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Home / Complaints / Final Orders / Final Orders 2011 / FCHR Order No. 11-044

FCHR Order No. 11-044

Date of Release: 06/14/2011

STATE OF FLORIDA

COMMISSION ON HUMAN RELATIONS

RAYMOND GEISEL AND SUSANNE KYNAST

HUD Case No. 04-11-0089-8

Petitioner

FCHR Case No. 2011H0107

 

DOAH Case No. 11-0035

v.

 
 

FCHR Order No. 11-044

CITY OF MARATHON, CITY MARINA

 

Respondent

 

ORDER REMANDING PETITION FOR

RELIEF FROM A DISCRIMINATORY HOUSING PRACTICE

Preliminary Matters

Petitioners Raymond Geisel and Susanne Kynast filed a housing discrimination complaint pursuant to the Fair Housing Act, Sections 760.20 - 760.37, Florida Statutes (2009), alleging that Respondent City of Marathon, City Marina, committed discriminatory housing practices on the basis of Petitioner Geisel’s disability by subjecting Petitioners to discriminatory terms and conditions, by applying certain rules only to Petitioners, by harassing Petitioners, and by terminating a license agreement between Petitioner Kynast and Respondent.

The allegations set forth in the complaint were investigated, and, on December 7, 2010, the Executive Director issued a determination finding that there was no reasonable cause to believe that a discriminatory housing practice had occurred.

Petitioners 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.

Prior to conducting a formal proceeding, Administrative Law Judge Robert E. Meale issued a Recommended Order of Dismissal, dated March 11, 2011.

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

Findings of Fact and Conclusions of Law

The Administrative Law Judge’s order recommends that the Commission dismiss the matter for lack of jurisdiction.

The Fair Housing Act states that a complaint “must be filed within 1 year after the alleged discriminatory housing practice occurred.” Section 760.34(2), Florida Statutes (2009).

FCHR Order No. 11-044

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The Administrative Law Judge concluded that any rental relationship that existed between Petitioners and Respondent ended prior to the start of this one-year limitations period because Petitioner Kynast moved her boat off the city marina mooring more than one year prior to the filing of the complaint. Recommended Order of Dismissal, page 5.

We agree that actions that occurred prior to one year before to the filing of the complaint are outside the jurisdiction of the Commission.

We are not yet ready to dismiss this case, however, because we are not yet ready to conclude that the rental relationship between Petitioners and Respondent ended when Petitioner Kynast moved her boat off the city marina more than one year prior to the filing of the complaint.

The Administrative Law Judge concluded “Petitioners have not alleged direct discrimination by Respondent. The direct acts of discrimination are alleged to have been committed by other residents of the marina.” Recommended Order of Dismissal, pages 12 and 13.

We disagree with this assertion.

Petitioners clearly alleged that Respondent’s termination of the “License Agreement” between Petitioner Kynast and Respondent, on September 23, 2010, was a discriminatory housing practice, and this allegation was timely filed. See “Housing Discrimination Complaint,” dated September 28, 2010.

In an “Order Denying Motion to Dismiss Without Prejudice and Order Reserving Ruling on Request for Expedited Hearing on Respondent’s Motion to Dismiss Petition for Relief,” issued in this case on February 9, 2011, the Administrative Law Judge concluded, in discussing the “License Agreement,” “If the sole relationship between the parties is a transaction authorizing the use of accessory facilities, and perhaps nothing more than a license to cross Respondent’s mooring area in the kayak, Respondent has no relationship to Petitioners’ dwelling (i.e., their liveaboard boat), as to which the alleged discrimination must relate for jurisdiction under the [Fair Housing Act]. The land-based services and facilities of a shower, bathroom, sewage, garbage, and recreation must, under the statute, relate in some fashion to a dwelling…Absent a transaction between Respondent and Petitioner involving the liveaboard boat, the accessory facilities, standing alone, are insufficient bases for jurisdiction because Petitioners do not reside in the shower, bathroom, the pumpout or garbage areas, or the recreation area.” See Order, pages 5 and 6.

We agree with this conclusion.

We note Respondent’s representation that on or about January 20, 2009, Petitioner Kynast moved her boat to anchorage in an area beyond Respondent’s jurisdiction and control and stopped paying Respondent for moorage as of that date. See “Respondent’s Renewed Motion to Dismiss Petition for Relief, or for an Order Relinquishing Jurisdiction,” dated February 25, 2011.

Nevertheless, it is unclear to us from the record, regardless of where Petitioner Kynast’s boat was actually anchored or moored, whether the “License Agreement”

FCHR Order No. 11-044

Page 3

between the parties that was terminated by Respondent on September 23, 2010, gave Petitioner Kynast the right to moor her boat in an area controlled by Respondent.

If that “License Agreement” did not grant that right, or that right was extinguished by acts of Petitioner Kynast, then we agree that the matter should be dismissed. If the “License Agreement” does grant that right, and that right still existed at the time of the termination of the agreement by Respondent, then a formal proceeding should be conducted to determine whether the termination of that agreement by Respondent amounts to a discriminatory housing practice.

Exceptions

None of the parties filed exceptions to the Administrative Law Judge’s Recommended Order of Dismissal.

Remand

This matter is REMANDED to the Administrative Law Judge for further proceedings consistent with this Order.

DONE AND ORDERED this 6th day of June , 2011.

FOR THE FLORIDA COMMISSION ON HUMAN RELATIONS:

Commissioner Donna Elam, Panel Chairperson;

Commissioner Joanna Sharp; and

Commissioner Billy Whitefox Stall

Filed this 6th day of June , 2011,

in Tallahassee, Florida.

__________/s/__________________

Violet Crawford, Clerk

Commission on Human Relations

2009 Apalachee Parkway, Suite 100

Tallahassee, FL 32301

(850) 488-7082

FCHR Order No. 11-044

Page 4

Copies furnished to:

Raymond Geisel

Susanne Kynast

Post Office Box 500345

Marathon, FL 33050

City of Marathon, City Marina

c/o Andrew Rodman, Esq.

Stearns, Weaver, Miller, Weissler,

Alhadeff, and Sitterson, P.A.

150 West Flagler Street, Suite 220

Miami, FL 33130

Robert E. Meale, 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 6th day of June , 2011.

By: _______/s/___________________

Clerk of the Commission

Florida Commission on Human Relations