The Issue The issue in this case is whether Respondent, Community Housing Initiative, Inc. (Respondent), committed a discriminatory housing practice against Petitioner, Karen Lee Krason (Petitioner), in violation of Chapter 760, Florida Statutes (2008).
Findings Of Fact On or about June 11, 2009, Petitioner filed a Housing Discrimination Complaint with the Commission. Pursuant to the Commission's procedure, an investigation of the matter was completed that resulted in a Notice of Determination of No Cause. Essentially, the Commission found that based upon the allegations raised by Petitioner there was no cause from which it could be found that Respondent had violated the Florida Fair Housing Act. Thereafter, Petitioner elected to file a Petition for Relief to challenge the determination and to seek relief against Respondent for the alleged violation. The Commission then forwarded the matter to DOAH for formal proceedings. DOAH issued a Notice of Hearing that was provided to all parties at their addresses of record. The postal service did not return the notices as undelivered. It is presumed the parties received notice of the hearing date, time, and location. Petitioner did not appear at the hearing.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Florida Commission on Human Relations enter a final order dismissing Petitioner's claim of discrimination. DONE AND ENTERED this 4th day of February, 2010, in Tallahassee, Leon County, Florida. S J. D. PARRISH Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 4th day of February, 2010. COPIES FURNISHED: Karen Lee Krason 1715 Erin Court Northeast Palm Bay, Florida 32905 Larry Kranert, General Counsel Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301 Denise Crawford, Agency Clerk Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301 COPIES FURNISHED BY CERTIFIED MAIL Nicole Tenpenny, Registered Agent Community Housing Initiative, Inc. 3033 College Wood Drive Melbourne, Florida 32941 (Certified No. 91 7108 2133 3935 7995 3000) Nicole Tenpenny, Registered Agent Community Housing Initiative, Inc. Post Office Box 410522 Melbourne, Florida 32941-0522 (Certified No. 91 7108 2133 3935 7995 2997) Michael Rogers, Officer/Director Community Housing Initiative, Inc. 1890 Palm Bay Road, Northeast Palm Bay, Florida 32905 (Certified No. 91 7108 2133 3935 7995 2980)
The Issue Whether the Florida Commission on Human Relations and the Division of Administrative Hearings have jurisdiction pursuant to Section 760.34, Florida Statutes, to consider Petitioner's Petition for Relief; and Whether Petitioner timely filed his Petition for Relief with the Florida Commission on Human Relations.
Findings Of Fact Based on the oral and documentary evidence presented at the final hearing, the following Findings of Facts are made: Petitioner contracted to purchase a condominium, "unit 206 in Building 425 at Serravella at Spring Valley" from Respondent. For reasons not relevant to the issues presented for determination, closing was deferred; and on December 22, 2006, Petitioner signed and submitted an "Addendum to Contract" to Respondent that sought "to revise contract closing date to 2/28/2007." Sometime in late December 2006, a telephone conversation took place among Steve Myers, a realtor for Serra Villa, Petitioner, and Barefield. Barefield was in Alabama, and Myers and Petitioner were in Florida on a speakerphone. Barefield advised Petitioner that the addendum would not be accepted by Respondent. Barefield and Petitioner did not speak to each other after this December telephone conversation. All communication was accomplished through third parties. Subsequent to Respondent's refusal to accept Petitioner's addendum, there is lengthy correspondence and litigation involving the parties. For some time after Respondent rejected Petitioner's addendum, Petitioner desired to purchase the condominium and, apparently, indicated so in various offers communicated by his attorneys to Respondent. If an unlawful discriminatory act occurred, the determination of which is not an issue presented for determination, the act occurred in December 2006. Petitioner's Housing Discrimination Complaint dated September 17, 2008, and signed by Petitioner on September 22, 2008, was filed with United States Department of Housing and Urban Development more than one year after the alleged act of discrimination. On November 6, 2008, Petitioner sent a four-page fax transmission to Lisa Sutherland, a FCHR employee, which included a Petition for Relief. On November 13, 2008, Petitioner sent a second fax transmission of seven pages to Lisa Sutherland. Apparently, this second transmission included a Petition for Relief. On December 4, 2008, Petitioner sent a third fax transmission addressed to "Mrs. Crawford/Lisa Sutherland." While the fax transmission cover sheet is dated "11-13-08," the report of transmission shows that this 11-page transmission was sent on "12/04 15:24." The Petition for Relief forwarded by FCHR to DOAH was date-stamped "2008 DEC-4 PM 3:25."
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that FCHR dismiss the Petition for Relief as being time-barred as a result of the late filing of Petitioner, Ricardo Vega's, Housing Discrimination Complaint. DONE AND ENTERED this 27th day of April, 2009, in Tallahassee, Leon County, Florida. S JEFF B. CLARK Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 27th day of April, 2009. COPIES FURNISHED: Denise Crawford, Agency Clerk Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301 Larry Kranert, General Counsel Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301 Richard S. Taylor, Jr., Esquire 531 Dog Track Road Longwood, Florida 32750-6547 Barbara Billiot-Stage, Esquire Law Offices of Barbara Billiot-Stage, PA 5401 South Kirkman Road, Suite 310 Orlando, Florida 32819
The Issue The issue in this case is whether Respondent committed a discriminatory housing practice against Petitioner on the basis of a handicap.
Findings Of Fact Petitioner formerly resided in Montrose Apartments at 563 West Montrose Street, Apartment 18, Clermont, Florida. Petitioner alleges that he is a handicapped/disabled person by virtue of a mental disability, who was "illegally" evicted from Montrose Apartments because of his handicap/disability. At all times relevant to this proceeding Francisco Guzman, Jr., owned and managed Montrose Apartments. Mr. Guzman was unaware of Petitioner's alleged handicap/disability. At no time during Petitioner's tenancy at Montrose Apartments did Petitioner notify management of the apartment complex that he had a handicap/disability. Furthermore, Petitioner never provided management with documentation verifying that he had a handicap/disability. Petitioner alleged that in early 2009, he requested that Respondent make plumbing repairs in his apartment unit and that Respondent refused to comply with those requests. He further alleged that Respondent did not take his maintenance requests seriously and treated other tenants at Montrose Apartments more favorably than he was treated. Petitioner admitted that he did not pay rent for his Montrose Apartment unit in March and April 2009. According to Petitioner, he withheld the rent because Respondent failed to make the requested plumbing repairs. In correspondence from him to a "Ms. Smith," Mr. Guzman indicated that on "Sunday [March] 22, 2009," he had posted a three-day notice on Petitioner's apartment, because he had not paid his March 2009 rent. Also, Mr. Guzman acknowledged that he had not been able to repair Petitioner's bathroom sink because he had been unable to gain access to Petitioner's apartment. Finally, Mr. Guzman indicated that he believed Petitioner was "avoiding [him] since he is unable to pay the rent." Petitioner did not pay rent for his Montrose Apartment unit in March and April 2009, even after Respondent notified him several times that the rent was past due and should be paid. Respondent began eviction proceedings against Petitioner in or about late April or early May 2009, by filing a Complaint for Eviction ("Eviction Complaint") with the County Court of Lake County, Florida. The Eviction Complaint was assigned Case No. 2009-CC001534. Respondent filed the Eviction Complaint against Petitioner after, and because, he did not pay the March and April 2009 rent for his Montrose Apartment unit. On May 5, 2009, a Final Judgment for Possession and Writ of Possession were entered against Petitioner. The Writ of Possession was served on Petitioner and enforced. On or about May 8, 2009, the apartment unit previously rented to Petitioner was turned over to Mr. Guzman. Petitioner alleges and asserts that: (1) he is disabled/handicapped due to a mental disability; (2) he was evicted because of his handicap/disability; and (3) Respondent knew Petitioner was handicapped/disabled. Nevertheless, Petitioner presented no competent evidence to support his claim.
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 Luis Bermudez' Complaint and Petition for Relief. DONE AND ENTERED this 26th day of February, 2010, in Tallahassee, Leon County, Florida. S CAROLYN S. HOLIFIELD 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 26th day of February, 2010.
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 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 this case is whether the Respondent, Beacon Hill, Ltd., discriminated against Yvonne Malone (Petitioner) based on her religion in violation of the Florida Fair Housing Act (the Act).
Findings Of Fact The Petitioner is a resident at an apartment complex owned and operated by the Respondent. At the hearing, the Petitioner recited a litany of complaints related to her apartment unit and to the services she has received from the Respondent's staff. Although the Petitioner has previously asserted that the Respondent has discriminated against her based on her religion, the Petitioner testified at the hearing that she had been "harassed" and "abused" by the Respondent's employees and that she did not know the basis for her treatment. The evidence failed to establish that the Respondent, or any person employed by the Respondent, has discriminated against the Petitioner based on her religion. The evidence failed to establish that the Respondent, or any person employed by the Respondent, has treated the Petitioner any differently than any other resident of the apartment complex has been treated. The evidence failed to establish that the Respondent, or any person employed by the Respondent, has "harassed" or "abused" the Petitioner in any manner.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Florida Commission on Human Relations enter a final order dismissing the Petition for Relief filed by Yvonne Malone. DONE AND ENTERED this 7th day of January, 2014, in Tallahassee, Leon County, Florida. S WILLIAM F. QUATTLEBAUM Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 7th day of January, 2014.
The Issue Whether Petitioners have been subjected to an unlawful housing practice by Respondents, as alleged in the Housing Discrimination Complaint filed by Petitioners on March 13, 2004.
Findings Of Fact Petitioners, Ingrid Gomez and Luis Moran, are married. They and their son moved into Coral Gardens Apartments in early 2000. Petitioners entered into a one-year lease on January 13, 2000. The lease was not renewed at the end of one year, and Petitioners, thereafter, lived in their apartment as month-to- month tenants. Coral Gardens Apartments is a 36-unit apartment complex located in Naples, Florida. Many of the residents are minorities. Respondent DeMarco Investments is the absentee owner of the complex, which is managed through a Fort Myers company called Services-Taylor Made, Inc. Respondents Jim and Judy Hill were hired to manage the complex in March 2003. At some point in June 2003, Ms. Hill sent a notice to all tenants that stated as follows, set forth verbatim:1/ Now we have [sic] ask you to please make sure that when you give your children snacks, drinks, or what ever [sic] to eat that you the parent would make sure your children discard the trash inside the unit or in the dumpster. Apparently this went in one ear and out the other. Now all unit [sic] has to suffer this price because no one wants to help keep the trash up by disposing of it yourself [sic]. The adults are getting just as bad. So every unit is going to pay an additional $35.00 a month trash clean up fee. You want to live trashy MOVE across the street. So when you pay your July Rent pay an extra $35.00 to pay for the person that has to clean up YOUR trash. I sent out letters to everyone that it was $25.00 and if it didn't improve I would raise it. Well I didn't inforced [sic] the $25.00 and it hasn't changed at all. So it [sic] in effect for sure now [sic]. YOU WILL PAY $35.00 WITH JULY'S RENT. Now you don't want to pay it next month then start picking up the TRASH! Also from now on you put furniture out at the dumpster it will cost you $50.00 first piece and $15.00 per piece after that. They charge me to come and get the stuff then I charge you. The camera's [sic] will be watching and don't get caught. I hate to inform all of you we are not the old managers, the old owners, the old maintenance personal [sic]. We are new and we are the LAW here. We are working to improve this place and if you can't help with keeping this place clean then I DON"T [sic] want to here [sic]. I AM NOT GOING TO LIVE IN A TRASHY PLACE! After receiving this notice, Mr. Moran and Mr. Novarro went to the manager's office to discuss the propriety of the proposed $35.00 trash pick-up fee. Mr. Moran stated to Ms. Hill that he believed an imposition of such a fee on tenants was against the law. Mr. Moran testified that Ms. Hill stated, "I am the law." Mr. Moran demanded that Ms. Hill give him the phone number of Mr. DeMarco. He told her, "I want to talk to the owner of the circus, not the clowns." Mr. Moran testified that at this point, Ms. Hill became apoplectic. She called Mr. Moran "a fucking nigger Latino." Mr. Novarro, whose English was very sketchy, confirmed that Ms. Hill used those words. Ms. Gomez, who speaks relatively fluent English, testified that on another occasion Ms. Hill stated that she was "tired of the fucking negros Latinos." This raised a question whether Ms. Hill also used the term "negros" in her confrontation with Mr. Moran and whether it became "nigger" only in the imperfect translation. In any event, Ms. Hill's use of the word "fucking" was unambiguous and certainly indicated a racial animus against Mr. Moran, who is indeed a black Latino. In a second notice to all tenants dated June 22, 2003, Ms. Hill acknowledged tenant complaints about the $35.00 fee. She had "consulted the Florida Landlord/Tenant Act and state officials in Tallahassee," and concluded that she was required to rescind the $35.00 trash fee. Thus, the controversial fee was never collected. Dennis Gomez, Petitioners' middle-school-aged son, testified that Ms. Hill told him she would pay him $5.00 per week to pick up trash on the property. Mr. Moran told Dennis not to accept, because tenants paid Ms. Hill $10.00 per month to clean up the property. Dennis testified that after he refused the offer, Ms. Hill told him that he had to pick up the trash anyway because he "was a slave." When Dennis asked why he was a slave, Ms. Hill stated that Dennis' father was a "nigger and a slave," and that made Dennis a "slave, too." Dennis Gomez' testimony is not credible. There is undoubtedly a kernel of truth in his story, but Dennis' obvious embellishments of his conversations with Ms. Hill render his testimony of doubtful probative value. At some point in June 2003, Ms. Hill served Petitioners with a seven-day notice to vacate the premises, because of her confrontation with Mr. Moran. However, the notice was never enforced and the Petitioners stayed on until August 1, 2003, when they voluntarily terminated their tenancy. There was a problem with the return of Petitioners' deposit. Ms. Gomez contacted Mr. DeMarco, who returned the deposit to Petitioners after a two-month delay caused by cash flow problems with his businesses. Mr. DeMarco credibly testified that he knew nothing of the controversy between Petitioners and Ms. Hill until he received the Housing Discrimination Complaint. His only contact with Petitioners was the telephone conversation with Ms. Gomez in August 2003 concerning the Petitioners' deposit. From the weight of the testimony, it is apparent that there was a great deal of animosity between Petitioners and the Hills. The notices authored by Ms. Hill were crude and insulting, but were not directed toward Petitioners in particular. There is credible evidence that on at least one occasion Ms. Hill uttered a derogatory and insulting racial comment to Mr. Moran. However, the record evidence does not demonstrate that Ms. Hill took any action against Petitioners on the basis of their race or familial status. The $35.00 trash fee notice was provided to all tenants. The fee itself was never collected. Petitioners were given a seven-day notice, but it was never enforced. Petitioners chose to vacate their tenancy. No adverse action whatever was taken against Petitioners. DeMarco Investments was unaware of the hostile situation between Petitioners and the Hills. Mr. DeMarco's delay in returning Petitioners' deposit was due to legitimate business reasons.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law set forth herein, it is RECOMMENDED: That the Florida Commission on Human Relations enter a final order dismissing the Petition for Relief. DONE AND ENTERED this 8th day of September, 2004, in Tallahassee, Leon County, Florida. S LAWRENCE P. STEVENSON 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 8th day of September, 2004.
The Issue The issue in this case is whether Respondent unlawfully discriminated against Petitioner because of handicap in violation of the Florida Fair Housing Act.
Findings Of Fact At all relevant times, Petitioner Shelley M. Wright ("Wright") was a graduate student at Florida International University ("FIU") in Miami, Florida. Wright has a physical disability that affects her mobility, and, as a result, she uses a wheelchair or scooter to get around. There is no dispute that Wright falls within a class of persons protected against discrimination under the Florida Fair Housing Act ("FFHA"). Respondent Servitas Management Group, LLC ("SMG"), manages Bayview Student Living ("Bayview"), a privately owned student housing community located on FIU's campus. Bayview's owner, NCCD — Biscayne Properties, LLC, leases (from FIU) the real estate on which the project is situated. Bayview is a recently built apartment complex, which first opened its doors to students for the 2016-2017 school year. On November 20, 2015, Wright submitted a rental application for a single occupancy efficiency apartment in Bayview, fitted out for residents with disabilities. She was charged an application fee of $100.00, as were all applicants, plus a "convenience fee" of $6.45. Much later, Wright would request that SMG refund the application fee, and SMG would deny her request, although it would give her a credit of $6.45 to erase the convenience fee on the grounds that it had been charged in error. Wright complains that this transaction was tainted with unlawful discrimination, but there is no evidence of such, and thus the fees will not be discussed further. Wright's application was approved, and, accordingly, she soon executed a Student Housing Lease Contract ("First Lease") for a term commencing on August 20, 2016, and ending on July 31, 2017. The First Lease stated that her rent would be $1,153.00 per month, and that the total rent for the lease term would be $12,683.00. Because Wright was one of the first students to sign a lease, she won some incentives, namely $500.00 in Visa gift cards and an iPad Pro. The First Lease provided that she would receive a $200.00 gift card upon lease execution and the balance of $300.00 upon moving in. As it happened, Wright did not receive the gift cards in two installments, but instead accepted five cards worth $500.00, in the aggregate, on August 20, 2016. There were two reasons for this. One was that SMG required lease holders to appear in-person to take possession of the gift cards and sign a receipt acknowledging delivery. Wright was unable (or unwilling) to travel to SMG's office until she moved to Miami in August 2016 to attend FIU. The other was that SMG decided not to use gift cards as the means of paying this particular incentive after integrating its rent collection operation with FIU's student accounts. Instead, SMG would issue a credit to the lease holders' student accounts in the amount of $500.00. Wright, however, insisted upon the gift cards, and so she was given them rather than the $500.00 credit. Wright has alleged that the untimely (or inconvenient) delivery of the gift cards constituted unlawful discrimination, but the evidence fails to sustain the allegation, which merits no further discussion. In May 2016, SMG asked Wright (and all other Bayview lease holders) to sign an amended lease. The revised lease made several changes that SMG called "improvements," most of which stemmed from SMG's entering into a closer working relationship with FIU. (One such change was the aforementioned substitution of a $500.00 credit for gift cards.) The amended lease, however, specified that Wright's total rent for the term would be $13,836.00——an increase of $1,153.00 over the amount stated in the First Lease. The explanation was that, in the First Lease, the total rent had been calculated by multiplying the monthly installment ($1,153.00) by 11, which did not account for the 12 days in August 2016 included in the lease term. SMG claimed that the intent all along had been to charge 12 monthly installments of $1,153.00 without proration (even though the tenant would not have possession of the premises for a full 12 months) and thus that the First Lease had erroneously shown the total rent as $12,683.00. As SMG saw it, the revised lease simply fixed this mistake. Wright executed the amended lease on or about May 10, 2016 (the "Second Lease"). Wright alleges that this rent "increase" was the product of unlawful discrimination, retaliation, or both. There is, however, no persuasive evidence supporting this allegation. The same rental amount was charged to all occupants of the efficiency apartments, regardless of their disabilities or lack thereof, and each of them signed the same amended lease document that Wright executed. To be sure, Wright had reason to be upset about SMG's revision of the total rent amount, which was not an improvement from her standpoint, and perhaps she had (or has) legal or equitable remedies available for breach of lease. But this administrative proceeding is not the forum for redressing such wrongs (if any). Relatedly, some tenants received a rent reduction through the amended leases SMG presented in May 2016, because the rates were reduced therein for two- and four-bedroom apartments. As was made clear at the time, however, rates were not reduced on the one-bedroom studios due to their popularity. Wright alleges that she subsequently requested an "accommodation" in the form of a rent reduction, which she argues was necessary because she leased a more expensive studio apartment, not by choice, but of necessity (since only the one- bedroom unit met her needs in light of her disabilities). This claim fails because allowing Wright to pay less for her apartment than every other tenant is charged for the same type of apartment would amount to preferential treatment, which the law does not require. Wright makes two claims of alleged discrimination that, unlike her other charges, are facially plausible. She asserts that the handicapped parking spaces at Bayview are unreasonably far away for her, given her limited mobility. She further asserts that the main entrance doors (and others in the building) do not afford two-way automatic entry, and that as a result, she has difficulty exiting through these doors. The undersigned believes it is possible, even likely, that the refusal to offer Wright a reasonable and necessary accommodation with regard to the alleged parking situation, her problems with ingress and egress, or both, if properly requested, might afford grounds for relief under the FFHA. The shortcoming in Wright's current case is the absence of persuasive proof that she ever presented an actual request for such an accommodation, explaining the necessity thereof, for SMG's consideration. There is evidence suggesting that Wright complained about the parking and the doors, perhaps even to SMG employees, but a gripe, without more, is not equivalent to a request for reasonable accommodation. Determinations of Ultimate Fact There is no persuasive evidence that any of SMG's decisions concerning, or actions affecting, Wright, directly or indirectly, were motivated in any way by discriminatory animus directed toward Wright. There is no persuasive evidence that SMG denied a request of Wright's for a reasonable accommodation at Bayview. In sum, there is no competent, persuasive evidence in the record, direct or circumstantial, upon which a finding of any sort of unlawful housing discrimination could be made. Ultimately, therefore, it is determined that SMG did not commit any prohibited act.
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 finding SMG not liable for housing discrimination and awarding Wright no relief. DONE AND ENTERED this 27th day of September, 2017, in Tallahassee, Leon County, Florida. S JOHN G. VAN LANINGHAM Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 27th day of September, 2017.
The Issue The issues are whether Respondent engaged in a discriminatory housing practice by allegedly excluding Petitioner from participating in a homeowner’s meeting on January 14, 2009, or ejecting Petitioner from the meeting, based on Petitioner’s religion and alleged handicap, in violation of Section 760.37 and Subsections 760.23(2), 760.23(8), 760.23(8)(2)(b), and 784.03(1)(a)(l), Florida Statutes (2008),1 and, if not, whether Respondent is entitled to attorney fees and costs pursuant to Section 120.595, Florida Statutes (2009).
Findings Of Fact Respondent is a condominium association defined in Section 718.103, Florida Statutes. Respondent manages a condominium development, identified in the record as Tregate East Condominiums (Tregate). Tregate is a covered multifamily dwelling within the meaning of Subsection 760.22(2), Florida Statutes. Petitioner is a Jewish male whose age is not evidenced in the record. A preponderance of the evidence presented at the final hearing does not establish a prima facie case of discrimination on the basis of religion, ethnicity, medical, or mental disability, or perceived disability. Rather, a preponderance of the evidence shows that Respondent did not discriminate against Petitioner in the association meeting on January 14, 2009. In particular, the fact-finder reviewed the videotape of the entire meeting that took place on January 14, 2009. The meeting evidenced controversy, acrimony, and differences of opinion over issues confronting the homeowners present. However, the video tape did not establish a prima facie case of discrimination based on Petitioner’s religion, ethnicity, or alleged handicap. Respondent seeks attorney’s fees in this proceeding pursuant to Section 120.595, Florida Statutes (2009). Pursuant to Subsection 120.595(1)(c), Florida Statutes (2009), this Recommended Order finds that Petitioner has participated in this proceeding for an improper purpose. Petitioner participated in this proceeding for a frivolous purpose within the meaning of Subsection 120.595(1)(e)1., Florida Statutes (2009). The evidence submitted by Petitioner presented no justiciable issue of fact or law. Petitioner provided no evidence to support a finding that he suffers from a handicap defined in Subsection 760.22(7), Florida Statutes. Petitioner claims to have a disability based on migraine headaches but offered no medical evidence to support a finding that Petitioner suffers from migraine headaches or any medical or mental disability. Petitioner’s testimony was vague and ambiguous, lacked precision, and was not specific as to material facts. Petitioner called four other witnesses and cross-examined Respondent’s witnesses. Petitioner’s examination of his witnesses and cross-examination of Respondent’s witnesses may be fairly summarized as consisting of comments on the answers to questions and argument with the witnesses. Petitioner repeatedly disregarded instructions from the ALJ not to argue with witnesses and not to comment on the testimony of a witness. Petitioner offered no evidence or legal authority that the alleged exclusion from the homeowners meeting on January 14, 2009, was prohibited under Florida’s Fair Housing Act.3 Petitioner offered no evidence that he is a “buyer” or “renter” of a Tregate condominium within the meaning of Section 760.23, Florida Statutes. Rather, the undisputed evidence shows that Petitioner is not a buyer or renter of a Tregate condominium. Petitioner attended the homeowners meeting on January 14, 2009, pursuant to a power of attorney executed by the owner of the condominium. If a preponderance of the evidence were to have shown that the owner’s representative had been excluded from the meeting, the harm allegedly prohibited by the Fair Housing Act would have been suffered vicariously by the condominium owner, not the non-owner and non-renter who was attending the meeting in a representative capacity for the owner. The condominium owner is not a party to this proceeding. A preponderance of the evidence does not support a finding that Petitioner has standing to bring this action. Petitioner was neither an owner nor a renter on January 14, 2009. Petitioner’s only legal right to be present at the meeting was in a representative capacity for the owner. The alleged exclusion of Petitioner was an alleged harm to the principal under the Fair Housing Act. Respondent is the prevailing party in this proceeding, and Petitioner is the non-prevailing party. Petitioner has participated in two or more similar proceedings involving Respondent. The parties resolved those proceedings through settlement. The resolution is detailed in the Determination of No Cause by the Commission and incorporated herein by this reference. Respondent seeks attorney’s fees totaling $3,412.00 and costs totaling $1,001.50. No finding is made as to the reasonableness of the attorney fees costs because Respondent did not include an hourly rate and did not submit an affidavit of fees and costs. However, the referring agency has statutory authority to award fees costs in the final order pursuant to Subsection 760.11(7), Florida Statutes.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Florida Commission on Human Relations enter a final order dismissing the Petition for Relief and requiring Petitioner to pay reasonable attorney’s fees and costs in the amounts to be determined by the Commission after hearing further evidence on fees and costs in accordance with Subsection 760.11(7), Florida Statutes. DONE AND ENTERED this 15th day of April, 2010, in Tallahassee, Leon County, Florida. S DANIEL MANRY Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 15th day of April, 2010.
