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ARLENE LEWIS vs ARLEN HOUSE EAST CONDOMINIUM ASSOCIATION, 11-005475 (2011)

Court: Division of Administrative Hearings, Florida Number: 11-005475 Visitors: 45
Petitioner: ARLENE LEWIS
Respondent: ARLEN HOUSE EAST CONDOMINIUM ASSOCIATION
Judges: EDWARD T. BAUER
Agency: Commissions
Locations: Miami, Florida
Filed: Oct. 25, 2011
Status: Closed
Recommended Order on Wednesday, June 13, 2012.

Latest Update: Jun. 13, 2012
Summary: The issue is whether the Petition for Relief was timely filed.Petitioner failed to demonstrate that she is handicapped within the meaning of the Fair Housing ACT; assuming arguendo she is a protected individual, Petitioner failed to prove any intentional discrimination or failure to accommodate.
RECOMMENDED ORDER

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
Issue Date Proceedings
Jun. 13, 2012 Recommended Order (hearing held June 4, 2012). CASE CLOSED.
Jun. 13, 2012 Recommended Order cover letter identifying the hearing record referred to the Agency.
Jun. 12, 2012 Respondents' Notice of Filing Proposed Recommended Order filed.
Jun. 11, 2012 Letter to Judge Bauer from A. Lewis regarding to sum up the reasons filed.
Jun. 04, 2012 CASE STATUS: Hearing Held.
May 29, 2012 Respondent's Notice of Attendance of Court Reporter at Video Teleconference Hearing filed.
May 25, 2012 Respondents' Notice of Attendance of Court Reporter at Video Teleconference Hearing filed.
May 25, 2012 Respondent's Response to Initial Order (exhibits not availabe for viewing) filed.
May 24, 2012 Respondents Arlene House East Condominium Association, Inc., and Yda O'Kurliand-Pack's (Proposed) Exhibit List (exhibits not available for viewing).
May 23, 2012 Respondents Arlene House East Condominium Association, Inc. and Yda O'Kurliand-Pack's Witness List filed.
May 23, 2012 Respondents Arlene House East Condominium Association, Inc. and Yda O'Kurliand-Pack's (Proposed) Exhibit List filed.
May 23, 2012 Respondents' Notice of Filing Proposed Exhibits filed.
May 23, 2012 Notice of Taking Deposition Duces Tecum (of A. Lewis) filed.
May 14, 2012 Notice of Taking Deposition Duces Tecum (Arlene Lewis) filed.
May 08, 2012 Notice of Appearance (filed by Justin Sorel).
Apr. 09, 2012 Certified Return Receipt received this date from the U.S. Postal Service.
Apr. 02, 2012 Certified Return Receipt received this date from the U.S. Postal Service.
Mar. 28, 2012 Certified Mail Receipts stamped this date by the U.S. Postal Service.
Mar. 28, 2012 Order of Pre-hearing Instructions.
Mar. 28, 2012 Notice of Hearing by Video Teleconference (hearing set for June 4 through 6, 2012; 9:00 a.m.; Miami and Tallahassee, FL).
Mar. 27, 2012 Respondent's Response to Initial Order filed.
Mar. 16, 2012 Order Re-opening File. CASE REOPENED.
Feb. 21, 2012 Agency Final Order Remanding Petition for Relief from a Discriminatory Housing Practice filed.
Nov. 29, 2011 Recommended Order of Dismissal. CASE CLOSED.
Nov. 18, 2011 Certified Return Receipt received this date from the U.S. Postal Service.
Nov. 18, 2011 Order to Show Cause.
Nov. 14, 2011 Certified Return Receipt received this date from the U.S. Postal Service.
Nov. 08, 2011 Certified Mail Receipts stamped this date by the U.S. Postal Service.
Nov. 08, 2011 Respondents' Motion to Dismiss filed.
Nov. 08, 2011 Order of Pre-hearing Instructions.
Nov. 08, 2011 Notice of Hearing by Video Teleconference (hearing set for January 3, 2012; 9:00 a.m.; Miami and Tallahassee, FL).
Oct. 26, 2011 Initial Order.
Oct. 25, 2011 Housing Discrimination Complaint filed.
Oct. 25, 2011 Determination filed.
Oct. 25, 2011 Notice of Determination of No Cause filed.
Oct. 25, 2011 Transmittal of Petition filed by the Agency.
Oct. 25, 2011 Petition for Relief filed.

Orders for Case No: 11-005475
Issue Date Document Summary
Jun. 13, 2012 Remanded from the Agency Petitioner failed to demonstrate that she is handicapped within the meaning of the Fair Housing ACT; assuming arguendo she is a protected individual, Petitioner failed to prove any intentional discrimination or failure to accommodate.
Feb. 21, 2012 Agency Final Order
Nov. 29, 2011 Recommended Order Petitioner failed to demonstrate that she is handicapped within the meaning of the Fair Housing ACT; assuming arguendo she is a protected individual, Petitioner failed to prove any intentional discrimination or failure to accommodate.
Source:  Florida - Division of Administrative Hearings

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