12-003493 Edward Givens vs. V.T.F. Properties, Llc Status: Closed Recommended Order on Thursday, February 7, 2013.

Summary: Petitioner failed to prove that he was discriminated against on the basis of his race or handicap in violation of the Florida Fair Housing Act. The Petition for Relief should be dismissed.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

EDWARD GIVENS , )

)

Petitioner , )

)

vs. ) Case No. 1 2 - 3493

)

V.T.F. P ROPERT IES , LLC , )

)

Respondent . )

)

RECOMMENDED ORDER

This case was heard on January 14, 2013 , in Macclenny ,

Florida, before E. Gary Early, a designated Administrative Law

Judge of the Division of Administrative Hearings.

APPEARANCES

For Petitioner: Edward Givens, pro se

604 Joan Street

Macclenny , Florida 32 063

For Respondent: Frank E. Maloney, Jr., Esquire

445 East Macclenny Avenue

Macclenny , Florida 32063

STATEMENT OF THE ISSUE

Whether Petitioner was the subject of discriminatory

housing practices base d on h is race or his handicap, in

violation of the Florida Fair Housing Act, c hapter 760, Part II,

Florida Statutes.

PRELIMINARY STATEMENT

On August 1 5 , 2012 , Petitioner signed a Housing

Discrimination Complaint , which was thereupon served on the

Florida Commission on Human Relations (FCHR) . The complaint

alleg ed that Respondent discriminated against Petitioner b ased

on h is race and his disability . The basis for the claim of

discrimination was that Respondent engaged in an incident that

constituted unlawful coercion, intimidation, threats, or

interference in the exercise of h is rights in connection with

h is tenancy in a rental apartment , and that Petitioner was

unlawfully charged for damage related to a broken water pipe, in

violation of the Fair Housing Act.

An investigation of the complaint was made by the FCH R. On

October 11, 2012 , the FCHR issued its Notice of Determination of

No Cause, which incorporated its October 8, 2012 , investigatory

Determination, and which conclud ed that there was no reasonable

cause to believe that a discriminatory housing practice had

occurred.

Petitioner disagre ed with the FCHRÓs determination and

filed a Petition for Relief. The petition was forwarded to the

Division of Administrative Hearings for a formal hearing. The

final hearing was scheduled for December 11, 2012 . Respondent

requested a continuance of th e hearing, but subsequently

withdrew the motion.

On the day of the final hearing, the undersigned was taken

ill, and was not able to travel to Macclenny . The parties were

notified, and the hearing was continued. The hearing was reset

for January 14, 2013 , and was held as scheduled.

At the hearing, Petitioner testified on h is own behalf and

offered the testimony of Lucia Gadsby, a Community Behavioral

Services Specialist for the Northeast Florida State Hospital;

Bianca Gaines - Givens, a Rehabilitation Speci alist for the

Northeast Florida State Hospital and personal friend of

Petitioner; Misty Lee, a personal friend of Petitioner; Jacoby

Givens, PetitionerÓs cousin; and Leroy Givens, Jr., PetitionerÓs

father . Petitioner o ffered PetitionerÓs Exhibits P1 - P 3 , w hi ch

were received in evidence. Respondent presented the testimony

of Fred Stivender, RespondentÓs property manager. Respondent

o ffered RespondentÓs Exhibits R1 - R 5 , which were received in

evidence.

The final hearing was not transcribed. The time for

submission of proposed orders was set at ten days from the date

of the final hearing. Respondent timely filed its P roposed

Order, which ha s been considered in the preparation of this

Recommended Order. Petitioner did not file a proposed order.

References to statutes are to Florida Statutes (201 2 )

unless otherwise noted.

FINDINGS OF FACT

1. At all times relevant to this cause, Petitioner was a

tenant of a rental apartment located at 284 So uth First Street,

Apartment 6, Macclenny , Florida (the Apartment) . PetitionerÓs

tenancy was established by a lease agreement with a final

effective date of November 24, 2009. Petitioner moved out of

the apartment on May 3, 2012.

2. Respondent is a Florida Limited Liability Company.

Among its other holdings, Respondent owns four 4 - plex units

located on First Street , Second Street, and Third Street in

Macclenny , one of which includes the Apartment .

3 . The racial make - up of the tenants occupying

RespondentÓs apartment s in the vicinity is roughly 50 percent

African - American and 50 percent Caucasian.

4 . Petitioner is African - American .

5 . Petitioner has an unspecified mental condition. He

takes medications for management of his symptoms, and receives

periodic visits from Ms. Gadsby to ensure that he is complying

with his medication regimen. Petitioner does not receive

disability benefi ts from the Social Security Administration.

6 . Petitioner holds a bachelorÓs degree in criminal

justice from Benedict College in South Carolina.

7 . As part of the application for rental of the Apartment,

Petitioner was asked Ð[h]ave you been arrested or had criminal

charges filed against you? (If yes, please list them).Ñ I n

response to the application question, Petitioner answered Ðyes

Trepass [sic.].Ñ The trespass charge was related to a

misdemeanor incident that occurred at an unspecified time in

Fort Lauderdale, Florida. Petitioner failed to disclose a

felony conviction for an incident that had occurred in South

Carolina. Petitioner stated that he thought the requirement to

disclose criminal charges applied only to charges arising from

incidents having occurred in Florida. However, nothing in the

application can be read to support that limitation. As such,

Petitioner materially falsified his lease application.

8 . Petitioner cut hair for members of his church,

neighbors, family, and friends at the Apart ment, and had done so

for the two - and - one - half years of his tenancy. He equipped the

Apartment with a barber chair and a small waiting area. He

accepted ÐdonationsÑ of food, clothes, and cash for his

services . The cash receipts were used to pay his electric and

water bills, among other things. Thus, despite its small scale

and limited clientele, Petitioner operated what can only be

described as a barbershop from the Apartment.

9 . The Lease Agreement between Petitioner and Respondent

provid es that the Apartment was not to be used Ðfor any other

purpose than as a private dwelling unit.Ñ The Lease A greement

also provides that Petitioner was to comply with all applicable

building and housing codes. The Macclenny C ode of Ordinances,

Part III, Section 4 - 105 , provides that home occupations are

subordinate and incidental to a residential neighborhood, but

that certain occupations, including barbershops, Ðshall not be

considered as home occupations under any circumstance.Ñ Thus,

PetitionerÓs opera tion of a barbershop from the A partment was a

violation of the Lease Agreement.

10 . There were no apparent landlord/tenant disputes

involving PetitionerÓs tenancy until late 2011. Mr. Stivender

testified that he began to receive periodic complaints from

tenants in the area regarding the Apartment, including cars

being parked on the grass and in the road, loud music, and

people milling about the premises. He testified that at least

one tenant advised Respondent that she wa s afraid to venture out

of her apartment due to the number of people in the area.

11 . The testimony of Mr. Stivender regarding complaints of

other tenants would be hearsay if taken for the truth of the

matters asserted. However, the undersigned accept s his

testimony as evidence, not of the facts surrounding the alleged

complaints, but of a non - discriminatory reason for actions to be

described herein, most notably the events of March 6, 2012.

12 . At the end of October 2011, Petitioner was cited by

Respondent for having more than one car regularly parked at the

A partment. PetitionerÓs car was not in running condition. The

other cars parked at the Apartment belonged to friends or

relatives. Petitioner subsequently sold his vehicle , and would

borrow his fatherÓs or his cousinÓs car when needed . The

incident caused bad feelings between the parties.

13 . On November 1, 2011, Respondent sent a notice to each

of its tenants in Macclenny . Although the notice was

precipitated by the complaints against P etitioner and

RespondentÓs observations of activities in and around the

Apartment, the notice was not limited to Petitioner. The notice

cited provisions of the common lease agreement regarding the use

of the premises and tenant conduct, and advised that excessive

noise, driving on the grass, and ÐloiteringÑ would be cause for

eviction. The notice further advised that the landlord would

Ðbe patrolling the area on a regular basis at night to check for

violations.Ñ

14 . On March 6, 2012, Mr. Ferreria was driving by the

Apartment at approximately 10:30 p.m. There were, along with

Petitioner and his daughter, three guests at the Apartment,

Bianca Gaines - Givens, Jacoby Givens, and Misty Lee. They were

playing music on an electronic keyboard.

15 . Mr. Ferreria stopped his car on the side of the road.

He called his property manager, Mr. Stivender, and advised him

that he was going to go speak with Petitioner about the noise

coming from the Apartment.

16 . Mr. Stivender works for a gas company, and was at work

routing gas trucks. Mr. Stivender advised that he was going to

come to the Apartment, and asked Mr. Ferreria to wait for him

before speaking with Petitioner.

17 . Ms. Gaines - Givens and Mr. Jacoby Givens left the

Apartment after Mr. FerreriaÓs arrival in the neighborhood, and

noticed Mr. Ferreria sitting in his vehicle. They drove away

from the A partment, but decided to return shortly thereafter.

By the time they returned, Mr. Ferreria and Mr. Stivender were

leaving. Thus, they did not witness the confrontation described

herein.

18 . After Ms. Gaines - Givens and Mr. Jacoby Givens drove

off, Mr. Ferreria, disregarding Mr. StivenderÓs request, went to

the Apartment and knocked on the door. I t was, by then,

approximately 10:45 p.m. When Petitioner answered the door, the

two immediately began a heated discussion over the music and the

cars.

19 . Ms. Lee went to the back of the Apartment when

Mr. Ferreria arrived. She heard yelling, but heard nothing of a

racial nature.

20 . Shortly after Mr. Ferreria arrived at the Apartment,

Mr. Stivender arrived on the scene. Mr. Stivender is a solidly

built man, and could be an intimidating presence under the right

circumstances. These were the right ci rcumstances.

21 . Mr. Stivender physically moved Mr. Ferreria out of the

way, and came between Mr. Ferreria and Petitioner. He was

primed for a confrontation. He had his hand in his pocket, but

testified convincingly that he was not armed. 1/ He and

Petitioner had a loud and a ngry exchange of words, and

Mr. Stivender forcefully suggested to Petitioner that it would

probably be best if he moved out of the Apartment .

22 . After Mr. Stivender appeared on the scene, Ms. Lee

came out from the back of the Apartment. She recognized

Mr. Stivender as RespondentÓs Ðoffice manager.Ñ She noted that

Mr. Stivender had his hand in his pocket, and was talking loudly

and pointing his finger in PetitionerÓs face.

23 . Ms. Lee went outside and spoke with Mr. Ferre ria. She

testified that Mr. Ferreria indicated that some of the neighbors

were afraid of Petitioner because of the noise and the number of

people who hung around the Apartment.

24 . The confrontation ended with Mr. F erreria and

Mr. Stivender leaving the premises. The police were not called.

25 . The next morning, Petitioner called Ms. Gadsby.

Petitioner frequently called Ms. Gadsby when he was feeling

Ðstressed.Ñ She went to see him that morning, and testified

that he was very upset over the events of the previous evening.

She returned that afternoon for a Ðwell - check,Ñ and he was doing

better.

26 . On March 15, 2012, Petitioner called the Baker County

SheriffÓs Office to report the March 6, 2012 , incident. A

depu ty went to the Apartment, spoke w ith Petitioner and Ms. Lee,

took their sworn statements, and prepared an offense report.

The description of the incident as reflected in the report,

including statements made by Petitioner and Ms. Lee , did not

contain any account of racial threats or epithets , or any

allegation of discriminatory intent based on race or handicap. 2/

27 . Other than Mr. StivenderÓs statement made in the heat

of the March 6 argument , Respondent made no effort to evict or

otherwise remove Petitioner from the Apartment.

28 . On March 31, 2012, Petitioner noticed water coming

from behind a wall of the Apartment. He called Respondent, and

Mr. Stivender came to the Apartment to inspect. Mr. Stivender

first suspected that the air - conditioning unit was leaking. The

air conditioner was turned off and Mr. Stivender le ft, intending

to contact an air - conditioning repair service.

29 . By 6:00 p.m. o n March 31, 2012 , the rate of the leak

was such that it was determined that a water pipe had burst

under the foundation of the A partment. Petitioner did not know

where the shut - off valve was located, and was unable to stop the

flow, which b egan to cover the floor in seve ral rooms of the

Apartment. Mr. Stivender returned to the Apartment, and

determined that a car owned by one of PetitionerÓs guests was

parked on the grass, and was over the meter box with the shut -

off valve. The car was moved, and the water turned off.

30 . Respondent called a plumber to fix the pipe. Since

the pipe was under the foundation, and in order to avoid

breaking up the slab, t he repair was accomplished by re - routing

the pipe in the wall of the Apartment . The repair entailed

cutting an a ccess hole in the drywall. That hole was not

immediately repaired.

31 . Respondent also called Servpro to perform water

cleanup services. The standing water was vacuumed up, and large

fans and dehumidifiers were placed in the Apartment to dry it

out.

32 . While the repairs and drying activities were ongoing,

Respondent paid for Petitioner and his daughter to stay in a

motel in Macclenny . They were there for three to four days .

Respondent paid PetitionerÓs power bill for the days that

Petitioner was unable to use the Apartment.

33 . Petitioner returned to the A partment, and stayed there

for some time. He was upset that the access hole for the pipe

repair had not been closed up, and that the baseboards had not

been replaced in some areas.

34 . On Ap ril 9, 2012, Petitioner wrote to Respondent about

the effects of the water leak. After thanking Respondent for

the ÐcompassionÑ shown to Petitioner and his family during the

event, he complain ed about the damage to his personal property

resulting from the water leak, and an odor Ðsuggesting the

presence of mold.Ñ He stated his belief that his daughterÓs

preexisting asthma was aggravated by the smell in the Apartment.

35 . In his April 9, 2012 , letter, Petitioner also stated

that Ðdue to my mental health condition, I am on prescribed

medicine that has now been adjusted to assist me through this

stressful situation.Ñ PetitionerÓs statement, which was not

accompanied by any form of medical evidence, was not sufficient

to place Respondent o n notice that Petitioner had a record of

having, or was regarded as having, any form of mental

disability .

36 . Mr. Stivender testified that no one ever advised

Respondent that Petitioner had a mental disability , and that

Respondent had no such knowledg e. The April 9, 2012 , letter

being insufficient on its own to convey such information,

Mr. StivenderÓs testimony is credited.

37 . On May 3, 2012, Petitioner moved out of the Apartment.

He had been served with no eviction notice or other written

request to vacate. Petitioner ga ve no notice to Respondent, but

dropped off his key at M r . FerreriaÓs business on the day he

moved out.

38 . Mr. Stivender testified that Petitioner left the

Apartment in a filthy, deplorable condition. As a result,

Resp ondent withheld PetitionerÓs $400.00 security deposit to

offset the costs of returning the Apartment to rentable

condition. Petitioner testified that the Apartment was not in

poor condition when he moved out, and that some of the damage

was the result of the pipe leak. However, Petitioner did not

testify, or even suggest, that the decision to withhold the

deposit was the result of any racial hostility or animus, or of

any reaction to his handicap.

39 . Petitioner failed to introduce any evidence that he

was treated differently under similar circumstances than were

tenants of Respondent who were not African - American, or who did

not have comparable mental disabilities.

Ultimate Findings of Fact

40 . There was no competent, substantial evidence adduced

at the hearing that Respondent undertook any act pertaining to

PetitionerÓs occupancy of the Apartment based on PetitionerÓs

race.

41 . Petitioner failed to prove that Respondent knew of

PetitionerÓs mental disability or handic ap, or that Respondent

regarded Petitioner as having any such mental disability or

handicap .

42 . Petitioner failed to prove that PetitionerÓs race or

handicap caused or c ontributed to the March 6, 2012,

confrontation. Rather, the evidence demonstrates that the

confrontation resulted from noise, issues with cars and parking,

and complaints directed to Petitioner by other tenants.

43 . Petitioner failed to prove that he was ready, willing,

and able to c ontinue to rent the A partment, but that Respondent

refused to allow him to do so.

44 . Petitioner failed to prove that Respondent took any

action to evict him from the A partment , or to otherwise

intentionally interfere with PetitionerÓs occupancy of the

pr emises . To the contrary, the evidence supports a finding that

Respondent took reasonable and appropriate steps to repair and

remediate the Apartment after the water line break , and provided

no - cost accommodations to Petitioner while the Apartment was not

habitable . The repairs may not have been completed to

PetitionerÓs satisfaction, but any such deficiency was not the

result of discrimination against Petitioner based on his race or

his handicap.

45 . Petitioner failed to prove that Respondent Ós decision

to withhold his security deposit was based on PetitionerÓs race

or handicap .

46 . In sum, t he evidence did not establish that Petitioner

was the subject of unlawful discrimination in the provision of

services or facilities in connection with his dwelling based on

his race or his handicap .

CONCLUSIONS OF LAW

47 . The Division of Administrative Hearings has

jurisdiction over the parties t o and the subject matter of this

proceeding . § 120.57(1), Fla. Stat . (2012).

48 . FloridaÓs Fair Housing Act, s ections 760.20 through

760.37, Florida Statutes , makes it unlawful to discriminate

against persons in matters incident to a dwelling on the basis

of the personsÓ race or handicap . In that regard, sub s ection

760.23(2), provides that:

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 of services or

facilities in connection therewith, because

of race, color, national origin, sex,

handicap, familial status, or religion.

49 . Subsection 760.23(7) provides, in pertinent part, that

Ð[i]t is unlawful to discriminate in the sale or rental of . . .

a d welling to any buyer or renter because of a handicap of (a)

[t]hat buyer or renter . . . .Ñ

50 . Subsection 760.23(8) provides, in pertinent part, that

Ð[i]t is unlawful to discriminate against any person in the

terms, conditions, or privileges of sale or rental of a

dwelling, . . . because of a handicap of: (a) That buyer or

renter . . . .Ñ

51 . The Florida Fair Housing Act is patterned after Title

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

Housing Act of 1988, and discrimination cove red under the

Florida Fair Housing Act is the same discrimination prohibited

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

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

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

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

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

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

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

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

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

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

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

52 . Petitioner has the burden of proof to establish that

Respondent violated the Florida Fair Housing Act. § 760.34(5),

Fla. Stat. ; Fla. Dep't of Transp. v. J.W.C. Co., Inc. , 396 So.

2d 778 (Fla. 1st DCA 1981) .

53 . Petitioner proved that he was African - American, a

protected class under the Fair Housing Act.

54 . S ubsection 760.22(7) , Florida Statutes, defines the

term Ðhandicap,Ñ in pertinent part, as Ð a physical or mental

impairment which substantially limits one or more major life

activities, or he or she has a record of having, or is regarded

as having, such physical or mental impairment .Ñ That definition

is virtually identical to that in the federal Fair Housing Act,

42 U.S.C. subsection 3602(h).

55 . The Fair Housing Act does not define t he term Ðmajor

life activities.Ñ However, Ðnoting congressional intent that

provisions of [the Fair Housing Act] related to disability be

read similarly to provisions in [the Americans with Disabilities

Act],Ñ the Middle District of Florida has applied th e ADA

definition to the Fair Housing Act, holding that Ðmajor life

activitiesÑ means "caring for oneself, performing manual tasks,

seeing, hearing, eating, sleeping, breathing, learning, reading,

concentrating, thinking, communicating, interacting with oth ers,

and working." McKay v. S. Seas E. Condo Apts. of Marco Island,

Inc. , 2012 U.S. Dist. LEXIS 96495, *10, fn.6 (M.D. Fla. 2012.)

56 . Petitioner offered little medical or psychiatric

evidence to establish his disability. See Taggart v. Associated

Estates Realty Corp. , 2011 U.S. Dist. LEXIS 101509, *7 - 8 (S.D.

Ohio, 2011); McCree v. Lexington Vill. Apts. & Amurcon Corp. ,

2010 U.S. Dist. LEXIS 22873, *17 - 18 (E.D. Mich. 2010); Hawn v.

Shoreline Towers Phase I Condo. AssÓn. , 2009 U.S. Dist. LEXIS

24846, *16 - 17 (N.D. Fla. 2009). PetitionerÓs appearance and

participation at the final hearing provided no suggestion of any

significant limitation s based on his disability. Although he

was occasionally hesitant in his speech , the evidence in this

case was insufficient to establish that Petitioner was

substantially limited in his ability to perform a major life

activity .

57 . Petitioner did offer the testimony of Ms. Gadsby, a

community behavioral services specialist who assisted Petitioner

in keeping u p with medications prescribed for controlling

symptoms of an unspecified mental disability. Therefore, there

was evidence, scant though it may have been, that Petitioner has

a record of having a mental impairment . Thus , Petitioner met

his initial burden of proving that he suffered from a handicap

as defined in t he relevant statutes.

58 . A plaintiff may proceed under the Fair Housing Act

under theories of either disparate impact or disparate

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

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

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

significantly adverse or disproportionate impact on a protected

class of persons as a result of RespondentÓs facially neu tral

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

supra , citing E.E.O.C. v. JoeÓs Stone Crab, Inc. , 220 F.3d 1263,

1278 (11th Cir. 2000). To prevail on a disparate treatment in

housing claim, Petitioner would have to come forward with

eviden ce that he was treated differently than similarly - situated

tenants. Head v. Cornerstone Residential Mgmt. , supra ( citing

Schwarz v. City of Treasure Island , 544 F.3d 1201, 1216 (11th

Cir. 2008) ) and Hallmark Dev., Inc. v. Fulton County , 466 F.3d

1276, 128 6 (11th Cir. 2006).

59 . In establishing that he was the subject of

discrimination, Petitioner could either produce direct evidence

of discrimination that motivated disparate treatment in the

provision of services to h im , or prove circumstantial evidenc e

sufficient to allow the trier of fact to infer that

discrimination was the cause of the disparate treatment. See

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

1381 (N.D. Fla. 1998).

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

prove the existence of discriminatory intent without resort to

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

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

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

blatant remarks, whose intent could be nothing other than to

discriminate. . .Ó will constitute direct evidence of

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

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

61 . Petitioner presented no direct evidence of

discrimination by Respondent related to its rental of the

A partment to Petitioner. There were no statements or acts of

any kind that could be cons trued to have been directed to

PetitionerÓs race or handicap .

62 . When there is no direct evidence of discrimination,

fair housing cases are subject to the three - part test set forth

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

Texas DepÓt of Cmty. Affairs v. Burdine , 450 U.S. 248 (1981).

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

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

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

(11th Cir. 1993); Secretary, U.S. Dept. of Hous. and Urban Dev. ,

on Behalf of Herron v. Blackwell , 908 F.2d 864, 870 (11th Cir.

1990); Savannah Club Worship Serv. v. Savannah Club HomeownersÓ

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

63 . Under the three - part test, Petitioner h as the initial

burden of establishing a prima facie case of unlawful

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

DepÓt of Cmty. Aff. v. Burdine , at 252 - 253; Burke - Fowler v.

Orange Cnty., Fla. , 447 F.3d 1319, 1323 (11th Cir. 2006);

Vale nzuela v GlobeGround North America, LLC. , 18 So. 3d at 22.

ÐThe elements of a prima facie case are flexible and should be

tailored, on a case - by - case basis, to differing factual

circumstances . " Boykin v. Bank of America Corp. 162 Fed. Appx.

at 838 - 839, citing Fitzpatrick v. City of Atlanta , 2 F.3d 1112,

1123 (11th Cir. 1993) .

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

preponderance of the evidence, the burden shifts to Respondent

to articulate a legitimate, non - discriminatory reason for its

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

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

Respondent has the burden of production, not persuasion, to

demonstrate to the finder of fact that its action as a landlo rd,

upon which the complaint was made, was non - discriminatory.

DepÓt of Corr. v. Chandler , supra . This burden of production is

"exceedingly light." Holifield v. Reno , 115 F.3d 1555, 1564

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

1061 (11th Cir. 1994).

65 . If Respondent produces evidence that the basis for its

action was non - discriminatory, then Petitioner must establish

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

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

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

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

discriminatory reason more likely than not motivated the

decision, or indirectly by showing that the proffered reason for

the employment decision is not worthy of belief.Ñ DepÓt of

Corr. v. Chandler , 582 So. 2d at 1186, citing Tex. Dep't of

Cmty. Aff. v. Burdine , 450 U.S. at 252 - 256 . Pretext can be

shown by inconsistencies and/or contradictions in testimony.

Reeves v. Sanderson Plumbing Prods., Inc. , 530 U.S. 133, 143

(2000); Blackwell , supra ; Woodward v. Fanboy, L.L.C. , 298 F.3d

1261 (11th Cir. 2002). The demonstration of pretext Ðmerges

with the plaintiff's ultimate burden of showing that the

defendant intentionally discriminated against the plaintiff.Ñ

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

66 . The failure of Petitioner to establish a prima facie

case of discrimination ends the inquiry. See Ratliff v. State ,

666 So. 2d 1008, 1013 n.7 (Fla. 1st D CA 1996), affÓd , 679 So. 2d

1183 (Fla. 1996)(citing Arnold v. Burger Queen Systems , 509 So.

2d 958 (Fla. 2d DCA 1987)).

67 . As applied to this case, the standard established in

McDonnell - Douglas requires Petitioner to establish in h is prima

facie case that (1) he be longs to a protected class;

(2) Respondent was aware of it; (3) Petitioner was ready,

willing, and able to rent the apartment; and (4) Respondent

refused to allow him to do so. Jackson v. Comberg , Case No.

8:05 - cv - 1713 - T - 24TMAP, 200 6 U.S. D ist. LEXIS 66405 , * 9 ( M.D.

Fla. 200 6 ) .

68 . Petitioner did not meet h is burden to establish a

prima facie case of discrimination. Although he proved that he

was a member of a protected class based on his race and his

handicap, Petitioner failed to prove that any actions on the

part of Respondent were discriminatory in nature.

69 . Petitioner failed to prove that Res pondent knew that

Petitioner suffered from a mental handicap, and Mr. Stivender

testified convincingly that Resp ondent had no such knowledge.

70 . The evidence demonstrated that Petitioner vacated the

Apartment for reasons unrelated to issues involving his race or

handicap. Furthermore, there was no evidence that Respondent

had initiate d steps to evict Petitioner . However, if actions to

evict Petitioner had been taken , they would have been warranted

due to the falsification of the rental application and

PetitionerÓs operation of a barbershop from the Apartment .

71 . T here may have been residual issues related to the

condition of the Apartment resulting from the water leak.

Nonetheless, Petitioner failed to present even a scintilla of

evidence that he was discriminated against on the basis of h is

race or handicap .

72 . The evidence demonstrated that Respondent, V.T.F.

Properties, LLC , did not commit a discriminatory housing

practice as to Petitioner, Edward Givens, in violation of the

Florida Fair Housing Act, chapter 760, Part II, Florida

Statutes. Therefore the Pet ition for Relief should be

dismissed.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of

Law, it is RECOMMENDED that the Florida Commission on Human

Relations issue a final order dismissing the Petition for Relief

filed in FCHR No. 201 3 H 0034 .

DONE AND ENT ERED this 7th day of February, 2013 , in

Tallahassee, Leon County, Florida.

S

E. GARY EARLY

Administrative Law Judge

Division of Administrative Hearings

The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399 - 3060

(850) 488 - 9675

Fax Filing (850) 921 - 6847

www.doah.state.fl.us

Filed with the Clerk of the

Division of Administrative Hearings

this 7th day of February, 2013 .

ENDNOTE S

1/ Mr. Stivender testified that he lawfully carried several

firearms in his vehicle, but did not have one on his person.

His testimony is credited.

2/ The undersigned acknowledges that the police report admitted

in evidence is hearsay. However, since this case is not

criminal in nature, the report falls within the public records

hearsay exception in section 90.803(8).

The public record exception i s limited to Ðmatters observed

pursuant to duty imposed by law as to matters which there was a

duty to report.Ñ The officer who wrote the report did not

observe the altercation being reported upon. Records that are

not based on the observations of the pu blic official, but Ðrely

on information supplied by outside sourcesÑ do not fall within

the public records and reports exception to the hearsay rule.

Lee v. DepÓt of HRS , 698 So. 2nd 1194, 1201 (Fla. 1997); see

also M.S. v. DepÓt of Child. & Fams. , 6 So. 3d 102, 104 (Fla.

4th DCA 2009).

As with certain other statements made in this proceeding,

the undersigned is not accepting the police report to prove the

truth of any statement reported by the deputy. Rather, the

report is used as evidence that the witn esses did not identify

race or handicap as a factor leading up to or involving the

incident.

As to the sworn witness statements of Petitioner and

Ms. Lee, which were made within a week of the March 6, 2012 ,

incident , t he undersigned is not relying on either statement to

prove the truth of any statement therein. Rather, the

undersigned is using the statements to demonstrate the lack of

any allegation of discriminatory intent, either based on race or

handicap. Thus, for the purpose used, the statement s are not

hearsay as defined in s ection 90.801, Florida Statutes.

COPIES FURNISHED :

Denise Crawford, Agency Clerk

Florida Commission on Human Relations

Suite 100

2009 Apalachee Parkway

Tallahassee, Florida 32301

Edward Givens

606 ML King Drive

Macclenny , Florida 32063

Frank E. Maloney, Jr., Esquire

Frank E. Maloney, Jr., P.A.

445 East Macclenny Avenue

Macclenny , Florida 32063

Cheyanne Costilla, Interim General Counsel

Florida Commission on Human Relations

Suite 100

2009 Apalachee 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 with the agency that

will issue the Final Order in this case.