The Issue Whether Petitioners, Miryam Hathaway and Benjamin Hathaway, were subject to a discriminatory housing practice by Respondents, Gerlinde 1 All statutory references are to Florida Statutes (2019), unless otherwise noted. Wermuth and Horst Wermuth, based on a handicap, in violation of Florida's Fair Housing Act.
Findings Of Fact Petitioners own a condominium in Parkway Villas Condominiums ("Parkway Villas") located in Bradenton, Florida. Petitioners have lived in Parkway Villas since 2012. Parkway Villas, as described by Petitioner, Mrs. Hathaway, is a "nice elderly community" of 225 units.5 Parkway Villas is governed by the Parkway Villas Condominium Association, Inc. (the "Association"), a homeowners' association formed in approximately 1970. At the final hearing, Mrs. Hathaway testified that she suffers from a physical disability from a work injury that occurred many years ago. Supporting this claim, Mrs. Hathaway produced several medical records documenting an issue with her right shoulder and elbow, specifically acromioclavicular ("AC") joint arthropathy, which includes tendinosis, tendinopathy, and a partial tendon tear. Mrs. Hathaway asserts that this 3 By requesting a deadline for filing post-hearing submissions beyond ten days after the transcript filing date, the 30-day time period for filing the recommended order was waived. See Fla. Admin. Code R. 28-106.216(2). 4 Petitioners subsequently filed a document on September 10, 2020, which was not considered. 5 Petitioner Benjamin Hathaway did not participate in the final hearing. Nor did Petitioners produce any evidence regarding the discrimination claim he is pursuing against Respondents, or a specific disability from which he suffers. Consequently, when evaluating Petitioners’ allegations and cause of action in this FHA matter, any reference to "Petitioners" only concerns the representations and testimony of Miryam Hathaway. condition causes her chronic pain, and she has difficulty lifting more than five pounds with her right arm. Mrs. Hathaway also expressed that she suffers from depression, high blood pressure, and hypertension. Mrs. Hathaway claims that from approximately January 2018 through July 2019, Respondents (the "Wermuths") discriminated against her based on her disability by denying her the use and enjoyment of certain community amenities (the Association's pool), and then failing to make a reasonable accommodation to enable her to use those amenities.6 The Wermuths also reside in Parkway Villas. Gerlinde Wermuth is currently President of the Association's Board of Directors. Mrs. Wermuth served as Board President during all times relevant to Petitioners' FHA claim. Horst Wermuth is Gerlinde Wermuth's husband. Mr. Wermuth, however, has never served or held any position on the Association Board. The Association's Board of Directors has seven members. All Board members are residents of Parkway Villas. All Board action requires at least four affirmative votes of its members. The Board may not take any action without a quorum of four members. Petitioners point to Mrs. Wermuth as the primary perpetrator of the alleged wrongdoing based on her position as Board President. Petitioners contend that Mrs. Wermuth has severely abused her authority and mistreated Mrs. Hathaway for years. Petitioners' issues raised in this matter began in April 2016. That month, Petitioners applied to the Board for approval to enlarge the patio 6 Petitioners also alleged in their complaint filed with the Commission that Mrs. Hathaway, who is from Columbia, South America, was discriminated against based on her race and national origin, as well as retaliation. However, no evidence in the record supports a claim that the Wermuths took any actions or supported any Board decisions that were motivated by Mrs. Hathaway’s race or national origin or in retaliation for a protected activity. Petitioners further allege that the Wermuths committed a number of non-FHA indiscretions, which are not considered in this administrative proceeding, including abuse of power, defamation, elder abuse, emotional distress, extortion, intimidation, and invasion of privacy. outside their back door. Petitioners included with their application specific plans, diagrams, and measurements to allow the Board to determine whether the patio would fit within the community's aesthetics. The Board approved the patio construction on May 1, 2016, and Petitioners proceeded to construct their patio. On December 14, 2017, several Board members and unit owners, including Mrs. Wermuth, trooped across the Parkway Villas property inspecting the community for potential "Carport/Patio Violations." According to Mrs. Wermuth, the Board regularly surveys the grounds to ensure consistent compliance with the Association's Policies, Rules, and Regulations ("Association Rules"). Petitioners, as residents and owners of a Parkway Villas dwelling, are members of the Association and subject to the Association Rules. The survey revealed approximately 60 potential violations of the Association Rules. Thereafter, the Board determined that 23 of those potential violations warranted sending the unit owner a notice letter. Included on this list was Petitioners' unit (#115), about which was recorded "patio not approved." The Board determined that Petitioners' newly constructed patio departed from the plans that the Board reviewed and approved in May 2016.7 Following a Special Board Meeting held on January 5, 2018, the Board notified Petitioners of their findings. The Board warned Petitioners that they faced a fine of up to $1,000 unless they brought "their patio up to the agreed upon specifications." Petitioners were advised that they could appear before the Board's Compliance Committee on January 31, 2018, "to explain why you feel a fine should not be imposed." 7 Association Rules, General Rules number 3, states: "Villa owners must obtain written Board approval before constructing add-ons, patios, or making any alterations to the common element." On January 31, 2018, the Compliance Committee, of which Mrs. Wermuth is not a member, convened to review the status of the 23 violations identified in the survey done the previous December. By the time of the meeting, Petitioners were the only unit owners who had not voluntarily corrected their violation. At the Compliance Committee meeting, Petitioners acknowledged that the patio they constructed differed from the design they submitted in April 2016. Primarily, their patio exceeded the dimensions shown in the previous design and exceeded standard dimensions acceptable to the Board. The Board allowed Petitioners until March 31, 2018, to adjust the size of their patio. The Board also offered to work with Petitioners to bring their patio into compliance. At the final hearing, Mrs. Hathaway readily agreed that Mrs. Wermuth was very helpful in this process. Mrs. Hathaway relayed that Mrs. Wermuth made several welcomed suggestions advising how Petitioners could arrange their plants, and how to adjust uneven stone pavers. In the meantime, on February 1, 2018, Mrs. Hathaway requested a private meeting with three Board members, including Mrs. Wermuth. During this gathering, Mrs. Hathaway revealed that Petitioners had installed an "emergency" half bathroom in their condominium in January 2016 without the Board's knowledge. The Board later learned that the construction of the bathroom involved cutting through the concrete foundation of Petitioners' unit to connect the bathroom's pipes and plumbing to the Association's sewer system, as well as other significant plumbing and electrical work. Further, Petitioners never obtained the appropriate permits from Manatee County for the project, and the bathroom was constructed by an unlicensed contractor. In addition, Petitioners had taken a number of broken chunks of concrete from the unit's foundation and were using them as "decorative stones" around the plants on their patio, which the Association Rules prohibit. On March 12, 2018, the Board voted to impose three separate fines on Petitioners for violating Association Rules, one for installing a bathroom without Board approval, one for constructing the patio contrary to the approved design, and one for placing the concrete chunks, as well as hanging wind chimes, adjacent to their patio.8 The Board also suspended Petitioners from using the community common areas, which included the laundry room, the clubhouse, the exercise facilities, the showers, and the pool. On March 28, 2018, the Compliance Committee met during a Special Board Meeting to consider Petitioners' multiple violations. During the meeting, the Compliance Committee found that Petitioners, as of that date, had properly reduced the size of their patio. The Compliance Committee also recognized that Petitioners had removed the concrete chunks and wind chimes from their patio area. Thereafter, the Compliance Committee voted to eliminate all fines imposed for those two violations. Regarding the bathroom, however, the Compliance Committee concluded that the unapproved installation was too significant to overlook. The Compliance Committee was concerned that the structural alterations and plumbing necessary to construct Petitioners' new bathroom might have compromised the unit's infrastructure and potentially damaged the neighbor's adjoining unit. Consequently, the Compliance Committee upheld a fine of $1,000 for that violation. Mrs. Wermuth abstained from any vote on the matter. In addition to the $1,000 fine, the Board upheld the suspension of Petitioners' use of Association amenities and common areas, including the clubhouse, exercise room, laundry room, and community pool. The suspension was to remain in effect until Petitioners paid the $1,000 fine and until Manatee County inspected the bathroom's construction and deem it sufficient 8 The Parkway Villas Combined Amended and Restated Declaration of Condominium, section 9.3, directs that: "The Villa Owner shall be required to inform the Board in writing of any electrical, plumbing, or structural changes." for permitting, as well as Petitioners' payment, in full, of any outstanding fine (the $1,000). The Board decided that any unauthorized use of the common areas by Petitioners during the suspension period would result in additional fines. The Board formally notified Petitioners of its decision by letter dated March 29, 2018, and signed by Mrs. Wermuth. The letter expressly stated that any violation of the suspension from using the common areas "will be considered a separate finable violation of the association's condominium documents," which would have to be paid in full prior to restitution of full use. Sometime around March 2018, Petitioners took steps to have their bathroom appropriately inspected. Unlike her experience with the patio modifications, however, Mrs. Hathaway testified that Mrs. Wermuth was most unhelpful in this process. Mrs. Hathaway charged that Mrs. Wermuth ordered her to obtain inspections from both an electrician and a plumber. Based on this imperative, Petitioners proceeded to pay an electrician, a plumber, as well as a professional engineer to inspect their bathroom. They also contacted Manatee County to acquire the appropriate building permits. Petitioners ultimately secured several reports confirming that the bathroom was competently constructed, as well as a Certificate of Completion from Manatee County indicating that the bathroom complied with applicable building code requirements. (The evidence adduced at the final hearing was unclear as to exactly when Petitioners presented the results of these inspections to the Board. Mrs. Hathaway urged that she provided all the information to the Board before the March 29, 2018, Board meeting, and produced a bill from a plumber dated March 8, 2018. However, the building permit Petitioners received from Manatee County was not issued until April 3, 2018. More significantly, as described below, the Board did not consider the inspection results until well over a year later in July 2019.) On April 2, 2018, Petitioners paid the $1,000 fine to the Board for the unapproved construction of their half bathroom. Petitioners subsequently appeared before the Board in April and May 2018, to contest paying the fine, as well as the imposition of the suspension. Notably, at neither of these meetings did Petitioners specifically request an accommodation to allow Mrs. Hathaway to use the community pool while their dispute was pending the Board's review. Neither did they express Mrs. Hathaway's desire to use the pool in relation to a disability. Following Petitioners' payment of the $1,000 fine in April 2018, Mrs. Hathaway began using the pool. (In fact, the evidence indicates that she never stopped using the pool.) However, because the Board had not yet conducted its review of the bathroom inspections and permits, her suspension from accessing the common areas remained in effect. The Board later addressed Petitioners' violations during a meeting on April 23, 2018. At that time, the Board noted that Petitioners had not provided any paperwork demonstrating that their new bathroom had been proficiently constructed. Therefore, the Board moved to require Petitioners to have a licensed plumber inspect the connection between their bathroom and the Association's sewer line, and also to have a licensed electrician inspect the electrical work. Thereafter, Mrs. Wermuth, in her role as Board President, directed the Board Secretary to prepare a letter notifying Petitioners that, while the inspections remained outstanding, they faced a "$50 per day fine for violating the suspension from use of the clubhouse and pool areas." The letter, dated April 25, 2018, also alerted Petitioners that their current fine totaled $500, and further warned Petitioners that if they persisted "in using the pool and clubhouse areas before [the Board has] removed the suspension and approved your half-bath project, the fine may increase to the maximum of $1,000. The suspension will not be lifted until fines are paid in full." At the final hearing, Mrs. Wermuth explained that the Board imposed the fine to motivate Petitioners to comply with the Board's request as quickly as possible. However, once Petitioners proved that their bathroom adhered to Association Rules, Mrs. Wermuth represented that the Board fully intended to set aside the penalties. Despite her suspension, Mrs. Hathaway continued to regularly (perhaps daily) use the Association pool. Mrs. Hathaway explained that several medical professionals had advised her that the joint pain in her right shoulder and arm would benefit from physical therapy in the pool. To support her testimony, Mrs. Hathaway produced a doctor's letter from May 2017, which recommended that she "would benefit from use of the community pool to assist in her joint pain therapy." A year later in May 2018, Mrs. Hathaway visited a local hospital emergency room complaining of pain. Upon her discharge, the physician told her that using the pool "would assist with [her] joint pain therapy." Mrs. Hathaway credibly testified that, in May 2018, she provided both the doctor's letter and the discharge instructions to a member of the Association Board (not Mrs. Wermuth). However, Mrs. Hathaway admitted that, other than passing on these two documents, she did not communicate directly or indirectly with any Board member about her disability or health. Neither does the evidence establish that Mrs. Hathaway furnished these documents to the Board for the Board's consideration. More pertinently, Mrs. Hathaway conceded she never directly delivered these documents to either Mrs. or Mr. Wermuth. During her testimony, Mrs. Hathaway also described an incident on October 20, 2018, when she was exercising in the pool. (Mrs. Hathaway was still suspended from accessing the community's common areas.) That day, another Parkway Villas Board member (not Mrs. Wermuth) "viciously" yelled at her and demanded to know why she was using the pool when she was not allowed to be there. When Mrs. Hathaway did not exit the pool in a timely fashion, the resident called the Manatee County Sheriff's Office, who responded to the scene. The sheriff registered the complaint, but did not arrest Mrs. Hathaway. Petitioners never paid the fine for Mrs. Hathaway's unauthorized use of the pool during her suspension, which eventually reach the maximum amount of $1,000. Mrs. Hathaway explained that Petitioners felt that paying anything beyond the initial fine of $1,000 for the unapproved bathroom installation was "extortion" and simply not fair. Finally, on June 26, 2019, Petitioners sent a letter to the Board requesting the Board reconsider the outstanding sanction. The letter, addressed to Mrs. Wermuth, specifically expressed: [W]e would like to know when the sanctions no to use pool – fitness – laundry – comun [sic] areas that you ordered last year 3-26/18 after we paid $1,000 fine and present to you all the documentation from Manatee County 3-26/18 following the regulation's to instaled [sic] 1/2 bath on January 2016 and was approved with all Professional Plumbing – Electrician etc. On July 1, 2019, the Board held a Special Board Meeting to consider Petitioners' request. During the meeting, the Board determined that Petitioners had presented sufficient proof that their bathroom was installed in a professional manner and complied with all necessary building code and Manatee County permitting requirements. The Board also acknowledged that Petitioners had produced a Certificate of Completion from Manatee County and had paid the maximum $1,000 fine for the initial violation. Therefore, the Board voted to rescind the suspension of Petitioners' use of the pool, as well as all fines associated with Mrs. Hathaway's repeated violation of the suspension. Mrs. Wermuth presided over the meeting. However, she once again abstained from the vote. The Board notified Petitioners of its decision by letter, dated July 1, 2019, which stated that, "Any pending fines or suspensions to the Association's Common Elements are rescinded." The Board also posted its action on the Association website. In addition, the Board emailed the meeting minutes of the vote to the Parkway Villas residents and placed a copy of the minutes on the community bulletin board in the clubhouse. With Petitioners' right to access the Association's common areas reinstated, Mrs. Hathaway has been free to use the pool since July 2019. Despite the July 2019 publication of the Board's vote to lift Petitioners' suspension, at the final hearing Mrs. Hathaway complained that she has experienced a number of confrontations with other Parkway Villas residents who still believe that she is barred from using the pool. Mrs. Hathaway declared that she has been told to leave the pool; she has been yelled at in the laundry room; and, most significantly, "many people attack me, attacking us, at the pool." Mrs. Hathaway expounded that confrontations such as the one on October 20, 2018, are not uncommon. She proclaimed that, "people start to attack us because Mrs. Wermuth talk to everyone, she circulate all the information to all the residents." Mrs. Hathaway relayed that Parkway Villa residents have reported her to the Manatee County Sheriff's Office approximately seven times since March 2018. Mrs. Hathaway asserted that she has implored Mrs. Wermuth to re-notify the residents that the Board has rescinded Petitioners' suspension. However, Mrs. Wermuth allegedly has refused to do so. Therefore, as part of the relief for her FHA claim, Mrs. Hathaway desires all harassment related to her use of the pool to stop. Because Mrs. Hathaway believes that Mrs. Wermuth is responsible for imposing the sanctions in the first place, she asserts that Mrs. Wermuth should be ordered to spread the word that Petitioners are no longer prohibited from using the common areas. Accordingly, Mrs. Hathaway seeks an administrative order directing Mrs. Wermuth to inform all Parkway Villas residents that Petitioners are no longer forbidden from using the pool. Mrs. Hathaway also alleged several other instances of harassment by Respondents including: December 2017, Bicycle Incident: Mrs. Hathaway complained that Mr. Wermuth rode his bicycle too close to her as she walked down a sidewalk. Mrs. Hathaway described the incident as intentionally intimidating. Pictures of Petitioners' Unit: Mrs. Hathaway complained that Mr. Wermuth photographed her villa and complained about its condition. (This activity prompted Mrs. Hathaway to initiate a small claims court action against him.) Mrs. Hathaway's Use of the Laundry Room: Mrs. Hathaway claimed that in March 2018, Mr. Wermuth harassed her while she was doing laundry. Mrs. Hathaway claims that Mr. Wermuth took pictures of her in the laundry room and raised his voice at her. In addition to this FHA matter, Petitioners initiated several unrelated, but parallel, legal actions against Respondents in or about February 2018. These matters involved separate complaints in Manatee County small claims court against both Mrs. and Mr. Wermuth. In particular, on February 8, 2018, Mrs. Hathaway sued Mrs. Wermuth for discrimination, retaliation, intimidation, and harassment based on a "fine for no violations." See Miryam Hathaway v. Gerlinde Wermuth, Twelfth Judicial Circuit in and for Manatee County, Florida, Case No. 2018 SC 679. On April 5, 2018, Mrs. Hathaway sued both Mr. and Mrs. Wermuth for "harassment issues." See Miryam Hathaway v. Horst and Gerlinde Wermuth, Twelfth Judicial Circuit in and for Manatee County, Florida, Case No. 2018 SC 1509. These civil matters were dismissed in December 2018.9 However, Mrs. Wermuth was awarded over $20,000 in attorney's fees and costs spent in defending the matter against Mrs. Hathaway. At the final hearing, Respondents denied that they ever took any action against Petitioners based on Mrs. Hathaway's disability. They also rejected any allegation that they ever participated in a decision that refused or failed to accommodate Petitioners' alleged disability. Mrs. Wermuth testified that, while she did serve as Board President throughout the time of Petitioners' fines and suspension, she does not personally administer, control, or manage the Association. Further, as an individual Board member, she does not have the authority to unilaterally penalize a unit owner who has violated Association Rules. Neither can she personally suspend a unit owner's common use rights. Similarly, she does not have the power to reinstate the use of the Association's common elements, or grant any request for a disability accommodation, however reasonable. Regarding the Board's decision to impose the suspension on Petitioners, Mrs. Wermuth maintained that as a Board member, she must participate in the Board's actions to enforce the Association Rules. Mrs. Wermuth asserted that the Board does so in a consistent, fair, and uniform manner to all Parkway Villas residents. Regarding Petitioners' specific allegations, Mrs. Wermuth denied that she had any knowledge that either Petitioner suffered from a disability. She further denied any knowledge of a request from Mrs. Hathaway to use the pool for the express purpose of treating her shoulder pain. On the contrary, 9 In granting the Wermuths’ motion to dismiss, the judge noted that Mrs. Hathaway’s "claim surrounds a sequence of events that have occurred between approximately December 2017 to April 2018, wherein [Mrs. Hathaway] believes the Defendants have harassed, discriminated against, and intimidated her by approaching her, yelling at her, 'stalking' her, taking photos of her, and participating in the HOA board’s decisions denying her request to replace her patio, fining her for failing to bring her patio up to agreed-upon specifications, and suspending her common area privileges. [Mrs. Hathaway] claims that these events have caused her medical issues." Mrs. Wermuth expressed that, throughout the time period covered by Petitioners' complaint, she has seen Mrs. Hathaway physically active around the community. Mrs. Wermuth has observed Mrs. Hathaway walking, exercising in the pool, hosting a Latin dancing party, and taking part in exercise classes in the clubhouse. Mrs. Wermuth vigorously refuted the allegation that any of the Board's enforcement actions against Petitioners were administered unfairly. On the contrary, Mrs. Wermuth asserted that the fines and suspension were necessary to enforce the Association Rules, as well as to ensure that Petitioners adhere to them. Mrs. Wermuth explained that, in her experience, suspending a resident's access to the common areas is the most effective method to bring about compliance with Association Rules. Mrs. Wermuth further declared that none of the Board's actions regarding Petitioners were based on her personal feelings. Instead, Mrs. Wermuth recused herself from most of the Board's decisions addressing Petitioners' issues and consistently voted to "abstain." For his part, Mr. Wermuth testified that he does not hold, nor has he ever held, any decision-making authority with the Association or its Board. He has never served as a member of the Board or worked as an Association agent, committee member, or employee. Mr. Wermuth expressed that he has never made, nor has he ever had the power to make, housing determinations affecting Petitioners. Neither has he ever had any responsibility to determine Petitioners' access to community facilities. Petitioners did not present any evidence establishing that Mr. Wermuth participated in any vote of the Board to impose the fines or suspension on Petitioners. Further, as with his wife, Mr. Wermuth attested that he had no knowledge of any disabilities claimed by Petitioners prior to learning of their Petition filed with the Commission. On the contrary, he too has observed Mrs. Hathaway walking around the community, exercising in the pool, and using the fitness equipment in the Association's clubhouse. Mrs. Hathaway admitted that she had not spoken to Mr. Wermuth about her health or disability. Neither did she present any evidence that she requested an accommodation from him, or that he played any role in the Board's suspension of her use of the community pool. As to Mrs. Hathaway's complaints of other transgressions: Bicycle Incident: Mr. Wermuth did not recall ever riding his bicycle too close to Mrs. Hathaway while she was walking on a sidewalk. He specifically denied that he ever intentionally rode by her in an attempt to threaten or intimidate her. Mr. Wermuth offered that if his bicycle ever did pass too close to Mrs. Hathaway, it would have been unintentional and had nothing to do with her disability. Pictures of Petitioners' Unit: Regarding Mrs. Hathaway's complaint that he once photographed her villa, Mr. Wermuth testified that he frequently takes pictures of the Parkway Villas community as part of an ongoing scrapbook of his homes and neighborhoods. Mr. Wermuth stated that during the incident in question, he was simply taking pictures of the community's Christmas lights. He denied that he ever intended to agitate Petitioners. Similarly, no evidence shows that Mr. Wermuth photographed Petitioners' condominium based on Mrs. Hathaway's disability or some discriminatory animus. Mrs. Hathaway admitted that Christmas lights were strung up next to her unit at the time. Based on the competent substantial evidence in the record, the preponderance of the evidence does not establish that the Wermuths discriminated against Petitioners (Mrs. Hathaway) based on a handicap, or failed to provide a reasonable accommodation for the same. Accordingly, Petitioners failed to meet their burden of proving that the Wermuths committed unlawful discrimination in violation of the FHA.
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 determining that Respondents, Gerlinde Wermuth and Horst Wermuth, did not commit a discriminatory housing practice against Petitioners and dismissing their Petition for Relief. 14 See Gooden v. Internal Rev. Serv., 679 Fed. Appx. 958, 966 (11th Cir. 2017)("[G]eneral allegations, based on mere speculation and hunches, in no way establish that any alleged [discriminatory activity] was race-, gender-, or disability based."). 15 Similarly, Mrs. Hathaway’s complaints about Mr. Wermuth riding his bicycle too close to her on the sidewalk or taking pictures of the side of her villa, at most, reflect a misunderstanding between neighbors, not a discriminatory housing practice. DONE AND ENTERED this 5th day of October, 2020, in Tallahassee, Leon County, Florida. S J. BRUCE CULPEPPER 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 5th day of October, 2020. COPIES FURNISHED: Tammy S. Barton, Agency Clerk Florida Commission on Human Relations 4075 Esplanade Way, Room 110 Tallahassee, Florida 32399-7020 (eServed) Miryam Hathaway Benjamin Hathaway Post Office Box 15103 Sarasota, Florida 34277 Kimberly Valashinas, Esquire McGuinness & Cicero 3000 Bayport Drive, Suite 560 Tampa, Florida 33607 (eServed) Cheyanne Costilla, General Counsel Florida Commission on Human Relations 4075 Esplanade Way, Room 110 Tallahassee, Florida 32399 (eServed)
The Issue Whether Respondent Banta is guilty of dishonest dealing, culpable negligence, or breach of trust in a business transaction, in violation of Section 475.25(1)(b), Florida Statutes, (1993). Whether Respondent is guilty of operating as a real estate broker without a valid and current license, in violation of Section 475.25(1)(e), Florida Statutes (1993). Whether Respondent is guilty of failing to provide written agency disclosure to a party in a real property transaction, in violation of Section 475.25(1)(q) and (1)(e), Florida Statutes (1993) and Rule 61J2-10.033, Florida Administrative Code.
Findings Of Fact Petitioner is a state licensing and regulatory agency charged with the responsibility and duty to prosecute Administrative Complaints pursuant to the laws of the State of Florida. Respondent is now and was at all times material hereto a licensed real estate broker in the State of Florida having been issued license number 0165881. As of March 31, 1992, the Respondent failed to renew his real estate broker’s license, for the 2-year period of April 1, 1992 to March 31, 1994. Renewal would have consisted of completing the required continuing education, paying the required fee, and sending the required form to the Department of Business and Professional Regulation. The Respondent’s license was delinquent after March 31, 1992. As of March 31, 1994, the Respondent had not renewed his broker’s license and his license remained delinquent. On May 9, 1994, the Respondent renewed his license, in order to make a claim for a commission. As of March 31, 1996, the Respondent failed to renew his license again. His license was delinquent after March 31, 1996, and was delinquent as of the hearing date. The Respondent operated as a real estate broker during the period of approximately February 1993 through May 1994, specifically including a period when his license was delinquent as “involuntary inactive.” Sam Morrow is a licensed real estate broker and is a real estate developer and home builder. Effective February 10, 1993, Respondent entered into an Independent Contractor Agreement with Florida’s Preferred Homes, Inc. (FPH), a company in which Morrow is a principal. Respondent was originally retained on a fixed salary basis for an indefinite term to assist in finishing a number of low-income housing tax credit apartment applications for tax credits. At the request of Morrow, Respondent assumed other duties. Respondent represented FPH, and other business entities of which Morrow was the principal, in other business dealing from February 10, 1993 through May 24, 1994, when Respondent was terminated. The Respondent received a fixed salary throughout the period of his association with Morrow with the promise of additional undefined compensation in the future. For the purposes of this matter, Respondent was an employee of FPH and was supervised by Morrow. Respondent’s association with Morrow was not an exclusive employment agreement. During this same period in February 1993, Morrow became engaged in a transaction involving affordable housing. The transaction involved the purchase of land, by a purchasing entity, the Community Housing Trust, Inc., a 501(c)(3) non-profit corporation, from the seller, Rouse Road Corporation. After this purchase the property was to be transferred to another corporation, of which Morrow was to be the principal along with another business partner, and affordable housing units would be constructed upon the land and then sold to the public. The structure of the purchasing and developing entities was complex, involving various public and private entities, including Orange County. Morrow was a principal and the overall coordinator of the entire project which came to be known as the Oak Grove Circle project. There was no specific agreement for the Respondent to receive any particular additional compensation for the Respondent’s services in the affordable housing project. Respondent was familiar with the property that the Rouse Road Corporation had for sale and brought it to the attention of Community Housing Trust, as a prospective purchaser. This particular property was suitable for purchase and development as an affordable housing project. Respondent facilitated the purchase and prepared the contract for sale and purchase which was executed by the parties: Community Housing Trust, as purchaser, and Rouse Road Corporation, as seller. The contract was executed on March 5, 1993 for the property later known as the Oak Grove Circle property. Respondent represented neither the purchaser nor the seller in the transaction. He considered himself a transactional broker. The contract indicates on its face that Respondent, J. Scott Banta, is the real estate broker in the transaction. The contract called for the payment of a 10% commission to the Respondent. Respondent was not at any time prior to or during the purchase and sale transaction, either an agent, employee, independent contractor or representative of the seller, Rouse Road Corporation. Respondent was not at any time prior to or during the purchase and sale transaction, either an agent, employee, independent contractor or representative of the purchaser, Community Housing Trust, Inc. In September 1993, Morrow formed a Florida corporation known as FPH Venture 2, Inc. He was the sole incorporator. During this period in the fall of 1993, certain negotiations took place regarding the structure and goals of FPH Venture 2, Inc. The principals of the firm were to be Sam Morrow and Long Farms North. All of the prospective partners agreed that because of the need for cash equity, the real estate commission on the Oak Grove Circle property would remain in the FPH Venture 2 proposed project. For this consideration Respondent expected to be a principal also. The goals for the FPH Venture 2 project were set out in some detail in a memorandum developed by the prospective venturers and typed by Respondent. Respondent was included as one of the principals. The goals memorandum provides that the 10% commission payable to Respondent on the Oak Grove Circle purchase and sale would be assigned by Respondent to FPH Venture 2 “for cash flow and total profit benefits.” Respondent’s understanding of the proposed FPH Venture 2 project was that he was to receive a one-third ownership participation in FPH Venture 2, Inc., which was to have included the proposed Oak Grove Circle project and another proposed project in Lakeland, Florida, in exchange for the prospective commission. The terms of Respondent’s proposed participation in FPH Venture 2 were never reduced to any form of written agreement. Nor was Respondent ever made a principal in the company or issued any stock, or otherwise given anything to evidence his interest in the proposed venture. The closing of the purchase and sale of the property, later known as the Oak Grove Circle property, as anticipated by the contract for sale and purchase, was consummated on May 19, 1994. James L. Bishop, vice-president of Community Housing Trust, Inc., executed the settlement statement which provided for payment of $28,000 real estate commission to J. Scott Banta from the seller’s proceeds of closing. The commission check was delivered to Respondent at the closing without objection. On the day after closing of the Oak Grove Circle purchase and sale, May 20, 1994, Respondent gave Morrow a memorandum suggesting a procedure for payment of the $28,000 commission into FPH Venture 2, Inc. On May 24, 1994, the matter culminated in a conversation between Respondent Banta and Morrow. Respondent requested Morrow reduce their agreement regarding his proposed participation in FPH Venture 2, Inc., to writing. Morrow refused to do so, and at 4:45 p.m. on the same day, terminated Respondent’s employment, stopped payment on Respondent’s consulting fee check for the prior week and changed the locks on his office with Respondent’s personal property still inside. Respondent has retained the commission from the sale of the Oak Grove Circle property. Morrow’s account of this business relationship with Respondent and the agreed disposition of the proceeds of the commission is not credible.
Recommendation Upon the foregoing findings of fact and conclusions of law, it is RECOMMENDED that the Respondent be found guilty of violating Sections 475.25(1)(e) and (1)(q) and be found not guilty of violating Section 475.25(1)(b), Florida Statutes (1993). It is further recommended that Respondent be fined the sum of $1,000 and that his license be suspended for a period of three months, subject to reinstatement upon such reasonable conditions as the Florida Real Estate Commission shall require. RECOMMENDED this 8th day of January, 1997, at Tallahassee, Florida. DANIEL M. KILBRIDE Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 SUNCOM 278-9675 Fax Filing (904) 921-6847 Filed with the Clerk of the Division of Administrative Hearings this 8th day of January, 1997. COPIES FURNISHED: Steven D. Fieldman, Esquire Department of Business and Professional Regulation 400 West Robinson Street Hurston Building - North Tower, Suite N308 Orlando, Florida 32801 Allen C.D. Scott, II, Esquire Scott & Scott, P.A. 99 Orange Street St. Augustine, Florida 32084 Lynda L. Goodgame, Esquire Department of Business and Professional Regulation Northwood Centre 1940 North Monroe Street Tallahassee, Florida 32399-0792 Henry M. Solares Division Director Department of Business and Professional Regulation 400 West Robinson Street Hurston Building - North Tower, Suite N308 Orlando, Florida 32801
The Issue Whether Respondents, Charleston Cay, Ltd., et al. (Charleston Cay), violated the Florida Fair Housing Act, as amended, sections 760.20 through 760.37, Florida Statutes (2010).1/
Findings Of Fact Ms. Cardwell is an African-American woman who rented an apartment from Charleston Cay. Ms. Cardwell and Charleston Cay entered into a written lease beginning on December 23, 2009, and ending on November 30, 2010. The lease required Ms. Cardwell to pay her rent on the first of each month and that the rent would be delinquent by the third of each month. Furthermore, the lease provided that non-payment of rent shall result in a breach of the lease and eviction. The initial monthly rent for Ms. Cardwell's apartment was $663.00, a month and was subsequently increased to $669.00, a month. Ms. Cardwell credibly testified that she had not read the lease or the Housing Addendum which she signed when entering into the lease and that she had not subsequently read either document. On November 1, 2010, Ms. Cardwell failed to pay her rent. On November 4, 2010, Ms. Jaster, manager of Charleston Cay apartments, posted a three-day notice to pay rent or vacate the premises. On November 9, 2010, Ms. Jaster posted another notice for Ms. Cardwell about non-payment and requesting that Ms. Cardwell call or come to the office. Ms. Cardwell paid $100.00, of the rent on November 17, 2010. Again, Ms. Jaster posted a three-day notice seeking payment of the remaining November 2010, rent in the amount of $569.00. On November 24, 2010, Ms. Cardwell paid an additional $200.00, of the $569.00, owed, leaving a balance of $369.00 for November 2010. Because Ms. Cardwell's written lease was to expire at the end of November, she requested that Charleston Cay enter into a month- to-month lease, but Ms. Jaster informed Ms. Cardwell that Charleston Cay was not interested in entering into a month-to- month tenancy. On December 1, 2010, Ms. Jaster posted another three- day notice requiring Ms. Cardwell to pay the $369.00, owed in November, or to vacate the premises. The facts also showed that Ms. Cardwell did not pay the $669.00, owed by December 1, 2010, or anytime thereafter. On December 8, 2010, Charleston Cay filed an eviction and damages complaint against Ms. Cardwell based on non-payment of the rent. Some time in December 2010, Ms. Cardwell contacted Ms. Tina Figliulo of the Charlotte County Homeless Coalition, seeking financial assistance to avoid being evicted. Ms. Figliulo credibly testified that the Charlotte County Homeless Coalition administers grant money to help prevent a person from being evicted and helps individuals find affordable housing. A provision of the grant, however, prevents the Charlotte County Homeless Coalition from paying money into a court registry if an eviction process has begun. Ms. Figliulo credibly testified that she contacted Ms. Jaster about making a payment on Ms. Cardwell's behalf. Ms. Jaster informed Ms. Figliulo that Charleston Cay had already begun eviction proceedings. Consequently, Ms. Figliulo was unable to use grant money to pay for Ms. Cardwell's back rent. Based on the eviction proceedings, Ms. Cardwell vacated the premises sometime in December 2010, and turned in her key for the apartment. The initial hearing on the eviction was set for January 5, 2011. On December 28, 2010, the hearing was cancelled based on Ms. Cardwell's vacating the premises. On January 13, 2011, Ms. Cardwell filed a Motion to Dismiss the case in county court indicating that she had given up possession of the premises. On January 31, 2011, the Charlotte County Court issued an Order dismissing the case effective March 1, 2011, unless Charleston Cay set a hearing on damages. The record credibly showed through the exhibits and Ms. Jaster's testimony that Ms. Cardwell was evicted from her apartment based on her non-payment of rent. There was no evidence that other individuals, who were not in Ms. Cardwell's protected class, were treated more favorably or differently, than she was in the proceedings. There was no evidence, either direct or indirect, supporting Ms. Cardwell's claim of racial discrimination. Ms. Cardwell testified that she felt that Ms. Jaster had acted based on race, because of Ms. Jaster's perceived attitude. Ms. Cardwell did not bring forward any evidence showing a specific example of any comment or action that was discriminatory. Ms. Jaster credibly testified that she did not base the eviction process on race, but only on non-payment. Ms. Cardwell specifically stated during the hearing that she was not addressing the retaliation claim or seeking to present evidence in support of the FCHR determination concerning the retaliation claim. Consequently, the undersigned does not make any finding concerning that issue. There was testimony concerning whether or not Ms. Cardwell had properly provided employment information required by the written lease in relation to a tax credit. The facts showed that Charleston Cay apartments participated in a Low Income Tax Credit Housing Program under section 42, of the Internal Revenue Code. On entering the lease, Ms. Cardwell had signed a Housing Credit Lease Addendum which acknowledged her participation in the tax credit, and agreement to furnish information concerning her income and eligibility for compliance with the tax credit. Failure to provide information for the tax credit would result in a breach of the rental agreement. As early of August 2011, Ms. Jaster, manager for Charleston Cay Apartments, contacted Ms. Cardwell about providing information concerning her income and continued eligibility for the program. Ms. Cardwell provided information that was incomplete as to her income, because it failed to demonstrate commissions that she earned. Again, in November 2010, Ms. Jaster contacted Ms. Cardwell about providing information to recertification for the tax credit. Finally, on November 11, 2010, Ms. Jaster left a seven-day notice of non-compliance, with an opportunity to cure, seeking Ms. Cardwell to provide information concerning her income. Ms. Cardwell provided information concerning her salary, but did not have information concerning commissions that she earned from sales. This information was deemed by Ms. Jaster to be incomplete and not in compliance for the low income housing tax credit. The record shows, however, that Ms. Cardwell's failure to provide the required income information was not a basis for her eviction.
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 of dismissal of the Petition for Relief. DONE AND ENTERED this 28th day of October, 2011, in Tallahassee, Leon County, Florida. S THOMAS P. CRAPPS 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 28th day of October, 2011.
The Issue The issue in this case is whether Respondent committed a discriminatory housing practice against Petitioner.
Findings Of Fact In March 2006, Ms. Burnette moved into Oak Gardens, which is a 55+ mobile home community in Sebring, Florida. Oak Gardens is adjacent to Silver Oaks Mobile Home Park (Silver Oaks), and both mobile home parks have the same management. Ms. Burnette rented a space for her mobile home from Oak Gardens. Her mobile home was infested with mold and lacked central heating and air conditioning. Approximately a month after Ms. Burnette moved into the community, she bought a second mobile home and moved into it. She also kept the second mobile home at Oak Gardens and paid rent to Oak Gardens for the space on which the mobile home was located. In March 2007, Ms. Burnette sustained injuries in an automobile accident. She has difficulty walking and does not see well. The evidence presented at the final hearing does not establish that Ms. Burnette had a handicap. After her accident, Ms. Burnette asked Mr. Charbonneau to be her caregiver. From March until October 2007, Mr. Charbonneau cared for Ms. Burnette, but did not stay overnight with Ms. Burnette. Some time in October 2007, Mr. Charbonneau started staying overnight with Ms. Burnette at Oak Gardens. Oak Gardens requires each of its residents to undergo a background check as part of an application for residency at Oak Gardens. The application is made on a form used by Oak Gardens. The background checks are done by an outside company. When Mr. Charbonneau began staying with Ms. Burnette on a full-time basis, management at Oak Gardens asked that Mr. Charbonneau fill out an application for residency and submit to a background check. Ms. Burnette gave some information to Oak Gardens concerning Mr. Charbonneau, but it was insufficient to comply with the application for residency. Ms. Burnette was advised that Mr. Charbonneau needed to fill out the application for residency that all potential residents completed. Mr. Charbonneau supplied the requested information. Within a month, a background investigation was performed, and Mr. Charbonneau was approved to live in the Oak Gardens community. Ms. Burnette claims that Oak Gardens refused to allow Mr. Charbonneau to live at Oak Gardens. When questioned at the final hearing concerning her claim, Ms. Burnette stated that the only time that Oak Gardens interfered with Mr. Charbonneau’s residency at the mobile home park was when management called the police. Mr. Charbonneau candidly admitted that, at the time the police were called to Oak Gardens, he and Ms. Burnett were arguing in the street. Ms. Burnette entered into an agreement with Oak Gardens to allow Oak Gardens to attempt to sell the mobile home which Ms. Burnette vacated, but still owned. Ms. Burnette does not feel that Oak Gardens made a good faith effort to sell the mobile home, but she did not demonstrate that the failure of Oak Gardens to sell her mobile home was because she had a handicap. She claims that Oak Gardens would not renew its agreement to sell the mobile home; however, at some point, Ms. Burnette wrote to Oak Gardens and advised that she no longer wanted to sell her mobile home and that she needed the unit for extra storage space. Additionally, the letter advised that Mr. Charbonneau was her caregiver. Ms. Burnette complained that she and Mr. Charbonneau were not allowed to attend a Thanksgiving dinner at one of the two clubhouses located at Oak Gardens and Silver Oaks. There were two homeowners’ associations for the communities. One homeowners’ association was sponsoring a private dinner, and one homeowners’ association was sponsoring a dinner at which anyone could participate. The evidence was not clear whether Ms. Burnette was attempting to attend the private dinner or the public dinner. However, the management at Oak Gardens was not involved in the dinners being sponsored by the homeowners’ associations and did not deny Ms. Burnette or Mr. Charbonneau entrance to the dinners. No evidence was presented to establish either Ms. Burnette or Mr. Charbonneau were barred from the Thanksgiving dinner based on a handicap. Both Ms. Burnette and Mr. Charbonneau had use of Oak Gardens’ laundry facilities, pool, and clubhouse. Ms. Burnette stopped paying rent for the lots on which her mobile homes were located. Management for the mobile home park provided notice to Ms. Burnette that she was delinquent in her rent payments. Ms. Burnette did not pay rent after being notified that rents were owed. The owner of the mobile home park, Wayne C. Rickert, filed a Complaint for Eviction of Tenant (Complaint) in the County Court in and for Highlands County, Florida, on June 24, 2008, against Ms. Burnette. The Complaint was assigned Case No. 08-376-CCS. On June 30, 2008, a copy of the Complaint and a Summons on Claim for Possession of Residential Premises and/or Ancillary Relief (Summons) was served on Ms. Burnette by attaching a copy to the premises where she resided. The Summons contained the following: Not counting the first day of service of this summons, YOU HAVE FIVE (5) DAYS IN WHICH TO SERVE WRITTEN DEFENSES, PURSUANT TO CHAPTERS 723 AND 51 OF THE FLORIDA STATUTES, CONCERNING YOUR EVICTION AS TENANT(S) AND TWENTY (20) DAYS IN WHICH TO SERVE WRITTEN DEFENSES CONCERNING CLAIMS FOR MONEYDAMAGES, IF ANY. You must file the original of your written defenses with the Clerk of the Court, either before or immediately after you serve the Plaintiff’(s) attorney. Ms. Burnette claimed that she was never served with a copy of the Complaint. Her testimony is not credible. On July 7, 2008, Ms. Burnette filed, with the Clerk of Highlands County Court, hand-written defenses to the Complaint, citing the case number and the date of service as June 30, 2008, at 6:35 p.m. On August 21, 2008, a Final Judgment was entered against Ms. Burnette in Case No. 08-376-CCS, requiring Ms. Burnette to relinquish possession of the lots to the Plaintiff. The Final Judgment further provided that, if Ms. Burnette failed to vacate within ten days of the date of the Final Judgment, a writ of possession would be issued to the sheriff, commanding the sheriff to put the Plaintiff in possession of the lots. A Writ of Possession was issued on September 15, 2008. On September 16, 2008, the Highlands County Sheriff’s Office served the Writ of Possession at the mobile home which Ms. Burnette had been occupying. The furnishings were removed from the mobile home, and possession of the mobile home was delivered to William Moore, the manager for the mobile home park. Oak Gardens gained title to the mobile home and sold it to a third party. No evidence was presented to establish that the eviction was based on discrimination. The eviction was for non- payment of rent. Oak Gardens has evicted other tenants for non- payment of rent. In August 2008, Mr. Charbonneau had a heart attack. The evidence presented did not establish that he was handicapped. Oak Gardens did not present evidence to establish that Ms. Burnette filed the Petition for Relief for a frivolous purpose.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a final order be entered dismissing the Petition for Relief and denying Respondent’s Petition for Attorney’s Fees and Costs. DONE AND ENTERED this 12th day of June, 2009, in Tallahassee, Leon County, Florida. S SUSAN B. HARRELL 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 12th day of June, 2009.
The Issue Whether Respondent, Lakeshore Club of Polk County Homeowners Association (Lakeshore Club), violated the Florida Fair Housing Act, sections 760.20 through 760.37, Florida Statutes (2010).1/
Findings Of Fact Since 2004, Mr. Cosme has been a resident and homeowner in the Lakeshore Club of Polk County. He is of Hispanic descent with a national origin of Puerto Rico. Lakeshore Club is a homeowners' association located in Lakeland, Florida. A majority of the residents are Hispanic and of Puerto Rican origin. Ms. Jewell-Sanford, at all times relevant to the complaint, was the manager of Lakeshore Club. The record shows instances in 2005 and 2006 when Ms. Jewell-Sanford had directed that Spanish not be spoken in the homeowners’ association office. The record shows that, in 2005 an "English only" sign was posted and removed. Further, it was not disputed that, in 2006 Mr. Cosme had been asked by Ms. Jewell-Sanford to leave the office because he had been speaking Spanish to one of the office secretaries. In March 2010, Mr. Cosme went to the Lakeshore Club’s office to pick-up some papers. When Mr. Cosme entered the office, he walked past the receptionist to go to the back of the office. Ms. Jewell-Sanford told Mr. Cosme that he could not walk to the back of the office, because the office had rules. Mr. Cosme felt that action by Ms. Jewell-Sanford had been disrespectful to him. Ms. Horneck, the current president of the Lakeshore Club Board of Directors, credibly testified that Ms. Jewell- Sanford spoke little, if any, to Hispanic members of the homeowners’ association. On December 1, 2009, Lakeshore Club sent Mr. Cosme the following letter: Dear Mr. Cosme: This comes in reply to your "packet" of complaint that was given to the Board of Directors against our Association Manager, Elizabeth Jewell. Our attorney and management consultant both feel this is hearsay and opinion. The past boards were in disagreement with you on this issue as well as a majority of the currently seated board. We have been advised that should you continue in your harassment of any member of the association, its directors, agents or employees, the Board of Directors will be well advised to seek legal remedies up to and including injunctive relief. We regret that you have chosen to make this step necessary after coming to the agreement that the President of the Association handle these issues and it is our desire that we work things out peacefully from this point forward. Mr. Cosme felt this letter was threatening, because he feared that the homeowners’ association would seek to eject him from the community based on the terms "injunctive relief" contained in the letter. Ms. Horneck credibly testified that she had initialed the letter and that it was her intent that the parties get together and work out any problem. Mr. Cosme did not offer into evidence the information packet that he had provided the Board of Directors, which prompted the December 1, 2009, letter. Further, Mr. Cosme did not bring forward any evidence to show that Lakeshore Club had taken any action to deprive him of his home or any part of the community, or that it had taken any action against him. Ms. Jewell-Sanford had left her job as manager in April 2010.
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 7th day of July, 2011, in Tallahassee, Leon County, Florida. S THOMAS P. CRAPPS 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 July, 2011.
Recommendation Based upon the findings of fact and conclusions of law recited above, it is recommended that the respondent Division of Beverage issue the type 11-C license to petitioner without further delay. Respectfully submitted and entered this 24th day of March, 1976, in Tallahassee, Florida. DIANE D. TREMOR, Hearing Officer Division of Administrative Hearings Room 530, Carlton Building Tallahassee, Florida 32304 (904) 488-9675 COPIES FURNISHED: Mr. Charles A. Nuzum Division of Beverage Johns Building. Tallahassee, Florida
The Issue Whether Petitioner was the subject of unlawful discrimination in the terms, conditions, privileges, or provision of services in connection with the rental of a dwelling from Respondent, based on her race, in violation of section 804(b) or 804(f) 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 Respondent owns and manages the Country Club Woods residential community in Starke, Florida. Country Club Woods is a racially-mixed community. The current residential mix includes 29 African-American families and 6 white families. County Club Woods receives low-income housing subsidies in the form of tax credits through the Florida Housing Finance Corporation. Some residents qualify for federal Section 8 housing subsidies. Petitioner is African-American. On February 4, 2011, Petitioner signed a lease agreement for a home in Country Club Woods. Rent was $698.00 per month. The home was vacant, and power and water had been turned off. Respondent asked Petitioner to activate power and water so that repairs and unit preparation could be performed, and she did so. Petitioner?s rent for February was partially prorated to account for the period during which she did not occupy the unit. The lease agreement required that all occupants of the house be listed, and provided that “[n]o other occupants are permitted.” Guests were limited to stays of no more than 14 consecutive days. Due to the status of Country Club Woods as an affordable housing community, it is subject to restrictions on the income and criminal history of its residents. Therefore, all permanent occupants are required to undergo income and background screening to ensure that the low income housing tax credit rules are being met. The failure to do so could jeopardize the tax credits. When she signed the lease, Petitioner knew what the lease required regarding the occupancy of the house. Petitioner listed Aulettia Russ and Aarian Russ, her daughter and son, as occupants with her in the home. After the lease contract was signed, Respondent performed a few repairs and updates to prepare the unit for Petitioner. Mr. Sam Baker, who performed maintenance services for County Club Woods, fumigated the house and painted some of the interior walls. He performed a minor repair to the roof, which consisted of applying tar around the cracked rubber boot of the roof drain vent. Mr. Baker moved a stove into the house from another unit because there was no stove when the lease was signed. He also replaced the toilet with a new one. Petitioner moved into the unit on February 16, 2010. She was joined by her fiancé, Kevin Sampson, and her older son, Kelsy Roulhac, neither of whom were listed as occupants. Mr. Sampson was on probation for several felony offenses. Both Mr. Sampson and Mr. Roulhac were residents for the entirety of Petitioner?s tenancy. At no time during the tenancy did Petitioner seek to add Mr. Sampson or Mr. Roulhac to the lease. Petitioner testified that Rebekkah Baker, the property manager, knew that Mr. Sampson was a permanent occupant, but had no objection. Ms. Baker denied that she consented to his occupancy, given that it would have been a violation of Country Club Woods policy against leasing to persons with a criminal history in the past seven years. Given the consequences of failing to meet the occupancy and background screening requirements, Ms. Baker?s testimony is credited. When Petitioner moved in, there were still problems with the unit. Problems noted by Petitioner included a broken dishwasher, mildew on a number of surfaces, dead insects -- likely from the fumigation -- in the cabinets, a hole in the foyer wall caused by the adjacent door?s doorknob, a ceiling stain from the roof leak, a missing shower head, a broken light fixture, and a missing smoke alarm. In addition, the carpet was stained and in generally very poor condition. Petitioner resolved the mildew problem by cleaning the affected surfaces with Tilex. Petitioner?s son, Mr. Roulhac, got rid of the dead insects and cleaned the cabinets. Petitioner replaced the showerhead on her own. Shortly after she moved in, Petitioner notified Respondent that her roof was leaking. Mr. Baker went to the house, advised Petitioner?s daughter that he was there to fix the roof, and went onto the roof. He determined that the leak was occurring at the location of his previous repair. He completed the repair by re-tarring the roof drain vent boot. Petitioner testified that the roof continued to leak after heavy rains. She indicated that she made a subsequent complaint via a message left on Ms. Baker?s telephone answering machine. Ms. Baker testified that she received no subsequent complaints, and there is no other evidence to suggest that Respondent received any subsequent complaints regarding the roof. Mr. Baker performed no further repairs. Petitioner complained that the dishwasher was holding water. She testified that Respondent never came to fix the dishwasher. Both Mr. Baker and Ms. Baker testified that Mr. Baker was tasked to repair the dishwasher, but upon arriving at the house was denied entry, with the explanation that the dishwasher had been fixed by a friend, and the problem resolved by removing a plastic fork that had clogged the drain. From the time Petitioner moved in, until the time she vacated the home, Mr. Baker fixed the hole in the foyer wall and the broken light fixture. In addition, Mr. Baker came to the house to fix the refrigerator, which was a problem that was not on the original list. From the beginning of her tenancy, Petitioner complained of the carpet. The carpet was badly stained and worn. In addition, the carpet contained a dye or some other substance that aggravated Aarian Russ?s asthma. It was Petitioner?s desire to have the carpet replaced before the time of her daughter?s graduation. Respondent agreed to replace the carpet, and had employees of a flooring company go to Petitioner?s house to measure for new carpet. The flooring company employees were allowed entry to the house by Petitioner?s daughter. They measured the rooms, except for Petitioner?s bedroom, which was locked. Respondent advised Petitioner that the measurements of the bedroom of an identical unit could be provided to the carpet company. It is not known if that was done. Due to difficulties on the part of the flooring company, the new carpet was not installed before Petitioner vacated the unit. There was no evidence offered to suggest any relationship between the failure to install new carpet and Petitioner?s race. Petitioner complained that she had not been given notice that the flooring company employees were coming, and complained that Respondent had not performed a background check on the workers. She argued that she was entitled to have a background check done on anyone providing services before she would have to allow them into her home. There is no relationship between Petitioner?s complaints regarding the lack of a background check on the workers and Petitioner?s race. The lease agreement provides that “[m]anagement will make repairs . . . after receipt of written notice.” Respondent occasionally prepared work orders describing the nature of the problem at a unit, and the work done to resolve the problem. However, the evidence demonstrates that written work orders were likely the exception rather than the rule. It appears that most problems were reported by verbal requests, and resolved by Mr. Baker?s maintenance and repairs. Most of Petitioner?s requests for repairs and maintenance were made verbally. At some point, due to the number of items, Petitioner provided Respondent with a list of items for repair. There is no evidence that any repairs at Petitioner?s home were documented with a work order. In any event, there was no evidence that the failure to document the work, which was common, was the result of Petitioner?s race. Petitioner did submit seven work orders in evidence. Six of the work orders reflected repairs made by Respondent to the homes of African-American families upon verbal requests. One of the work orders reflected repairs made by Respondent to the home of a white family upon a verbal request. Petitioner questioned why none of her repairs were memorialized in work orders. The work orders do not substantiate that Petitioner was discriminated against on account of her race, and in fact serve to indicate that Respondent provided maintenance services equally, without any consideration to the race of the person requesting such services. Petitioner complained that Mr. Baker did not have “credentials,” and questioned him regarding any education or licenses that qualified him to perform maintenance, including electrical work. Whether qualified to do so or not, Mr. Baker performed maintenance for all of the residents of Country Club Woods, regardless of their race. There is no relationship between Petitioner?s complaints regarding Mr. Baker?s credentials and Petitioner?s race. Beginning in April, 2011, Petitioner began to fall behind on her rent. Petitioner was paid bi-weekly, though how that affected her ability to plan for monthly rental payments was not clearly explained. On April 21, 2011, Ms. Baker posted a notice on Petitioner?s door demanding that the $279.60 balance of the April rent payment be made. Petitioner denied having seen the notice. However, the copy of the notice put in evidence includes the notation from Ms. Baker that “[p]romised to pay balance w/ May 2011?s rent.” On May 9, 2011, Ms. Baker posted a notice on Petitioner?s door demanding that the rent payment be made. The amount in arrears was calculated to be $1,077.60, which included a late fee. Petitioner denied having seen the notice. However, the copy of the notice put in evidence includes the notation from Ms. Baker that “pd. $698 on 5/11/11.” On June 1, 2011, Ms. Baker posted a notice on Petitioner?s door demanding that the rent payment be made. The amount in arrears remained at $1,077.60. Petitioner denied having seen the notice. On July 27, 2011, Respondent provided a notice to Petitioner indicating that due to unauthorized occupants and $1,975 in unpaid rent, Petitioner had until August 1, 2011, to vacate the premises, or Respondent would commence eviction proceedings. Petitioner admitted to having received that notice. Respondent?s resident history report indicates that by the time Petitioner vacated the home on August 31, 2011, her rent was $2,075.60 in arrears. Some of that was due to assessed late charges, but the majority reflected unpaid rent. When Petitioner vacated the unit, Petitioner?s security deposit was applied, the remaining arrearage was assigned to a collection company, and Respondent?s books were cleared. Ms. Sheila Palmer and Ms. Tynesha Epps testified at the hearing. They have been residents of Country Club Woods for 16 years and for 1 year and 3 months, respectively. Both are African-American. Both testified that they had never been refused maintenance at their homes, and that Respondent was responsive to their requests for maintenance which were generally verbal. Neither Ms. Palmer nor Ms. Epps was aware of any instance in which management of Country Club Woods had discriminated against any tenant due to their race, though neither personally knew Petitioner. Ms. Headrick, Ms. Baker, and Mr. Baker each testified that they never denied or limited repair and maintenance services to any resident of Country Club Woods account of their race. They each testified convincingly that race played no factor in their duties to their tenants. Ultimate Findings of Fact There was no competent, substantial evidence adduced at the hearing that Respondent failed or refused to provide services to Petitioner under the same terms and conditions that were applicable to all persons residing in the Country Club Woods community. There was not a scintilla of evidence that, in providing services to Petitioner, Respondent deviated from its standard practice of providing maintenance services to all residents of Country Club Woods regardless of their race, income, or any other reason. The evidence does support a finding that Petitioner materially breached the terms of the lease agreement, both by allowing undisclosed persons to reside at the house, and by failing to timely pay rent. Petitioner?s race had nothing to do with the timing or manner in which maintenance and repair services were provided to her by Respondent, and it is expressly so found. The evidence did not demonstrate that Respondent discriminated against Petitioner on the basis of her race. Therefore, 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. 2012H0004. DONE AND ENTERED this 16th day of February, 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 16th day of February, 2012. COPIES FURNISHED: Eulinda M. Russ Post Office Box 902 Starke, Florida 32091 Sean Michael Murrell, Esquire Murrell Law, LLC 4651 Salisbury Road South, Suite 503 Jacksonville, Florida 32256 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 Respondents imposed upon mobile home owners an invalid "pass-through" charge to pay for the cost of work on the park's electrical distribution system, in violation of Section 723.031(5), Florida Statutes.
Findings Of Fact Tanglewood Mobile Home Park, Inc., owns the Tanglewood Mobile Home Park located at 345 Weatherbee Road, Fort Pierce, St. Lucie County, Florida (Tanglewood). The Patricia Yu Irrevocable Trust owns Tanglewood Mobile Home Park, Inc. Respondents Chester Yu and Ronald Yu are the trustees of the trust; Respondent Carol Yu is not a trustee. References to "Respondents" shall include only Chester Yu and Ronald Yu. Tanglewood was developed in 1969. The park was originally owned and operated for many years by Respondents' father. An undated prospectus for Tanglewood Mobile Home Park (Prospectus) contains several provisions that have some bearing on this case. Prospectus Section VI.A.1 requires each mobile home owner to bear the expense of "electrical connections." Prospectus Section VI.A.2.a states that, "to the extent permitted by law, the mobile home owner may also be required to bear, in the form of increases in the lot rental, the costs incurred by Owner in installing capital improvements or performing major repairs in the Park." Prospectus Section VIII.3 states that the Owner may assess, on a pro rata basis, "pass-through charges" as rent increases. Prospectus Section VIII.3.a prohibits more than one increase in lot rental annually, except for "pass-through charges." Section VIII.1.c defines "pass-through charges" as "those amounts, other than special use fees, which are itemized and charged separately from the rent and which represent the mobile homeowner's share of costs charged to the Park Owner by any state or local government or utility company." Section VIII.3.b.4 states: "To the extent permitted by law, the mobile home owner may also be required to bear, in the form of increases in the lot rental, the costs incurred by Owner in installing capital improvements or performing major repairs in the Park." The Prospectus states that Tanglewood has 158 lots. In reality, only 148 lots are improved and available for rent. One of these lots is the park office. At present, 139 lots are leased. In October 1999, Hurricane Irene caused flooding in Tanglewood. After the flooding had receded, the power company restored power to the area, but a submerged transformer blew out and damaged part of the Tanglewood's electrical distribution system, leaving 16 mobile homes without power. After repairing or replacing the transformer, the power company employee responsible for reconnecting Tanglewood's electrical distribution system reenergized eight mobile homes, but refused to reenergize the remaining eight due to the deteriorated condition of their meter bank. Meter banks are located in groups at various points in the park. Power enters the park either above- or below-ground and is fed into individual meters for each mobile home. Each meter bank typically contains eight meters, and each meter typically has a junction box and a disconnect box. The concern of the power company employee was that the mechanical force required to reconnect power to one meter bank could possibly be too great for the deteriorated supports to withstand. As was typical of many meter banks at Tanglewood, the meter bank for these eight lots was poorly supported due to the deterioration of its support structure. Most supports at Tanglewood were made of wood, which required close monitoring and careful maintenance. Exposed to the elements, wood suffered considerable damage over time from wood rot. If the support failed, a meter bank would fall over to the ground, exposing live electrical lines in close proximity to the mobile homes and their occupants. Many meter banks throughout Tanglewood also suffered from deteriorated supports. Many meter banks were deficient because of the use of plumbing-grade PVC pipes as conduit, which are of a decreased thickness, when compared to PVC pipes approved for outdoor electrical use and, when exposed to sunlight, tend to deteriorate faster than the type of PVC pipes approved for outdoor electrical use. The use of plumbing-grade PVC pipes may not have been legal at the time it was used. Other meter banks also suffered from rusted and missing components, which might allow rainwater to enter the system and damage the parts. Some of the larger missing components left gaps large enough to allow a child's finger to penetrate and touch a live wire. Meter cans were damaged, masts (for above-ground supply lines) were inadequately supported, and drop wires (for above-ground supply lines) were too low. Confronted with the problem of eight lots without electrical service, Respondents contacted a local electrical contractor, who replaced the meter bank and its supports, using new pressure-treated wood. He also increased the service for these eight meters from 100 amps to 150 amps. The power company promptly restored electrical service after these repairs were completed. Respondents did not try to assess the mobile home owners a pass-through charge for this work. Instead, on January 28, 2000, Respondents sent the mobile home owners a notice that their monthly rent would increase by $15 (net, $12, after relieving the tenants of the obligation to pay a $3 monthly administration fee for water and sewer). The notice states that the rent increase is effective May 1, 2000, which may reflect a common commencement date on all lot leases. The letter notes that the park owner "has expended and will expend substantial sums for improvements and upgrades in the park," but warns that the park owner does not know if "any additional tax, utility or assessment prorations will be necessary." The rent increase covered, among other things, the cost of the work to restore electrical service to the eight lots whose meter bank required replacement. On February 12, 2000, the St. Lucie County Building Inspector inspected the electrical distribution system at Tanglewood. He noted the conditions described above and issued numerous citations, which were submitted to the St. Lucie County Code Enforcement office. In 1998, St. Lucie County adopted the National Fire Protection Association code, which is based on the 1996 National Electrical Code. The new code requirements prohibit a wood support system, require the placement of meters within 30 feet of the mobile home, and require underground wiring, but do not require service above 100 amps, which was the minimum level of service at Tanglewood prior to any electrical work following Hurricane Irene. On May 25, 2000, the County Code Enforcement Officer issued a notice of citations to Respondents for unsafe electrical equipment. The officer required the replacement of the remainder of the electrical distribution system. When work stopped at Tanglewood, the County Code Enforcement Officer issued other notices of citations in June 2000. Respondents responded to these demands from the County by undertaking extensive work to Tanglewood's electrical distribution system. The result was a modern electrical distribution system--at a cost of $161,912, plus $28,977.76 in finance charges, for a total of $190,889.76. By Notice of Pass-Through Charge dated August 14, 2000, Respondents advised the mobile home owners of a monthly pass-through charge of $28.61 per lot from December 1, 2000, through November 1, 2004. The notice discloses that the reason for the pass-through charges is the electrical distribution system upgrade that had recently been completed. The evidence is clear that, except for the upgrade to 200-amp service, the electrical work done in this case was governmentally mandated. This finding is supported by the reluctance of Respondents to attend to the electrical system unless a mobile home was without electricity. Despite Respondents' electrical invoices, their park-management policy obviously deferred maintenance, at least with respect to the electrical distribution system. The closer question in this case is whether the work was a capital improvement or a repair. The addition of 50-100 amps of service was a capital improvement, but it was not mandated by the government. So the capital improvement versus repair question applies to the remainder of the work. In their proposed recommended order, Respondents contend that the electrical distribution system was "completely functional" prior to the inspection and citations. This is true as to the function of conducting electricity; this is untrue as to the function of conducting electricity safely. Weakened and sometimes nonexistent supports, rusted holes, holes from missing components, and occasionally exposed wiring substantially undermined the safety of the electrical distribution system at Tanglewood. Respondents argue that new code requirements forced them to relocate disconnects closer to the mobile homes, use four-wire (not three-wire) feeder line to all mobile homes, use electrical-grade conduit, and use metal supports for meter banks. However, these are subsidiary costs of repair, not capital improvements. As contrasted to the expansion of service, the remaining work does not enlarge the capacity of the electrical distribution system. The remaining work repairs the system to make it safer, with some additional work required to meet current code requirements. Respondents argue that the work increases the value of the land. The record does not support this assertion. Even if such evidence were present in this case, it would not be determinative. Although a capital improvement normally adds value, a residential safety hazard subtracts value, so its elimination would have the appearance of adding value. Respondents argue that the work substantially extends the life of the electrical distribution system. This argument would be more appealing in the presence of an effective preventative maintenance program covering such basic needs as replacing wooden supports and metal covers when needed. However, the nature of the work, other than raising the service from 100 amps, is more retrospective than prospective; the work is really only catching up on preventative repairs and maintenance that was not done for years. Once Respondents allowed the system to fall into such a state of disrepair, the secondary costs of bringing the system up to code, such as adding four-wire feeds and relocating disconnects, do not change the nature of the expenditures; they are repair expenses, not capital improvements. Respondents have proved that a portion of the work was clearly the responsibility of individual mobile home owners. For instance, about two-thirds of the mobile homes required $150-$200 of work to separate the grounded conductors from the grounding conductors. However, it is unclear that any of such work, for which individual mobile home owners were directly responsible, was performed on all lots. Even if this work were a capital expenditure, which it is not, it could not be passed "proportionately" among all of the mobile home owners, if only some of them required the work. Respondent contends correctly that the pass-through charges are a minor violation, as defined in Section 723.006(9), Florida Statutes. Respondents fully disclosed the pass-through charges prior to assessing them. The pass-through charges did not endanger the health, safety, or welfare of the mobile home owners; to the contrary. The charges arose from a substantial expenditure by Respondents to enhance the health, safety, and welfare of the mobile home owners. The pass-through charges caused no economic harm to the mobile home owners because Respondents were authorized by the Prospectus to raise the rent by a sufficient amount to compensate for the entire cost of the work on the electrical distribution system. For these reasons, alone, neither a penalty nor a refund is appropriate; a cessation of the assessment of further pass-through charges and the imposition of the maximum civil penalty for a minor violation are sufficient. An order requiring a refund of any portion of the collected pass-through charges may have a disproportionately disturbing effect on Respondents and the mobile home owners. Respondents borrowed the full cost of the work on the electrical distribution system, and this note is payable in 48 equal monthly instalments ending on August 4, 2004. An order requiring a refund of any portion of the monies already collected may result in a significant disruption in the anticipated cash flow to Respondents, necessitating an even greater increase in rent to cover the loss of these funds. Mobile home owners who have left the park between the time of the electrical work and the time of the rent increase would unfairly be relieved of their proportionate share of the cost of this work, and mobile home owners coming to the park after this rent increase would unfairly be imposed with a disproportionately larger share of the cost of this work.
Recommendation It is RECOMMENDED that the Division of Florida Land Sales, Condominiums, and Mobile Homes enter a final order dismissing the Amended Notice To Show Cause against Respondent Carol Yu. It is further RECOMMENDED that the Division of Florida Land Sales, Condominiums, and Mobile Homes enter a final order finding that Chester Yu and Ronald Yu have assessed a pass-through charge in violation of Section 723.031(5), Florida Statutes; that Chester Yu and Ronald Yu shall cease and desist from assessing this pass-through charge upon the effective date of the final order; that the violation is a minor violation and no refund is appropriate under the circumstances; and that Chester Yu and Ronald Yu shall pay a single civil penalty of $250, for which they are jointly and severally liable. DONE AND ENTERED this 19th day of September, 2001, in Tallahassee, Leon County, Florida. ROBERT E. MEALE 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 19th day of September, 2001. COPIES FURNISHED: Ross Fleetwood Division Director Division of Florida Land Sales, Condominiums, and Mobile Homes 1940 North Monroe Street Tallahassee, Florida 32399-0792 Hardy L. Roberts, III General Counsel Department of Business and Professional Regulation Northwood Centre 1940 North Monroe Street Tallahassee, Florida 32399-2202 Janis Sue Richardson Attorney for Petitioner Department of Business and Professional Regulation, Division of Florida Land Sales, Condominiums, and Mobile Homes 1940 North Monroe Street, Suite 60 Tallahassee, Florida 32399-2202 Bernard A. Conko Attorney for Respondent Cohen, Norris, Scherer, Weinberger & Wolmer 712 U.S. Highway One Fourth Floor North Palm Beach, Florida 33408
