STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

CASILDA PELAEZ )

)

Petitioner, )

)

vs. ) Case No. 05-3397

) CARLOS CHIALASTRI, PRESIDENT, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, a hearing was conducted in this case on November 29, 2005, by video teleconference at sites in Miami and Tallahassee, Florida, before Florence Snyder Rivas, a duly- designated Administrative Law Judge of the Division of Administrative Hearings.

APPEARANCES

For Petitioner: No appearance

For Respondent: Gary Marlin, Esquire

M.S. Marlin, P.A.

250 Catalonia Avenue, Suite 303 Coral Gables, Florida 33234

STATEMENT OF THE ISSUE

Whether Respondent committed a discriminatory housing practice against Petitioner as alleged in the Petition for Relief dated September 15, 2005, and if so, what relief should the Florida Commission on Human Relations provide.

PRELIMINARY STATEMENT

Petitioner filed a complaint with the United States Department of Housing and Urban Development (HUD), dated July 5, 2005, which complaint alleged violation(s) of the Fair Housing Act. HUD referred the complaint to the Florida Commission on Human Relations (Commission). On August 22, 2005, the Commission, through its Executive Director, issued a Determination of No Cause in FCHR Case No. 25-91612H 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 August 31, 2005, Petitioner, using a Commission pre- printed form, filed a Petition for Relief (Petition) in FCHR Case No. 25-91612H.

On September 21, 2005, the Division of Administrative Hearings 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 a Petition for Relief from an Unlawful Housing Practice by Casilda Pelaez. 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. 05-3397.

The final hearing in DOAH Case No. 05-3397 was scheduled by video teleconference at sites in Miami and Tallahassee for November 29, 2005, commencing at 9:00 a.m. Petitioner 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 September 29, 2005, to Petitioner at her address of record and to Respondent's counsel of record.

Respondent appeared at the hearing, which was held as scheduled on November 29, 2005, accompanied by his counsel of record, Mr. Gary Marlin and one witness. Petitioner, 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 a half-hour for Petitioner to appear, and not having heard from her, the undersigned checked her mail and found an ex-parte communication from Petitioner. The undersigned went on the record to address the ex-parte

communication. It was determined by the undersigned, upon due consideration, that the ex-parte communication did not furnish

good cause for further delay in the commencement of the hearing.1 The hearing proceeded. Mr. Marlin, on behalf of Respondent, declined to present any evidence, arguing, persuasively, that it was Petitioner, not Respondent, that had the burden of proof and that Petitioner's failure to appear at hearing and offer evidence in support of the Petition should result in the Commission's dismissing the Petition. The undersigned indicated that she agreed and would issue an order recommending that the Commission dismiss the Petition. 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. The Division of Administrative Hearings has jurisdiction over the subject matter of this proceeding and of the parties hereto pursuant to Chapter 120, Florida Statutes (2005).

3. Florida's Fair Housing Act (Act) is codified in Sections 760.20 through 760.37, Florida Statutes (1997).

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. (1997).

   
   

5. In the instant case, Petitioner claimed, in her Petition, that she was the victim of a discriminatory housing practice committed by Respondent.

6. Pursuant to Section 760.34(5), Florida Statutes (1997), it was Petitioner’s burden to prove at the final hearing held in this matter that an alleged discriminatory housing practice in fact occurred.

7. Petitioner, however, failed to make an appearance at the hearing and present any evidence in support of her allegation of discrimination, despite having been afforded proper notice of the hearing. In so concluding, the undersigned has taken due notice of the ex-parte communication.

8. Accordingly, the Petition must be dismissed.

RECOMMENDATION

Based upon the foregoing, it is hereby

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

DONE AND ENTERED this 30th day of November, 2005, in Tallahassee, Leon County, Florida.

S

FLORENCE SNYDER RIVAS

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 30th day of November, 2005.

ENDNOTE

1/ The ex-parte communication reflected an address which Petitioner identified as “my mailing.” Petitioner did not ask that her address of record be deleted. In fact, Petitioner used the address of record as her return address. This Recommended Order is, therefore, being sent to Petitioner at both addresses.

COPIES FURNISHED:

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

Tallahassee, Florida 32301

Casilda Pelaez

Post Office Box 1404 Newburgh, New York 12551

Casilda Pelaez

Post Office Box 358 Hughsonville, New York 12535

Gary Marlin, Esquire

M. S. Marlin, P.A.

250 Catalonia Avenue, Suite 303 Coral Gables, Florida 33234

Carlos Chialastri

Trizel Commercial R.E. Services, Inc.

250 Catalonia Avenue, Suite 305 Coral Gables, Florida 33134

Cecil Howard, General Counsel 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: 05-003397

Orders for Case No: 05-003397