The Issue Whether Petitioner was the subject of discriminatory housing practices based on his race or his handicap, in violation of the Florida Fair Housing Act, chapter 760, Part II, Florida Statutes.
Findings Of Fact At all times relevant to this cause, Petitioner was a tenant of a rental apartment located at 284 South First Street, Apartment 6, Macclenny, Florida (the Apartment). Petitioner?s tenancy was established by a lease agreement with a final effective date of November 24, 2009. Petitioner moved out of the apartment on May 3, 2012. Respondent is a Florida Limited Liability Company. Among its other holdings, Respondent owns four 4-plex units located on First Street, Second Street, and Third Street in Macclenny, one of which includes the Apartment. The racial make-up of the tenants occupying Respondent?s apartments in the vicinity is roughly 50 percent African-American and 50 percent Caucasian. Petitioner is African-American. Petitioner has an unspecified mental condition. He takes medications for management of his symptoms, and receives periodic visits from Ms. Gadsby to ensure that he is complying with his medication regimen. Petitioner does not receive disability benefits from the Social Security Administration. Petitioner holds a bachelor?s degree in criminal justice from Benedict College in South Carolina. As part of the application for rental of the Apartment, Petitioner was asked “[h]ave you been arrested or had criminal charges filed against you? (If yes, please list them).” In response to the application question, Petitioner answered “yes Trepass [sic.].” The trespass charge was related to a misdemeanor incident that occurred at an unspecified time in Fort Lauderdale, Florida. Petitioner failed to disclose a felony conviction for an incident that had occurred in South Carolina. Petitioner stated that he thought the requirement to disclose criminal charges applied only to charges arising from incidents having occurred in Florida. However, nothing in the application can be read to support that limitation. As such, Petitioner materially falsified his lease application. Petitioner cut hair for members of his church, neighbors, family, and friends at the Apartment, and had done so for the two-and-one-half years of his tenancy. He equipped the Apartment with a barber chair and a small waiting area. He accepted “donations” of food, clothes, and cash for his services. The cash receipts were used to pay his electric and water bills, among other things. Thus, despite its small scale and limited clientele, Petitioner operated what can only be described as a barbershop from the Apartment. The Lease Agreement between Petitioner and Respondent provides that the Apartment was not to be used “for any other purpose than as a private dwelling unit.” The Lease Agreement also provides that Petitioner was to comply with all applicable building and housing codes. The Macclenny Code of Ordinances, Part III, Section 4-105, provides that home occupations are subordinate and incidental to a residential neighborhood, but that certain occupations, including barbershops, “shall not be considered as home occupations under any circumstance.” Thus, Petitioner?s operation of a barbershop from the Apartment was a violation of the Lease Agreement. There were no apparent landlord/tenant disputes involving Petitioner?s tenancy until late 2011. Mr. Stivender testified that he began to receive periodic complaints from tenants in the area regarding the Apartment, including cars being parked on the grass and in the road, loud music, and people milling about the premises. He testified that at least one tenant advised Respondent that she was afraid to venture out of her apartment due to the number of people in the area. The testimony of Mr. Stivender regarding complaints of other tenants would be hearsay if taken for the truth of the matters asserted. However, the undersigned accepts his testimony as evidence, not of the facts surrounding the alleged complaints, but of a non-discriminatory reason for actions to be described herein, most notably the events of March 6, 2012. At the end of October 2011, Petitioner was cited by Respondent for having more than one car regularly parked at the Apartment. Petitioner?s car was not in running condition. The other cars parked at the Apartment belonged to friends or relatives. Petitioner subsequently sold his vehicle, and would borrow his father?s or his cousin?s car when needed. The incident caused bad feelings between the parties. On November 1, 2011, Respondent sent a notice to each of its tenants in Macclenny. Although the notice was precipitated by the complaints against Petitioner and Respondent?s observations of activities in and around the Apartment, the notice was not limited to Petitioner. The notice cited provisions of the common lease agreement regarding the use of the premises and tenant conduct, and advised that excessive noise, driving on the grass, and “loitering” would be cause for eviction. The notice further advised that the landlord would “be patrolling the area on a regular basis at night to check for violations.” On March 6, 2012, Mr. Ferreria was driving by the Apartment at approximately 10:30 p.m. There were, along with Petitioner and his daughter, three guests at the Apartment, Bianca Gaines-Givens, Jacoby Givens, and Misty Lee. They were playing music on an electronic keyboard. Mr. Ferreria stopped his car on the side of the road. He called his property manager, Mr. Stivender, and advised him that he was going to go speak with Petitioner about the noise coming from the Apartment. Mr. Stivender works for a gas company, and was at work routing gas trucks. Mr. Stivender advised that he was going to come to the Apartment, and asked Mr. Ferreria to wait for him before speaking with Petitioner. Ms. Gaines-Givens and Mr. Jacoby Givens left the Apartment after Mr. Ferreria?s arrival in the neighborhood, and noticed Mr. Ferreria sitting in his vehicle. They drove away from the Apartment, but decided to return shortly thereafter. By the time they returned, Mr. Ferreria and Mr. Stivender were leaving. Thus, they did not witness the confrontation described herein. After Ms. Gaines-Givens and Mr. Jacoby Givens drove off, Mr. Ferreria, disregarding Mr. Stivender?s request, went to the Apartment and knocked on the door. It was, by then, approximately 10:45 p.m. When Petitioner answered the door, the two immediately began a heated discussion over the music and the cars. Ms. Lee went to the back of the Apartment when Mr. Ferreria arrived. She heard yelling, but heard nothing of a racial nature. Shortly after Mr. Ferreria arrived at the Apartment, Mr. Stivender arrived on the scene. Mr. Stivender is a solidly built man, and could be an intimidating presence under the right circumstances. These were the right circumstances. Mr. Stivender physically moved Mr. Ferreria out of the way, and came between Mr. Ferreria and Petitioner. He was primed for a confrontation. He had his hand in his pocket, but testified convincingly that he was not armed.1/ He and Petitioner had a loud and angry exchange of words, and Mr. Stivender forcefully suggested to Petitioner that it would probably be best if he moved out of the Apartment. After Mr. Stivender appeared on the scene, Ms. Lee came out from the back of the Apartment. She recognized Mr. Stivender as Respondent?s “office manager.” She noted that Mr. Stivender had his hand in his pocket, and was talking loudly and pointing his finger in Petitioner?s face. Ms. Lee went outside and spoke with Mr. Ferreria. She testified that Mr. Ferreria indicated that some of the neighbors were afraid of Petitioner because of the noise and the number of people who hung around the Apartment. The confrontation ended with Mr. Ferreria and Mr. Stivender leaving the premises. The police were not called. The next morning, Petitioner called Ms. Gadsby. Petitioner frequently called Ms. Gadsby when he was feeling “stressed.” She went to see him that morning, and testified that he was very upset over the events of the previous evening. She returned that afternoon for a “well-check,” and he was doing better. On March 15, 2012, Petitioner called the Baker County Sheriff?s Office to report the March 6, 2012, incident. A deputy went to the Apartment, spoke with Petitioner and Ms. Lee, took their sworn statements, and prepared an offense report. The description of the incident as reflected in the report, including statements made by Petitioner and Ms. Lee, did not contain any account of racial threats or epithets, or any allegation of discriminatory intent based on race or handicap.2/ Other than Mr. Stivender?s statement made in the heat of the March 6 argument, Respondent made no effort to evict or otherwise remove Petitioner from the Apartment. On March 31, 2012, Petitioner noticed water coming from behind a wall of the Apartment. He called Respondent, and Mr. Stivender came to the Apartment to inspect. Mr. Stivender first suspected that the air-conditioning unit was leaking. The air conditioner was turned off and Mr. Stivender left, intending to contact an air-conditioning repair service. By 6:00 p.m. on March 31, 2012, the rate of the leak was such that it was determined that a water pipe had burst under the foundation of the Apartment. Petitioner did not know where the shut-off valve was located, and was unable to stop the flow, which began to cover the floor in several rooms of the Apartment. Mr. Stivender returned to the Apartment, and determined that a car owned by one of Petitioner?s guests was parked on the grass, and was over the meter box with the shut- off valve. The car was moved, and the water turned off. Respondent called a plumber to fix the pipe. Since the pipe was under the foundation, and in order to avoid breaking up the slab, the repair was accomplished by re-routing the pipe in the wall of the Apartment. The repair entailed cutting an access hole in the drywall. That hole was not immediately repaired. Respondent also called Servpro to perform water cleanup services. The standing water was vacuumed up, and large fans and dehumidifiers were placed in the Apartment to dry it out. While the repairs and drying activities were ongoing, Respondent paid for Petitioner and his daughter to stay in a motel in Macclenny. They were there for three to four days. Respondent paid Petitioner?s power bill for the days that Petitioner was unable to use the Apartment. Petitioner returned to the Apartment, and stayed there for some time. He was upset that the access hole for the pipe repair had not been closed up, and that the baseboards had not been replaced in some areas. On April 9, 2012, Petitioner wrote to Respondent about the effects of the water leak. After thanking Respondent for the “compassion” shown to Petitioner and his family during the event, he complained about the damage to his personal property resulting from the water leak, and an odor “suggesting the presence of mold.” He stated his belief that his daughter?s preexisting asthma was aggravated by the smell in the Apartment. In his April 9, 2012, letter, Petitioner also stated that “due to my mental health condition, I am on prescribed medicine that has now been adjusted to assist me through this stressful situation.” Petitioner?s statement, which was not accompanied by any form of medical evidence, was not sufficient to place Respondent on notice that Petitioner had a record of having, or was regarded as having, any form of mental disability. Mr. Stivender testified that no one ever advised Respondent that Petitioner had a mental disability, and that Respondent had no such knowledge. The April 9, 2012, letter being insufficient on its own to convey such information, Mr. Stivender?s testimony is credited. On May 3, 2012, Petitioner moved out of the Apartment. He had been served with no eviction notice or other written request to vacate. Petitioner gave no notice to Respondent, but dropped off his key at Mr. Ferreria?s business on the day he moved out. Mr. Stivender testified that Petitioner left the Apartment in a filthy, deplorable condition. As a result, Respondent withheld Petitioner?s $400.00 security deposit to offset the costs of returning the Apartment to rentable condition. Petitioner testified that the Apartment was not in poor condition when he moved out, and that some of the damage was the result of the pipe leak. However, Petitioner did not testify, or even suggest, that the decision to withhold the deposit was the result of any racial hostility or animus, or of any reaction to his handicap. Petitioner failed to introduce any evidence that he was treated differently under similar circumstances than were tenants of Respondent who were not African-American, or who did not have comparable mental disabilities. Ultimate Findings of Fact There was no competent, substantial evidence adduced at the hearing that Respondent undertook any act pertaining to Petitioner?s occupancy of the Apartment based on Petitioner?s race. Petitioner failed to prove that Respondent knew of Petitioner?s mental disability or handicap, or that Respondent regarded Petitioner as having any such mental disability or handicap. Petitioner failed to prove that Petitioner?s race or handicap caused or contributed to the March 6, 2012, confrontation. Rather, the evidence demonstrates that the confrontation resulted from noise, issues with cars and parking, and complaints directed to Petitioner by other tenants. Petitioner failed to prove that he was ready, willing, and able to continue to rent the Apartment, but that Respondent refused to allow him to do so. Petitioner failed to prove that Respondent took any action to evict him from the Apartment, or to otherwise intentionally interfere with Petitioner?s occupancy of the premises. To the contrary, the evidence supports a finding that Respondent took reasonable and appropriate steps to repair and remediate the Apartment after the water line break, and provided no-cost accommodations to Petitioner while the Apartment was not habitable. The repairs may not have been completed to Petitioner?s satisfaction, but any such deficiency was not the result of discrimination against Petitioner based on his race or his handicap. Petitioner failed to prove that Respondent?s decision to withhold his security deposit was based on Petitioner?s race or handicap. In sum, the evidence did not establish that Petitioner was the subject of unlawful discrimination in the provision of services or facilities in connection with his dwelling based on his race or his handicap.
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. 2013H0034. DONE AND ENTERED this 7th day of February, 2013, 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 7th day of February, 2013.
The Issue The issue is whether any of the respondents is guilty of unlawful discrimination against Petitioner in the rental of a dwelling, in violation of section 760.23(2), Florida Statutes (2018).
Findings Of Fact At all material times, Petitioner has been an individual with a disability because he is infected with the human immunodeficiency virus (HIV). He is required regularly to take medication to control the disease. At all material times, Respondent Scandinavian Properties, LLC (Respondent Scandinavian) has owned a small complex of rental units in Miami Beach consisting of one or more Airbnb units at the back of the property and two duplex units at the front of property in a two-story building. This case involves one of the two-bedroom, one-bath duplexes with the address of 7910 Byron Avenue, Unit 1 (Unit 1), which was the ground-floor duplex. At all material times, Respondent Renes has been a managing principal of Respondent Scandinavian, and Respondent Bourguigne has been an employee of a property management company retained by Respondent Scandinavian to manage the complex. In an effort to find a suitable rental unit, Petitioner employed the services of a real estate broker or associate, who contacted Respondent Renes to discuss the rental of Unit 1, which had just undergone extensive renovations of two years' duration. Petitioner was recovering from recent surgery, so, as a favor to the real estate agent, Respondent Renes agreed to rent Unit 1 to Petitioner with a background check, but not the customary face-to-face meeting that Respondent Renes required with prospective tenants. Thus, Respondent Renes had limited, if any, contact with Petitioner during the lease negotiations. Petitioner and Respondent Scandinavian entered into a 12-month lease commencing November 1, 2018 (Lease). The Lease prohibited keeping any pets, smoking "in the Premises," creating any "environmental hazards on or about the Premises," keeping any flammable items "that might increase the danger of fire or damage" on the premises without the consent of Respondent Scandinavian, destroying, defacing, damaging, impairing or removing any part of the premises belonging to Respondent Scandinavian, and making any alterations or improvements to the premises without the consent of Respondent Scandinavian, although Petitioner was allowed to hang pictures and install window treatments. The Lease required Petitioner to ensure that all persons on the premises acted in a manner that did not "unreasonably disturb any neighbors or constitute a breach of the peace" and permitted Respondent Scandinavian to adopt or modify rules for the use of the common areas and conduct on the premises. The Lease assigned to Petitioner the responsibility for maintaining smoke detectors, locks, keys, and any furniture in the unit. The Lease permitted "[o]ccasional overnight guests," who could occupy the premises for no more than seven nights per month, and required written approval for anyone else to occupy the premises. Among the rules of the complex was a prohibition against disabling smoke detectors. However, without reference to the Lease provision applicable to pets, one rule allowed one dog or one cat. Another rule assured that management would help tenants gain access to their units when locked out. Within a few weeks of the commencement of the Lease, Petitioner's visitors violated two provisions of the Lease by smoking outside and allowing a dog to run loose in the common area. Respondent Renes or Bourguigne advised Petitioner of the violations, which do not appear to have resulted in any penalties. Admitting to the presence of the dog, Petitioner testified only that the video of the dog violation, if not also the smoking violation, led him to believe that he was being watched. Petitioner's complaint of individual surveillance became an ongoing issue--in his mind. The minimal staffing and small area occupied by the small complex, as a practical matter, both precluded individual operation of cameras to trace the movements of Petitioner and his visitors in the common area and facilitated the surveillance of all, or nearly all, of the common area with relatively few cameras. The evidence fails to support Petitioner's claim that the respondents at any time conducted video surveillance particularly of Petitioner or his visitors. Subsequently, Respondent Renes or Bourguigne advised Petitioner that someone had been shouting his name outside the gate of the complex during the evening hours. This incident is not prohibited by the Lease because the person, while perhaps acquainted with Petitioner, was not his invitee onto or about the premises. Nonetheless, Petitioner's sole reported reaction to this disturbance was to demand a copy of any video--and complain when the respondents failed to comply with his demand. Another of Petitioner's visitors parked a car outside the gate in a space reserved for occupants of the Airbnbs. When, evidently in the presence of Petitioner, Respondent Bourguigne confronted the visitor, the visitor replied that he had only been parked there for 20 minutes. Respondent Bourguigne stated that she had seen the car parked in the spot for 43 minutes. Again, Petitioner's sole response was not to deal with the violation, but to complain about surveillance, evidently of the parking area. The most serious violations of the Lease were discovered on January 28, 2019, when Respondent Renes conducted an inspection of Unit 1. Respondent Renes inspected all rental units of the complex every two or three months to check for safety issues that could imperil tenants or the complex itself. In her inspection, Respondent Renes found that Petitioner had disconnected the smoke alarms and encased them in plastic tape to render them inoperative. She also found that Petitioner had crowded the unit with furniture to the point of impeding egress and constituting a fire hazard. Although not involving safety issues, Respondent Renes found that Petitioner had attached screws to metal doors and kitchen cabinets, damaging these new fixtures. Additionally, Respondent Renes noted the presence of a cat. As noted above, the rules conflicted with the Lease as to the presence of a single dog or cat. In any event, by this time, the respondents were aware that the cat, as well as a human, routinely shared Unit 1 with Petitioner, and the respondents had impliedly consented to these cohabitations. Again, Petitioner's reaction to the Lease violations found by Respondent Renes on January 28 was not to address the problems. Instead, he objected to the inspection as singling him out. By letter delivered to Petitioner on February 14, 2019, Respondent Scandinavian advised that he was in violation of the Lease for allowing an unauthorized person and a cat to occupy the unit, for wrapping the smoke detectors in plastic, for damaging the unit's fixtures by attaching screws into the metal doors and kitchen cabinets, and by cluttering the interior of the unit so as to impede internal movement. The letter demands that Petitioner correct the violations within seven days, or else Respondent Scandinavian would terminate the lease. Respondent Bourguigne's main involvement with this case involves an incident that occurred on the evening of February 15, 2019, when Petitioner locked his keys in his unit and was unable to unlock the door or otherwise enter the unit. Petitioner called the office, but Respondent Bourguigne, who responds to such requests during her normal working hours of Monday through Friday from 9:00 a.m. to 5:00 p.m., did not receive the call until the following morning when she listened to messages. Respondent Bourguigne promptly called Respondent Renes for guidance, and Respondent Renes directed her to summon the complex's handyman, who, as soon as he could, which was 1:00 p.m. on February 16, drove to the complex and opened Unit 1 for Petitioner. Rather than call a locksmith when the respondents failed to respond immediately to his call to the office, Petitioner and a companion attempted to break into Unit 1 with a screwdriver at about 1:30 a.m. Although unaware of the lockout, Respondent Renes learned of the attempted break-in through an automated security system, so she called the police, who reported to the scene and, after briefly interrogating Petitioner, determined that no crime had taken place. Petitioner wrongly concluded that Respondent Renes had been watching him in real time and called the police, knowing that the apparent perpetrator was really Petitioner and no crime was taking place. While locked out of his unit, Petitioner had also sent emails to Respondent Renes. In one of them sent on February 16, Petitioner advised for the first time that he was diagnosed with HIV and dependent on medication that was locked in his unit. Respondent Renes testified that she did not see these emails until days later. At minimum, it is clear that, prior to February 16, no respondent was on notice of Petitioner's disability, so the seven-day notice letter delivered two days earlier could not have been motivated by a discriminatory intent. Despite the seven-day deadline contained in the letter of February 14, by email or text dated February 21, Petitioner advised Respondent Renes that, by 2:00 p.m. on February 22, he "will have remedied each of the … listed [violations]." This was one day past the deadline. Because Petitioner failed timely to meet the conditions of the February 14 seven-day notice letter, Respondent Scandinavian commenced an eviction proceeding on February 22 and, after a hearing, obtained a judgment ordering the eviction of Petitioner. Petitioner failed to prove any discriminatory intent on the part of any of the respondents in their dealings with him, any incidental discriminatory effect in their acts and omissions, or any failure or refusal to accommodate Petitioner's disability. To the contrary, as to discrimination, Respondent Renes chose to forego eviction and instead give Petitioner a chance timely to remedy the Lease violations; when Petitioner failed to do so, Respondent Scandinavian proceeded to evict Petitioner. Nor has any act or omission of any respondent had a discriminatory incidental effect on Petitioner. Lastly, the availability of Respondents Renes and Bourguigne or other employees of Respondent Scandinavian to open units to locked-out tenants and occupants was reasonable and in no way constituted a failure to accommodate Petitioner's disability, for which Petitioner never requested or, on these facts, needed an accommodation.
Recommendation It is RECOMMENDED that the Florida Commission on Human Relations enter a final order finding the respondents not guilty of the charges set forth in the Petition for Relief. DONE AND ENTERED this 13th day of January, 2021, in Tallahassee, Leon County, Florida. S ROBERT E. MEALE 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 13th day of January, 2021. COPIES FURNISHED: Tammy S. Barton, Agency Clerk Florida Commission on Human Relations 4075 Esplanade Way, Room 110 Tallahassee, Florida 32399-7020 (eServed) Philip Kim, Esquire Pensky & Kim, P.A. 12550 Biscayne Boulevard, Suite 401 North Miami, Florida 33181 (eServed) Jack Wilson 17560 Atlantic Boulevard, Apartment 515 Sunny Isles Beach, Florida 33160 (eServed) Cheyenne Costilla, General Counsel Florida Commission on Human Relations 4075 Esplanade Way, Room 110 Tallahassee, Florida 32399-7020 (eServed)
The Issue Whether Petitioner was the subject of unlawful discrimination in the provision of services or facilities in connection with her dwelling based on her race or handicap, in violation of the Florida Fair Housing Act, chapter 760, Part II, Florida Statutes.
Findings Of Fact Petitioner is a 51-year-old black female who relocated to Leesburg, Florida, from Port Chester, New York, in February 2012. Respondent, Richman Property Services, Inc., is the corporate owner/manager of Laurel Oaks Apartments (Laurel Oaks) located at 131 Bayou Circle in Leesburg, Florida. Amy Lewis is the Community Manager of Laurel Oaks. Petitioner rented a two-bedroom apartment unit from Respondent from February 24, 2012, until she moved to Orlando, Florida, on December 3, 2012. Petitioner?s daughter, Sushon Dillard, occupied the apartment with Petitioner during her tenancy at Laurel Oaks. Petitioner spoke with Ms. Lewis via telephone to inquire regarding the availability of a unit at Laurel Oaks while Petitioner was still residing out of state. Petitioner applied for tenancy at Laurel Oaks by faxing her application to Ms. Lewis. Petitioner?s application was accompanied by a copy of her award letter documenting Social Security Disability Insurance (SSDI) payments as proof of income. On February 24, 2012, Petitioner signed a lease for Laurel Oaks unit #103, paid a security deposit, and moved into the unit. Petitioner has a current clinical diagnosis of “schizophrenia, paranoid.” She also claims to be diagnosed bi- polar with Tourrete?s Syndrome. While Petitioner presented no documentation of the additional diagnosis, her testimony on this issue is credible and is accepted by the undersigned. Petitioner was first hospitalized for treatment of an unspecified mental illness at Bellevue Hospital in New York in 1982. She apparently lived without significant incident for the next 26 years. Petitioner had a “breakdown” in 2008, while living in Arizona, and another “breakdown” that same year in New York, for which she was hospitalized at Greenwich Hospital in Connecticut, and later transferred to Stamford Hospital in Connecticut. Petitioner reports that since April 2008, she has “spent time in numerous mental institutions in Arizona, Florida, Georgia, Maryland and New York.” Petitioner?s most recent incident occurred in August 2012, while she was living at Laurel Oaks. She was taken by police to a local facility named “Life Stream” where she was treated for a number of days, then returned home to her apartment at Laurel Oaks with her daughter. Petitioner appeared calm and controlled at the final hearing. She testified that she is taking her medications and doing very well. Petitioner claims that when she moved into the unit at Laurel Oaks, it was not cleaned, was “infested with dead roaches,” and the washing machine was filthy. Petitioner?s daughter testified there were dead roaches even in the dishwasher. Petitioner also bases her allegation of discrimination on Respondent?s accusation in April 2012, that Petitioner had not paid a $300 security deposit prior to occupying her apartment. When Petitioner paid her April rent, Trifonia Bradley, an employee in the office at Laurel Oaks, informed Petitioner she still owed a $300 security deposit. Petitioner responded that she had paid the deposit on February 24, 2012. Although the evidence was not clear as to the specific date, Petitioner later met with Ms. Bradley and brought in her receipt showing the $300 had been paid in February. After that meeting, Petitioner received a phone call from Ms. Lewis apologizing for the error and stating something to the effect of “we are all good.” Petitioner believes Respondent was attempting to take advantage of her disability and trick her into paying the deposit again. At final hearing, Petitioner and her daughter presented evidence and testimony regarding additional alleged discriminatory acts by Respondent. Petitioner alleged that someone employed by, or otherwise acting on behalf of Respondent, sabotaged her automobile; harassed her by requesting her daughter fill out a separate rental application in order to live with her; harassed Petitioner about her request for accommodation based on her disability and claimed she had not demonstrated that she was disabled under the Americans with Disabilities Act; threatened to tow away her car because it was inoperable; and stole money from her apartment. Each of these additional alleged acts occurred after September 21, 2012, the date on which FCHR issued its determination of no cause, and was not investigated by FCHR. Petitioner is intelligent and articulate. Her exhibits were well-organized and contained copious documentation of the alleged discriminatory acts occurring after September 21, 2012. Her documentation included correspondence with Laurel Oaks? management, notices which were posted on the apartment door, copies of numerous forms and applications, and a police report. In contrast, Petitioner offered no tangible evidence regarding the condition of the property upon occupancy other than her testimony, which was not persuasive. She introduced no photographs, no written complaint, and no correspondence with the manager or other employees of Laurel Oaks regarding the condition of the apartment. In fact, she offered no evidence that she brought the condition of the unit to the attention of Laurel Oaks? management. Given the totality of the evidence, including the demeanor of the Petitioner and Ms. Dillard, the undersigned finds that either the unit was not unclean or Petitioner did not bring the condition of the unit to the attention of Laurel Oaks upon occupying the unit. Further, the undersigned finds that Laurel Oaks erroneously requested the security deposit in April 2012, and corrected the error after reviewing Petitioner?s documentation. The mistake was not an act of discrimination based either on race or disability.2/
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Florida Commission on Human Relations issue a final order dismissing the Petition for Relief filed in FCHR No. 2012H0289. DONE AND ENTERED this 27th day of December, 2012, in Tallahassee, Leon County, Florida. S Suzanne Van Wyk Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 27th day of December, 2012.
The Issue Whether Respondents discriminated against Petitioner in the provision of housing, or services in connection therewith, in violation of the Florida Fair Housing Act (“the Act”).
Findings Of Fact Petitioner, Pedro Tamayo, suffers from anxiety, depression, memory loss, and complex regional pain syndrome (“RPD”). Respondent, Avtec, is a residential construction contractor, doing business in Palm Bay, Florida. On November 10, 2018, Petitioner executed a Contract for Sale and Purchase (“Contract”) with Avtec to construct a residential structure on property owned by Petitioner on Raleigh Road Southeast in Palm Bay, Florida. The specific floor plan chosen by Petitioner was the Citation 4 Plus. Avtec executed the Contract on November 12, 2018. The Contract covers clearing of property for construction, materials and color selections by the buyer, and the buyer’s right to reverse the floor plan, among other terms. When Petitioner entered into the Contract, he simultaneously chose many of the options available to customize the Citation 4 Plus, such as impact windows, an exterior pedestrian door in the garage, and a front septic system. Among the options Petitioner chose was 36-inch (36”) doors for the master bedroom entrance, closet, and master bathroom entrance. Petitioner has no obvious physical disability and does not require use of a wheelchair or walker. Construction Setback The Contract does not address the construction setbacks from the property lines. Setbacks are governed by local government codes and Avtec is required to follow those codes. On November 30, 2018, Petitioner met with his sales agent, Sean McCarry, at the Avtec showroom, to discuss some of the options he had chosen for his new home. They specifically discussed plumbing issues for the master bathroom, 36” wide doors in the master bedroom, placement of the septic tank, the concrete culverts for the driveway, and a 45-foot (45’) setback of the home from the property line. While the standard setback for a home with a front septic tank is 38’ to 40’, Petitioner indicated he wanted to build an aluminum carport, which required additional setback footage. Respondent Amicucci stepped into the meeting with Petitioner and Mr. McCarry to address Petitioner’s request for mitered ends on the culvert pipe. Mr. Amicucci was not present when Petitioner requested a 45’ setback. Mr. McCarry verbally agreed to “take care of” the setback requested by Petitioner. Petitioner’s selection of 36” doorways for the master bedroom, and a front septic system were reduced to writing and included in the Contract, signed by both parties, as an Option to Sales Agreement. Petitioner executed five addenda to the Contract between November 30, 2018, and May 1, 2019, including optional upgrades and a modification to the design of the sidewalk. On July 23, 2019, Petitioner and Avtec executed a change order to include the mitered ends of the culvert pipe. No part of the Contract, any addenda thereto, or any change order, addresses Petitioner’s request for a 45’ setback. Section 28 of the Contract provides that “NO OTHER AGREEMENTS exist between the BUYER and SELLER except as set forth in this Agreement. This Agreement shall not be modified except by an instrument in writing executed by both BUYER and SELLER.” Section 29 of the Contract contains the following statement in red underlined text: No representative of Seller has authority to make any verbal statements that modify or change the terms or conditions of this contract. Buyer represents that buyer has read and understands this entire contract. Buyer also represents that buyer is not relying on any verbal statement, promise, or condition not specifically set forth in this contract. It is acknowledged that builder is relying on these representations and would not enter into this contract without this understanding. Section 20 of the Contract specifically provides, “Once the rough plumbing is installed, absolutely NO CHANGES will be allowed.” Petitioner’s new home was built 40’ from the property line, rather than 45’ as Petitioner requested. Sometime after the rough plumbing was installed and the foundation was poured, Petitioner complained to Avtec that his home was not built with a 45’ setback as promised by Mr. McCarry. On August 22, 2019, Avtec, through its Director of Corporate Development, responded in writing to Petitioner’s complaint. Avtec apologized that the home was not built to the setback he had communicated to Mr. McCarry, and referred to the Contract terms that exclude any verbal agreements. Avtec offered to release Petitioner from his contract, refund his deposit of $6,250, and give Petitioner $30,000 for the property after selling it to another buyer. On November 13, 2019, Petitioner signed a “Final Acceptance of Completion” of the construction of his home. Fill Dirt On March 8, 2019, Petitioner drove by the construction site and noted that the fill dirt being used was “contaminated” with tree branches and other material. He drove to the model home to discuss the issue with Mr. McCarry. Mr. McCarry contacted Mr. Amicucci, who agreed to meet Petitioner at the property to inspect the fill and address Petitioner’s concerns. Petitioner and Mr. Amicucci testified to two very different versions of the events at the construction site that day. Petitioner testified that, when Mr. Amicucci arrived, he got out of his vehicle, visibly upset, and raised his voice and cursed at Petitioner regarding his lack of knowledge of proper fill material. Petitioner testified, specifically that: I feared that [Mr. Amicucci] would physically attack me by his aggressive demeanor and I immediately froze. I could not comprehend how a paying customer could be treated this way by raising concerns for the foundation of my home. I am not a builder. [Mr. Amicucci] simply needed to explain the common practice of standard fill. Since March 8th, 2019, my quality of life has not been the same. I have severe anxiety due to the memories of that day and suffer constant nightmares. I feel as [sic] my life can be in danger and, therefore, live in a state of high alert. My daily life has been disrupted. Simply having to drive by Avtec showroom due to my normal routine routes triggers flashbacks of that day. Mr. Amicucci testified that when he arrived at the property, Petitioner was upset and aggressive toward him, demanding that the fill be removed from his property. Mr. Amicucci reassured Petitioner that the fill was all good soil and that it would be root-raked before it was spread for the foundation. Mr. Amicucci explained the root-raking process and the equipment used therefor. Nevertheless, Petitioner insisted that Mr. Amicucci go with him to another construction site to show him the type of fill he wanted used on his property. Mr. Amicucci accompanied Petitioner to the specific construction site, which was not an Avtec project, and Mr. Amicucci identified the fill being used there as a hard white shell material. Mr. Amicucci assured Petitioner that the brown sandy soil imported to his property would be better for the sod and plants Petitioner would be using to landscape the property. Mr. Amicucci testified that, at the end of the meeting, Petitioner extended his hand and said, “[l]ook, that all sounds good. I just want to start back over. Are we good?” Mr. Amicucci shook Petitioner’s hand and assured him that they “were good.” Mr. Amicucci’s testimony regarding the events that occurred on March 8, 2019, is accepted as more credible and reliable than Petitioner’s. Knowledge of Petitioner’s Disability Mr. Amicucci testified that he was not aware that Petitioner had any kind of disability until the Complaint was filed against him and Avtec. Petitioner testified that his disability was revealed to Mr. Amicucci on November 30, 2018, during a meeting at the Avtec showroom to discuss the various options selected by Petitioner when he signed the contract. Petitioner testified that Mr. Amicucci asked him what he did for a living and Petitioner told him that he was retired and disabled from the City of Hialeah. He testified that Mr. Amicucci was further on notice because Petitioner always wears a glove to improve circulation in his right hand and that he can hardly sign his name, which would have been apparent to Mr. Amicucci at the November 30, 2018 meeting. Finally, Petitioner alleges Mr. Amicucci should have been aware of his disability because he requested 36” ADA-compliant door widths for the master bedroom. Mr. Amicucci did not recall Petitioner telling him he was disabled or seeing Petitioner wearing a glove. He did recall seeing Petitioner wearing a sling of some sort and inquiring whether he had been injured. He recalled Petitioner telling him it was related to an old injury. Mr. Amicucci was not present for any discussion about the 36” doorways. Assuming, arguendo, that he was present for that discussion, a request for 36” doorways alone is not proof of a disability. Many buyers upgrade to larger doorways to accommodate larger furniture or in anticipation of needing a walker or wheelchair access in the future. Furthermore, requesting ADA-compliant doorways is irrelevant to Petitioner’s claim that he has emotional disabilities and chronic pain. The evidence does not support a finding that Mr. Amicucci knew of Petitioner’s disabilities of anxiety, depression, memory loss, and RPD. No other witness was offered on behalf of Avtec. There is no evidence to support a finding that Avtec had knowledge of Petitioner’s disability through any other employee.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Florida Commission on Human Relations issue a final order dismissing Petition for Relief from a Discriminatory Housing Practice No. 202022149. DONE AND ENTERED this 22nd day of December, 2020, in Tallahassee, Leon County, Florida. S SUZANNE VAN WYK Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 22nd day of December, 2020. COPIES FURNISHED: Mike Amicucci Suite 3 590 Malabar Road Palm Bay, Florida 32909 Tammy S. Barton, Agency Clerk Florida Commission on Human Relations Room 110 4075 Esplanade Way Tallahassee, Florida 32399-7020 (eServed) Pedro Tamayo 987 Raleigh Road Southeast Palm Bay, Florida 32909 (eServed) Rebecca E. Rhoden, Esquire Lowndes, Drosdick, Doster, Kantor & Reed, P.A. 215 North Eola Drive Orlando, Florida 32801 (eServed) Lawrence F. Sietsma Avtec Homes, Inc. et al 2860 North Riverside Drive Indialantic, Florida 32903 Cheyanne Costilla, General Counsel Florida Commission on Human Relations Room 110 4075 Esplanade Way Tallahassee, Florida 32399-7020 (eServed)
The Issue Whether Respondent discriminated against Petitioner in the rental of a dwelling based on her race, in violation of Florida Fair Housing Act, chapter 760, Part II, Florida Statutes (2015).
Findings Of Fact The following Findings of Fact are based on the exhibit admitted into evidence and testimony offered by witnesses at the final hearing. Ms. Smith is a Black female and currently resides in Gainesville, Florida. Saul Silber Properties is a company that manages Oak Glade located at 3427 Southwest 30th Terrace, Gainesville, Florida 32608. Respondent provides residential rental apartments in Gainesville, Florida. Saul Silber is the owner of Saul Silber Properties. Ms. Smith is a former resident of apartment number 54I of Oak Glade.1/ Ms. Smith rented the apartment pursuant to a residential lease agreement entered into on January 15, 2014.2/ The lease was for a one-year renewable term. Ms. Smith filed a complaint with the Commission alleging Respondent issued her a Notice of Non-Renewal of her lease agreement on the basis of her race. The Commission issued a “No Cause” determination and Ms. Smith filed a Petition for Relief, which is the matter before the undersigned. During her tenancy at Oak Glade, Ms. Smith had raised numerous complaints with the property manager regarding matters involving her neighbor, Anne E. Dowling. Ms. Dowling, who was White, was a former resident of apartment number 54H. Ms. Smith’s issues with Ms. Dowling included complaints concerning smoking, loud music, non-residents living in the apartment, the number of visitors outside Ms. Dowling’s apartment, and Ms. Dowling’s cat scratching her car. All of the complaints were addressed and resolved by the property manager. The incident that led to the major blow-up between the neighbors involved Ms. Smith and Ms. Dowling’s daughter. Ms. Smith and Ms. Dowling’s daughter were involved in a verbal altercation after Ms. Smith verbally reprimanded Ms. Dowling’s granddaughter (age range of 7-9 years old) and her friend. Ms. Smith testified that the two girls turned their backs to her, bent over, and wiggled their buttocks in a side-to-side motion. Ms. Smith understood this gesture to be disrespectful and a suggestion to “kiss their behinds.” Ms. Dowling’s daughter was not a resident of the apartment complex. The altercation was so loud that Ms. Osteen heard people “screaming” while she was in her office. Ms. Osteen discovered Ms. Smith and Ms. Dowling’s daughter involved in a screaming match. Ms. Osteen later consulted with the senior property manager about the incident and it was determined that both Ms. Dowling and Ms. Smith would be issued a Notice of Non-Renewal. On March 15, 2016, Respondent issued Ms. Smith and Ms. Dowling a Notice of Non-Renewal, which was posted on the door of each tenant’s respective apartment. The notices did not state a reason for non-renewal. Ms. Dowling’s lease would expire effective May 30, 2016; and Ms. Smith’s lease would expire effective December 30, 2016. Prior to expiration of her lease, Ms. Dowling advised Ms. Osteen that she was terminally ill and requested that she be permitted to stay at Oak Glade. Ms. Dowling explained that her support system was located in the area and due to financial limitations, moving from the complex would create a hardship for her. For these reasons, Ms. Dowling was permitted to enter a new lease and was moved to a different apartment. The decision to permit Ms. Dowling to remain at the complex was made by the senior property manager. Ms. Dowling passed away approximately four months later, on September 28, 2016. Other than her mistaken belief that Ms. Dowling did not receive a Notice of Non-Renewal, Ms. Smith did not offer any evidence to support her claim of housing discrimination in violation of the Florida Fair Housing Act.
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: finding that Respondent, Saul Silber Properties, LLC, did not commit a discriminatory housing practice against Petitioner, Ms. Smith; and dismissing the Petition for Relief filed in FCHR No. 2017H0320. DONE AND ENTERED this 29th day of August, 2018, in Tallahassee, Leon County, Florida. S YOLONDA Y. GREEN 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 29th day of August, 2018.
The Issue Whether Petitioner is entitled to an award of attorney's fees and costs as a prevailing small business party in an adjudicatory proceeding initiated by a state agency as provided under the Florida Equal Access to Justice Act (FEAJA), Section 57.111, Florida Statutes. Whether the amount claimed by Petitioner for attorney's fees and costs is reasonable.
Findings Of Fact The Respondent agency is charged with the administration of the Florida Civil Rights Act of 1992, as amended, Section 760.30, Florida Statutes (1995). If Petitioner is unable to obtain voluntary compliance with Sections 760.20 - 760.37, Florida Statutes, or has reasonable cause to believe a discriminatory housing practice has occurred, the Respondent agency may institute an administrative proceeding under Chapter 120, Florida Statues, on behalf of the aggrieved party. On February 3, 1993, Polly Leggitt filed a complaint with the Respondent agency and the United States Department of Housing and Urban Development. The Complaint named Carole Naylor, Property Administrator, as the person who discriminated against her. On March 24, 1993, the Respondent agency notified Regency Place Apartments and Carole Naylor that the Complaint had been filed, and stated that within 100 days, the Respondent agency would investigate the Complaint and give notice whether there was or was not reasonable cause to believe that a discriminatory housing practice had occurred. The notice further provided that final administrative disposition of the Complaint would be completed within one year from the filing of the Complaint, which would be on or about February 3, 1994. A Notice of Determination: Cause and Issuance of an Administrative Charge was made and issued and served on August 28, 1996. It named Regency Place Apartments; Carole Naylor, Frank Cutrona, Property Manager; and Robert Stitzel, owner. The notice was issued more than one year after the filing of the Complaint. Following the formal hearing, this Administrative Law Judge made certain findings of fact which were incorporated in the Recommended Order. Those findings held, inter alia: Robert Stitzel was the developer and owner of Regency Place Apartments. Carole Naylor, at the direction of the manager Frank Cutrona, sent Ms. Leggitt letters rejecting her application for an apartment unit at Regency Place Apartments because there was no apartment of the kind she wanted that was available and further that her income was insufficient to qualify her for housing at that place. Cutrona died on December 26, 1996. Carole Naylor did not work in the rental office. She made no judgments regarding the rental of the apartment, nor the creditworthiness of the prospective tenants. Robert Stitzel made no judgments regarding the tenants. Regency Place Apartments had a policy which requires income equaling three times the gross rental. The creditworthiness and the determination of who would rent apartments was left solely with the resident manager. Stitzel demonstrated that many disabled people had lived in the apartment complex. Accommodations were made for people with disabilities by the manager and such costs for these accommodations were paid by Regency Place Apartments. The agency made a prima facie case of discrimination in that Leggitt is a handicapped person, who is otherwise qualified to rent the apartment, and suffered a loss of a housing opportunity, under circumstances which lead to an inference that Stitzel based its action solely upon her handicap. Evidence was presented that Regency Place Apartment's requirement of gross income equaling three times the monthly rent had not been satisfied by Leggitt's mother's agreement to contribute $550 per month. Leggitt's income was $281.34 per month. Three times the monthly rent was $1,140.00, thus rendering her income short by $308.66 per month. The motivation for rejecting the application was that the apartment which Leggitt wanted was not available and Leggitt did not have sufficient income to qualify. There was no evidence of a discriminatory motive on the part of Cutrona, Naylor, Stitzel, or Regency Place Apartments, other than conjecture. There was no evidence that suggests the reasons given were not true at the time the letters were written or that they were merely pretextual. Further, it did not appear from the evidence that any discriminatory motive was proven. There was nothing in the evidence that proves that Leggitt's legal blindness was a cause of the rejection of her application. There was no evidence of any act or conduct which would suggest discriminatory conduct or a discriminatory animus by any of the persons named as Respondents in the Administrative Charge. Taken as a whole, the credible evidence indicated that the sole basis for rejecting Leggitt's application was the unavailability of the unit that she requested, and her failure to satisfy management of her financial ability to meet the financial requirements of Regency Place Apartments. Although Leggitt testified as to her inconvenience caused by the denial of her application, there was no evidence of any quantifiable damages presented at the hearing. In the Conclusions of Law, it was determined that the Motion to Dismiss should have and was granted on the grounds that the Respondent agency failed to comply with the statutory time requirements: Under the Federal Fair Housing Amendments Act, "the Secretary shall make an investigation of the alleged discriminatory housing practice and complete such investigation within 100 days after filing of the Complaint . . . unless it is impracticable to do so." 42 U.S.C. s 3610(a)(1)(B)(iv). The statute also provides that if "the Secretary is unable to complete the investigation within 100 days" after complainant files the complaint, the Secretary "shall notify the complainant and respondent in writing of the reasons for not doing so." 42 U.S.C. s. 3610(a)(1)(c). This same provision is found in the Florida Fair Housing Act. See Section 760.34, Florida Statutes (1995), and Chapter 60Y-7, Florida Administrative Code. The Florida Administrative Code provides as follows: "Section 60Y-7004(8)(b) If the Commission is unable to complete its investigation within 100 days, it shall notify the complainant and respondent in writing of the reasons for not doing so." Section 60Y-7.004(10) The Commission will make final administrative deposition of a complaint within one year of the date of receipt of the complaint, unless it is impracticable to do so. If the Commission is unable to do so, it shall notify the complainant and respondent in writing of the reasons for not doing so." It is undisputed in this case that the Respondent agency did not file its determination until August 28, 1996, over three and one-half years from the time Leggitt filed her complaint. It is also undisputed that the Respondent agency never notified Petitioner, or the other parties, that it would be unable to complete the investigation within 100 days as required by statute. Nor did it notify Stitzel in writing why an administrative disposition of a Complaint had not been made within one year of receipt of the Complaint. Petitioner established that the Respondent agency violated the statutory time limits and that the three and one- half year delay in filing the Respondent agency's Notice of Probable Cause caused the proceedings to be impaired and was to Petitioner's extreme prejudice. At the attorney's fee hearing, Respondent agency offered no testimony or other evidence as to the cause for the extreme delay in the filing of the Administrative Charge, or the rationale for filing the Charge two and one-half years after the expiration of the statutory deadline for filing said charges. At the attorney's fees hearing, Respondent agency offered no testimony or other evidence as to why it claimed to be substantially justified in finding probable cause and filing the Administrative Charge. The Petitioner, demonstrated that, at the time the matter was initiated, Regency Place Apartments was a business operating as a limited partnership and that Robert Stitzel was the general partner; that the principal place of business was in Florida; and that it did not have more than 25 full-time employees. Petitioner retained counsel to defend it on the charges contained in the Notice of Determination, Cause and Issuance of an Administrative Charge, and Petitioner was the prevailing small business party. Counsel for Petitioner expended 76 hours on this matter, not including time expended on the Petition for Attorney's Fees or time expended following his appearance before the Commission prior to the issuance of the final order. Counsel's billing for Petitioner's time at an hourly rate of $200 is reasonable in this case. The Petitioner's billable costs of $609.75 are reasonable.
The Issue The issue is whether Respondent has unlawfully discriminated against Petitioner on the basis of his national origin and in retaliation for his opposing discriminatory practices in connection with his rental of an apartment, in violation of the Florida Fair Housing Act, section 760.23(2), Florida Statutes.
Findings Of Fact Petitioner was born in Brazil. He resides in an apartment in St. Monica Gardens in Miami Gardens, Florida. St. Monica Gardens provides housing subsidized by the U.S. Department of Housing and Urban Development (HUD) for low- income, elderly residents. St. Monica Gardens is owned and operated by Respondent, which is a not-for-profit corporation, and managed by Catholic Housing Management, which is a management company owned by the Archdiocese of Miami, Inc. Catholic Housing Management manages 17 buildings accommodating over 2500 persons from all over the world. Residents at St. Monica Gardens, including Petitioner, receive free lunches through the charitable offices of Catholic Charities of the Archdiocese of Miami, Inc. Petitioner has objected to the quality and operation of this free-food program. On one occasion, Petitioner complained that a food server used the same-colored gloves that are used to perform maintenance duties, and an unauthorized person was allowed to remain in the food-preparation and -service areas. However, these complaints do not establish that Catholic Charities fails to serve St. Monica Gardens residents safe food, lawfully prepared. On September 16, 2016, Catholic Charities was conducting an annual verification audit of residents at lunch that day. Petitioner angrily confronted a Catholic Charities food-service worker, demanding that he be given immediate access to his free lunch. Other residents, mostly Cuban, objected to Petitioner's behavior, although, on this record, their objections appear to be based on Petitioner's discourtesy, not national origin. Respondent conducted an informal investigation of the incident and issued a notice to Petitioner that this confrontational behavior was in violation of his lease. There is no evidence of any discrimination against Petitioner, nor is there any evidence that Respondent took any adverse action against Petitioner or his lease or occupancy of his apartment at St. Monica Gardens. Petitioner complained to HUD, but Respondent did not discriminate or take adverse action against Petitioner for this complaint either.
Recommendation It is RECOMMENDED that the Florida Commission on Human Relations enter a final order dismissing the Petition for Relief filed on May 1, 2017. DONE AND ENTERED this 2nd day of August, 2017, in Tallahassee, Leon County, Florida. S Robert E. Meale 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 2nd day of August, 2017. COPIES FURNISHED: Tammy S. Barton, Agency Clerk Florida Commission on Human Relations 4075 Esplanade Way, Room 110 Tallahassee, Florida 32399 (eServed) Everdan Sales Correia Apartment 217 3425 Northwest 189th Street Miami Gardens, Florida 33056 (eServed) Thomas H. Courtney, Esquire J. Patrick Fitzgerald & Associates, P.A. 110 Merrick Way, Suite 3-B Coral Gables, Florida 33134 (eServed) Cheyanne Costilla, General Counsel Florida Commission on Human Relations 4075 Esplanade Way, Room 110 Tallahassee, Florida 32399 (eServed)
The Issue The issue is whether the Florida Commission on Human Relations (FCHR) properly dismissed this matter for lack of jurisdiction.
Findings Of Fact Petitioner, as a first-time home buyer, applied for and was pre-approved by Cendant Mortgage Corporation d/b/a/ Century 21 Mortgage for a mortgage loan. The loan, in the amount of $28,687.00, was to be insured by the Federal Housing Administration (FHA). In February 2003, Respondent agreed to sell Petitioner his home. They agreed that Petitioner would pay Respondent $29,000.00 for the house. Respondent subsequently stated in writing that he agreed to sell his house to Petitioner for that amount. On March 5, 2003, Petitioner signed a form entitled No Brokerage Relationship Disclosure. The form made it clear that Century 21 Prime Property Resources, Inc., a local real estate agency, and its associates did not have a brokerage relationship with Petitioner. There is no evidence that the professional services of a licensed real estate agent was involved at all in this case. However, the local Century 21 real estate office gratuitously sent a few documents on Petitioner's behalf by facsimile transmission to Century 21 Mortgage in New Jersey. Respondent did not use the sales facilities or services of Century 21 for any purpose. On March 7, 2003, Cheryl Barnes, a certified appraiser, completed an appraisal of the property. The U.S. Department of Housing and Urban Development and/or FHA required the appraisal in order for Petitioner to receive the loan insured by FHA. Neither Petitioner nor Respondent was required to pay for the appraisal. In a letter dated March 10, 2003, Century 21 Mortgage advised Petitioner that the closing date was scheduled for April 16, 2003. The letter enclosed additional forms that Petitioner needed to complete in order to close the loan. The Housing Department, Division of Planning and Development, in Sumter County, Florida, sent Petitioner a letter dated March 19, 2003. The letter advised Petitioner that she was eligible for an award of Supplemental Household Income Protection funds to cover the down payment and closing costs on the loan. Subsequently, Respondent refused to sign any papers related to the sale of the house. The loan could not be closed without Respondent's cooperation. Petitioner had placed $250 in an escrow account with Century 21 Mortgage. The mortgage broker refunded all of the money in the escrow account to Petitioner after Respondent refused to sign any more paperwork. Finally, there is no evidence of the following: (a) that Respondent owned more than three single-family houses at any one time; (b) that Respondent sold more than one single- family home within any 24-month period; (c) that Respondent had an interest in the proceeds from the sale or rental of more than three single-family houses at any one time; and (d) the sale of the subject house did not involve the posting, mailing, or publication of any written notice.
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. DONE AND ENTERED this 5th day of January, 2005, in Tallahassee, Leon County, Florida. S SUZANNE F. HOOD 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 5th day of January, 2005. COPIES FURNISHED: Cecil Howard, General Counsel Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301 Denise Crawford, Agency Clerk Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301 Susan M. Parker 3840 East County Road 478 Apartment D-30 Webster, Florida 33597 Paul Moore 2396 County Road 608 Bushnell, Florida 33513
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.
The Issue The issue is whether Respondent violated the Fair Housing Act by denying Petitioners financial assistance on account of their national origin and Mr. Rodriguez's disability.
Findings Of Fact Petitioners reside at 207 Northeast 24th Terrace, Cape Coral, Florida. They are of Hispanic (Mexican) origin. Although Mr. Rodriguez alluded to the fact that he has a disability, the specific nature of the disability was not disclosed. The Housing Corporation is a non-profit corporation with offices in Naples, Florida. It performs housing counseling services, including homebuyer education, credit counseling, financial literacy training, and foreclosure prevention counseling services in Southwest Florida. Respondent has seven full-time employees. The Housing Corporation is not a financial institution or a licensed real estate firm, and it is not in the business of providing commercial real estate loans. Due to the housing crisis which began around 2008, the federal government allocated foreclosure prevention funding that provides temporary assistance to eligible homeowners. If a homeowner qualifies for assistance, the homeowner may receive up to 12 months of financial assistance that is used to pay past due or current mortgage payments. The federal funds are administered in the State by the Florida Housing Finance Corporation (FHFC) through a program known as the Florida Hardest Hit Fund (the program). A number of advisor agencies have contracted with the FHFC to process applications under the program, including the Housing Corporation. To qualify for assistance under the program, among other things, applicants must demonstrate loss of employment income through no fault of their own. This requirement can be met in one of three ways: demonstrating eligibility for unemployment compensation; providing a letter from a current or previous employer indicating that loss or reduction of income was involuntary; or providing a letter from a doctor confirming that the applicant is suffering a temporary medical issue and will be able to resume work in the near future. These requirements are imposed by HUD and are strictly enforced. In April 2011, Mr. Rodriguez applied for assistance through the program. The application was initially processed by Reliable Business Solutions (RBS), an advisor agency in Orlando, but Petitioners were deemed to be ineligible because their mortgage was more than six months in arrears. After RBS ceased participating in the program, in December 2012 Petitioners' file was transferred to the Housing Corporation for further review. By that time, mortgage delinquency was no longer a reason for ineligibility. The reason why RBS held the application for an extended period of time is unknown. In January 2013, Petitioners' application was assigned to Kathleen Guevara, a Housing Corporation employee, whose national origin is Hispanic (Colombian). Because his unemployment compensation had ended in 2010, Mr. Rodriguez could not demonstrate that he was eligible for unemployment assistance. Also, he could not provide a letter from a current or previous employer confirming that he had suffered an involuntary loss or reduction in income. Ms. Guevara then explained to Mr. Rodriguez that in order to qualify for assistance under the program guidelines, he must provide a letter from a medical doctor confirming that he has a temporary medical issue or disability preventing him from working but he will be able to resume work in the near future. Mr. Rodriguez did not provide this information. At hearing, he stated that he could not afford to pay a doctor to prepare such a letter. On May 30, 2013, Ms. Guevara sent Mr. Rodriguez an email stating that the application could not be approved without "a letter from a doctor indicating [that] the nature of [his] disability is temporary." Attached to the email was a letter from the Executive Director stating that Petitioners were ineligible for program funding due to "No Qualifying Hardship – Permanent Disability." The letter also provided information on how to appeal that decision to the Florida Housing Coalition. Petitioners did not appeal the decision to the Florida Housing Coalition but elected instead to file a discrimination complaint with the EEOC. Mr. Rodriguez testified that he did so, in part, after consulting with other unidentified persons who advised him that he was the victim of discrimination. Mr. Rodriguez asserted that Ms. Guevara required him to provide the medical eligibility information only after she learned he was born in Mexico, and that other applicants for temporary assistance (especially Cubans) who were not born in Mexico were treated differently. There is no credible evidence to support this assertion. The more persuasive testimony is that the eligibility information is required from all applicants, regardless of their national origin. This is because HUD requires strict adherence to program guidelines and performs a biannual audit on the Housing Corporation to verify that the guidelines are being followed. The decision to deny the application was not based on Petitioners' national origin. Mr. Rodriguez failed to establish that he has a disability within the meaning of the law. See § 760.22(7), Fla. Stat. (2013). At best, Petitioners' Composite Exhibit 1 shows that he had a magnetic resonance imaging taken in June 2010 for "left shoulder pain," and he received an epidural injection within the last month or so, or long after the alleged discrimination occurred. In any event, the decision to deny the application for lack of documentation was not based on any actual or perceived disability but was based on Petitioners' failure to provide the required documentation.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Florida Commission on Human Relations enter a final order dismissing the Petition for Relief filed on behalf of Jorge and Alquidania Rodriguez. DONE AND ENTERED this 4th day of April, 2014, in Tallahassee, Leon County, Florida. S D. R. ALEXANDER Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 4th day of April, 2014.
