20-003368 Tiffani Bernard vs. Beach House At Amelia Status: Closed Recommended Order on Monday, January 4, 2021.

Summary: Petitioner did not meet her burden of proving that Respondent discriminated against her in violation of the Fair Housing Act.

P RELIMINARY S TATEMENT

On March 19, 2020 , Petitioner, Tif fani Bernard (“Petitioner” or

“Ms. Bernard”) , filed a Housing Discrimination Complaint ("C omplaint ") with

the Florida Commission on Human Relations ("FCHR") alleging that

Respondent, Beach House at Amelia ( “Respondent” or “Beach House”) ,

violated sections 760.23(2), 760.37, 760.23(8) and (9)(b), Florida Statutes (the “ Florida Fair Housing Act ” or “ FHA ” ), by discriminating against her on the

basis of the disability of her child .

On June 30, 2020 , FCHR issued a Determination of No Cause, by which

FCHR determ ined that reasonable cause did not exist to establish that an

unlawful housing practice occurred.

On July 28, 2020, Petitioner filed a Petition for hearing with FCHR, in

response to FCHR’s finding of “no cause.” The Petition was transferred to the Divisio n for a final hearing, which was assigned to the undersigned.

The final hearing was initially scheduled for October 5, 2020. Petitioner

filed a Motion for Continuance on September 16, 2020, which was granted. The undersigned rescheduled this matter for he aring on November 10, 2020.

On November 10, 2020, t he hearing commenced as scheduled. Petitioner

testified on her o w n behalf and offered the testimony of two witnesses:

Alexandria Smith and Richard Nugent. Petitioner also offered Exhibits 1 through 8, wh ich were admitted into evidence. Respondent offered

the testimony of five witnesses: Paul Weston, Sydney Wulfeck, Jo Nix

(Assistant Property Manager for Beach House ), Stephanie Householder

( Regional Marketing and Training Director for South Oxford Manageme nt ),

and Alicia Norve ( Regional Manager for South Oxford Management ).

Respondent’s Exhibits 1 through 17 , 19 and 20, were admitted into evidence.

After the close of the record, Petitioner filed two documents that were

presumably submitted as evidence. How ever, since the record was closed , the

exhibits were not accepted into the record or considered by the undersigned.

Resp ondent filed a Motion to Strike Petitioner’s Late - Filed Post - Hearing

Exhibits , which is deemed moot as the exhibits were not accepted in to the

record.

The one - volume Transcript was filed with the Division on December 2,

2020. Both parties timely filed proposed recommended orders, which were

considered in drafting this Recommended Order. Unless otherwise indicated,

citations to the Florida Statu t es refer to the 2019 version, the version in

effect at the time of the alleged discrimination.

F INDINGS OF F ACT

Based on the exhibits and testimony offered at the final hearing, the

following F indings of F act are made :

1. This matter involves a Com plaint of housing discrimination Petitioner

filed against Respondent. Petitioner was a resident at the Beach House from

November 2017 until April 2020 . The incidents at issue here occurred

relat ing to Petitioner’s tenancy at Beach House, an apartment compl ex

located in Yulee , Florida.

2. The Beach House is owned by BW Amelia, LLC, and managed by South

Oxford Management.

3. Petitioner moved into the property with her two minor children and her

mother , Sonia Bernard, in November 2017. The lease was renewed a t least

two times with the most recent being for the lease period of April 30, 2019,

through April 29, 2020. At all times that Petitioner lived at the Beach House

she lived in apartment No. 521, a second - floor apartment.

4. Petitioner alleges that Responde nt engaged in discriminatory housing

practices due to her minor child, T.B.’s , disability. More specifically,

Petitioner alleges that Respondent:

a . issued a notice of non - renewal of her lease after

becoming aware of T.B.’s disability ; and

b . prevented h er from paying her rent in January

2020.

Complaint History

5. Each resident of Beach House is required to sign a lease agreement

which provides the terms that the resident and the owner must follow.

Paragraph 20, the provision most relevant to this matt er , provides as follows:

You, your occupants, or guests, or the guests of any

occupants, may not engage in the following

activities: behaving in a loud or obnoxious manner; disturbing or threatening the rights, comfort, health, safety, or convenience of ot hers (including

our agents and employees) in or near the apartment community; disrupting our business operations … engaging in or threatening

violence … . You agree to communicate and conduct

yourself at all times in a lawful, courteous, and

reasonable man ner when interacting with our

employees, agents, independent contractors, and

vendors; other residents, occupants, guests or invitees; or any other person on the premises. You

agree not to engage in any abusive behavior, either

verbal or physical, or any f orm of intimidation or

aggression directed at our employees, agents, independent contractors, and vendors; other residents, occupants, guests or invitees; or any

other person on the premises. … Any violation of

this paragraph shall be a material breach of this Lease and will entitle us to exercise all rights and

remedies under the lease and law.

6. From November 12, 2019 , through November 25, 2019, Petitioner

received three notices of non - compliance with the lease agreement.

Respondent contends the notic es were issued due to multiple complaints of

noise disturbances and one incident involving an unauthorized occupant.

7. The noise complaints at issue were raised by the residents in

apartment No. 511, which was located beneath Ms. Bernard on the first floor.

Paul Weston and Sydney Wulfeck moved into apartment No. 511 with their

young daughter in October 2019.

8 . On November 12, 2019 , Mr. Weston submitted a complaint by email to

Respondent as follows:

My name is Paul Weston, I live in Apartment 511.

I ’m not sure who to contact but I’m at my wits end.

Our upstairs is super loud, I hear her at all hours of the night and day. She is always screaming at

someone or something, there are loud bangs on the

floor at all hours of the night and day, it seems like

there is a domestic issue ongoing inside the

residence. I understand kids make noise but when they are clearly not there and she is screaming

about everything it makes it impossible to go about

the day. Crashes have been so loud that it has shook our door s, light fixtures, TV, fans and these

noises have been keeping my daughter up when she should be sleeping for school. …

9. That same day, Respondent issued a Seven Day Notice of Non -

Compliance (With Opportunity to Cure) (“Seven - Day Notice”) to Petition er,

which noted the following: “We have had many complaints on the slamming

doors and level of noise coming from your apartment. It is disturbing your

neighbors.” The Notice also referenced paragraph 20 of the lease agreement as support for the violation .

10 . At the hearing, Mr. Weston testified that the day before he emailed

Respondent the noise was loud and sounded similar to a marching band or a

jack hammer . While there were periods when the noise stopped , it seemed as

if the noise was in different are as of the apartment and would continue until

midnight.

11. Petitioner responded to the Seven - Day Notice disputing the complaint.

12. The next day, November 13, 2019, Mr. Weston submitted a second

complaint. He indicated that “the noise last night was th e worst it has ever

been.” He noted in the complaint that the noise continued until “around

midnight.” Mr. Weston testified that he believed the noise was purposeful .

However, there was no evidence of record to support his belief .

13. On November 18, 20 19, Mr. Weston made a third complaint as

follows:

As noted from prior emails of the noise in the

apartment above me, and also how it was

addressed with the resident. The time is now

10 P.M. and since you had a talk with the resident

we have been subjected to unrelenting loud banging

on the floor, noises throughout the night and the

resident and her occupants yelling excessively. I

feel as though it is retaliatory due to the talk, its

focused banging on the floor directly above us and non - stop. This needs t o be taken care of as soon as

possible. I am trying to be as civil as I can be, but I

am at the end of my rope. I work a very stressful

job at UF Downtown and I am unable to sleep for my job in which I help people because of this noise. Something needs to be done immediately. I can be reached by phone or email anytime.

14. While Mr. Weston continued to believe the noise was intentional, other

than his belief, there was no evidence to support his beliefs.

15. On November 25, 2019, Respondent issued Pet itioner another

Seven - Day Notice as follows : “ You and/or your guests and/or occupants …

causing a continued unreasonable disturbance on the premises including but

not limited to loud voices, arguing, disturbing the peaceful quiet enjoyment of

the premises for other residents . ” This was the second Seven - Day Notice

related to noise disturbance.

16. The next day, on November 26, 2019, Petitioner sent an email disputing

the noise complaints and made her own noise complaint against the resident s

in the apartmen t above her (apartment No. 531 ) . She complained of

stomping, loud noises, moving furniture, and loud sounds of dropped items .

17. As a result of Petitioner’s complaint, Respondent issued the resident in

apartment No. 531 a Seven - Day Notice for: “ You and/o r your guests and/or

occupants … causing a continued unreasonable disturbance on the premises

including but not limited to loud stomping and disturbing the peaceful quiet

enjoyment of the premises for other residents . ”

18. In addition to Mr. Weston’s writ ten complaints, Ms. Wulfeck testified

regarding the noise disturbances. She described the noise from Petitioner’s

apartment as sounding like “tumble dryers” as well as yelling, screaming,

and crying. She did acknowledge, however, that it was difficult to d etermine

whether the sounds were simply loud walking or purposeful.

19. Ms. Wulfeck also testified that Petitioner confronted her on one

occasion after complaints had been made against Petitioner. Ms. Wulfeck and

Petitioner were leaving at the same time . Petitioner, who was in her truck,

stopped her truck and began to yell at Ms. Wulfeck about her son’s disability.

Ms. Wulfeck testified that when she attempted to walk behind Petitioner’s

truck to leave, Petitioner’s reverse lights illuminated so she steppe d back

from behind the truck. Ms. Wulfeck testified that “shortly thereafter, she just

sped off.” While Ms. Wulfec k testified that the truck began to go in reverse, it

did not strike her. Ms. Wulfeck did, however, report the incident to the

assistant prope rty manager .

20. On December 31, 2019, Ms. Wulfeck sent an email complaint to Beach

House and complained as follows:

Good evening, we live in apt# 511, we’ve been to the

office many times about the above neighbor; Tiffani

Bernard …anytime of day she’s b anging around, it

is sop [ sic ] much sores [sic] than before, our

freaking lights are swaying!! Talking to her just made her angry with us and she now yell things at

us in passing. The noise is insane, that’s all I can

say, it’s never ending and we feel it’ s purposeful

because she’s angry we complained. She doesn’t care, is so rude, she’s also using her mom’s

handicap sign to park in front up close, when we

have people in our building that are actually handicapped and could use this spot it’s wrong. … .

21. At no point did Mr. Weston or Ms. Wulfeck contact the courtesy officer

when they experienced noise disturbances to document and assist with

verifying their complaints. A courtesy officer serves as the first point of contact for residents and responds t o resident noise complaints and

complaints of unlawful activity. However, a resident is not required to

complain to a courtesy officer.

22. There was also no video or audio recording of the noise disturbances.

At no point did Respondent investigate the c omplaints. However, Mr. Weston

and Ms. Wulfeck credibly testified about their experience with the noise

disturbances , which was also supported by their written complaint and

decision to move due to the noise . The undersigned finds that any comments

or test imony regarding the purposeful nature of the noise were speculative,

and are , thus, not credited.

Incident Involving Mr. Nugent

23. A few days later , on November 25, 2019, Petitioner’s son’s father

Mr. Nugent experienced a mental health episode in which he contacted the

police. The police arrived and engaged Mr. Nugent to calm him down .

Ms. Householder was on the property at the time and responded to the area

of the incident to determine why the police were called. She only observed

Mr. Nugent screaming on the balcony as she was asked to return to the

leasing office. One of the responding officers , Officer Galloway, later reported

to Ms. Householder what happened. Officer Galloway told Ms. Householder

that the officers were able to calm down Mr. Nugent . T he officer noted that

Mr. Nugent identified himself as a resident of Petitioner’s apartment , which

was also documented on the police repor t . Finally, Officer Galloway told

Ms. Householder that Mr. Nugent would not pass a criminal background

check to permit him to be a resident at the apartment complex . 1

24. At the final hearing, Mr. Nugent , on the other hand, testified that he

was reading a bible and concerned about his well - being which led him to call

the police.

25. Since Mr. Nugent was not listed o n Petitioner’s lease as a resident and

b ased upon the seriousness of the incident, Ms. Householder contacted

Petitioner to discuss the incident. Petitioner denied that Mr. Nugent lived at

her address, but rather that he would help her with the children. Af ter the

discussion , Ms. Householder issued Respondent a Seven - Day Notice for:

“hav[ing] an unauthorized occupant residing on the premises in violation of [the] lease , ” issued on December 19, 2019.

T.B.’s D isability

26. Petitioner alleges Respondent did not renew her lease due to her child,

T.B . ’s , disability. T.B.’s assessment confirms that he has been evaluated and

diagnosed as having delayed development with communication and motor

skills. Ms. Bernard’s son would often stomp his feet on the floor while doing

what she referred to as the “hot dog dance.” Petitioner deni ed being

excessively loud. Petitioner, however, acknowledged that her voice carries

when she’s speaking to her mother and children, and stated she would

attempt to resolve the issue. Petiti oner testified that the noise was not late at

night as she works nights or was not at home during times the alleged noise

disturbances occurred.

1 Ms. Bernard offered evidence at hearing of a complaint she filed against the officer who

reported the information about Mr. Nugent’s criminal history. She also offered evidence of

the officer’s involvement in an unrelated matter which r esulted in him being removed from

his position. While it may have been inappropriate for the officer to report this information,

Mr. Nugent was not a resident of the Beach House. Thus, based on the information provided

to Ms. Householder about his assertio n of residing at Beach House, it was reasonable for her

to issue the Seven Day Notice for an unauthorized occupant.

27. Petitioner testified that she notified the property manager, Shannon,

that her son had autism and commun icates using his feet to stomp on the

floor. Shannon did not testify at the hearing. Ms. Nix testified that she was

not told about T.B.’s disability. On December 9, 2019, after receiving multiple

complaints, Petitioner emailed Ms. Norve disputing the compl aints and

advised her that “2 1/2 year old has level 1 autism and communicates

through motor not speech.” On December 18, 2019, Petitioner also notif ied

her neighbors in apartment No. 511 of her child’s disability .

Nonrenewal of Lease

28. The current a ssistant property manager, Ms. Jo Anne Nix, explained

the process when a resident receives a complaint. After a resident is issued a Seven - Day Notice, they have seven days to resolve the issue. If the issue is

not resolved, then the resident may be subject to eviction or nonrenewal of

the lease agreement.

29. Petitioner was issued two notices for noise complaints within 12 days.

However, the complaints continued.

30. On January 8, 2020, Respondent issued Petitioner a Notice of Lease

Termination at the End of the Lease which notified Petitioner that her lease

would not be renewed. On February 20, 2020 , and March 9, 2020, Respondent

followed up on the notice of nonrenewal with a request for confirmation of

Petitioner’s move out date. T he lease was not ren ewed due to violations of the

lease agreement , namely , noise complaints and the incident involving

Mr. Nugent.

31. Other than the complaints from the resident s in apartment No. 511,

Petitioner had not received any written notices of violations of the lea se

agreement. However, when Ms. Householder started working as the property

manager, she learned there had been previous verbal warnings regarding

noise complaints. In addition, the degree of the noise complaints resulted in

Mr. Weston and Ms. Wulfeck term inating their lease early.

32. At the final hearing, Petitioner testified that the noise would not have

been an issue if she had been placed in a bottom floor apartment. However,

she did not request a first (or ground) floor apartment as a reasonable

ac commodation. Ms. Norve acknowledged that she would have offered a lower

level apartment as a resolution. However, the noise complaints and incidents

with visitors were the basis for nonrenewal of the lease, and thus, a first - floor

apartment would not have resolved the issues.

33. In support of her complaint, she testified that Beach House refused to

permit her to use PayLease to pay her rent. PayLease is a third - party system

that is used to pay rent payments. However, there was no additional evidence

offe red to demonstrate that Respondent barred Petitioner from using

PayLease.

C ONCLUSIONS OF L AW

3 4 . DOAH has jurisdiction over the parties and subject matter in this

case. §§ 120.569 and 120.57, Fla. Stat.

3 5 . Section 760.23 states that it is an unlawful ho using practice 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 handicap or familial status.

3 6 . FCHR and Florida courts have determined that federal discrimination

laws should be used as guidance when construing provisions of section 760. See Valenzuela v. GlobeGround N. Am., LLC , 18 So. 3d 17 (Fla. 3d DCA

2009); Brand v. Fla. Power Corp. , 633 So. 2d 504, 509 (Fla. 1 st DCA 1994).

Establishing Discrimination

3 7 . Discriminatory intent can be established through direct or

circumstantial evidence. Schoenfeld v. Babbitt , 168 F.3d 1257, 1266 (11th Cir.

1999). Direct evidence of discrimination is evidence that, if believed ,

establishes the existence of discriminatory intent behind an employment

decision without inference or presumption. Maynard v. Bd. of Regents ,

342 F.3d 1281, 1289 (11th Cir. 2003).

3 8 . "Direct evidence is composed of 'only the most blatant remarks, whose

intent could be nothing other than to discriminate' on the basis of some

impermissible factor." Schoenfeld , 168 F.3d at 1266. Petitioner presented no

direct evidence of discrimination on the basis of a disability.

3 9 . "[D]irect evidence of intent is ofte n unavailable." Shealy v. City of

Albany, Ga. , 89 F.3d 804, 806 (11th Cir. 1996). For this reason, those who

claim to be victims of intentional discrimination "are permitted to establish

their cases through inferential and circumstantial proof." Kline v. T enn.

Valley Auth. , 128 F.3d 337, 348 (6th Cir. 1997).

40 . Where a complainant attempts to prove intentional discrimination

using circumstantial evidence, the shifting burden analysis established by

the United States Supreme Court in McDonnell Douglas Corp oration. v.

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

Burdine , 450 U.S. 248 (1981), is applied. Under this well - established model of

proof, the complainant bears the initial burden of establishing a prima facie case of discri mination. Once this burden is met, the respondent has the

burden of articulating a legitimate non - discriminatory basis for the adverse

action. The resident must then produce specific evidence demonstrating that

the reasons given by the respondent are a pre text for housing discrimination.

Housing Discrimination

4 1 . In the instant case, Petitioner alleges that she and her family were

unlawfully discriminated against regarding the terms and conditions of their

residency at Beach House due to her son's disab ility .

4 2 . T o prove a violation of section 760.23(2), the following elements must

be established by a preponderance of the evidence:

(1) Petitioner belongs to a class of persons whom the

Florida Fair Housing Act protects from unlawful

discrimination becau se of race, color, national origin, sex,

disability, familial status, or religion;

(2) Petitioner must have been qualified, ready, willing,

and able to receive the services or use facilities consistent with the terms, policies, and procedures of Responde nt;

(3) Petitioner must have requested services or use of

facilities, or attempted to use facilities consistent with the

terms and conditions, policies, and procedures established by Respondent for all persons who were qualified or eligible for services or use of facilities; and

(4) Respondents, with knowledge of Petitioner's protected

class, must have willfully failed or refused to provide services to Petitioner or permit use of the facilities under the same terms and conditions that were applicable to a ll

persons who were qualified or eligible for services or use

of the facilities.

See, e.g., Noah v. Assor , 379 F. Supp. 3d 1284, 1298 (S.D. Fla. 2019); Woolington v. 1st Orlando Real Estate Servs., Inc. , 2011 WL 3919715, at *2.

Petitioner Did Not Meet H e r Burden of Proof

4 3 . In this case, Petitioner provided no direct evidence of discrimination.

Accordingly, the burden - shifting analysis is appropriate. Petitioner

demonstrated by a preponderance of the evidence the first two elements of

the case -- that he r son, T.B. , suffers from a disability and that the family was

qualified, ready, willing, and able to receive the services or use facilities consistent with the terms, policies, and procedures of Respondent.

4 4 . However, Petitioner failed to demonstrate that she requested certain

services or use of the facilities in accordance with the policies and procedures of Respondent, and that Respondent willfully failed or refused to provide such services. Specifically, Petitioner did not offer evidence to establis h that she

requested a different apartment to resolve her issue. In addition, even if she

had made a request, it may not have assisted with the other noise disturbances related to yelling and screaming. Finally, Petitioner did not

offer sufficient evidence to establish that she was not permitted to use

Pay L ease to pay her rent. As a result, Petitioner did not meet her burden

regarding the third and fourth elements.

4 5 . Even assuming arguendo that Petitioner proved the elements of a

prima facie case of disc rimination, Respondent offered legitimate,

non - discriminatory reasons for any adverse actions. It is reasonable that

Respondent would request that an unauthorized occupant not be permitted

on the property after an incident involving law enforcement . It is also

reasonable that Respondent would not renew Petitioner’s lease after multiple

complaints of noise disturbances from her neighbors . Finally, i t is legitimate

that the apartment complex would not offer a first - floor apartment, if such an

apartment was no t requested , and if a first - floor apartment would not cure

the issue .

4 6 . While the undersigned applauds Petitioner's efforts in trying to

provide the best for her children , one of who m has a disability, there is no

basis in the record to determine that Petitioner was discriminated against on the basis of his disability. Therefore, the discrimination charge should be

dismissed .

R ECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of Law, it is

R ECOMMENDED that the Florida Commission on Human Relations issue a

final order dismissing Petitioner’s Complaint of discrimination.

D ONE A ND E NTERED this 4 th day of January , 202 1 , in Tallahassee, Leon

County, Florida.

Y OLONDA Y. G REEN

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 4 th day of January , 202 1 .

C OPIES F URN ISHED :

Tammy S. Barton, Agency Clerk

Florida Commission on Human Relations

4075 Esplanade Way ,

Room 110

Tallahassee, Florida 32399 - 7020

(eServed)

Arianne B. Suarez, Esquire

McGinness & Cicero

Suite 590

1000 Sawgrass Corporate Parkway

Sunrise, Florida 3 3323

(eServed)

Tiffani Crystal rea Bernard

Apartment 501

123 Hirth Road

Fernandina Beach, Florida 32034

(eServed)

Cheyanne Costilla, Gen eral Co unsel

Florida Commission on Human Relations

4075 Esplanade Way, Room 110

Tallahassee, Florida 32399

(eServ ed)

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 Or der in this

case.