10-009940 Elizabeth Sherlock vs. Wedgewood At Pelican Strand Neighborhood Association, Et Al; Newell Property Management, Et Al; Sheryl Whitaker, Owner And Cambridge Management, Et Al Status: Closed Recommended Order on Tuesday, June 7, 2011.

Summary: Petitioner failed to show prima facie case of discriminatory housing practice, where the facts showed that Respondent did not deny Petitioner access to her rented home.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

ELIZABETH SHERLOCK , )

)

Petitioner , )

)

vs. ) Case No. 10 - 9940

)

WEDGEWOOD AT PELICAN STRAND )

)

AL . ; NEWELL PROPERTY )

. ; SHERYL )

WHITAKER, OWNER ; AND CAMBRIDGE )

. , )

)

Respondents . )

)

RECOMMENDED ORDER

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

on May 16, 2011 , in Fort Myers, Florida, before Thomas P.

Crapps, a design ated Administrative Law Judge of the Division of

Administrative Hearings.

APPEARANCES

For Petitioner: Elizabeth Sherlock, pro se

245 Walnut Street, South

Belle Plaine, Minnesota 56011

For Respondent Cambridge Management :

Daniel J. Santaniello, Esq uire

Thomas J. Gibbons, Esq uire

Luks, Santaniello, Petrillo & Jones

110 S outheast 6 th Street , 20th Floor

Fort Lauderdal e, Florida 33301

STATEMENT OF THE ISSUES

Whether Respondent, Cambridge Management Inc., engaged in

housing discriminatory practice in violation of the Florida Fair

Housing Act, as amended, sections 760.20 through 760.37, Florida

Statutes (2010). 1/

P RELIMINARY STATEMENT

On June 25, 2010, Petitioner, Elizabeth Sherlock

(Ms. Sherlock), filed a complaint with United States Department

of Housing and Urban Development. She amended the complaint on

July 27, 2010 , alleging that Respondents , Wedgewood at Pel ican

Strand Neighborhood Association, et al., Newell Property

Management, et al., Sheryl Whitaker, owner, and Cambridge

Management, Inc. (Cambridge Management), discriminated against

her and her minor son based on sex and familial status.

On September 15 , 2010, the investigative report was issued

finding no cause to believe that a violation of the Florida Fair

Housing Act had occurred. On September 22, 2010, the Florida

Commission on Human Relations (Commission) issued a Notice of

Determination of No Cau se in the instant case.

On October 25, 2010, Ms. Sherlock filed a Petition for

Relief which alleged, in pertinent part, that Respondents

violated the Florida Fair Housing Act through "discriminatory

terms, conditions, privileges or services , and facilities ."

On November 2, 2010, the Commission transmitted

Ms. Sherlock's petition to the Division of Administrative

Hearings. On November 5, 2010, A dministrative L aw J udge Barbara

Staros issued an Initial Order. On November 29, 2010, the

instant case was tran sferred to A dministrative L aw J udge

Thomas P. Crapps. The case was set for hearing on January 31,

2011.

On December 22, 2010, Respondent , Wedgewood at Pelican

Strand Neighborhood Association, et al., requested a continuance

of the January 31, 2011 , heari ng, which was granted. The

hearing was rescheduled for March 2, 2011.

On February 4, 2011, Ms. Sherlock and Respondents ,

Wedgewood at Pelican Strand Neighborhood Association, et al.,

and Newell Property Management, et al., entered into a Joint

Stipulat ion of Voluntary Dismissal With Prejudice , and filed it

with the Division of Administrative Hearings.

On February 17 and 18, 2011, Petitioner filed two Motions

to Compel against the remaining Respondents , Sheryl Whitaker and

Cambridge Management. The d iscovery dispute centered, in part,

on a request for production of the "gate camera surveillance

tapes."

On February 28, 2011, Cambridge Management requested a

continuance of the final hearing set for March 2, 2011.

Ms. Sherlock did not object to the co ntinuance, and the final

hearing was rescheduled for March 30 and 31, 2011.

On March 25, 2011, at a case management hearing,

Ms. Sherlock informed the undersigned and Respondent,

Ms. Whitaker , that she was voluntarily dismissing Ms. Whitaker

from the case. Based on Ms. Sherlock's representation at the

case management hearing dismissing Ms. Whitaker , t he final

hearing concerned only Ms. Sherlock's allegations against

Cambridge Management.

On March 30, 2011, the undersigned began the final hearing.

At the hearing, disputes arose concerning trial subpoenas issued

by Ms. Sherlock, and her failure to file witness and exhibit

list s . The undersigned, on his own initiative, re - scheduled the

final hearing for May 16, 2011, and directed Ms. Sherlock to

file h er witness and exhibit list s before April 15, 2011, and

serve all her trial subpoenas before April 29, 2011.

On May 10, 2011, the Strand Golf and Country Club filed a

Motion to Quash Subpoena Duces Tecum that was served by

Ms. Sherlock seeking a copy of the surveillance tapes from a

gate guardhouse at the Strand Golf and Country Club, and a copy

of the Master Association contract between the Strand Golf and

Country Club and Cambridge Management. On May 12, 2011,

Ms. Sherlock filed a Motion to Amend Comp laint to Include

Punitive Damages against Cambridge Management.

Prior to beginning the hearing on May 16, 2011, the

undersigned heard both motions. First, concerning the Motion to

Quash Subpoena Duces Tecum , the undersigned took testimony and

determine d that the Strand Golf and Country Club did not appear

to be the proper entity , and did not have either surveillance

tapes of the gate guardhouse or a Master Association contract.

Based on the testimony, the undersigned granted the Motion to

Quash . Next, on the issue of Ms. Sherlock's motion seeking

punitive damages, the undersigned found that section

760.35(3)(b), Florida Statutes, did not provide statutory

authority to award punitive damages in an administrative

hearing. Therefore, Ms. Sherlock's motio n seeking punitive

damages was denied.

At the May 16, 2011 , final hearing, Ms. Sherlock presented

the testimony of five witnesses: Mr. Jules LeClaire

(Mr. LeClaire), Mr. William Weaver (Mr. Weaver), Mr. Charles

Sherlock (Mr. Sherlock), Major Rubele (Ms . Rubele) and herself.

Ms. Sherlock introduced into evidence one exhibit, labeled

Exhibit "B." Respondent, Cambridge Management , did not call any

witnesses or present any exhibits. The parties declined to

order a transcript of the proceedings and were directed to file

any proposed recommended orders within ten days of the

conclusion of the hearing.

On May 23, 2011, Ms. Sherlock filed a proposed recommended

order. Respondent, Cambridge Management , untimely filed a

proposed recommended order on June 2, 2011 . Both proposed

recommended orders have been considered by the undersigned.

FINDINGS OF FACT

1. In 2009 - 2010, Ms. Elizabeth Sherlock and her

nine - year - old son, Luke Sherlock, rented a home from Ms. Sheryl

Whitaker. The home was located in the Wedge wood II at Pelican

Strand located in Collier County, Florida. The lease was from

June 1, 2008 , until June 1, 2010.

2. Cambridge Management is the Master Association for the

condominium association for the Strand properties. Cambridge

Management did not rent or lease the home to Ms. Sherlock.

3. Ms. Sherlock testified that the homeowner's association

cited her for violations of the homeowner's association

covenants , based on her son engaging in normal childhood

activities such as climbing trees, archery , playing in the street

and the community clubhouse. Ms. Sherlock testified that she was

told in April 2010 that her lease would not be renewed , because

her son had run across a sand trap on the golf course during a

rain storm.

4. According to Ms. Sherlo ck, Cambridge Management

discriminated against her and her son by denying them access to

their rented home. 2/ Further, Ms. Sherlock testified that her

son suffered severe traumatic stress , based on the security

officers denying them access to their home. Finally,

Ms. Sherlock testified that the decision not to continue renting

to her caused her to move from the home and resulted in financial

hardship. Ms. Sherlock's Petition for Relief summarily states

that Respondents violated the Florida Fair Housing Act through

"discriminatory terms, conditions, privileges or services , and

facilities." The Petition for Relief does not contain any

specific factual allegation against Respondents.

5. The record does not support Ms. Sherlock's testimony

that Cambridge Management engaged in any discriminatory practice

or that it retaliated against her and her son in violation of the

Florida Fair Housing Act.

6. Mr. LeClaire is a security guard for the Wedgewood at

Pelican Strand. Mr. LeClaire testified that on June 24, 2010, at

approximately 9:00 p.m., he had stopped Ms. Sherlock at the gate

because his supervisor had told him that Ms. Sherlock may not be

a current resident. After confirming that she was still a

current resident, Mr. LeClaire allowed Ms. Sherlock t o access her

home through the gate. Although Mr. LeClaire's supervisor had

told him that Ms. Sherlock may not be a current resident, no one

from Cambridge Management had told Mr. LeClaire to deny

Ms. Sherlock access to her rented home.

7. Mr. Weaver is also a security guard for the Wedgewood at

Pelican Strand. Mr. Weaver testified that on July 2, 2010, at

approximately 9:00 p.m., he stopped Ms. Sherlock at the gatehouse

to determine whether or not she was a current resident.

Mr. Weaver credibly testifie d that he stopped Ms. Sherlock

because he did not recognize her as a resident. After he

verified that she was a current resident, Mr. Weaver allowed

Ms. Sherlock into the community. Mr. Weaver credibly testified

that he delayed her at most three minutes.

8. Mr. Charles Sherlock is Ms. Sherlock's father.

Mr. Sherlock resides in Naples, Florida , during the winter. He

testified about the close relationship that he enjoy s with his

grandson Luke. According to Mr. Sherlock, Luke felt that it was

his fault that he and Ms. Sherlock had been evicted from

Ms. Whitaker's home , and had to move to Minnesota. Mr. Sherlock

further testified that he had to pay for Ms. Sherlock's move to

Minnesota , and that he would like to be reimbursed for the costs.

9. Ms. Rub ele is an officer with Wackenhut S ecurity , and

she testified about the Wackenhut Standard Operating Procedure

for the Strand, and testifi ed that Wackenhut's contact person for

security was Ms. Brandy K. Callahan of Cambridge Property

Management.

10. Pri or to the final hearing, Ms. Sherlock voluntarily

dismissed, with prejudice, her claims against Respondents ,

Wedgewood at Pelican Strand Neighborhood Association, et al.,

and Newell Property Management, et al., and voluntarily

dismissed Respondent , Sheryl Whitaker.

CONCLUSIONS OF LAW

11. The Division of Administrative Hearings has

jurisdiction over the parties and subject matter pursuant to

section s 120.569 and 120.57, Florida Statutes (2010) .

12. The Florida Fair Housing Act, codified in sections

760.20 through 760.37 provides, in pertinent part, that:

(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 beca use 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.

§ 760.23, Fla. Stat.

13. Further, section 760.37 provides that it is "unlawful

to coerce, intimidate, threaten, or interfere with any person in

the exercise of, or on account of her or his having

exercised . . . " any rights under the Florida Fair Housing Act.

14. Petitioner bears the initial burden of proof to

establish a prima facie case of discrimination by a

preponderance of the eviden ce. 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 Dep artment of

C o m muni ty Aff ai r s v. Burdine , 450 U.S. 2 48, 252 - 253 (1981).

Following this approach, Ms. Sherlock must make a prima facie

case for discrimination. A prima facie showing of housing

discrimination requires Ms. Sherlock, as P etitioner, to show

that she was a member of a protected class; that she was ready,

able , and willing to continue her residency at her rental unit ;

that she was not in violation of the lease ; and that other

similarly situated individuals, who were not a member of her

class, were treated differently than her. See Soules v. U.S.

Dep't of Hous. & Urban Dev. , 967 F.2d 817, 822 (2d Cir. 1992).

If, the complainant (in this case Petitioner) fails to establish

a prima facie case of discrimination, the matter ends. See ,

e.g. , Nat'l Indus., Inc. v. FCHR , 527 So. 2d 894 (Fla. 5th DCA

19 88).

15. Applying the rules of law to the facts here, it is

clear that Ms. Sherlock has failed to bring forward evidence to

establish a prima facie case that Cambridge Management engaged

in a discriminatory housing practice. First, it is undisputed

that Ms. Sherlock is a member of a protected class based on

familial status and gender. Ms. Sherlock, however, failed to

bring forward evidence showing that she was qualified to

continue renting the home, or that similarly situated

individuals, who were not me mbers of her class, were treated

differently than her. The focus of Ms. Sherlock's evidence

concerned her complaint that Respondent, Cambridge Management,

through the security officers, had denied her access to her

rented home on two occasions. It was no t disputed that

Ms. Whitaker owned and leased the property to Ms. Sherlock.

Cambridge Management did not own, lease , or rent the home.

There is no evidence that Respondent, C ambridge Management ,

refused or failed to rent to Ms. Sherlock ; t hus, no eviden ce

that Respondent, Cambridge Management , violated the Florida Fair

Housing Act by refusing to rent or renew Ms. Sherlock's lease.

16. Next, assuming that Ms. Sherlock's complaint against

Respondent, Cambridge Management , is that it denied her access

to h er home based on a discriminatory purpose , or that it denied

her access to her home in retaliation for her housing complaint,

the record does not support the allegation. There was no

evidence that Ms. Sherlock was denied access to her rented home.

The ev idence brought forward showed that on two instances the

security officers stopped Ms. Sherlock to verify whether she was

a current resident. Upon verification, the security officers

allowed Ms. Sherlock to proceed to her rented home. The

testimony of Mr. Weaver credibly showed that the verification

took approximately three minutes and that Ms. Sherlock was

allowed to access her home. Further, the lone exhibit admitted

into evidence by Ms. Sherlock, the Standard Operating Procedure

for the Wackenhut S ecur ity O fficers, which is presumably

provided to security officers for the community, provides that

security officers are to verify the identification of persons

driving into the gated community. Ms. Sherlock did not bring

forward any evidence showing that o ther similarly situated

residents, who were not single women with children, were treated

differently than her. In fact, Mr. Weaver testified that

Ms. Sherlock was treated like any other resident when he needed

to verify whether or not the person was a cur rent resident of the

community. Based on the foregoing, Ms. Sherlock failed to

establish a prima facie case under the Florida Fair Housing Act.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of

Law, it is RECOMMENDED that the Flori da Commission on Human

Relations enter a final order of dismiss al of the Petition for

Relief.

DONE AND ENTER ED this 7th day of June , 2011 , in

Tallahassee, Leon County, Florida.

S

THOMAS P. CRAPPS

Administrative Law Judge

Division of Administrative Hearings

The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399 - 3060

(850) 488 - 9675

Fax Filing (850) 921 - 6847

www.doah.state.fl.us

Filed with the Clerk of the

Division of Administrative Hearings

this 7th day of June , 2011 .

ENDNOTES

1/ Unless otherwise indicated, all references to the Florida

Statutes are to the 2010 version.

2/ In the discovery proceedings and at trial, Ms. Sherlock

attempted to prove the existence of surveillance tapes of the

gate guardhous e. According to Ms. Sherlock, the surveillance

tapes would support her claim that the security officers had not

allowed her immediate access to her rental home. The testimony

was not disputed that the security officers had stopped

Ms. Sherlock from ente ring the community , and had required

verification that she was a current resident. Also, it was

undisputed that , after verification, Ms. Sherlock was provided

access to her rented home.

COPIES FURNISHED :

Denise Crawford, Agency Clerk

Florida Commissi on on Human Relations

2009 Apalachee Parkway, Suite 100

Tallahassee, Florida 32301

Daniel Santaniello, Esquire

Luks , Santaniello , Perez , Petrillo ,

Gold , and Jones

110 Southeast Sixth Street, 20 th Floor

Fort Lauderdale, Florida 33301

Lisa M. Szulgit, Esquire

Cole, Scott & Kissane, P.A.

1645 Palm Beach Lakes Boulevard, Second Floor

West Palm Beach, Florida 33401

Elizabeth Sherlock

245 Walnut Street, South

Belle Plaine, Minnesota 56011

Sheryl Whitaker

11313 Westgate Way

Spotsylvania, Virginia 22551

Andrew J. Wozniak, Esquire

Salvator, Wood, & Buckel, P.L.

9132 Strada Place, Fourth Floor

Naples, Florida 34108

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 thi s case.