petitioner is an African-American female. In early January 2007, she learned of an apartment for rent, owned or managed by the Respondents. She called to inquire about the apartment and was told by the Respondent, Ms. Lindsay, that the rent would be $625.00 per month, with a one-month rent amount and security deposit due in advance. She was told that the Lessee of a neighboring apartment, Clint Cook, would have a key and would show her the apartment. She went to view the apartment, and decided that she wished to rent it. She then telephoned Ms. Lindsay, and Ms. Lindsey faxed an application to her to complete. In the conversation, she told Ms. Lindsay she would not have the required deposit money until Friday. This was on a Monday or Tuesday. Ms. Lindsay then told her securing the apartment was on a “first come-first-served” basis. The Petitioner never completed the application and never tendered the security deposit. Shortly after that telephone conversation, Ms. Lindsay was contacted by Stacey Edwards, while the apartment was still available for rent, concerning rental. Ms. Edwards, on behalf of herself and her boyfriend/husband, submitted an application to rent the apartment, together with the appropriate required deposit and rental amount on January 15, 2007. Ms. Lindsay leased the apartment to the couple. They had a planned move-in date of February 1, 2007. They are a mixed-race couple, and Ms. Lindsay was aware of that fact when renting to them. Sometime after January 15, 2007, the Petitioner called Ms. Lindsay a second time, and was told that the apartment had been rented (to the Edwards couple) and was no longer available. Testimony to this effect is corroborated by the Edwards rental application and deposit receipt, which are in evidence. The Edwards rental was documented on January 15, 2007. Later that month, the Petitioner noticed the “for rent" sign displayed, or displayed again, and she and/or her witness, Lynn Kliesch, called about the apartment’s availability. Ms. Lindsay again stated that it was rented. Indeed, it was, to the Edwards. The rental sign had been left up because the Edwards couple were not scheduled to move in until February 1, 2007. This communication between the parties occurred before Ms. Edwards informed Ms. Lindsay that they would not be moving in. Shortly before February 1,2007. Ms Edwards and her husband/boyfriend learned that his employment had ended (or he was transferred to another job location). They therefore informed Ms. Lindsay that they had to re-locate to South Florida and could not take the apartment. She charged them for the two weeks of rental, and refunded their deposit. She then placed the apartment back on the rental market. On January 31, 2007, Ms. Mari Ferguson inquired of Ms. Lindsay about the apartment’s availability. This was after Ms. Edwards had informed Ms. Lindsay that she would not be renting the apartment. Ms. Lindsay told Ms. Ferguson that the property was available and she rented it to Ms. Ferguson that same day. Ms. Ferguson and her boyfriend, who occupied the apartment with her, were also a mixed-race couple, with children. In fact, the boyfriend is the nephew of the Petitioner herein. Ms. Ferguson and family moved into the apartment. Some months later a hostile situation arose between the Respondents and Ms. Ferguson. Ms. Lindsay apparently received reports that “drug dealing” was occurring in the apartment. Ms. Ferguson and/or the other occupants were responsible for some damage, and Ms. Ferguson became several months behind on rental payments. The Respondents therefore, through legal process, had her evicted. The Respondent, Ms. Lindsay, through her firm, Elite Properties of Northwest Florida, Inc., manages some 37 rental properties in Escambia and Santa Rosa Counties. She is the president and broker for the firm and has no employees or agents. Among the rental property owners she and her firm represent is her Co-Respondent, Michael Houser. Both Ms. Lindsay and Elite Properties, as well as Mr. Houser, have a significant number of minority tenants, both Hispanic and African-American. A substantial number of those, both historically, and at the time of the hearing are single, African-American females, as heads of households. There is no evidence, aside from the Petitioner’s unsubstantiated opinion, that either the Respondent has ever refused to rent to the Petitioner or anyone else, based upon race, nor that they have falsely denied availability of a dwelling for rent or sale for that reason. There is no evidence that they have refused or attempted to avoid holding out a property for rent or sale for reasons based on racial animus.
Recommendation Having considered the foregoing Findings of Fact, Conclusions of Law, the evidence of record, the candor and demeanor of the witnesses, and the pleadings and arguments of the parties, it is, therefore, RECOMMENDED that a final order be entered by the Florida Commission on Human Relations, determining that the Respondents did not commit a discriminatory housing practice based upon the Petitioner's race and that the Petition be dismissed in its entirety. DONE AND ENTERED this 16th day of April, 2009, in Tallahassee, Leon County, Florida. S P. MICHAEL RUFF 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 16th day of April, 2009. COPIES FURNISHED: Sylvia Mims 3382 Greenbriar Circle, Apt. B Gulf Breeze, Florida 32561 Beverly Lindsay 5252 Springdale Drive Milton, Florida 32570 Michael Houser 3533 Edinburgh Drive Pace, Florida 32571 Larry Kranert, General Counsel Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301 Denise Crawford, Agency Clerk Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301
The Issue The issue in this case is whether Respondent, Hardin Hammock Estates (hereinafter referred to as "Hardin"), discriminated against Petitioner, Ms. Celeste Washington (hereinafter referred to as Ms. Washington), on the basis of her race in violation of the Florida Fair Housing Act, Sections through 760.37, Florida Statutes.
Findings Of Fact The Parties. Celeste Washington is a black adult. Hardin is a housing rental complex with 200 single- family residences. Hardin is located in Miami-Dade County, Florida. Hardin provides "affordable housing" to lower-income individuals and, therefore, its residents are required to meet certain income requirements in order to be eligible for a residence at Hardin. At the times material to this proceeding, Hardin was managed by Reliance Management Incorporated (hereinafter referred to as "Reliance"). At the times material to this proceeding, Salah Youssif, an employee of Reliance, acted as the property manager at Hardin. Mr. Youssif is himself black, having been born in Sudan. Ms. Washington's Charge. On or about August 29, 2002, Ms. Washington filed a Complaint with the Commission. After investigation of the Complaint, the Commission issued a Determination of No Reasonable Cause, concluding that "reasonable cause does not exist to believe that a discriminatory housing practice has occurred" and dismissing the Complaint. On or about May 5, 2003, Ms. Washington filed a Petition with the Commission. Ms. Washington alleged in the Petition that Hardin had violated the Florida Fair Housing Act, Sections 760.20 through 760.36, Florida Statutes. In particular, Ms. Washington alleged that Hardin had "violated the Florida Fair Housing Act, as amended, in the manner described below": Washington was told that the waiting list at Hardin Hammock Estates was closed. She visited this development twice and was told the waiting [sic] was close [sic]. At that time she viewed the wating [sic] list and the majority of the names are [sic] Hispanic. Islanders do not consider themselves as Black Americans. The "ultimate facts alleged & entitlement to relief" asserted in the Petition are as follows: Hardin Hammocks has willful [sic] and [knowingly] practice [sic] discrimination in there [sic] selection practice and a strong possibility that the same incomes for Blacks & others [sic]. Black Americans rent is [sic] higher than others living in these [sic] developments. At hearing, Ms. Washington testified that Hardin had discriminated against her when an unidentified person refused to give her an application and that she believes the refusal was based upon her race. Management of Hardin; General Anti-Discrimination Policies. The residence selection policy established by Reliance specifically precludes discrimination based upon race. A human resource manual which describes the policy has been adopted by Reliance and all employees of Reliance working at Hardin have attended a workshop conducted by Reliances' human resource manager at which the anti-discrimination policy was addressed. An explanation of the Federal Fair Housing Law of the United States Department of Housing and Urban Development is prominently displayed in the public area of Hardin's offices in both English and Spanish. As of July 1, 2002, approximately 52 of Hardin's 200 units were rented to African-American families. Hardin's Application Policy. When Mr. Youssif became the property manager at Hardin, there were no vacancies and he found a disorganized, outdated waiting list of questionable accuracy. Mr. Youssif undertook the task of updating the list and organizing it. He determined that there were approximately 70 to 80 individuals or families waiting for vacancies at Hardin. Due to the rate of families moving out of Hardin, approximately one to two families a month, Mr. Youssif realized that if he maintained a waiting list of 50 individuals it would still take approximately two years for a residence to become available for all 50 individuals on the list. Mr. Youssif also realized that, over a two-year or longer period, the individuals on a waiting list of 50 or more individuals could change drastically: their incomes could change; they could find other affordable housing before a residence became available at Hardin; or they could move out of the area. Mr. Youssif decided that it would be best for Hardin and for individuals interested in finding affordable housing that Hardin would maintain a waiting list of only 50 individuals and that applications would not be given to any person, regardless of their race, while there were 50 individuals on the waiting list. Mr. Youssif instituted the new waiting list policy and applied it regardless of the race of an applicant. If there were less than 50 names on the waiting list, applications were accepted regardless of an individual's race; and if there were 50 or more names on the waiting list, no application was accepted regardless of an individual's race. Lack of Evidence of Discrimination. The only evidence Ms. Washington presented concerning her allegations of discriminatory treatment is that she is black. Although Ms. Washington was refused an application for housing at Hardin,3 the evidence failed to prove that Ms. Washington's race played any part in the decision not to give her an application.
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 Celeste Washington's Petition for Relief. DONE AND ENTERED this 20th day of November, 2003, in Tallahassee, Leon County, Florida. S LARRY J. SARTIN 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 20th day of November, 2003.
The Issue The issue is whether Respondent discriminated against Petitioner based on her sex or an alleged handicap contrary to Sections 760.20 through 760.37, Florida Statutes (2008), Fair Housing Act, as amended (the Act).
The Issue The issue in this case is whether the Respondent committed an unlawful housing practice by discriminating against the Petitioner on the basis of race, in violation of the Florida Fair Housing Act, sections 760.20 through 760.37, Florida Statutes.
Findings Of Fact Petitioner, Dr. Rubye Johnson, is an African-American woman and, thus, is a member of a class protected under the Florida Fair Housing Act, sections 760.20 through 760.37, Florida Statutes. Respondent, Canongate Condominium Apartments No. One, Inc., is the condominium association responsible for operation of the Canongate Condominium Apartments No. One ("Canongate"). Petitioner is a resident of Canongate and currently resides in Unit 201. She previously owned and lived in Canongate Unit 207, the unit at issue in this proceeding.3 She no longer owns Unit 207. Petitioner could not recall precisely when she became a resident of Canongate.4 She testified that when she became a resident of Canongate she was a renter, and she rented Unit 207. The evidence indicates that she likely moved into Unit 207 sometime before February 4, 2000. On February 4, 2000, the Association voted to amend Canongate's Declaration of Condominium, Article VII, Paragraph G, Section i. This amendment (the "2000 Amendment") prohibits the leasing or rental of units in Canongate. Existing leases and tenants as of the amendment's effective date were grandfathered for the balance of the lease term; however, no lease extensions or renewals were allowed. Institutional mortgagees' existing rights under the Declaration of Condominium were expressly preserved. At some point after Petitioner began renting Unit 207, the unit owner told her that due to the 2000 Amendment, she either would have to purchase the unit or move out in five years' time. The owner told her he thought the 2000 Amendment was approved because Respondent's Board of Directors ("Board") did not want any more black residents in the building.5 Petitioner purchased Unit 207 in or about 2004. When she purchased the unit, she was aware of the 2000 Amendment. She acknowledged that the 2000 Amendment prohibits the leasing or rental of units in Canongate without regard to race or gender. Petitioner testified that when she came home one day, Laura Ochacher, who had owned Unit 210, approached her about renting one of her units. Ms. Ochacher told Petitioner that Unit 210 was the subject of foreclosure and that her family was being evicted. Petitioner saw the eviction notice. Ms. Ochacher told Petitioner that Canongate property manager Marsha Allen had found a company to purchase Unit 210, and that the company had allowed them to remain in and rent Unit 210. Through examining a document printed out from the Miami-Dade County Property Appraiser's Office website, Petitioner learned that Lansdowne Real Estate Holdings, LLC ("Lansdowne") owned Unit 210. From this information, Petitioner surmised that Lansdowne had purchased Unit 210 and rented it to the Ochachers. She believed that Ms. Allen and the Board were complicit in what she viewed as a rental arrangement that violated the 2000 Amendment. Her belief was based on her knowledge of the screening and approval process entailed in purchasing a unit in Canongate. Petitioner did not independently investigate the matters that Ms. Ochacher relayed to her. She did not ask Ms. Allen whether she had found a company to purchase Unit 210; whether Unit 210 was, in fact, being rented; or whether she or the Board knew of and allowed rental of the unit. Petitioner understood Lansdowne to be a land company that bought and sold land on a large scale. She did not know whether Lansdowne is white, black, or of any other race. Petitioner also heard rumors from other Canongate residents that other units were being rented. She identified these units as 618, 520, 602, 105, 309, 106, 115, 120, 315, 515, 313, 410, 430, 503, 514, "and perhaps more." She did not identify who told her about these units, nor did she independently investigate whether the units were, in fact, being rented. Following her discussion with Ms. Ochacher, Petitioner decided to ask the Board whether she could rent Unit 207. She sent a communication to the Board, dated April 11, 2009, entitled "Issues and Concerns."6 Item 12 of this communication states: 12. It is rumored that there are renters in the building and that the board of directors are [sic] sanctioning these arrangements. Is this true? If so, under what circumstance would the board of director's [sic] sanctions [sic] renters in the building? If not, do you have a clue how this perception has been generated? Petitioner's testimony regarding whether she had actually requested permission from the Board to rent her unit was inconsistent. In her deposition, she testified that she viewed the statement in Item 12 as a request to rent Unit 207, but conceded that the request was "implied." At the final hearing, she acknowledged that her statement in Item 12 did not constitute a specific request, but stated that she previously had sent letters asking to rent the unit. She was unable to recall any specific letters she sent, when she sent them, or to whom the letters were sent. No such letters were proffered or admitted into evidence. Petitioner claimed that she had orally asked Ms. Allen and various Board members, on numerous occasions, whether she could rent her unit. However, she could not recall who, other than Ms. Allen, she ostensibly had asked, nor did she recall the substance or details of such conversations. Petitioner testified that, "by the way they acted," she knew she was not allowed to rent her unit. She stated that she also had been informed, orally and in writing, that she could not rent her unit. However, she could not recall who informed her, or any details of those discussions. She did not provide any evidence of written refusal to allow her to rent her unit. Petitioner testified that she had discussed with Marsha Allen her concern that white unit owners were allowed to rent their units, while she was not. She acknowledged that no one had ever told her she was not allowed to rent her unit because she is black. Canongate property manager Marsha Allen testified on behalf of Respondent. Ms. Allen's duties as property manager include overseeing the day-to-day operation of Canongate, reporting to the Board, and serving as Respondent's records custodian. Ms. Allen testified that rental of units in Canongate is prohibited under the 2000 Amendment. She testified that neither she nor the Board have allowed Canongate owners to rent their units, and that whenever owners have asked, they have been denied permission because of the rental prohibition. Ms. Allen testified that none of the units Petitioner identified was, in fact, being rented. Ms. Allen stated that Petitioner never had asked her whether she could rent her unit. She was not aware of Petitioner ever having asked the Board or any Board member whether she could rent her unit. Ms. Allen did not interpret Item 12 of Petitioner's April 11, 2009, communication as constituting a request for permission to rent her unit. Ms. Allen also stated that she never had discussed Canongate's rental policy with Petitioner, and she never had refused a request from Petitioner to rent her unit. She testified that she never had been directed by the Board or any Board member to refuse to allow Petitioner to rent her unit. Ms. Allen testified that Petitioner never had complained to her that she was being discriminated against by not being allowed to rent her unit, while white owners were allowed to rent theirs. Lansdowne sent a letter dated October 30, 2008, to Ms. Allen. The letter asked her to inform the Board that Lansdowne had acquired title to Unit 210 through foreclosure and that they were entering into an agreement with the borrower, Laura Ochacher, to continue her occupancy for 12 months, during which she could redeem the property by paying the foreclosure judgment. The letter stated: "[t]his should not be considered a rental arrangement." The letter explained that Lansdowne had paid the past due assessments for the unit and would pay outstanding legal fees once the Board approved the occupancy agreement. Upon receiving the letter, Ms. Allen reviewed the Canongate Declaration of Condominium, specifically, Article VII, Paragraph H., to ensure that the occupancy agreement for Unit 210 did not violate the 2000 Amendment's rental prohibition. Article VII, Paragraph H., provides that if the mortgagee of a condominium unit subject to an institutional mortgage given as security becomes the owner of the unit, the owner has the unqualified right to sell, lease, or otherwise dispose of the unit. Ms. Allen determined that, based on this provision, the occupancy agreement did not violate the 2000 Amendment. Ms. Allen consulted with Respondent's legal counsel, who independently verified that the occupancy agreement did not violate the 2000 Amendment. Respondent also presented the testimony of Joyce Meade, who has served as Respondent's president since 2008. Ms. Meade's duties as President include enforcing Respondent's condominium documents, overseeing the Board, conducting meetings, and supervising Canongate's property manager. Ms. Meade testified that Petitioner did not ask her for permission to rent her unit. She also testified that, to the best of her knowledge, Petitioner did not ask the Board for permission to rent her unit, and the Board did not specifically refuse. Ms. Meade testified that had Petitioner asked to rent her unit, she would not have been allowed because all rental requests are refused due to the 2000 Amendment. Ms. Meade testified that Petitioner never complained to her that she was being discriminated against because she was not allowed to rent her unit, while white owners were allowed to rent theirs. She also was not aware of any such complaints by Petitioner to the Board. Determinations of Ultimate Fact Petitioner failed to present persuasive evidence that she requested Respondent's permission to rent Unit 207. Petitioner subjectively may have believed that she requested permission in Item 12 of her April 11, 2009, communication, but that item cannot reasonably be read to constitute such a request. Item 12 merely asks if there are renters in Canongate and the circumstances under which the Board would allow renters. No other items in the April 11, 2009, communication constitute a request to rent the unit. Petitioner did not present any evidence that she submitted other written requests to rent her unit, and her testimony that she had orally requested to rent her unit was unpersuasive. Respondent's witnesses credibly testified that Petitioner had never requested, orally or in writing, to rent her unit. Petitioner also failed to establish that her request to rent her unit was refused. Her testimony on this point was unclear, imprecise, and unpersuasive, and she provided no evidence of written refusal to allow her to rent her unit. By contrast, Respondent's witnesses testified unequivocally that they had not refused to allow Petitioner to rent her unit. They also credibly testified that Petitioner never had complained to them that she was refused permission to rent her unit because she is black, while white owners were allowed to rent theirs. Petitioner did not establish that she was qualified and able to rent out her unit. The uncontroverted evidence established that the Canongate Declaration of Condominium prohibits leasing or rental of units. Accordingly, Petitioner could not have been allowed to rent her unit, even if had she asked. Petitioner did not present any competent substantial evidence establishing that Respondent allows similarly situated white unit owners to rent their units, while refusing to allow Petitioner to rent hers. Petitioner's testimony that Lansdowne was a purchaser and that the occupancy agreement for Unit 210 actually constituted a rental arrangement was merely her personal opinion, unsupported by any competent substantial evidence. Respondent showed that Lansdowne is an institutional mortgagee that took title through foreclosure and, therefore, was not similarly situated to Petitioner and the other owners who had purchased their units. Moreover, Petitioner presented no evidence that Lansdowne was white. In sum, there is no competent substantial evidence in the record to support a finding of unlawful housing discrimination.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Florida Commission on Human Relations enter a Final Order finding Canongate Condominium Apartments No. One, Inc., not liable for housing discrimination and awarding no relief. DONE AND ENTERED this 9th day of August, 2011, in Tallahassee, Leon County, Florida. S CATHY M. SELLERS 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 9th day of August, 2011.
The Issue Whether Respondent, Assad F. Malaty, discriminated against Petitioners, Dr. James E. Townsend and his niece, Contessa Idleburg (formerly, Ms. Rogers), in violation of the Florida Fair Housing Act and, if so, the appropriate remedy therefor.
Findings Of Fact Based on the weight of the credible evidence, Dr. Townsend has a qualifying handicap under the FFHA. He suffered a stroke in May 2014, upon which the requested modifications and accommodations were based. The stroke substantially limited one or more major life activities, given his need for using a wheelchair and walker. § 760.22(7)(a), Fla. Stat. Mr. Malaty conceded as much at the hearing.3/ Based on the weight of the credible evidence, Ms. Idleburg has a qualifying handicap under the FFHA. She has a shunt to drain fluid from her brain, has received Supplemental Social Security Income since at least 2014, and also has used a walker. That said, the evidence is undisputed that Petitioners requested the modifications and accommodations solely to assist Dr. Townsend after he suffered the stroke. Thus, Ms. Idleburg’s handicap is not relevant to the claims at issue. Based on the weight of the credible evidence, Petitioners informed Mr. Malaty in May 2014 that Dr. Townsend suffered a stroke and requested that he make several modifications to the Unit, including handrails in the bathroom, and handrails and a ramp at the front door, and to accommodate them by assigning them a parking spot outside the Unit. There is no dispute that the requested modifications and accommodation were never made. Importantly, however, the evidence does not establish that Petitioners’ renewed those requests again before they filed complaints with the Department of Justice in late 2016 and HUD in early 2017.4/ Although Dr. Townsend reminded Mr. Malaty in a December 2016 letter that he had failed to make the requested the modifications, the undersigned finds that letter to be more in the nature of a response to Mr. Malaty’s threat of eviction rather than a renewed request to accommodate them. The weight of the credible evidence also confirms that Petitioners never offered to pay for the handrails, ramp, or signage for the requested parking spot. Indeed, Dr. Townsend testified that he believed Mr. Malaty was responsible for making such modifications as the owner of the Unit. Based on the weight of the credible evidence, the undersigned finds that Mr. Malaty did not evict Petitioners because of their handicaps or their requests for modifications or an accommodation. Mr. Malaty initially threatened to evict them for failing to pay rent in January 2013, reducing their rent in September and December 2016, and failing to take care of the lawn as required in the lease. It had been three years since Petitioners requested the modifications and accommodation due to Dr. Townsend’s stroke and they did not re-raise those issues again until after Mr. Malaty threatened to evict them for failing to pay the rent. The evidence also is clear that Petitioners could have avoided eviction by paying the missed rent by December 29, 2016. But, they failed to do so and then did not pay their rent in January 2017, which ultimately led to Mr. Malaty filing the eviction action.
Conclusions For Petitioners: James E. Townsend, Sr., pro se Contessa Idleburg, pro se Apartment 2101 140 Aida Street Lakeland, Florida 33805 For Respondent: Charlann Jackson Sanders, Esquire Law Office of Charlann Jackson Sanders 2225 East Edgewood Drive, Suite 8 Lakeland, Florida 33803
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 Petitioners’ Petition for Relief. DONE AND ENTERED this 19th day of December, 2019, in Tallahassee, Leon County, Florida. S ANDREW D. MANKO 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 19th day of December, 2019.
The Issue Whether Petitioner was the subject of unlawful coercion, intimidation, threats, or interference in the exercise of her rights in connection with Respondent?s regulatory actions regarding rental property owned by Petitioner, in violation of section 818 of Title VIII of the Civil Rights Act of 1968, as amended by the Fair Housing Act of 1988 and the Florida Fair Housing Act, chapter 760, Part II, Florida Statutes (2011).
Findings Of Fact Petitioner, an African-American woman, owns and manages a residential tri-plex rental unit located at 302 Dubs Drive, Holly Hill, Florida. Dubs Drive is zoned R-2 single-family residential. Petitioner?s tri-plex was constructed in 1955, and is grandfathered as a non-conforming use. The other houses on Dubs Drive are newer, and are all single-family homes. Petitioner purchased the tri-plex in 1998. At the time of her purchase, the tri-plex consisted of a single-story building with 3 apartments and two garages, and was configured, from south to north, as a two-bedroom apartment, a two-bedroom apartment, a one-bedroom apartment, a garage with a washer/dryer connection, and a garage with a toilet. The garages had drywall interiors, except that the ceilings lacked drywall. After she purchased the tri-plex, Petitioner hired Arthur Kowitz, a realtor, to manage the property for her. He performed management services from the time of the purchase until 2001. Mr. Kowitz is white. In 2001, Petitioner retained All-Florida Realtors to manage the property. All-Florida performed management services from 2001 to 2004. All-Florida is a white-owned company. In 2004, Petitioner retained John Benzette to manage the property. Mr. Benzette performed management services from 2004 through November 2007. Mr. Benzette is white. In 2004, Petitioner applied to Respondent for a permit to install an electric meter at the tri-plex. The purpose of the meter was not to serve the apartments -- each of which already had meters by which the tenants individually received and paid for service -- but was a “house meter” or “landlord?s meter” for exterior lighting, garage lighting and outlets, and other uses common to the tri-plex. The permit was issued, and the meter was installed. During one of the 2005 hurricanes that hit the area, the meter was knocked off of the unit by falling debris. It was not reinstalled at that time. The property managers from 1998 through 2007 were responsible for general maintenance and repair activities. Those types of activities did not require building permits. From the time she purchased the tri-plex in 1998, until 2008, the unit was not subject to any formal code-enforcement actions by Respondent. Starting in December, 2007, Petitioner began managing the tri-plex on her own. One of the first activities she performed as owner/manager was the conversion of the garage on the northern end of the building -- separated from the apartments by the other garage -- to a living space. That was accomplished by removing the garage door, constructing a block wall with a window and exterior door, completing interior drywall work, and installing a shower. Petitioner did not apply for or receive a building permit for the work. As part of the construction, Petitioner had the electric meter that was knocked off in 2005 renovated and reinstalled onto the unit. When Petitioner requested service from Florida Power & Light, Florida Power & Light contacted Respondent to confirm a legal connection. Respondent sent employees Mark Ballard and Tim Harbuck to the tri-plex. At that time, it was determined that Petitioner had performed construction without a building permit. Respondent?s employees initially thought the new living space was to be rented as a fourth apartment, an act that would have constituted an unallowable expansion of the non- conforming use of the property. Their belief was not unreasonable, as the configuration of the converted garage was conducive to its being used as a separate apartment, and since Petitioner subsequently placed a “For Rent” sign on the unit, despite the fact that she was living in apartment #3 at the time. However, Petitioner has denied that the rental of the converted garage as a separate unit was her intent, but that the converted garage was intended as an added room for apartment #3. Regardless of whether the conversion of the garage was intended to result in a separate apartment, the construction required a building permit. As a result of the determination that the construction was not permitted, the meter was removed on February 8, 2008. The requirement that the meter be removed, despite the 2004 permit, was not related to Petitioner?s race, but was related to the unauthorized construction and intended use of the converted garage. On April 25, 2008, Respondent sent Petitioner a Notice to Appear at a hearing before a special magistrate. The notice provided that the purpose of the hearing was the “violation of City Ordinance Building Permit Required.” The hearing was set for May 14, 2008. Petitioner asserted that she called the telephone number printed on the notice to ascertain the purpose of the May 14, 2008, hearing. She alleged that she was told by an unnamed city employee that the hearing was to be held regarding issues pertaining to her rental license. The evidence of the call was entirely hearsay, and was not corroborated by any non- hearsay evidence. Regardless of the substance of the telephone call, the notice plainly stated that the purpose of the hearing was related to a required building permit. The hearing was held as scheduled on May 14, 2008. At the hearing, Petitioner was advised that the subject of the hearing was the unpermitted construction at the Dubs Drive location. Petitioner, claiming to have had no knowledge of the subject of the hearing, requested a continuance to retain an attorney to represent her. The request was denied. At the hearing, it was determined that, at a minimum, Petitioner removed the garage door, blocked up the front of the garage and installed a door and window in its place to convert it to living space, and installed a shower. On May 22, 2008, the special magistrate entered an Order of Non-Compliance in which he concluded that Petitioner violated the Holly Hill Zoning Ordinance requiring a building permit for the work done on the property, required Petitioner to obtain a building permit, and imposed an administrative fine of $250.00. If the corrective measures were not taken, or the fine was not paid, the Order authorized an additional penalty of $150.00 per day, and authorized Respondent to place a lien on the Dubs Drive location. Petitioner was warned that she was not to use the renovated garage as a separate dwelling unit, but could only use it as an addition to apartment #3. The action by Respondent to enforce its building code was entirely appropriate, and was undertaken with all due process rights having been afforded to Petitioner. There was no evidence presented to support a finding that Petitioner?s race had anything to do with Respondent?s reaction to Petitioner?s unpermitted construction, or that Respondent failed to enforce its building code, including permit requirements, against similarly-situated property owners who were not members of Petitioner?s protected class. Petitioner paid the administrative fine on June 2, 2008, and received the after-the-fact building permit on June 10, 2008. On September 5, 2008, Respondent placed a lien on the Dubs Drive location based on its mistaken belief that Petitioner had failed to pay the $250.00 administrative fine. The notice of lien letter was received by Petitioner on November 18, 2008. Petitioner advised Respondent that she had paid the fine. Ms. Sue Meeks confirmed that the fine was paid, and Respondent promptly recorded a satisfaction of lien. The evidence indicates that the decision to record the lien was a bureaucratic error that was immediately corrected. There was no evidence presented to support a finding that Petitioner?s race was Respondent?s motive for recording the lien. A business tax receipt is required for each of the three apartments at the Dubs Drive location in order for Petitioner to engage in the business of real estate rental. Authorization for the business tax receipt was adopted by ordinance by Respondent in July, 2000, and is applicable to all rental units in the city of the type owned by Petitioner. Prior to July 2000, Respondent did not require an owner of a small rental location to obtain a business tax receipt. The business tax receipt ordinance required Respondent to perform annual inspections of businesses within its municipal boundaries. The inspections were started in 2000 or 2001. Business tax receipts are issued for a term from October 1 to September 30 of each year. If a business tax receipt is not renewed on time, Respondent is authorized to assess a 25 percent penalty, plus additional filing fees. For 2008-2009, Petitioner timely paid the business tax receipts for apartment Nos. 1 and 2. The tax was $45.00 for each apartment. Petitioner failed to pay the business tax receipt for apartment #3 until March 2009, after the renewal date had passed. Therefore, a penalty and additional filing fees were assessed which raised the business tax receipt fee for that apartment to $70.00. Petitioner alleged that Respondent “overcharged” her for the apartment #3 business tax receipt, which she construed as evidence of a pattern of discrimination. The evidence demonstrates that the $70.00 charge was the result of Petitioner?s failure to timely renew, and was not the result of discrimination based on her race. There was no evidence presented to support a finding that Petitioner?s race had anything to do with Respondent?s assessment of late penalties and fees, or that Respondent failed to assess such late penalties and fees against similarly-situated rental apartment owners who were not members of Petitioner?s protected class. On or about February 6, 2009, Respondent issued a violation notice alleging that Petitioner failed to renew her business tax receipt for apartment #1 and #2. The notice was posted on the doors of the apartments on February 10, 2009. The notice allowed three days to correct the violation, a period that had already passed when the notice was received. Petitioner had already paid the business tax receipt, and went to city hall to inquire about the violation notice. She was advised that her check, identified by Petitioner as check #486, had not been received. Petitioner went to Bank of America to stop payment on check #486, for which a banking fee of $30.00 was assessed. Upon her return to city hall, Petitioner was advised that a search had resulted in the discovery of check #486 on a city employee?s desk. It had not been cashed. Petitioner wrote a replacement check. Respondent credited Petitioner?s utility bill for $30.00 to reimburse her for the Bank of America stop-payment charge and the matter was resolved without further ado. Petitioner alleged that the incident was “harassment,” which she construed as further evidence of discrimination. To the contrary, the evidence demonstrates that the violation notice was a minor bureaucratic error that was promptly corrected, and for which Petitioner was made financially whole. There is no evidence in the record that the incident was the result of discrimination based on Petitioner?s race. On February 19, 2009, Petitioner wrote Respondent to express her belief that she was being overcharged for water. She had a single meter to serve the Dubs Drive tri-plex, but was being charged for three connections. In fact, Petitioner had three apartments. In such cases, Respondent bills for each unit served by a single “master meter.” The minimum bill per apartment includes 2000 gallons of water per month, with additional usage added as an additional charge. Respondent billed for three connections at the Dubs Drive location since at least 1997, prior to Petitioner?s purchase of the tri-plex. Petitioner inquired whether she could have separate meters installed for each apartment, rather than having minimum and total bills determined by the “master meter.” Respondent would not allow separate meters since the Dubs Drive tri-plex was a non-conforming use in a single-family zoned area, and the installation of separate meters would “enhance the non- conformity.” Respondent?s approach to billing for water in multi- family locations accounts for the demand created by three families versus one family. The evidence demonstrates that Respondent bills all multi-unit complexes in a manner to account for the demand of multiple family consumption on its water facilities. There is no evidence in the record that Respondent?s billing practice for water consumption was applied to Petitioner differently from any other multi-family facilities, or was the result of discrimination based on Petitioner?s race. On or about March 3, 2009, as a result of an annual inspection conducted as part of the business tax receipt process, Respondent cited Petitioner for several deficiencies at the Dubs Drive tri-plex, including a lack of smoke alarms, some windows that would not open, and a lack of GFI (ground-fault interrupter) electrical outlets at one location in apartment #1, and two locations in apartment #2. GFI outlets are commonly known to prevent shocks, and are required at locations where the outlets may be exposed to water, e.g. kitchens and bathrooms. Petitioner installed the GFI outlets. There was no other sanction or penalty. There is no evidence in the record that the requirement that Petitioner install a reasonable and necessary safety feature in apartments being rented to others was the result of discrimination based on Petitioner?s race. On or about March 24, 2009, during the follow-up compliance inspection of the tri-plex, one of Petitioner?s tenants advised the inspector that Petitioner had been living in the converted garage for two months, and was receiving mail in “mailbox #4” during that period. The use of the converted garage as a separate living unit would be a violation of Respondent?s zoning ordinance regarding limitations on the expansion of a non-conforming use, and would have violated the special magistrate?s Order entered at the May 14, 2008, hearing. As a result, Respondent issued violation notices to Petitioner on March 24, 2009, and March 27, 2009, each of which concerned the use of the converted garage as a separate living unit. The March 27, 2009, notice indicated that Petitioner and Respondent were “working to resolve” the issue. On March 31, 2009, Respondent provided Petitioner with a letter resolving the separate living unit issue that stated: This letter is to inform you of the requirements of Compliance in reference to 302 Dubs Ave. Your triplex must not be occupied by more than 3 separate families. The new addition on the north end of the building can be used in conjunction with #3, [b]ut can not be used as a separate unit. Mailbox #4 must be taken down within 45 Days of this date. (March 31, 2009) The letter contained nothing more than a straight-forward recitation of the terms and conditions applicable to the non- conforming residential structure. Respondent imposed no penalties or sanctions. There is no evidence to suggest that Respondent imposed terms or conditions on the use of the tri- plex different from any other similarly-situated non-conforming structure. There is no evidence in the record that Respondent?s response to the tenant?s statement that Petitioner was using the converted garage as a fourth apartment was either disproportionate under the circumstances, or was the result of discrimination based on Petitioner?s race. On April 30, 2009, the tenants of apartment #2 wrote to Petitioner with a long list of complaints regarding the conditions at the apartment that, on their face, were very serious, and which included structural, electrical, plumbing, and safety issues. The couple that lived in the apartment was white. The fact that the tenants were white does not minimize the fact that their concerns were legitimate. Having received no response to their complaints, the tenants called Respondent about the living conditions. In accordance with Respondent?s routine practice regarding complaints, Ms. Meeks was dispatched to inspect the property. Her inspection of apartment #2 confirmed the tenant complaints. Ms. Meeks also inspected apartment #1 at the request of the tenants of that apartment, and noted problems with “the bottom of the walls pealing [sic.] off and has some kind of bugs that are biting the children that live there.” The tenants also provided Ms. Meeks with a list of dates on which they alleged Petitioner had been staying in the converted garage which, if true, would have indicated that Petitioner used the addition as a separate living unit for more than 50 days over a three-month period. Respondent sent Petitioner a letter detailing the problems observed during the inspection, and advising Petitioner that her issues would be taken up at a hearing before the Special Master on July 8, 2009. The letter was received by Petitioner on June 15, 2009. The time between the letter and the scheduled hearing was ample time for Petitioner to correct the problems. On June 24, 2009, Respondent served Petitioner with a Notice to Appear at the July 8, 2009, hearing. On June 25, 2009, and June 29, 2009, Respondent obtained written statements from the tenants of apartment #2 detailing the problems that they had encountered with their leased apartment. Their statements were consistent with their earlier descriptions and the results of the inspection. On July 7, 2009, Petitioner requested a continuance of the July 8, 2009, hearing due to the death of her father. The request was granted by notice dated July 15, 2009, and the hearing was continued to August 12, 2009. Respondent was directed to “bring proof of her father?s passing” to the August hearing. On July 27, 2009, Respondent reissued a Notice to Appear for the August 12, 2009, hearing. On August 12, 2009, a hearing was convened before the special magistrate. Petitioner was represented by counsel. At the hearing it was determined that the back door of apartment #2 had been replaced to the tenant?s satisfaction, though Petitioner failed to obtain a building permit for the same, and that the electrical issue with the GFI outlet and the water heater breaker had been resolved. It was ultimately determined to be in the best interest of all of the parties to have the tri-plex inspected by Respondent, and to reconvene the hearing in September, 2009. Petitioner asserted that the August 12, 2009, hearing was continued because a white tenant had not appeared at the hearing to testify against her. The record does not support that reason. An Order Continuing Case was entered on August 26, 2009. The Order noted that Petitioner had not produced evidence of her father?s death as instructed. On August 27, 2009, Respondent reissued a Notice to Appear for September 9, 2009. On August 18, 2009, Respondent conducted an inspection of the tri-plex. It was determined that some of the deficiencies identified in the June notice had been made, but others had not. The hearing was reconvened on September 9, 2009. Petitioner was represented by counsel. After considerable discussion, it was determined that Petitioner had substantially resolved the issues identified in the June notice, some more recently than others. The special magistrate assessed a $250.00 administrative fine for the initial items of non-compliance resulting in the need to have the hearings, and $300.00 for failure to make repairs within a reasonable period after the initial notice in June. Petitioner also produced a copy of her father?s obituary as proof of his death in July. An Order of Non-Compliance reciting the outcome of the hearing was entered on September 25, 2009. The Order was not appealed. Petitioner stated her belief that the requirement that she provide evidence of her father?s death to substantiate the basis for the July 7, 2009, request for continuance was imposed as a result of harassment and discrimination against her due to her race. Although the requirement that she produce an obituary or the like seems insensitive and unnecessary, there was no evidence that Petitioner?s race was the basis for the request, or that such a requirement was not imposed on all persons seeking a continuance of a code enforcement hearing, regardless of race. On November 4, 2009, the special magistrate, after having received evidence of the completion of the repairs from Respondent, entered an Order of Compliance by which he found all of the deficiencies at the Dubs Drive location had been satisfactorily resolved. Petitioner has alleged that the code enforcement actions taken by Respondent were part of a pattern of harassment and intimidation directed at her because of her race. She argued that her white property managers were not cited for violations, thus establishing evidence of racial bias. While it is true that some of the violations for which Petitioner was cited concerned issues that pre-dated Petitioner?s assumption of management duties in December 2007, e.g., the use of interior- grade doors being used as exterior doors and the lack of GFI outlets, there was no evidence that Respondent ever noticed those deficiencies, or that any tenant had ever complained. The evidence demonstrates that the triggering event that drew the attention of Respondent?s code enforcement section was not Petitioner?s race, but was Petitioner?s unpermitted conversion of the garage into living space. The other triggering event was the complaint filed with Respondent by Petitioner?s tenants that alleged crumbling infrastructure, including the very poor condition of the exterior doors. Both incidents properly resulted in thorough inspections. There was no event at the Dubs Drive location prior to December 2007, that would have resulted in increased scrutiny. Thus, the evidence demonstrates that Respondent?s actions were reasonable and appropriate responses to conditions at the Dubs Drive location that were brought to its attention by the actions of Petitioner and her tenants, conditions for which Respondent would have been remiss had it failed to act. The evidence in this proceeding does not support a finding that Respondent?s actions were taken due to Petitioner?s race. The evidence produced at the hearing contained not a shred of competent, substantial evidence that would support a finding that Respondent took any action regarding the Dubs Drive tri-plex because of Petitioner?s race. Rather, the evidence supports a finding that Respondent was appropriately exercising its police powers to ensure that rental dwelling units within its jurisdiction are safe and sanitary. If anything, Respondent and the special magistrate treated Petitioner with considerable patience, restraint, and leniency given the nature of the non- compliance resulting from the unpermitted renovations, and from the delays in making necessary repairs to the property. Petitioner?s dated signature on the Housing Discrimination Complaint that forms the basis for this proceeding indicates that Petitioner filed her initial complaint of discrimination no earlier than August 31, 2010. However, the HUD Determination gives two dates on which Petitioner supposedly filed her complaint -- August 13, 2010, and September 2, 2009. Given the findings and conclusions herein that Respondent had no racial animus or bias in its actions regarding Petitioner -- going back to the December 2007 date on which Petitioner assumed her property management duties -- it is not necessary to determine which of the dates is accurate. However, to the extent it were to become an issue with regard to the application of the jurisdictional limits established by section 760.34(2), the most persuasive evidence demonstrates that Petitioner filed her Housing Discrimination Complaint on or after August 31, 2010. Ultimate Findings of Fact There was no competent, substantial evidence adduced at the hearing that Respondent took any regulatory, utility billing, or code enforcement action regarding Petitioner, or the Dubs Drive location, in an effort to coerce, intimidate, threaten, or interfere with Petitioner in the exercise of her rights as an owner of rental housing due to Petitioner?s race. Respondent?s actions were, in each instance, a legitimate response to unpermitted building activities, a correct application of Respondent?s ordinances, or a reasonable response to complaints filed by Petitioner?s tenants. At worst, Respondent committed two minor bureaucratic errors that were quickly resolved, and for which Petitioner suffered no loss. There was no evidence that Respondent applied its code enforcement ordinances or policies in its dealings with Petitioner in a manner that was inconsistent with their application to similarly-situated persons who were not members of Petitioner?s protected class. Having found no evidence to demonstrate that Respondent discriminated against Petitioner on the basis of her race, the Petition for Relief should be dismissed.
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. 2011H0053. DONE AND ENTERED this 22nd day of May, 2012, 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 22nd day of May, 2012.
