04-002804 Debrah K. Manchego vs. Cocoa Lakes Apartments Status: Closed Recommended Order on Tuesday, January 18, 2005.

Summary: Late filing of housing discrimination claim petition divests Florida Commission on Human Relations and Division of Administrative Hearings of jurisdiction. Comparison done of housing and employment discrimination and public accommodation claims.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEBRAH K. MANCHEGO, )

)

Petitioner, )

)

vs. ) Case No. 04 - 2804

)

COCOA LAKES APARTMENTS, )

)

Respondent. )

)

RECOMMENDED ORDER OF DISMISSAL

This cause comes before Ella Jane P. Davis, an

Administrative Law Judge of the Division of Administrative

Hearings, without an evidentiary hearing, for resolution upon

the pleadings and papers filed in a housing discrimination case

referred by the Florida Commission on Human Relations (FCHR or

Commission).

STATEMENT OF THE ISSUE

Does the Division of Administrative Hearings have

jurisdiction of this housing discrimination petition?

PRELIMINARY STATEMENT

This cause was referred to the Division of A dministrative

Hearings (DOAH or Division) by FCHR on or about August 11, 2004.

On August 20, 2004, Respondent filed a Motion to Dismiss

the Petition for Relief as untimely. Petitioner filed no timely

response in opposition to the Motion as permitted by Florida

Administrative Code Rule 28 - 106.204. However, in an abundance

of caution, a telephonic conference call was conducted on

October 12, 2004, in order to permit Petitioner, who is

proceeding pro se , to argue against the Motion to Dismiss. 1/

Af ter oral argument from both parties, an Order was entered

on October 13, 2004, which allowed Petitioner until October 22,

2004, in which to file any additional exhibits or written

arguments in opposition to the pending Motion. The October 13,

2004, Order further provided for Respondent to file any written

rebuttal by October 27, 2004.

In response to the foregoing Order, Petitioner filed a

"Motion for Continuance" [sic] claiming various medical

conditions caused her to late - file her Petition before the

Commission. Her additional exhibits were: a U.S. Postal "date

of mailing/delivery receipt," a copy of Chapter 28 - 106

(particularly 28 - 106.103,) and page 6 from original instructions

for filing a petition for relief/FCHR and copies of

correspondence from Petitioner to one Stephen Brown. Respondent

timely filed a "Rebuttal Memorandum."

So as to be fully advised in the premises, the undersigned

next requested, and received, from the Commission a letter of

explanation dated November 16, 2004, which has also been

considered.

This Recommended Order of Dismissal is entered upon these

representations and filed documents.

FINDING OF FACTS

1. Petitioner filed a Housing Discrimination Complaint

with FCHR on or about October 22, 2002. It was assign ed FCHR

Case No. 23 - 90021H.

2. FCHR filed and mailed to the parties its document

entitled "Determination of No Reasonable Cause" in FCHR Case No.

23 - 90021H, on June 28, 2004. 2/ This document was included in

FCHR's referral packet forwarded to the Di vision of

Administrative Hearings on or about August 11, 2004.

3. The November 6, 2004, letter from FCHR to the

undersigned enclosed a copy of the actual Determination No Cause

and the letter advised, in pertinent part, as follows:

The document [Dete rmination of No Reasonable

Cause] included in the referral packet is

the Notice of Determination No Cause. It is

noted in the Certificate of Service on the

second page. The word NOTICE was

inadvertently left off of the title of the

document. (Bracketted material added for

clarity.)

This piece of information is crucial to the timeliness issue at

bar, because FCHR's rules refer to the " Notice of

Determination," for timeliness issues.

4. The June 28, 2004 "Determination of No Reasonable

Cause" a/k/a "the Notice of Determination No Cause" stated in

pertinent part:

The parties are further advised that the

Complainant may request that a formal

administrative proceeding be conducted. The

request (i.e. Petition for Relief) must be

filed with the FCHR with in 30 days of the

date of mailing of this Notice and should be

in compliance with the provisions of rule

60Y - 8.001 and Chapter 60Y - 4, Florida

Administrative Code, entitled General

Procedures. A Petition for Relief form is

enclosed. If you elect to file a Petition

for Relief, it may be beneficial to seek

legal counsel prior to filing the Petition.

This action will not become final until time

has expired for Complainant to file a

Petition for Relief. Failure of Complainant

to timely file a Petition will r esult in

dismissal of the complaint within the

purview of Rule 60Y - 2.004(2)(g), Florida

Administrative Code. (Emphasis supplied.)

5. Petitioner has provided a copy of the "Instructions for

filing a Petition for Relief," which she received from FCHR with

the foregoing Determination Notice and a blank Petition for

Relief form. The instructions provided, in pertinent part:

For employment and public accommodation

complaints, it [Petition for Relief] must be

received by the Commission no later than 35

d ays after the date of determination in your

case. For Housing cases, it must be

received by the Commission no later than 30

days after you receive a notice that the

Commission has concluded its investigation .

The Commission will date - stamp the Petition

upon receipt . (Bracketed material provided

for clarity. Underlining, boldface, and

italics in original)

6. The Instructions also provided:

Return the completed form to the Clerk of

the Commission at 2009 Apalachee Parkway,

Suite 100, Talla hassee, Florida 32301 - 4857 ,

within 35 days from the date of

Determination. . . . This form must be

received by the Commission on or before the

close of business on the 30th or 35th day,

depending on your case type . (Underlining,

boldface, and italics in o riginal.)

7. July 28, 2004 was the thirtieth day after June 28,

2004. July 28, 2004, was a Wednesday.

8. Petitioner has submitted proof that she mailed her

Petition for Relief on August 2, 2004.

9. Petitioner's submittal and FCHR's date stamp show that

her Petition was received, date - stamped, and filed by FCHR on

August 3, 2004.

10. The Petition clearly has on it a check in the box

marked "Housing Discrimination Practice," and it was signed by

Petitioner on July 30, 2004.

11. On August 10, 2004, FCHR's Clerk signed the

Transmittal of Petition, forwarding the case to the Division of

Administrative Hearings for proceedings pursuant to Section

120.57, Florida Statutes, and Florida Administrative Code Rule

60Y - 4.106(1). 3/

1 2. For reasons unknown, FCHR's Transmittal of the

Petition regarding Petitioner's housing discrimination practice

erroneously recited:

Please be advised that the Florida

Commission on Human Relations has received a

Petition for Relief from an Unlawful

Emp loyment Practice by Debrah K. Manchego.

(Emphasis supplied.)

13. Petitioner asserts that her several disabilities

should be considered as a reason/excuse for the late filing of

her Petition.

CONCLUSIONS OF LAW

14. The Division of Administrat ive Hearings has the

authority and the obligation to determine jurisdiction in this

matter.

15. Despite the rather peculiar use of the word "received"

in FCHR's Instructions to Petitioner, the relevant FCHR Rule

governing Fair Housing Discrimination Proceedings reads, in

pertinent part, as follows:

60Y - 8.001 Petition for Relief from a

Discriminatory Housing Practice.

(1) Petition. A complainant may file a

Petition for Relief from a Discriminatory

Housing Practice within 30 days of service

of a Noti ce of Determination (No Cause) or

Notice of Determination (Cause). . . .

(2) For good cause shown, the Chairperson

may grant an extension of time to the

complainant to file the Petition for Relief,

provided the motion for extension of time is

filed withi n the 30 - day period.

(3) Procedures. Petitions for Relief, and

proceedings thereupon, are governed by the

provisions of Chapters 28 - 106 and 60Y - 4,

F.A.C., except as otherwise provided by this

section. (Parenthetical material in

original)

16. By FCHR's Rule, Petitioner had until July 28, 2004, to

file her Petition with FCHR. Petitioner signed her Petition on

July 30, 2004, two days late. She mailed her Petition on

August 2, 2004, five days late. She filed her Petition on

August 3, 2004, six da ys late. Therefore, her Petition is time -

barred, and neither FCHR nor the Division has jurisdiction.

17. Florida Administrative Code Rule 28 - 106.204 states, in

relevant part, that "filing shall mean received by the office of

the agency clerk during normal business hours or by the

presiding officer during the course of a hearing." Petitioner's

Petition for Relief was date - stamped received by FCHR on

August 3, 2004, and under Florida Administrative Code Rule 28 -

106.104, the Petition was deemed "filed" with FCHR on that date,

which is 36 days after FCHR mailed its Notice to her.

18. Section 120.569(2)(a), Florida Statutes, provides in

relevant part, that "[a] petition shall be dismissed if it is

not in substantial compliance with these requireme nts or it has

been untimely filed." The Petition in the instant case was not

timely filed.

19. Based on the foregoing, the Petition for Relief herein

is time - barred and should be dismissed. Appellate courts have

upheld dismissals for tardiness as m inimal as one day past the

filing deadline. See Whiting v. Fla. Dept. of Law Enforcement ,

849 So. 2d 1149 (Fla. 5th DCA 2003)(dismissal of employee's

administrative appeal from notice of final agency action upheld

where appeal was filed one day late.); Ca nn v. Dept. of Children

and Family Services , 813 So. 2d 237 (Fla. 2nd DCA 2002) (request

for administrative hearing untimely filed where request filed

one day late with the Department). Likewise, the administrative

forum has not hesitated to dismiss time - barred Petitions in

employment discrimination cases. See Clardy v. Dept. of

Corrections , DOAH Case No. 04 - 1020 (RO: May 6, 2004) (Petition

for Relief dismissed where petition untimely filed with FCHR

three days late); Perdraza v. Int'l Brotherhood Local 2 008 , DOAH

Case No. 02 - 0238 (R O : June 21, 2002) (Petition for Relief time -

barred where petition filed four days late with FCHR); Perry v.

Speedway Superamerica, LLC, d/b/a Starvin' Marvin , DOAH Case No.

02 - 1624 (RO: June 18, 2002) (Petition for Relief time - barred

where petition filed with FCHR two days late); Oliveras v. Aero

Decal , DOAH Case No. 01 - 3928 (RO: November 28, 2001), (Petition

for Relief time - barred where petition filed with FCHR one day

late).

20. The Rule and the Commission's Notice of De termination

No Cause are clear, but based on the " I nstructions for F iling a

Petition for Relief," Petitioner claims she was confused between

the 30 days' filing period for a Petition for Relief from a

discriminatory housing practice and the 35 days' filing period

for a Petition for Relief from a discriminatory employment

practice. The I nstructions for F iling a P etition for R elief

document (see Findings of Facts 5 - 6) states that for employment

and public accommodations complaints, the petition for relief

mu st be received by the FCHR no later than 35 days after the

date of determination. However, this document also clearly

states that "[f]or Housing cases, it [the Petition] must be

received by the Commission no later than 30 days after you

receive a notice t hat the Commission has concluded its

investigation. " ( E mphasis as it appears in the exhibit). This

document goes on to further state that the Commission will date -

stamp the Petition upon receipt. Finally, this document states

that "[t]his form must be r eceived by the Commission on or

before the close of business on the 30th or 35th day, depending

on your case type."

21. Furthermore, the Petition form indicated that it was a

Petition for Relief from a "housing discriminatory practice."

B y checking t his category on the cover page of her Petition for

Relief form, and not checking on her Petition for Relief form

that her Petition pertained to an unlawful employment practice

or a public accommodation discriminatory practice, which

categories also were pr ovided as choices on this form, it is

clear that Petitioner understood that she was filing a Petition

for R elief from a housing discriminatory practice (limited by 30

days) and was not confused in thinking that she was dealing with

the time frame (limited by 35 days) for an unlawful employment

practice or a public accommodation discriminatory practice.

Even so, she did not file within 35 days; she filed on the

thirty - sixth day.

22. Petitioner does not actually claim that FCHR's

Transmittal of Petitio n misled her. If that had been the case,

Petitioner's reliance on FCHR's erroneous language therein,

referring to a petition for relief from an unlawful employment

practice (see Findings of Fact 11 - 12), still would be neither

reasonable nor proven. The T ransmittal of Petition originated

with the FCHR Clerk and was directed to the Division of

Administrative Hearings, not to the Petitioner, although

Petitioner received a copy. Further, this Transmittal of

Petition also indicated that FCHR had received Peti tioner's

Request for Relief (the Petition which was received on August 3,

2004) and was requesting that the Division assign the matter to

an Administrative Law Judge for further proceedings. Therefore,

Petitioner could only have received this Transmittal of Petition

after she had already mailed her Petition for Relief to FCHR.

23. Florida Administrative Code Rule 28 - 106.103, does not

offer Petitioner any relief. That Rule expressly excepts

additional time being added to the type of notice provided in

this case, which was FCHR's Notice of Determination. (See

Findings of Fact 3 - 4.) Such a Notice of Determination is a

"notice of agency decision" as provided for under Florida

Administrative Code Rule 28 - 106.111, which does, or may,

determine a party' s substantial interest. Florida

Administrative Code Rule 28 - 106.103 provides, in relevant part,

that: "No additional time shall be added . . . when the period

of time begins pursuant to a type of notice described in Rule

28 - 106.111." Finally, even if fi ve additional days were added

to the June 28, 2004, due date for the filing of Petitioner's

Petition for Relief, her Petition would have been due at FCHR by

August 2, 2004, and it was not received by FCHR until August 3,

2004, one day late.

24. In so me instances, courts have examined whether the

doctrine of equitable tolling could be applied to extend an

administrative time limit. In Machules v. Dept. of

Administration , 523 So. 2d 1132 (Fla. 1988), the Florida Supreme

Court stated:

Generally, the tol ling doctrine had been

applied when the plaintiff has been misled

or lulled into inaction, has in some

extraordinary way been prevented from

asserting his rights, or has timely asserted

his rights mistakenly in the wrong forum.

523 So. at 1134. In Cann v . Dept. of Children and Family

Services , 813 So. 2d 237 (Fla. 2nd DCA 2002), the Department of

Family Services issued the Appellants, the Canns, a notice of

intent to dismiss their request for an administrative hearing

because it was filed untimely, as it was filed with the

Department one day late. The facts indicated that the Canns'

attorney had prepared and delivered their request to the post

office two days before it was due, but the Department did not

receive the request until one day past the deadline . The Second

District Court of Appeal applied the Supreme Court's requirement

for equitable tolling as espoused in Machules and concluded that

the requirements for equitable tolling were not met in the Cann

case. The Court upheld the Department's dismiss al of the Canns'

untimely request for administrative hearing. See also Whiting

v. Florida Department of Law Enforcement , 849 So. 2d 1149 (Fla.

1st DCA 2003) (notice of appeal from final agency action filed

one day late was insufficient to support claim of equitable

tolling and agency's dismissal of untimely notice upheld).

25. In the instant case, Petitioner has filed a Petition

for Relief with FCHR six days after the July 28, 2004, deadline.

FCHR's Notice was proper and Petitioner knew the proper forum.

Under Machules and Cann , Petitioner's assertions as to why she

failed to timely file her Petition for Relief are insufficient

to support equitable tolling.

26. Although Petitioner has asserted that her physical

disabilities prevented her fi ling timely, she has presented

neither evidence to that effect, nor case law to support such a

position, so there is nothing extraordinary in Petitioner's

failure to timely file her Petition in this case.

27. The Petition for Relief must be dismissed .

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of

Law, it is

RECOMMENDED that the Florida Commission on Human Relations

enter a final order dismissing the Petition herein.

DONE AND ENTERED this 18th day of January, 20 05, in

Tallahassee, Leon County, Florida.

S

ELLA JANE P. DAVIS

Administrative Law Judge

Division of Administrative Hearings

The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399 - 3060

(850) 488 - 9675 SUN COM 278 - 9675

Fax Filing (850) 921 - 6847

www.doah.state.fl.us

Filed with the Clerk of the

Division of Administrative Hearings

this 18th day of January, 2005.

ENDNOTES

1/ During the telephonic conference call, Petitioner disputed

none of the facts as al leged in the Motion to Dismiss.

Specifically, Petitioner stated that she had no reason to doubt

FCHR's date stamp and had no proof that her Petition had arrived

at the Commission on any other date than August 3, 2004. She

stated that she had mailed her Pe tition to the Commission on

August 2, 2004, and that she had proof of that mailing date.

She further asserted that she had not requested an extension in

which to file her Petition and that FCHR did not enter an order

extending the time during which she co uld file her Petition.

However, she also represented that her yellow copy of FCHR's

June 28, 2004, instructions/correspondence, stated she had 35

days to "respond."

2/ This document bears FCHR's certificate of filing and service

showing the date of Ju ne 28, 200 3 . This "2003" date seems to be

a clerical error resulting from FCHR's use of a pre - printed

form, because the signature of FCHR's Executive Director on the

same document was dated by hand on April 23, 200 4 , and

Petitioner conceded receiving the Determination in 2004.

Therefore, the date of service and filing of the Determination

of No Reasonable Cause is found to be June 28, 2004.

3/ The certificate of transmittal on this document is actually

dated August 10, 200 2 , but the "2002" apparently i s yet another

clerical error resulting from FCHR's use of a pre - printed form,

because the transmittal was date - stamped as received by the

Division on August 11, 200 4 . Therefore, it is found that the

Petition was transmitted by FCHR to the Division on Augu st 10,

2004.

COPIES FURNISHED :

Cecil Howard, Esquire

Florida Commission on Human Relations

2009 Apalachee Parkway, Suite 100

Tallahassee, Florida 32301

Denise Crawford, Agency Clerk

Florida Commission on Human Relations

2009 Apalachee Parkway, Suite 100

Tallahassee, Florida 32301

Debrah K. Manchego

236 East Main Street

Coleman, Wisconsin 54112

Rhonda E. Stringer, Esquire

Saxon, Gilmore, Carraway, Gibbons, Lash &

Wilcox, P.A.

201 East Kennedy Boulevard, Suite 600

Tampa, Florida 33602

NOTICE O F 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.