11-003319 Florida Commission On Human Relations On Behalf Of Jeannette Shaw-Perez vs. City Of Holly Hill Status: Closed Recommended Order on Tuesday, May 22, 2012.

Summary: Petitioner failed to demonstrate that Respondent committed a violation of the Fair Housing Act by coercing, intimidating, threatening, or interfering with Petitioner in the exercise of her rights granted in the Act.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

FLORIDA COMMISSION ON HUMAN )

RELATIONS, ON BEHALF OF )

JEANNETT E SHAW - PEREZ , )

)

Petitioner , )

)

vs. ) Case No. 11 - 3319

)

CITY OF HOLLY HILL , )

)

Respondent . )

)

RECOMMENDED ORDER

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

on April 16, 2012, by video teleconference at sites in

Tallahassee, Florida and Daytona Beach, Florida, before E. Gary

Early, a designated Administrative Law Judge of the Division of

Administrative Hearings .

APPEARANCES

For Petitioner: Jeannette Shaw - Perez , pro se

1415 Climax Street

Burlington, North Carolina 27217

For Respondent: S cott E. Simpson , Esquire

Korey, Sweet, McKinnon, Simpson & Vukelja

595 West Grenada Boulevard , Suite A

Ormond Beach , Florida 32 174 - 5181

STATEMENT OF THE ISSUE

Whether Petitioner was the subject of unlawful coercion,

intimidation, threats, or interference in the exercise of her

rights in connection with RespondentÓs regulatory actio ns

regarding rental property owned by Petitioner , in violation of

s ection 818 of Title VIII of the Civil Rights Act of 1968, as

amended by the Fair Housing Act of 1988 and the Florida Fair

Housing Act, c hapter 760, Part II, Florida Statutes (2011).

PRELIMINARY STATEMENT

On August 31, 2010 , Petitioner executed a Housing

Discrimination Complaint with the U.S. Department of Housing and

Urban Development (HUD) and the Florida Commission on Human

Relations (FCHR), alleging that she was discriminated against by

Respondent based on her race. 1/ The basis for the claim of

discrimination is that Respond ent engaged in a pattern of code

enforcement that was disproportionate to that taken with regard

to white property managers , and as a result constituted unlawful

coercion, intimidation, threats, or interference in the exercise

of her rights in connection w ith her rental property in

violation of the Fair Housing Act.

An investigation of the complaint was made by HUD . On

October 19, 2010 , HUD issued its Determination, which conclud ed

that there was reasonable cause to believe that a discriminatory

housing pr actice had occurred.

On November 17, 2010, the FCHR issued a Notice of

Determination (Cause). Petitioner elected to have the FCHR file

a petition for an administrative hearing on her behalf. On

June 27, 2011, a Petition for Relief was served by the FCHR. 2 /

The petition was forwarded to the Division of

Administrative Hearings for a formal hearing on the matter. The

final hearing was scheduled for September 6, 2011 . Petitioner

requested that the case be placed in abeyance, which motion was

unopposed. T he hearing was subsequently reset for January 9 ,

2012 .

On December 22, 2011, counsel for the FCHR moved to

withdraw as counsel of record. The motion was twice amended,

with the last amendment being filed on January 4, 2012. Good

cause having been shown, the motion to withdraw was granted on

January 4, 2012. The January 9, 2012 , hearing was continued,

without objection by Respondent, to allow Petitioner an

opportunity to retain substitute counsel.

On February 3, 2012, substitute cou nsel filed a Notice of

Limited A ppearance and Motion to Extend Time. The Notice

indicated that one day in April, 2012 , would be suitable for the

final hearing. The hearing was thereupon set for April 16,

2012.

On March 30, 2012, PetitionerÓs substitute counsel filed a

Notice of Non - Representation, which indicated that the terms of

his limited appear ance having been completed, he no longer

represented Petitioner. The notice was accepted as a m otion to

w ithdraw as c ounsel, and was granted on April 3, 2012. The case

proceeded with Petitioner appearing pro se. Respondent filed a

Pre - hearing Statement that established its position regarding

the issues in the case.

The hearing was held on April 16, 2012 as scheduled . At

the hearing, Petitioner testified on her own behalf. Petitioner

o ffered PetitionerÓs Exhibits P1 - P 17 , whi ch were received in

evidence. Respondent presented the testimony of Kurt

Swartzlander, Finance Director for the City of Holly Hill .

Respondent o ffered RespondentÓs Exhibits A - S , which were

received in evidence.

During the hearing, Petitioner was allowed to testify as to

a n alleged change in water metering and billing at her property

that was not specifically pled in her housing discrimination

co mplaint. Her testimony was accepted as providing contextual

evidence of a pattern or practice regarding her allegations of

discrimination. Since the issue of the water metering and

billing had not been specifically pled, Respondent was granted

leave to supplement the record as to that limited issue. On

April 19, 2012, Respond ent filed the affidavits of Kurt

Swartzlander and Valerie Manning, along with RespondentÓs

business records for water billing at the Dubs Drive location

for a period commencing prior to her purchase of the property to

the present. The affidavits and recor ds are consistent with and

supplement Mr. SwartzlanderÓs testimony, and are accepted as

RespondentÓs ExhibitÓs T and U.

The two - volume Transcript was filed on May 2, 2012 , and a

Notice of Filing Transcript was entered that established May 14,

2012 , as the date for filing Proposed R ecommended O rders . The

parties timely filed their Proposed Recommended Orders, which

have been considered in the preparation of this Recommended

Order. References to statutes are to Florida Statutes (2011)

unless otherwise noted .

FINDINGS OF FACT

1. Petitioner, an African - American woman, owns and manages

a residential tri - plex rental unit located at 302 Dubs Drive,

Holly Hill, Florida . Dubs Drive is zoned R - 2 single - family

residential . PetitionerÓs tri - plex was constructed in 1955, and

is grandfathered as a non - conforming use. The other houses on

Dubs Driv e are newer, and are all single - family homes.

2 . Petitioner purchased the tri - plex in 1998. At the time

of her purchase, t he tri - p lex consist ed of a single - story

building with 3 apartments and two garages, and was configured,

from south to north, as a two - bedroom apartment, a two - bedroom

apartment, a one - bedroom apartment, a garage with a washer/dryer

connection, and a garage with a toilet. T he garages had drywall

interiors, except that the ceilings lacked drywall.

3 . After she purchased the tri - plex, Petitioner hired

Arthur Kowitz, a realtor, to manage the property for her. He

performed management services from the time of the pu rchase

until 2001. Mr. Kowitz is white.

4. In 2001, Petitioner retained All - Florida Realtors to

manage the property. All - Florida performed management services

from 2001 t o 2004. All - Florida is a white - owned company.

5. In 2004, Petitioner retained Jo hn Benzette to manage

the property. Mr. Benzette performed management services from

2004 through November 2007. Mr. Benzette is white.

6 . In 2004, Petitioner applied to Respondent for a permit

to install an electric meter at the tri - plex. The purpose o f

the meter was not to serve the apartments -- each of which

already had meters by which the tenants individually received

and paid for service -- but was a Ðhouse meterÑ or ÐlandlordÓs

meterÑ for exterior lighting, garage lighting and outlets, and

other uses common to the tri - plex. The permit was issued, and

the meter was installed . During one of the 2005 hurricanes that

hit the area , the meter was knocked off of the unit by falling

debris . It was not reinstalled at that time.

7 . The property ma nagers from 1998 through 2007 were

responsible for general maintenance and repair activities.

Those types of activities did not require building permits.

8 . From the time she purchased the tri - plex in 1998 , until

2008, the unit was not su bject to any for mal code - enforcement

actions by Respondent.

9 . Starting in December, 2007, Petitioner began managing

the tri - plex on her own. One of the first activities she

performed as owner/manager was the conversion of the garage on

the northern end of the building -- separated from the

apartments by the other garage -- to a living space. That was

accomplished by removing the garage door, constructing a block

wall with a window and exterior door, completing interior

drywall work , and installing a shower. Petitione r did not apply

for or receive a building permit for the work.

10 . As part of the construction, Petitioner had the

electric meter that was knocked off in 2005 renovated and

reinstalled onto the unit. When Petitioner requested service

from Florida Power & Light, Florida Power & Light contacted

Respondent to confirm a legal connection .

11 . Respondent sent employees Mark Ballard and Tim Harbuck

to the tri - plex . At that time, it was determined that

Petitioner had performed construction without a building pe rmit.

12 . Respondent Ós employees initially thought the new

living space was to be rented as a fourth apartment, an act that

would have constituted an unallowable expansion of the non -

conforming use of the property. Their belief was not

unreasonable, as t he configuration of the converted garage was

conducive to its being used as a separate apartment, and since

Petitioner subsequently placed a ÐFor RentÑ sign on the unit,

despite the fact that she was living in apartment #3 at the

time. However, Petition er has denied that the rental of the

converted garage as a separate unit was her intent , but that the

converted garage was intended as an added room for apartment #3 .

Regardless of whether the conversion of the garage was intended

to result in a separate apartment, the construction required a

building permit.

13 . As a result of the determination that the construction

was not permitted, the meter was removed on February 8, 2008.

The requirement that the meter be removed, despite the 2004

permit, was not r elated to PetitionerÓs race, but was related to

the unauthorized construction and intended use of the converted

garage.

14 . On April 25, 2008, Respondent sent Petitioner a Notice

to Appear at a hearing before a s pecial magistrate . The notice

provided that the purpose of the hearing was the Ðviolation of

City Ordinance Building Permit Required.Ñ The hearing was set

for May 14, 2008.

15 . Petitioner asserted that she called the telephone

number printed on the notice to a scertain the purpose of the

May 14, 2008 , hearing. She alleged that she was told by an

unnamed city employee that the hearing was to be held regarding

issues pertaining to her rental license. The evidence of the

call was entirely hearsay, and was not corroborated by any non -

hearsay evi dence. Regardless of the substance of the telephone

call, the notice plainly stated that the purpose of the hearing

was related to a required building permit.

16 . The hearing was held as scheduled on May 14, 2008. At

the hearing, Petitioner was advised that the subject of the

hearing was the unpermitted construction at the Dubs Drive

location. Petitioner, claiming to have had no knowledge of the

subject of the hearing, requested a continuance to retain an

attorney to represent her. The request was denied.

17 . At the hearing, it was determined that, at a minimum,

Petitioner removed the garage door, blocked up the front of the

garage and installed a door and window in its place to convert

it to living space , and installed a shower.

18 . On May 22, 20 08, the s pecial m agistrate entered an

Order of Non - Compliance in which he concluded that Petitioner

violated the Holly Hill Zoning Ordinance requiring a building

permit for the work done on the property , required Petitioner to

obtain a building permit, and imposed an administrative fine of

$250.00. If the corrective measures were not taken, or the fine

was not paid, the Order authorized an additional penalty of

$150.00 per day, and authorized Respondent to place a lien on

the Dubs Drive location. Petition er was warned that she was not

to use the renovated garage as a separate dwelling unit, but

could only use it as an addition to apartment # 3.

19 . The action by Respondent to enforce its building code

was entirely appropriate, and was undertaken with all d ue

process rights having been afforded to Petitioner. There was no

evidence presented to support a finding that PetitionerÓs race

had anything to do with RespondentÓs reaction to PetitionerÓs

unpermitted construction , or that Respondent failed to enforce

its building code, including permit requirements , against

similarly - situated property owners who were not members of

PetitionerÓs protected class .

20 . Petitioner paid the administrative fine on June 2,

2008, and received the after - the - fact building permit on

June 10, 2008.

21 . On September 5, 2008, Respondent placed a lien on the

Dubs D rive location based on its mistaken belief that Petitioner

had failed to pay the $250.00 administrative fine. The notice

of lien letter was received by Petitioner on Nove mber 18, 2008.

Petitioner advised Respondent t hat she had paid the fine.

Ms. Sue Meeks confirmed that the fine was paid, and Respondent

promptly recorded a satisfaction of lien. The evidence

indicates that the decision to record the lien was a

bureaucra tic error that was immediately corrected. There was no

evidence presented to support a finding that PetitionerÓs race

was RespondentÓs m otive for recording the lien.

22 . A b usiness t ax r eceipt is required for each of the

three apartments at the Dubs Drive location in order for

Petitioner to engage in the business of real estate rental .

Authorization for t he business tax receipt was adopted by

ordinance by Respondent in July, 2000 , and is applic able to all

rental units in the city of the type owned by Petitioner. Prior

to July 2000, Respondent did not require a n owner of a small

rental location to obtain a business tax receipt.

23 . The business tax receipt ordinance required Respondent

to perf orm annual inspections of businesses within its municipal

boundaries. The inspections were started in 2000 or 2001.

24 . Business tax receipts are issued for a term from

October 1 to September 30 of each year. If a business tax

receipt is not renewed on time, Respondent is authorized to

assess a 25 percent penalty , plus additional filing fees.

25 . For 2008 - 2009, Petiti oner timely paid the business tax

receipt s for apartment Nos. 1 and 2. The tax was $45.00 for

each apartment. Petition er failed to pay the business tax

receipt for apartment # 3 until March 2009 , after the renewal

date had passed . Therefore, a penalty an d additional filing

fees were assessed which raised the business tax receipt fee for

that apartment to $70.00. Petitioner alleged that Respondent

ÐoverchargedÑ her for the apartment #3 business tax receipt,

which she construed as evidence of a pattern of discrimination.

The evidence demonstrates that the $70.00 charge was the result

of PetitionerÓs failure to timely renew, and was not the result

of discrimination based on her race. There was no evidence

presented to support a finding that PetitionerÓs ra ce had

anything to do with RespondentÓs assessment of late penalties

and fees, or that Respondent failed to assess such late

penalties and fees against similarly - situated rental apartment

owners who were not members of PetitionerÓs protected class.

26 . On or about February 6, 2009, Respondent issued a

violation notice alleging that Petitioner failed to renew her

business tax receipt for apartment # 1 and # 2. The notice was

posted on the doors of the apartment s on February 10, 200 9 . The

notice allowed three days to correct the violation, a period

that had already passed when the notice was received.

Petitioner had already paid the business tax receipt, and went

to city hall to inquire about the violation notice. She was

advised that her check, identi fied by Petitioner as check #486,

had not been received. Petitioner went to Bank of America to

stop payment on check #486, for which a banking fee of $30.00

was assessed. Upon her return to city hall, Petitioner was

advised that a search had resulted in the discovery of check

#486 on a city employeeÓs desk. It had not been cashed.

Petitioner wrote a replacement check . Respondent credited

PetitionerÓs utility bill for $30.00 to reimburse her for the

Bank of America stop - payment charge and the matter was resolved

without further ado. Petitioner alleged that the incident was

Ðharassment,Ñ which she construed as further evidence of

discrimination. To the contrary, t he evidence demonstrates that

the violation notice was a minor bureaucratic error that was

promptly corrected, and for which Petitioner was made

financially whole. There is no evidence in the record that the

incident was the result of discrimination based on PetitionerÓs

race.

27 . On February 19, 2009, Petition er wrote Respondent to

express he r belief that she was being overcharged for water.

She had a single meter to serve the Dubs Drive tri - plex, but was

being charged for three connections. In fact, Petitioner had

three apartments. In such cases, Respondent bills for each unit

served by a single Ðmaster meter.Ñ The minimum bill per

apartment includes 2000 gallons of water per month, with

additional usage added as an additional charge. Respondent

billed for three connections at the Dubs Drive location since at

least 1997, prior to Petition erÓs purchase of the tri - plex.

28 . Petitioner inquired whether she could have separate

meters installed for each apartment, rather than having minimum

and total bills determined by the Ðmaster meter.Ñ Respondent

would not allow separate meters since the Dubs Drive tri - plex

was a non - conforming use in a single - family zoned area, and the

installation of separate meters would Ðenhance the non -

conformity.Ñ

29. RespondentÓs approach to billing for water in multi -

family locations accounts for the demand cre ated by three

families versus one family. The evidence demonstrates that

Respondent bills all multi - unit complexes in a manner to account

for the demand of multiple family consumption on its water

facilities. There is no evidence in the record that

Respo ndentÓs billing practice for water consumption was applied

to Petitioner differently from any other multi - family

facilities, or was the result of discrimination based on

PetitionerÓs race.

30 . On or about March 3, 2009, as a result of an annual

inspectio n conducted as part of the business tax receipt

process, Respondent cited Petitioner for several deficiencies at

the Dubs Drive tri - plex , including a lack of smoke alarms, some

windows that would not open, and a lack of GFI (ground - fault

interrupter) elect rical outlets at one location in apartment # 1,

and two locations in apartment # 2. GFI outlets are commonly

known to prevent shocks, and are required at locations where the

outlets may be exposed to water, e.g. kitchens and bathrooms.

Petitioner installed the GFI outlets. There was no other

sanction or penalty. There is no evidence in the record that

the requirement that Petitioner install a reasonable and

necessary safety feature in apartments being rented to others

was the result o f discrimination based on PetitionerÓs race.

31 . On or about March 24, 2009, during the follow - up

compliance inspection of the tri - plex, one of PetitionerÓs

tenants advised the inspector that Petitioner had been living in

the converted garage for two mont hs, and was receiving mail in

Ðmailbox #4Ñ during that period. The use of the converted

garage as a separate living unit would be a violation of

RespondentÓs zoning ordinance regarding limitations on the

expansion of a non - conforming use , and would have v io lated the

special magistrateÓs O rder entered at the May 14, 2008 , hearing .

As a result, Respondent issued violation notices to Petitioner

on March 24, 2009 , and March 27, 2009, each of which concerned

the use of the converted garage as a separate living unit. The

March 27, 2009 , notice indicated that Petitioner and Respondent

were Ðworking to resolveÑ the issue.

32 . On March 31, 2009, Respondent provided Petitioner with

a letter resolving the separate living unit issue that stated:

This letter is to in form you of the

requirements of Compliance in reference to

302 Dubs Ave.

1. Your triplex must not be occupied by

more than 3 separate families.

2. The new addition on the north end of the

building can be used in conjunction with #3,

[b]ut can not be used as a separate unit.

3. Mailbox #4 must be taken down within 45

Days of this date. (March 31, 2009)

The letter contained nothing more than a straight - forward

recitation of the terms and conditions applicable to the non -

conforming residential structure. Respondent imposed no

penalties or sanctions. There is no evidence to suggest that

Respondent imposed terms or conditions on the use of the tri -

plex different f rom any other similarly - situated non - conforming

structure. There is no evidence in the record that RespondentÓs

response to the tenantÓs statement that Petitioner was using the

converted garage as a fourth apartment was either

disproportionate under the circumstances, or was the result of

discrimination based on PetitionerÓs race.

33 . On April 30, 2009, the tenants of apartment #2 wrote

to Petitioner with a long list of complaints regarding the

conditions at the apartment that, on their face, were very

serious, and which included structural, electrical, plumbing,

and safety issues. The couple that live d in the apartment w as

white. The fact that the tenants were white does not minimize

the fact that their concerns were legitimate.

34 . Having received no response to their complaints, t he

tenants called Respondent about the living conditions. In

accordance with RespondentÓs routine practice regarding

complaints, Ms. Meeks was dispatched to inspect the property.

Her inspection of apartment #2 confirmed the tenant complaints .

Ms. Meeks also inspected apartment #1 at the request of the

tenants of that apartment, and noted problems with Ð the b ottom

of the walls pealing [sic.] off and has some kind of bugs that

are biting the children that live there.Ñ The tenants also

provided Ms. Meeks w ith a list of dates on which they alleged

Petitioner had been staying in the converted garage which, if

true, would have indicated that Petitioner used the addition as

a separate living unit for more than 50 days over a three - month

period.

35 . Respondent sent Petitioner a letter detailing the

problems observed during the inspection, and advising Petitioner

that her issues would be taken up at a h e aring before the

Special Master on July 8, 2009. The letter was received by

Petitioner on June 15, 2009. The time between the letter and

the scheduled hearing was ample time for Petitioner to correct

the problems.

36 . On June 24, 2009, Respondent served Petitioner with a

Notice to Appear at the July 8, 2009 , hearing.

37 . On June 25, 2009 , and June 29, 2009, Res pondent

obtained written statements from the tenants of apartment #2

detailing the problems that they had encountered with their

leased apartment. Their statements were consistent with the ir

earlier descriptions and the results of the inspection .

38 . O n July 7, 2009, Petitioner requested a continuance of

the July 8, 2009 , hearing due to the death of her father. The

request was granted by notice dated July 15, 2009, and the

hearing was continued to August 12, 2009. Respondent was

directed to Ðbring pro of of her fatherÓs passingÑ to the August

hearing. On July 27, 2009, Respondent reissued a Notice to

Appear for the August 12, 2009 , hearing.

39 . On August 12, 2009, a hearing was convened before the

special magistrate. Petitioner was represented by counsel. At

the hearing it was determined that the back door of apartment #2

had been replaced to the tenantÓs satisfaction, though

Petitioner failed to obtain a building permit for the same, and

that the electrical issue wit h the GFI outlet and the water

heater breaker had been resolved. It was ultimately determined

to be in the best interest of all of the parties to have the

tri - plex inspected by Respondent, and to reconvene the hearing

in September, 2009 .

40. Petitioner asserted that the August 12, 2009 , hearing

was continued because a white tenant had not appeared at the

hearing to tes t ify against her. The record does not support

that reason.

41. An Order Continuing Case was entered on August 26,

2009 . The Order noted that Petitioner had not produced evidence

of her fatherÓs death as instructed. On August 27, 2009,

Respondent reissued a Notice to Appear for September 9 , 2009.

4 2 . On August 18, 2009, Respondent conducted an inspection

of the tri - plex. It was det ermined that some of the

deficiencies identified in the June notice had been made, but

others had not.

4 3 . The hearing was reconvened on September 9, 2009.

Petitioner was represented by counsel. After considerable

discussion, it was determined that Petitioner had substantially

resolved the issues identified in the June notice, some more

recently than others. The special magistrate assessed a $250.00

administrative fine for the initial items of non - compliance

resulting in the n eed to have the hearings, and $300.00 for

failure to make repairs within a reasonable period after the

initial notice in June . Petitioner also produced a copy of her

fatherÓs obituary as proof of his death in July. An Order of

Non - Compliance reciting the outcome of the hearing was entered

on September 25, 2009. The Order was not appealed.

44. Petitioner stated her belief that the requirement that

she provide evidence of her fatherÓs death to substantiate the

basis for the July 7, 2009 , request for cont inuance was imposed

as a result of harassment and discrimination against her due to

her race. Although the requirement that she produce an obituary

or the like seems insensitive and unnecessary, there was no

evidence that PetitionerÓs race was the basis f or the request,

or that such a requirement was not imposed on all persons

seeking a continuance of a code enforcement hearing, regardless

of race.

4 5 . On November 4 , 2009, the special magistrate, after

having received evidence of the completion of the r epairs from

Respondent , entered an Order of Compliance by which he found all

of the deficiencies at the Dubs Drive location had been

satisfactorily resolved.

4 6 . Petitioner has alleged that the code enforcement

actions taken by Respondent were part of a pattern of harassment

and intimidation directed at her because of her race. She

argued that her white property managers were not cited for

violations , thus esta blishing evidence of racial bias. While it

is true that some of the violations for which Petitioner was

cited concerned issues that pre - dated PetitionerÓs assumption of

management duties in December 2007, e.g., the use of interior -

grade doors being used a s exterior doors and the lack of GFI

outlets, there was no evidence that Respondent ever noticed

those deficiencies, or that any tenant had ever complained.

4 7 . T he evidence demonstrates that the triggering event

that drew the attention of RespondentÓs co de enforcement section

was not PetitionerÓs race, but was PetitionerÓs unpermitted

conversion of the garage into living space. The other

triggering event was the complaint filed with Respondent by

PetitionerÓs tenants that alleged crumbling infrastructure ,

including the very poor condition of the exterior doors. Both

incidents properly resulted in thorough inspections. There was

no event at the Dubs Drive location prior to December 2007 , that

would have resulted in increased scrutiny . Thus, the evidence

demonstrates that RespondentÓs actions were reasonable and

appropriate responses to conditions at the Dubs Drive location

that were brought to its attent ion by the actions of Petitioner

and her tenants, conditions for which Respondent wo uld have been

remiss had it failed to act. The evidence in this proceeding

does not support a finding that RespondentÓs actions were taken

due to PetitionerÓs race.

4 8 . The evidence produced at the hearing contained not a

shred of competent, substantial evidence that would support a

finding that Respondent took any action regarding the Dubs Drive

tri - plex because of PetitionerÓs race. Rather, the evidence

supports a finding that Respondent was appropriately exercising

its police powers to ensure that ren tal dwelling units within

its jurisdiction are safe and sanitary. If anything, Respondent

and the special magistrate treated Petitioner with considerable

patience, restraint , and leniency given the nature of the non -

compliance resulting from the unpermitted renovations , and from

the delays in making necessary repairs to the property.

49. PetitionerÓs dated signature on the Housing

Discrimination Complaint that forms the basis for this

proceeding indicates that Petitioner filed her initial complai nt

of discrimination no earlier than August 31, 2010. However, the

HUD Determination gives two dates on which Petitioner supposedly

filed her complaint -- August 13, 2010 , and September 2, 2009.

Given the findings and conclusions herein that Respondent h ad no

racial animus or bias in its actions regarding Petitioner --

going back to the December 2007 date on which Petitioner assumed

her property management duties -- it is not necessary to

determine which of the dates is accurate. However, to the

extent i t were to become an issue with regard to the application

of the jurisdictional limits established by s ection 760.34(2),

the most persuasive evidence demonstrates that Petitioner filed

her Housing Discrimination Complaint on or after August 31,

2010.

Ultimate Findings of Fact

50 . There was no competent, substantial evidence adduced

at the hearing that Respondent took any regulatory, utility

billing, or code enforcement action regarding Petitioner, or the

Dubs Drive location, in an effort to coerce, intimidate,

threaten, or interfere with Petitioner in the exercise of her

rights as an owner of rental housing due to PetitionerÓs race.

RespondentÓs actions were, in each instance, a legitimate

response to unpermitted building activities, a correct

appli cation of RespondentÓs ordinances, or a reasonable response

to complaints filed by PetitionerÓs tenants . At worst,

Respondent committed two minor bureaucratic errors that were

quickly resolved, and for which Petitioner suffered no loss.

5 1 . There was no evidence that Respondent applied its code

enforcement ordinances or policies in its dealings with

Petitioner in a manner that was inconsistent with their

applic ation to similarly - situated persons who were not members

of PetitionerÓs protected class.

5 2 . Having found no evidence to demonstrate that

Respondent discriminated against Petitioner on the basis of her

race , the Petition for Relief should be dismissed.

CONCLUSIONS OF LAW

5 3 . The Division of Administrative Hearings has

jurisdiction over the par ties to and the subject matter of this

proceeding . § § 120.57(1) and 760.35(3), Fla. Stat .

5 4 . FloridaÓs Fair Housing Act, s ections 760.20 through

760.37, Florida Statutes , makes it unlawful to discriminate in

actions regarding a personÓs rights and privileges in their

property . In that regard, s ection 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, or on account of her or

his having aided or encouraged any other

person in the exercise of any right granted

under ss. 760.20 - 760.37. This section may

be enforced by appropriate administrative or

civil action.

5 5 . Section 760.34(2), provides that Ð[a] complaint [ of a

discriminat ory housing practice] must be filed within one year

after the alleged discriminatory housing practice occurred . Ñ

The date of filing of a charge of discrimination is the date on

which the charge is received by the Commission. LeBlanc v. City

of Tallahassee , 2 003 U.S. Dist . LEXIS 16140, (N.D. Fla. 2003)

( citing Johnson v. Host Enterprise, Inc. , 470 F.Supp. 381, 383

(E.D. Pa. 1979) ) . Allegedly discriminatory acts that occurred

more than one year prior to the filing date are time - barred by

s ection 760.34(2).

56 . In cases involving a claim of discrimination, the

burden of proof is on t he complainant. § 760.34(5), Fl a . Stat .

57 . The Florida Fair Housing Act is patterned after Title

VIII of the Civil Rights Act of 1968, as amended by the Fair

Housing Act of 1988, and discrimination covered under the

Florida Fair Housing Act is the same discrimination prohibited

under the Federal Fair Housing Act. Savanna Club Worship Serv.

v. Savanna Club Homeowners' Ass'n , 456 F. Supp. 2d 1223, 1224

(S.D. Fla. 2005); see also Loren v. Sasser , 309 F.3d 1296, 1300

(11 th Cir. 2002). When Ða Florida statute is modeled after a

federal law on the sa me subject, the Florida statute will take

on the same constructions as placed on its federal prototype.Ñ

Brand v. Florida Power Corp. , 633 So. 2d 504, 509 (Fla. 1st DCA

1994); see also Millsap v. Cornerstone Residential Mgmt. ,

2010 U.S. Dist. LEXIS 8031 (S.D. Fla. 2010); Dornbach v. Holley ,

854 So. 2d 211, 213 (Fla. 2d DCA 2002); Fla. Dep't of Cmty. Aff.

v. Bryant , 586 So. 2d 1205 (Fla. 1st DCA 1991).

58 . A plaintiff may proceed under the Fair Housing Act

under theories of either di sparate impact or disparate

treatment, or both. Head v. Cornerstone Residential Mgmt. , 2010

U.S. Dist. LEXIS 99379 (S.D. Fla. 2010). To establish a prima

facie case of disparate impact, Petitioner would have to prove a

significantly adverse or disproport ionate impact on a protected

class of persons as a result of RespondentÓs facially neutral

acts or practices. Head v. Cornerstone Residential Mgmt. ,

supra , ( citing E.E.O.C. v. JoeÓs Stone Crab, Inc. , 220 F.3d

1263, 1278 (11 th Cir. 2000) ) . To prevail on a disparate

treatment claim, Petitioner would have to come forward with

evidence that she was treated differ ently than similarly -

situated persons . Head v. Cornerstone Residential Mgmt. , supra ,

( citing Schwarz v. City of Treasure Island , 544 F.3d 1201, 1216

(11 th Cir. 2008) and Ha llmark Dev., Inc. v. Fulton Cn ty . , 466

F.3d 1276, 1286 (11 th Cir. 2006) ) .

59 . In establishing that she was the subject of any

discriminat ory impact of RespondentÓs actions based upon her

race, Petitioner could either produce direct evidence of

discrimination by which Respondent coerced, intimidated,

threatened, or interfered with Petitioner in the exercise of her

rights granted in the Fair Housing Act, or prove circumstantial

evidence sufficient to allow the trier of fact to i nfer that

discrimination was the cause of such treatment. See King v.

Auto, Truck, Indus. Parts & Supply , 21 F. Supp. 2d 1370, 1381

(N.D. Fla. 1998).

60 . A claim of discrimination requires proof that ÐÒrace

played some roleÓ in the decision.Ñ Hallmar k Developers, Inc.

v. Fulton C nty . , Georgia , 466 F.3d 1276, 1283 (11th Cir.

2006)(citing Sofarelli v. Pinellas Cn ty . , 931 F.2d 718, 722

(11th Cir. 1991)). The Hallmark Developers case, as here,

involved a local governmentÓs exercise of regulatory authority,

in that case zoning authority. With regard to the evidence

necessary to support a claim , the court held that :

Because explicit statements of racially

discriminatory motivation are decreasing,

circumstantial evidence must often be used

to establish the re quisite intent. Among the

factors that are instructive in determining

whether racially discriminatory intent is

present are: discriminatory or segregative

effect, historical background, the sequence

of events leading up to the challenged

actions, and wheth er there were any

departures from normal or substantive

criteria. (citations omitted).

61 . Direct evidence is evidence that, if believed, would

prove the existence of discriminatory intent without resort to

inference or presumption. Denney v. City of Albany , 247 F.3d

1172, 1182 (11th Cir. 2001); Holifield v. Reno , 115 F.3d 1555,

1561 (11th Cir. 1997). Courts have held that ÐÒonly the most

blatant remarks, whose intent could be nothing other than to

discriminate. . .Ó will constitute direct evidence of

discrimination.Ñ Damon v. Fleming Supermarkets of Fla., Inc. ,

196 F.3d 1354, 1358 - 59 (11th Cir. 1999)(citations omitted).

62 . Petitioner presented no direct evidence of

discrimination by Respondent in the enforcement of its building

and zoning codes.

63 . When there is no direct evidence of discrimination,

fair hou sing cases are subject to the three - part burden - shifting

test set forth in McDonnell Douglas Corp. v. Green , 411 U.S. 792

(1973) and Texas DepÓt of Cmty. Affairs v. Burdine , 450 U.S. 248

(1981) to evaluate claims of discrimination based on

circumstantial e vidence . Steed v. EverHome Mortg. Co. , 308 Fed.

Appx. 364, 368, 2009 U.S. App. LEXIS 991 (11th Cir. 2009);

Boykin v. Bank of America Corp. , 162 Fed. Appx. 837, 838 , 2005

U.S. App. LEXIS 28415 (11 th Cir. 2005); Massaro v. Mainlands

Section 1 & 2 Civic AssÓn, Inc. , 3 F.3d 1472, 1476 n.6 (11th

Cir. 1993); Secretary, U.S. Dept. of Housing and Urban

Development, on Behalf of Herron v. Blackwell , 908 F.2d 864, 870

(11th Cir. 1990); Savannah Club Worship Serv. v. Savannah Club

HomeownersÓ AssÓn , 456 F. Supp. 2d at 1231 - 1232.

64 . Under the three - part test, Petitioner has the initial

burden of establishing a prima facie case of unlawful

discrimination. McDonnell Douglas Corp. v. Green , at 802; Texas

DepÓt of Cmty. Aff. v. Burdine , 450 U.S. at 252 - 253; Burke -

Fo wler v. Orange Cnty., Fla. , 447 F.3d 1319, 1323 (11th Cir.

2006); Valenzuela v GlobeGround North America, LLC. , 18 So. 3d

at 22. ÐT he elements of a prima facie case are flexible and

should be tailored, on a case - by - case basis, to differing

factual circums tances . " Boykin v. Bank of America Corp. 162

Fed. Appx. at 838 - 839 ( citing Fitzpatrick v. City of Atlanta , 2

F.3d 1112, 1123 (11th Cir. 1993) ) .

65 . PetitionerÓs burden is to prove that Respondent is

guilty of an intent to discriminate based on race. She may not

prevail merely by showing that Respondent's administration and

enforcement of its local government ordinances was flawed or

imperfect. Cf. St. Mary's Honor Center v. Hicks , 509 U.S. 502,

113 S. Ct. 2742 (1993).

66 . If Petitioner is able to prove a prima facie case by a

preponderance of the evidence, t he burden shifts to Respondent

to articulate a legitimate, non - discriminatory reason for its

actions. Texas DepÓt of Cmty. Aff. v. Burdine , 450 U.S. at 255;

DepÓt of Corr. v. Chandler , 582 So. 2d 1183 (F la. 1st DCA 1991).

Respondent has the burden of production, not persuasion, to

demonstrate that the exercise of its police powers , upon which

the complaint was made, was non - discriminatory. DepÓt of Corr.

v. Chandler , supra . This burden of production is "exceedingly

light." Holifield v. Reno , 115 F.3d 1555, 1564 (11th Cir.

1997); Turnes v. Amsouth Bank, N.A. , 36 F.3d 1057, 1061 (11th

Cir. 1994).

67 . If Respondent produces evidence that the basis for its

action was non - disc r iminatory, then Petitioner must establish

that the proffered reason was not the true reason but merely a

pretext for discrimination. St. Mary's Honor Center v. Hicks ,

509 U.S. 502, 516 - 518 (1993). In order to satisfy this final

step of the process, Petit ioner must Ðshow[] directly that a

discriminatory reason more likely than not motivated the

decision, or indirectly by showing that the proffered reason . .

. is not worthy of belief.Ñ DepÓt of Corr. v. Chandler , 582 So.

2d at 1186 ( citing Tex. Dep't of Cmty. Aff. v. Burdine , 450 U.S.

at 252 - 256 ) . Pretext can be shown by inconsistencies and/or

contradictions in testimony. Reeves v. Sanderson Plumbing

Prods., Inc. , 530 U.S. 133, 143 (2000); Woodward v. Fanboy,

L.L.C. , 298 F.3d 1261 (11th Cir. 2002); Secretary, U.S. Dept. of

Housing and Urban Development, on Behalf of Herron v. Blackwell ,

908 F.2d at 871 . The demonstration of pretext Ðmerges with the

plaintiff's ultimate burden of showing that the defendant

intentionally discriminated against the plai ntiff.Ñ (citations

omitted) Holifield v. Reno , 115 F.3d at 1565.

68 . Petitioner has the burden of proving a prima facie

case of discrimination by a preponderance of the evidence. Fla.

Dep't of Transp. v. J.W.C. Co., Inc. , 396 So. 2d 778 (Fla. 1st

DCA 19 81). 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), affÓd, 679 So. 2d, 1183

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

958 (Fla. 2d DCA 1987)).

69 . The proof of discrimination offered in this case

amounts to little more than PetitionerÓs speculation and belief

concerning the basis for RespondentÓs actions . Such proof is

insufficient, standing alone, to establish a prima facie case of

in tentional discrimination. While Ð direct evidence of

discrimination is not necessary . . . a jury cannot infer

discrimination from thin air. Plaintiffs have done little more

than cite to their mistreatment and ask the court to conclude

that it must have been related to their race. This is not

sufficient. Ñ (citations omitted ) Lizardo v. Denny's, Inc. ,

270 F.3d 94, 104 (2d Cir. 2001) .

70 . Petitioner did not meet her burden to establish a

prima facie case of discrimination.

71. Petitioner failed to produce any evidence, and there

was no proof of any kind, to support a claim that the

RespondentÓs regulatory, utility billing, or code enforcement

practices had a significantly adverse or disproportionate impact

on members of Petition erÓs protected class .

7 2 . Petitioner failed to pro ve a claim of disparate

treatment , and there was no persuasive evidence -- even if

RespondentÓs actions regarding 302 Dubs Drive that would be

time - barred by application of s ection 760.34(2) are considered

in this proceeding -- to support a claim that Respondent treated

other rental property owners differently from Petitioner due to

their race. The fact that the complaining tenants were white is

not evidence that the response to their complaints was different

or disproportionate. The evidence that Respondent failed to

issue citations to PetitionerÓs previous property managers for

violations at her property utterly fails to demonstrate that the

subsequent citations were the result of the property managersÓ

race. Rather, the scrutiny that led to the subsequent discovery

of the violations was the direct result of PetitionerÓs own

illegal activity, or of complaints regarding the conditions at

the tri - plex. No such illegal activities or complaints ha ving

occurred prior to December 2007, it cannot be concluded that

PetitionerÓs race was the cause of the responses thereto.

73 . Petitioner failed to demonstrate that the mistaken

entry of the lien on her property or the loss of her business

tax receipt payment, both of which were quickly acknowledged and

corrected, were done to coerce, intimidate, threaten, or

interfere with PetitionerÓs rights with regard to her prope rty.

T he f act that Respondent was not 100 percent efficient or

accurate in the procedures by which it administered its code

enforcement duties was not proof of racial animus. See Boykin

v. Bank of America Corp. , 162 Fed. Appx. at 839; Randle v. City

of A urora , 69 F.3d 441, 454 (10th Cir. 1995).

74. In short, Petitioner did not prove by a preponderance

of the evidence that Respondent discriminated against her based

on her race.

7 5 . Based on the foregoing, it is concluded that

Respondent did not coerce, intimidate, threaten, or interfere

with Petitioner in the exercise of her rights as an owner of

rental housing due to PetitionerÓs race, and as a result,

Respondent, City of Holly Hill , did not commit a violation of

the Fair Housing Act as to Jeanette Sha w - Perez . Therefore , the

Petition for Relief should be dismissed.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of

Law, it is RECOMMENDED that the Florida Commission on Human

Relations issue a final order dismissing the Petition for Relief

filed in FCHR No. 201 1 H00 53 .

DONE AND ENT ERED this 22nd day of May , 2012 , in

Tallahassee, Leon County, Florida.

S

E. GARY EARLY

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 22nd day of May , 2012 .

ENDNOTES

1/ The housing discrimination complaint bears a signature date

of August 31, 2010. The HUD Determination at page 1 indicates

that Petitioner filed her complaint with HUD on August 13, 2010.

The HUD Determination at page 7 indicates that ÐComplainant

filed her complaint with HUD on September 2, 2009.Ñ Given the

findings herein, the lack of clarity in the filing date is not

dispositive of any issue in this case.

2/ The certificate of service erroneously gives a date o f

June 27, 2010.

COPIES FURNISHED :

Jeanette Shaw - Perez

1415 Climax Street

Burlington, North Carolina 27217

S cott E. Simpson , Esquire

Korey, Sweet, McKinnon, Simpson & Vukelja

595 West Grenada Boulevard , Suite A

Ormond Beach , Florida 32 174 - 5181

Denise Crawford, Agency Clerk

Florida Commission on Human Relations

2009 Apalach ee Parkway, Suite 100

Tallahassee, Florida 32301

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 this case.