98-001925 Lynda Dianne Mccloud vs. Barbara S. Jones Status: Closed Recommended Order on Wednesday, August 26, 1998.

Summary: Petitioner failed to present sufficient evidence to establish a prima facie case of discrimination housing practices.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

LYNDA DIANNE McCLOUD, )

)

Petitioner, )

)

vs. ) Case No. 98-1925

)

BARBARA S. JONES, )

)

Respondent. )

____________________________________)

RECOMMENDED ORDER

Upon due notice, William R. Cave, an Administrative Law

Judge for the Division of Administrative Hearings, held a formal

hearing in this matter on July 13, 1998, in Dade City, Florida.

APPEARANCES

For Petitioner: Lynda Dianne McCloud, pro se

Post Office Box 2050

Zephyrhills, Florida 33539-2050

For Respondent: William A. Kebler, Esquire

Fowler, White, Gillen, Boggs,

Villareal and Banker, P. A.

Post Office Box 210

St. Petersburg, Florida 33731

Laura Jones, Esquire

Hill, Ward and Henderson, P.A.

Post Office Box 2231

Tampa, Florida 33601

STATEMENT OF THE ISSUE

Did Respondent Barbara S. Jones deny Petitioner Lynda Dianne

McCloud housing because of her race (black) in violation of the

Fair Housing Act, Sections 760.20 through 760.37, Florida

Statutes?

PRELIMINARY MATTERS

On February 14, 1997, Petitioner filed a Housing

Discrimination Complaint against Respondent alleging that

Respondent had refused to rent Petitioner an apartment because of

her race (black) and her sex (female). Petitioner further

alleged that Respondent had falsely denied that housing was

available. On March 31, 1998, the Florida Commission on Human

Relations (Commission) entered its Determination Of No Reasonable

Cause, as to Petitioner’s previously filed Housing Discrimination

Complaint against Respondent. Thereafter, Petitioner filed an

unsigned Petition For Relief (Petition) with the Commission The

record indicates that the Petition was filed with the Commission

on April 16, 1998. The Petition alleges that Petitioner was

denied housing by Respondent because of her race (black). By a

Transmittal of Petition date April 22, 1998, the Petition was

referred to the Division of Administrative Hearings (Division)

for the assignment of an Administrative Law Judge and for the

conduct of a hearing.

At the hearing, Petitioner testified in her own behalf and

presented the testimony of Mary Reese and Barbara Jones.

Petitioner’s Composite Exhibit 1 and Exhibit 2 were received as

evidence. Respondent presented the testimony of Candice

Whitworth, Deanna Stamper, Lewis Tanno and Lynda McCloud.

Respondent’s Exhibits 1 - 4, Composite Exhibits 5 - 6, and

Exhibits 7 - 14 were received as evidence.

A transcript of this proceeding was filed with the Division

on July 27, 1998. Respondent timely filed her proposed findings

of fact and conclusions of law. Petitioner elected not to file

any proposed findings of fact and conclusions of law.

FINDINGS OF FACT

Upon consideration of the oral and documentary evidence

adduced at the hearing, the following relevant findings of fact

are made:

1. Petitioner is an African-American (black) female who

alleges that Respondent denied her housing because of race

(black) in violation of the Fair Housing Act,

Sections 760.20 through 760.37, Florida Statutes.

2. Respondent is the owner of nine rental duplexes located

on Scottsdale Court, in Zephrhills, Florida, which Respondent

built in 1982. Since owning and managing these units, Respondent

has never previously been accused of violating the Fair Housing

Act.

3. Respondent derives her primary income from the rental of

the units located on Scottsdale Court.

4. When vacancies occur in the apartments on Scottsdale

Court, Respondent regularly advertises the availability in the

Pasco Shopper .

5. In February 1997, Petitioner, in response to an

advertisement in the Pasco Shopper , first contacted Respondent

about an apartment. Respondent advised Petitioner that there

were no apartments currently available but that one would

probably become available later.

6. On or about February 26, 1997, Respondent advertised the

availability of a two-bedroom, one-bath apartment located at

38547 Scottsdale Court.

7. On Saturday, March 1, 1997, Petitioner contacted

Respondent by leaving a telephone message in response to the

advertisement in the Pasco Shopper for the apartment located at

38547 Scottsdale Court.

8. On Saturday, March 1, 1997, Respondent returned the

telephone call to Petitioner, discussed the apartment located at

38547 Scottsdale Court, and set an appointment for 2:00 p.m. the

next day to personally show the unit to Petitioner.

9. On Sunday, March 2, 1997, when Respondent returned home

from church, she received a telephone message from Petitioner

advising Respondent that Petitioner would not be able to make the

meeting scheduled for 2:00 p.m. that day and asking that

Respondent call Petitioner.

10. On Sunday, March 2, 1997, at approximately 1:30 p.m.,

Respondent returned the call to Petitioner and rescheduled the

appointment for 7:00 p.m. that evening.

11. On Sunday, March 2, 1997, Respondent traveled from her

home in Dade City, Florida, to the apartment in Zephyrhills,

Florida, to attend the meeting to show Petitioner the apartment

at 38547 Scottsdale Court. Petitioner failed to attend that

meeting.

12. At approximately 8:00 a.m. the next morning, Monday,

March 3, 1997, Respondent received a telephone call from

Petitioner advising that Petitioner had missed the appointment

because she had to take someone to the emergency room at East

Pasco Medical Center for treatment. Petitioner expressed her

continued interest in the apartment and an appointment to see the

unit was rescheduled for 10:15 a.m. that morning.

13. On Monday, March 3, 1997, Respondent showed the

apartment located at 38547 Scottsdale Court to Petitioner.

14. After showing Petitioner the apartment, Respondent

verbally explained the details regarding the rental rate and

deposits, and confirmed those details in writing on a document

provided to Petitioner. Petitioner offered no objection to the

manner in which Respondent required payment of rent and security

deposits.

15. The manner in which Respondent described the payment of

rent and security deposits for the apartment located at

38547 Scottsdale Court to Petitioner is the same manner in which

Respondent requires the payment of rent and security deposits on

other units. It is also the same manner in which Respondent

required payment for the apartment located at 38547 Scottsdale

Court when rented to the current tenant, Deanna Stamper.

16. On the morning of March 3, 1997, Respondent also

provided Petitioner with a tenant application. This tenant

application was the same form used by Respondent for all of the

units at Scottsdale Court.

17. Petitioner did not complete the tenant application or

provide any deposit to Respondent on March 3, 1997, while meeting

with Respondent. Respondent advised Petitioner that she did not

hold apartments for any prospective tenant until he or she had

completed an application and returned it to Respondent with a

deposit. Despite these instructions, Petitioner advised

Respondent that Petitioner would take the application with her,

complete it at home, and return the application by mail with a

deposit.

18. When Respondent returned to her home after showing the

apartment to Petitioner, she received a telephone message from

another prospective tenant, Deanna Stamper, requesting an

opportunity to see the apartment.

19. Respondent returned to the apartment at approximately

12:15 p.m. on Monday, March 3, 1997, and showed the apartment to

Deanna Stamper. Respondent provided Deanna Stamper with a tenant

application which Deanna Stamper completed while at the

apartment, and provided Respondent with a deposit.

20. Respondent returned to her home after showing the

apartment to Deanna Stamper, verified the information provided on

her application, and approved Deanna Stamper as the tenant for

apartment located at 38547 Scottsdale Court. At the time

Respondent approved Deanna Stamper as the tenant for the

apartment, Respondent had received neither a completed

application nor a deposit from Petitioner.

21. After approving Deanna Stamper as the tenant for the

apartment located at 38547 Scottsdale Court, Respondent

telephoned Petitioner at approximately 3:00 p.m. on Monday,

March 3, 1997, to advise Petitioner that the unit at 38547

Scottsdale Court was no longer available but that another unit

two doors away, at 38553 Scottsdale Court, would become available

in the near future but Respondent was not sure of the date that

it would be available.

22. When Respondent advised Petitioner that the apartment

was no longer available, Petitioner hung up the telephone. Later

that afternoon, Petitioner called Respondent back by telephone,

and was verbally abusive toward Respondent, and claimed that

Respondent had discriminated against her because she was black.

23. In the rental application process, Respondent uses the

same application form for all tenants and all apartments.

24. Respondent provided the same information regarding

payment of rent and deposits to Petitioner that she provides to

all other prospective tenants.

25. Respondent uses the same method of processing and

approving all applications for prospective tenants.

26. Prior to showing the apartment to Petitioner,

Respondent had approved other African-American tenants.

Currently, Respondent has African-American tenants.

27. Based on Petitioner's past history and her record, it

is clear that Petitioner would not have qualified to rent the

apartment at 38547 Scottsdale Court even if she had filed the

application with Respondent.

CONCLUSIONS OF LAW

28. The Division of Administrative Hearings has

jurisdiction over the parties and the subject matter of this

proceeding pursuant to Sections 120.57(1), Florida Statutes.

29. Section 760.23(1), Florida Statutes, provides as

follows:

(1) It is unlawful to refuse to sell or rent

after the making of a bona fide offer, to

refuse to negotiate for the sale or rental

of, or otherwise to make unavailable or deny

a dwelling to any person because of race,

color, national origin, sex, handicap,

familial status, or religion.

30. Section 760.34(5), Florida Statutes, provides as

follows:

(5) In any proceeding brought pursuant to

this section or s. 760.35, the burden of

proof is on the complainant.

31. As the complainant, Petitioner has the burden of

establishing facts to prove a prima facie case by a preponderance

of the evidence. U.S. Department of Housing and Urban

Development v. Blackwell , 908 F. 2d 864 (11th Cir. 1990). For

Petitioner to prove her prima facie case, she must establish

that: (a) she is a member of a racial minority; (b) she applied

for and was qualified to rent the apartment owned by Respondent;

(c) Respondent rejected Petitioner; and (d) the apartment

remained available thereafter. McDonnell Douglas Corp. V. Green ,

411 U.S. 792 (1973); Hill v. Seaboard Coast Line R.R. , 885 F. 2d.

804 (11th Cir. 1989); Selden Apartments v. U.S. Dept of Housing

and Urban Development , 785 F. 2d 152 (6th Cir. 1986). While

Petitioner has proven that she is a member of a racial minority,

she has failed to prove the other necessary elements to establish

a prima facie case. Therefore, Petitioner has failed to

establish a prima facie case. Since Petitioner has failed to

establish a prima facie case, the burden does not shift to

Respondent to articulate a legitimate, nondiscriminatory reasons

or her actions. Texas Dept. Of Community Affairs v. Burdine , 450

U.S. 248 (1981).

32. Respondent argues that she is entitled to attorney's

fees because she was the prevailing party. Without question,

Respondent was the prevailing party in this proceeding. However,

in order to award attorney's fees, there must be some authority

for the award of attorney's fees. In the instant case,

Section 57.111, Florida Statutes, does not apply because a state

agency did not initiate this proceeding. Likewise,

Section 760.35(3)(b), Florida Statutes, does not apply because

there was no finding that a discriminatory housing practice had

occurred. While the provisions of Section 120.595, Florida

Statutes, are supplemental to, and do not abrogate, other

provisions allowing the award of attorney's fees in

administrative proceedings, there has been no showing that

Petitioner participated in this proceeding for an improper

purpose.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of

Law, it is recommended that the Commission enter a final order

dismissing Petitioner's Petition For Relief and denying

Respondent's request for attorney's fees.

DONE AND ENTERED this 26th day of August, 1998, in

Tallahassee, Leon County, Florida.

WILLIAM R. CAVE

Administrative Law Judge

Division of Administrative Hearings

The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-3060

[phone] SUNCOM 278-9675

Fax Filing [phone]

Filed with the Clerk of the

Division of Administrative Hearings

this 26th day of August, 1998.

COPIES FURNISHED:

Lynda Dianne McCloud

Post Office Box 2050

Zephyrhills, Florida 33539-2050

William A. Kebler, Esquire

Fowler, White, Gillen, Boggs,

Villareal and Banker, P.A.

Post Office Box 210

St. Petersburg, Florida 33731

Laura Jones, Esquire

Hill, Ward and Henderson, P.A.

Post Office Box 2231

Tampa, Florida 33601

Sharon Moultry, Clerk

Human Relations Commission

Building F, Suite 240

325 John Knox Road

Tallahassee, Florida 32303-4149

Dana Baird, General Counsel

Human Relations Commission

Building F, Suite 240

325 John Knox Road

Tallahassee, Florida 32303-4149

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.