09-000116 Deborah Martindale vs. Westgate Vacation Villas, Llc Status: Closed Recommended Order on Thursday, April 30, 2009.

Summary: Petitioner did not receive a tour of Respondent`s resort, but such refusal was not based on race or gender. Respondent had given tours and sold timeshares to persons of the same race and gender as Petitioner.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEBORAH MARTINDALE, )

)

Petitioner, )

)

vs. ) Case No. 09-0116

)

WESTGATE VACATION VILLAS, LLC, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, a final hearing was held in this case

on March 20, 2009, in Orlando, Florida, before Susan B. Harrell,

a designated Administrative Law Judge of the Division of

Administrative Hearings.

APPEARANCES

For Petitioner: Deborah Martindale, pro se

5170 Hickory Hollow Parkway, Unit 115

Antioch, Tennessee 37013

For Respondent: Myrna L. Maysonet, Esquire

Greenspoon Marder, P.A.

201 East Pine Street, Suite 500

Orlando, Florida 32801

STATEMENT OF THE ISSUE

The issue in this case is whether Respondent committed a

housing discriminatory practice against Petitioner based on

Petitioner’s race and gender, in violation of Section 760.23,

Florida Statutes (2008). 1

PRELIMINARY STATEMENT

On September 15, 2008, Petitioner, Deborah Martindale

(Ms. Martindale), filed a Housing Discrimination Complaint with

the Florida Commission on Human Relations (Commission), alleging

that Respondent, Westgate Vacation Villas, LLC (Westgate),

refused to sell or negotiate for the sale of a timeshare based

on Ms. Martindale’s race and gender. On December 18, 2008, the

Commission issued a Notice of Determination of No Cause to

believe that a discriminatory housing practice had occurred.

On January 7, 2009, Ms. Martindale filed a Petition for

Relief with the Commission, alleging that Westgate had committed

a discriminatory housing practice against her based on her race

and gender. The Commission forwarded the Petition for Relief to

the Division of Administrative Hearings, which received the

Petition for Relief on January 9, 2009. The case was originally

assigned to Administrative Law Judge Lawrence P. Stevenson, but

was transferred to Administrative Law Judge Susan B. Harrell to

conduct the final hearing.

At the final hearing, Ms. Martindale testified in her own

behalf. Petitioner’s Exhibits 1, 2, and 3 were admitted in

evidence. At the final hearing, Westgate called the following

witnesses: Alex Silva, Lissette Roman, and Juan Terreforte.

Respondent’s Exhibits 1 through 4 were admitted in evidence.

The Transcript of the final hearing was filed on April 2,

2009. At the final hearing, the parties agreed to file their

proposed recommended orders within ten days of the filing of the

Transcript. On April 3, 2009, Westgate filed a Motion for

Extension of Time in which to file the proposed recommended

orders. The motion was heard by telephonic conference call on

April 6, 2009. An Order was entered on April 6, 2009, extending

the time for filing proposed recommended orders to April 23,

2009. Westgate filed its Proposed Recommended Order on

April 23, 2009. Petitioner did not submit a proposed

recommended order.

FINDINGS OF FACT

1. Ms. Martindale is an African-American female.

2. Westgate sells timeshare units and vacations. Westgate

is the largest privately-owned timeshare developer in the world.

It currently has 27 resorts around the United States. There are

over 250,000 owners of timeshares sold by Westgate.

3. Westgate has developed a strategy to market its

timeshare units. It leases locations in the Orlando area,

including space in hotels, and outdoor locations at gas stations

and convenience stores. Marketing coordinators are placed in

the locations to solicit families and individuals to come and

tour Westgate properties in hopes that they will purchase

vacations or timeshares. One of the enticements Westgate uses

to get people to tour its properties is a free gift, if the

potential customer meets certain qualifications.

4. On July 1, 2008, Ms. Martindale was approached by a

Westgate marketing coordinator at a convenience store. The

marketing coordinator asked to see Ms. Martindale’s driver’s

license and a credit card. The marketing coordinator also asked

her the amount of her annual income. Ms. Martindale was

presented with an invitation by the marketing coordinator, who

went over the details of the invitation with Ms. Martindale.

The invitation was to be used to secure Ms. Martindale’s

admission to a tour of the Westgate resort at Kissimmee,

Florida. Ms. Martindale signed the invitation and initialed the

invitation acknowledging that she met the qualifications listed

in the invitation for a $100 cash gift.

5. The invitation states:

Provisions of offer: There is no cost or

obligation to purchase anything. No one is

excluded from our tour or resort ownership;

however, the following requirements must be

met in order to receive a gift.

1) After meal, you must attend a 90 minute

sales presentation. If married, husband and

wife must attend together. If cohabitating,

both parties must be present.

2) You must speak fluent English or

Spanish.

3) If married, husband or wife must be

between the ages of 23-65 with a valid photo

I.D. or passport to qualify with a combined

gross annual household income of $50,000.

4) Single persons (single constitutes never

married, divorced, widowed; single does not

constitute separated) must be between the

ages of 23-65 with a valid photo I.D. or

passport and a $50,000 gross annual income.

5) Florida residents of Brevard, Volusia,

Lake, Orange, Polk, or Seminole Counties do

not qualify for this offer.

6) Must have spent prior night in a motel,

hotel, resort, condo or vacation rental in

the Orlando area and are not staying in a

campground, driving an R.V. or with

family/friends.

7) Subject to the above qualifications,

this offer is available to all permanent

residents and citizens of the United States.

This offer may not be available to citizens

and residents of some countries. I/we have

confirmed our eligibility for the gift with

the Marketing Representative prior to

arranging for my/our tour.

6. When Ms. Martindale received the invitation, she

understood that she would not receive the free gift if she did

not meet the qualifications listed in the invitation. She also

understood that she did not have to meet the qualifications in

order to take the tour and that she could purchase a timeshare

unit without meeting the qualifications.

7. Ms. Martindale took the invitation and went to the

Westgate property for a tour and her free gift. At the time

that Ms. Martindale signed the invitation and presented herself

for the tour and free gift, she was a resident of Orlando,

Orange County, Florida.

8. When Ms. Martindale arrived at the Westgate property,

she stopped at the tour check-in desk. Again she was asked to

present her driver’s license and a major credit card. She was

asked the amount of her annual income. The employee at the

check-in desk told Ms. Martindale to proceed to the reception

area where she would be greeted by another employee and taken on

a tour.

9. Ms. Martindale stayed in the reception area for about

ten minutes when she was greeted by a salesperson who took her

to a larger reception area in which there were hundreds of

people of varying nationalities and gender, including African-

American women. The reception area contained a buffet, and the

salesperson told Ms. Martindale that she could enjoy the buffet.

The man then began to ask her questions about her annual income.

He told her that he did not believe her and left to get Lissette

Roman, who was the assistant manager resort liaison. He

returned with Ms. Roman.

10. When a potential customer does not appear to meet the

financial qualifications for the free gift, Ms. Roman is asked

to assist in determining if there is any way in which the

potential customer may qualify for the free gift. Ms. Roman’s

duties include asking questions concerning the amount and

sources of income the potential customer has. Ms. Roman

receives a commission for each timeshare unit that is sold.

11. Many times potential customers who do not qualify for

the free gift become upset, and it is Ms. Roman’s job to calm

the potential customer and to avoid a confrontation. If the

potential customer becomes antagonistic, Ms. Roman will call

security.

12. Ms. Roman asked Ms. Martindale questions about

Ms. Martindale’s income. Ms. Martindale felt that Ms. Roman was

rude to her, and she felt humiliated by Ms. Roman’s questions

regarding her income. According to Ms. Martindale, Ms. Roman

called her a liar, wrote cancelled on the invitation, and asked

Ms. Martindale to leave the premises. Ms. Roman does not recall

the incident involving Ms. Martindale; however, she does not

believe that she called Ms. Martindale a liar because such

conduct could result in her being terminated from her job.

Based on the evidence presented, it is found that Ms. Roman did

not call Ms. Martindale a liar, but that, based on the questions

that Ms. Roman was asking relating to Ms. Martindale’s income,

Ms. Martindale felt that the veracity of her response regarding

the amount of her annual income was being impugned. Ms. Roman

did write “cancel tour” on the invitation and asked Ms.

Martindale to leave. Ms. Roman’s actions had nothing to do with

Ms. Martindale’s gender or race. Based on the evidence

presented, the conversation between Ms. Martindale and staff

from Westgate was escalating into a confrontational situation in

a room with hundreds of potential customers. The removal of

Ms. Martindale from the premises was a means of avoiding a scene

in front of other potential customers.

13. Ms. Martindale wrote a letter to Westgate complaining

about the incident. She did receive a telephone call from a

representative of Westgate concerning the letter, and she may

have been offered a tour of the resort. She was not interested

in touring the resort at that time and does not want to tour the

resort now. Ms. Martindale never made an offer to purchase a

timeshare unit from Westgate.

14. Westgate gives free gifts to males and females of

varying nationalities, including African-Americans, if the

potential customers meet the qualifications listed on the

invitation. Westgate gives tours and sells to males and females

of varying nationalities, including African-Americans,

regardless of whether the potential customers meet the

qualifications for the free gifts. Usually, if the potential

customer does not qualify for the free gift, the potential

customer does not care to take the tour. However, there have

been potential customers who have not met the free-gift

qualifications, have taken the tour, and have purchased

timeshare units.

CONCLUSIONS OF LAW

15. The Division of Administrative Hearings has

jurisdiction over the parties to and the subject matter of this

proceeding. §§ 120.569 and 120.57, Fla. Stat. (2008).

16. Ms. Martindale has alleged that Westgate committed a

discriminatory housing practice in violation of Section 760.23,

Florida Statutes, which provides:

(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.

17. Discrimination covered by the Florida Fair Housing

Act, Sections 760.20 through 760.37, Florida Statutes, is the

same discrimination as is prohibited under the Federal Fair

Housing Act. Savanna Club Worship Serv. v. Savanna Club

Homeowners’ Ass’n , 456 F. Supp. 2d 1223 (S.D. Fla. 2005). Thus,

federal cases involving discrimination in housing are

instructive and persuasive in interpreting Section 760.23,

Florida Statutes. See Dornbach v. Holley , 854 So. 2d 211, 213

(Fla. 2d DCA 2002).

18. As the complainant, Ms. Martindale has the burden of

establishing facts to prove a prima facie case by a

preponderance of the evidence. If she establishes a prima facie

case, the burden shifts to Westgate to articulate some

legitimate, nondiscriminatory reason for its action. If

Westgate satisfies this burden, Ms. Martindale must establish by

a preponderance of the evidence that the reasons asserted by

Westgate are merely pretextual. McDonnell Douglas Corp. V.

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

U.S. Department of Housing and Urban Development v. Blackwell ,

908 F.2d 864 (11th Cir. 1990).

19. For Petitioner to prove her prima facie case, she must

establish that: (a) she is a member of a protected class;

(b) she applied for and was qualified to tour the resort and

purchase a timeshare unit owned by Westgate; (c) Westgate denied

Ms. Martindale a tour and would not sell a timeshare unit to

Ms. Martindale; and (d) timeshares were sold to less qualified

individuals. Gonzalez v. Sunrise Lakes Condo. Apts. Phase III ,

2007 U.S. Dist. LEXIS (S.D. Fla. 2007); Mitchell v. Shane , 350

F.3d 39, 47 (2d Cir. 2003); Selden Apartments v. U.S. Dept of

Housing and Urban Development , 785 F.2d 152 (6th Cir. 1986).

20. Ms. Martindale did establish that she is a member of a

protected class. She is a female African-American. She did not

establish that she was qualified to purchase a timeshare or that

she made an offer to purchase a timeshare. No evidence was

presented that Westgate declined to sell a timeshare to

Ms. Martindale. Evidence was presented that Ms. Martindale’s

tour was cancelled, but no evidence was presented to establish

that the reason for the cancellation was related to either

Ms. Martindale’s race or gender. Ms. Martindale failed to

establish that timeshares were sold to less qualified

individuals. The evidence established that tours were given to

African-American females, and timeshares were sold to African-

American females.

21. Ms. Martindale relies on her subjective belief that

she was mistreated because she is a female African-American.

Her speculation, standing alone, is insufficient to establish

discrimination. Lizardo v. Denny’s, Inc. , 270 F.3d 94, 104 (2d

Cir 2001); Elliott v. Group Medical & Surgical Service , 714 F.2d

556, 567 (5th Cir. 1983).

22. The evidence did establish that the cancellation of

the tour had nothing to do with Ms. Martindale’s race or gender.

Rather, the evidence established that the cancellation of the

tour was due to the confrontation between Ms. Martindale and

staff of Westgate. The evidence did establish that a few days

after the incident, Westgate did offer to give Ms. Martindale a

tour of the resort, but that Ms. Martindale did not want to take

a tour.

23. Ms. Martindale has failed to establish a prima facie

case of discrimination.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of

Law, it is RECOMMENDED that a final order be entered dismissing

Ms. Martindale’s Petition for Relief.

DONE AND ENTERED this 30th day of April, 2009, in

Tallahassee, Leon County, Florida.

S

SUSAN B. HARRELL

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 30th day of April, 2009.

ENDNOTE

1/ Unless otherwise indicated, all references to the Florida

Statutes are to the 2008 version.

COPIES FURNISHED :

Myrna L. Maysonet, Esquire

Greenspoon Marder, P.A.

201 East Pine Street, Suite 500

Orlando, Florida 32801

Deborah Martindale

5170 Hickory Hollow Parkway, Unit 115

Antioch, Tennessee 37013

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.