STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

SUSAN M. PARKER,

Petitioner,

vs.

PAUL MOORE, OWNER,

Respondent.

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) Case No. 04-3833

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RECOMMENDED ORDER

A formal hearing was conducted in this case on December 16, 2004, in Bushnell, Florida, before Suzanne F. Hood, Administrative Law Judge with the Division of Administrative Hearings.

APPEARANCES

For Petitioner: Susan M. Parker, pro se

3840 East County Road 478 Apartment D-30

Webster, Florida 33597

For Respondent: Paul Moore, pro se

2386 County Road 608

Bushnell, Florida 33513 STATEMENT OF THE ISSUE

The issue is whether the Florida Commission on Human Relations (FCHR) properly dismissed this matter for lack of jurisdiction.

PRELIMINARY STATEMENT

On or about March 31, 2004, Petitioner Susan M. Parker (Petitioner) filed a Housing Discrimination Complaint with FCHR. The complaint alleged that Respondent Paul Moore (Respondent) discriminated against Petitioner based on her sex, handicap, and religion by imposing unlawful terms and conditions on the sale of a dwelling and/or demanding unlawful privileges or services in connection with that sale.

On or about September 28, 2004, FCHR issued a Notice of Dismissal. Specifically, FCHR determined that it did not have jurisdiction because Respondent met the criteria for exemption under 42 U.S.C.A. Section 3603(b) and Section 760.29, Florida Statutes (2003).

On October 18, 2004, Petitioner filed a Petition for Relief to challenge the FCHR's determination of no jurisdiction. FCHR referred the case to the Division of Administrative Hearings on October 25, 2004.

A Notice of Hearing dated November 5, 2004, scheduled the hearing for December 16, 2004. During the hearing, Petitioner testified on her own behalf and offered seven exhibits that were accepted into the record as evidence. Respondent did not present any testimony or offer any exhibits.

A transcript of the proceeding was not filed. The parties did not file proposed orders.

Citations hereinafter shall be to Florida Statutes (2003) except as otherwise specified.

FINDINGS OF FACT

1. Petitioner, as a first-time home buyer, applied for and was pre-approved by Cendant Mortgage Corporation d/b/a/ Century

   21 Mortgage for a mortgage loan. The loan, in the amount of

   
   

   $28,687.00, was to be insured by the Federal Housing Administration (FHA).

2. In February 2003, Respondent agreed to sell Petitioner his home. They agreed that Petitioner would pay Respondent

   $29,000.00 for the house. Respondent subsequently stated in writing that he agreed to sell his house to Petitioner for that amount.

3. On March 5, 2003, Petitioner signed a form entitled No Brokerage Relationship Disclosure. The form made it clear that Century 21 Prime Property Resources, Inc., a local real estate agency, and its associates did not have a brokerage relationship with Petitioner.

4. There is no evidence that the professional services of a licensed real estate agent was involved at all in this case. However, the local Century 21 real estate office gratuitously sent a few documents on Petitioner's behalf by facsimile transmission to Century 21 Mortgage in New Jersey. Respondent

   did not use the sales facilities or services of Century 21 for any purpose.

5. On March 7, 2003, Cheryl Barnes, a certified appraiser, completed an appraisal of the property. The U.S. Department of Housing and Urban Development and/or FHA required the appraisal in order for Petitioner to receive the loan insured by FHA. Neither Petitioner nor Respondent was required to pay for the appraisal.

6. In a letter dated March 10, 2003, Century 21 Mortgage advised Petitioner that the closing date was scheduled for April 16, 2003. The letter enclosed additional forms that Petitioner needed to complete in order to close the loan.

7. The Housing Department, Division of Planning and Development, in Sumter County, Florida, sent Petitioner a letter dated March 19, 2003. The letter advised Petitioner that she was eligible for an award of Supplemental Household Income Protection funds to cover the down payment and closing costs on the loan.

8. Subsequently, Respondent refused to sign any papers related to the sale of the house. The loan could not be closed without Respondent's cooperation.

9. Petitioner had placed $250 in an escrow account with Century 21 Mortgage. The mortgage broker refunded all of the

   money in the escrow account to Petitioner after Respondent refused to sign any more paperwork.

10. Finally, there is no evidence of the following: (a) that Respondent owned more than three single-family houses at any one time; (b) that Respondent sold more than one single- family home within any 24-month period; (c) that Respondent had an interest in the proceeds from the sale or rental of more than three single-family houses at any one time; and (d) the sale of the subject house did not involve the posting, mailing, or publication of any written notice.

    CONCLUSIONS OF LAW

    
    

11. The Division of Administrative Hearings has jurisdiction over the parties and limited subject-matter jurisdiction pursuant to Sections 120.569, 120.57, and 760.35, Florida Statutes (2004).

12. FCHR is the agency charged with administering and enforcing the provisions of Florida's Fair Housing Act. See §§

    760.20 through 760.37, Fla. Stat.

    
    

13. Section 760.23, Florida Statutes, states as follows in relevant part:

    1. It is unlawful to refuse to sell or rent after the making of a bona fide offer, to refuse to negotiate for the sale or rental of, or otherwise to make unavailable or deny a dwelling to any person because of race, color, national origin, sex, handicap, familial status, or religion.

    2. It is unlawful to discriminate against any person in the terms, condition, or privileges of sale or rental of a dwelling, or in the provision of services or facilities in connection therewith, because of race, color, national origin, sex, handicap, familial status, or religion.

       
       

14. If the Fair Housing Act does not apply to an individual, FCHR has no authority to determine whether the individual violated the law. The Legislature set forth specific exemptions in Section 760.29, Florida Statutes, which states as follows in pertinent part:

    (1)(a) Nothing in ss. 760.23 and 760.25 applies to:

    
    

    1. Any single-family house sold or rented by its owner, provided such private individual owner does not own more than three single-family houses at any one time. In the case of the sale of a single-family house by a private individual owner who does not reside in such house at the time of the sale or who was not the most recent resident of the house prior to the sale, the exemption granted by this paragraph applies only with respect to one sale within any 24-month period. In addition, the bona fide private individual owner shall not own any interest in, nor shall there be owned or reserved on his or her behalf, under any express or voluntary agreement, title to, or any right to all or a portion of the proceeds from the sale or rental of, more than three single- family houses at any one time. The sale or rental of any single-family house shall be excepted from the application of ss. 760.20-

    1. only if the house is sold or rented:

       
       

       1. Without the use in any manner of the sales or rental facilities or the sales or rental services of any real estate licensee

          or such facilities or services of any person in the business of selling or renting dwellings, or of any employee or agent of any such licensee or person; and

          
          

       2. Without the publication, posting, or mailing, after notice, of any advertisement or written notice in violation of s. 760.23(3).

    
    

15. Petitioner has the burden of proving that Section 760.23, Florida Statutes, applied to Respondent under the facts of this case. See § 760.34(5), Florida Statutes. She has not met her burden.

16. The Florida Fair Housing Act does not apply to Respondent for the following reasons: (a) he has not owned more than three single-family houses at any one time; (b) he has not sold more than one single-family home within any 24-month period; (c) he had no interest in the proceeds from the sale or rental of more than three single-family houses at any one time;

    (d) he did not use the services or facilities of a real estate agency or any licensed real estate agent/broker; and (e) the sale of the subject house did not involve the posting, mailing, or publication of any written notice.

17. At all times relevant here, Respondent was exempt from the mandates of Fair Housing Act under Section 760.29(1), Florida Statutes. FCHR properly determined that it did not have jurisdiction to consider this case on its merits.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of Law, it is

RECOMMENDED:

That FCHR enter a final order dismissing the Petition for Relief.

DONE AND ENTERED this 5th day of January, 2005, in

Tallahassee, Leon County, Florida.

S

SUZANNE F. HOOD

Administrative Law Judge

Division of Administrative Hearings The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-3060

(850) 488-9675 SUNCOM 278-9675

Fax Filing (850) 921-6847 www.doah.state.fl.us

Filed with the Clerk of the Division of Administrative Hearings this 5th day of January, 2005.

COPIES FURNISHED:

Cecil Howard, General Counsel Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100

Tallahassee, Florida 32301

Denise Crawford, Agency Clerk Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100

Tallahassee, Florida 32301

Susan M. Parker

3840 East County Road 478 Apartment D-30 Webster, Florida 33597

Paul Moore

2396 County Road 608

Bushnell, Florida 33513

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

All parties have the right to submit written exceptions within

15 days from 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.

Docket for Case No: 04-003833

Orders for Case No: 04-003833