10-010700 Lillian Craig vs. St. Joseph Garden Courts, Inc. Status: Closed Recommended Order on Wednesday, July 13, 2011.

Summary: Petitioner did not prove that Respondent discriminated or retaliated against her.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

LILLIAN CRAIG , )

)

Petitioner , )

)

vs. ) Case No. 10 - 10700

)

ST. JOSEPH GARDEN COURTS, INC. , )

)

Respondent . )

)

RECOMMENDED ORDER

Pursuant to not ice to all parties, a final hearing was

conducted in this case commencing on April 27, 2011, in Orlando,

Florida, before Administrative Law Judge R. Bruce McKibben of

the Division of Administrative Hearings.

APPEARANCES

For Petitioner: Lillian Craig, pr o se

12472 Lake Underhill Road, Unit 137

Orlando, Florida 32828

For Respondent: Sarah K. Newcomer, Esquire

Baker & Hostetler, LLP

200 South Orange Avenue , Suite 2300

Post Office Box 112

Orlando, Florida 32802 - 01 1 2

STATEMENT OF THE ISSUE S

The issues in this case are:

1. W hether Respondent, St. Joseph Garden Courts, Inc.

("Garden Courts"), discriminated against Petitioner, Lillian

Craig ("Craig"), on the basis of her race (Caucasian) in

violation of the Florida Fair Housing Act; and

2. Whether Gardens Courts retaliated against Craig when

she filed a discrimination claim.

PRELIMINARY STATEMENT

Craig filed a Petition for Relief with the Florida

Commission on Human Relations dated December 8, 2010. A copy of

the Petiti on was forwarded to the Division of Administrative

Hearings ("DOAH") on December 16, 2010.

At the final hearing, Craig called three witnesses: Craig,

Rev erend Robert Brown, and Carol Rackley. Craig's Exhibits 1,

3, 4, and 6 were admitted into evidence. Garden Courts called

one witness: Cynthia Mott, property manager for Garden Courts.

Garden Courts' Exhibits 1 through 14 were admitted into

evidence.

The parties advised that a transcript of the final hearing

would be ordered. By rule, parties were al lowed ten days to

submit proposed recommended orders ("PRO") , but Craig asked for

15 days to accommodate her lack of knowledge about the process.

Despite Garden Courts' objection, the parties were given 15 days

from the date the t ranscript was filed at DO AH. The Transcript

was filed at DOAH on June 3, 2011. Garden Courts later filed a

request for an additional 30 days to file its PRO; Craig

objected to the motion. An additional amount of time was

allowed for both parties to file their PROs, but Craig fi led

hers in advance of the filing date. Thereafter, Garden Courts

filed a renewed motion for additional time. The motion was

partially granted. Craig and Garden Courts each timely

submitted a PRO . Each was duly considered in the preparation of

this Rec ommended Order.

FINDINGS OF FACT

1. Craig is an elderly Caucasian woman , who at all times

material hereto resided at Garden Courts.

2. Garden Courts is a federally - funded, multi - unit housing

project that provides housing to elderly and lower income

in dividuals under Section 202 of the Housing Act of 1959, as

amended.

3. On February 27, 2009, Craig entered into a "202 Project

Rental Assistance Contract" (the "Lease") with Garden Courts.

Craig agreed to lease Unit 311 for the sum of $465.00 per month ,

plus $60.00 per month for utility services. Craig agreed to

abide by all terms and conditions of the Lease, including the

Rules and Regulations attached thereto as an addendum.

4. The Rules and Regulations attachment contains the

following provision at paragraph 30:

Authorized personnel will enter the

apartment periodically for routine

inspections, maintenance

replacement/repairs, and pest control.

Routine inspections, as required by HUD, are

conducted to determine the condition of the

dwelling unit, t hat the unit is decent, safe

and sanitary, and in good physical

condition. Inspections may reveal possible

lease violations. Photographs will be taken

if determined necessary. Any lease

violations found during these inspections

may result in termination of tenancy.

5. On October 10, 2010, Garden Courts conducted a routine

housekeeping and maintenance inspection of Unit 311. Mott, as

property manager, headed up the inspection. Mott used a form

checklist consistent with Department of Housing and Urban

Development (HUD) guidelines for the inspection.

6. Inspections of several other units were performed on

the same day. The inspections were conducted by Mott with the

assistance of Rudy (last name not provided), the maintenance

director. Generally, Mott would inspect the kitchen and

bathroom, while Rudy inspected the bedroom(s). Inspections were

performed to assure cleanliness, orderliness, and compliance

with all safety requirements.

7. Upon inspection of Unit 311, Mott determined that there

was one minor deficiency, a dirty stovetop, and one major

problem, a fire hazard in the bedroom. The apartment was deemed

free of roaches and vermin, free of trash and garbage, and in a

"fair" state of cleanliness. Photographs were taken on the unit

to document the major deficiency.

8. The situation causing a major fire safety problem in

the unit was that Craig had boxes and furniture stacked up in

the bedroom which blocked the outside window. Inasmuch as there

need to be two methods of ingress/egress for eac h room, the

boxes illegally blocked one of the escape routes. The boxes

also were stacked so high that the inspectors could not reach

the smoke detector to determine whether it was functional.

Further, the boxes blocked the electrical outlets so that the y

could not be tested. The fact that the boxes contained lots of

paper was a concern to Garden Courts due to the possibility of

fire.

9. Due to the deficiencies, a follow - up inspection had to

be scheduled. Garden Courts usually ask ed the tenant whether he

or she want ed the re - inspection to occur within 15 days or 30

days. In this case, Craig asked for some time to rectify the

problem and requested re - inspection a month later. Garden

Courts honored her request and scheduled a re - inspection for the

unit o n September 10, 2010, one month after the initial

inspection.

10. Craig was advised by Mott that the boxes and furniture

in the bedroom were the cause of Craig's apartment not passing

the inspection. There is no credible evidence that Mott told

Craig to move the boxes or face eviction. The best evidence is

that Craig understood the need to move the boxes and volunteered

to do so if she was afforded ample time. When Mott came back to

re - inspect the unit a month later, the boxes had been moved.

11. Craig claims she was treated differently from other

tenants during her inspection. On the same date that Unit 311

was initially inspected, Mott and Rudy also inspected Units 210,

217, 306, 325, 119, and 116. The tenants of each of those units

were Hispanic. Craig asserts that she was treated differently,

because she was not Hispanic. That is, Unit 116 also had an

issue relating to stacks of boxes, but Mott did not take a

picture of that apartment. According to Mott, that was because

the other unit was not, in her opinion, as severe a problem as

Craig's unit.

12. Each of the Hispanic tenants was given two weeks to a

month to correct his or her cited deficiencies, depending on the

nature and severity of the issues. Craig was allowed one full

month to correct her deficiencies. The tenant of Unit 116 was

ultimately given additional time to move the boxes in her

apartment due to her physical condition. That tenant asked for

and received additional time; Craig did not ask for additional

time , because she was abl e to move her boxes before the

scheduled re - inspection.

13. Shortly after the re - inspection, Craig contacted the

Jacksonville HUD office to complain about her treatment by Mott.

Craig actually filed a Housing Discrimination Complaint with

HUD, alleging d iscrimination based upon her race, Caucasian.

HUD notified Mott about the complaint and asked Mott to speak to

Craig about the allegations. Mott then tried to contact Craig

to discuss the complaint. However, the phone number Mott had

for Craig did not h ave a voice mailbox set up, so Mott was not

able to leave Craig a message.

14. On September 15, 2010, Craig returned to Garden Courts

after doing some grocery shopping. As she walked through the

lobby, Mott asked her to stop and talk for a moment concerni ng

the HUD complaint. Craig indicated that she could not talk at

that time because she had to get her groceries put away. Mott

told Craig that attempts to leave Craig a message on her cell

phone were thwarted due to the fact that the message box had not

yet been set up. Craig disputed that statement, saying that she

was receiving messages from other people. Craig says that Mott

grabbed her arm and yelled at her. Mott remembers only speaking

to Craig in a normal tone of voice and requesting a meeting.

There is no persuasive evidence as to how the conversation

actually occurred.

15. Mott awaited a return call or visit from Craig for a

few hours, then drafted a letter to Craig when there was no

further contact. The letter again asked Craig to contact Mot t

to discuss the HUD complaint. The letter included the cell

phone number that Mott had on file for Craig and asked Craig to

contact Mott by the end of the following day. Craig, however,

was apparently unwilling to talk with Mott on her own, so she

went to speak with an attorney, rather than contacting Mott.

16. There is no indication that Mott and Craig ever had a

meaningful discussion between themselves about the fire hazard

issue. At some point in time, a meeting was held that both Mott

and Craig, alo ng with legal counsel, attended. However, the

results of that meeting are not in evidence.

CONCLUSIONS OF LAW

17. The Division of Administrative Hearings has

jurisdiction over the parties to and the subject matter of this

proceeding pursuant to sections 1 20.569 and 120.57(1), Florida

Statutes (2010). 1/

18. Florida's Fair Housing Act (the "Act") is codified in

sections 760.20 through 760.37, Florida Statutes. Subsection

760.23 reads in pertinent part:

Discrimination in the sale or rental of

housing and oth er 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 of services or

facilities in connection therewith, because

of race, c olor, national origin, sex,

handicap, familial status, or religion.

19. Craig has the burden of proving by a preponderance of

the evidence that Garden Courts violated the Act by

discriminating against her as alleged in her complaint.

§§ 120.57(1)(j) and 760.34(5).

20. There is, in housing discrimination cases, a shifting

of the burden of persuasion between a petitioner and a

respondent. In McDonnell Douglas Corp. v. Green , 411 U.S. 792

(1973), the Supreme Court established an analysis to be

followed. Un der that analysis, a petitioner has the initial

burden to prove a prima facie case of discrimination.

21. In order to establish a prima facie case, Craig must

simply show that she is a member of a class (Caucasian); that

she is ready, willing , and able to reside in the apartment; that

Gardens Court is aware of her class; and that Gardens Court took

some adverse action against her. The prima facie case has been

established.

22. The burden then shifts to Garden Courts to show that

the action it took -- makin g Craig remove the boxes from

Unit 311 -- was based on a legitimate, nondiscriminatory reason.

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

As shown, Garden Courts took that action in order to prevent a

fire safety hazard in Craig's apartm ent. The action was

consistent with actions taken against other, non - Caucasian

tenants and was in accord with HUD guidelines which are applied

to all tenants.

23. That being the case, the burden then shifts back to

Craig to prove that Garden Courts' ratio nale was mere pretext

and that the real reason for action was discrimination. There

is no evidence in the record to support that contention. There

is no evidence that Gardens Court discriminated against any

class of person, Caucasian or Hispanic or other . There is no

evidence that any action taken by Garden Courts was pretext for

some improper action.

24. As to Craig's claim of retaliation, there was no

evidence presented, persuasive or otherwise, that Gardens Court

took any action whatsoever that would support the claim. None

of the evidence presented could reasonably be inferred to

substantiate such a claim.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of

Law, it is

RECOMMENDED that a final order be entered by the Florida

Co mmission on Human Relations dismissing the Petition for Relief

filed by Lillian Craig in its entirety.

DONE AND ENT ERED this 13th day of July , 2011 , in

Tallahassee, Leon County, Florida.

S

R. BRUCE MCKIBBEN

Administrati ve 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 13th day of July , 2011 .

ENDNOTE

1 / Unless specifically stated otherwise, all references to

Florida Statutes shall be to the 2010 version.

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

Lillian Craig

12472 Lake Underhill Road, Unit 137

Orlando, Florida 32828

Cindy Mot t, Property Manager

St. Joseph Garden Courts, Inc.

1515 North Alafaya Trail

Orlando, Florida 32828

Sarah K. Newcomer , Esquire

Baker & Hostetler, LLP

200 South Orange Avenue , Suite 2300

Post Office Box 112

Orlando, Florida 3280 2 - 0112

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.