20-002125 April Williams vs. Orion Real Estate Services, And Housing Authority Of The City Of Winter Park Status: Closed Recommended Order on Friday, August 21, 2020.

Summary: Petitioner failed to show by a preponderance of the evidence that Respondents committed a discriminatory housing practice against her because of her race.

S TA TEMENT OF T HE I SSUE

W hether Respondents Orion Real Estate Services (Orion) and the Housing

Authority of the City of Winter Park (Housing Authority) subjected Petitioner

April Williams to discriminatory housing practices based on her race (African

American , non - Hispanic), in violation of the Florida Fair Housing Act,

chapter 760, part II, Florida Statutes (2019) (FHA). 1

P RELIMINARY S TATEMENT

On, November 19, 2019, Petitioner filed a charge of housing

discrimination with the Florida Commission on Human Relat ions (FCHR),

alleging Respondents discriminated against her based upon her race

(African - American, non - Hispanic), in violation of the FHA.

On February 26, 2020, FCHR issued a " Notice of Determination of No

Cause, " finding that there was no reasonable cau se to believe that

Respondents had committed a discriminatory housing practice against

Petitioner .

On April 1, 2020, Ms. Williams filed a Petition for Relief with FCHR,

again alleging that Respondents had committed a discriminatory housing

practice agains t her based on her race. FCHR transmitted the Petition to

DOAH and assigned the undersigne d to conduct an evidentiary hearing.

2

On July 16, 2020, the undersigned conducted a telephonic pre - hearing

conference with all of the parties. During that conference call, the

undersigned reminded the parties of the deadline to exchange witness and

1 All statutory references are to the 2019 codification of the Florida Statutes, unless

otherwise indicated.

2 The Petition also alleges the FC H R investigator who was assigned to Ms. Williams's

complaint was bias and discriminated against Ms. Williams . That issue was not properly

raised in this proceeding, nor is it addressed in this Recommended Order.

exhibit lists , the deadline to provide the undersigned with potential exhibits,

and the method to submit the potential exhibits to DOAH prior to the

hearing.

The undersign ed conducted the final hearing on July 23, 2020. Orion ' s

counsel part icipated remotely by telephone; Petitioner and the Housing

Authority appeared by video.

Petitioner presented her own testimony; the testimony of LiMarys Rivera,

a Hispanic female and the Property Manager for Orion; and La Shanda

Lovett, an African American female and the Executive Di rector of the

Housing Authority . None of Petitioner ' s exhibits were admitted into evidence

because she did not timely disclose them to Respondents and did not provide

them to the undersigned until an hour before the hearing , contrary to the

instructions provided in the Notice of Hearing and Pre - Hearing Instructions .

Orion presented the testimony of Ms. Rivera and Orion ' s E xhibits OR2

through OR7 were admitted i nto evidence. The Housing Authority put on no

witnesses and offered no evidence.

Although there was a court reporter at the final hearing, t he parties did

not order a transcript . At the conclusion of the hearing, the undersigned

instructed the parties tha t they had ten days from the date of the final

hearing to submit their p roposed recommended orders (PROs) , or by no later

than August 3, 2020 . The Housing Authority timely submitted a PRO , and it

has been considered in the preparat ion of this Recommended O rder. Orion ' s

PRO was filed on August 4, 2020, and is considered untimely. Petitioner

failed to timely submit a proposed recommended order.

F INDINGS OF F ACT

1. Ms. Williams, an African American female , lives in an apartment in the

Meadows, a low - income housing complex located in Winter Park, Florida .

2. The Housing Authority is a governmental entity that provides low -

income housing through federal funds provided by the United States

Department of Housing and Urban Development. It contracts with outside

companies to manage the properties it owns. The Housing Authority ow ns

the Meadows.

3. Orion is a real estate services company that manages residential

properties for landlords and investors. At the time relevant to these

proceedings, Orion managed the Mea dows for the Housing Authority.

4. Ms. Williams had to climb up a stairwell to reach her unit. Her

apartment was located above o ne unit and next to another. She sha red a

front porch with her next - door neighbor.

5. The Meadows housed 300 residents during t he relevant time period. Of

those residents, 264 identified themselves as " Black " and 280 identified

themselves as " Ethnic. " There was no testimony or evidence as to how many

identified as Hispanic.

6. The Housing Authority claims it took no action against Ms. Williams,

and therefore cannot be liable for discrimination . T he Community Manager

for the Meadows , LiMarys Rivera, testified she was an employee of Orion.

However, she issued documentation on letterhead titled " The Housing

Authority of t he City of Wi nter Park . " Ms. Rivera ' s signature line states that

her title is " Property Manager Agent for the Win t er Park Housing Authority . "

As such, the undersigned finds Ms. R ivera was a dual agent for both Orion

and the Housing Authority.

7. Ms. Rivera testified th at once she received a complaint against a

tenant, regardless of who ma de the complaint, it was standard procedure to

first reach out to the alleged violato r by telephone as a courtesy, and then if

there was a subsequent co mplaint to send out a written " N o tice to C ure " or

" Notice of Material Non - Compliance with Opportunity to C ure and Proposed

Adverse Action " (non - compliance notice) to that tenant .

8 . Respondents provided numerous non - compliance notices to tenants

regardin g various types of complaints. Ms. Rivera testified these non -

compliance notices were issued to tenants of all races, and both Hispanic and

non - Hispanic tenants.

9. Over the course of a year to 18 months, Ms. Williams had made

somewhere between 20 and 29 complaints against her next - door ne ighbor

and her downstairs neighbor. Ms. Williams described both o f these neighbors

as Hispanic.

10 . Ms. Williams complained that her next - door neighbor was noisy and

would smoke (and allow guests to smoke) on t he front porch even though her

building was d esignated as a non - smoking area. Ms. Williams also

complained that the downstairs neighbor left items on the stairwell causing a

hazard. These items included pizza boxes, s hoes, rugs, and bags of trash.

11. As a result of these complaints, both of Ms. Wil liams ' s neighbors were

issued non - compliance notices . The downstairs neighbor received a non -

compliance notice for leaving pizza boxes , trash, and t he other objects outside

her front door . Similarly, the next - door neighbor received a non - compliance

notice for smoking in h er apartment and common areas.

12. Additionally, Respondents issued c ommunity flyers to all the tenants

in the Meadows reminding them of basic rules, i ncluding not smoking, not

leaving trash and debris outside , and keeping front porches cl ean.

13. Ms. Williams also complained to Respondents that workmen who were

performing maintenance in her unit were speaking Spanish. S he requested

that Respondents provide workm e n that speak only English while on the

Meadows property .

14. At some point, Ms . Williams ' s neighbors made noise complain ts

against her . Respondents did not initially issue a non - compliance notice to

Ms. Williams because she and her n eighbors had numerous complaints

against each other .

15. Instead, Ms. Rivera attempted to hold a conc iliation or mediation

meeting with all of them . Ms. Williams refused . She did not see the point of

the meeting, and believed Ms. Rivera would take the neighbors ' side because

Ms. Rivera, like the neighbors, was Hispanic.

1 6 . After Ms. Williams refused to m eet, Respondents issued her a non -

compliance notice for excess ive noise. There was no evidence that she was

required to pay any fees or fines as a result of the non - compliance notice

against her.

17 . Ms. Williams testified she felt Ms. Rivera gave prefere ntial treatment

to Hispanics. When asked how they were treated better , Ms. Williams

testified that her n eighbors were not evicted despite the complaints made

against them. Ms. Williams admitted, however, that Respon dents did not

evict her either .

C ONCLUSI ONS OF L AW

18. The undersigned and DOAH ha ve jurisdiction over the subject matter

and the parties to this proceeding in accordance with sections 120.569,

120.57(1), and 760.35(3)(b), Florida Statutes.

19. The FHA makes it unlawful to discriminate against a ny 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. " § 760.23(2),

F la. Stat.

20. The FHA is patterned after Title VII of the Civil Rights Act of 1968, as

amended by the Fair Housing Act of 1988. As such, discriminatory acts

prohibited under the federal Fair Housing Act are also prohibited under the

FHA, and federal case l aw interpreting the federal Fair Housing Act is

applicable to proceedings brought under the FHA. See generally, Glass v.

Captain Katanna ' s, Inc ., 950 F. Supp. 2d 1235, 1244 (M.D. Fla. 2013) ( " a

Florida law mirrored after a federal law generally will be cons trued in

conformity with the federal law. " ).

21. In cases involving claims of rental housing discrimination, the

complainant has the burden to prove a prima facie case of discrimination by a

preponderance of the evidence. § 760.34(5), Fla. Stat.; Fla. Dep ' t of Transp. v.

J.W.C. Co., 396 So. 2d 778 (Fla. 1st DCA 1981). A " preponderance of the

evidence " means the " greater weight " of the evidence, or evidence that " more

likely than not " tends to prove the fact at issue. Gross v. Lyons, 763 So. 2d

276, 289 n.1 (Fla. 2000).

22. Petitioner ' s allegations amount to a claim of disparate treatment in

the terms of enforcement of the rules and regulations of the Meadows.

23. To establish a prima facie case of disparate treatment, Petitioner must

present evidence that sh e was treated differently than similarly - situated

tenants. See Schwarz v. City of Treasure Island , 544 F.3d 1201, 1216 (11th

Cir. 2008). She can do so either by direct evidence, or through circumstantial

evidence established through the burden - shifting fra mework of McDonnell

Douglas Corp. v. Green, 411 U.S. 792 (1973). See Noel v. Aqua Vista

Townhomes Condo. Ass' n, Inc. , 2019 WL 4345903 at *3 (S.D. Fla. Sept. 12,

2019).

24. Direct evidence is that which, if believed, would prove the existence of

discrimina tory intent without resort to inference or presumption. Denney v.

City of Albany, 247 F.3d 1172, 1182 (11th Cir. 2001). " Direct evidence

encompasses conduct or statements that both (1) reflect directly the alleged

discriminatory attitude, and (2) bear dire ctly on the contested [housing]

decision. " Noel, 2019 WL 4345903 at *3. As to the nature of the evidence,

" only the most blatant remarks, whose intent could be nothing other than to

discriminate … will constitute direct evidence of discrimination. " Damon v .

Fleming Supermarkets of Fla., Inc., 196 F.3d 1354, 1358 - 59 (11th Cir. 1999)

(citations omitted).

25. Ms. Williams presented no direct evidence of discrimination by

Respondents related to, or affecting the terms of, her tenancy at the

Meadows, or in the w ay she was treated by Respondents.

26. Alternatively, Ms. Williams must show that she: (1 ) is a member of a

protected class; ( 2 ) was treated differently in the enforcement of rules and

regula tions than other tenants; and (3 ) this different treatment was ba sed on

her race or non - Hispanic status. See McDonnell Douglas Corp. , 411 U.S. at

802 - 4. She must also show that as a result of the differential treatment, she

was denied services or access protected by the FHA, which were available to

other tenants. See Sa vanna Club Worship Serv., Inc. v. Savanna Club

Homeowners ' Ass ' n, Inc. , 456 F. Supp. 2d 1223, 1232 (S.D. Fla. 2005) (plaintiff

alleging housing discrimination must prove denial of access to use of facilities

or common areas available to other homeowners bas ed upon religion ).

27. Ms. Williams established the first element: she i s a member of a

protected class because she is African American and non - Hispanic .

28. Ms. Williams , however, did not establish the remaining elements of a

prima facie case. She prese nted no credible or persuasive evidence that

Respondents treated her differently than other tenants or that such

treatment was because of her race and she was not Hispanic . She was issued

a non - compliance notice, just as Hispanic tenants and tenants of oth er races

had been. Moreover, although she complained her neighbors were not evicted

as a result of their violations, neither was she.

29. Ms. Williams also presented no credible evidence that she was denied

any services by Respondents . Although she receive d a non - compliance notice ,

she was not fined or evicted .

30. Ms. Williams failed to meet her burden to establish a prima facie case

of discrimination or disparate treatment under the FHA. Ms. Williams failed to present persuasive evidence that any actions or inactions by Responde nts

were influenced by her race or her non - Hispanic status.

R ECOMMENDATION

Based upon the foregoing Findings of Fact and Conclusions of Law, the

undersigned hereby RECOMMENDS that the Florida Commission on Human

Relations issue a final order dismissing the Petition for Relief filed by April

Williams.

D ONE A ND E NTERED this 21st day of August, 2020 , in Tallahassee, Leon

County, Florida.

H ETAL D ESAI

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 21st day of August , 2020 .

C OPIES F URNISHED :

Tammy S. Barton, Agen cy Clerk

Florida Commission on Human Relations

4075 Esplanade Way , Room 110

Tallahassee, Florida 32399 - 7020

(eServed)

Ricardo L. Gilmore, Esquire

Saxon, Gilmore, Carraway and Gibbons, P.A.

201 East Kennedy Boulevard , Suite 600

Tampa, Florida 33602

(eSer ved)

Kevin Fulton, Esquire

Fulton Strahan Law Group, PLLC

7676 Hillmont Street , Suite 191

Houston, Texas 77040

(eServed)

April Williams

746 Margaret Square

Winter Park, Florida 32789

(eServed)

Cheyanne Costilla, General Co unsel

Florida Commission on Human Relations

4075 Esplanade Way, Room 110

Tallahassee, Florida 32399

(eServed)

N OTICE OF R IGHT T O S UBMIT E XCEPTIONS

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.