10-001696 Leo And Sarah Beaulieu vs. Wayne Jones, Manager And Sun Key Village Status: Closed DOAH Final Order on Friday, May 13, 2011.

Summary: Attorney's fees awarded against Petitioners under section 57.105, Florida Statutes, where facts showed that Petitioners were not a member of a protected class to bring a housing discrimination claim.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

LEO AND SARAH BEAULIEU , )

)

Petitioner s , )

)

vs. ) Case No. 10 - 1696

)

WAYNE JONES, MANAGER , AND SUN )

KEY VILLAGE , )

)

Respondent s . )

)

FINAL ORDER

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

on January 14, 2011 , in Bradenton, Florida , before Thomas P.

Crapps, a designated Administrative Law Judge of the Division of

Administrative Hearings (DOAH) .

APPEARANCES

For Petitioner s : Kenneth A. Wiggins, Esquire

Law Offices of Kenneth A. Wiggins

1001 Third Avenue West, Suite 430

Bradenton, Florida 34205

For Respondent s : David D. Eastman, Esquire

Carol S. Grondzik, Esquire

Lutz, Bobo, Telfair, Eastman,

Gabel & Lee

2155 Delta Boulevard, Suite 210 - B

Tallahassee, Florida 32303

STATEMENT OF THE ISSUES

Whether Respondent s , Wayne Jones, manager (Mr. Jones), and

Sun Key Village (Sun Key), are entitled to a n award of

attorney ' s fees and costs pursuant to section s 57.105(5) and

120.595, Florida Statutes (2010) , 1/ and , if entitled to an award,

then the determination of a reasonable amount.

PRELIMINARY STATEMENT

On November 10, 2009, Petitioners, Leo and Sarah Beaulieu

(Beaulieus), filed a complaint with the United States Department

of Housing and Urban Development (HUD) , alleging that Mr. Jones

and David O'Malley (Mr. O'Malley) had committed a discriminatory

housing practice at Sun Key, a mobile home park locat ed in

Palmetto, Florida. Mr. Jones was alleged to be the manager of

the mobile home park, and Mr. O'Malley was alleged to be the

owner of the mobile home park. As for the claim of retaliation,

the Beaulieus alleged that Ms. Beaulieu's sister, who is also a

resident of Sun Key, had filed a housing discrimination claim

against Mr. Jones and Sun Key. The Beaulieus alleged that

Mr. Jones had retaliated against them based on this prior

complaint. The alleged retaliation concerned Mr. Jones

threatening Ms. Be aulieu by informing her that she was violating

a mobile home park rule that limited the size of dogs at the

mobile home park to less than 20 pounds at maturity. At the

time, Ms. Beaulieu had been walking her son's dog, Rambo, a pit

bull dog weighing over 60 pounds.

O n November 12, 2009, HUD forwarded the Beaulieus'

complaint to the Florida Commission on Human Relations

(Commission) for an investigation.

On November 19, 2009, the Beaulieus amended their complaint

to include a retaliation allegation against Bert Blanchard

(Mr. Blanchard) , p resident of the Sun Key Village Homeowners

Association. Specifically, the Beaulieus alleged that

Mr. Blanchard had made statements at a coffee social concerning

the Beaulieus' complaint and that he had soured their

relati onship with other residents. On December 5, 2009, the

Beaulieus returned a signed amended complaint to the Commission.

On February 18, 2010, the Commission found no reasonable

cause "to believe that a discriminatory housing practice had

occurred."

On March 2 5 , 2010, the Beaulieus filed a Petition for

Relief with the Commission , requesting an administrative

hearing. The Commission transferred the Beaulieus' petition to

DOAH, and a final hearing was set for August 3, 2010.

On July 19, 2010, the Beaulieu s filed a Notice of Voluntary

Dismissal of the D OAH proceeding. On July 21, 2010, Respondents

filed a Motion for Attorney ' s Fees and Costs based on

section 57.105. In support of their m otion, Respondents filed

the affidavit of their attorney , setting out the attorney ' s

hours spent in defen se of the case and the hourly rate.

On January 14, 2011, the undersigned conducted a hearing on

the Motion for Attorney ' s Fees and Costs. Respondents presented

the testimony of Mr. Jones, Sarah Beaulieu (Ms. Beaulieu) , and

Carl Peterson , Jr., Esquire (Mr. Peterson) . The parties

introduced into evidence three joint exhibits. Ms. Beaulieu

testified on her own behalf during Respondent s ' case.

The one - volume T ranscript of the hearing was filed on

February 7, 2011, and Respondents submitted a proposed order on

February 28, 2011. The Beaulieus requested an extension to file

a proposed order , which was granted. The Beaulieus filed their

pr oposed order on April 7, 2011.

FINDINGS OF FACT

1. The Beaulieu s are residents of Sun Key, a mobile home

park located at 8607 26th Avenue , East, Palmetto, Florida.

2. Mr. Jones is the manager of Sun Key.

3. Sun Key is a mobile home park as defined by

section 723.003(6), Florida Statutes.

4. On March 2 5 , 2010, the Beaulieus filed a Petition for

Relief with the Commission stating:

I still feel this is discrimination - -

Mr. Jones states I am violating park rules by

having a dog over 20 lbs this dog is a

Visitor not a resident pet. It is my sons'

dog - - visits on occasion. There are many dogs

over 20lbs & living in Sun Key. This is

selective enforcement!!!

5. Ms. Beaulieu attached to her Petition for Relief a

lengthy hand - written document , alleging that other residents were

violating Sun Key park rules concerning the size and number o f

permissible dogs.

6. On March 30, 2010, the Commission forwarded the

Beaulieus' p etition to DOAH . An I nitial O rder was issued ,

requiring the parties to respond concerning , in part , the amount

of time required for the hearing and the date and location f or

the hearing. On April 6, 2010, Carol S. Grondzik , Esquire

(Ms. Grondzik) , of Lutz, Bobo, Telfair, Eastman , Gabel & Lee,

filed a response for Respondents. On April 8, 2010, the

Beaulieus, acting as their own attorneys, filed a response.

Based on the r esponses, the A dministrative L aw J udge set the case

for final hearing on August 3, 2010.

7. On April 12, 2010, Respondents filed a Motion to

Dismiss. In the Motion to Dismiss, Respondents argued that the

Beaulieus "have not alleged they are members of a protected class

under fair housing law." Further, the m otion referenced

Ms. Beaulieu ' s letter dated March 8, 2010 , requesting an appeal

of the Commission's no cause determination. Specifically, the

Motion to Dismiss stated that the Beaulieus' complaint w as for

"selective enforcement" and not tied to retaliation based on the

prior housing complaint filed by Ms. Beaulieu ' s sister. Thus,

the Motion to Dismiss concluded that :

[B] ecause Petitioners do not assert that they

are members of a protected class under fair

housing law, because they do not pursue a

claim of retaliation against Respondents

Wayne Jones and Sun Key, and because Bert

Blanchard and the Sun Key Village Homeowners

Association, Inc., are not providers of

housing subject to fair housing law s, this

Petition should be dismissed as a matt er of

law.

8. On April 12, 2010, Ms. Grondzik served , by U.S. mail , a

copy of the Motion for Attorney's Fees and Costs, pursuant to

section 57.105 , with a letter to the Beaulieus. Specifically,

Ms. Grondzik' s letter states:

A Motion for Attorney's Fees and Costs is

also enclosed for your review. I will hold

this motion for at least 21 days before

filing with the Division as required by

Florida law. This allows you time to analyze

the relevant facts and law, to seek advice as

necessary, and to take action.

9. On April 19, 2010, DOAH issued a Notice of Ex - parte

Communication after it had received a copy of a letter that had

been sent by Kenneth Wiggins (Mr. Wiggins) , an attorney for the

Beaulieus, to Ms. Gro ndzik. The terms of the letter sought to

settle the dispute between the Beaulieus and Respondents.

Mr. Wiggins, however, did not make an appearance for the

Beaulieus before DOAH , and it was unclear who mailed the letter

to DOAH . In any event, the Beaulie us continued to represent

themselves in the proceedings before DOAH .

10. On July 7, 2010, the Beaulieus filed a m otion for

c ontinuance of the August 3, 2010 , hearing date. The

A dministrative L aw J udge denied the motion.

11. On July 19, 2010, the Beaulieus filed a Notice of

Voluntary Dismissal of their p etition. On July 21, 2010,

Respondents filed the Motion for Attorney's Fees and Costs and

Notice of Filing Affidavit of Carol S. Grondzik. Ms. Grondzik's

affidavit set out th e hourly rate and the scope of work performed

to date in the case. On July 29, 2010, Respondents filed a

Memorandum of Law i n Support of Respondent's [sic] Motion for

Attorney's Fees and Costs.

12. At the January 14, 2011, hearing, Ms. Beaulieu

testified about instances where the mobile home park failed to

enforce its rules and regulations concerning the pet size for

residents. Further, she testified that she had brought the DOAH

proceeding to address the unfair and selective enforcement of the

mobile ho me park's rules.

13. Sun Key Village Mobile Home Park, Park Rules and

Regulations provides, in pertinent part, that:

9. Pets: A maximum of two small pets are

permitted, which at maturity must not weigh

greater than 20 pounds each. Pets must be

confined to the interior of the home when the

resident is not present and must be on a

leash at all times when outside of tenant's

home. They must be transported to areas

outside of residenc e or common areas for

exercise.

14. The record shows that the Beaulieus were provided a

copy of the rule when moving into Sun Key.

15. Mr. Wayne Jones testified that there were instances

when exceptions had been made for residents to have dogs larger

than 20 pounds. For example, he identified that residents, who

had large , elderly dogs when they moved into Sun Key, we re

allowed to keep their pets.

16. Mr. Peterson, an attorney who has extensive experience

in representing mobile home park owners, testified concerning the

reasonableness of the attorney ' s fees and costs. Mr. Peterson

testified that he considered the factors outlined in Florida's

Patient's Compensation Fund v. Rowe , 472 So. 2d 1145 (Fla. 1985),

and reviewed the legal file in this case. Based on his review,

Mr. Peterson found that 57.2 hours w ere reasonable in defense of

this case and that the blended hourly rate of $235.92 was

reasonable. Therefore, Mr. Peterson testified the reasonable

attorney ' s fees to be $13,494.40 and the amount of taxable costs

to be $575.00. Mr. Peterson also testified that Respondents

would be entitled to attorney ' s fees for having to litigate the

issue of fee entitlement. Mr. Peterson testified that 14 hours

would not be an unreasonable amount of time for preparing and

attending a hearing concerning the entitlement to fees, for a

tot al of $3,302.88 using the bl ended hourly rate of $235.92.

17. Based on a review of the record and testimony offered

at trial, 71.2 hours is a reasonable amount of time spent on the

defense of the instant case and litigating the issue of

entitlement to at torney ' s fees. A review of the record and

testimony shows that $235.92 an hour is a reasonable p revailing

blended hourly rate.

18. The parties stipulated that the Beaulieus are not

members of a protected cla ss under the fair housing law.

CONCLUSIONS OF L AW

19. DOAH has jurisdiction over the parties to and the

subject matter of this proceeding pursuant to section s

57.105(5), 120.569 , and 120.57(1) .

20. Section 57.105(5) provides an A dministrative L aw J udge

with authority to award a reasonable attorney's fee and damages

upon the same basis as provided in subsections (1) through (4)

of the statute. Further, subsection (5) provides that a

"voluntary dismissal by a nonprevailing party does not divest

the a dministrative law judge of jurisdiction to make the award

described in this subsection." See Hustad v. Architectural

Studio, Inc. , 958 So. 2d 569, 571 (Fla. 4th DCA 2007).

21. Section 57.105(1) provides, in pertinent part, for an

award of reasonable atto rney's fees on any claim or defense in

which the court finds that the losing party or the losing

party's attorney knew or should have known that a claim or

defense when initially presented to the court or at any time

before trial: ( a) was not supported by the material facts

necessary to establish the claim or defense; or (b) would not be

supported by the application of then - existing law to those

material facts. The terms "supported by the material facts"

"means the party possesses admissible evidence suff icient to

establish the fact if accepted by the finder of fact."

Albritton v. Ferrera , 913 So. 2d 5, 8 n. 1 (Fla. 1st DCA 2005) .

22. The imposition of fees pursuant to section 57.105(1)

means a claim was without legal merit when filed, or was later

found to be without legal merit. See E. Indus. Inc. v. Fla.

Unemployment Appeals Comm'n , 960 So. 2d 900, 901 (Fla. 1st DCA

2007). In determining whether to award attorney ' s fees , the

court must make "an inquiry into what the losing party knew or

should have k nown during the fact - establishment process, both

before and after suit is filed." Bowen v. Brewer , 936 So. 2d

757, 763 (Fla. 2d DCA 2006), review denied , 952 So. 2d 1188

(Fla. 2007). Significantly, section 57.105 does not require a

party seeking fees to show the complete absence of a justic i able

issue of fact or law, but permits fees to be recovered for any

claim or defense that is insufficiently supported. Gopman v.

Dep't of Educ. , 974 So. 2d 1208, 1210 (Fla. 1st DCA 2008).

Section 57.105 "imposes a du ty, or at least a penalty for

failing to voluntarily dismiss a claim or defense when it

becomes clear that the claim or defense is untenable." Mullins

v. Kennelly , 847 So. 2d 1151, 1155 n. 3 (Fla. 5th DCA 2003); see

also Albritton , 913 So. 2d at 8.

23. Applying the rules of law to the facts here, it is

clear that the Beaulieus knew or should have known that their

claim was not supported by material facts necessary to establish

their claim or that their claim was not supported by application

of existing l aw. Based on the record, Respondents are entitled

under section 57.105 to an award of attorney ' s fees f or

defending the instant case.

24. The record clearly shows that Respondents followed the

procedure set out in section 57.105(4) by serving the Motion for

Attorney's Fees and Costs on April 12, 2010, but not filing it

until after the 21 - day provision had lapsed.

25. Next, a review of the Motion for Attorney's Fees and

Costs plainly states the basis for concluding that the

Beaulieus' administrative claim was not supported by material

fact or the law. The m otion states that:

4. The underlying FCHR complaint states the

basis for alleged discrimination is a claim

of retaliation. In the Petition appealing

FCHR's determination, Petitioners state they

were d iscriminated because of selective rule

enforcement and were retaliated against only

by Burt Blanchard.

5. Petitioners have not alleged they are

members of a protected class under fair

housing law.

6. As stated in the Petition appealing the

FCHR determi nation, the only claim of

retaliatory conduct is made against Bert

Blanchard, who is not a provider or operator

of housing and a covered entity under fair

housing law.

26. The Motion for Attorney's Fees and Costs informed the

Beaulieus that they had not alleged any fact that they were

members of a protected class to bring a fair housing law

complaint and that their claims against Mr. Blanch ard were not

supported by law.

27. The record is undisputed that the Beaulieus are not

members of a protected class under the housing law. Based on

this undisputed fact, the Beaulieus did not have standing to

bring the claim in the petition; therefore, their claim was not

supported by the facts or law.

28. The record shows clearly that the Beaulieus did not

withdraw t heir claim until filing their volunta ry dismissal on

July 19, 2010.

29. Even though the Beaulieu s ' initial complaint with the

Commission raised the issue that Mr. Jones and Sun Key were

retaliating against the Beaulieus based on a prior housing

complaint filed by Ms. Beaulieu's sister, the Beaulieus

abandoned this position in this proceeding . At the hearing

determining the entitlement to attorney's fees, the Beaulieus

remained consistent that the basis for their administrative

claim was "selective enforce ment" and not based on any claim of

retaliation by the Respondents. Even if a claim appears to be

valid when initially made, once a party learns that its claim is

not supported by the facts or law, the party must withdraw the

unmeritorious claim, or risk imposition of section 57.105

sanctions. Albritton , 913 So. 2d at 7 - 8.

30. The testimony supported the reasonableness of an

attorney 's fee rate of $235.92 an hour and reasonable number of

hours of 71.2 hours for a total attorney ' s fees award of

$16,797.28. Because section 57.105 does not designate costs ,

the $575.00 of taxable costs is not awarded.

ORDERED

Based on the foregoing Findings of Fact and Conclusions of

Law, it is ORDERED that Petitioners, Leo and Sarah Beaulieu, pay

$16,797.28 in attorney ' s fees to Respondents and their

attorneys.

DONE AND ORDERED this 13th day of May , 2011 , in Tallahassee,

Leon County, Florida.

S

THOMAS P. CRAPPS

Administrative Law Judge

Division of Administrative Hearings

The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399 - 3060

(850) 488 - 9675

Fax Filing (850) 921 - 6847

www.doah.state.fl.us

Filed with the Clerk of the

Division of Administrative H earings

this 13th day of May , 2011 .

ENDNOTE

1/ All references to Florida Statutes shall be the 2010 edition ,

u nless otherwise designated.

COPIES FURNISHED :

David D. Eastman, Esquire

Carol S. Grondzik, Esquire

Lutz, Bobo, Telfair, Eastman,

Gabel & Lee

2155 Delta Boulevard, Suite 210 - B

Tallahassee, Florida 32303

Kenneth A. Wiggins, Esquire

Law Offices of Kenneth A. Wiggins

10 01 Third Avenue West, Suite 430

Bradenton, Florida 34205

Denise Crawford, Agency Clerk

Florida Commission on Human Relatio ns

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

NOTICE OF RIGHT TO JUDICIAL REVIEW

A party who is advers ely affected by this Final Order is

entitled to judicial review pursuant to section 120.68, Florida

Statutes. Review proceedings are governed by the Florida Rules

of Appellate Procedure. Such proceedings are commenced by

filing the original Notice of App eal with the agency clerk of

the Division of Administrative Hearings and a copy, accompanied

by filing fees prescribed by law, with the District Court of

Appeal, First District, or with the District Court of Appeal in

the Appellate District where the party resides. The notice of

appeal must be filed within 30 days of rendition of the order to

be reviewed.