12-003863 Alecia Rivera vs. Lake Bentley Shores, Inc. Status: Closed Recommended Order on Thursday, March 28, 2013.

Summary: Petitioner failed to establish sexual harassment interfered with her housing conditions as no sexual harassment was proved.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

ALECIA RIVERA , )

)

Petitioner , )

)

vs. ) Case No. 12 - 3863

)

LAKE BENTLEY SHORES, INC. , )

)

Respondent . )

)

RECOMMENDED ORDER

Pursuant to notice, a hea ring was conducted in this cause by

video teleconference before J. D. Parrish, an administrative law

judge of the Division of Administrative Hearings (DOAH), on

February 1, 2013, with the parties appearing from Lakeland,

Florida.

APPEARANCES

For Petitione r: Richard L. Bradford, Esquire

Suite 196

150 East Bloomingdale Avenue

Brandon, Florida 33511

For Respondent: Mark N. Miller, Esquire

Matthew D. Jones, Esquire

Gray Ro binson, P. A.

One Lake Morton Drive

Post Office Box 3

Lakeland, Florida 33802 - 0003

STATEMENT OF THE ISSUE

Whether Respondent, Lake Bentley Shores, Inc. (Respondent),

engaged in unlawful housing dis crimination in violation of the

Florida Fair Housing Act.

PRELIMINARY STATEMENT

On July 18, 2012, Petitioner, Alecia Rivera (Petitioner or

Rivera), filed a Housing Discrimination Complaint against

Respondent and Dennis Goodkind, a security guard. Essent ially,

Petitioner maintained that Respondent and Mr. Goodkind had

intimidated, coerced , and interfered with her full enjoyment of

her home in violation of law. More specifically, Petitioner

alleged that Mr. Goodkind had sexually harassed Petitioner by

loo king through her window, peeping through a hole in a wall,

following her in the parking area of the complex, and following

her motor vehicle. Petitioner averred that she had registered

complaints to management regarding Mr. GoodkindÓs behavior and

Respond ent took no action to stop or prevent the harassment.

After completing its investigation of PetitionerÓs

complaint, the Florida Commission on Human Relations (FCHR)

issued its Determination in the matter on October 3, 2012. The

Determination found:

Base d on the evidence obtained during the investigation, the

FCHR has determined that reasonable cause does not exist to

believe that a discriminatory housing practice has occurred.

Accordingly, the above - referenced complaint is hereby dismissed.

Thereafter, Petitioner timely filed a Petition for Relief

that reiterated the allegations of discrimination previously

stated. Petitioner asserted that Respondent had failed to

respond to allegations of harassment and failed to protect

Petitioner from ongoing harassm ent from the security guard,

Dennis Goodkind. As stated in the Petition for Relief:

a. For nearly two years Rivera had been

subjected to sexual harassment by Dennis

Goodkind.

b. Goodkind would stalk Rivera, look through

her window, and look through a h ole into her

condominium.

c. RiveraÓs neighbors had witnessed Goodkind

trying to look into the condominium where

Rivera was staying.

d. Goodkind also followed Rivera while she

was in her car.

e. Rivera made multiple complaints to

Respondent regarding GoodkindÓs behavior and

Respondent failed to take action.

The case was forwarded to DOAH for formal proceedings on

November 29, 2012. On December 3, 2012, Respondent filed an

Answer to the charges that denied Petitioner is entitled to any

relief.

At the hearing , Petitioner testified in her own behalf and

presented testimony from Mario Thomas. Respondent presented the

testimony of Mike Melito, Dennis Goodkind (Mr. Goodkind) , Jada

Chandler, and Steve Allen (Mr. Allen) . RespondentÓs Exhibits A,

F, G, and H were admitted into evidence. A transcript of the

formal hearing was not filed.

At the conclusion of the hearing the parties were directed

to file their proposed orders within ten days. Respondent timely

filed a Proposed Recommended Order. PetitionerÓs Proposed

Findings of Fact and Conclusions of Law was not filed until

February 18, 2013. RespondentÓs Motion to Strike PetitionerÓs

proposal as untimely is denied.

FINDINGS OF FACT

1. Petitioner is a female who, at all times material to the

allegations of this case, resided in a first floor condominium,

Unit A - 3, in Lake Bentley Shores.

2. The legal owner of Unit A - 3, Lake Bentley Shores, is

Jose Anglada (Mr. Anglada) .

3. Mr. Anglada employed CDC Properties of Central Florida,

LLC (CDC) , to manage his unit. CDC was responsible for the day -

to - day management of the unit and collected rent payments due to

the unit owner. In contrast, A1A Property Management (A1A) was

the on - site property manager for the Lake Bentley Shores

condominium community.

4. T he Lake Bentley Shores condominium community was

governed by Respondent, a condominium association organized under

the laws of Florida.

5. In addition to retaining a management firm to address

the daily workings of the condominium property, Respondent a lso

retained U. S. Security Associates, Inc. to provide night - time

security services for the condominium community. The security

company reported to A1A daily regarding security issues.

6. At all times material to the allegations of this case,

U. S. Se curity Associates, Inc. employed Mr. Goodkind and

assigned him to the Lake Bentley Shores condominium property.

7. Mr. Goodkind was not RespondentÓs employee.

8. Mr. Goodkind was not A1AÓs employee.

9. Mr. Goodkind was not CDCÓs employee.

10. All lea sing arrangements between Petitioner and the

Unit A - 3 owner were handled by CDC. Any complaints regarding the

unit were to be made to CDC.

11. Petitioner never filed a written complaint to

Respondent regarding the offensive or inappropriate behavior

towa rd her committed by Mr. Goodkind.

12. On January 10, 2012, Petitioner made a verbal complaint

to Steve Allen, A1AÓs on - site manager, regarding Mr. GoodkindÓs

alleged sexual harassment toward Petitioner. Mr. Allen took

action to notify U. S. Security Asso ciates, Inc. Mr. Goodkind

was immediately removed from the Lake Bentley Shores assignment.

Thereafter, Petitioner made no written or verbal complaints

regarding sexual harassment to Respondent, A1A, or CDC.

13. Lake Bentley Shores comprises of 160 con dominium units.

Some of the units, like Unit A - 3, share a wall with a

utility/storage closet. Such closets house water heaters. Water

heaters must be inspected regularly to assure no leakage.

Historically, leaking water heaters were a maintenance issue at

the condominium property.

14. Although Respondent has rules and regulations regarding

resident conduct on the Lake Bentley Shores property, it

delegates the routine operation of the condominium property to

A1A. At all times material to the allegation s of this case, A1A

directed U. S. Security Associates, Inc. (through its night - time

security employee) to assure noise levels during the night - time

hours were appropriate, to regularly ÐwalkÑ the Lake Bentley

Shores property to assure the safety of reside nts, and to observe

and report any suspicious activity.

15. Included in the areas to ÐwalkÑ were the

utility/storage closets previously described. Thus, it was

common for Mr. Goodkind to enter the closets, walk around the

buildings, observe the parking areas, and to listen for noises to

assure the tranquility of the property. Excessive noise from any

unit was not acceptable.

16. Prior to the allegations of this case, Mr. Goodkind

worked as a security guard at the Lake Bentley Shores property

for appro ximately four years. During that time he established

himself as a conscientious enforcer of the noise regulations, he

kept a log of vehicles entering and exiting the property, and

made efforts to reduce vandalism or theft.

17. Mr. Goodkind did not sexu ally harass Petitioner. At no

time did Mr. Goodkind peer into PetitionerÓs windows, peep

through any hole, or follow Petitioner except in the manner

appropriate for the performance of his routine duties as a

security officer.

18. Mr. Goodkind did, howeve r, confront a resident or guest

of Unit A - 3 to seek reduction in the noise level emanating from

the unit.

19. CDC initiated eviction proceedings against Petitioner

due to failure to pay rent and damage to Unit A - 3.

20. Respondent had no involvement in the eviction.

21. A1A had no involvement with or connection to the

eviction other than a report made to CDC that gave notice of a

broken window visible from the exterior of the unit.

22. Petitioner eventually moved out of Unit A - 3 after

reaching an agree ment with CDC.

23. Petitioner presented no credible evidence that

Mr. Goodkind harassed her in any manner. Mr. Goodkind did not

interfere with PetitionerÓs enjoyment of her residence.

24. Petitioner presented no credible evidence that

Respondent hara ssed her in any manner or suffered any damages as

a result of such alleged behavior. Respondent did not interfere

with PetitionerÓs enjoyment of her residence.

25. Petitioner presented no credible evidence that A1A as

RespondentÓs agent harassed her in a ny manner. A1A did not

interfere with PetitionerÓs enjoyment of her residence.

CONCLUSIONS OF LAW

26. DOAH has jurisdiction over the parties to and the

subject matter of these proceedings. §§ 120.57(1) and 760.35,

Fla. Stat. (2012).

27. The Florida Fai r Housing Act (the Act) is codified in

s ections 760.20 through 760.37, Florida Statutes (2012). The Act

makes certain acts prohibited unlawful housing practices

including those described in s ection 760.23, Florida Statutes

(2012), which provides, in part:

Discrimination in the sale or rental of

housing and other prohibited practices. Ï

* * *

(2) It is unlawful to discriminate against

any person in the terms, conditions, or

privileges of sale or rental of a dwelling,

or in the provision of servi ces or facilities

in connection therewith, because of race,

color, national origin, sex, handicap,

familial status, or religion.

28. In this case , Petitioner maintains that as a member of

a protected class (female) subjected to sexual harassment by

Mr. Goodkind , the enjoyment of her residence was adversely

impacted. Implicit in that assertion is the conclusion that

others similarly situated were not subjected to the alleged

offensive behavior as a condition of the use of their residences.

29. The Act g ives the FCHR authority to issue an order

prohibiting the practice and providing affirmative relief from

the effects of the unlawful conduct. Section 760.35, Florida

Statutes, provides in pertinent part:

(3)(a) If the commission is unable to obtain

volu ntary compliance with ss. 760.20 - 760.37

or has reasonable cause to believe that a

discriminatory practice has occurred:

1. The commission may institute an

administrative proceeding under chapter 120;

or

2. The person aggrieved may request

administrativ e relief under chapter 120

within 30 days after receiving notice that

the commission has concluded its

investigation under s. 760.34.

(b) Administrative hearings shall be

conducted pursuant to ss. 120.569 and

120.57(1). The respondent must be served

wri tten notice by certified mail. If the

administrative law judge finds that a

discriminatory housing practice has occurred

or is about to occur, he or she shall issue a

recommended order to the commission

prohibiting the practice and recommending

affirmativ e relief from the effects of the

practice, including quantifiable damages and

reasonable attorneyÓs fees and costs. The

commission may adopt, reject, or modify a

recommended order only as provided under s.

120.57(1). Judgment for the amount of

damages an d costs assessed pursuant to a

final order by the commission may be entered

in any court having jurisdiction thereof and

may be enforced as any other judgment.

30. Petitioner has the burden of proving the allegations

asserted. "Discriminatory intent may be established through

direct or indirect circumstantial evidence." Johnson v. Hamrick ,

155 F. Supp. 2d 1355, 1377 (N.D. Ga. 2001).

31. "Direct evidence is evidence that, if believed, would

prove the existence of discriminatory intent without resort to

inference or presumption." See Wilson v. B/E Aero., Inc. , 376

F.3d 1079, 1086 (11th Cir. 2004)("Direct evidence is 'evidence,

that, if believed, proves [the] existence of [a] fact without

inference or presumption.'"). "If the [complainant] offers

direct evidence and the trier of fact accepts that evidence, then

the [complainant] has proven discrimination." Maynard v. Board

of Regents , 342 F.3d 1281, 1289 (11th Cir. 2003). In this case,

Petitioner failed to prove sexual harassment that interfered with

th e enjoyment of her residence. She proved she is a female who

resided at a condominium property, but she established little

else.

32. Moreover, although victims of discrimination may, by

indirect evidence, be "permitted to establish their cases through

in ferential and circumstantial proof," Petitioner similarly

failed to present credible inferential or circumstantial proof.

See Kline v. Tennessee Valley Auth . , 128 F.3d 337, 348 (6th Cir.

1997).

33. Mr. GoodkindÓs behaviors were consistent with his

emplo yerÓs directives. Walking the grounds, checking closets,

verifying noise level and source of the noise, all fell within

the purview of his job. Watching residents (including females)

walk to and from parking areas was within the scope of his

employment. All residents were treated with the same level of

observation as Petitioner.

34. Petitioner did not present credible evidence to support

sexual harassment. There was no behavior sufficiently severe or

pervasive to demonstrate the condition of Petition erÓs housing

was adversely affected. No one propositioned Petitioner. No one

sought sexual favors from Petitioner in exchange for anything.

No one invaded PetitionerÓs privacy. Even PetitionerÓs assertion

that Mr. Goodkind peeped through a hole into he r living space was

not corroborated. There were no holes in the utility/storage

closet wall.

35. Once made aware of PetitionerÓs claim, Mr. Allen, as

the on - site property manager, took immediate action.

Mr. Goodkind was removed from his assignment at Lake Bentley

Shores, the alleged ÐholeÑ in the closet was inspected (and found

to be nonexistent), and Respondent was duly notified. Once made

aware of the allegations Respondent took all precautions

reasonably necessary to assure PetitionerÓs enjoyment of the

premises. A1A timely and appropriately dealt with PetitionerÓs

one complaint to management.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of

Law, it is RECOMMENDED that the F lorida C ommission H uman

R elations issue a final order finding no cause for an unlawful

housing practice as alleged by Petitioner, and dismissing her

complaint.

DONE AND ENTERED this 28th day of March , 2013 , in

Tallahassee, Leon County, Florida.

S

J. D. PARRISH

Administ rative 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 28th day of March , 2013 .

COPIES FURNISHED:

Richard L. Bradford, Esquire

Bradford and Bradford, P.A.

Suite 196

150 East Bloomingdale Avenue

Brandon, Florida 33511

Denise Crawford, Agency Clerk

Florida Commission on Human Relations

Suite 100

2009 Ap alachee Parkway

Tallahassee, Florida 32301

William E. Roberts, Esquire

GrayRobinson, P.A.

One Lake Morton Drive

Post Office Box 3

Lakeland, Florida 33802

Cheyanne Costilla, Interim General Counsel

Florida Commission on Human Relations

2009 Apalachee Pa rkway, Suite 100

Tallahassee, Florida 32301

Mark Miller, Esquire

GrayRobinson, P.A.

One Lake Morton Drive

Post Office Box 3

Lakeland, Florida 33802

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.