STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

STERLING ONE REALTY AND WILLIAM ) ALVAREZ, )

)

Petitioners, )

)

vs. )

)

MARK S. WHITTINGTON, )

)

Respondent. )

Case No. 05-3638F

)

FINAL ORDER DENYING MOTION FOR ATTORNEY’S FEES

Mark S. Whittington (Mr. Whittington) filed a complaint with the Federal Department of Housing and Urban Development (HUD) on September 10, 2004, alleging that William Alvarez (Mr. Alvarez) and Sterling One Realty (Sterling) discriminated against him on the basis of his race in violation of the Fair

Housing Act. That complaint was referred by HUD to the Florida Commission on Human Relations (FCHR) to conduct an investigation. After the investigation, FCHR entered a “Notice of Determination of No Reasonable Cause” dated December 28, 2004, which concluded “. . . that reasonable cause does not exist to believe that a discriminatory housing practice has occurred. . . .” The FCHR dismissed Mr. Whittington’s complaint and provided him notice of his rights of recourse. Among the rights explained to Mr. Whittington was the right to file suit

in federal or state court. In addition, the Notice advised as follows:

The parties are further advised that the Complainant [Mr. Whittington] may request that a formal administrative proceeding be conducted. The request (i.e., Petition for Relief) must be filed with the FCHR within

30 days of the date of mailing of this Notice and should be in compliance with the provisions of rule 60Y-8.001 and Chapter 60Y-4, Florida Administrative Code, entitled General Procedures. . . .

Thereafter, Mr. Whittington filed a Petition for Relief, which was referred to the Division of Administrative Hearings (DOAH) where it was assigned DOAH Case No. 05-0090.

At issue in DOAH Case No. 05-0090 was whether Mr. Alvarez and Sterling violated the provisions of the Florida Fair Housing Act, which is codified in Sections 760.20 – 760.37, Florida Statutes (2005). As reflected by the Recommended Order,

Mr. Whittington did not meet his burden of proving that

Mr. Alvarez and Sterling had engaged in a discriminatory housing practice in violation of the Florida Fair Housing Act. The Recommended Order recommended that the FCHR dismiss

Mr. Whittington’s Petition for Relief because of that failure of proof.

On September 23, 2003, the FCHR entered a Final Order that adopted the Findings of Fact and Conclusions of Law set forth in

the Recommended Order. The Final Order dismissed the Petition for Relief.

On October 3, 2005, Mr. Alvarez and Sterling filed their “Motion for Prevailing Party Attorney’s Fees.” On October 17, 2005, Mr. Whittington responded to the Motion. Mr. Alvarez and Sterling rely upon the provisions of 42 U.S.C.A. § 3612(p) as the authority for their entitlement to attorney’s fees. That reliance is misplaced because the right to attorney’s fees in this forum, if such a right exists, would be pursuant to the provisions of Section 57.105(1)-(5), Florida Statutes (2005), which provide, in relevant part, as follows:

1. Upon the court's initiative or motion of any party, the court shall award a reasonable attorney's fee to be paid to the prevailing party . . . on any claim or defense at any time during a civil proceeding or action in which the court finds that the losing party . . . should have known that a claim or defense when initially presented to the court or at any time before trial:

   1. Was not supported by the material facts necessary to establish the claim or defense; or

   2. Would not be supported by the application of then-existing law to those material facts. . . .

2. Paragraph (1)(b) does not apply if the court determines that the claim or defense was initially presented to the court as a good faith argument for the extension, modification, or reversal of existing law or the establishment of new law, as it applied to the material facts, with a reasonable expectation of success.

* * *

(5) In administrative proceedings under chapter 120, an administrative law judge shall award a reasonable attorney's fee and damages to be paid to the prevailing party in equal amounts by the losing party and a losing party's attorney or qualified representative in the same manner and upon the same basis as provided in subsections (1)-(4). Such award shall be a final order subject to judicial review pursuant to s.

120.68. . . .

Mr. Alvarez and Sterling have not alleged that they are entitled to an award of attorney’s fees pursuant to Section 57.105, Florida Statutes (2005), nor would the facts that underpin this proceeding support such an assertion. In DOAH Case No. 05-0090, Mr. Whittington alleged certain facts which, if proven, would have established his claim of housing discrimination. Mr. Whittington, a pro se litigant, was unable to prove facts that were essential to his claim of housing discrimination. Based on the foregoing, it is concluded that Mr. Alvarez and Sterling are not entitled to an award of attorney’s fees pursuant to Section 57.105, Florida Statutes (2005).

The premises considered, it is ORDERED that the Motion for Prevailing Party Attorney’s Fees filed by Mr. Alvarez and Sterling is denied.

DONE AND ORDERED this 3rd day of November, 2005, in Tallahassee, Leon County, Florida.

S

CLAUDE B. ARRINGTON

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 3rd day of November, 2005.

COPIES FURNISHED:

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

Tallahassee, Florida 32301

Chad J. Tamaroff, Esquire Greenspoon, Marder, Hirschfeld,

Rafkin, Ross & Berger, P.A. Trade Center South, Suite 700

100 West Cypress Creek Road Fort Lauderdale, Florida 33309

Mark Whittington

1101 98th Street, Apartment 6 Bay Harbor, Florida 33154

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

Tallahassee, Florida 32301

NOTICE OF RIGHT TO JUDICIAL REVIEW

A party who is adversely affected by this Final Order is entitled to judicial review pursuant to Section 120.68, Florida Statutes. Review proceedings are governed by the Florida Rules of Appellate Procedure. Such proceedings are commenced by filing the original Notice of Appeal with the agency clerk of the Division of Administrative Hearings and a copy, accompanied by filing fees prescribed by law, with the District Court of Appeal, First District, or with the District Court of Appeal in the Appellate District where the party resides. The notice of appeal must be filed within 30 days of rendition of the order to be reviewed.

Docket for Case No: 05-003638F

Orders for Case No: 05-003638F