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Home / Complaints / Final Orders / Final Orders 2009 / FCHR Order No. 09-058

FCHR Order No. 09-058

Date of Release: 07/01/2009

STATE OF FLORIDA

COMMISSION ON HUMAN RELATIONS

GIGI TRINIDAD

HUD Case No. 04-08-1130-8

Petitioner

 

v.

FCHR Case No. 28-92653H

   

FELIX RAMIREZ AND GUEVARA MANAGEMENT II

DOAH Case No. 08-5608

Respondent

FCHR Order No. 09-058

   

FINAL ORDER DISMISSING PETITION FOR

RELIEF FROM A DISCRIMINATORY HOUSING PRACTICE

Preliminary Matters

Petitioner Gigi Trinidad filed an amended housing discrimination complaint pursuant to the Fair Housing Act, Sections 760.20 - 760.37, Florida Statutes (2007), alleging that Respondents Felix Ramirez and Guevara Management II committed discriminatory housing practices on the bases of Petitioner’s disability / handicap and religion (Catholic) by harassing Petitioner and by not servicing Petitioner’s apartment, specifically by cutting off the water to the apartment, failing to timely repair a hot water heater, refusing to repair the air conditioner, and entering the apartment unannounced.

The allegations set forth in the complaint were investigated, and, on October 15, 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 by video teleconference at sites in Miami and Tallahassee, Florida, on February 12, 2009, before Administrative Law Judge Claude B. Arrington.

Judge Arrington issued a Recommended Order of dismissal, dated April 8, 2009.

The Commission panel designated below considered the record of this matter and determined the action to be taken on the Recommended Order.

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

FCHR Order No. 09-058

Page 2

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, “Right to Submit Exceptions,” received by the Commission on April 20, 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 May 7, 2009.

With regard to exceptions to Recommended Orders, the Administrative Procedure Act states, “The final order shall include an explicit ruling on each exception, but an agency need not rule on an exception that does not clearly identify the disputed portion of the recommended order by page number or paragraph, that does not identify the legal basis for the exception, or that does not include appropriate and specific citations to the record.” Section 120.57(1)(k), Florida Statutes (2007); see, also, Bartolone v. Best Western Hotels, FCHR Order No. 07-045 (August 24, 2007).

A review of Petitioner’s exceptions document suggests that it does not comply with this statutory provision.

Nevertheless, it can be said that the document generally excepts to the Administrative Law Judge’s finding that no discriminatory housing practice occurred in this matter.

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).

FCHR Order No. 09-058

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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 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). As indicated, above, 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).

Based on the foregoing, Petitioner’s exceptions are rejected.

Dismissal

The Petition for Relief and Amended 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 1st day of July , 2009.

FOR THE FLORIDA COMMISSION ON HUMAN RELATIONS:

Commissioner Donna Elam, Panel Chairperson;

Commissioner Gayle Cannon; and

Commissioner Mario M. Valle

FCHR Order No. 09-058

Page 4

Filed this 1st day of July , 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:

Gigi Trinidad

420 Southwest 9th Street, Apt. 5

Post Office Box 11095

Miami, FL 33101

Felix Ramirez

937 Southwest 7th Avenue, No. 24

Miami, FL 33130

Guevara Management II

c/o Rodo Guevara

14221 Southwest 34th Street

Miami, FL 33175

Claude B. Arrington, 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 1st day of July , 2009.

By: _____________________________

Clerk of the Commission

Florida Commission on Human Relations