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 2012 / FCHR Order No. 12-006

FCHR Order No. 12-006

Date of Release: 02/21/2012

STATE OF FLORIDA

COMMISSION ON HUMAN RELATIONS

LAWRENCE AND CANDACE ODOM

HUD Case No. 04-11-0706-8

Petitioner

FCHR Case No. 2011H0301

 

DOAH Case No. 11-3060

v.

 

LM RENTALS II, LLC, AND REBAKAH MOSSOW

FCHR Order No. 12-006

Respondent

 

FINAL ORDER DISMISSING PETITION FOR

RELIEF FROM A DISCRIMINATORY HOUSING PRACTICE

Preliminary Matters

Petitioners Lawrence and Candace Odom filed a housing discrimination complaint pursuant to the Fair Housing Act, Sections 760.20 - 760.37, Florida Statutes (2010), alleging that Respondents LM Rentals II, LLC, and Rebakah Mossow committed discriminatory housing practices based on their race (American Indian) in connection with a mold problem in the house which Petitioners rented from Respondent LM Rentals II, LLC.

The allegations set forth in the complaint were investigated, and, on June 8, 2011, 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.

An evidentiary hearing was held in Lakeland, Florida, on November 9, 2011, before Administrative Law Judge Susan Belyeu Kirkland.

Judge Kirkland issued a Recommended Order of dismissal, dated December 6, 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

FCHR Order No. 12-006

Page 2

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.

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

Exceptions

Petitioners filed a document that could be viewed as an exceptions document, received by the Division of Administrative Hearings on or about December 15, 2011.

While the document was filed with the Division of Administrative Hearings instead of the Commission, the document was timely filed, and the Commission will consider the document even though it was filed in the wrong forum. Accord, generally, Lane v. Terry Laboratories, Inc., FCHR Order No. 08-022 (April 14, 2008), and cases cited therein. See also, Hogg v. Arena Sports Cafe, FCHR Order No. 10-049 (May 25, 2010).

There is no indication on the document that it was provided to Respondents 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 Respondents, 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 January 4, 2012.

Generally, the document excepts to the Recommended Order’s conclusion that no discriminatory housing practice occurred.

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 (2011). As indicated, above, in the absence of a transcript of the

FCHR Order No. 12-006

Page 3

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.

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, Petitioners’ 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 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.

FCHR Order No. 12-006

Page 4

___________/s/_____________

Violet Crawford, Clerk

Commission on Human Relations

2009 Apalachee Parkway, Suite 100

Tallahassee, FL 32301

(850) 488-7082

Copies furnished to:

Lawrence and Candace Odom

6368 Alamanda Hills Drive

Lakeland, FL 33813

LM Rentals II, LLC

c/o Michael Peeples

1925 East Edgewood Drive, Suite 100

Lakeland, FL 33803

Rebakah Mossow

Vantage Property Management, LLC

1925 East Edgewood Drive, Suite 100

Lakeland, FL 33803

Susan Belyeu Kirkland, 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