13-004132 Saeid Hassani vs. Jacksonville Housing Authority Status: Closed Recommended Order on Monday, November 3, 2014.

Summary: Petitioner did not prove that Respondent committed a violation of the Fair Housing Act on the basis of a handicap, or that Respondent coerced, intimidated, threatened, or interfered with Petitioner in the exercise of his rights under the FHA.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

SA EI D HASSANI ,

Petitioner ,

vs. Case No. 1 3 - 4132

JACKSONVILLE HOUSING AUTHORITY ,

Respondent .

/

RECOMMENDED ORDER

Pursuant to notice, a final hearing was held in this case

on September 15 - 16, 2014, by video teleconference at sites in

Tallahassee and Jacksonville, Florida, before E. Gary Early, a

designated Administrative Law Judge of the Division of

Administrative Hearings.

APPEARANCES

For Petitioner: Sa ei d Hassani , pro se

8090 Atlantic Boulevard, Apartment A - 34

Jacksonville, F lorida 32 211

For Respondent: Wendy L. Mummaw, Esquire

Ashley Benson , Esquire

City of Jacksonville

Office of General Counsel

117 West Duval Street, Suite 480

Jacksonville, Florida 32202

STATEMENT OF THE ISSUE

Whether Petitioner was the subjec t of discriminatory

housing practices base d on h is sex or his disability , in

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

Florida Statutes.

PRELIMINARY STATEMENT

On July 31, 2013 , Petitioner , Sa ei d Hassani (Petitioner) ,

then known as Steven Yari, signed a Housing Discrimination

Complaint , which was thereupon served on the Florida Commission

on Human Relations (FCHR) . The complaint alleg ed that

Respondent , Jacksonville Housing Authority (JHA) , discriminated

against Petitioner b ased on h is sex and his disability . The

basis for the claim of discrimination was that Marci e Montes ,

the JHA Housing Manager for the Centennial Tower housing complex

at which Petitioner resided , engaged in a sexual relationship

with Petitioner that constituted discrimination against

Petitioner in the terms, conditions, or privileges of rental of

a dwelling, or in the provision of services or facilities in

connection therewith in violation of section 760.23(2) and (8),

and that such conduct coerced, intimidated, threatened, or

interfered with Petitioner in the exercise of his rights under

the Fair Housing Act in violation of section 760.37 .

An investigation of the complaint was made , resulting in

the September 18, 2013 , issu ance of the FCHRÓs Notice of

Determinati on of No Cause, which conclud ed that there was no

reasonable cause to believe that a discriminatory housing

practice had occurred.

Petitioner disagreed with the FCHRÓs determination , and on

October 18, 2013, 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 16

and 17, 2013 . The hearing was twice - continued, and reset for

September 15 through 17 , 2014 .

During the period leading up to the final hearing,

Petitioner underwent a legal name change from Steven Yari to

Sa ei d Hassani. The evidence suggests that Sa ei d Hassani is

PetitionerÓs given name, and that he changed it to Steven Yari

at some time after coming to the United States. Thus, any

mention of Steven Yari in the record of this proceeding refers

to Petitioner.

The hearing commenced on September 15, 2014 , as scheduled.

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

an interpreter, and offered the testimony of Sirius Gabrani, a

personal friend ; Reza Hassani, PetitionerÓs brother (hereinafter

referred to as Mr. Hassani) ; Katherine Martin, m anager of the

Brooks Clubhouse, a vocational reintegration program; an d Mona

Taylor, an employee of the Brooks Clubhouse. Respondent

presented the testimony of Jane Hoover, who was, at all times

relevant hereto, the JHA Senior Director of Property Management;

Marci Montes , who was, until her demotion and transfer on

January 16, 2013 , the JHA Housing Manager for the Centennial

Tower apartment complex; and Sandra Nicole Ray, a JHA Housing

Manager and Ms. Montes Ós replacement at the Centennial Tower

apartment complex. Respondent o ffered RespondentÓs Exhibits R 3 -

R 5 , R7 - R11, and R14 , which were received in evidence.

The two - volume Transcript was filed on October 20, 2014.

The parties timely filed Proposed Recommended Orders which have

been considered in the preparation of this Recommended Order.

References to statutes are to Florida Statutes (201 3 )

unless otherwise noted.

FINDINGS OF FACT

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

tenant o f a rental apartment located at the JHA Centennial Tower

housing complex at 230 East First Street, Jacksonville, Florida.

PetitionerÓs tenancy began in December 2008. Petitioner moved

out of the apartment on or about January 28, 2013 .

2. As a result of injuries sustained in an automobile

accident in 2001, while living in his home country of Iran,

Petitioner has an unsp ecified physical disability. Petitioner

has a pattern of speech related to his accident that can make

him difficult to understand, especially when he is speaking in

English. There is no competent, substantial evidence to support

a finding that Petitioner suffers from a mental disability.

Petitioner receives disability benefits from the Social Security

Administration.

3 . JHA is a municipal housing authority with the

authority, among other duties, to provide safe, clean, and

affordable housing to low and moderate income individuals, and

to persons who are elderly and disabled.

4 . Among the 23 properties owned or managed by JHA is

Centennial Tower, a high - rise apartment complex with more than

200 apartments. Residence in Centennial Tower is limited to

persons who are either elderly or disabled.

5. JHA employs property managers to provide oversight of

its properties. Ms. Montes was e mployed in that capacity

starting on December 1, 2008 , and over the years served as

property manager for JHA properties including Centennial

Townhouses, Blodgett Villas, Brentwood Park, and Centennial

Tower . Ms. MontesÓ duties included overall operation of the

facilities, processing and approving work orders, housekeeping

and federal compliance inspections, calculating and accepting

rent payments , and similar duties. Ms. Montes was assigned as

the property manager for Centennial Tower o n March 7, 2011 .

6 . JHA has established Standards of Conduct for its

employees that are designed to minimize conflicts of interest

bet ween employees and residents of JHA housing. The Standards

of Conduct are included in the JHA Employee Handbook. Among the

standards to which JHA employees are expected to adhere is the

following:

JHA employees are expected to deal with

residents in a fr iendly, courteous,

business - like - manner, but are discouraged

from fraternizing with JHA residents at any

time and are strictly forbidden from

fraternizing with residents during working

hours.

PetitionerÓs Appliances

7 . Subsidized housing is subject to periodic inspection by

the federal Department of Housing and Urban Development Ós Real

Estate Assessment Center (REAC) . The purpose of a REAC

inspection is to ensure that federal funds are being put to good

use, and that the housing units are maintai ned, u p to code, and

adhere to fed eral guidelines. The inspection results are used

to determine funding levels for the following year. Depending

on the REAC inspection score, a subsidized housing may be

inspected every one, two, or three years.

8 . On Novembe r 7, 201 1 , a REAC inspection was conducted at

Centennial Tower. The i nspection was conducted on a randomly

selected percentage of housing units . Centennial Tower received

a score of 64, a poor score that warranted a re - inspection the

following year.

9 . In response to its poor REAC inspection score , JHA

engaged in an aggressive effort to upgrade the Centennial Tower

common areas and apartments. As a result, during the year

following the 2011 REAC inspection, 25% of the stoves, 50% of

the refrigerators, 75% of the range hoods, and 15% of the air -

conditioning units in Centennial Tower apartments were replaced.

Even m ore apartments received service and repairs to their

appliances.

10 . With regard to PetitionerÓs apartment, JHA replaced

the stove, which was rusted; replaced the air conditioner, which

did not work correctly resulting in moisture problems in the

apartment; and replaced the refrigerator with a refurbished

unit. Petitioner complained about the replacement refrigerator,

so his o ld refrigerator was cleaned, painted, and placed back in

his apartment.

11 . On September 12, 2012, Centennial Tower was subject to

the annual REAC inspection required after the poor 2011

inspection score . As a result of the repairs and improvements,

Centennial Tower received a much - improved score of 97.

12 . The evidence establishes conclusively that all tenants

of Centennial Tower were treated alike with regard to the

replacement and repair of their appliances , and that no

favoritism was shown to an y tenant.

PetitionerÓs Rent

13 . When Ms. Montes was assigned to Centennial Tower,

PetitionerÓs rent had been set at $192.00 per month, a figure

calculated by application of a formula based on his income and

assets.

14 . Prior to September 1, 2011, PetitionerÓs brother,

Mr. Hassani, came to the United States from Iran. Upon his

arrival, he moved into PetitionerÓs apartment at Centennial

Tower, and was added to the lease on September 1, 2011. Since

Mr. Hassani was not employed upon his arrival in the country,

and thus had no income or assets, PetitionerÓs rent remained at

$192.00 per month.

15 . By early 2012, Mr. Hassani found employment. As a

result, and as required by federal HUD guidelines, an evaluation

of his in come was performed in order to calculate the

appropriate rent for the apartment.

16 . The rent adjustment was calculated by Ms. MontesÓ

housing assistant. As a result of a series of miscalculations

arising from the failure of the assistant to properly figure in

Mr. HassaniÓs eligibility for the Earned Income Disallowance

(EID) Program, errors in the monthly rent were made that

resulted in monthly rent bills as high as $900.00 per month.

17 . In l ate May 2012 to early June 2012, by which time

Mr. Hassani was no longer employed, Ms. Montes communicated with

the JHA Operations Manager to explain the rent calculation

errors, and to ascertain PetitionerÓs rent status. To address

the fact that Mr. Hass ani wa s not employed at the time,

Ms. Montes made an interim adjustment of the rent to the

previous level of approximately $200.00 per month. The

Operations Manager, recognizing the situation as an Ðinteresting

case,Ñ advised Ms. Montes as to the applicable program for

calculating PetitionerÓs rent. The rent was thereafter set at

the $200.00 per month level.

18 . Several months later, Mr. Hassani moved out of

PetitionerÓs apartment. By the time of the commencement of

Petit ionerÓs sexual relationship with Ms. Montes, as discussed

herein, Petitioner was again living by himself.

19 . The evidence establishes conclusively that

PetitionerÓs rent was set (though incorrectly) in the normal

course of JHAÓs operations, and in comp liance with HUD

requirements. The evidence further establishes that the first

calculations were not performed by Ms. Montes, and that her

subsequent efforts to ascertain the correct rental amount were

remedial in nature, and performed with the advice and assistance

of the JHA Operations Manager. There was no evidence that any

action regarding PetitionerÓs rent was done as an act of

favoritism towards Petitioner.

PetitionerÓs Sexual Relationship with Ms. Montes

20 . At the end of Aug ust 2012, Petitioner asked Ms. Montes

to join him for a meal as appreciation for her efforts to

improve his tenancy as described above. The circumstances of

the ensuing relationship, which lasted at most several months,

varies dramatically, based upon whether they are being r elated

by Petitioner or by Ms. Montes.

21 . For purposes of this Recommended Order, the

undersigned will generally accept PetitionerÓs account, as

corroborated or supplemented by the testimony of his friend,

Mr. Gabrani, and his brother, Mr. Hassani , un less a specific

finding states otherwise. In so doing, the undersigned does not

suggest that Ms. MontesÓ account is less worthy of belief, and

in many instances finds her account of the relationship to be

more credible than that of Petitioner. However, i n order to

give Petitioner the maximum benefit of the doubt as to whether

his relationship with Ms. Montes constituted a violation of the

Fair Housing Act, his description of events is accepted .

22 . Petitioner asked Ms. Montes to lunch to thank her for

h er assistance with his appliances and rent. Petitioner thought

of Ms. Montes as a Ðboss,Ñ though he also thought of her as a

friend. 1/

23 . Ms. Montes declined PetitionerÓs invitation , but

suggested that he meet her that Friday night at the Club 57

Heaven. They arrived separately and spent the evening drinking

and conversing. At the end of the evening, Ms. Montes asked

Petitioner out for the next weekend. Petitioner accepted the

invitation.

24 . The next weekend, Ms. Montes picked Petitioner up i n

her car from a spot across the street from his Centennial Tower

apartment and drove to Club 57 Heaven. While at the club, they

drank liquor. Ms. Montes wanted to dance. Even though

Petitioner believed that he could not dance, she took his hand

and the y danced anyway. Afterwards, he went back to their table

and sat down while Ms. Montes continued to dance. When

Ms. Montes returned to the table, she kissed Petiti o ner and ran

her fingers through his hair. She asked him to come home with

her, but he ref used.

25 . When they left the club, Ms. Montes and Petitioner

went to get some food, which they ate in the car. As she was

driving him home, Ms. Montes passed by Centennial Tower without

stopping, as though she was going to take Petitioner to her

house. Petitioner yelled for Ms. Montes to stop, which she did.

Before letting him out, Ms. Montes asked Petitioner to go out

with her again the following week.

26 . That night, Petitioner was agitated and could not

sleep. He was nervous about having relations with women. He

felt as though Ms. Montes was the Ð boss Ñ at Centennial Tower,

and he was beholden to her, which led to his being confused.

There is no evide nce that he related his feelings to Ms. Montes.

27 . Petitioner subsequently told Ms. Montes that he would

again go with her to the club . However, he asked that she not

kiss or touch him since he was going to the club with his

brother and his friend .

28 . The following weekend, Petitioner, Ms. Montes,

M r. Hassani , and Mr. Gabrani met at Club 57 Heaven. There was

no consistency in the testimony of Petitioner, Mr. Hassani, and

Mr. Gabrani as to how they got to the club and who rode with

whom. As indicate d previously, the undersigned will accept

Petitioner Ós testimony that he rode with Ms. Montes, meeting the

others at the club.

29 . The four of them embarked on a night of robust

drinking. Mr. Gabrani bought at least three rounds of whiskey

shots that were downed along with their normal course of drinks.

30 . Mr. Gabrani was talking with friends, and had little

specific recollection of any conversation with Ms. Montes, other

than a state ment that she liked ÐSteven . Ñ She did not say that

she intended to bother him.

3 1 . After much drinking, Pe titioner left the club with

Ms. Montes and went to her house. Petitioner could not recall

whether they had sex that night. Ms. Montes testified credibly

that Petitioner came in, went to her room, and passed out on her

bed without having sex. When he awoke the next morning,

Petitioner and Ms. Montes had coffee and she drove him home.

3 2 . Over the next weeks, Petitioner testified that he saw

Ms. Montes a few times , either at the club or at her home , and

that they had consensual sex on at least two occasions . H e came

prepared with Cialis® and condoms , thus demonstrating an element

of planning, preparation, and consent in their trysts .

3 3 . The precise circumstances of each rendezvous are not

material to any issue in this proceeding. What is material is

that they occurred either at the Club 57 Heaven or at

Ms. MontesÓ home. At no time did Petitioner and Ms. Montes

discuss either Petition erÓs tenancy at Centennial Tower or his

disability . There was no e vidence that Petitioner and

Ms. Montes had any social or sexual encounters at Centennial

Tower, or at any time during which Ms. Montes was on duty.

3 4 . During the period in which Ms. Montes and Petitioner

were engaged in their sexual relationship, Ms. Montes began to

feel as though she might be pregnant. Ms. Montes had no desire

to become pregnant, as she had two very young children -- ages 1

and 2 -- and a husband who had left he r and moved to W ashington

state. She knew that if she was pregnant, there could be no

doubt that the pregnancy was the result of her sexual encounters

with Petitioner, since she had not been seeing anyone else.

3 5 . Ms. Montes took a home pregnancy tes t that was

positive.

3 6 . A brief time a fter Ms. Montes took the home pregnancy

test, but before advising Petitioner of the results, Petitioner

and Ms. Montes had two opportunities to see each other, once

when Ms. Montes drove Petitioner to the home of a mechanic to

see about repairs to PetitionerÓs car, and once when Petitioner

joined Ms. Montes and her two children for an outing at the zoo.

The circumstances of the events are not material, but they made

Ms. Montes, who was understandably emotional about the results

of the test, feel like Ðjust a friend, like I was absolutely

nobody.Ñ She decided to end the relationship. The evidence

suggests her decision was made in mid - to - late October 2012.

3 7 . Shortly thereafter, Ms. Montes a dvised Petitioner of

the results of the pregnancy test . He became agitated and

aggressive, and demanded that she get an abortion.

3 8 . In order to confirm the results of the over - the -

counter pregnancy test, Ms. Montes visited her doctor, who

performed a pregnancy test. The test came up negative.

Ms. Montes informed Petitioner that she was not pregnant.

39 . A week or so later, still feeling as though she was

pregnant, Ms. Montes took another home pregnancy test that came

up positive. This time the results were confirmed.

4 0 . When she advised Petitioner of the confirmed results,

h is reaction was little changed. He threatened suicide 2 / and

again demanded that she get an abortion.

4 1 . Shortly after Ms. Montes told Petitioner of the

pregnancy , Mr. Gabrani came to Centennial Tower to visit with

Petitioner. He saw Ms. Montes as he entered and stopped to

speak with her. Duri n g their conversation, Ms. Montes advised

Mr. Gabrani that she was pregnant with PetitionerÓs child.

4 2 . Mr. Gabrani related the information he received from

M s. Montes to PetitionerÓs brother, Mr. Hassani. Mr. Gabrani

and Mr. Hassani confronted Petitioner the next day, and

suggested that he should return to the family home in Iran.

4 3 . Later, Mr. Gabrani went with Petitioner to Ms. MontesÓ

house to discuss the matter . The meeting between Petitioner and

Ms. Montes became confrontation al . To defuse the situation,

Mr. Gabrani took Petitioner and left.

4 4 . Petitioner testified that the situation with

Ms. Montes has caused him great difficult ies -- personally,

familially, and culturally . His older brother, who worked with

Mr. Gabrani, became very upset. Mr. Hassani testified that the

revelation came as a sudden shock, and completely changed

everything in the family , though he has managed thus far to keep

the information from their sist er, who lives in Jacksonville,

and from the family in Iran. Petitioner now perceives

Mr. Gabrani as his enemy who is ruining his life because

Ms. Montes has turned him Ð into a tool to send messages to me.Ñ

Petitioner feels as though his reputation has been destroyed,

for which he places the blame squarely on Ms. Montes. 3 /

4 5 . Starting in October or November of 2012, Ms . Martin ,

who knew Petitioner from his attendance at the Brooks Clubhouse ,

noticed that Petitioner appeared to be showing signs of

distress, anxiety, and depression. 4 / Ms. Taylor , who previously

perceived Petitioner as happy and normal, likewise noticed that

Petitioner seemed depressed and withdrawn .

4 6 . On January 2, 2013, Petitioner delivered a Notice of

Intent to Vacate to the Centennial Tower office, where it was

received and signed by Ms. Montes. Petitioner gave the reason

for moving as Ðdeath or hate.Ñ

4 7 . Mr. Gabrani testified that Petitioner decided to leave

his apartment as a means to avoid responsibility for Ms. MontesÓ

child. That testimony, being hearsay, is insufficient on its

own to support a finding, though it is generally consistent with

and supported by other evidence, includi ng the testimony of

Petitioner that ÐI di dnÓt want a child, because it makes me lose

face and respect.Ñ

4 8 . In January 2013, Petitioner revealed the circumstances

of his relationship with Ms. Montes to Ms. Martin. Ms. Martin

testified that she was told by Petitioner that M s. Montes was

continuing to contact him , and that Petitioner showed her Ða

string of text messagesÑ that she did not look at in detail.

Petitioner told Ms. Martin that he felt as though he could not

stay at his apartment. Petitioner asked Ms. Martin to contact

Ms. Mon tes on his behalf Ðand tell her that he did not want to

have anything to do with the pregnancy.Ñ

49 . At PetitionerÓs request, Ms. Martin called Ms. Montes.

She placed the call using her speaker - phone while Petitioner was

present. It is unclear as to wh ether Ms. Martin advised

Ms. Montes that Petitioner could hear their conversation.

5 0 . Ms. Martin testified that Ms. Montes confirmed her

pregnancy, indicated her intent to carry the child to term, and

stated that she did not intend for Petitioner to be financially

responsible for the child. 5 / Ms. Martin asked Ms. Montes to have

no further contact with Pet itioner, a request to which

Ms. Montes agreed.

JHAÓs Response to the Report of the Relationship

5 1 . After Ms. MartinÓs telephone conversation with

Ms. Montes, Ms. Martin testified that Petitioner came to her

complaining that Ms. Montes was still bothering him by sending

him text messages. Ms. Martin had no direct knowledge of

PetitionerÓs complaint, but relied on what he told her.

Nonetheless, Ms. Martin decided to take action.

5 2 . On January 15, 2013, Ms. Martin called Centennial

Tower and asked to speak to the Ðperson in charge.Ñ When told

that person was Ms. Montes, Ms. Martin then asked for the name

of Ms. MontesÓ supervisor. Th at person was identified as

Ms. Hoover.

5 3 . Ms. Martin called Ms. Hoover and advised her that

Petitioner, a resident at JHAÓs at Centennial Tower , had engaged

in a sexual relationship with Ms. Montes, and that Ms. Montes

was pregnant with PetitionerÓs child. Ms. Mar tin asked that

Petitioner be provided with an alternate place to live, away

from Ms. Montes.

5 4 . Prior to the call from Ms. Martin, no one at the JHA

had any knowledge of the relation ship between Petitioner and

Ms. Montes. Immediately upon hanging up with Ms. Martin,

Ms. Hoover contacted the JHA human resources director and her

supervisor to discuss the matter.

5 5 . The next day, January 16, 2013, Ms. Montes was placed

on administrative leave and removed from her position as

property manager at Centennial Tower . Ms. Montes was

subsequently demoted, received a cut in salary, and was

transferred to the JHA Section 8 housing department.

5 6 . The puni shment meted out to Ms. Montes was the

harshest penalty established for violations of JHA standards ,

short of dismissal. In choosing to demote Ms. Montes, the JHA

took into account that prior to her relationship with

Petitioner, Ms. Montes had been an exc eptional employee; that a

lower - level position which required little interaction with JHA

clients and which came with a lower salary was available in

JHAÓs Section 8 housing section ; and that Ms. MontesÓ social and

sexual encounters with Petitioner occurre d off of JHA property

and after work hours.

PetitionerÓs Decision to Vacate Centennial Tower

5 7 . After Ms. MontesÓ removal, Ms. Ray was put into the

position of property manager for Centennial Tower , starting work

on January 22, 2013.

5 8 . On January 22, 2013, Petitioner sent a letter,

addressed to Centennial Tower , which stated that ÐI did not

understand the rules regarding my housing voucher. I do not

want to move. I want to stay in my apartment. I am rescinding

my earlier notice to vacate.Ñ The evidence is persuasive that

Petitioner authored and submitted the letter.

59 . Ms. Ray received PetitionerÓs letter on January 24,

2013. She called Petitioner, and met with him that day.

Ms. Ray wanted to go over PetitionerÓs lease with hi m so he

understood the terms, and to tell him that he did not have to

move from his apartment.

6 0 . During the meeting, Petitioner indicated that he

thought he would stay, but that he did not want any of his

private information given to Ms. Montes. Ms. R ay advised

Petitioner that Ms. Montes was no longer the housing manager,

that he had done nothing wrong, that he could stay in his

apartment, and that Ms. Montes would not have access to any of

his personal information. At the conclusion of their meeting,

Ms. Ray thought Petitioner would stay in his apartment, but she

was not certain.

6 1 . On January 28, 2013, Petitioner came to the Cen t ennial

Tower business office and turned in his keys . Ms. Ray recalled

Petitioner saying all of his problems were because of a woman

and that he did not want to live anymore. At the time, he

refused to provide a forwarding address for the return of his

deposit. He subsequently provided an address.

6 2 . P ri or to his moving out of Centennial Tower ,

Petitioner sold or gave away his belongings . There is no

evidence as to the nature of the belongings, their value, or any

payment received for them.

6 3 . At some time after Petitioner vacated his apartment,

Ms. H oover received a telephone call from Ms. Martin, who

related that Petitioner had moved out of his apartment and was

living in his car. Ms. Martin asked if Petitioner could be

provided with housing.

6 4 . Ms. Hoover, who until Ms. MartinÓs call had been

un aware that Petitioner had vacated his apartment, immediately

called Ms. Ray to inquire as to the circumstances of

PetitionerÓs departure.

6 5 . By the time Ms. Martin called Ms. Hoover, PetitionerÓs

apartment had been leased to another qualified resident .

Ms. Hoover called Ms. Martin with that information and explained

that , due to the backlog of requests for public housing,

Petitioner would have to be placed on the waiting list for a new

apartment.

6 6 . Despite Ms. MartinÓs assertion that Petitioner was

living in his car, the evidence revealed that, a fter leaving his

apartment, Petitioner lived with Mr. Gabrani for 6 months, and

has lived with his brother since then. PetitionerÓs mailing

address is that of his brother. Petitioner does not pay rent t o

his brother, but occasionally cooks and performs tasks around

the house. There was testimony from Petitioner that he

occasionally sleeps in his car, but he has not been homeless.

6 7 . Petitioner testified that after Ms. Montes was removed

as the Centen nial Tower housing manager and demoted, she

continued to text and harass him. Ms. Montes testified credibly

that she did not continue to text or otherwise harass

Petitioner. She had two children to support, with a third on

the way, was in trouble with he r employer as a result of

Petitioner, and did not want to get fired. Petitioner had no

physical print - outs of any alleged text messages, and no witness

testified to seeing them. Thus, there is insufficient evidence

to support h i s assertion.

Ultimate Findings of Fact

6 8 . Petitioner initiated the relationship that forms the

basis for his claim of discrimination by asking Ms. Montes out

the first time. Whether the invitation was for lunch or dinner

is irrelevant. Ms. Montes testified convincingly tha t she kept

seeing Petitioner because she liked him, was attracted to him,

and had fun with him. She took the time to understand his

speech, which Petitioner seemed to appreciate. She believed

that they were in a mutually agreeable, consensual relationshi p,

which she thought at one time to be meaningful. Ms. MontesÓ

testimony is credited.

69 . Ms. Montes gave Petitioner no special consideration in

repairing and replacing his appliances or determining his rent,

actions that occurred prior to PetitionerÓs initial invitation .

Ms. Montes did not discriminate against Petitioner in the

performance of her duties as JHA property manager for C entennial

Tower as a result of PetitionerÓs handicap or otherwise .

Ms. Montes did not threaten PetitionerÓs housing arrangement if

he refused to have sex with her, and did not make their sexual

relationship a basis for any decision towards Petition er as the

JHA housing manager.

7 0 . Petitioner failed to introduce any evidence that he

was treated differently by JHA or its employees or agents under

similar circumstances than were other tenants of JHA housing

units who did not have comparable disabilities.

7 1 . There was no competent, substantial evidence adduced

at the hearing that JHA or its employees or agents undertook any

adverse act pertaining to PetitionerÓs occupancy of his

a partment based on PetitionerÓs handicap .

7 2 . Petitioner failed to prove that he was ready, willing,

and able to continue to rent his a partment, but that JHA or its

employees or agents refused to allow him to do so. In fact,

after Petitioner expressed his desire to remain in his

apartment, Ms. Ray specifically advised him that he could

continue in his apartment despite his Notice of Intent to

Vacate, and t hat Ms. Montes would not be able to access his

personal information.

7 3 . Petitioner failed to prove that any employee of the

JHA, including Ms. Montes, coerced, intimidated, or threatened

Petitioner in any way. The preponderance of the competent,

substan tial evidence in this case demonstrates that Petitioner

engaged in a voluntary relationship with Ms. Montes that

involved planned and consensual sex. The evidence further

demonstrates that Petitioner was a willing participant in the

relationship until Ms. Montes became pregnant, at which time he

wanted nothing more to do with Ms. Montes, or the child produced

as a result of their union.

7 4 . Petitioner failed to prove that JHA or its employees

or agents took any action to intentionally interfere with

PetitionerÓs occupancy of his apartment .

7 5 . 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 apartment based on

his handicap , or that JHA or its employees or agents coerced,

intimidated, threatened, or interfered, sexually or otherwise,

with his exercise of any right granted under the Florida Fair

Housing Act.

CONCLUSIONS OF LAW

7 6 . The Division of Adm inistrative Hearings has

jurisdiction over the parties to and the subject matter of this

proceeding . § 120.57(1), Fla. Stat . (201 4 ).

7 7 . 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 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.

7 8 . Subsection 760.23(7) provides, in pertinent part, that

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

a dwelling to any buyer or renter because of a handicap of (a)

[t]hat buyer or renter.Ñ

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

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

terms, co nditions, or privileges of sale or rental of a

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

renter.Ñ

8 0 . Section 760.37 provides, in pertinent part, that Ð[i]t

is unlawful to coerce, intimidate, threaten, or interfere with

any person in the exercise of, or on account of her or his

having exe rcised, . . . any right granted under [the Fair

Housing Act].Ñ

8 1 . 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 19 88, and discrimination covered under the

Florida Fair Housing Act is the same discrimination prohibited

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

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

(S.D. Fla. 2005); see al so 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 *11 (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).

8 2 . 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. , 396 So. 2d 778

(Fla. 1st DCA 1981).

8 3 . JHA stipulated that Petitioner suffered from a

physical handicap , a protected class under the Fair Housing Act ,

and it is so found . There was no evidence that Petitioner

suffered from any other handicap, and no allegation that

Petitioner was the subject of discrimination on the basis of any

other protected classification.

8 4 . 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 *20 (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

neutral acts or practices. Head v. C ornerstone Residential

Mgmt. , 2010 U.S. Dist. LEXIS 99379 at *20 ( 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 evidence that he was treated

differently than similarly - situated tenants. Head v.

Cornerstone Residential Mgmt. , 2010 U.S. Dist. LEXIS 99379 at

*2 1 ( citing Schwarz v. City of Treasure Island , 544 F.3d 1201,

1216 (11th Cir. 2008) ) and Hallmark Dev., Inc. v. Fulton C nty. ,

466 F.3d 1276, 1286 (11th Cir. 2006).

8 5 . 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 evidence

sufficient to allow the trier of fact to infer that

discrimination was the cause of the disparate treatment. See

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

1381 (N.D. Fla. 1998).

8 6 . Direct evidence is evidence that, if believed, would

prove the existence of discriminatory intent without resort to

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

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

1561 (11th Cir. 1997). As to the nature of the evidence , ÐÒonly

the most blatant remarks, whose intent could be nothing other

than to discriminate . . .Ó will constitute direct evi dence of

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

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

8 7 . Petitioner presented no direct evidence of

discrimination by JHA r elated to or affecting the terms,

conditions, or privileges of his tenancy in Centennial Tower, or

in the provision of services or facilities in connection

therewith . There were no statements or acts of any kind that

could be construed to have been directed to PetitionerÓs

handicap .

8 8 . Petitioner presented no direct evidence that JHA or

its employees or agents coerced, intimidated, threatened, or

interfered, sexually or otherwise, with his exercise of any

right granted under the Florida Fair Housing Act

89 . When there is no direct evide nce 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 Dep artment of C ommunity 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.

9 0 . Under the three - part test, Petitioner has the initial

burden of establishing a prima facie case of unlawful

discriminat ion. 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);

Valenzuela 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) ) .

9 1 . 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 landlord,

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).

9 2 . If Respondent produces evidence that the basis f or 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 Center 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. Cha ndler , 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

Thomas v. DepÓt of Corr. , 377 Fed. A ppx. 873, 880; 20 10 U.S.

App. LEXIS 9175 (11th Cir. 2005) (citing Holifield v. Reno , 115

F.3d at 1565 ) .

9 3 . 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 DCA 1996), affÓd , 679 So. 2d

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

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

9 4 . 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. Jackso n v. Comberg , Case No.

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

200 6 ) .

9 5 . To establish a violation of section 760.37 based on a

claim of sexual harassment, including a claim of Ðquid pro quoÑ

sexual harassment, Petitioner must establish that JHA, or its

employees or agents, Ð conditioned his occupancy on compliance

with [ Ms. M ontesÓ ] alleged sexual advances. Ñ Butler v.

Carrero , Case No. 1:12 - cv - 2743 - WSD, 2013 U.S. Dist. LEXIS 130838

*24 (N.D. Ga. 2013); see also Tagliaferri v. Winter Park Hous.

Auth. , 486 Fed. Appx. 771, 774 (11th Cir. 2012) (Claim that a

lease was not renewed because of a previous sexual relationship

with landlordÓs employee did not state a claim for quid pro quo

harassment under the Fair Housing Act because the plaintiffs did

not allege that their lease would have been renewed if had they

consented to unwelco me sexual advances.).

9 6 . JHA admitted that Petitioner had an unspecified

physical handicap and is therefore in a protected class under

the Florida Fair Housing Act. Petitioner failed to prove that

he suffered from a ny other form of handicap . Knowledge of

PetitionerÓs physical handicap is imputed to Ms. Montes due to

PetitionerÓs residence in Centennial Tower .

9 7 . The evidence demonstrated that Petitioner voluntarily

vacated his apartment in Centennial Tower for reasons unrelated

to issues involving h is handicap.

9 8 . Petitioner failed to present any evidence that he was

discriminated against in the terms, conditions, or privileges of

his rental of his apartment in Centennial Tower, or in the

provision of services or facilities in connection therewit h,

because of his handicap .

99 . Petitioner failed to prove that JHA or its employees

or agents coerced, intimidated, threatened, or interfered,

sexually or otherwise, with his exercise of any right granted

under the Florida Fair Housing Act , or otherwise conditioned his

occupancy of JHA housing on his having sex with Ms. Montes .

10 0 . Petitioner did not meet his burden to establish a

prima facie case of discrimination. Although the record

reflects that he was a member of a protected class based on his

han dicap, Petitioner failed to prove that any actions on the

part of JHA, or its employees or agents were discriminatory in

nature.

10 1 . The evidence demonstrated that Respondent,

Jacksonville Housing Authority , did not commit a discriminatory

housing practice as to Petitioner, Sa ei d Hassani , in violation

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

Statutes. Therefore the Petition for Relief should be

dismissed.

RECOMMENDATION

Based on the f oregoing 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 4 H 00 23 .

DONE AND ENT ERED this 3rd day of November , 201 4 , 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 3rd day of November , 201 4 .

ENDNOTE S

1/ Ms. Montes never told Petitioner that she was his Ðboss.Ñ

Rather, Petitioner regards anyone who has authority as the

Ðboss.Ñ In that regard, Ms. Martin was the ÐbossÑ at Brooks

Clubhouse.

2 / Ms. Montes testified that Petitioner also made statements of

a more homicidal nature, the evidence of which , standing alone,

is unsufficient to support a finding. However, Ms. Mo ntesÓ

testimony finds support in Petitioner Ós admission that , after

unsuccessfully pressuring her to get an abortion, he told Ms.

Montes that Ð [y]ouÓre not going to become happy about this. And

the lady [Ms. Montes] then asked me: Will you kill me? I sa id

nothing.Ñ

3 / It has not escaped the notice of the undersigned that,

despite PetitionerÓs alleged Ðgreat troublesÑ and Ðmassive

problemsÑ resulting from his relationship with Ms. Montes , it

is, in fact, Ms. Montes who carried and bore PetitionerÓs child

and is raising the child without emotional or financial support,

and Ms. Montes who was demoted from her job and received a cut

in salary. Thus, despite PetitionerÓs dolorous tale of self -

pity and regret, it is Ms. Montes who has b orne the brunt of

PetitionerÓs dalliance.

4 / Respondent objected to Ms. MartinÓs characterization of

Petitioner as showing signs of depression, since a diagnosis of

the medical condition of depression would call for some degree

of medical expertise. The objection was overruled, and the

undersigned accept s Ms. MartinÓs testimony as a general

observation of PetitionerÓs mood, rather than as a diagnosis of

a specific condition.

5 / Ms. Montes ultimately gave birth to the child conceived

during her encounters with Petitioner.

COPIES FURNISHED :

Ashley Brooke Benson, Esquire

City Of Jacksonville

Office of General Counsel

117 West Duval Street , Suite 480

Jacksonville, Florida 32202

(eServed)

Cheyanne Michelle Costilla, General Counsel

Florida Commission on Human Relations

2009 Apalachee Parkway , Suite 100

Tallahassee, Florida 32301

(eServed)

Saied Hassani

8090 Atlantic Boulevard , Apartment A - 34

Jacksonville, Florida 32211

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.