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Home / Complaints / Final Orders / Final Orders 2011 / FCHR Order No. 11-042

FCHR Order No. 11-042

Date of Release: 05/12/2011

STATE OF FLORIDA

COMMISSION ON HUMAN RELATIONS

JOHN ZIOLKOWSKI

HUD Case No. 04-10-1316-8

Petitioner

FCHR Case No. 2010H0324

 

DOAH Case No. 10-9509

v.

 
 

FCHR Order No. 11-042

PARK SHORE LANDING CONDOMINIUM ASSOCIATION, ET AL.

 

Respondent

 

ORDER REMANDING PETITION FOR

RELIEF FROM A DISCRIMINATORY HOUSING PRACTICE

This matter is before the Commission for consideration of the Recommended Order of Dismissal, dated March 8, 2011, issued in the above-styled matter by Administrative Law Judge Elizabeth W. McArthur, and for consideration of the “Request for Rescheduled Hearing,” and accompanying affidavit, filed by Petitioner on March 9, 2011.

Findings of Fact and Conclusions of Law

Judge McArthur’s Recommended Order of Dismissal finds that Petitioner failed to appear at the scheduled administrative hearing in the case, concludes that, therefore, Petitioner failed to meet his burden of proof in the matter, and recommends the Commission issue a final order dismissing the case.

We are not yet ready to adopt the Administrative Law Judge’s conclusion that the case be dismissed.

The day after the issuance of the Recommended Order of Dismissal, Petitioner filed with the Division of Administrative Hearings (with a copy to the Clerk of the Commission) a “Request for Rescheduled Hearing,” and accompanying affidavit.

For the disposition of this filing we follow the guidance of Shaker Lakes Apartments Company d/b/a Seasons v. Dolinger, 714 So. 2d 1040 (Fla. 1st DCA 1998).

In Dolinger, the Respondent failed to appear at the scheduled administrative hearing in the case, and the Court found that the Commission abused its discretion in not considering Respondent’s motion for remand asking for a new evidentiary hearing, filed after the issuance of the recommended order but prior to the issuance of the Commission’s final order. The Court remanded the case to the Commission to either consider the motion or remand the matter to the Administrative Law Judge to consider the motion. In addition, in a concurring opinion, it was suggested by one of the Judges considering the case that the appropriate action for the

FCHR Order No. 11-042

Page 2

Commission to take would be to remand the case to the Administrative Law Judge since “the question whether to reopen or redo the formal administrative hearing does not depend on legal conclusions ‘over which [the Commission] has substantive jurisdiction’” – referring to the section of the Administrative Procedure Act which limits an agency to rejecting or modifying only those conclusions of law over which it has “substantive jurisdiction” – at the time of the Dolinger decision, Section 120.57(1)(j), Florida Statutes (Supp. 1996), now codified as Section 120.57(1)(l), Florida Statutes (2010).

Following the guidance of Dolinger, supra, we conclude that the matter should be remanded to the Administrative Law Judge for consideration of Petitioner’s “Request for Rescheduled Hearing,” and accompanying affidavit, filed March 9, 2011. We note that in taking this action it is not necessary for the Commission to decide whether it has jurisdiction itself to consider this filing.

Exceptions

Neither of the parties filed exceptions to the Administrative Law Judge’s Recommended Order of Dismissal. The day after the issuance of the Recommended Order of Dismissal Petitioner filed with the Division of Administrative Hearings (with a copy to the Clerk of the Commission) a document entitled, “Request for Rescheduled Hearing,” and accompanying affidavit, discussed above.

Remand

This matter is REMANDED to the Administrative Law Judge for consideration of Petitioner’s “Request for Rescheduled Hearing,” and accompanying affidavit, filed March 9, 2011, and for such further proceedings as that consideration may require consistent with this Order.

DONE AND ORDERED this 12th day of May , 2011.

FOR THE FLORIDA COMMISSION ON HUMAN RELATIONS:

Commissioner Mario M. Valle, Panel Chairperson;

Commissioner Watson Haynes, II; and

Commissioner Lizzette Romano

Filed this 12th day of May , 2011,

in Tallahassee, Florida.

FCHR Order No. 11-042

Page 3

/s/

Violet Crawford, Clerk

Commission on Human Relations

2009 Apalachee Parkway, Suite 100

Tallahassee, FL 32301

(850) 488-7082

Copies furnished to:

John Ziolkowski

333 West 57th Street, Apartment 807

New York, NY 10019

Park Shore Landing Condominium Association, et al.

c/o James K. Parker, Esq.

c/o Joseph G. Riopelle, Esq.

Boyd, Richards, Parker and Colonnelli, P.L.

400 North Ashley Drive, Suite 1150

Tampa, FL 33602

Elizabeth W. McArthur, 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 12th day of May , 2011.

By: /s/

Clerk of the Commission

Florida Commission on Human Relations