STATE OF FLORIDA COMMISSION ON HUMAN RELATIONS

VALERIE WALTERS HUD Case No. 04-16-0030-8

Petitioner, FCHR Case No. 2016H0191

v. DOAH No.

PINE RUN ASSOCIATION, INC., FCHR Order No. 16-045

Respondent.

/

FINAL ORDER DISMISSING PETITIO N FOR

RELIE F FRO M A DISCRIMINATORY HOUSING PRACTIC E

Preliminary Matters

Petitioner Valerie Walters filed a housing discrimination complaint pursuant to the Fair Housing Act, Sections 760.20 - 760.37, Florida Statutes alleging that Respondent Pine Run Association, Inc., committed a discriminatory housing practice by failing to provide a reasonable accommodation for Petitioner's disability.

The allegations set forth in the complaint were investigated, and, on January 22, 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 by video teleconference at sites in Tampa and Tallahassee, Florida, on May 3, before Administrative Law Judge Linzie F. Bogan.

Judge Bogan issued a Recommended Order of dismissal, dated June 17,

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

et 527 So. 2d 894, at 897, 898 5th DCA Accord, Coleman v.

Daytona Beach, Ocean Center Parking Garage, FCHR Order No. (September Gantz. et al. v. Zion's Hope, Inc.. d/b/a Holy Land Experience, FCHR Order No.

Filed September 8, 2016 4:45 PM Division of Administrative Hearings

(June 6, and Hall v. Villages of West Oaks HOA. FCHR Order No. 08-007 (January 14, 2008).

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

Petitioner filed exceptions to the Administrative Law Judge's Recommended Order in a document entitled, "Exceptions to Recommended Order Dated June

Respondent filed a response to Petitioner's exceptions in a document entitled, "Response to Exceptions to Recommended Order."

Petitioner's exceptions essentially take issue with inferences drawn from the evidence presented.

As indicated, above, no transcript of the proceeding before the Administrative Law Judge was filed with the Commission.

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 the extent to which the facts found are supported by the testimony presented. See, e.g., v. Winn Dixie Stores, Inc., FCHR Order No. 07-054 (October 2007), Herring v. Department of Corrections, FCHR Order No. (February and Holloman v. Lee Wesley Restaurants,

Burger King, FCHR Order No. 14-041 (October 9, 2014).

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 detennines 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 )(1), Florida Statutes 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 2006), Johnson v. Tree of Life, Inc.. FCHR Order No 05-087 (July 2005), Coleman, supra, and Gantz, 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 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. at (FCHR citing Maggio v. Martin Marietta

9 F.A.L.R. 2168, 2171 (FCHR 1986)." Ban v. Columbia Regional Medical Center. 22 F.A.L.R. at (FCHR Accord, Bowles v. Jackson County Hospital Corporation, FCHR Order No. (December 6, 2005) and Eaves v.

Central Florida Portfolio. LLC. FCHR Order No. -029 (March

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 at 1209 1s t DCA Accord, v. Bay County Board of County Commissioners, FCHR Order No. (March and Eaves, supra.

Petitioner's 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 Florida Statutes, and in the Florida Rules of Appellate Procedure

DONE AND ORDERED this ,

FOR THE FLORIDA COMMISSION ON HUMAN RELATIONS:

Commissioner Tony Jenkins, Panel Chairperson; Commissioner Jay Pichard; and

Commissioner Sandra Turner

this day of ,

in Tallahassee, Florida.

Clerk

Commission on Human Relations 4075 Esplanade Way, Room Tallahassee, FL 32399

(850)488-7082

Copies furnished to:

Valerie Walters

c/o Cindy Hill, Esq. Hill Law

456 South Trail

Osprey, FL 34229

Valerie Walters

c/o Gary Parker, Esq. Legal Aid of Manasota 1900 Main Street, Ste. 302

Sarasota, FL 34236

Pine Run Association, Inc. c/o Scott H. Jackman, Esq. Cole, Scott & Kissane, P.A.

4301 West Boy Scout Blvd., Ste. 400 Tampa, FL 33607

Pine Run Association, Inc.

c/o Sharon S. Vander Esq. Sharon S. Vander Wulp, P.A.

Shamrock Blvd. Venice, FL 34293

Linzie F. Bogan, Administrative Law Judge, DOAH James Mallue, Legal Advisor for Commission Panel

I HEREBY CERTIFY that a the foregoing has been mailed to the above

Clerk of the Commission

Florida Commission on Human Relations

Docket for Case No: 16-001076

Orders for Case No: 16-001076