Skip to Main Content. Please Contact Us if there is anything we can do to improve the Accessibility of this site.
  • Search:

Right menu

Left menu


Home / Complaints / Final Orders / Final Orders 2011 / FCHR Order No. 11-058

FCHR Order No. 11-058

Date of Release: 07/13/2011

STATE OF FLORIDA

COMMISSION ON HUMAN RELATIONS

WILLIAM KLEINSCHMIDT

HUD Case No. 04-09-1262-8

Petitioner

FCHR Case No. 2010H0001

 

DOAH Case No. 09-6167

v.

 

THREE HORIZONS NORTH

CONDOMINIUM, INC.

FCHR Order No. 11-058

Respondent

 

FINAL ORDER DISMISSING PETITION FOR

RELIEF FROM A DISCRIMINATORY HOUSING PRACTICE

Preliminary Matters

Petitioner William Kleinschmidt filed a housing discrimination complaint pursuant to the Fair Housing Act, Sections 760.20 - 760.37, Florida Statutes (2007), alleging that Respondent Three Horizons North Condominium, Inc., committed discriminatory housing practices on the basis of Petitioner’s handicap by informing Petitioner that he had to remove his emotional support animal from his unit and on the basis of retaliation for filing earlier fair housing complaints by not assisting Petitioner when raw sewage backed up into his unit.

The allegations set forth in the complaint were investigated, and, on October 7, 2009, 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 September 21, 23, 24, and 29, 2010, before Administrative Law Judge June C. McKinney.

Judge McKinney issued a Recommended Order of dismissal, dated April 26, 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

We find the Administrative Law Judge’s findings of fact to be supported by competent substantial evidence

We adopt the Administrative Law Judge’s findings of fact.

FCHR Order No. 11-058

Page 2

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 “Professor William E. Kleinschmidt Exceptions to DOAH Recommended Order,” received by the Commission on May 9, 2011.

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 (2010); 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, generally, that Petitioner excepts to the Administrative Law Judge’s finding that no discriminatory housing practice occurred in this matter, and takes issue with facts found, facts not found, and inferences drawn from the evidence presented.

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) and Eaves v. IMT-LB Central Florida Portfolio, LLC, FCHR Order No. 11-029 (March 17, 2011).

Further, it has been stated, “The ultimate question of the existence of discrimination is a question of fact.” Florida Department of Community Affairs v. Bryant, 586 So. 2d 1205, at 1209 (Fla. 1st DCA 1991). Accord, Coley v. Bay County Board of County Commissioners, FCHR Order No. 10-027 (March 17, 2010) and Eaves, supra.

FCHR Order No. 11-058

Page 3

Noting that we have above found the facts as found by the Administrative Law Judge to be supported by competent substantial evidence, Petitioner’s exceptions are rejected.

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 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 13th day of July , 2011.

FOR THE FLORIDA COMMISSION ON HUMAN RELATIONS:

Commissioner Donna Elam, Panel Chairperson;

Commissioner Watson Haynes, II; and

Commissioner Billy Whitefox Stall

Filed this 13th day of July , 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:

William Kleinschmidt

1470 Northeast 125th Terrace

Apartment 206

North Miami, FL 33161

FCHR Order No. 11-058

Page 4

Three Horizons North Condominium, Inc.

c/o Marco D. Commisso, Esq.

Cole, Scott & Kissane, P.A.

1645 Palm Beach Lakes Boulevard

Second Floor

West Palm Beach, FL 33401

June C. McKinney, 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 13th day of July , 2011.

By: __ __/s/__________________

Clerk of the Commission

Florida Commission on Human Relations