STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

MARTA GONZALEZ and REMBERTO ) GOMEZ, )

)

Petitioners, )

)

vs. ) Case No. 05-1912

) AMERICAN VILLAGE CONDOMINIUM ) ASSOCIATION, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, a hearing was conducted in this case on July 29, 2005, by video teleconference at sites in Miami and Tallahassee, Florida, before Stuart M. Lerner, a duly-designated Administrative Law Judge of the Division of Administrative

Hearings.

APPEARANCES

For Petitioners: No appearance

For Respondent: Robert E. Paige, Esquire

9500 South Dadeland Boulevard, Suite 550

Miami, Florida 33156 STATEMENT OF THE ISSUE

Whether Respondent committed a discriminatory housing practice by denying Petitioners the opportunity to rent or purchase and ordering them to vacate their unit immediately and,

if so, what relief should the Florida Commission on Human Relations provide Petitioners.

PRELIMINARY STATEMENT

Petitioners filed a Housing Discrimination Complaint with the Florida Commission on Human Relations (Commission) on February 11, 2005. The complaint, which was written entirely in English, was docketed as FCHR Case No. 24-91517H.

On March 25, 2005, the Commission, through its Executive Director, issued a Determination of No Cause in FCHR Case No. 24-91517H advising that, following an investigation, the Commission had "determined that reasonable cause does not exist to believe that a discriminatory housing practice has occurred."

On April 25, 2005, Petitioners, using a Commission pre- printed form, filed a Petition for Relief (Petition) in FCHR Case No. 24-91517H. None of the entries made on the form were in the English language.

On April 28, 2005, the Division of Administrative Hearings (Division) received a Transmittal of Petition from the Commission, the body of which read as follows:

Please be advised that the Florida Commission on Human Relations has received [in FCHR Case No. 24-91517H] a Petition for Relief from an Unlawful Practice by MARTA GONZALEZ & REMBERTO GOMEZ. Pursuant to the Fair Housing Act, Sections 760.20-760.37, Florida Statutes (1997), and Rule 60Y- 25.004, Florida Administrative Code, the Commission requests the Division of

Administrative Hearings to assign this matter to an administrative law judge and conduct all necessary proceedings required under the law and submit recommended findings to the Commission. Copies of all relevant pleadings and papers heretofore filed in this proceeding are attached to this notice.

The Clerk of the Division docketed the Transmittal of Petition as DOAH Case No. 05-1549.

On May 9, 2005, the undersigned issued an Order in DOAH Case No. 05-1549 relinquishing jurisdiction to the Commission "so that it [could] (1) give Petitioners the opportunity to file an amended Petition [for Relief] in English or a certified verbatim English translation of the Petition they ha[d] already filed; and (2) 'carefully review' what it receive[d] from Petitioners to determine whether Petitioners ha[d] substantially complied with the applicable pleading requirements."

On May 16, 2005, the Commission filed with the Division a certified English translation of Petitioners' Petition, along with a Notice of Filing Certificate of Certified Translation.

On May 24, 2005, the undersigned received a letter from the Clerk of the Commission in which she stated, in pertinent part, that "the [Commission's] filing of [the certified English translation of Petitioners' Petition, along with the Notice of Filing Certificate of Certified Translation, on May 16, 2005]

relinquished jurisdiction [of DOAH Case No. 05-1549] back to the Division of Administrative Hearings "

On May 26, 2005, the undersigned issued an order reopening DOAH Case No. 05-1549 as DOAH Case No. 05-1912 "for further proceedings."

The final hearing in DOAH Case No. 05-1912 was scheduled by video teleconference at sites in Miami and Tallahassee for

July 29, 2005, commencing at 9:00 a.m. Petitioners and the Respondent were provided with written notice of the scheduled hearing in accordance with Section 120.569(2)(b), Florida Statutes. Such notice was in the form of a Notice of Hearing by Video Teleconference mailed on May 26, 2005, to Petitioners and the Respondent's counsel of record, Robert E. Paige, Esquire.

Respondent appeared at the hearing, which was held as scheduled on July 29, 2005, through its counsel of record, Mr. Paige. Petitioners, on the other hand, did not make an appearance at the hearing, either in person or through counsel or any other authorized representative.

After waiting approximately 35 minutes for Petitioners to appear, and not having heard from them, the undersigned went on the record. Mr. Paige, on behalf of the Department, declined to present any evidence, arguing, persuasively, that it was Petitioners, not Respondent, that had the burden of proof and that therefore Petitioner's failure to appear at the hearing and

offer evidence in support of their Petition should result in the Commission's dismissing their Petition. The undersigned indicated that he agreed and that he would issue an order recommending that the Commission take such action. The hearing was thereupon concluded.

FINDINGS OF FACT

1. Because no evidence was offered at the final hearing held in the instant case, no findings of fact are made.

   CONCLUSIONS OF LAW

   
   

2. DOAH has jurisdiction over the subject matter of this proceeding and of the parties hereto pursuant to Chapter 120, Florida Statutes.

3. Florida's Fair Housing Act (Act) is codified in Sections 760.20 through 760.37, Florida Statutes.

4. Among other things, the Act makes certain acts "discriminatory housing practices" and gives the Commission the authority, if it finds (following an administrative hearing conducted by an administrative law judge) that such a "discriminatory housing practice" has occurred, to issue an order "prohibiting the practice" and providing "affirmative relief from the effects of the practice, including quantifiable damages and reasonable attorney's fees and costs."

   § 760.35(3)(b), Fla. Stat.

5. In the instant case, Petitioners have claimed, in their Petition, that they were the victims of a discriminatory housing practice committed by Respondent.

6. Pursuant to Section 760.34(5), Florida Statutes, it was Petitioners' burden to prove at the final hearing held in this matter that this discriminatory housing practice in fact occurred.

7. Petitioners, however, failed to make an appearance at the hearing and present any evidence in support of their allegation of discrimination, despite having been afforded proper notice of the hearing.

8. Accordingly, Petitioners' Petition must be dismissed.

RECOMMENDATION

Based upon the foregoing, it is hereby

RECOMMENDED that the Commission issue a Final Order dismissing Petitioners' Petition.

DONE AND ENTERED this 29th day of July, 2005, in Tallahassee, Leon County, Florida.

S

STUART M. LERNER

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 July, 2005.

COPIES FURNISHED:

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

Remberto Gomez Marta Gonzalez

15220 Southwest 300th Street, Lot 534

Miami, Florida 33033

Robert E. Paige, Esquire

9500 South Dadeland Boulevard, Suite 550

Miami, Florida 33156

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: 05-001912

Orders for Case No: 05-001912