STATE OF FLORIDA COMMISSION ON HUMAN RELATIONS

ANTHONY G. SAGER, JR., HUD Case No. 04-12-0829-8

Petitioner, FCHR Case No. 2012H0294

v. DOAH Case No. 12-2876

HUBERT AND MARTHA DAWLEY, FCHR Order No. 13-003

Respondents.

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FINAL ORDER DISMISSING PETITION FOR RELIEF FROM A DISCRIMINATORY HOUSING PRACTICE

Preliminary Matters

Petitioner Anthony G. Sager, Jr., filed a housing discrimination complaint pursuant to the Fair Housing Act, Sections 760.20 - 760.37, Florida Statutes (2011), alleging that Respondents Hubert and Martha Dawley committed discriminatory housing practices on the basis of Petitioner’s handicap / disability with regard to Petitioner’s leasing of an apartment from Respondents, by failing to accommodate Petitioner’s “assistant” animal and by failing to make needed repairs to the apartment.

The allegations set forth in the complaint were investigated, and, on August 16, 2012, the Executive Director issued a determination finding that there was no reasonable cause to believe that a discriminatory housing practice had occurred.

Petitioner filed a Petition for Relief from a Discriminatory Housing Practice and the case was transmitted to the Division of Administrative Hearings for the conduct of a formal proceeding.

An evidentiary hearing was held in Milton, Florida, on October 11, 2012, before Administrative Law Judge Robert S. Cohen.

Judge Cohen issued a Recommended Order of dismissal, dated October 26, 2012. The Commission panel designated below considered the record of this matter,

including participation in a noticed telephonic meeting to discuss this case on January 17, 2013, and determined the action to be taken on the Recommended Order.

Findings of Fact

A transcript of the proceeding before the Administrative Law Judge was not filed with the Commission. In the absence of a transcript of the proceeding before the Administrative Law Judge, the Recommended Order is the only evidence for the Commission to consider. See National Industries, Inc. v. Commission on Human

Filed January 22, 2013 3:09 PM Division of Administrative Hearings

Relations, et al., 527 So. 2d 894, at 897, 898 (Fla. 5th DCA 1988). Accord, Mack v. Agency for Persons with Disabilities, FCHR Order No. 11-026 (March 17, 2011), Hall v. Villages of West Oaks HOA, FCHR Order No. 08-007 (January 14, 2008), Beach- Gutierrez v. Bay Medical Center, FCHR Order No. 05-011 (January 19, 2005), and

Waaser v. Streit’s Motorsports, FCHR Order No. 04-157 (November 30, 2004).

Recognizing this constraint on our review of the findings of fact, we comment that we are troubled about the finding in Recommended Order, ¶ 24, that Respondents were not made aware of Petitioner’s disability. Respondents’ Exhibit 1, “Application to Rent,” indicates under “Employment” that Petitioner is “disabled.” Nevertheless, in the absence of a transcript of the proceeding before the Administrative Law Judge we recognize that we are not aware of the circumstance of the admission of this exhibit, nor of testimony presented that the Administrative Law Judge may have credited.

We adopt the Administrative Law Judge’s findings of fact.

Conclusions of Law

We find the Administrative Law Judge’s application of the law to the facts to result in a correct disposition of the matter.

We are concerned that the Administrative Law Judge appears to equate the terms “service animal” and “pet.” For example, we note that in Recommended Order, ¶ 24, the Administrative Law Judge states, “Moreover, since Petitioner told Respondents he had no pets, they could not be charged with any knowing act of discrimination regarding the existence of a service dog. The simple fact is that Petitioner either intentionally or unintentionally misled Respondents into believing he had no pet.”

In our view, if a person who needed and owned a service dog was asked whether they had a pet, “no” would be a true and correct answer (unless they had another animal that actually was a pet). In other words, “service animals” are not “pets.” See, Section 413.08(1)(d), Florida Statutes (2012).

With these comments, we adopt the Administrative Law Judge’s conclusions of

law.

Exceptions

None of the parties filed exceptions to the Administrative Law Judge’s Recommended Order.

Dismissal

The Petition for Relief and Housing Discrimination Complaint are DISMISSED with prejudice.

The parties have the right to seek judicial review of this Order. The Commission and the appropriate District Court of Appeal must receive notice of appeal within 30 days

of the date this Order is filed with the Clerk of the Commission. Explanation of the right to appeal is found in Section 120.68, Florida Statutes, and in the Florida Rules of Appellate Procedure 9.110.

DONE AND ORDERED this 22nd day of January , 2013. FOR THE FLORIDA COMMISSION ON HUMAN RELATIONS:

Commissioner Gilbert M. Singer, Panel Chairperson; Commissioner Michael Keller; and

Commissioner Michell Long

Filed this 22nd day of January , 2013, in Tallahassee, Florida.

/s/ Violet Crawford, Clerk Commission on Human Relations

2009 Apalachee Parkway, Suite 100

Tallahassee, FL 32301

(850) 488-7082

Copies furnished to:

Anthony G. Sager, Jr.

6665 Magnolia Street

Milton, FL 32570

Hubert and Martha Dawley 4661 Keyser Lane

Pace, FL 32571

Robert S. Cohen, Administrative Law Judge, DOAH James Mallue, Legal Advisor for Commission Panel

I HEREBY CERTIFY that a copy of the foregoing has been mailed to the above listed addressees this 22nd day of January , 2013.

By: /s/ Clerk of the Commission

Florida Commission on Human Relations

Docket for Case No: 12-002876

Orders for Case No: 12-002876