STATE OF FLORIDA COMMISSION ON HUMAN RELATIONS

ESTATE OF CHARLES A. TIPTON, HUD No. 04-15-0690-8

Petitioner, FCHR No.

v. DOAH No. 15-4999

WHISPERING OAKS ESTATES A, INC.,

FCHR Order No. 16-009

Respondent.

/

FINAL ORDER DISMISSING PETITION

RELIEF FROM A DISCRIMINATORY HOUSING PRACTICE

Preliminary Matters

Dr. B. J. Tipton, on behalf of Petitioner Estate of Charles A. Tipton, filed a housing discrimination complaint pursuant to the Fair Housing Act, Sections 760.20 - 760.37, Florida Statutes (2014), alleging that Respondent Whispering Oaks Estates HOA, Inc., committed discriminatory housing practices on the basis of the disability of Charles Tipton by failing to provide requested reasonable accommodations.

The allegations set forth in the complaint were investigated, and, on August 3,

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 by video teleconference at sites in Tampa and Tallahassee, Florida, on November 12, 2015, before Administrative Law Judge Garnett

W. Chisenhall.

Judge Chisenhall issued a Recommended Order of dismissal, dated December concluding that Dr. B.J. Tipton had failed to demonstrate legal authority to

prosecute the case on behalf of the estate of her father, Charles A. Tipton.

The Commission panel designated below considered the record of this matter 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

Filed February 17, 2016 10:58 AM Division of Administrative Hearings

Commission to consider. See National Industries, Inc. v. Commission on Human Relations, et 527 So. 2d 894, at 897, 898 5th DCA Accord, Coleman v. Daytona Beach, Ocean Center Parking Garage, FCHR Order No. 14-034 (September 10,

Gantz, et al. v. Zion's Hope, Inc., d/b/a Holy Land Experience, FCHR Order No. (June 6, and Hall v. Villages of West Oaks HOA, FCHR Order No. 08-007

(January 14, 2008).

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

Conclusions of Law

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

We adopt the Administrative Law Judge's conclusions of law.

Exceptions

Petitioner filed exceptions to the Administrative Law Judge's Recommended Order, received by the Commission on or about December 30,

The exceptions document contains two exceptions.

First, the document excepts to the Administrative Law Judge's conclusion of law set out at Recommended Order, 30, that Dr. B. J. Tipton had failed to demonstrate legal authority to prosecute the case on behalf of the estate of her father, Charles A. Tipton.

The Administrative Procedure Act states, "The agency in its final order may

or modify conclusions of law over which it has substantive jurisdiction and interpretation of administrative rules over which it has substantive jurisdiction." Section 120.57(1)(1), Florida Statutes (2015).

In our view, the conclusion of law excepted to, relating to whether Dr. B. J. Tipton demonstrated legal authority to prosecute the case on behalf of her father's estate, is not a conclusion of law within the "substantive jurisdiction" of the Commission.

This first exception is rejected.

Second, the document excepts to the Administrative Law Judge's conclusion of law, set out at Recommended Order, 55, that there is no statutory authority for the

to award punitive damages to Petitioner.

In conclusions of law adopted by a Commission Panel, an Administrative Law Judge stated, "At hearing, Petitioner indicated that he was seeking, among other things, an award of five million dollars in punitive damages. The Commission, however, is without authority to award punitive damages in any amount. Only a court can make such an award. § 760.35(2), Fla. Stat." See Conclusion of Law at Recommended Order, 25,

f.n. 3, in Powell v. DOAH Case No. (October 6, 2004), adopted by the Commission in FCHR Order No. (November 30, 2004). In addition, in the Recommended Order in Sherlock v. Wedgewood at Pelican Strand Neighborhood Association, et al, DOAH Case No. (June 7, the Administrative Law

Judge stated, "Next, on the issue of Ms. Sherlock's motion seeking punitive damages, the undersigned found that section 760.35(3)(b), Florida Statutes, did not provide statutory authority to award punitive damages in an administrative hearing. Therefore, Ms.

Sherlock's motion seeking punitive damages is denied." This second exception is rejected.

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 Rules of Appellate Procedure

DONE AND ORDERED this day . 2016. FOR THE FLORIDA ON

Commissioner Rebecca Steele, Panel Chairperson; Commissioner Tony Jenkins; and

Commissioner Jay Pichard

Filed this day of , in Tallahassee, Florida.

n

Clerk

Commission on Human Relations 4075 Esplanade Way, Room Tallahassee, FL 32399

(850) 488-7082

Copies furnished to:

Estate of Charles A. Tipton c/o Michael J. Bayern, Esq.

1400 Lake Shadow Ave., Apt. 10102

Maitland, FL 32751

Whispering Oaks Estates HOA, Inc. c/o David J. Murphy, Esq.

Mander Law Group

Third Street Dade City, FL 33523

Garnett W. Chisenhall, Administrative Law Judge, DOAH James Mallue, Legal Advisor for Commission Panel

I HEREBY CERTIFY that a copy of foregoing has been mailed to the above

By:

Clerk of the

Florida Commission on Human Relations

Docket for Case No: 15-004999

Orders for Case No: 15-004999