The Issue Whether Respondents committed a discriminatory housing practice with regard to their tenant, Petitioner Harry Byrd, when they terminated his tenancy at the LaCoste Family Apartments?
Findings Of Fact Petitioner Harry H. Byrd is disabled due to an automobile accident more than a decade ago in which he suffered critical abdominal, chest and head injuries. He has recovered from these severe injuries with the exception of central nervous system deficiencies. The deficiencies are manifested in at least two ways: impairment of his mobility and impediment of speech. Impairment of Mr. Byrd's mobility requires he use the assistance of a walker or a wheelchair in order to move about. Generally able to communicate when speaking, on occasion, the impediment makes it difficult for his speech to be understood. In August of 1992, Mr. Byrd rented one of the apartment units, Unit No. 11, of LaCoste Family Apartments at 140 West Terry Drive in Pensacola, Florida. LaCoste Family Apartments is owned by LaCoste Family Apartments, Inc., a Florida corporation located in Escambia County. R. H. LaCoste was an officer and a shareholder in the corporation until his death sometime prior to the hearing in this matter. Sandra LaCoste Spann, also know as Sandra LaCoste, is the daughter of R. H. LaCoste and, for the past 15 years, has been the general manager of the apartments. As general manager, Ms. Spann is solely responsible for the day-to- day operations of the apartments, which number approximately 30 units. Her responsibility includes handling complaints and evictions. When Mr. Byrd rented the apartment, pursuant to LaCoste Family Apartment policy, he did not enter a written lease. His tenancy, therefore, was month-to-month. Ms. Spann told Mr. Byrd that at the end of seven months, if the tenancy were satisfactory, he would be offered and required to sign a year's lease in order to remain a tenant. Seven months has been chosen by management as a probationary period prior to entering a written lease because a tenancy on a month-to-month basis that lasted less than 7 months could result in the imposition of bed taxes pursuant to the Escambia County Bed Tax Ordinance. During the probationary period usually applied to a new tenant, LaCoste Family Apartments assesses the tenancy. At the end of the seven months, it does not offer the tenant a lease and provides notice of termination of the tenancy if dissatisfied with the tenant for any number of reasons, for example, if problems are encountered with payment of rent. Along Terry Street, there are sixteen apartment units located in four buildings. Parking for these apartments is on the north side of the buildings. As is the case in the building housing Unit 11, the parking facilities are simply an area to the north of the building; individual parking spaces are not separated physically or visually in any way. Typically, when prospective renters arrive at the apartments, Ms. Spann accompanies them to view the apartment. She also shows them the parking area in front of the apartment building. Just prior to August of 1992, Ms. Spann showed Unit 10 to Mr. Byrd. He had been inquiring about renting for several months. Ms. Spann recommended that Mr. Byrd not rent Unit 10, the entry to which was on the south side of the building, a building's-length away from the parking area. Rather, she recommended that he wait until Unit 11 became available, which she expected to happen shortly. Unit 11's front door faces the parking area making it easily accessible to the area, a feature Ms. Spann thought important to Mr. Byrd in light of his disability. Mr. Byrd followed Ms. Spann's recommendation. In the middle of August, 1992, he moved into Unit 11. Other than a request that the door to the bathroom be removed so that he could maneuver in and out of the room with as much ease as possible, Mr. Byrd made no special requests to management. Management honored the request and removed the door. Mr. Byrd only once complained about any problems with the apartment. It concerned difficulty with a doorknob. Mr. Byrd did not complain to the management about problems he was having with parking. Despite not complaining about parking difficulties, Mr. Byrd did, in fact, encounter several. Most of the difficulties he was able to solve himself. The parking area is on an incline. The incline, if an automobile is parked front end first closest to the apartment building, slopes from the front of the car to the back. When Mr. Byrd backed his 1987 Pontiac out of the parking area, the muffler struck the ground. He began to park at a 45 degree angle. Not only did this solve the muffler problem, but it assisted Mr. Byrd in putting his walker into the backseat or retrieving it while trying to keep his balance entering and exiting the car. The management did not have a problem with Mr. Byrd parking at a 45 degree angle. There were other parking issues Mr. Byrd was forced to face. Occasionally, his neighbors would park their cars in ways that made it difficult for him to park. When they saw him driving in, however, they moved their cars to accommodate him. Their courtesy kept the issue from being a problem for Mr. Byrd. On one occasion, however, Mr. Byrd's neighbors had a party. Cars were parked right next to his. He was unable to enter his own automobile because of the other cars and, therefore, was unable to leave the premises. Mr. Byrd did not complain about the incident to the neighbors or to management. Instead, he talked to Barbara Hoard, a representative with the Human Relations Commission. Ms. Hoard suggested that Mr. Byrd write a letter to management requesting a handicapped parking space. In addition, Ms. Hoard contacted Sergeant Richard L. Benfield, a parking enforcement specialist with the Escambia County Sheriff's Office. On March 9, 1993, Ms. Hoard asked Sergeant Benfield to check the LaCoste Family Apartments to see if handicapped parking facilities were required or would need to be provided. On March 10, 1993, Sergeant Benfield examined the premises. He determined that there were no requirements under state law or county ordinance that required LaCoste Family Apartments to provide a marked handicapped space. He then contacted Mr. R. H. LaCoste and informed him of the findings. Sergeant Benfield did not speak with Manager Sandra Spann. On March 11, 1993, Mr. Byrd, wrote the letter suggested by Ms. Hoard. Addressed to Mr. R. H. LaCoste, the letter, in part, states, Due to the disability caused when I was injured in a car accident ten years ago, I am in need of a reserved parking space in front of my apartment, Unit 11. This accommodation will allow me to have unrestricted access to my apartment. I hereby wish to request this reasonable accommo- dation and am placing this request to you in writing. Pet.'s Ex. No. 2. Mr. Byrd attempted to deliver the letter in person to Mr. LaCoste, first, at the apartment management office. Finding Mr. LaCoste not present, Mr. Byrd drove to Mr. LaCoste's home. Mr. LaCoste was not at home, but Mr. Byrd made the delivery to his wife, Mrs. LaCoste, with whom he spoke for about 10 minutes. The following day, March 12, 1995, Mr. Byrd received a notice signed by Sandra Spann. The notice stated, "Your rental is terminated and ... no further rent will be accepted." It also stated that Mr. Byrd was not under a lease, that Ms. Spann needed possession of the apartment and that, since Mr. Byrd was "on a month to month basis, by law [he was being given] this fifteen day written notice to vacate the premises." Pet.'s Ex. No. 3. The coincidence of the delivery of the "termination" notice the very day after Mr. Byrd's written request for a reserved space and two days following Sergeant Benfield's visit to the premises and discussion with Mr. LaCoste, led Mr. Byrd to conclude the tenancy was being terminated because he had made the request. Furthermore, he felt he was being discriminated against because of his handicap. These conclusions were bolstered in Mr. Byrd's mind by the fact that he had never been late in paying his rent, one of the primary reasons management would consider terminating a tenancy during or at the end of the seven-month probationary period. Despite the coincidence, however, Mr. Byrd's tenancy was not terminated because of the request for a reserved parking space. The letter requesting the reserved parking space had not been seen by Ms. Spann prior to the delivery of the "termination" notice to Mr. Byrd. Nor did Ms. Spann speak to her father or her mother about the letter until after she had delivered the notice. She did not learn of the letter until approximately 2 hours after she delivered the notice to Mr. Byrd's apartment, when her father arrived at the apartment complex around 10 in the morning on March 12. Furthermore, Ms. Spann did not learn of Sergeant Benfield's visit to the complex until her conversation with her father about Mr. Byrd's letter the morning of March 12, again some two hours after delivery of the notice. The timing of the termination letter was prompted by a complaint from Bernice Smart, a tenant of the complex for over four years. Ms. Smart informed Ms. Spann that she would move out if something was not done about Mr. Byrd. Ms. Smart was not the only tenant to complain about Mr. Byrd. In mid- autumn of 1992, Ms. Spann began receiving complaints from Mr. Byrd's fellow tenants. In the late fall complaints averaged about two a week. But, by January of 1993, the complaints grew more frequent. As Ms. Spann testified, Every time I'd turn around, go over, walk through the apartment complex, someone would always stop me and say that ... Harry [Byrd] had been bothering them and they wished I could make him quit coming over to their house and disturbing them. (Tr. 115). In addition to Ms. Smart, complaints about Mr. Byrd harassing them were made by tenants John Stallworth, Larry Hebert, Sam Thomas, and Keith McCaslin. Mr. McCaslin's sister, Cathy Shands, testified that while she lived in her brother's apartment, Mr. Byrd would come to visit, "a little too often." (Tr. 148). He called Mr. McCaslin on the phone, sometimes two or three times a day. In the meantime, Ms. Spann had had her own difficulties with Mr. Byrd. In addition to being general manager of the apartment complex, Ms. Spann also works with the family's electrician's business. She normally arrives at work at 6:30 in the morning to get the employees of the business off to their assignments. Shortly after he moved in, Mr. Byrd began calling in the morning around 7 a.m. while Ms. Spann was busy with the electricians. Sometimes the conversations would take 15 or 20 minutes because of her difficulty in understanding Mr. Byrd over the phone. Finally, she told him he would have to call her at another time if the purpose of calling was simply to talk. On other occasions, after Ms. Spann had back surgery in January of 1993, when Ms. Spann was visiting her boyfriend's apartment, Mr. Byrd would knock on the door, "wanting to know what took us so long to get to the door or what I was doing over there at that time of the night." (Tr. 116.) These visits by Mr. Byrd occurred as late in the evening as 10 o'clock. The experience by the LaCoste Family Apartments with Mr. Byrd is not the only experience of the apartment with disabled persons. Respondent, R. H. LaCoste, himself was handicapped, being a leg amputee with loss of 90 percent of his strength in both arms. In addition to Mr. Byrd, the complex has enjoyed the tenancy of at least four other handicapped tenants. One of these tenants, Mary K. Hardy, uses a walker. She has known Ms. Spann for six years and has never been treated by her with any discrimination. In fact, Ms. Spann has gone out of her way to see that Ms. Hardy was accommodated in light of her handicap. In sum, Mr. Byrd's tenancy was terminated, not because of the request for a reserved handicapped parking space or due to any discrimination, but because of numerous complaints received from other tenants that Mr. Byrd harassed them and because of Ms. Spann's personal experience with Mr. Byrd as a difficult tenant who acted inappropriately.
Recommendation Accordingly, it is RECOMMENDED: That the Florida Commission on Human Relations enter a final order dismissing Petitioner's claim of discrimination. DONE and ORDERED this 22nd day of August, 1995, in Tallahassee, Leon County, Florida. DAVID M. MALONEY Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 22nd day of August, 1995. APPENDIX Petitioner did not submit proposed findings of fact. Respondent's proposed findings of fact: Proposed Findings of Fact Nos. 1 - 56, and 58 -64, insofar as material, have been adopted. With respect to Finding of Fact No. 57, the finding is accepted insofar as it relates to state law enforced by Sergeant Benfield. To the extent the finding is a conclusion of law that no parking space would have been able to have been reserved for Mr. Byrd, the finding is rejected. It may very well have been that Section 760.23(9), Florida Statutes, required a reserved space as a "reasonable accommodation ... necessary to afford [Mr. Byrd] equal opportunity to use and enjoy [the] dwelling." By the time Mr. Byrd made the request, however, his tenancy was soon to terminate. Findings of Fact No. 66 - 78, are rejected as irrelevant given the recommendation in this order. COPIES FURNISHED: Austin B. Gran, Esq. Post Office Box 12691 Pensacola, FL 32501 Michael J. Stebbins, Esq. RAY, KIEVET & KELLY Post Office Box 13490 Pensacola, FL 32591-3490 Dana Baird General Counsel 325 John Knox Road Building F, Suite 240 Tallahassee, FL 32303-4149 Sharon Moultry, Clerk Human Relations Commission 325 John Knox Road Building F, Suite 240 Tallahassee, FL 32303-4149
The Issue Whether Petitioner has been the subject of discrimination in housing due to a handicap.
Findings Of Fact Petitioner is a 52-year-old female who has a mental disability which impairs her ability to manage her money and stay organized. She is unemployed and relies on Social Security and a special needs trust to support herself. Her sister, Katherine Newman, is the trustee of Petitioner's trust. However, Petitioner's outward presentation is of an intelligent, capable, and non-disabled person. Until 2009, Petitioner, when not hospitalized, either lived with her mother or resided with another person. For a variety of reasons and with the concurrence of those involved in her care, in 2009, Petitioner, at around age 50, decided to attempt living by herself. Respondent, GrandeVille on Saxon, Ltd. (GrandeVille), is the owner of GrandeVille on Saxon, a large apartment complex located at 741 Saxon Boulevard, Orange City, Florida. GrandeVille contracted with Respondent, Cambridge Management Services, Inc. (Cambridge), to manage the GrandeVille apartment complex. During 2009 and 2010, Respondent, Carol Werblo, was an employee of Cambridge Management Services, Inc., and acted as a leasing agent for the GrandeVille apartment complex. In the past, she was recognized as the outstanding leasing agent for the GrandeVille apartment complex, as well as for all properties managed by Cambridge. She continues as a leasing agent for the apartment complex to date and has earned several Certificates of Achievement in Fair Housing Training over the years of her employment. Indeed, all employees of Cambridge receive fair housing training upon employment. Thereafter, all employees receive annual fair housing training. In 2009, GrandeVille required a prospective lessee to submit a completed application, and pay $299.00 in application, administrative and reservation fees (collectively the “application fees”). GrandeVille would not reserve an apartment or enter into a lease with a prospective lessee without a completed application and payment of all application fees. Additionally, GrandeVille required all applicants to be screened for rental history or mortgage payment history, employment history, credit history, and criminal background prior to approval of the application. After approval of an application, the prospective lessee may enter into a Reservation Agreement with GrandeVille to reserve a specific apartment within the complex and establish an anticipated move-in date. The Reservation Agreement identified the applicant’s future address, as well as, provided information concerning utilities, services and move-in procedures. The Reservation Agreement also notified prospective lessees that they were required to secure electric service and renter’s insurance before signing a lease and moving in. Additionally, the Reservation Agreement required an appointment prior to a lessee taking possession of an apartment in order to execute a formal lease agreement. In general, the application process at the GrandeVille apartment complex could take anywhere from a day to a longer period of time to complete, depending on the day and time the application is given to the facility. Importantly, applications could not generally be approved over a weekend since the person with authority for such approval did not generally work over the weekend and some of the screening process could not be completed. If there was an emergency housing situation over a weekend, the person responsible for application approval could be called by telephone to review the application, if they were available. However, the evidence did not demonstrate any housing emergency during the time period relevant to this action since Petitioner always had places she could live supplied by either family or friends available to her. Cambridge manages the inventory of apartment units at the GrandeVille complex by use of “availability reports” that are computer generated and printed daily. Leasing agents at the complex use the reports to locate apartments that can be shown and are available to rent. The availability reports list the apartment complex's inventory by floor, apartment number, number of bedrooms, type, and availability to rent. The number of bedrooms an apartment has is represented by a letter, with "A" designating a one bedroom apartment. The type of an apartment is, also, represented by a letter, with "I" designating an apartment with a glassed-in area known as an imagination room and "S" designating an apartment with a screened-in lanai. Additionally, the availability reports separate apartments into various categories. The categories under which apartments are separated are 1) vacant, not leased, and ready to show; 2) vacant, not leased, not ready to show; 3) occupied, but have received notices to vacate and are not leased; 4) occupied, but have received notices to vacate and are leased; and 5) vacant, still under lease, but ready to show. Since the apartments in categories three and four are still occupied, they cannot be shown to prospective tenants and are not available to lease. Apartments in category two cannot be shown to prospective tenants because they are not ready to show since, necessary repairs, painting, replacement and maintenance have not been completed after their occupants moved out. These units are not available for immediate occupancy and repairs are highly dependent on the workload and schedule of maintenance personnel or subcontractors. Units in categories one and five may be shown to prospective tenants and are available to lease, subject to the apartments lease status. Importantly, only apartments in category one are available for immediate or near immediate occupancy if a prospective lessee first applies, reserves, and pays all of the application fees. Around January 9, 2009, Petitioner was looking for a one-bedroom apartment. She saw an advertisement in a local rental magazine for the GrandeVille apartment complex. On January 9, 2009, she visited the complex. During this visit she was shown two one-bedroom apartments by Respondent Carol Werblo. Ms. Werblo followed her standard process in showing apartments to a prospective lessee. One apartment shown to Petitioner had an imagination room. According to the availability reports for that day, the apartment which Petitioner viewed was apartment 10118. The apartment was under a current lease but could be shown since it was vacant. Occupancy was subject to the terms of its current lease. The other apartment shown to Petitioner had a screened- in lanai. According to the availability reports for that day, the lanai apartment which Petitioner viewed was either apartment 10217 or 10219. Apartment 10217 was vacant and could be leased and occupied. Apartment 10219 was under a current lease, but could be shown since it was vacant. Occupancy of 10219 was subject to the terms of its current lease. Upon seeing the two apartments, Petitioner fell in love with the imagination room apartment. She told Ms. Werblo that she wanted to rent the apartment she had seen. In fact, Petitioner was only interested in renting a one bedroom, imagination room apartment. She was not interested in renting any other type of apartment. Following the viewing, Ms. Werblo again followed her usual procedure and discussed the application and leasing process and the rents charged by GrandeVille with Petitioner. Petitioner, per standard practice, was also provided a rate sheet showing market rent for the various apartments. Handwritten on the sheet were reduced rent rates for the one- bedroom and two-bedroom apartments based upon rent promotions or specials that were available on January 9, 2009. These promotions are limited in time and often change depending on apartment availability. The promotional rates can only be locked in by reserving an apartment while they are in effect and are one reason for reserving an apartment early in the application process. The evidence was unclear and did not establish that Petitioner told Ms. Werblo that she was disabled or handicapped or, if she did, the nature of that disability or handicap. Petitioner did advise Petitioner that she wanted to talk to her sister, Katherine Newman, about leasing the apartment and that her sister handled her money. The evidence was again unclear and did not establish that Petitioner told Ms. Werblo that she had a trust that supplied her income or that her sister was the trustee of that trust. The evidence was clear that, even after discussing the application and leasing process with Ms. Werblo, Petitioner did not complete an application or pay any application fees on January 9, 2009, so that an application could be processed and, if approved, an apartment reserved for her. Therefore, she did not apply for a lease or reserve any apartment on that day and Respondents were not obligated to hold an apartment for her. Additionally, there was no evidence introduced at the hearing as to any specific threshold requirements that a prospective lessee must meet. Petitioner's ability, at substantially later times, to qualify to rent an apartment at another apartment complex or obtain a mortgage on her mother's home does not establish that Petitioner met Respondents' requirements in January of 2009. Given this lack of evidence, it cannot be concluded that Petitioner met Respondents' screening requirements and Petitioner has, therefore, failed to establish that she was qualified to lease an apartment from GrandeVille. There was also no evidence that Petitioner may not have fully understood the application and leasing process. Indeed, Petitioner admitted that she did not fill out an application or pay the application fees because she felt such financial matters were her sister's area of responsibility. Even if Petitioner did not understand the application process, there was no evidence that Respondents could or should have known about Petitioner's lack of understanding. Given these facts, there was no evidence that any of the Respondents discriminated against Petitioner during her visit to the apartment complex on January 9, 2009. As stated above, Petitioner decided she wanted to rent the imagination room apartment and told her family and friends she was going to move into this apartment even though she did not know or have an apartment number. Petitioner told Ms. Newman about the apartment and the amount of rent under the rent promotion. She asked her sister to contact the apartment complex so that she could rent the apartment. As indicated, Ms. Newman is the sister of Petitioner and is the trustee of her special needs trust. She is a licensed Certified Public Accountant in Florida. She often advises Petitioner on financial matters. She perceives her duty as trustee to conserve the funds and make sure dollars are not spent unwisely. As such, she was in favor of Petitioner’s living independently, but was reticent about the amount of rent and expenses such independent living would entail. Ms. Newman felt the promotional rent was somewhat high for the area. However, she did feel the apartment complex met Petitioner's need for a secure living environment. On January 14, 2009, Ms. Newman telephoned the GrandeVille complex to inquire about one-bedroom apartments and to negotiate a better deal for Petitioner. She spoke with Carol Werblo. The conversation took about 10 or 15 minutes. Ms. Newman told Ms. Werblo that she handled Petitioner's financial affairs and that rent would be paid from a special needs trust. The evidence was unclear and did not establish that she advised Ms. Werblo that her sister was disabled or the nature of the disability. However, the evidence did establish that Ms. Newman thought the rent at the apartment complex was too high and communicated that belief to Ms. Werblo. Her position about the rent also made her less than pro-active in assisting her sister in going through the application and leasing process. Ms. Newman did attempt to negotiate a lower rate. The negotiation was unsuccessful. She knew Petitioner had “terrible credit” and correctly believed Petitioner could not pass the application screening process for renting an apartment without providing financial information about her trust. Ms. Newman did not provide any documentation to Respondents about the trust that would have supported any potential application for Petitioner. She did not complete an application to lease the apartment for her sister because her sister was legally capable of completing the application herself. However, she did not ascertain any of the steps that Petitioner needed to take to apply, reserve, or lease an imagination room apartment. She did not pay any application fees and did not transfer any funds to either Petitioner or GrandeVille to cover the application fees or monthly rental amount. Indeed, there was no credible evidence introduced at hearing that either Petitioner or Ms. Newman had demonstrated to Respondents that Petitioner had the financial capability to rent an apartment. In fact, there was no evidence that any of the Respondents discriminated against Petitioner on January 14, 2009, since neither Ms. Newman nor Petitioner provided any financial documentation to Respondents or otherwise completed any of the steps necessary to reserve or lease an apartment at the GrandeVille complex. Additionally, given this lack of evidence and since the only significant contact Ms. Werblo had with Petitioner or her sister occurred on January 9 and 14, 2009, the charges of discrimination against Ms. Werblo should be dismissed. In the interim, Petitioner mistakenly believed the imagination room apartment was hers for leasing at the rent she had discussed with Ms. Werblo on January 9, 2009. Since her visit she had bought furnishings for the apartment. In an e- mail to Ms. Newman dated January 28, 2009, Petitioner stated, “I want to sign a lease the first week of February.” In a January 30, 2009, e-mail, Petitioner told Ms. Newman she had obtained a telephone number for the apartment and was “going to the apartments to get lease papers and look one more time at the apt.” Petitioner was excited and looking forward to living on her own. Interestingly, Ms. Newman never informed Petitioner that she had not completed any steps necessary to financially enable Petitioner to apply for or reserve the imagination room apartment. At best, it appears both Petitioner and her sister wrongly assumed the other had performed or completed the rental process required by Respondents for all prospective lessees. Sometime between January 29, 2009, and January 31, 2009, Emily Tyler completed an application, and was approved to lease apartment 10219. The apartment was one of the two apartments Petitioner had looked at on January 9, 2009. It was the last lanai-style apartment on either the first or second floor of the apartment complex where Petitioner was interested in renting. After approval, Ms. Tyler reserved the apartment and paid all of the required application fees on January 30 or 31, 2009. Given this transaction and according to the availability reports, there were no imagination room-style apartments on the first or second floor available for leasing on January 31, 2009. There was one lanai-style apartment on the third floor. However, Petitioner was not interested in leasing a lanai apartment or leasing an apartment on the third floor. After the second floor unit was reserved by Ms. Tyler, Petitioner, on Saturday, January 31, 2009, returned to the GrandeVille apartment complex to sign a lease and rent the one- bedroom imagination apartment she had viewed. Petitioner assumed the apartment she wanted would be ready for her when she visited the apartment complex. Indeed, she had arranged for family and friends to help her move in that weekend. Upon entering the building, Petitioner asked the leasing agent, Patrick Smith, who was a young college student, for “the lease documents” so that she could sign the lease to rent the apartment on that day. Mr. Smith was not familiar with Petitioner and met her for the first time on that day. She did not speak with Ms. Werblo who was busy with other clients. However, no application had been submitted, no application fee had been paid, no application screening had been done, no lease had been prepared for her, and no move-in date was scheduled for Petitioner. Additionally, the person who could approve an application was not present at the complex since the weekend was her scheduled time off and she would not return to work until Monday. Additionally, Petitioner did not have any means to pay the required application fees of $299.00 with her and did not offer to pay the application fees. Given these facts, Petitioner has failed to demonstrate that she was qualified to lease an apartment from GrandeVille on January 31, 2009, and has failed to demonstrate that Respondents discriminated against her by not leasing her the apartment she had viewed. Mr. Smith told Petitioner that the only one-bedroom unit available that could be rented by Petitioner for immediate or near immediate occupancy on January 31, 2009, was a third- floor screened lanai unit. Mr. Smith offered to show Petitioner the third-floor lanai unit. He also checked and printed out the apartment complex's availability report which showed only one one-bedroom lanai apartment available and ready to rent on January 31, 2009. Petitioner became upset. She was not interested in the lanai apartment and so informed Mr. Smith. She told Mr. Smith that she only wanted to rent the imagination room apartment that she had been shown and she wanted to move in over that weekend. Petitioner testified that Mr. Smith indicated, based on the availability report for January 31, 2009, that the apartment she had seen was not available and ready to rent that day and further the only one-bedroom apartment available to rent that day was the third-floor lanai apartment, not an imagination room apartment. The statement was accurate since no apartment of the type and location Petitioner was interested in was available for immediate occupancy over the weekend. Mr. Smith could not give Petitioner a lease since she had not completed the required application process. He tried to explain to Petitioner that she must qualify to lease an apartment by first completing an application. Moreover, there were no units available for occupancy over the weekend that met Petitioner's style and location criteria. After talking with Mr. Smith, Petitioner became confused and did not know what to do. She stepped outside the building and telephoned Ms. Newman. She returned to the lobby of the GrandeVille complex, asserted the leasing agent knew she was disabled, demanded copies of the availability report, contested the truthfulness of the leasing agent’s information, and threatened to sue. She also demanded rent records for the apartment complex. At the time, Petitioner was not entitled to the private records of the apartment complex and was denied copies of these records. Petitioner again telephoned Ms. Newman who suggested she was being discriminated against and told her to leave. Petitioner then left the premises. The evidence did show that there were three apartments on January 31, 2009, that might have been made available to rent at a near future date. These apartments were 16213, 16214, and 16217. These apartments were vacant, but none were available to move in over the weekend of January 31, 2009, since all needed some sort of repair or maintenance since last occupied. In fact, the evidence indicated that none of the apartments was ready for occupancy until over a month later. The rent offers they were available at had not changed since January 9, 2009. However, at no time did Petitioner attempt to apply or reserve an apartment of the type she desired. She simply demanded to sign a lease on January 31, 2009, for a one-bedroom imagination room apartment on the first or second floor so that she could move in that weekend. No such apartments were immediately available to meet Petitioner's demands. Respondents did not misrepresent the availability of any apartments or information about its rent specials on January 31, 2009, and did not otherwise, discriminate against Petitioner. Additionally, Respondent never complied with Respondent's requirements to lease an apartment. Given these facts, the Petition for Relief should be dismissed.1/
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 Petitioner's Petition for Relief. DONE AND ENTERED this 30th day of December, 2011, in Tallahassee, Leon County, Florida. S DIANE CLEAVINGER 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 30th day of December, 2011.
Findings Of Fact Upon consideration of the oral and documentary evidence received at the final hearing, the following relevant facts are found: At approximately 9:30 A.M. on February 10, 1984, petitioner, a black female, telephoned a number listed in the newspaper to inquire about a duplex for rent. She was informed that an apartment was available and that she would need to bring $410.00 which included $200.00 for a security deposit and a monthly rental fee of $210.00. Petitioner informed the lady on the telephone that she would be there to see the apartment around 11:30 A.M. Petitioner went to the bank to get the $410.00 and then drove to the Highlands Apartments rental office. When she drove up in the driveway, a lady came running out and introduced herself as Evelyn Massey. According to the petitioner, Ms. Massey said "I told you on the phone that I had an apartment for you, but I don't have." She went on to explain that another lady had previously paid a deposit on the apartment and had not come back; but, between the time of talking to petitioner that morning and then, the lady had come back and paid the rest of the money and thus had the apartment. Ms. Massey also informed the petitioner that that unit was the only apartment available and that she had no other vacancies. After this incident, petitioner telephoned Laurie J. Turner between 12:30 and 1:00 P.M., told her what had happened and requested her to call the same telephone number petitioner had called and to inquire about an apartment. Ms. Turner, a white female, did call the number given her by petitioner, a gentleman answered the telephone, she inquired about the availability of the apartment in the newspaper and he told her, according to Ms. Turner, that it was still available. Ms. Turner then related this information to petitioner. In response to petitioner's contact with the EOO on February 10, 1984, Jeanette Fenton, the Equal Opportunity Assistant/Fair Housing Administrator, began her investigation and made several telephone calls to the Highlands Apartments on that same day. According to Ms. Fenton, "various responses, contradictory responses, were received as to the availability of apartments there." Ms. Fenton also decided to send a black female and a white female as testers to determine the type of treatment that would be received at the Highlands Apartments. On February 10, 1984, Ms. Fenton called Jeanese Wells, a black female, explained that she had a complaint of discrimination against the Highlands Apartments and requested her to go out there and inquire about an apartment. Ms. Wells telephoned the Highlands Apartments on February 11, 1984, spoke to a woman who did not identify herself and inquired if there was a unit available for rent. The woman indicated that there was and gave Ms. Wells directions to the apartments. When Ms. Wells arrived, a woman named Evelyn showed her an apartment and told her that the charges and terms would be a $350.00 deposit, a $35.00 application fee and a one-year lease. Ms. Wells was also informed that her credit references and previous residences would be checked. When Ms. Wells inquired as to whether anyone else was interested in the apartment, Evelyn replied that she had had several phone calls on it, but no firm commitments. According to Ms. Wells, Evelyn showed no reluctance to lease the apartment to her and "there was no negative interaction between the two of us." Ms. Wells did not describe the apartment she inspected. On the same day, February 11, 1984, Ms. Fenton, a white female, telephoned the number listed in the newspaper, spoke with a female named Evelyn, was informed that a unit was available and was given directions to the Highlands Apartments. Ms. Fenton drove out there and inspected a one-bedroom unit, accompanied by Evelyn. According to Ms. Fenton, Evelyn informed her that the requirements for renting the unit would be a $200.00 deposit, rental payments in the amount of $60.00 a week or $210.00 a month, and a six month's lease. No application fee would be required, but there was an application form which required information regarding employment, credit references and landlord references. Ms. Fenton was told, however, that she could move into the unit that day if she wished, that there were no other apartments that were vacant and that the one-bedroom apartment she was viewing was the one that was advertised in the newspaper. Petitioner submitted her formal housing discrimination complaint to the EOO on February 15, 1984. By letter dated March 1, 1984, the EOO informed Roy Hansen that a complaint involving the Highlands Apartments had been filed and transmitted a copy of the complaint to him. The EOO continued to investigate the matter, found probable cause that a violation of the Fair Housing Ordinance had occurred and attempted conciliation. Petitioner Shorter left Hillsborough County for six to eight months between February 15, 1984 and June of 1985. During the conciliation process, petitioner no longer wished to lease a unit at the Highlands Apartments and desired to settle her complaint for an amount of $10,000.00 in damages as compensation. Mr. Hansen was willing to settle the complaint for $200.00 to avoid the expense of attorney's fees. Petitioner rejected Mr. Hansen's counter- offer and requested a hearing by letter dated June 19, 1985. Ms. Evelyn Massey left the State of Florida shortly after the events which occurred on February 10 and 11, 1984. She did not testify in this proceeding and her whereabouts are unknown. Mr. Ron Massey left Florida around November of 1984 and his whereabouts are likewise unknown. Roy Hansen is a professor of sociology at the University of South Florida, a private consultant and a part- owner of the Highlands Apartments, which contains several complexes and includes 104 separate units. He employed a manager, Ron Massey, to care for the apartments on a day-to-day basis and to handle rentals. One of the reasons Mr. Massey was hired was because he had had prior experience in managing a predominantly black rental complex. In February of 1984, Ron Massey was married to Evelyn Massey and they lived together in one of the Highlands Apartment units which was also utilized as the rental office. While Evelyn Massey did answer the telephone in that office and did show apartments to potential tenants, only Ron Massey was employed as the manager and only he received a salary therefor. Mr. Hansen instructed the Masseys to apply equal criteria to all potential tenants. Out of 104 units, approximately 17 are rented to minorities. The normal deposit required at the Highlands Apartments was $200 or $350 if the tenant had a pet.
Recommendation Based upon the findings of fact and conclusions of law recited herein, it is RECOMMENDED that the housing discrimination complaint filed by Julia M. Shorter on February 15, 1984, be DISMISSED. Respectfully submitted and entered this 11th day of April, 1986, in Tallahassee, Florida. DIANE D. TREMOR, Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32399 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 11th day of April, 1986. COPIES FURNISHED: Julia M. Shorter 8307 Bahia Street Tampa, Florida 33619 George W. Phillips P. O. Box 270504 Tampa, Florida 33688 Amelia G. Brown Assistant County Attorney P. O. Box 1110 Tampa, Florida 33601 Robert W. Saunders, Director Equal Opportunity Office P. O. Box 1110 Tampa, Florida 33601 APPENDIX The proposed findings of fact submitted by the respondent and the intervenor have been approved and/or incorporated in this Recommended Order, except as noted below: Respondent 3. Rejected, contrary to the evidence of record. Intervenor 1. No substantial evidence that Ms. Shorter applied for a "one bedroom apartment." 8. Rejected, not supported by competent substantial evidence.
The Issue Whether Petitioner was the subject of discrimination based on her sex or handicap in leasing her apartment from Respondent in violation of Sections 804d and 804d or 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 760.23(2) (4), Florida Statutes (2006).
Findings Of Fact Petitioner resided at Respondent’s Thacker I property for at least a year prior to her move to Respondent’s Pinewoods Place Apartments located at 5929 Pinewoods Place, Milton, Florida 32570. Petitioner moved to Pinewoods, Apartment 25, around March or April of 2003. Neither Petitioner nor Respondent had any material problems with each other during her residency at Thacker I. Her move to Pinewoods resulted from her request to move to a larger apartment. Pinewoods is a large complex managed by Respondent. Some of the units are subsidized by HUD. A list of tenants in the Pinewood complex reflect 58 tenants. Of the 58 tenants, 34 are female. Eleven of the tenants have a disability. In fact, Respondent contracts with providers who serve the disabled to provide apartments to their clients and provides such apartments regularly. Respondent accommodated Petitioner’s request to move to Pinewoods by not requiring a full year’s lease since she had already completed a year at Thacker I and by allowing Petitioner to transfer her deposit from the Thacker I apartment to the Pinewoods apartment. Because of these accommodations, Petitioner was permitted to lease her Pinewoods apartment on a month-to-month lease with an additional deposit of $95. Respondent also accommodated Petitioner in her move by leaving her rent amount the same as it was at Thacker I. Thus, Petitioner paid $400 a month rent instead of the normal $450 a month rent paid by other tenants in comparable apartments. Petitioner did not visit Unit 25 prior to her move to Pinewoods because it was occupied. No other units were available for her to inspect prior to her move. Additionally, HUD inspected the Unit 25 prior to Petitioner’s move and found no violations and that the apartment met HUD standards for being mechanically sound and safe. There was no evidence of any representations made by Respondent to Petitioner regarding Unit 25, and Petitioner did not introduce any evidence of such misrepresentations. Clearly, contrary to Petitioner’s assertions of misrepresentations about her apartment or her assertion that she looked at her Unit or a model, her apartment was not misrepresented to her prior to her move to Pinewoods, and no discrimination on the basis of sex or handicap occurred. Sometime after her move, Petitioner began to complain about her apartment. The evidence was vague regarding most of her complaints, and Petitioner declined to testify about many of her allegations. For instance, there was a vague complaint about leaves being blown into her yard from the sidewalk when the maintenance crew would clear the sidewalk of leaves. However, this method of clearing the sidewalk occurred throughout the complex and was not directed toward Petitioner. Likewise, there was a vague complaint about the trash lady disturbing Petitioner’s morning coffee by performing her assigned duty of picking up trash around the apartment complex. Again, there was no evidence of any activity being directed at Petitioner based on her sex or handicap. At some point, Petitioner complained to Respondent about her dryer vent not working properly. After several complaints and in an effort to resolve Petitioner’s complaint, Respondent’s maintenance person put an interior box-style lint trap, in her Unit. Respondent stated he felt this was the best solution because a member of the maintenance staff used the same type lint trap at his home. Petitioner, for a variety of reasons, was not satisfied with Respondent’s solution and vented the dryer to the outside herself. There is some dispute over whether Petitioner’s repair was safe or done correctly. There is no evidence that indicates Respondent discriminated against Petitioner on the basis of sex or handicap. Petitioner also complained about the sliding glass doors being fogged and wanted them replaced. Respondent explained that the doors were safe and that 55 other residents have fogged glass doors. Respondent refused to replace the glass doors. The next day Petitioner complained to HUD about the fogged glass door being “non-operable.” Because of the complaint, Robert Youngblood from the HUD office in Milton met Respondent’s maintenance staff at Petitioner’s apartment and discovered that the slider had been knocked off its track. Mr. Youngblood reported to Respondent that it was very clear the door had been sabotaged because he had just inspected that same door just days before because of a prior complaint. Respondent fixed Petitioner’s door again. Additionally, the sliding glass door that Petitioner complained about was inspected by both Santa Rosa Glass and Milton Glass. Petitioner also kept an untagged vehicle in the parking lot and threatened to sue if it were towed. All the Pinewoods’ leases contain a provision that untagged vehicles are not permitted on the premises and will be towed. In order to avoid the vehicle being towed, Petitioner switched the tag from her tagged vehicle to her untagged vehicle and back again as notice was given to her. Petitioner again felt this action was discrimination. Again there was no evidence to support Petitioner’s claim. On January 5, 2006, a little more than two years after she moved to Pinewoods, Petitioner complained, when she came to the office to pay her rent, that her garbage disposal did not work. The staff person who took Petitioner’s rent sent a maintenance person that day to look at Petitioner’s garbage disposal. The maintenance person looked at the alleged disposal location and discovered that Petitioner did not have a garbage disposal. There was no plumbing for one. The evidence showed that many units did not have a garbage disposal and that disposals were removed from each unit as they broke down. Petitioner insisted that she should have a garbage disposal since there was a switch on the wall for one. Because of her actions concerning the garbage disposal, Petitioner was given a Notice of Non-Renewal, dated January 6, 2006. Petitioner refused to pay any rent and refused to vacate the apartment based on her belief that Respondent had discriminated against her based on her sex and handicap. She maintained this belief even though she testified that “everybody had problems getting things fixed.” Indeed, her only witness corroborated that men and women, handicapped and non-handicapped have trouble getting things fixed. No reason was given for the non-renewal. Respondent testified that he was tired of Petitioner’s actions and deceitfulness. Petitioner chose to withhold her rent when it was due in February 2006, so that Respondent would bring eviction proceedings against her. Respondent eventually brought eviction proceedings against Petitioner. At the eviction hearing, Petitioner told the judge she wanted to be evicted so it would become public record. Respondent was awarded possession of the premises. After Respondent was given possession, the next morning he received a copy of a letter to the judge requesting that he rescind his decision and requesting another judge. Petitioner has since moved to another apartment. As with the other incidents described above, the evidence did not demonstrate that Respondent discriminated against Petitioner on the basis of her sex or handicap. Therefore, the Petition for Relief should be dismissed.
The Issue Whether Respondents discriminated against Petitioner in violation of the Fair Housing Act1 as alleged in the Petition for Relief filed by Petitioner with the Florida Commission on Human Relations (FCHR) on January 7, 2005.
Findings Of Fact Prior to its sale to Mr. Aizenstat, Mr. Maine owned the Building in which Petitioner leased an apartment. Mr. Maine decided to sell the Building, and he employed Respondent Alvarez and his company to represent him as his real estate broker. At all times relevant to this proceeding, Respondents were acting as agents on behalf of Mr. Maine. There were four apartments in the building, one of which was the apartment leased by Mr. Maine to Petitioner. Respondents notified all apartment owners of Mr. Maine’s plans to sell the building and secured permission from each tenant, including Petitioner, to show the tenant’s apartment to prospective purchasers.3 During the course of deciding whether to purchase the Building, Mr. Aizenstat arranged with Mr. Alvarez to view and photograph the interiors of the apartments. With Petitioner’s permission, Mr. Alvarez and Mr. Aizenstat entered Petitioner’s apartment on February 11, 2004, and took a number of photographs. Mr. Alvarez and Mr. Aizenstat also photographed the interiors of the other apartments in the Building as well as photographs of the exterior of the Building. The reason for taking each photograph was business-related. Petitioner is a white male and Mr. Alvarez is of Hispanic origin. Petitioner alleged that Mr. Alvarez called him a “gringo” when he was trying to get Petitioner to sign some documents pertaining to his tenancy in the Building.4 The confrontation at which Mr. Alvarez allegedly made the racial slur occurred the first part of March 2004. Mr. Alvarez denied using any racial slur directed towards Petitioner. The undersigned finds that denial to be credible. Mr. Aizenstat was present during the confrontation at which Mr. Alvarez allegedly made the racial slur. Mr. Aizenstat testified that Mr. Alvarez made no racial slur towards Petitioner. The undersigned finds Mr. Aizenstat’s testimony to be credible. The conflict in the evidence is resolved by finding that Petitioner failed to meet his burden of proving that such a slur was made. During that confrontation between Petitioner and Mr. Alveraz in early March 2004, Mr. Alvarez asked Petitioner to sign certain documents so that Mr. Maine would not have to institute eviction proceedings against him. That statement was not a threat and it was not made because of Petitioner’s race. As a consequence of the sale of the Building by Mr. Maine to Mr. Aizenstat, all tenants had to move out of the Building. At the time of the final hearing, the Building was vacant. Mr. Aizenstat testified that he planned to tear down the Building and build another structure on the property. There was no evidence that Respondents treated Petitioner any differently than any other tenant in the Building either before or after the sale of the Building to Mr. Aizenstat.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that FCHR enter a final order dismissing the Petition for Relief that underpins this proceeding. DONE AND ENTERED this 4th day of August, 2005, in Tallahassee, Leon County, Florida. S CLAUDE B. ARRINGTON 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 4th day of August, 2005.
The Issue The issue in this case is whether Respondent violated the Fair Housing Act, Section 760.20, et seq., Florida Statutes (2008), by denying Petitioner housing based on her gender (female) and familial status (pregnant).
Findings Of Fact Petitioner, Victoire Merceron, is a single mother with three children. At all times relevant hereto, she was living at an apartment complex known as The Pines pursuant to a Lease with NDC Management. There was an Employee Lease Addendum dated February 2, 2008, attached to Petitioner's Lease. The Addendum was signed by Petitioner to reflect her status as an employee of NDC Management and, therefore, eligible for a reduction in her monthly rent. Respondent, The Partnership, Inc., is a real estate management company specializing in managing affordable housing properties which are experiencing problems or business difficulties. Respondent began managing The Pines on August 1, 2008. Prior to that time, The Pines had been managed by NDC Management. Petitioner had worked as a leasing consultant with NDC Management at The Pines from October 2007 until July 2008. During that time, she enjoyed the benefit of a 20 percent reduction in her rent (which was provided to all employees of NDC Management who lived in a managed property). The Pines is owned by Punta Gorda Pines, Ltd. It is a 336-unit apartment complex which provides low income housing (affordable housing) for qualified persons. One hundred percent of the units at The Pines are set aside for low income residents. Of the 336 units, 202 units (60 percent) have a rental amount which does not exceed 60 percent of the area median income. One hundred and one units (33 percent) have an even lower rental amount. The rental amounts and number of units is established annually by the Florida Housing Finance Corporation. Respondent was contacted by the owner of The Pines at some point in 2008 concerning the assumption of management of The Pines due to problems existing at the property. Respondent visited the property in July and met with some of the existing staff and management. Respondent then assumed management of The Pines on August 1, 2008. At that time, approximately 40 percent of the units at The Pines were not under lease to a tenant, i.e., the property was only 60 percent occupied. Sixty percent occupancy is evidence of a "problem affordable property" from Respondent's perspective. When Respondent took over management of The Pines, it terminated some of NDC Management's employees and retained some other employees. Petitioner was not retained by Respondent as an employee. The Employee Lease Addendum to Petitioner's Lease at The Pines included a clause that required Petitioner to vacate her apartment within 15 days of termination of her employment with NDC Management. Petitioner was terminated as of July 31, 2008. Upon termination of her employment, Petitioner requested from Respondent that she be allowed to remain in her current apartment beyond the 15-day extension period. That request was granted by Respondent, and Petitioner was ultimately allowed to stay in the apartment through the end of August 2008. As of July 31, 2008, Petitioner had two children and was pregnant with a third. Inasmuch as she would need a home for her family, Petitioner asked Respondent to consider her as a new, non-employee tenant. Respondent agreed to consider Petitioner's request and asked Petitioner to provide proof of income so that a predetermination review could be conducted. It was Respondent's policy to do a predetermination review prior to the formal application process. The stated reason for this practice was that Respondent did not want an applicant to have to pay the non-refundable application fee, if the applicant was unlikely to be qualified to obtain an apartment. Respondent made its predetermination of eligibility using an Income and Rental Rates Chart which Respondent had developed. The chart indicates the income necessary for rental of different size apartments within the complex. In response to Respondent's request for income verification, Petitioner provided Respondent with a form (or letter) indicating that she had applied for payment of unemployment compensation for a two-week period. The form indicated that Petitioner would receive $225.00 per week for that two-week period. Petitioner represented to Respondent's agents that she had been approved for up to six months of unemployment compensation at $225.00 per week.1 There was, however, no competent evidence of that fact presented to Respondent (or introduced into evidence at the final hearing). Respondent calculated the amount of Petitioner's anticipated income based on the stated unemployment compensation payments to be made. Two-hundred and twenty-five dollars per week for an entire year (52 weeks) would be a total of $11,700.00. However, inasmuch as Petitioner only represented that she might receive up to six months of unemployment compensation, her anticipated annual income would be one-half that amount, or $5,850.00. That amount of income was not sufficient to warrant approval for even the lowest priced units available at The Pines, i.e., $10,660.00 per year.2 Based upon its predetermination review, Respondent denied Petitioner's initial inquiry concerning eligibility for an apartment at The Pines. That being the case, Respondent did not provide Petitioner a formal application to fill out. It would have been a fruitless exercise based on Petitioner's stated level of income. Respondent does not appear to discriminate on the basis of gender or familial relationship when renting to other residents. In its Rent Roll from March 31, 2009, Respondent can point to over 70 single women with children living at The Pines. A large number of those women were at The Pines when Respondent took over management. Others became residents during Respondent's tenure as manager. Respondent based its decision to deny Petitioner's inquiry solely on the information provided by Petitioner. Petitioner did not suggest to Respondent that she was receiving child support, alimony, or any other kind of support from a third party. However, Petitioner maintains that the fathers of her children would provide support on an as-needed basis (but since Respondent didn't ask her about such support, she did not volunteer the information). In January 2008, when Petitioner filled out a Residency Application to obtain an apartment at The Pines, she said she was not receiving any alimony or child support, nor had any such support been court ordererd.3 Petitioner did not present any evidence at final hearing as to the amount or frequency of child support she received from her children's fathers. It is, therefore, impossible to impute any certain amount for the purpose of determining Petitioner's eligibility for an apartment at The Pines. When Petitioner was working at The Pines and a person seeking an apartment did not qualify financially, Petitioner would ask the person whether he or she could get someone to co-sign for him/her, guarantee his/her rent, etc., or whether he or she could receive child support. It is not clear at what point in the application process (i.e., during predetermination or upon filing of a formal application form) Petitioner would make this inquiry. It appears Respondent did not seek further financial information from Petitioner after the predetermination review indicated she would not qualify. However, there is no evidence that Respondent had a policy to make such inquiries. There is no evidence in the record that Petitioner re-applied to Respondent with an updated or amended statement of income after she was denied. Upon being denied a new apartment, Petitioner remained in her then-current apartment for some time after her lease was terminated. Petitioner owed slightly over $1,000.00 in rent and fees for the apartment when she finally vacated it, but Respondent did not pursue payment of that arrearage.
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 upholding its Determination: No Cause and dismissing Petitioner, Victoire Merceron's, complaint. DONE AND ENTERED this 21st day of May, 2009, in Tallahassee, Leon County, Florida. 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 21st day of May, 2009.
The Issue Whether Cindy Cammarota and Quail Oaks Apartments violated the Hillsborough County Human Rights Ordinance (Ord. 88-9 as amended) by discriminating on grounds of race and religion against Petitioners, Reverends William and Jacqueline Caractor with respect to an attempted eviction action.
Findings Of Fact Respondent Cammarota is the resident manager of Quail Oak Apartments. Respondent Quail Oak is an apartment complex in Hillsborough County which is subject to the Hillsborough County Human Rights Ordinance. Petitioners, who are black, are husband and wife. They are ordained ministers, who reside in Quail Oaks. They have used the community center at the apartment complex for services and frequently pray with other residents. They wear clerical garb and read their Bible in common areas at the complex. At all times material to these proceedings, Respondent Cammarota knew Petitioners were ministers at Mt. Carmel African Methodist Espiscopal Church. On July 30, 1990, a written rental agreement was entered into between Quail Oaks, lessor, and Petitioners, lessees, for an apartment at the complex. The term of the lease was from September 1, 1990 through August 31, 1991. At the option of Quail Oaks, payment of rent could be accepted conditionally by means of a personal check from the lessees. If the check was rejected for insufficient funds, Quail Oaks could require rent plus late charges to be paid by cashier's check, certified check or money order. In addition, Quail Oaks could terminate the lease for nonpayment of rent. Prior to leaving for vacation in November 1990, Petitioner Jacqueline Caractor issued a check in the amount of $645.00 for the November rent. The check was drawn upon the personal checking account belonging to her and her husband at Citizens and Southern National Bank (C & S). It was payable upon demand to Quail Oaks. Although a C & S counter check was used, all of the information on the check was correct. This check was accepted by Respondent Cammarota on behalf of Quail Oaks. It was presented to Barnett Bank of Tampa (Barnett) for collection and the bank was instructed to deposit the funds in Quail Oaks' account at the bank. Barnett Bank did not exercise ordinary care in regard to the check as required by the Uniform Commercial Code. Instead of collecting the funds from the payor bank, Barnett returned the check unpaid to Quail Oaks on November 5, 1990. Notice of the bank's dishonor was sent to Quail Oaks in a notice of debit with respect to the instrument together with the check itself. No reason was given by the bank for the dishonor. The provisional settlement of the check made by Barnett with Quail Oaks was revoked and the amount of credit given was charged back to Quail Oaks' account. Respondent Cammarota, who managed the Quail Oaks account with Barnett, misinterpreted this activity in the account as nonpayment of rent. A "three day notice" was issued by Quail Oaks to Petitioners for payment of rent or possession of the premises on November 7, 1990. The deadline for payment was November 13, 1990. Petitioners received actual notice on November 16, 1990, when they returned from vacation and found the notice posted on the front door of their apartment. A message concerning the matter was also on their answering machine. The message advised them that their check had been returned for insufficient funds. Petitioners went to their bank to determine why their check had not been honored. They had always paid their rent on time and they were concerned about the current state of affairs. The C & S Bank investigated the matter and discovered the check had never been submitted to it for payment. While Petitioners were present, a representative of the bank telephoned Respondent Cammarota and told her a bank error must have occurred as sufficient funds had always been available in Petitioners' account to cover the check, which had never been submitted to C & S for collection. Once Petitioners established that insufficient funds was not the basis for a dishonor of their personal check, they went to Respondent Cammarota to discuss the resolution of the problem. Respondent Cammarota was asked to resubmit the personal check for payment. She refused and requested a money order that included additional charges for the costs Quail Oaks incurred as a result of Barnett Bank's dishonor of the check. Respondent did not believe Petitioners' claim that the original check was a good check. Petitioners advised that they would not pay additional charges because they had complied with all of their responsibilities. They asked for the return of the original check and offered to pay the rent only by money order. Respondent Cammarota refused this potential solution of the problem. Respondent Cammarota did not believe Petitioners were at the office in order to make the check good. She did not believe that Petitioners were merely asserting their legal rights under the lease and negotiable instruments law. As a result, she was suspicious and unyielding during the discussion. She wanted them to pay late fees in order to remain in possession of their apartment. Petitioners, who were tired from their journey and surprised by Respondent Cammarota's lack of receptiveness to very reasonable requests, became somewhat excited by the fact that the process to remove them from their home had begun and they were being told to pay more money than they legally owed to remain in possession. In their response to the situation, Petitioners reminded Respondent Cammarota that they were Reverends. A suggestion that Respondent Cammarota should listen to God was construed by her as "preaching". The excited utterances from Petitioners caused the leasing agent in the office to ask them to leave, which they refused to do until they had read the notice of debit Respondent had received from Barnett Bank about their check. After the notice of debit was read and returned to Quail Oaks, Petitioners began to take their leave. At this point, Respondent Cammarota said something like, "And you people call yourself ministers". On November 20, 1990, Petitioner Jacqueline Caractor gave Quail Oaks a second November 1990 rent payment in the form of a money order. A letter dated the same day from Quail Oaks advised Petitioners that the money order could not be accepted because their account had already been turned over to Quail Oaks' attorney for eviction proceedings. On November 21, 1990, eviction proceedings were filed against Petitioners by Respondent Quail Oaks for nonpayment of rent. On November 28, 1990, Petitioners filed a housing discrimination complaint against Respondents. Attempts to resolve the housing discrimination complaint through conciliation was unsuccessful. Respondent Cammarota uses the term "you people" in conversation whenever she refers to two or more people in her presence. Ordinarily, it is not used to differentiate blacks from whites. In her conversation with the Petitioners, however, the term referred to their race or religion or both. It is Respondent Cammarota's opinion that ministers should behave differently than the Petitioners were behaving when they were asserting their legal rights in her office on November 16, 1990. Respondents did not articulate some legitimate, non-discriminatory reason for the eviction action for non-payment of rent.
Recommendation Based upon the foregoing, it is RECOMMENDED: That the Board of County Commissioners enter a Final Order finding that an unlawful discriminatory housing practice occurred when Respondent Cammarota, agent for Respondent Quail Oaks, unlawfully discriminated against Petitioners because of race or color and religion. That Respondents be required to pay a $500 fine to Hillsborough County. DONE and ENTERED this 23rd day of September, 1992, at Tallahassee, Florida. VERONICA E. DONNELLY Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 23rd day of September, 1992. APPENDIX Petitioner's proposed findings of fact are addressed as follows: Accepted. Accepted. Accepted. See See HO HO #2. #11. 4. Accepted. See HO #3. 5. Accepted. See HO #5. 6. Accepted. See HO #10. 7. Accepted. See HO #11. 8. Accepted. See HO #12. 9. Accepted. See HO #13. 10. Accepted. See HO #14. 11. Accepted. See HO #14. 12. Accepted. See HO #14. 13. Accepted. See HO #18. 14. Accepted. See HO #20. 15. Accepted. See HO #21. 16. Accepted. 17. Accepted. Rejected. Irrelevant. Docket speaks for itself. See HO #22. Rejected. Irrelevant. Accepted. See HO #22. Accepted. Rejected. Contrary to fact and loose agreements. Rejected. Inconclusive evidence. Accepted. See HO #7. Accepted. See HO #13. Accepted. Accepted. Accepted. Rejected. Contrary to fact. Accepted. Accepted. See HO #16. Rejected. Argumentative. Accepted. Accepted. Accepted. Accepted. Accepted. Rejected. Irrelevant. Rejected. Irrelevant. Rejected. Irrelevant. Accepted. Accepted. See HO #2. Accepted. See HO #2. Accepted. Accepted. #17. Accepted. See HO #2. Accepted. See HO #2. Rejected. Redundant. 49.-57. Rejected. Irrelevant. Respondent's proposed findings of fact are addressed as follows: Accepted. See HO #3. Accepted. See HO #5, #7 and #8. Accepted. See HO #9. Accepted. See HO #11. Accepted. See HO #12. Accepted. See HO #13-#14. Rejected. Self serving. Accepted. See HO #21. Accepted. See HO #22. Rejected. Irrelevant. Rejected. Contrary to lease. Accepted. Accepted. See HO #2. Accepted. Accepted. Rejected. Contrary to fact and legal test for unlawful discrimination. COPIES FURNISHED: Cretta Johnson, Director Hillsborough County Equal Opportunity and Human Relations Department P.O. Box 1110 Tampa, FL 33601 John McMillan, Esquire Levin & McMillan 9385 N. 56th Street, #200 Temple Terrace, FL 33617-5594 Catherine P. Teti, Esquire Assistant County Attorney P.O. Box 1110 Tampa, FL 33601 Reverend William Caractor Qualified Representative 4747 W. Waters Avenue #3807 Tampa, FL 33614
