21-000389 Jimmy And Gelene Stewart vs. Us Growth Investment, Inc., Et Al Status: Closed Recommended Order on Thursday, June 10, 2021.

Summary: Petitioners failed to meet the burden of proof.

S TATE OF F LORIDA

D IVISION OF A DMINISTRATIVE H EARINGS

J IMMY A ND G ELENE S TEWART ,

Petitioners ,

vs. Case No. 21 - 0389

US G ROWTH I NVESTMENT , I NC . , 1

Respondent .

/

R ECOMMENDE D O RDER

Pursuant to notice, Administrative Law Judge Lynne A. Quimby - Pennock

of the Division of Administrative Hearings ( Ñ D OAHÒ ) conducted an

evidentiary hearing by Zoom conference on May 28, 202 1, from Tallahassee,

Florida .

A PPEARANCES

For Petitioner s : No Appearance

For Respondent: Richard W. Withers, Esquire

Ward & Ketchersid, P.A .

1241 Airport Road, Suite H

Destin, Florida 32541

1 T he documentation provided by the Florida Commission of Human Relations , specifically

the Notic e of Determination of No Cause and the Determination (No Cause) , do es not reflect

who or what entity comprises the ÑET AL . Ò Although t he original complaint provides ÑUS

Growth Investment Inc, c/o Yunfeng XU, Registered Agent , Ò t he registered agent should n ot

be elevated to an ÑET ALÒ status . T herefore , the ÑET ALÒ has been removed from the style of

this case .

S TATEMENT OF T HE I SSUE S

Whether Respondent, US Growth Investment, Inc., discriminated against

Petitio ner s Jimmy and Gelene Stewart, 2 on the basis of race in violation of

the Florida Fair Housing Act (Ñthe ActÒ), chapter 760, part II, Florida

Statutes (2019), 3 and, if so, the relief to which Petitioners are entitled .

P RELIMINARY S TATEMENT

The Florida Comm ission on Human Relations ( Ñ FCHR Ò or ÑCommissionÒ )

and the United States Department of Housing and Urban Development

( Ñ HUD Ò ) administer the Act . In August 20 20 , Petitioners filed a housing

discrimination complaint with FCHR alleging Respondent discriminate d

against them based upon their race (African American), in violation of the

Act. FCHR investigated the complaint . O n December 30, 2020 , FCHR issued

a Ñ Notice of Determination of No Cause Ò ( Ñ Notice Ò ). The Notice was sent to

Petitioner s via certified mail , and provided in part, the following:

Based on the evidence obtained during the

investigation, the FCHR has determined that

reasonable cause does not exist to believe that a

discriminatory housing practice has occurred.

Accordingly, the above - referenced com plaint is

hereby dismissed.

Further, FCHRÔs ÑDETERMINATION (NO CAUSE)Ò statement provided

the results of its analysis of the facts as follows:

Complainants identify as African Americans. Thus,

Complainants belong to a class of persons whom

the Florida Fa ir Housing Act protects from

unlawful discrimination, based on race.

2 Petitioner s will collectively be referred to as Petitioners, however , individually they will be

referred to as Mr. Stewart or Mrs. Stewart .

3 All reference s to Florida Statutes are to the 2019 codification , unless otherwise stated.

Although Complainants provided Respondent two

paycheck stubs for Mr. Stewart, both

Complainants Ô drivers Ô licenses, background checks

on both Complainants, and their 2018 Tax Return,

Com plainants failed to provide a second year of tax

return, an additional month of paycheck stubs for

Mr. Stewart, and proof of employment and two

months of paycheck stubs for Ms. Stewart.

Complainants further did not submit the pre -

application on Zillow. Thu s, Complainant did not

make a bonified offer to rent. Complainant

contends in the allegations he believes Respondent

denied the ability to rent this house because of his

race, African American, however, Respondent

provided Drivers Ô Licenses for her tenants and a

copy of the leases showing she rents to African

Americans. Thus, the al l egation of discrimination

based on race was not supported by the evidence

reviewed during the investigation.

Therefore, based on the foregoing, the

Commission finds that there is not reasonable

cause to believe that a discriminatory

housing practice occurred in violation of

Section 760.23(1), Florida Statutes .

On J anuary 8 , 20 21 , Petitioner s executed a Petition for Relief

(ÑPetitionÒ). 4 In response to the PetitionÔs numeral Ñ5Ò (ÑTHE FOLLOWING

IS A CONCISE STATEMENT OF THE ULTIMATE FACTS ALLEGED,

INCLUDING THE SPECIFIC FACTS PETITIONER CONTENDS

WARRANT REVERSAL OR MODIFICATION OF THE COMMISSIONÔS

DETERMINATIONÒ), an additional page to the Petition was provided where

Petitioners alleged:

We received the Notice of Determination of No

Cause and we noticed several issues with it.

4 Petitioners completed a form: ÑSTATE OF FLOIRDA FLORIDA COMMISSION ON

HUMAN RELATIONS PETITION FOR RELIEFÒ which provided an outline of the requisite

information needed .

Under Section IV - Findings & Conclusions Ï

Section 760.23(1), FL Statutes the issues are as

follows:

- We stated in our initial conversations with the

Res pondent that we wanted to rent the property,

thus the reason for sending the documentation the

Respondent requested.

- During our conversations with the Respondent we

made it known that we were ready, willing,

qualified, and able to rent the property consi stent

with RespondentÔs terms and conditions.

- Respondent ceased communications with us after

we sent the requested initial documentation and

then the property was no longer available online.

Under the Results of the Analysis of Facts Section

the issues are as follows:

- The check stubs that were sent to the Respondents

were those of Mrs. Stewart, not Mr. Stewart.

Mr. Stewart does not receive check stubs thus the

reason for sending the 2018 & 2019 tax returns.

- After sending the background checks, IDs, r ecent

check stubs, and tax returns, we were never asked

to submit an additional two months of check stubs

for Mrs. Stewart.

- Upon RespondentÔs receipt of background s , IDs,

recent check stubs, and tax returns , we were never

asked by Respondent to proceed w ith completing

any type of application. During Mr. StewartÔs

conversations with Respondent, he asked her to

send over the application which was never received.

We are requesting that this information be sent up

to a Supervisor and have them give us a call at

[phone number redacted ].

In response to the PetitionÔs numeral Ñ6Ò (ÑRESPONDENT HAS

VIOLATED THE FOLLOWING FLORIDA STATUTE (Check One)Ò):

Petitioners checked the ÑFlorida Fair Housing Act, as AmendedÒ and alleged:

All requested information was submit ted to the

Respondent in a timely manner. The Respondent

ceased all communication with us after receiving

requested information which showed we were more

than qualified to rent the property. The facts that

were stated in the Determination letter were not

l aid out as they happened. RespondentÔs receipt of

requested information, which made her aware of

our race, was when communication was stopped on

RespondentÔs part.

On February 3, 2021, 5 FCHR referred the case to DOAH requesting the

assignment of an admini strative law judge to conduct proceedings required

by law and to submit a recommended order to the Commission. Although an

Initial Order was issued on February 4, 2021, seeking input to facilitate

scheduling a hearing, neither party provided any of the req uested

information. On February 15, 2021, a Notice of Hearing by Zoom Conference

(ÑHearing NoticeÒ) and an Order of Pre - hearing Instructions (ÑOPIÒ) were

issued to both parties.

On March 11, 2021, Petitioners filed a letter asking for a continuance of

th e hearing scheduled for March 16, 2021. A telephonic motion hearing was

held on March 15, 2021. During the telephonic hearing, Petitioners expressed

they had consulted with an attorney to represent them in this case. However,

the attorney would not commit to the representation unless Petitioners

secured additional time for the attorney to conduct discovery and prepare for

the hearing. At the conclusion of the telephonic hearing, the parties were

5 Although FCHRÔs ÑCERTIFICATE OF TRANSMITTALÒ provides that the referral was

transmitted on February 1, 2021, the referral was received and filed at DOAH at 8:36 a.m.

on February 3, 2021.

advised the March 16, 2021 , hearing was cancelled. Further, th ey were

directed to communicate with each other and file a status report by

March 22, 2021 , with no less than three mutually agreeable dates prior to

May 28, 2021 , for the hearing to be held. The Order Rescheduling Hearing 6

by Zoom Conference was issued on March 23, 2021, rescheduling the hearing

to May 28, 2021 . 7

The Zoom Conference hearing took place on May 28, 2021. Petitioners did

not attend the Zoom hearing. The undersigned verified with her judicial

assistant that Petitioners had not contacted her t o report difficulty with the

Zoom connection. After waiting a sufficient amount of time, the undersigned

commenced the hearing.

RespondentÔs counsel requested its Composite Exhibit 1 be received in

evidence, and it was admitted. Although a court reporter was present for the

duration of the hearing, a transcript was not ordered. At the end of the

hearing, the undersigned instructed that any proposed recommended orders

(ÑPROsÒ) should be filed within ten days of the hearing or by the close of

business on Ju ne 7, 2021. 8 To date n o PRO s have been filed.

F INDINGS OF F ACT

1. Petitioners did not attend the Zoom Conference hearing or provide any

direct evidence to support their claim of discrimination.

2. RespondentÔs counsel introduced RespondentÔs representati ve.

6 The parties sent email communications to the undersignedÔs j udicial assistant regarding

possible dates for a hearing, but failed to timely file the s tatus r eport with the requested

information.

7 Petitioners requested a 60 - day continuance. The length of the actual continuance : 74 days.

Further, no attorney entere d a Notice of Appearance on behalf of Petitioners.

8 The tenth day after the hearing fell on a weekend; thus, the PROs were to be filed on the

next business day, Monday, June 7, 2021.

C ONCLUSIONS OF L AW

3. The Division of Administrative Hearings has jurisdiction over the

parties to and the subject matter of this proceeding pursuant to sections

120.569, 120.57(1), and 760.35(3)(b), Florida Statutes.

4. The Act is codified in s ecti ons 760.20 through 760.37, and prohibits

discriminatory housing practices. A Ñdiscriminatory housing practiceÒ means

an act that is unlawful pursuant to section 760.23(2), (8), and (9 ).

5. Section 760.23(2) provides:

(2) It is unlawful to discriminate agai nst 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 race, color, national origin, sex,

handicap, familial status, or religion .

6. Section 760.34(5) provides:

(5) In any proceeding brought pursuant to this

section or s. 760.35, the burden of proof is on the

complainant.

7. Petitioners ha ve the burden of proving by a preponderance of the

evidence that Respondent violated the Act by discrimi nating against them

based on their race.

8 . The preponderance of the evidence standard requires proof by Ñ the

greater weight of the evidence, Ò Black's Law Dictionary , 1201 (7th ed. 1999),

or evidence that Ñ more likely than not Ò tends to prove a certain pr oposition.

See Gross v. Lyons , 763 So. 2d 276, 289 n.1 (Fla. 2000).

9 . Petitioners did not attend the Zoom Conference hearing or present any

direct evidence supporting their allegation. Therefore, Petitioners did not

meet their burden of proof that Respond ent discriminated against them

based on their race .

R ECOMMENDATION

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

R ECOMMENDED that the Florida Commission on Human Relations enter a

final order dismissing the Petition for Relief fil ed by Petitioners in its

entirety.

D ONE A ND E NTERED this 10th day of June , 2021 , in Tallahassee, Leon

County, Florida.

S

L YNNE A. Q UIMBY - P ENNOCK

Administrative Law Judge

1230 Apalachee Parkway

Tallahassee, Florida 32399 - 3060

(850) 488 - 9675

www.doah.sta te.fl.us

Filed with the Clerk of the

Division of Administrative Hearings

this 10th day of June, 2021 .

C OPIES F URNISHED :

Tammy S. Barton, Agency Clerk Richard W. Withers, Esquire

Florida Commission on Human Relations Ward & Ketchersid, P.A.

4075 Esplanade Way , Room 110 1241 Airport Road , Suite H

Tallahassee, Florida 32399 - 7020 Destin, Florida 32541

Ji mmy Stewart Gelene Stewart

Box 700 Box 700

7862 West Irlo Bronson Highway 7862 West Irlo Bronson Highway

Kissimmee, Florida 34747 Kissimmee, Florida 34747

Cheyanne Costilla, General Counsel

Florida Commission on Human Relations

4075 Esplanade Way , Room 110

Tallahassee, Florida 32399 - 7020

N OTICE OF R IGHT T O S UBMIT E XCEPTIONS

All parties have the right to submit written exceptions within 15 days f rom

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.