STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

JACQUELINE WALKER,

Petitioner,

vs.

THE FOUNTAINS APARTMENTS AT FOUNTAINBLEAU PARK,

Respondent.

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) Case No. 99-3578

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RECOMMENDED ORDER

Pursuant to notice, a final hearing was conducted in this case on March 4, 2004, in Miami, Florida, before Michael M. Parrish, an Administrative Law Judge of the Division of Administrative Hearings.

APPEARANCES

For Petitioner: Jacqueline Walker, pro se

3412 Northwest Second Avenue, No. 8

Miami, Florida 33127

For Respondent: No appearance for Respondent1

STATEMENT OF THE ISSUE

The purpose of the hearing in this case was to provide Petitioner an opportunity to present evidence as to the relief to which she is entitled in a housing discrimination case.2

PRELIMINARY STATEMENT

Following a determination by the Florida Commission on Human Relations (“FCHR”) that Petitioner was entitled to relief because Respondent(s)3 had admitted all material facts by failing to file any answer to the Petition for Relief, this case was remanded to the Division of Administrative Hearings “. . . to determine the appropriate relief in this matter.” Following some procedural steps to attempt to narrow the issues, the case was scheduled for hearing in Miami, Florida, on March 4, 2004.

At the hearing on March 4, 2004, Petitioner appeared and testified on her own behalf. She did not call any other witnesses. Petitioner also offered two exhibits, both of which were received in evidence.

There was no appearance by or on behalf of anyone who was, or who purported to be, a respondent in this case. There was, however, an appearance by legal counsel on behalf of an entity named The Fountains of Fountainbleau, Ltd., a Florida limited partnership (“Fountains II”). Fountains II did not wish to become a party to this proceeding, but did want to present some evidence to establish that Fountains II was not the Respondent in this case and to perhaps shed some light on the question of who was the Respondent. Without objection, Fountains II was allowed to present evidence at the hearing for the purposes stated.4 Fountains II presented the testimony of one witness.

It also offered four Exhibits, all of which were received in evidence.

At the conclusion of the hearing, Petitioner and Fountains II both requested, and were allowed, until March 29, 2004, within which to submit proposed recommended orders or similar post-hearing documents. Fountains II was also allowed ten days from the date of the hearing within which to file a late-filed exhibit.

On March 30, 2004, Petitioner filed a written summary of her position. That document has been treated as her Proposed Recommended Order, and has been carefully considered during the preparation of this Recommended Order.

Fountain II’s late-filed exhibit was not filed until April 15, 2004. Fountains II did not file a proposed recommended order or other similar post-hearing document.5 No one filed a transcript of the hearing.

FINDINGS OF FACT

1. As a result of the admitted facts alleged in the Petition for Relief, Petitioner has suffered both tangible and intangible harm. As a result of the admitted facts, when Petitioner and her family were evicted from the apartment they had been subletting, they were locked out of the apartment and were unable to retrieve most of the personal property that was in the apartment. The reasonable value of the personal property

   that was lost as a result of the acts alleged in the Petition for Relief is $5,281.00.6

2. Petitioner also suffered intangible harm as a result of the admitted facts. The most serious aspects of the intangible harm were humiliation and loss of personal pride and self-esteem as a result of, in her words, “being treated like a dog.” Petitioner also suffered a substantial amount of personal inconvenience and indignity, because for a period of time after the eviction from the apartment she was truly homeless and was forced to live in her automobile. The harm to Petitioner described in this paragraph cannot be quantified.

3. There is no evidence in this case that Petitioner incurred any attorney’s fees or costs.

4. Alina Portuono is no longer employed at the apartment complex where the events giving rise to this proceeding occurred. Whoever owned the apartment complex at the time of the events giving rise to this proceeding is no longer the owner. The subject apartment complex no longer rents apartments as all the units are now condominiums.

   CONCLUSIONS OF LAW

   
   

5. The Division of Administrative Hearings has jurisdiction over the subject matter of this proceeding and over at least one of the parties, Petitioner Jacqueline Walker.7

   §§ 120.569, 120.57(1), and 760.35(3)(b), Fla. Stat. If the FCHR

   provided proper notice to any Respondent, the Division of Administrative Hearings also has jurisdiction over any such Respondent.

6. Section 760.35(3)(b), Florida Statutes, provides that when it is shown that a discriminatory housing practice has occurred, an administrative law judge “. . . 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.” In this case, an order prohibiting a discriminatory housing practice or recommending affirmative relief would serve no useful purpose because neither of the potential Respondents presently has any control or authority over the apartment complex where the events giving rise to this proceeding took place. Alina Portuono is no longer employed at the subject apartment complex. The subject apartment complex is now owned by owners who were not owners at the time of the events giving rise to this proceeding. The subject apartment complex no longer rents apartments, because it has been converted to condominium units.

7. An order awarding “quantifiable damages” for the loss of Petitioner’s personal property is appropriate in this case.

8. There is no evidence that Petitioner incurred any attorney’s fees or costs. Therefore, she is not entitled to an award of such fees and costs.

9. Petitioner also seeks compensation for her unquantifiable damages, for matters such as her humiliation and loss of personal pride and self-esteem. Compensation for unquantifiable damages is not available in an administrative proceeding brought pursuant to Section 760.35(3)(b), Florida Statutes. See Metropolitan Dade County Fair Housing and Employment Appeals Board v. Sunrise Village Mobile Home Park,

Inc., 511 So. 2d 962, 966 (Fla. 1987); Broward County v. La

Rosa, 505 So. 2d 422, 423 (Fla. 1987); Commission on Human Relations v. Regency Place Apartments, DOAH Case No. 96-5776 (Recommended Order issued July 7, 1997); Heather B. McNulty v.

Summer Lake Apartments, et al., DOAH Case No. 98-1924 (Recommended Order of Dismissal on Remand issued October 19, 1999).

RECOMMENDATION

On the basis of the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the FCHR issue a final order awarding quantified damages in the amount of

$5,281.00 to Petitioner, if the FCHR believes it has provided

adequate notice to Respondent(s) in this case and has jurisdiction arising from such notice.8

DONE AND ENTERED this 29th day of April, 2004, in Tallahassee, Leon County, Florida.

S

MICHAEL M. PARRISH

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 29th day of April, 2004.

ENDNOTES

1/ At the final hearing there was an appearance by counsel for a partnership named The Fountains of Fountainbleau, Ltd., a Florida limited partnership (“Fountains II”). Fountains II purchased the land and buildings where Petitioner was living at the time of the events from which this case arises. The purchase by Fountains II was several months after the events alleged in the Housing Discrimination Complaint. Fountains II did not wish to become a party to this proceeding. Its sole purpose for attending the hearing was to try to establish on the record that Fountains II is not the same entity as Respondent in this case and that Fountains II bears no responsibility for any conduct of Respondent. Fountains II was represented at the hearing by Carlos L. de Zayas, Esquire, of the law firm of Lydecker & Wadsworth, L.L.C., 1201 Brickell Avenue, Suite 200, Miami, Florida 33131.

2/ The purpose of the hearing in this case can be better understood by reviewing the following documents previously issued in this case: The Commission on Human Relations (“FCHR”) order of May 18, 2001, titled Order Finding Discriminatory Housing Practice and Remanding Matter for Determination of Relief; the

DOAH order dated July 19, 2002, titled Order Declining Remand and Returning Jurisdiction to the Referring Agency; the FCHR order dated July 3, 2003, titled Order Remanding Petition for Relief from a Discriminatory Housing Practice for Determination of Relief; and the DOAH order dated August 12, 2003, titled Order Reopening File Following Remand by Florida Commission on Human Relations.

3/ Even at this late date in this proceeding it is unclear whether there is only one Respondent or whether there are two. This lack of clarity is discussed at length in endnote 4 of the DOAH Order Closing File issued on February 25, 2000.

4/ Fountains II was accorded a status analogous to that of a “friend of the court.” Fountains II was referred to during the course of the hearing as a “non-party intervenor.” This unusual participation by a non-party was allowed primarily because it offered the possibility to discover the identity or whereabouts of one or more of the potential Respondents. The exhibits offered by Fountains II are included in the record that is being provided to the FCHR with this Recommended Order.

5/ The delay in the filing of the late-filed exhibit was occasioned by a medical emergency of Fountains II’s legal counsel.

6/ This is the amount of “tangible relief” requested by Petitioner in her post-hearing summary of her position. The lost items of personal property are listed in that document.

Petitioner also presented evidence of the loss of personal property at the hearing.

7/ Even at this late date in this proceeding, it is unclear whether any Respondent in this case has ever received adequate notice of this proceeding. Concerns as to whether proper notice was ever given to any Respondent are addressed at length in the last two paragraphs of Endnote 4 of the DOAH Order Closing File issued on February 25, 2000.

8/ The underscored cautionary qualification is made because, as noted in the DOAH Order Closing File issued on February 25, 2000, the Division of Administrative Hearings has never been provided with any document that would tend to support a conclusion that any Respondent(s) received adequate notice of this proceeding.

COPIES FURNISHED:

Jacqueline Walker

3412 Northwest Second Avenue, No. 8

Miami, Florida 33127

Carlos L. de Zayas, Esquire Lydecker & Wadsworth, L.L.C. 1201 Brickell Avenue, Suite 200

Miami, Florida 33131

Alina Portunono, Manager 9330 Fountainbleau Boulevard

Miami, Florida 33172

Denise Crawford, Agency Clerk Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100

Tallahassee, Florida 32301

Cecil Howard, General Counsel Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100

Tallahassee, Florida 32301

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: 99-003578

Orders for Case No: 99-003578