08-005244 Fabiola Heiblum vs. Carlton Bay Condominium Association Status: Closed Recommended Order on Friday, February 27, 2009.

Summary: Petitioner failed to prove that Respondent had unlawfully discriminated against her on the basis of national origin or ethnicity in violation of the Florida Fair Housing Act.

TATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

FABIOLA HEIBLUM, )

)

Petitioner, )

)

vs. ) Case No. 08-5244

)

CARLTON BAY CONDOMINIUM )

ASSOCIATION, INC. )

)

Respondent. )

)

RECOMMENDED ORDER

This case came before Administrative Law Judge John G.

Van Laningham for final hearing by video teleconference at sites

in Tallahassee and Miami, Florida, on January 12, 2009.

APPEARANCES

For Petitioner: Fabiola Heiblum, pro se

2821 Northeast 163 Street, Apt. 5C

North Miami Beach, Florida 33160

For Respondent: Charles F. Otto, Esquire

Straley & Otto, P.A.

2699 Stirling Road, Suite C-207

Hollywood, Florida 33312

STATEMENT OF THE ISSUE

The issue in this case is whether Respondent unlawfully

discriminated against Petitioner on the basis of her national

origin or ethnicity in violation of the Florida Fair Housing

Act.

PRELIMINARY STATEMENT

In a Housing Discrimination Complaint filed with the U.S.

Department of Housing and Urban Development in July 2008, and

subsequently investigated by the Florida Commission on Human

Relations, Petitioner Fabiola Heiblum, who is a Hispanic woman,

charged that Respondent Carlton Bay Condominium Association had

unlawfully discriminated against her by filing a Claim of Lien

against her property as a means of collecting an unpaid debt.

The Commission investigated Petitioner's claim and, on

September 17, 2008, issued a notice setting forth its

determination that reasonable cause did not exist to believe

that a discriminatory housing practice had occurred.

Thereafter, Petitioner filed a Petition for Relief, which the

Commission sent to the Division of Administrative Hearings on

October 20, 2008.

At the final hearing on January 12, 2009, Ms. Heiblum

testified on her own behalf and offered Petitioner's Exhibits 1

through 4, which were admitted in evidence. Respondent offered

Respondent's Exhibit 1 during its cross-examination of Ms.

Heiblum, and this document was received in evidence. Respondent

did not otherwise present a case.

No final hearing transcript was filed. Each party filed a

proposed recommended order before the established deadline,

which was January 22, 2009.

Unless otherwise indicated, citations to the Florida

Statutes refer to the 2008 Florida Statutes.

FINDINGS OF FACT

1. Petitioner Fabiola Heiblum ("Heiblum") is a Hispanic

woman who, at all times relevant to this action, has owned Unit

No. 5C in the Carlton Bay Condominium, which is located in North

Miami Beach, Florida. She purchased her unit in 2004 and has

resided there continuously since some time in 2005.

2. Respondent Carlton Bay Condominium Association, Inc.

("Association") is the entity responsible for operating and

managing the condominium property in which Heiblum's unit is

located.

3. In March 2008, the Association's Board of Directors

("Board") approved a special assessment, to be levied against

all unit owners, the proceeds of which would be used to pay

insurance premiums. Each owner was required to pay his share of

the special assessment in full on April 1, 2008, or,

alternatively, in three equal monthly installments, due on the

first of April, May, and June 2008, respectively. Heiblum's

share of this special assessment was $912.81.

4. At or around the same time, the Board also enacted a

procedure for collecting assessments, including the special

insurance assessment. According to this procedure, owners would

have a grace period of 15 days within which to make a required

payment. After that period, a delinquent owner would be

notified, in writing, that the failure to pay his balance due

within 15 days after the date of the notice would result in

referral of the matter to an attorney for collection. The

attorney, in that event, would file a Claim of Lien and send a

demand letter threatening to initiate a foreclosure proceeding

if the outstanding balance (together with costs and attorney's

fees) was not paid within 30 days after receipt of the demand.

This collection procedure applied to all unit owners.

5. Heiblum did not make any payment toward the special

assessment on April 1, 2008. She made no payment on May 1,

2008, either. (Heiblum concedes her obligation to pay the

special assessment and does not contend that the Association

failed to give proper notice regarding her default.) The

Association accordingly asked its attorney to file a Claim of

Lien against Unit No. 5C and take the legal steps necessary to

collect the unpaid debt. By letter dated May 8, 2008, the

Association's attorney notified Heiblum that a Claim of Lien

against her property had been recorded in the public records;

further, demand was made that she pay $1402.81 (the original

debt of $912.81 plus costs and attorney's fees) to avoid

foreclosure.

6. On or around May 10, 2008, Heiblum gave the Association

a check in the amount of $500, which the Association returned,

under cover of a letter dated May 16, 2008, because its attorney

was now in charge of collecting the overdue debt. Heiblum

eventually paid the special assessment in full, together with

costs and attorney's fees, thereby obviating the need for a

foreclosure suit.

7. Heiblum believes that the Association prosecuted its

claims for unpaid special assessments more aggressively against

Hispanics such as herself than persons of other national origins

or ethnicities, for which owners the Association allegedly

showed greater forbearance. Specifically, she believes that the

Association did not retain its attorney to undertake collection

efforts against non-Hispanic unit owners, sparing them the costs

and fees that she was compelled to pay.

8. There is, however, no competent, persuasive evidence in

the record, direct or circumstantial, upon which a finding of

any sort of unlawful housing discrimination could be made.

Ultimately, therefore, it is determined that the Association did

not commit any prohibited discriminatory act vis-à-vis Heiblum.

CONCLUSIONS OF LAW

9. The Division of Administrative Hearings has personal

and subject matter jurisdiction in this proceeding pursuant to

Sections 120.569, and 120.57(1), Florida Statutes.

10. Under the Florida Fair Housing Act ("FFHA"), it is

unlawful to discriminate in the sale or rental of housing.

Specifically, Section 760.23, Florida Statutes, prohibits the

following acts and practices (among others):

(1) It is unlawful to refuse to sell or

rent after the making of a bona fide offer,

to refuse to negotiate for the sale or

rental of, or otherwise to make unavailable

or deny a dwelling to any person because of

race, color, national origin, sex, handicap,

familial status, or religion.

(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.

11. As a matter of law, Heiblum's claims under Section

760.23(1) and Section 760.23(2), Florida Statutes, must fail

because neither of these provisions creates a cause of action

for a homeowner 1 ; rather, each protects (a) persons seeking to

purchase or lease a dwelling and (b) tenants. See Lawrence v.

Courtyards at Deerwood Ass'n , 318 F. Supp. 2d 1133, 1142-43

(S.D.Fla. 2004); Delawter-Gourlay v. Forest Lake Estates Civic

Ass'n of Port Richey, Inc. , 276 F. Supp. 2d 1222, 1229-34

(M.D.Fla. 2003), vacated because of settlement, 2003 U.S. Dist.

LEXIS 26080 (M.D.Fla. Sept. 16, 2003); see also Richards v.

Bono , 2005 U.S. Dist. LEXIS 43585, *11-*12 (M.D.Fla. April 25,

2005).

12. None of the allegedly discriminatory conduct of which

Heiblum complains adversely affected the availability of

housing, which is the value that Sections 760.23(1) and

760.23(2), Florida Statutes, are intended to safeguard. See ,

e.g. , Richards , 2005 U.S. Dist. LEXIS 43585 at *9. Moreover, in

essence Heiblum's dispute with the Association is a dispute with

her neighbors ——the other unit owners who, like herself, are the

Association's members. It is not the purpose of the FFHA to

serve as an all purpose civility code between neighbors. See

Lawrence , 318 F. Supp. 2d at 1143.

13. The Florida Commission on Human Relations ("FCHR"),

has taken a contrary view, declaring that "Section 762.23(2),

Florida Statutes, would clearly apply to homeowners . . . in a

condominium setting." See Kleinschmidt v. Three Horizons North

Condominium, Inc. , FCHR Case No. 25-91782H, Final Order No. 07-

013 (Feb. 15, 2007), at 2. FCHR based this conclusion on Honce

v. Vigil , 1 F.3d 1085 (10th Cir. 1993). In Honce , the court

examined the circumstances under which sexual harassment might

be actionable as a form of housing discrimination. The

plaintiff in the case, however, was a tenant , not a homeowner

like Heiblum. The court therefore had no reason to consider

(and did not address) whether, or under what circumstances, the

Federal Fair Housing Act reaches post- sale discrimination. On

the contrary, the court articulated the governing principle

involved in the case as follows: "The [Federal] Fair Housing

Act prohibits gender-based discrimination in the rental of a

dwelling, or in the provision of services in connection with a

rental ." Id. at 1088 (emphasis added). Honce is inapposite.

14. It is the undersigned's duty to apply the law

independently and recommend an outcome that comports with his

judgment, even if the agency is known to have a different view

of the matter. Consequently, the undersigned urges FCHR to

reconsider its position regarding the reach of Section

760.23(2), Florida Statutes, which according to its plain

language does not permit a homeowner to bring a post-sale

housing discrimination claim against her neighbors.

15. On the assumption that FCHR likely will consider the

merits of Heiblum's claim, the undersigned has made the

necessary findings of fact, which were stated above, and has

reached the necessary legal conclusions, as set forth below.

16. In cases involving a claim of housing discrimination,

the complainant has the initial burden of proving a prima facie

case of discrimination by a preponderance of the evidence.

Generally speaking, a prima facie case comprises circumstantial

evidence of discriminatory animus, such as proof that the

charged party treated persons outside of the protected class,

who were otherwise similarly situated, more favorably than the

complainant was treated. 2 Failure to establish a prima facie

case of discrimination ends the inquiry. See Ratliff v. State ,

666 So. 2d 1008, 1012 n.6 (Fla. 1st DCA), aff'd , 679 So. 2d 1183

(1996)( citing Arnold v. Burger Queen Systems , 509 So. 2d 958

(Fla. 2d DCA 1987)).

17. If, however, the complainant sufficiently establishes

a prima facie case, the burden then shifts to the charged party

to articulate some legitimate, nondiscriminatory reason for its

action. If the charged party satisfies this burden, then the

complainant must establish by a preponderance of the evidence

that the reason asserted by the charged party is, in fact,

merely a pretext for discrimination. See Massaro v. Mainlands

Section 1 & 2 Civic Ass'n, Inc. , 3 F.3d 1472, 1476 n.6 (11th

Cir. 1993), cert. denied , 513 U.S. 808, 115 S. Ct. 56, 130 L.

Ed. 2d 15 (1994)("Fair housing discrimination cases are subject

to the three-part test articulated in McDonnell Douglas Corp. v.

Green , 411 U.S. 792, 93 S. Ct. 1817, 36 L. Ed. 2d 668 (1973).");

Secretary, U.S. Dept. of Housing and Urban Development, on

Behalf of Herron v. Blackwell , 908 F.2d 864, 870 (11th Cir.

1990)("We agree with the ALJ that the three-part burden of proof

test developed in McDonnell Douglas [for claims brought under

Title VII of the Civil Rights Act] governs in this case

[involving a claim of discrimination in violation of the federal

Fair Housing Act].").

18. To make out a prima facie case of discrimination,

Heiblum needed to show that she: (1) belongs to a protected

class; (2) is qualified to receive the services or use the

facilities in question; (3) was denied the services or

facilities by the Association; and (4) was treated less

favorably by the Association than were similarly situated

persons outside of the protected class. See , e.g. , Jackson v.

Comberg , 2006 U.S. Dist. LEXIS 66405, *15 (M.D.Fla. Aug. 22,

2006).

19. It is undisputed that Heiblum is a Hispanic woman and

thus in a protected class. There is likewise no dispute that,

as a unit owner, Heiblum is eligible to be provided the same

services and facilities that all the other owners at Carlton Bay

Condominium enjoy. Heiblum, however, did not prove the

remaining facts required to establish a prima facie case of

discrimination on the basis of national origin or ethnicity.

20. Heiblum's failure to establish a prima facie case of

discrimination ended the inquiry. Because the burden never

shifted to the Association to articulate a legitimate,

nondiscriminatory reason for its conduct, it was not necessary

to make any findings of fact in this regard.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of

Law, it is RECOMMENDED that Florida Commission on Human

Relations enter a final order finding the Association not liable

for housing discrimination and awarding Heiblum no relief.

DONE AND ENTERED this 27th day of February, 2009, in

Tallahassee, Leon County, Florida.

___________________________________

JOHN G. VAN LANINGHAM

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 27th day of February, 2009.

ENDNOTES

1 / Handicap-based discrimination is cognizable under §

760.23(8), Fla. Stat., but no such claim has been made here.

2 / Alternatively, the complainant's burden may be satisfied with

direct evidence of discriminatory intent. See Trans World

Airlines, Inc. v. Thurston , 469 U.S. 111, 121, 105 S. Ct. 613,

621, 83 L. Ed. 2d 523 (1985)("[T]he McDonnell Douglas test is

inapplicable where the plaintiff presents direct evidence of

discrimination" inasmuch as "[t]he shifting burdens of proof set

forth in McDonnell Douglas are designed to assure that the

'plaintiff [has] his day in court despite the unavailability of

direct evidence.'").

COPIES FURNISHED :

Fabiola Heiblum

2821 Northeast 163 Street, Apt. 5C

North Miami Beach, Florida 33160

Charles F. Otto, Esquire

Straley & Otto, P.A.

2699 Stirling Road, Suite C-207

Hollywood, Florida 33312

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.