96-005776 Human Relations Commission vs. Regency Place Apartments Status: Closed Recommended Order on Monday, July 7, 1997.

Summary: Three-year plus delay in filing probable cause petition resulted in laches. Discrimination based on handicap cannot be proven with hearsay evidence. Recommend dismissal.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

COMMISSION ON HUMAN RELATIONS, )

)

Petitioner, )

)

vs. ) Case No. 96-5776

)

REGENCY PLACE APARTMENTS, )

)

Respondent. )

)

RECOMMENDED ORDER

A formal hearing was held in this mat ter before the Division

of Administrative Hearings, by Administrative Law Judge Daniel M.

Kilbride, on April 16, 1997, in Melbourne, Florida.

APPEARANCES

For Petitioner: Evelyn Davis Golden, Esquire

Acting General Counsel

Florida Commission on Human Relations

325 John Knox Road, Building F, Suite 240

Tallahassee, Florida 32303-4149

For Respondent: Mike Krasny, Esquire

Krasny and Dettmer, P.A.

Post Office Box 428

Melbourne, Florida 32902-0428

STATEMENT OF THE ISSUE

Whether Respondent discriminated against Polly Leggitt on

the basis of her handicap, violating Sections 760.23(1), (2) and

(7)(a), Florida Statutes (1992).

If discriminatory conduct has been proven, whether

quantifiable damages, or other allowable remedies, have been

proven under Section 760.35(3)(b), Florida Statutes.

Whether Florida Commission on Human Relations’ failure to

conclude its investigation within one year requires dismissal of

the complaint/charge; and

Whether Florida Commission on Human Relations’ delay has

prejudiced the Respondent and whether the complaint should be

dismissed on the basis of violation of the statute of limitations

or laches.

PRELIMINARY STATEMENT

Polly Leggitt filed a complaint for discrimination with the

United States Department of Housing and Urban Development and the

Florida Commission on Human Relations (Petitioner) on February 3,

1993. Pursuant to the Florida Civil Rights Act of 1992, she

alleged that Regency Place Apartments (Respondent) unlawfully

discriminated against her on the basis of handicap (blindness) by

refusing to rent her an apartment.

Petitioner investigated Leggitt’s allegations, and its

Executive Director issued a “Notice of Determination: Cause and

Issuance of An Administrative Charge” on August 28, 1996, finding

that there was reasonable cause to believe that a discriminatory

housing practice had occurred. Thereafter, Respondent requested

the matter be referred to the Division of Administrative Hearings

(DOAH) to conduct a formal proceeding. Petitioner referred this

matter to DOAH to conduct a final hearing. The parties submitted

a Prehearing Stipulation which was filed on April 10, 1997. A

formal hearing was held on April 16, 1997, in Melbourne, Florida.

At the formal hearing, Petitioner presented the testimony of

Polly Leggitt, and Frances Leggitt and offered the deposition

testimony of Christine Puchalski. Petitioner offered into

evidence eight exhibits, which were admitted into evidence.

Respondent presented the testimony of Robert Stitzel and Carole

Naylor. Respondent offered into evidence four exhibits, which

were admitted into evidence.

Respondent argued at the formal hearing that the two-year

statute of limitations barred this action from proceeding. In

addition, because the Petitioner did not complete its

investigation within one year, Respondent contends this requires

dismissal of the administrative charge. These issues are

resolved in the conclusions of law which follow.

A transcr ipt of the proceedings was filed on May 5, 1997.

At the request of the parties, the time for filing post hearing

submissions was set for more than ten days following the filing

of the transcript. Consequently, the parties waived the

requirement that a recommended order be rendered within thirty

days after they file the transcript. Rule 60Q-2.031, Florida

Administrative Code. Petitioner filed its proposals on May 28,

1997. Respondent filed its proposals on May 22, 1997.

Subsequent to the filing of the post hearing proposals,

Petitioner submitted the deposition of Polly Leggitt, taken on

April 14, 1997, and sought to have it considered as part of the

Petitioner’s Case in Chief. Respondent filed its Objection to

Notice of Filing or Motion to Strike, dated June 10, 1997.

Petitioner filed a Response to the objection and motion, dated

June 23, 1997. Respondent’s Motion to Strike is GRANTED. Rule

60Q-2.024, Florida Administrative Code. Two months following the

close of the evidence, Petitioner now seeks to offer testimony in

support of an award of quantifiable damages for matters that were

discussed in a deposition taken prior to the formal hearing but

not introduced at the formal hearing. Unless a party

specifically seeks, and is granted, the right to submit

additional evidence following the completion of its case in

chief, it is wholly improper that evidence not offered or

admitted at the time of the formal hearing is offered for the

first time after the close of all the evidence. This a violation

of Respondent’s due process rights. Cf. Department of

Environmental Protection vs. Department of Management Services,

Division of Administrative Hearings , 667 So. 2d 369 (Fla. 1st DCA

1995); Section 90.403, Florida Statutes; Rules 60Q-2.024, 60Q-

2.026, 60Q-2.031, Florida Administrative Code. Therefore, the

contents of the deposition of Polly Leggitt, taken on April 14,

1997, will not be considered in this order.

FINDINGS OF FACT

1. Petitioner is charged with the administration of the

Florida Civil Rights Act of 1992, as amended, Section 760.30,

Florida Statutes (1995). If Petitioner is unable to obtain

voluntary compliance with sections 760.20-760.37, Florida

Statutes, or has reasonable cause to believe a discriminatory

housing practice has occurred, Petitioner may institute an

administrative proceeding under Chapter 120, Florida Statutes on

behalf of the aggrieved party.

2. On February 3, 1993, Leggitt filed a complaint with the

Petitioner, and the United States Department of Housing and Urban

Development. The complaint names Carole Naylor, Property

Administrator, as the person who discriminated against her.

3. On March 24, 1993, the Petitioner notified Regency

Place Apartments and Carole Naylor that the complaint had been

filed, and stated that within 100 days the Petitioner would

investigate the complaint and give notice whether there was or

was not reasonable cause to believe that a discriminatory housing

practice had occurred. The Notice further provided that a final

administrative disposition of the complaint would be completed

within one year (on or about February 3, 1994).

4. A Notice of Determination: Cause and Issuance of an

Administrative Charge was made and issued by document dated and

served on August 28, 1996. It named Regency Place Apartments;

Carole Naylor, Property Administrator; Frank Cutrona, Property

Manager; and Robert Stitzel, Owner. The notice was issued more

than one year after the filing of the complaint.

5. Respondent was the developer and owner of Regency Place

Apartments in Melbourne, Florida, at all times relevant.

6. Respondent hired Frank Cutrona as manager of Regency

Place Apartments and was the manager during the relevant period.

7. Respondent hired Carole Naylor as a clerical worker and

gave her the title of Property Administrator.

8. On September 9, 1992, Regency Place Apartments located

in Melbourne, Florida, responded to a letter of inquiry from

Polly Leggitt, and offered certain apartments for rent.

9. The letter of September 9, 1992, was signed by Frank

Cutrona and his wife (resident managers) offered a $100.00

discount, and invited Leggitt to visit the complex. At that

time, Leggitt was a resident of Richardson Apartments located in

Fort Myers, Florida. Leggitt indicated that she wanted to leave

that area and move to Brevard County, Florida.

10. On or about October 11 or 12, 1992, Leggitt visited the

apartment complex and was shown an upstairs one-bedroom

apartment, by a woman who she did not identify. Leggitt did not

advise the woman that she had a disability, and Leggitt did not

have a seeing-eye dog with her at that time.

11. Leggitt found that the price and location of the

apartments were suitable to her needs. Leggitt wanted to move to

Regency Place because the apartments were accessible to all that

was important to her. She used a guide dog at the time to help

her with traffic. There was a veterinary clinic nearby; a light

to cross the street; a bus stop so that she could get the mall;

and a bank and grocery store directly across the street.

12. Leggitt did not contact the apartment complex again

until after Christmas of 1992, at which time she called and spoke

to a person she believed was Frank Cutrona, the apartment

manager.

13. Leggitt was sent an application which she filled out

and returned sometime after January 8, 1993. On the application

she noted in the place where it requested information about

automobiles, “None- (legally blind - no license)”.

14. The application form requested information regarding

pet ownership and indicated that there would be a separate

application for pets. She wrote in the application that she had

a guide dog, and that federal and state laws prohibited

discrimination by charging a fee for guide dogs.

15. The application stated that she was self-employed and

obtained $281.34 per month in Social Security disability income.

In the application, she stated “Mom pays rental and ut’s”

(presumably utilities).

16. The proposed monthly rental for a one-bedroom apartment

was $380 per month, plus utilities.

17. Leggitt sent a deposit and application fee on or about

January 11, 1993.

18. No specific amount of contribution towards Leggitt’s

income was shown for her mother on the application.

19. By letter dated January 18, 1993, Leggitt’s application

was declined, citing the unavailability of the kind and location

of the apartment which she desired and insufficient income to

qualify. The letter was signed by Carole Naylor, “Property

Administrator.” The original cashiers check for the deposit was

also returned.

20. Sub sequent conversations took place between Leggitt and

Frank Cutrona regarding her ability to pay and whether or not her

mother’s income could be considered for credit requirements.

Leggitt asked him to speak to her mother. Leggitt stated that

she did not submit any information regarding her mother being a

co-signer. Polly testified “[t]hey told me they would send her

an application.”

21. Christine Puchalski testified that she knew Leggitt as

a resident of the apartment complex where she was a resident

manager. In response to an inquiry by an unknown person calling

on behalf of Regency Place Apartments, Puchalski stated that she

did not go into any details other than that Leggitt paid her rent

on time, that she did not have any returned checks, and there

were no problems with Leggitt’s tenancy.

22. By letter of January 28, 1993, Leggitt was advised that

her application was not approved, stating that “We require the

tenant/occupant to have sufficient income to qualify. Your

mother living out of state, and not occupying the apartment would

preclude her income from being part of the calculation.” This

letter was signed by Carole Naylor, Property Administrator.

23. Leggitt acknowledged that her application was not very

specific as to income and that there were times that her mother

paid rent directly to the apartment complex and sometimes she

sent the sum directly to her.

24. Following the rejection of her application, Leggitt

moved to Titusville, Florida, to an apartment that was not

accessible for her handicap. This apartment was on a very

dangerous road, with no reliable public transportation and three

miles to the grocery store. She had to buy a bicycle and risk

her life on the dangerous road leading to the apartment, to buy

groceries. She lived there eight-and-a-half months before moving

to Merritt Island, Florida.

25. Regency Apartments, containing 219 units, was built by

Robert Stitzel in 1983 and owned by him until it was sold on

April 30, 1993, to a third party corporation. The contract to

sell the property had been executed in December, 1992.

26. Frank Cutrona had worked for Stitzel between 4 and 6

years. He died on December 26, 1996.

27. Carole Naylor did not work in the rental office. She

made no judgments regarding the rental of the apartment, nor the

creditworthiness of the prospective tenants. Her title “Property

Administrator” appears to be a title only. Her duties were

administrative, typing, and bookkeeping. She composed and typed

the two letters that were sent to Leggitt, but the contents of

the letters were given to her by Cutrona. She had no

conversations with Polly Leggitt or Frances Leggitt.

28. Robert Stitzel made no judgments regarding the tenants.

Regency Apartments would require income equaling three times the

gross rental. The creditworthiness and the determination of who

would rent apartments was left solely with the resident manager.

29. The proposed rent for a one-bedroom apartment was $380.

Therefore, three times that amount equals $1,140.00.

30. Respondent dem onstrated that many disabled people had

lived in the apartment complex. There was a person who was

legally blind. There were amputees and physically challenged

people of many different disabilities over the years.

Accommodations were made for people with disabilities by Cutrona

and such costs for these accommodations were paid by Regency.

31. It does not appear that Regency Apartments is a legal

entity. The owner of the apartment complex at the time of the

alleged discrimination was Regency Place, Ltd., a Florida limited

partnership, which no longer owns the apartment complex.

32. Frank Cutrona is deceased, and his estate has not been

made party to this proceeding.

33. Cutrona has been described as a caring, disabled man

who was kind and considerate of his tenants with disabilities and

made innovative accommodations for their benefit. The specific

reasons or motivations for the rejection of the application by

Cutrona cannot be clarified because of his death in December,

1996.

34. Respondent was awar e that the complex could not

discriminate on the basis of race, color, sex or disabilities.

35. The Petitioner has made a prima facie case of

discrimination in that Leggitt is a handicapped person, who is

otherwise qualified to rent the apartment, and she suffered a

loss of a housing opportunity, under circumstances which lead to

an inference that Respondent based its action solely upon her

handicap.

36. Respondent presented evidence that Regency’s

requirement of gross income equaling three times the monthly rent

had not been satisfied by Leggitt’s mother’s agreement to

contribute $550 per month. Leggitt’s income of $281.34, plus her

mother’s contribution, would come to $831.34 per month. Three

times the monthly rent was $1,140, thus rendering their income

short by $308.66 per month.

37. The motivation for rejecting the application is recited

in those letters which stated that the apartment which Leggitt

wanted was not available, and Leggitt did not have sufficient

income to qualify.

38. There is no evi dence of a discriminatory motive on the

part of Cutrona, Naylor, Stitzel, or Regency Apartments, other

than conjecture. There is no evidence that suggests the reasons

given were not true at the time the letters were written or that

they were merely pretextual. Further, it does not appear from

the evidence that any discriminatory motive has been proven.

There is nothing in the evidence that proves that Leggitt’s legal

blindness was a cause of the rejection of her application.

39. There is no evidence of any act or conduct which would

suggest discriminatory conduct or a discriminatory animus by any

of the persons named as Respondents.

40. Taken as a whole, the credible evidence indicates that

the sole basis for rejecting her application was the

unavailability of the unit that she requested, and her failure to

satisfy management of her financial ability to meet the financial

requirements of Regency Apartments.

41. Although Leggitt testified as to her inconvenience

caused by the denial of her application, there is no evidence of

any quantifiable damages.

CONCLUSIONS OF LAW

42. The Division of Administrative Hearings has

jurisdiction over the parties and subject matter of this cause,

pursuant to Section 120.57(1), Florida Statutes.

43. Petitioner, Florida Commission on Human Relations, is

charged with the administration of the Florida Civil Rights Act

of 1992, as amended. Section 760.30, Florida Statutes (1995).

If Petitioner is unable to obtain voluntary compliance with

sections 760.20-760.37, Florida Statutes, or has reasonable cause

to believe a discriminatory housing practice has occurred,

Petitioner may institute an administrative proceeding under

Chapter 120, Florida Statutes (1995).

44. The Statute provides at Section 760.35(3)(b) (1993):

Administrative hearings shall be conducted pursuant to

s. 120.57(1). The respondent must be served written

notice by certified mail. If the hearing officer finds

that a discriminatory housing practice has occurred or

is about to occur, he shall issue a recommended order

to the commission prohibiting the practice and

recommending affirmative relief from the effects of the

practice, including quantifiable damages and reasonable

attorney’s fees and costs. The commission may adopt,

reject, or modify a recommended order only as provided

under s. 120.57(1). Judgment for the amount of damages

and costs assessed pursuant to a final order by the

commission may be entered in any court having

jurisdiction thereof and may be enforced as any other

judgment.

45. Currently b efore this tribunal is Respondent’s motion

to dismiss on two grounds: 1) that Petitioner’s failure to

comply with the statutory requirements requires dismissal of the

administrative charge; and 2) that Petitioner’s delay has

prejudiced Respondent and should result in dismissal of the

charge based on laches or violation of the statute of

limitations.

46. Under the federal Fair Housing Amendments Act, “the

Secretary shall make an investigation of the alleged

discriminatory housing practice and complete such investigation

within 100 days after filing of the complaint . . ., unless it is

impracticable to do so.” 42 U.S.C. Section 3610(a)(1)(B)(iv).

The statute also provides that if “the Secretary is unable to

complete the investigation within 100 days” after complainant

files the complaint, the Secretary “shall notify the complainant

and respondent in writing of the reasons for not doing so.” 42

U.S.C. Section 3610(a)(1)(c). This same provision is found in

the Florida Fair Housing Act. See Section 760.34 Florida

Statutes (1995) and Rule 60Y-7, Florida Administrative Code.

47. The Florida Administrative Code, provides as follows:

Section 60Y-7.004(8)(b) If the Commission is unable to

complete its investigation within 100 days, it shall

notify the complainant and respondent in writing of the

reasons for not doing so.

Section 60Y-7.004(b)(10) The Commission will make

final administrative disposition of a complaint within

one year of the date of receipt of the complaint,

unless it is impracticable to do so. If the Commission

is unable to do so, it shall notify the complainant and

respondent in writing of the reasons for not doing so.”

(Emphasis added).

48. It is undisputed in this case that Petitioner did not

file its determination until August 28, 1996, over three years

from the time Leggitt filed her complaint and that Petitioner

never notified the Respondent that it would be unable to complete

the investigation within 100 days as required by statute, nor did

it notify Complainant or Respondent in writing why an

administrative disposition of a complaint had not been made

within one year of receipt of the complaint.

49. In Mary E. Landes vs. Department of Professional

Regulation , 441 So. 2d 686 (Fla. 2nd DCA 1983), the Second

District Court of Appeal stated:

However, we agree with the First District that “in

absence of a specific legislative authority, civil or

criminal statutes of limitations are inapplicable to

administrative license revocation proceedings.” Citing

Donaldson vs. Department of Health & Rehabilitative

Services , 425 So. 2d 145, 147 (Fla. 1st DCA 1983).

50. Therefore, the specific statute of limitations cited

earlier, that the Legislature limited a cause of action to two

years for civil suits does not apply to Petitioner, a state

agency.

51. The Petitioner contends that the time periods provided

in the administrative code are “aspirational,” and that it was

not required to complete the investigation within one year.

Citing federal case law, St. Regis Mohawk Tribe, New York vs.

Brock , 769 F. 2d 37, 41-42 (2d Cir. 1985); Brock vs. Pierce

County , 476 U.S. 253, 261-262, 106 S. Ct. 1834, 1839-1840 (1986).

Although the Court is not required to dismiss the complaint for

failure to comply with the statute, the Court does have an

obligation to determine whether the defendants have suffered

substantial prejudice, warranting dismissal or other equitable

relief. See, Baumgardner vs. HUD , 960 F. 2d 572, 577-578 (6th

Cir. 1992); United States vs. Scully , 1996 WL 278776, at 1 (E.D.

Pa. 1996).

52. Florida courts have taken a similar position in

licensing discipline cases. See Carter vs. Department of

Professional Regulation, Board of Optometry , 633 So. 2d 3, (Fla.

1994) in which the licensee must show (1) a violation of the time

limits set by statute and (2) that the resulting delay may have

impaired the fairness of the proceedings or the corrections of

the action and may have prejudiced the licensee. Respondent, in

this case, has established that the Petitioner violated the

statutory time limits and that the three-and-one-half year delay

in filing Petitioner’s Notice of Probable Cause has caused the

proceedings to be impaired and the Respondent extreme prejudice.

See City of Panama City vs. Public Employees Relations

Commission , 364 So. 2d 109 (Fla. 1st DCA 1978).

53. Here, the only witness that can specifically refute

any of the testimony given by any of the witnesses of the Florida

Human Relations Commission has died, and that testimony cannot be

recreated, and consequently the Respondents have been prejudiced

in their ability to refute (if necessary) the allegations of

discrimination asserted by the Commission. The long delay in the

investigation before filing of probable cause materially impaired

the fairness of the proceeding in this particular case. The

complaint was filed by Leggitt on February 3, 1993. The

Petitioner notified the Respondent in March, 1993, that it would

be conducting an investigation, and that the investigation would

be completed within one year from the date of filing of the

complaint by Leggitt. After notification by the Petitioner of

the investigation, various pieces of correspondence went back and

forth between the parties as shown in some of the exhibits.

However, it was not until three-and-one-half years later, in

August 1996, that a probable cause finding was made. In the

meantime, not only had the memories of the complainant’s

witnesses dimmed, but also there was a substantial loss of

testimony by virtue of the death of Frank Cutrona.

54. Consequently, this case also falls clearly within the

doctrine of laches, (1) that there is conduct on the part of the

Respondents giving rise to the situation on which the complaint

is raised; (2) there is a delay in asserting the Petitioner’s

rights with the complainant having had knowledge or notice of the

Respondents’ conduct, and having been afforded an opportunity to

institute suit; (3) lack of knowledge or notice on the part of

the Respondents that the complainant would assert the right on

which she bases her suit; and (4) injury or prejudice to the

Respondents, resulting from the loss of the witness and one of

the Respondents, Frank Cutrona, for his testimony. The Florida

Bar vs. McCain , 361 So. 2d 700, 705 (Fla. 1978).

55. The appropriate action in this is that the Petition

should be dismissed.

56. Assuming, arguendo , that this case is not dismissed

because of the delay, the order and burden of proof in a

handicap-discrimination case involves the “traditional” standard

set forth in McDonnell-Douglass Corporation vs. Green , 411 U.S.

792, 93 S.Ct. 1817, 36 L.Ed. 2d, 668 (1973), and Texas Department

of Community Affairs vs. Burdine , 450 U.S. 248, 101 S.Ct. 1089,

67 L.Ed. 2d 207 (1981). That is, the Petitioner has the burden

of establishing by a preponderance of the evidence a prima facie

case of unlawful discrimination. If they demonstrate the prima

facie case, a presumption of discrimination arises, and the

burden shifts to the housing provider to articulate a legitimate,

nondiscriminatory reason for its action. The burden of producing

evidence is next placed on the Petitioner to demonstrate that the

proffered reason was pretextual. However, the ultimate burden of

persuasion remains with the Petitioner. See, St. Mary’s Honor

Center vs. Hicks , 509 U.S. ______, 113 S.Ct. 2742, 2747, 125

L.Ed. 2d 407, (1993).

57. “Handicap” is defined in Section 760.22(7), Florida

Statutes (1993), as:

(a) A person has a physical or mental impairment which

substantially limits one or more of major life

activities, or he has a record of having, or is

regarded as having, such physical or mental

impairment . . .

58. This definition is essentially the same as the

definition in the Americans With Disabilities Act of 1990 (ADA),

42 U.S.C. Sections 12101-12213.

59. The case of Bisbee vs. Thatcher Glass Manufacturing

Company , 3 F.A.L.R. 892-A, 893-A (Florida Commission on Human

Relations, 1981), contains a statement that the Commission’s

definition of a handicap “tracks the definition of ‘handicapped

individual’ in 29 U.S.C. Section 706(7)(b).” That provision

defines an individual with disabilities, as one “who has a

physical or mental impairment which substantially limits one or

more of such person’s major life activities. . . .” Examples of

major life activities include caring for oneself, walking,

sitting, speaking, learning and working. 29 C.F.R., Section

1630.2(1)(1993), as cited in the Brand vs. Florida Power

Corporation , 633 So. 2d 504 (Fla. 1st DCA 1994).

60. The Complainant, Polly Leggitt, is clearly a

handicapped person under the act.

61. The Florida Civil Rights Act of 1992 provides in

pertinent part:

760.23 --- Discrimination in the sale or rental of

housing and other prohibited practices.

(1) It is unlawful to refuse to sell or rent after the

making of a bona fide offer, to refuse to negotiate for

the sale or rental of, or otherwise to make unavailable

or deny a dwelling to any person because of race,

color, national origin, sex, handicap, familial status,

or religion.

(2) It is unlawful to discriminate against any person

in the terms, conditions, or privileges of sale or

rental of a dwelling, . . . because of race, color,

national origin, sex, handicap, familial status, or

religion.

* * *

(7) It is unlawful to discriminate in the sale or

rental of, or to otherwise make unavailable or deny, a

dwelling to any buyer or renter because of a handicap

of:

(a) That person or renter; . . .

62. In order for Petitioner to demonstrate a prima facie

case under the proof standard set forth above, the Petitioner

must demonstrate:

(1) That she is handicapped within the meaning of the

above authority and part of a protected class.

(2) That she is otherwise qualified to rent the

apartment in question.

(3) That she suffered a loss of housing opportunity

under circumstances which lead to an inference that

they based the action solely upon her handicap.

63. Petitioner has demonstrated a prima facie case.

64. If the Petitioner proves a prima facie case of

handicap or disability discrimination, the burden to go forward

with an articulation of a legitimate, nondiscriminatory reason

for the housing action taken shifts to the Respondent. Upon such

an articulation being made by the Respondent, the burden to go

forward with evidence to show that is a pretext for what really

amounts to discrimination shifts back to the Petitioner. Under

the St. Mary’s Honor Center decision, supra .; however, the

ultimate burden of persuasion remains with the Petitioner at all

times.

65. Through the testimony of witnesses and letters

admitted in evidence, Respondent stated that Leggitt’s

application was denied because (1) an upstairs one-bedroom

apartment was not available at the time she submitted her written

application, and (2) she did not meet the minimum income

requirements set by the Respondent.

66. The burden of going forward and the burden of

persuasion then shifted to Petitioner to demonstrate by a

preponderance of admissible evidence that Respondent’s

articulated reasons were merely pretextual. Petitioner has

failed to do so. Petitioner’s proffer of evidence to prove

pretext was all hearsay or conjecture. Petitioner’s hearsay

evidence does not fall into any of the hearsay exceptions found

in Section 90.803, Florida Statutes (1993). Under Section

120.58(1)(a), Florida Statutes (1993), this hearsay evidence is

not sufficient in itself to support findings of fact. Harris vs.

Game and Fred Water Fish Commission , 495 So. 2d 806, 809 (Fla.

1st DCA 1986); Department of Environmental Protection vs.

Department of Management Services, Division of Administrative

Hearings , 667 So. 2d 369, 370 (Fla. 1st DCA 1995); Department of

Administration, Division of Retirement vs. Porter , 591 So. 2d

1108 (Fla. 2nd DCA 1992). Without the hearsay evidence,

Petitioner’s evidence did not prove that Respondent’s articulated

reasons for denying Leggitt’s application were pretextual.

67. Section 760.35(3)(b) Florida Statutes (1993) provides

that in the event the administrative law judge determines that a

discriminatory act has been committed, it shall recommend to the

Commission an order prohibiting or requiring the Respondent to

cease and desist its activity, and shall recommend an order

finding quantifiable damages.

68. As for remedies sought by Petitioner, if

discriminatory conduct had been proven, by its very nature an

injunction will lie only to restrain the commission of a future

injury, since it is impossible to prevent what has already

occurred. City of Coral Springs vs. Florida Nat’l Properties,

Inc. , 340 So. 2d 1271, 1272 (Fla. 4th DCA 1976). The law only

provides injunctive relief for a prospective injury that is more

than a remote possibility; it must be so imminent and probable as

reasonably to demand preventive action by the court. Id .

69. Regency Apartments is no longer owned by Robert

Stitzel. It would therefore serve no purpose to recommend an

injunction “prohibiting the practice and recommending affirmative

relief from the effects of the practice” as provided in the

statute.

70. There has been no evidence submitted by Leggitt of any

quantifiable damages which the Commission has authority to levy

in such cases. As the Court determined in Laborers’

International Local 478 vs. Burrough , 541 So. 2d 1160 (Fla. 1989)

quantifiable damages can be authorized by an administrative

agency. However, humiliation, pain and suffering, comfort, and

inconvenience are damages which are not quantifiable and may not

be awarded through administrative procedures; see also, Broward

County vs. John LaRosa , 505 So. 2d 422, (Fla. 1987).

71. Consequently, had Petitioner proven discrimi nation,

there is no relief afforded by the statute in this particular

case.

RECOMMENDATION

Upon the foregoing findings of fact and conclusions of law,

it is

RECOMMENDED that the Florida Commission on Human Relations

issue a Final Order denying the relief sought and dismissing the

petition filed in this matter.

RECOMMENDED this 7th day of July, 1997, at Tallahassee, Leon

County, Florida.

___________________________________

DANIEL M. KILBRIDE

Administrative Law Judge

Division of Administrative Hea rings

The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-3060

[phone] SUNCOM 278-9675

Fax Filing [phone]

Filed with the Clerk of the

Division of Administrative Hearings

this 7th day of July, 1997.

COPIES FURNISHED:

Sharon Moultry, Clerk

Commission on Human Relations

325 John Knox Road

Building F, Suite 249

Tallahassee, Florida 32303-4149

Dana Baird, Esquire

Commission on Human Relations

325 John Knox Road, Building F, Suite 240

Tallahassee, Florida 32303-4149

Evelyn Davis Golden, Esquire

Assistant General Counsel

Commission on Human Relations

325 John Knox Road, Building F, Suite 240

Tallahassee, Florida 32303-4149

Ms. Polly Leggitt

505 Landings Way, Apartment Number 12

Merritt Island, Florida 32952

Mike Krasny, Esquire

Krasny & Dettmer

Post Office Box 428

Melbourne, Florida 32902-0428

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 should be filed with the agency that will

issue the final order in this case.