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Home / Complaints / Final Orders / Final Orders 2009 / FCHR Order No. 09-055

FCHR Order No. 09-055

Date of Release: 05/18/2009

STATE OF FLORIDA

COMMISSION ON HUMAN RELATIONS

DANIEL CONRAD KING

HUD Case No. 04-08-0969-8

Petitioner

 

v.

FCHR Case No. 28-92590H

   

STEPHEN MCCORMICK AND SCOTT LEONARD

DOAH Case No. 08-4728

Respondent

FCHR Order No. 09-055

   

FINAL ORDER DISMISSING PETITION FOR

RELIEF FROM A DISCRIMINATORY HOUSING PRACTICE

Preliminary Matters

Petitioner Daniel Conrad King filed a housing discrimination complaint pursuant to the Fair Housing Act, Sections 760.20 - 760.37, Florida Statutes (2007), alleging that Respondents Stephen McCormick and Scott Leonard committed discriminatory housing practices on the basis of Petitioner’s disability by failing to accommodate Petitioner’s request for a move from a second floor apartment to a first floor apartment and by retaliating against Petitioner for an eviction proceeding brought against Petitioner which Respondents allegedly lost.

The allegations set forth in the complaint were investigated, and, on August 19, 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 New Port Richey, Florida, on November 21, 2008, before Administrative Law Judge Carolyn S. Holifield.

Judge Holifield issued a Recommended Order of dismissal, dated March 5, 2009.

Pursuant to notice, public deliberations were held on May 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.

FCHR Order No. 09-055

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Findings of Fact

A transcript of the proceeding before the Administrative Law Judge was not filed with the Commission. In the absence of a transcript of the proceeding before the

Administrative Law Judge, the Recommended Order is the only evidence for the Commission to consider. See National Industries, Inc. v. Commission on Human

Relations, et al., 527 So. 2d 894, at 897, 898 (Fla. 5th DCA 1988). Accord, Hall v. Villages of West Oaks HOA, FCHR 08-007 (January 14, 2008), Beach-Gutierrez v. Bay Medical Center, FCHR Order No. 05-011 (January 19, 2005), and Waaser v. Streit’s Motorsports, FCHR Order No. 04-157 (November 30, 2004).

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

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 adopt the Administrative Law Judge’s conclusions of law.

Exceptions

Petitioner filed exceptions to the Administrative Law Judge’s Recommended Order in a document entitled, “Exceptions to Recommended Order,” received by the Commission on March 19, 2009.

There is no indication on the document that it was provided to Respondents as is required by Fla. Admin. Code R. 28-106.104(4) and Fla. Admin. Code R. 28-106.110. However, the Commission published the document to the Respondents, and placed the document in the record of this case, through the issuance of a Notice of Ex Parte Communication, mailed to the parties on March 24, 2009.

The document sets out exceptions to specific Recommended Order “findings of fact” paragraphs (2, 3, 5, 6, 8, 11, 12, 13, 14) and to specific Recommended Order “conclusions of law” paragraphs (20, 21, 22, 23, 25).

findings of fact exceptions

In the absence of a transcript of the proceeding before the Administrative Law Judge, the Commission is bound by the facts found in the Recommended Order, since there is no way for the Commission to determine the extent to which the facts found are supported by the testimony presented. Gainey v. Winn Dixie Stores, Inc., FCHR Order No. 07-054 (October 12, 2007).

With regard to findings of fact set out in Recommended Orders, the Administrative Procedure Act states, “The agency may not reject or modify the findings of fact unless the agency first determines from a review of the entire record , and states with

FCHR Order No. 09-055

Page 3

particularity in the order, that the findings of fact were not based on competent substantial evidence or that the proceedings on which the findings were based did not comply with the essential requirements of law [emphasis added].” Section 120.57(1)(l), Florida Statutes (2007). In the absence of a transcript of the proceeding before the Administrative Law Judge, the Recommended Order is the only evidence for the Commission to consider. See, National Industries, Inc., supra. Accord, Hall, supra, Jones v. Suwannee County School Board, FCHR Order No. 06-088 (September 11, 2006), Johnson v. Tree of Life, Inc., FCHR Order No 05-087 (July 12, 2005), Beach-Gutierrez, supra, and Waaser, supra.

Further, 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).

conclusions of law exceptions

With regard to the conclusions of law set out in the Recommended Order, as indicated, above, we have concluded that the conclusions of law result in a correct disposition of the case.

conclusion

Based on the foregoing, 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.

FCHR Order No. 09-055

Page 4

DONE AND ORDERED this 18th day of May , 2009.

FOR THE FLORIDA COMMISSION ON HUMAN RELATIONS:

Commissioner Donna Elam, Panel Chairperson;

Commissioner Watson Haynes, II; and

Commissioner Billy Whitefox Stall

Filed this 18th day of May , 2009,

in Tallahassee, Florida.

________________________________

Violet Crawford, Clerk

Commission on Human Relations

2009 Apalachee Parkway, Suite 200

Tallahassee, FL 32301

(850) 488-7082

Copies furnished to:

Daniel C. King

1401 Marathon Key Drive

Apartment 103

Tampa, FL 33612

Stephen McCormick and Scott Leonard

c/o Stephen McCormick

Omega Properties Investments, LLC

4715 Land O’Lakes Boulevard, No. 6

Land O’Lakes, FL 34639

Carolyn S. Holifield, 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 18th day of May , 2009.

By: _____________________________

Clerk of the Commission

Florida Commission on Human Relations