08-001955 Donald And Miranda Smith vs. Marianne C. Montgomery, Realtor/Broker Status: Closed Recommended Order on Friday, September 19, 2008.

Summary: The Florida Fair Housing Law does not address contract disputes and simple business judgment decisions.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DONALD AND MIRANDA SMITH, )

)

Petitioners, )

)

vs. ) Case No. 08-1955

)

MARIANNE C. MONTGOMERY, )

REALTOR/BROKER, )

)

Respondent. )

)

RECOMMENDED ORDER

Upon due notice, a disputed-fact hearing was held in this

case on July 16, 2008, in Brooksville, Florida, before Ella Jane

P. Davis, a duly-assigned Administrative Law Judge of the

Division of Administrative Hearings.

APPEARANCES

For Petitioner: Donald and Miranda Smith, pro se

1047 Rudolph Court

Spring Hill, Florida 34609

For Respondent: David H. Sturgil,

as Qualified Representative,

c/o Exit Realty/Realty Shoppe

5300 Spring Hill Drive

Spring Hill, Florida 34606

STATEMENT OF THE ISSUE

Whether Respondent real estate broker is guilty of a discriminatory housing practice against Petitioners related to the sale and marketing of their home.

PRELIMINARY STATEMENT

Following a March 27, 2008, "Determination: No Cause" by

the Florida Commission on Human Relations and Petitioners'

subsequent timely-filed Petition for Relief, this cause was

referred to the Division of Administrative Hearings on or about

April 17, 2008.

The file of the Division reflects all pleadings and orders

intervening before the final disputed-fact hearing.

At final hearing on July 16, 2008, David Sturgil was

examined and accepted as Respondent's qualified representative,

pursuant to Florida Administrative Code Rules 28-106.105 and 28-

106.106.

Each Petitioner testified, and Petitioners' Exhibits 1, 2,

3, 4, 5, 6, 7, 8, 9, 10, 11, 12, 13, 15, 16, 17, and 18, were

admitted in evidence. Exhibits P-14, P-19, and P-20 were not

admitted in evidence. Respondent Marianne (Marti) Montgomery

testified. Respondent also presented the oral testimony of Ed

Carr, Steve Van Slyke, Clara Ward, and Petitioner Miranda Smith.

Respondent's Exhibits 1, 2, 3, 4, 5, 6, 7, 8, 9, 10, 11, 13, 14,

and 15, were admitted in evidence. Respondent's Exhibit 12 was

voided, and parts thereof were admitted under other exhibit

numbers. Respondent's Exhibit 16 was not admitted.

No transcript was provided.

Each party timely filed a Proposed Recommended Order on

August 4, 2008.

FINDINGS OF FACT

1. Petitioner homeowners allege that Respondent real

estate broker discriminated against them by the length of the

exclusive listing contract Petitioners signed with Respondent

(eight months); by inferior service because Respondent showed

Petitioners' home only once in the eight months the contract was

in effect 1/ ; by incorrectly stating the agreed asking price on

flyers Respondent circulated; by providing an "open house" to

all of Respondent's other clients, but not to Petitioners; and

by asking Petitioners to remove some of their bi-racial family

photographs.

2. Petitioner Donald Smith, Ph.D., is Caucasian. He is

married to Miranda Smith, a dentist, who is African-American.

They have at least one child, with whom they have been

photographed. This case involves a house they owned on Cressida

Circle in Spring Hill, Florida, where they displayed their bi-

racial family photographs.

3. On or about January 28, 2007, Petitioners signed, as

sellers, an exclusive real estate listing contract with Kathlen

Hobbs, a real estate salesperson, who at that time was an

independent contractor associated with Exit Realty Shoppe.

Respondent Montgomery, real estate broker, is the qualifying

principal of Exit Realty Shoppe. Both Ms. Hobbs and Ms.

Montgomery are Caucasian. The agreed asking price was

$296,900.00. The term of the contract was for eight months:

January 30, 2007, to October 1, 2007. Mr. Smith interviewed two

other realtors, but he selected Ms. Hobbs and Respondent's

proffered contract. It is a "fill-in the blanks contract," to

which Mr. Smith had input.

4. Although she signed the contract, Mrs. Smith did not

speak to either Ms. Hobbs or Ms. Montgomery concerning the sale

of the house at any material time.

5. Mr. Smith testified that Ms. Hobbs initially told him

that their home was "priced to sell" at $296,900.00, but he

candidly admitted that Ms. Montgomery never made that

representation and never "guaranteed" that the house would sell

at that price.

6. Upon the evidence as a whole and because Mr. Smith

testified at one point that the other two realtors he

interviewed told him the house would sell at "$295,000.00 or

$296,000.00," and also testified contrariwise that Ms. Hobbs and

the other two realtors told him the house would sell at "between

$292,000.00 and $298,000.00," it is found to be more probable

that no one guaranteed a sale at Petitioners' asking price of

$296,900.00.

7. Petitioners seek damages of $15,000.00, without stating

any specific basis for that figure. They previously have sought

$40,000.00, damages based upon the alleged lowered price of the

house as sold by a subsequent realtor. However, the final date

of sale and final sale price are not clear on this record.

8. Paragraph Nine of the parties' contract provided for

its early termination prior to its eight-month expiration date,

upon the following terms:

9. CONDITIONAL TERMINATION: At Seller's

request, Broker may agree to conditionally

terminate this Agreement. If Broker agrees

to conditional termination, Seller must sign

a withdrawal agreement, reimburse Broker for

all direct expenses incurred in marketing

the Property and pay a cancellation fee of

$___ plus applicable sales tax. Broker may

void the conditional termination and Seller

will pay the fee stated in paragraph 6(a)

less the cancellation fee if Seller

transfers or contracts to transfer the

Property or any interest in the Property

during the same time period from the date of

conditional termination to Termination Date

and Protection Period, if applicable. (Blank

space in original; emphasis supplied.)

9. Paragraph Six of that listing contract provides, in

pertinent part:

6. COMPENSATION: Seller will compensate

Broker as specified below for procuring a

buyer who is ready, willing and able to

purchase the Property or any interest in the

Property on the terms of this Agreement or

on any other terms acceptable to Seller.

Seller will pay Broker as follows (plus

applicable sales tax)

(a) 6% of the total purchase price OR $__ ,

no later than the date of closing specified

in the sales contract. However, closing is

not a prerequisite for Broker's fee being

earned. (Blank space in original.)

10. Steve Van Slyke has been an active licensed real

estate broker for over 20 years. For the last few years he has

done more property appraisals than real estate sales. He has

regularly taught and taken continuing education courses in the

real estate profession since he was admitted to the profession

in 1983. He has chaired the Professional Standards Committee of

the Hernando County Association of Realtors (HCAR) since 1991.

In that capacity, he has presided over hundreds of contract

disputes between buyers and sellers, including the one that

ultimately developed between the parties in this case. See

infra .

11. According to Mr. Van Slyke, the contract in this case

is one commonly used in Hernando County, in the sense of not

being unusual, but there are no "average," "usual," or "industry

standards" for the duration of an exclusive real estate listing

contract. He further testified that to have such a generally

agreed-upon provision within the real estate industry would run

afoul of the United States Fair Trade Commission's jurisdiction

of, and prosecution for, "price-fixing." For the same reasons,

there is no established average, usual, or industry standard for

the conditional early release of a homeowner from a listing

contract.

12. Because no dollar amount for a cancellation fee had

been written into Paragraph Nine of the parties’ contract

herein, Mr. Van Slyke interpreted Paragraph Nine and Sub-

paragraph Six (a) together, to permit Respondent broker the

latitude to require payment by the sellers of six percent of

Petitioners’/sellers’ asking price as a condition of early

termination of the contract upon their unilateral request.

13. Respondent submitted in evidence a similar contract

dated March 5, 2007, between Respondent and a different

homeowner for the duration of one year (12 months) from that

date. 2/ Petitioners presented no other contracts between any

seller and Respondent or, for that matter, between any seller

and any other realtor which specified a duration of less than

eight months. 3/

14. It is accepted that a different realtor with whom

Petitioners contracted in November 2007, after their eight-

month contract with Respondent had expired, filled-in “$500.00”

in the equivalent Paragraph Nine, but there was no competent,

credible evidence that this replacement realtor, or any other

realtor for that matter, had a similar arrangement with any

other sellers.

15. Petitioners and Ms. Hobbs agreed that Ms. Hobbs would

not submit Petitioners' sellers' contract on their existing home

to Respondent until she got an acceptance on their offer as

buyers for a new house on Rudolph Court. Accordingly, the

listing contract for the Cressida Circle house in which

Petitioners were living, and which contained their furniture and

photographs, was not submitted to Respondent at least until

January 31, 2007. Accordingly, Respondent could not begin

attempts to sell Petitioners' existing home until the next day,

February 1, 2007.

16. There are 185 realty firms in Hernando County. There

are four printed real property advertising booklets which are

circulated in Hernando and surrounding counties. Each booklet

is published every 30 days. The lead time to get a photographic

advertisement of a newly listed property into each publication

is three weeks. Before a photo can be published, it has to be

made.

17. On or about February 1, 2007, Ms. Hobbs photographed

Petitioners’ Cressida Circle house for purposes of advertising

it via websites, flyers, real estate advertising booklets, and

newspapers, and placed Respondent’s "for sale" sign and lock-box

on Petitioners' lawn.

18. Respondent had admitted in evidence the first

advertisements she paid for in three printed real estate

booklets ("Nature Coast", March 22-April 18, 2007; "Real Estate

News", April 2007; and "Sunshine Living", April 2007). Each

advertisement contained a photograph and information extolling

the Cressida Circle house. Each advertisement correctly quoted

Petitioners' asking price of $296,900.00.

19. Additionally, Respondent had admitted in evidence

documentation showing that from March 22, 2007, until the end of

her exclusive listing on September 30, 2007, she had advertised

Petitioners' property repeatedly and/or consistently via

newspaper, real estate advertising booklets, and/or Multiple

Listing Services (MLS) websites and commercial websites.

20. Both parties agree that Ms. Hobbs' first printed flyer

stated an incomplete, and thus incorrect, selling price of

"$296,90.", and that this flyer was circulated and/or placed in

the lock-box tube on the "for sale" sign about February 1, 2007.

(See Finding of Fact 17.) Despite Petitioners' claim that this

was "inferior marketing," it is probable that most serious home

seekers would have figured out how to correctly read the price

as "$296,900.00", or would have asked what price was intended

when phoning for an appointment to view the house. While

Ms. Hobbs' flyer was never corrected, Respondent Montgomery had

other, correct flyers printed, and she placed and circulated

those correct flyers for the remainder of the contract period.

21. It is customary for Exit Realty to conduct a "caravan"

shortly after a contract is signed. A "caravan" involves

Ms. Montgomery and all the salespeople she can round-up in her

office. The entire team tours a seller's home, making notes,

and then returns to Respondent's office, where a list of repairs

and upgrades is compiled with each salesperson's in-put. Then

the team brain-storms to develop selling techniques customized

to each property listed.

22. On February 7, 2007, the day before Caravan Day, an

independent contractor with Exit Realty showed Petitioners' home

to a potential buyer. Through Ms. Hobbs, the salesperson

relayed to Mr. Smith that the potential buyer had remarked that

the house's exterior paint was unacceptable. Mr. Smith told

Ms. Hobbs that he would paint the house at his own expense if

the potential buyer would make an offer, but no offer was

forthcoming.

23. Respondent's caravan viewed Petitioners' home on

February 8, 2007. As a result, a list of selling suggestions

was relayed by Ms. Hobbs to Mr. Smith.

24. A day or so after Caravan Day, Mr. Smith was told by

Ms. Hobbs that to best present and sell Petitioners’ home,

Petitioners needed to deal with dirt and dust in an exhaust fan;

replace a broken tile in a bathroom, and refinish their swimming

pool. Mr. Smith also acknowledged that on the same date, or

minimally later, he was told by Ms. Hobbs to remove Petitioners'

large family photographs over the sliding doors opening from the

house's vaulted-ceiling living room onto its screened patio and

pool area. According to Ms. Montgomery, she had advised

Ms. Hobbs to relay this information and additional advice,

including the information that Petitioners’ house would sell

better if Petitioners moved out or reduced the amount of

furniture in the living room, so that potential buyers could

visualize their own belongings in the room. It was not proven

one way or the other whether Ms. Hobbs relayed the "move out" or

"remove furniture" suggestions at that time.

25. When Mr. Smith pressed Ms. Hobbs as to why the family

photographs had to be removed, she referred him to

Ms. Montgomery, who "could better explain." Mr. Smith

acknowledged that Ms. Hobbs never said anything about race or

discrimination.

26. Mr. Smith testified to three versions of why he

concluded that Ms. Montgomery was discriminating against

Petitioners on the basis of race: first, because neither

Ms. Hobbs nor Ms. Montgomery mentioned the bi-racial family

photographs until after Ms. Montgomery had first seen them on

Caravan Day, and Ms. Hobbs could not explain to his satisfaction

the reason for removing the photographs; second, because

Ms. Montgomery did not immediately return his phone calls; and

third, because when Ms. Montgomery did return his phone calls,

she mentioned the photographs over the sliding doors repeatedly

among several other upgrades she encouraged him to accomplish,

all of which upgrades Ms. Hobbs apparently had not passed along

to him.

27. Ms. Montgomery can suggest and encourage her

independent contractors to pass on certain information to

sellers and buyers and to pursue sales in certain ways, but she

has no way to compel them.

28. Mr. Smith conceded that at no time did Ms. Montgomery

ever mention race or make any overt discriminatory statement to

him and that she responded to all his letters, even though she

did not agree with him in those letters. See , infra .

29. Petitioners also agree that at no time did

Ms. Montgomery or anyone associated with Exit Realty suggest

that Petitioners remove tastefully framed bi-racial family

photographs displayed on a bedroom dresser.

30. Ms. Montgomery credibly testified that successfully

"staging" a home for sale usually requires removing as much

furniture as possible and all of the personalization, such as

awards and photographs hung on the walls of all rooms.

Mrs. Smith acknowledged that she was familiar with this concept

from print literature and television. Ms. Montgomery

demonstrated, using a photograph she had taken of the house

without the wall photographs in place, that anything mounted

above the living room's sliding glass doors had the potential to

draw a shopper's eye away from the luxuriant sweep of the

vaulted-ceiling and away from the scope and sweep of the view,

through the sliding glass doors, of Petitioners' pool and patio.

31. Petitioners accomplished the three repair suggestions

(exhaust fan; tile; and swimming pool) that Ms. Hobbs passed on

to them, but they remained in the Cressida Circle house and did

not remove their furniture or the photographs above the sliding

glass doors.

32. In early March, Petitioners requested a reduction in

the six percent commission specified in their Cressida Circle

contract with Respondent. Respondent declined to consider

reducing her commission until someone made an offer to buy.

33. Petitioners closed on their new home on Rudolph Court

on March 30, 2007. The Rudolph Court sale and closing in which

Petitioners were buyers, was also handled by Hobbs, Montgomery,

and Exit Realty. Petitioners do not claim that any racial

discrimination by anybody occurred in the process of buying

their new home.

34. Closing on the Rudolph Court house left Petitioners

with two houses to maintain and at least two (possibly four)

mortgages to pay. Petitioners became concerned that no one had

made an offer on their Cressida Circle house.

35. Mr. Smith made several telephone calls to

Ms. Montgomery. She did not immediately return those calls.

When she did return Mr. Smith's phone calls, Ms. Montgomery

explained to him that the Cressida Circle house needed to be

"staged" better, including removing furniture and the

photographs over the patio doors.

36. Ms. Montgomery wrote Mr. Smith on April 5, 2007, to

memorialize all of their April 4, 2007, conversation, giving him

clear advice that a “lease/purchase procedure,” as opposed to a

“lease/option to buy” arrangement which he had proposed, would

be a better and safer solution for his needs. She also advised

him that no home in his sub-development had been sold in the

last seven months, and emphatically advised him to lower his

asking price to $269,900.00, due to the competition of other

similar homes for sale.

37. It is undisputed that the parties' contract was signed

during a "housing market slump" and that the housing market

continued to decline during the entire term of the parties'

contract.

38. On April 9, 2007, Mr. Smith wrote Ms. Montgomery,

making no reference to race or discrimination, but complaining

about Exit Realty Shoppe showing his home only one time,

requesting to void their contract, and closing with:

If necessary we will follow thru [sic.] with

a complaint to the Florida Real-estate

[sic.] Commission in Tallahassee.

39. Not unreasonably, Ms. Montgomery regarded Petitioners'

foregoing letter as a threat. She responded by registered mail

on April 10, 2007, setting out in detail all she had done and

describing the costs she had incurred as of that date to sell

the Cressida Circle house. She enclosed three printed real

estate publications advertising Petitioner's house (see Finding

of Fact 18); proof that the home was being advertised with the

correct price April 7-13, 2007, in the St. Petersburg Times;

proof that she had registered the house with the correct price

on the MLS; and proof that the house was being shown in color on

Exit Realty's three websites and on Ms. Hobbs' personal website

with the correct price. She also reminded Mr. Smith that she

had, earlier in the week, suggested that Petitioners reduce

their asking price by $30,000.00, to $269,900.00. She also

advised him, and included information showing, that as of that

writing, there were 11 comparable listings in his sub-

development, nine of which were listed at less than Petitioners'

asking price.

40. Evidence of all of Respondent's foregoing April 10,

2007, assertions was introduced in evidence by Respondent at the

final hearing. 4/

41. Respondent's April 10, 2007, letter also explained

"staging," and offered to conditionally release Petitioners from

their contract for six percent of their $296,900.00 asking

price, as per the contract's Paragraph Six (a).

42. Ms. Montgomery's April 10, 2007, unopened letter and

supporting documentation were returned to her by the U.S. Mail

as "unclaimed." Because Petitioners were still residing at the

Cressida Circle address and because the post office did not mark

the envelope "refused," it is probable that Petitioners simply

did not go to the post office to sign-for, and pick up,

Ms. Montgomery's material. However, Petitioners must have

received these items because Ms. Montgomery also had the same

materials delivered by messenger to Mrs. Smith’s office.

43. Also, on April 11, 2007, Mr. Smith wrote,

acknowledging receipt of Respondent's April 10, 2007, letter,

refusing to reduce the asking price, and advising Ms. Montgomery

that:

I feel that it will be my responsibility to

express this dissatisfaction in anyway [sic]

I can, to as many people as I can. . . . I

will do what ever [sic.] I can do to be

released from our agreement.

He further threatened to contact "different government agencies"

to report what he described as very poor service, but he did not

mention race or discrimination.

44. On or about April 19, 2007, Mr. Smith filed a

complaint against Respondent dated April 16, 2007, with the

local Better Business Bureau (BBB). His complaint alleged lack

of service. Nowhere in his complaint is race or discrimination

mentioned. The material in evidence shows that the BBB

contacted Ms. Montgomery about the complaint, but marked it

"information only," and did not pursue it at that time. 5 /

45. In early April 2007, Mr. Smith telephoned Ed Carr,

Executive Director of the Hernando County Association of

Realtors (HCAR). Mr. Smith said nothing to Mr. Carr about

racial discrimination at that point, but said only that he

wanted to get out of the listing contract with Respondent.

46. On or about April 23, 2007, Petitioners filed a formal

complaint with HCAR. HCAR's Grievance Committee met May 7,

2007, and, apparently in the mode of a probable cause panel,

referred the case for a full evidentiary hearing. On June 29,

2007, the case was first noticed for hearing by HCAR.

47. Petitioners’ HCAR complaint is not in evidence, and

the evidence herein falls short of enabling the undersigned to

determine whether the complaint before HCAR involved racial

discrimination. However, it is certain that Ms. Montgomery

perceived it that way. The HCAR hearing was first scheduled to

occur August 28, 2007, but it was re-scheduled. The actual date

the hearing took place and the date HCAR issued its decision are

not clear in this record, but the hearing was on or after

October 23, 2007. Mr. Van Slyke presided over the HCAR hearing.

The HCAR decision resulted in a determination that Respondent

had not violated professional real estate ethics.

48. Despite Petitioners’ expressed dissatisfaction with

HCAR's result and their claims that HCAR’s panel was prejudiced

in Respondent's favor and that Respondent manipulated timing of

the hearing, the HCAR process, and its deciding body, there is

no competent, credible, or compelling evidence herein

demonstrating the validity of such accusations or demonstrating

that HCAR’s decision in Respondent’s favor was based on racial

discrimination or constituted a cover-up for racial

discrimination. That said, HCAR's decision is not binding here.

49. Ms. Montgomery testified credibly that she had refused

to acquiesce in any overt action, such as voluntarily letting

Petitioners out of their contract without paying her commission,

because to do so might make her appear to be prejudiced. Even

more credible is her testimony that she did not want to let

Petitioners out of their listing contract unless they paid her

commission and costs, as provided in the contract, because she

had already expended considerable time and money on Petitioners'

behalf.

50. Respondent continued to advertise the Cressida Circle

house until the end of the eight-month contract ( see Findings of

Fact 19 and 40), despite Petitioners’ refusal to allow

Respondent to reduce the asking price. Unfortunately, between

June 14, and July 1, 2007, Respondent advertised an incorrect

and lower asking price of $269,900.000, in "Nature Coast."

Respondent did not know how the error occurred. The advertising

for this two-week period was, as always, at Respondent's

expense, and the asking price was corrected in the next issue.

51. While signed-up with Respondent, Mrs. Smith took

material prepared by Respondent for marketing the Cressida

Circle property, made minor adjustments to it, and placed it on

her own and others' websites. The material she posted sometimes

carried Ms. Hobbs' contact information. Other times,

Mrs. Smith's internet advertisements showed a reduced price for

contacting Petitioners. This placed Petitioners in direct

competition with Respondent's advertisements in which

Petitioners required that Respondent maintain the original

$296,900.00, asking price. In so-doing, Petitioners may have

offended a clause of the listing contract. In placing this

information on MLS websites outside of Respondent’s general

geographic area, Petitioners may have exposed Respondent to

liability in the professional real estate community. Respondent

advised Petitioners of these problems, but there is no clear

evidence that Respondent intervened to prevent Petitioners'

behavior.

52. Petitioners moved into their new, Rudolph Court house

in early June 2007. When they moved, their furniture and

photographs went with them.

53. Photographic evidence shows that Petitioners allowed

the Cressida Circle house to deteriorate after they moved to

Rudolph Court, thereby rendering the sale property less

desirable to potential buyers.

54. Petitioners each testified credibly that between

January 31, 2007, and the time they moved out, probably about

June 6, 2007, Respondent gave them no advance notices that a

potential buyer was coming to view the Cressida Circle house, as

had been agreed upon when the house was listed.

55. The sign-in sheet left in Petitioners’ sale house

demonstrated that Exit Realty showed the house once, on

August 21, 2007. Petitioners acknowledged that the home was

also shown another time on the day before Caravan Day. ( See

Finding of Fact 22.)

56. Respondent produced her lock-box's recorded printout

showing that on February 1, 2007, Ms. Hobbs entered the house.

( See Finding of Fact 17.) It shows also that Ms Hobbs entered

again on June 7, 2007. On July 17, a ReMax salesman entered.

On July 27, Respondent entered. On July 31, an ERA saleswoman

entered. On August 10, and 11, Respondent entered. On August

21, another Exit Realty saleswoman entered. ( See Finding of

Fact 55.) On September 20, Clara Ward, an independent

contractor with Exit Realty entered. ( See Finding of Fact 58.)

On October 4, 2007, Ms. Hobbs entered.

57. Respondent acknowledged that on one or two of the

foregoing occasions, she entered the sale house, not to show the

property to prospective buyers, but to take photographs for the

HCAR hearing ( see Finding of Fact 47), but there is no credible

evidence to support Petitioners' conjecture that the other

visits by Ms. Montgomery and by all other real estate

salespersons were not for the purposes of showing the house or

for some other legitimate sales purpose.

58. Clara Ward testified that she showed the house to a

legitimate potential buyer about a month before Respondent's

listing ended, and again in approximately December 2007, after

Petitioners had listed it with another realtor at the reduced

price of $256,900.00.

59. Mr. Smith admitted that he never asked Ms. Hobbs for

an "open house," until June 2007.

60. The contract does not require an "open house."

Ms. Montgomery testified credibly and without refutation that

she did not schedule an "open house" for Petitioners because, in

the past, "open houses" have not resulted in sales for her. She

rarely, if ever, utilizes them for any property.

61. Mr. Smith admitted that Petitioners had no evidence to

support their allegation that every other home that Exit Realty

signed in the same period was shown more than once. Petitioners

also presented no evidence that every other home, besides the

Cressida Circle home, which Exit Realty signed in the same

period held even one open house. 6/

62. In November 2007, Petitioners signed with another

realtor who marketed the house at $269,900.00, which was

$27,000.00 less than the only figure at which Petitioners would

permit Respondent to market the house. If and when there was a

sale is unclear.

CONCLUSIONS OF LAW

63. The Division of Administrative Hearings has

jurisdiction over the parties and subject matter of this cause,

pursuant to Sections 120.57(1), 120.569, 760.20, and 760.37,

Florida Statutes.

64. Section 760.23, Florida Statutes, "Discrimination in

the sale or rental of housing and other prohibited practices,"

provides:

(2) It is unlawful to discriminate against

any person in the terms, conditions, or

privileges of sale or rental of a dwelling,

or in the provision of services or

facilities in connection therewith, because

of race, color, national origin, sex,

handicap, familial status, or religion.

65. Section 760.24, Florida Statutes, "Discrimination in

the provision of brokerage services," provides:

It is unlawful to deny any person access to,

or membership or participation in, any

multiple-listing service, real estate

brokers' organization, or other service,

organization, or facility relating to the

business of selling or renting dwellings, or

to discriminate against him or her in the

terms or conditions of such access,

membership, or participation, on account of

race, color, national origin, sex, handicap,

familial status, or religion.

66. Section 760.25, Florida Statutes, "Discrimination in

the financing of housing or in residential real estate

transactions," provides:

(2)(a) It is unlawful for any person or

entity whose business includes engaging in

residential real estate transactions to

discriminate against any person in making

available such a transaction, or in the

terms or conditions of such a transaction,

because of race, color, national origin,

sex, handicap, familial status, or religion.

(b) As used in this subsection, the

term "residential real estate transaction"

means any of the following:

2. The selling, brokering, or

appraising of residential real property.

67. Assuming that Section 760.29, Florida Statutes,

governing "exclusions," does not bar this case entirely, the

burden of proof herein is upon Petitioners. See § 760.34(5),

Fla. Stat.

68. Petitioner has the burden of establishing facts to

prove a prima facie case of discrimination. McCloud v. Jones ,

DOAH Case No. 98-1925 (RO: 8/25/1998; FO: 5/17/99); U.S.

Department of Housing and Urban Development v. Blackwell , 908 F.

2d 864 (11th Cir. 1990).

69. The three-part "burden of proof" pattern developed in

McDonnell Douglas Corp. v. Green , 411 U.S. 792, 93 S. Ct. 1817

(1973), applies herein. Under that test, Petitioners must first

prove, by a preponderance of the evidence, that discrimination

has occurred. If the Respondent then articulates some

legitimate, non-discriminatory reason for its action, the burden

shifts back to Petitioners to prove that the reason provided by

Respondent is merely pre-textual and not bona fide . See Pollitt

v. Bramel , 669 F. Supp. 172, 175 (S. D. Ohio 1987).

70. As a bi-racial family, Petitioners are members of a

protected class, but Petitioners have not even presented a prima

facie case of discrimination. Even had they done so,

Respondent’s evidence overwhelmingly refutes it.

71. First, Petitioners are not qualified real estate

brokers or agents and did not, as such, attempt to access

membership or participation in any multiple listing service,

real estate brokers' organization, other service organization or

facility relating to the business of selling or renting

dwellings. To the extent that Respondent complained about

Petitioners' illicitly trying to use such entities/programs,

( see Finding of Fact 51), there still is no evidence that

Respondent in any way denied Petitioners membership or

participation in such entities/programs.

72. In regard to the allegations of discrimination by mis-

feasance, mal-feasance, or non-feasance, in Respondent's

marketing of Petitioners' house, there is not even a prima facie

case. Neutral business decisions and honest mistakes are not

the subject of Florida's Fair Housing Law.

73. Mr. Van Slyke's testimony is expert and compels the

conclusion that there was nothing sinister in Respondent's

signing Petitioners to an eight-month exclusive listing

contract, instead of a six-month contract, or in Respondent's

requesting her full commission for early termination of their

contract at Petitioners’ unilateral request. Petitioners had

input to the contract's terms and voluntarily entered into it

after consulting two other realtors.

74. Ms. Hobbs’ early pricing mistake on the initial flyers

was rationally explained and not demonstrated to be either

Respondent’s fault nor discriminatory. Respondent corrected the

price on subsequent flyers. The pricing mistake in the June 14-

July 1, 2007, "Nature Coast" advertisement was not demonstrated

to be Respondent's doing, as opposed to a publisher's

typographical error. It also was not shown to be either

deliberate nor discriminatory.

75. The listing period herein occurred within a larger

period of a rapidly declining housing market. Respondent urged

Petitioners to cut their price so as to be competitive under

worsening circumstances, and Petitioners declined to heed her

advice. Against this undisputed evidence, lies Petitioners'

mere conjecture that Respondent was not trying to sell

Petitioners' home due to animus against their bi-racial family.

76. The contract did not require an open house.

Respondent's decision to not hold an open house was a simple

business judgment call. Petitioners presented no evidence that

Respondent held open houses for all her Caucasian or single-race

clients.

77. There is no evidence that Respondent practiced any

disparate treatment of Petitioners, and certainly, no nexus to

race was demonstrated on any issue.

78. Moreover, the absence of any racial animus was

affirmatively demonstrated by Respondent's not asking

Petitioners to remove the bi-racial family photographs from

their bedroom. The undisputed evidence is that the only place

Respondent asked Petitioners to modify with regard to their bi-

racial photographs was over the sliding glass doors in their

living room. This fact renders very credible Respondent's

testimony that the only purpose of her request concerning the

living room pictures was for the non-discriminatory purpose of

favorably displaying the indoor vaulted-ceiling and the patio-

pool view. While decorating preferences are a matter of

individual taste, Respondent's preferences are as valid as

anyone else's and do not automatically establish bias, animus,

or discrimination on the basis of race. More to the point,

however, Respondent's "de-clutter" concept of staging

unobstructed views and de-personalizing the walls of a sale home

are acknowledged trends in the real estate sales profession.

79. No discriminatory intent or effect was established,

but assuming arguendo that it was, it is contrary to common

sense to believe that Respondent would ask Petitioners to reduce

their price, thereby reducing her commission, in an effort to

somehow hurt them because they would not remove bi-racial

photographs from one room, while Respondent made no request that

Petitioners remove bi-racial photographs from the other room.

There also was affirmative evidence that there was no delay and

Petitioner perceived no animus when Respondent, Ms. Hobbs, and

Exit Realty sold Petitioners their new house on Rudolph Court.

80. Petitioners have not borne their burden of proof.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of

Law, it is

RECOMMENDED that the Florida Commission on Human Relations

enter a final order dismissing the Complaint and the Petition

for Relief.

DONE AND ENTERED this 19th day of September, 2008, in

Tallahassee, Leon County, Florida.

S

___________________________________

ELLA JANE P. DAVIS

Administrative Law Judge

Division of Administrative Hearings

The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-3060

[phone] SUNCOM 278-9675

Fax Filing [phone]

www.doah.state.fl.us

Filed with the Clerk of the

Division of Administrative Hearings

this 19th day of September, 2008.

ENDNOTES

1/ Petitioner changed this claim in their Proposed Recommended

Order, stating that Respondent only showed the house once in the

first six months of the eight months' contract.

2/ Petitioners submit that this March 5, 2007, 12 months'

contract cannot be considered or is non-probative because it

came into existence after they complained about Respondent to

the Better Business Bureau (BBB) and the Hernando County

Association of Realtors (HCAR), but Petitioners produced no

evidence of fabrication or collusion, and this contract is

credible and probative. Moreover, the March 5, 2007, date on

the contract actually pre-dates the parties' written

correspondence, beginning April 5, 2007, Petitioners' April 16,

2007, BBB complaint; and Petitioners' April 23, 2007, complaint

to HCAR. ( See Findings of Fact 36, 44 and 46.)

3/ Mr. Smith testified that he was "told" by other realtors

that the average listing contract was only six months long.

This is uncorroborated hearsay which cannot be relied upon for

Findings of Fact. See § 120.57(1)(c), Florida Statutes.

4/ Petitioners assert that these real estate publications were

only published after they began to complain about poor service

and asked to be released from their contract, but clearly

Respondent had invested effort, expertise, and expense for these

ads prior to their actual publication.

Petitioners further argue that none of Respondent's efforts

should "count" because Mr. Smith had already complained to

either BBB or HCAR before April 1, 2007. Petitioner's position

on this is specious, due to the chronology substantiated by the

evidence and found as fact. ( See Finding of Fact 18 and n. 2.)

5/ Petitioners correctly point out that Ms. Montgomery’s

testimony that she had to negotiate with BBB to not oust Exit

Realty Shoppe from that organization until BBB reviewed the

result of Petitioners’ subsequent HCAR complaint ( see Finding of

Fact 46) is inconsistent with the date on the BBB exhibit.

However, her inconsistency or confusion on this point is

reasonable and immaterial, given the multiple sequential

complaints raised by Petitioners before the BBB, HCAR, HUD,

Florida Commission on Human Relations, and Division of

Administrative Hearings.

6/ Obviously, since Respondent claimed to not give open houses

for any of her clients, she could not show that she had not

given open houses. Throughout the hearing, Mr. Smith seemed to

believe that it was up to Respondent to present evidence to

disprove Petitioners' double negatives or unsubstantiated

claims, saying his several allegations were based on "the fact

that you [Respondent] have nothing to show me." This is not the

burden of proof herein. See Conclusions of Law.

COPIES FURNISHED:

Donald and Miranda Smith

1047 Rudolph Court

Spring Hill, Florida 34609

David H. Sturgil,

As Qualified Representative,

c/o Exit Realty/Realty Shoppe

5300 Spring Hill Drive

Spring Hill, Florida 34606

Denise Crawford, Agency Clerk

Florida Commission on Human Relations

2009 Apalachee Parkway, Suite 100

Tallahassee, Florida 32301

Larry Kranert, Esquire

Florida Commission on Human Relations

2009 Apalachee Parkway, Suite 100

Tallahassee, Florida 32301

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

All parties have the right to submit written exceptions within

15 days from the date of this Recommended Order. Any exceptions

to this Recommended Order should be filed with the agency that

will issue the final order in this case.