08-006415 Victoire Merceron vs. The Partnership, Inc. Status: Closed Recommended Order on Thursday, May 21, 2009.

Summary: Petitioner did not meet its burden of proof. Recommend denial of the Petition for Relief.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

VICTOIRE MERCERON, )

)

Petitioner, )

)

vs. ) Case No. 08-6415

)

THE PARTNERSHIP, INC., )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, a final hearing was conducted in this

case on April 1, 2009, in Port Charlotte, Florida, before

Administrative Law Judge R. Bruce McKibben of the Division of

Administrative Hearings.

APPEARANCES

For Petitioner: Jennifer Miller-Veal, Esquire

1225 Tamiami Trail, Unit A-10

Port Charlotte, Florida 33953

For Respondent: Peter L. Sampo, Esquire

Allen, Norton and Blue, P.A.

121 Majorca Avenue, Suite 300

Coral Gables, Florida 33134

STATEMENT OF THE ISSUE

The issue in this case is whether Respondent violated the

Fair Housing Act, Section 760.20, et seq. , Florida Statutes

(2008), by denying Petitioner housing based on her gender

(female) and familial status (pregnant).

PRELIMINARY STATEMENT

On or about September 30, 2008, Petitioner, Victoire

Merceron, filed a Housing Discrimination Complaint with the

Florida Commission on Human Relations, alleging discrimination

by Respondent, The Partnership, Inc. Upon review of the

Complaint, the Commission entered a Determination: No Cause.

Petitioner then filed a Petition for Relief which was

transmitted to the Division of Administrative Hearings ("DOAH")

on December 24, 2008. Respondent filed an Answer and

Affirmative Defenses to the Petition for Relief. The matter was

set for final hearing, and the parties submitted a joint

Prehearing Stipulation on March 25, 2009.

At the final hearing held on April 1, 2009, Petitioner

relied upon the testimony of three witnesses: Richard Elwood,

regional manager for NDC Management; Petitioner, Victoire

Merceron; and Arthur Fufidio, manager of The Pines (a low income

apartment complex). Petitioner offered one exhibit (a copy of

Petitioner's Lease and Addendum with The Pines), which was

received in evidence. Respondent presented the testimony of two

witnesses: Jacquie Halvax, assistant manager at The Pines; and

Beth Manning, property manager at The Pines. Respondent also

offered five exhibits, all of which were received in evidence.

At the close of the evidentiary portion of the final

hearing, the parties were allowed ten days from the filing of

the hearing transcript at DOAH to file their respective proposed

recommended orders. On April 13, 2009, Petitioner filed a

Recommended Order [sic] setting forth proposed findings of fact

and conclusions of law. The Transcript was filed at DOAH on

April 21, 2009.

On May 4, 2009, one day after the proposed recommended

orders were due to be filed at DOAH, Respondent filed a motion

seeking additional time to file its proposed recommended order.

Respondent requested to file its proposed recommended order on

May 6, 2009 (three business days after it was initially due).

Petitioner objected to Respondent's motion, stating that

Respondent should have been more diligent. No specific

prejudice was alleged should Respondent's motion be granted.

Respondent's motion was granted by the Administrative Law Judge,

but Petitioner was given seven days to file a responsive

proposed recommended order, if deemed necessary. Petitioner

filed a second response to Respondent's motion, claiming that

failure to file the proposed recommended order timely was

de facto evidence of prejudice against Petitioner. Respondent

filed its proposed findings of fact, conclusions of law and

legal memorandum on May 6, 2009. Petitioner filed a response to

Respondent's proposed findings and conclusions. All post-

hearing submissions by the parties were considered in the

preparation of this Recommended Order.

All references to Florida Statutes herein shall be to the

2008 version, unless specifically stated otherwise.

FINDINGS OF FACT

1. Petitioner, Victoire Merceron, is a single mother with

three children. At all times relevant hereto, she was living at

an apartment complex known as The Pines pursuant to a Lease with

NDC Management. There was an Employee Lease Addendum dated

February 2, 2008, attached to Petitioner's Lease. The Addendum

was signed by Petitioner to reflect her status as an employee of

NDC Management and, therefore, eligible for a reduction in her

monthly rent.

2. Respondent, The Partnership, Inc., is a real estate

management company specializing in managing affordable housing

properties which are experiencing problems or business

difficulties. Respondent began managing The Pines on August 1,

2008. Prior to that time, The Pines had been managed by NDC

Management.

3. Petitioner had worked as a leasing consultant with NDC

Management at The Pines from October 2007 until July 2008.

During that time, she enjoyed the benefit of a 20 percent

reduction in her rent (which was provided to all employees of

NDC Management who lived in a managed property).

4. The Pines is owned by Punta Gorda Pines, Ltd. It is a

336-unit apartment complex which provides low income housing

(affordable housing) for qualified persons. One hundred percent

of the units at The Pines are set aside for low income

residents. Of the 336 units, 202 units (60 percent) have a

rental amount which does not exceed 60 percent of the area

median income. One hundred and one units (33 percent) have an

even lower rental amount. The rental amounts and number of

units is established annually by the Florida Housing Finance

Corporation.

5. Respondent was contacted by the owner of The Pines at

some point in 2008 concerning the assumption of management of

The Pines due to problems existing at the property. Respondent

visited the property in July and met with some of the existing

staff and management. Respondent then assumed management of The

Pines on August 1, 2008. At that time, approximately 40 percent

of the units at The Pines were not under lease to a tenant,

i.e., the property was only 60 percent occupied. Sixty percent

occupancy is evidence of a "problem affordable property" from

Respondent's perspective.

6. When Respondent took over management of The Pines, it

terminated some of NDC Management's employees and retained some

other employees. Petitioner was not retained by Respondent as

an employee.

7. The Employee Lease Addendum to Petitioner's Lease at

The Pines included a clause that required Petitioner to vacate

her apartment within 15 days of termination of her employment

with NDC Management. Petitioner was terminated as of July 31,

2008.

8. Upon termination of her employment, Petitioner

requested from Respondent that she be allowed to remain in her

current apartment beyond the 15-day extension period. That

request was granted by Respondent, and Petitioner was ultimately

allowed to stay in the apartment through the end of August 2008.

9. As of July 31, 2008, Petitioner had two children and

was pregnant with a third. Inasmuch as she would need a home

for her family, Petitioner asked Respondent to consider her as a

new, non-employee tenant.

10. Respondent agreed to consider Petitioner's request and

asked Petitioner to provide proof of income so that a

predetermination review could be conducted. It was Respondent's

policy to do a predetermination review prior to the formal

application process. The stated reason for this practice was

that Respondent did not want an applicant to have to pay the

non-refundable application fee, if the applicant was unlikely to

be qualified to obtain an apartment.

11. Respondent made its predetermination of eligibility

using an Income and Rental Rates Chart which Respondent had

developed. The chart indicates the income necessary for rental

of different size apartments within the complex.

12. In response to Respondent's request for income

verification, Petitioner provided Respondent with a form (or

letter) indicating that she had applied for payment of

unemployment compensation for a two-week period. The form

indicated that Petitioner would receive $225.00 per week for

that two-week period. Petitioner represented to Respondent's

agents that she had been approved for up to six months of

unemployment compensation at $225.00 per week. 1 There was,

however, no competent evidence of that fact presented to

Respondent (or introduced into evidence at the final hearing).

13. Respondent calculated the amount of Petitioner's

anticipated income based on the stated unemployment compensation

payments to be made. Two-hundred and twenty-five dollars per

week for an entire year (52 weeks) would be a total of

$11,700.00. However, inasmuch as Petitioner only represented

that she might receive up to six months of unemployment

compensation, her anticipated annual income would be one-half

that amount, or $5,850.00. That amount of income was not

sufficient to warrant approval for even the lowest priced units

available at The Pines, i.e., $10,660.00 per year. 2

14. Based upon its predetermination review, Respondent

denied Petitioner's initial inquiry concerning eligibility for

an apartment at The Pines. That being the case, Respondent did

not provide Petitioner a formal application to fill out. It

would have been a fruitless exercise based on Petitioner's

stated level of income.

15. Respondent does not appear to discriminate on the

basis of gender or familial relationship when renting to other

residents. In its Rent Roll from March 31, 2009, Respondent can

point to over 70 single women with children living at The Pines.

A large number of those women were at The Pines when Respondent

took over management. Others became residents during

Respondent's tenure as manager.

16. Respondent based its decision to deny Petitioner's

inquiry solely on the information provided by Petitioner.

Petitioner did not suggest to Respondent that she was receiving

child support, alimony, or any other kind of support from a

third party. However, Petitioner maintains that the fathers of

her children would provide support on an as-needed basis (but

since Respondent didn't ask her about such support, she did not

volunteer the information). In January 2008, when Petitioner

filled out a Residency Application to obtain an apartment at The

Pines, she said she was not receiving any alimony or child

support, nor had any such support been court ordererd. 3

Petitioner did not present any evidence at final hearing as to

the amount or frequency of child support she received from her

children's fathers. It is, therefore, impossible to impute any

certain amount for the purpose of determining Petitioner's

eligibility for an apartment at The Pines.

17. When Petitioner was working at The Pines and a person

seeking an apartment did not qualify financially, Petitioner

would ask the person whether he or she could get someone to

co-sign for him/her, guarantee his/her rent, etc., or whether he

or she could receive child support. It is not clear at what

point in the application process (i.e., during predetermination

or upon filing of a formal application form) Petitioner would

make this inquiry.

18. It appears Respondent did not seek further financial

information from Petitioner after the predetermination review

indicated she would not qualify. However, there is no evidence

that Respondent had a policy to make such inquiries.

19. There is no evidence in the record that Petitioner

re-applied to Respondent with an updated or amended statement of

income after she was denied.

20. Upon being denied a new apartment, Petitioner remained

in her then-current apartment for some time after her lease was

terminated. Petitioner owed slightly over $1,000.00 in rent and

fees for the apartment when she finally vacated it, but

Respondent did not pursue payment of that arrearage.

CONCLUSIONS OF LAW

21. The Division of Administrative Hearings has

jurisdiction over the parties to and the subject matter of this

proceeding pursuant to Section 120.569 and Subsection 120.57(1),

Florida Statutes.

22. Florida's Fair Housing Act (the "Act") is codified in

Sections 760.20 through 760.37, Florida Statutes. Subsection

760.23, Florida Statutes, reads in pertinent part:

Discrimination in the sale or rental of

housing and other prohibited practices.--

(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 of

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.

23. Petitioner has the burden of proving by a

preponderance of the evidence that Respondent violated the Act

760.34(5), Fla. Stat.

24. There is a well-established three-prong test used to

analyze cases brought under the Act, which is set forth in

McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). This

test is stated as follows:

First, the plaintiff has the burden of

proving a prima facie case of discrimination

by a preponderance of the evidence. Second,

if the plaintiff sufficiently establishes a

prima facie case, the burden shifts to the

defendant to "articulate some legitimate,

nondiscriminatory reason" for its action.

Third, if the defendant satisfies this

burden, the plaintiff has the opportunity to

prove by preponderance that the legitimate

reasons asserted by the defendant are in

fact mere pretext.

25. United States Department of Housing and Urban

Development v. Blackwell , 908 F.2d 864, 870 (11th Cir. 1990),

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

1987).

26. A prima facie showing of housing discrimination simply

requires Petitioner to show she attempted to lease an apartment

from Respondent, that her request was denied, and that she was a

member of a protected class. See Soules v. United States

Department of Housing and Urban Development , 967 F.2d 817, 822

(2d Cir. 1992). Petitioner, a single mother of three children,

is a member of a protected class. Petitioner established a

prima facie case.

27. The burden then shifts to Respondent to show that the

action it took--denying Petitioner's request--was based on a

legitimate, non-discriminatory reason. As shown, Respondent

based its denial on Petitioner's failure to even minimally meet

the income requirement for the lowest priced apartment available

at The Pines.

28. That being the case, the burden then shifts back to

Petitioner to prove that Respondent's reasons were mere pretext

and that the real reason for denial was discrimination. There

is no evidence in the record to support that contention.

Respondent clearly leases to single mothers and expressed

interest in leasing to Petitioner, but for her failure to meet

the income requirement.

29. Petitioner did not meet her burden of proof in this

matter. There is no improper pretext for Respondent's treatment

of Petitioner's request for an apartment. The rejection of

Petitioner's request is based upon clearly established financial

considerations.

30. Respondent did not discriminate against Petitioner.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of

Law, it is

RECOMMENDED that a final order be entered by the Florida

Commission on Human Relations upholding its Determination: No

Cause and dismissing Petitioner, Victoire Merceron's, complaint.

DONE AND ENTERED this 21st day of May, 2009, in

Tallahassee, Leon County, Florida.

R. BRUCE MCKIBBEN

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 21st day of May, 2009.

ENDNOTES

1/ It is unclear from the record whether the amount of the

unemployment compensation was $225.00 or $275.00 per week.

However, inasmuch as neither amount would be sufficient to

qualify Petitioner for the apartment she was seeking, the exact

amount is not material to the discussion herein.

2/ Respondent calculated Petitioner's eligibility on the basis

of Petitioner and her two existing children. The fact that

Petitioner was pregnant meant that Respondent could have

considered her as needing an apartment for four people, but that

eligibility threshold would have been even higher.

3/ Petitioner says that as of the date she filled out the

application, that statement was true. However, once her

children were living full time with her, their fathers agreed to

"help out," when necessary.

COPIES FURNISHED :

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

Jennifer Miller-Veal, Esquire

1225 Tamiami Trail, Unit A-10

Port Charlotte, Florida 33953

Peter Sampo, Esquire

Allen, Norton, and Blue, P.A.

121 Majorca Avenue, Suite 300

Coral Gables, Florida 33134

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.