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
The Issue The issue is this case is whether the Respondent, Beacon Hill, Ltd., discriminated against Yvonne Malone (Petitioner) based on her religion in violation of the Florida Fair Housing Act (the Act).
Findings Of Fact The Petitioner is a resident at an apartment complex owned and operated by the Respondent. At the hearing, the Petitioner recited a litany of complaints related to her apartment unit and to the services she has received from the Respondent's staff. Although the Petitioner has previously asserted that the Respondent has discriminated against her based on her religion, the Petitioner testified at the hearing that she had been "harassed" and "abused" by the Respondent's employees and that she did not know the basis for her treatment. The evidence failed to establish that the Respondent, or any person employed by the Respondent, has discriminated against the Petitioner based on her religion. The evidence failed to establish that the Respondent, or any person employed by the Respondent, has treated the Petitioner any differently than any other resident of the apartment complex has been treated. The evidence failed to establish that the Respondent, or any person employed by the Respondent, has "harassed" or "abused" the Petitioner in any manner.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Florida Commission on Human Relations enter a final order dismissing the Petition for Relief filed by Yvonne Malone. DONE AND ENTERED this 7th day of January, 2014, in Tallahassee, Leon County, Florida. S WILLIAM F. QUATTLEBAUM Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 7th day of January, 2014.
The Issue The issue in this case is whether Respondents committed a housing discriminatory practice in violation of Chapter 760, Florida Statutes (2008).
Findings Of Fact On or about January 20, 2009, the Petitioner filed a Housing Discrimination Complaint with the Florida Commission on Human Relations (Commission). Pursuant to the Commission's procedure, an investigation of the matter was completed that resulted in a Notice of Determination of No Cause. Essentially, the Commission found that based upon the allegations raised by the Petitioner there was no cause from which it could be found the Respondents had violated the Florida Fair Housing Act. Thereafter, the Petitioner elected to file a Petition for Relief to challenge the determination and to seek relief against the Respondents for the alleged violation. The Commission then forwarded the matter to the Division of Administrative Hearings for formal proceedings. The Division of Administrative Hearings issued a Notice of Hearing that was provided to all parties at their addresses of record. The postal service did not return the notices as undelivered. It is presumed the parties received notice of the hearing date, time, and location. No party appeared at the hearing.
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 dismissing the Petitioner's claim of discrimination. DONE AND ENTERED this 6th day of August, 2009, in Tallahassee, Leon County, Florida. J. D. PARRISH 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 6th day of August, 2009. COPIES FURNISHED: Leaford Green Danett Green 3758 Southwest Findlay Street Port St. Lucie, Florida 34953 Paula Adams Post Office Box 1665 Fort Pierce, Florida 34950 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
The Issue The issue for determination in this matter is whether Respondents engaged in acts of housing discrimination against Petitioners on the basis of race in violation of the Florida Fair Housing Act.
Findings Of Fact Petitioners, Donald Travis and Lisa Harrell, are a bi-racial couple (Mr. Travis is African-American and, therefore, belongs to a class of persons subject to protection under Florida's Fair Housing Act, Sections 760.20 through 760.37, Florida Statutes, and Ms. Harrell is white). They have two sons who are bi-racial (one is African-American and white, the other is white and Asian). Petitioners lived in Apartment 163 at 10075 West Highway 98, Pensacola, Florida 32506. Respondents, John and Anne Cutler, are the owners of two four-plex apartments at 10075 West Highway 98, Pensacola, Florida 32506, including the unit occupied by Petitioners that gave rise to this matter. They are both retired educators who own and operate their apartment rental business in their retirement. In their teaching and professional careers, both have instructed students of various races and national origins. Petitioner, Donald Travis, is a veteran of Desert Storm and has been treated for Post Traumatic Stress Disorder. He regularly takes medications to treat anxiety and depression. On April 4, 2008, Petitioners moved into Apartment 163, which had been recently painted, carpeted, and had a new ceiling fan and light installed in the living room. Everything went smoothly between Petitioners and Respondents for several months. Mr. Cutler had to unplug the downstairs toilet with a plunger a few times, but everything else seemed to be in working order. Both Mr. and Ms. Cutler considered Petitioners to be good tenants. As summer approached, Mr. Travis asked Mr. Cutler about installing a screen door for the sliding glass doors. This could not be done without replacing the entire sliding glass doors. When Apartment 131 became vacant, its screen door was moved to Petitioners' apartment. The screen door had a slit in it, which Ms. Cutler repaired with tape. When Apartment 132 became vacant, the good screen door from that apartment was used to replace the taped one in Petitioners' apartment. Respondents tried to keep everything in working order in Petitioners' apartment. When Petitioners' refrigerator door would not close, Respondents replaced the refrigerator. Respondents thought Petitioners were happy with their apartment. Petitioners called Respondents about a plumbing leak and said feces was running down the wall. The leak and pipe were fixed by B & G Plumbing. Petitioners were shown the water shut-off valve in case of future leaks. Petitioners believe that Respondents treated them differently from other tenants in the apartment buildings. Petitioners believe that other tenants were allowed to keep pets in their apartments while they were not. Respondents allowed tenants who had pets when they purchased the apartments to keep them, but banned pets on all future rentals. The rent for Petitioners' apartment, including water, sewer, and garbage, was $650.00. Petitioners always paid their rent on time. Petitioners asked to be moved into a better unit since they believed their unit was inferior to others in the complex. Petitioners wanted to move into Apartment 162 which, in their opinion, was in much better shape than their unit. Respondents offered to put new carpet into Apartment 162 before Petitioners moved in, but they refused. Petitioners decided to leave the apartment because they believed the maintenance was not properly performed. On December 5, 2008, the day Petitioners made known their desire to leave the apartment, Mr. Travis confronted Mr. Cutler. Mr. Cutler offered Apartment 132 to Petitioners because it was ready for occupancy after its occupants had moved out. Apartment 133 would soon be ready, and was also offered to Petitioners. Mr. Travis angrily refused to move into any apartments in the two four-plexes. He yelled at Mr. Cutler and told him he hated him. This exchange was witnessed by a neighbor, Gary Denton. Mr. Cutler offered to let Petitioners move out without penalty, and agreed to return their $650.00 deposit. Petitioners accepted the offer and received the deposit in full as well as a waiver of the first five days' rent for December and an additional four days of rent to allow them time to pack and move. Petitioners accused Respondents of renting one four-plex to whites only and the other to minorities. At the time Petitioners moved out, both four-plexes had tenants of different races. As of the date of the hearing, five of the six total units rented were to non-white tenants. Only one was rented to a white couple.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Florida Commission on Human Relations enter a final order dismissing the Petition for Relief. DONE AND ENTERED this 25th day of November, 2009, in Tallahassee, Leon County, Florida. S ROBERT S. COHEN 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 25th day of November, 2009. COPIES FURNISHED: John Cutler Anne Cutler 5970 Limestone Road Pensacola, Florida 32504 Donald Travis Lisa Harrell 1008 West Young Street Pensacola, Florida 32501 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
The Issue The issue is whether Respondent engaged in a discriminatory housing practice, within the meaning of and in violation of the Florida Fair Housing Act, Sections 760.20 through 760.37, Florida Statutes (2005), by requiring Petitioners to submit a second application for the approval of a condominium purchase.
Findings Of Fact It is undisputed that Petitioner, Allan Kangas, has no handicap and is not a disabled person. At the conclusion of Petitioners' case-in-chief, Mr. Kangas testified that he has no handicap. The undersigned, sua sponte, entered an ore tenus order on the record dismissing the case brought by Mr. Kangas. Petitioner, Anna Kangas, is an elderly female and the mother of Mr. Allan Kangas and Mr. Sheldon Kangas, the latter being the representative in this proceeding for the named Petitioners. It is undisputed that Mr. Sheldon Kangas is not handicapped, but that Mrs. Kangas is handicapped, within the meaning of Section 760.22(7), Florida Statutes (2005), because of Alzheimer's disease. Respondent is a condominium association lawfully incorporated as a Florida corporation (Association). Respondent must operate in accordance with the Articles of Incorporation, By-Laws, and Declaration of Condominium (condominium documents). The condominium documents require the Association to approve each purchase of a condominium. On December 8, 2005, Mr. Sheldon Kangas and Mrs. Anna Kangas contracted with Ms. Mary Cox to purchase condominium unit 15, located at 23 Hatchett Creek Road. Ms. Cox is a real estate agent and a co-owner of unit 15. Ms. Cox notified Ms. Pat Williamson, Association Secretary, of the prospective purchase. For the reasons stated herein, Respondent did not discriminate against the prospective purchasers, but approved the purchase of condominium unit 18 in a timely manner after the purchasers changed their purchase contract from unit 15 to unit 18. The prospective purchasers completed an application for approval of the purchase of unit 15 sometime between December 8 and 10, 2005. The Association conducted a meeting to approve the proposed purchase on December 10, 2005. During the meeting on December 10, 2005, the purchasers informed the Association that they wished to purchase unit 18, located at 29 Hatchett Creek Road, rather than unit 15. Unit 18 was owned by Mr. Brian Isaac. Ms. Cox did not object to releasing the purchasers from the contract for the purchase of unit 15. The Association informed the purchasers that a new application for unit 18 would be required. The purchasers completed a new application under protest. At a meeting conducted on January 3, 2006, the Association approved the application for the purchase of unit 18. The purchase of unit 18 closed on January 25, 2006. The purchasers seek reimbursement of living expenses incurred for hotel rooms and meals during the delay caused by the requirement for a second application. The purchasers are not entitled to reimbursement. The purchase of unit 18 was the first time the Association had required a second application. However, it was also the first time a purchaser had changed his or her choice of units after submitting an application. The Association did not discriminate against Mrs. Kangas because of her handicap. The record evidence contains no justifiable issue of law or fact to support the alleged discrimination.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Commission enter a final order dismissing the Petition for Relief. DONE AND ENTERED this 2nd day of January 2007, in Tallahassee, Leon County, Florida. S DANIEL MANRY Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 Filed with the Clerk of the Division of Administrative Hearings this 2nd day of January 2007. COPIES FURNISHED: Cecil Howard, 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 David G. Muller, Esquire Becker & Poliakoff, P.A. 630 South Orange Avenue, Third Floor Sarasota, Florida 34236 Shelden Kangas Allan Kangas 4578 Manor Drive Sarasota, Florida 34233
The Issue Whether Petitioner's Petition for Relief from a Discriminatory Housing Practice (Petition for Relief) filed against Respondents should be granted by the Florida Commission on Human Relations (Commission).
Findings Of Fact Based on the evidence adduced at the final hearing and the record as a whole, the following findings of fact are made: The Parties Petitioner is a 75-year-old woman who lives with her 13-year-old granddaughter, Jeanna Moretti, in a fourth-floor apartment (apartment number 408B) in Building B of the Santa Monica Condominium development (Santa Monica). Santa Monica is a 75-unit multi-family condominium development, with elevatored buildings, located in Hollywood, Florida. Petitioner has lived at Santa Monica since 1990. Jeanna has resided with her for the past ten years. There are other children (under 18 years of age), besides Jeanna, who live at Santa Monica. The Santa Monica Condominium Association, Inc. (Association) is vested with the authority to manage and oversee the condominium property at Santa Monica. Its authority includes the power to regulate the use of the common elements. Among the areas over which it is empowered to exercise control are the catwalks, elevators, trash and storage rooms, pool area, and parking lots. The Association is governed by a board of directors. Until recently, Ray Milewski was on the Association's board of directors and served as its president. Among those who served on the board with Mr. Milewski were Frank Garcia and Gretchen Powell. Mr. Milewski, who is approximately 55 years of age, lives on the same floor as Petitioner (in apartment number 411B). He shares his apartment with his girlfriend, Arlene Kelleher. Petitioner's and Ray Milewski's Acrimonious Relationship Since the time he assumed the presidency of the Association, Mr. Milewski has had a fractious relationship with Petitioner and Jeanna. In his dealings with Petitioner and Jeanna, Mr. Milewski has conducted himself in a manner that has upset them. He has been rude to them and called them unflattering, derisive, and vulgar names. Some of the name-calling directed at Jeanna has come in response to her whistling in his presence. He has entered Petitioner's apartment without permission when the front door was open. He has walked back and forth on the catwalk outside of Petitioner's kitchen window seemingly trying to listen in to what was going on in the apartment, and he has made nasty comments to Petitioner through the window. Petitioner and Jeanna, for their part, have acted in a manner that has irritated Mr. Milewski and others in the development. The Arbitration Proceeding On March 31, 2002, when Mr. Milewski was still president of the Association, the Association filed with the Department of Business and Professional Regulation, Division of Land Sales, Condominiums, and Mobile Homes (Department), a petition for arbitration, pursuant to Section 718.1255, Florida Statutes, accusing Petitioner of engaging in disruptive conduct in violation of Article XV of Santa Monica's Declaration of Condominium. The case was docketed as Department Case No. 02- 4691. An arbitration hearing in Department Case No. 02-4691 was held on June 27, 2002, in accordance with the procedures set forth in Florida Administrative Code Rule 61B-45.039.2 The arbitrator, Richard M. Coln, Esquire, issued his Final Order in Department Case No. 02-4691 on July 31, 2002. Arbitrator Coln's Final Order contained the following "findings of fact": The Santa Monica Condominium is a condominium within the meaning of Fla. Stat § 718.104. The Santa Monica Condominium Association, Inc., is the entity responsible for the administration and operation of the Santa Monica Condominium. Maria O'Connor, the respondent, is the fee simple owner of unit 408B and has resided in the unit since 1990. The respondent presently resides in the unit with her granddaughter, Jeanna Moretti. The petitioner presented the testimony of Ray Milewski, President of the association's board of directors and owner of unit 411B. Mr. Milewski's unit is located on the same floor as the respondent's. Mr. Milewski lives with his girlfriend, Arlene Kelleher, and has resided in the unit since 1990. Based upon the testimony of all witnesses presented, it is clear that there is a great deal of hostility and animosity existing between Mr. Milewski and the respondent. Mr. Milewski testified that the respondent has, virtually on a day-to-day basis, whistled in an overly irritating fashion at him, his girlfriend, and occasionally at an employee of the association. Mr. Milewski further testified that Mrs. O'Connor's granddaughter, Jeanna, also whistles in order to harass him. Mr. Milewski described the whistle as a loud piercing sound repeated without melody or tune. The petitioner presented the testimony of Lynn Moore, the owner of unit 308B. Ms. Moore's unit is located directly below the respondent's unit. Ms. Moore has resided in the condominium with her two children for approximately five years. Ms. Moore testified that she and respondent had been friends in the past but were not presently on a friendly basis with one another. Ms. Moore testified that one evening she heard the respondent and her granddaughter having a fight. This fight was later reported to the Department of Children and Families (DCF) and an investigation of the incident took place. No further action was ever taken by DCF. Since the report to DCF, the amicable relationship between the respondent and Ms. Moore has ended. Ms. Moore testified that she observed the respondent whistle at Mr. Milewski on one occasion. Ms. Moore described the whistle as a shrill noise without any discernable rhythm or melody. After the relationship between Ms. Moore and the respondent soured, the [sic] Ms. Moore testified that she often heard loud banging and scraping coming from the respondent's unit. These noises occurred most frequently on Monday mornings from 9:00 a.m. to noon. Because of Ms. Moore's occupation as a flight attendant, Ms. Moore normally sleeps from 9:00 a.m. to noon on Monday mornings. Ms. Moore testified that the respondent was aware of her work schedule and her routine of sleeping in on Monday mornings after returning from her weekend flight schedule. Ms. Moore testified that as a result of the animosity and problems that have developed between her and the respondent, she has sold her unit and is moving out of the condominium. The petitioner presented the testimony of Mr. Steve Godfrey who is the tenant of unit 409B, which is the unit located directly next door to Mrs. O'Connor's. Mr. Godfrey's brother and sister-in-law, who reside part-time in England are the owners of unit 409B. As a result of a broken pipe in the Godfrey unit that caused damage to the respondent's unit, animosity between the respondent and Mr. Godfrey has developed. Mr. Godfrey testified that he has witnessed the respondent's granddaughter whistle at him in an effort to be a nuisance. Mr. Godfrey further testified that he has repeatedly heard noises coming from the respondent's unit that sounded like a chair being dragged across the floor. The respondent testified that she sometimes whistles while she does house work. The respondent denies whistling to intentionally harass Mr. Milewski. Respondent and her granddaughter both testified that they had been practicing whistling because Jeanna's school choir was having a program involving whistling. The respondent demonstrated at the hearing her ability to whistle, which consisted of her blowing air through her lips without making any audible sound. The petitioner presented the testimony of Paul Marotta. Mr. Marotta is employed by the association to do maintenance of the condominium property. Mr. Marotta testified that he has observed the respondent, and her granddaughter, whistling in an irritating fashion at himself, Mr. Milewski and Arlene Kelleher. Mr. Marotta further testified that the respondent tries to get people angry and has received complaints that she bangs on the floors and walls in an effort to irritate other residents. The respondent presented the testimony of Joseph Moretti, the respondent's son. He stated that his mother had a habit of whistling when doing dishes. On February 13, 2002, a letter was sent to the respondent notifying her of the complained of behavior and demanding that she and her granddaughter cease these behaviors. Arbitrator Coln's Final Order also contained the following "conclusions of law"3: The testimony of the witnesses was that the respondent exhibits a great deal of animosity towards other unit owners, tenants, and association employees, which manifests as disruptive behavior. The testimony presented by the petitioner supports the claim that the respondent actively engages in conduct that is intended to disturb, annoy, and interfere with other unit owners or occupants. Article XV of the Declaration of Condominium provides in pertinent part that: "No immoral, improper, offensive or unlawful use shall be made of any unit or of the common elements or of the limited common elements or any part thereof. . . . No unit owner shall do . . . any act . . . which might . . . interfere with owners or occupants of other units or annoy them by unreasonable noises." The arbitrator finds that the testimony of the association's witnesses on this issue of the respondent's alleged conduct to be credible. All of the witnesses, called by the petitioner, described the respondent's whistling and other behaviors in similar fashion and described similar encounters with her. Additionally, the testimony of the respondent and her granddaughter that they did not engage in the behavior complained of was not credible and was not supported by other evidence. At the hearing, the respondent was unable to produce sound when demonstrating her ability to whistle. The testimony of respondent's own witnesses, her son and granddaughter, was that she often whistled while she did work or other chores. Neither witness described the respondent's whistling as inaudible or as having any similarity to the whistle she demonstrated at the hearing. Based upon the totality of the evidence submitted, the arbitrator finds that the respondent, and her granddaughter, engaged in the conduct complained of in violation of the above referenced provisions of the declaration. The respondent raises the following defenses: That the dispute was between her and another unit owner and not between her and the association. Selective enforcement. That the respondent's conduct was speech protected by the 1st Amendment to the Constitution. Regarding the first defense, the petitioner presented the testimony of several witnesses, each testified that the respondent engaged in conduct that was harassing and annoying to them. The association is responsible for enforcing the rules and regulations for the condominium. Since the testimony presented demonstrates that the respondent's conduct affects more than one occupant or unit owner, and is occurring throughout the community, the dispute is one that involves the association and its obligation to enforce the rules and regulations of the community. The respondent claims that the association is selectively enforcing the rules and regulations of the condominiums [sic] against her. The respondent has produced no evidence that the association has allowed other unit owners to engage in similar behavior towards other unit owners and tenants and not sought to enforce the association's rules and regulations against them See e.g., Scarfore v. Culverhouse, 443 So. 2d 122 (Fla. 2d DCA 1983) (In order to show arbitrary or selective enforcement it must be shown that the other violations permitted by the board are comparable to the type of violation involved in the instant action). Accordingly, since the respondent has failed to demonstrate a comparable violation of Article XV of the declaration the defense of selective enforcement fails. The respondent's last defense is that her conduct is protected by the 1st Amendment to the Constitution. The First Amendment provides, in pertinent part, that "Congress shall make no law . . . abridging the freedom of speech or the press " U.S. Const. Amend. 1. The Fourteenth Amendment extends the First Amendment's prohibition on the abridgment of freedom of speech to states and their political subdivisions. The right to free speech, however, is not absolute at all times and under all circumstances. The Supreme Court has established several categories of speech, typically regarded as harmful, which are deemed not to be protected by the First Amendment. These categories are obscenity, advocacy of imminent lawless behavior, defamation, fighting words and fraudulent misrepresentation. See R.A.V. v. City of St. Paul, Minn., 112 S. Ct. 2638 (1992); New York v. Ferber, 102 S. Ct. 3348 (1982); Chaplinsky v. New Hampshire, 62 S. Ct. 766 (1942). First, it should be noted that the respondent's acts of whistling, dragging a chair across the floor, and banging upon the wall, is not speech, it is conduct. Conduct, as established by the evidence in this matter, which is designed to harass, annoy, and irritate others without any legitimate purpose. Where the purpose of the conduct is the personal abuse of another, the conduct is not communication that falls under the protection of the 1st Amendment. See Cantell v. Connecticut, 80 S. Ct. 900, 906 (1942). Since the action in this matter, neither involves state action nor speech, the defense that the respondent's behavior is protected by the 1st Amendment must fail. Accordingly, the respondent has violated Article XV of the declaration of condominium by whistling at other unit owners, tenants, and association employees and by making noises in an irritating and annoying fashion without legitimate purpose which obstructs or interferes with other unit owners or occupants of other units or annoys them by unreasonable noises. Based upon the foregoing, it is ORDERED and ADJUDGED that the respondent has violated Article XV of the declaration of condominium.. The respondent shall immediately cease whistling in the face of other unit owners, tenants, or association employees, banging on the walls of her unit, dragging chairs across her floor, and any other actions which are intended to annoy, irritate, or harass others. Neither shall she encourage her granddaughter or any other person to engage in such behaviors. The respondent shall in the future comply with the provisions of Article XV. The following advisements regarding the "right to trial de novo" and "attorney's fees" were set out in Arbitrator Coln's Final Order: RIGHT TO TRIAL DE NOVO PURSUANT TO SECTION 718.1255, FLORIDA STATUTES THIS DECISION SHALL BE BINDING ON THE PARTIES UNLESS A COMPLAINT FOR TRIAL DE NOVO IS FILED BY AN ADVERSELY AFFECTED PARTY IN A COURT OF COMPETENT JURISDICTION IN THE CIRCUIT IN WHICH THE CONDOMINIUM IS LOCATED WITHIN 30 DAYS OF THE DATE OF MAILING OF THIS ORDER. THIS FINAL ORDER DOES NOT CONSTITUTE FINAL AGENCY ACTION AND IS NOT APPEALABLE TO THE DISTRICT COURTS OF APPEAL. ATTORNEY'S FEES As provided by s. 718.1255, F.S., the prevailing party in this proceeding is entitled to have the other party pay its reasonable costs and attorney's fees. Rule 61B-45.048, F.A.C., requires that a party seeking an award of costs and attorney's fees must file a motion seeking the award not later than 45 days after rendition of this final order. The motion must be actually received by the Division within this 45-day period and must conform to the requirements of rule 61B-45.048, F.A.C. The filing of an appeal of this order does not toll the time for the filing of a motion seeking prevailing costs and attorney's fees. Arbitrator Coln's Final Order was mailed to the parties to the arbitration on July 31, 2002. On September 3, 2002, the Association moved for an award of attorney's fees and costs in Department Case No. 02- 4691. On October 7, 2002, Arbitrator Coln issued an order in Department Case No. 02-4691 awarding the Association $8,660.00 in attorney's fees and costs and directing Petitioner to pay this sum to the Association within 30 days of the date of the order. Arbitrator Coln issued an Amended Final Order Awarding Attorney's Fees and Costs in Department Case No. 02-4691 on October 16, 2002. This amended order left unchanged the amount of the attorney's fees and costs award Petitioner was required to pay the Association (but required that payment be made within 30 days of this amended order). Petitioner's Physical Ailments Petitioner has knee and back problems as a result of injuries she has suffered. She broke her kneecap in 1985 and now has a "trick knee." She has injured her back on more than one occasion. Her last back injury occurred in 1992, when she fell on her buttocks after her knee "gave out." The injury was a serious one. She was in a "body brace" for four months (from December 1992, to April 1993), during which time she used a walker. Petitioner is able to, and does, walk without a cane or other aid or support. When the elevator in her building is not working, Petitioner has to walk up and down the stairs to get to and from her apartment. She is able to traverse the stairs, albeit slowly. Although she considers herself to be disabled, at no time material to the instant case did Petitioner advise Respondents that she had a disability or impairment. Mr. Milewski did see Petitioner in a "body brace" and using a walker following her most recent back injury, but this was more than decade ago, well before the events that are the subject of the instant case. While Mr. Milewski called Petitioner various offensive names, in engaging in such name-calling, he did not make reference to any physical impairment or use other language suggesting that he regarded Petitioner as being physically handicapped or disabled. Parking All Santa Monica unit owners, including Petitioner (who drives a 1992 Nissan Sentra), have an assigned parking space. Petitioner's assigned parking space is directly behind her apartment in the parking area in back of the building. Petitioner is able to walk (unaided) from her assigned parking space to the entrance to her building even when carrying items from her car. Petitioner likes the location of her assigned parking space because she is able to see her car, when it is parked there, by simply looking out a window in the rear of her apartment. Petitioner has never requested that she be reassigned another parking space (closer to the entrance of her building or elsewhere). Despite the fact that there are potholes in the pavement right behind her assigned parking space that fill up with water when it rains, Petitioner has not had, nor expressed, any desire to change assigned parking spaces. In addition to the parking area where Petitioner's assigned parking space is located, there is also a parking area in front of Petitioner's building, which has both assigned and guest parking spaces. Among these parking spaces in front of the building is a handicapped parking space (on each side of which is a non- handicapped, assigned parking space). From the time she moved into her apartment at Santa Monica in 1990, until mid-April of 2002, Petitioner, without incident, on occasion, parked in the handicapped parking space temporarily (never overnight) when the weather was inclement and she needed to carry groceries from her car to her apartment. On these occasions, she was never asked to move her car from the handicapped parking space. Petitioner's car has a handicapped sticker on it.4 On or about April 17, 2002, as she had done on previous occasions, Petitioner parked in the handicapped parking space after a trip to the grocery store. Shortly after entering her apartment with the groceries she had purchased, Petitioner heard a knock on the door. It was Joseph Gauck, who worked as the property manager for the Association. He asked Petitioner if she had seen the new sign in front of the handicapped parking space that indicated it was a "guest only" handicapped parking space. Petitioner replied that she had not. Mr. Gauck told her that she needed to move her car and that, although he was giving her only a warning this time, the next time she parked in this space, her car would be towed. Petitioner did as she was told. When she went down to move her car, she confirmed that the sign in front of the handicapped parking space now read "guest only." Use of the Pool Santa Monica has a pool available for use by everyone living in the development, however, children under 14 years of age must be accompanied by an adult when in the pool area. Petitioner understands the need for this rule requiring adult supervision and does not question the rule's reasonableness or its legality. Her complaint is that, in September 2002, the Association erroneously accused her of allowing Jeanna to go to the pool without adult supervision (in violation of the rule), while making no accusations against other unit owners who were actually guilty of violating the rule. The accusation with which she takes issue came in the form of a letter, dated September 6, 2002, that she received from Mr. Gauck. The letter read as follows: It has been brought to our attention that your granddaughter has been allowed to go to the pool unattended and unsupervised. This is a violation of the community rules, which specify that all children under 14 years of age must be accompanied by an adult. This rule is posted at the pool and is contained in your community documents. Unsupervised children at the pool are not only a danger to themselves but represent a major liability to the community and to you, as the party responsible for her well being. Please make sure that you accompany your granddaughter at all times when she is at the pool. Otherwise, her use of the pool will be prohibited. Petitioner responded by writing the following letter, dated September 7, 2002, to Mr. Gauck, explaining that it was another child, not Jeanna, who had been in the pool without adult supervision on the date in question: In answer to your letter of Sept. 6, 2002, Mrs. Chrabus, apt. # 216 and her mother who was visiting were going to the pool. My granddaughter Jeanna and Mrs. Chrabas' daughter were waiting. Meanwhile Mrs. Chrabas' daughter took it upon herself to enter the pool, my granddaughter did not as I told her not to. When Mrs. Chrabas' mother who is well over 14 yrs. went into the pool is when Jeanna entered. In fact Jeanna left before they did. I looked over the catwalk over the pool two times and both Mrs. Chrabas' mother and then Mrs. Chrabas were in the pool. My granddaughter has excellent supervision, and we both understand the rules and have always followed them. Few days prior to this there were at least four kids, neighbors at the pool yelling and screaming, diving in. Did anyone see or hear this? I did. My granddaughter's well-being is my most interest. In respect to you, I know you need to do your job. Petitioner received no other letter concerning this matter from Mr. Gauck or any one else on behalf of the Association. Jeanna was never forbidden by the Association from using the pool. Petitioner, however, "kept [Jeanna] out of the pool for a long time" following this exchange of letters (taking Jeanna to the beach, instead, to swim). Jeanna and Board Member Gretchen Powell One day in November 2002, as Petitioner, Jeanna, and Petitioner's friend, Lillie Charles, were unloading groceries from Petitioner's car after they had returned to Santa Monica from a trip to the grocery store, Ms. Powell walked by and said hello to Jeanna. Not receiving any response to her greeting, Ms. Powell told Jeanna, "Kiss my ass." Ms. Powell also spit on the ground before angrily walking away. Jeanna's Christmas Decorating Before the Christmas holiday in 2002, Jeanna painted a "Santa Clause face" and wrote Merry Christmas on the outside of the living room window of Petitioner's apartment (which faces the catwalk). As Jeanna was finishing up, Mr. Milewski passed by and called Jeanna a "retard." A short time later, Mr. Milewski was joined on the catwalk outside of Petitioner's apartment by Ms. Powell and Mr. Garcia. The three stood there laughing. It appeared to Petitioner, who was looking out the kitchen window (which also faces the catwalk, where Mr. Milewski, Ms. Powell, and Mr. Garcia were standing), that the three of them were laughing at the work Jeanna had done. Damage to the Hood of Petitioner's Car In or around April of 2003 (after Petitioner had filed with the Commission and HUD the housing discrimination complaints described in the Preliminary Statement of this Recommended Order), Ms. Powell telephoned Petitioner and left a message advising Petitioner that a tree adjacent to the parking area behind Petitioner's building was going to be cut down and suggesting that Petitioner not leave her car in her assigned parking space while this work was being done. Although Petitioner did not think her car was close enough to the tree to be in harm's way, in an abundance of caution, she moved the car to a guest parking space further away from the tree. When Petitioner went to her car to move it back to her assigned parking space after the tree-cutting work was done, she noticed, for the first time, that there were places on the hood of the car where the paint was "bubbled" and discolored. Since this April 2003, incident, there has been additional "bubbling" and discoloration that Petitioner has discovered on the hood of her car, further marring its appearance.5 Chewed Gum in Keyhole of Petitioner's Mailbox and Elsewhere In or around the summer of 2003, on more than one occasion, there was chewed gum placed in the keyhole of Petitioner's mailbox. There were other occasions where Petitioner found wax and matchsticks in the keyhole. During the summer of 2003, Petitioner also started finding chewed gum placed on the catwalk outside the entrance to her apartment. She also discovered chewed gum on the outside sill of her kitchen window, on the kitchen window screen, and on the screen door at the entrance to her apartment. After Petitioner wrote a letter to Mr. Milewski about the chewed gum outside her apartment, the Association's "maintenance man," Paul Marotta, came by "to clean up the mess."6 Jeanna's Bicycle The trash room in Petitioner's building also serves as a storage area for bicycles. Jeanna has a bicycle that she stores in the trash room. On one occasion, when Petitioner went into the trash room to retrieve the bicycle for Jeanna, the bicycle was in the back of the room behind other bicycles that Petitioner was unable to move. Petitioner asked that Jeanna's bicycle be moved to the front of the room, where it had been previously, so that it would be accessible to Petitioner and Jeanna. When Petitioner returned to the trash room, Jeanna's bicycle was again in the front of the room near the door, but the bicycle now had "dirty plastic bags" tied to its handlebars.7 Comments Regarding Moving It has been suggested to Petitioner and Jeanna that they move from the development. Such suggestions have been made by Mr. Garcia and Ms. Powell. Petitioner has responded to these suggestions by indicating that she has no intention of moving. Election of a New Association Board of Directors Petitioner was not alone in her displeasure with the way Mr. Milewski and his fellow board members discharged their responsibilities on behalf of the Association. A dissident group of unit owners circulated the following letter to other unit owners in or around the fall of 2003: Dear Santa Monica Condominium Owner, We are a group of Owner-Residents and we would like to share with you some concerns we have regarding the upcoming elections. As you know, the Board of Directors is being elected soon for the upcoming year. We have decided to jointly write this letter so that you realize that this is a common concern and does not come from 1 or 2 unhappy individuals. Most of us make a point to attend the meetings when we can, and we try and stay informed and up to date with our community. We like to get involved with our "neighborhood" and contribute to the common effort of making Santa Monica a safe, attractive and pleasant place to reside. As owners, we are also interested in the values of our homes and that the value of our community increases as well as our lifestyles. There are many things we would like to address in the upcoming year that will make a positive difference to our homes and property. We feel that the management of our monthly maintenance could be better handled and we think that at present, the business of running the building does not benefit the entire community. Frankly speaking, the warmth is gone. While we are all equal owners, you may or may not be currently calling Santa Monica your home and are probably unaware of this change in the "community climate." We are primarily interested in turning Santa Monica back into the friendly, thriving community it once was. If you are renting your unit, this will benefit you, as a happy renter is more likely to remain renting your property. Many of the rules and regulations under which we live have become restrictive and outdated. They are being selectively enforced with such vigor and ferocity that we have become uncomfortable in our own community. We want to work together as neighbors and friends again. We want to feel as though we are a community where people may live and work in peace and not worry about when the next selective and arbitrary enforcement of a rule is going to shake up our lives and make us all afraid to even use our own common areas. We, the letter writers, are mostly longtime residents and we range in ages from our mid-twenties on up to our seventies. We are a diverse group of residents. We are professionals, or are retired and we are all responsible adults. We are asking that you vote for the following people in the next election. We want to turn Santa Monica around and get it back on the right track, The following individuals want to accomplish this as well. Our Board of Directors is currently set up for 5 individuals. We are recommending the following people For Your Consideration: * * * With these people on the Board of Directors, you may be assured they will all work with one thing in mind. To serve the entire Santa Monica Community. They have no self- serving interest in being Board Members with the exception that they want their residence to be a more pleasant and more efficiently run place to live. They are willing to work for you and with you and they will give some of their free time in the interest of all residents. We hope you agree and we are asking that you vote for 5 of the 6 people that we have offered for your consideration. Thank you for you time and for your votes. We appreciate your help in turning Santa Monica into a Community that Cares. The dissidents were successful in their efforts to oust Mr. Milewski and his fellow board members from power. Under the new board, Petitioner feels like things are "normal again." The new board members have told her that they have no problem with her humming while in her kitchen with the window open (something Mr. Milewski forbade her from doing when he was in office). They have also told her that it is okay for her to temporarily park in the handicapped parking space. Ultimate Findings The record evidence is insufficient to establish that Respondents in any way discriminated against Petitioner on the basis of handicap or familial status or that they took any retaliatory action against her for filing housing discrimination complaints with the Commission and HUD.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Commission issue a final order finding that Respondents are not guilty of any "discriminatory housing practice" and dismissing Petitioner's Petition for Relief based on such finding. DONE AND ENTERED this 30th day of March, 2004, in Tallahassee, Leon County, Florida. S 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 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 30th day of March, 2004.
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.
