Findings Of Fact The Respondent, Bertram Gould, is president and stockholder of Mohican Valley, Inc., d/b/a Indian Woods Subdivision. The Indian Woods Subdivision is located in Seminole County and consists of in excess of 150 subdivided lots. On May 20, 1982, Mohican Valley, Inc. purchased a mobile home park located in Seminole County, Florida, from Winter Springs Mobile Home Corporation. The park was formerly known as Mohawk Village, but is now known as the Indian Woods Subdivision. Bertram Gould and Mohican Valley, Inc. acquired their interest in the subdivision by virtue of a purchase and sale agreement, deed and assignment of lease indentures from Winter Springs Mobile Home Corporation. Individuals desiring to live in the mobile home park purchase their mobile home and contemporaneously sign a 99-year lease on the lots upon which the mobile homes are to be placed. The mobile homes purchased by prospective residents in the subdivision are typically purchased from Vaughn Motors, Inc., a corporation of which Mr. Gould is president. In 1981, Vaughn Motors, Inc. sold a mobile home to Alfred and Beverly Powers, which arrived at the park and was setup on November 30, 1981, or shortly thereafter. On March 1, 1982, Vaughn Motors, Inc. sold that mobile home to Warren E. and Sylvia Joyce Krummel, since the Powers had elected not to close the purchase. On the date of the sale to the Krummels, the mobile home was already setup on Lot 1, Block E, of the subdivision and ready for occupancy. On June 14, 1982, after the May 20 purchase of the subdivision by Mohican Valley, Inc, through its president, Bertram Gould, the Krummels executed an Indenture of Lease for Lot 1, Block E. There was thus a residential building on that property subject to the lease at the time the lease was entered into. On June 5, 1982, Dorothy Merritt signed a purchase agreement to buy a mobile home and the mobile home was delivered and setup on her lot on August 6, 1982. On that date she also signed a lease for the lot where the mobile home was placed. Thus, when the interest in that property was conveyed by lease, there was a residential building on the lot. Roy and Lydia Ardizzone initially leased a lot in the park from Winter Springs Mobile Home Corporation before the sale to Mohican Valley, Inc. and Bertram Gould. In August, 1982, after Mohican Valley, Inc. purchased the subdivision, the Ardizzones decided to place a mobile home on their lot, but since the Phase II portion of the subdivision in which their original lot was located was not completely developed, it was not feasible to place the home on the lot at that time. Accordingly, they asked Mr. Gould to substitute their lot for a lot in Phase I in order to facilitate placing a home on the lot and begin living in the park. Mr. Gould agreed and the substitution occurred on August 31, 1982, on which date the Ardizzones also signed a lease for the lot. They ordered a mobile home to be placed on that lot, which arrived some 10 days later, on September 9, 1982. It was immediately setup on the Ardizzone's lot. Thus, at the time the lease of August 31, 1982, was executed by the Ardizzones and Bertram Gould, the Ardizzones had already ordered the mobile home for immediate delivery, which was delivered and setup some 10 days later. Thus, there was an obligation on the part of the Respondent to provide a mobile home to them in less than two years and indeed within days. On or about September 4, 1982, Bertram Gould caused a mobile home to be placed on Lot 3, Block B of the subdivision and had it prepared for occupancy. On November 5, 1982, George W. and Alice H. Woodward signed a purchase agreement for the mobile home and ultimately executed a lease for the lot upon which that mobile home sat on January 10, 1983. They moved into their home on or about February 17, 1983. Thus, at the time the lease was executed by the Woodwards and Respondent, a residential building was present on the property subject to the lease. Mohican Valley, Inc.'s predecessor in title, Winter Springs Mobile Home Corporation, had, during the course of its development of the mobile home park, entered into approximately 156 ground leases for mobile home lots. In conjunction with the acquisition of title to the park by Mohican Valley, Inc., Mohican Valley Inc. was assigned all rights of Winter Springs Mobile Home Corporation in those 156 leases which had already been recorded by Winter Springs Mobile Home Corporation prior to the acceptance of assignment by Mohican Valley, Inc. It was not established that Mohican Valley, Inc. or Bertram Gould had participated in any offer or disposition of the property which was the subject of those leases prior to Mohican Valley, Inc.'s acceptance of their assignment. Prior to May 20, 1982, the Respondent had no ownership interest in either the mobile home park or in Winter Springs Mobile Home Corporation, which owned and managed the Park. He was not an officer, director, employee, salesman or any type of agent for the owner of the mobile home subdivision prior to May 20, 1982. The only nexus between the Respondent and the mobile home park prior to May 20, 1982, was his position as president of Vaughn Motors, Inc. which had sold mobile homes to some of the residents of the park who had executed leases which ultimately became assigned to Mohican Valley, Inc. The Respondent caused certain advertisements to be placed in the Orlando Sentinel newspaper. Although an advertisement was placed April 25, 1982, the Respondent was not involved in the publishing of that advertisement. It appeared in the newspaper approximately a month prior to purchase of the park by Mr. Gould's company. On June 4 and 5, 1982; September 19, 1982; October 10, 1982; and January 29, 1983, the Respondent admittedly placed advertisements in the Orlando Sentinel representing amounts of monthly lot rent, terms of available bank financing, the office address, the phone number and hours of operation, as well as representing the fact that mobile homes could be purchased at the park for a listed price, including certain optional features, as well as the representation that the mobile home park then owned by Mohican Valley, Inc. offered quarter-acre lots and double-wide homes with certain amenities. The price for lot rent was represented as never increasing. Bank financing was advertised as available variously at 14 and a quarter percent interest and 13 and a half percent interest. The representations contained in those advertisements were true, however, at the time Mohican Valley, Inc. took title to the mobile home park, a foreclosure action and lis pendens had been filed on that property by Florida Land Company, the mortgagee on a mortgage executed by Winter Springs Mobile Home Corporation, Mohican Valley, Inc.'s predecessor in title. That foreclosure had been filed on or before March 21, 1983, as evidenced by the Motion to Intervene (in evidence as Petitioner's Exhibit 4), which was filed in that foreclosure proceeding by Mohican Valley, Inc. No representation was made in these advertisements concerning the fact that the property which was the subject of the mobile home lot leases offered by Respondent was the subject of a mortgage encumbrance which was then in foreclosure, which foreclosure predated those advertisements. Bertram Gould, as president of Mohican Valley, Inc., as the movant in that Motion to Intervene, and as the successor in title to the mortgagor-in-foreclosure, knew of the existence of the facts surrounding that foreclosure as they related to the interest in the land he sought to convey and the effects such a foreclosure might have on the persons or residents of the park who executed those leases as lessee thereafter. Bertram Gould thus materially participated in the offer or disposition of the lots for lease in the subdivision and advertised those dispositions or offerings without representing that the real property to which they related was the subject of a pending foreclosure action. No reservation program has been approved by Petitioner for Bertram Gould, Mohican Valley, Inc. and/or Indian Woods, nor has any application for such been filed. No public offering statement for Bertram Gould, Mohican Valley, Inc. or Indian Woods, nor any application for such has, as of the time of the hearing, been filed and approved. The Indian Woods Subdivision has not been registered with the Petitioner by either Bertram Gould or Mohican Valley, Inc. Bertram Gould has engaged in the disposition of these subdivided lands directly as well as on behalf of Mohican Valley, Inc., of which corporation he is president and stockholder. Bertram Gould has offered, disposed of or participated in the offer or disposition of interests in the subdivided lands involved herein, which are located in Florida, by offering the subject land for leases to prospective mobile home purchasers and park residents.
Recommendation Having considered the foregoing Findings of Fact, Conclusions of Law, the evidence in the record and the candor and demeanor of the witnesses, it is, therefore RECOMMENDED: That Bertram Gould be found guilty of violations of Sections 498.023(1) and (2), and Section 498.049(4) and Sections 498.051(1)(a), (b), and (d); that a penalty of $2,000 be imposed and that the Respondent be ordered to cease and desist the above described activities until the requirements delineated above involving registration of the subject subdivision, approval and promulgation of a current offering statement have been accomplished. DONE and ENTERED this 31st day of January, 1984, in Tallahassee, Florida. P. MICHAEL RUFF Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 FILED with the Clerk of the Division of Administrative Hearings this 31st day of January, 1984. COPIES FURNISHED: Harold F. X. Purnell, Esquire Department of Business Regulation 725 South Bronough Street Tallahassee, Florida 32301 Ladd H. Fassett, Esquire Post Office Box 2747 Orlando, Florida 32802 E. James Kearney, Director Division of Florida Land Sales and Condominiums Department of Business Regulation 725 South Bronough Street Tallahassee, Florida 32301 Gary R. Rutledge, Secretary Department of Business Regulation 725 South Bronough Street Tallahassee, Florida 32301
The Issue The issue to be resolved concerns whether the Petitioner was the victim of a discriminatory housing practice, by allegedly being denied the opportunity to rent an apartment from the Respondents, and by being falsely informed of its non- availability, based upon her race.
Findings Of Fact The Petitioner is an African-American female. In early January 2007, she learned of an apartment for rent, owned or managed by the Respondents. She called to inquire about the apartment and was told by the Respondent, Ms. Lindsay, that the rent would be $625.00 per month, with a one-month rent amount and security deposit due in advance. She was told that the Lessee of a neighboring apartment, Clint Cook, would have a key and would show her the apartment. She went to view the apartment, and decided that she wished to rent it. She then telephoned Ms. Lindsay, and Ms. Lindsey faxed an application to her to complete. In the conversation, she told Ms. Lindsay she would not have the required deposit money until Friday. This was on a Monday or Tuesday. Ms. Lindsay then told her securing the apartment was on a “first come-first-served” basis. The Petitioner never completed the application and never tendered the security deposit. Shortly after that telephone conversation, Ms. Lindsay was contacted by Stacey Edwards, while the apartment was still available for rent, concerning rental. Ms. Edwards, on behalf of herself and her boyfriend/husband, submitted an application to rent the apartment, together with the appropriate required deposit and rental amount on January 15, 2007. Ms. Lindsay leased the apartment to the couple. They had a planned move-in date of February 1, 2007. They are a mixed-race couple, and Ms. Lindsay was aware of that fact when renting to them. Sometime after January 15, 2007, the Petitioner called Ms. Lindsay a second time, and was told that the apartment had been rented (to the Edwards couple) and was no longer available. Testimony to this effect is corroborated by the Edwards rental application and deposit receipt, which are in evidence. The Edwards rental was documented on January 15, 2007. Later that month, the Petitioner noticed the “for rent" sign displayed, or displayed again, and she and/or her witness, Lynn Kliesch, called about the apartment’s availability. Ms. Lindsay again stated that it was rented. Indeed, it was, to the Edwards. The rental sign had been left up because the Edwards couple were not scheduled to move in until February 1, 2007. This communication between the parties occurred before Ms. Edwards informed Ms. Lindsay that they would not be moving in. Shortly before February 1,2007. Ms Edwards and her husband/boyfriend learned that his employment had ended (or he was transferred to another job location). They therefore informed Ms. Lindsay that they had to re-locate to South Florida and could not take the apartment. She charged them for the two weeks of rental, and refunded their deposit. She then placed the apartment back on the rental market. On January 31, 2007, Ms. Mari Ferguson inquired of Ms. Lindsay about the apartment’s availability. This was after Ms. Edwards had informed Ms. Lindsay that she would not be renting the apartment. Ms. Lindsay told Ms. Ferguson that the property was available and she rented it to Ms. Ferguson that same day. Ms. Ferguson and her boyfriend, who occupied the apartment with her, were also a mixed-race couple, with children. In fact, the boyfriend is the nephew of the Petitioner herein. Ms. Ferguson and family moved into the apartment. Some months later a hostile situation arose between the Respondents and Ms. Ferguson. Ms. Lindsay apparently received reports that “drug dealing” was occurring in the apartment. Ms. Ferguson and/or the other occupants were responsible for some damage, and Ms. Ferguson became several months behind on rental payments. The Respondents therefore, through legal process, had her evicted. The Respondent, Ms. Lindsay, through her firm, Elite Properties of Northwest Florida, Inc., manages some 37 rental properties in Escambia and Santa Rosa Counties. She is the president and broker for the firm and has no employees or agents. Among the rental property owners she and her firm represent is her Co-Respondent, Michael Houser. Both Ms. Lindsay and Elite Properties, as well as Mr. Houser, have a significant number of minority tenants, both Hispanic and African-American. A substantial number of those, both historically, and at the time of the hearing are single, African-American females, as heads of households. There is no evidence, aside from the Petitioner’s unsubstantiated opinion, that either the Respondent has ever refused to rent to the Petitioner or anyone else, based upon race, nor that they have falsely denied availability of a dwelling for rent or sale for that reason. There is no evidence that they have refused or attempted to avoid holding out a property for rent or sale for reasons based on racial animus.
Recommendation Having considered the foregoing Findings of Fact, Conclusions of Law, the evidence of record, the candor and demeanor of the witnesses, and the pleadings and arguments of the parties, it is, therefore, RECOMMENDED that a final order be entered by the Florida Commission on Human Relations, determining that the Respondents did not commit a discriminatory housing practice based upon the Petitioner's race and that the Petition be dismissed in its entirety. DONE AND ENTERED this 16th day of April, 2009, in Tallahassee, Leon County, Florida. S P. MICHAEL RUFF 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 16th day of April, 2009. COPIES FURNISHED: Sylvia Mims 3382 Greenbriar Circle, Apt. B Gulf Breeze, Florida 32561 Beverly Lindsay 5252 Springdale Drive Milton, Florida 32570 Michael Houser 3533 Edinburgh Drive Pace, Florida 32571 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
The Issue Whether Respondent, Royal Arms Villas Condominium, Inc., discriminated against Petitioners, Eric and Nora Gross, in violation of the Florida Fair Housing Act.
Findings Of Fact Petitioners are a married couple, living in a rental home at 209 Yorkshire Court, Naples, Florida (rental unit). Petitioners have two children and two grandchildren; however, none of these relatives live in Petitioners’ rental unit. Mr. Gross was diagnosed with stage four hodgkin’s lymphoma in 2002. Mr. Gross has been in remission since 2003. Mr. Gross was declared disabled by the Social Security Administration in 2003. Petitioners have lived in this rental unit since August 2006. A Florida residential lease agreement with the property owners, Joan and Charles Forton, was entered on August 8, 2006.3/ This lease was for a 12-month period, from September 1, 2006, through August 31, 2007. At the end of this period, the lease became a month-to-month lease and continued for years without anyone commenting on it. In 2012, Respondent inquired about a dog that was seen with Petitioners. After providing supporting documentation to Respondent, Petitioners were allowed to keep Mr. Gross’ service dog, Evie. Respondent is a Florida not-for-profit corporation. There are 62 units, and the owner of each unit owns a 1/62 individual share in the common elements. Since its inception, Respondent has, through its members (property owners), approved its articles of incorporation, bylaws, and related condominium powers, and amended its declaration of condominium in accordance with Florida law. Ms. Orrino is currently vice-president of Respondent’s Board of Directors (Board). Ms. Orrino has been on the Board since 2009 and has served in every executive position, including Board president. Ms. Orrino owns two condominiums within Respondent’s domain, but does not reside in either. In 2012 or 2013, Respondent experienced a severe financial crisis, and a new property management company was engaged. This company brought to the attention of Respondent’s Board that it had not been approving leases as required by its Declaration of Condominium.4/ As a result of this information, the Board became more pro-active in its responsibilities, and required all renters to submit a lease each year for the Board’s approval. Petitioners felt they were being singled out by Respondent to provide a new lease. The timing of Respondent’s request made it appear as if Respondent was unhappy about Petitioners keeping Evie. Petitioners then filed a grievance with HUD.5/ HUD enlisted the Commission to handle the grievance, and Mr. Burkes served as the Commission’s facilitator between Petitioners and Respondent. On October 24, 2013, Petitioners executed a Conciliation Agreement (Agreement) with Respondent and the Commission. The terms of the Agreement include: NOW, THEREFORE, it is mutually agreed between the parties as follows: Respondent agrees: To grant Complainants’ request for a reasonable accommodation to keep Eric Gross’s emotional support/service dog (known as “Evie”) in the condominium unit even though it exceeds the height and weight limits for dogs in the community. That their sole remedy for Complainants’ breach of the provisions contained in subparagraphs (a) through (g) below, in addition to the attorney’s fees and costs provision of paragraph 10 of this Agreement, shall be the removal of the Complainants’ dog. Complainants agree: That they will not permit the dog to be on common areas of the association property, except to transport the dog into or out of Complainants’ vehicle, to and from Complainants’ unit, and to take the dog through the backyard of the unit to walk it across the street off association property. That if the dog is outside of the condominium unit, they will at all times keep the dog on a leash and will at all times maintain control of the dog. That if their dog accidentally defecates on association property, they will immediately collect and dispose of the waste. That they are personally responsible and liable for any accidents or damages/injuries done by the dog and that they will indemnify and hold the Respondent harmless and defend Respondent for such claims that may or may not arise against Respondent. That they will not allow the dog to be a nuisance in the community or disrupt the peaceful enjoyment of other residents. A nuisance will specifically include, but is not limited to, loud barking and any show of aggressive behavior, including, but not limited to, aggressive barking, growling or showing of teeth regardless of whether the dog is inside or outside of the unit. That they will abide by all community rules and regulations of Respondent with which all residents are required to comply, including but not limited to submitting to the required pre-lease/lease renewal interview, and completing a lease renewal application and providing his updated information to Respondents and submitting to Respondent a newly executed lease compliant with Florida law and the Declaration of Condominium. The pre-lease/lease renewal interview will be conducted at Complainants’ unit at a time and date agreeable to the parties but not to exceed 30 days from the date of this agreement. If Complainants’ current dog “Evie” should die or otherwise cease to reside in the unit, Complainants agree to replace the dog, if at all, with a dog that is in full compliance with the association’s Declaration of Condominium or Rules and regulations in force at that time and will allow the dog to be inspected by Respondent for approval. Respondent agrees to ensure, to the best of their abilities, that their policies, performance and conduct shall continue to demonstrate a firm commitment to the Florida Civil Rights Act of 1992, as amended, Sections 760.20-37, Florida Statutes, (2012), and the Civil Rights Act of the United States (42 U.S.C. 1981 and 1982 and 3601 et.seq). [sic] Respondent agrees that it, its Board members, employees, agents and representatives shall continue to comply with Title VIII of the Civil Rights Act of 1968, as amended by The Fair Housing Act, which provides that Respondents shall not make, print or publish any notice, statement of advertisement with respect to the rental or sale of a dwelling that indicates any preference, limitation or discrimination based on race, color, religion, national origin, sex, disability or familial status. Respondent also agrees to continue to comply with Title VIII of the Civil Rights Act of 1968, as amended by The Fair Housing Act, which prohibits Respondents from maintaining, implementing and effectuating, directly or indirectly, any policy or practice, which causes any discrimination or restriction on the bases of race, color, religion, national origin, sex, disability or familial status. Respondents also agree to continue to comply with Section 504 of the 1973 Rehabilitation Act. It is understood that this Agreement does not constitute a judgment on the part of the Commission that Respondents did nor did not violate the Fair Housing Act of 1983, as amended, Section 760.20-37, Florida Statutes (2011). The Commission does not waive its rights to process any additional complaints against the Respondent, including a complaint filed by a member of the Commission. It is understood that this Agreement does not constitute an admission on the part of the Respondent that they violated the Fair Housing Act of 1983, as amended, or Section 504 of the 1973 Rehabilitation Act. Complainants agree to waive and release and do hereby waive and release Respondent from any and all claims, including claims for court costs and attorney fees, against Respondent, with respect to any matters which were or might have been alleged in the complaint filed with the Commission or with the United States Secretary of Housing and Urban Development, and agree not to institute a lawsuit based on the issues alleged in this complaint under any applicable ordinance or statute in any court of appropriate jurisdiction as of the date of this Agreement. Said waiver and release are subject to Respondent’s performance of the premises and representations contained herein. The Commission agrees that it will cease processing the above-mentioned Complaint filed by Complainants and shall dismiss with prejudice said complaint based upon the terms of this Agreement. Respondent agrees to waive and release any and all claims, including claims for court costs and attorney fees, against Complainants with respect to any matters which were or might have been alleged in the complaint filed with the Commission or with the United States Secretary of Housing and Urban Development, and agree not to institute a lawsuit based on the issues alleged in these complaints under any applicable ordinance or statute in any court of appropriate jurisdiction as of the date of this Agreement. Said waiver and release are subject to Complainants’ performance of the premises and representations contained herein. The parties agree in any action to interpret or enforce this agreement the prevailing party is entitled to the recovery from the non-prevailing party its reasonable attorney’s fees and costs, including attorney’s fees and costs of any appeal. FURTHER, the Parties hereby agree that: This Agreement may be used as evidence in any judicial, administrative or other forum in which any of the parties allege a breach of this Agreement. Execution of this Agreement may be via facsimile, scanned copy (emailed), or copies reproduced and shall be treated as an original. This Conciliation Agreement may be executed in counterparts. IN WITNESS WHEREOF, the parties have caused this Conciliation Agreement to be duly executed on the last applicable date, the term of the agreement being from the last applicable date below for so long as any of the rights or obligations described here in continue to exist. Eric Gross and Nora Gross signed the Agreement on October 24, 2013. Ms. Orrino, as President of Respondent, signed the Agreement on September 9. The Commission’s facilitator, Mr. Burkes, signed the Agreement on October 24. The Commission’s housing manager, Regina Owens, signed the Agreement on October 30, and its executive director, Michelle Wilson, signed the Agreement on November 4. The effective date of the Agreement is November 4, the last day it was signed by a party, and the clock started running for compliance. Petitioners failed to abide by the Agreement in the following ways: Petitioners failed to submit an updated lease agreement that conformed to Respondent’s rules and regulations. Petitioners failed to submit to the required pre- lease/lease renewal interview within 30 days of signing the Agreement. Petitioners failed to complete a lease renewal application. Petitioners failed to provide updated information to Respondent. It is abundantly clear that Eric Gross and Ms. Orrino do not get along. However, that personal interaction does not excuse non-compliance with an Agreement that the parties voluntarily entered. Each party to the Agreement had obligations to perform. Respondent attempted to assist Petitioners with their compliance by extending the time in which to comply, and at one point, waving the interview requirement. Petitioners simply failed to comply with the Agreement. Petitioners failed to present any credible evidence that other residents in the community were treated differently. Mr. Gross insisted that the Agreement had sections that Petitioners did not agree to. Mr. Burkes was unable to shed any light on the Agreement or the alleged improprieties that Mr. Gross so adamantly insisted were present.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a final order be entered by the Florida Commission on Human Relations dismissing the Petition for Relief filed by Petitioners in its entirety. DONE AND ENTERED this 17th day of March, 2015, in Tallahassee, Leon County, Florida. S LYNNE A. QUIMBY-PENNOCK 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 17th day of March, 2015.
The Issue Whether Respondents, Charleston Cay, Ltd., et al. (Charleston Cay), violated the Florida Fair Housing Act, as amended, sections 760.20 through 760.37, Florida Statutes (2010).1/
Findings Of Fact Ms. Cardwell is an African-American woman who rented an apartment from Charleston Cay. Ms. Cardwell and Charleston Cay entered into a written lease beginning on December 23, 2009, and ending on November 30, 2010. The lease required Ms. Cardwell to pay her rent on the first of each month and that the rent would be delinquent by the third of each month. Furthermore, the lease provided that non-payment of rent shall result in a breach of the lease and eviction. The initial monthly rent for Ms. Cardwell's apartment was $663.00, a month and was subsequently increased to $669.00, a month. Ms. Cardwell credibly testified that she had not read the lease or the Housing Addendum which she signed when entering into the lease and that she had not subsequently read either document. On November 1, 2010, Ms. Cardwell failed to pay her rent. On November 4, 2010, Ms. Jaster, manager of Charleston Cay apartments, posted a three-day notice to pay rent or vacate the premises. On November 9, 2010, Ms. Jaster posted another notice for Ms. Cardwell about non-payment and requesting that Ms. Cardwell call or come to the office. Ms. Cardwell paid $100.00, of the rent on November 17, 2010. Again, Ms. Jaster posted a three-day notice seeking payment of the remaining November 2010, rent in the amount of $569.00. On November 24, 2010, Ms. Cardwell paid an additional $200.00, of the $569.00, owed, leaving a balance of $369.00 for November 2010. Because Ms. Cardwell's written lease was to expire at the end of November, she requested that Charleston Cay enter into a month- to-month lease, but Ms. Jaster informed Ms. Cardwell that Charleston Cay was not interested in entering into a month-to- month tenancy. On December 1, 2010, Ms. Jaster posted another three- day notice requiring Ms. Cardwell to pay the $369.00, owed in November, or to vacate the premises. The facts also showed that Ms. Cardwell did not pay the $669.00, owed by December 1, 2010, or anytime thereafter. On December 8, 2010, Charleston Cay filed an eviction and damages complaint against Ms. Cardwell based on non-payment of the rent. Some time in December 2010, Ms. Cardwell contacted Ms. Tina Figliulo of the Charlotte County Homeless Coalition, seeking financial assistance to avoid being evicted. Ms. Figliulo credibly testified that the Charlotte County Homeless Coalition administers grant money to help prevent a person from being evicted and helps individuals find affordable housing. A provision of the grant, however, prevents the Charlotte County Homeless Coalition from paying money into a court registry if an eviction process has begun. Ms. Figliulo credibly testified that she contacted Ms. Jaster about making a payment on Ms. Cardwell's behalf. Ms. Jaster informed Ms. Figliulo that Charleston Cay had already begun eviction proceedings. Consequently, Ms. Figliulo was unable to use grant money to pay for Ms. Cardwell's back rent. Based on the eviction proceedings, Ms. Cardwell vacated the premises sometime in December 2010, and turned in her key for the apartment. The initial hearing on the eviction was set for January 5, 2011. On December 28, 2010, the hearing was cancelled based on Ms. Cardwell's vacating the premises. On January 13, 2011, Ms. Cardwell filed a Motion to Dismiss the case in county court indicating that she had given up possession of the premises. On January 31, 2011, the Charlotte County Court issued an Order dismissing the case effective March 1, 2011, unless Charleston Cay set a hearing on damages. The record credibly showed through the exhibits and Ms. Jaster's testimony that Ms. Cardwell was evicted from her apartment based on her non-payment of rent. There was no evidence that other individuals, who were not in Ms. Cardwell's protected class, were treated more favorably or differently, than she was in the proceedings. There was no evidence, either direct or indirect, supporting Ms. Cardwell's claim of racial discrimination. Ms. Cardwell testified that she felt that Ms. Jaster had acted based on race, because of Ms. Jaster's perceived attitude. Ms. Cardwell did not bring forward any evidence showing a specific example of any comment or action that was discriminatory. Ms. Jaster credibly testified that she did not base the eviction process on race, but only on non-payment. Ms. Cardwell specifically stated during the hearing that she was not addressing the retaliation claim or seeking to present evidence in support of the FCHR determination concerning the retaliation claim. Consequently, the undersigned does not make any finding concerning that issue. There was testimony concerning whether or not Ms. Cardwell had properly provided employment information required by the written lease in relation to a tax credit. The facts showed that Charleston Cay apartments participated in a Low Income Tax Credit Housing Program under section 42, of the Internal Revenue Code. On entering the lease, Ms. Cardwell had signed a Housing Credit Lease Addendum which acknowledged her participation in the tax credit, and agreement to furnish information concerning her income and eligibility for compliance with the tax credit. Failure to provide information for the tax credit would result in a breach of the rental agreement. As early of August 2011, Ms. Jaster, manager for Charleston Cay Apartments, contacted Ms. Cardwell about providing information concerning her income and continued eligibility for the program. Ms. Cardwell provided information that was incomplete as to her income, because it failed to demonstrate commissions that she earned. Again, in November 2010, Ms. Jaster contacted Ms. Cardwell about providing information to recertification for the tax credit. Finally, on November 11, 2010, Ms. Jaster left a seven-day notice of non-compliance, with an opportunity to cure, seeking Ms. Cardwell to provide information concerning her income. Ms. Cardwell provided information concerning her salary, but did not have information concerning commissions that she earned from sales. This information was deemed by Ms. Jaster to be incomplete and not in compliance for the low income housing tax credit. The record shows, however, that Ms. Cardwell's failure to provide the required income information was not a basis for her eviction.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Florida Commission on Human Relations enter a final order of dismissal of the Petition for Relief. DONE AND ENTERED this 28th day of October, 2011, in Tallahassee, Leon County, Florida. S THOMAS P. CRAPPS Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 28th day of October, 2011.
The Issue Whether Respondents engaged in a discriminatory housing practice against Petitioner in violation of the Florida Fair Housing Act (Sections 760.20 through 760.37, Florida Statutes).
Findings Of Fact Respondent, Caribe Co-Operative Club Apartments, Inc. (Caribe Club), is a Florida not-for-profit corporation and a co-operative association that owns the apartment complex at issue in this proceeding located in Lake Worth, Florida. There are twenty-one apartments in the Caribe Club. The apartments constituting the Caribe Club are subject to duly-enacted bylaws and to a form proprietary lease. These documents govern the management of the co-operative association and specify the terms and conditions of each tenancy. An existing lease cannot be transferred until the transaction has been approved by the stockholders of the Caribe Club. If the transaction is approved, the prospective lessee is required to purchase a share of stock in the cooperative association and execute the form proprietary lease. The existing lessee and the proposed transferee are required to apply to the board of directors for approval of the proposed transaction. The board is then required to convene a meeting of the stockholders, at which the proposed transaction is discussed and the prospective lessee may be interviewed. Thereafter, a vote by secret ballot is taken, with each apartment having one vote. A two-thirds affirmative vote of the stockholders voting at the meeting is required for approval of the proposed transaction. Petitioner agreed to purchase the apartment at the Caribe Club owned by Phyllis McAuliffe for the sum of $13,500. As required by the bylaws of the Caribe Club, Petitioner and Ms. McAuliffe requested approval of the proposed transfer and Petitioner submitted her personal financial information in addition to the application. For approximately a year before she decided to purchase the McAuliffe lease, Respondent lived in the Caribe Club apartment leased by Quentin Mason, her boyfriend. After she and Ms. McAuliffe had come to terms, but before she submitted her request for approval to the board of directors, Petitioner painted and cleaned the McAuliffe apartment. In addition, she replaced a door. At all times pertinent to this proceeding, the Caribe Club had a president, two vice-presidents, a secretary, and a treasurer. These officers constituted the board of directors. Francis A. Phillip, Jr., the president of the Caribe Club, reviewed Petitioner's application and her supporting financial information. As required by the bylaws, Mr. Phillip called a special meeting of the stockholders for January 22, 1996, to consider the application. After her financial information was determined to be in order, Petitioner was briefly interviewed and then excused from the meeting. The only discussion of the proposed transfer consisted of Fernand Roy making a statement against the transaction and Mr. Mason giving a response. The proposed transaction was rejected by the vote by secret ballot that followed. Of the twelve voting stockholders at the meeting, seven voted against the transaction and five voted in favor. To the knowledge of the witnesses who testified, this was the first occasion that a prospective transfer had been rejected. The following stockholders were present at the meeting: Mr. and Mrs. Brooks (with one vote), Mr. Mason, Mr. and Mrs. Todd (with one vote), Mrs. Knutson, Mrs. Loomis, Mrs. Mack, Mrs. Senn, Mrs. Lambert, Mrs. Tognacci, Mr. Phillip, Mr. Reed, and Mr. Roy. At the formal hearing, there was competent evidence as to how five stockholders voted and the reasons of those who voted against the transaction. Mr. Mason and Mr. Reed voted for the transaction. Mr. Roy, Ms. Senn, and Mr. Phillip voted against the transaction. The Petitioner did not establish by competent evidence how the other individual stockholders voted or the reason for their votes. 1/ Fernand Roy participated in the stockholder meeting as a voting stockholder. Mr. Roy and Petitioner's boyfriend, Mr. Mason, had a long-standing feud. Mr. Roy did not want Petitioner to become a stockholder because she would then be able to support Mr. Mason's positions on various issues pertaining to management of the Caribe Club. Florence Senn participated in the stockholder meeting as a voting stockholder. Ms. Senn voted against the proposed transaction because she did not like the fact that Petitioner and Mr. Mason had been living together without the benefit of marriage. Ms. Senn did not discuss her position on the matter with anyone prior to the vote being taken. Ms. Senn told Petitioner before the vote was taken that if the stockholders rejected her application it would be because she was Mr. Mason's girlfriend. Ms. Senn was of the opinion following the vote that most of the stockholders who voted against the transaction did so because they did not like Mr. Mason. Mr. Phillip participated in the stockholder meeting as the presiding officer and as a voting stockholder. Mr. Phillip voted against the proposed transaction because he believed that Petitioner's entering the McAuliffe unit to paint, clean, and make repairs before the stockholders had approved the transaction evidenced an unwillingness on her part to comply with the bylaws and rules and regulations of the Caribe Club. Mr. Phillip testified that he had told Petitioner not to work in the apartment before the transaction was approved, but that she did so anyway. Before the meeting, Mr. Phillip mentioned to one or two other stockholders that Petitioner was working on the McAuliffe apartment, but he did not discuss his position on the transaction with anyone prior to the vote being taken. The evidence did not establish that any stockholder voted against the proposed transaction based on Petitioner's age, national origin, sex, handicap, familial status, or religion. 2/
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 discriminatory housing complaint and Petition for Relief. DONE AND ENTERED this 20th day of May, 1999, in Tallahassee, Leon County, Florida. CLAUDE B. ARRINGTON Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 20th day of May, 1999.
The Issue Whether Respondent, Cambridge Management Inc., engaged in housing discriminatory practice in violation of the Florida Fair Housing Act, as amended, sections 760.20 through 760.37, Florida Statutes (2010).1/
Findings Of Fact In 2009-2010, Ms. Elizabeth Sherlock and her nine-year-old son, Luke Sherlock, rented a home from Ms. Sheryl Whitaker. The home was located in the Wedgewood II at Pelican Strand located in Collier County, Florida. The lease was from June 1, 2008, until June 1, 2010. Cambridge Management is the Master Association for the condominium association for the Strand properties. Cambridge Management did not rent or lease the home to Ms. Sherlock. Ms. Sherlock testified that the homeowner's association cited her for violations of the homeowner's association covenants, based on her son engaging in normal childhood activities such as climbing trees, archery, playing in the street and the community clubhouse. Ms. Sherlock testified that she was told in April 2010 that her lease would not be renewed, because her son had run across a sand trap on the golf course during a rain storm. According to Ms. Sherlock, Cambridge Management discriminated against her and her son by denying them access to their rented home.2/ Further, Ms. Sherlock testified that her son suffered severe traumatic stress, based on the security officers denying them access to their home. Finally, Ms. Sherlock testified that the decision not to continue renting to her caused her to move from the home and resulted in financial hardship. Ms. Sherlock's Petition for Relief summarily states that Respondents violated the Florida Fair Housing Act through "discriminatory terms, conditions, privileges or services, and facilities." The Petition for Relief does not contain any specific factual allegation against Respondents. The record does not support Ms. Sherlock's testimony that Cambridge Management engaged in any discriminatory practice or that it retaliated against her and her son in violation of the Florida Fair Housing Act. Mr. LeClaire is a security guard for the Wedgewood at Pelican Strand. Mr. LeClaire testified that on June 24, 2010, at approximately 9:00 p.m., he had stopped Ms. Sherlock at the gate because his supervisor had told him that Ms. Sherlock may not be a current resident. After confirming that she was still a current resident, Mr. LeClaire allowed Ms. Sherlock to access her home through the gate. Although Mr. LeClaire's supervisor had told him that Ms. Sherlock may not be a current resident, no one from Cambridge Management had told Mr. LeClaire to deny Ms. Sherlock access to her rented home. Mr. Weaver is also a security guard for the Wedgewood at Pelican Strand. Mr. Weaver testified that on July 2, 2010, at approximately 9:00 p.m., he stopped Ms. Sherlock at the gatehouse to determine whether or not she was a current resident. Mr. Weaver credibly testified that he stopped Ms. Sherlock because he did not recognize her as a resident. After he verified that she was a current resident, Mr. Weaver allowed Ms. Sherlock into the community. Mr. Weaver credibly testified that he delayed her at most three minutes. Mr. Charles Sherlock is Ms. Sherlock's father. Mr. Sherlock resides in Naples, Florida, during the winter. He testified about the close relationship that he enjoys with his grandson Luke. According to Mr. Sherlock, Luke felt that it was his fault that he and Ms. Sherlock had been evicted from Ms. Whitaker's home, and had to move to Minnesota. Mr. Sherlock further testified that he had to pay for Ms. Sherlock's move to Minnesota, and that he would like to be reimbursed for the costs. Ms. Rubele is an officer with Wackenhut Security, and she testified about the Wackenhut Standard Operating Procedure for the Strand, and testified that Wackenhut's contact person for security was Ms. Brandy K. Callahan of Cambridge Property Management. Prior to the final hearing, Ms. Sherlock voluntarily dismissed, with prejudice, her claims against Respondents, Wedgewood at Pelican Strand Neighborhood Association, et al., and Newell Property Management, et al., and voluntarily dismissed Respondent, Sheryl Whitaker.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Florida Commission on Human Relations enter a final order of dismissal of the Petition for Relief. DONE AND ENTERED this 7th day of June, 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 June, 2011.
The Issue Whether the proposed repeal of Rule 61B-31.001(5), Florida Administrative Code, constitutes an invalid exercise of delegated legislative authority. Further, whether certain agency policies constitute rules and violate the provisions of Section 120.535, Florida Statutes.
Findings Of Fact The Florida Manufactured Housing Association, Inc. (FMHA) is a Florida not for profit corporation organized to represent the interests of the owners of approximately 750 mobile home parks. All of the parks owned by FMHA members are regulated by the Respondent. The FMHA's members will be substantially affected by the proposed repeal of the rule. The FMHA has standing to participate in his proceeding. The Florida Department of Business and Professional Regulation, Division of Florida Land Sales, Condominiums and Mobile Homes (Respondent), is the state agency charged with implementation, administration and enforcement of Chapter 723, Florida Statutes, relating to Mobile Home Park Lot Tenancies. The Federation of Mobile Home Owners of Florida, Inc. (Federation) is a Florida not for profit corporation organized to represent a substantial number of mobile home owners residing in Florida mobile home parks. The Federation's members will be substantially affected by the proposed repeal of the rule. The Federation has standing to participate in this proceeding. Insofar as is relevant to this case, a mobile home owner commonly rents a mobile home park lot upon which the home is placed. Pursuant to Section 723.011(1)(a), Florida Statutes, the owner of a mobile home park containing 26 or more lots must deliver a prospectus to the home owner prior to entering into an enforceable rental agreement for the mobile home lot. A mobile home park prospectus is intended to provide full and fair disclosure of the terms and conditions of residency and sets forth the regulations to which the home owner will be subjected after signing a lot rental agreement with the park owner. The prospectus must be filed with and approved by the Respondent. The challenged rule was adopted as Rule 7D-31.01(5), Florida Administrative Code, in 1985. Without alteration, it was subsequently renumbered as Rule 61B-31.001(5), Florida Administrative Code, and provides as follows: The Prospectus distributed to a home owner or prospective home owner shall be binding for the length of the tenancy, including any assumptions of that tenancy, and may not be changed except in the following circumstances: Amendments consented to by both the home owner and the park owner. Amendments to reflect new rules or rules that have been changed in accordance with procedures described in Chapter 723, F.S., and the prospectus. Amendments to reflect changes in the name of the owner of the park. Amendments to reflect changes in zoning. Amendments to reflect a change in the person authorized to receive notices and demands on the park owner's behalf. Amendments to reflect changes in the entity furnishing utility or other services. Amendments required by the Division. Amendments required as a result of revisions of Chapter 723, F.S. Amendments to add, delete or modify user fees for prospective home owners. Neither the statute nor the rule defines what is meant by the term "tenancy." Historically, the Respondent has taken the position that the prospectus was binding on the park owner and the mobile home owner until the mobile home no longer occupied the lot or the tenant was evicted, whichever occurred first. In other words, the "tenancy" existed for as long as the mobile home remained on the lot, and the prospectus was binding during the length of the "tenancy", including any assumptions of the "tenancy." However, several legal cases, most recently in 1992, have essentially stated that a mobile home "tenancy" exists for the period of time during which a mobile home rental agreement is effective. The effect of the legal decision is to permit Rule 61B-31.001(5), Florida Administrative Code, to be construed to provide that a prospectus is valid only for the period covered by a rental agreement. The Legislature has not adopted legislation subsequent to the case which would affect the substance of the decision. On January 20, 1995, the Respondent published notice of the proposed repeal of Rule 61B-31.001(5), Florida Administrative Code, in the Florida Administrative Weekly, Vol. 21, No. 3. The Respondent's purpose in repealing the rule is primarily to eliminate the language relating the period of validity for a prospectus to the "tenancy." Although the Respondent asserts that it has no current policy as to the period of validity for a prospectus, the Respondent acknowledges taking the continuing position that the prospectus is binding for longer than the period of a rental agreement. The Petitioner challenges the agency position as being an unpromulgated, and therefore invalid, rule. The Petitioner also challenges as being an unpromulgated and invalid rule, the Respondent's decision to discontinue the review and approval mechanism for amendments to any previously approved prospectus. The Respondent asserts that, notwithstanding prior practice, it has no statutory authority to review and approve amendments to a previously approved prospectus and that it will no longer do so.
Findings Of Fact Oak Park Village is a mobile home park which is owned and operated by the COOPERATIVE. All of the one hundred and thirty three (133) corporate shareholders are former renters who formed the corporation in order to purchase the park from Mr. Paster and Mr. Perrault, the previous park owners. When the purchase was made, the remaining sixty-six (66) mobile home owners who rented lots within the park did not participate in the purchase. These mobile home owners remained within the park in their status as renters. The COOPERATIVE'S predecessors in title filed a mobile home park prospectus and an amended prospectus with the DIVISION, as required by law. The renters who received the initial prospectus between April 1985 and October 1986, continued their relationship with the park under this prospectus. All of the newer renters were subject to the amended prospectus, which became effective October 1986. Each prospectus contains a copy of the lease form. All of the renters had to sign a written lease before they could enter the park. The term of a lease within the park was normally for a one year period, which ended on December 31st. However, if a tenancy did not begin on January 1st of any year, the first term would end on December 31st of the year the lease was made. Each lease contains an automatic renewal clause. Unless the renter notifies the mobile park owner in writing sixty (60) days in advance of the automatic renewal on December 31st of his intention to leave the park, the lease is automatically renewed for another one year period. In the lease and in each prospectus, only the renters can prevent the automatic renewal from taking effect. On September 19, 1986, the mobile home park owners, Mr. Paster and Mr. Perrault gave written notice to the renters of their intent to increase the lot rental amount effective January 1, 1987, from one hundred and fifty dollars ($150.00) a month to one hundred and fifty six dollars and forty cents ($156.40) per month for a one year period. This advance notice gave the renters the opportunity to terminate their leases and relocate before the automatically renewal or January 1, 1987, which would include this lot rental price increase. None of the renters gave the owners a sixty (60) day advance written notice of their intention to leave the park at the end of the term. Therefore, potential purchasers were on notice that sixty-six (66) renters intended to automatically renew their written leases on January 1, 1987, for a one year term. On January 1, 1987, the automatic renewal went into effect. Under the lease terms and each prospectus, every renter owed one thousand eight hundred seventy six dollars and eighty cents ($1,876.80) as lot rent for the year 1987. The renters had the option to pay this amount in equal monthly installments of one hundred and fifty six dollars and forty cents ($156.40) over the twelve month period. However, the mobile home park owner's right to the one thousand eight hundred seventy six dollars and eighty cents ($1,876.80) vested on January 1, 1987. Contrary to the stipulation of the parties, the law and the evidence shows that written leases were in effect on January 1, 1987. On December 26, 1986, the COOPERATIVE purchased Oak Park Village. At the time of purchase, the COOPERATIVE took the property subject to the existing leases, and the automatic renewals which were inchoate on December 26, 1986, but which would become operative on January 1, 1987. After the sale was completed, Mr. Paster attempted to rescind the notice of rent increase, which was to take effect on January 1, 1987. As Mr. Paster no longer owned the property at the time he attempted this recision, he was unable to effectuate a recission. On December 30, 1986, the COOPERATIVE mailed written notices to its sixty-six (66) renters. The notices informed the renters that the rent would remain at one hundred and fifty dollars ($150.00) for three months and would then increase to one hundred and eighty seven dollars ($187.00) per month from April 1, 1987, to December 31, 1987. This came to an annual rental amount of two thousand one hundred and thirty three dollars ($2,133.00). This was an annual increase of two hundred and fifty six dollars and twenty cents ($256.20) per renter during the 1987 lease term, when the increase initiated by the prior owners is compared with the proposed increase. In comparing the notice of increase dated September 19, 1986, and the notice dated December 24, ,1986, it appears that the first three reasons listed for the proposed increases are identical. The only additional reason for an increase which is listed on the notice dated December 24, 1986, from the new owners is "Maintenance needs of the park." The notices sent by the new owners, the COOPERATIVE, were postmarked December 30, 1986, and were placed in the individual post office boxes of all of the tenants on the same day. Page twelve of each prospectus defines "notice" as follows: Unless otherwise provided by statute, administrative rule, or this Prospectus, any notice shall be deemed given by posting by first class mail or by actual hand delivery. Rule 7D-32.02(3), Florida Administrative Code, the applicable rule to these proceedings, provides as follows: Notice given by personal delivery shall be deemed given when actually delivered to the homeowner. Notice by U.S. Mail shall be deemed given five days after notice is placed in the U.S. Mail addressed to the mobile homeowner's last known address. As the prospectus and the amended prospectus both defer to the administrative rule in effect which defines the term "notice," the COOPERATIVE's notice did not occur within a ninety day period, even under the COOPERATIVE's theory of the case, as set forth in its Proposed Recommended Order.
Findings Of Fact Michael Weiss is part owner of Suncoast International, Inc. and general manager of the corporation's only business, a trailer park in Flagler County known as Flagler by the Sea Mobile Home Park. At all pertinent times, the park has leased or offered for lease a total of 44 mobile home lots. In mid-1985, Mr. Weiss received a letter from petitioner Department of Business Regulation (DBR) informing him that park owners were required by law to prepare and distribute prospectuses to mobile home tenants. Efforts to draft a prospectus meeting petitioner's approval began in August of 1985. After several revisions, the petitioner approved a prospectus on June 13, 1986, No. 1802171P, for all lots. Mr. Weiss received written notice of approval, together with a copy of the prospectus to which it pertained, with attachments, on June 26, 1986; and promptly arranged for a copier to produce 50 uncollated copies of everything received from the petitioner, see Petitioner's Exhibit No. 1, including the cover letter. With the assistance of Mr. and Mrs. Whaley, who worked for the company at the park, he tried to assemble at least 44 complete sets of these materials. In late May of 1986, Mr. Weiss had given all tenants notice by registered mail of his intention to raise rents, effective September 1, 1986. Realizing he needed to distribute prospectuses before any rent increase, he had simultaneously informed tenants that a then current (but unapproved) version of the prospectus was available for inspection. Respondent's Exhibit No. 5. Hand Delivery As instructed, Ms. Whaley encouraged tenants to pick copies of the prospectus up when they paid their rent. She kept a list of persons to whom she distributed copies of the prospectus. Part of the list survived and has been received in evidence. Respondent's Exhibit No. 2. One tenant, Mary Oetken, received a copy of the approved prospectus on July 29, 1986. But the prospectus given to Ms. Oetken did not contain rules and regulations, a copy of the lot rental agreement, a lot layout plan, or the number of her lot. Ms. Oetken already had a copy of her lot rental agreement, and park personnel customarily distributed copies of rules and regulations to each tenant, before tenancies began. On August 29, 1986, another tenant, Betty Marinoff, wife of Peter, received a copy of an approved prospectus. Before September 1, 1986, Ms. Whaley hailed Mr. Philip H. Bird, and handed him a copy. Whether these copies of the approved pro-spectus included all attachments the evidence did not disclose. Robert Onusko, who has leased a lot in Flagler by the Sea Mobile Home Park continuously since August of 1981, has had a copy of the park's rules and regulations since he moved in. As did all other tenants, he paid increased rent beginning September 1, 1986. Although Mr. Onusko himself received no copy of an approved prospectus until January of 1989, Petitioner's Exhibit No. 7, Angela Whaley gave his daughter Marilyn a copy of the prospectus when Marilyn paid rent in July or August. Taped to Doors Not all tenants were then in residence at the park. About half lived there full time. (T.127) With respect to lots whose lessees were away, Mr. Weiss directed Mr. and Mrs. Whaley to tape copies of the prospectus on trailer doors. "That was common procedure with late payments or whatever . . . " T.112. In mid-August of 1986, Ms. Whaley told him that prospectuses had been distributed for each lot, either by delivery to a tenant or by posting. Clarence Rainey leased a lot from 1977 to 1989 at Flagler by the Sea Mobile Home Park, where he lived part of the year, returning to Illinois in the summer. Told by a neighbor that they were available, he asked for and received a prospectus in November of 1986. He had not received one earlier. With her husband Roger, Madeline DuJardin resided at Flagler by the Sea from February of 1979 until February of 1988. She did not get a copy of the approved prospectus before the rent increased on September 1, 1986, from $125.00 to $150.00 per month. Neither Mr. and Mrs. Rainey nor Mr. and Mrs. DuJardin received copies when they were originally distributed. Their trailers were among those to which copies were taped, weeks or months before their return in cooler weather. Charles A. Bond, who shared a trailer with a half-brother, resided at Flagler by the Sea from November 21, 1985, until December 31, 1988. While he lived at the park he never received a prospectus. Brothers surnamed Karcher each leased lots from respondent. Ms. Whaley gave one Mr. Karcher a copy of the approved prospectus, before September 1, 1986. But Richard Karcher, who in those days only spent a week at a time in the park, at intervals of several months, did not receive a copy of the approved prospectus before the rent increased. Richard Karcher had obtained a preliminary draft of the prospectus, but it differed in important respects from the draft which was eventually approved. In June of 1988, he obtained another copy of the prospectus, the copy, he testified, which he gave DBR's investigator, which also differs in important respects from the approved version. Attached to the copy Mr. Karcher gave DBR's investigator was a set of the park rules and regulations. It is not clear whether Ms. Whaley told Mr. Weiss that she had taped an approved copy to Mr. Richard Karcher's door. (T. 126, 128) Change of Law Effective July 1, 1986, statutory changes altered prospectus requirements. Petitioner mailed advice concerning the new requirements when it sent out annual fee statements to mobile park owners. Mr. Weiss did not personally receive this advice nor any written notice of the nine workshops petitioner conducted in August of 1986 to acquaint park owners with the statutory changes. Although approved a few days earlier, respondent's prospectus did not conform to all the new requirements. In early 1988, Mr. Weiss heard from Gloria Thompson, a DBR employee in its Tampa office, in connection with a complaint filed by Charles Jagde, the same person whose complaint led to the investigation that gave rise to the present proceedings. Ms. Thompson found no violation on the original complaint. Respondent's Exhibit No. 6. Eventually Mr. Weiss learned that revisions to prospectus No. 1802171 were necessary. On November 18, 1988, he filed another proposed prospectus with petitioner. After its approval on January 30, 1989, park personnel distributed the revised, approved prospectus, No. 1802171P86, to the tenants.
Recommendation It is, accordingly, RECOMMENDED: That DBR enter an order requiring respondent to send complete copies of currently approved prospectuses by registered mail to all tenants who have not received such copies personally and signed receipts so stating. DONE and ENTERED this 30th day of July, 1990, in Tallahassee, Florida. ROBERT T. BENTON, II Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, FL 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 30th day of July, 1990. APPENDIX Petitioner's proposed findings of fact Nos. 1 through 6, 9, 11 through 14 and 16 through 19 have been adopted, in substance, insofar as material. With respect to petitioner's proposed finding of fact No. 7, the evidence did not establish the contents of the copy of the prospectus the Miranoffs received. With respect to petitioner's proposed finding of fact No. 8, Mr. Onusko's adult daughter Marilyn received a copy of the prospectus before the rent increased. Petitioner's proposed finding of fact No. 10 pertains to subordinate matters only. With respect to petitioner's proposed finding of fact No. 15, Mr. Karcher so testified, without contradiction. Respondent's proposed findings of fact Nos. 1 through 5, 7 through 10, 12 through 19, 21, 22, 24, and 27 through 30 have been adopted, in substance, insofar as material. With respect to respondent's proposed finding of fact No. 6, the prospectus had not been approved at that time. With respect to respondent's proposed finding of fact No. 11, she did not personally deliver prospectuses to all tenants. With respect to respondent's proposed finding of fact No. 20, the differences were material. Respondent's proposed findings of fact Nos. 23, 25 and 26 are immaterial. COPIES FURNISHED: Donna H. Stinson, Esquire Moyle, Flanigan, Katz, Fitzgerald & Sheehan, P.A. The Perkins House, Suite 100 118 North Gadsden Street Tallahassee, FL 32301 Debra Roberts, Esquire Department of Environmental Regulation 725 South Bronough Street Tallahassee, FL 32399-1007 Joseph A. Sole General Counsel Department of Business Regulation 725 South Bronough Street Tallahassee, FL 32399-1000 Paul Martz, Esquire Martz & Zimmerman 3 Palm Row St. Augustine, FL 32084 Stephen R. MacNamara Secretary Department of Business Regulation 725 South Bronough Street Tallahassee, FL 32399-1000 =================================================================
The Issue Whether Respondents, Horse Creek Estates Homeowners Association, Inc. (HCE); The Compass Management Group, LLC; and Dale Mullin, HCE president, discriminated against Petitioners, Kevin and Catherine Hannon, in violation of the Florida Fair Housing Act.
Findings Of Fact PARTIES Petitioners are a married couple with children, living in Naples, Florida. During the applicable period, Petitioners owned a home located at 442 Saddlebrook Lane (Saddlebrook home). They currently reside in their new home at 3452 Atlantic Circle. Petitioners did not allege they are members of a protected class and they were subjected to discrimination based on that protected classification. Petitioners alleged that Respondents violated the Florida Fair Housing Act, as amended in the manner specifically described: -Respondents creates [sic] different terms and standards for different tenants and do not have a fair screening process; -Respondents continue to discriminate against proteted [sic] classes in order to “create” their desired All White Neighborhood; -Respondents failed to provide a “written adverse action notice as required by the Federal Trade Commission (FTC) Further, Petitioners alleged as the “ultimate facts” and “entitlement to relief” as: Respondents did discriminate when they unfairly denied the tenants based on highly inaccurate information. They failed to use a fair screening process and intentionaly [sic] delayed the approval process. This action caused and created unnecessary stress and a considerable amount of time, effort and financial burden & expenses to prove tenant was not a convicted felon. Respondents have never taken any responsibility for their actions, apologized or expressed remorse. They have manipulated the facts and benefit by having unlimited [illegible] I am seeking justice.5/ Petitioners claimed their tenants were subjected to discrimination based on their protected class: race and familial status. As set forth below, such discrimination was not established. Respondent HCE is a Florida not-for-profit corporation. According to Mr. Mullin, HCE represents 109 lots, including 103 homes, four empty lots and one lot being developed.6/ Since its inception, HCE has, through its members, approved its articles of incorporation and bylaws, and amended its declaration of condominium in accordance with Florida law. Respondent Mr. Mullin is currently president of HCE’s Board of Directors (Board). Mr. Mullin has been on the Board since 2010 and has served as its president for the last two years. Mr. Mullin resides in the community. The undersigned finds that Mr. Mullin was listed as a Respondent in his official capacity as the Board’s president, and not in his individual capacity. Respondent Compass Management Group, LLC (Compass), is a property management company which supervises approximately 130 different properties in Naples and the surrounding area, including HCE. Compass is responsible for the accounting, repairing property, and processing sales and leases for the various properties it manages. Compass processes the various lease applications, but does not make any decisions on which tenants are approved or denied; those decisions are made by the individual property associations. SCENARIO In 2014, Petitioners were in the process of building a new home in another Naples neighborhood. Petitioners determined that if they could not sell the Saddlebrook home in order to obtain the necessary financing for their new home, they would list the Saddlebrook home as rental property. Petitioners engaged Chris Lecca as their real estate rental agent for the Saddlebrook home. Mr. Lecca listed the Saddlebrook home on the MLS (multiple listing services). Nhuchau Hong Presti, who is also a real estate agent, saw the MLS rental listing for the Saddlebrook home. She, along with her husband Scott Presti, completed and executed the Compass application checklist (2 pages), and the “Estates at Horse Creek” lease application7/ (21 pages, which included a copy of the Florida Residential Landlord and Tenant Act) on June 27, 2014. This lease application included a notice that “[an] interview with the Board is required prior to approval.”8/ The Saddlebrook home lease term was August 1, 2014, through March 31, 2015. The Prestis submitted their completed lease application to Mr. Lecca. Prior to submitting the lease application to Compass, Mr. Lecca performed a background check on Mr. and Mrs. Presti. Mr. Lecca found the Prestis to have “decent or good credit.” The background check also provided information about an old arrest of Mr. Presti. The arrest was over ten years old and was not a felony. Mr. Lecca could not envision any reason for the Prestis’ application to be denied. Mr. Lecca submitted the Prestis’ lease application to Compass on Tuesday, July 1, 2014, 30 days before the lease was to begin. Compass forwarded the lease application to the HCE Board for its review and determination. According to HCE bylaws, a decision on the lease application had to be announced within 15 days of the application.9/ On Wednesday, July 9, Compass sent a letter to Petitioners notifying them that the Prestis’ lease application was denied. The stated reason was: This application is being denied do [sic] to results that were returned on the background/credit check for the applicants. Attached is a copy of the Horse Creek Estates “Regulatory Criteria for Disapproving a Rental Lease”. . [sic] The Board initially based its decision on information found in the “REAL-ID Incorporated” documentation, which reflected Mr. Presti’s arrest and Mrs. Presti’s financial foreclosure actions. Once the Board was advised of the circumstances, the Board exercised its right to interview the Prestis. As a result of that personal interview, the lease application was approved, and the Prestis moved into the Saddlebrook home. Compass’ client services manager, Ms. Nolen, advised Mr. Lecca that the Board’s basis for the denial was Mr. Presti’s felony conviction and Mrs. Presti’s financial foreclosure actions. Shortly thereafter, Petitioners engaged an attorney who requested the Board to reconsider the denial decision. On Monday, July 14, Mr. and Mrs. Presti were asked to attend an in-person interview with the Board or members of the Board. Although the Board (through Compass) offered to meet with the Prestis on Thursday, July 17, a conflict arose and the interview was re-scheduled to Friday, July 18. On July 18, Mr. and Mrs. Presti, accompanied by Mr. Lecca, arrived at the interview location, Mr. Mullin’s residence. Mr. Mullin declined to allow Mr. Lecca to attend the meeting, stating that Mr. Lecca’s presence wasn’t necessary. Board members, Mr. Mullin and Mr. Sussman, interviewed the Prestis. Following this 30 to 45 minute interview, the Board reversed its denial and approved the Prestis’ lease application. Mr. Mullin telephoned Mr. Lecca and told him that the lease application was approved. The Compass approval letter was issued on Tuesday, July 22. The Prestis moved into the Saddlebrook home on or about August 1, the date the lease began. They have paid their monthly rental fee timely and there have been no complaints. No testimony or evidence was presented that demonstrated any type of discrimination was the motivation for the initial denial of the lease application.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a final order be entered by the Florida Commission on Human Relations, dismissing the Petition for Relief filed by Petitioners in its entirety, and denying Respondent’s request for attorney’s fees. DONE AND ENTERED this 8th day of May, 2015, in Tallahassee, Leon County, Florida. S LYNNE A. QUIMBY-PENNOCK 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 8th day of May, 2015.
