08-006141 Ricardo Vega vs. Club Dev., Inc., And Frank Barefield Status: Closed Recommended Order on Monday, April 27, 2009.

Summary: The Florida Commission on Human Relations and the Division of Administrative Hearings lacked jurisdiction due to untimely filing of housing discrimination complaint with HUD.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

RICARDO VEGA, )

)

Petitioner, )

)

vs. ) Case No. 08-6141

)

CLUB DEVELOPMENT, INC., AND )

FRANK BAREFIELD, )

)

Respondents. )

)

RECOMMENDED ORDER

Pursuant to notice, a formal hearing was held in this case

in Orlando, Florida, on February 9, 2009, before Jeff B. Clark,

a duly-designated Administrative Law Judge of the Division of

Administrative Hearings.

APPEARANCES

For Petitioner: Barbara Billiot-Stage, Esquire

Law Offices of Barbara Billiot-Stage, PA

5401 South Kirkman Road, Suite 310

Orlando, Florida 32819

For Respondents: Richard S. Taylor, Esquire

531 Dog Track Road

Longwood, Florida 32750-6547

STATEMENT OF THE ISSUES

Whether the Florida Commission on Human Relations and the Division of Administrative Hearings have jurisdiction pursuant to Section 760.34, Florida Statutes, to consider Petitioner's Petition for Relief; and

Whether Petitioner timely filed his Petition for Relief

with the Florida Commission on Human Relations.

PRELIMINARY STATEMENT

On December 9, 2008, the Division of Administrative

Hearings ("DOAH") received a Petition for Relief from the

Florida Commission on Human Relations ("FCHR"). The Petition

alleges that Petitioner, Ricardo Vega, was the victim of a

housing discriminatory practice as a result of Respondent, Frank

Barefield's ("Barefield"), having violated the Florida Fair

Housing Act, as amended. The Petition for Relief noted that

four additional pages were initialed, dated, and attached.

These four pages are two letters, one dated February 22, 2007,

and the second dated August 24, 2007, both from attorneys

representing Petitioner. It is noted that Barefield is an

officer of Respondent, Club Development, Inc. ("Respondent"),

the developer of the condominium that Petitioner wished to

purchase. There is no allegation that Mr. Barefield has

personal liability for the alleged acts of discrimination, only

that he acted in his capacity as an officer of Respondent.

On October 31, 2008, FCHR issued a Notice of Determination,

No Cause, having completed its investigation of a Housing

Discrimination Complaint dated September 17, 2008, and signed by

Petitioner on September 22, 2008. FCHR determined that "it does

not have jurisdiction over it," referring to the complaint of

discrimination. FCHR's investigation determined that "the

actual date of harm was December 28, 2006, when Respondent

denied Petitioner's request for an extension of the closing date

until February 28, 2007. In order for a complaint to be timely

filed, it must be filed within one year of the date of harm.

Therefore, based on the foregoing, FCHR "finds that this

complaint was untimely filed and the Complaint is dismissed."

The investigative determination is supported by a legal

concurrence filed by a FCHR staff attorney, which concludes "it

is my legal concurrence that the commission should find that it

is without jurisdiction to investigate this complaint."

Upon receipt of the Petition for Relief, on December 9,

2008, DOAH sent an Initial Order to both parties. Among other

things, the Initial Order required the parties to provide

mutually convenient dates for the final hearing.

On December 16, 2008, Respondent filed a Motion to Dismiss

Petition for Relief alleging that the "alleged discriminatory

housing practice had occurred over one year before the complaint

was filed." On December 24, 2008, ruling on Respondent's Motion

to Dismiss was reserved until evidence was received at the final

hearing. Ruling on an Amendment to the Motion to Dismiss

Petition for Relief was similarly reserved.

On December 24, 2008, a Notice of Hearing was entered

scheduling the final hearing for February 16, 2008, in Orlando,

Florida.

The final hearing took place as scheduled. It was agreed

by the parties that the issues presented for determination are

those set forth at the beginning of this Recommended Order.

Respondent had raised the late filing of the Petition for Relief

for the first time, as far as the undersigned was aware, at the

hearing. No formal objection was raised by Petitioner to the

late notice, nor did Petitioner seek a continuance.

The only witness to testify was Petitioner. Petitioner

offered three exhibits that were received into evidence and

marked Petitioner's Exhibits 1 through 3. Respondent offered

two exhibits that were received into evidence and marked as

Respondent's Exhibits 5 and 10.

A Transcript of the hearing was filed with DOAH on

March 23, 2009. Both parties timely filed Proposed Recommended

Orders.

All statutory references are to Florida Statutes (2008),

unless otherwise noted.

FINDINGS OF FACT

Based on the oral and documentary evidence presented at the

final hearing, the following Findings of Facts are made:

1. Petitioner contracted to purchase a condominium, "unit

206 in Building 425 at Serravella at Spring Valley" from

Respondent.

2. For reasons not relevant to the issues presented for

determination, closing was deferred; and on December 22, 2006,

Petitioner signed and submitted an "Addendum to Contract" to

Respondent that sought "to revise contract closing date to

2/28/2007."

3. Sometime in late December 2006, a telephone

conversation took place among Steve Myers, a realtor for Serra

Villa, Petitioner, and Barefield. Barefield was in Alabama, and

Myers and Petitioner were in Florida on a speakerphone.

Barefield advised Petitioner that the addendum would not be

accepted by Respondent. Barefield and Petitioner did not speak

to each other after this December telephone conversation. All

communication was accomplished through third parties.

4. Subsequent to Respondent's refusal to accept

Petitioner's addendum, there is lengthy correspondence and

litigation involving the parties.

5. For some time after Respondent rejected Petitioner's

addendum, Petitioner desired to purchase the condominium and,

apparently, indicated so in various offers communicated by his

attorneys to Respondent.

6. If an unlawful discriminatory act occurred, the

determination of which is not an issue presented for

determination, the act occurred in December 2006.

7. Petitioner's Housing Discrimination Complaint dated

September 17, 2008, and signed by Petitioner on September 22,

2008, was filed with United States Department of Housing and

Urban Development more than one year after the alleged act of

discrimination.

8. On November 6, 2008, Petitioner sent a four-page fax

transmission to Lisa Sutherland, a FCHR employee, which included

a Petition for Relief.

9. On November 13, 2008, Petitioner sent a second fax

transmission of seven pages to Lisa Sutherland. Apparently,

this second transmission included a Petition for Relief.

10. On December 4, 2008, Petitioner sent a third fax

transmission addressed to "Mrs. Crawford/Lisa Sutherland."

While the fax transmission cover sheet is dated "11-13-08," the

report of transmission shows that this 11-page transmission was

sent on "12/04 15:24."

11. The Petition for Relief forwarded by FCHR to DOAH was

date-stamped "2008 DEC-4 PM 3:25."

CONCLUSIONS OF LAW

12. The Division of Administrative Hearings has

jurisdiction over the parties and subject matter of this

proceeding pursuant to Section 120.569 and Subsection 120.57(1),

Florida Statutes.

13. Subsection 760.34(5), Florida Statutes, provides that

"[i]n any proceeding brought pursuant to this section or

s. 760.35, the burden of proof is on the complaining party."

14. The issues for determination are: (1) Respondent's

motion to dismiss for lack of subject matter jurisdiction based

on the alleged untimely filing of Petitioner's Housing

Discrimination Complaint; and (2) Respondent's motion to dismiss

based on Petitioner's alleged untimely filing of his Petition

for Relief. Respondent has the burden of proving the

allegations of these motions by a preponderance of the evidence.

15. The Florida Civil Rights Act of 1992, as amended

(Chapter 760, Florida Statutes), was patterned after Title VII

of the Civil Rights Act of 1964 and Federal case law

interpreting Title VII and is applicable to cases arising under

the Florida Act. Green v. Burger King Corp ., 728 So. 2d 369

(Fla. 3d DCA 1999); Laborers' Int'l Union of N. Am., Local 478 v.

Burroughs , 522 So. 2d 852 (Fla. 3d DCA 1987); School Board of

Leon County v. Hargis , 400 So. 2d 103 (Fla. 1st DCA 1981).

Motion to Dismiss for lack of Subject Matter Jurisdiction

16. In the Housing Discrimination Complaint dated

September 17, 2008 (and signed by Petitioner on September 22,

2008), filed with the U.S. Department of Housing and Urban

Development, Petitioner alleges that "respondent refused to sell

unit 206 to him." He further alleges that Respondent's refusal

to sell was an act of discrimination and that the most recent

date of the discrimination was August 25, 2008. The Petition

for Relief, which occasions this action, is predicated on the

appropriateness of Petitioner's Housing Discrimination

Complaint.

17. The evidence revealed that Petitioner's tendered

December 22, 2006, Addendum to Contract to extend the closing

date was refused by Respondent during a telephone conversation

in late December 2006. That is the date an unlawful

discriminatory act would have occurred, if one did occur.

18. Continuing offers to purchase after Respondent's

December 2006 refusal to agree to Petitioner's proposed

addendum, do not create a series of unlawful discriminatory

acts. The continuing series of denials of essentially the same

request does not extend the requirement that the complaint be

filed within one year of the discriminatory act. Nat'l R.R.

Passenger Corp. v. Morgan , 536 U.S. 101 (2002); Burnam v. Amoco

Container Co. , 755 F.2d 893 (11th Cir. 1985); Collins v. United

Airlines, Inc. , 514 F.2d 594, 596 (9th Cir. 1975).

19. Subsection 760.34(2), Florida Statutes, states, in

pertinent part:

A complaint under subsection (1) must be

filed within 1 year after the alleged

discriminatory housing practice occurred.

The complaint must be in writing and shall

state the facts upon which the allegations

of a discriminatory housing practice are

based. . . .

20. The controlling statute clearly requires that the

complaint must be filed within one year of the alleged

discriminatory act. Petitioner's Housing Discrimination

Complaint should have been filed in late December 2007, not

September 2008. As a result, the Petition for Relief is time-

barred.

Motion to Dismiss--Late Filing of the Petition for Relief

21. Petitioner filed a Petition for Relief on November 6,

November 13, and December 4, 2008. The Petition for Relief

forwarded to DOAH was date-stamped December 4, 2008. The Notice

of Determination is dated October 31, 2008, and required that a

Petition for Relief from a discriminatory housing practice be

filed within 30 days.

22. The Petitions for Relief filed on November 6 and 13,

2008, were filed within the required 30 days of service of the

Notice of Determination.

23. Without further evidence of how FCHR treated the

November 6 and 13, 2008, Petitions for Relief, Respondent has

failed to carry the burden of proof.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of

Law, it is

RECOMMENDED that FCHR dismiss the Petition for Relief as

being time-barred as a result of the late filing of Petitioner,

Ricardo Vega's, Housing Discrimination Complaint.

DONE AND ENTERED this 27th day of April, 2009, in

Tallahassee, Leon County, Florida.

S

JEFF B. CLARK

Administrative Law Judge

Division of Administrative Hearings

The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-3060

[phone]

Fax Filing [phone]

www.doah.state.fl.us

Filed with the Clerk of the

Division of Administrative Hearings

this 27th day of April, 2009.

COPIES FURNISHED :

Denise Crawford, Agency Clerk

Florida Commission on Human Relations

2009 Apalachee Parkway, Suite 100

Tallahassee, Florida 32301

Larry Kranert, General Counsel

Florida Commission on Human Relations

2009 Apalachee Parkway, Suite 100

Tallahassee, Florida 32301

Richard S. Taylor, Jr., Esquire

531 Dog Track Road

Longwood, Florida 32750-6547

Barbara Billiot-Stage, Esquire

Law Offices of Barbara Billiot-Stage, PA

5401 South Kirkman Road, Suite 310

Orlando, Florida 32819

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.