12-002030 Pierre And Emmanuella Woolley vs. Stonebrook Ii Hoa, Inc. Status: Closed Recommended Order on Wednesday, January 30, 2013.

Summary: Petitioners failed to prove prima facie case of housing discrimination inasmuch as the community association management company treated them the same as any other resident with unpaid assessments and fines when it came to servicing their gate access card.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

PIERRE AND EMMANUELLA WOOLLEY , )

)

Petitioner s , )

)

vs. ) Case No. 12 - 2030

)

STONEBROOK II HOA, INC. , )

)

Respondent . )

)

RECOMMENDED ORDER

On Nov ember 30, 2012, Robert E. Meale, Administrative Law

Judge of the Division of Administrative Hearings, conducted the

final hearing by videoconference in Tallahassee and Lauderdale

Lakes, Florida.

APPEARANCES

For Petitioner: Pierre Woolley, pro se

Emmanuella Woolley, pro se

2033 Northwest 178th Way

Pembroke Pines, Florida 33029

For Respondent: Margaret H. Mevers, Esquire

Teresita M. Perez, Esquire

Lydecker | Diaz

1221 Brickell Avenue, 19th Floor

Miami, Florida 33131

STATEMENT OF THE ISSUE

The issue is whether Respondent is guilty of committing a

discriminatory housing practice against Petitioners, based on

their national origin, in viol ation of the Florida Fair Housing

Act, sections 760.20 - 769.37, Florida Statutes.

PRELIMINARY STATEMENT

On February 28, 2012, Petitioners filed a housing complaint

with the U. S. Department of Housing and Urban Development,

which forwarded the complaint to the Florida Commission on Human

Relations. On May 16, 2012, the Florida Commission on Human

Relations conducted an investigation and, on May 16, 2012,

issued a Notice of Determination of No Cause.

On June 11, 2012, Petitioners timely filed with the Florid a

Commission on Human Relations a Petition for Relief. The

petition alleges that Respondent committed a discriminatory

housing practice against Petitioners when it denied Petitioners

an access card for the parking area on the ground that

Petitioners are H aitian . Impliedly admitting that they had

violated the bylaws or covenants governing the ir community

association, Petitioners alleged that Respondent discriminated

against them by denying them a parking access card, even though

Respondent did not deny acc ess cards to other , nonHaitian

residents who had violated the same homeowner documents.

At the hearing, Petitioners called four witnesses and

offered into evidence two exhibits: Petitioners Exhibits 1 - 2 .

Respondent cal led one witness and offered into e vidence ten

exhibits : Respondent Exhibits 1 - 10 . All exhibits were a dmitted

into evidence . Petitioners Exhibit 1 is attached to the

Petition for Relief. Petitioners Exhibit 2 is the Notice of

Determination of No Cause by the Florida Commission of Human

Relations, which the commission transmitted to the Division of

Administrative Hearings with the initial file.

The court reporter filed the transcript on January 4, 2013.

Respondent filed a proposed recommended order.

FINDINGS OF FACT

1. In 2006, Pet itioners purchased the single - family

detached residence located at 1360 Northeast 41st Place in

Homestead, Florida. The home is located behind an access gate

that requires a card to operate. The card is serviced by

Respondent t hrough its management compa ny, T he Continental

Group .

2. Petitioners claim that Respondent's harassment forced

them to move out of their home in October 2012 . It is likely,

though, that the timing of their relocation was influenced by a

foreclosure judgment entered on March 7, 201 2. The foreclosure

judgment calculated interest on the unpaid mortgage note from

September 1, 2008, suggesting that Petitioners had not made

mortgage payments for the four years immediately preceding their

moving out of the house.

3. Petitioners' residen ce is subject to a declaration of

covenants and bylaws. Respondent and The Continental Group are

responsible for enforcing the provisions of these homeowner

documents.

4. Petitioners have a long history of violatio ns of the

homeowner documents dating a s far back as at least late 2008. A

notice dated December 31, 2008, advised Petitioners of a

noncompliant lease. Notices dated June 30 and December 15,

2009, advised Petitioners that their landscaping lacked mulch.

Notices dated August 10 and 25, 2009, advised Petitioners of a

vehicle blocking the sidewalk. A notice dated September 24,

2009, advised Petitioners of a driveway that required pressure -

cleaning .

5 . The notices became more numerous in 2010 and 2011.

C laimed violations included an oil stai n on the driveway, mildew

on one or more exterior walls, and more landscaping issues,

almost all of which involved shrubs that needed trimming. On

occasion, the inspector cited the failure to trim dead branches

or small amounts of grass growing between dr iveway pavers, but,

mostly, she cited the failure to trim live vegetation.

6 . The evidentiary record contains 18 citations for

overgrown shrubs, even though the photographs that are part of

the citations reveal only a conventional foundation planting

un der the front windows that at no time extends above the bottom

of the window frame. There are seven citations for grassy

driveway pavers, although only one photograph clearly reveals

any such grass -- perhaps one linear foot of a few blades of grass

wedged between a few pavers immediately in front of the garage

door. A similar pattern of citations extended into 2012.

7. Petitioners do not ground their claim of discrimination

of these violations , though . Respondent produced a thick

written summation of cit ations and fines that it imposed on

homeowners in 2011 - 12, and Petitioners do not stand out in this

document. Respondent clearly enforced the homeowner documents

closely, so all that can be gleaned from Petitioners' long

citation history is that relations between Petitioners, on the

one hand, and Respondent and The Continental Group , on the other

hand, may have been strained at times .

8 . In any event, the evidentiary record discloses that

Petitioners were fined 17 times for untrimmed shrubs and 11

times for failing to remove the mildew from exterior walls.

This record of fines is illustrative, not exhaustive.

Petitioners believe they have been fined about $10,000 .

Regardless whether this figure is correct, Petitioners have been

fined a substantial amo unt of money, but they have never paid

any of these fines.

9 . Petitioners also failed to stay current on their

homeowner assessment and maintenance fees. By August 12, 2011,

Petitioners overdue balance on these items totaled $1 , 145 plus

another $1 , 000 in costs in connection with filing a lien against

the ir residence.

10. In mid - August 2011, Respondent sent a notice to all

homeowners that their access cards would be deactivated,

necessitating the reregistration of the vehicles and recoding of

their cards. The notice warned that Respondent would recode

only the cards of residents who were current with their

maintenance fees.

11. Shortly after receiving this notice, Petitioners

visited the management office to reregister their two vehicles

and have T he Continental Group recode their two access card s.

Petitioners first met Ivan Arguello, who is a n administrative

assistant for T he Continental Group .

12. Mr. Woolley presented his access card to Mr. Arguello,

so he could recode it. Pursuant to Respon dent's policy,

Mr. Arguello checked Petitioners ' account and found them

delinquent, so, again pursuant to Respondent's policy,

Mr. Arguello informed them that he could only activate one card,

not both cards , unless they paid their balance in full or

entere d into a payment plan approved by Respondent or its

attorney .

13. Mr. Woolley was irate and retrieved his card from

Mr. Arguello . Mr. Woolley proceeded to address the issue with

Mr. Arguello's supervisor, Mr. Gonzalez, who, at the time of the

hearing, no longer was employed with The Continental Group .

Petitioners stepped into Mr. Gonzalez's office, which was near

the desk occupied by Mr. Arguello. Mr. Woolley and Mr. Gonzalez

became angry and argued loudly.

14. Although Mr. Woolley was aware that he could have

obtained the recoding of one card, he was unwilling to accept

this offer and instead left without the recoding of either card.

All of the evidence offered by Petitioners' witnesses of the

inconvenience posed by having no ac cess card was entirel y

attribut able to Mr. Woolley's decision not to accept the offer

to recode one of his and his wife's two cards. At no time after

this confrontation in the office did either P etitioner ever ask

an employee of The Continental Group or Respondent to recode o ne

of their access cards ; Mr. Woolley merely retained an attorney

to pursue the matter .

15. For their part, Mr. Gonzalez did not direct

Mr. Arguello to recode one of Petitioners' cards , nor did

Mr. Arguello choose to do so on his own . The policy of the

m anagement company or Respondent was to require that the

resident produce the card to be recoded, and Mr. Woolley had

done that when he had handed his card to Mr. Arguello. Although

Mr. Woolley left with his card, the actual recoding required

Mr. Arguello, who had noted the card number, only to enter some

information on his computer.

16. Under Respondent's policy, Petitioners were entitled

to the recoding of one of their cards. Under Mr. Arguello's

personal policy, which he testified that he has applied to other

loudly confrontational residents, he would not recode a card of

a vocally abusive resident. When asked if the resident had to

return to the office "contrite," Mr. Arguello answered: "No,

no. They just have to come back no t yelling." Tr. 57 - 58 .

17. N o evidenc e suggests that the failure of T he

Continental Group to recode the one card was due to

discrimination based on national origin. Petitioners alleged

that T he Continental Group and Respondent selectively enforced

these policies against Pe titioners, but they produced absolutely

no proof to sup port this claim, even as to Mr. Arguello's

personal policy. At the time of the incident in the office,

Petitioners had already incurred a number of u npaid fines and

maintenance fees. When Mr. Woolley became irate at the prospect

of being restricted to a single access card, despite his failure

to meet all of his financial obligations to the community

association, it is an easy inference that Mr. Gonzalez and

Mr. Arguello found Mr. Woolley's attitude in appropriate and

decided not go out of their way to help Mr. Woolley, such as by

ac tivating one of his cards , unless he asked again in a more

civilized fashion .

18. Essentially, the only evidence of discrimination in

this case is that Petitioners are Hai tian, they did not get two

access cards when they visited the management company's office,

and The Continental Group did not complete the recoding of one

of their cards after they left the office.

19. Respondent argues that none of the representatives o f

Respondent or The Continental Group knew that Petitioners are

Haitian. Certainly, this is the testimony of these witnesses.

Both petitioners are dark - complected and speak English with a

French accent, but it is unnecessary to determine if these facts

a re sufficient to support an inference of a different national

origin because t wo additional facts stand between Petitioners

and a prima facie case.

20. First, even if The Continental Group employees knew

that Petitioners are Haitian, there is no evidenc e of

discrimination based on this place of origin. There is no

evidence that Mr. Arguello or Mr. Gonzalez treated Petitioners

differently from other residents who did not pay their fines and

fees when it came to recoding access cards. This is true as to

Respondent's policies and Mr. Arguello's personal policy.

21. Second, there is no proof of any harm to Petitioners

that they did not cause to themselves. At any time, in a normal

tone of voice, they could have obtained a single access card,

but they chos e not to do so.

22 . If Mr. Arguello had not implemented his personal

policy, Respondent perhaps could have proved that Petitioners

commenced this proceeding for an improper purpose -- namely, to

harass Respondent. Respondent's policies restricting the

av ailability of access cards based on whether residents were

current on their obligations to the community association was

written and disseminated among the residents . Thus, if

Petitioners' claim of discrimination had been based exclusively

on the implemen tation of these sensible, written policies, they

might have exposed themselves to paying Respondent's reasonable

attorneys' fees and costs.

23. However, Mr. Arguello's implementation of his personal

policy -- while understandable -- raises a different issue in

requiring the analysis of the intent and effect of another tier

of decisionmaking by Respondent or, in this case, The

Continental Group. Ultimately, as noted above, Mr. Arguello's

implementation of his personal policy does not support a finding

of a p rima facie case of discrimination, but his policy's

subjective standard makes the inference of an intent to harass

on the part of Petitioners more difficult to make -- to the point

that such an inference cannot be made.

CONCLUSIONS OF LAW

24 . The Division of Administrative Hearings has

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

25 . Section 760.23(2) prohibits discrimination on the

basis of national origin, among other things, in the provision

of services or facilities in connection wi th the sale or rental

of a dwelling. This prohibition applies to post - acquisition

discrimination. Savanna Club Worship Service, Inc. v. Savanna

Club Homeowner s' Ass ' n, Inc. , 456 F. Supp. 2d 1223 (S.D. Fla.

2005).

26 . Petitioners have the burden of prov ing the material

allegations by a preponderance of the evidence. §§ 760.34(5)

and 120.57(1)(j) , Fla. Stat .

27 . Absent direct evidence or statistical evidence ,

Petitioners are left to prove by circumstantial evidence their

claim of discrimination. Circum stantial evidence is best

analyzed under the burden - shifting framework of McDonnell

Douglas Corp. v. Green , 41 U.S. 792 (1973) , in which Petitioners

must show a prima facie case of discrimination. If they do, an

inference of discrimination arises, which R espondent may rebut

by showing a legitimate, nondiscriminatory reason for its acts

and omissions. If Respondent does so, the burden shifts back to

Petitioners to show that the proffered reason is pretextual for

unlawful discrimination.

28 . For the reason s set forth above, Petitioners have

failed to prove a prima facie case of discrimination.

29 . A t the conclusion of the hearing, the Administrative

Law Judge orally denied Respondent's Motion for Attorneys' Fees

and Costs , which was filed on November 27 , 2012. Section

120.595(1)(c) and (e), which was cited in the motion, requires

the showing of an improper purpose -- here, in the form of an

intent to harass. For the reason set forth above, Respondent

was unable to make the required showing.

RECOMMENDATIO N

It is

RECOMMENDED that the Florida Commission on Human Relations

enter a final order dismissing the Petition for Relief.

DONE AND ENTERED this 30th day of January , 2013 , in

Tallahassee, Leon County, Florida.

S

ROBERT E. MEALE

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 Administr ative Hearings

this 30th day of January, 2013 .

COPIES FURNISHED :

Denise Crawford, Agency Clerk

Florida Commission on Human Relations

Suite 100

2009 Apalachee Parkway

Tallahassee, Florida 32301

Cheyanne Costilla, Interim General Counsel

Florida Commis sion on Human Relations

Suite 100

2009 Apalachee Parkway

Tallahassee, Florida 32301

Margaret H. Mevers, Esquire

Teresita M. Perez, Esquire

Lydecker | Diaz

19th Floor

1221 Brickell Avenue

Miami, Florida 33131

Pierre Woolley

Emmanuella Woolley

2033 North west 178th Way

Pembroke Pines, Florida 33029

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 w ith the agency that

will issue the Final Order in this case.