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Home / Complaints / Final Orders / Final Orders 2011 / FCHR Order No. 11-060

FCHR Order No. 11-060

Date of Release: 07/13/2011




HUD Case No. 04-11-0241-8


FCHR Case No. 2011H0171


DOAH Case No. 11-0469




FCHR Order No. 11-060





Preliminary Matters

Petitioner Sebastian B. Barbagallo filed a housing discrimination complaint pursuant to the Fair Housing Act, Sections 760.20 - 760.37, Florida Statutes (2010), alleging that Respondent Ocean Park Condominium Association committed a discriminatory housing practice by failing to accommodate Petitioner’s alleged handicap by refusing to allow Petitioner to install a washer and dryer in his unit.

The allegations set forth in the complaint were investigated, and, on January 13, 2011, 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 in Viera, Florida, on March 17, 2011, before Administrative Law Judge J. D. Parrish.

Judge Parrish issued a Recommended Order of dismissal, dated May 3, 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

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.

FCHR Order No. 11-060

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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.

We adopt the Administrative Law Judge’s conclusions of law.


Petitioner filed exceptions to the Administrative Law Judge’s Recommended Order in a one-page document dated May 15, 2011, and received by the Commission on May 19, 2011.

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 23, 2011.

Generally, the document excepts to the Recommended Order’s conclusion that no discriminatory housing practice occurred, and presents argument as to why Petitioner should be allowed to install a washer and dryer in his unit.

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,

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.

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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).

In addition, 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).

Based on the foregoing, Petitioner’s exceptions are rejected.

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 11. 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 May 3, 2011, and, as indicated above, Petitioner’s exceptions were received by the Commission on May 19, 2011, 16 days after the date of the Recommended Order.

Petitioner’s exceptions are untimely.


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.

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DONE AND ORDERED this 13th day of July , 2011.


Commissioner Donna Elam, Panel Chairperson;

Commissioner Watson Haynes, II; and

Commissioner Billy Whitefox Stall

Filed this 13th day of July , 2011,

in Tallahassee, Florida.


Violet Crawford, Clerk

Commission on Human Relations

2009 Apalachee Parkway, Suite 100

Tallahassee, FL 32301

(850) 488-7082

Copies furnished to:

Sebastian B. Barbagallo

311 Taylor Avenue, Apt. G-19

Cape Canaveral, FL 32920

Sebastian B. Barbagallo

7615 Carson Ave.

Baltimore, MD 21224

Ocean Park Condominium Association

c/o Joe Teague Caruso, Esq.

Law Office of Caruso, Swerbilow

& Camerota, P.A.

190 Fortenberry Road, Suite 107

Merritt Island, FL 32954-1271

J. D. Parrish, Administrative Law Judge, DOAH

James Mallue, Legal Advisor for Commission Panel

FCHR Order No. 11-060

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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