STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

RECOMMENDED ORDER

Pursuant to notice, the Division of Administrative Hearings, by its duly-designated Administrative Law Judge,

Susan B. Harrell, held a formal hearing in the above-styled case on September 19, 2008, in Naples, Florida.

APPEARANCES

For Petitioners: Michael and Donna Vale, pro se

970 Cape Marco Drive, Unit 2402 Marco Island, Florida 34145

For Respondents: Elizabeth P. Johnson, Esquire

Michael L. Elkins, Esquire Fowler, White, Burnett, P.A. 1395 Brickell Avenue, 14th floor Miami, Florida 33131

STATEMENT OF THE ISSUE

The issue in this proceeding is whether Respondents committed discriminatory housing practices against Petitioners based on their familial status.

PRELIMINARY STATEMENT

Petitioners, Michael and Donna Vale, filed a complaint on August 27, 2007, with the U.S. Department of Housing and Urban Development (HUD), alleging that Respondent, the Marbelle Club of Marco Island, was responsible for discriminatory terms, conditions, privileges, or the provision of services and facilities that discriminated against Petitioners on the basis of familial status in violation of Section 804(b) of the federal Fair Housing Act and Section 760.23, Florida Statutes (2006).1 Petitioners claimed that they were treated differently than other residents because they have five children under the age

of 18. They allege that they were harassed by Respondents, who enforced different terms and conditions against them because of the number of children in their household.

The complaint was forwarded to the Florida Commission on Human Relations (FCHR) for investigation. After the investigation was concluded, FCHR issued a notice on January 7, 2008, setting forth its determination that reasonable cause did not exist to believe that a discriminatory housing practice had occurred. On February 4, 2008, Petitioners filed a Petition for Relief with the FCHR.

The case was referred to the Division of Administrative Hearings, which noticed and conducted the hearing. The case was heard on September 19, 2008.

Before the hearing, Petitioners served a Motion to Quash the Determination of No Cause; Relinquish Jurisdiction; and Remand the Matter to the Florida Commission on Human Relations for Further Investigation and Determination. At the hearing, Petitioners argued that the Division of Administrative Hearings should relinquish jurisdiction and allow FCHR to investigate, as Petitioners claimed they had been notified during the investigation to submit any further evidence to FCHR too late to have time to submit more evidence. The Administrative Law Judge denied the motion. Petitioners elected to submit no further evidence aside from their motion to quash and the attached memorandum, which was admitted as Petitioners’ Exhibit 1. As Petitioners had failed to present a prima facie case, Respondents were granted permission to file a response to the motion in lieu of putting on their own evidence, as they had no case to rebut. This response was filed on September 25, 2008, and is admitted as Respondents’ Exhibit 1.

The Transcript was filed on September 26, 2008. The parties elected not to file proposed recommended orders.

FINDINGS OF FACT

1. The Petitioners appeared but presented no evidence.

   CONCLUSIONS OF LAW

   
   

2. The Division of Administrative Hearings has jurisdiction over the parties to and the subject matter of these proceedings. § 120.57(1), Fla. Stat. (2008).

3. Petitioners claim Respondents have committed acts in violation of Subsection 760.23(2), Florida Statutes, which reads in pertinent part:

   (2) It is unlawful to discriminate against any person in the terms, conditions, or privileges of sale or rental of a dwelling, or in the provision of services or facilities in connection therewith, because of race, color, national origin, sex, handicap, familial status, or religion.

   
   

4. “[I]f a state law is patterned after a federal law on the same subject, the Florida law will be accorded the same construction as in the federal courts to the extent the construction is harmonious with the spirit of the Florida legislation.” O'Loughlin v. Pinchback, 579 So. 2d 788, 791 (Fla. 1st DCA 1991). “The Florida Fair Housing Act contains statutory provisions that are substantively identical to the federal Fair Housing Act. . . .” Loren v. Sasser, 309 F.3d 1296, 1300 n.9 (11th Cir. 2002). In cases involving a claim of housing discrimination, the initial burden of proving a prima facie case of discrimination by a preponderance of the evidence rests with the complainant. Snyder v. Barry Realty, Inc.,

   953 F. Supp. 217, 219 (N.D. Ill. 1996)(citing McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802, 93 S.Ct. 1817, 1824 (1973)).

   “Failure to establish a prima facie case of discrimination ends the inquiry.” See Ratliff v. State, 666 So. 2d 1008, 1012 n.6 (Fla. 1st DCA 1996), aff’d, 679 So. 2d 1183 (Fla. 1996)(quoting Arnold v. Burger Queen Systems, 509 So. 2d 958 (Fla. 2d DCA 1987)).

5. In this case, Petitioners failed to present evidence in support of their claims. Inasmuch as Petitioners have failed to establish a prima facie case of discrimination on the basis of familial status, there is no further basis for the inquiry of whether discrimination occurred.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the FCHR enter a final order dismissing the Petition for Relief.

DONE AND ENTERED this 3rd day of October, 2008, in Tallahassee, Leon County, Florida.

S

SUSAN B. HARRELL

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 October, 2008.

ENDNOTE

1/ Unless otherwise indicated, all references to Florida Statutes are to the 2006 version.

COPIES FURNISHED:

Denise Crawford, Agency Clerk

Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100

Tallahassee, Florida 32301

Michael Vale Donna Vale

970 Cape Marco Drive, Unit 2402 Marco Island, Florida 34145

Elizabeth P. Johnson, Esquire Michael L. Elkins, Esquire Fowler, White, Burnett, P. A. 1395 Brickell Avenue, 14th Floor Miami, Florida 33131

Larry Kranert, 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: 08-000730

Orders for Case No: 08-000730