STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

STEVEN S. BERRYMAN, )

)

Petitioner, )

)

vs. ) Case No. 98-4150

)

TRAILER ESTATES PARK AND )

RECREATION DISTRICT, )

)

Respondent. )

)

RECOMMENDED ORDER

On December 7, 1998, a formal administrative hearing was held in this case by televideo before J. Lawrence Johnston, Administrative Law Judge, Division of Administrative Hearings. (The Administrative Law Judge was in a specially-equipped hearing room in Tallahassee, Florida, which was connected by televideo with a similarly-equipped hearing room in Tampa, Florida.)

APPEARANCES

For Petitioner: No Appearance

For Respondent: Robert J. Gill, Esquire

Diane K. McClellan, Esquire Ruden, McClosky, Smith,

Schuster & Russell, P.A.

1549 Ringling Boulevard, Suite 160

Sarasota, Florida 34236 STATEMENT OF THE ISSUE

The issue for determination was whether the Respondent, Trailer Estates Park and Recreation District (Trailer Estates), violated Section 760.23, Florida Statutes (1997), by subjecting

the Petitioner, Steven S. Berryman (Berryman), to alleged discriminatory housing practices.

PRELIMINARY STATEMENT

On or about July 27, 1998, Berryman filed with the Florida Commission on Human Relations (FCHR) a Petition for Relief alleging that Trailer Estates subjected him to discriminatory housing practices. FCHR referred the Petition to the Division of Administrative Hearings (DOAH), along with the original Complaint filed in July 1997 and FCHR's Determination of No Reasonable Cause.

Trailer Estate's Answer to Petition for Relief was filed on October 13, 1998, and final hearing by televideo (between Tallahassee and Tampa) was scheduled for December 7, 1998.

On November 6, 1998, Trailer Estates filed a Motion to Dismiss, together with notice that the motion would be heard as part of the final hearing.

Berryman did not appear at final hearing. Trailer Estates argued that the Petition for Relief should be dismissed not only for the reasons expressed in the Motion to Dismiss but also for Berryman's failure to appear.

On December 17, 1998, Trailer Estates filed a Proposed Recommended Order, which repeated its oral arguments and requested an award of attorney fees and costs.

FINDINGS OF FACT

1. The Petitioner, Steven S. Berryman (Berryman) failed to

   appear at final hearing, either in Tallahassee or in Tampa, Florida, and presented no evidence in support of the Petition for Relief.

   
   

2. Berryman's original Complaint alleged housing discrimination but did not specify the basis of the discrimination. FCHR investigated the Complaint and issued a Determination of No Reasonable Cause.

3. Berryman's Petition for Relief alleged housing discrimination but also did not specify the basis of the discrimination. Rather, the Petition for Relief alleged that Trailer Estates: "did not have enough votes to convert the park to 55 or older"; allowed a 39 year-old to live in the park; and allowed "young people to live in their park, however you have to be related to them or be a personal friend of theirs."

   CONCLUSIONS OF LAW

   
   

4. Berryman had the burden of proof in this case. Section 760.34(5), Florida Statutes (1997); see also Dept. of Transp. v. J.W.C. Co., Inc., 396 So. 2d 778 (Fla. 1st DCA 1981); Balino v. Dept. of Health and Rehab. Services, 348 So. 2d 349 (Fla. 1st DCA 1977). Not having appeared or presented any evidence, Berryman failed to meet his burden of proof.

5. Section 760.23, Florida Statutes (1997), makes it illegal to discriminate in housing practices "because of race, color, national origin, sex, handicap, familial status, or

   religion." The Petition for Relief does not specifically allege discrimination on any of these bases.

6. Conceivably, Berryman's Petition for Relief was attempting to allege housing discrimination on the basis of "familial status." Section 760.22, Florida Statutes (1997), provides in pertinent part:

   1. "Familial status" is established when an individual who has not attained the age of 18 years is domiciled with:

      1. A parent or other person having legal custody of such individual; or

      2. A designee of a parent or other person having legal custody, with the written permission of such parent or other person.

   2. "Family" includes a single individual.

      
      

      Under these definitions, the Petition for Relief does not allege discrimination because of "familial status."

7. In its Proposed Recommended Order, Trailer Estates requested an award of attorney fees and costs under both under Chapter 96-442, Laws of Florida (1996), and under Section 57.105, Florida Statutes (1997).

8. Attorney fees and costs only can be awarded when specifically authorized by statute or contract. See California Fed. Sav. & Loan Ass'n v. Coley, 593 So. 2d 1152 (Fla. 1st DCA 1992); Merrill, Lynch, Pierce, Fenner and Smith, Inc. v. Ritchey,

   394 So. 2d 1057 (Fla. 2d DCA 1981). "The fundamental rule in Florida has been that an 'award of attorneys' fees is in derogation of the common law and that statutes allowing for the award of such fees should be strictly construed.' Sunbeam

   Enterprises, Inc. v. Upthegrove, 316 So. 2d 34, 37 (Fla. 1975)."

   
   

   Roberts v. Carter, 350 So. 2d 78, 78-79 (Fla. 1977). See also USAA Casualty Ins. Co. v. Romm, 712 So. 2d 405, 406 (Fla. 4th DCA 1998).

9. Section 15(j) of Chapter 96-442, Laws of Florida (1996), authorizes Trailer Estates to "recover all costs and reasonable attorney's fees in addition or other appropriate relief should the trustees be the prevailing party in any litigation, and in any appellate proceedings, involving the enforcement of this act and/or the deed restrictions as filed in the Manatee County public records." Strictly construing Section 15(j) of Chapter 96-442, it is concluded that a Petition for Relief under Section 760.23, Florida Statutes (1997), is not a proceeding "involving the enforcement of this act and/or the deed restrictions."

10. Section 57.105(1), Florida Statutes (1997), provides:

The court shall award a reasonable attorney's fee to be paid to the prevailing party in equal amounts by the losing party and the losing party's attorney in any civil action in which the court finds that there was a complete absence of a justiciable issue of either law or fact raised by the complaint or defense of the losing party; provided, however, that the losing party's attorney is not personally responsible if he or she has acted in good faith, based on the representations of his or her client. If the court finds that there was a complete absence of a justiciable issue of either law or fact raised by the defense, the court shall also award prejudgment interest.

By its terms, this statute applies to court proceedings, not to administrative proceedings under Chapter 120, Florida Statutes

(1997). See Recommended Order, Dept. Of Children and Families, etc., v. B. J. G., 1997 WL 1053919 (Fla. Div. Admin. Hrgs.), and decisions cited at Conclusion of Law 111.

RECOMMENDATION

Based 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.

DONE AND ENTERED this 7th day of January, 1999, at Tallahassee, Leon County, Florida.

J. LAWRENCE JOHNSTON 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 7th day of January, 1999.

COPIES FURNISHED:

Steven Berryman 4307 Howard Drive

Sykesville, Maryland 21784

Robert J. Gill, Esquire Diane K. McClellan, Esquire Ruden, McClosky, Smith,

Schuster & Russell

1549 Ringling Boulevard, Suite 160

Sarasota, Florida 34236

Sharon Moultry, Clerk Commission on Human Relations

325 John Knox Road Building F, Suite 249

Tallahassee, Florida 32303-4149

Dana Baird, General Counsel Commission on Human Relations

325 John Knox Road Building F, Suite 249

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: 98-004150

Orders for Case No: 98-004150