11-005105 Vernon And Glenda Shaw vs. Epi Townsend, Llc And Epoch Properties, Inc. Status: Closed Recommended Order on Wednesday, October 3, 2012.

Summary: Petitioners failed to establish a prima facie case of race discrimination relating to the non-renewal of their lease.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

VERNON AND GLENDA SHAW, )

)

Petitioners, )

)

vs. ) Case No. 11 - 5105

)

EPI TOWNSEND, LLC AND EPOCH )

PROPERTIES, INC., )

)

Respondents. )

)

RECOMM ENDED ORDER

Pursuant to notice, this cause came on for formal hearing

before W . David Watkins , duly - designated Administrative Law

Judge of the Division of Administrative Hearings, in

Gainesville , Florida, on March 28, 2012, and May 17 , 20 12 . The

appearan ces were as follows:

APPEARANCES

For Petitioner s : Vernon and Glenda Shaw , pro se

4312 Northwest 34th Drive

Gainesville, Florida 32605

For Respondents: Leslie W. Langbein, Esquire

Langbein and Langbein, P.A.

8181 Northwest 154th Street, Suite 105

Miami Lakes, Florida 33016

STATEMENT OF THE ISSUE

The issue to be resolved is whether Petitioner s were the

victim s of a discriminatory housing practice, by allegedly being

denied the opportunity to re new the lease of an apartment from

Respondents, based upon their race.

PRELIMINARY STATEMENT

This proceeding arose upon the filing of a Petition for

Relief by Vernon and Glenda Shaw (Petitioner s ) in which they

allege that they were the victim s of di scriminatory housing

practice s , by being denied the opportunity to re new the lease on

the apartment they occupied , by Respondents' failure to follow

up on complaints made by Petitioners in the same manner as for

those made by white tenants, and by not bein g invited to events

to which white tenants were invited. Petitioners claim that

these alleged discri minatory acts were based upon thei r race,

which is African - American.

Petitioner s filed a Complaint with the Florida Commission

on Human Relations (Commiss ion) and the matter was investigated.

On August 31, 2011, a finding of "No Cause" was made by the

Commission and a Petition for Relief was thereafter filed by

Petitioner s . The matter was then transferred to the Division of

Administrative Hearings (DOAH) and a formal proceeding ensued.

The cause came on for hearing, as noticed. Petitioner s

presented thei r own testimony, as well as the testimony of

Rhonda Hayden, Laqua Morrow, Angelo Caruso, Frances Jackson,

Stacy Brown, and Breanne Parks . Petitioner s o ffered 31 exhibits

which were received into evidence . Respondents presented the

testimony of Rhonda Hayden, Amanda (Watson) Phelan, Detective

Farrah Lormil, and Erin Napolitano, and offered 34 exhibits

which were receiv ed into evidence.

During the secon d day of hearing (May 17, 2012),

Respondent s called witness Tara Kohl, who testified

telephonically from on board a cruise ship. However, evidently

due to the departure of the ship from port, Petitioners were

unable to complete their cross - examination of Ms. Kohl before

the telephone connection was lost. In light of Petitioners'

inability to complete cross - examination of this witness, the

undersigned advised counsel for Respondents that unless she was

able to secure Ms. Kohl's attendance, either in person , or

telephonically, to complete her testimony, that the testimony

previously given by Ms. Kohl would be stricken. Thereafter, on

July 10, 2012, counsel for Respondents advised that she had been

unable to arrange for the completion of Ms. Kohl's testimony ,

and on July 12, 2012, the undersigned issued a Notice to the

parties that the record was therefore closed, and that the

testimony of Ms. Kohl was stricken from the record.

Although a court reporter was present for both days of

hearing , n o transcript has been filed with the Division . The

parties were invited to submit proposed recommended orders , and

Petitioners and Respondents availed themselves of that

opportunity . Their post - hearing submittals have been carefully

considered in the rendition of this R ecommended Order.

All references are to the 2012 version of the Florida

Statutes, unless otherwise noted.

FINDINGS OF FACT

1 . Petitioners Vernon and Glenda Shaw are husband and

wife. They and their children are African - American s .

2 . Respondent EPI T ownsend , LLC owns an apartment

community located in Gainesville, Florida , known as Uptown

Village.

3 . Respondent Epoch Management, Inc. (Epoch) manages

Uptown Village on behalf of EPI T ownsend , LLC.

4 . On June 25, 2010, Ms. Shaw submitted an applica tion to

lease an apartment at Uptown Village . She listed herself, her

husband , and her two children as the proposed occupants.

Ms. Shaw noted the family had a dog. She provided h er email

address on the application , as requested .

5 . At the time of appl ication, prospective tenants of

Uptown Village are given a document entitled ÐEpoch Management,

Inc. Rental Application Approval Criteria.Ñ It contains an

ÐEqual Housing OpportunityÑ statement and displays the ÐEqual

HousingÑ logo approved by the U.S. Dep artment of Housing and

Urban Development (ÐHUDÑ). When she submitted her application,

Ms. Shaw acknowledged receipt of the R ental Application Approval

Criteria form .

6 . The Shaws Ó application was approved , and Ms. Shaw

subsequently signed a one - year lea se (Ðthe LeaseÑ) agreement on

June 26, 2010. Soon thereafter Ms. Shaw moved into Apartment 2 -

201 of Uptown Village with her children and their dog. Mr. Shaw

was living in Alabama at the time and planned on moving to

Gainesville at a later date to join hi s family. 1 /

7 . At the time the Shaw s began their tenancy at Uptown

Village , Rhonda Hayden served as the p roperty m anager and Stacy

Brown as the a ssistant p roperty m anager for Epoch . Both were

experienced property manager s and both ha d received Fair Hous ing

training.

8 . Ms. Hayden and Ms. Brown testified that Epoch tries to

create a sense of community among its tenants. It s efforts

include host ing monthly breakfasts and other events for tenants.

Information about upcoming community events is sent to a ll

tenants with email addresses on file via Constant Contact, an

on - line social and business networking platform. The email

address provided on Ms. Shaw's rental application was entered

into E pochÓs Constant Contact list.

The Uptown Village Lease

9 . The Lease contained several provisions intended to

ensure a safe and peaceful living environment for tenants.

For example, p aragraph 4 of the Lease provide d that a resident

shall Ð. . . not permit any disturbance, noises or annoyance

whatsoever detrimental to the comfort and peace of any of the

inhabitants of the community or its Landlord.Ñ Similarly,

p aragraph 30(G) provide d that the ÐResident shall ensure that

the pet(s) does not, at any time, disturb any other Resident of

the apartment community.Ñ The L ease reserved to E poch the right

to determine , in its sole discretion , whether a pet wa s

disturbing residents.

10 . The Lease also incorporate d a code of community rules

(Ðthe RulesÑ) for Uptown Village , which provide d in pertinent

part, Ðall garbage, ref use and other types of waste shall be

placed in garbage receptaclesÑ and that Ðloud and boisterous

noise or an y other objectionable behavior by any Resident or

guests is not permitted.Ñ The Rules also noted that the "quiet

time" hours of the complex were from 10:00 p.m. to 8:00 a.m.

11 . Paragraph 12 of the Lease provided that a tenant must

give 60 days Ó advance notice of his or her intent not to renew

the Lease. If notice was not given, then the Lease would renew

on a month - to - month basis at the then cu rrent market rate , plus

$50. 00.

The Shaw s ' Neighbors

12 . The Alcubilla family, who are Hispanic, lived across

from Petitioners Ó apartment , in Apartment 2 - 202. The Alcubilla

family included a husband and wife , a s well as the wifeÓs mother

( Mrs. Alcubill a ) , who spoke little English.

13 . A Caucasian graduate student , Amanda Watson, lived on

the third floor of the building directly above the Shaws in

Apartment 3 - 201 .

14 . A Hispanic tenant, Angelo Caruso, lived with his

girlfriend on the same floor as Ms . Watson.

15 . In October 2010 , four months aft er the Shaws became

residents, the Kohl family moved into Apartment 2 - 101, the first

floor apartment directly beneath the Shaw s Ó apartment.

Trouble in Paradise

16 . The Shaws' first rent check , dated July 9, 2010 , was

returned for insufficient funds. This was a Lease violation.

17 . On July 14, 2010, E poch issued a reminder to Ms. Shaw

advising her that a neighbor had complained about her dog

barking all hours of the day. This was a violation of the Lease

and the Community Rules.

18 . Mr. Shaw joined his family at Uptown Village on or

about August 8, 2010. On the day he moved in, Epoch l easing

a gent Breanne Parks was conducting a survey of the community

grounds and noticed empty boxes outside the Shaw s Ó a partment on

the walkway , as well as trash outside another tenantÓs

apartment. She iss ued a warning notice to the Shaw s and the

other tenant in the building. Leaving trash outside of an

apartment is a violation of the Lease and Community Rules.

19 . On A ugust 20, 2010, the S haw sÓ rent check was return ed

for insufficient funds. This was a Lease Violation.

20 . On October 8, 2010, the S haw s were notified by E poch

that they were being assessed a late fee for failure to pay

their rent on time. One week lat er , on October 15, 2010, E poch

sent the Shaw s notification about an outstandin g balance on

their account. The notices concerned Lease violations.

21 . On October 21, 2010, Ms. Watson complained to the

office about loud arguments and sounds emanating from the Shaw sÓ

apartment the night before. One of the noises sounded like

someone or something had been thrown against a wall. Though she

feared that someone was being physically abused due to the

intensity of the impact, she decided not call the police.

22 . In response to Ms. Watson's complaint , E poch posted a

notice on the Shaws Ó door for a second time warning them about

noise and asking them to be considerate of their neighbors. The

noise violation was considered a violation of the Lease and

Community Rules.

23 . The same day Epoch posted the noise violation notice

on the Shaws' door , Ms. Shaw called the management o ffice and

lodge d a retaliatory noise complaint against Ms. Watson. A s a

consequence of this complaint, a warning no tice was sent by

E po ch to Ms. Watson. The noise violation was considered a

violation of the Lease and Community Rules.

24 . On November 4, 2010, the S haw s Ó rent check was

returned for insufficient funds. This was a Lease violation.

25 . E poch allows sworn officers from th e Gainesville

Police Department to reside on the premises in exchange for

services to the community as a Courtesy Officer. At some point

during the Shaws' tenancy , Cou rtesy Officer Farah Lormil, an

African - American female police detective , noticed a car

b elonging to the Shaw s parked in an ar ea that was not a

designated parking space. This was a violation of Community

Rules. Detective Lormil testified that she left a note on the

car asking the owner to move the vehicle because "your car

doesn't belong her e . " Detective Lormil also included her name

and badge number on the note. At hearing, Ms. Shaw testified

that the note read "you don't belong here . " Inasmuch as

Petitioners did not offer the note in evidence, and given the

context in which the note was written (a parking viol ation), the

testimony of Detective Lormil as to the actual wording of the

note is the more credible.

26 . On December 27, 2010, l easing a gent Erin Napolitano

wrote a memo to Ms. Parks reporting that Mrs. Alcubill a Ó s

daughter , Mater Alcubilla, had come to the m anagement o ffice the

prior weekend to complain about an incident involving Ms. Shaw.

Consistent with her memo, Ms. Napolitano testified that Mater

Alcubilla had told her that Ms. Shaw had screamed at her family,

followed them up and down the stairs to their apartment, and

loudly knocked on their door. M ater Alcubilla also accused

Ms. Shaw of stating that she knew what type of vehicles the

Alcubillas drove and dared them to call the police. The memo

recorded Ms. AlcubillaÓs daug hter as stating the police were

called but when they arrived at Building 2, Ms. Shaw already was

gone and therefore, no enforcement action was taken.

Ms. Napolitano ended her memo to Ms. Parks with a personal

observation: ÐI just donÓt know what to do abo ut all of this but

it certainly seems to be escalating.Ñ Whatever the source of

the friction between the two families, Ms. Napolitano testified

that she had no reason to believe there was any racial animus on

the part of the Alcubillas .

27 . On December 30, 2010, Ms. Hayden invited M ater

Alcubilla to the office to discuss the incident with Ms. Shaw .

Following their meeting, Ms. Hayden notated the date of the

meeting and substance of their discussion in the AlcubillaÓs

resident conversation l og. Ms. Hayd en recorded in her own

handwriting: ÐResident very frightened, Resident plans on moving

at the end of her lease - Resident claimed Ms. Shaw yelled at her

and threatened her and told her she needed to return to her

country.Ñ Ms. Hayden considered this to be an interpersonal

dispute between the Alcubillas and Ms. Shaw .

28 . Also on December 30, 2010 , Ms. Hayden a nd Ms. Parks

invited Ms. Shaw to the m anagement o ffice to discuss the

AlcubillasÓ complaints. Ms. Hayden recorded in the AlcubillaÓs

r esident l og th at Ms. Shaw denied the AlcubillasÓ accusations,

became upset and told Ms. Hayden and Ms. Parks that her

neighbors needed to mind their own business. Ms. Hayden also

noted that the meeting ended when Ms. Shaw got up, stated , Ð y ou

wait Ñ and left the office. Based on what she perc eived as a

threat by Ms. Shaw of continuing trouble with the Alcubillas,

M s. Hayden recorded her intent to notify a Courtesy Officer of

the situation.

29 . On February 15, 2011, the Shaw s received a three - day

notice from Epoch for failure to pay rent , and a notice of an

outstanding balance due. This was a Lease violation.

30 . Three weeks later , on March 4, 2011, the S haws were

issued another three - day notice for failure to pay rent. This

concerned a Lease violation.

31 . Ms. Wa tson continued to hear the S haws' dog barking

and loud voices and other noises, included stomping and

footsteps, emanating from the Shaw s ' apartment. On one

occasion , the S haws left Gainesville for the weekend and placed

their dog out on the balcony becau se it barked continuously.

The noise and barking interfered with Ms. WatsonÓs ability to

study and to enjoy her residence.

32 . On March 5, 2011, E poch posted a letter on the S haws'

door regarding c omplaints received from the Shaws' neighbors

about the dog barking for hours at a time, often late at night

and in particular on March 3, 2011. This concerned a Lease

violation.

33 . The loud barking, stomping, and talking within the

Shaws' apartment did not abate , and on March 9, 2011, E poch sent

the S haw s a "Seven D ay Notice to Cure Lease Violation " which

cited their violation of Lease Provision 30 and C ommunity

Rule Y.

34 . On March 17, 2011, E poch send the S haws an ÐUrgent

Outstanding Balance DueÑ notice regarding their outstanding

unpaid utility b ill. This concerned a Lease violation.

35 . Also on March 17, 2011, an email was generated by

Epoch Ós answering service which reported that Tara Kohl of

Apt. 2 - 101 had called. The generated message stated Ms. KohlÓ s

complaint as , ÐApt. Above Very Noisy /Heavy Walking Again.Ñ

36 . On March 19, 2011 , Ms. Napolitano printed off the

email note and called M s. Kohl to get more information about the

complaint. Ms. Napolitano recorded hand - written notes about the

conversation on a printed copy of the email whi ch read: ÐLast

couple nights Ï beating down on floor Î jumping/walking. 3 - 4 am can

hear them all the time.Ñ The email with Ms. NapitanoÓs hand -

written notes was placed in the KohlÓs tenant file.

37 . Immediately following Ms. KohlÓs complaint, Ms. Shaw

wro te the following note and faxed it to the m anagement o ffice:

To Uptown Village

On Saturday night , March 19, 2011 , I noted a

very loud bumping noise coming from my

floor. I was home alone and very afraid. I

even feared calling the office or security

in f ear of retaliation. From past

experiences when I have voiced a complaint,

I receive notes on my door alleging that my

dog was barking, that I had trash beside m y

door, we were st o mping, we were too loud and

have even found handwritten notes on my car.

My family and I can no longer live in such

turmoil. Please accept this letter as a

formal complaint regarding harassment. If

these occurrences continue , I will have no

other choice than to contact HUD. Thank you

in advance for your help.

Glenda Shaw

38 . Prior to the d ate of the faxed letter neither

Petitioner had ever complained about discrimination of any kind

to anyone at E poch .

39 . Ms. Hayden and Ms. Brown discussed the content of

Ms. Shaw's fax and how to handle its a llegations. They viewed

Ms. Shaw Ós complaint against the Kohls as retaliation against

the Kohls for making a complaint about noise from the S haw sÓ

apartment the day before , and therefore a personal dispute.

They also considered whether to respond to Ms. Shaw Ós a llegation

of harassme nt by Epoch, and decided that any response wou ld just

be viewed by Ms. Shaw as evidence of further harassment. They

decided to place the faxed letter in the S haw Ós tenant file and

take no other action.

40 . It wa s a normal business practice of E poch to g enerate

a list of tenants whose leases were due to expire within t he

following 90 days. The list wa s used to create flyers reminding

those ten ants to contact the management o ffice regarding

renewal. Flyers we re sent to each tenant on the list regardless

of whether the tenant wa s in default of the lease or potentially

a candidate for non - renewal. A renewal flyer was placed on the

ShawsÓ door in late March and a second renewal flyer was posted

on the Shaws' door the following month. Neither renewal notice

elicited a response from the Shaws.

41 . On March 25, 2011, E poch sent the S haw s an ÐUrgent

Outstanding Balance Due NoticeÑ regarding their overdue utility

bi ll. This concerned a Lease v iolation.

42 . Just prior to Easter, 2011, a n Uptown Village tenan t

asked the management office for permission to hold a private

Easter egg hunt for their friends on the communityÓs volleyball

court. E poch approved the request. Uptown Village resident s

were not notified of the event through Constant Contact because

th e Easter egg hunt was not an Epoch - sponsored event. The

individual who organized the event made the decision whom to

invite.

43 . On May 10, 2011, Ms. Shaw came to the m anagement

o ffice and was assisted by Ms. Brown. Ms. Shaw accused Brian

Kohl of confr onting her daughter and calling her Ðtwo - faced.Ñ

Ms. Shaw demanded that Epoch take action against Mr. Kohl and

stated that if Epoch would not do anything about the situation,

she was going to call the police or the Florida Department of

Children and Famil ies . Before Ms. Shaw left , Ms. Brown asked

about the Shaw s ' intentions to remain residents up on the

expiration of their Lease. Ms. Shaw did not give a defini tive

answer. Ms. Brown then told Ms. Shaw that if the Shaw s decided

not to renew, Epoch would no t hold them to the 60 - day advance

notice required by the Lease.

44 . Three days after this meeting, Ms. Brown notified

Ms. Shaw that Epoch could not send a n otice of v iolation to

Mr. Kohl because the accusations against him were not Lease

violations. How ever, Ms. Brown offered to discuss the

allegations with Mr. Kohl , a truck - driver who was often on the

road.

45 . On May 18, 2011, Ms. Brown met with Brian Kohl to

discuss Ms. Shaw Ós complaint. Mr. Kohl gave his side of the

story. After he left, Ms. Bro wn entered the following note in

the KohlÓs r esident c onversation l og:

Brian came in wanting to break lease b/c

[because] daughter is being harassed by

girls in 2 - 111 and 2 - 101 2 / so badly that she

wonÓt go outside. Told him that one 2 - 111

should be finish soon (they are on NTV

[Notice to Vacate] and the other may too,

(2 - 101) lease expires 6/25. Otherwise would

do what I can and to give us the opportunity

to help before he moves.

Ms. Brown also made an entry in the S haw s ' r esident c onversation

l og regard ing Mr. KohlÓs allegation that the S haws' daughter was

bullying the KohlÓs daughter.

46 . The following day, May 19, 2011, Ms. Watson came to

the m anagement o ffice and gave notice that she was moving out of

Uptown Village when her lease expired in August 2011. She was

asked to complete a form entitled ÐNotice to Vacate from

Resident . Ñ In her own handwriting, she wrote the reason for

vacating as Ð l oud t enants.Ñ The Notice to Vacate from Resident

was placed in Ms. WatsonÓs tenant file as pa rt of Epoch Ós

r egular business practices. At hearing, Ms. Watson testified

that she and her fiancé had considered living in her apartment

after they married and decided they could not live there due to

the continued noise and disturbances emanating from the

apartment be low.

47 . With Ms. WatsonÓs n otice to v acate, Ms. Hayden and

Ms. Brown came to the realization that three tenants in

Building 2 had le vied complaints against the Shaw s and two had

made decisions to move out in whole or in part due to the Shaw sÓ

conduct. Ms. Hayden and Ms. Brown then conducted a more

thorough review of the S haw sÓ tenant history , and discussed

whether the Shaw s should continue to reside at Uptown Village.

They called E poch Ós attorneys to get legal advice and left a

message.

48 . On May 29, 2011, Epoch received a handwritten letter

from Tara Kohl making numerous complaints against the Shaws,

including loud noises late at night, and the Shaws parking one

of their cars in a handicapped parking space .

49 . On June 8, 2011, the m anagement o f fice received a

hand - written letter from Brian Kohl giving notice of his

familyÓs intent to break their lease and move out. The reasons

given all centered on the noise being generated in the Shaws'

apartment, and alleged threats that had been made by Ms. Shaw

against Ms. Kohl.

50 . On June 17, 2011, Ms. Shaw called the m anagement

o ffice and spoke with Ms. Brown. Ms. Shaw asked for a copy of

her l ease, inquired about the shortest lease term possible , and

the amount of any rent increase. Ms. Brown d id not commit that

the Shaws' lease would be renewed nor did she quote a renewal

rate. Ms. Shaw continued to press the issue and Ms. Brown

final ly stated that a normal rent increase on renewal was $100 a

month.

51 . On June 20, 2011, Ms. Hay den and Ms. Brown s poke to

Epoch Ó s attorneys regarding options for ending the Shaws'

tenancy. A decision was made to non - renew their lease as that

would cause the least disruption to the S haws . Ms. Hayden

prepared a non - renewal letter , and it was posted on the Shaws'

door the same day.

52 . Later t hat afternoon, Mr. and Ms. Shaw came to the

management o ffice, met with Ms. Brown , and demanded to know the

reason why their Lease would not be renewed. Ms. Shaw insisted

that Ms. Brown had told her their Lease would be renewed at a

rate of $937.00. Ms. Brown denied she made this statement.

Ms. Brown asked Ms. Hayden to intervene in the dispute.

53 . Ms. Hayden explained that E poch had a right to issue a

non - renewal notice and that the decision was based on the

numerous compla ints received about the Shaws . Ms. Shaw insisted

that if there were grounds to terminate the Lease for cause,

Epoch should issue them a seven - day notice to vacate.

Ms. Hayden explained that they had decided to issue a non -

renewal notice rather than a not ice to vacate to allow the Shaw s

more time to make arrangements and to foster an amicable

parting.

54 . Epoch has sent n on - African - American, White and

Hispanic tenants notices of violation regarding excessive noise

and non - payment of rent and fees , and al so has terminated leases

(through eviction) on these bases. There is no competent

substantial evidence in this record to even suggest that the

decision to non - renew the Shaws' lease was in any way related to

their status as African - Americans.

55 . O n Jun e 23, 2011, Mr. CarusoÓs girlfriend was walking

their dog outside Building 2 off leash (in violation of the

Rules) when it began to chase the S haws' son. The dog nipped at

their sonÓs leg but did not draw blood or break his skin. When

Mr. Caruso learned of the incident, he came to the Shaws'

apartment to apologize. He later returned and asked to take a

photo of their sonÓs leg because he feared Ms. Shaw might bring

legal action against him , given her hostility af t er he had

offered her a bag to clean up h er dogÓs waste on a previous

occasion. Ms. Shaw refused to allow Mr. Caruso to photograph

her sonÓs leg . Instead, she told him if he did not leave she

would call the police , and if his dog ever attacked again she

would report him and have the dog put to sleep.

56 . On June 27, 2011, a second non - renewal letter was

posted on the Shaws' door to e nsure that Petitioner Ós understood

their l ease would not be renewed. The following day the Shaws

returned to the management o ffice and insisted that at the end

of the June 20th meeting, they had been told their l ease would

be renewed. Ms. Hayden denied this and reiterated that their

lease was being non - renewed based on complaints from neighbors.

As the meeting continued, Ms. Shaw became increasingly agitated;

she turned to Ms. Brown and asked if Ms. Brown found her to be

confrontational. Ms. Brown responded that she thought Ms. Shaw

had a Ðstrong personality.Ñ To that, Ms. Shaw replied, ÐItÓs my

culture.Ñ

57 . As the meeting continued, Ms. Shaw began to inject t he

issue of race into the conversation. For example , in response

to Ms. HaydenÓs remark that the decision to non - renew was not

personal , since she would not even recognize Ms. Shaw if she saw

her at a mall, Ms. Shaw stated that Ðwhite people think we all

look alike.Ñ As the conversation was taking an uncomfortable

turn, Ms. Hayden ended the meeting and referred the S haws to

Epoch Ós attorneys if they had any further questions or concerns.

58 . I n early July 2011, Mr. Caruso was returning to

Building 2 aft er walking his dog on leash and encountered

Mr. Shaw . Mr. Shaw told Mr. Caruso to keep his dog away or he

would kick it.

59 . On July 11, 2011, Ms. Shaw complained to the

m anagement o ffice about Mr. CarusoÓs dog charging at her while

it was on a leash. She not ed this was the second incident

involving the dog. Ms. Brown told Ms. Shaw she would look into

the matter , since t his w ould be considered a violation of the

Lease and Community Rules. On July 12, 2011, Ms. Brown spoke

with Mr. CarusoÓs girlfriend and cautioned her to keep the dog

under control. Ms. Brown noted their conversation in both the

Shaw sÓ and Mr. Caruso's resident c onversation l og .

60 . On August 4, 2011, Ms. Watson completed a " Move Out

Survey " and in response to a question abou t what c ould have been

done by m anagement to encourage her to stay, wrote in her own

hand - writing: ÐDealt with loud neighbors more consistently and

effectively . . .Ñ She added that her reason for leaving was

Ðloud , inconsiderate tenants.Ñ

61 . The S haw s refus ed to move out by the date given in

their non - renewal notice and stopped paying rent.

62 . On August 3, 2011, the S haw s dual - filed a charge of

housing discrimination (race and color) with the Commission and

the Federal Department of Housing and Urban Dev elopment . The

charge alleged that E poch had refused to rent to them, made

discriminatory statements , and had offered them less favorable

terms, conditions, privileges, services or facilities than other

non - African - American tenants. The facts supporting t heir charge

were that they were not invited to the Easter e gg hunt; that

they had been told their lease would be renewed yet it was not;

and that Ms. Hayden had made racist statements.

63 . The S haws did not pay rent for July 2011 , 3 / and on

August 4, 2011 , were sent a " Notice to Pay Rent " by E poch .

64 . The Commission investigated the S haws' charge of

housing discrimination and issued a determination on August 31,

2011 , finding there was no probable cause to support the claims.

65 . On September 29, 2011 , the S haw s filed a Pet ition for

Relief from an alleged discriminatory housing practice , giving

rise to the instant proceeding. During the pendency of this

matter , the S haws were evicted from Uptown Village for non -

payment of rent.

CONCLUSIONS OF LAW

66 . The Division of Administrative Hearings has

jurisdiction of the subject matter of and the parties to this

proceeding. §§ 120.569 an d 120.57(1), Fla. Stat.

67 . Petitioner s have alleged that Respondent s violated the

Florida Fair Housing Act, s ections 760 .20 - 760.37, Florida

Statutes. Section 760.23(2), prohibits discrimination against

person s , in the terms, conditions, or privileges of rental of a

dwelling, or in the provision of services or facilities in

connection with rental of a dwelling, because of t hat person's

race.

68 . In all respects material here, the language in s ection

760.23(2) is identical to that in Title 42, s ection 3604(b),

United States Code, which is part of the Federal Fair Housing

Act, as amended. "If a Florida statute is modeled aft er a

federal law on the same subject, the Florida statute will take

on the same construction as placed on its federal prototype,

insofar as such interpretation is harmonious with the spirit and

policy of the Florida Legislation." See Brand v. Florida Powe r

Corp . , 633 So. 2d 504, 509 - 510 (Fla. 1st DCA 1994).

69 . Petitioner s herein ha ve the ultimate burden of proving

that a discriminatory housing practice was committed by

Respondents, based upon the Petitioners ' race (African -

American). See § 760.34(5), Fl a. Stat . In the absence of

direct evidence of intentional discrimination, of which there is

none in this record , 4 / the following well - established, three - part

burden of proof analysis, derived from McDonnell - Douglas Corp .

v. Green , 411 U.S. 792 (1973), is used in analyzing cases

brought under the Federal Fair Housing Act:

First, the plaintiff has the burden of

proving a prima facie case of discrimination

by a preponderance of the evidence. Second,

if the plaintiff sufficiently establishes a

prima facie cas e, the burden shifts to the

defendant to articulate some legitimate,

non - discriminatory reason for its action.

Third, if the defendant satisfies this

burden, the plaintiff has the opportunity to

prove by a preponderance that the legitimate

reasons asserte d by the defendant are in

fact mere pretext.

See U . S . Dep Ó t of Hous . and Urban Dev . v. Blackwell , 908 F.2d

864, 872 (11th Cir. 1990) ( quoting Pollitt v. Bramel , 669 F.

Supp. 172, 175 (S.D. Ohio 1987) ) .

70 . In accord with the burden - shifting analysis of

McDonnell - Douglas , referenced above, Petitioner s must establish

a prima facie case , but still retain the ultimate burden of

persuasion concerning the discrimination claim, after showing a

prima facie case , by coming forward with evidence to show that

any l egitimate, non - discriminatory reason put forth by

Respondent s is pre - textual. See St . Mary's Honor Center v.

Hicks , 509 U.S. 502 (1993).

71 . Circumstantial evidence of discriminatory animus may

be provided in the form of proof that the charged party tre ated

p ersons outside of the protected class, who were otherwise

similarly situated, more favorably than the complainant was

treated. U.S. DepÓt. of Hous . & Urban Dev. v. Blackwell , 908

F. 2d 864, 871 (11th Cir. 1990).

72. To establish housing discrimin ation through

circumstantial evidence, a party ordinarily must establish

(1) he/she belong to a protected class; (2) he/she was qualified

to reside in housing; (3) he/she was denied housing or treated

differently than others who were not in the protected class.

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).

73 . If a prima facie case is established, then the burden

shifts to the landlord to articulate a legitimate business

reason for its actions. Head v. Cornerstone Residential Mgmt . ,

Inc. , 2010 U.S. Dist. LEXIS 99379 (S.D. Fla. 2010). Once a

landlord articulates a legitimate business reason for its

actions, then the comp laining party must establish that the

reason given by the landlord is pretextual. To prove pretext,

Petitioners must show that the reasons offered for an adverse

action are not the true reasons behind it. This is accomplished

by pointing to such weakness es, implausibilities ,

inconsistencies, incoherencies, or contradictions in the

decision - makers proffered legitimate reason s that a reasonable

fact finder c ould find them unworthy of credence. Comparator

evidence can be raised as a part of a showing of pre text. Rioux

v. City of Atlanta, Ga. , 520 F.3d 1269, 1276 (11th Cir.) (citing

for one, McDonnell Douglas , 411 U.S. at 804), reh'g denied , 285

F. App'x 741 (11th Cir. 2008).

74 . Petitioners Ó c harge of discrimination is predicat ed

upon the three factual al legations set forth in their Petition

for Relief: (1) Petitioners were illegally denied the

opportunity to re new the lease on the apartment they occupied

because of their race; (2) Respondents failed to follow - up on

complaints made by Petitioners in the s ame manner as for those

made by white tenants; and (3) Petitioners were not invited to

events to which white tenants were invited.

Non - Renewal of Lease

75 . A prima facie case of housing discrimination in the

context of a refusal to rent can be establishe d through

circumstantial evidence by showing that 1) Petitioners are

members of a protected class and Respondents knew it; 2) they

were qualified to renew their lease, i.e., ready, willing and

able to renew their lease; 3) they were denied renewal of their

lease. Soules v. U.S. Dep't of Hous. & Urban Dev. , 967 F.2d

817, 822 (2d Cir. 1992); Head v. Cornerstone Residential Mgmt . ,

Inc. , supra ; Jackson v. Comberg , 2006 U.S. Dist. LEXIS 66405

(M.D. Fla. 2006); Cavalieri - Conway v. Butterman & Assoc . ,

992 F. Sup p. 995 (N.D. Ill. 1998) . The first and third elements

of Petitioner sÓ prima facie case was uncontested by Respondents.

Remaining for de termination is whether Petitioners were

qualified to renew their lease and if so, whether the y prove d

that RespondentsÓ articulated business reasons are a pretext for

race discrimination.

76 . Nothing in th is record sup ports a conclusion that the

Petitioner s were ready or willing to accept a one year l ease

renewal at the standard renewal increase of $100 per month.

Howev er, even assuming this conclusion could be drawn; it would

not lead to a like conclusion that the S haws continued to be

qualified to lease. To the contrary, the overwhelming competent

substantial evidence established that Respondents were not

qualified to continue as residents of Uptown Village.

Management experienced ongoing issues with the Shaw s thr oughout

their tenancy which constituted violations of the Lease and

Community R ules. These included repeated bounced rent checks,

unpaid utility bill s and r epeated complaints from the Shaws'

neighbors about loud noise, aggressive behavior and

inconsiderate and vexatious conduct. Petitioners also failed to

pay rent from July 2011 , through the date of their eviction.

Failure to abide by lease terms during a l ease, including

payment of all rental amounts due, can render a tenant

unqualified for renewal . See , e.g. , Hobson v. HSC Real Estate,

Inc. , 2011 U.S. Dist. LEXIS 24587 (W.D. Wash. 2011) rev. in part

2012 U.S. App. LEXIS 10299 (9th Cir. 2012) [reversal on § 1981

claim required by direct evidence of discriminatory comments];

Diaz v. Panama City Hous . Auth . , Case No. 10 - 3164 (Fla. DOAH

Aug. 9, 2010; Fla. FC H R Oct. 26, 2010) . Petitioners did not

show that others outside their protected status were treated

mor e favorably for similar types of lease violations.

77 . Even assuming that Petitioners had proved their

qualification to renew their lease (in the sense that they

continued to meet the objective Rental Application Approval

Criteria), their claim also fail s because they did not establish

that RespondentsÓ articulated legitimate business reasons for

non - renewal were pretextual. Petitioner s failed to show that

RespondentsÓ managers and employees did not hold an honest (and

in this case, well - founded) belief that Petitioner sÓ rental

history and continuing course of inconsiderate conduct made them

undesirable tenants. Morgan v. Orange County, Florida , 2012

U.S. App. LEXIS 10335 (11th Cir. 2012 ). Petitioners Ó denials of

the Lease violations and re - characteriza tion of their conduct

merely substitutes their own judgment for that of Respondents;

this tack does not prove pretext. Frazier v. Doosan Infracore

IntÓl, Inc. , 2012 U.S. App. LEXIS 12995 (11th Cir. 2012 );

Cavalieri v. Butterman & A ssoc . , 1999 U.S. App. LE XIS 851 (7th

Cir. 1999).

Discriminatory Failure to Follow Up on Complaints

78 . PetitionersÓ Ð failure to follow - up Ñ claim seems to

r ely on two particular incidents. The f irst relates to

Ms. Shaw Ós March 19, 2011 , fax to the m anagement o ffice and the

seco nd, her May 10, 2011 , complaint about Brian Kohl.

79 . What Ms. Shaw described as ÐharassmentÑ in her

March 19, 2011 , fax references the several l ease violation

notices she received from Epoch prior to that date , and a

complaint of the Kohls banging on h er floor ( their ceiling ) .

Nothing offered by Petitioners leads to a conclusion that the

reason why Uptown Village managers and staff failed to follow up

on Ms. Shaw's complaint against the Kohls was racially

motivated or that the managers and staffÓs expl anation - Î that

they believed the complaint to be simple retaliation by Ms. Shaw

for the prior complaint of Tara Kohl Î - was pretextual. Indeed,

Resp ondents offered evidence which demonstrated that Ms. Shaw

had reacted in a similar fashion to the complaint ma de by the

Alcubillas. Further, Petitioners failed to meet their burden of

proof to show that Uptown VillagesÓ managers and staff did not

have a good faith belief , based on personal observations or the

complaints of surrounding tenants , that Petitioners we re

disruptive and inconsiderate neighbor s. The mere fact that

Petitioners are members of a protected class under the F air

H ousing A ct is not sufficient, by itself, to prove racial

motivation. See , e.g. , Woods v. Von Maur, Inc. , 2011 U.S.

Dist. LEXIS 9474 7 (N.D. Ill. 2011).

80 . Even a ssuming , arguendo , that prima facie evidence

shifted the burden to Respondents, Petitioners presented no

persuasive evidence that RespondentsÓ explanations were pre -

textual. Petitioners likewise failed to meet their burden to

establish disparate treatment in the manner in which Respondents

handled Ms. Shaw's personal dispute with Brian Kohl.

The Easter Egg Hunt

81. Petitioners failed to meet their burden to establish

that Respondents subjected them to differing terms, c onditions

or privileges based on their race/color when they were not

invited to the Easter e gg hunt. N o evidence was presented that

Respondents organized or sponsored the Easter e gg hunt. Rather,

Petitioners were treated no different ly than any other Upt own

Village resident who did not recei ve an invitation to the event

from the individual who organized and held it. No other

evidence or testimony established that E poch excluded

Petitioner s from management sponsored events , whether noticed

through Constan t Contact , or otherwise.

Conclusion

82 . There simply has been no preponderant, persuasive

proof that racial animus on the part of Respondents had any part

to play in Petitioners Ó failure to secure a lease renewal of the

subject premises. Similarly, the g reater weight of the evidence

does not support Petitioners' claims that the ir complaints

against neighbors were handled any differ ently than any other

complaints, or that Respondents discriminated against them in

any way. Petitioners Ó opinion or go od - fait h belief, standing

alone, cannot carry Petitioners Ó ultimate burden of persuasion

and constitute competent evidence of discrimination. Swanson v.

General Serv . Admin . , 110 F.3d 1180, 1186 (5th Cir. 1997);

Little v. Republic Refining, Co. , 924 F.2d 93, 96 ( 5th Cir.

1991); and Elliott v. Group Med . and Surgical Serv . , 714 F.2d

556, 567 (5th Cir. 1983).

RECOMMENDATION

Having considered the foregoing Findings of Fact,

Conclusions of Law, the evidence of record, the candor and

demeanor of the witnesses, and th e pleadings and arguments of

the parties, it is, therefore,

RECOMMENDED that a final order be entered by the Florida

Commission on Human Relations, determining that Respondents did

not commit a discriminatory housing practice based upon

Petitioners Ó race and that the Petitio n be dismissed in its

entirety.

DONE AND ENTERED this 3rd day of October , 2012 , in

Tallahassee, Leon County, Florida.

S

W. DAVID WATKINS

Administrative Law Judge

Division of Administrative Hearin gs

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 3rd day of October , 2012 .

ENDNOTES

1 / Mr. Shaw signed the lease on August 11, 2011.

2 / At hearing, Ms. Brown testified that she mis takenly wrote

" 2 - 101 " when she meant to write " 2 - 201 ," the S haws' apartment

number.

3 / Although the ShawsÓ lease was not renewed, they were

permitted to Ðhold overÑ on a month - to - month basis until they

could locate other housing.

4 / Petitioners did not establish t hat RespondentsÓ managers or

employees made statements which indicated a preference or

limitation based on col or or race. Alleged statements

concerning Ms. Shaw Ós p ersonality Ðbeing too strongÑ also do not

indicate a racial preference or limitation , as nothing in this

record suggests that such comments were r ace - related.

COPIES FURNISHED :

Vernon Shaw

Glenda Sh aw

4312 Northwest 34th Drive

Gainesville, Florida 32605

[e-mail]

Leslie W. Langbein, Esquire

Langbein and Langbein, P.A.

8181 Northwest 154th Street, Suite 105

Miami Lakes, Florida 33016

langbeinpa@ bellsouth.net

Denise Crawford, Agency Clerk

Florida Commission on Human Relations

Suite 100

2009 Apalachee Parkway

Tallahassee, Florida 32301

[e-mail]

Lawrence F. Kranert, Jr., Gen eral Counsel

Florida Commission on Human Relations

Suite 100

2009 Apalachee Parkway

Tallahassee, Florida 32301

[e-mail]

Michelle Wilson, Executive Director

Florida Commission on Human Relations

Suite 100

2009 Ap alachee Parkway

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 wit h the agency that

will issue the Final Order in this case.