10-009371 Florida Commission On Human Relations On Behalf Of Bahiyyih Watson vs. Christina Viering Status: Closed Recommended Order on Wednesday, March 21, 2012.

Summary: Petitioner did not prove existence of discriminatory acts by Respondent.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

FLORIDA COMMISSION ON HUMAN )

RELATIONS ON BEHALF OF )

BAHIYYIH WATSON , )

)

Petitioner , )

)

vs. ) Case No. 10 - 9371

)

CHRISTINA VIERING , )

)

Respondent . )

)

RECOMMENDED ORDER

Pursuant to notice to all parties, a final hearing was

conducted in this case commencing on December 14, 2010, in

Orlando, Florida, before Administrative Law Judge R. Bruce

McKibben of the Division of Administrative Hearings. After an

extended recess due to matters outside the parties' control, the

final hearing was concluded on February 22, 2011.

APPEARANCES

For Petitioner: Lawrence F. Kranert, Jr., Esquire

John Chaves, Esquire

Florida Commission on Human Relat ions

2009 Apalachee Parkway, Suite 100

Tallahassee, Florida 32301

For Respondent: Jamison Jessup, Qualified Representative

Florida Education Advocate, Inc.

557 Noremac Avenue

Deltona, Florida 32728

STATEMENT OF THE ISSUE

The issue in this case is whether Respondent, Christina

Viering, discriminated against Petitioner, Bahiyyih Watson, on

the basis of Watson's race and/or religion in violation of the

Florida Fair Housing Act.

PRELIMINARY STATEMENT

Petitioner, Florida Commi ssion on Human Relations the

( "Commission") , on behalf of Bahiyyih Watson, filed a Petition

for Relief with the Division of Administrative Hearings ("DOAH")

dated November 13, 2009. Upon motion by Respondent and no

response thereto by Petitioner, the unde rsigned entered an Order

Closing File dated June 10, 2010, stating that there appeared to

be no disputed issues of material fact. Petitioner filed a

Motion for Relief from Order contending that there were disputed

issues of material fact to be addressed b y DOAH. The Commission

then entered an Order remanding the Petition for Relief to DOAH

on September 10, 2010. The undersigned Administrative Law Judge

("ALJ") was assigned to the case , and a final hearing was held

as indicated above.

On the first day of the final hearing, Petitioner called

three witnesses: Christina Viering, Respondent; Petrea

Quilling; and Charlene Wilson. At the conclusion of the first

day of hearing, Petitioner advised that one more witness,

Bahiyyih Watson, would be called when the hearing resumed on

December 16, 2010. 1/ On December 15, 2010, DOAH was advised that

counsel for Petitioner would be unable to attend the hearing on

December 16 , 2010, as a result of injuries he received in an

automobile accident. The hearing was then res cheduled to

continue on February 22, 2011. On that day, Petitioner called

Bahiyyih Watson and Lisa Southerland, investigator for the

Commission. Petitioner did not offer any exhibits into

evidence. Respondent called two witnesses: Christina Viering

and Jamaal Crooks. Respondent's Exhibits 4 through 49 and 51

were admitted into evidence. 2/

The parties advised that a transcript of the final hearing

would be ordered. The Transcript was filed on January 21 and

March 30, 2011, respectively. By rule, part ies were allowed ten

days to submit proposed recommended orders, but requested an

additional ten days. Petitioner then requested an additional

extension of time, which was allowed. Petitioner and Respondent

each submitted a Proposed Recommended Order . E ach was duly

considered in the preparation of this Recommended Order.

FINDINGS OF FACT

1. Petitioner, Bahiyyih Watson ("Watson") is a

light - skinned Black American 3/ female. Watson is an adjunct

professor at Valencia Community College, where she teaches

cultural anthropology. Watson holds a Ph . D . in anthropology.

Watson practices the religion known as Yoruba, which has a

tradition of Orishas and places a great emphasis on ancestors.

The religion emphasizes African traditions and a respect for

elders as well.

2. At all times relevant hereto, Watson was residing in a

house at 1830 Dover Road, Winter Park, Florida (the "House").

The House is owned by Respondent, Christina Viering ("Viering").

The House is a three - bedroom house in a residential

neighborh ood. It has a dining room, living room, kitchen and

sun room, each of which was considered a common area for all

residents.

3. On August 2, 2008, Watson and Viering entered into a

legal document erroneously entitled , "Assignment of Lease"

(hereinafter th e "Lease") , which called for Viering to rent a

room in the House. The Lease has a term of six months, i.e.,

from August 30, 2008 , until February 28, 2009. Viering

identified the Lease as a month - to - month lease, but there is no

language in the Lease to co nfirm that description. There is a

document attached to the Lease entitled , "Tenant Policies , "

setting forth various issues relating to the Lease. The

attachment contains a provision which states: "MONTH TO MONTH

LEASE TERMINATING WITH PROPER NOTICE. W HEN TERMINATING YOUR

LEASE, A 30 DAY WRITTEN NOTICE IS REQUIRED." The provision does

not explain how it would be interpreted in contravention of the

plain language of the Lease.

4. There is nothing in the Lease specifying a particular

room for Watson, b ut the parties testified that Watson occupied

the bedroom with a bath, presumably the master suite. The Lease

did not identify a specific room for Viering.

5. Viering testified that she resided at the House during

the term of the Lease between her and Watson, but did not sleep

there every night. Watson said Viering never slept at the House

while she, Watson, was there. One neighbor who lived across the

street said she believed Viering lived at the House during the

time Watson lived there. Another nei ghbor said she never saw

Viering's car at the House overnight and only rarely during the

day. The greater weight of the evidence suggests that Viering

was at the House only sporadically and probably did not reside

there as a residence.

6. At the time W atson signed the Lease, she was working as

an adjunct professor at Valencia Community College. She was in

the process of submitting an application, including extensive

paperwork, to become a tenured professor at the University of

South Florida. The appli cation process was intense and required

considerable concentration and attention to detail to complete.

The application was the most important matter in Watson's life

at that time. One of her reasons for selecting the House as a

residence was because it was on a quiet street and appeared to

be a place where she could work without major distractions.

Viering was made aware of this situation.

7. On or about March 17, 2008, another resident , Abbey

Nichols , moved into one of the other bedrooms in the House. On

October 17, 2008, yet another resident , Kristen Bryan , moved

into the third bedroom. Both of the two new tenants were young

(twenty - ish) Caucasian women who were of the Christian faith.

Each of the new tenants entered into an agreement identical to

the Lease, but with different dates of residency. The two new

tenants were not inclined to help Watson clean or maintain the

House.

8. Viering testified that she slept overnight at the House

only two or three times a month. When she slept there, she

sle pt in the Florida room at the rear of the House . The washer

and dryer were located in the Florida Room. Again, Watson does

not remember Viering ever staying overnight at the House, taking

her meals there, or otherwise treating it as her place of

residenc e.

Landlord - Tenant Disputes

9. Almost immediately upon Watson taking residence in the

House, she and Viering began to have disputes about various and

sundry issues. For example: Watson complained that Viering was

moving her personal belongings around; V iering said she only

moved items off the kitchen table so that she could wash the

tablecloth. Watson said that Viering had thrown away some of

Watson's kitchenware; Viering said she threw away a s tyrofoam

cup when she was cleaning the kitchen. The disput es soon

escalated.

10. On September 17, 2008, less than one month into the

six - month lease, Viering sent Watson a notice to vacate the

premises within 30 days. The parties must have worked out an

agreement, however, because Watson remained in the House af ter

the proffered termination date.

11. The relationship between Viering and Watson, however,

did not improve. They continued to disagree about things and

communication between the two seemed quite strained.

12. On or about November 8, 2008, Viering wen t to the

House to check on a leak which had been reported. A neighbor

from across the street, Ms. Wilson, accompanied her as she

looked around the House. Viering testified under oath that

while doing the inspection, she noticed mail in Watson's room

that appeared to belong to Viering. When she inspected the mail

and determined that it belonged to her, Viering was concerned

about possible identity theft. Viering then went to the local

post office and requested an address change so that her mail

would not go to the House. Wilson remembers the event somewhat

differently: She says that Viering said she (Viering) believed

Watson had some of her mail and wanted to go in to the room to

check. Watson saw Viering take some mail that she claimed

belonged to her, but Watson never personally identified the

names on the letters. Watson denies ever having mail that

belonged to Viering. The only certain fact concerning this

situation was that Viering did go into Watson's room and

retrieved some mail. It is not cert ain who the mail belonged to

or whether Viering identified the mail as hers before going into

Watson's room.

Plumbing Problems

13. Two days later, one of the tenants reported to Viering

that the plumbing at the House was stopped up. Viering told the

tenan ts that it was their responsibility to call a plumber and

get the stoppage cleared up. She took this stance because, some

ten years prior, some of Viering's tenants had flushed items

down the toilet, causing a back - up in the plumbing. Viering

believed he r current tenants had done the same. One of the

young tenant's fathers then called Viering and suggested that

the plumbing problem could be caused by roots growing into the

pipes , and, if so, then the problem would be the landlord's

responsibility. Vieri ng agreed then to call the plumber

herself.

14. Jamaal Crooks, a plumber working for Bryan Plumbing,

came to the House on November 14, 2008, to work on the problem.

He went into the House, but only into the hallway bathroom. He

did not enter Watson's roo m or the bathroom in her room. Crooks

then went outside and used a cable to reach inside the main

sewer line. He pulled three tampons out of the line, thus ,

clearing the blockage. Crooks could not say if there were more

tampons in the line at that time, but the ones he removed were

sufficient to allow the sewage to flow.

15. Crooks apparently gave Viering a bill for his services

at that time. The amount on the bill was $178.00. Viering

demanded that Watson pay the bill or that she at least pay her

one - third share. Viering did not believe she should share in

the cost , because she was not staying at the House on a

permanent basis. That testimony contradicts her statements that

she was at the House regularly and that it was her residence at

that time. W atson refused to pay the bill , because she did not

feel responsible for the stoppage.

16. Some six days later, Bryan Plumbing issued another

invoice in the amount of $178.00. The invoice included a note

that said, "Tenant refused to pay bill. Christina w as present

the whole time." It is unclear from the testimony why this

invoice was issued if a bill had been presented on the day of

service. Viering ultimately paid the plumbing bill and asked

each of her tenants to pay a portion of it.

17. Watson said t he plumbing worked for only four or five

hours after Crooks left the premises. Viering says the plumbing

was working for up to a week. It is clear the plumbing problem

was not totally resolved. When a tenant would attempt to shower

or flush the toilet, sewage would back up into the bathtub and

shower stall. The tenants were afraid to drink water from the

faucet because they did not know if it was contaminated or not.

18. As will be discussed below, the two Caucasian tenants

left the House soon after the November 14 , 2008, plumbing issue.

Watson, who could not afford to move and had no friends or

family with space to accommodate her, remained at the House.

There was no working toilet, so Watson had to find other means

of performing daily hygiene. She w ould bathe as well as

possible at local stores or gas stations. She would drive to

stores to use their restrooms. At night when the stores were

closed, she would reluctantly go into the backyard and dig a

hole to use as a latrine. By that time she was b ecoming

physically ill from all the stress. When she needed to vomit,

she would have to use the hole in the ground for that purpose as

well. Watson endured this situation for almost three weeks

before finally finding another place to live.

19. On Decembe r 19, 2008, a little over a month after the

initial plumbing problem, Crooks came back to the House to fix

the plumbing again. By that time, all three tenants, including

Watson, had already moved out of the H ouse. Although Crooks had

no independent recol lection of being at the House on that date,

he identified a written statement he had made on that date

saying he had "found more tampons in line [sic] ." Crooks could

not say if the tampons were left over from the prior visit, but

inasmuch as the plumbing was not working in the interim, that is

probable.

Notices to Vacate

20. On November 12, 2008, just two days after receiving

her initial notice about the plumbing problem, Viering gave all

three tenants a Lease Violation Warning setting forth certain

allege d violations and giving the tenants three days to come

into compliance. Two days later, on the day the plumbing was

initially fixed, Viering gave each tenant a 30 - day notice to

vacate the premises. The basis for the notices, as set forth in

another lette r from Viering to the tenants, was that a police

officer had advised her that she should evict the three tenants.

Viering said that action was "radical" and that she opted for a

30 - day notice of termination of the Lease s instead.

21. On the same day she gave the tenants the 30 - day

notice, she gave each of them a s even - d ay n otice which specified

lease violations. The notice to Bryan set forth the following

violations:

Ʊ Failure to maintain plumbing

Ʊ Failure to pay share of utilities and repairs

Ʊ Unauth orized guests on property

Ʊ Unauthorized overnight guests

Ʊ Harassment by unauthorized guests

Ʊ Disturbing the peace

Ʊ Failure to maintain sanitary conditions

22. The notice to Nichols set forth very similar

violations, to wit:

Ʊ Failure to maintain premi ses in a sanitary manner

Ʊ Negligent use of plumbing

Ʊ Failure to pay plumbing repair

Ʊ Unauthorized guests on the property

Ʊ Unauthorized overnight guests on the property

Ʊ Destruction of property belonging to the landlord or

p ermitting another person do so

23. The notice given to Watson contained the following

alleged violations:

Ʊ Failure to maintain plumbing

Ʊ Failure to comply with payments due [sic]

Ʊ Share of utilities to be paid

Ʊ Share of repair to plumbing

Ʊ Disposal of garbage in sanitary manne r

Ʊ Maintaining the premises in sanitary condition

Ʊ Unauthorized overnight guests on a regular basis

Ʊ Harassment to me by yourself and guests

24. On the same date that Viering gave the tenants their

s even - d ay n otices and 30 - day termination notices, she gave

Watson two additional letters: One was a letter advising Watson

that her security deposit amount was being increased by an

additional $100.00; the second was a demand to have Viering's

dresser (which Watson was using) ready to be picked up on the

upc oming weekend.

Religious Controversy

25. The rash of notices on November 14, 2008, indicate s

some irrationality on Viering's part. It also indicate s that

the landlord - client relationship was not working effectively.

On that same day, Watson called the po lice to report Viering for

harassment. While waiting for the police, Watson went into the

backyard to avoid contact with Viering. Viering, however, came

into the backyard and confronted Watson. Watson remembers

Viering coming toward her with something i n her hand, raised

above her head. Viering was chanting some incantations and

acting bizarre. Viering remembers only that she wanted to talk

to Watson and was going to use her cell phone to videotape

Watson as she talked. As she approached Watson, she r ecited the

Lord's Prayer to cover herself with God's protection. 4/

26. On November 15, 2008, one day after the aforementioned

notices, Viering posted a Notice of Non - Renewal at the House,

advising Nichols that her lease would not be renewed and that

Nichol s must vacate the premises no later than December 1, 2008.

On that same day, Viering cut out cross - shaped designs from some

magazines and posted them around the House. Viering did so as a

part of her Christian religious beliefs, thinking there was

"evil" in the House and hoping to eradicate it.

27. When Watson took the crosses down because she

considered them offensive, Viering made replacement crosses.

Watson says Viering used paper from Watson's room to make the

crosses; Viering says she used liner p aper from her dresser and

a Home Depot catalogue. The crosses were placed on various

windows around the House.

28. Watson states that she sent Viering a letter

complaining that the crosses were traumatizing to her as a black

woman. Viering does not rem ember any complaint from Watson

about the crosses. Watson's written missive to Viering on this

subject could not be produced. Watson says she also left voice

messages on Viering's telephone. Viering said that she does not

remember any such message, but since Watson sent her so many

text and emails that were harassing in nature, Viering would

frequently delete messages before reading them.

29. The following day, Sunday, November 16, 2008, Viering

returned to the House and put up wooden crosses in the fron t

flower beds. She also painted black crosses on each slat of the

privacy fence behind the House and on some windows in the House.

The crosses were accompanied by messages such as, "The pure

white light of Christ" and other inspirational sayings from

Vie ring's Christian literature. The black crosses were crudely

painted using a paper towel because Viering could not find a

paint brush.

30. Watson arrived home after dark and found the large

cross in the front yard and the crosses painted on all the

windo ws , which frightened her, so she asked a male neighbor to

accompany her into the House to make sure no one was there.

Inside the House , there were numerous crosses painted on windows

and doors. All of this made Watson extremely frightened, so she

called the police. She was told that unless the crosses were on

fire, they could not investigate.

Additional Disputes

31. On November 17, 2008, Viering provided additional

notices to the tenants: Watson was advised that her bedroom

would be inspected, that she should return all items that were

not her property, and that she should remove her property from

the common areas of the House. Bryan received yet another

Notice of Termination, effective immediately. Both Bryan and

Nichols moved out of the House shortl y thereafter.

32. At some point, Watson remembers receiving a written

notice telling her to vacate within seven days. The reason for

the notice was that Viering had gotten into a confrontation with

a black woman outside the House and presumed that the wom an was

Watson's friend. In fact, the woman was the mother of one of

Bryan's friends. 5/ Viering had borrowed a bicycle off the front

porch of the House. The bike belonged to a young man who was

visiting Bryan, and he thought someone had stolen the bike. The

young man's mother accosted Viering for taking the bike without

asking. That altercation appears to have been the genesis of

the notice to Watson.

33. On November 19, 2008, Watson contacted the Seminole

County Sheriff's Office and filed a complaint a gainst Viering.

The complaint was for harassment and violation of landlord -

tenant laws. Watson also contacted every state agency she could

think of to seek some sort of redress from the conditions she

was living in. She called, by her account, the Publi c Works

department , the Utilities Commission , Health and Safety , and

Sanitation, to name a few. None of the agencies acknowledged

jurisdiction over the matter.

34. On December 9, 2008, Viering received a letter from a

local television station stating that a consumer had filed a

complaint alleging denial of basic services by Viering.

Thereafter , the television station broadcasted a consumer

human - interest story concerning Watson's plight.

35. At some point in time, Watson filed a Petition for

Temporary Inj unction against Viering , claiming some sort of

violence by Viering. The Injunction proceeding was dismissed on

January 6, 2009 , when Watson failed to appear at the court

hearing on the matter. By that date, Watson was no longer

residing at the House. On or about November 30, 2008, Watson

had vacated the House, ending the relationship between herself

and Viering.

36. Watson alleges discrimination based on her race due to

the fact that she received more notices than the other

(Caucasian) tenants from Vieri ng. However, Watson was the

longest serving tenant and had the most interaction with

Viering, so there is no way to establish discrimination based

solely on the number of notices.

37. Watson alleges religious discrimination based on the

bizarre behavior o f Viering , such as placing crosses and

religious sayings around the H ouse, chanting the Lord's Prayer

or other incantations, and referencing evil in the House.

However, there is no persuasive evidence that Viering was aware

of Watson's religion, Yoruba. Although Viering was in Watson's

room on occasion and must have seen Watson's shrines, there is

no evidence that Viering was aware of what the shrines stood

for.

38. Watson claims discrimination based on the fact that

Viering was less tolerant of her tha n of the white, Christian

tenants. The other tenants did not testify at final hearing, so

it is impossible to compare their treatment to Watson's.

39. Viering clearly acted in a very strange and unusual

fashion. She was not a pleasant landlord. However, her actions

appear to be based on her own personality and demeanor , rather

than on any intent to discriminate based on race or religion.

CONCLUSIONS OF LAW

40. The Division of Administrative Hearings has

jurisdiction over the parties to and the subject matter of this

proceeding pursuant to sections 120.569 and 120.57(1), Florida

Statutes (2010). Unless otherwise specifically stated herein,

all references to Florida Statutes shall be to the 2010 version.

41. Florida's Fair Housing Act (the "Act") is codi fied in

sections 760.20 through 760.37, Florida Statutes. Section

760.23 reads 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 t erms, 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.

42. Petitioner has the burden of proving by a

preponderance of the evidence that Viering violated the Act by

discriminating against Watson as alleged in her complaint.

§§ 120.57(1)(j) and 760.34(5).

43. In evaluating housing discrimination claims, courts

have applied the burden shifting analysis developed in McDonnell

Douglas Corp. v Green , 411 U.S. 792, 802 - 804 (1973), and later

refined in Texas Department of Community Affairs v. Burdine ,

450 U.S. 248, 252 - 253 (1981). Following this approach, Watson

must make a prima facie case for disc rimination. A prima facie

showing of housing discrimination simply requires Watson, as the

petitioner, to show that she was ready, able and willing to

continue her residency at the House was not in violation of the

Lease and that she was a member of a pro tected class. See

Soules v. U.S. Dep't of Hous. & Urban Dev. , 967 F.2d 817, 822

(2d Cir. 1992). Watson, a b lack American adhering to a non -

mainstream religion, is a member of a protected class. Watson

established a prima facie case.

44. The burden of pr oduction then shifts to Viering to

show that the actions she took -- giving Watson numerous notices

to vacate the premises and posting crosses and religious verses

around the House -- were based on legitimate, nondiscriminatory

reasons. Id. As shown, Viering provided notices to Watson due

to the breakdown of the landlord - tenant relationship between the

two women. The crosses and verses placed around the House were

done because of Viering's extreme religious beliefs.

45. That being the case, the burden then s hifts back to

Petitioner to prove that Viering's reasons were mere pretext and

that the real reason for her actions was discrimination. See

St. Mary's Honor Ctr. v. Hicks , 509 U.S. 502, 515 (1993). There

is no evidence in the record to support that conte ntion.

Viering acted pursuant to her own somewhat aggressive religious

convictions and as a dissatisfied landlord. Her actions ,

vis - à - vis the two Caucasian tenants , were not significantly

different than her treatment of Watson.

RECOMMENDATION

Based on t he foregoing Findings of Fact and Conclusions of

Law, it is

RECOMMENDED that a final order be entered by the Florida

Commission on Human Relations dismissing the Petition for Relief

filed by Bahiyyih Watson in its entirety.

DONE AND ENT ERED this 11th day of May , 2011 , in

Tallahassee, Leon County, Florida.

S

R. BRUCE MCKIBBEN

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 11th day of May , 2011 .

ENDNOTES

1/ The final hearing had initially been scheduled for one day.

When Mr. Jessup filed a notice of a ppearance on behalf of

Respondent, he requested additional days. The ALJ had a hearing

already scheduled on December 15, 2010, but agreed to reconvene

on the December 16, 2010, for an additional day of testimony.

2/ Respondent offered Exhibit 50, a part ial transcript of a

ruling by a Circuit Court judge in a criminal proceeding, but

the exhibit was not accepted. Respondent's q ualified

r epresentative then improperly attached the exhibit to his

Proposed Recommended Order, but it was not considered in the

preparation of this Recommended Order.

3/ Watson did not refer to herself as an African - American, but

as a b lack American.

4/ Despite Viering's extensive testimony concerning her

religious beliefs and the posting of crosses and religious

sayings arou nd the House to ward off evil, she was unable to

accurately recite the Lord's Prayer at final hearing when asked

to do so.

5/ Watson said Viering had been introduced to the young man and

told he was Bryan's friend, but Viering does not recollect such

an introduction. Watson said Viering's association of the young

man with her (Watson) must be racially motivated.

COPIES FURNISHED :

Denise Crawford, Agency Clerk

Florida Commission on Human Relations

2009 Apa lachee parkway Suite 100

Tallahassee, Florida 32301

La wrence F. Kranert, Jr., General Counsel

Florida Commission on Human Relations

2009 Apalachee Parkway, Suite 100

Tallahassee, Florida 32301

Bahiyyih Watson

2611 Cedar Bay Point , Apartment 103

Casselb erry, Florida 32707

Christina Viering

1830 Dover Road

Winter Park, Florida 32792

Christina Viering

Post Office Box 141593

Orlando, Florida 32814

Jamison Jessup

Florida Education Advocate, Inc.

557 Noremac Avenue

Deltona, Florida 32738

John Chaves, Esquire

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 Ord er. Any exceptions

to this Recommended Order should be filed with the agency that

will issue the Final Order in this case.