Findings Of Fact Continental Country Club is a residential subdivision consisting of several mobile home lots located in Wildwood, Florida. Each of the residents in the subdivision owns his or her mobile home and, although some residents lease their lots from Continental Country Club, Inc., the great majority of the residents own lots in the subdivision which were purchased from Respondent, or its predecessors, and upon which the residents' mobile homes are placed. This administrative action relates solely to the individuals owning lots in the subdivision. All of the property in the Continental Country Club subdivision is subject to an instrument entitled "Amended and Restated Declaration of Restrictions," recorded on January 27, 1975, in the Public Records of Sumter County, Book 160, page 315 (Exhibit A). The only modification to the declaration referenced in paragraph 3 above is a document dated September 9, 1983, which applies only to certain lots and is entitled "Amendment to Amended and Restated Declaration of Restrictions" (Exhibit B). The Respondent, Continental Country Club, Inc., is the current developer of Continental Country Club and has succeeded to the rights of Continental Country Club Community, Inc., the previous developer of the subdivision. At all times material to this proceeding, Respondent owned and operated a portion of the Continental Country Club subdivision, or amenities exclusively serving the subdivision, including a marina, streets, street lights, and drainage facilities. Exhibit C contains a true and correct graphical description of the Continental Country Club subdivision. Prior to March 1, 1985, each lot owner was required to pay a monthly maintenance charge of sixty-five dollars ($65.00) as provided in paragraph 3 of the Amended and Restated Declaration of Restrictions (Exhibit A). On or about February 20, 1985, in accordance with paragraph 3 of the Amended and Restated Declaration of Restrictions, Respondent mailed a notice to the lot owners in the subdivision (Exhibit D), advising them that effective March 1, 1985, the monthly maintenance charge would be one hundred thirty-five dollars ($135.00). This was the first notice the lot owners received regarding the increase in maintenance fees. On or about July 8, 1985, Respondent sent the lot owners a letter regarding maintenance charges (Exhibit E). On or about July 12, 1985, Respondent, through its attorney, Chris Ford, mailed another letter to the lot owners (Exhibit F). The fact that the above-referenced July 8 and July 12 letters, regarding the notice of increase in maintenance charges, were mailed to each of the lot owners is not at issue in this case. Subsequent to mailing the above-referenced letters, Respondent has billed lot owners at Continental Country Club for maintenance charges at a monthly rate of one hundred thirty-five dollars ($135.00) effective June 1, 1985. Pursuant to the declaration of restrictions (Exhibit A), Respondent has sent notices of intent to file liens and has recorded liens against lots in the subdivision based upon the failure of the lot owners to timely pay the increased portion of maintenance fees charged after June 1, 1985. Rules and regulations for the Amended and Restated Declaration of Restrictions are as contained in Exhibit G. All lot owners at closing were given a copy of the declaration of restrictions (effective December 16, 1974, Exhibit 3). Paragraph 3 thereof provides for owners to pay monthly maintenance charges which "shall be subject to adjustment at any time during the term hereof and shall be effective as far as each owner is concerned upon receipt of an invoice containing a new maintenance charge." These purchasers were also told that the covenants and restrictions outlining the duties and responsibilities of the developer and lot owners ran with the land and followed the property to subsequent purchasers. The warranty deed to the lot purchased conveyed these lots subject to "covenants, conditions, restrictions, rules and regulations of record, together with amendments thereto" (Exhibit 4.) Two lot owners testified in these proceedings that they did not recall receiving a copy of these covenants and restrictions at closing but both of them signed an acknowledgment that they had received a copy at closing (Exhibits 5 and 8).
Findings Of Fact Respondent is a registered residential contractor having been issued license number RR 0008633, and is the qualifier for Merkle Custom Homes Inc. Respondent's last known address is 877 SW 124th Street, Miami, Florida 33176. Sunshine Ready Mix Concrete Company ("Sunshine") provided Respondent with the materials to be used on construction jobs located at 9600 SW 103rd Street and 8715 SW 129th Terrace, both in Miami, Florida. Respondent did not pay in full for such materials. Sunshine sued Merkle Custom Homes and obtained a judgment against that Florida corporation in the amount of $4,379.24 for money owed by the corporation on various jobs, to include the two projects referred to in paragraph 2 of this order. Said judgment has not been satisfied. One of the subject construction projects was undertaken for Dr. Robert Boyett and-his wife. This project was at 8715 SW 129th Terrace, and was the Boyett home. The other project at 9600 SW 103rd Street was an investment for Henry Arman and Errol Eisinger, a general partnership known as Ski Investors. This project was known as the "Ski Job." The contract between Boyett and Respondent was a standard contract, and the contractor would be responsible to make disbursements to subcontractors and materialmen. After the commencement of construction on the Boyett job, a disagreement arose between Boyett and Respondent. Boyett had the checks from the lending institution cut to him and Respondent, and did not pass all of the draw to Respondent. Boyett assumed responsibility for paying the subcontractors and materialmen. Prior to the Boyett and Ski Job projects, the Respondent applied for and established an open account for Merkle Custom Homes with Sunshine. The concrete for the Boyett job was charged to the Merkle Custom Homes account. Respondent's uncontroverted testimony was that he phoned Mr. Iglesias of Sunshine and advised him that Boyett was responsible for the concrete. The situation between Boyett and the Respondent worsened, and they eventually severed their contract. Boyett owed Respondent substantial sums of money at that time from draws paid to Boyett by the lender. In settlement of their dispute, Respondent waived any claims on the money Boyett held in return for Boyett's promise to assume all financial responsibility to the subcontractors and materialmen. Boyett did pay some $1500 to Sunshine on this debt but refused to pay all of the Sunshine bills, even though Respondent urged Boyett to honor his commitment. As a result, the Respondent received a partial satisfaction of judgment. Boyett and the contractor who took over from Respondent and assumed responsibility for the project both executed documents indicating that all materialmen had been paid. Sunshine failed to file and perfect a materialman's lien on the Boyett job. On the Ski Job, Respondent never had any control over the distribution of funds. Although the first checks were made out to the partners and the Respondent, control over payments to subcontractors and materialmen was exercised by the financial institution and Arman and Eisinger, the two individuals in the partnership for whom the project was done. The money was controlled by the partnership, who paid subcontractors directly. Respondent told Mr. Iglesias by phone that the partners were responsible for payment of the materialmen. Sunshine delivered to the Ski Job and billed to Merkle Custom Homes 40 yards of concrete at $27.75 per yard, for a total (including tax) of $1,154.40. Sunshine was paid for this concrete, and Respondent obtained a release from Sunshine for this amount. Sunshine delivered an additional 39 yards of concrete to the Ski Job after the date of the release at $34 per yard for a total (including tax) of $1,409.04. There is no evidence that the partners ever received a bill for the remainder of the concrete from Sunshine or the Respondent. No request for payment was made to the savings and loan for money to pay Sunshine for concrete. Merkle Custom Homes was replaced as the contractor, on this project, and the new contractor and owners agreed to assume responsibility for money owed to any subcontractors or materialmen. Sunshine did not file or perfect a materialman's lien on the Ski Job.
Recommendation Having found Respondent not guilty of violating Section 489.129(1)(d), Florida Statutes, it is recommended that the Amended Administrative Complaint filed against Respondent be dismissed. DONE and RECOMMENDED this 24th day of February, 1983, in Tallahassee, Leon County, Florida. STEPHEN F. DEAN, 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 24th day of February, 1983. COPIES FURNISHED: Michael J. Cohen, Esquire Kristin Building, Suite 101 2715 East Oakland Park Boulevard Fort Lauderdale, Florida 33306 Robert C. Eber, Esquire 9595 North Kendall Drive, Suite 102 Miami, Florida 33176 Frederick Roche, Secretary Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32301 J. K. Linnan, Executive Director Construction Industry Licensing Board Post Office Box 2 Jacksonville, Florida 32201
The Issue Is Respondent, Westgate Home Sales, Inc. (Westgate) an employer as defined in section 760.02(7), Florida Statutes (2010), and did Westgate discriminate against Petitioner as alleged in the Employment Complaint of Discrimination?
Findings Of Fact At all times material to this proceeding, Petitioner was employed by Respondent, Westgate Home Sales, Inc. (Westgate). She worked for Respondent from January 2007 until February 15, 2008. Westgate is located in Gainesville, Florida, and is in the business of selling mobile homes. Petitioner was service manager for Respondent, and her immediate supervisor was Michael Reaves, the lot manager. Westgate is owned by Frier Home Sales, Inc. As service manager, Petitioner's primary duties were to handle warranty claims and coordinate the set up of a mobile home after it was purchased by a customer. Her work as service manager involved dealings with customers "from set up to service." Her job also involved dealing with several independent contractors. Petitioner worked in the mobile home industry most of her life, as did her family members. She worked at the sales lot which is now Westgate for approximately 18 years. During most of those years, the lot was under different ownership. Petitioner's normal work hours were 9 a.m. to 5 p.m. Monday through Friday, although she would often come in early, stay late, and work on Saturdays. Petitioner's gross earnings were approximately $400 per week. Facts Related to Requisite Number of Employees In addition to her lot manager, Mr. Reaves, Petitioner worked with James Matthew "Matt" VanEtten (sales manager); Bruce Goodson (sales), Penny Wilkes, (bookkeeper), Dana VanEtten (part- time employee and Matt VanEtten's wife); Doyle Rooks (sales), Dennis Cribbs (sales); Kyle Saborin (sales); and David Walker (sales). There is no dispute that Westgate itself did not employ 15 or more employees during the relevant time period. The dispute concerns whether other entities owned or managed by certain members of the Frier family should be considered a single-employer for purposes of the Florida Civil Rights Act. William Slaughter is employed by Frier Finance where he is Chief Financial Officer and oversees all of the accounting for approximately 30 companies, which will be referred to as the Frier Companies. Nine of these companies operate out of a location in Live Oak, Florida, including Frier Home Sales, which owns Westgate. The Live Oak location is commonly referred to by current and former employees of Westgate as "the corporate office." Members of the Frier family, specifically Wayne, Todd, and Matt Frier, are owners or directors of all of the companies operating out of the Live Oak location, and most, if not all, of the other Frier Companies. All of the companies have something to do with the mobile home industry. Matthew, Todd, and Wayne Frier are listed as Directors for Frier Home Sales, Inc., in its Articles of Incorporation; Wayne and Matthew Frier are listed as Directors of Westgate Home Sales, Inc. Frier Finance is one of the companies which operates out of the Live Oak location. Frier Finance finances mobile homes for customers, provides floor plan financing for sales lots, and provides management services for sales lots. Frier Finance negotiates things like rates on floor plan contracts, which benefit the individual lots by getting better rates. Each lot signs its own contract with the floor plan lenders. In addition to overseeing the accounting for various companies, Mr. Slaughter is responsible for hiring and overseeing three auditors, who are also employed by Frier Finance. The auditors provide monthly services to the sales lots. They assist in hiring and training bookkeepers for the sales lots, and report the financials to Mr. Slaughter, who in turn provides that information to the Friers. The auditors visit the sales lots three or four times a month conducting audits of sales, theft, inventory, and commissions. Frier Finance was paid a fee for all of the auditing and management services provided to the various sales lots, as well as for financing services. The bookkeepers at the various sales lots fill out the time sheets, and send them to Frier Finance in Live Oak. Specifically, they send the time sheets to Betty Jordan, who is Mr. Slaughter's assistant and is a bookkeeper. She handles bookkeeping and coordinates payroll for many of the sales lots, as well as for Frier Finance, Frier Home Sales, Frier Finance Floor Plan, and Frier Home Sales Floor Plan. The bookkeepers at the sales lots fax timesheets to Ms. Jordan. The timesheet form used by the various lots appears to be the same, but the time sheets reflect a lot number indicating which sales lot is reporting payroll. After receiving the faxes from the sales lots, she gives them to either Matt or Todd Frier, who then gives them back to her. Ms. Jordan then faxes the payroll information to Oasis Outsourcing, a company located in West Palm Beach, which provides professional employment services, including preparing paychecks. Ms. Jordan also handles purchase orders of mobile homes from the factory. If a lot manager wishes to purchase a mobile home, he or she faxes the purchase order to Ms. Jordan, who then gives it to Todd or Matt Frier, who then initials approval. Ms. Jordan then assigns the purchase order a number, and faxes it back to the requesting lot manager. Ms. Jordan on occasion sends memos to various sales lots regarding payroll procedures. These memos relate to services provided by Frier Finance. Again, Frier Finance is paid a fee for these payroll services. Each sales lot has its own bank account out of which it pays its own operating costs, e.g., utility bills, telephone bills, and advertising. The respective bookkeepers issue checks at the sales location on that entity's bank account, then send them to Live Oak where they are signed by either Mr. Slaughter or one of the Friers, and sent back to the sales location for distribution. A lot manager can only sign checks if he or she is a minority partner in that entity. Approximately seven or eight entities have minority partners, but the record is not clear which ones. The sales lots only issue checks for that lot, none of the other lots. Lots do not comingle their revenues or operating expenses. Lot managers are typically hired by the Friers, and only the Friers can fire lot managers. The Friers decide where to place lot managers and set the pay rates for the lot managers. The Friers have moved a lot manager from one location to another. These decisions are made by the Friers as officers or managing members of the individual companies. When a lot manager is transferred to a different lot, that manager becomes an employee of the new lot. Similarly, when a bookkeeper splits her time between two lots, her salary was paid half by one lot, and half by the other. Lot managers control the daily operations of the sales lot. Lot managers are responsible for hiring and firing employees at the various lots, with the exception of bookkeepers. If a lot manager wants to fire a bookkeeper, the manager tells Frier Finance and the decision is made there. Lot managers make the decisions as to work schedules, vacations, holiday closures, approval of sick days, and promotions. Decisions regarding lot employees are handled at the individual lots, not in a centralized location. Each lot is separately licensed, has its own sales tax number, "DMV" number, and its own phone number. Each lot "stands or falls" on its own. The lots do not have the same ownership structure. At a time prior to the time relevant to this proceeding, the Frier's corporate structure was different and the companies were, to an extent not clear from the record, more unified. At some point prior to the time-frame material to this case, this large "umbrella" corporation was split or divided into smaller companies. However, there was no evidence that any of the entities were separated or "splintered" with the intention or purpose of defeating anti-discrimination laws. Further, there was no evidence presented that establishes or suggests that the Friers or any of the companies were aware of, condoned, or tolerated the actions complained of by Petitioner herein. On the contrary, when asked on cross-examination if the Friers ever took part in the harassment, Petitioner replied, "No, no, sir. Never." Facts Related to Sexual Harassment For the majority of the time she worked at Westgate, Petitioner's office was located in an office building that was approximately the size of a double-wide mobile home with additions. Petitioner alleges that the actions and behavior of which she complains began over the last six months she was employed by Westgate. At first, she overheard inappropriate comments about customers. Eventually, the comments, and actions, were also directed at her. As is typical of a sexual harassment case, there is conflicting testimony of exactly what was said and exactly what actions took place. However, in this case, Respondent concedes, at least to some degree, that conversations took place that were inappropriate for the workplace. Respondent asserts, however, that Petitioner was a willing participant in these inappropriate conversations and exchanges. While the inappropriate language and conduct permeated the working environment at Westgate, Petitioner primarily complains about the actions of her supervisor, Mr. Reaves, and a co-worker, Mr. VanEtten. Neither Mr. Reaves nor Mr. VanEtten testified. The earliest offensive conversation Petitioner recalled was a comment made by Mr. VanEtten to her in which he told her he had a fantasy of being with an older woman.2/ Petitioner replied that he had better have a fantasy about a younger woman (referring to his wife). Petitioner complained to Mr. Reaves, who, according to Petitioner, responded that Matt "liked" her and not to be afraid of Matt because "Matt's got a little dick."3/ The allegations regarding Mr. VanEtten are numerous: Mr. VanEtten would "act out" things, or perform what Petitioner described as "skits." Many of the skits were not inappropriate and Petitioner found them to be funny. However, she failed to see the humor in "the rabbit," described below, and when it first occurred, told Mr. VanEtten to "get the fuck off of me." Petitioner described Mr. VanEtten, on many occasions, going up to the chair she was sitting in and "humping" it, which he labeled "the rabbit." She also described Mr. VanEtten as a tall, large man. Petitioner is a petite woman. Her allegation regarding Mr. VanEtten's performing "the rabbit" on her chair was corroborated by both of Petitioner's daughters who observed it on visits to their mother's office, as well as by Shiela Nickerson, a friend who cleaned mobile homes at Westgate, and Corey Bryan, the father of one of Petitioner's grandchildren.4/ In addition to "the rabbit," Petitioner asserts that Mr. VanEtten once wrapped his arms around her while they bumped into each other in the office; offered her money for sex; frequently said to her "show me your pussy"; and, on the last day she worked at the office, dropped his pants and "mooned" her showing his naked buttocks. Regarding Mr. Reeves, Petitioner asserts that he "mooned" her three or four times; used sexually charged expressions such as commenting that Petitioner must be "fucking" one of the contractors, Richard Cowart; asking her to get him an ice cream cone, saying he wanted it "big and sloppy, like a pussy, like a big ole pussy"; telling her she needed to "man up, grow a dick, be a man"; that he had a visual image of her wrapped around his head and him licking her; and frequently making remarks of a sexual nature either towards her or generally in the workplace and not directed at her. In addition to Mr. VanEtten and Mr. Reaves, Petitioner also complained about harassment by a salesman, Bruce Goodson. She related one instance when Kevin Turner, a serviceman from a carpet cleaning company, was there to clean carpet. Mr. Goodson told him, in a joking fashion but in Petitioner's presence, that Petitioner would do a lap-dance for him. Mr. Turner corroborated this allegation. Mr. Goodson did not testify. Petitioner's testimony regarding the above-described incidents was credible and largely unrebutted. Other witnesses corroborated Petitioner's depiction of the sexually-charged comments that were prevalent at Westgate. Ms. Nickerson, who assisted in cleaning mobile homes, complained of inappropriate comments by both Mr. VanEtten (stating in her presence and in the presence of Petitioner that he was horny) and Mr. Reaves (telling her how pretty her breasts were and how good her ass would look while he was hitting it from the back, and offering to put her up in a house if she slept with him); and generally that "every time I went there it was sexual comments being said." Kelly Oldman is one of Petitioner's daughters. She cleaned mobile homes for Westgate as an independent contractor. Ms. Oldman also was the recipient of many sexually charged comments by Mr. VanEtten (e.g., making obscene gestures with his mouth and gesture "nasty like he wanted you to masturbate him"; that he "grabbed his stuff" and asked if she or her mother would "help him relieve some pressure on this thing"; that he would often grind his genitals toward her; and that everything he did was sexually driven); and Mr. Reaves (telling her she needed a "sugar daddy"; hearing him on one occasion tell her mother to show him her pussy); and that she was called "bootylicious" by them and by some of the salesmen there. Petitioner frequently complained to Ms. Oldman about the office atmosphere. It must be noted that Ms. Oldman began working at Westgate at her mother's suggestion. Ms. Oldman had just become single and needed to earn money in addition to another job she had. Petitioner warned her daughter about the behavior at Westgate and, despite this behavior, spoke to Mr. Reeves about hiring her daughter to clean mobile homes. Kelly was hired to clean homes as an independent contractor. There is no real dispute that off-color jokes and office banter of a sexual nature were prevalent at Westgate. However, Respondent points to what it perceives to be Petitioner's participation in and contribution to much of the sexually charged office environment. Petitioner acknowledges that she used profanity in the workplace; that she sometimes laughed at jokes of a sexual nature; that she, at the time, sometimes found those jokes to be funny; and that she had a flirtatious relationship with Mr. Cowart, an independent contractor. Petitioner also acknowledges that her actions were not always appropriate. She described one incident that she readily admits was inappropriate. Once when she was particularly disgusted with a comment by a contractor (not an employee of Westgate) in reference to her wearing shorts during off hours that her "pussy was clean as a whistle," and to Mr. Reaves responsive comment that her "kitty-cat was clean as a whistle," she reached into her pants, grabbed some pubic hairs, and threw them at the contractor who made the comment. Petitioner also acknowledges that occasionally her grandchildren were at her office. For example, she would pick up a grandchild from daycare and keep the child at her office until her daughter got off work; or, her daughter would drop by with her grandchildren. Petitioner acknowledged that the guys would "straighten up" when her grandchildren were present. Dennis Cribbs, who worked at Westgate at least some of the time Petitioner worked there, described her language as "a lot of sexual innuendo" and, regarding her language, that he "never heard a woman speak like that." Mark Denmark, a detective with the Gainesville Police Department, had occasion to stop by Westgate and described the office conversation there as containing jokes, comments, innuendo, and banter of a sexual nature, all of which Petitioner participated. David Walker, also worked at Westgate when Petitioner worked there. He is now vice president of a mobile home lot which is a competitor of Westgate. His office was near Petitioner's, and he observed her participate in office banter, conversations, and just "normal gossip stuff" of a sexual nature. He described her language as "vulgar" and that it bothered him so much to be next to her office that he asked to be moved to another part of the building. Mr. Walker acknowledged that he was one of the persons who called Ms. Oldman "bootylicious." Mr. Cowart, who acknowledged some sort of relationship with Petitioner, provided similar testimony regarding Petitioner's participation in office banter, etc., of a sexual nature.5/ Petitioner wanted a "transfer" to another lot, and attempted to call Todd Frier about this. She left messages without detail as to why she was calling. She did not talk to Mr. Frier about a transfer, as her call was not returned. Following that and toward the end of her employment, Petitioner discussed with Mr. Reaves whether she could move her office to the back building where Penny Wilkes worked. He agreed to let her do that. However, that office was not finished prior to her ending her employment. During the last week of employment at Westgate, Petitioner was encouraged by "everyone" to quit and was being treated "really, really bad." Her office had been packed and it appeared to her she was losing her job. She had a conversation with Mr. Reaves in which she informed him she was going to file a complaint. Instead of firing her, he offered a "promotion" to her in sales. Petitioner believed that this was not a genuine offer, as she is bad in math and her experience was in service, not sales. She told him he was "fucked up." Petitioner described her leaving Westgate as follows: "I was fired. At that point I thought I was fired. Now looking at it, no. . ." ". . . I didn't get fired. I got manipulated out of there."
Recommendation Upon the consideration of the facts found and conclusions of law reached, it is RECOMMENDED: That a final order be entered by the Florida Commission on Human Relations finding that, based upon Petitioner's failure to show that the Respondent is "an employer" as defined in section 760.02(7), that the Employment Complaint of Discrimination be dismissed. DONE AND ENTERED this 5th day of May, 2011, in Tallahassee, Leon County, Florida. S BARBARA J. STAROS Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 5th day of May, 2011.
Findings Of Fact This matter arose from the sale of a certain apartment building in Dunedin, Florida, known as Piper's Ten. This building was owned by two foreign corporations, the principals of which are represented by a Mr. Eugene Morgan of Boston, Massachusetts. Douglas S. Kennedy, Defendant, is a registered real estate salesman whose license was registered with Lockhart Realty, Inc., of Seawalls Point, Florida, the broker for which was his then wife Trude Kennedy. The Defendant and his wife were involved in domestic difficulties which eventually lead to a divorce. When the Defendant and his wife separated sometime in late 1972, he sought out his friend and business associate, Eugene Morgan, who suggested that the Defendant move to Dunedin, Florida and reside in the model apartment at Piper's Ten. The Defendant heeded the suggestion and took on the assignment as resident manager of the Piper's Ten Apartments at a final salary of approximately $1,000 per month. According to the Defendant and Mr. Morgan, his prime responsibility was seeing that Morgan and his co-investors in the property "receive a fair shake with the local people in and around Dunedin, Florida." At the time the property was registered with a real estate broker of Dunedin, Florida, whose name is Mr. Woodrow Register, and he had an exclusive listing on the sale of Piper's Ten Apartments. The initial arrangement between Morgan and the Defendant was that the Defendant would live in the apartment rent free and he would be paid an amount to defray his expenses for the management responsibility. When the Defendant became dissatisfied with this arrangement approximately 3 weeks later, he notified Mr. Morgan that he could no longer remain in Dunedin under that arrangement. This set the stage for the new arrangement referred to above whereby the Defendant was to be paid $1,000 per month payable out of the proceeds, when and if the building was sold. According to Morgan, this arrangement was to last for at least 4 to 5 months or until such time as a purchaser was located to purchase the apartment building. During April 1973, Kelly Prior Realty of Dunedin produced a proposed purchaser for the property at the purchase price of $400,000 which was the amount set by the owners who had agreed to pay a real estate commission of 5 percent. Kelly Prior Realty prepared a proposed contract of sale and purchase and submitted it to the offices of the attorney for the seller, Raymond Argyros, who after certain modifications, submitted the contract to the sellers for their approval. At the closing in May 1973, Kelly Prior, the selling broker, received a full commission of 5 percent as agreed upon by their sellers in their open listing of the property. According to attorney Argyros, the Defendant received a check for $5,000 as agreed upon between the Defendant and Morgan and according to him, the contract erroneously referred to such payment as a commission. It is this $5,000 payment which is the matter of controversy in this hearing. According to Morgan, Defendant was hired to "see if he could get Morgan and his associates a fair shake with the local people in Dunedin respecting the management of the apartment building." Originally the two story building was primarily an office space on the lower level and approximately ten apartments on the upper level. The plan was to rent the upper level as a condominium and to lease the office space on the lower level. Morgan was unable to sell the condominiums on the upper level based on the fact that prospective purchasers did not want to buy condominiums in a building approximately 50 percent comprised of office space. With this fact, Morgan and his associates made the decision to convert the lower level to apartments as well. When this was done, the Defendant saw to it that the building was properly managed and provided feedback to Morgan in order to keep him advised at all times of the situation with the apartment building. When the building was sold, Kelly Prior Realty Company received the commission of $20,000 which represented 5 percent of the total purchase price and the Defendant received $5,000 for his efforts. In this regard, the Defendant received a check drawn in the amount of $5,000 and the check bore a notation that the amount represented a commission. When the Defendant noted this, he changed the face of the check to reflect that the amount paid was intended to be an agency fee for the sale of Piper's Ten. The Defendant played no part in the drafting of the purchase and sales agreement. After the closing, the Defendant also was given the furniture from the model apartment and he thereafter departed for Puerto Rico. Trude Kennedy, the Defendant's former wife, testified that Lockhart Realty was in no way associated with the sale of Piper's Ten. Trude Kennedy had several conversations with Mr. Morgan regarding the sales and problems which he encountered with Piper's Ten. However the basis of these statements involved other businesses which she had with Morgan regarding the sale and subdivision of other properties in and around Dunedin. Mrs. Kennedy was unaware of the amount paid to the Defendent and she made no claim for such funds when the payment was disbursed. Morgan denied that the amount in any way reflected a commission but rather was payment for the services which the Defendant rendered in the general upkeep and management of the building such that he could be fully advised at all times of the progress, if any, that the local realtors were having with the sale of the apartment building. With these facts, the undersigned is of the opinion that the $5,000 sum given to Kennedy represented the amount as per the agreement he had with Morgan. There was no evidence that he participated in any way with the sale of the building other than to advise Morgan of any efforts that the other local realtors played in locating purchasers. It was noted that the check which represented payment for these services indicated that the amount originally was a commission. However, the Defendant, when noting that the designation of a commission was included on the check, immediately advised Mr. Argyros, the seller's agent, to correct that mistake by placing a designation that the amount represented was intended to be a "seller's agent" fee. This correction was made prior to the time the check was deposited and it was done with the consent of attorney Argyros. There was no evidence that the Defendant demanded such amount as a commission for his efforts as a salesman or that he showed the property to prospective purchasers as a real estate salesman. Thus it appears that the amount paid to the Defendant was an amount given him for his services as testified to by Morgan. The amount paid also appears to correspond with the arrangement as testified to by Morgan. I therefore find that the $5,000 sum paid the Defendant represented an amount for services that he rendered, not as a real estate salesman, but rather, as a property manager of the Piper's Ten Apartment building.
The Issue Whether Respondents Alfred Homes and Felicia Homes Foster1 subjected Petitioner Nidia Cruz to discriminatory housing practices based on Ms. Cruz’s national origin, in violation of the Florida Fair Housing Act, chapter 760, part II, Florida Statutes (FHA).
Findings Of Fact Ms. Cruz, who is Hispanic in national origin, rented and occupied a mobile home at lot #9 in Pine Grove Trailer Park (Pine Grove), in an unincorporated area adjacent to Fernandina Beach, Florida. Respondent Alfred Homes owns Pine Grove. His daughter, Respondent Felicia Homes Foster, oversees the business operations of Pine Grove. Ms. Foster lives in a mobile home at Pine Grove, and owns two other mobile homes that are rental units. Ms. Cruz rented one of these mobile homes from Ms. Foster. The remaining mobile homes in Pine Grove are owner-occupied, with those owners renting their lots from Respondents. Neither party could produce a lease between Respondents and Petitioner concerning the mobile home. Based on the parties’ testimony and other evidence presented at the final hearing, the undersigned finds that Petitioner’s tenancy for the mobile home commenced on or about October 15, 2016, for an approximately one-year term ending November 30, 2017. Respondents charged a $500 security deposit, and $600 per month for rent, which included water and sanitary sewer that Pine Grove’s well and septic system provided. Ms. Cruz was responsible for electrical services to the mobile home. After the expiration of the lease on November 30, 2017, the parties did not renew the lease, and Ms. Cruz continued to occupy the mobile home under a month-to-month agreement, until she vacated the mobile home on or about September 29, 2018. Ms. Cruz sought out Respondents to rent a mobile home, as her previous landlord had terminated the lease for her previous residence because of her unauthorized possession of pets. Ms. Foster informed Ms. Cruz that she had an available mobile home to rent, but as the previous tenants had just moved out, she needed to make repairs to the mobile home before it could be occupied. Ms. Cruz requested to move in immediately while the Respondents repaired the mobile home, because she and her daughter were, at that point, homeless. Respondents employed Michael Hamilton to repair and provide maintenance work to the mobile homes in Pine Grove. Mr. Hamilton worked for Respondents on weekends, as he had a full-time job during the week. Within approximately one month of Ms. Cruz moving into her mobile home, Mr. Hamilton made the needed repairs to its interior, including replacing the refrigerator, carpet, commode, and door locks. After moving into the mobile home, Ms. Cruz was involved in an incident at a nearby McDonald’s restaurant with an employee. That employee, Theresa McKenzie, was a tenant of Pine Grove and resided in lot #10, which was adjacent to Ms. Cruz’s mobile home. Ms. Cruz and her daughter, Ms. Burgos, complained to Ms. Foster that Ms. McKenzie and her co-tenant Earnest Roberts made loud, harassing, and defamatory statements about Ms. Cruz and her national origin. Respondents, individually, warned Ms. McKenzie and Mr. Roberts to refrain from calling Ms. Cruz and Ms. Burgos names. The feud between Ms. Cruz and Ms. McKenzie was interrupted when Ms. Cruz was arrested on November 18, 2016. Ms. Cruz was charged with, among other offenses, aggravated stalking arising from a violation of an order of protection and filing a false police report. The victim of these offenses was a previous landlord from whom Ms. Cruz had rented a room. While in pretrial detention, a psychologist evaluated Ms. Cruz, and determined her to be incompetent to proceed in the criminal proceeding. The trial court subsequently committed Ms. Cruz to a mental health facility, and she pled guilty to filing a false police report. The trial court sentenced Ms. Cruz to a split sentence of two years with special conditions, which included enrollment into the mental health court program. After acceptance into the mental health court program, Ms. Cruz was released from the Nassau County Jail. On February 13, 2017, Ms. Foster hand delivered a letter to Ms. McKenzie and Mr. Roberts, which warned them that if they did not refrain from verbal attacks against Ms. Cruz, Respondents would evict them from Pine Grove and obtain a no trespassing order. Chris Cummings, who was a Pine Grove resident at lot #4, testified he was aware of the incident at McDonald’s involving Ms. Cruz and Ms. McKenzie, as his wife also worked at that McDonald’s. Mr. Cummings observed, but could not hear, Ms. Cruz and Ms. McKenzie “squaring off” against each other. Mr. Cummings recounted that he observed Ms. Cruz lift her skirt and bend over, in a manner that he interpreted to mean that Ms. McKenize could kiss her rear end. In August 2017, Hurricane Irma caused a large branch from a pine tree to fall on top of Ms. Cruz’s mobile home, puncturing the exterior metal skin of the mobile home’s roof, which allowed water to intrude into the interior of the mobile home. The water intrusion caused significant damage to the ceilings, walls, and floor coverings of the mobile home. It is undisputed that Hurricane Irma inflicted serious damage to the mobile home, and that Ms. Cruz resorted to using buckets to catch water leaking from the roof. Shortly after Hurricane Irma passed, Mr. Hamilton placed a tarp over the top of the mobile home to stop the water intrusion. He then began repairs to Ms. Cruz’s mobile home over the course of several weekends, which included removing and replacing damaged sheet rock, patching the metal roof, and installing new carpet and linoleum flooring. Mr. Hamilton testified that Ms. Cruz, on several occasions, frustrated his ability to complete these repairs by denying him entry into the mobile home. Ms. Cruz presented evidence that her mobile home required extensive repairs upon moving in, and that it sustained severe damage from Hurricane Irma. However, she presented no credible evidence to rebut the testimony that Mr. Hamilton, on behalf of Respondents, completed all necessary repairs. Additionally, Ms. Cruz presented no credible evidence that Respondents treated her differently than other Pine Grove tenants in responding to and completing any necessary repairs to other tenant’s mobile homes. Neither the passage of time, incarceration, nor the trauma of Hurricane Irma, ended the feud between Ms. Cruz and Ms. McKenzie. The Nassau County Sheriff’s Office had regular call-outs to Pine Grove regarding Ms. Cruz and Ms. McKenzie. The feud escalated when, on January 4, 2018, Ms. McKenzie filed a petition for an injunction for protection against Ms. Cruz, and the circuit court entered a temporary injunction that same day. The next day, January 5, 2018, Ms. Cruz and Ms. Burgos each filed petitions for an injunction for protection against Ms. McKenzie. Then, on January 16, 2018, Ms. Cruz sought a petition for an injunction for protection against Mr. Roberts, which the circuit court granted, as a temporary injunction, that same day. On January 17, 2018, the circuit court held a hearing on the petition against Ms. Cruz and Ms. Burgos’s petition against Ms. McKenzie, and on January 18, 2018, granted a final injunction in each case. On January 18, 2018, Ms. Burgos filed a petition for an injunction for protection against Mr. Roberts, which the circuit court denied. On January 24, 2018, the circuit court heard Ms. Cruz’s petitions against Ms. McKenzie and Mr. Roberts; the circuit court denied the injunction against Ms. McKenzie, but granted a final injunction against Mr. Roberts. On January 29 and February 9, 2018, the circuit court entered orders to show cause in Ms. Burgos’s injunction against Ms. McKenzie, and after hearing argument, dismissed them on February 15, 2018. Despite these multiple injunction proceedings, Ms. Cruz and Ms. McKenzie continued their feud. On January 22, 2018, Ms. Cruz was arrested for violation of the protection order in favor of Ms. McKenzie. Ms. Cruz’s arrest triggered a violation of her felony probation. While in pretrial detention, she was again evaluated by a psychologist, who determined her to be incompetent to proceed. The circuit court committed Ms. Cruz to a mental health facility. She subsequently returned to court and pled guilty to a violation of probation. The circuit court sentenced Ms. Cruz to a split sentence of time served, reinstated probation, and extended probation with an added special condition for 12 months. Ms. Cruz was released from the Nassau County Jail on July 27, 2018. On July 31, 2018, Ms. Foster hand delivered a notice to terminate the lease, stating that the lease will end on August 31, 2018, and that Ms. Cruz should vacate the mobile home no later than September 1, 2018. Ms. Cruz and Ms. Burgos continued to hold over in the mobile home until they moved out on September 29, 2018. Ms. Cruz failed to provide any credible evidence that Respondents, or Mr. Hamilton, made any disparaging statements to Ms. Cruz regarding her national origin. Ms. Cruz failed to provide any credible evidence that Respondents treated her less favorably than other tenants with regard to her feud with Ms. McKenzie. Put differently, Ms. Cruz failed to provide any credible evidence that Respondents treated any other tenant disputes differently than the way they treated the dispute between Ms. Cruz and Ms. McKenzie. Ms. Foster attempted to intervene on behalf of Ms. Cruz to end the feud, when she hand-delivered the letter to Ms. McKenzie on February 13, 2017, that threatened eviction. The credible evidence presented demonstrated that Ms. Cruz often created or exacerbated this feud, which ultimately led to her incarceration. Ms. Cruz failed to provide any credible evidence that Respondents’ decision to end the month-to-month holdover of the lease of the mobile home was based on her national origin, or that Respondents treated Ms. Cruz differently than any other tenants who resided at Pine Grove in ending the month-to-month holdover of a lease.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, the undersigned hereby RECOMMENDS that the Florida Commission on Human Relations issue a final order dismissing Nidia Cruz’s Petition for Relief. DONE AND ENTERED this 1st day of July, 2020, in Tallahassee, Leon County, Florida. S ROBERT J. TELFER III 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 1st day of July, 2020. COPIES FURNISHED: Tammy S. Barton, Agency Clerk Florida Commission on Human Relations Room 110 4075 Esplanade Way Tallahassee, Florida 32399-7020 (eServed) Nidia Cruz Post Office Box 1923 Callahan, Florida 32011 (eServed) James Pratt O'Conner, Esquire James Pratt O'Conner, P.A. Post Office Box 471 Fernandina Beach, Florida 32035 (eServed) Cheyanne Costilla, General Counsel Florida Commission on Human Relations Room 110 4075 Esplanade Way Tallahassee, Florida 32399-7020 (eServed)
