The Issue The issues in this case are, one, whether Respondent unlawfully discriminated against Petitioner on the basis of his national origin, religion, or handicap in violation of the Florida Fair Housing Act; and, two, whether Respondent subjected Petitioner to acts of intimidation, coercion, or retaliation as a result of Petitioner's exercise, or attempted exercise, of a protected housing right.
Findings Of Fact Petitioner William Kleinschmidt ("Kleinschmidt") owns a unit in the Three Horizons North Condominium. He purchased his condominium in 1999 and has resided there continuously since that time. Respondent Three Horizons North Condominiums, Inc. ("Three Horizons"), manages the property of which Kleinschmidt's condominium is a part. Kleinschmidt and Three Horizons have been involved in a long-standing feud stemming from Kleinschmidt's possession of cats in violation of the condominium's "no pets" policy. Three Horizons has tried since 1999 to compel Kleinschmidt's compliance with the "no pets" policy. The dispute over Kleinschmidt's cats came to a head last year, when a formal administrative hearing was held on Kleinschmidt's first housing discrimination complaint against Respondent. See Kleinschmidt v. Three Horizons Condominium, Inc., 2005 Fla. Div. Adm. Hear. LEXIS 883, DOAH Case No. 04-3873 (May 25, 2005), adopted in toto, FCHR Order No. 05-097 (Fla.Com'n Hum.Rel. Aug. 23, 2005)(Kleinschmidt I). Among other allegations, Petitioner charged in Kleinschmidt I that Three Horizons had unlawfully refused to waive the "no pets" policy to permit his possession of "service animals" (i.e. cats) as an accommodation of his emotional handicap. Kleinschmidt lost that case. Kleinschmidt presently alleges that Three Horizons has discriminated against him on the basis of handicap, national origin, and religion. The undersigned has had some difficulty making sense of Kleinschmidt's allegations. As far as the undersigned can tell, Kleinschmidt alleges that: (1) members of the condominium association's board of directors (and especially the board's treasurer, Ruth Pearson, whose German ancestry Kleinschmidt assumes makes her a Nazi sympathizer hostile to Jewish persons such as himself) have made disparaging comments about him; (2) when he applied to purchase his condominium back in 1999, Three Horizons charged him a $100 screening fee, which should have been only $75; (3) Three Horizon's agents illegally broke into his unit on September 21, 2000, and again on September 21, 2001, stealing personal property each time; (4) before he purchased his unit, Three Horizons agreed to waive the "no pets" policy, which agreement Respondent now refuses to honor; and (5) Three Horizons has engaged in ongoing (but unspecified) acts of intimidation, coercion, and retaliation. There is not a shred of competent, persuasive evidence in the record, direct or circumstantial, upon which a finding of any sort of unlawful housing discrimination could possibly be made. Ultimately, therefore, it is determined that Three Horizons did not commit any prohibited act.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the FCHR enter a final order finding Three Horizons not liable for housing discrimination and awarding Kleinschmidt no relief. DONE AND ENTERED this 21st day of November, 2006, in Tallahassee, Leon County, Florida. JOHN G. VAN LANINGHAM 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 21st day of November, 2006.
The Issue The issue in this case is whether Respondent unlawfully discriminated against Petitioner on the basis of her national origin or ethnicity in violation of the Florida Fair Housing Act.
Findings Of Fact Petitioner Fabiola Heiblum ("Heiblum") is a Hispanic woman who, at all times relevant to this action, has owned Unit No. 5C in the Carlton Bay Condominium, which is located in North Miami Beach, Florida. She purchased her unit in 2004 and has resided there continuously since some time in 2005. Respondent Carlton Bay Condominium Association, Inc. ("Association") is the entity responsible for operating and managing the condominium property in which Heiblum's unit is located. In March 2008, the Association's Board of Directors ("Board") approved a special assessment, to be levied against all unit owners, the proceeds of which would be used to pay insurance premiums. Each owner was required to pay his share of the special assessment in full on April 1, 2008, or, alternatively, in three equal monthly installments, due on the first of April, May, and June 2008, respectively. Heiblum's share of this special assessment was $912.81. At or around the same time, the Board also enacted a procedure for collecting assessments, including the special insurance assessment. According to this procedure, owners would have a grace period of 15 days within which to make a required payment. After that period, a delinquent owner would be notified, in writing, that the failure to pay his balance due within 15 days after the date of the notice would result in referral of the matter to an attorney for collection. The attorney, in that event, would file a Claim of Lien and send a demand letter threatening to initiate a foreclosure proceeding if the outstanding balance (together with costs and attorney's fees) was not paid within 30 days after receipt of the demand. This collection procedure applied to all unit owners. Heiblum did not make any payment toward the special assessment on April 1, 2008. She made no payment on May 1, 2008, either. (Heiblum concedes her obligation to pay the special assessment and does not contend that the Association failed to give proper notice regarding her default.) The Association accordingly asked its attorney to file a Claim of Lien against Unit No. 5C and take the legal steps necessary to collect the unpaid debt. By letter dated May 8, 2008, the Association's attorney notified Heiblum that a Claim of Lien against her property had been recorded in the public records; further, demand was made that she pay $1402.81 (the original debt of $912.81 plus costs and attorney's fees) to avoid foreclosure. On or around May 10, 2008, Heiblum gave the Association a check in the amount of $500, which the Association returned, under cover of a letter dated May 16, 2008, because its attorney was now in charge of collecting the overdue debt. Heiblum eventually paid the special assessment in full, together with costs and attorney's fees, thereby obviating the need for a foreclosure suit. Heiblum believes that the Association prosecuted its claims for unpaid special assessments more aggressively against Hispanics such as herself than persons of other national origins or ethnicities, for which owners the Association allegedly showed greater forbearance. Specifically, she believes that the Association did not retain its attorney to undertake collection efforts against non-Hispanic unit owners, sparing them the costs and fees that she was compelled to pay. There is, however, no competent, persuasive evidence in the record, direct or circumstantial, upon which a finding of any sort of unlawful housing discrimination could be made. Ultimately, therefore, it is determined that the Association did not commit any prohibited discriminatory act vis-à-vis Heiblum.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Florida Commission on Human Relations enter a final order finding the Association not liable for housing discrimination and awarding Heiblum no relief. DONE AND ENTERED this 27th day of February, 2009, in Tallahassee, Leon County, Florida. JOHN G. VAN LANINGHAM 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 27th day of February, 2009.
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.
The Issue Whether the Florida Commission on Human Relations and the Division of Administrative Hearings have jurisdiction pursuant to Section 760.34, Florida Statutes, to consider Petitioner's Petition for Relief; and Whether Petitioner timely filed his Petition for Relief with the Florida Commission on Human Relations.
Findings Of Fact Based on the oral and documentary evidence presented at the final hearing, the following Findings of Facts are made: Petitioner contracted to purchase a condominium, "unit 206 in Building 425 at Serravella at Spring Valley" from Respondent. For reasons not relevant to the issues presented for determination, closing was deferred; and on December 22, 2006, Petitioner signed and submitted an "Addendum to Contract" to Respondent that sought "to revise contract closing date to 2/28/2007." Sometime in late December 2006, a telephone conversation took place among Steve Myers, a realtor for Serra Villa, Petitioner, and Barefield. Barefield was in Alabama, and Myers and Petitioner were in Florida on a speakerphone. Barefield advised Petitioner that the addendum would not be accepted by Respondent. Barefield and Petitioner did not speak to each other after this December telephone conversation. All communication was accomplished through third parties. Subsequent to Respondent's refusal to accept Petitioner's addendum, there is lengthy correspondence and litigation involving the parties. For some time after Respondent rejected Petitioner's addendum, Petitioner desired to purchase the condominium and, apparently, indicated so in various offers communicated by his attorneys to Respondent. If an unlawful discriminatory act occurred, the determination of which is not an issue presented for determination, the act occurred in December 2006. Petitioner's Housing Discrimination Complaint dated September 17, 2008, and signed by Petitioner on September 22, 2008, was filed with United States Department of Housing and Urban Development more than one year after the alleged act of discrimination. On November 6, 2008, Petitioner sent a four-page fax transmission to Lisa Sutherland, a FCHR employee, which included a Petition for Relief. On November 13, 2008, Petitioner sent a second fax transmission of seven pages to Lisa Sutherland. Apparently, this second transmission included a Petition for Relief. On December 4, 2008, Petitioner sent a third fax transmission addressed to "Mrs. Crawford/Lisa Sutherland." While the fax transmission cover sheet is dated "11-13-08," the report of transmission shows that this 11-page transmission was sent on "12/04 15:24." The Petition for Relief forwarded by FCHR to DOAH was date-stamped "2008 DEC-4 PM 3:25."
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that FCHR dismiss the Petition for Relief as being time-barred as a result of the late filing of Petitioner, Ricardo Vega's, Housing Discrimination Complaint. DONE AND ENTERED this 27th day of April, 2009, in Tallahassee, Leon County, Florida. S JEFF B. CLARK Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 27th day of April, 2009. COPIES FURNISHED: Denise Crawford, Agency Clerk Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301 Larry Kranert, General Counsel Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301 Richard S. Taylor, Jr., Esquire 531 Dog Track Road Longwood, Florida 32750-6547 Barbara Billiot-Stage, Esquire Law Offices of Barbara Billiot-Stage, PA 5401 South Kirkman Road, Suite 310 Orlando, Florida 32819
