STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

ARLENE LEWIS, )

)

Petitioner, )

)

vs. ) Case No. 11-5475

) ARLEN HOUSE EAST CONDOMINIUM ) ASSOCIATION, )

)

Respondent. )

                               )

RECOMMENDED ORDER OF DISMISSAL

This case is before the undersigned based upon an Order to Show Cause, issued November 18, 2011. No final hearing is

necessary.

APPEARANCES

For Petitioner: Joshua David Frachtman, Esquire

Cole, Scott & Kissane, P.A.

1645 Palm Beach Lakes Boulevard, 2nd Floor West Palm Beach, Florida 33401

For Respondent: Arlene Lewis, pro se

100 Bayview Drive, Apartment 1902 Sunny Isles Beach, Florida 33401

STATEMENT OF THE ISSUE

The issue is whether the Petition for Relief was timely

filed.

PRELIMINARY STATEMENT

On September 21, 2011, the Florida Commission on Human Relations ("FCHR") mailed a Notice of Determination of No Cause

("Notice") to Petitioner. The Notice advised Petitioner that FCHR had determined that there was no reasonable cause to believe that a discriminatory housing practice had occurred.

The Notice further informed Petitioner that she had 30 days from the date the Notice was served to request an administrative hearing.

On October 24, 2011, one business day following the expiration of the 30-day deadline, FCHR received a Petition for Relief ("Petition") from Petitioner, which FCHR promptly referred to the Division of Administrative Hearings ("DOAH").

Subsequently, on November 8, 2011, Arlen House East Condominium Association, Respondent in this proceeding, filed a Motion to Dismiss the Petition as untimely.

Petitioner did not respond to the Motion to Dismiss, which prompted the undersigned, on November 18, 2011, to issue an Order to Show Cause that directed Petitioner to explain in writing, on or before November 28, 2011, why the Petition should not be dismissed as untimely. To date, Petitioner has not submitted a response to the Order to Show Cause.

Unless otherwise indicated, all statutory references are to the 2011 version of the Florida Statutes.

FINDINGS OF FACT

1. In August 2011, Petitioner filed a "Housing Discrimination Complaint" ("Complaint") with the United States

   Department of Housing and Urban Development and/or FCHR. In the Complaint, Petitioner alleged that Respondent was "discriminating against her because of her disability" by refusing to accept her service animal and by locking her out of the condominium lobby on multiple occasions.

2. On September 21, 2011, FCHR issued a "Notice of Determination of No Cause," which it served on Petitioner by

   U.S. Mail on the same date. The Notice advised Petitioner, in relevant part, as follows:

   The Florida Commission on Human Relations (FCHR) and the Department of Housing and Urban Development (HUD) administer the Fair Housing Act (the Act). The FCHR completed its investigation of the subject complaint, which was filed under the Act. Informal efforts to resolve the case during the investigation were unsuccessful.

   
   

   Based on the evidence obtained during the Investigation, the FCHR has determined that reasonable cause does not exist to believe that a discriminatory housing practice has occurred. Accordingly, the above-referenced complaint is hereby dismissed.

   
   

   * * *

   
   

   The parties are further advised that the Complainant 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 service 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. A Petition for Relief form is enclosed . . . . Failure of Complainant to

   timely file a Petition will result in dismissal of the complaint within the purview of Rule 60Y-2.004(2)(g).

   
   

   (Emphasis added).

   
   

3. Subsequently, on Monday, October 24, 2011——after the 30-day deadline, which fell on Friday, October 21, 2011——FCHR received a completed "Petition for Relief" form from Petitioner.

   CONCLUSIONS OF LAW

   
   

4. DOAH has jurisdiction over the parties to and subject matter of this proceeding pursuant to sections 120.569, 120.57(1), and 760.35(3)(b), Florida Statutes.

5. FCHR is the state agency responsible for administering the Fair Housing Act, which is codified in part II of chapter 760, Florida Statutes. See § 760.30(1), Fla. Stat.

6. The rules adopted by FCHR to implement the Fair Housing Act include Florida Administrative Code Rule 60Y-8.001, which provides, in relevant part:

   1. Petition. A complainant may file a Petition for Relief from a Discriminatory Housing Practice within 30 days of service of a Notice of Determination (No Cause) or Notice of Determination . . . .

      
      

   2. For good cause shown, the Chairperson may grant an extension of time to the complainant to file the Petition for Relief, provided the motion for extension of time is filed within the 30-day period.

      
      

   3. Procedures. Petitions for Relief, and proceedings thereupon, are governed by the provisions of Chapters 28-106 and 60Y-4,

      F.A.C., except as otherwise provided by this section.

      
      

      (Emphasis added).

      
      

7. There is no indication that Petitioner requested an extension of time to file a Petition, nor is there any showing that FCHR granted her such an extension pursuant to rule 60Y- 8.001(2).

8. The period for requesting an administrative hearing generally commences upon "receipt" of notice of the agency's decision. See Fla. Admin. Code. R. 28-106.111(2). However, based upon the preemptive language in subsection (3) of Florida Administrative Code Rule 60Y-8.001 and the clear language in subsection (1) of the same rule——i.e., that a petition for relief must be filed within 30 days of service of the notice of determination——the date that Petitioner received the Notice is not controlling.

9. Pursuant to rule 60Y-8.001(1), the 30-day deadline for Petitioner to file a petition for relief from a discriminatory housing practice commenced on September 21, 2011, when FCHR served (by U.S. Mail) the Notice to her, and expired on Friday, October 21, 2011. See id. The Petition, received by FCHR on October 24, 2011, and therefore "filed" on that date, was untimely. See Fla. Admin. Code R. 60Y-3.001(29)("'Date of Filing' means a completed complaint is received by the

   Commission prior to 5:00 p.m. (Eastern Time) as provided by Rule 28-106.104, F.A.C.").1

10. Unless the doctrine of equitable tolling applies, an untimely request for hearing must be dismissed. See, e.g., Aleong v. Dep't of Bus. & Prof'l Reg., 963 So. 2d 799, 801 (Fla. 4th DCA 2007)("The 1998 amendment to Florida Statutes section 120.569(2) added language requiring the dismissal of an

    untimely-filed petition. However, the amended statute does not eliminate the availability of the defense of equitable tolling. As explained, Dr. Aleong has not shown that the doctrine of equitable tolling applies. Accordingly, we are left with the mandatory language of section 120.569(2), which requires the dismissal of Dr. Aleong's untimely petition.").

11. The doctrine of equitable tolling is applicable in circumstances where a petitioner has been "misled or lulled into inaction, has in some extraordinary way been prevented from asserting his rights, or has timely asserted his rights mistakenly in the wrong forum." Machules v. Dep't of Admin., 523 So. 2d 1132, 1134 (Fla. 1988).

12. As there is no indication whatsoever that the doctrine of equitable tolling is implicated in this proceeding, the untimely Petition must be dismissed with prejudice. See Manchego v. Cocoa Lakes Apartments, Case No. 04-2804, 2005 Fla. Div. Adm. Hear. Lexis 822 (Fla. DOAH Jan. 18, 2005)(dismissing

with prejudice untimely filed petition for relief), adopted in toto, Order No. 05-029 (FCHR Mar. 8, 2005).

RECOMMENDATION

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

DONE AND ENTERED this 29th day of November, 2011, in Tallahassee, Leon County, Florida.

S

EDWARD T. BAUER

Administrative Law Judge

Division of Administrative Hearings The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-3060

(850) 488-9675

Fax Filing (850) 921-6847 www.doah.state.fl.us

Filed with the Clerk of the Division of Administrative Hearings this 29th day of November, 2011.

ENDNOTE

1 FCHR's service of the Notice by U.S. Mail did not result in an extension of the 30-day deadline to file the Petition. See Fla. Admin. Code R. 28-106.103 ("No additional time shall be added

. . . when the period of time begins pursuant to a type of notice described in Rule 28-106.111, F.A.C."); Watson v. Brevard Cnty. Clerk of the Circuit Court, 937 So. 2d 1264, 1265 (Fla.

5th DCA 2006)(affirming dismissal of petition for relief as untimely; "Therefore, by the express terms of [rule 28-106.103], the five-day extension did not apply to her petition"); Cann v. Dep't of Child. & Fam. Servs., 813 So. 2d 237, 238-39 (Fla. 2d

DCA 2002)("Although Florida Administrative Code Rule 28-106.103 allows an additional five days for mailing in some circumstances, that rule expressly excepts requests for hearing under rule 28-106.111.").

COPIES FURNISHED:

Arlene Lewis

100 Bayview Drive, Apartment 1902 Sunny Isles Beach, Florida 33401

Joshua David Frachtman, Esquire Cole, Scott & Kissane, P.A.

1645 Palm Beach Lakes Boulevard, 2nd Floor West Palm Beach, Florida 33401

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 must be filed with the agency that will issue the final order in this case.

Docket for Case No: 11-005475

Orders for Case No: 11-005475