STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

GRATUS HOUSING ADVOCATES, INC.,

vs.

Petitioner,

Case No. 17-0657

BROOKHAVEN DEVELOPMENT LAND LTD.,

Respondent.

/

RECOMMENDED ORDER OF DISMISSAL

This cause came on for consideration without an evidentiary hearing for the reasons set forth below.

STATEMENT OF THE ISSUE

Whether the Florida Commission on Human Relations (“the Commission”) has jurisdiction over Petitioner’s claim against

Respondent.

PRELIMINARY STATEMENT

On May 23, 2016, Gratus Housing Advocates, Inc. (“GHA”), filed a housing discrimination complaint with the Department of Housing and Urban Development alleging the following:

Complainant Gratus Housing Advocates, Inc. (GHA) is a non-profit organization established to eradicate discrimination in housing for all protected class members.

Complainant GHA operates in all 50 states to protect, maintain, and establish fair housing opportunities for all and to affirmatively further fair housing rights.

In April of 2016, as part of its mission, Complainant GHA provided fair housing counseling and advocacy to its client, Aggrieved Party Kelly Duff, who described herself as a person with visible physical disabilities and also mental disabilities. She is a tenant at Reserve at Brookhaven Apartments.

* * *

Because of her disabilities, Aggrieved Party Duff requires the use of her service dog, a Husky named Rakki. Since at least February of 2016, Aggrieved Party Duff made a reasonable accommodation request for the respondents to waive the pet deposit, pet rent, and size restrictions for her service dog. She informed the respondent management company about the nature of her disabilities and explained how the service dog alleviated those symptoms. Aggrieved Party Duff disclosed that she is employed by a service dog training company, K9s for Warriors, and she offered to provide healthcare documentation to verify her disabilities and need for the service animal. [Respondent’s property manager] reportedly declined Aggrieved Party Duff’s offer and instead required her to authorize the respondents to contact and interact with Aggrieved Party Duff’s doctor and employer to verify the disability and need for the service dog. On April 8, 2016, the respondents issued a written denial of the reasonable accommodation request. [Respondent’s property manager] allegedly reiterated her demand to speak to Aggrieved Party Duff’s doctor to confirm the disability and also required the doctor to complete the management company’s proprietary accommodations request forms. Aggrieved Party Duff contacted Complainant GHA for assistance, and with complainant’s help, the respondents granted the reasonable accommodation request, which had been duly delayed. On May 5, 2016, Aggrieved Party

Duff contacted Respondent Sharpe to make another reasonable accommodation request, asking permission to take her service dog into the swimming pool area so that the dog could wait there if she used the pool. On the same day, the respondents issued a written denial of the reasonable accommodation request, thereby denying Aggrieved Party Duff the full use and enjoyment of the property due to her disability.

As a result of the respondents’ collective actions, on approximately May 12, 2016, Complainant GHA filed a housing discrimination complaint on Aggrieved Party Duff’s behalf. The complainant alleged that due to the respondent’s alleged discriminatory acts, the complainant has suffered a diversion of resources and frustration of its mission. The complainant’s daily education and outreach efforts were put aside to assist Aggrieved Party Duff, and the complainant had to divert resources to conduct investigatory efforts to uncover and fight the alleged discrimination.

GHA concluded its complaint by alleging that Respondent’s actions violated various provisions within Title VIII of the Civil Rights Act of 1968, as amended by the Fair Housing Act of

1988.

FINDINGS OF FACT

1. The Commission conducted an investigation of GHA’s allegations. That investigation determined that GHA had not been acting as Ms. Duff’s attorney and that the assistance provided to Ms. Duff was mostly clerical in nature. The investigation also determined that GHA suffered no harm related

   
   

   to housing. As a result, the Commission determined that it had no jurisdiction over GHA’s claim.

2. On November 18, 2016, the Commission issued a “Notice of Determination of No Jurisdiction.” In addition to notifying GHA of its decision, the Commission advised GHA that it could challenge its determination by requesting an administrative hearing.

3. GHA filed a Petition for Relief with the Commission on January 30, 2017, and took issue with the Commission’s determination that it lacked jurisdiction over this matter.

4. With regard to the Commission’s determination that GHA was not Ms. Duff’s attorney, GHA stated the following:

   Patrick Coleman did admit that he was not an attorney, however Patrick Coleman confirmed on several occasions that he and GHA have in fact been Ms. Kelly Duff’s representative by means of a Power of Attorney since May 11, 2016. Please see the attached Power of Attorney signed by Ms. Duff.

   
   

   Patrick Coleman of GHA admitted to not performing traditional phone testing or in person testing at the respondent[‘s] property – that is correct. However, GHA has stated that their Testing Investigation process included an investigation of the respondent’s housing process, including: the Concord Rental Agreement, the Service Animal Addendum, an in depth review of the Concord Rents website and their published documents, and a review of the Reserve at Brookhaven website followed by a review of their published materials.

   
   

   It was GHA’s investigation, recovery, and scrutiny of the Service Animal

   Responsibility Addendum that uncovered the potentially discriminatory language which prompted an inquiry regarding the Respondent’s policy addressing assistance animals in the pool area.

   
   

5. As for the Commission’s determination that GHA’s assistance to Ms. Duff was mostly clerical in nature, GHA stated that it assisted Ms. Duff with protecting her “Fair Housing Rights” in the following ways: (1) interviewed Ms. Duff in order to verify that she was a bona fide victim of discrimination; (2) provided Ms. Duff with fair housing education via a webinar; (3) wrote two reasonable accommodation requests for Ms. Duff; (4) worked with Ms. Duff’s physician in order to draft a letter describing Ms. Duff’s disability and

   her need for an assistance animal; (5) wrote, reviewed, and approved all written communications from Ms. Duff to Respondent;

   (6) interviewed Ms. Duff’s employer; (7) wrote and filed

   
   

   Ms. Duff’s fair housing complaint; and (8) represented Ms. Duff during every phone interview conducted by the Commission.

6. The Commission referred the instant case to the Division of Administrative Hearings (“DOAH”) on January 30, 2017.

7. On February 14, 2017, the undersigned sua sponte issued an “Order to Show Cause” requiring GHA to “show cause on or

   
   

   before March 1, 2017, why the instant case should not be dismissed based on a lack of standing.”

8. GHA did not file any response to the Order to Show

   
   

   Cause.

   
   

   CONCLUSIONS OF LAW

   
   

9. The undersigned agrees with the Commission’s determination that it lacks jurisdiction over GHA’s complaint. As explained below, GHA is attempting to recover costs without the presence of an underlying discrimination case.

10. GHA admitted that Respondent granted Ms. Duff’s initial request for a reasonable accommodation (i.e., use of a service dog on Respondent’s property) prior to the filing of a complaint under the Fair Housing Act. GHA also alleged that Respondent denied Ms. Duff’s second request for a reasonable accommodation by refusing to allow her to take her service dog into Respondent’s swimming pool area. However, the relief sought by GHA is not an order requiring Respondent to allow Ms. Duff to take her dog to Respondent’s pool area. Instead, the relief sought is solely limited to GHA’s right to recover

    damages. If these allegations are accepted as true, then there is no underlying fair housing discrimination claim currently before the Commission. See § 760.23(9)(b), Fla. Stat. (2016)(providing that housing discrimination includes “[a] refusal to make reasonable accommodations in rules, policies,

    
    

    practices, or services, when such accommodations may be necessary to afford such person equal opportunity to use and enjoy a dwelling.”). In other words, relief under the Fair Housing Act is predicated on: (1) a fair housing complaint filed by Ms. Duff; and (2) a determination by the Commission that Ms. Duff had been the victim of a discriminatory housing practice for which relief to Ms. Duff could be granted.

    See generally § 760.35(3)(b), Fla. Stat. (2016)(providing that

    
    

    “[i]f the administrative law judge finds that a discriminatory housing practice has occurred or is about to occur, he or she shall issue a recommended order to the commission prohibiting the practice and recommending affirmative relief from the effects of the practice, including quantifiable damages and reasonable attorney’s fees and costs.”). Because GHA’s allegations indicate that neither of those conditions exists, the Commission lacks jurisdiction over GHA’s complaint.

11. Furthermore, GHA’s allegations demonstrate that it lacks standing to maintain this proceeding. In order to have standing to challenge agency action, an individual or entity must be a “party” as that term is defined in section 120.52(13), Florida Statutes (2016). The agency action at issue is the Commission’s determination that it lacks jurisdiction. Section 120.52(13)(b) is relevant to the instant case and provides in pertinent part that a “party” is any person “whose substantial

    
    

    interests will be affected by proposed agency action.” In order to demonstrate that one’s “substantial interests” are at stake, a would-be party must demonstrate: (1) that the party will suffer an injury in fact which is of sufficient immediacy to entitle it to a section 120.57 hearing; and (2) that the party’s substantial injury is of a type or nature which the proceeding is designed to protect. See Prescription Partners, LLC v. Dep’t

    of Fin. Servs., 109 So. 3d 1218, 1222 (Fla. 1st DCA 2013).

    
    

12. GHA’s allegations do not demonstrate that it has suffered an injury in fact. Ms. Duff is the only person or entity that has suffered an injury in fact (i.e., denial of her request to take her service dog into Respondent’s pool area). However and as explained above, Ms. Duff has not filed a complaint with the Commission. See generally Equity Resources

    v. County of Leon, 643 So. 2d 1112, 1117 (Fla. 1st DCA 1994)(noting that “[s]tanding is predicated on a party’s legitimate or sufficient interest at stake in the controversy that will be affected by the outcome of the litigation.”).

13. The relief sought by GHA pertains to an alleged “diversion of resources and frustration of its mission.” However, that relief is not related to whether Respondent should be required to allow Ms. Duff to bring her dog into Respondent’s pool area. There is nothing in chapter 760, part II, Florida Statutes (2016), indicating that GHA’s injury is the type of

injury that the aforementioned legislation was intended to protect. See Agrico Chem. Co. v. Dep’t of Envtl. Reg., 406 So. 2d 478, 482 (Fla. 2d DCA 1981)(holding that “[w]hile petitioners in the instant case were able to show a high degree of potential economic injury, they were wholly unable to show that the nature of the injury was one under the protection of chapter 403.”).

RECOMMENDATION

Based on the foregoing, it is RECOMMENDED that a final order be entered by the Florida Commission on Human Relations dismissing Gratus Housing Advocates’ Petition for Relief due to a lack of jurisdiction.

DONE AND ENTERED this 22nd day of March, 2017, in Tallahassee, Leon County, Florida.

S

G. W. CHISENHALL Administrative Law Judge

Division of Administrative Hearings The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-3060

(850) 488-9675

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

Filed with the Clerk of the Division of Administrative Hearings this 22nd day of March, 2017.

COPIES FURNISHED:

Tammy S. Barton, Agency Clerk

Florida Commission on Human Relations Room 110

4075 Esplanade Way

Tallahassee, Florida 32399 (eServed)

Cheyanne Costilla, General Counsel Florida Commission on Human Relations 4075 Esplanade Way, Room 110

Tallahassee, Florida 32399 (eServed)

Patrick Coleman

Gratus Housing Advocates, Inc. 3513 Provine Road

Mckinney, Texas 75070

Brookhaven Development Land LTD Suite 101

700 West Morse Boulevard Winter Park, Florida 32789

Andrew Kemp-Gerstel, Partner

44 West Flagler Street Miami, Florida 33130 (eServed)

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: 17-000657

Orders for Case No: 17-000657