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Home / Complaints / Final Orders / Final Orders 2010 / FCHR Order No. 10-053

FCHR Order No. 10-053

Date of Release: 06/24/2010

STATE OF FLORIDA

COMMISSION ON HUMAN RELATIONS

JAMES WERGELES

HUD Case No. 04-09-0883-8

Petitioner

 

v.

FCHR Case No. 2009H0219

   

TREGATE EAST CONDO ASSOCIATION, INC.

DOAH Case No. 09-4204

   

Respondent

FCHR Order No. 10-053

   

FINAL ORDER DISMISSING PETITION FOR

RELIEF FROM A DISCRIMINATORY HOUSING PRACTICE

Preliminary Matters

Petitioner James Wergeles filed an amended housing discrimination complaint pursuant to the Fair Housing Act, Sections 760.20 - 760.37, Florida Statutes (2007), alleging that Respondent Tregate East Condo Association, Inc., committed discriminatory housing practices against Petitioner on the bases of Petitioner’s religion (Jewish) and disability, and on the basis of retaliation.

The allegations set forth in the complaint were investigated, and, on June 30, 2009, the Executive Director issued a determination finding that the Commission did not have jurisdiction of the matter.

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 Sarasota and Tallahassee, Florida, on March 10, 2010, before Administrative Law Judge Daniel Manry.

Judge Manry issued a Recommended Order of dismissal, dated April 15, 2010.

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

We find the Administrative Law Judge’s findings of fact to be supported by competent substantial evidence, with the exception of part of the findings of fact set out in Recommended Order, ¶ 12, relating to Respondent’s entitlement to attorney’s fees and costs.

FCHR Order No. 10-053

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We note that the Administrative Law Judge found, “Respondent seeks attorney’s fees in this proceeding pursuant to Section 120.595, Florida Statutes (2009). Pursuant to Subsection 120.595(1)(c), Florida Statutes (2009), this Recommended Order finds that Petitioner has participated in this proceeding for an improper purpose.” Recommended Order, ¶ 4. The Administrative Law Judge also found, “Petitioner participated in this proceeding for a frivolous purpose within the meaning of Subsection 120.595(1)(e)1. Florida Statutes (2009). The Administrative Law Judge further found, “Respondent is the prevailing party in this proceeding, and Petitioner is the non-prevailing party. Petitioner has participated in two or more similar proceedings involving Respondent.” Recommended Order, ¶ 11. Nevertheless, the Administrative Law Judge declined to award attorney’s fees and costs pursuant to Section 120.595, Florida Statutes, indicating, “No finding is made as to the reasonableness of the attorney fees [and] costs because Respondent did not include an hourly rate and did not submit an affidavit of fees and costs.” Recommended Order, ¶ 12.

However, the Administrative Law Judge found, “…the referring agency has statutory authority to award fees and costs in the final order pursuant to Section 760.11(7), Florida Statutes.” Recommended Order, ¶ 12. Further, the Administrative Law Judge recommended that the Commission “enter a final order dismissing the Petition for Relief and requiring Petitioner to pay reasonable attorney’s fees and costs in the amounts to be determined by the Commission after hearing further evidence on fees and costs in accordance with Subsection 760.11(7), Florida Statutes.” Recommended Order, recommendation section.

Contrary to the Administrative Law Judge’s pronouncement in Recommended Order, ¶ 12, the Commission does not have the authority to award attorney’s fees and costs to a prevailing Respondent in a case, such as this one, brought pursuant to the Fair Housing Act. The statutory section cited by the Administrative Law Judge, Section 760.11(7), Florida Statutes, grants the Commission authority to award attorney’s fees and costs to a prevailing Respondent in a case brought pursuant to the Florida Civil Rights Act of 1992. However, there is no such statutory provision contained in the Fair Housing Act. See Section 760.35(3)(b), Florida Statutes (2007); see also conclusions of law adopted by a Commission Panel in McCloud v. Jones, 22 F.A.L.R. 386, at 392 (FCHR 1999) in which a prevailing Respondent in a Fair Housing Act case sought attorney’s fees, and in which the Administrative Law Judge stated that “Section 760.35(3)(b), Florida Statutes, does not apply because there was no finding that a discriminatory housing practice had occurred,” obviously noting the statute’s limitation of providing for the awarding of attorney’s fees in Fair Housing Act cases to prevailing Petitioners, but not to prevailing Respondents.

With these comments, we adopt the Administrative Law Judge’s findings of fact, except that portion of Recommended Order, ¶ 12, that finds that the Commission has the authority, pursuant to Section 760.11(7), Florida Statutes, to award attorney’s fees and costs to Respondent in this case.

FCHR Order No. 10-053

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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, “Petitioner’s Exceptions to the Honorable Judge Manry’s Recommended Order,” received by the Commission on April 26, 2010.

There is no indication on the document that it was provided to Respondent 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 Respondent, 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 5, 2010.

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 in all regards.

The first 18 pages of the document contain Petitioner’s exceptions. The remaining pages of the 46-page exceptions document are exhibits.

The first six pages of the document appear to take issue with the Commission’s determination issued in this matter, as well as matters within the purview of the Administrative Law Judge.

The Commission’s determination is significant at this point in the proceedings only to the extent it signals that the Division of Administrative Hearings has jurisdiction of the matter. As Judge Manry indicated in his February 5, 2010, Order on Pending Motions in this matter, the Division of Administrative Hearings does not stand in an appellate capacity to review the Commission’s determination, but rather conducts a de novo proceeding and recommends final agency action to the Commission.

The exceptions set out in the first six pages of Petitioner’s exceptions document are rejected.

On the eleventh and twelfth pages of the exceptions document, Petitioner takes exception to findings of fact made by the Administrative Law Judge relating to Respondent’s entitlement to attorney’s fees and costs under Section 120.595, Florida Statutes. While we believe these findings are supported by competent substantial

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evidence in the record and we will not disturb them, we note that, ultimately, the Administrative Law Judge declined to award Respondent attorney’s fees and costs under this statutory section. See Recommended Order, ¶ 12.

These exceptions are rejected.

The remaining portions of the exceptions document appear to take issue with facts found and inferences drawn from the evidence presented, and present argument regarding Petitioner’s view of the case.

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, and noting that we have found, above, with the limitation indicated, the Administrative Law Judge’s findings of fact to be supported by competent substantial evidence, and the Administrative Law Judge’s application of the law to the facts to result in a correct disposition of the matter, Petitioner’s remaining 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 24th day of June , 2010.

FOR THE FLORIDA COMMISSION ON HUMAN RELATIONS:

Commissioner Donna Elam, Panel Chairperson;

Commissioner Joanna Cunningham; and

Commissioner Mario M. Valle

FCHR Order No. 10-053

Page 5

Filed this 24th day of June , 2010,

in Tallahassee, Florida.

________________________________

Violet Crawford, Clerk

Commission on Human Relations

2009 Apalachee Parkway, Suite 200

Tallahassee, FL 32301

(850) 488-7082

Copies furnished to:

James Wergeles

Post Office Box 346

Sarasota, FL 34230

Tregate East Condo Association, Inc.

c/o Sue Ellen Krick, Esq.

Law Offices of Kevin T. Wells, P.A.

1800 2nd Street, Suite 803

Sarasota, FL 34236

Daniel Manry, 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 24th day of June , 2010.

By: _____________________________

Clerk of the Commission

Florida Commission on Human Relations