17-002569 Everdan Sales Correia vs. St. Monica Gardens, Inc. Status: Closed Recommended Order on Wednesday, August 2, 2017.

Summary: Management company's issuance of notice of lease violation for resident's disturbance in lunchroom was not discriminatory and was inconsequential so as not to alter conditions of his rental or the provision of services pertaining to such rental.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

EVERDAN SALES CORREIA ,

Petitioner,

vs. Case No. 1 7 - 2569

ST. MONICA GARDENS, INC. ,

Respondent.

_______________________________/

RECOMMENDED ORDER

On July 6 , 2017 , Robert E. Meale, Administrative Law Judge

of the Division of Administrative Hearings (DOAH), conducted the

final hearing by videoconference in Miami and Tallahassee,

Florida.

APPEARANCES

For Petitioner: Everdan Sales Correia , pro se

Apartment 217

3425 Northwest 189th Street

Miami Gardens , Florida 33056

For Respondent : Thomas H. Courtney, Esquire

J. Patrick Fitzgerald & Associates, P.A.

110 Merrick Way, Suite 3 - B

Coral Gables, Florida 33134

STATEMENT OF THE ISSUE

T he issue is whether Respondent has unlawfully

discriminated against Petitioner on the basis of his national

origin and in retaliation for his opposing discriminatory

practices in connection with his rental of an apartment, in

violation of the Florida Fair Housing Act, section 760.23(2),

Florida Statutes .

PRELIMINARY STATEMENT

By a Housing Discrimination Complaint dated October 25,

2016 (Complaint) , Petitioner claimed that he is Brazilian and

resides at St. Monica Gardens, a n 84 - unit apartment complex in

Miami Gardens owned by Respondent and managed by Catholic

Housing Management. The Complaint alleges that the onsite

property manager, Isabela Noriega, who is Cuban, treats Cuban

residents preferentially over Petitioner on the basis of

national origin. The Complaint alleges that Ms. Noriega

dismisses Petitioner's complaints. In particular, the Complaint

alleges that Ms. Noriega barred Petitioner from the building

lunchroom and issued a notice of lease violation in

September 2016 after Petitioner complained about the food

handling and the presence of an unauthorized person in the

lunchroom. The Complaint alleges without examples of

retaliation for Petitioner's complaints about Ms. Noriega's

allegedly discriminatory conduct.

On March 31, 2017 , the Florida Commission on Human

Relations (Commission) ente red a Notice of Determination ( No

Cause ) .

On May 1, 2017 , Petitioner filed a Petition for Relief

asserting largely the same allegations contained in the Housing

Disc rimination Complaint .

At the hearing, Petitioner called one witness , him self,

and offered into evidence 12 exhibits : Petitioner Exhibits 1 - 7

and 9 - 13. Respondent called two witnes ses and offered into

evidence five exhibits: Respondent Exhibits 1 - 3 and 5 - 6. All

exhibits were admitted for all purposes except Respondent

Exhibits 2 and 3, which were not admitted for the truth.

The parties did not order a transcript. Respondent filed a

proposed recommended order on July 13, 2017 .

FINDINGS OF FACT

1. Petitioner was born in Brazil. He resides in an

apartment in St. Monica Gardens in Miami Gardens, Florida.

St. Monica Gardens provides housing subsidized by the U.S.

Department of Housing and Urban Development (HUD) for low -

income, elderly residents .

2. St . Monica Gardens is owned and operated by Respondent,

which is a not - for - profit corporation, and managed by Catholic

Housing Management , which is a management company owned by the

Archdiocese of Miami, Inc. Catholic Housing Management manages

17 bui ldings accommodating over 2500 persons from all over the

world .

3. Residents at St. Monica Gardens , including Petitioner,

receive free lunches through the charitable offices of Catholic

Charities of the Archdiocese of Miami, Inc. Petitioner has

objecte d to the quality and operation of this free - food program.

On one occasion, Petitioner complained that a food server used

the s ame - colored gloves that are used to perform maintenance

duties, and an unauthorized person was allowed to remain in the

food - prep aration and - service areas. However, these complaints

do not establish that Catholic Charities fails to serve

St. Monica Gardens residents safe food , lawfully prepared.

4. On September 16, 2016, Catholic Charities was

conducting an annual verification a udit of residents at lunch

that day. Petitioner angrily confronted a Catholic Charities

food - service worker, demanding that he be given immediate access

to his free lunch. Other residents, mostly Cuban, objected to

Petitioner's behavior, although, on thi s record, their

objections appear to be based on Petitioner's discourtesy, not

national origin.

5. Respondent conducted an informal investigation of the

incident and issued a notice to Petitioner that this

confrontational behavior was in violation of his lease. There

is no evidence of any discrimination against Petitioner, nor is

there any evidence that Respondent took any adverse action

against Petitioner or his lease or occupancy of his apartment at

St. Monica Gardens.

6. Petitioner complained to HUD, but Respondent did not

discriminate or take ad verse action against Petitioner for this

complaint either.

CONCLUSIONS OF LAW

7 . DOAH has jurisdiction of the sub jec t matter.

§§ 120.569 and 120.57(1) , Fl a. Stat. (2017 ).

8 . Section 760.23 provides:

(1) It is unlawful to refuse to . . . rent

after the making of a bona fide offer, to

refuse to negotiate for the . . . rental of,

or otherwise to make unavailable or deny a

dwelling to any person because of race,

color, national origin, sex, handicap,

familial status, or religion.

(2) It is unlawful to discriminate against

any person in the terms, conditions, or

privileges of . . . rental of a dwelling, or

in the provision of services or facilities

in connection therewith, because of race,

color, national ori gin, sex, handicap,

familial status, or religion.

9 . Petitioner bears the burden of proving the material

allegations by a preponderance of the evidence. Herron v.

Blackwell , 908 F.2d 864, 870 (11th Cir. 1990); § 120.57(1)(j).

10. Section 760.23 is part of Florida's Fair Housing Act.

§ 760.20. As the state counterpart to the Federal Fair Housing

Act Amendments, the Florida act is construed consistently with

federal law. Fair Hous. Ctr. of the Greater Palm Beaches, Inc.

v. So noma Bay Cmty. Homeowners Ass'n , 141 F. Supp. 3d 1321, 1329

n.1 (S.D. Fla. 2015) (citing Dornbach v. Holley , 854 So. 2d 211,

213 (Fla. 2d DCA 2002)).

11. On the present facts, a notice of a lease violation

for a lunchroom disturbance created by a resident is not

discriminatory. Compare Soto v. City of West Chicago , 2010 U.S.

Dist. LEXIS 123195 (N.D. Ill. 2010) (enforcement of land - use

ordinances not discriminatory). Additionally, such a notice of

a lease violation appears to have had no consequence, so i t does

not constitute a denial of a dwelling within the meaning of

section 760.23(1) or alteration in the terms, conditions, or

privileges of the rental of a dwelling , or alteration of the

provision of services or facilities in connection with the

rental o f a dwelling, within the meaning of section 760.23(2).

RECOMMENDATION

It is

RECOMMENDED that the Florida Commission on Human Relations

enter a final order dismissing the Petitio n for Relief filed on

May 1, 2017 .

DONE AND EN TERED this 2nd day of August , 2017 , in

Tallahassee, Leon County, Florida.

S

____________________________________

Robert E. Meale

Administrative Law Judge

Division of Administrative Hearings

The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399 - 3060

(850) 488 - 9675

Fax Filing (850) 921 - 6847

www.doah.state.fl.us

Filed with the Clerk of the

Division of Administrative Hearings

t his 2nd day of August , 2017 .

COPIES FURNISHED:

Tammy S. Barton, Agency Clerk

Florida Commission on Human Relations

4075 Esplanade Way , Room 110

Tallahassee, Florida 32399

(eServed)

Everdan Sales Correia

Apartment 217

3425 Northwest 189th Street

Miami Gardens , Florida 33056

(eServed)

Thomas H. Courtney, Esquire

J. Patrick Fitzgerald & Associates, P.A.

110 Merrick Way, Suite 3 - B

Coral Gables, Florida 33134

(eServed)

Cheyanne Costilla, Gen eral Counsel

Florida Commission on Human Relations

4075 Esplanade Way, Room 110

Tallahassee, Florida 32399

(eServed)

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.