09-004806 Zoe Gail Mclendon vs. Board Of County Commissioners, Department Of Development Services, Ship Program Status: Closed Recommended Order on Monday, December 7, 2009.

Summary: Petitioner failed to establish that Respondent discriminated against her based on race in providing home repair assistance.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

ZOE GAIL MCLENDON, )

)

Petitioner, )

)

vs. ) Case No. 09-4806

)

BOARD OF COUNTY COMMISSIONERS, )

DEPARTMENT OF DEVELOPMENT )

SERVICES, SHIP PROGRAM, )

)

Respondent. )

)

RECOMMENDED ORDER

A final hearing was conducted in this case on November 10,

2009, in Inverness, Florida, before James H. Peterson, III,

Administrative Law Judge with the Division of Administrative

Hearings.

APPEARANCES

For Petitioner: Zoe Gail McLendon, pro se

1529 W. J. Williams Lane

Dunellon, Florida 34434

For Respondent: Gregory Robert Brennan, Esquire

Citrus County Attorney’s Office

110 North Apopka Avenue

Inverness, Florida 34450

STATEMENT OF THE ISSUE

Whether Respondent discriminated against Petitioner based

upon Petitioner’s race in providing home repair assistance to

Petitioner under Respondent’s State Housing Initiatives

Partnership (SHIP) Program.

PRELIMINARY STATEMENT

On June 12, 2009, Petitioner filed a housing discrimination

complaint dated June 10, 2009, with the Florida Commission on

Human Relations (Commission). The complaint was assigned FCHR

Number 2009H0272 (Complaint). The Complaint contained the

following “brief and concise statement” of the alleged

violation:

Complainant belongs to a class of persons

whom the Act protects from unlawful

discrimination because of her race (black).

Complainant alleged Respondent hired a

contractor who did substandard work.

Complainant also alleged that Respondent

only sent this contractor into majority

African American neighborhoods. Complainant

alleged once she received an appointment she

was informed they would only fix and replace

a sink. Complainant alleged that contractor

stated they would not repair anything that

was done the previous time, which was ten

years ago. Complainant alleged that there

are many problems with her home and the

problems stem from the previous repairs that

were done by the contractor. Complainant

alleged Respondent has discriminated against

her based on her race, in violation of the

Fair Housing Act.

On August 10, 2009, following completion of its

investigation of Petitioner’s allegations of housing

discrimination, the Commission issued a Determination of No

Cause: finding that there is not reasonable cause to believe

that a discriminatory housing practice occurred. The

Commission’s Determination notified Petitioner of her right to

file a Petition for Relief for a formal administrative

proceeding on her Complaint within 30 days.

On September 2, 2009, Petitioner filed with the Commission

a Petition for Relief reiterating the allegations of her

Complaint and alleging as disputed issues of material fact:

Respondent uses discriminatory practices to

determine how funds under the Ship Program

are provided. Don L. Enterprises [ 1 /] is

allowed only into Black communities where

they do sub-grade work. When someone

complains about the quality of work that was

performed, they are then refused help. When

they try to apply for the Program to fix the

problems created by the substandard job

performed, they receive no help.

The Commission filed a Transmittal of Petition with the

Division of Administrative Hearings (DOAH) for the assignment of

an administrative law judge to conduct a formal administrative

hearing on Petitioner’s Petition for Relief.

At the formal hearing in this matter held on November 10,

2009, Petitioner testified on her own behalf and offered one

exhibit marked “Exhibit P-1” into evidence. Exhibit P-1 was not

accepted into evidence because it had not been disclosed to

Respondent prior to the final hearing as required in the Order

of Pre-Hearing Instructions entered in this cause on October 5,

2009. Petitioner, however, was permitted to use Exhibit P-1 to

refresh her recollection and to proffer a copy of Exhibit P-1

into the record.

Respondent presented the testimony of one witness and

offered eleven pre-marked exhibits which were received into

objection.

The evidentiary portion of the hearing concluded on

November 10, 2009, and the parties were given until November 20,

2009, to file their respective Proposed Recommended Orders.

Respondent filed its Proposed Recommended Order on November 13,

2009. Petitioner filed her Proposed Recommended Order on

November 20, 2009.

FINDINGS OF FACT

1. Petitioner, Zoe McLendon, is an African-American.

2. Respondent, Citrus County’s Department of Development

Services, is the department of Citrus County responsible for

administering money received from the SHIP Program.

3. Under the SHIP Program, Respondent administers

available construction funds to pay for repairs or replacements

in homes of applicants who qualify for the program.

4. In deciding whether claimed housing deficiencies

qualify for funds available under the SHIP Program for repairs

or replacements, Respondent applies criteria established under

Respondent’s Local Housing Assistance Plan.

5. Only certain housing deficiencies that threaten the

health or safety of applicants qualify for funding; SHIP funds

are not available for the provision of routine maintenance. In

addition, under Respondent’s Local Housing Assistance Plan,

recipients who have received home repairs under the SHIP Program

cannot reapply for SHIP Program repairs for a period of ten

years.

6. Respondent solicits bids and selects only licensed and

insured contractors who submit the lowest bids for construction

projects under the SHIP Program.

7. Contractors who are awarded bids under the SHIP Program

enter into separate contracts with the recipients of their

services, and it is the responsibility of recipients to address

any workmanship issues directly with the contractor.

8. In 1998, Petitioner’s residence qualified for a number

of repairs under the SHIP Program, including the replacement of

Petitioner’s roof, replacement of windows, the installation of a

new door, and water pipe repairs.

9. Donle Enterprises, Inc., was the successful bidder for

those repairs in 1998, and performed the work.

10. Petitioner testified that she was not happy with the

work done by Donle Enterprises, Inc., and that, in 1998, she

notified Respondent’s employees who worked in the SHIP Program

of her dissatisfaction with the quality of the work.

11. There is no evidence, however, that Petitioner

complained about discrimination at the time.

12. There is also no evidence that Petitioner ever

contacted Donle Enterprises, Inc., to complain about the work.

13. Almost ten years later, in May 2008, Petitioner

submitted another application for home repair assistance under

the SHIP Program and Respondent placed Petitioner’s name on a

waiting list.

14. Due to the length of the waiting list of applicants

before her, as well as the fact that Petitioner had received

assistance from Respondent less than ten years earlier,

Petitioner was not contacted until January 2009 for intake to

complete her home repair assistance application.

15. Respondent set up an appointment with Petitioner for

January 7, 2009, which Petitioner failed to keep. The

appointment was rescheduled for January 28, 2009, on which date

Petitioner met with Respondent’s Housing Coordinator, Ms. Lynn

Clark, who explained the terms and conditions of the home repair

assistance program to Petitioner. On that same date, Petitioner

signed acknowledgements of those terms and conditions.

16. Included in the terms and conditions acknowledged by

Petitioner was the following language contained in a document

entitled, “Information about Rehabilitation Work,” signed by

Petitioner on January 28, 2009:

Rehabilitation contracts are awarded to the

contractor with the lowest bid. . . . our

purpose in providing repairs to your home is

not to increase the value of your home or

improve your equity position, but to provide

repairs that promote the structural

integrity of your home. . . .

* * *

The primary purposes of our Rehabilitation

program are:

To abate any health and safety problems in

your home.

To provide safe electrical and mechanical

systems.

To stop weather penetration to make your

home more energy efficient.

To improve the general condition of your

home’s structure.

Interior cosmetic type work may not be

addressed on your project. . . . In any

case, funds available for cosmetics are very

limited and must be combined with the

rehabilitation approved.

* * *

The work performed is an agreement between

you, the homeowner, and the contractor who

receives the award. Any questions or

concerns should be addressed with the

contractor. (Emphasis in original)

17. Petitioner was further advised in a letter from the

housing accountant for Respondent’s Division of Housing Services

dated February 5, 2009, that in order to complete Petitioner’s

application for housing assistance, Petitioner would need to

submit a copy of her 2008 tax return, and that Petitioner’s

daughter, who was living with Petitioner at the time, would need

to submit affidavits and other paperwork.

18. Petitioner failed to respond to the February 5, 2009,

letter and the housing accountant sent another letter to

Petitioner dated February 16, 2009, advising Petitioner that if

the required paperwork was not received by March 3, 2009,

Respondent would consider that Petitioner was no longer

interested in pursuing her application for housing assistance.

Petitioner finally provided the requested documentation on

March 5, 2009. Thereafter, on March 25, 2009, Ms. Clark and

Housing Rehabilitation Specialist Michael Appino, both of whom

hold housing rehabilitation inspector certifications, conducted

an inspection of Petitioner’s home.

19. During the inspection, Mr. Appino turned on

Petitioner’s air conditioner, which Petitioner claimed was not

working, and immediately it began cooling the home. Both

Ms. Clark and Mr. Appino inspected the ceiling in the area where

Petitioner claimed the roof was leaking and noted that, while

there were small water stains on the ceiling, the stains were

small and dry, indicating that there were no active roof leaks.

20. Ms. Clark inspected a window which Petitioner advised

was not working and found that, although the window would not

stay open due to a maintenance issue, the window pane was not

broken, and the window was suitable for its main function in

keeping out the weather.

21. The only item that fell within the replace or repair

criteria established by Respondent’s Local Housing Assistance

Plan was a bathroom sink that had fallen off the wall.

Ms. Clark informed Petitioner at the time that Respondent would

be willing to pay for replacement of the sink. Petitioner

declined the offer on the grounds that she did not want to have

a lien placed against her residence and did not want to have to

wait another ten years to qualify for SHIP Program repairs.

22. On April 27, Respondent’s Housing Director, Joe

Monroe, wrote a letter to Petitioner offering to have her roof

inspected by a County building inspector. Petitioner did not

accept the offer, and on June 9, 2009, Mr. Monroe closed

Petitioner’s file.

23. In addition, at the final hearing, Petitioner

complained that water had leaked under her kitchen sink and

soaked the bottom of the cabinet below. In her testimony,

Ms. Clark explained that such water leakage was a maintenance

issue for which SHIP Program funds were unavailable. Ms. Clark

further explained that, although there were funds available

earlier in the year, due to funding cuts, SHIP Program funds are

not currently available for any repairs or replacements under

the SHIP Program administered by Respondent. Ms. Clark’s

testimony is credited.

24. In her Petition for Relief and her testimony at

hearing, Petitioner complained about discrimination by

Respondent in its selection of Donle Enterprises, Inc., to do

the work. According to Petitioner, Donle Enterprises provided

inferior work and was sent only into minority neighborhoods.

Other than Petitioner’s unsupported testimony to that effect,

Petitioner produced no evidence to support that allegation.

25. In addition, Petitioner failed to provide evidence

that Respondent’s actions in administering the SHIP Program, or

declining to perform maintenance not covered by the SHIP

Program, were discriminatory.

26. On the other hand, Respondent, through the testimony

of Ms. Clark and documentary evidence in the form of SHIP

Program tracing reports from 2000 through 2007, demonstrated

that Respondent regularly selects Donle Enterprises, Inc., as

the contractor for non-minority SHIP Program clients. Further,

Respondent provided evidence that Respondent offered and

declined SHIP Program services to Petitioner within the

parameters for administering the SHIP Program. Petitioner

failed to rebut this evidence.

CONCLUSIONS OF LAW

27. The Division of Administrative Hearings has

jurisdiction over the parties to and subject matter of this

proceeding. See §§ 120.569, 120.57(1), and 760.20-760.37, Fla.

Stat. (2009); see also Fla. Admin. Code R. 60Y-4.016 and 60Y-

8.001.

28. Florida’s Fair Housing Act (Act) is codified in

Sections 760.20 through 760.37, Florida Statutes (2008). 2 /

29. Among other things, the Act makes certain acts

“discriminatory housing practices” and gives the Commission the

authority, if it finds (following an administrative hearing

conducted by an administrative law judge) that a “discriminatory

housing practice” has occurred. If such a finding is made, the

Act further authorizes the Commission to issue an order

the effects of the practice, including quantifiable damages and

Stat.

30. The “discriminatory housing practices” prohibited by

the Act include those described in Section 760.23(2), Florida

Statutes, which provides:

(2) It is unlawful to discriminate against

any person in 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.

(Emphasis added.)

31. The language in Section 760.23(2), Florida Statutes,

is identical to the prohibition in 42 U.S.C. Section 3604(b), a

provision in the federal Fair Housing Act. Since Section

760.23(2), Florida Statutes, is patterned after a federal law on

the same subject, “it [should] be accorded the same construction

as in federal courts to the extent the construction is

harmonious with the spirit of the Florida legislation.” Cf .,

Winn-Dixie Stores, Inc. v. Reddick , 954 So. 2d 723, 728 ((Fla.

1st DCA 2007))(discussing the same rule of construction in the

context of the Florida Civil Rights Act of 1992, §§ 760.01-

760.11, Fla. Stat.), rev . denied , 967 So. 2d 198 (Fla. 2007).

32. Petitioner has the burden of establishing facts to

prove a prima facie case of discrimination. U.S. Department of

Housing and Urban Development v. Blackwell , 908 F.2d 864, 870

(11th Cir. 1990).

33. The three-part “burden of proof” pattern developed in

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

(1973), applies. Blackwell , 908 F.2d at 870. Under that test:

First, [Petitioner] has the burden of

proving a prima facie case of discrimination

by a preponderance of the evidence. Second,

if [Petitioner] sufficiently establishes a

prima facie case, the burden shifts to

[Respondent] to “articulate some legitimate,

nondiscriminatory reason” for its action.

Third, if [Respondent] satisfies this

burden, [Petitioner] has the opportunity to

prove by a preponderance that the legitimate

reasons asserted by [Respondent] are in fact

mere pretext.

Id. , citing Pollitt v. Bramel , 669 F. Supp. 172, 175 (S.D. Ohio

1987)(federal Fair Housing Act claim)(quoting McDonnell Douglas ,

411 U.S. at 802, 804, 93 S. Ct. at 1824, 1825).

34. In order to establish a prima facie case in this

matter, Petitioner must have shown by a preponderance of the

evidence 1) that she was a member of a racial minority; 2) that

she applied for and was qualified to receive services under the

SHIP Program; 3) that she was rejected from receiving the

services (or was offered only substandard services as alleged in

the Complaint); and 4) the services (or non-substandard

services) were available to non-minorities. See § 760.23(2),

Fla. Stat., supra ; cf. , Blackwell , 908 F.2d at 870 (listing

elements establishing a prima facie case under the federal Fair

Housing Act in the context of refusing to rent).

35. The evidence supported only the first two elements

required to establish a prima facie case. As an African-

American, Petitioner is a member of a racial minority. In

addition, the Petitioner showed that she applied for and was

qualified to receive services under the SHIP Program.

36. Petitioner failed, however, to provide evidence that

that she was rejected from the SHIP Program or that Respondent

otherwise discriminated against her in providing, or failing to

provide, home repair assistance to Petitioner under the SHIP

Program.

37. In addition, other than her speculation and belief,

Petitioner submitted no evidence to support her contention that

Donle Enterprises, Inc., was sent only into minority

neighborhoods. Mere speculation or self-serving belief on the

part of a complainant concerning motives of a respondent is

insufficient, standing alone, to establish a prima facie case of

intentional discrimination. See Lizardo v. Denny’s, Inc. , 270

than cite to their mistreatment and ask the court to conclude

that it must have been related to their race. This is not

sufficient.”).

38. In sum, Petitioner failed to present a prima facie

case. Failure to establish a prima facie case of race

discrimination ends the inquiry. Ratliff v. State , 666 So. 2d,

1008, 1013 n.6 (citations omitted).

39. Even if Petitioner had established a prima facie case,

Respondent’s evidence presented at the final hearing refuted

Petitioner’s argument that Respondent’s actions were

discriminatory. Respondent provided documentary and testimonial

evidence that, since at least 2000, 3 / Donle Enterprises, Inc.,

has been chosen as a contractor by Respondent for a number of

SHIP Program projects for non-minority residents. In addition,

Respondent provided evidence that it appropriately declined to

repair or replace items that were a matter of maintenance in

accordance with standards applicable to its administration of

the SHIP Program. Respondent also showed that Petitioner

rejected Respondent’s offers to replace Petitioner’s sink and

provide further inspection of Petitioner’s roof.

40. In sum, no discriminatory intent or effect was shown

and Petitioner failed to establish that Respondent discriminated

against Petitioner based upon Petitioner’s race in providing

home repair assistance to Petitioner under Respondent’s SHIP

Program.

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 Petition for

Relief.

DONE AND ENTERED this 7th day of December, 2009, in

Tallahassee, Leon County, Florida.

S

JAMES H. PETERSON, III

Administrative Law Judge

Division of Administrative Hearings

The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-3060

[phone]

Fax Filing [phone]

www.doah.state.fl.us

Filed with the Clerk of the

Division of Administrative Hearings

this 7th day of December, 2009.

ENDNOTES

1 / At the final hearing, it was established that the correct

spelling of the contractor is “Donle Enterprises, Inc.”

2 / Unless otherwise indicated, all references to the Florida

Statutes are to the 2008 version.

3 / In her proposed recommended order, Petitioner argued that

Respondent failed to provide evidence of the race of SHIP

Program recipients serviced by Donle Enterprises prior to 2000.

Any claim based upon evidence of Respondent’s practice prior to

the year 2000, however, would be time-barred because a person

who claims to have been injured by a “discriminatory housing

practice” must “file a complaint within 1 year after the alleged

discriminatory housing practice occurred.” § 760.34(2), Fla.

Stat. Moreover, Petitioner failed to provide any evidence of

such practice, either before or after 2000, other than her

unsupported allegations, so there was no evidence for Respondent

to rebut and Petitioner’s claim must fail for want of a prima

facie showing.

COPIES FURNISHED :

Gregory Robert Brennan, Esquire

Citrus County Attorney’s Office

110 North Apopka Avenue

Inverness, Florida 34450

Zoe Gail McLendon

1529 W. J. Williams Lane

Dunnellon, Florida 34434

Denise Crawford, Agency Clerk

Florida Commission on Human Relations

2009 Apalachee Parkway, Suite 100

Tallahassee, Florida 32301

Larry Kranert, General Counsel

Florida Commission on Human Relations

2009 Apalachee Parkway, Suite 100

Tallahassee, Florida 32301

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.