05-002985RU Frank M. Bafford, Sr. vs. Florida Commission On Human Relations Status: Closed DOAH Final Order on Monday, March 27, 2006.

Summary: Petitioner`s Motions for Rule Challenge Proceeding in each case failed to meet the requirements of the statute both in form and substance. Petitioner has a fundamental misunderstanding of Respondent`s function.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

FRANK M. BAFFORD, SR., )

)

Petitioner, )

)

vs. ) Case Nos. 05-2985RU

) 05-2986RU

FLORIDA COMMISSION ON HUMAN ) 05-3167RU

RELATIONS, ) 05-3168RU

) 05-3294RU

Respondent. ) 05-3808RU

) 05-3981RU

SUMMARY FINAL ORDER OF DISMISSAL

These causes came on for review upon numerous motions and

the waiver by the parties of the need for an evidentiary hearing

before Daniel M. Kilbride, Administrative Law Judge of the

Division of Administrative Hearings (DOAH), in Tallahassee,

Florida.

APPEARANCES

For Petitioner: Frank M. Bafford, Sr., pro se

9622 Theresa Drive

Thonotosassa, Florida 33592

For Respondent: William J. Tait, Jr., Esquire

Florida Commission on Human Relations

2009 Apalachee Parkway, Suite 100

Tallahassee, Florida 32301-4830

STATEMENT OF THE ISSUE

Whether the Motions for Rule Challenge Proceedings

(referred to as Petition(s)) filed in each of the above-cited

cases meet the requirements both in form and substance, pursuant

to Subsection 120.56(4)(a), Florida Statutes (2004).

PRELIMINARY STATEMENT

A. Petitioner, Frank M. Bafford, Sr., filed his first rule

challenge proceeding against Respondent, Florida Commission on

Human Relations (FCHR), on March 15, 2005, and the case was

assigned to the undersigned Administrative Law Judge (ALJ) and

given DOAH Case No. 05-0966RU.

B. Petitioner requested a procedural change in his first

rule challenge proceeding on March 23, 2005, and later gave a

Notice of Clarification or Stay on March 28, 2005. Following a

conference call, the undersigned ALJ issued an Order on April 1,

2005, placing the proceeding in abeyance, noting that the

parties agreed that there are no disputed issues of material

fact; that the issues remaining for determination are legal in

nature, which can be determined by submittal of legal briefs;

and that Petitioner fully understood that he was waiving his

right to an evidentiary hearing in this matter. A schedule was

set for the filing of the initial reply and response briefs on

two issues. Petitioner submitted his initial "argument" on

April 4, 2005.

C. Petitioner also submitted a second (April 1, 2005--DOAH

Case No. 05-1211RU) and a third (April 4, 2005--DOAH Case

No. 05-1219RU) rule challenge. An Order was issued

consolidating the two new rule challenges into the initial one

and specifying dates for the briefs for those challenges.

Petitioner submitted his initial brief and denoted "arguments"

on April 14, 2005.

D. Petitioner submitted a fourth rule challenge (April 19,

2005--DOAH Case No. 05-1462RU), which was consolidated with the

three previous cases.

E. On April 24, 2005, Petitioner submitted a Motion to

Stay. A telephonic hearing took place on April 25, 2005, at

which time Petitioner, Respondent's attorney, and the

undersigned ALJ conferred about his request. An Order placing

the four pending consolidated rule challenge cases in abeyance

was issued on May 4, 2005, suspending the briefing schedule and

requiring a status briefing by the parties prior to June 1,

2005.

F. Petitioner then submitted his fifth (May 10, 2005--DOAH

Case No. 05-1664RU) rule challenge and a third Order (May 13,

2005) consolidating that challenge with the four earlier ones

was issued.

G. Petitioner, subsequently, filed a Motion for Extension

of Stay on May 18, 2005, in which he requested a six-month stay.

Petitioner alleged that he had "seen a professional and they

[sic] have suggested that he take this amount of time away from

his cases." Respondent did not object to the motion, and on

May 23, 2005, an Order was issued to abate the five consolidated

cases until December 1, 2005.

H. Nevertheless, Petitioner then submitted his sixth

(June 5, 2005--DOAH Case No. 05-2050RU) rule challenge, and a

fourth Order (June 13, 2005) was issued consolidating that

challenge with the five earlier ones. On June 16, 2005, an

Order to abate was issued on the six consolidated cases until

December 1, 2005.

I. While pursuing the above rule challenges, Petitioner

had also filed two additional complaints of discrimination with

FCHR based on the same set of events that occurred in the Spring

of 2004 leading up to his initial Complaint (FCHR Case No.

24-91007H) that was, subsequently, dismissed by FCHR upon his

withdrawal of the Complaint that was pending before another ALJ

( Bafford v. Gary Hediger, et al. , Case No. 04-3272 (DOAH

December 16, 2004, FCHR Final Order No. 05-017, February 22,

2005).

J. While reserving its ruling on jurisdiction, FCHR

accepted the two complaints for investigation on June 3, 2005,

and July 27, 2005. The June 3, 2005, Complaint (FCHR Case

No. 25-91671H) consisted of the same or similar facts and the

same Respondents (with several additional Respondents in the

same ownership group) as the initial Complaint filed and,

subsequently, abandoned by Petitioner. The July 27, 2005,

Complaint (FCHR Case No. 25-91672H) consisted of the same basic

set of events leading to the initial and June 3, 2005,

Complaints, but also allegations of later actions. In addition,

the July 27, 2005, Complaint raised new allegations against

Petitioner's three sets of former attorneys and one of the

original Respondents. It alleged a violation of Section 818 of

the Federal Fair Housing Act (FHA), relating to intimidation,

coercion and interference (harassment), and retaliation.

K. During the investigation phase of these new Complaints,

Petitioner filed additional rule challenges with DOAH directed

towards FCHR's investigatory procedures and actions.

L. Petitioner filed his seventh (August 18, 2005--DOAH

Case No. 05-2985RU) and eighth (August 18, 2005--DOAH Case

No. 05-2986RU) rule challenge and moved for a telephonic

conference. An Order consolidating the two cases was issued, as

well as the Order Following Telephone Conference dated

August 26, 2005. The Order required Respondent to file a

response to Petitioner's motions on or before September 2, 2005,

and allowed Petitioner to file a reply thereto on or before

September 9, 2005. Both Respondent and Petitioner filed a

timely response and reply, respectively.

M. Petitioner filed his ninth and tenth rule challenges

(September 1, 2005--DOAH Case Nos. 05-3167RU and 05-3168RU),

Petitioner, subsequently, filed a "Notice as Reminder"

indicating that he seemed ready for a hearing on the challenge

and had no current disabilities.

N. Petitioner filed his eleventh, twelfth, and thirteenth

rule challenges (September 13, 2005--DOAH Case No. 05-3294RU;

October 17, 2005--DOAH Case No. 05-3808RU; and October 26,

2005--DOAH Case No. 05-3981RU, respectively).

O. Petitioner has also brought suit against the same

Respondents as in DOAH Case No. 04-3272, other than his

attorneys, in both state and federal court based on the same set

of alleged circumstances leading to his Complaints with FCHR.

P. The Honorable James S. Moody, Jr., Judge of the United

States District Court for the Middle District of Florida, Tampa

Division, dismissed his federal case (Case No. 8:04-CV-1502-T-

30MSS), on March 3, 2005, specifically finding that the facts of

his case as alleged, including his "intent to dwell," did not

change the finding that the underlying Complaint was not covered

by the FHA, citing Home Quest Mortgage LLC v. American Family

Mutual Insurance Co. , 340 F. Supp. 1177, 1186 (D. Kan. 2004);

Shaikh v. City of Chicago , No. 00-C-4235, WL 123784, *4 (N.D.

Ill. Feb. 13, 2001). The United States Court of Appeals for the

Eleventh Circuit dismissed his appeal (Case No. 05-11309-11) on

June 10, 2005, as frivolous. The court cited Eleventh Circuit

Rule No. 42-4, which states: "Frivolous Appeals. If it shall

appear to the court at any time that an appeal is frivolous and

entirely without merit, the appeal may be dismissed." The rule

also cross-references Rules 3 and 38 of the Federal Rules of

Appellate Procedure and 28 U.S.C. Section 1927.

Q. DOAH Case Nos. 05-2985RU, 05-2986RU, 05-3167RU,

05-3168RU, 05-3294RU, 05-3808RU, and 05-3981RU were consolidated

and abated.

R. DOAH Case Nos. 0966RU, 05-1211RU, 05-1219RU, 05-1462RU,

05-1664RU, and 05-2050RU are being treated in a separate Summary

Final Order of Dismissal.

S. Petitioner has also brought suit against the same

Respondents as in DOAH Case No. 04-3272, other than his

attorneys, in state circuit court Case No. 04-04230

(Division E), in the Thirteenth Judicial Circuit in and for

Hillsborough County. The Court dismissed the action with leave

to amend and dissolved a Lis Pendens . Petitioner, subsequently,

served a Second Amended Complaint and obtained a stay. It

appears that this case is still pending.

T. Petitioner has also filed Complaints with the Florida

Bar against his former attorneys based on the same set of

alleged circumstances leading to his Complaints with FCHR. The

Florida Bar found no ethical violations by any of the attorneys

involved and dismissed his Complaints.

U. Petitioner has provided "arguments" for his Petitions

in DOAH Case Nos. 05-0966RU, 05-1211RU, and 05-1219RU and a

"Reply to Respondent's Responses" for his Petitions in DOAH Case

Nos. 05-2985RU and 05-2986RU. Where Petitioner has supplied

additional information beyond that contained in the Petition (as

in DOAH Case Nos. 05-0966RU, 05-2985RU and 05-2986RU),

Respondent has provided responses. In all other Petitions,

including DOAH Case Nos. 05-1211RU and 05-1219RU, where

Petitioner's "argument" merely consisted of attaching his

original Petition, Respondent has provided responses to the

extent possible.

V. On December 23, 2005, Petitioner filed his fourteenth

(DOAH Case No. 05-4681RU) and fifteenth (DOAH Case No.

05-4688RU) rule challenge. Upon review by this ALJ, it was

determined that the Petitions failed to comply with the

statutory requirements of Subsection 120.54(1) and/or (4),

Florida Statutes (2004), and were dismissed without prejudice.

Petitioner was given 21 days to amend the Petitions in order to

comply with the statute or the cases would be automatically

dismissed with prejudice. The deadline has passed, and no

amendment to the Petitions has been filed.

W. On January 3, 2006, Petitioner filed his sixteenth rule

challenge (DOAH Case No. 06-0001RU). Upon review, it was

determined that the Petition failed to comply with the statutory

requirements of Subsection 120.54(1) and/or (4), Florida

Statutes (2004), and was dismissed without prejudice.

Petitioner was given 21 days to amend the Petition in order to

comply with the statute or the case would be automatically

dismissed with prejudice. The deadline has passed, and no

amendment to the Petition has been filed.

X. On January 26, 2006, Petitioner filed four additional

rule challenges (DOAH Case Nos. 06-0332RU, 06-0333RU, 06-0334RU,

and 06-0335RU). Upon review, it was determined that the

Petitions failed to comply with the statutory requirements of

Subsection 120.54(1) and/or (4), Florida Statutes (2004), and

these cases were dismissed without prejudice. Petitioner was

given 21 days to amend the Petitions in order to comply with the

statute or the cases would be automatically dismissed with

prejudice. The deadline has passed, and no amendment to the

Petitions has been filed.

Y. During the Fall of 2005, while Petitioner continued to

file additional rule challenges at DOAH, FCHR issued its Notice

of Determination: No Cause in FCHR Case Nos. 25-91671H and

25-91672H (referred to in paragraph J). Petitioner timely filed

his Petition for Relief alleging housing discrimination and

other allegations on December 15, 2005, in which were assigned

DOAH Case Nos. 05-4562 and 05-4563, respectively. Immediately

thereafter, Petitioner filed various motions with the

undersigned ALJ seeking a stay for the Petition to be referred

back to FCHR for further investigation. These motions were

denied, and the matter set for hearing in Tampa on February 15

and 16, 2006. In addition to various other motions, on

February 6, 2006, Petitioner filed a Motion for 90 Day Stay to

Gather Thoughts, which was denied. On February 9, 2006,

Petitioner filed a Notice of Impairment and other motions. In

response thereto, an Order was issued directing Petitioner to

show proof that Petitioner was under the care of a physician and

that he was impaired and unable to appear at the final hearing

and present his case. On February 13, 2006, Petitioner filed a

Notice of Dr.'s Determination. Upon review, the notice was

determined to be inadequate, and on February 14, 2006, the

parties were notified that all pending motions would be heard

before the undersigned ALJ prior to the commencement of the

formal hearing scheduled for February 15 and 16, 2006, in Tampa.

At 5:00 p.m. that same day, Petitioner filed a Notice of

Dismissal in both cases. An Order Closing File was issued on

February 15, 2006, and the matter was referred back to FCHR for

final agency action. FCHR has not entered a final order on

those cases, as of the date of this Summary Final Order of

Dismissal. However, Petitioner has filed an appeal with the

Second District Court of Appeal, which is still pending.

Upon a complete review of each of these files and being

fully advised in the premises, it is

FOUND AND DETERMINED as follows:

1. In DOAH Case Nos. 05-2985RU, 05-2986RU, 05-3167RU,

05-3168RU, 05-3294RU, 05-3808RU, and 05-3981RU, as to each case,

there are no genuine issues as to any material fact. Fla.

Admin. Code R. 28-106.204(4).

2. All Petitions are found to be deficient in both form

and substance, pursuant to the requirements set forth in

Subsection 120.56(4)(a), Florida Statutes (2004). None of the

Petitions include the text of the purported statement, and few,

if any, provide adequate descriptions of a purported statement.

Where descriptions have been provided, the description does not

state with particularity facts sufficient to show that the

statement constitutes a rule under Section 120.52, Florida

Statutes (2004), and that the agency has not adopted the

statement by the rulemaking procedure provided by Section

120.54, Florida Statutes (2004).

AS TO DOAH CASE NO. 05-2985RU

3. Petitioner stated that FCHR had not given him adequate

guidance as to what constitutes proof of his "intent to dwell,"

nor had it set standards for determining what constitutes an

"intent to dwell." In addition to being deficient in both form

and substance, as held above, the Petition for Rule Challenge is

dismissed for the following additional reasons. The request for

information to which Petitioner alludes in this Petition would

seem to be one of the "normal" requests for information from an

investigator. Petitioner asserted in his Complaint that he

intended to dwell in one of the 347 units of the 14-apartment

complexes he sought to purchase. The investigator merely asked

him to provide any factual information, including location, to

show that this was in fact his intention. Whether or not

"intent to dwell" is a material fact in his case under

investigation has not been determined; however, evidently it was

of some import to the investigator to establish the factual

basis for any FCHR determination.

4. FCHR's investigative practice requires its

investigators to ascertain the facts of a complaint and evaluate

their probity. In the process, they request a complainant (in

these causes Petitioner) to provide any and all facts, including

documentation where available, they have in their possession

that they believe are relevant to the allegations contained in

the Compliant and, if necessary, any facts relevant to

establishing FCHR's jurisdiction. The investigators are

instructed not to determine the "law" (standards to be met)

first, and then attempt to fit facts into the law. They apply

the facts as found to the legal requirements of establishing

jurisdiction and proving a prima facie case only at the time

they are to determine whether there is a "reasonable cause to

believe that a discriminatory act occurred." In that process,

the investigator may find that he or she requires additional

information and makes a request to the complainant for it. The

final determination issued by FCHR provides its best judgment as

to the facts of the case, establishes its jurisdiction, and

makes a determination as to whether the facts support a finding

that a discriminatory act has occurred in light of the standards

of law to be applied.

5. Clearly, if it is an important material fact; and if

the investigator did not find that it was adequately

established, based on complainant's factual submissions, the

complainant has the right to challenge FCHR's determination by

seeking a formal administrative hearing, pursuant to Subsection

760.35(3), Florida Statutes (2004), and Florida Administrative

Code Rule 60Y-8.001, and Petitioner has done so. See Bafford v.

Township Apartments, et al. , DOAH Case No. 05-4562, and Bafford

v. Hernandez, et al. , DOAH Case No. 05-4563.

AS TO DOAH CASE NO. 05-2986RU

6. Petitioner has stated that FCHR should be prevented

from "revisiting issues that have been already determined in the

previous case." In addition to being deficient in both form and

substance, as held above, the Petition is dismissed for the

following additional reasons. Petitioner alleges that the

principle of res judicata should apply and further states that

"it is an invalid exercise of delegated legislative authority

for FCHR to waste the tax payer's [sic] money to investigate

facts that have been investigated and to once again enter

determinations on those facts, when there is no new information

available that could change the prior determination."

7. Petitioner is mistaken. As he states in the second

sentence in his Petition, the initial case was "dismissed for

lack of jurisdiction." He further states that, "the only

difference is that there are more Defendants and new information

on the Petitioner's 'intent to dwell' that was not considered in

the previous case."

8. The initial case was not determined on its merits, but

was actually dismissed by Petitioner who withdrew his Petition

for Relief during a telephonic hearing before a different ALJ

( see Bafford , Case No. 04-3272). The merits of the case have

never been considered by DOAH in its administrative hearing

process or by a FCHR panel in its final order reviewing

authority.

9. The doctrines of res judicata and collateral estoppel

both concern the preclusive effect of a prior adjudication.

Res judicata precludes relitigation of the same claim, between

the same parties, on the same cause of action. Principles of

collateral estoppel preclude relitigation of issues actually

litigated in a prior proceeding where the issues at stake are

identical and where determination of those issues was a critical

and necessary part of the first litigation. See Exhibitors

Poster Exchange, Inc. v. National Screen Service Corp. , 517 F.2d

110 (5th Cir. 1975), cert. den. 423 U.S. 1054 (1976); State v.

Short , 513 So. 2d 679 (Fla. 2d DCA 1987); Hays v. State of

Florida, Department of Business Regulation, Division of

Pari-Mutuel Wagering , 418 So. 2d 331 (Fla. 3d DCA 1982).

10. Neither doctrine applies in the case before this

tribunal. The issues were not litigated, nor determined in the

prior case. In fact, even Petitioner acknowledges that

Respondents and issues differ and that the prior case was

dismissed for lack of jurisdiction.

AS TO DOAH CASE NO. 05-3167RU

11. Petitioner stated in his Motion for Rule Challenge

Proceeding filed on September 1, 2005, that "[t]hrough

documented acts FCHR has shown that they are partial and not

able to render an impartial determination in the Petitioner's

cases." In addition to being deficient in both form and

substance, as held above, the Petition is dismissed for the

following additional reasons. Petitioner has not provided any

documentation to support his allegations, nor has he shown any

elements required under Subsection 120.56(4)(a), Florida

Statutes (2004).

AS TO DOAH CASE NO. 05-3168RU

12. Petitioner restated in his Motion for Rule Challenge

Proceeding filed on September 1, 2005, that FCHR "cannot state

one guideline, standard or indicator in law that has been

established to prove a person's 'intent to dwell' under the

FHA." ( See also his Motion for Rule Challenge Proceeding filed

on April 1, 2005 (DOAH Case No. 05-1211RU)). The Petition is

clearly deficient in both form and substance, pursuant to the

requirements set forth in Subsection 120.56(4)(a), Florida

Statutes (2004), and is duplicative.

AS TO DOAH CASE NO. 05-3294RU

13. Petitioner has stated in his Motion for Rule Challenge

Proceeding filed on September 13, 2005, that FCHR was knowing

and intentionally overlooking information provided by Petitioner

as to "information that is available that will probably validate

his claims." He states FCHR "was set to make a determination

without considering this information." The Petition is clearly

deficient in both form and substance as held above.

AS TO DOAH CASE NO. 05-3808RU

14. Petitioner filed a Motion for Rule Challenge on

October 17, 2005. In addition to being deficient in both form

and substance, as held above, the Petition is dismissed for the

following additional reasons. Again, Petitioner has provided no

documentation that he provided a written request for an

amendment and the nature of the amendment.

AS TO DOAH CASE NO. 05-3981RU

15. Petitioner filed another Motion for Rule Challenge on

October 25, 2005. In addition to being deficient in form and

substance, the Petition alleges that FCHR has a conflict of

interest which disqualified FCHR from making a determination in

his underlying case. Petitioner has provided no documentation

to support his allegations.

ORDER

Based on the foregoing, it is

ORDERED that the Petition for Rule Challenge Proceedings in

Case Nos. 05-2985RU, 05-2986RU, 05-3167RU, 05-3168RU, 05-3294RU,

05-3808, and 05-3981RU are dismissed with prejudice.

DONE AND ORDERED this 27th day of March, 2006, in

Tallahassee, Leon County, Florida.

S

DANIEL M. KILBRIDE

Administrative Law Judge

Division of Administrative Hearings

The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-3060

[phone] SUNCOM 278-9675

Fax Filing [phone]

www.doah.state.fl.us

Filed with the Clerk of the

Division of Administrative Hearings

this 27th day of March, 2006.

COPIES FURNISHED :

Frank M. Bafford, Sr.

9622 Theresa Drive

Thonotosassa, Florida 33592

William J. Tait, Jr., Esquire

Florida Commission on Human Relations

2009 Apalachee Parkway, Suite 100

Tallahassee, Florida 32301-4830

Cecil Howard, General Counsel

Florida Commission on Human Relations

2009 Apalachee Parkway, Suite 100

Tallahassee, Florida 32301-4830

Scott Boyd, Executive Director

and General Counsel

Joint Administrative Procedures Committee

120 Holland Building

Tallahassee, Florida 32399-1300

Liz Cloud, Program Administrator

Bureau of Administrative Code

Department of State

R.A. Gray Building, Suite 101

Tallahassee, Florida 32399-0250

NOTICE OF RIGHT TO JUDICIAL REVIEW

A party who is adversely affected by this Final Order is entitled

to judicial review pursuant to Section 120.68, Florida Statutes.

Review proceedings are governed by the Florida Rules of Appellate

Procedure. Such proceedings are commenced by filing the original

Notice of Appeal with the agency Clerk of the Division of

Administrative Hearings and a copy, accompanied by filing fees

prescribed by law, with the District Court of Appeal, First

District, or with the District Court of Appeal in the Appellate

District where the party resides. The notice of appeal must be

filed within 30 days of rendition of the order to be reviewed.