18-001314 Rita Lynar vs. Westminister Retirement Communities Foundation, Inc. Et. Al. Status: Closed Recommended Order on Wednesday, July 10, 2019.

Summary: Petitioner failed to prove that she was subject to unlawful housing discrimination, based on retaliation, in violation of Florida's Fair Housing Act.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

RITA LYNAR,

Petitioner,

vs. Case No. 18 - 1314

WESTMINSTER RETIREMENT

AL.,

Respondent.

_______________________________/

RECOMMENDED ORDER

The fina l hearing in this matter was conducted before

J. Bruce Culpepper, Administrative Law Judge of the Division of

Administrative Hearings, pursuant to sections 120.569 and

120.57(1), Florida Statutes (2018), 1/ on September 11, 2018, and

January 9, 2019, in Seb astian, Florida. 2/

APPEARANCES

For Petitioner: Nicholas A. Vidoni, Esquire

Vidoni Law PLLC

Unit 5

959 North Cocoa Boulevard

Cocoa, Florida 32922

For Respondent: Maria Vaeth Henderson, Esquire

Stephen G. Henderson, Esquire

Henderson Legal Group

5419 Village Drive

Rockledge, Florida 32955

STATEMENT OF THE ISSUE

Whether Respondent, Westminster Retirement Communities

Fo undation, Inc., et. al., discriminated against Petitioner,

Rita Lynar, in violation of the Florida Fair Housing Act; and,

if so, the relief to which Petitioner is entitled.

PRELIMINARY STATEMENT

On August 17, 2017, Petitioner filed a housing

discrimination complaint with the Florida Commission on Human

Relations (the Ð Commission Ñ ) claiming that Respondent,

Westminster Retirement Communities of Florida Foundation, Inc.

( Ð Westminster Ñ ) , violated the Florida Fair Housing Act ( Ð FHA Ñ ).

Petitioner specifically a llege d that Westminster retaliated

against her based on her practice of an activity protected by

the FHA.

On February 9, 2018, the Commission notified Petitioner

that no reasonable cause existed to believe that Westminster had

committed a discriminatory ho using practice.

On March 6, 2018, Petitioner filed a formal Petition for

Relief with the Commission alleging a discriminatory housing

practice. The Commission transmitted the Petition to the

Division of Administrative Hearings ( Ð DOAH Ñ ) to conduct a

chapte r 120 evidentiary hearing.

The final hearing began on September 11, 2018. The final

hearing was continued to January 9, 2019, at which time it was

completed. At the final hearing, Petitioner testified on her

own behalf. Petitioner also called Joe Downs, Linda Evans,

Patricia Helms, Bruce Ballman, Theresa Moss, Jane Furman,

Marvene Sheriff, and Denise Miles as witnesses at the final

hearing. Petitioner Ó s Exhibits 1 through 4 and 6 through 10

were admitted into evidence. Respondent Ó s Exhibits 1, 3, and 4

were admitted into evidence. 3/

A three - volume Transcript of the final hearing was filed

with DOAH on November 20, 2018, and May 15, 2019. At the close

of the hearing, the parties were advised of a ten - day timeframe

following receipt of the hearing transc ript at DOAH Ó s to file

post - hearing submittals. At a post - hearing conference, both

parties requested an extension of the filing deadline, which was

granted. 4/ Both parties timely filed post - hearing submittals ,

which were duly considered in preparing this Recommended Order.

FINDING S OF FACT

1. Westminster owns and operates several retirement

communities across Florida. The Westminster property in this

matter is located in Cocoa, Florida. Joe Downs is the

administrator for the Cocoa site and manages the facilities.

2. Petitioner moved into the Westminster community in

January 2013. The Cocoa, Florida, location consists of three

buildings. Petitioner rents an apartment located in Asbury Arms

North ( Ð Asbury North Ñ ). Asbury North is restricted to only

el derly persons.

3. Petitioner and Westminster have had a contentious

relationship from the time she moved in. The problems stem from

Westminster Ó s handling of an ongoing personality conflict

between Petitioner and several other Asbury North residents.

The genesis of the current matter was on or about August 2014,

when Petitioner filed a housing discrimination complaint against

Westminster with the U.S. Department of Housing and Urban

Development ( Ð HUD Ñ ). On January 9, 2015, Petitioner also

submitted he r complaint to the Commission.

4. In this initial complaint, Petitioner alleged that

Westminster discriminated against her based on her sex.

Petitioner contended that another resident, Kenneth Schultz, had

physical ly and verbal ly harassed her. Petitio ner accused

Westminster management (Mr. Downs) of encouraging and supporting

Mr. Schultz Ó s impropriety. The Commission investigated

Petitioner Ó s allegations (FCHR No.: 2015 H0098) , and on April 7,

2015, issued a Notice of Determination of No Cause. The

C ommission Ó s Notice stated that it Ð determined that reasonable

cause does not exist to believe that a discriminatory housing

practice has occurred. Ñ

5. Petitioner contested the Commission Ó s findings in DOAH

Case No. 15 - 2769 . In December 2015 however, on the eve of the

final administrative hearing, Westminster and Petitioner settled

their dispute. Petitioner remained a resident of Asbury North.

6. Unfortunately, from Petitioner Ó s perspective, her

tribulations did not end in December 2015. The current case is

based on Petitioner Ó s allegations that Westminster has been

unlawfully retaliating against her because of her first

complaint. The FHA safeguards individuals based on their

previous participation in a right granted by the FHA (such as

filing a hou sing discrimination complaint with HUD and/or the

Commission). See § 760.37, Fla. Stat. Petitioner claims that

as a direct result of her 2015 accusations, she has been

subjected to harassment, intimidation, and threats by

Westminster. 5/

7. At the final hearing, Petitioner described what she

asserts demonstrates Westminster Ó s retaliation based on her

participation in an act protected by the FHA. These multiple

incidents include the following:

a. Eviction :

8. On May 1, 2017, Westminster served Petitio ner with a

Notice of Termination of Tenancy (the Ð Termination Notice Ñ ) on

May 1, 2017. Thereafter, on June 2, 2017, Westminster filed an

eviction lawsuit against Petitioner in Brevard County.

9. Petitioner denies that she ever violated Westminster Ó s

ru les or regulations. Therefore, the eviction action is

completely unjustified. Petitioner claims that Westminster

initiated the eviction action in retaliation for her 2015

housing discrimination complaint.

b. Intimidation and Mistreatment :

10. In additi on to the eviction lawsuit, Petitioner

complains that a small clique of Asbury North residents ha s

continually bullied, harassed, stalked, and targeted her. They

call her nasty names; they utter derogatory remarks; and they

ostracize her from social activ ities. They make false

accusations about her (alleged) misconduct to both Westminster

and the Cocoa police department.

11. This group consists primarily of four members of the

Ð Residents Council, Ñ including Denise Ð Dee Ñ Miles, Don Miles,

Mr. Schultz, an d Jane Ð Mickey Ñ Furman. The Residents Council

was formed before Petitioner arrived at Westminster. Its

primary purpose is to arrange for and coordinate various

activities and functions for Asbury North residents, such as

cookouts, holiday parties, and en tertainment. Persons serving

on the Residents Council are elected by the Asbury North

residents. However, the Residents Council is not officially

associated with, compensated by, or selected by Westminster.

None of the Residents Council members are West minster employees

in any capacity. Neither has Westminster authorized the

Residents Council to act on its behalf.

12. The most dramatic episode of intimidation occurred on

June 6, 2017, when the eviction complaint was served on

Petitioner. That day, Petitioner joined a handful of other

Westminster residents for lunch at a nearby Cracker Barrel.

Most residents, including Petitioner, rode a church bus to the

restaurant.

13. Five other residents, Ms. Miles, Donald Miles,

Mr. Schultz, Mickey Furman, a nd Pat Helms rode separately in

Mr. Schultz Ó s car. They also sat with e ach other at the

restaurant.

14. While Petitioner was sitting at a table with several

friends, Ms. Miles left the dining area and went outside to the

parking lot. She returned shor tly , leading a process server.

Ms. Miles pointed to Petitioner. Ms. Miles then returned to her

table and shared the information with her tablemates. They

watched as the process server handed Petitioner the eviction

paperwork in front of all the restaura nt patrons. 6/

15. After riding the bus back to Asbury Arms, Petitioner

proceeded to her building to return to her second floor

apartment. As she opened the door to enter the Florida room,

however, she was confronted by a Ð mob Ñ of approximately 20

resid ents, including Ms. Miles. At her appearance, the mob

erupted into a boisterous cheer , celebrating Petitioner Ó s

imminent eviction. Petitioner recounted how several residents

jeered and taunted her. Petitioner was shocked and horrified.

She quickly scur ried to the elevator.

16. Linda Evans, a resident who is friends with

Petitioner, observed the incident and exclaimed that the

spectacle was organized specifically to humiliate Petitioner.

She saw residents clapping, hooting, and hollering. She heard

so meone yell, Ð We got you. Ñ Ms. Evans espied several members of

the Residents Council in the gathering , including Ms. Miles and

Mr. Schultz. However, she was not aware of any Westminster

employees who participated in the revelry. Ms. Evans complained

to W estminster management about the incident, but she never saw

any repercussions addressing this Ð horrible Ñ celebration.

17. Petitioner blamed Ms. Miles for orchestrating and

leading the cheering. Petitioner also accused Mr. Downs of

colluding with Ms. Mile s by giving her information about the

service of process.

c . Mental, Physical , and Verbal Abuse :

18. Beyond Westminster Ó s eviction action and the Ð mobbing Ñ

incident, Petitioner alleges that she has suffer ed constant and

recurring mental, physical, and verbal abuse at Westminster.

Petitioner claims that this hostile environment has caused her

deep anxiety and stress.

19. Petitioner Ó s primary foil at Westminster is Dee Miles.

Petitioner alleges that Ms. Miles is the leader of her

antagonists. Among their numerous run - ins, Petitioner claims

that Ms. Miles wrongly reported Petitioner to the police in

February 2016; called her names in May 2016; falsely accused her

of abusi ng community privileges in June 2016; pushed her and

yelled at her in August 2016 ; yelled at her in April 2017; and

called her a foul name in May 2017. Petitioner asserts that

Ms. Miles manipulates the management to harass and intimidate

her. Petitioner calls Ms. Miles an Ð agent Ñ of Westminster.

20. A s a dditional examples of the u npleasant situation she

endures, Petitioner relayed an episode where Mr. Schultz

threatened to hit her with a mallet (June 2016) and named a wild

pig after her (July 2016). She reported the incidents to

Mr. Downs, but Westminster took no action against Mr . Schultz.

21. Petitioner also described a time in November or

December 2016 when she lost the outside key to her building.

Petitioner complains that Mr. Downs charged her $75 for a

replacement key, then took approximately six weeks to give her

the new k ey. When Petitioner inquired about the delay, she

claims that Mr. Downs disrespected her and treated her

unprofessionally. (Mr. Downs acknowledged that it took several

weeks to obtain a new key. However, Petitioner could always

access her building by us ing the keypad. Mr. Downs also denied

that he received the $75 from Petitioner for the duplicate key.)

22. Finally, Petitioner also reported a fight she had on

March 28, 2017, with another resident named Doris Driver.

Petitioner recounted that she was s itting in the Asbury Arms

common area with several friends. Ms. Driver approached her

from behind and unexpectedly struck her in the head and pulled

her hair. Petitioner was completely caught off guard. In an

effort to protect herself, Petitioner kicked Ms. Driver and

slapped her across her face. After the incident, Petitioner

obtained a court ordered Injunction for Repeat Violence against

Ms. Driver. Petitioner accused Mr. Downs of ignoring

Ms. Driver Ó s violent attack.

23. Petitioner charges that M r. Downs fosters and supports

the abusive behavior from Ms. Miles and the other members of the

Residents Council. Mr. Downs colludes in Ms. Miles and her

cohorts Ó efforts to bully Petitioner. Petitioner alleges that

Mr. Downs/Westminster treats her unfai rly by not acknowledging

or investigating her complaints against other residents, and

failing to admonish them for their wrongdoing.

24 . Mr. Downs testified on behalf of Westminster.

Mr. Downs explained that Westminster provides affordable housing

for senior citizens. Accordingly, HUD subsidizes the rent for a

number of residents, including Petitioner.

25. In his role as administrator, Mr. Downs oversees the

day - to - day operations for the Cocoa location. Mr. Downs has

worked at Westminster as the a dministrator since 2010.

26. Mr. Downs is well aware of the incompatibility between

Petitioner and several other Asbury North residents. Mr. Downs

stated that he has received Ð volumes Ñ of complaints from

Petitioner about other residents. Mr. Down s exp lained that each

time he receiv ed a grievance from ( or against ) Petition er , he

would personally evaluate and review the complaint, then offer

the other side the opportunity to respond. Mr. Downs estimated

that he has reviewed over 1,000 complaints from Pe titioner,

which , at one point, consumed approximately 50 percent of his

time.

27. Despite this Ð barrage Ñ of jeremiads, Mr. Downs

maintained that he never ignored Petitioner Ó s complaints.

However, he testified that he found that most of her accusations

la cked any factual basis and were meritless.

28. Mr. Downs is also aware that Petitioner Ó s primary

personality dispute is with Dee Miles. Mr. Downs relayed that

he has repeatedly and strongly counseled both Petitioner and

Ms. Miles not to engage each oth er. Mr. Downs specifically

warned Ms. Miles to avoid Petitioner Ð at all costs. Ñ

Unfortunately, Mr. Downs has found both ladies to be very

headstrong, and Petitioner to be very confrontational. They

simply do not want to get along.

29. Mr. Downs read ily admitted that Westminster is

attempting to evict Petitioner. However, Mr. Downs adamantly

denied that Westminster, or any of its agents or employees, has

taken any action in retaliation for Petitioner Ó s 2015 housing

discrimination complaint. Instead, Mr. Downs testified that the

legal action is based entirely on Petitioner Ó s own unacceptable

behavior, which has resulted in her multiple, material

violations of her Westminster lease agreement.

30. Petitioner signed her lease agreement on January 21,

2 013, when she moved into Asbury North. Attachment No. 3 to the

lease agreement is a document entitled Ð House Rules. Ñ The House

Rules include a section labeled Ð CONDUCT , Ñ which instructs that:

Residents . . . will not engage in, or

participate in, such co nduct which

interferes with the quiet and peaceful

enjoyment of other residents living in the

apartment property. No act of a resident

and/or guest which threatens, intimidates,

is deemed as harassing others, i s physically

violent with or without injury t o another

person and/or property, or has unacceptable

social conduct, will be tolerated. Any such

incident(s) will be considered a violation

of the Community Policies and the Lease.

* * *

Social and friendly gatherings of residents

and his/her gu est(s) are welcomed provided

such gatherings do not become noisy,

offensive, threatening, or generally

objectionable to other residents and/or

management. The gathering is considered in

violation of the terms of the Lease and

Community Policies when other residents Ó

rights to quiet and peaceful enjoyment of

his/her residence are violated.

31. Westminster delivered the Termination Notice to

Petitioner on May 1, 2017. Petitioner discovered the

Termination Notice posted on her door. The Termination Noti ce

informed Petitioner that Westminster was terminating her lease,

based on your material noncompliance with

the Lease Agreement, including one or more

substantial violations of the Lease

Agreement, and repeated minor violations of

the Lease Agreement whic h disrupt the

livability of the project, and adversely

affect the health or safety of any person

and the right of any tenant to the quiet

enjoyment of the leased premise and related

project facilities.

The Termination Notice directed Petitioner to vaca te Asbury

North not later than May 31, 2017.

32. Mr. Downs testified that the Termination Notice was

based on Westminster Ó s investigations into complaints about

Petitioner Ó s conduct. Mr. Downs surmised that he has received

over 100 complaints regarding Petitioner. Mr. Downs expressed

that the difficulties Petitioner caused accumulated to a point

where the frustration rose to an unacceptable level.

33. Mr. Downs stated that the Termination Notice is based

on Petitioner Ó s clear violations of the lease agreement House

Rules. The Termination Notice includes 12 Ð specific reasons for

this termination Ñ involving complaints from at least nine Asbury

North residents. Mr. Downs asserted that he verified each and

every incident , in writing , after speaking with the complainant.

34. At the final hearing, Mr. Downs summarized the most

egregious violations to include:

a. June 20, 2016 : Petitioner filed a police report

accusing another resident (Kenneth Schultz) of threatening her

with a mallet. ( See paragra ph 20 above.) Following his

investigation, Mr. Downs concluded that Petitioner Ó s allegations

were groundless. Mr. Downs reviewed a video recording of the

encounter. He observed no hostile or threatening behavior from

Mr. Schultz towards Petitioner. The refore, he concluded that

Petitioner intentionally filed a false police report.

Consequently, Petitioner Ó s actions interfered with the qu ie t

enjoyment of another resident, as well as harassed the other

resident s .

b. October 31, 2016 : Petitioner pushed a door into

another resident (Norma Seitz). The resident reported the

incident to Westminster staff. Petitioner Ó s actions interfered

with the quie t enjoyment of another resident in that she was

physically violent to the other resident.

c. March 28, 201 7 : Mr. Downs referred to Petitioner Ó s

fight with Doris Driver. ( See paragraph 22 above.) The

incident caused Westminster to call law enforcement to the

property. At the final hearing, Mr. Downs conceded that he did

not determine who actually started th e quarrel. However, he

maintained that physical violence is an absolute violation of

Westminster Ó s rules, regardless of who is at fault. Mr. Downs

denied that he sided with Ms. Driver. Instead, he advised

Ms. Driver that she needed to leave Westminster. Ms. Driver

moved out of Westminster the following month, before Westminster

formally filed legal action against her. Mr. Downs also

cooperated with a law enforcement investigation into the

incident by providing them with a copy of the video of the

episo de . Westminster cited Petitioner for interfering with the

quiet enjoyment of another resident, harassing and intimidating

another resident, and being physically violent with another

resident.

35. In addition to the above Ð substantial violations, Ñ the

T ermination Notice listed a number of additional incidents which

Mr. Downs asserted violated the lease agreement by interfering

with the quiet enjoyment of, as well as harass ing and

intimidat ing other Westminster residents. These episodes

included:

a. Jan uary 6, 2016 : Petitioner yelled at another resident

(Judith Collins). Ms. Collins was frightened and reported the

encounter to Westminster staff.

b. January 9, 2016 : Petitioner yelled at another resident

(Rebecca Scott). Ms. Scott was frightened and r eported the

incident to Westminster staff.

c. January 20, 2016 : Petitioner yelled at another

resident (Sue Diserio) , calling her derogatory names.

Ms. Diserio reported the event to Westminster staff.

d. November 28, 2016 : Petitioner blocked another

re sident Ó s (Mr. Schultz) access to the elevator, and declared

that the other resident Ð just wanted to touch [her] body. Ñ The

resident filed a complaint against Petitioner with Westminster

staff.

e. January 12, 2017 : Petitioner yelled at another

resident (Mickey Furman) regarding a recurring dispute about

Petitioner placing her feet on the chairs in the common room.

(Ms. Furman testified at the final hearing confirming that she

reported the incident to Westminster. She expressed that she

was offended by Petitioner Ó s outburst. Ms. Furman further

relayed that she has written several letters to Mr. Downs

complaining of Petitioner Ó s inappropriate behavior.)

f. January 23, 2017 : Petitioner yelled at another

resident (Ms. Miles) regarding the same years Ó long complaint

about Petitioner resting her feet on chairs in the Florida room.

(Ms. Miles testified at the final hearing confirming that she

reported the incident to Mr. Downs.)

g. January 26, 2017 : Petitioner called a Westminster

staff member a Ð bitch . Ñ At the final hearing, Petitioner

acknowledged confronting the staff member, but denied called her

a demeaning name.

h. January 27, 2017 : Petitioner took a cart from the

thrift shop , which belonged to another resident (Ms. Furman)

without her permiss ion. Petitioner then called Ms. Furman

Ð greedy. Ñ (Ms. Furman confirmed at the final hearing that she

reported the encounter to Westminster staff.)

i. February 14, 2017 : Petitioner intentionally spilled

coffee down the hallway and lobby of Asbury Nort h. Mr. Downs

watched a video recording of the incident. Mr. Downs maintained

that Petitioner Ó s destruction of property constituted

unacceptable social conduct at Westminster.

36. Despite receiving the Termination Notice on May 1,

2017, Petitioner did no t vacate her room by May 31, 2017. As a

result, Mr. Downs stated that Westminster felt compelled to

initiate the eviction action. Westminster filed th e eviction

complaint in county c ourt in Brevard County on June 2, 2017.

37. Regarding the service of the eviction paperwork on

June 6, 2017, Mr. Downs explained that the process server

appeared at Westminster when Petitioner was at lunch at Cracker

Barrel. Because Petitioner was not present on the property,

Mr. Downs contacted the process server Ó s office to inquire about

the appropriate next step. During the phone call, Mr. Downs

relayed that Petitioner was lunching at Cracker Barrel.

Thereafter, the process server left Westminster (presumably for

Cracker Barrel).

38. Mr. Downs refuted any claims th at he told Ms. Miles

about the service of the eviction complaint. Mr. Downs

testified that he did not know how Ms. Miles learned about the

eviction. (Mr. Downs reflected that many residents already knew

about the eviction based on the posting of the Term ination

Notice on Petitioner Ó s door.)

39. Mr. Downs also denied any knowledge of the Ð mobbing Ñ

celebration at Westminster on June 6, 2017. He relayed that he

was not present in Asbury North at the time.

40 . M r. Downs further denied that any member of th e

Residents Council (i.e., Dee Miles) had any input into

Westminster Ó s decision to evict Petitioner. Instead, the

eviction was based solely on the incidents listed in the

Termination Notice. Mr. Downs described the Residents Council

as an Ð activities com mittee Ñ formed by Asbury North residents.

Mr. Downs denied that the Residents Council is affiliated with

or serves any official function on behalf of Westminster. His

testimony was credible and is credited.

41. Dee Miles testified at the final hearing . Ms. Miles

expressed that she is not, nor has she ever been an employee of

Westminster. Ms. Miles further contended that the Residents

Council is not an official Westminster organization, nor are its

members compensated by Westminster.

42. Regarding th e incident on June 6, 2017, Ms. Miles

admitted that she was aware of the process server Ó s activities

before Petitioner was served at Cracker Barrel. Ms. Miles also

admitted that she waited for the process server in the parking

lot, then led him into the r estaurant where she identified

Petitioner. However, she denied that she learned about the

summons from Mr. Downs or received any communication from him

about the process server. Ms. Miles explained that, while

driving to Cracker Barrel, she received a te xt from another

Asbury North resident who had seen the process server at

Westminster.

43. Ms. Miles further admitted that she participated in

the Ð mobbing Ñ celebration in the Florida Room when Petitioner

returned from lunch. However, she declared that she had no

involvement in Westminster Ó s decision to evict Petitioner.

44. Ms. Miles willingly acknowledged that Petitioner and

she have frequently clashed since Petitioner Ó s arrival at

Westminster. Ms. Miles declared that she has written many

letters t o Mr. Downs complaining of abuse and harassment she has

suffered at Petitioner Ó s hands. At the final hearing, Ms. Miles

described verbal abuse (name - calling), as well as harassment

(Petitioner Ós ill treatment of Mr. Miles Ó scooter). Ms. Miles

further rec ounted that she has seen Petitioner harass other

Asbury North residents and misuse the furniture in the common

room.

4 5. Based on the competent substantial evidence in the

r ecord, the preponderance of credible evidence does not

establish that Westminster discriminated against Petitioner in

retaliation for her 2015 complaint of housing discrimination.

Accordingly, Petitioner failed to meet her burden of proving

that Westminster violat ed the F HA .

CONCLUSIONS OF LAW

46 . The Division of Administrative Heari ngs has

jurisdiction over the parties and the subject matter of this

proceeding pursuant to sections 120.569, 120.57(1), 760.34(4),

760.35(3)(b), and 760.37, Florida Statutes.

4 7. Petitioner asserts that Westminster discriminated

against her in violation of the FHA. Specifically, Petitioner

alleges that Westminster retaliated against her based on her

participation in a protected activity.

48 . The FHA is codified in sections 760.20 through 760.37

and makes it unlawful to discriminate against any person in

connection with the rental of a dwelling. § 760.23(2), Fla.

Stat. Section 760.37 addresses retaliatory acts and states, in

pertinent part:

It is unlawful to coerce, intimidate,

threaten, or interfere with any person in the

exercise of, or on account of her or his

having exercised, or on account of her or his

having aided or encouraged any other person

in the exercise of any right granted under

ss. 760.20 - 760.37.

49 . The FHA is patterned after the Federal Fair Housing Act

found in 42 U.S.C. § 3601, et seq. Discrimination covered under

the FHA is the same discrimination prohibited under the Federal

Fair Housing Act. Savannah Club Worship Serv. v. Savannah Club

Homeowners Ó Ass Ó n , 456 F. Supp. 2d 1223, 1224 n.1 (S.D. Fla.

2005); see also Bhogaita v. Alt amonte Heights Condo. Ass Ó n , 765

F.3d 1277, 1285 (11th Cir. 2014)( Ð The [Federal Fair Housing Act]

and the Florida Fair Housing Act are substantively identical, and

therefore the same legal analysis applies to each. Ñ ).

Accordingly, federal case law involvi ng discrimination is

instructive in applying and interpreting the FHA. See Loren v.

Sasser , 309 F.3d 1296, 1300 n.9 (11th Cir. 2002). 7/

50 . In proceedings brought under the FHA, the burden of

proof is on the complainant. § 760.34(5), Fla. Stat.; see al so

Sec Ó y, U.S. Dep Ó t of Hous. & Urban Dev. ex rel. Herron v.

Blackwell , 908 F.2d 864, 870 (11th Cir. 1990); and Dep Ó t of

Banking & Fin., Div. of Sec. & Investor Prot. v. Osborne Stern &

Co. , 670 So. 2d 932, 935 (Fla. 1996)( Ð The general rule is that a

party asserting the affirmative of an issue has the burden of

presenting evidence as to that issue. Ñ ). The preponderance of

the evidence standard is applicable to this matter.

§ 120.57(1)(j), Fla. Stat.

5 1 . Discrimination may be proven by direct, statistical ,

or circumstantial evidence. Valenzuela v. GlobeGround N. Am.,

LLC , 18 So. 3d 17, 22 (Fla. 3d DCA 2009). Direct evidence is

evidence that, if believed, would prove the existence of

discriminatory intent behind the decision without any inference

or presu mption. Denney v. City of Albany , 247 F.3d 1172, 1182

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

1561 (11th Cir. 1997). Courts have held that ÐÒ only 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).

5 2. At the final hearing, Petitioner presented no direct

evidence of a retaliatory housing pra ctice by Westminster. No

evidence or testimony shows that Westminster intentionally

intimidated, threatened, or interfered with Petitioner Ó s exercise

of her right to file a discriminatory housing complaint under the

FHA.

53 . In the absence of direct o r statistical evidence of

discriminatory intent, Petitioner must rely on circumstantial

evidence of discrimination to prove her case. For

discrimination claims involving circumstantial evidence, fair

housing cases are analyzed under the three - part, burden - shifting

framework set forth in McDonnell Douglas Corporation v. Green ,

411 U.S. 792 (1973), and Texas Department of Community Affairs v.

Burdine , 450 U.S. 248 (1981). See also Bone v. Vill. Club,

Inc. , 223 F. Supp. 3d 1203, 1217 (M.D. Fla. 2016). Under this

three - part test, Petitioner has the initial burden of

establishing a prima facie case of unlawful discrimination.

McDonnell Douglas , 411 U.S. at 802; Burdine , 450 U.S. at 252 - 253;

Valenzuela , 18 So. 3d at 22.

54 . To establish a prima facie case o f retaliatory housing

discrimination, a plaintiff must show that (1) she engaged in a

protected activity; (2) the defendant subjected her to an

adverse action; and (3) a causal link exists between the

protected activity and the adverse action. Bone , 223 F . Supp.

3d at 1217 (M.D. Fla. 2016); Philippeaux v. Apartment Inv. &

Mgmt. Co. , 598 F. App Ó x 640, 644 (11th Cir. 2015); and Hebden v.

Anderson , No. 8:18 - cv - 1063 - T - 33AAS, 2019 U.S. Dist. LEXIS 56368,

at *14 - 15 (M.D. Fla. Apr. 2, 2019). A plaintiff engages in

statutorily protected activity when she Ð protests . . . conduct

which is actually lawful, so long as . . . she demonstrates a

good faith, reasonable belief that the [conduct engaged in] was

. . . unlawful. Ñ Philippeaux , 598 F. App Ó x at 644 - 45.

55 . D emonstrating a prima facie case is not difficult, but

rather only requires Petitioner Ð to establish facts adequate to

permit an inference of discrimination. Ñ Holifield , 115 F.3d at

1562. However, t he failure to satisfy any of these elements is

fatal to a complaint of retaliation. Higdon v. Jackson , 393

F.3d 1211, 1219 (11th Cir. 2004).

56 . If Petitioner proves a prima facie case, she creates a

presumption of housing discrimination. At that point, the burden

shifts to Westminster to articulate a legitim ate,

nondiscriminatory reason for its actions. Bone , 223 F. Supp. 3d

at 1218; Oliver , No. 8:17 - cv - 585 - T - 30AAS, 2018 U.S. Dist. LEXIS

220246, at *24 . The reason for Westminster Ó s decision should be

clear, reasonably specific, and worthy of credence. See Dep Ó t of

Corr. v. Chandler , 582 So. 2d 1183, 1186 (Fla. 1st DCA 1991).

The burden on Westminster is one of production, not persuasion,

to demonstrate to the finder of fact that its action was

nondiscriminatory. Wilson v. B/E Aerospace, Inc. , 376 F.3d 107 9,

1087 (11th Cir. 2004). This burden of production is Ð exceedingly

light. Ñ Holifield , 115 F.3d at 1564.

57 . If Westminster meets its burden, the presumption of

discrimination disappears. The burden then shifts back to

Petitioner to prove that Westmin ster Ó s proffered reason was not

the true reason but merely a Ð pretext Ñ for discrimination.

Bone , 223 F. Supp. 3d at 1218; Valenzuela , 18 So. 3d at 25.

58 . In order to satisfy this final step in the process,

Petitioner must show Ð either directly by persua ding the court

that a discriminatory reason more likely motivated [Westminster]

or indirectly by showing that [Westminster Ó s] proffered

explanation is unworthy of credence. Ñ Burdine , 450 U.S. 248,

256, 101 S. Ct. 1089, 1095. Petitioner must prove that th e

reasons articulated were false and that the discrimination was

the real reason for the action. City of Miami v. Hervis , 65

So. 3d 1110, 1117 (Fla. 3d DCA 2011)(citing St. Mary Ó s Honor Ctr.

v. Hicks , 509 U.S. 502, 515, 113 S. Ct. 2742, 2751 (1993) ( Ð [A]

r eason cannot be proved to be Ò a pretext for discrimination Ó

unless it is shown both that the reason was false, and that

discrimination was the real reason. Ñ ).

5 9 . Despite the shifting burdens of proof, Ð the ultimate

burden of proving discrimination rests at all times with the

[petitioner]. Ñ Valenzuela , 18 So. 3d at 22; Burdine , 450 U.S.

at 253 .

60 . Applying the burden - shifting analysis to the facts

found in this matter, Petitioner did not meet her burden of

proving that Westminster retaliated against he r based on her

exercise of a right protected by the FHA. Specifically,

Petitioner did not show that Westminster coerced, intimidated,

threatened, or interfered with her because of her decision to

file a housing discrimination complaint in 2015.

61. Rev iewing her prima facie case, Petitioner satisfied

the first two elements. The facts establish that Petitioner

engaged in a protected activity by filing housing discrimination

complaints with HUD in August 2014, and with the Commission in

January 2015, and then by pursuing a Petition for Relief in DOAH

in 2015.

6 2. Petitioner also fulfilled the Ð adverse action Ñ prong of

her prima facie case. Westminster served Petitioner with the

Termination Notice on May 1, 2017, which is sufficiently

Ð adverse Ñ to demo nstrate circumstantial evidence of retaliation.

See Bone , 223 F. Supp. 3d at 1219, and Neudecker v. Boisclair

Corp. , 351 F.3d 361, 363 - 64 (8th Cir. 2003)(holding that threats

of eviction are sufficient to allege an adverse action under the

Federal Fair Ho using Act). ( In addition to the eviction,

Petitioner argues that the persistent abusive treatment she

received from other Asbury North residents should be considered

Ð adverse action Ñ perpetrated by Westminster . The facts do not

support this position as i s discussed in paragraphs 66 - 70 below.)

63 . However, Petitioner failed to show a causal link

between her 2015 complaint and Westminster Ó s eviction action.

Petitioner can satisfy the third element if she Ð provides

sufficient evidence that the decision - m aker became aware of the

protected conduct, and that there was close temporal proximity

between this awareness and the adverse employment action. Ñ

Farley v. Nationwide Mut. Ins. Co. , 197 F.3d 1322, 1337 (11th

Cir. 1999); Rustowicz v. N. Broward Hosp. Dist . , 174 So. 3d 414,

426 (Fla. 4th DCA 2015). See also Thomas v. Cooper Lighting,

Inc. , 506 F.3d 1361, 1364 (11th Cir. 2007)( Ð [I]n the absence of

other evidence tending to show causation, if there is a

substantial delay between the protected expression and the

adverse action, the complaint of retaliation fails as a matter

of law. Ñ ) .

64 . As discussed in endnote 5, the 16 - month passage of

time between the date Petitioner concluded her 2015 claim

(December 2015) and when Westminster posted the Termination

Noti ce (May 2017) is too attenuated to establish a reasonable

inference that Westminster retaliated against her. See Higdon

v. Jackson , 393 F.3d 1211, 1220 (11th Cir. 2004); and Oliver v.

Fox Wood at Trinity Cmty. Ass Ó n , No. 8:17 - cv - 585 - T - 30AAS, 2018

U.S. Dis t. LEXIS 220246, at *23 (M.D. Fla. July 30, 2018).

65 . Furt her, Petitioner did not present other evidence

tending to show causation. On the contrary, Westminster

provided ample documentation and credible testimony that its

decision to evict Petitioner wa s based on her breach of the

lease agreement (the House Rules). The Termination Notice

identified 12 separate violations Petitioner committed from

January 2016 through March 2017. Mr. Downs Ó testimony, as well

as supporting testimony from Ms. Furman, Ms. Evans, Ms. Helms,

and Ms. Miles, persuasively substantiated the factual basis

underlying each of the cited incidents. Consequently, because

the facts in the record demonstrate that Westminster Ó s decision

to terminate Petitioner Ó s lease agreement was base d on reasons

independent from Petitioner Ó s 2015 housing discrimination

complaint, Petitioner did not establish a causal link between

her protected activity and the adverse action.

66 . Notwithstanding the above analysis, Petitioner alleges

that she was s ubjected to Ð adverse action Ñ in the form of

relentless bullying and harassment by other Asbury North

residents since December 2015. Petitioner asserts that

Westminster participated in this activity by either explicitly

instigating or implicitly supporting this behavior , and, as

such, all offensive conduct from other residents must be

considered retaliation on the part of Westminster .

67 . According to Petitioner, proof of this retaliation is

evident in the disparate manner in which Westminster (Mr. Downs )

applied the lease agreement to the Asbury North residents.

Petitioner contends: Mr. Downs readily enforced the House Rules

against Petitioner, especially the residents Ó right to quiet

enjoyment of the property ; he presumed that every complaint

levied a gainst Petitioner was true without conducting a

comprehensive and fair investigation ; and he then used these

complaints to justify Westminster Ó s termination of Petitioner Ó s

tenancy.

68 . Conversely, Mr. Downs either declined to enforce or

outright ignored these same provisions against those residents

about whom Petitioner complained. He also refused to stop or

admonish other residents who interfered with Petitioner Ó s right

to quiet enjo y ment.

69 . However, the evidence at the final hearing belies

Petitio ner Ó s claim of collusion between Westminster and

Petitioner Ó s adversaries. Mr. Downs credibly testified that he

treats all residents Ó complaints, including those either by or

against Petitioner, in like manner. 8/ Mr. Downs also

convincingly explained tha t he spent a considerable amount of

his time investigating and reviewing Petitioner Ó s allegations

against Ms. Miles and Mr. Schultz. The testimony also

corroborates Mr. Downs Ó representation that he directly

confronted Ms. Miles about her fractious relati onship with

Peti tioner and attempted to resolve the situation. Further, the

evidence (primarily from Ms. Miles) also supports Mr. Downs Ó

explanation that he did not instigate, nor was he involved in

either the Cracker Barrel incident or the Ð mobbing Ñ in J une

2017.

70 . Finally, no evidence shows that any Asbury North

residents participated in Westminster Ó s decision to evict

Petitioner. No evidence was presented demonstrating that any

Westminster tenants (in particular, Ms. Miles) had any authority

to ac t in lieu of, or had any input in, Westminster Ó s

determination that Petitioner had violated her lease agreement.

Consequently, Petitioner did not present sufficient evidence to

find that Westminster conspired with other Asbury North

residents to retaliate against her based on her 2015 hous ing

discrimination complaint.

71 . Notwithstanding the above conclusions, even assuming

that Petitioner did establish a prima facie case of retaliation,

Westminster articulated legitimate, nondiscriminatory reasons

for t he Ð adverse action Ñ (eviction) about which she complains.

Westminster Ó s burden to refute Petitioner Ó s prima facie case is

light. Westminster met this burden by providing credible

evidence that its decision to terminate Petitioner Ó s tenancy was

based on h er multiple violations of her lease agreement (the

House Rules). Mr. Downs clearly and cogently described the

facts and circumstances supporting each of the 12 Ð specific

reasons Ñ listed in the Termination Notice. The underlying basis

for each reason was further substantiated by documents in the

record or testimony from persons involved, including Petitioner,

Ms. Furman, and Ms. Miles.

7 2. Finally, the House Rules expressly directed that

Westminster residents Ð will not engage in, or participate in,

such conduct which interferes with the quiet and peaceful

enjo y ment of other residents living in the apartment property. Ñ

Petitioner Ó s conduct, as described throughout the final hearing,

plainly fell into this category.

73 . Completing the McDonnell Douglas burden - shifting

analysis, Petitioner did not prove that Westminster Ó s Ð specific

reasons Ñ for terminating her tenancy were not its true reasons,

but merely a Ð pretext Ñ for retaliation . In other words, that

Westminster both fabricated its grounds for evicti on, and its

real reason was retaliation. The evidence and testimony in the

record does not support a finding or conclusion that

Westminster Ó s explanation is false or not worthy of credence.

As persuasively attested by Mr. Downs, Westminster Ó s decision to

evict Petitioner was solidly based on 12 actual, verifiable

violations of the House Rules.

74 . At its core, Petitioner Ó s claim consists of her

subjective misgivings that Mr. Downs treated her complaints

against other residents less favorably . 9/ Howeve r, t he evidence

does not, either directly or circumstantially, link her

frustrations to retaliation on the part of Westminster.

Consequently, Petitioner failed to meet her ultimate burden of

proving that Westminster Ó s eviction action was based on, or

moti vated by, its desire to retaliate against her because of her

2015 housing discrimination complaint. Accordingly,

Petitioner Ó s Petition for Relief must be dismissed.

RECOMMENDATION S

Based on the foregoing Findings of Fact and Conclusions of

Law, it is REC OMMENDED that the Florida Commission on Human

Relations issue a final order concluding that Respondent,

Westminster Retirement Communities Foundation, Inc., did not

commit a discriminatory housing practice against Petitioner,

Rita Lynar, and dismiss ing her Petition for Relief.

DONE AND ENTERED this 10 th day of July , 2019 , in

Tallahassee, Leon County, Florida.

S

J. BRUCE CULPEPPER

Administrative Law Judge

Division of Administrative Hearings

The DeSoto Building

1230 Apalache e 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 10 th day of July , 2019 .

ENDNOTE S

1/ Unless otherwise stated, all statutory re ferences are to the

2018 codification of the Florida Statutes.

2 / The January 9, 2019, hearing was conducted by video

teleconference at sites in Sebastian and Tallahassee .

3 / Petitioner also proffered E xhibit 5 and Respondent proffered

E xhibit 2. Th e undersigned did not admit these documents in

evidence, nor do they serve as a basis for any findings of fact.

However, they have been placed in the record in this matter.

4 / Following the filing of the transcript at DOAH, the parties

jointl y moved for an additional three - day extension to submit

their proposed recommended orders, which was granted. By

requesting a deadline for filing post - hearing submissions beyond

ten days after the transcript was filed , the 30 - day time period

for filing the recommend ed order was waived. See Fla. Admin.

Code R. 28 - 106.216(2).

5 / As an initial procedural matter, Petitioner Ó s housing

discrimination claim must overcome a timing issue. To initiate

a viable cause of action under the FHA, Petitioner Ó s complaint

must be f iled with the Commission within one year after the

alleged injury occurred. § 760.34(2), Fla. Stat.

Petitioner submitted her housing discrimination complaint

to the Commission on August 17, 2017. Accordingly, all discrete

retaliatory acts that occurre d prior to August 18, 2016, are

untimely and no longer actionable.

On the other end of the spectrum, to establish her prima

facie case of retaliation, Petitioner must show a causal

connection between the protected activity and the adverse

action. Based o n the facts found in this matter, Petitioner Ó s

protected activity ( t h e 2015 housing discrimination complaint)

concluded on December 15, 2015. The most overt adverse action

in this matter (the eviction action), however, occurred on

May 1, 2017, over 16 mon ths later.

The Eleventh Circuit has held that a mere three - month delay

between a complaint and the alleged adverse action is too long

to establish a causal connection under controlling precedent.

See Fisher v. SP One, Ltd. , 559 F. App Ó x 873, 878 (11th Ci r.

2014)(citing Higdon v. Jackson , 393 F.3d 1211, 1220 - 21 (11th

Cir. 2004)(holding that a three - month period between the

protected conduct and the adverse action was not sufficient to

allow a reasonable inference of causality in an Americans with

Disabilit ies Act retaliation suit); Thomas v. Cooper Lighting,

Inc. , 506 F.3d 1361, 1364 (11th Cir. 2007)( Ð A three to four

month disparity between the statutorily protected expression and

the adverse employment action is not enough. Ñ ); Clark Cnty. Sch .

Dist. v. Bre eden , 532 U.S. 268, 273, 121 S. Ct. 1508, 149 L. Ed.

2d 509 (2001)(noting that temporal proximity between protected

activity and adverse action in Title VII retaliation suits must

be Ð very close Ñ in order to be sufficient evidence of

causality). Specifica lly involving retaliatory housing

discrimination, in Oliver v. Fox Wood at Trinity C om m uni ty

Ass ociatio n , No. 8:17 - cv - 585 - T - 30AAS, 2018 U.S. Dist. LEXIS

220246, at *23 (M.D. Fla. July 30, 2018) , the court dismissed a

claim where the alleged retaliatory act occurred almost a year

after the plaintiff Ó s complaint, and in Pavlik v. Shoreham

Condo minium Ass ociatio n , No. 18 - 81488 - CIV - MARRA/MATTHEWMAN, 2019

U.S. Dist. LEXIS 51860, at *15 - 16 (S.D. Fla. Mar. 26, 2019) , the

court ruled that a complaint filed two year s after the incident

was too attenuated to sustain a retaliation claim.

In isolation, Westminster Ó s eviction action ( as Westminster

argues) is not contemporaneous or even remotely close in time to

Petitioner Ó s 2015 complaint. Therefore, Petitioner cann ot prove

retaliation under the FHA.

However, Petitioner Ó s overarching theme is that Westminster

worked in concert with her rival residents to drive her out of

Asbury North. Toward s this end, evidence at the final hearing

shows that she suffered harassm ent as early as February 2016.

Petitioner further charges that Westminster either expressly

supported or implicitly endorsed this activity. Therefore, in

adjudging this matter, the undersigned started the analysis by

giving Petitioner the benefit of the doubt as to when

Westminster Ó s alleged retaliatory actions commenced. In other

words, before determining whether Petitioner Ó s cognizable

allegations are supported by competent substantial evidence, the

undersigned assumed that Westminster Ó s alleged wrongd oing

included the intimidation and threats Petitioner experienc ed

within months after her protected activity ended in December

2015, and continu ed through he r Ð mobbing Ñ in June 2017.

6 / In the Certificate of Service, the process server recorded:

On 06/0 6/2017 at about 1:35 PM, the Process

Server attempted to serve the defendant at

1200 Clearlake Road, Unit 2114, Cocoa,

Florida and was informed by the Complex

manager, Joe [Downs], that Rita Lynar had

gone to the Cracker Barrel Restaurant in

Titusville, FL with a group of people on a

bus. It was requested that the Process

Server attempt to serve her there today.

The Process Server proceeded to Titusville,

and located Rita Lynar in the Cracker

Barrel. She identified herself as Rita

Lynar and was served he r [sic] personally as

shown above.

7 / Specifically regarding the subject matter of Petitioner Ó s

claim, the statutory language in section 760.37 is very similar

to that found in its federal counterpart in 42 U.S.C. § 3617.

When Ð a Florida statute is mode led 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. Fla.

Power Corp. , 633 So. 2d 504, 509 (Fla. 1st DCA 1994); see also

Dornbach v. Holley , 854 So. 2d 211, 213 (Fla. 2d DCA 2002);

Milsap v. Cornerstone Residential Mgmt. , 2010 U.S. Dist. LEXIS

8031 (S.D. Fla. 2010); and Fla. Dep Ó t of Cmty. Aff. v. Bryant ,

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

8 / The glaring exception to Mr. Down Ó s representation is

Westminster Ó s lack of response to the Ð mobbing Ñ Petitioner

experienced in Asbury North on June 6, 2017. This encounter

undoubtedly occurred, as verified by multiple sources, and

depicts the most blatant example of Ð conduct which interferes

with the quiet and peaceful e njoyment of other residents living

in the apartment property Ñ presented at the final hearing.

However, no evidence was offered showing that Westminster took

any steps to rebuke the participants or acknowledge that this

Ð unacceptable social conduct Ñ ever h appened.

Even so, the Ð mobbing Ñ does not establish retaliation. No

Westminster agent or employee planned or participated in the

gathering. Neither can Petitioner Ó s discrimination claim

overcome the existence of the 12 verified Ð specific reasons Ñ

iden tified in the Termination Notice which preceded

Westminster Ó s eviction action.

9 / See Wigfall v. St. Leo Univ., Inc. , No. 8:10 - CV - 02232 - T - 24 -

TGW, 2012 U.S. Dist. LEXIS 29638 (M.D. Fla. Mar. 6, 2012); and

Novella v. Wal - Mart Stores, Inc. , 459 F. Supp. 2d 1231, 1235

(M.D. Fla. 2006)(A plaintiff cannot establish the causal link

element in a retaliation claim simply by inference.).

COPIES FURNISHED:

Tammy S. Barton, Agency Clerk

Florida Commission on Human Relations

Room 110

4075 Esplanade Way

Tallah assee, Florida 32399 - 7020

(eServed)

Stephen G. Henderson, Esquire

Henderson Legal Group

5419 Village Drive

Rockledge, Florida 32955

(eServed)

Maria Vaeth Henderson, Esquire

Henderson Legal Group

5419 Village Drive

Rockledge , Florida 32955

(eServed)

N icholas A. Vidoni, Esquire

Vidoni Law PLLC

Unit 5

959 North Cocoa Boulevard

Cocoa, Florida 32922

(eServed)

Rita Lynar

Asbury Arms N Inc.

Room 2114

1200 Clearlake Road

Cocoa, Florida 32922

(eServed)

Cheyanne Costilla, Gen eral Co unsel

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.