ROSS J. COUPLES,
vs.
Respondents.
Case No. 20-4633
On March 3, 2021, Administrative Law Judge Hetal Desai of the Florida Division of Administrative Hearings (DOAH) conducted the final hearing in this case via Zoom.
For Petitioner: Christopher J. DeCosta, Esquire
Whether Petitioner's housing discrimination complaint alleging violations of the Florida Fair Housing Act, chapter 760, part II, Florida Statutes (2020) (FFHA), was timely filed.1
1 Unless otherwise indicated, all federal and state statutory and administrative rule references are to the 2020 versions.
Petitioner, Ross Couples, submitted a Housing Discrimination Complaint (Complaint) to the Florida Commission on Human Relations (FCHR) which indicates that he verified it on July 21, 2020. The date the Complaint was filed with FCHR is in dispute. The Complaint alleged Respondents discriminated against him because of his disability in violation of the FFHA:
Complainant alleged that he has requested that the Respondent Timothy Cloud repairs [sic] his water heater so that he could have enough water to help assist him with therapy for his disability. Complainant stated that the Respondent failed to make the repairs after multiple requests. Complainant states that in June 2019 the Respondent would not make the accommodations in which his lease was terminated prior and an eviction was filed because of his consistency with requesting that the repairs be made. As such, Complainant believes that Respondents subjected him to discriminatory terms and conditions based on his physical disability.
On September 18, 2020, FCHR issued a "Notice of Determination" and "Determination (Non-Jurisdictional)" (Determination) deeming Petitioner's Complaint untimely pursuant to section 760.34(2), and finding it did not have jurisdiction over Petitioner's claims.
On October 15, 2020, Petitioner filed a Petition for Relief with FCHR contesting the dismissal. On October 20, 2020, FCHR transmitted the Petition to DOAH, where it was assigned to Administrative Law Judge John D.C. Newton to conduct an evidentiary hearing.
On November 10, 2020, Judge Newton set this matter for a hearing to address the threshold issue of whether the FCHR Complaint was filed within the time period established by section 760.34(2).
Because Judge Newton had a conflict, the undersigned conducted the hearing on March 3, 2021. At that hearing, Petitioner presented his own testimony. Petitioner's Exhibits P1 and P2 were admitted into evidence. Respondents presented no witnesses and no evidence.
At the hearing, the parties stipulated to a number of dates, which are incorporated in the Findings of Fact below. Additionally, at the hearing Petitioner raised for the first time the defense of equitable tolling. The undersigned allowed the parties to submit post-hearing submissions or memoranda that were summary in nature to specifically address the issue of equitable tolling.
Petitioner filed a memorandum in Support of the Application of the Tolling Doctrine on March 15, 2021.2 On March 16, 2021, Respondents filed a Motion for Summary Judgment (Motion), which addressed the issue of equitable tolling, but also included 17 exhibits that were not admitted into evidence at the March 3, 2021, final hearing.3 On April 26, 2021, Petitioner filed "Petitioner, Ross Couples' Response To Respondent's [sic] Motion For Summary Judgment And Cross-Motion For Summary Final Order" (Response) and an Affidavit in Support of the Response. The undersigned treats the Motion and Response as proposed recommended orders.
Regarding the additional exhibits attached to the Motion, the undersigned takes official recognition of Respondents' Exhibits 8, 9, and 14 through 17.
See §§ 120.569(2)(i) and 90.202(5) and (6), Fla. Stat.; Fla. Admin. Code R. 28- 106.213(6). The remaining exhibits have not been considered because
2 On March 18, 2021, Petitioner filed a Notice of Withdrawal of Counsel and Request for Continuance to Obtain New Counsel and his counsel filed a Motion to Withdraw as Counsel of Record. As a result, Petitioner was given additional time to submit post-hearing filings.
3 Although Respondents cite to an "Exhibit XX" in its Motion, no Exhibit 20 was attached.
Respondents had the opportunity to present evidence at the final hearing, but did not. Moreover, the remaining exhibits are unreadable, irrelevant, hearsay, and/or unauthenticated. Petitioner's Affidavit attached to the Response is not admitted into the record because Petitioner was allowed to testify at the hearing and was subject to cross-examination.
On April 26, 2021, Petitioner filed a Motion for Official Recognition along with Exhibits A through C. This motion seeks official recognition of the court filings in Ren v. Couples, in the County Court of the 20th Judicial Circuit for Lee County, Florida (Case No. 19-CC-2732) (eviction action); and the licensing records of the State of Florida for Respondent Timothy Cloud. No objection to this motion was filed, and therefore, the undersigned takes official recognition of these documents and has considered attachments A through C in preparation of this Recommended Order.
The Transcript of the hearing was filed on March 31, 2021. As indicated above, the Motion and Response were timely filed and are considered by the undersigned to be proposed recommended orders.
The following Findings of Fact are made based on the exhibits and testimony offered at the final hearing, the stipulated facts, and the additional documents accepted for official recognition as indicated above.
Petitioner, Ross Couples, leased a house located at 11635 Meadowrun Circle in Fort Meyers, Florida (Property), from Respondent Xuan Ren.
At all times relevant to this case, Respondent Ren owned the Property.
At all times relevant to this case, Respondent Timothy Cloud managed the Property and served as an agent for Respondent Ren.
The Property was part of Marina Bay Homeowners' Association (HOA) and subject to the HOA's rules and regulations regarding lease arrangements.
On December 12, 2018, Respondent Ren and Petitioner executed a year lease for the Property from January 15, 2018, to January 15, 2019.
The lease included the following provision for its renewal:
18. RENEWAL/EXTENSION. The Lease can be renewed or extended only by a written agreement signed by both Landlord and Tenant, but the term of a renewal or extension together with the original Lease Term may not exceed 12 months. … A new lease is required for each period of lease.
At some point prior to January 15, 2019, Respondent offered Petitioner another lease agreement. Petitioner refused to pay a $100 leasing fee required by the HOA. The parties did not renew or enter into another
12-month lease, nor did Petitioner move out.
As a result, after January 15, 2019, the parties switched to a month-to- month arrangement.4 This arrangement, however, was not approved by the HOA.
On February 23, 2019, Petitioner sent an email to the HOA manager and Respondent Cloud. In that email, Petitioner made numerous complaints and mentioned the need for a larger hot water heater for his hydrotherapy tub, which he claimed he needed for health issues. He also discussed at length his opposition to the $100 fee imposed by the HOA for entering into a new lease.
On February 27, 2019, Respondent Cloud issued a "Notice of Termination of Month-to-Month Tenancy Notice to Vacate" (Notice) to Petitioner. The Notice indicated that the current leasing arrangement had
4 No written lease agreement for the month-to-month arrangement was offered into evidence.
been terminated and Petitioner was to vacate the Property on or before May 15, 2019.
Petitioner did not move out of the Property on or before May 15, 2019.
On May 20, 2019, Respondent Ren filed the eviction action against Petitioner in the appropriate court. A final judgment in the eviction action was rendered on June 6, 2019, and a writ of possession was issued for the Property on June 7, 2019.
Petitioner vacated the Property and turned over possession to the Lee County Sheriff on June 12, 2019.
Housing Complaints
Petitioner testified that on April 5, 2019, he filed a complaint of discrimination with the U.S. Housing and Urban Development (HUD) regarding his claim of disability discrimination against Respondents.
On January 17, 2020, HUD issued a letter to Respondent Cloud (HUD Letter) indicating it was dismissing the case brought by Petitioner, and specifically finding "that no reasonable cause exists to believe that a discriminatory housing practice has occurred. … No evidence was found to support Petitioner's contention that his disability was used as a basis to evict him."
The HUD Letter does not indicate Petitioner could re-open the HUD case or file anything else with HUD based on the same facts. It does not mention the FFHA or FCHR, and it does not provide any instruction or information on how to pursue claims pursuant to state housing discrimination laws.5
Petitioner claims a HUD employee, Mr. Jordan, told him he had a year from his last date of possession of the Property to "file the proper paperwork."
5 The HUD Letter does mention that Petitioner could file a civil lawsuit "in an appropriate federal district court or state court within two (2) years of the date on which the alleged discriminatory housing practice occurred or ended." The letter also has instructions as to what Petitioner may be able to file if he was retaliated against for filing the HUD complaint. This proceeding does not involve either of those situations.
Petitioner also states Mr. Jordon told him he could file a claim with either HUD or the Florida Fair Housing Commission.6 It is unclear when this conversation occurred, what Mr. Jordan's role was at HUD, and whether the discussion was in person or over the phone. Regardless, this testimony is hearsay and not corroborated by any non-hearsay evidence or documentation.
There is no credible evidence to establish that anyone at either HUD or FCHR informed Petitioner that he had one year from the last date of possession of the Property to file an FFHA discrimination complaint with FCHR.
The date Petitioner filed his FFHA Complaint with FCHR is contested. Petitioner testified he contacted the "Florida Fair Housing Commission" on June 10, 2020, regarding his FFHA claim. He admits he did not file his FFHA complaint immediately. Rather, at that time, he spoke with an "intake clerk," who sent him a complaint form, which he then filled out and returned.
There is no competent evidence corroborating Petitioner's assertion in his Response that he filed the Complaint with FCHR on June 10, 2021. Rather, the top of the front page of the Complaint is dated July 22, 2020, and indicates Petitioner verified the facts in the Complaint on July 21, 2020. Moreover, the Determination dated September 18, 2020, also references that the Complaint was submitted on July 21, 2020.
Based on Petitioner's testimony and the date that Petitioner verified the Complaint with his signature, the undersigned finds Petitioner's Complaint was filed with FCHR on July 21, 2020.
6 The undersigned is unaware of an agency operating under the name of "Florida Fair Housing Commission." The undersigned assumes that Petitioner is referring to FCHR. See
§ 760.22(1), Fla. Stat. (defining “Commission” to mean the Florida Commission on Human Relations).
CONCLUSIONS OF LAW
The undersigned and DOAH have jurisdiction over the subject matter and the parties to this proceeding in accordance with sections 120.569, 120.57(1), and 760.35(5)(b), Florida Statutes.
The FFHA makes it unlawful to discriminate against any person "in the terms, conditions, or privileges of sale or rental of a dwelling, or in the provision of services or facilities in connection therewith, because of race, color, national origin, sex, handicap, familial status, or religion." § 760.23(2), Fla. Stat.
The FFHA is patterned after Title VII of the Civil Rights Act of 1968, as amended by the Fair Housing Act of 1988. As such, discriminatory acts prohibited under the federal Fair Housing Act are also prohibited under the FFHA. Accordingly, federal case law interpreting the federal Fair Housing Act is applicable to proceedings brought under the FFHA. See generally, Glass v. Captain Katanna's, Inc., 950 F. Supp. 2d 1235, 1244 (M.D. Fla. 2013) ("a Florida law mirrored after a federal law generally will be construed in conformity with the federal law.").
The enforcement provision of the FFHA requires that a complaint alleging a violation of the FFHA must be: (1) in writing, (2) verified by the complainant, and (3) filed within one year after the alleged discriminatory housing practice occurred:
Any person who files a complaint under subsection
must do so within 1 year after the alleged discriminatory housing practice occurred. The complaint must be in writing and shall state the facts upon which the allegations of a discriminatory housing practice are based. A complaint may be reasonably and fairly amended at any time. A respondent may file an answer to the complaint against him or her and, with the leave of the commission, which shall be granted whenever it would be reasonable and fair to do so, may amend his or her answer at any time. Both the complaint and the answer must be verified.
§ 760.34(2), Fla. Stat.
Petitioner has the burden to show he has complied with the time requirements in section 760.34(2), or that an exception or tolling provision applies and his claim is not barred by the statute of limitations. See Dekalb Cty. v. HSBC N. Am. Holdings, Inc., 2013 WL 7874104, at *11 (N.D. Ga. Sept. 25, 2013) (finding plaintiffs have the burden of demonstrating that the continuing violations doctrine applies to their federal housing discrimination claims). He must do so by a preponderance of the evidence. § 760.34(5), Fla. Stat.; Fla. Dep't of Transp. v. J.W.C. Co., 396 So. 2d 778 (Fla. 1st DCA 1981).
A "preponderance of the evidence" means the "greater weight" of the evidence, or evidence that "more likely than not" tends to prove the fact at issue. Gross v. Lyons, 763 So. 2d 276, 289 n.1 (Fla. 2000).
Date of Alleged Discriminatory Housing Practice
As an initial matter, Petitioner did not submit a written complaint that was verified until July 21, 2020. Therefore, even if he had contacted FCHR previously, this is the date that he filed his FFHA Complaint with FCHR. As such, any claims for discriminatory conduct that occurred prior to July 21, 2019, are barred.
Petitioner claims Respondents' last alleged discriminatory action occurred on the date he lost possession of the Property on June 12, 2019. Even if this were true, the latest he could have filed his Complaint with FCHR would have been June 12, 2020. Because, as the undersigned has determined in the Findings of Fact above, the Complaint was filed with FCHR on July 21, 2020, it was untimely.
Petitioner claims Respondents' discrimination was continuing in nature and therefore any untimeliness was excusable pursuant to Florida Administrative Code Rule 60Y-7.001:
(2) Time for Filing. A complaint may be filed at any time within one year of the occurrence of the alleged discriminatory housing practice. If the alleged discriminatory housing practice is of a
continuing nature, the date of the occurrence may be any date subsequent to the commencement of the discriminatory housing practice up to and including the date on which it shall have ceased. (emphasis added).
Generally, the statute of limitations for the FFHA begins to run as soon as "facts supportive of the cause of action are or should be apparent to a reasonably prudent person similarly situated." Telesca v. Village of Kings Creek Condo. Ass'n Inc., 390 F. App'x 877, 882 (11th Cir. 2010) (quotations omitted). In the failure to accommodate context, the statute of limitations begins to run when a reasonably prudent person would have become aware that a requested accommodation has been denied. See Oliver v. Fox Wood at Trinity Cmty. Ass'n, Inc., 2018 WL 4608325, at *7 (M.D. Fla. July 30, 2018) (noting it was irrelevant that plaintiffs did not realize they had denied their request for accommodation until four years later, where plaintiffs should have known six months after nothing was done).
The continuing violation doctrine relied upon by Petitioner is an equitable doctrine applicable when the alleged discrimination is ongoing, and filing is delayed because a complainant needs to experience a pattern of repeated acts before he or she can be expected to realize that the individual acts were discriminatory in nature. See Hawkins v. Hamlet, Ltd., 296 F. App'x 918, 920 (11th Cir. 2008) ("The continuing violation doctrine is based on the equitable notion that the statute of limitations ought not to begin to run until facts supportive of the cause of action are or should be apparent to a reasonably prudent person similarly situated.").
In other words, if Petitioner should have known that Respondents had denied his request for a larger hot water heater on a certain date, the continuing violation doctrine does not apply. See Dekalb Cty. v. HSBC N. Am. Holdings, Inc., 2013 WL 7874104, at *12 (N.D. Ga. Sept. 25, 2013) ("Accordingly, if an event or series of events should have alerted a reasonable
person to act to assert his or her rights at the time of the violation, the victim cannot later rely on the continuing violation doctrine.") (internal citations omitted).
In Telesca, the plaintiffs requested an assigned handicapped parking space in 2004 as an accommodation. The condominium association declined their request, noting that the handicapped spaces were first come, first served. Later in 2005, the plaintiffs' car was towed when all of the handicapped spaces were taken and plaintiffs parked in a reserved spot. Telesca, 390 F. App'x at 879. The court held that the statute of limitations began running in 2004 when they knew the accommodation had been denied, and not later when plaintiffs' car was towed. Id. at 882.
Similarly, here, Petitioner at the earliest should have known on February 29, 2019 (when he received the Notice), that Respondents were not going to renew his lease nor were they going to address his request for an accommodation. By May 20, 2019, he should have known that Respondents were also going to evict him. The fact Petitioner did not move out on May 15, 2019 and continued to contest the eviction until after he relinquished possession of the Property does not make Respondents' actions "continuing violations." See Hebden v. Anderson, 2018 WL 3974126, at *3 (M.D. Fla. Aug. 20, 2018) (finding statute of limitation began running when landlord initiated an eviction proceeding against plaintiff); Leonard v. McDonald, 2020 WL 4721833, at *1 (N.D. Fla. June 9, 2020), report and recommendation adopted, 2020 WL 4698805 (N.D. Fla. Aug. 12, 2020) (where plaintiff had asked for accommodation to move to first floor as an accommodation for his disability and landlord denied the accommodation and issued a notice that his lease was not renewed the statute of limitations began to run on last date of occupancy listed on the notice to vacate premises).
Moreover, even though Petitioner claims his date of harm was June 12, 2019, it is clear that he was aware of the discriminatory conduct as early as April 5, 2019, when he filed his HUD complaint. Accordingly, the very
latest Petitioner could file an FFHA complaint for the failure to accommodate with FCHR was April 5, 2020. Petitioner's failure to do so bars his FFHA claims. See generally Greene v. Seminole Elec. Co-op Inc., 701 So. 2d 646, 648 (Fla. 5th DCA 1997) (finding under state discrimination claim is barred where based on acts occurring more than one year before the charge was filed).
Tolling
Alternatively, Petitioner argues that the limitations period for his FFHA complaint with FCHR was equitably tolled because a HUD employee led him to believe he had a year to file his FFHA claim. As indicated in the Findings of Fact, there is no credible, competent (non-hearsay) evidence establishing this occurred.
Even if there had been such evidence, the 11th Circuit rejected a similar equitable tolling argument in Hunt v. Georgia Department of Community Affairs, 490 F. App'x 196 (11th Cir. 2012). There, the plaintiff had filed a federal housing discrimination complaint with HUD. She later tried to assert similar claims under the Americans with Disabilities Act (ADA) and Rehabilitation Act, which were dismissed because they were untimely. Hunt claimed HUD misled her into allowing the statute of limitations for her ADA and Rehabilitation Act claims to expire. Finding equitable tolling was inapplicable, the court stated:
Hunt alternatively argues that the limitations period for her ADA and Rehabilitation Act claims was equitably tolled during the administrative proceedings because HUD led her to believe that it had jurisdiction of those claims and that the FFHA's statutory tolling provision applied to them. The doctrine of equitable tolling allows a court to toll the statute of limitations until such a time that the court determines would have been fair for the statute of limitations to begin running on the plaintiff's claims. Because equitable tolling is an extraordinary remedy to be applied sparingly, it is appropriate only when a plaintiff untimely files due
to extraordinary circumstances that are both beyond her control and unavoidable even with diligence. Equitable tolling typically requires some affirmative misconduct, such as fraud, misinformation, or deliberate concealment. Ignorance of the law does not, on its own, satisfy the constricted extraordinary circumstances test. Accordingly, we have previously rejected the contention that pro se status, ignorance of the judicial process or slow administrative proceedings warrant application of equitable tolling.
* * *
HUD merely indicated that claims under the FFHA for discriminatory housing practices were governed by a two-year statute of limitations and that the two-year period governing such claims did not include the time during which administrative proceedings were pending. HUD's letter was silent as to the limitations period governing claims under the ADA or the Rehabilitation Act and in no way suggested that the statute of limitations for those claims was also tolled during the administrative proceedings.
Id. 198–99 (emphasis added; citations and quotations omitted).
As in Hunt, the HUD Letter in no way suggests that the statute of limitations for Petitioner's state housing discrimination claim under the FFHA would be tolled. Nor is there any evidence that there was misconduct by anyone at FCHR or that anyone affirmatively or deliberately provided Petitioner with misinformation regarding his FFHA claim. As such, equitable tolling does not apply.
Finally, Petitioner argues the statute of limitations is tolled because Respondent Ren was not in the state. Petitioner relies on section 95.051, Florida Statutes, which states:
95.051 When limitations tolled.—
The running of the time under any statute of limitations except ss. 95.281, 95.35, and 95.36 is tolled by:
Absence from the state of the person to be sued.
This argument was waived as it was never raised prior to the post- hearing submission. Moreover, this section does not apply to administrative proceedings. See § 95.011, Fla. Stat. (applying chapter 95 to civil actions). Respondent Ren's presence in the state was not necessary for Petitioner to file his Complaint with FCHR. As such, this statutory provision is inapplicable to these proceedings. Irrespective of whether the argument is timely raised, there was no evidence regarding whether Respondent Ren was in Florida or elsewhere, and for what period of time.
In summary, Petitioner knew he had been harmed on or before April 5, 2019, or alternatively, should have known by May 20, 2019. Thus, at the very latest, Petitioner was required to file a housing discrimination complaint with FCHR on or before May 20, 2020. Petitioner's Complaint, filed July 21, 2020, is untimely and his claims pursuant to the FFHA are barred.
Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that that the Florida Commission on Human Relations issue a final order dismissing the Petition for Relief filed by Ross J. Couples.
DONE AND ENTERED this 7th day of May, 2021, in Tallahassee, Leon County, Florida.
Tammy S. Barton, Agency Clerk
Division of Administrative Hearings this 7th day of May, 2021.
Christopher J. DeCosta, Esquire Mahshie & DeCosta
Paul Edward Olah, Esquire Law Offices of Wells Olah, P.A. 1800 Second Street, Suite 808
Cheyanne Costilla, General Counsel Florida Commission on Human Relations 4075 Esplanade Way, Room 110
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.
