05-002445 Linda Parah And Andrew Loveland, Sr. vs. Donna Morrison, Randy Morrison And Hillside Mobile Home Park Status: Closed Recommended Order on Thursday, March 16, 2006.

Summary: Petitioners failed to demonstrate a request for reasonable accommodation was made before their eviction on the basis of other grounds. Recommend that the petition be dismissed.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

LINDA PARAH AND ANDREW )

LOVELAND, SR., )

)

Petitioner s , )

)

vs. ) Case No. 05 - 2445

)

DONNA MORRISON, RANDY MORRISON )

AND HILLSIDE MOBILE HOME PARK, )

)

Respondent s . )

)

RECOMMENDED OR DER

Pursuant to notice and in accordance with Section 120.57,

Florida Statutes (2004) , a final hearing was held in this case

on September 1 , 2005, in Dade City, Florida, before Fred L.

Buckine, a designated Administr ative Law Judge of the Division

of Administrative Hearings.

APPEARANCES

For Petitioners: Linda Parah, pro se

Andrew Loveland, Sr., pro se

36928 Happy Days Drive, Lot 120

Zephyrhills, Flo rida 33541 - 2892

For Respondents: Matthew J. Schlichte, Esquire

Law Office of Ray A. Schlichte, Jr., P.A.

2134 Hollywood Boulevard

Hollywood, Florida 33020

STATEMENT OF THE ISSUE

Whet her Respondents, Donna and Randy Morrison, managers of

Hillside Mobile Home Park, discriminated against Petitioners,

Linda Parah and Andrew Loveland, Sr., by failing to make

reasonable accommodation for Petitioners' service animal

necessary to afford equal opportunity to use and enjoy the

rental premises in violation of the Fair Housing Act, Sections

760.20 through 760.37, Florida Statutes (2004) . 1

PRELIMINARY STATEMENT

On April 25, 2005, Petitioners filed a Housing

Discrimination Complaint with the Florida Commission on Human

Relations (Commission), alleging:

The complainant [Linda Parah] possesses a

mental impairment that qualifies her as a

disabled person within the meaning of the

Fair Housing Act, and therefore belongs to a

class of persons whom the law protects from

unlawful discrimination. Hillside Mobile

Home Park [Respondent] knew o r should have

known that the Complain ant was a disabled

person. The Complain ant requested a

reasonable accommodation for her service

animal. The requested accommodation was

necessary to afford the Complainant an equal

opportunity to use and enjoy her premises.

The Respondent denied the Complainant's

request for a reasonable accommodation.

On July 8, 2005, Petitioners filed a timely request for

hearing pursuant to Sectio n 120.569 and Subsection s 120.57(1)

and 760.11(7), Florida Statutes . On July 8, 2005, the

Commission referred this matter to the Division of

Administrative Hearings, and, on that date, the Initial Order

was entered.

On July 14, 2005, Respondents ' R esponse to the Initial

Order was filed.

On July 20, 2005, a Notice of Hearing, scheduling the final

hearing for August 26, 2005, in Dade City, Florida, and an Order

of Pre - hearing Instructions were entered.

On August 15, 2005, Respondents ' Witness and Exhibit Lis t

and Notice of Demand for Attorney's Fees and Cost s against the

Petitioners were filed .

On August 24, 2005, Respondent s filed a Motion for

Continuance, and, on August 25, 2005, an Order Granting

Continuance and Re - scheduling Hearing, re - scheduling the fin al

hearing for September 1, 2005, in Dade City, Florida, was

entered.

On September 1, 2005, Petitioner, Linda Parah, testified in

the narrative and was given opportunity to cross - examine

Respondent s ' solo witness, Donna Morrison. Petitioner, Andrew

L o vela nd, Sr., though present, did not testify. Petitioners'

Exhibits A through C , E through I, and O were accepted in to

evidence. Petitioners' Application for Tenancy to Hillside

Mobile Home Park, Inc., dated June 24, 2004, and signed only by

Petitioner, Andr ew Loveland, Sr., was marked as ALJ Exhibit 1

and was accepted in to evidence. Respondents presented only the

testimony of Donna Morrison. Respondent, Randy Morrison, though

present, did not testify. Respondents' Exhibits 1 through 7

were accepted in to e vidence.

Neither party ordered a transcript of this proceeding.

Though advised of the opportunity, Petitioners elected not to

file a proposed recommended order. The undersigned considered

Respondents' Proposed Recommended Order filed on September 6,

2005 , t o include m anagement 's request for assessment of

attorney ' s fees and cost s against Petitioners pursuant to

Section 57.105, Florida Statutes .

FINDINGS OF FACT

Based upon observation of the witnesses' demeanor and

manner while testifying, character of the testimony, internal

consistency, and recall ability ; documentary materials received

in evidence ; stipulations by the parties ; and evidentiary

ruling s during the proceedings , the following relevant and

material facts are found :

1. On June 24, 2004, Andrew Loveland, Sr., made

application for tenancy at Hillside Mobile Home Park, Inc.

(Hillside), 39515 Bamboo Lane, Zephyrhills, Florida 33542, when

he completed and signed Respondents' "Application for Tenancy"

form. The prospective tenants listed were Andrew Loveland, Sr.,

and Linda Parah. Ms. Parah did not sign the application. As of

June 24, 2005, Petitioners listed their then - current address as

5824 23rd Street, Lot 1, Zephyrhills, Florida 33542.

2. The application for tenancy form listed Ms. Parah as

one of the persons to reside in the rental dwelling and, as

such, was a "person associated with the intended renter,"

Mr. Loveland. The tenancy application signed by Mr. Loveland

contained the following acknowledgement :

[U]nder penalty of perjury, I de clare that I

have read the foregoing and the facts

alleged are true to the best of my knowledge

and belief. I hereby acknowledge that I

have received a copy of the Prospectus and

Rules and Regulations of Hillside Mobile

Home Park, Inc.

Mr. Loveland, thou gh present at the proceeding, chose not to

challenge his written acknowledgment of receiving a copy of the

Prospectus and the Rules and Regulations of Hillside, and the

undersigned accordingly find s that Mr. Loveland received a copy

of the Prospectus and t he Rules and Regulations of Hillside on

June 24, 2004 , and was fully informed of his duties and

obligations as a tenant of Hillside therein contained .

3. On June 24, 2004, neither Mr. Loveland nor Ms. Parah

informed or advised management of any medical d isability(s)

suffered, requiring companionship (living in the trailer) of a

dog (comfort or service) . Petitioners did not, at that time,

request Respondents to make any reasonable accommodations for

any mental and/or physical disability(s) that required t he

presence of their service dog in the rented premises. N o copy

of management's park prospectus or rules was offered in

evidence, and, accordingly, a finding of receipt thereof is

made , b ut no findings herein are based on the specific content

therein.

4. On or after June 24, 2004, Petitioners and their dog

occupied the leased premises 6528 Pecan Drive, Hillside Mobile

Home Park, Zephyrhills, Florida 33542. The credible evidence of

record convincingly demonstrated management had knowledge that

Petitioner s and several other park tenants owned dogs. Tenants,

oft en time s together, walked their dogs about the trailer park

in sight of management and other residents. Based upon the

above, it is concluded that management was or should have been

aware that othe r tenants, includ ing Petitioners, had dogs in the

trailer park.

5. On October 21, 2004, management, by and through its

attorney, by certified mail, made demand upon Petitioners to

cure noncompliance within seven days (October 28, 2004) or

vacate premises for noncompliance with the park prospectus or

rules, to wit:

You have been driving your golf cart behind

and between mobiles . Residents must govern

themselves in a manner that does not

unreasonably disturb or annoy other

residents. We have had several co mplaints

regarding this issue. Please drive and walk

on the streets only. ( Emphasis added )

6. Ms. Parah acknowledged the golf car incident ,

explaining that Mr. Loveland occasionally drove his golf cart

through the trailer park and not always on the wal kways during

the evening hours. She insisted, however, that after receipt of

the October 21, 2004, notice to cease from management, Mr.

Loveland discontinued driving his golf cart behind and between

mobile homes during the evenings and nights and, during the day,

restricted his cart driving to only the park roadways.

7. By letter dated November 5, 2004, to Mr. Loveland ,

Respondent s issued a "Notice of Termination of Tenancy," for

failure to correct the (October 21, 2004, notice of violation --

driving golf cart ) within seven days. Accordingly, his tenancy

was to be terminated 35 days from the postmarked date of

delivery of th e n otice.

8. On November 11, 2004, S. D. Hostetler, a tenant whom

m anagement did not call to testify, allegedly filed the

following hand - written complaint letter to m anagement:

On 11 - 3 - 04 at around 3 am I was awaken by a

loud sound. I got up to see what it was and

it was an older red golf cart going through

the camping section, it must not have a

muffler on it, that morning I did com plain

to the management about some one going

around the Park that early in the morning

with such a noisey [ sic ] scooter. I later

found out it was Andrew Loveland.

9. The above - written document was not notarized; the

author was not made available and sub ject to cross - examination.

This document therefore is unsupported hearsay and insufficient

to support and establish the factual content therein to wit:

" [O] n 11 - 3 - 04 around 3 a . m . , Mr. Loveland was driving his golf

cart through the camping section and , t hus , failed to correct

the October 21, 2004, notice of violation -- driving golf cart ,

within 7 days." This complaint did, however, establish the fact

that management received a complaint about Mr. Loveland from

another tenant after having given him notice to cease and

desist.

10. On November 18, 2004, two weeks after the golf cart

notice of noncompliance termination, Respondents, by certified

mail delivered on November 22, 2004, made demand upon

Petitioner s to cure noncompliance within seven days or v acate

p remises for a second noncompliance with the p ark p rospectus or

r ules, to wit: "( A) You have a dog and dogs are not allowed in

the park. "

11. The November 22, 2004, c opy of the n otice to cure

noncompliance was received by Mr. Loveland as evidenced by a

copy of a U.S. Certified Mail delivery receipt signed by

Mr. Loveland.

12. In the December 13, 2004, l etter from Attorney

Schlichte addressed to Andrew Loveland (only) , Re: Notice of

Termination of Tenancy (reference November 18, 2004, 1st Notice

of Rule Violation; i.e. you have a dog and dogs not allowed ) ,

Petitioners were given 30 days to vacate the premises. It is

significant and noted that as of December 13, 2004, Ms. Parah

had not made a demand or request upon management for "reasonable

accommodatio ns for her service animal necessary to afford the

Petitioner an equal opportunity to use and enjoy the rental

premises , " as alleged in the administrative complaint.

U ltimate F actual D eterminations

13. On February 28, 2005, 76 days after receipt of

managem ent's December 13, 2004, first No tice of Rule Violation

(no dog allowed) and filing of Eviction Compliant in Pasco

County C ourt, 2 Petitioners made their first written request to

management for reasonable accommodation under the American

Disabilities Act as follows:

Dear Sir:

I am requesting reasonable accommodation

under the American with Disability Act to

have rules and regulations of the Park

(Hillside) sent to me. On my pet. I have

documentation from my physician Joseph

Nystrom, M.D. on my service, my comfort dog.

And this can be furnished upon request!

Rules and Regulations were not clear to fact

that Mr. Andrew Loveland, Sr. never had them

unless you can show pictures on the grass

10/21/2004. I feel that your violating

Mr. Loveland and my civil ri ght under fair

housing rules. [ sic ] Please acknowledge

our reasonable accommodation as stated above

by Tuesday of next week 3/8/2005.

Accordingly,

Linda Alan Parah

A ndrew Alton Loveland, Sr.

c c: C.J. Miles Deputy Dir. Fair Housing

Continu [ sic ] , Inc. , 1 - 888 - 264 - 5619.

14. Having provided a copy of the P rospectus and the R ules

and R egulations of Hillside on June 24, 2004, to Mr. Loveland ,

m anagement's refusal to provide a second copy was a reasonable

nondiscriminatory business decision. The offer to provide

"documentation from my physician Joseph Nystrom, M.D. on my

service, my comfort dog," imposed no obligation upon management

to accept such offer. Within the totality of circumstances then

present, ignoring Petitioners' offer to provide medical and /or

willingness statement s regarding their medical, physical , and

mental disabilities , requiring the presence of a service/comfort

dog by Respondent s, is not fou nd to have been discriminatory.

1 5 . On or about May 19, 2005, Pasco County Court entered

Fina l Judgment of Eviction against Andrew Loveland and Unknown

Tenant ( i.e. Linda Parah). The Pasco County Sheriff 's O ffice,

pursuant to Final Judgment of Eviction for Removal of Tenant

entered by the Pasco County Court , evicted Petitioners from

Respondents ' rented premises of Hillside, 39515 Bamboo Lane,

Zephyrhills, Florida 33542 .

1 6 . Petitioners submitted an abundance of credible

evidence relating to the ir physical and mental health

conditions. As to Mr. Loveland, Dr. Nystrom 's written and

signed notation concluded that Mr. Loveland's condition

required: "Motorized wheelchair multi - level spinal stenosis -

medically necessary and due to his illness, the presence of his

little Dog is medically necessary." The document contained

hearsay evidence to which c oun sel f or Respondent s did not raise

an objection and is , thus , accepted by the undersigned. This

document was dated after the date Mr. Loveland received his

second notice regarding failure to correct and the filing of the

complaint for eviction.

1 7 . As to Ms. Parah, Tracey E. Smithey, M.D., East Pasco

Medical Group, reported her medical conclusion stating in part

that: " Linda Parah, was seen in my office on 11 - 20 - 03, 01 - 19 - 04

and today (April 8, 2004). She had been diagnosed with Bipolar

Disorder, Depres sed type. She is prescribed Paxi, Xanax, and

Ambien. She has been referred for psychotherapy also."

Dr. Smithey did not include in her written document that

Ms. Parah had to have a dog for her condition. Dr. Smithey, as

had Dr. Nystrom , signed the do cument. The document contained

hearsay evidence to which c ounsel f or Respondent s did not raise

an objection and is , thus , accepted by the undersigned.

1 8 . Had Petitioners made their request for reasonable

accommodations and presented their medical repor ts, evidencing

their medical conditions and limitations, to include the need of

Mr. Loveland for his comfort dog, to Respondent s on or before

June 24, 2004, or even as late as on or about November 18, 2004,

Petitioners would have, arguably, established the requisite

basis for finding of a request for reasonable accommodation.

There is, however, insufficient evidence of record to support a

finding that Petitioners , Mr. Loveland nor Ms. Parah, made a

reasonable accommodation request to Respondents for the ho using

of the comfort dog for Mr. Loveland . The sequence of dated

events and documented evidence is an inference that after

receiving the notice t o vacate for the two alleged rule

violation(s) , Petitioners did not make a reque st for reasonable

accommodatio n to management for Mr. Loveland's dog, but rather

offered to provide medical support of Mr. Loveland's need for a

comfort dog should Respondent s request such proof. Respondent s

w ere under no duty or obligation to do so and did not make such

a request. 3

1 9 . Petitioners failed to establish that either

Mr. Loveland or Ms. Parah: (1) made a reque st for reasonable

accommodation based upon the demonstrated disability of

Mr. Loveland ; (2) the animal in question was a medically

required service (comfort dog) a nimal for M r . Loveland ; (3) the

requested accommodation was necessary to permit full enjoyment

by Mr. Loveland of the rental premises ; and (4) t hereafter ,

management denied their reasonable accommodation request for

Mr. Loveland .

2 0 . In short , and based upon the findings of fact herein,

Respondent did not unlawfully discriminate against Petitioners;

rather, management terminated Petitioners' tenancy for

legitimate, nondiscriminatory reasons, to wit: off - road driving

of a golf cart and unapproved dog wit hin the rental unit in

violation of park rules and regulations after written notice to

c orrect the noted violation s .

Management 's Counsel's Motion for A ttorney 's Fees and Cost s

2 1 . T here is not a scintilla of evidence to substantiate a

finding that Petiti oner, Mr. Loveland, who did not testify, knew

or should have known that his claim and defense presented during

this proceeding was not supported by material facts. Likewise,

Respondent made no query of Ms. Parah (referred to in the

eviction complaint as " unnamed tenant") that elicited statements

or acknowledgements from which reasonable inference could be

drawn to demonstrate that within the situational circumstances

Ms. Parah knew or should have known the claim herein made was

not supported by material fa cts. 4

CONCLUSIONS OF LAW

22. The Division of Administrative Hearings has

jurisdiction of the parties to and the subject matter of this

proceeding. §§ 120.569 , 120.57(1), 760.20 , and 760.35(3)(b),

Fla . Stat . (2005) .

23 . Under Florida’s Fair Housing Act ( Act),

Sections 760.20 through 760.37, Florida Statutes, it is unlawful

to discriminate in the sale or rental of housing. Among 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.

* * *

(7) It is unlawful to discriminate in the

sal e or rental of, or to otherwise make

unavailable or deny, a dwelling to any buyer

or renter because of a handicap of:

(a) That buyer or renter;

(b) A person residing in or intending to

reside in that dwelling after it is sold,

rented, or made availab le; or

(c) Any person associated with the buyer

or renter.

§ 760.23(1) and (7), Fla . Stat .

2 4 . For purposes of S ubsection (7) above, the term

“discrimination” includes:

(a) A refusal to permit, at the expense

of the handicapped person, reasonable

modifications of existing premises occupied

or to be occupied by such person if such

modifications may be necessary to afford

such person full enjoyment of the premises;

or

(b) A refusal to make reasonable

accommodations in rules, policies,

practices, o r services, when such

accommodations may be necessary to afford

such person equal opportunity to use and

enjoy a dwelling.

§ 760.23(9), Fla . Stat .

25 . In the instant case, Petitioners h ave alleged, in

effect, that Hillside 's management discriminated agai nst them by

declining to make a reasonable accommodation with respect to

Ms. Parah's service dog.

26 . In cases involving a claim of rental housing

discrimination on the basis of handicap, such as this one, the

complainant has the burden of proving a pr ima facie case of

discrimination by a preponderance of the evidence. A prima

facie showing of rental housing discrimination can be made by

establishing that the complainant applied to rent an available

unit for which he or she was qualified, the applicati on was

rejected, and, at the time of such rejection, the complainant

was a member of a class protected by the Act. See Soules v.

U.S. Dept. of Housing and Urban Development , 967 F.2d 817, 822

(2d Cir. 1992). 5 Failure to establish a prima facie case of

di scrimination ends the inquiry. See Ratliff v. State , 666 So.

2d 1008, 1012 n.6 (Fla. 1st DCA), aff’d , 679 So. 2d 1183

(1996)( citing Arnold v. Burger Queen Systems , 509 So. 2d 958

(Fla. 2d DCA 1987) ) .

27 . If, however, the complainant sufficiently establis hes

a prima facie case, the burden then shifts to the respondent to

articulate some legitimate, nondiscriminatory reason for its

action. If the respondent satisfies this burden, then the

complainant must establish by a preponderance of the evidence

that t he reason asserted by the respondent is, in fact, merely a

pretext for discrimination. See Massaro v. Mainlands Section 1

& 2 Civic Ass’n, Inc. , 3 F.3d 1472, 1476 n.6 (11th Cir. 1993),

cert. denied , 513 U.S. 808, 115 S. Ct. 56, 130 L. Ed. 2d 15

(1994)(“Fa ir housing discrimination cases are subject to the

three - part test articulated in McDonnell Douglas Corp. v. Green ,

411 U.S. 792, 93 S. Ct. 1817, 36 L. Ed. 2d 668 (1973).”);

Secretary, U.S. Dept. of Housing and Urban Development, on

Behalf of Herron v. Bla ckwell , 908 F.2d 864, 870 (11th Cir.

1990)(“We agree with the ALJ that the three - part burden of proof

test developed in McDonnell Douglas [for claims brought under

Title VII of the Civil Rights Act] governs in this case

[involving a claim of discrimination in violation of the federal

Fair Housing Act].”).

28 . In this case, Petitioners f ailed to make a prima facie

showing of discrimination. Although Ms. Parah has some medical

issues and Mr. Loveland is handicapped and , thus , protected by

the Act, Ms. Parah never made a direct request or written

application to m anagement requesting accommodation for her

comfort dog. Ms. Parah's testimony established that after

receiving notice of eviction she wrote management , not

requesting accommodation for her comfort do g, but rather

offering to supply medical support of her need for a comfort dog

should management require. Petitioners were tenants who, in the

recent past, violated p ark r ules found in the Prospectus and the

Rules and Regulations of Hillside, given them b y management when

their application was approved and before they moved into the

mobile home park, by the failure of Mr. Loveland to cease and

desist from driving his golf cart around and between mobile

homes after written warning from management.

29 . But even if Petitioners had made a prima facie showing

of discrimination, m anagement satisfied its burden to articulate

a legitimate, nondiscriminatory reason for evicting Mr. Loveland

and Ms. Parah , namely, the repeated violation of the park's

r ules and r egul ations after written warning and notice to

correct. Petitioners failed to present persuasive evidence that

their eviction was merely a pretext for discrimination by the

denial of accommodation for Ms. Parah's comfort dog , a request

that was, in fact, not made to management before receiving

notice to vacate for violation of park rules .

Attorney ' s Fees and Cost s

30 . Counsel for Respondents, in his response to the

A dministrative C ompliant filed herein, included a claim for

attorney's fees and cost s pursuant to Section 57.105, Florida

Statutes , which provides:

( a) The provisions of this subsection are

supplemental to, and do not abrogate, other

provisions allowing the award of fees or

costs in administrative proceedings.

(b) The final order in a proceedi ng

pursuant to s. 120.57 (1) shall award

reasonable costs and a reasonable attorney's

fee to the prevailing party only where the

no prevailing adverse party has been

determined by the administrative law judge

to have participated in the proceeding for

an im proper purpose.

( c) In proceedings pursuant to s.

120.57 (1), and upon motion, the

administrative law judge shall determine

whether any party participated in the

proceeding for an improper purpose as

defined by this subsection. In making such

determinat ion, the administrative law judge

shall consider whether the no prevailing

adverse party has participated in two or

more other such proceedings involving the

same prevailing party and the same project

as an adverse party and in which such two or

more proce edings the no prevailing adverse

party did not establish either the factual

or legal merits of its position, and shall

consider whether the factual or legal

position asserted in the instant proceeding

would have been cognizable in the previous

proceedings. In such event, it shall be

rebuttably presumed that the no prevailing

adverse party participated in the pending

proceeding for an improper purpose.

( d) In any proceeding in which the

administrative law judge determines that a

party participated in the proceeding for an

improper purpose, the recommended order

shall so designate and shall determine the

award of costs and attorney's fees.

(e) For the purpose of this subsection:

1. "Improper purpose" means

participation in a proceeding pursuant to s .

120.57 (1) primarily to harass or to cause

unnecessary delay or for frivolous purpose

or to needlessly increase the cost of

litigation, licensing, or securi ng the

approval of an activity.

2. "Costs" has the same meaning as the

costs allowed in civil a ctions in this state

as provided in chapter 57.

3. " No prevailing adverse party" means a

party that ha s failed to have substantially

changed the outcome of the proposed or final

agency action which is the subject of a

proceeding. In the event that a p roceeding

results in any substantial modification or

condition intended to resolve the matters

raised in a party's petition, it shall be

determined that the party having raised the

issue addressed is not a no prevailing

adverse party. The recommended orde r shall

state whether the change is substantial for

purposes of this subsection. In no event

shall the term " no prevailing party" or

"prevailing party" be deemed to include any

party that has intervened in a previously

existing proceeding to support the p osition

of an agency.

3 1. The burden to show that sanctions should be imposed

under S ubs ection 120.57(1), Florida Statutes, is on the moving

party. See Friends of Nassau County , 752 So. 2d at 52. Under

the circumstances of this case, that burden has no t been met.

Based upon c ounselor's reasonable inquiry of Ms. Parah during

this proceeding , it cannot be concluded that Ms. Parah or

Mr. Loveland (of whom no inquiry was made) filed their

A dministrative C omplaint for improper or frivolous purposes ,

primar ily to harass Respondent s . In accordance with the above

statutory restriction, the threshold issue is whether this

record reflect s evidence that Petitioners, no n - prevailing

party (s), participated in this proceeding for an improper

purpose . "Improper purp ose" means primarily to harass or to

cause unnecessary delay or for frivolous purpose or to

needlessly increase the cost of litigation . Attorney's fees and

cost s incurred during the course of the eviction proceeding in

Pasco County Court were independentl y accrued separate and apart

from the Ad ministrative C omplaint filed in this proceeding.

3 2. As stated above, t here is not a scintilla of evidence

to substantiate a finding of fact that Petitioners , Ms. Parah

and Mr. Loveland, who did not testify, knew o r should have known

their claim was not substantiated by material facts.

Respondent s made no query of Petitioners , and Ms. Parah made no

statement or acknowledgement from which a reasonable inference

could be drawn to demonstrate she knew or should have kn own

their claim was not supported by material facts. Accordingly,

for the want of evidence in support of the motion , Respondent s '

counsel 's motion for attorney 's fees and cost s, pursuant to

Section 57.105, Florida Statutes, is denied.

RECOMMENDATION

Based on the foregoing f indings of f act and c onclusions of

l aw, it is

RECOMMENDED that the Commission enter a final order :

(1) D ismissing Petitioners ' , Linda Parah and Andrew

Loveland 's , Petition for Relief ; and

(2) Den y i ng Respondents ' c ounsel 's motion for an award of

attorney 's fees and cost s .

D ONE AND ENTERED this 16th day of March , 2006, in

Tallahassee, Leon County, Florida.

S

FRED L. BUCKINE

Administrative Law Judge

Division of Administrative Hearings

The DeSoto Buildin g

1230 Apalachee Parkway

Tallahassee, Florida 32399 - 3060

(850) 488 - 9675 SUNCOM 278 - 9675

Fax Filing (850) 921 - 6847

www.doah.state.fl.us

Filed with the Clerk of the

Division of Administrative Hearings

this 16th day of March , 2006 .

ENDNOTES

1/ All ref erences are to Florida Statutes 2004 , unless

otherwise specified.

2 / The circumstances surrounding the c ounty c ourt eviction

proceedings are unclear. It is clear that Petitioners'

documentary evidence regarding their respective medical

condition s was da ted after the Pasco County Court entered the

Order of Eviction.

3 / This eviction action was filed against Petitioner s on or

about February 25, 2005. Eviction - - Matter styled Hillside

Mobile Home Park, Inc. vs. Andrew Loveland and Unknown Tenant,

if any , Case No. 51 - 2005CC - 547(ES). This one - count eviction

complaint alleged : (A) October 21, 200 4 , 7 - day notice to cure,

i.e. "driving your golf cart behind and between mobiles, " and

(B) November 5, 2004, 7 - day notice to cure, i.e. "A. You have a

dog and dogs are not allowed in the park."

4 / Counsel for Respondent and co - owner of Hillside Mobile Home

Park, Inc., pursuant to Section 723.068, Florida Statutes

(2005), filed his Motion for Award of Attorney Fees and Costs

for 12.8 hours devoted at $225.00 per hou r for a total of

$2,880.00 fees and $282.00 cost in the Pasco County eviction

proceeding and not in the Chapter 120, Administrative

proceeding. Counsel offered no evidence in this Section 120.57,

Florida Statutes, fact - findings proceeding reflecting Pasco

County Court's ruling on his Motion for Fees and Cost.

Counsel's Motion for Attorney Fees and Costs against Petitioners

was filed pursuant to Section 57.105, Florida Statutes. The

burden to show that sanctions should be imposed under Section

120.57, Flo rida Statutes , is upon the party seeking the attorney

award. Counsel offered no evidence in support of his motion ,

and the motion is denied.

5 / Alternatively, complaints' burden may be satisfied with

direct evidence of discriminatory intent. See Tans W orld

Airlines, Inc. v. Thurston , 105 S. Ct. 613, 621 (1985)( " [T]he

McDonnel Douglas test is inapplicable were the plaintiffs direct

evidence of discrimination " inasmuch as " [t]he shifting burdens

of proof set forth in McDonnel Douglas are designed to assur e

that the ' plaintiff [has] his day in court despite the

unavailability of direct evidence.' " ).

COPIES FURNISHED :

Denise Crawford, Agency Clerk

Commission on Human Relations

2009 Apalachee Parkway, Suite 100

Tallahassee, Florida 32301

Linda Parah

Andr ew Loveland, Sr.

36928 Happy Days Drive, Lot 120

Zephyrhills, Florida 33541 - 2892

Matthew J. Schlichte, Esquire

Law Office of Ray A. Schlichte, Jr., P.A.

2134 Hollywood Boulevard

Hollywood, Florida 33020

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 thi s Recommended Order should be filed with the agency that

will issue the final order in this case.