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Home / Complaints / Final Orders / Final Orders 2012 / FCHR Order No. 12-005

FCHR Order No. 12-005

Date of Release: 02/21/2012

STATE OF FLORIDA

COMMISSION ON HUMAN RELATIONS

ARLENE LEWIS

HUD Case No. 04-11-1129-8

Petitioner

FCHR Case No. 2012H0041

 

DOAH Case No. 11-5475

v.

 

ARLEN HOUSE EAST CONDOMINIUM ASSOCIATION

FCHR Order No. 12-005

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 November 29, 2011, issued in the above-styled matter by Administrative Law Judge Edward T. Bauer.

Findings of Fact and Conclusions of Law

Judge Bauer’s Order recommends the Commission dismiss as untimely the Petition for Relief filed in this matter.

In concluding that the Petition for Relief was not timely filed, the Administrative Law Judge relied on a statement in the Notice of Determination of No Cause indicating that the Petition for Relief must be filed with the Commission “within 30 days of the date of service of this Notice...” See Recommended Order of Dismissal, ¶ 2. The Administrative Law Judge found that the Commission issued the Notice of Determination of No Cause on September 21, 2011, “which it served on Petitioner by U.S. Mail on the same date [emphasis added].” Id.

The Administrative Law Judge also relied on the Commission’s rules, which state that a Petition for Relief may be filed “within 30 days of service of a Notice of Determination (No Cause) or Notice of Determination (Cause)...” See Recommended Order of Dismissal, ¶ 6, and Fla. Admin. Code R. 60Y-8.001(1).

Based on these provisions the Administrative Law Judge concluded that the Petition for Relief was untimely since the Notice of Determination of No Cause was mailed to the parties by the Commission on September 21, 2011, the deadline for filing the Petition for Relief was 30 days later on October 21, 2011, and the Petition for Relief was filed on October 24, 2011. See Recommended Order of Dismissal, ¶ 9.

With regard to the time limit for filing a Petition for Relief in a housing discrimination case, the Fair Housing Act states, “The person aggrieved may request administrative relief under

FCHR Order No. 12-005

Page 2

chapter 120 within 30 days after receiving notice that the commission has concluded its investigation under s. 760.34 (emphasis added). Section 760.35(3)(a)2, Florida Statutes (2011).

The Notice of Determination of No Cause indicates a certified U.S. Mail number that was used to mail the Notice of Determination of No Cause to the Petitioner. See Filing. A document in the Commission’s file printed off the United States Postal Service web site indicates that this piece of mail was delivered on September 26, 2011. See document. It should be noted that this document was not transmitted with the Petition for Relief to the Division of Administrative Hearings by the Commission and therefore was not before the Administrative Law Judge for consideration.

Since the Notice of Determination of No Cause was received by Petitioner on September 26, 2011, under the Fair Housing Act, Petitioner would have 30 days from that date to file her Petition for Relief. The Petition for Relief was filed on October 24, 2011, 28 days later, and therefore, in our view, was timely filed. See Woods v. The Properties of the Village, Inc., FCHR Order No. 08-054 (August 15, 2008) a housing discrimination case in which a Petition for Relief filed 46 days after the Notice of Determination of No Cause was mailed to the parties was found by a Commission Panel to be timely since the Petition for Relief was filed 28 days after the Notice of Determination of No Cause was received by the Petitioner; see also Clark v. Homeq Servicing Corp., FCHR Order No. 08-050 (July 29, 2008) a housing discrimination case in which a Petition for Relief filed 33 days after the Notice of Determination of No Cause was mailed to the parties was found by a Commission Panel to be timely since the Petition for Relief was filed 29 days after the Notice of Determination of No Cause was received by the Petitioner; accord, generally, Lee v. Emmer Development Corp., 20 F.A.L.R. 3132, at 3137, 3138 (FCHR 1998), interpreting this same statutory section, in which a motion to dismiss as untimely a Petition for Relief in a housing discrimination case filed 35 days after the Commission’s issuance of the Determination of No Probable Cause was denied by the Administrative Law Judge because “no proof establishes that Petitioner exceeded any particular jurisdictional time period after receipt of that notice before filing the Petition for Relief [emphasis added].”

With regard to the Commission’s rule, indicating that the Petition for Relief must be filed within 30 days of “service” of the Notice of Determination of No Cause (Fla. Admin. Code R. 60Y-8.001(1)), this can be read consistently with the statute if the word “service” is interpreted to mean when the Petitioner actually receives the document. Woods, supra, and Clark, supra.

In modifying these conclusions of law of the Administrative Law Judge, we conclude: (1) that the conclusions of law being modified are conclusions of law over which the Commission has substantive jurisdiction, namely conclusions of law interpreting the Fair Housing Act’s requirements for filing a Petition for Relief and interpretation of the Commission’s rules regarding the filing of a Petition for Relief; (2) that the reason the modifications are being

made by the Commission is that the conclusions of law as stated run contrary to previous Commission decisions on the issue; and (3) that in making these modifications the conclusions of law being substituted are as or more reasonable than the conclusions of law which have been rejected. See, Section 120.57(1)(l), Florida Statutes (2011).

FCHR Order No. 12-005

Page 3

Finally, with regard to Petitioner’s failure to respond to the Order to Show Cause, dated November 18, 2011, we note some confusion in the record as to Petitioner’s correct address. While the Petition for Relief designates Petitioner’s zip code as 33401, other documents in the record, such as the Housing Discrimination Complaint, Notice of Determination of No Cause and attachments to the Petition for Relief, designate Petitioner’s zip code as 33160. Both the Order to Show Cause and Recommended Order of Dismissal appear to have been mailed to Petitioner using the 33401 zip code, yet, in our view, it is likely the correct zip code is 33160.

We conclude that the case should be remanded to the Administrative Law Judge for further proceedings on the Petition for Relief.

Exceptions

Neither of the parties filed exceptions to the Administrative Law Judge’s Recommended Order of Dismissal.

Remand

The Petition for Relief and Housing Discrimination Complaint are REMANDED to the Administrative Law Judge for further proceedings consistent with this Order.

DONE AND ORDERED this 21st day of February , 2012.

FOR THE FLORIDA COMMISSION ON HUMAN RELATIONS:

Commissioner Gilbert M. Singer, Panel Chairperson;

Commissioner Onelia Fajardo; and

Commissioner Michell Long

Filed this 21st day of February , 2012,

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. 12-005

Page 4

Copies furnished to:

Arlene Lewis

100 Bayview Drive, Apartment 1902

Sunny Isles Beach, FL 33160

Arlen House East Condominium Association

c/o Joshua David Frachtman, Esq.

Cole, Scott & Kissane, P.A.

1645 Palm Beach Lakes Boulevard, 2nd Floor

West Palm Beach, FL 33401

Edward T. Bauer, 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 21st day of February , 2012.

By: /s/

Clerk of the Commission

Florida Commission on Human Relations