10-005015 Rubye Johnson vs. Canongate Condominium Apartments No. One Inc. Status: Closed Recommended Order on Tuesday, August 9, 2011.

Summary: Petitioner failed to prove that Respondent unlawfully discriminated against her in the terms, conditions, or privileges of sale or rental of a dwelling, in violation of section 760.23, Florida Statutes.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

RUBYE JOHNSON, )

)

Petitioner, )

)

vs. ) Case No. 10 - 5015

)

CANONGATE CONDOMINIUM )

APARTMENTS NO. ONE INC., )

)

Respondent. )

)

RECOMMENDED ORDER

A final hearing was conducted in this case pursuant to

sections 120.569 and 120.57(1), Florida Statutes , 1 before

Administrative Law Judge Patricia Hart of the Division of

Administrative Hearings on February 21, 2011. The hearing was

held by video teleconf erence at sites in Miami and Tallahassee.

Due to Judge Hart ' s unavailability , this case was assigned to

Administrative Law Judge Cathy M. Sellers to prepare this

R ecommended O rder using the existing record, pursuant to section

120.57(1)( a), Florida Statute s.

APPEARANCES

For Petitioner: Rubye Johnson, pro se

800 Northeast 195 th Street

Number 201

North Miami Beach, Florida 33179

For Respondent: Nicole Wall, Esquire

Jonathan Vine, Esquire

Cole, Scott , and Kissane, P.A.

1 645 Palm Beach Lakes Boulevard

Second Floor

West Palm Beach, Florida 33401

D avid F. Anderson, Esquire

David F. Anderson, P.A.

7735 Northwest 146th Street

Miami Lakes, Florida 33016

STATEMENT OF THE ISSUE

The issue in this case is whether the Respondent committed

an unlawful housing practice by discriminating against the

Petitioner on the basis of race, in violation of the Florida

Fair Housing Act, sections 760.20 through 760.37, Florida

Statutes.

PRELIMIN ARY STATEMENT

On April 2 9, 2010, Petitioner , Rubye Johnson , an African -

American woman ( " Petitioner " ) , filed a Housing Discrimination

Complaint ( " Complaint " ) with the U.S. Department of Housing and

Urban Development ( " HUD " ) , alleging that Respondent , Canongate

Condominium Apartments No. One, Inc. ( " Respondent " ) , the

condominium association responsible for the operation of the

Canongate Condominium Apartments No. One, had unlawfully

discriminated against her , in violation of the f ederal Fair

Housing Ac t, by refusing to allow her to rent a condominium unit

she owned , while allowing similarly situated white owners to

rent their units. HUD forwarded the Complaint to the Florida

Commission on Human Relations ( " FCHR " ) for investigation. The

FCHR investigat ed the Complaint and issued a Notice of

Determination of No Cause on June 11, 2010, determining that

reasonable cause did not exist to believe that a discriminatory

housing practice had occurred , and dismiss ing the Complaint.

On July 3, 2010, Petitioner filed a Petition for Relief

( " Petition " ) with the FCHR. The FCHR forwarded the Petition to

the Division of Administrative Hearings on July 12, 2010. The

case was assigned to Judge Patricia M. Hart .

The case initially was set for final hearing on November 5,

2010. Pursuant to Respondent ' s Motion to Continue Final

Hearing, the final hearing was continued until January 21, 2011,

then rescheduled for February 21, 2011. A prehearing telephone

conference between Judge Hart and the parties was held on

February 11, 2011. On February 18, 2011, Petitioner filed a

M otion to Request that Judge Hart Continue Case No. 10 - 5015.

That same day, Respondent filed a response in opposition , and

Judge Hart entered an Order d enying the request for continuance.

Pursuan t to notice, t he final hearing was held on

February 21, 2011 . Petitioner testified on her own behalf and

offered Petitioner ' s Exhibits 1 and 2 into evidence , which were

admitted over objection . Respondent presented the testimony of

Marsha Allen and Joyce Meade and offered Respondent ' s Exhibits

1, 2, 3, 4, 6, 12, 24, 25, and 31 into evidence , all of which

were admitted . Petitioner objected to the admission of

Respondent ' s Exhibits 1 and 31. At the close of the hearing,

Judge Hart left the evidentiary record open until March 3, 2011,

to afford Petitioner the opportunity to file any subsequent

amendments to Article VII, Paragraph H. of the Canongate

Declaration of Condominium (Respondent ' s Exhi bit 31) that she

could locate and produce.

O n March 3 , 2011, Petitioner submitted correspondence to

Judge Hart , again objecting to admission of the Canongate

Declaration of Condominium 2 into evidence on the alleged basis

that Article VII, Paragraph H. was outdated and had been deleted

i n the mid - 1970s ; however, Petitioner did not provide any

evidence to substantiate this objection . Respondent submitted a

response in opposition to Petitioner ' s submittal. Because

Petitioner ' s submittal did not contain the e vidence for which

the evidentiary record had been held open, it was not admitted

and the record was closed.

At the close of the final hearing, the parties were given

ten days from the date of filing of the hearing transcript with

the Division of Administra tive Hearings in which to file their

proposed recommended orders. The one - volume T ranscript was

filed on March 25, 2011. Respondent timely filed its P roposed

R ecommended O rder on April 1, 2011. Petitioner ' s P roposed

R ecommended O rder was untimely filed on April 11, 2011, but was

not stricken. Both parties ' P roposed R ecommended O rders were

considered in preparing this Recommended Order.

FINDINGS OF FACT

1. P etitioner , Dr. Rubye Johnson , is an African - American

woman and , thus , is a member of a class protected under the

Florida Fair Housing Act, sections 760.20 through 760.37,

Florida Statutes.

2. Respondent , Canongate Condominium Apartments No. One,

Inc. , is the condominium association responsible for operation

of the Canongat e Condominium Apartments No. One ( " Canongate " ) .

3. Petitioner is a resident of Canongate and currently

resides in Unit 201. She previously owned and lived in

Canongate Unit 207 , the unit at issue in this proceeding . 3 She

no longer owns Unit 207.

4 . Petitioner could not recall precisely when she becam e a

resident of Canongate . 4 She testified that when she became a

resident of Canongate she was a renter , and she rented Unit 207 .

The evidence indicates that she likely moved in to Unit 207

sometime befo re February 4, 2000.

5. On February 4, 2000, the Association voted to amend

Canongate ' s Declaration of Condominium, Articl e VII, Paragraph

G, Section i. This amendment (the " 2000 Amendment " ) prohibit s

the leasing or rental of units in Canongate . E xisting leases

and tenants as of the amendment ' s effective date were

grandfathered for the balance of the lease term; however, no

lease extensions or renewals were allowed. I nstitutional

m ortgagees ' existing rights under the Declaration of Condominium

wer e expressly preserved.

6 . A t some point after Petitioner began renting Unit 207,

the unit owner told her that due to the 2000 Amendment, she

either would have to purchase the unit or move out in five

years ' time . T he owner told her he thought the 2000 Am endment

was approved because Respondent ' s Board of Directors ( " Board " )

did not want any more black residents in the building. 5

7 . Petitioner purchased Unit 207 in or about 2004 . When

she purchased the unit, she was aware of the 2000 A mendment .

She acknowledged that the 2000 Amendment prohibits the leas ing

o r rental of units in Canongate with out regard to race or

gender.

8. Petitioner testified that when she came home one day ,

Laura Ochacher, who had owned Unit 210, approached her about

rent ing one of her units . Ms. Ochacher told Petitioner th at

Unit 210 was the subject of foreclosure and that her family was

being evicted. Petitioner saw the eviction notice .

9. Ms. Ochacher told Petitioner that Canongate property

manager Marsha Allen had found a company to purchase Unit 210,

and that the company had allowed the m to remain in and rent Unit

2 10.

1 0 . Through examining a document printed out from the

Miami - Dade County Property Appraiser ' s Office website,

Petitioner learned th at Lansdowne Real Estate Holdings, LLC

( " Lansdowne " ) owned Unit 210 .

11. From th is information, Petitioner surmised that

Lansdowne had purchased Unit 210 and rented it to the Ochachers .

She believed that Ms. Allen a nd the Board were complicit in what

she viewed as a rental arrangement that violated the 2000

Amendment. Her belief was based on her knowledge of the

screening and approval process entailed in purchas ing a unit in

Canongate.

12. Petitioner did not independent ly investig at e the

matters that M s. Ochacher relayed to her . She did not ask

Ms. Allen whether she had found a company to purchase Unit 210 ;

whether U nit 210 was , in fact, being rented ; or whether she or

the Board knew of and allowed rental of the unit.

13. Petitioner understood Lansdowne to be a land company

that bought and sold land on a large scale. She did not know

whether Lansdowne is white , black, or of any other race.

1 4 . Petitioner also heard rumors from other Canongate

residents that other units were being rented. She identified

t hese units as 618, 520, 602, 105, 309, 106, 115, 120, 315, 515,

313, 410, 430, 503, 514 , " and perhaps more. " She did not

identify who told her about these units, nor did she

independently investigate whether the units were , in fact, being

rented.

1 5 . F ollowing her discussion with Ms. Ochacher, Petitioner

decided to ask the Board whether she could rent Unit 2 07.

1 6 . She sent a communication to the Board , dated April 11,

2009, entitled " Issues and Concerns . " 6 Item 12 of this

communication states:

12. I t is rumored that there are renters in

the building and that the board of directors

are [sic] sanctioning these arrangements.

Is this true? If so, under what circumstance

would the board of director ' s [sic]

s anction s [sic] renters in the building? If

no t, do you have a clue how this perception

has been generated?

1 7 . Petitioner ' s testimony regarding whether she had

actually requested permission from the Board to rent her unit

was inconsistent . In her deposition, she testified that she

viewed th e statement in Item 12 as a request to rent Unit 207 ,

but conceded that the request was " implied. " At the final

hearing, she acknowledged that her statement in Item 12 did not

constitute a specific request , but stated that she previously

had sent letters as k ing to rent the unit. S he was unable to

recall any specific letters she sent, when she sent them, or to

whom the letters were sent. No such letters were proffered or

admitted into evidence.

1 8 . Petitioner claimed that she had orally asked Ms. Allen

and various B oard members , on numerous occasions , whether she

could rent h er unit. However, s he could not recall who, other

than Ms. Allen, she ostensibly had asked, nor did she recall the

substance or details of such conversations.

19 . Petitioner testified that, " by the way they acted , "

she knew she was not allowed to rent her unit . She stated that

she also had been informed , orally and in writing , that she

could not rent her unit. However, s he could not recall who

informed her , or any details of th o se discussions . S he did not

provide any evidence of written refusal to allow her to rent her

unit .

20. Petitioner testified that she had discussed with

Marsha Allen her concern that white unit owners were allowed to

rent their units , while sh e was not. She acknowledged that no

one had ever told her she was not allowed to rent her unit

because she is black.

2 1 . Canongate property manager Marsha Allen testified on

behalf of Respondent. Ms. Allen ' s duties as property manager

include overseeing the day - to - day operation of Canongate,

reporting to the Board, and serving as Respondent ' s records

custodian.

22. Ms. Allen testified that rental of units in Canongate

is prohibited under the 2000 Amendment . She testified that

neither she nor the Board have allowed Canongate owners to rent

their units , and that whenever owners have asked , they have been

denied permission because of the rental prohibition. Ms. Allen

testified that none of the units Petitioner identified was, in

fact, being rented.

23. Ms. Allen stat ed that Petitioner never had asked her

whether she could rent her unit. She was not aware of

Petitioner ever having asked the Board or any Board member

whether she could rent her unit. Ms. Allen did not interpret

Item 12 of Petitioner ' s April 11, 2009 , c ommunication as

constituting a request for permission to rent her unit.

24. Ms. Allen also stated that she never had discussed

C anongate ' s rental policy with Petitioner , and she never had

refused a request from Petitioner to rent her unit . She

testified that she never had been directed by the Board or any

Board member to refuse to allow Petitioner to rent her unit.

25. Ms. Allen testified that Petitioner never had

complained to her that she was being discriminated against by

not being allo wed to rent her unit, while white owners were

allowed to rent theirs .

26. Lansdowne sent a letter dated October 30, 2008, to

Ms. Allen. T he letter asked her to inform the Board that

Lansdowne had acquired title to Unit 210 through foreclosure and

that th ey were entering into an agreement with the borrower,

Laura Ochacher, to continue her occupanc y for 12 months, during

which she could redeem the property by paying the foreclosure

judgment. The letter stated : " [t]his should not be considered a

rental arra ngement. " The letter explained that Lansdowne had

paid the past due assessments for the unit and would pay

outstanding legal fees once the Board approv ed the occupancy

agreement.

27. U pon receiving the letter, Ms. Allen reviewed the

Canongate Declaration of Condominium , specifically, Article VII,

Paragraph H., to ensure that the occupancy agreement for Unit

210 did not violate the 2000 Amendment ' s rental prohibition.

Article VII, Paragraph H . , provide s that if the mortgagee of a

condominium unit subject to an institutional mortgage given as

security becomes the owner of the unit, the owner has the

unqualified right to sell, lease, or otherwise dispose of the

unit. Ms. Allen determined that , based on this provision, the

occupancy agreement did not violate the 2000 Amendment.

28. Ms. Allen consulted with Respondent ' s legal counsel,

who independently verified that the occupancy agreement did not

violate the 2000 Amendment.

2 9 . Respondent also presented the testimony of Joyce

Meade, who has served as Respo ndent ' s p resident since 2008.

Ms. Meade ' s duties as President include enforcing Respondent ' s

condominium documents, overseeing the Board, conducting

meetings, and supervising Canongate ' s property manager.

30. Ms. Meade testified that Petitioner did not ask her

for permission to rent her unit. She also testified that , to

the best of her knowledge, Petitioner did not ask the Board for

permission to rent her unit , and the Board did not spe cifically

refuse. Ms. Meade testified that had Petitioner asked to rent

her unit , she would not have been allowed because all rental

requests are refused due to the 2000 Amendment .

3 1 . Ms. Meade testified that Petitioner never complained

to her that she was being discriminated against because she was

not allowed to rent her unit , while white owners were allowed to

rent theirs. S he also was not aware of any such complaints by

Petitioner to the Board.

Determinations of Ultimate Fact

3 2 . Petitioner failed to present persuasive evidence that

she requested Respondent ' s p ermission to rent Unit 207 .

Petitioner subjectively may have believed that she requested

permission in Item 12 of her April 11, 2009 , communication , but

th at item cannot reasonably be read to constitute such a

request. Item 12 merely asks if there are re nters in Canongate

and the circumstances under which the Board would allow renters.

No other item s in th e April 11, 2009, communication constitute a

request to rent the unit . Petitioner did not present any

evidence that she submitted other written request s to rent her

unit , and her testimony that she had orally requested to rent

her unit was unpersuasive. R espondent ' s witnesses credibly

testified that Petitioner had ne ver requested , orally or in

writing, to rent her unit.

3 3 . Petitioner also failed to establish that her request

to rent her unit was refused. Her test imony on this point was

unclear, imprecise, and unpersuasive, and s he provided no

evidence of written refusal to allow her to rent her unit . By

contrast , Respondent ' s witnesses t e stified unequivocally t hat

they had not refused to allow Petitioner to rent her unit . They

also credibly testified that Petitioner never had complained to

them that she was refused permission to rent her unit because

she is black, while white owners were allowed to rent their s .

3 4 . Petitioner did not establish that she was qualified

and abl e to rent out her unit. The u ncontroverted evidence

establishe d that the Canongate Declaration of Condominium

prohibits leasing or rental of units. Accordingly, Petitioner

could not have been allowed to rent her unit , even if had she

asked.

3 5 . Petitioner did not present any c ompetent substantial

evidence establishing that Respondent allows similarly situated

white unit owners to rent their units, wh ile refusing to allow

Petitioner to rent hers. Petitioner ' s testi mony that Lansdowne

was a purchaser and that the occupancy agreement for Unit 210

actually constituted a rental arrangement was merely her

personal opinion , unsupported by any competent subs tantial

evidence . Respondent showed that Lansdowne is an institutional

mortgagee that took title through foreclosure and , therefore,

was not similarly situated to Petitioner and the other owners

who had purchased their units. Moreover, Petitioner presented

no evidence that Lansdowne was white .

3 6 . In sum, there is no competent substantial evidence in

the record to support a finding of unlawful housing

discrimination .

CONCLUSIONS OF LAW

3 7 . The Division of Administrative Hearings has personal

and subject matter jurisdiction over this proceeding pursuant to

sections 120.569 a nd 120.57(1), Florida Statutes.

3 8 . The Florida Fair Housing Act is codified at sections

760.20 through 760.37, Florida Statutes. Section 760.23(2 )

provides in pertinent part :

Discrimination in the sale or rental of

housing and other prohibited practices. --

. . .

(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 or services or

facilities in connection therewith, because

of race, color, national origin, sex,

handicap, familial status, or religion.

3 9 . The Florida Fair Housing Act is modeled after the

federal Fair Housing Act . Accordingly, federal case law

involving housing disc rimination is instructive and persuasive

in interpreting section 760.23, Florida Statutes. Dornbach v.

Holley , 854 So. 2d 211, 213 (Fla. 2d DCA 2002).

40 . In cases involving a housing discrimination claim , the

Petitioner has the burden of establishing a prima facie case of

discrimination by a preponderance of the evidence. Sec ' y,

Housing and Urban Dev. ex. rel. Herron v. Blackwell , 908 F.2d

864, 870 (11 th Cir. 1990)(applying the burden - shifting analysis

of McDonnell Douglas v. Green , 411 U.S. 792 (1973) , in a housing

discrimination case under the federal Fair Housing Act ) . The

Petitioner ' s f ailure to establish a prima facie case of

discrimination ends the inquiry. See Ratliff v. State , 666 So.

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

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

(Fla. 2d DCA 1987) ) . However, if the Petitioner establishes a

prima facie case , the burden shifts to the Respondent to

articulate some legitimate, nondiscriminatory reason for its

action. Texas Dep ' t of Cmty. Affairs v. Burdine , 450 U.S. 248,

254 (1981)(evidence of nondiscriminatory reason need only be

sufficient to raise a genuine issue of fact regarding the

alleged discrimination); Budnick v. Town of Carefree , 518 F.3d

1109, 1114 (9 th Cir . 2008 ). If the Respondent satisfies this

burden, then the burden shifts back to the Petitioner to

establish , by a preponderance of the evidence , that the reason

articulated by the Respondent is merely a pretext to conceal

unlawful discrimination. Massar o v. Mainlands Section 1 & 2

Civic Ass ' n, Inc. , 3 F.3d 1472, 1476 n.6 (11 th Cir. 1993), cert.

den ied , 513 U.S. 808 ( 1994); Soules v. U.S. Dep ' t of Housing and

Urb. Dev. , 967 F.2d 817 (2d Cir. 1992).

4 1 . To establish a prima facie case of housing

discrimination based on race , the Petitioner must show: (1) s he

belongs to a class of persons protected under section 760.23(2);

(2) s he requested permission from Respondent to rent her unit;

(3) s he was qualified and able to rent her unit; (4) Respondent

refused to approve her request to rent her unit; and (5)

Respondent allowed similarly situated white owners to rent their

units . See Budnick , 518 F.3d 1109, 1114 (9 th Cir. 2 008)

( articulating the elements of a prima facie case of housing

discrimination based on alleged disparate treatment of a

protected class ).

4 2 . Here, Petitioner failed to establish a prima facie

case of housing discrimination . It is undisputed that as an

African American, she meets the first element ; h owever, she did

not establish any of the other elements by a preponderance of

the evidence. Specifically, she did not prove that she asked

Respondent ' s permission to rent her unit; that Respondent

refused to allow her to rent her unit; that she was qual ified

and able to rent her unit; and that Respondent allowed similarly

situated white owners to rent their units, while not allowing

Petitioner to rent her unit.

4 3 . Moreover, e ven if Petitioner had established a prima

facie case of discrimination, Respon dent met its burden to offer

a legitimate, nondiscriminatory explanation for treating

institutional mortgagees that take title through foreclosure

differently than other unit owners, such as Petitio ner, who

purchased their units.

4 4 . In sum, Petitioner fa iled to prove by a preponderance

of the evidence that Respondent unlawful ly discriminate d against

her in the terms, conditions, or privileges of sale or rental of

a dwelling because of her race , in violation of section

760.23(2), Florida Statutes.

RECOMMEN DATION

Based on the foregoing Findings of Fact and Conclusions of

Law, it is RECOMMENDED that the Florida Commission on Human

Relations enter a Final Order finding Canongate Condominium

Apartments No. One, Inc. , not liable for housing discrimination

and aw arding no relief.

DONE AND ENTERED this 9th day of August, 2011, in

Tallahassee, Leon County, Florida.

S

_______________________________

CATHY M. SELLERS

Administrative Law Judge

Division of Administrative Hearings

The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399 - 3060

(850) 488 - 9 675

Fax Filing (850) 921 - 6847

www.doah.state.fl.us

Filed with the Clerk of the

Division of Administrative Hearings

this 9 th day of August, 2011.

ENDNOTES

1 Unless otherwise stated, all references are to Florida

Statutes (2010).

2 PetitionerÓs March 3, 2011, correspondence objected to what

she called ÐExhibit 3.Ñ However, the specific provision to

which Petitioner objected is part of RespondentÓs Exhibit 31.

3 Petitioner also purchased, and at various times owned,

Canongate Units 516 and 201, neither of which is the subject of

this proceeding. When Petitioner purchased Unit 516, she was

required to undergo a standard purchaser qualifying process that

entails filling out an application and being interviewed by

Board members. Once her purchase was approved, she was issued a

Certificate of Approval. She was not required to go through the

qualifying process for her subsequent unit purchases.

4 In her answer s to RespondentÓs interrogatories (RespondentÓs

Exhibit 12), Petitioner stated that she believed she had moved

into Canongate in 1999. In her deposition (RespondentÓs Exhibit

1), she initially stated she had moved into Canongate in 2003 or

5 Respond ent, not its Board, approved the 2000 Amendment.

RespondentÓs membership consists of CanongateÓs unit owners, at

least several of which are African - American. There is no

evidence that RespondentÓs approval of the rental prohibition in

the 2000 Amendment w as motivated by racial animus.

6 RespondentÓs l egal counsel sent a response, dated April 27,

20 09 , to Petitioner, stating that the Board did not sanction

illegally rented units. The response described measures

Respondent had undertaken in an effort to limit unit access to

only owners , invited guests, and scheduled workmen . These

measures included installing a glass wall and door and providing

keys o nly to residents who proved unit ownership.

COPIES FURNISHED:

Larry Kranert, General Counsel

Florida C ommission on Human Relations

2009 Apalachee Parkway, Suite 100

Tallahassee, Florida 32301

Denise Crawford, Agency Clerk

Florida Commission on Human Relations

2009 Apalachee Parkway, Suite 100

Tallahassee, Florida 32301

Dr. Rubye Johnson

800 Northeast 195th Street,

Number 201

North Miami Beach, Florida 33179

Nicole Wall, Esquire

Jonathan Vine, Esquire

Cole, Scott, and Kissane, P.A.

1645 Palm Beach Lakes Boulevard

Second Floor

West Palm Beach, Florida 33401

David F. Anderson, Esquire

D avid F. Anderson, P.A.

7735 Northwest 146th Street

Miami Lakes, Florida 33016

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.