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Home / Complaints / Final Orders / Final Orders 2011 / FCHR Order No. 11-052

FCHR Order No. 11-052

Date of Release: 06/28/2011

STATE OF FLORIDA

COMMISSION ON HUMAN RELATIONS

DAVID J. DANIELS, III

HUD Case No. 04-10-1519-8

Petitioner

FCHR Case No. 2011H0032

 

DOAH Case No. 10-10425

v.

 

EDNA KISER, PROPERTY MANAGER AND EDWARD F. SOLTESZ, JR.,

OWNER

FCHR Order No. 11-052

Respondent

 

FINAL ORDER DISMISSING PETITION FOR

RELIEF FROM A DISCRIMINATORY HOUSING PRACTICE

Preliminary Matters

Petitioner David J. Daniels, III, filed a housing discrimination complaint pursuant to the Fair Housing Act, Sections 760.20 - 760.37, Florida Statutes (2009), alleging that Respondents Edna Kiser, Property Manager and Edward F. Soltesz, Jr., Owner, committed discriminatory housing practices on the basis of Petitioner’s handicap / disability and sex (male) by subjecting Petitioner to different terms and conditions regarding his lease, failing to repair the air conditioner in Petitioner’s leased dwelling, and refusing to renew Petitioner’s lease.

The allegations set forth in the complaint were investigated, and, on October 19, 2010, 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 Melbourne and Tallahassee, Florida, on February 16, 2011, before Administrative Law Judge J. D. Parrish.

Judge Parrish issued a Recommended Order of dismissal, dated April 13, 2011.

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. 11-052

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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, Mack v. Agency for Persons with Disabilities, FCHR Order No. 11-026 (March 17, 2011), Hall v. Villages of West Oaks HOA, FCHR Order No. 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.

The Administrative Law Judge concluded that Petitioner failed to establish a prima facie case of handicap / disability discrimination, in part, because “Petitioner did not establish that, as a matter of law, being HIV positive constitutes a ‘handicap’ as that term is used in the law. Petitioner did not establish that his condition substantially limits one or more major life activities.” Recommended Order, ¶ 27.

We note that one of the “Miscellaneous Provisions” of the Civil Rights chapter of the Florida Statutes, entitled “Discrimination on the basis of AIDS, AIDS-related complex and HIV prohibited,” states as follows: “Any person with or perceived as having acquired immune deficiency syndrome, acquired immune deficiency syndrome related complex, or human immunodeficiency virus shall have every protection made available to handicapped persons.” Section 760.50(2), Florida Statutes (2010).

Based on this pronouncement, we conclude that an individual who is HIV positive is entitled to the protections “made available to handicapped persons” under the Fair Housing Act, and is a “handicapped” person within the meaning of the Fair Housing Act. Accord, generally, Balkan v. Block Drug Company, Inc., 16 F.A.L.R. 4154 (FCHR 1994), in which a Commission Panel deciding a case interpreting the Human Rights Act of 1977 adopted the following conclusions of law set out in the Recommended Order for the case: “Section 760.50(2), Florida Statutes, provides in pertinent part that ‘[a]ny person with…human immunodeficiency virus [HIV] shall have every protection made available to handicapped persons.’ Accordingly, inasmuch as handicapped persons are protected against employment discrimination by the Act, persons with HIV, by operation of Section 760.50(2), Florida Statutes, enjoy the same protection thereunder. It is therefore an unlawful employment practice in violation of Section 760.10(1)(a), Florida Statutes, for an employer to refuse to hire a person because that person is HIV-positive.”

In modifying this conclusion of law of the Administrative Law Judge, we conclude: (1) that the conclusion of law being modified is a conclusion of law over which the Commission has substantive jurisdiction, namely a conclusion of law interpreting the definition of “handicap” under the Fair Housing Act; (2) that the reason the modification is being made by the Commission is that the conclusion of law as stated

FCHR Order No. 11-052

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appears to run contrary to the interrelationship of the Fair Housing Act and Section 760.50(2) Florida Statutes; and (3) that in making this modification the conclusion of law being substituted is as or more reasonable than the conclusion of law which has been rejected. See, Section 120.57(1)(l), Florida Statutes (2010).

We note that this correction to the conclusions of law does not alter the outcome of the case given the Administrative Law Judge’s conclusion that another of the reasons a prima facie case of handicap / disability discrimination was not established is that Respondents did not know Petitioner was HIV positive. Recommended Order, ¶ 27; see, e.g., Hutchinson v. MacFarland, et al., FCHR Order No. 08-014 (February 8, 2008), in which a Commission Panel adopted conclusions of law set out in the Recommended

Order in DOAH case No. 07-1087, in which it was concluded that one of the elements to establishing a prima facie case of handicap discrimination under the Fair Housing Act is “that Respondents knew of the handicap.”

With this correction and comment, we adopt the Administrative Law Judge’s conclusions of law.

Exceptions

Petitioner filed exceptions to the Administrative Law Judge’s Recommended Order in a three-page letter to the Commission dated April 26, 2011, and received by the Commission on April 29, 2011.

Petitioner’s exceptions document excepts to Recommended Order paragraph numbers 3, 4, 6, 7, 8, 9, 10, 11, 16, 19, 26, and 27.

Petitioner’s exceptions to the following Recommended Order paragraph numbers take issue with facts found by the Administrative Law Judge: 4, 6, 10, 16 and 19. Petitioner’s exceptions to the following Recommended Order paragraph numbers contain argument regarding Petitioner’s perspective on the statement of the Administrative Law Judge contained therein: 3, 7, 8, 9, 10, 11 and 26.

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 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 (2010). 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,

FCHR Order No. 11-052

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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 to Recommended Order paragraph numbers 3, 4, 6, 7, 8, 9, 10, 11, 16, 19 and 26, are rejected.

Petitioner’s exception to Recommended Order paragraph 27 argues that as an HIV-positive individual Petitioner is entitled to protection “under the law.” We have discussed this issue in the Conclusions of Law section of this order, above, and to the extent set out therein agree with Petitioner’s position set out in this exception. As indicated, above, this does not alter the outcome of the case.

Finally, while we have ruled on Petitioner’s exceptions as if they had been timely-filed, we note the Administrative Procedure Act states, “The agency shall allow each party 15 days in which to submit written exceptions to the recommended order.” Section 120.57(1)(k), Florida Statutes (2010). The Recommended Order, itself, advises the parties, “All parties have the right to submit written exceptions within 15 days of the date of this Recommended Order. Any exceptions to this Recommended Order should be filed with the agency that will issue the final order in this case.” See Recommended Order, page 13. Finally, the Florida Administrative Code section dealing with the filing of exceptions to Recommended Orders states, “No additional time shall be added to the time limits for filing exceptions or responses to exceptions when service has been made by mail.” Fla. Admin. Code R. 28-106.217(4).

The date of the Recommended Order is April 13, 2011, and, as indicated above, Petitioner’s exceptions were received by the Commission on April 29, 2011, 16 days after the date of the Recommended Order.

Petitioner’s exceptions are untimely.

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

FCHR Order No. 11-052

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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 28th day of June , 2011.

FOR THE FLORIDA COMMISSION ON HUMAN RELATIONS:

Commissioner Mario M. Valle, Panel Chairperson;

Commissioner Lizzette Romano; and

Commissioner Darcell Streeter

Filed this 28th 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

Copies furnished to:

David J. Daniels, III

1827 Abbey Ridge Drive

Merritt Island, FL 32953

Edna Kiser, Property Manager

and Edward F. Soltesz, Jr., Owner

c/o Edna Kiser

1855 Abbey Ridge Drive

Merritt Island, FL 32953

J. D. Parrish, Administrative Law Judge, DOAH

James Mallue, Legal Advisor for Commission Panel

FCHR Order No. 11-052

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I HEREBY CERTIFY that a copy of the foregoing has been mailed to the above listed addressees this 28th day of June , 2011.

By: ________/s/________________

Clerk of the Commission

Florida Commission on Human Relations