09-003538 Miguel Johnson vs. Riviera Terrace Apartments And Arie Markowitz, As Owner/Operator Status: Closed Recommended Order on Thursday, October 15, 2009.

Summary: Petitioner failed to establish a prima facie case of discrimination based on race in the denial of a rental unit.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

MIGUEL JOHNSON, )

)

Petitioner, )

)

vs. ) Case No. 09-3538

)

RIVIERA TERRACE APARTMENTS, )

AND ARIE MARKOWITZ, AS )

OWNER/MANAGER )

) )

Respondent. )

RECOMMENDED ORDER

The final hearing in this case was conducted on

September 8, 2009, by video teleconference between sites in

Miami and Tallahassee, Florida, before Administrative Law Judge

Eleanor M. Hunter of the Division of Administrative Hearings.

APPEARANCES

For Petitioner: Miguel Johnson, pro se

916 West 42nd Street, Apartment 9

Miami Beach, Florida 33140

For Respondent: Louis A. Supraski, Esquire

Louis A. Supraski, P.A.

2450 Northeast Miami Gardens Drive

Second Floor

North Miami Beach, Florida 33180

STATEMENT OF THE ISSUE

Whether Petitioner was subjected to housing discrimination

by Respondent based on Petitioner's race, African-American, in

violation of the Florida Fair Housing Act.

PRELIMINARY STATEMENT

On March 4, 2009, Petitioner filed a complaint with the

U.S. Department of Housing and Urban Development alleging

discrimination of Respondent because of the refusal to rent an

apartment to Petitioner based on Petitioner's race, African-

American. The matter was referred to the Florida Commission on

Human Relations (Commission), which investigated the complaint

and issued a Determination of No Cause on June 1, 2009.

Petitioner disagreed with the commission's determination and

filed a Petition for Relief. On July 2, 2009, the case was then

forwarded to the Division of Administrative Hearings for an

administrative law judge to be assigned to conduct a de novo

hearing.

At the hearing, Petitioner testified on his own behalf and

presented the testimony of Ayesha Azara and Pedro Valdes.

Petitioner's Exhibit 1, his Verizon Wireless telephone record

and bill dated April 4, 2008, was admitted into evidence.

Respondent presented testimony of Arie Markowitz and Diana

Miteff. Respondent's Composite Exhibits A and B were admitted

into evidence. No transcript of the final hearing was made or

filed.

Petitioner submitted post-hearing letters on September 16

and 22, 2009, that are together treated as a Proposed

Recommended Order. Respondent filed a Factual Memorandum of

Hearing that is also treated as a Proposed Recommended Order.

FINDINGS OF FACT

1. Petitioner Miguel Johnson is an African-American male

and, therefore, belongs to a class of persons protected from

discrimination under the Florida Fair Housing Act, Sections

760.20 through 760.37, Florida Statutes (2009). He filed a

complaint for housing discrimination against Riviera Towers at

6896 Abbott Avenue in Miami Beach.

2. Respondent Riviera Terrace Apartments (Riviera Terrace)

was apparently erroneously named Riviera Towers in the complaint

and in the style of this case. Notice of that error was given

by the owner, Arie Markowitz, and in the absence of any

indication that Riviera Terrace is a corporate entity,

Mr. Markowitz is also added as a Respondent. The style has been

corrected to reflect these corrections. Riviera Terrace, 6890

Abbott Avenue, Miami Beach, Florida, 33141, is a 20-unit

apartment complex.

3. Mr. Johnson thought that the complex has 22 units, but

there is no evidence to support his thinking. Contrary to his

request, the undersigned has no independent investigative powers

and must accept the evidence in the record.

4. According to his records, Mr. Johnson, on March 17,

2009, telephoned a number he saw on a "For Rent" sign at Riviera

Terrace. A woman identified as Diana Miteff answered the

telephone. Mr. Johnson said Ms. Miteff identified herself as

the manager of the complex. The telephone records indicate that

the conversation lasted one minute. Mr. Johnson testified that

Ms. Miteff told him to call back later.

5. Mr. Johnson telephoned Ms. Miteff again on March 21,

2009, and his records indicate that they talked for 8 minutes.

Mr. Johnson testified that Ms. Miteff told him about the

security deposit, that the rent for a one bedroom apartment was

$900 a month, and that she had some vacant efficiencies.

6. Mr. Johnson testified that a friend of his, Pedro

Valdes, lives in the same complex and that together they met

with Ms. Miteff the day after Mr. Johnson talked to her on the

telephone, and saw a vacant efficiency apartment. According to

Mr. Johnson, Ms. Miteff told him, after seeing him, that there

were no vacancies.

7. Ayesha Azara, Mr. Johnson's wife, testified that she

made another unsuccessful attempt to rent a unit in Riviera

Terrace in May 2009. She had no information in March 2008,

except to say tht Ms. Miteff claimed to be the manager and told

her the building was for elderly people.

8. Pedro Valdes testified that he lives in Riviera Towers

and gave his address as 6896 Abbott Avenue. He said that the

"For Rent" sign for Riviera Terrace is not always posted in

front of the complex.

9. Mr. Markowitz is the owner of Riviera Terrace at 6890

Abbott Avenue. He testified that he is also the manager and

that Ms. Miteff is a tenant. He uses her telephone number on

the "For Rent" sign because he does not speak Spanish. The

apartments are government-subsidized Section 8 housing. The

only vacant efficiency in March 2008 was a unit for which he

already had a written lease, but the tenant could not move in

until after a government-required inspection. He also testified

that his tenants are not all Caucasians and not all elderly.

10. Ms. Miteff confirmed that she has been a resident of

Riviera Terrace for 20 years. She concedes that she told

Mr. Johnson's wife that the people in the complex are very quiet

and mostly old people.

11. Mr. Johnson's claim of discrimination based on race is

not supported by the evidence, which is contradictory with

regard to the name and address of the property, and because

there were no vacant apartments at Riviera Terrace in March

2008.

CONCLUSIONS OF LAW

12. The Division of Administrative Hearings has

jurisdiction over the parties to and the subject matter of this

proceeding pursuant to Section 120.569 and Subsections 120.57(1)

and 760.35(3), Florida Statutes (2009).

13. Under the Florida Fair Housing Act, Sections 760.20

through 760.37, Florida Statutes, it is unlawful to discriminate

in the sale or rental of housing. Section 760.23, Florida

Statutes, states in relevant 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.

14. In interpreting and applying the Florida Fair Housing

Act, the Commission and Florida courts regularly seek guidance

from federal court decisions interpreting similar provisions of

federal fair housing laws.

15. In cases involving a claim of housing discrimination,

the complainant has the burden of proving a prima facie case of

discrimination by a preponderance of evidence. See U.S. v.

California Mobile Home Park Mgmt. , 107 F.3d 1374, 1380 (9th Cir.

1977); Schantz v, Village Apartments , 998 F. Supp. 784m 791

(E.D. Mich. 1998).

16. 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).

17. In this case, Petitioner did not meet his burden to

establish a prima facie case of discrimination. Evidence

concerning the address was contradictory, and Petitioner failed

to prove there was a vacant, available unit for rent in March

2008.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of

Law, it is

RECOMMENDED that:

The Petition for Relief be dismissed.

DONE AND ENTERED this 15th day of October, 2009, in

Tallahassee, Leon County, Florida.

S

ELEANOR M. HUNTER

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 15th day of October, 2009.

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

Louis A. Supraski, Esquire

Louis A. Supraski, P.A.

2450 Northeast Miami Gardens Drive

2nd Floor

North Miami Beach, Florida 33180

Miguel Johnson

916 West 42nd Street, Apt. 9

Miami Beach, Florida 33140

Miguel Johnson

C/O Robert Fox

1172 South Dixie Highway

Coral Gables, Florida 33146

Diana Mittles

Riviera Terrace Apartments

6896 Abott Avenue

Miami Beach, Florida 33141

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.