04-003272 Frank M. Bafford, Sr. vs. Gary Hediger, Marcus And Millichap Company And Township Apartments Associates, Et Al. Status: Closed Settled and/or Dismissed prior to entry of RO/FO on Thursday, December 16, 2004.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

FRANK M. BAFFORD, SR., )

)

Petitioner, )

)

vs. ) Case No. 04-3272

)

GARY HEDIGER, MARCUS AND )

MILLICHAP COMPANY AND TOWNSHIP )

)

)

Respondents. )

)

RECOMMENDED ORDER OF DISMISSAL

This cause, set for final hearing on December 20, 2004,

came before the undersigned via telephonic conference call on

November 15, 2004, on Petitioner's pleading, captioned Motion to

Clarify and Dismiss, filed on November 12, 2004, before Fred L.

Buckine, a duly-assigned Administrative Law Judge of the

Division of Administrative Hearings.

APPEARANCES

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

9622 Theresa Drive

Thonotosassa, Florida 33592

For Respondent Gary Hediger:

Mark A. Hanley, Esquire Glenn, Rasmussen, Fogarty & Hooker, P.A.

100 Ashley Drive, Suite 1300

Tampa, Florida 33602

For Respondents Marcus and Millichap Company and

Darron Kattan:

Edward C. LaRose, Esquire

Trenam & Kemker

2700 Bank of America Plaza

101 East Kennedy Boulevard

Tampa, Florida 33602

For Respondent Township Apartments Associates:

David J. Tong, Esquire

Saxon, Gilmore, Carraway, Gibbons,

Lash & Wilcox, P.A.

201 East Kennedy Boulevard, Suite 600

Tampa, Florida 33602

On May 11, 2004, Petitioner, Frank M. Bafford, Sr., filed a

complaint with the Florida Commission on Human Relations 1

(Commission) alleging injury by discriminatory act of refusal to

sell and false denial or representation of availability.

On June 16, 2004, Petitioner filed an Amended Housing

Discrimination Complaint with the Commission.

On August 6, 2004, the Commission issued a Notice of

Dismissal and a Determination of No Jurisdiction.

On September 14, 2004, the Commission issued a Notice of

Determination of No Jurisdiction: No Jurisdiction and Rescission

of Notice of Dismissal .

On September 17, 2004, Petitioner filed a Petition for

Relief, with the Commission, alleging violations of the Fair

Housing Act, as amended, by Respondents, Gary Hediger, Marcus

and Millichap Company, and Township Apartments Associates, et

al. , to wit: "refusal to sale, denial of a property's

availability, setting different terms and conditions in a

contract, and refusing to negotiate."

On September 20, 2004, the Commission referred this matter

to the Division of Administrative Hearings for the assignment of

an Administrative Law Judge to conduct all necessary proceedings

required under the law and to submit recommended findings to the

Commission.

On October 1, 2004, Petitioner filed a Motion to Rule on

Motion to Relinquish Jurisdiction and Refer the Case back to the

Florida Commission for Investigation and Representation. Ten

days later, Respondents, Marcus and Millichap Company and Darron

Kattan, responded to Petitioner's motion and, on October 7,

2004, filed a Motion to Dismiss or, in the alternative, Motion

for Summary Final Order.

On October 10, 2004, a Notice of Hearing, scheduling the

final hearing for December 2, 2004, in Tampa, Florida, and an

Order of Pre-hearing Instructions were entered.

On October 11, 2004, Petitioner filed a Response to Marcus

and Millichap Company and Darron Kattan's Motion to Dismiss.

On October 14, 2004, Marcus and Millichap Company and

Darron Kattan filed a response to Petitioner's Motion to

Relinquish Jurisdiction, and, on that same date, Respondent

Township Apartments Associates, filed a Notice of Adoption of

Motion to Dismiss or for Summary Final Order.

On October 18, 2004, Petitioner filed an Amended Complaint

and Demand for a Jury Trial and an Emergency Motion to Rule on

Jurisdiction or Provide Counsel.

On October 21, 2004, Respondent, Gary Hediger, filed a

Notice of Adoption of Motion to Dismiss or for Summary Final

Order, and Marcus and Millichap Company and Darron Kattan filed

a response to Petitioner's Emergency Motion to Rule on

Jurisdiction or Provide Counsel.

On October 22, 2004, an Amended Notice of Hearing,

rescheduling the final hearing for December 20, 2004, in Tampa,

Florida, was entered.

On October 26, 2004, a case status conference on all

pending motions filed in this cause was held via telephonic

conference, with the parties located in Tampa and the

undersigned in Tallahassee, Florida.

On October 28, 2004, Petitioner filed a Motion to Provide

Counsel at Petitioner's Expense, and Marcus and Millichap

Company and Darron Kattan filed a Motion to Shorten Time for

Responding to Discovery.

On November 1, 2004, Petitioner filed a Motion to Provide

Counsel, Reconsider Referring to Commission, or Stay.

On November 3, 2004, an Order ruling on pending motions

heard during the October 28, 2004, telephone conference was

entered. In that Order, the following motions filed by

Petitioner were DENIED: (1) Motion to Rule on Jurisdiction and

Refer Case Back to the Commission for Investigation and

Representation; (2) Emergency Motion to Rule on Jurisdiction or

Provide Counsel; and (3) Amended Complaint and Demand for Jury

Trial. The following pending motions filed by Respondents were

DENIED: (1) Motion to Dismiss or, in alternative, Motion for

Summary Final Order and (2) Motion to Adopt Motion to Dismiss or

for Summary Final Order.

On November 4, 2004, Petitioner filed a Motion to Stay,

and, on November 8, 2004, Petitioner filed a Motion to Rule on

Previously Filed Motion.

On November 9, 2004, a case status telephone conference was

held with all parties present for discussion of all preliminary

matters before the final hearing scheduled for December 20,

2004.

On November 10, 2004, Petitioner filed a Motion for Summary

Recommended Order. Having considered the motion, it is DENIED.

On November 12, 2004, the undersigned provided a Notice of

Understanding and Agreement that resulted from the telephonic

conference held November 9, 2004.

On November 12, 2004, Petitioner filed a Motion to Clarify

and Dismiss the Petition for Relief, which provided:

Petitioner, Frank M. Bafford, Sr., desires

to clarify his previous filed motion. In

the event the court does not grant a summary

recommended order, the Petitioner asked the

Division of Administrative Hearings (DOAH)

to refer its ruling to the state court. The

Florida Commission on Human Relations (FCHR)

based a premature findings and conclusions

on a ruling from this court. The FCHR's

problem in determining the Petitioner's

intent to dwell will be solved by the final

ruling of the state court. We have two

courts that will rule on the Petitioner's

intent to dwell during the same period,

which is not necessary and will be a waste

of tax dollars. Before this court wastes

any judicial resources it should allow the

FCHR to do its due diligence to solve this

matter itself. If the FCHR can't determine

the Petitioner's intent after the state

court's ruling, then and only then, should

the DOAH hear testimony. The DOAH was not

designed to hear testimony in cases where a

state agency can solve the problem itself,

but in cases where the agency has done

everything possible to solve the problem and

has not been able to. In the event the DOAH

does not grant the Petitioner's motion, the

Petitioner would like to dismiss. It will

be destructive to the Petitioner to give a

deposition without an attorney. The

Petitioner thanks the court for its

professionalism and its patience with the

Petitioner's ignorance of the law and legal

system.

The motion was heard by telephonic conference on

November 15, 2004, with all parties in attendance.

FINDINGS OF FACT

1. At the telephonic hearing, it was explained to

Petitioner that should his Motion to Dismiss be granted, this

Recommended Order of Dismissal to the Commission would be

entered, recommending dismissal of his Petition for Relief filed

in this cause, and should the Commission adopt the

recommendation, his petition would be dismissed.

Notwithstanding explanations given and being otherwise fully

advised of the consequences, Petitioner insisted that his

Petition for Relief be dismissed.

2. Based upon the pleadings filed, the discussions and

arguments made during the several telephonic conferences, it is

found that Petitioner willingly and knowingly made his Motion to

Dismiss, as an alternative, should he not prevail on his

previously filed Motion for Summary Recommended Order.

CONCLUSIONS OF LAW

3. The Division of Administrative Hearing has jurisdiction

over the parties to the subject matter of this proceeding

pursuant to Section 120.569 and Subsections 120.57(1) and

760.23(1), Florida Statutes (2004).

4. Petitioner, after conferencing with Respondents and the

undersigned regarding procedure, of his own free will knowingly

and willingly declined to pursue his claim of housing

discrimination against Respondents by a written motion that his

Amended Housing Discrimination Complaint be dismissed.

RECOMMENDATION

Based upon the foregoing Findings of Fact and Conclusions

of Law, it is

RECOMMENDED that the Florida Commission on Human Relations

enter a final order of dismissal of the Petition for Relief

filed in the cause by Petitioner, Frank M. Bafford, Sr.

DONE AND ENTERED this 16th day of December, 2004, in

Tallahassee, Leon County, Florida.

S

FRED L. BUCKINE

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 16th day of December, 2004.

ENDNOTE

1/ The Florida Commission on Human Relations is a substantially

equivalent agency as recognized by the U.S. Department of

Housing and Urban Development (HUD).

COPIES FURNISHED :

Denise Crawford, Agency Clerk

Florida Commission on Human Relations

2009 Apalachee Parkway, Suite 100

Tallahassee, Florida 32301

Frank M. Bafford, Sr.

9622 Theresa Drive

Thonotosassa, Florida 33592

Mark A. Hanley, Esquire

Glenn, Rasmussen, Fogarty & Hooker, P.A.

100 Ashley Drive, Suite 1300

Tampa, Florida 33602

Edward C. LaRose, Esquire

Trenam & Kemker

2700 Bank of America Plaza

101 East Kennedy Boulevard

Tampa, Florida 33602

David J. Tong, Esquire

Saxon, Gilmore, Carraway, Gibbons,

Lash & Wilcox, P.A.

201 East Kennedy Boulevard, Suite 600

Tampa, Florida 33602

Cecil Howard, General Counsel

Florida Commission on Human Relations

2009 Apalachee Parkway, Suite 100

Tallahassee, Florida 32301

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.