11-003320 Florida Commission On Human Relations On Behalf Of Karen Davis vs. Paul Tinsley Status: Closed Recommended Order on Friday, May 18, 2012.

Summary: Respondent committed an act of racial discrimination in violation of the Florida Fair Housing Act and should pay damages to Petitioner.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

FLORIDA COMMISSION ON HUMAN )

RELATIONS ON BEHALF OF KAREN )

DAVIS , )

)

Petitioner , )

)

vs. ) Case No. 11 - 3320

)

PAUL TINSLEY , )

)

Respondent . )

)

RECOMMENDED ORDER

A final hearing was held in this matter before Robert S.

Cohen, Administrative Law Judge with the Division of

Administrative Hearings, on December 8, 2011, in Tallahassee,

Florida.

APPEARANCES

For Petitioner: Cheyanne Michelle Co stilla, Esquire

Florida Commission on Human Relations

2009 Apalachee Parkway, Suite 100

Tallahassee, Florida 32301

For Respondent: Paul Tinsley , pro se

3014 Shearwater Drive

Navarre, Florida 32566

STATEMENT OF THE ISSUE

The issue in this case is whether Respondent discriminated

against Petitioner based on race regarding the renting of a n

apartment .

PRELIMINARY STATEMENT

On February 11, 2011, Karen Davis filed a Housing

Discrimination Complaint with the Florida Commission on Human

Relations (FCHR) against Paul Tinsley , claiming she was the

victim of discrimination based upon her race. Following an

investigation of Petitioner ' s allegations, FCHR issued a Notice

of Determination ( Cause ) on A pril 11, 2011. Ms. Davis elected

to have FCHR resolve the charge.

On June 27 , 2011, FCHR filed a Notice of Failure of

Conciliation and a Petition for Relief on behalf of Ms. Davis .

The petition was forwarded to the Division of Administrative

Hearings on July 1, 2011 .

T he Division of Administrative Hearings set this matter for

hearing before Administrative Law Judge Robert S. Cohen, on

September 13 , 2011, in Tallahassee, Florida. Petitioner filed a

Motion to Continue on August 3 1, 2011, which was granted. The

hearing was later rescheduled and heard on December 8, 2011 .

At the hearing, Petitioner presented the testimony of three

witnesses and offered eight exhibits into evidence. Respondent

testified on his own behalf and pres ented the testimony of three

witnesses and offered six exhibits into evidence.

A Transcript was filed on January 4, 2012 . After the

filing of the T ranscript , Petitioner and Respondent filed their

proposed findings of fact and conclusions of law on Janua ry 17,

2012 .

References to statutes are to Florida Statutes (2011)

unless otherwise noted.

FINDINGS OF FACT

1. Respondent owns more than 25 residential rental

properties in the S tate of Florida, including the duplex located

at 8472 and 8474 Barrancas Street, Navar r e, Florida, which he

purchased approximately three years ago. In January 2011,

Respondent placed an advertisement in the newspaper for the

rental of both sides of the duplex, and put a " For Rent " sig n in

the front yard.

2. On Januar y 27, 201 0 , Respondent entered into a lease

agreement for the rental of U nit 8472 with Jeffery White, who is

C aucasian. Respondent had to evict Mr. White for non - payment of

rent. Mr. White was cited for leaving garbage and other things

stacked around the ho m e . W hen he moved out around August 2010 ,

Mr. White left U nit 8472 filthy on the inside and out.

3. Petitioner, Karen Davis , was the next person to have a

lease on this property, approximately five months later.

4. On January 7, 2011, Ms. Davis, who is African - American ,

was looking to rent a ho m e and saw Respondent ' s advertisement in

the newspaper for the duplex on Ba r rancas Street. Ms. Davis

called Respondent and set up an appointment to view the duplex

the same day. Ms. Davis and her mother, Sylvien ne Pearson,

arrived at the property before Respondent, so they walked around

the duplex and looked through the windows while they waited.

Respondent showed U nit 8472 to Ms es . Davis and Pearson. They

learned that the hot water heater had insulation coming out of

it , the front door knob did not have a lock, the refrigerator

was pulled out from the wall, and the unit appeared not to have

been cleaned or prepared for a new tenant since the last tenant

had moved out. A storage room in the back of the duplex h ad to

be pried open because it was filled with furniture that had been

left by a previous tenant . There was garbage around the

outside. Respondent indicated that the home was available

" as is . "

5. Unit 8472 needed to be cleaned and a hole in the door

repaired. Respondent told Ms. Davis that he would deduct the

reasonable cost of having the carpet cleaned from the rent.

6. Ms. Pearson asked if they could take a look at the

adjoining unit, 8474, which she learned was also available to

rent. Responde nt told Ms. Pearson that the car p et was damaged,

and he would not show it to them because he was not going to

rent it until the repairs had been made.

7. After viewing U nit 8472, Ms. Davis called her friend,

Brigitte Brahms, who is Caucasian and works pa r t - time as a real

estate agent. Ms. Brahms did a search on the property and

determined that there was not a lien or foreclosure on it.

Ms. Davis described to Ms. Brahms that the front door lo c k was

not working, a lot of belongings were left from a previo us

tenant, garbage was in the yard, the hot water heater had

insulation coming out of it, and that Respondent was not wi l ling

to fix any of these items .

8. Respondent ' s only qualification for a potential tenant

in his rental properties is that the tenant has some money.

Once Ms. Davis presented Respondent with $350, he determined

that she was qualified, and agreed to sign the lease with her.

He told Ms. Davis that she would save $80 if she moved into

U nit 8272 right away. After Ms. Davis sign ed the lea se and g ave

him $350, Respondent gave Ms. Davis the keys to the unit.

Ms. Davis told Respondent that she did not have all the money

required for the rent, and that she would have to get some of it

from her family.

9. The next morning, January 8, 2011, M s. Davis called

Respondent to ask to see U nit 8474. Respondent ' s wife answered

the tele phone and indicated that U nit 8474 had already been

promised to someone else. A short time later, Ms. Brahms ,

posing as a potential tenant, called Respondent, and aske d about

the a vailability of U nit 8474. Respondent indicated that it was

available, and Ms. Brahms told him that she would call back

later. Ms. Davis went to Ms. Brahm ' s house and called

Respondent again on speakerphone while Ms. Brah m s listened .

Respond ent again told Ms. Davis that U nit 8474 was not available

because it had already been rented, and he would not show it to

her. A n hour later, Ms. Brahms called Respondent to verify that

U nit 8474 was available, and Respondent offered to show it to

her the same day.

10. Ms es . Davis, Pearson, and Brahms went to the duplex

before the appointment with Respondent and walked around

U nit 8472 so Ms. Brah m s would be able to compare it with

U nit 8474. Ms. Brah m s noted that U nit 8474 was in much better

condition than Unit 8272; everything was cleaned up ; the unit

had been vacuumed ; the kitchen was set up properly ; the storage

unit was empty ; and there was no garbage left out in the yard.

The car p et was stained and there was a small strip of carpet

that was missi ng between the master bedroom and the living room,

but Respondent did not indicate that he would change the carpet

or make any repairs. The problems with U nit 8474 were minor in

comparison with the problems with U nit 8472, and U nit 8474 was

in much better condition than U nit 8472.

11. Respondent did not tell Ms. Brahms that there was

anything that had to be repaired before he would rent U nit 8474

to her, and he did not indicate that it was being held for

someone else. Instead, when Ms. Brahms asked if U nit 8474 was

available to rent, Respondent indicated that she could rent it

that very day.

12. January 8, 2011 , k nowing that Respondent had shown

U nit 8474 to Ms. Brahms after refusing to show it to her,

Ms. Davis told Respondent that she was no longer interested in

renting U nit 8472 ; tried to return the key to him ; and requested

a refund of the $350 deposit . Respondent refused , so Ms. Davis

sent the key to him in a letter on Januar y 13, 2011, again

requesting t he refund of the $350 deposit. Responden t has never

retur n ed Ms. Davis ' $350 deposit.

13 . Ms. Davis never actually moved into the duplex . Af ter

she decided not to rent U nit 8472 from Respondent, he next

rented the unit to a Caucasian on February 25, 2011, then later

to another Caucasian follo wed by a Hispanic tenant.

14. Towards the end of January 2011, Ms. Davis located

another rental and moved in on February 1, 2011. Since she

never moved into Respondent ' s duplex, she paid $80 to keep her

furniture in storage for a month until she found a new place to

live. She paid a $400 deposit and a $300 pet fee for two dogs.

15. Respondent provided several reasons for not showing

U nit 8474 to Ms. Davis. Respondent testified that Ms. Davis

never asked to see U nit 8474. Instead, he alleges that sh e

simply asked if it was empty, to which Respondent indicated that

i t was empty and available for rent, but that t he unit needed

several repairs, and it had not been cleaned. However,

Respondent later testified that the previous tenants had left

U nit 8474 in such a condition that it only required minor " TLC "

from him and was ready to be rented. Additionally, Respondent

admitted that he was wi l ling to show U nit 8474 to Rita Davis (no

relation to Petitioner) , who is Caucasian, despite the fact that

he had n ot repaired the carpet or cleaned U nit 8474. Respondent

stated that he had agreed to hold U nit 8474 for an unidentified

person until Monday, January 10, 201 1 , but admitted that he had

not received a deposit to hold the unit .

16. Respondent explained th at many times he has allowed

his tenants to transfer to another one of his properties, even

months later, without penalty or charges of any kind.

Respondent admitted he did tell Ms. Brah m s that U nit 8474 was

available for rent and showed it to her, but st ates that had she

actually offered to rent it, he would have told her that it

stil l needed work that she would have had to complete herself .

Also, she would only have been allowed to rent that unit if the

other person for whom he was holding it did not co me up with a

deposit. Respondent testified that if a prospective tenant is

likely to get into one of his rental properties and tear it up,

he will not rent to that person. No evidence was produced to

prove that Ms. Davis had a prior record of not caring for

apartments or places where she lived.

CONCLUSIONS OF LAW

17 . The Division of Administrative Hearings has

jurisdiction over the subject matter of and the parties to this

proceeding. § § 120.569 , 120.57(1), and 760.35(3), Fla. Stat.

18. Under Flori da ' s Fair Housing Act, s ections 760.20

through 760.37, Florida Statutes, it is unlawful to discriminate

in the sale or re ntal of housing. Section 760.23 states , in

pertinent part:

(1) It is unlawful to refuse to sell or

rent after the making of a bona f ide offer,

to refuse to negotiate for the sale or

rental of, or otherwise to make unavailable

or deny a dwelling to any person because of

race, color, national origin, sex, handicap,

familial status, or religion.

(2) It is unlawful to discriminate agains t

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.

19. In int erpreting and applying Florida ' s Fair Housing

Act, FCHR and the Florida courts regularly seek guidance from

federal court decisions interpreting similar provisions of

federal fair housing laws. In cases involving a claim of

housing discrimination, the com plainant has the burden of

proving a prima facie case of discrimination by a preponderance

of the evidence. See U.S. v. California Mobile Home Park Mgmt. ,

107 F.3d 1374, 1380 (9th Cir. 1997); Schanz v. Village Apts . ,

998 F. Supp. 784, 791 (E.D. Mich. 1998 ).

20. 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), aff ' d , 679 So. 2d 1183

(Fla. 1996). If, however, the complainant establishes a prima

facie case, t he burden then shifts to the respondent to

articulate some legitimate, nondiscriminatory reason for its

action. If the respondent satisfies this burden, then the

complainant must establish by a preponderance of the evidence

that the reason asserted by the respondent is, in fact, merely a

pretext for d iscrimination. See Massaro v. Mainlands Section 1

& 2 Civic Ass ' n, Inc. , 3 F.3d 1472, 1476, n. 6 (11th Cir. 1993),

cert. denied , 513 U.S. 808 (1994) (Fair housing discrimination

cases are subject to the three - part test articulated in

McDonnell Douglas Corp. v. Green , 411 U.S. 792 (1973)).

21. Pretext for discrimination may be found when the

totality of the evidence presented leads the finder of fact to

conclude that the " proffered explanation is unworthy of

credence. " Ventura v. State Equal Opportunity Comm ' n , 517

N.W.2d 368, 378 (Neb. 1994) (quoting Texas Dep ' t of Cmty. Aff .

v. Burdine , 450 U.S. 248, 256 (1981)). " Pretext can be found

where there are weaknesses, implausibilities, inconsistencies,

incoheren cies, or contradictions " in the housing provider ' s

proffered legitimate reasons for its action . . . . " Combs v.

Plantation Patterns , 106 F.3d 1519, 1538 (1 1 th Cir. 1997)

(citing Sheridan v. E.I. Dupont de Nemours & Co. , 100 F.3d 1061

(3d Cir. 1996)) ; Sim ms v. First Mgmt., Inc. , 2003 U.S. Dist.

LEXIS 9650, at *9 (D. Kan. May 20, 2003); U.S. Dep't of Hous . &

Urban Dev. v. Blackwell , 908 F.2d 864, 871 (11th Cir. 1990) .

22. The plaintiff ' s prima facie case, combined with

sufficient evidence to find that the defendant ' s asserted

justification is false, may permit the trier of fact to conclude

that the defendant unlawfully discriminated. Reeves v.

Sanderson Plumbing Prods., Inc. , 530 U.S. 133, 146 (2000);

St. Mary ' s Honor Ctr. v. Hicks , 509 U.S. 502, 511 (U.S . 1993).

The ultimate question of whether a plaintiff has been unlawfully

discriminated against can only be resolved by looking at the

particular facts of a case. Woodard v. Fanboy, L.L.C. , 298 F.3d

1261 (11th Cir. 2002); Aka v. Wash. Hosp. Ctr. , 156 F.3 d 1284,

1291 (D.C. Cir. 1998) ( " [ T ] he plaintiff ' s attack on the

employer ' s explanation must always be assessed in light of the

total circumstances of the case " ). A showing that a defendant

has lied about the reasons for his acts can be strong evidence

tha t a defendant has acted with discriminatory intent. Id .

23. " 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 otherw i se to make unavailable or deny a

dwelling to any per son because of race, color, national origin,

sex, handicap, familial status, or religion. " § 760.23(1) , Fla.

Stat. ; 42 U.S.C. § 3604(a). In order to establish a prima facie

case of disparate treatment housing discrimination in violation

of section 760.23 (1), a complainant must establish that: (1) he

or she is a member of a protected class; (2) he or she applied

for and was qualified to purchase or rent certain property or

housing; (3) he or she was rejected; and (4) the housing or

rental property remaine d available. Gonzalez v. Sunrise Lakes

Condo. Apts . Phase III, Inc. 4 , 2007 U.S. Dist. LEXIS 59409,

at *7 (S.D. Fla. Aug. 14, 2007) (citing Blackwell , 908 F.2d at

870).

24. T he Fair Housing Act prohibits an outright denial to

rent or sell and also makes it unlawf u l to " otherwise make a

dwelling unavailable. " 42 U.S.C. § 3604(a); § 760.23(1) , Fla.

Stat. The Middle District Cour t of Florida has interpreted

" otherwise make unavailable " as prohibiting any housing practice

that affects the availability of h ousing because of a protected

classification. Dewlawter - Gourlay v. Forest Lake Estates Civic

Ass ' n of Richey, Inc. , 276 F. Supp. 2d 1222, 1229 (M.D. Fla.

2003) (order vacated after settlement); see also U.S. v. City of

Parma , 494 F. Supp. 1049, 1053 (N.D. Ohio 1980) ( " This broadly

drafted section reaches every practice which has the effect of

making housing more difficult to obtain on prohibited

grounds. " ), aff ' d in part , rev'd in part , 661 F.2d 562 (6th Cir.

198 1 ), cert. denied , 456 U.S. 926 (1982); Davis v. The Mansards ,

597 F. Supp. 334, 343 (N.D. Ind. 1984) (finding a section 804(a)

violation where defendants discouraged plaintiffs from applying

for housing by misrepresenting the availability of units); U.S.

v. Youritan Constr . Co. , 370 F. Supp. 643, 64 8 (N.D. Cal 1973)

aff ' d in part, remanded in part , 509 F.2d 623 (9th Cir. 1975).

Steering African - American s to a particular area in an apartment

complex effectively denies them access to equal housing

opportunities. U.S. v. Mitchell , 580 F.2d 789, 791 (5 th Cir.

1978). Steering is evidence of the intent to influence the

choice of the renter on an impermissible racial basis. Id . The

petitioner would only have to establish that race was a

consideration and played some role in the real estate

transaction. Id . Where a landlord has no uniformly applied

policy with objective standards of rejecting prospective

tenants, the landlord violates 42 U.S.C. section 3604(a) by

telling a prospective African - American tenant that there was

someone else who was intereste d in the apar t ment when, in fact,

no one had yet filled out an application or put down a deposit

on such apartment and telling a prospective Caucasian tenant

that such apartment was sti l l available. Whar t on v. Knefel , 562

F.2d 550 (8th Cir. 1977).

25. T he Fair Housing Act protects against discrimination

in the sale or rental of housing and makes it " unlawf u l to

represent to any person because of race, color, national origin,

sex, handicap, familial status, or religion that any dwelling is

not available f or inspection, sale, or rental when such dwelling

is in fact so available. " § 760.23(4) , Fla. Stat. ; 42 U.S.C.

§ 3604(d). In order to establish a prima facie case of

discrimination predicated upon section 760.23(4), the plaintiff

must " show that (1) the defendant represented to them

(2) because of race, color, religion, sex, or national origin

(3) that an apartment was not available for rent (4) when the

apartment in fact was available for rent. " Metro Fair Hous.

Servs., Inc. v. Morrowood Garden Apts . , L td. , 576 F. Supp. 1090,

1093 ( N. D. Ga. 1983).

26. The record contains evidence sufficient to establish a

prima facie case of disparate treatment housing discrimination.

Ms. Davis is protected by the Fair Housing Act because she is

African - American .

27. Respondent explained that the only qualification he

imposes on a prospective tenant for any rental property is that

they have some money. Once Ms. Davis brought him $350,

Respondent determined that she was qualified to rent U nit 8472.

She would have be en equally qualified to rent U nit 8474.

28. Respondent had never previously rented either side of

the duplex on Barrancas Street to an African - American . W hen

Ms. Davis and her mother showed a n interest in viewing or

renting U nit 8474, which appeared to be in better condition,

Respondent refused to show it to them. He told them that it was

empty at the time, but that significant repairs had to be

completed before he would show it to a prospective tenant.

Ms. Brah m s, who is Caucasian, called about U nit 8 474 the same

day, posing as a prospective tenant. Respondent was wi l ling to

show her the ho m e immediately and said nothing about any repairs

that would have to be completed before she could view it.

Ms. Brah m s even testified that Respondent indicated tha t she

could move in that same day.

29. Unit 8474 remained empty more than one month after

Respondent refused to show it to Ms. Davis on January 8, 2011,

until he rented it to Caucasian tenants on February 25, 2011.

30. It is Respondent ' s position that he did not reject

Ms. Davis as a tenant or refuse to show her U nit 8474. He

alleged that Ms. Davis never asked to see U nit 8474, but instead

asked whether it was empty, to which he replied that it was

empty , but needed a lot of repair work and cleaning. This is in

direct contradiction to the testimony of Ms es . Davis, Pearson,

and Brahms, who all stated that Ms. Davis called and asked to

see U nit 8474, but Respondent refused to show it to her.

Ms. Pearson testified that she had also asked if her daughter

could see U nit 8474 because it appeared to be empty and she felt

her daughter should have her choice, but Respondent told her

that due to the amount of work that sti l l needed to be done on

that unit, he was not showing it right now. Respondent

contradict ed his own testimony when he stated that the previous

tenants had left U nit 8474 in such a condition that it only

required minor " TLC " from him and was ready to be rented.

Further, he told Ms. Davis he was holding the property for an

unnamed person who did not leave a deposit. Regardless of his

stated reasons for not showing U nit 8474 to Ms. Davis ,

Respondent showed U nit 8474 to Ms. Brah m s and Rita Davis, who

are both Caucasian, without completing any of the supposed

repairs that kept him from showing it t o Ms. Davis.

31. The testimony of Ms es . Davis, Pearson, and Brahms is

more credible than that of Respondent. His purported reasons

for not showing Ms. Davis the second side of the same duplex

when asked are not believable in light of the totality of th e

evidence presented. The inevitable conclusion here is that

Petitioner has shown that Respondent discriminated against

Ms. Davis on the basis of race.

32. S ection 760.35(3)(b) provides that upon a finding that

Respondent has violated the Fair Housing Act, an administrative

law judge shall issue a recommended order to FCHR prohibiting

the discriminatory practice and r ecommending relief, including

quantifiable damages and reasonable attorney ' s fees and costs.

An administrative agency can n ot award non - qu antifiable damages,

such as pain and suffering or humiliation and embarrassment.

Broward Cnty . v. La Rosa , 505 So. 2d 422, 424 , n. 5 (Fla. 1987).

33. Respondent has violated the Fair Housing Act through

conduct that has caused actual, compensable damage s to

Ms. Davis. A deposit of $350 was paid by Ms. Davis to

Respondent. A fter he discriminated against her, Respondent

refused to retur n the money to Ms. Davis . Since Ms. Davis was

not able to take her fu rn iture out of storage and move into

Respondent ' s duplex, she had to pay $80 in storage fees that she

otherwise would not have incurred . Ms. Davis then had to pay a

second deposit and pet fee on the trailer home in which she is

cur r ently residing due to Respondent ' s discriminatory actions .

However, she would have had to pay a deposit to secure any

apartment or home she leased so she is not entitled to double

recovery of her deposit. The same is true of the pet deposit

which was required for both the Barrancas Street duplex and the

home Petitioner ultima tely rented . T herefore, t he total amount

of damages awarded to Ms. Davis is limited to the $ 35 0.00

deposit that was not returned by Respondent and the $80 storage

fee .

34. Upon approval of the Recommended Order, FCHR is

authorized to seek its attorney ' s fees and costs for litigating

the case. § 760.35(3)(b) , Fla. Stat. Fees and costs may only

be awarded in a separate action brought before the Division of

Administrative Hearings following entry of the final order by

FCHR .

RECOMMENDATION

Based upon the Findings of Fact and Conclusions of Law,

it is

RECOMMENDED that the Florida Commission on Human Relations

enter a final order finding that Respondent discriminated

against Karen Davis in violation of section 760.23(1) and (4) ,

Florida Statutes ; prohibiti ng fu rt her unlawful housing practices

by Respondent; and directing that Respondent submit a cashier ' s

check to Karen Davis within 10 business days from the date of

the f inal o rder in the amount of $ 43 0 .00.

DONE AND ENTER ED this 18th day of May , 2012 , in

Tallahassee, Leon County, Florida.

S

ROBERT S. COHEN

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.u s

Filed with the Clerk of the

Division of Administrative Hearings

this 18th day of May , 2012 .

COPIES FURNISHED :

Denise Crawford, Agency Clerk

Florida Commission on Human Relations

2009 Apalachee Parkway, Suite 100

Tallahassee, Florida 32301

Paul Tin sley

3014 Shearwater Drive

Navarre, Florida 32566

Cheyanne Michelle Costilla, Esquire

Florida Commission on Human Relations

2009 Apalachee Parkway, Suite 100

Tallahassee, Florida 32301

La wrence F. Kranert , Jr. , General Counsel

Florida Commission on Hum an 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 Reco mmended Order should be filed with the agency that

will issue the Final Order in this case.