11-003387 Lisa Cardwell vs. Charleston Cay Ltd, Et Al. Status: Closed Recommended Order on Friday, October 28, 2011.

Summary: Petitioner failed to establish prima facie case of violation of the Florida Fair Housing Act.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

LISA CARDWELL , )

)

Petitioner , )

)

vs. ) Case No. 11 - 3387

)

, )

)

Respondent . )

)

RECOMMENDED ORDER

Pursuant to noti ce, a final hearing was held in this case

on September 29, 2011 , in Port Charlotte , Florida , before

Thomas P. Crapps, a designated Administrative Law Judge of the

Division of Administrative Hearings (DOAH) .

APPEARANCES

For Petitioner: Lisa Cardwell , pro s e

22523 Westchester Boulevard, Unit B204

Port Charlotte, Florida 33980

For Respondent s : Chelsie J. Flynn , Esq uire

Ford and Harrison, LLP

300 South Orange Avenue, Suite 1300

Orlando , Florida 3 2801

STATEMENT OF THE ISSUE

Whether Respondent s , Charleston Cay, Ltd., et al.

(Charleston Cay) , violated the Florida Fair Housing Act, as

amended, sections 760.20 through 760.37 , Florida Statutes

(2010). 1/

PRELIMINARY STATEMENT

O n February 15, 2011, Petitioner, Lisa Cardwell

(Ms. Cardwell), filed a Housing Discrimination Complaint with

the United States Department of Housing and Urban Development

(HUD). Ms. Cardwell alleged that Respondents, Charleston Cay,

Ltd., Handover Housin g Partners, Inc., Gloria Jaster, manager of

Charleston Cay apartment complex, and Patrick Boone, assistant

manager, had unlawfully evicted her from an apartment based on

her race in violation of Federal Fair Housing Act, section

804(b) of Title VIII, the F ederal Civil Rights Act of 1968 , as

amended by the Fair Housing Act of 1988 (prohibiting

discrimination in the sale or rental of housing and other

prohibited practices). On March 23, 2011, Ms. Cardwell filed an

Amended Complaint adding a claim that Charle ston Cay had

retaliated against her in violation of section 818 of Title

VIII , by submitting a claim for unpaid rent to a collection

agency after she had filed the initial discrimination claim

against Charleston Cay.

HUD transferred the complaint to the Florida Commission on

Human Relations (FCHR) to conduct an investigation. On May 19,

2011, the FCHR completed an investigation into Ms. CardwellÓs

claims. The investigation first found that it Ðwas unable to

show [Ms. Cardwell] was discriminated against based on her

race.Ñ However, as for the retaliation claim, the investigation

stated Ðthe Commission finds that there is reasonable cause to

believe that a discriminatory housing practice occurred in

violation of section 818 , of the Fair Housing Act, as am ended.Ñ

On June 8, 2011, FCHR issued a Notice of Determination of

No Cause stating that it had Ðdetermined that reasonable cause

does not exist to believe that a discriminatory housing practice

has occurred.Ñ

On July 7, 2011, Ms. Cardwell filed a Peti tion for Relief

with FCHR claiming that Charleston Cay had violated the Florida

Fair Housing Act.

On July 12, 2011, FCHR transmitted the Petition for Relief

to DOAH, and Administrative Law Judge Lynne A. Quimby - Pennock

was assigned the case. The case was initially set for a final

hearing on September 2, 2011. Charleston Cay filed an unopposed

request for an extension of time, and the final hearing was

rescheduled for September 29, 2011. On September 16, 2011, the

case was transferred to Administrative La w Judge Thomas P.

Crapps.

At the September 29, 2011 , final hearing, Ms. Cardwell

presented the testimony of herself, Gloria Jaster (Ms. Jaster),

Tina Figliuolo (Ms. Figliuolo), and introduced into evidence

four exhibits. Charleston Cay presented the testi mony of

Ms. Jaster, and introduced into evidence seven exhibits. 2/

The FCHR did not provide a court reporter to transcribe the

hearing, so no transcript was filed with DOAH. The undersigned,

however, recorded the proceedings which were copied onto a dis c

and placed in the case - file. The parties were given ten days to

file Proposed Recommended Orders, which the undersigned

considered in preparation of the Recommended Order.

FINDINGS OF FACT

1. Ms. Cardwell is an African - American woman who rented an

ap artment from Charleston Cay. Ms. Cardwell and Charleston Cay

entered into a written lease beginning on December 23, 2009 , and

ending on November 30, 2010. The lease required Ms. Cardwell to

pay her rent on the first of each month and that the rent would

be delinquent by the third of each month. Furthermore, the lease

provided that non - payment of rent shall result in a breach of the

lease and eviction. The initial monthly rent for Ms. Cardwell's

apartment was $663.00 , a month and was subsequently increas ed to

$669.00 , a month.

2. Ms. Cardwell credibly testified that she had not read

the lease or the Housing Addendum which she signed when entering

into the lease and that she had not subsequently read either

document.

3. On November 1, 2010, Ms. Cardwel l failed to pay her

rent. On November 4, 2010, Ms. Jaster, manager of Charleston Cay

apartments, posted a three - day notice to pay rent or vacate the

premises. On November 9, 2010, Ms. Jaster posted another notice

for Ms. Cardwell about non - payment and re questing that

Ms. Cardwell call or come to the office. Ms. Cardwell paid

$100.00 , of the rent on November 17, 2010. Again, Ms. Jaster

posted a three - day notice seeking payment of the remaining

November 2010 , rent in the amount of $569.00. On November 2 4,

2010, Ms. Cardwell paid an additional $200.00 , of the $569.00 ,

owed, leaving a balance of $369.00 for November 2010. Because

Ms. Cardwell's written lease was to expire at the end of

November, she requested that Charleston Cay enter into a month -

to - mont h lease, but Ms. Jaster informed Ms. Cardwell that

Charleston Cay was not interested in entering into a month - to -

month tenancy.

4. On December 1, 2010, Ms. Jaster posted another three -

day notice requiring Ms. Cardwell to pay the $369.00 , owed in

November , or to vacate the premises. The facts also showed that

Ms. Cardwell did not pay the $669.00 , owed by December 1, 2010 ,

or anytime thereafter.

5. On December 8, 2010, Charleston Cay filed an eviction

and damages complaint against Ms. Cardwell based on non - payment

of the rent.

6. Some time in December 2010, Ms. Cardwell contacted

Ms. Tina Figliulo of the Charlotte County Homeless Coalition ,

seeking financial assistance to avoid being evicted.

Ms. Figliulo credibly testified that the Charlotte Count y

Homeless Coalition administers grant money to help prevent a

person from being evicted and helps individuals find affordable

housing. A provision of the grant, however, prevents the

Charlotte County Homeless Coalition from paying money into a

court regi stry if an eviction process has begun. Ms. Figliulo

credibly testified that she contacted Ms. Jaster about making a

payment on Ms. Cardwell's behalf. Ms. Jaster informed

Ms. Figliulo that Charleston Cay had already begun eviction

proceedings. Consequen tly, Ms. Figliulo was unable to use grant

money to pay for Ms. Cardwell's back rent.

7. Based on the eviction proceedings, Ms. Cardwell vacated

the premises s ometime in December 2010, and turned in her key for

the apartment.

8. The initial hearing on the eviction was set for

January 5, 2011. On December 28, 2010, the hearing was cancelled

based on Ms. Cardwell's vacating the premises. On January 13,

2011, Ms. Cardwell filed a Motion to Dismiss the case in county

court indicating that she had given up possession of the

premises. On January 31, 2011, the Charlotte County Court issued

an Order dismissing the case effective March 1, 2011, unless

Charleston Cay set a hearing on damages.

9. The record credibly showed through the exhibits and

Ms. Jas ter's testimony that Ms. Cardwell was evicted from her

apartment based on her non - payment of rent.

10. There was no evidence that other individuals, who were

not in Ms. Cardwell's protected class, were treated more

favorably or different ly, than she was in the proceedings.

11. There was no evidence, either direct or indirect,

supporting Ms. Cardwell's claim of racial discrimination.

Ms. Cardwell testified that she felt that Ms. Jaster had acted

based on race , because of Ms. Jaster's perceived attitud e.

Ms. Cardwell did not bring forward any evidence showing a

specific example of any comment or action that was

discriminatory. Ms. Jaster credibly testified that she did not

base the eviction process on race, but only on non - payment.

12. Ms. Cardwell specifically stated during the hearing

that she was not addressing the retaliation claim or seeking to

present evidence in support of the FCHR determination concerning

the retaliation claim. Consequently, the undersigned does not

make any finding concerni ng that issue.

13. There was testimony concerning whether or not

Ms. Cardwell had properly provided employment information

required by the written lease in relation to a tax credit. The

facts showed that C harleston Cay apartments participated in a

Low Income Tax Credit Housing Program under section 42 , of the

Internal Revenue Code. On entering the lease, Ms. Cardwell had

signed a Housing Credit Lease Addendum which acknowledged her

participation in the tax credit, and agreement to furnish

information concerning her income and eligibility for compliance

with the tax credit. Failure to provide information for the tax

credit would result in a breach of the rental agreement.

14. As early of August 2011, Ms. Jaster, manager for

Charleston Cay Apartments , contacted Ms. Cardwell about providing

information concerning her income and continued eligibility for

the program. Ms. Cardwell provided information that was

incomplete as to her income , because it failed to demonstrate

commissions that she earned. Ag ain, in November 2010, Ms. Jaster

contacted Ms. Cardwell about providing information to

recertification for the tax credit. Finally, on November 11,

2010, Ms. Jaster left a seven - day notice of non - compliance, with

an opportunity to cure, seeking Ms. Cardwe ll to provide

information concerning her income. Ms. Cardwell provided

information concerning her salary, but did not have information

concerning commissions that she earned from sales. This

information was deemed by Ms. Jaster to be incomplete and not i n

compliance for the low income housing tax credit. The record

shows, however, that Ms. Cardwell's failure to provide the

required income information was not a basis for her eviction.

CONCLUSIONS OF LAW

15. DOAH has jurisdiction over the parties to and subject

matter of this proceeding, pursuant to section s 120.569

and 120.57, Florida Statutes (2011) .

16. As the complainant, M s. Cardwell has the burden of

establishing facts to prove discrimination by a preponderance of

the evidence. See §§ 760.34(5) and 120.57(1)(j), Fla. Stat.

(2011).

17. The Florid a Fair Housing Act provides, in relevant

part, that:

(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 o f services or

facilities in connection therewith, because

of race, color, national origin, sex,

handicap, familial status, or religion.

§760.23(2) , Fla. Stat.

18. Discrimination covered by the Florida Fair Housing Act

is the same discrimination as is pr ohibited under the Federal

Fair Housing Act. Savanna Club Worship Serv. v. Savanna Club

Homeowners' Ass'n , 456 F. Supp. 2d 1223 (S.D. Fla. 2005) ; see

Fla. Dep't. of Cmty. Aff. v. Bryant , 586 So. 2d 1205 (Fla. 1st

DCA 1991) ( the Florida Fair Housing Act is patterned after the

F ederal Fair Housing Act, 45 U.S.C. sections 3601 through 3631 ;

thus , federal case law dealing with the F ederal Fair Housing Act

is applicable) . Th erefore , federal cases involving

discrimination in housing are instructive and persuasiv e in

interpreting section 760.23. See Dornbach v. Holley , 854 So. 2d

211, 213 (Fla. 2d DCA 2002) . 3/

19. "D iscriminatory intent may be established through

direct or indirect circumstantial evidence." Johnson v.

Hamrick , 155 F. Supp. 2d 1355, 1377 (N.D. G a. 2001). Direct

evidence of discrimination is "evidence that, if believed,

proves the existence of a fact without inference or

presumption." Wilson v. B/E Aerospace, Inc ., 376 F.3d 1079,

1086 (11th Cir. 2004) (citation and quotation marks omitted).

" If the [complainant] offers direct evidence and the trier of

fact accepts that evidence, then the [complainant] has proven

discrimination." Maynard v. Bd. of Regents , 342 F.3d 1281, 1289

(11th Cir. 2003). "[D]irect evidence is composed of 'only the

most blatant remarks, whose intent could be nothing other than

to discriminate' on the basis of some impermissible factor . . .

If an alleged statement at best merely suggests a discriminatory

motive, then it is by definition only circumstantial evidence."

S choenfeld v. Babbitt , 168 F.3d 1257, 1266 (11th Cir. 1999).

Likewise, a statement "that is subject to more than one

interpretation . . . does not constitute direct evidence."

Merritt v. Dillard Paper Co . , 120 F.3d 1181, 1189 (11th Cir.

1997). Because di rect evidence of intent is often unavailable,

those who claim to be victims of intentional discrimination "are

permitted to establish their cases through inferential and

circumstantial proof." Kline v. Tennessee Valley Auth. , 128

F.3d 337, 348 (6th Cir. 1 997).

20. Where a complainant attempts to prove intentional

discrimination using circumstantial evidence, "the Supreme

Court's shifting - burden analysis adopted in McDonnell Douglas

Corp. v. Green , 411 U.S. 792, 802 - 804, 36 L. Ed. 2d 668, 93 S.

Ct. 1817 (1973), . . . is applicable." Laroche v. Denny's Inc. ,

62 F. Supp. 2d 1375, 1382 (S.D. Fla. 1999); see also Head v.

Cornerstone Residential Mgmt. , 2010 U.S. Dist. Lexis 99379,

19 - 20 (S.D. Fla. Sept. 22, 2010). "Under this framework, the

[complainant] ha s the initial burden of establishing a prima

facie case of discrimination. If [the complainant] meets that

burden, then an inference arises that the challenged action was

motivated by a discriminatory intent. The burden then shifts to

the [respondent] to 'articulate' a legitimate, non -

discriminatory reason for its action. If the [respondent]

successfully articulates such a reason, then the burden shifts

back to the [complainant] to show that the proffered reason is

really pretext for unlawful discriminat ion." Schoenfeld , 168

F.3d at 1267 (citations omitted). If, however, the complainant

fails to establish a prima facie case of discrimination, the

matter ends. See Ratliff v. State , 666 So. 2d 1008, 1013 n. 6

(Fla. 1st DCA), aff'd , 679 So. 2d 1183 (Fla. 1996) (citing

Arnold v. Burger Queen Sys ., 509 So. 2d 958 (Fla. 2d DCA 1987)).

21. To establish a prima facie case of housing

discrimination in the instant case , Ms. Cardwell must prove

that: 1) she is a member of a protected class; 2) she attempted

to r ent or continue to rent the dwelling consistent with the

terms and conditions offered by Charleston Cay and that she met

all relevant qualifications for doing so; 3) Charleston Cay

denied her housing despite her qualifications; and 4) Charleston

Cay allowe d similarly qualified persons, outside of

Ms. Cardwell's protected class, to rent an apartment. See

Billingsley v. Housing Auth. of the City of Winter Park , Case

No. 10 - 10304, 2011 Fla. Div. Admin. Hear. LEXIS 37 (Fla. DOAH

Mar. 21, 2011; FCHR June 7, 20 11); a ccord , Sec'y, Hous. & Urban

Dev. ex. Rel. Herron v. Blackwell , 908 F.2d 864, 870 (11th Cir.

1990) .

22. Turning to the facts in the instant case, Ms. Cardwell

failed to bring forward evidence that she attempted to continue

renting the apartment consi stent with the terms offered by

Charleston Cay, that she was qualified to rent the apartment, or

that other similarly qualified persons outside of Ms. Cardwell's

race, were allowed to remain in the apartment without paying

rent.

23. It was undisputed th at Ms. Cardwell had violated her

written lease by non - payment of rent in November 2010. As a

result of her non - payment, she was not qualified as a renter and

did not meet the terms offered by Charleston Cay to continue

residing in the apartment. Moreover , Ms. Cardwell did not bring

forward any evidence, either direct or indirect, showing that

the decision to evict her from the apartment was based on race.

At best, Ms. Cardwell offered her subjective belief that

discrimination had occurred, which is insuf ficient to establish

a prima facie case of intentional discrimination. S ee

Billingsley , 2011 Fla. Div. Admin. Hear. LEXIS 37, at 11 - 12 ("On

the other hand, proof that, in essence, amounts to no more than

mere speculation and self - serving belief on the par t of

Petitioner concerning the motives of Respondent is insufficient,

standing alone, to establish a prima facie case of intentional

discrimination. See Goring v. Bd. of Supervisors of Louisiana

State Univ. & Agric & Mech. Coll . , 2011 U.S. App. LEXIS 2352 *4

(5th Cir. Feb. 4, 2011)(stating 'We are left with Goring's

subjective belief that the decision was discriminatory, which is

insufficient to create an inference of pretext' " ). Based on the

lack of evidence, Ms. Cardwell failed to prove a prima facie

ca se of violation of the Florida Fair Housing Act.

24. Moreover, even if one found that Ms. Cardwell

presented a prima facie case of discrimination, the record shows

that Charleston Cay presented competent and credible evidence of

a legitimate, non - discri minatory reason for Ms. Cardwell's

eviction. Charleston Cay offered evidence showing that

Ms. Cardwell was evicted from her apartment based on non - payment

of her rent. This explanation is a legitimate, non -

discriminatory reason for the eviction. Under the McDonnell

Douglas rule of law, the burden shifted to Ms. Cardwell to

present evidence showing that Charleston Cay's explanation was a

pretext for unlawful discrimination. Ms. Cardwell did not

present any evidence, either direct or indirect, that Charl eston

Cay's explanation that she was evicted for non - payment of the

rent was a pretext for an unlawful discrimination.

Consequently, Ms. Cardwell failed to prove her allegations that

Charleston Cay violated the Florida Fair Housing Act.

RECOMMENDATION

B ased on the foregoing Findings of Fact and Conclusions of

Law, it is RECOMMENDED that the Florida Commission on Human

Relations enter a final order of dismissal of the Petition for

Relief.

DONE AND ENT ERED this 28th day of October , 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

w ww.doah.state.fl.us

Filed with the Clerk of the

Division of Administrative Hearings

this 28th day of October , 2011 .

ENDNOTES

1/ Unless otherwise indicated, all references to the Florida

Statutes are to the 2010 version.

2/ Ms. Cardwell also had a wit ness, Mr. Demetrius Thomas, under

subpoena, who failed to attend the hearing. During the hearing,

Ms. Cardwell presented the notarized return of service showing

that Mr. Thomas had been subpoenaed to appear for the

September 29, 2011 , hearing. Ms. Cardw ell explained that she

had spoken to Mr. Thomas and he had stated that he could not

leave work to attend the hearing. Based on the fact that Ms.

Cardwell had properly served a subpoena on Mr. Thomas, the

undersigned agreed to allow Ms. Cardwell a period o f 60 days in

which to seek enforcement of the subpoena in circuit court, and

that additional time would be afforded if Ms. Cardwell could not

receive a hearing date or order from the circuit court within

the 60 days. On October 3, 2011, Ms. Cardwell faxed a letter to

DOAH informing the undersigned that she had decided not to

enforce the subpoena. Therefore, Ms. Cardwell had presented her

case, and the undersigned could consider the matter.

3/ The language in section 760.23(2) is identical to the

langua ge in 42 U.S.C. section 3604(b), the federal Fair Housing

Act .

COPIES FURNISHED :

Denise Crawford, Agency Clerk

Florida Commission on Human Relations

2009 Apalachee Parkway, Suite 100

Tallahassee, Florida 32301

Lisa P. Cardwell

22523 Westchester Boulev ard, Unit B204

Port Charlotte, Florida 33980

Chelsie J. Flynn, Esquire

Ford and Harrison, LLP

300 South Orange Avenue, Suite 1300

Orlando, Florida 32801

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. An y exceptions

to this Recommended Order should be filed with the agenc y that

will issue the Final Order in this case.