STATE OF FLORIDA
DIVISION OF ADMINISTRATIVE HEARINGS
JAMES WERGELES, | ) | |||
) | ||||
Petitioner, | ) | |||
) | ||||
vs. | ) ) | Case | No. | 09-4204 |
TREGATE EAST CONDO ASSOCIATION, | ) | |||
INC., | ) | |||
) | ||||
Respondent. | ) | |||
| ) |
RECOMMENDED ORDER
Administrative Law Judge (ALJ) Daniel Manry conducted the final hearing of this case for the Division of Administrative Hearings (DOAH) on March 10, 2010, by video teleconference in Tallahassee and Sarasota, Florida.
APPEARANCES
For Petitioner: James Wergeles, pro se
Post Office Box 346 Sarasota, Florida 34230
For Respondent: Sue Ellen Krick, Esquire
Law Offices of Kevin T. Wells, P.A. 1800 2nd Street, Suite 803
Sarasota, Florida 34236 STATEMENT OF THE ISSUES
The issues are whether Respondent engaged in a discriminatory housing practice by allegedly excluding Petitioner from participating in a homeowner’s meeting on January 14, 2009, or ejecting Petitioner from the meeting, based
on Petitioner’s religion and alleged handicap, in violation of Section 760.37 and Subsections 760.23(2), 760.23(8), 760.23(8)(2)(b), and 784.03(1)(a)(l), Florida Statutes (2008),1 and, if not, whether Respondent is entitled to attorney fees and costs pursuant to Section 120.595, Florida Statutes (2009).
PRELIMINARY STATEMENT
On April 3, 2009, Petitioner filed a Housing Discrimination Complaint (the Complaint) with the United States Department of Housing and Urban Development (HUD). The Complaint alleges that Respondent discriminated against him, in violation of Title VII of the Civil Rights Act of 1968, as amended by the Fair Housing Act of 1988 and the Florida Fair Housing Act, and retaliated against him for filing two prior complaints with HUD.
HUD referred the Complaint to the Florida Commission on Human Relations (Commission) for investigation. The Commission investigated the Complaint and, on June 30, 2009, issued a Notice of Determination of No Cause (No Cause Determination).
Petitioner requested an administrative hearing by filing a Petition for Relief (Petition) with the Commission on August 3, 2009. The Commission referred the Petition to DOAH to conduct an administrative hearing.
DOAH assigned the case to ALJ Carolyn S. Holifield. Prior to the final hearing, Judge Holifield entered an order limiting the scope of the final hearing to evidence relevant to alleged
discrimination that occurred during a homeowners meeting on January 14, 2009. The ruling by Judge Holifield was the law of the case when DOAH subsequently transferred the case to the undersigned, and that ruling remains the law of the case in this Recommended Order.
At the hearing, Petitioner testified and submitted numerous unnumbered exhibits for admission into evidence, which Petitioner represented on the record at the final hearing numbered approximately 138 exhibits. Respondent submitted 11 exhibits, but did not have copies available at the video location attended by the ALJ.
Pursuant to the agreement of the parties, the ALJ kept the evidentiary record of hearing open until March 15, 2010, to allow each party time to file their respective exhibits with DOAH. Respondent timely filed its exhibits on March 12, 2010, and Respondent’s exhibits are admitted into evidence without objection. Petitioner filed 12 numbered exhibits after the ALJ entered the Order Closing the Hearing Record on March 17, 2010.2 Petitioner’s numbered exhibits can not be correlated by number to any of Petitioner’s unnumbered exhibits submitted at the hearing. Petitioner’s numbered and unnumbered exhibits are rejected as untimely filed.
The identity of the witnesses and exhibits, and the rulings regarding each, are reported in the record of the final hearing. Respondent timely filed its Proposed Recommended Order (PRO) on March 29, 2010. Petitioner did not file a PRO.
FINDINGS OF FACT
Respondent is a condominium association defined in Section 718.103, Florida Statutes. Respondent manages a condominium development, identified in the record as Tregate East Condominiums (Tregate). Tregate is a covered multifamily dwelling within the meaning of Subsection 760.22(2), Florida Statutes.
Petitioner is a Jewish male whose age is not evidenced in the record. A preponderance of the evidence presented at the final hearing does not establish a prima facie case of discrimination on the basis of religion, ethnicity, medical, or mental disability, or perceived disability. Rather, a preponderance of the evidence shows that Respondent did not discriminate against Petitioner in the association meeting on January 14, 2009.
In particular, the fact-finder reviewed the videotape of the entire meeting that took place on January 14, 2009. The meeting evidenced controversy, acrimony, and differences of opinion over issues confronting the homeowners present. However, the video tape did not establish a prima facie case of
discrimination based on Petitioner’s religion, ethnicity, or alleged handicap.
Respondent seeks attorney’s fees in this proceeding pursuant to Section 120.595, Florida Statutes (2009). Pursuant to Subsection 120.595(1)(c), Florida Statutes (2009), this Recommended Order finds that Petitioner has participated in this proceeding for an improper purpose.
Petitioner participated in this proceeding for a frivolous purpose within the meaning of Subsection 120.595(1)(e)1., Florida Statutes (2009). The evidence submitted by Petitioner presented no justiciable issue of fact or law.
Petitioner provided no evidence to support a finding that he suffers from a handicap defined in Subsection 760.22(7), Florida Statutes. Petitioner claims to have a disability based on migraine headaches but offered no medical evidence to support a finding that Petitioner suffers from migraine headaches or any medical or mental disability.
Petitioner’s testimony was vague and ambiguous, lacked precision, and was not specific as to material facts. Petitioner called four other witnesses and cross-examined Respondent’s witnesses. Petitioner’s examination of his
witnesses and cross-examination of Respondent’s witnesses may be fairly summarized as consisting of comments on the answers to
questions and argument with the witnesses. Petitioner repeatedly disregarded instructions from the ALJ not to argue with witnesses and not to comment on the testimony of a witness.
Petitioner offered no evidence or legal authority that the alleged exclusion from the homeowners meeting on January 14, 2009, was prohibited under Florida’s Fair Housing Act.3 Petitioner offered no evidence that he is a “buyer” or “renter” of a Tregate condominium within the meaning of Section 760.23, Florida Statutes. Rather, the undisputed evidence shows that Petitioner is not a buyer or renter of a Tregate condominium.
Petitioner attended the homeowners meeting on January 14, 2009, pursuant to a power of attorney executed by the owner of the condominium. If a preponderance of the
evidence were to have shown that the owner’s representative had been excluded from the meeting, the harm allegedly prohibited by the Fair Housing Act would have been suffered vicariously by the condominium owner, not the non-owner and non-renter who was attending the meeting in a representative capacity for the owner. The condominium owner is not a party to this proceeding.
A preponderance of the evidence does not support a finding that Petitioner has standing to bring this action. Petitioner was neither an owner nor a renter on January 14, 2009. Petitioner’s only legal right to be present at the meeting was in a representative capacity for the owner. The
alleged exclusion of Petitioner was an alleged harm to the principal under the Fair Housing Act.
Respondent is the prevailing party in this proceeding, and Petitioner is the non-prevailing party. Petitioner has participated in two or more similar proceedings involving Respondent. The parties resolved those proceedings through settlement. The resolution is detailed in the Determination of No Cause by the Commission and incorporated herein by this reference.
Respondent seeks attorney’s fees totaling $3,412.00 and costs totaling $1,001.50. No finding is made as to the reasonableness of the attorney fees costs because Respondent did not include an hourly rate and did not submit an affidavit of fees and costs. However, the referring agency has statutory authority to award fees costs in the final order pursuant to Subsection 760.11(7), Florida Statutes.
CONCLUSIONS OF LAW
DOAH has jurisdiction over the parties to this proceeding. DOAH provided the parties with adequate notice of the administrative proceeding. §§ 120.569, 120.57(1), Fla. Stat. (2009).
DAOH does not have jurisdiction over the subject matter of this proceeding. §§ 760.20 through 760.37, Fla. Stat. For reasons stated in the Findings of Fact, a preponderance of
the evidence does not show that Petitioner, who is neither a buyer nor a renter at Tregate, has standing under the Fair Housing Act to bring an action against Respondent for the alleged exclusion from the homeowners meeting conducted on January 14, 2009.
In administrative proceedings, standing is jurisdictional and cannot be conferred by the consent of the parties. Nor can jurisdiction be conferred by omission such as when the parties fail to raise the issue of jurisdiction. Rather, the ALJ has only that statutory authority granted by the Legislature and has a statutory duty to question his or her own jurisdiction sua sponte. See, e.g., Abbott Laboratories v.
Mylan Pharmaceuticals, Inc., 15 So. 3d 642, 651 (Fla. 1st DCA 2009) (dictum); Grand Dunes, Ltd. v. Walton County, 714 So. 2d 473, 474-75 (Fla. 1st DCA 1998) (standing in a proceeding to challenge a development order under Section 380.07(2)). But see South Broward Citizens for a Better Environment, Inc. v. South Broward County Resource Recovery Project, 502 So. 2d 9 (Fla. 1st DCA 1986).
If it were determined that DOAH does have subject matter jurisdiction, Petitioner would have the burden of proof in this proceeding. Petitioner must submit evidence sufficient to establish a prima facie case of discrimination. See Massaro v. Mainlands Section 1 and 2 Civic Association, Inc., 3 F.3d
1472, 1476 n.6 (11th Cir. 1993)(fair housing discrimination is subject to the three-part test articulated in McDonnell Douglas Corp. v. Green, 411 U.S. 792, 93 S. Ct. 1817, 36 L. Ed. 2d 668
(1973)); Secretary of the United States Department of Housing
and Urban Development on Behalf of Herron v. Blackwell, 908 F.2d 864, 870 (11th Cir. 1990)(three-part burden of proof test in McDonnell governs claims brought under Title VII of the Civil Rights Act). For reasons stated in the Findings of Fact, Petitioner did not present a prima facie case of discrimination or disparate treatment.4
A determination of whether a party participates in a proceeding for an improper purpose is a finding of fact. See
Burke v. Harbor Estates Associates, Inc., 591 So. 2d 1034, 1037 (Fla. 1st DCA 1991)(applying former Subsection 120.59(6), Florida Statutes, the predecessor to current Subsection 120.595(1)(e)1., Florida Statutes); accord State of Florida v. Hart, 677 So. 2d 385, 386 (Fla. 4th DCA 1996); Dolphins Plus v. Residents of Key Largo Ocean Shores, Clarence C. Hobdy and State of Florida, Department of Environmental Regulation, 598 So. 2d
324 (Fla. 3d DCA 1992). The fact-finder may rely on permissible inferences based on the facts and circumstances in the proceeding. Burke, 591 So. 2d at 1037. The absence of direct evidence of intent does not convert the issue to a question of law. Id.
Based on the foregoing Findings of Fact and Conclusions of Law, it is
RECOMMENDED that the Florida Commission on Human Relations enter a final order dismissing the Petition for Relief and requiring Petitioner to pay reasonable attorney’s fees and costs in the amounts to be determined by the Commission after hearing further evidence on fees and costs in accordance with Subsection 760.11(7), Florida Statutes.
DONE AND ENTERED this 15th day of April, 2010, in Tallahassee, Leon County, Florida.
S
DANIEL MANRY
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 15th day of April, 2010.
ENDNOTES
1/ References to subsections, sections, and chapters are to Florida Statutes (2008) unless otherwise stated.
2/ Petitioner’s Exhibit numbered 1, a CD recording of a meeting on November 19, 2008, is not filed with DOAH. Petitioner’s
Exhibit numbered 2, the CD recording of the meeting on January 14, 2009, is Respondent’s Exhibit numbered 2.
3/ Florida’s Fair Housing Act prohibits numerous discriminatory practices. In relevant part, the Act prohibits discrimination based on a handicap by refusing to sell or rent real estate; discriminating in the terms and conditions of the sale or rental of real estate; preferences in advertising for the sale or rental of real estate; representing that real estate is unavailable for sale or rent; inducing the sale or rental of real estate based on the entry of persons with a handicap into the neighborhood; to deny a handicapped person membership in a multiple-listing real estate broker’s service; discriminate in the financing of housing; and to discriminate in land use and permitting decisions. §§ 760.23(1)-(10); 760.24; 760.25; and
760.26, Fla. Stat.
4/ Subsection 760.23(8)(c), Florida Statutes, makes it an unlawful housing practice to discriminate in the provision of services or facilities after the sale or rental of a dwelling because of a handicap of the buyer or renter or any person associated with the buyer or renter. The ALJ construes the statutory phrase "provision of services or facilities" in a manner that does not include attendance at homeowners meetings. Therefore, “any person associated with the buyer” at Tregate is not statutorily entitled by Subsection 760.23(8)(c), Florida Statutes, to attend homeowners meeting in their own right. Even if the statute were construed to confer such a right on Petitioner, Petitioner failed to make a prima facie showing of a handicap within the meaning of Subsection 760.23(8), Florida Statutes.
COPIES FURNISHED:
Sue Ellen Krick, Esquire
Law Offices of Kevin T. Wells, P.A. 1800 2nd Street, Suite 803
Sarasota, Florida 34236
James Wergeles
Post Office Box 346 Sarasota, Florida 34230
Denise Crawford, Agency Clerk
Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100
Tallahassee, Florida 32301
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.
| Issue Date | Document | Summary |
|---|---|---|
| Jun. 25, 2010 | Agency Final Order | |
| Apr. 15, 2010 | Recommended Order | Attendee at homeowners' meeting, who was neither an owner nor renter, had no standing to bring action for alleged exclusion from meeting, and exclusion is not a cause of action under the act. |
