16-006867 Octavia Stewart vs. Holly Berry Gifts, Inc./Manager Mike Prusinski Status: Closed DOAH Final Order on Tuesday, August 15, 2017.

Summary: Petitioner failed to establish that Respondents were guilty of housing discrimination on account of her race.

S TATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

OCTAVIA STEWART,

Petitioner ,

vs. Case No. 1 6 - 6867

HOLLY BERRY GIFTS, INC., AND

MIKE PRUSINSKI,

Respondent s.

_______________________________/

FINAL ORDER

D . R. Al exander, the assigned Administrative Law Judge of

the Division of Administrative Hearings (DOAH) , conducted a

hearing in this case by video teleconferenc ing at sites in

St. Petersburg and Tallahassee, Florida , on Ju ly 24 , 2017.

APPEARANCES

For Petiti oner : Octavia Stewart, pro se

Post Office Box 16763

St. Petersburg, Florida 33733

For Respondent s : Linds a y M. Alvarez, Esquire

R obert A. Strickland, Esquire

R ywant, Alvarez, Jones, Russo

& Guyton, P.A.

109 North Brush Street, Suite 500

Tampa , Florida 3360 2 - 4159

STATEMENT OF THE ISSUE

The issue is whether Respondents violated section 70 - 1 76,

Pinellas County Code of Ordinances (Code) , as alleged in

Petitioner's Housing Discrimination Complaint (Complaint) .

PRELIMINARY STATEMENT

On October 13, 2015, P etitioner dual - filed her C omplaint

with the Pinellas County Office of Human Rights (County) and the

United States Department of Housing and Urban Development (HUD)

alleging that in 2015 Respondents violated the Pinellas County

Human Rights Ordinance and federal Fair Housing Act by

discriminating against her on the basis of race. Because the

law enforced by the County is substantially equivalent to the

Fair Housing Act, and the County has authority to enforce

housing discrimination complaints in the area where the

complaint arose, on November 12, 2015, HUD referred the matter

to the County to take all further action in the matter.

After conducting an investigation, the County determined

there was reasonable cause to believe that Respondents engaged

in unlawful housing discrimination . Pursuant to a contract

between the County and DOAH , the County referred the matter to

DOAH to conduct a hearing .

Petitioner's former counsel was authorized to withdraw by

Order dated May 26, 2017. Therefore, Petitioner represent ed

herself and testified on h er own behalf. 1/ Petitioner's E xhibits

1 through 11 were a ccepted in evidence. To the extent they

contain hearsay, they have been considered only if they

supplement or explain other competent evidence. § 120.57( 1)(c),

Fl a. Stat . R espondent s presented the testimony of t hree

witnesses. Respondents ' E xhibits 1 t hrough 11 were accepted in

evidence. O fficial recognition was taken of the federal Fair

Housing Act codified at 42 U.S.C. § 3601 , et seq. Finally,

three motions filed by Respondents one working day before the

hearing , and served on Petitioner by regular mail , were

considered untimely.

A transcript of the hearing was not prepared . Respondents

filed a p roposed final o rder (PFO ) , while Petitioner filed a

letter, with attachments. The PFO and letter, but not the

attachments, have been considered in the prep aration of this

Final Order.

FINDINGS OF FACT

1. Th is case concerns an allegation that Petitioner, an

African - American female, was the victim of housing

discrimination in two respects . First, after complaining that

her bathroom was not timely repaired by her landlord, Petitioner

reported the problem to the City of St. Petersburg (City) . When

the manager came to repair the bathroom, Petitioner alleges he

told her he "would throw her black ass out of here for calling

the city on them." Second, Petitione r alleges she was told by

the manager to move her car that was parked "for a few days" on

the property, yet white tenants were allowed to keep a truck

with "no tags and flat tires" on the premises for more than a

year. Because no evidence was presented on the second issue,

only the first allegation will be addressed .

2. By way of background, f rom August 2012 until she was

evicted in October 2015, Petitioner resided in a n apartment

complex at 3865 9th Avenue North, St. Petersburg, Florida. The

complex i s owned by Holly Berry Gifts, Inc., whose president is

Holly Bonk . The complex is managed by Mike Prusinski. Bonk and

Prusinski are employed full - time in other jobs, but devote

attention to apartment matters when required. Bonk has a

practice of leasing units to whoever is qualified, regardless of

their race. She was drawn into this affair because of the

alleged comments of her manager. It is fair to assume that Bonk

has delegated responsibility to P rusinski to deal with

maintenance issues and to evict tenant s .

3 . Pursuant to a one - year Residential Lease executed by

Petitioner in July 2012 , she was required to pay $500.00 rent

each month, due no later than the fifth day of the month . If

rent was paid after the fifth day, a $60.00 late charge was

impos ed. After the lease expired on July 31, 2013 , Petitioner

continued renting her apartment on a month - to - month basis, but

all terms and conditions in the original lease still applied,

including the same monthly rent and late payment provisions.

4 . Prior to 2015, Petitioner was periodically late in

paying her rent. For the months of February, March, July, and

August 2015, she was either late paying her rent , or she did not

pay the full amount . No rent was paid for September 2015.

Despite Petitioner being in arrears throughout her tenancy ,

Prusinski "worked with" her because of her financial

constraints, and according to Petitioner, he never demanded she

pay the late charge .

5. On June 2, 2015, Petitioner sent a text message to Bonk

complaining that her upstairs neighbor (a female) was playing

loud music and was noisy , which interfered with Petitioner's

enjoyment of her apartment. When the neighbor came to

Petitioner's apartment to discuss the complaint, Petitioner

opened the door and "maced" the neighbo r in the face.

6. The neighbor filed a complaint with the police.

Petitioner was arrested and charged with battery. In 2016, a

jury convicted her of battery , and she was sentenced to 15 days

in jail and placed on probation for 11 months.

7. Accordi ng to Prusinski, th e macing incident was the

final straw that led him to begin the eviction process. Besides

the macing incident, Prusinski explained that Petitioner

"harassed" the air - conditioning crew that serviced the complex

to the point they refused to provide further service unless they

received a $4 5 .00 surcharge for each visit. He described

Petitioner as being "hostile" towards him throughout her

tenancy, and he noted it reached the point where she would not

answer the door half of the time when he knocked.

8. On August 14, 2015, a Fifteen Day Notice to Vacate the

premises was personally served on Petitioner informing her that

she must vacate the premises by August 31, 2015. An Eviction

Notice was then obtained from the court. Before it was served

on Petitioner, she changed the door locks, padlocked the circuit

breaker box to her apartment, and moved out without notice to

Respondents. Each of these actions violated the terms of her

lease. Petitioner says she did this because she was "scared "

that "Mike was coming over to throw her out , " and a friend told

her it was okay to change the locks. Prusinski was forced to

call a locksmith to access the empty apartment and use bolt

cutters on the padlock to restore electricity. In all,

Petitioner s till owes $1,933.00 for past due rent, late charges,

court costs, locksmith charges, and the cost of a bolt cutter.

9. There is no evidence that the eviction process was

motivated by racial bias. The record shows that Prusinski has

evicted four black t enants and eight white tenants for failing

to pay the ir rent. Although Petitioner was upset that she had

to relocate to new housing, she agrees there was justification

for her eviction . A month after her eviction, Petitioner filed

her Complaint. Petitio ner says th e Complaint was filed only to

address issues other than her eviction.

10 . Against this backdrop, the only allegation that

requires resolution is an assertion by Petitioner that Prusinski

directed a racial slur towards her when he was repairin g her

bathroom. 2 / Due to a leak in the upstairs bathroom , Petitioner's

bathroom developed multiple problems, which required repairs to

the walls and ceiling and professional mold remediation.

Although these problems were eventually resolved, the y were no t

resolved as quickly as Petitioner desired. Therefore, she

reported the problem to the City. The City inspected her unit

in early April 2015 , determined that repairs were needed, and

relayed its findings to Prusinski.

1 1 . After receiving the City's r eport, Prusinski came to

the apartment to repair the bathroom. Petitioner says an

argument over the repairs ensued, and h e told her he would

" throw her black ass out of here for calling the city on them."

Except for Petitioner's testimony, there is no ot her credible

evidence to corroborate this statement. Notably, even though

the incident occurred in early April 2015, Petitioner never

report ed it to Bonk (Prusinski's boss ) , she did not mention the

incident at the eviction hearing, and she waited until af ter she

was evicted to raise the issue with the County.

12. Prusinski denies making any racial comments to

Petitioner and attributes her allegation to the hostile

relationship between the two and her eviction in September 2015.

Having considered the reco rd as a whole, Prusinski's testimony

is accepted as being the most credible on this issue.

Ironically, Petitioner sometimes used the term "black ass" when

referring to herself in text messages sent to Bonk , and during

the hearing, she sometimes referred t o herself as a "black ass."

CON CLUSIONS OF LAW

1 3 . The undersigned has jurisdiction over this matter

pursuant to section 120.65(6), Florida Statutes, and a contract

between DOAH and the County.

1 4 . Division 3, chapter 70, Code of Ordinance s, governs

housing and public accommodation complaint s . Section 70 - 147(b)

provides that "the Florida Administrative Procedures [sic]

Act (F.S. ch. 120) governs hearings under this section. "

Subsection (f) further provides that the "administrative law

judge shall issue a final order within 30 days of the hearing

conducted under this section. The final order issued by the

administrative law judge shall be the final agency action under

this section." The Code provides that if the administrative law

judg e determines that the respondent has engaged in a

discriminatory housing practice, he may or der a wide range of

relief to the complainant. See § 70 - 148, Code of Ordinances.

There is no provision for awarding attorney's fees incurred by

the prevailing par ty.

1 5 . In a chapter 120 hearing, the case is considered de

novo by the undersigned based on the facts and evidence

presented at the hearing. § 120.57(1)(k), Fla. Stat. There is

no presumption of correctness that attaches to the preliminary

de terminat ion of the County. See Fla. Dep't of Transp. v.

J.W.C. Co. , 396 So. 2d 778, 785 (Fla. 1st DCA 1981) .

1 6 . Petitioner has the burden of proving by a

preponderance of the evidence that Respondents committed an

unlawful housing discrimination practice. See § 120.57(1)(j),

Fla. Stat. See also U.S. Dep't of Hous. & Urban Dev. v.

Blackwell , 908 F.2d 864, 870 (11th Cir. 1990) (Petitioner has the

burden of establishing facts to prove a prima facie case of

housing discrimination) .

17. Section 70 - 176 makes it an unlawful housing

discrimination practice for any person to "make unavailable or

deny a dwelling to any person because of race" or to

"discriminate against any person in the terms, conditions, or

privileges of sale or rental of a dwelling . . . because of

r ace."

1 8 . The Complaint alleges that after Petitioner reported

an unrepaired bathroom to the City, Prusinski "made the

statement that he would throw her black ass out of here for

calling the city on them." Presumably, Petitioner is alleging

that this c omment , based on race, interfere d with her use and

enjoyment of a housing right under the Code , and if proven,

would constitute a violation of the Code.

19. Assuming that directing a crude comment to a member of

a protected class constitutes a violation o f section 70 - 176 ,

Petitioner has failed to establish by credible evidence that

Prusinski made the comment , as alleged. Therefore , a case of

discrimination has not been established , and Petitioner's

Complaint must be dismissed.

DISPOSITION

Based on the for egoing Findings of Fact and Conclusions of

Law, it is

ORDERED that Petitioner's Complaint of Housing

Discrimi n ation is dismissed, with prejudice.

DONE AND ORDERED this 15th day of August , 20 1 7 , in

Talla hassee, Leon County, Florida.

S

D . R. ALEXANDER

Admi nistrative 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 Heari ngs

this 15th day of August , 201 7 .

ENDNOTE S

1/ W ithout prior notice, at the beginning of the hearing,

Petitioner requested that the undersigned telephone a number of

individuals who could corroborate her claims. The request was

denied.

2/ At hearing, Petitioner testified that on an undisclosed date

in 2015, Prusinski sent her a text message that called her a

derogatory name. However, Prusinski denies that he did, and

there is no other evidence to corroborate Petitioner's assertion .

This probably acc ounts for the fact that the Complaint, drafted

by her former attorney, does not include this allegation.

C OPIES FURNISHED:

Octavia Stewart

Post Office Box 16763

St. Petersburg, Florida 33733

L indsay M. Alvarez , Esquire

Rywant, Alvarez, Jones, Russo

& Guyton, P.A.

109 North Brush Street, Suite 500

Tampa, Florida 3360 2 - 4159

(eServed)

Paul Valenti, Director

Pinellas County Office of Human Rights

5th Floor

400 South Fort Harrison Avenue

Clearwater, Florida 33756 - 5113

Brijesh Patel, Esquire

Pinellas C ounty Attorney 's Office

6th Floor

300 Court Street

Clearwater, Florida 33756 - 5165

NOTICE OF RIGHT TO JUDICIAL APPEAL

A ny party who is adversely affected by this Final Order is

entitled to judicial review by filing a petition for writ of

certiorari in the circuit court of the Sixth Judicial Circuit in

and for Pinellas County, Florida, within 30 days of the date of

this Final Order. § 70 - 147(g), Code of Ordinances.