The Issue The issue in this case is whether Respondent, Community Housing Initiative, Inc. (Respondent), committed a discriminatory housing practice against Petitioner, Karen Lee Krason (Petitioner), in violation of Chapter 760, Florida Statutes (2008).
Findings Of Fact On or about June 11, 2009, Petitioner filed a Housing Discrimination Complaint with the 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 Petitioner there was no cause from which it could be found that Respondent had violated the Florida Fair Housing Act. Thereafter, Petitioner elected to file a Petition for Relief to challenge the determination and to seek relief against Respondent for the alleged violation. The Commission then forwarded the matter to DOAH for formal proceedings. DOAH 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. Petitioner did not appear 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 Petitioner's claim of discrimination. DONE AND ENTERED this 4th day of February, 2010, in Tallahassee, Leon County, Florida. S J. D. PARRISH 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 4th day of February, 2010. COPIES FURNISHED: Karen Lee Krason 1715 Erin Court Northeast Palm Bay, Florida 32905 Larry Kranert, General Counsel Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301 Denise Crawford, Agency Clerk Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301 COPIES FURNISHED BY CERTIFIED MAIL Nicole Tenpenny, Registered Agent Community Housing Initiative, Inc. 3033 College Wood Drive Melbourne, Florida 32941 (Certified No. 91 7108 2133 3935 7995 3000) Nicole Tenpenny, Registered Agent Community Housing Initiative, Inc. Post Office Box 410522 Melbourne, Florida 32941-0522 (Certified No. 91 7108 2133 3935 7995 2997) Michael Rogers, Officer/Director Community Housing Initiative, Inc. 1890 Palm Bay Road, Northeast Palm Bay, Florida 32905 (Certified No. 91 7108 2133 3935 7995 2980)
The Issue Whether Petitioner was the subject of unlawful discrimination in the provision of services or facilities in connection with her dwelling based on her race or handicap, in violation of the Florida Fair Housing Act, chapter 760, Part II, Florida Statutes.
Findings Of Fact Petitioner is a 51-year-old black female who relocated to Leesburg, Florida, from Port Chester, New York, in February 2012. Respondent, Richman Property Services, Inc., is the corporate owner/manager of Laurel Oaks Apartments (Laurel Oaks) located at 131 Bayou Circle in Leesburg, Florida. Amy Lewis is the Community Manager of Laurel Oaks. Petitioner rented a two-bedroom apartment unit from Respondent from February 24, 2012, until she moved to Orlando, Florida, on December 3, 2012. Petitioner?s daughter, Sushon Dillard, occupied the apartment with Petitioner during her tenancy at Laurel Oaks. Petitioner spoke with Ms. Lewis via telephone to inquire regarding the availability of a unit at Laurel Oaks while Petitioner was still residing out of state. Petitioner applied for tenancy at Laurel Oaks by faxing her application to Ms. Lewis. Petitioner?s application was accompanied by a copy of her award letter documenting Social Security Disability Insurance (SSDI) payments as proof of income. On February 24, 2012, Petitioner signed a lease for Laurel Oaks unit #103, paid a security deposit, and moved into the unit. Petitioner has a current clinical diagnosis of “schizophrenia, paranoid.” She also claims to be diagnosed bi- polar with Tourrete?s Syndrome. While Petitioner presented no documentation of the additional diagnosis, her testimony on this issue is credible and is accepted by the undersigned. Petitioner was first hospitalized for treatment of an unspecified mental illness at Bellevue Hospital in New York in 1982. She apparently lived without significant incident for the next 26 years. Petitioner had a “breakdown” in 2008, while living in Arizona, and another “breakdown” that same year in New York, for which she was hospitalized at Greenwich Hospital in Connecticut, and later transferred to Stamford Hospital in Connecticut. Petitioner reports that since April 2008, she has “spent time in numerous mental institutions in Arizona, Florida, Georgia, Maryland and New York.” Petitioner?s most recent incident occurred in August 2012, while she was living at Laurel Oaks. She was taken by police to a local facility named “Life Stream” where she was treated for a number of days, then returned home to her apartment at Laurel Oaks with her daughter. Petitioner appeared calm and controlled at the final hearing. She testified that she is taking her medications and doing very well. Petitioner claims that when she moved into the unit at Laurel Oaks, it was not cleaned, was “infested with dead roaches,” and the washing machine was filthy. Petitioner?s daughter testified there were dead roaches even in the dishwasher. Petitioner also bases her allegation of discrimination on Respondent?s accusation in April 2012, that Petitioner had not paid a $300 security deposit prior to occupying her apartment. When Petitioner paid her April rent, Trifonia Bradley, an employee in the office at Laurel Oaks, informed Petitioner she still owed a $300 security deposit. Petitioner responded that she had paid the deposit on February 24, 2012. Although the evidence was not clear as to the specific date, Petitioner later met with Ms. Bradley and brought in her receipt showing the $300 had been paid in February. After that meeting, Petitioner received a phone call from Ms. Lewis apologizing for the error and stating something to the effect of “we are all good.” Petitioner believes Respondent was attempting to take advantage of her disability and trick her into paying the deposit again. At final hearing, Petitioner and her daughter presented evidence and testimony regarding additional alleged discriminatory acts by Respondent. Petitioner alleged that someone employed by, or otherwise acting on behalf of Respondent, sabotaged her automobile; harassed her by requesting her daughter fill out a separate rental application in order to live with her; harassed Petitioner about her request for accommodation based on her disability and claimed she had not demonstrated that she was disabled under the Americans with Disabilities Act; threatened to tow away her car because it was inoperable; and stole money from her apartment. Each of these additional alleged acts occurred after September 21, 2012, the date on which FCHR issued its determination of no cause, and was not investigated by FCHR. Petitioner is intelligent and articulate. Her exhibits were well-organized and contained copious documentation of the alleged discriminatory acts occurring after September 21, 2012. Her documentation included correspondence with Laurel Oaks? management, notices which were posted on the apartment door, copies of numerous forms and applications, and a police report. In contrast, Petitioner offered no tangible evidence regarding the condition of the property upon occupancy other than her testimony, which was not persuasive. She introduced no photographs, no written complaint, and no correspondence with the manager or other employees of Laurel Oaks regarding the condition of the apartment. In fact, she offered no evidence that she brought the condition of the unit to the attention of Laurel Oaks? management. Given the totality of the evidence, including the demeanor of the Petitioner and Ms. Dillard, the undersigned finds that either the unit was not unclean or Petitioner did not bring the condition of the unit to the attention of Laurel Oaks upon occupying the unit. Further, the undersigned finds that Laurel Oaks erroneously requested the security deposit in April 2012, and corrected the error after reviewing Petitioner?s documentation. The mistake was not an act of discrimination based either on race or disability.2/
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. 2012H0289. DONE AND ENTERED this 27th day of December, 2012, in Tallahassee, Leon County, Florida. S Suzanne Van Wyk 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 December, 2012.
The Issue Whether Respondent discriminated against Petitioner in the terms, conditions, or privileges of rental of a dwelling; or provision of services or facilities in connection therewith, in violation of the Florida Fair Housing Act (“the Act”), section 760.23, Florida Statutes (2019).
Findings Of Fact Petitioner is a female residing in Tallahassee, Florida, who purports to have diagnoses of depression, attention-deficit/hyperactivity disorder (“ADHD”), and a learning disability. Petitioner offered no evidence regarding how her diagnoses affect her daily life. Petitioner originally signed a lease with Respondent to rent apartment F201 at Sabal Court Apartments, 2125 Jackson Bluff Road, Tallahassee, Florida, from November 1, 2017, to October 31, 2018. Petitioner moved into the apartment with her two minor children on November 2, 2017. Petitioner testified her two minor children also have ADHD. On October 24, 2018, Petitioner renewed her lease for the apartment for the term of November 1, 2018, through October 31, 2019. Petitioner testified that, during the term of both leases, she experienced problems with the apartment; including mold in the bathroom, bed bugs, ants, roaches, spiders, and cracked flooring. Most distressing to Petitioner was the air conditioning unit, which Petitioner alleges was filthy and failed to cool the apartment. Petitioner testified she submitted several requests for the unit to be serviced, but it was never repaired to good working condition. Petitioner complained that the apartment was too hot—frequently reaching temperatures in excess of 80 degrees—for her and her children to sleep at night. On August 7, 2019, Petitioner executed a lease renewal form, requesting to renew her lease for an additional 12 months—through October 31, 2020. On September 23, 2019, Respondent posted a Notice of Non-Renewal of Lease (“Notice”) on Petitioner’s apartment door. The Notice notified Petitioner that her tenancy would not be renewed and that she was expected to vacate the premises on or before October 31, 2019. Petitioner testified that she did not know why her lease was non- renewed, but believed it to be additional mistreatment of her and her family by Respondent. In response to the undersigned’s question why Petitioner believed Respondent’s treatment of her to be related to her handicap, or that of her children, Petitioner replied that she does not believe that the non-renewal of her lease, or other issues with Respondent’s management, was based on either her handicap or that of her children.
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 Petition for Relief from a Discriminatory Housing Practice No. 202021115. DONE AND ENTERED this 11th day of May, 2020, in Tallahassee, Leon County, Florida. S SUZANNE VAN WYK Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 11th day of May, 2020. COPIES FURNISHED: Tammy S. Barton, Agency Clerk Florida Commission on Human Relations Room 110 4075 Esplanade Way Tallahassee, Florida 32399-7020 (eServed) Dastha L. Crews Apartment A 2125 Pecan Lane Tallahassee, Florida 32303 (eServed) Joni Henley, Assistant Manager Sabal Court Apartments 2125 Jackson Bluff Road Tallahassee, Florida 32304 Todd A. Ruderman Green Oaks Tampa, LLC Suite 218 3201 West Commercial Boulevard Fort Lauderdale, Florida 33309 Cheyanne Costilla, General Counsel Florida Commission on Human Relations Room 110 4075 Esplanade Way Tallahassee, Florida 32399-7020 (eServed)
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 Whether Respondent, Century Realty Funds, Inc., violated the Florida Fair Housing Act, Chapters 760.20 through 760.37, Florida Statutes (2006), by failing to install a poolside chairlift as requested by Petitioner.
Findings Of Fact Based on the oral and documentary evidence presented at the formal hearing and on the entire record of this proceeding, the following Findings of Fact are made: Petitioner is physically disabled and protected for the purposes of the Florida Fair Housing Act. Respondent is the owner of Plantation Landings Mobile Home Park ("Plantation Landings") in Haines City, Florida. Plantation Landings is a 55-year-old and older community. It owns and leases the lots to the owner-tenants of Plantation Landings. Because Respondent owns the Plantation Landings real estate and the subject swimming pool, it has the sole discretion to approve the requested improvements. The swimming pool area is handicap accessible. It is a public swimming pool and regulated by the State of Florida, Department of Health. It was built approximately 30 years ago; there are no known existing construction plans for the pool. The swimming pool is surrounded by a wheelchair-accessible path, and the pool itself has two separate sets of handrails; one for the deep end and one for the shallow end. There are steps leading into the shallow end of the pool and a ladder leading into the deep end. The swimming pool does not have a poolside chairlift. The swimming pool area is not supervised by life guards. Plantation Landings does not provide any supportive services to its residents, such as counseling, medical, therapeutic, or social services. The owner-tenants of Plantation Landings are members of the Plantation Landings Mobile Home Park Homeowners' Association ("Homeowners' Association"), which is a voluntary homeowners' association. Petitioner and his wife are members of the Homeowners' Association. Petitioner and his wife purchased a home in Plantation Landings and leased a lot from Respondent on February 8, 2001, pursuant to a Lease Agreement of the same date. Petitioner is a paraplegic and is able to move about by wheelchair. He is able to access the swimming pool common area in his wheelchair. However, he is not able to get in and out of the pool by himself. He has attempted to get into the swimming pool with the assistance of other residents. He would like to be able to have access into the swimming pool without relying upon the assistance of other residents so that he can exercise. In April 2003, Petitioner discussed the feasibility of installing a poolside chairlift at the swimming pool with Respondent's agent. Petitioner offered to pay for the poolside chairlift and installation at his own expense. On April 1, 2003, Petitioner submitted a written request to Respondent requesting that Respondent install a poolside chairlift. Petitioner delivered his April 1, 2003, written request, literature, and video regarding the poolside chairlift to Respondent's agent. The request did not include any specifications or engineered drawings, nor did it state the proposed location for the poolside chairlift. The poolside chairlift initially proposed by Petitioner was the Model IGMT, which was an in-ground manually-operated lift with a 360-degree seat rotation. In its consideration of Petitioner's request, Respondent determined that the design and construction of the pool and the surrounding common areas were in compliance with all state and federal statutes and regulations and that the pool area and common areas to the pool were accessible by wheelchair. Respondent determined that it was not required to install a poolside chairlift for access into the pool. Respondent also learned that the IGMT model was not Americans With Disabilities Act compliant. It was Respondent's conclusion that the poolside chairlift was cost-prohibitive and a dangerous hazard. When Petitioner returned to Plantation Landings in November 2003, he was advised of Respondent's decision not to provide the requested poolside chairlift. In March 2004, Petitioner requested the assistance of James Childs, president of the Homeowners' Association, for the purpose of making a second request to Respondent for the installation of a poolside chairlift. On March 7, 2004, Mr. Childs, on Petitioner's behalf, wrote Respondent requesting a poolside chairlift. On May 3, 2004, Respondent wrote Mr. Childs denying the request. Over the several years Petitioner has resided in Plantation Landings, he has requested modifications to accommodate wheelchair accessibility. These requests included modifications to the ramp at the front of the clubhouse, modifications adding an additional wheelchair ramp to the back of the clubhouse for access into the clubhouse, and modifications to the handicap parking spaces in front of the clubhouse. All of Petitioner's requests for modifications were honored. In May 2006, Petitioner, again with the assistance of Mr. Childs, made a third request to install a poolside chairlift. This third request was identical to his two prior requests made in 2003 and 2004. This request was denied by letter on April 27, 2006. On December 23, 2006, Petitioner filed a Complaint with the U.S. Department of Housing and Urban Development alleging that Respondent had discriminated against him on the basis of his disability by refusing to allow him to install a poolside chairlift at his own expense.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Florida Commission on Human Relations enter a final order dismissing with prejudice the Petition for Relief for failure to establish an unlawful discriminatory act by Respondent, or, alternatively, that the claim is time-barred and that the Commission lacks jurisdiction to consider the Petition for Relief. DONE AND ENTERED this 15th day of February, 2008, in Tallahassee, Leon County, Florida. S JEFF B. CLARK Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 15th day of February, 2008.
Findings Of Fact Based on the undisputed facts included in pleadings filed in this proceeding and on the documentary evidence attached to the Association's Renewed Motion to Dismiss, the following findings of fact are made: On or about April 16, 1999, Ms. Thornhill filed a complaint with the Department of Housing and Urban Development, in which she accused the Association of housing discrimination on the basis of handicap and coercion. The complaint was apparently based on the Association's attempts to make Ms. Thornhill remove a set of steps leading from the terrace of her apartment. In June 1999, the Association filed a civil lawsuit against Ms. Thornhill in the Circuit Court of the 11th Judicial Circuit in and for Miami-Dade County, styled Admiral Farragut Condominium Association v. Maria Thornhill, Case No. 99-15567 CA 22. On or about September 21, 1999, Ms. Thornhill, through her attorney, filed Defendant, Maria Thornhill's Answer to Complaint. Included in the answer was a Counterclaim filed by Ms. Thornhill, through her attorney, against the Association, in which she sought injunctive relief and damages against the Association pursuant to Section 760.35(1) and (2), Florida Statutes. 1/ She asserted in the Counterclaim that she had filed a discrimination complaint against the Association with the Department of Housing and Urban Development, which had been referred to the Commission and that this complaint was still pending before the Commission. Ms. Thornhill alleged in the Counterclaim that the Association had engaged in housing discrimination against her on the basis of her handicap because it had refused to accommodate her disability by giving her permission to retain the steps she had installed leading from the terrace of her apartment. Ms. Thornhill also alleged that the Association had "authorized or acquiesced in a series of actions intended as harassment and retribution" against Ms. Thornhill for having filed a housing discrimination complaint. The factual and legal bases on which Ms. Thornhill requests relief in the Petition for Relief filed with the Commission and in the Counterclaim filed in circuit court are virtually identical.
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 administrative complaint filed by Maria T. Thornhill to enforce rights granted by the Florida Fair Housing Act, Sections 760.30 through 760.37, Florida Statutes. DONE AND ENTERED this 7th day of November, 2000, in Tallahassee, Leon County, Florida. PATRICIA HART MALONO 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 7th day of November, 2000.
The Issue The issue in this case is whether Respondents, Hugh and Betty Dalton (the "Daltons"), discriminated against Petitioner, Verita Holder ("Holder"), on the basis of her race (African- American) or familial status (single mother) in violation of the Florida Fair Housing Act.
Findings Of Fact Holder is an African-American woman who is raising her children as a single mother. At all times relevant hereto, Holder resided at 1219 Japonica Lane, Cocoa, Florida, in a house owned by the Daltons. Holder was renting the house from the Daltons with the assistance of a Section 8 federal housing grant. Holder entered into a Residential Lease with the Daltons on July 22, 2009. The lease period was to begin on August 1, 2009, and run through July 31, 2010. Holder's share of the lease payment started at $3.00 in the first month, which increased to $15.00, then $27.00, and, on the first anniversary date of the lease, $287.00 per month. In April 2010, there was a leak in the plumbing at the house. The Daltons were contacted and had the leak repaired by E.K. Coggin Plumbing. Beginning in June 2010, i.e., 11 months into the lease, Holder discovered the existence of some mold under the carpet in a portion of the house. The Daltons resolved the problem by having the carpet removed and cleaned, then replacing the matting under the carpeted area. When Holder was not satisfied, the Daltons eventually replaced the portion of the carpet that had been wet. Holder and her family began having health issues at about the same time, but there was no credible evidence that those health problems were directly connected to the mold issue. Holder became a hold-over tenant at the house when her lease expired on July 31, 2010. In September 2010, Holder stopped making required payments under the lease. In November 2010, the City of Cocoa performed an inspection of the property and found some Class B violations. Those violations were deemed not to pose an immediate threat or danger to the life, health, safety or welfare of the tenants. The Daltons made repairs necessary to bring the house into conformance with required regulations. When the inspector went to the house with the Daltons, he heard Mrs. Dalton say that the tenants were dirty people. That comment was overheard by Holder's daughter. The Daltons filed an eviction action against Holder, but that action was ultimately dismissed as a result of a settlement between the parties dated March 24, 2011. Pursuant to the settlement, the Daltons waived all back rent from Holder. However, Holder was to commence paying rent again as soon as the Daltons replaced the carpet over the area where mold had been found. The carpet was replaced on March 27, 2011. On or about April 11, 2011, Holder moved out of the house.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a final order be entered by the Florida Commission on Human Relations dismissing the Petition for Relief filed by Verita Holder in its entirety. DONE AND ENTERED this 4th day of January, 2012, in Tallahassee, Leon County, Florida. S R. BRUCE MCKIBBEN Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 4th of January, 2012. 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 Hugh Dalton Betty Dalton Post Office Box 541564 Merritt Island, Florida 32954 Verita Holder Post Office Box 3032 Winter Haven, Florida 33885
The Issue The issue in this case is whether Respondent unlawfully discriminated against Petitioner on the basis of her religion or national origin in violation of the Florida Fair Housing Act.
Findings Of Fact Petitioner Tal Simhoni ("Simhoni"), a Jewish woman who identifies the State of Israel as her place of national origin, at all times relevant to this action owned Unit No. 212 in Mimo on the Beach I Condominium (the "Condominium"), which is located in Miami Beach, Florida. She purchased this unit in 2009 and a second apartment (Unit No. 203) in 2010. Simhoni has resided at the Condominium on occasion but her primary residence, at least as of the final hearing, was in New York City. The Condominium is a relatively small community consisting of two buildings comprising 28 units. Respondent Mimo on the Beach I Condominium Association, Inc. ("Association"), a Florida nonprofit corporation, is the entity responsible for operating and managing the Condominium and, specifically, the common elements of the Condominium property. Governing the Association is a Board of Directors (the "Board"), a representative body whose three members, called "directors," are elected by the unit owners. Simhoni served on the Board for nearly seven years. From July 2010 until April 2011, she held the office of vice- president, and from April 2011 until June 1, 2017, Simhoni was the president of the Board. Simhoni's term as president was cut short when, in May 2017, she and the other two directors then serving with her on the Board were recalled by a majority vote of the Condominium's owners. The Association, while still under the control of the putatively recalled directors, rejected the vote and petitioned the Department of Business and Professional Regulation, Division of Condominiums, Timeshares, and Mobile Homes ("DBPR"), for arbitration of the dispute. By Summary Final Order dated June 1, 2017, DBPR upheld the recall vote and ordered that Simhoni, Marisel Santana, and Carmen Duarte be removed from office, effective immediately. The run-up to the recall vote entailed a campaign of sorts to unseat Simhoni, which, as might be expected, caused friction between neighbors. Without getting into details that aren't important here, it is fair to say that, generally speaking, the bloc opposed to Simhoni believed that she had poorly managed the Condominium, especially in connection with the use of Association funds. Some of Simhoni's critics were not shy about voicing their opinions in this regard, which—— understandably——led to hard feelings. Simhoni vehemently disputes the charges of her critics and, clearly, has not gotten over her recall election defeat, which she blames on false, unfair, and anti-Semitic accusations against her. This is a case of alleged housing discrimination brought under Florida's Fair Housing Act (the "Act"). Specifically, Simhoni is traveling under section 760.23(2), Florida Statutes, which makes it "unlawful to discriminate against any person in the terms, conditions, or privileges of sale or rental of a dwelling, or in the provision of services or facilities in connection therewith, because of race, color, national origin, sex, handicap, familial status, or religion." (Emphasis added). The applicable law will be discussed in greater detail below. The purpose of this brief, prefatory mention of the Act is to provide context for the findings of fact that follow. The principal goal of section 760.23(2) is to prohibit the denial of access to housing based on discriminatory animus. Simhoni, however, was not denied access to housing. She is, in fact, a homeowner. Contrary to what some might intuit, the Act is not an all-purpose anti-discrimination law or civility code; it does not purport to police personal disputes, quarrels, and feuds between neighbors, even ugly ones tinged with, e.g., racial or religious hostility. To the extent the Act authorizes charges based on alleged post-acquisition discrimination, such charges must involve the complete denial of services or facilities that are available in common to all owners as a term or condition of ownership——the right to use common areas, for example, pursuant to a declaration of condominium. Moreover, the denial of access to common services or facilities logically must result from the actions of a person or persons, or an entity, that exercises de facto or de jure control over access to the services or facilities in question. This is important because, while Simhoni believes that she was subjected to anti-Semitic slurs during her tenure as Board president, the fact is that her unfriendly neighbors——none of whom then held an office on the Board——were in no position to (and in fact did not) deny Simhoni access to common services and facilities under the Association's control, even if their opposition to her presidency were motivated by discriminatory animus (which wasn't proved). As president of the Board, Simhoni wound up on the receiving end of some uncivil and insensitive comments, and a few of her neighbors seem strongly to dislike her. Simhoni was hurt by this. That impolite, even mean, comments are not actionable as unlawful housing discrimination under section 760.23(2) is no stamp of approval; it merely reflects the relatively limited scope of the Act. Simhoni has organized her allegations of discrimination under six categories. Most of these allegations do not implicate or involve the denial of common services or facilities, and thus would not be sufficient to establish liability under the Act, even if true. For that reason, it is not necessary to make findings of fact to the granular level of detail at which the charges were made. The Mastercard Dispute. As Board president, Simhoni obtained a credit card for the Association, which she used for paying common expenses and other Association obligations such as repair costs. In applying for the card, Simhoni signed an agreement with the issuer to personally guarantee payment of the Association's account. It is unclear whether Simhoni's actions in procuring this credit card were undertaken in accordance with the Condominium's By-Laws, but there is no evidence suggesting that Simhoni was forced, encouraged, or even asked to co-sign the Association's credit agreement; she seems, rather, to have volunteered. Simhoni claims that she used personal funds to pay down the credit card balance, essentially lending money to the Association. She alleges that the Association has failed to reimburse her for these expenditures, and she attributes this nonpayment to anti-Semitism. There appears to be some dispute regarding how much money, if any, the Association actually owes Simhoni for common expenses. The merits of her claim for repayment are not relevant in this proceeding, however, because there is insufficient persuasive evidence in the record to support a finding that the Association has withheld payment based on Simhoni's religion or national origin. Equally, if not more important, is the fact that Simhoni's alleged right to reimbursement is not a housing "service" or "facility" available in common to the Condominium's owners and residents. Nonpayment of the alleged debt might constitute a breach of contract or support other causes of action at law or in equity, but these would belong to Simhoni as a creditor of the Association, not as an owner of the Condominium. In short, the Association's alleged nonpayment of the alleged debt might give Simhoni good legal grounds to sue the Association for, e.g., breach of contract or money had and received——but not for housing discrimination. The Estoppel Certificate. On September 20, 2017, when she was under contract to sell Unit No. 212, Simhoni submitted a written request to the Association for an estoppel certificate, pursuant to section 718.116(8), Florida Statutes. By statute, the Association was obligated to issue the certificate within ten business days——by October 4, 2017, in this instance. Id. The failure to timely issue an estoppel letter results in forfeiture of the right to charge a fee for preparing and delivering the certificate. § 718.116(8)(d), Fla. Stat. The Association missed the deadline, issuing the certificate one-week late, on October 11, 2017; it paid the prescribed statutory penalty for this tardiness, refunding the preparation fee to Simhoni as required. Simhoni attributes the delay to anti-Semitism. It is debatable whether the issuance of an estoppel letter is the kind of housing "service" whose deprivation, if based on religion, national origin, or another protected criterion, would support a claim for unlawful discrimination under the Act. The undersigned will assume for argument's sake that it is such a service. Simhoni's claim nonetheless fails because (i) the very statute that imposes the deadline recognizes that it will not always be met and provides a penalty for noncompliance, which the Association paid; (ii) a brief delay in the issuance of an estoppel letter is not tantamount to the complete deprivation thereof; and (iii) there is, at any rate, insufficient persuasive evidence that the minimal delay in issuing Simhoni a certificate was the result of discriminatory animus. Pest Control. Pest control is not a service that the Association is required to provide but, rather, one that may be provided at the discretion of the Board. During Simhoni's tenure as Board president, apparently at her urging, the Association arranged for a pest control service to treat all of the units for roaches, as a common expense, and the apartments were sprayed on a regular basis. If the exterminator were unable to enter a unit because, e.g., the resident was not at home when he arrived, a locksmith would be summoned to open the door, and the owner would be billed individually for this extra service. After Simhoni and her fellow directors were recalled, the new Board decided, as a cost-control measure, to discontinue the pest control service, allowing the existing contract to expire without renewal. Owners were notified that, during the phaseout, the practice of calling a locksmith would cease. If no one were home when the pest control operator showed up, the unit would not be sprayed, unless the owner had left a key with the Association or made arrangements for someone else to open his door for the exterminator. By this time, Simhoni's principal residence, as mentioned, was in New York. Although she knew that the locksmith option was no longer available, Simhoni failed to take steps to ensure that the pest control operator would have access to her apartment when she wasn't there. Consequently, Simhoni's unit was not sprayed on some (or perhaps any) occasions during the phaseout. Simhoni blames anti-Semitism for the missed pest control visits, but the greater weight of the evidence fails to support this charge. Simhoni was treated the same as everyone else in connection with the pest control service. Moreover, Simhoni was not completely deprived of access to pest control, which would have been provided to her if she had simply made arrangements to permit access to her unit. Short-term Rentals. Article XVII of the Condominium's Declaration of Condominium ("Declaration"), titled Occupancy and Use Restrictions, specifically regulates leases. Section 17.8 of the Declaration provides, among other things, that the Association must approve all leases of units in the Condominium, which leases may not be for a term of less than one year. In other words, the Declaration prohibits short-term, or vacation, rentals, which are typically for periods of days or weeks. Short-term rentals can be lucrative for owners, especially in places such as Miami Beach that attract tourists who might be interested in alternatives to traditional hotel lodgings. On the flip side, however, short-term rental activity is not necessarily welcomed by neighboring residents, who tend to regard transients as being insufficiently invested in preserving the peace, quiet, and tidy appearance of the neighborhood. At the Condominium, the question of whether or not to permit short-term rentals has divided the owners into competing camps. Simhoni is in favor of allowing short-term rentals. Accordingly, while she was Board president, the Association did not enforce the Declaration's prohibition of this activity. (It is possible, but not clear, that the Association was turning a blind eye to short-term rentals even before Simhoni became a director.) This laissez-faire approach did not sit well with everyone; indeed, dissatisfaction with short-term rentals provided at least some of the fuel for the ultimately successful recall effort that cost Simhoni her seat on the Board. After Simhoni and the rest of her Board were removed, the new directors announced their intent to enforce the Declaration's ban on short-term rentals. Simhoni alleges that the crackdown on short-term rentals was an act of religion-based housing discrimination. Her reasoning in this regard is difficult to follow, but the gist of it seems to be that the Association is selectively enforcing the ban so that only Simhoni and other Jewish owners are being forced to stop engaging in short-term rental activity; that the prohibition is having a disparate impact on Jewish owners; or that some owners are harassing Simhoni by making complaints about her to the City of Miami Beach in hopes that the City will impose fines against her for violating municipal restrictions on short-term rentals. The undersigned recognizes that a neutral policy such as the prohibition of short-term rentals conceivably could be enforced in a discriminatory manner, thus giving rise to a meritorious charge under the Act. Here, however, the evidence simply does not support Simhoni's contentions. There is insufficient evidence of disparate impact, disparate treatment, selective enforcement, harassment, or discriminatory animus in connection with the Association's restoration of the short-term rental ban. To the contrary, the greater weight of the evidence establishes that the Association is trying to stop short-term rentals at the Condominium for a perfectly legitimate reason, namely that a majority of the owners want section 17.8 of the Declaration to be given full force and effect. The Feud with Flores. Simhoni identifies Mr. and Ms. Flores as the worst of her antagonists among her neighbors. As advocates of the recall, these two were fierce critics of Simhoni. The Floreses reported Simhoni to the City of Miami Beach for engaging in short-term rentals without the required business tax receipt, in violation of the municipal code. At a code enforcement hearing, Mr. Flores gave Simhoni the finger. None of this, however, amounts to housing discrimination because the Floreses' actions did not completely deprive Simhoni of common facilities or services, even if such actions were motivated by anti-Semitism, which the greater weight of the evidence fails to establish. Indeed, there is no persuasive evidence that the Floreses ever had such control over the Condominium's facilities or services that they could have denied Simhoni access to them. Simhoni argues in her proposed recommended order, apparently for the first time, that the Floreses' conduct created a "hostile housing environment." Putting aside the legal problems with this belatedly raised theory, the Floreses' conduct was not sufficiently severe and pervasive, as a matter of fact, to support a "hostile environment" claim. Nor is there sufficient persuasive evidence in the record to support a finding that the Floreses acted in concert with the Board to harass Simhoni, or that the Board acquiesced to the Floreses' conduct. Roof Repairs. Simhoni alleges that the Association failed to repair the area of the roof over her unit, which she claims was damaged in Hurricane Irma, and that the Association has refused to make certain repairs inside her unit, which she asserts sustained interior water damage as a result of roof leaks. Simhoni asserts that, using Association funds, the Association not only repaired other portions of the roof, but also fixed interior damages similar to hers, for the benefit of non-Jewish owners. The greater weight of the persuasive evidence shows, however, that the roof over Simhoni's unit is not damaged, and that the Association never instructed the roofing contractor not to make needed repairs. Simhoni, in short, was not denied the service of roof repairs. As for the alleged damage to Simhoni's unit, section 7.1 of the Declaration provides that repairs to the interior of a unit are to be performed by the owner at the owner's sole cost and expense. The evidence fails to establish that the interior damage of which Simhoni complains falls outside of her duty to repair. Because this is a housing discrimination case, and not a legal or administrative proceeding to enforce the terms of the Declaration, it is neither necessary, nor would it be appropriate, for the undersigned to adjudicate fully the question of whether the Association is obligated to repair Simhoni's unit as a common expense. Here, it is sufficient to find (and it is found) that section 7.1 of the Declaration affords the Association a legitimate, nonpretextual, nondiscriminatory reason to refuse, as it has, to perform the interior repairs that Simhoni has demanded.
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 Simhoni no relief. DONE AND ENTERED this 26th day of February, 2019, in Tallahassee, Leon County, Florida. S 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 26th day of February, 2019.
The Issue The issue in this case is whether Respondent, Christina Viering, discriminated against Petitioner, Bahiyyih Watson, on the basis of Watson's race and/or religion in violation of the Florida Fair Housing Act.
Findings Of Fact Petitioner, Bahiyyih Watson ("Watson") is a light-skinned Black American3/ female. Watson is an adjunct professor at Valencia Community College, where she teaches cultural anthropology. Watson holds a Ph.D. in anthropology. Watson practices the religion known as Yoruba, which has a tradition of Orishas and places a great emphasis on ancestors. The religion emphasizes African traditions and a respect for elders as well. At all times relevant hereto, Watson was residing in a house at 1830 Dover Road, Winter Park, Florida (the "House"). The House is owned by Respondent, Christina Viering ("Viering"). The House is a three-bedroom house in a residential neighborhood. It has a dining room, living room, kitchen and sun room, each of which was considered a common area for all residents. On August 2, 2008, Watson and Viering entered into a legal document erroneously entitled, "Assignment of Lease" (hereinafter the "Lease"), which called for Viering to rent a room in the House. The Lease has a term of six months, i.e., from August 30, 2008, until February 28, 2009. Viering identified the Lease as a month-to-month lease, but there is no language in the Lease to confirm that description. There is a document attached to the Lease entitled, "Tenant Policies," setting forth various issues relating to the Lease. The attachment contains a provision which states: "MONTH TO MONTH LEASE TERMINATING WITH PROPER NOTICE. WHEN TERMINATING YOUR LEASE, A 30 DAY WRITTEN NOTICE IS REQUIRED." The provision does not explain how it would be interpreted in contravention of the plain language of the Lease. There is nothing in the Lease specifying a particular room for Watson, but the parties testified that Watson occupied the bedroom with a bath, presumably the master suite. The Lease did not identify a specific room for Viering. Viering testified that she resided at the House during the term of the Lease between her and Watson, but did not sleep there every night. Watson said Viering never slept at the House while she, Watson, was there. One neighbor who lived across the street said she believed Viering lived at the House during the time Watson lived there. Another neighbor said she never saw Viering's car at the House overnight and only rarely during the day. The greater weight of the evidence suggests that Viering was at the House only sporadically and probably did not reside there as a residence. At the time Watson signed the Lease, she was working as an adjunct professor at Valencia Community College. She was in the process of submitting an application, including extensive paperwork, to become a tenured professor at the University of South Florida. The application process was intense and required considerable concentration and attention to detail to complete. The application was the most important matter in Watson's life at that time. One of her reasons for selecting the House as a residence was because it was on a quiet street and appeared to be a place where she could work without major distractions. Viering was made aware of this situation. On or about March 17, 2008, another resident, Abbey Nichols, moved into one of the other bedrooms in the House. On October 17, 2008, yet another resident, Kristen Bryan, moved into the third bedroom. Both of the two new tenants were young (twenty-ish) Caucasian women who were of the Christian faith. Each of the new tenants entered into an agreement identical to the Lease, but with different dates of residency. The two new tenants were not inclined to help Watson clean or maintain the House. Viering testified that she slept overnight at the House only two or three times a month. When she slept there, she slept in the Florida room at the rear of the House. The washer and dryer were located in the Florida Room. Again, Watson does not remember Viering ever staying overnight at the House, taking her meals there, or otherwise treating it as her place of residence. Landlord-Tenant Disputes Almost immediately upon Watson taking residence in the House, she and Viering began to have disputes about various and sundry issues. For example: Watson complained that Viering was moving her personal belongings around; Viering said she only moved items off the kitchen table so that she could wash the tablecloth. Watson said that Viering had thrown away some of Watson's kitchenware; Viering said she threw away a styrofoam cup when she was cleaning the kitchen. The disputes soon escalated. On September 17, 2008, less than one month into the six-month lease, Viering sent Watson a notice to vacate the premises within 30 days. The parties must have worked out an agreement, however, because Watson remained in the House after the proffered termination date. The relationship between Viering and Watson, however, did not improve. They continued to disagree about things and communication between the two seemed quite strained. On or about November 8, 2008, Viering went to the House to check on a leak which had been reported. A neighbor from across the street, Ms. Wilson, accompanied her as she looked around the House. Viering testified under oath that while doing the inspection, she noticed mail in Watson's room that appeared to belong to Viering. When she inspected the mail and determined that it belonged to her, Viering was concerned about possible identity theft. Viering then went to the local post office and requested an address change so that her mail would not go to the House. Wilson remembers the event somewhat differently: She says that Viering said she (Viering) believed Watson had some of her mail and wanted to go into the room to check. Watson saw Viering take some mail that she claimed belonged to her, but Watson never personally identified the names on the letters. Watson denies ever having mail that belonged to Viering. The only certain fact concerning this situation was that Viering did go into Watson's room and retrieved some mail. It is not certain who the mail belonged to or whether Viering identified the mail as hers before going into Watson's room. Plumbing Problems Two days later, one of the tenants reported to Viering that the plumbing at the House was stopped up. Viering told the tenants that it was their responsibility to call a plumber and get the stoppage cleared up. She took this stance because, some ten years prior, some of Viering's tenants had flushed items down the toilet, causing a back-up in the plumbing. Viering believed her current tenants had done the same. One of the young tenant's fathers then called Viering and suggested that the plumbing problem could be caused by roots growing into the pipes, and, if so, then the problem would be the landlord's responsibility. Viering agreed then to call the plumber herself. Jamaal Crooks, a plumber working for Bryan Plumbing, came to the House on November 14, 2008, to work on the problem. He went into the House, but only into the hallway bathroom. He did not enter Watson's room or the bathroom in her room. Crooks then went outside and used a cable to reach inside the main sewer line. He pulled three tampons out of the line, thus, clearing the blockage. Crooks could not say if there were more tampons in the line at that time, but the ones he removed were sufficient to allow the sewage to flow. Crooks apparently gave Viering a bill for his services at that time. The amount on the bill was $178.00. Viering demanded that Watson pay the bill or that she at least pay her one-third share. Viering did not believe she should share in the cost, because she was not staying at the House on a permanent basis. That testimony contradicts her statements that she was at the House regularly and that it was her residence at that time. Watson refused to pay the bill, because she did not feel responsible for the stoppage. Some six days later, Bryan Plumbing issued another invoice in the amount of $178.00. The invoice included a note that said, "Tenant refused to pay bill. Christina was present the whole time." It is unclear from the testimony why this invoice was issued if a bill had been presented on the day of service. Viering ultimately paid the plumbing bill and asked each of her tenants to pay a portion of it. Watson said the plumbing worked for only four or five hours after Crooks left the premises. Viering says the plumbing was working for up to a week. It is clear the plumbing problem was not totally resolved. When a tenant would attempt to shower or flush the toilet, sewage would back up into the bathtub and shower stall. The tenants were afraid to drink water from the faucet because they did not know if it was contaminated or not. As will be discussed below, the two Caucasian tenants left the House soon after the November 14, 2008, plumbing issue. Watson, who could not afford to move and had no friends or family with space to accommodate her, remained at the House. There was no working toilet, so Watson had to find other means of performing daily hygiene. She would bathe as well as possible at local stores or gas stations. She would drive to stores to use their restrooms. At night when the stores were closed, she would reluctantly go into the backyard and dig a hole to use as a latrine. By that time she was becoming physically ill from all the stress. When she needed to vomit, she would have to use the hole in the ground for that purpose as well. Watson endured this situation for almost three weeks before finally finding another place to live. On December 19, 2008, a little over a month after the initial plumbing problem, Crooks came back to the House to fix the plumbing again. By that time, all three tenants, including Watson, had already moved out of the House. Although Crooks had no independent recollection of being at the House on that date, he identified a written statement he had made on that date saying he had "found more tampons in line [sic]." Crooks could not say if the tampons were left over from the prior visit, but inasmuch as the plumbing was not working in the interim, that is probable. Notices to Vacate On November 12, 2008, just two days after receiving her initial notice about the plumbing problem, Viering gave all three tenants a Lease Violation Warning setting forth certain alleged violations and giving the tenants three days to come into compliance. Two days later, on the day the plumbing was initially fixed, Viering gave each tenant a 30-day notice to vacate the premises. The basis for the notices, as set forth in another letter from Viering to the tenants, was that a police officer had advised her that she should evict the three tenants. Viering said that action was "radical" and that she opted for a 30-day notice of termination of the Leases instead. On the same day she gave the tenants the 30-day notice, she gave each of them a seven-day notice which specified lease violations. The notice to Bryan set forth the following violations: Failure to maintain plumbing Failure to pay share of utilities and repairs Unauthorized guests on property Unauthorized overnight guests Harassment by unauthorized guests Disturbing the peace Failure to maintain sanitary conditions The notice to Nichols set forth very similar violations, to wit: Failure to maintain premises in a sanitary manner Negligent use of plumbing Failure to pay plumbing repair Unauthorized guests on the property Unauthorized overnight guests on the property Destruction of property belonging to the landlord or permitting another person do so The notice given to Watson contained the following alleged violations: Failure to maintain plumbing Failure to comply with payments due [sic] Share of utilities to be paid Share of repair to plumbing Disposal of garbage in sanitary manner Maintaining the premises in sanitary condition Unauthorized overnight guests on a regular basis Harassment to me by yourself and guests On the same date that Viering gave the tenants their seven-day notices and 30-day termination notices, she gave Watson two additional letters: One was a letter advising Watson that her security deposit amount was being increased by an additional $100.00; the second was a demand to have Viering's dresser (which Watson was using) ready to be picked up on the upcoming weekend. Religious Controversy The rash of notices on November 14, 2008, indicates some irrationality on Viering's part. It also indicates that the landlord-client relationship was not working effectively. On that same day, Watson called the police to report Viering for harassment. While waiting for the police, Watson went into the backyard to avoid contact with Viering. Viering, however, came into the backyard and confronted Watson. Watson remembers Viering coming toward her with something in her hand, raised above her head. Viering was chanting some incantations and acting bizarre. Viering remembers only that she wanted to talk to Watson and was going to use her cell phone to videotape Watson as she talked. As she approached Watson, she recited the Lord's Prayer to cover herself with God's protection.4/ On November 15, 2008, one day after the aforementioned notices, Viering posted a Notice of Non-Renewal at the House, advising Nichols that her lease would not be renewed and that Nichols must vacate the premises no later than December 1, 2008. On that same day, Viering cut out cross-shaped designs from some magazines and posted them around the House. Viering did so as a part of her Christian religious beliefs, thinking there was "evil" in the House and hoping to eradicate it. When Watson took the crosses down because she considered them offensive, Viering made replacement crosses. Watson says Viering used paper from Watson's room to make the crosses; Viering says she used liner paper from her dresser and a Home Depot catalogue. The crosses were placed on various windows around the House. Watson states that she sent Viering a letter complaining that the crosses were traumatizing to her as a black woman. Viering does not remember any complaint from Watson about the crosses. Watson's written missive to Viering on this subject could not be produced. Watson says she also left voice messages on Viering's telephone. Viering said that she does not remember any such message, but since Watson sent her so many text and emails that were harassing in nature, Viering would frequently delete messages before reading them. The following day, Sunday, November 16, 2008, Viering returned to the House and put up wooden crosses in the front flower beds. She also painted black crosses on each slat of the privacy fence behind the House and on some windows in the House. The crosses were accompanied by messages such as, "The pure white light of Christ" and other inspirational sayings from Viering's Christian literature. The black crosses were crudely painted using a paper towel because Viering could not find a paint brush. Watson arrived home after dark and found the large cross in the front yard and the crosses painted on all the windows, which frightened her, so she asked a male neighbor to accompany her into the House to make sure no one was there. Inside the House, there were numerous crosses painted on windows and doors. All of this made Watson extremely frightened, so she called the police. She was told that unless the crosses were on fire, they could not investigate. Additional Disputes On November 17, 2008, Viering provided additional notices to the tenants: Watson was advised that her bedroom would be inspected, that she should return all items that were not her property, and that she should remove her property from the common areas of the House. Bryan received yet another Notice of Termination, effective immediately. Both Bryan and Nichols moved out of the House shortly thereafter. At some point, Watson remembers receiving a written notice telling her to vacate within seven days. The reason for the notice was that Viering had gotten into a confrontation with a black woman outside the House and presumed that the woman was Watson's friend. In fact, the woman was the mother of one of Bryan's friends.5/ Viering had borrowed a bicycle off the front porch of the House. The bike belonged to a young man who was visiting Bryan, and he thought someone had stolen the bike. The young man's mother accosted Viering for taking the bike without asking. That altercation appears to have been the genesis of the notice to Watson. On November 19, 2008, Watson contacted the Seminole County Sheriff's Office and filed a complaint against Viering. The complaint was for harassment and violation of landlord- tenant laws. Watson also contacted every state agency she could think of to seek some sort of redress from the conditions she was living in. She called, by her account, the Public Works department, the Utilities Commission, Health and Safety, and Sanitation, to name a few. None of the agencies acknowledged jurisdiction over the matter. On December 9, 2008, Viering received a letter from a local television station stating that a consumer had filed a complaint alleging denial of basic services by Viering. Thereafter, the television station broadcasted a consumer human-interest story concerning Watson's plight. At some point in time, Watson filed a Petition for Temporary Injunction against Viering, claiming some sort of violence by Viering. The Injunction proceeding was dismissed on January 6, 2009, when Watson failed to appear at the court hearing on the matter. By that date, Watson was no longer residing at the House. On or about November 30, 2008, Watson had vacated the House, ending the relationship between herself and Viering. Watson alleges discrimination based on her race due to the fact that she received more notices than the other (Caucasian) tenants from Viering. However, Watson was the longest serving tenant and had the most interaction with Viering, so there is no way to establish discrimination based solely on the number of notices. Watson alleges religious discrimination based on the bizarre behavior of Viering, such as placing crosses and religious sayings around the House, chanting the Lord's Prayer or other incantations, and referencing evil in the House. However, there is no persuasive evidence that Viering was aware of Watson's religion, Yoruba. Although Viering was in Watson's room on occasion and must have seen Watson's shrines, there is no evidence that Viering was aware of what the shrines stood for. Watson claims discrimination based on the fact that Viering was less tolerant of her than of the white, Christian tenants. The other tenants did not testify at final hearing, so it is impossible to compare their treatment to Watson's. Viering clearly acted in a very strange and unusual fashion. She was not a pleasant landlord. However, her actions appear to be based on her own personality and demeanor, rather than on any intent to discriminate based on race or religion.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a final order be entered by the Florida Commission on Human Relations dismissing the Petition for Relief filed by Bahiyyih Watson in its entirety. DONE AND ENTERED this 11th day of May, 2011, in Tallahassee, Leon County, Florida. S R. BRUCE MCKIBBEN Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 11th day of May, 2011.
The Issue The issues are whether Respondent engaged in a discriminatory housing practice by allegedly excluding Petitioner from participating in a homeowner’s meeting on January 14, 2009, or ejecting Petitioner from the meeting, based on Petitioner’s religion and alleged handicap, in violation of Section 760.37 and Subsections 760.23(2), 760.23(8), 760.23(8)(2)(b), and 784.03(1)(a)(l), Florida Statutes (2008),1 and, if not, whether Respondent is entitled to attorney fees and costs pursuant to Section 120.595, Florida Statutes (2009).
Findings Of Fact Respondent is a condominium association defined in Section 718.103, Florida Statutes. Respondent manages a condominium development, identified in the record as Tregate East Condominiums (Tregate). Tregate is a covered multifamily dwelling within the meaning of Subsection 760.22(2), Florida Statutes. Petitioner is a Jewish male whose age is not evidenced in the record. A preponderance of the evidence presented at the final hearing does not establish a prima facie case of discrimination on the basis of religion, ethnicity, medical, or mental disability, or perceived disability. Rather, a preponderance of the evidence shows that Respondent did not discriminate against Petitioner in the association meeting on January 14, 2009. In particular, the fact-finder reviewed the videotape of the entire meeting that took place on January 14, 2009. The meeting evidenced controversy, acrimony, and differences of opinion over issues confronting the homeowners present. However, the video tape did not establish a prima facie case of discrimination based on Petitioner’s religion, ethnicity, or alleged handicap. Respondent seeks attorney’s fees in this proceeding pursuant to Section 120.595, Florida Statutes (2009). Pursuant to Subsection 120.595(1)(c), Florida Statutes (2009), this Recommended Order finds that Petitioner has participated in this proceeding for an improper purpose. Petitioner participated in this proceeding for a frivolous purpose within the meaning of Subsection 120.595(1)(e)1., Florida Statutes (2009). The evidence submitted by Petitioner presented no justiciable issue of fact or law. Petitioner provided no evidence to support a finding that he suffers from a handicap defined in Subsection 760.22(7), Florida Statutes. Petitioner claims to have a disability based on migraine headaches but offered no medical evidence to support a finding that Petitioner suffers from migraine headaches or any medical or mental disability. Petitioner’s testimony was vague and ambiguous, lacked precision, and was not specific as to material facts. Petitioner called four other witnesses and cross-examined Respondent’s witnesses. Petitioner’s examination of his witnesses and cross-examination of Respondent’s witnesses may be fairly summarized as consisting of comments on the answers to questions and argument with the witnesses. Petitioner repeatedly disregarded instructions from the ALJ not to argue with witnesses and not to comment on the testimony of a witness. Petitioner offered no evidence or legal authority that the alleged exclusion from the homeowners meeting on January 14, 2009, was prohibited under Florida’s Fair Housing Act.3 Petitioner offered no evidence that he is a “buyer” or “renter” of a Tregate condominium within the meaning of Section 760.23, Florida Statutes. Rather, the undisputed evidence shows that Petitioner is not a buyer or renter of a Tregate condominium. Petitioner attended the homeowners meeting on January 14, 2009, pursuant to a power of attorney executed by the owner of the condominium. If a preponderance of the evidence were to have shown that the owner’s representative had been excluded from the meeting, the harm allegedly prohibited by the Fair Housing Act would have been suffered vicariously by the condominium owner, not the non-owner and non-renter who was attending the meeting in a representative capacity for the owner. The condominium owner is not a party to this proceeding. A preponderance of the evidence does not support a finding that Petitioner has standing to bring this action. Petitioner was neither an owner nor a renter on January 14, 2009. Petitioner’s only legal right to be present at the meeting was in a representative capacity for the owner. The alleged exclusion of Petitioner was an alleged harm to the principal under the Fair Housing Act. Respondent is the prevailing party in this proceeding, and Petitioner is the non-prevailing party. Petitioner has participated in two or more similar proceedings involving Respondent. The parties resolved those proceedings through settlement. The resolution is detailed in the Determination of No Cause by the Commission and incorporated herein by this reference. Respondent seeks attorney’s fees totaling $3,412.00 and costs totaling $1,001.50. No finding is made as to the reasonableness of the attorney fees costs because Respondent did not include an hourly rate and did not submit an affidavit of fees and costs. However, the referring agency has statutory authority to award fees costs in the final order pursuant to Subsection 760.11(7), Florida Statutes.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Florida Commission on Human Relations enter a final order dismissing the Petition for Relief and requiring Petitioner to pay reasonable attorney’s fees and costs in the amounts to be determined by the Commission after hearing further evidence on fees and costs in accordance with Subsection 760.11(7), Florida Statutes. DONE AND ENTERED this 15th day of April, 2010, in Tallahassee, Leon County, Florida. S DANIEL MANRY Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 15th day of April, 2010.
