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Home / Complaints / Final Orders / Final Orders 2009 / FCHR Order No. 09-014

FCHR Order No. 09-014

Date of Release: 02/17/2009

STATE OF FLORIDA

COMMISSION ON HUMAN RELATIONS

VICTORIA LANEY

HUD Case No. 04-08-0252-8

Petitioner

 

v.

FCHR Case No. 27-92356H

   

SPENCER SOLOMON

DOAH Case No. 08-2670

Respondent

FCHR Order No. 09-014

   

FINAL ORDER DISMISSING PETITION FOR

RELIEF FROM A DISCRIMINATORY HOUSING PRACTICE

Preliminary Matters

Petitioner Victoria Laney filed a housing discrimination complaint pursuant to the Fair Housing Act, Sections 760.20 - 760.37, Florida Statutes (2007), alleging that Respondent Spencer Solomon committed a discriminatory housing practice by retaliating against Petitioner for having testified in another fair housing case.

The allegations set forth in the complaint were investigated, and, on April 18, 2008, the Executive Director issued a determination finding that there was no reasonable cause to believe that a discriminatory housing practice had occurred.

Petitioner filed a Petition for Relief from a Discriminatory Housing Practice and the case was transmitted to the Division of Administrative Hearings for the conduct of a formal proceeding.

An evidentiary hearing was held in Orlando, Florida, on August 26, 2008, before Administrative Law Judge R. Bruce McKibben.

Judge McKibben issued a Recommended Order of dismissal, dated November 19, 2008.

Pursuant to notice, public deliberations were held on February 12, 2009, by means of Communications Media Technology (namely, telephone) before this panel of Commissioners. The public access point for these telephonic deliberations was the Office of the Florida Commission on Human Relations, 2009 Apalachee Parkway, Suite 200, Tallahassee, Florida, 32301. At these deliberations, the Commission panel determined the action to be taken on the Recommended Order.

Findings of Fact

We find the Administrative Law Judge’s findings of fact to be supported by competent substantial evidence.

We adopt the Administrative Law Judge’s findings of fact.

FCHR Order No. 09-014

Page 2

Conclusions of Law

We find the Administrative Law Judge’s application of the law to the facts to result in a correct disposition of the matter.

We note that the conclusions of law in the Administrative Law Judge’s Recommended Order cite provisions of the Florida Civil Rights Act of 1992 instead of the Fair Housing Act, and, in fact, conclude with the recommendation that the Commission find Respondent “not guilty of an unlawful employment practice.” Recommended Order, ¶ 25 and “Recommendation” section.

Nevertheless, the most important paragraphs of the Recommended Order, in our view, are paragraphs 28 and 29.

In the first, the Administrative Law Judge applies the test for establishing a prima facie case of retaliation and concludes that such a showing has not been established, because there is no showing that Respondent, Spencer Solomon, took any action against Petitioner. Recommended Order, ¶ 28.

In the second, the Administrative Law Judge notes that the other entity that could have been considered to have taken some sort of action against Petitioner, the Board of Directors of the Hammocks Homeowners’ Association, was not even a party to the case. Recommended Order, ¶ 29.

Therefore, to the extent that the Administrative Law Judge’s citations to the Florida Civil Rights Act of 1992 are in error, they are, in our view, harmless error.

We conclude, therefore, that no discriminatory housing practice occurred in this matter (as opposed to no “unlawful employment practice” having occurred, as indicated by the Administrative Law Judge).

With these comments, we adopt the Administrative Law Judge’s conclusions of law.

Exceptions

Petitioner filed exceptions to the Recommended Order in a letter to the Commission’s Chief Legal Counsel, received by the Commission on December 4, 2008. The document contains 5 numbered exceptions.

Exception 1 excepts to the Administrative Law Judge’s denial of Petitioner’s request to add Respondents to the Petition for Relief. The Administrative Law Judge dealt with this issue in the Recommended Order, stating, “Just prior to the final hearing in this matter, Petitioner attempted to amend the style of the case to add the management company which worked for the Homeowners’ Association and its vice-president as named Respondents. Inasmuch as that would have created an entirely new cause of action, the request was denied. Neither at that time, nor later, did Petitioner request adding the Homeowners’ Association or its Board as a Respondent.” Recommended Order, Endnote 1.

FCHR Order No. 09-014

Page 3

In our view, there is no legal basis to disturb the Administrative Law Judge’s decision on this issue given the Administrative Law Judge’s finding that amending the Petition for Relief would have created a new cause of action.

Exceptions 2, 3, 4, and 5, take issue with facts found, facts not found, and /or inferences drawn from the evidence presented.

The Commission has stated, “It is well settled that it is the Administrative Law Judge’s function ‘to consider all of the evidence presented and reach ultimate conclusions of fact based on competent substantial evidence by resolving conflicts, judging the credibility of witnesses and drawing permissible inferences therefrom. If the evidence presented supports two inconsistent findings, it is the Administrative Law Judge’s role to decide between them.’ Beckton v. Department of Children and Family Services, 21 F.A.L.R. 1735, at 1736 (FCHR 1998), citing Maggio v. Martin Marietta Aerospace, 9 F.A.L.R. 2168, at 2171 (FCHR 1986).” Barr v. Columbia Ocala Regional Medical Center, 22 F.A.L.R. 1729, at 1730 (FCHR 1999). Accord, Bowles v. Jackson County Hospital Corporation, FCHR Order No. 05-135 (December 6, 2005).

Petitioner’s exceptions are rejected.

Dismissal

The Petition for Relief and Housing Discrimination Complaint are DISMISSED with prejudice.

The parties have the right to seek judicial review of this Order. The Commission and the appropriate District Court of Appeal must receive notice of appeal within 30 days of the date this Order is filed with the Clerk of the Commission. Explanation of the right to appeal is found in Section 120.68, Florida Statutes, and in the Florida Rules of Appellate Procedure 9.110.

DONE AND ORDERED this 17th day of February , 200909.

FOR THE FLORIDA COMMISSION ON HUMAN RELATIONS:

Commissioner Donna Elam, Panel Chairperson;

Commissioner Onelia A. Fajardo; and

Commissioner Watson Haynes, II

Filed this 17th day of February , 2009,

in Tallahassee, Florida.

FCHR Order No. 09-014

Page 4

________________________________

Violet Crawford, Clerk

Commission on Human Relations

2009 Apalachee Parkway, Suite 200

Tallahassee, FL 32301

(850) 488-7082

Copies furnished to:

Victoria Laney

830 Hammocks Drive

Ocoee, FL 34761

Spencer Solomon

c/o Thomas Ray Slaten, Esq.

Larsen & Associates, P.A.

300 South Orange Avenue, Suite 1200

Orlando, FL 32801

R. Bruce McKibben, Administrative Law Judge, DOAH

James Mallue, Legal Advisor for Commission Panel

I HEREBY CERTIFY that a copy of the foregoing has been mailed to the above listed addressees this 17th day of February , 2009.

By: _____________________________

Clerk of the Commission

Florida Commission on Human Relations