STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

ALBERT JEROME LEE, )

)

Petitioner, )

)

vs. ) CASE NO. 96-3611

) EMMER DEVELOPMENT CORPORATION, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, the Division of Administrative Hearings, by its designated Administrative Law Judge, Don W. Davis, held a formal hearing in the above-styled case on October 22, 1996, in Gainesville, Florida.

APPEARANCES

For Petitioner: Albert Jerome Lee, Pro Se

Post Office Box 1232 Hawthorne, Florida 32640

For Respondent: Claude R. Moulton, Esquire

Emmer Development Corporation 2801 Southwest Archer Road Gainesville, Florida 32608

STATEMENT OF THE ISSUE

Whether Respondent engaged in an unlawful housing practice in violation of Section 760.23, Florida Statutes.

PRELIMINARY STATEMENT

Albert Jerome Lee (Petitioner) by housing discrimination complaint dated May 1, 1995, alleged the commission of an unlawful housing practice by Respondent.

On April 5, 1996, the Florida Commission On Human Relations (FCHR) determined that reasonable cause to believe that a discriminatory housing practice had occurred did not exist with regard to Petitioner.

By Petition For Relief, filed with FCHR on May 10, 1996, Petitioner sought formal administrative proceedings. FCHR forwarded the matter to the Division of Administrative Hearings for such formal proceedings on August 5, 1996.

At the final hearing, Petitioner presented testimony of three witnesses and three exhibits. Respondent presented testimony of one witness and two exhibits. No transcript of the proceeding was provided by the parties. The parties filed post-hearing proposed recommended orders by the apprised deadline of November 1, 1996.

FINDINGS OF FACT

1. Respondent operated Hickory Hill Mobile Home Park where tenants could rent spaces or lots for the placement of their mobile homes. By notice dated August 26, 1993, all tenants were notified of the closure of the park, effective one year from the date of the notice.

   
   

2. On Friday, August 26, 1994, Respondent's representative, Patricia Tripp, preparing for the closure of the park, was notifying persons still in the park that their motor vehicles would have to be moved. She "tagged" cars with notices to owners to the effect that the cars must be moved or the cars would be towed after the conclusion of that day. Extensions were given by Tripp to those persons who requested them if their cars were going to be moved within a few days. At least one extension was granted to a white female tenant who informed Tripp that her car would be gone within a specific number of days of the deadline of August 26, 1994.

   
   

3. On August 13, 1994, Petitioner, who is African-American and the former lessee of lot 31, purchased the trailer on lot 25 from the lessee of that lot. The lessee of lot 25 subsequently vacated the premises. Following his purchase, Petitioner then moved into the trailer on lot 25 without formally notifying Respondent. Petitioner moved his original trailer from lot 31 and from Respondent's park on August 18, 1994, continuing to reside at the trailer on lot 25.

   
   

4. Under provisions of the form lease between Respondent and tenants of the park, tenants were required to park vehicles in the driveway to individual lots. No parking of vehicles on the street was permitted. Additionally, all motorized vehicles were required to meet state legal requirements to be operated in the park.

   
   

5. On August 26, 1996, Petitioner still had a number of vehicles in the park, in addition to his newly acquired mobile home. The vehicles included a bus, manufactured in 1950; a 1978 pickup truck; a 1948 Chrysler automobile; and an ice cream truck. Some of the vehicles were not parked on Petitioner's lot.

   
   

6. Tripp questioned Petitioner on August 26, 1994, regarding whether the vehicles belonged to Petitioner. Petitioner responded that they did. Tripp told him that the vehicles would need to be moved since the park was closing and informed him of the deadline. The discussion between the two became heated and eventually Tripp, who felt threatened by Petitioner's attitude and actions, left. Petitioner did not request an extension of the deadline with regard to his vehicles.

   
   

7. On Monday, August 29, 1994, Petitioner's vehicles had not been towed. Around 2 p.m. in the afternoon, a tow truck arrived accompanied by a law enforcement officer. After verifying that Petitioner's vehicles met legal requirements and speaking with Respondents' representatives at the scene, the law enforcement officer left. None of Petitioner's vehicles were towed away.

8. Petitioner eventually moved from the park on September 12, 1994, and Respondent's threat to tow Petitioner's vehicles was never realized.

   
   

9. Petitioner suffered no quantifiable damages.

   
   

10. FCHR's Determination Of No Reasonable Cause was issued on April 5, 1996, documenting FCHR's determination of the non-existence of reasonable cause to believe that a discriminatory housing practice had occurred. Petitioner subsequently filed his Petition For Relief on May 10, 1995.

    
    

    CONCLUSIONS OF LAW

    
    

11. The Division of Administrative Hearings has jurisdiction over the subject matter of this proceeding, and the parties thereto, pursuant to subsection 120.57(1) and 760.11(7), Florida Statutes.

    
    

    THE MOTION TO DISMISS AS UNTIMELY

    
    

12. Pursuant to motion filed August 15, 1996, Respondent sought the dismissal of Petitioner's Petition For Relief on the basis that the Petition was untimely filed. Respondent's motion provides no reference to a particular Florida Statute or Florida Administrative Rule as a basis for the motion. No such reference was provided at the final hearing. Ruling was reserved on the motion at that time.

    
    

13. With reference to Respondent's motion, it is noted that Section 760.11, Florida Statutes addresses the administrative and civil remedies that can be invoked by the Petitioner based on an assertion of an unlawful employment practice and describes the administrative remedy available after a no-cause determination, as follows:

    
    

    The aggrieved person may request an administrative hearing under s. 120.57, but any such request must be made within 35 days of the date of determination of [no] reason- able cause . . . If the aggrieved person [does not request an administrative hearing within the 35 days], the claim will be barred. [emphasis supplied.]

    
    

    Section 760.11(7), Florida Statutes.

    
    

14. It is also observed that the "Florida Civil Rights Act of 1992" is specifically defined to include only Sections 760.01-760.11 and Section 509.092, Florida Statutes. Section 760.01(1), Florida Statutes.

    
    

15. In the instant case, Petitioner seeks relief pursuant to provisions of Sections 760.20-37, Florida Statutes, denominated as the "Fair Housing Act." Section 760.20, Florida Statutes.

    
    

16. The only reference to time constraints within the Fair Housing Act is set forth in Section 760.35(3)(a), Florida Statutes, which reads:

    
    

    If the commission is unable to obtain voluntary compliance with ss. 760.20-760.37 or has reasonable cause to believe that a discriminatory practice has occurred:

    1. The commission may institute an administrative proceeding under chapter 120; or

    2. The person aggrieved may request administrative relief under chapter 120 [within 30 days after receiving notice] that the commission has concluded its investigation under s. 760.34. [emphasis supplied.]

       
       

17. Since FCHR found no probable case in this case and subsequent failure to obtain voluntary compliance with the above-referenced statutory provisions would constitute a non sequitur as regards that initial finding, Petitioner's access to proceedings in this forum appears absent a jurisdictional basis in provisions of The Fair Housing Act.

    
    

18. Presumptively, FCHR has construed provisions of Section 760.35(3)(a), Florida Statutes, to be equally applicable to instances where there is a determination of no reasonable cause to believe that an unfair housing practice has occurred. Under such application of the statute, it is observed that although Petitioner's Petition For Relief was filed 35 days after the issuance of Respondent's Determination Of No Probable Cause, no proof establishes that Petitioner exceeded any particular jurisdictional time period after receipt of that notice before filing the Petition For Relief. Presuming application of The Fair Housing Act, the Motion To Dismiss should be denied.

    
    

19. If the motion is denied, further inquiry reveals that Section 760.23(2), Florida Statutes, provides, in part:

    
    

    (2) It is unlawful to discriminate against any person in the terms, conditions, 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, handi- cap, familial status, or religion.

    
    

20. Pursuant to Section 760.34(5), Florida Statutes, the burden of proof is on the complainant, in this case the Petitioner, to establish the allegations supporting the claim of discrimination.

    
    

21. If a discriminatory housing practice has occurred or is about to occur, a recommended order prohibiting the practice and recommending affirmative relief from the effects of the practice, including quantifiable damages and reasonable attorney's fees and costs may be entered. See Section 760.35(3)(b), Florida Statutes.

    
    

22. In this case, however, Petitioner has failed to meet his burden of proof. The evidence fails to establish that Respondent supported or condoned any discriminatory action against Petitioner on the basis of racial animus. Absent Petitioner's own speculation that he was treated differently by Respondent's representative on the basis of race, Petitioner offered no evidence establishing Respondent's commission of any discriminatory housing practice which resulted in any quantifiable damage to Petitioner.

RECOMMENDATION

Based on the foregoing, it is, hereby, RECOMMENDED:

That Florida Commission on Human Relations enter a final order dismissing the Petition For Relief.

DONE and ENTERED this 4th day of November, 1996, in Tallahassee, Leon County, Florida.

DON W. DAVIS

Administrative Law Judge

Division of Administrative Hearings The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-3060

(904) 488-9675 SUNCOM 278-9675

Fax Filing (904) 921-6847

Filed with the Clerk of the Division of Administrative Hearings this 4th day of November, 1996.

COPIES FURNISHED:

Albert Jerome Lee Post Office Box 1232

Hawthorne, Florida 32640

Claude R. Moulton, Esquire Emmer Development Corporation 2801 Southwest Archer Road Gainesville, Florida 32608

Sharon Moultry, Clerk Human Relations Commission Building F, Suite 240

325 John Knox Road

Tallahassee, Florida 32303-4149

Dana Baird, Esquire

Human Relations Commission Building F, Suite 240

325 John Knox Road

Tallahassee, Florida 32303-4149

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: 96-003611

Orders for Case No: 96-003611