STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

JEROME REED, JR., )

)

Petitioner, )

)

vs. ) CASE NO. 96-4159

)

BESSIE WILLIAMS, FOLAND )

HIGBEE REALTY, INC. and ) JACKSONVILLE HOUSING AUTHORITY )

)

Respondents. )

)

RECOMMENDED ORDER

This cause came on for final formal hearing by video conferencing between Tallahassee and Jacksonville, Florida on December 2, 1996.

STATEMENT OF THE ISSUE

This cause initially arose upon a complaint of unfair or discriminatory housing and may be resolved upon jurisdictional and procedural issues as more fully described below.

PRELIMINARY STATEMENT

Petitioner did not appear for the December 2, 1996 formal hearing, although the other parties were present and the undersigned maintained open video communication for one hour. At that time, both Respondents acknowledged appropriate notice of formal hearing and waived any entitlement under Chapter 760 F.S. to notice by certified mail. Only representations of counsel and oral argument on jurisdictional issues was heard.

On December 6, 1996, Respondents Bessie Williams and Foland Higbee Realty, Inc. filed a Motion to Dismiss claiming this cause is barred by release and settlement. No response in opposition has ever been filed. (Copy of motion attached so as to aid the Florida Commission on Human Relations)

An Order to Show Cause was entered on December 11, 1996 (Copy of Order attached so as to aid the Florida Commission on Human Relations).

No party has responded to the Order to Show Cause entered December 11, 1996 so as to vary the proposed findings of fact and conclusions of law therein or to show good cause why the Jacksonville Housing Authority should be retained as a party Respondent. The Jacksonville Housing Authority filed a Motion to Dismiss on January 2, 1997 which is confusing at paragraphs 3 and 4, but it does not dispute the facts proposed in the Order to Show Cause. The Jacksonville Housing Authority filed a second Motion to Dismiss on January 30, 1997. No response in opposition to either motion has ever been filed. (A copy of both motions are attached to aid the Florida Commission on Human Relations).

The Order to Show Cause was not returned by the U.S. Postal Service as undeliverable to Petitioner and Petitioner has not timely shown cause why this case should be rescheduled for formal hearing on the merits.

FINDINGS OF FACT

1. The procedural history of this cause requires dismissal due to Petitioner's abandonment of the claim of discrimination.

   1. Petitioner did not respond to the initial order entered herein. Therefore, the Notice of Hearing for final formal hearing on December 2, 1996 was entered without any input from the Petitioner. It was mailed to all parties on October 23, 1996.

   2. On or about November 19, 1996, the U.S. Postal Service returned Petitioner's copy of the Notice of Hearing to the Division of Administrative Hearings bearing a new address for Petitioner. Petitioner had not seen fit to advise the Division of any change of address. The Notice of Hearing was remailed on or about November 20, 1996 to the new address for Petitioner.

   3. At formal hearing on December 2, 1996, both Respondents were present with their respective legal counsel and all their witnesses. Petitioner did not appear even though open video communication was maintained for one hour, with everyone except the Administrative Law Judge present at the Jacksonville location. Due to the possible "short notice" to Petitioner and in an abundance of caution because evidence and argument at that time suggested this case could be dismissed upon proper motion, no evidence on the merits was heard on December 2, 1996.

   4. After formal hearing was adjourned on December 2, 1996, the Notice of Hearing which had been remailed to Petitioner on November 20, 1996 was received back by the Division. The U.S. Postal Service had indicated that Petitioner was not at the new address either.

   5. Because the undersigned was without any means of locating Petitioner, an Order to Show Cause was entered on December 11, 1996. It provided, in pertinent part,

      3. Petitioner is granted 20 days from the date of this order in which to show cause in writing, filed with the Division, why formal hearing should be rescheduled. If this instant order is returned by the post office as undeliverable, it may be presumed Petitioner has abandoned his claim by his failure to provide a current address during the time this case has been before the Division. If the order is not returned and Petitioner does not file anything, it will be presumed he has abandoned his claim and does not still seek a formal [sic hearing] in this cause. If Petitioner does show cause why this case should be rescheduled, this cause may be reset for formal hearing.

   6. The December 11, 1996 Order to Show Cause was served upon Petitioner at his last known address. Petitioner has not provided any other address during the time this cause has been before the Division. More than sixty (60) days have passed, and the Order to Show Cause has not been returned by the U.S. Postal Service. Petitioner has not filed any response so as to show cause why formal hearing on the merits should be rescheduled. Therefore, it is presumed that Petitioner has abandoned his claim and no longer seeks a formal hearing in this cause.

2. The presumptions arising from the Williams/Higbee Motion to Dismiss require dismissal of Bessie Williams and Foland Higbee Realty, Inc. as Respondents

1. Respondents Bessie Williams and Foland Higbee Realty, Inc. filed a Motion to Dismiss on December 6, 1996. (Copy attached to aid the Florida Commission on Human Relations)

   Pursuant to Rule 60Q-2.016 Florida Administrative Code, Petitioner had seven days plus five days for mailing in which to file a response in opposition to this motion. Petitioner has filed no response. Therefore, all allegations in the motion with its attached supporting documentation may be taken as true and unopposed.

2. Petitioner has executed a General Release which discharged Bessie Williams and Foland Higbee Realty, Inc. of any liability for all events up to and including June 15, 1995.

3. Petitioner's original Housing Discrimination Complaint was filed with the Florida Commission on Human Relations (Commission) on or about February 1, 1995. (Copy of complaint attached to aid the Florida Commission on Human Relations)

4. Accordingly, Petitioner cannot proceed in this cause against Bessie Williams and Foland Higbee Realty, Inc. because all issues between Petitioner and these Respondents that occurred up to and including the date of his initial complaint have been settled, waived and released by Petitioner.

   III The absence of jurisdiction over the Jacksonville Housing Authority requires dismissal of that Respondent as a party.

   
   

5. From the materials provided as part of the Commission's referral of this case to the Division of Administrative Hearings (Copies attached to aid the Florida Commission on Human Relations) it appears that:

   1. Petitioner did not name the Jacksonville Housing Authority in his original Housing Discrimination Complaint filed with the Commission on or about February 1, 1995.

   2. The Commission's July 16, 1996 "DETERMINATION OF NO REASONABLE CAUSE" to believe that a discriminatory housing practice had occurred also did not name the Jacksonville Housing Authority as a party; and

   3. The Petition for Relief herein, filed with the Commission on or about August 5, 1996 also does not name the Jacksonville Housing Authority as a party.

6. It appears that the only reason the Jacksonville Housing Authority was named in this action at all is because Commission staff inadvertently and incorrectly used a Transmittal of Petition form for Petitions for Relief from an Unlawful Employment Practice and a form for Notice to Respondent of Filing Petition for Relief from an Unlawful Employment Practice naming the Jacksonville Housing Authority as Respondent.

7. The only other possible reason for involving the Jacksonville Housing Authority in this case would be to allow it to conduct its own investigation and/or hearing pursuant to Section 760.34(3), Florida Statutes, in which case the Housing Authority still should not have been joined as a party Respondent.

8. Pursuant to Section 760.34(2), Florida Statutes, a complaint of unfair or discriminatory housing must be filed within one year of the date the alleged discriminatory housing

   practice occurred. The complaint and petition herein are not clear as to the alleged date of discrimination in housing, but since the complaint herein was filed February 1, 1995, it logically follows that the alleged discrimination had to have occurred before February 1, 1995. Therefore, it is clearly too late, pursuant to statute, for Petitioner to refile any housing discrimination complaint against the Jacksonville Housing Authority for that time period.

   CONCLUSIONS OF LAW

   
   

9. The Division of Administrative Hearing has jurisdiction of the subject matter of this cause pursuant to Section 120.57(1), Florida Statutes.

10. Neither the Florida Commission on Human Relations nor the Division of Administrative Hearings has jurisdiction of the Jacksonville Housing Authority for purposes of this action and that Respondent should be dismissed as a party.

11. Petitioner has specifically released claims against Bessie Williams and Higbee Foland Realty, Inc. Therefore, that Respondent should be dismissed as a party.

12. Petitioner has effectively abandoned his claim against all parties. Therefore, this cause should be dismissed.

RECOMMENDATION

Upon the foregoing findings of fact and conclusions of law, it is

RECOMMENDED that the Florida Commission on Human Relations enter a final order dismissing the Petition for Relief and

underlying claims of unfair housing against all Respondents.

RECOMMENDED this 13th day of February, 1997, at Tallahassee, Florida.

ELLA JANE P. 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 13th day of February, 1997.

COPIES FURNISHED:

Jean Marie LaManna, Esquire Luis Tous, Esquire

Office of the General Counsel 600 City Hall

220 East Bay Street Jacksonville, FL 32202

Jerome Reed, Jr. 1471 West 13th Street

Jacksonville, FL 32209

H. Leon Holbrook, III, Esquire Independent Square

1 Independent Drive, Suite 2301 Jacksonville, FL 32202-5059

Sharon Moultry, Clerk Human Relations Commission

325 John Knox Road Building F, Suite 240

Tallahassee, FL 32303-4149

Dana Baird, General Counsel Human Relations Commission

325 John Knox Road Building F, Suite 240

Tallahassee, FL 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: 96-004159

Orders for Case No: 96-004159