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Home / Complaints / Final Orders / Final Orders 2013 / FCHR Order No. 13-027

FCHR Order No. 13-027

Date of Release: 04/04/2013

STATE OF FLORIDA

COMMISSION ON HUMAN RELATIONS

ELA M. LUGO AND MARIA MARTINEZ

HUD Case No. 04-11-0186-8

Petitioner

FCHR Case No. 2011H0163

 

DOAH Case No. 11-1116

v.

 

MARK HAYNES, DEVELOPER

FCHR Order No. 13-027

Respondent

 

INTERLOCUTORY ORDER AWARDING AFFIRMATIVE RELIEF

FROM A DISCRIMINATORY HOUSING PRACTICE

AND REMANDING CASE TO ADMINISTRATIVE LAW JUDGE

FOR ISSUANCE OF RECOMMENDED ORDER REGARDING AMOUNT OF COSTS OWED PETITIONERS

Preliminary Matters

Petitioners Ela M. Lugo and Maria Martinez filed a housing discrimination complaint pursuant to the Fair Housing Act, Sections 760.20 - 760.37, Florida Statutes (2010), alleging that Respondent, Mark Haynes, Developer, committed unlawful employment practices on the basis of Petitioners’ handicap / disability by installing gates that obstruct Petitioners’ access to their residence and failing to provide Petitioners a reasonable accommodation for their handicap / disability regarding modifications to the gates to allow them access to their residence.

The allegations set forth in the complaint were investigated, and, on February 3, 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 on July 30 through August 2, 2012, in New Smyrna Beach, Florida, and by teleconference on August 3, 2012, before Administrative Law Judge W. David Watkins.

Judge Watkins issued an Amended Recommended Order, dated January 28, 2013, recommending that the Commission find that a discriminatory housing practice occurred and recommending affirmative relief.

The Commission panel designated below considered the record of this matter and determined the action to be taken on the Amended Recommended Order.

FCHR Order No. 13-027

Page 2

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.

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

Respondent filed exceptions to the Amended Recommended Order on or about February 6, 2013, in a document entitled, “Exception to Amended Recommended Order.” The document contains 11 numbered paragraphs. Petitioners filed a response and amended response to Respondent’s exceptions. Respondent then filed an amended exception which is untimely and will not be considered.

Respondent’s exception to the Amended Recommended Order is summarized in paragraph 4 of the document wherein it is stated, “Judge Watkins has chosen to arbitrarily extend the protection of the statutes past the closing of a sale transaction, for an indefinite period of time thereafter for acts which are not incident to the sale of the dwelling. This is an incorrect interpretation of the statutes.”

We note that the Fair Housing Act prohibits discrimination on the basis of handicap “in the terms, conditions, or privileges of sale or rental of a dwelling, or in the provision of services or facilities in connection with such dwelling…” Section 760.23(8), Florida Statutes (2010). In addition, the Fair Housing Act defines “dwelling” as “any building or structure, or portion thereof, which is occupied as, or designed or intended for occupancy as, a residence by one or more families, and any vacant land which is offered for sale or lease for the construction or location on the land of any such building or structure, or portion thereof.” Section 760.22(4), Florida Statutes (2010).

This prohibition against discrimination applies to post-acquisition discrimination which results in either an actual or constructive deprivation of the property. See Savanna Club Worship Service, Inc. v. Savanna Club Homeowners’ Association, Inc., et al., 456 F. Supp. 2d 1223 (S. D. Fla. 2005); see, also, the Recommended Order in Woolley, et al. v. Stonebrook II HOA, Inc., DOAH Case No. 12-2030, FCHR Case No. 2012H0195 (January 30, 2013).

Respondent’s exceptions are rejected.

FCHR Order No. 13-027

Page 3

Affirmative Relief and Remand

Through our adoption of the Administrative Law Judge’s findings of fact and conclusions of law, as set out above, we find that unlawful discrimination occurred in this matter in the manner found by the Administrative Law Judge and have adopted the Administrative Law Judge’s recommendations for the remedy of the discrimination. In addition, we conclude the case should be remanded to the Administrative Law Judge for determination of the amount of costs owed Petitioner.

Respondent is hereby ORDERED:

(1) to cease and desist from discriminating further in the manner it has been found to have unlawfully discriminated against Petitioners (Section 760.35(3)(b), Florida Statutes (2010));

(2) to immediately remove Gates 2 through 4 as identified in the Amended Recommended Order and to refrain from taking any action that would impede Petitioners’ travel along ingress/egress #1 and #2, as identified in the Amended Recommended Order, as recommended by the Administrative Law Judge;

(3) to pay to Petitioners quantifiable damages in the amount of $1522.90, as computed in the Amended Recommended Order and as recommended by the Administrative Law Judge, with interest accruing at the applicable statutory rate upon the date of this order; and

(4) to pay Petitioners the reasonable and allowable costs they incurred in bringing this action, as recommended by the Administrative Law Judge.

This matter is REMANDED to the Administrative Law Judge for further proceedings to determine the amount of costs owed Petitioners.

DONE AND ORDERED this 4th day of April , 2013.

FOR THE FLORIDA COMMISSION ON HUMAN RELATIONS:

Commissioner Gilbert M. Singer, Panel Chairperson;

Commissioner James Johns; and

Commissioner Michael Keller

Filed this 4th day of April , 2013,

in Tallahassee, Florida.

FCHR Order No. 13-027

Page 4

___________/s/_____________

Violet Crawford, Clerk

Commission on Human Relations

2009 Apalachee Parkway, Suite 100

Tallahassee, FL 32301

(850) 488-7082

Copies furnished to:

Ela M. Lugo and Maria Martinez

c/o Jamison Jessup, Qualified Representative

557 Noremac Avenue

Deltona, FL 32738

Mark Haynes, Developer

c/o Robert Thurlow, Esq.

Robert S. Thurlow, P.A.

415 Canal Street

New Smyrna Beach, FL 32168

W. David Watkins, III, 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 4th day of April , 2013.

By: __________/s/______________

Clerk of the Commission

Florida Commission on Human Relations