09-002805 Susan Walters vs. Sterling Baldwin, B.A. And Blackwater Housing Corporation, Et Al. Status: Closed Recommended Order on Monday, September 28, 2009.

Summary: The evidence did not show that Petitioner was discriminated against in housing since all tenants were mentally handicapped white females like Peitioner.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

SUSAN WALTERS, )

)

Petitioner, )

)

vs. ) Case No. 09-2805

)

STERLING BALDWIN, B.A. AND )

BLACKWATER HOUSING CORPORATION, )

ET AL., )

)

Respondents. )

)

RECOMMENDED ORDER

Pursuant to Notice, a formal hearing was conducted in this

proceeding before Administrative Law Judge Diane Cleavinger of

the Division of Administrative Hearings in Pensacola, Florida,

on August 4, 2009.

APPEARANCES

For Petitioner: Susan Walters, pro se

112 Bartow Avenue

Pensacola, Florida 32507

For Respondent: Sterling Baldwin, B.A., pro se

Lakeview Center

1813 North J Street, Building L

Pensacola, Florida 32501

For Respondent: Dan D’Onofrio

Blackwater Housing Corporation,

Progressive Management of Milton and

Boardwalk Apartments

205 Brooks Street, Southeast, Suite 305

Fort Walton Beach, Florida 32548

STATEMENT OF THE ISSUE

Whether Petitioner was the subject of discrimination based

on her race, sex or handicap in leasing her apartment from

Respondents in violation of Sections 804d and 804f of Title VIII

of the Civil Rights Act of 1968, as amended by the Fair Housing

Act of 1988 and the Florida Fair Housing Act and Section

760.23(2)(4), Florida Statutes (2008).

PRELIMINARY STATEMENT

Petitioner filed a complaint with the U.S. Department of

Housing and Urban Development (HUD) and the Florida Commission

on Human Relations (FCHR), alleging that she was discriminated

against based on her race, sex or handicap by the Respondents

when the Respondents leased an apartment to her and imposed

discriminatory terms, conditions, privileges, or services on

Petitioner’s lease.

An investigation of the complaint was made by FCHR. The

Commission issued its determination that there was no reasonable

cause to believe that a discriminatory housing practice had

occurred in violation of Section 760.23(1), Florida Statutes

(2008), or Sections 804d and 804f of Title VIII of the Civil

Rights Act of 1968, as amended by the Fair Housing Act of 1988.

Petitioner disagreed with FCHR’s determination and filed a

Petition For Relief. The case was forwarded to the Division of

Administrative Hearings to conduct a formal hearing on the

matter.

Contrary to clearly established law, FCHR did not make

arrangements to preserve the testimony at the final hearing,

either by sending a court reporter or a recording device with

someone to operate it. See § 120.57(1)(g), Fla. Stat.; Fla.

Admin. Code R. 28-106.214; North Dade Security Ltd. Corp. v.

Dept. of State , 530 So. 2d 1040 (Fla. 1st DCA 1988) and Poirer

v. Dept. of Health & Rehab. Servs. , 351 So. 2d 50 (Fla. 1st DCA

1977). The parties were informed of the agency’s policy to not

provide an official means of preserving the testimony at the

final hearing. Neither party hired a court reporter to preserve

the hearing. At the hearing all parties elected to proceed with

the hearing without preservation of the record. Therefore,

there is no record of the final hearing, except for exhibits, if

any, received into evidence and this Recommended Order.

During the hearing, Petitioner testified on her own behalf.

Respondent, Sterling Baldwin, testified on his own behalf and

presented the testimony of one witness. Respondents, Blackwater

Corporation, Progressive Management of Milton, Inc., and

Boardwalk Apartments, were dismissed as parties.

After the hearing, Petitioner filed a letter on August 4,

2009 and a formal Proposed Recommended Order on September 9,

2009. Respondent, Baldwin, did not file a proposed recommended

order.

FINDINGS OF FACT

1. Petitioner is a white female with a mental impairment.

As such, she is a member of a protected class.

2. Boardwalk Apartments (Boardwalk) is a large apartment

complex owned by Blackwater Housing Corporation (Blackwater) and

managed by Progressive Management of Milton, Inc. (Progressive).

Boardwalk leases 6 apartments to Lakeview Center. Neither

Blackwater, Progressive nor Boardwalk had any substantial

contact with Petitioner. Nor were any of these Respondents

involved in the lease arrangement Petitioner had with Lakeview

Center. Because of this lack of involvement, Blackwater,

Progressive and Boardwalk were dismissed as parties at the close

of Petitioner’s case in chief.

3. Lakeview Center leases its Boardwalk Apartments to its

clients who qualify for services in its Independent Living

Program. In order to qualify to lease an apartment under the

Independent Living Program, a person must have a major mental

illness and be homeless. The program is a therapeutic program

with a housing component that is intended to help homeless,

mentally-ill clients of Lakeview learn and attain independent

living skills. If a person qualifies for the program, he or she

enters into a contract and a lease with Lakeview Center that

requires the tenant to clean and maintain the apartment he or

she leases. All the apartments at Boardwalk could be leased to

two clients at one time.

4. During the time relevant to this proceeding, the

Lakeview apartments at the Boardwalk Apartment complex were

leased to six tenants. Like Petitioner, all six tenants were

female, White, and had a mental disability. In fact, the only

tenants that Lakeview can provide housing to under its

Independent Living Program are homeless individuals with a

mental impairment.

5. On November 7, 2008, Petitioner applied to rent a unit

through the Lakeview Center Independent Living Program and was

accepted. She entered into the standard contract and lease used

by Lakeview Center in its Independent Living Program. As with

all of Lakeview’s tenants, the contract required Petitioner to

clean and maintain the apartment.

6. The apartment at the Boardwalk Apartment complex

assigned to Petitioner was newly renovated and relatively clean.

One other Lakeview client was living in the apartment.

7. Petitioner did not provide any credible evidence to

support that the apartment was filthy or that she was given or

held to different terms and conditions than other residents of

the Independent Living Program based on her race, sex, color or

disability. Indeed, her roommate lived in the apartment under

the same terms and conditions that Petitioner lived in the

apartment. Petitioner did not present any evidence regarding

any of the other tenants’ terms and/or conditions relative to

their apartments.

8. Petitioner, simply, did not like the condition of her

apartment, refused to clean the apartment and, the next day,

declined to stay in the apartment.

9. Petitioner’s other complaint was that she did not like

the way she was treated by Mr. Baldwin, who coordinates

Lakeview’s Independent Living Program. She thought he was

extremely rude to her. However, there was no evidence that

demonstrated Petitioner was treated differently than any of the

other Lakeview clients in the Independent Living Program with

whom Mr. Baldwin works.

10. Given the lack of evidence in this case and the fact

that all of Lakeview’s tenants at the Boardwalk apartments were

mentally handicapped and the same race and sex as Petitioner,

Petitioner has failed to demonstrate that Respondent

discriminated against her on the basis of her race, sex or

handicap. Therefore, the Petition for Relief should be

dismissed.

CONCLUSIONS OF LAW

11. The Division of Administrative Hearings has

jurisdiction over the parties to and the subject matter of this

proceeding. § 120.57(1), Fla. Stat. (2009).

12. Under Florida’s Fair Housing Act (“Act”), Sections

760.20 through 760.37, Florida Statutes (2008), it is unlawful

to discriminate in the sale or rental of housing. Section

760.23 states, in part:

(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.

13. In cases involving a claim of rental housing

discrimination, the complainant has the burden of proving a

prima facie case of discrimination by a preponderance of the

evidence. A prima facie showing of rental housing

discrimination can be made by establishing that the complainant

applied to rent an available unit for which he or she was

qualified, the application was rejected, and, at the time of

such rejection, the complainant was a member of a class

protected by the Act. See Soules v. U.S. Dept. of Housing and

Urban Development , 967 F.2d 817, 822 (2d Cir. 1992). Failure to

establish a prima facie case of discrimination ends the inquiry.

See Ratliff v. State , 666 So. 2d 1008, 1013 n.7 (Fla. 1st DCA

1996), aff’d , 679 So. 2d, 1183 (Fla. 1996)(citing Arnold v.

Burger Queen Systems , 509 So. 2d 958 (Fla. 2d DCA 1987)).

14. If, however, the complainant sufficiently establishes

a prima facie case, the burden then shifts to the Respondent to

articulate some legitimate, nondiscriminatory reason for its

action. If the Respondent satisfies this burden, then the

complainant must establish by a preponderance of the evidence

that the reason asserted by the Respondent 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].”). Pretext can be shown by inconsistencies

and/or contradictions in testimony. Blackwell , supra ; Woodward

v. Fanboy, L.L.C. , 298 F.3d 1261 (11th Cir. 2002); Reeves v.

Sanderson Plumbing Products, Inc. , 530 U.S. 133, 120 S. Ct.

2097, 147 L. Ed. 2d 105 (2000). "Discriminatory intent may be

established through direct or indirect circumstantial evidence."

Johnson v. Hamrick , 155 F. Supp. 2d 1355, 1377 (N.D. Ga. 2001).

15. "Direct evidence is evidence that, if believed, would

prove the existence of discriminatory intent without resort to

inference or presumption." King v. La Playa-De Varadero

Restaurant , No. 02-2502, 2003 WL 435084 (Fla. DOAH

2003)(Recommended Order).

16. However, "[D]irect evidence of intent is often

unavailable." Shealy v. City of Albany, Ga. , 89 F.3d 804, 806

(11th Cir. 1996). For this reason, those who claim to be

victims of discrimination "are permitted to establish their

cases through inferential and circumstantial proof." Kline v.

Tennessee Valley Authority , 128 F.3d 337, 348 (6th Cir. 1997).

On the other hand, proof that, in essence, amounts to no more

than mere speculation and self-serving belief on the part of the

complainant concerning the motives of the Respondent is

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

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

F.3d 94, 104 (2d Cir. 2001)("The record is barren of any direct

evidence of racial animus. Of course, direct evidence of

discrimination is not necessary . . . . However, a jury cannot

infer discrimination from thin air. Plaintiffs have done little

more than cite to their mistreatment and ask the court to

conclude that it must have been related to their race. This is

not sufficient.")(citations omitted.); Reyes v. Pacific Bell , 21

F.3d 1115 (Table), 1994 WL 107994 *4 n.1 (9th Cir. 1994)("The

only such evidence [of discrimination] in the record is Reyes's

own testimony that it is his belief that he was fired for

discriminatory reasons. This subjective belief is insufficient

to establish a prima facie case."); Little v. Republic Refining

Co., Ltd. , 924 F.2d 93, 96 (5th Cir. 1991)("Little points to his

own subjective belief that age motivated Boyd. An age

discrimination plaintiff's own good faith belief that his age

motivated his employer's action is of little value."); Elliott

v. Group Medical & Surgical Service , 714 F.2d 556, 567 (5th Cir.

1983)("We are not prepared to hold that a subjective belief of

discrimination, however genuine, can be the basis of judicial

relief."); Jackson v. Waguespack , No. 1-2972, 2002 U.S. Dist.

LEXIS 20864, 2002 WL 31427316 (E.D. La. 2002)("[T]he Plaintiff

has no evidence to show Waguespack was motivated by racial

animus. Speculation and belief are insufficient to create a

fact issue as to pretext nor can pretext be established by mere

conclusory statements of a Plaintiff that feels she has been

discriminated against. The Plaintiff's evidence on this issue

is entirely conclusory, she was the only black person seated

there. The Plaintiff did not witness Defendant Waguespack make

any racial remarks or racial epithets."); Coleman v. Exxon

Chemical Corp. , 162 F. Supp. 2d 593, 622 (S.D. Tex.

2001)("Plaintiff's conclusory, subjective belief that he has

suffered discrimination by Cardinal is not probative of unlawful

racial animus."); Cleveland-Goins v. City of New York , No. 99-

Civ. 1109, 1999 U.S. Dist. LEXIS 13255, 1999 WL 673343 (S.D.

N.Y. 1999)("Plaintiff has failed to proffer any relevant

evidence that her race was a factor in defendants' decision to

terminate her. Plaintiff alleges nothing more than that she

'was the only African-American man [sic] to hold the position of

administrative assistant/secretary at Manhattan Construction.'

(Compl.¶ 9.) The Court finds that this single allegation,

accompanied by unsupported and speculative statements as to

defendants' discriminatory animus, is entirely insufficient to

make out a prima facie case or to state a claim under Title

VII."); Umansky v. Masterpiece International Ltd. , No. 96–Civ.

2367, 1998 U.S. Dist. LEXIS 11775, 1998 WL 433779 (S.D. N.Y.

1998)("Plaintiff proffers no support for her allegations of race

and gender discrimination other than her own speculations and

assumptions. The Court finds that plaintiff cannot demonstrate

that she was discharged in circumstances giving rise to an

inference of discrimination, and therefore, has failed to make

out a prima facie case of race or gender discrimination."); and

Lo v. F.D.I.C. , 846 F. Supp. 557, 563 (S.D. Tex. 1994)("Lo's

subjective belief of race and national origin discrimination is

legally insufficient to support his claims under Title VII.").

17. In order to establish the elements of a case of

discrimination involving the terms, conditions or privileges

related to the lease of an apartment, the following must be

proven:

1) Petitioner belongs to a protected class;

2) Petitioner was qualified, ready, willing

and able to continue occupancy consistent

with the terms and conditions offered by

Respondent;

3) the apartment was not leased to the

Petitioner, and

4) Respondent entered into leases with

other similarly-situated people who were not

members of Petitioner’s protected class.

18. In order to prove the elements of a case of

discrimination in the provision of services or facilities, the

following must be proven:

1) Does the Petitioner belong to a

protected class

2) Was the Petitioner qualified, ready,

willing, and able to receive services or use

facilities consistent with the terms and

conditions offered by the Respondent

3) Did the Respondent receive services, or

attempt to use facilities consistent with

the terms and conditions applicable to all

person who were qualified or eligible for

services or use of facilities

4) Did the Respondent willfully fail or

refuse to provide services, or permit use of

the facilities under the same terms and

conditions to the Petitioner that were

applicable to all person who were qualified

or eligible for services or use of

facilities

5) After the Petitioner was denied the

services or facilities, did the Respondent

provide similar services or facilities to

similarly-situated persons who were not

members of Petitioner’s protected class.

19. In this case, Petitioner provided no evidence that she

was discriminated against on the basis of her race, sex or

handicap. Indeed, the evidence demonstrated that other tenants

that leased apartments at Boardwalk from Lakeview Center were

the same race, sex and handicap as Petitioner. The evidence,

also, demonstrated that Petitioner was not denied an apartment,

but did lease an apartment from Respondent under the same terms

and conditions as Lakeview’s other tenants. Moreover, there was

an utter lack of evidence regarding the comparative living

conditions in Lakeview’s other apartments. There was also an

utter lack of evidence that Petitioner’s interactions with

Mr. Baldwin were discriminatory. Petitioner’s firm belief that

she was discriminated against is insufficient to establish a

prima facie case of discrimination in housing. Therefore, the

Petition for Relief should be dismissed.

RECOMMENDATION

Based upon the foregoing Findings of Fact and Conclusions

of Law, it is RECOMMENDED that the Florida Commission on Human

Relations issue a Final Order dismissing the Petition of Relief.

DONE AND ENTERED this 28th day of September, 2009, in

Tallahassee, Leon County, Florida.

S

DIANE CLEAVINGER

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 28th day of September, 2009.

COPIES FURNISHED :

Susan Walters

112 Bartow Avenue

Pensacola, Florida 32507

Sterling Baldwin, B.A.

Lakeview Center

1813 North J Street, Building L

Pensacola, Florida 32501

Dan D’Onofrio

Blackwater Housing Corporation,

Progressive Management of Milton, Inc.

And Boardwalk Apartments

205 Brooks Street, Southeast, Suite 305

Fort Walton Beach, Florida 32548

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.