12-003287F Sunbeach Apts. Corp. vs. Florida Commission On Human Relations Status: Closed DOAH Final Order on Tuesday, July 2, 2013.

Summary: Petitioner is not entitled to an award of fees or costs.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

SUNBEACH APTS. CORP. ,

Petitioner ,

vs. Case No. 12 - 3287F

FLORIDA COMMISSION ON HUMAN

RELATIONS ,

Respondent .

/

FINAL ORDER

Pursuant to notice, a formal hear ing was conducted in this

case on April 24 , 2013, by video teleconference at sites in Miami

and Tallahassee, Florida, before Administrative Law Judge June C.

McKinney of the Division of Administrative Hearings, pursuant to

the authority set forth in sections 120.569 and 120.57(1),

Florida Statutes.

APPEARANCES

For Petitioner: Juan Zorrilla, Esquire

Zorrilla & Associates, P.L.

Penthouse 10

2600 Douglas Road

Coral Gables, Florida 33134

For Re spondent: David A. Organes, Esquire

Florida Commission on Human Relations

2009 Apalachee Parkway, Suite 100

Tallahassee, Florida 32301

STATEMENT OF THE ISSUE

The issue to be resolved in this proceeding is whether

Petitioner should be awarded attorney's fees and costs pursuant

to section 57.111, Florida Statutes (2011). 1/

PRELIMINARY STATEMENT

On October 30, 2012, the Florida Commission on Human

Relations (ÐCommissionÑ or ÐRespondentÑ ) entered a Final Ord er,

adopting the Findings of Fact and Conclusions of Law contained in

the Recommended Order entered by the undersigned in DOAH Case

No. 11 - 3 975 (Ðthe underlying proceedingÑ ). In that Recommended

Order, the undersigned found that Petitioner Judith Amadiz failed

to establish a reasonable accommodation claim of housing

discrimination.

On Octobe r 9, 2012, Sunbeach Apts. Corp. (ÐSunbeachÑ or

ÐPetitionerÑ ) filed a Motion for Award of AttorneysÓ Fees and

Costs against Respondent, seeking an award of attorney's f ees and

costs as a prevailing small business party, pursuant to

section 57.111(4)(a) .

On October 9, 2012, the case was referred to the Division of

Administrative Hearings (ÐDOAHÑ ). The instant case was assigned

DOAH C ase No. 12 - 3287F. On December 4, 20 12, the hearing was

scheduled for March 1, 2013. On February 7, 2013, an unopposed

Motion to Continue was filed, which the undersigned granted , and

the hearing was rescheduled for April 24, 2013.

The final hearing commenced as rescheduled. At the formal

hearing, Petitioner presented the testimony of Michael Scag lione.

Petitioner's Exhibits 2 and 4 were offered and admitted into

evidence. Respondent presented the testimony of two witnesses:

Cole Herbert Keklis and Sara Juliette Purdy Stewart.

Respondent' s Exhibits 1 through 7 were offered and admitted into

evidence. At hearing, the parties stipulated that Sunbeach is a

small business party and was also the prevailing party in the

underlying proceeding. In addition, the undersigned to ok

official r ecognit ion of the record in the underlying proceeding.

The proceeding was recorded and transcribed. The Transcript

of the final hearing was filed with DOAH on May 9, 2013. The

undersigned granted Petitioner, Sunbeach's Motion for

Three - Day Enlargement of Time to Submit its Proposed Recommended

Or der over Respondent's objection and extended the proposed final

order deadline to June 3, 2013. The undersig ned considered

Petitioner's one - day , late - filed Proposed Final Order in

preparation of this Final Order since Respondent did not object

to the late filing , and the Final Order had not been finalized at

the time of Petitioner's submission.

FINDING S OF FACT

1. On August 11, 2010, Judith Amadiz ("Amadiz") filed a

complaint of housing discrimination with the United States

Department of Housing and Urban Development ("HUD") alleging

disability discrimination.

2. The Commission conducted an investigation of the

complaint. During the investigation, the investigator obtained

statements and documents from both parties. The investigator's

final investigative report ("Determination") (Petitioner's

Composite Exhibit number ed 2) detailed numerous materials

submitted by the parties for review during the investigation.

Some of the materials referenced included a Medical Cer tification

Form submitted on September 3, 2010, from Carlos Sesin, M.D.; a

copy of Complainant's Lease Application dated December 8, 2009;

and six letters including a copy of correspondence from

Complainant dated April 27, 2010, requesting steam cleaning , and

a copy of correspondence from Complainant dated May 17, 2010,

requesting steam cleaning.

3. The Determination dated October 20, 2010, concluded that

there was reasonable cause to believe that a discriminatory

housing practice occurred.

4. The Commi ssion forwarded the Determination to a staff

attorney to review for legal sufficiency. The Commission's staff

attorney reviewed the report and , on November 15, 2010, issued a

Legal Concurrence: Cause citing both statutory and case law

supporting the Deter mination. The Legal Concurrence concluded

that there is reasonable cause to believe that Respondent

discriminated against Complainant.

5. On or about November 17, 2010, the Commission issued a

Notice of Determination (Cause), charging Respondent with

e ngaging in discriminatory housing practices in violation of the

Fair Housing Act, reflecting the October 20, 2010, findings of

the Determination.

6. On or about March 2, 2011, the Commission filed a Notice

of Failure of Conciliation after a conciliation agreement had not

been entered into with Sunbeach , and the complaint had not been

withdrawn.

7. On or about January 26, 2011, Amadiz elected to have the

Commission represent her and seek relief in the proceeding and

resolve the charge in an administrative proceeding before DOAH .

8. On or about March 3, 2011, the Commission filed the Petition

for Relief before DOAH on Amadiz's behalf.

9. On December 12, 2011, the Commission moved to withdraw

from the underlying proceeding, citing "significant and

irreco ncilable differences." On December 13, 2011, after a

hearing on the motion, the undersigned entered an Order allowing

the Commission's withdrawal. The Order also cancelled the final

hearing scheduled for December 14, 2011, and provided Amadiz

until Janua ry 23, 2012, to obtain new counsel to represent her in

the matter.

10. Amadiz subsequently notified DOAH of her intent to

proceed pro se. Amadiz proceeded to hearing without counsel.

11. The final hearing was held before the undersigned on

May 9, 2012 . The undersigned entered a Recommended Order on

August 16, 2012, recommending the dismissal of Amadiz's Petition

for Relief in its entirety.

12. On October 9, 2012, Sunbeach filed a Motion for Award

of Attorneys' Fees and Costs against the Commission.

13. On October 30, 2012, the Commission entered a Final

Order Dismissing Petition for Relief from Discriminatory Housing

Practice , adopting the undersigned's Recommended Order and

dismissing the action of Amadiz.

14. Sunbeach was repre sented by counsel, a 30 - year AV - rated

lawyer, who defended the underlying action for a period of over

two years. Sunbeach's counsel billed 75.8 hours of service at

$150.00 per hour. The amount of attorney's fees claimed in this

matter is $10,460.00 and costs of $2,277.47 f or a total of

$12,737.47, which is being sought in the matter.

CONCLUSIONS OF LAW

15. The Division of Administrative Hearings has

jurisdiction in this proceeding pursuant to sections

57.111(4)(b) 1, 120.569, and 120.57, Florida Statutes.

16. In this matt er, Respondent has stipulated that

Petitioner is a small business party and that Petitioner is the

prevailing party in the underlying action. Therefore, the only

issues remaining for resolution are whether Respondent initiated

the underlying action and i f Respondent's action against

Petitioner was "substantially justified." § 57.111(4)(a),

Florida Statutes .

17. Section 57.111(3)(b) provides:

(b) The term "initiated by a state agency"

means that the state agency:

1. Filed the first pleading in any state or

federal court in this state;

2. Filed a request for an administrative

hearing pursuant to chapter 120; or

3. Was required by law or rule to advise a

small business party of a clear point of

entry after some recognizable event in the

investigatory or other free - form proceeding

of the agency.

18. In the underlying proceeding, on March 3, 2011, the

Commission filed a request for an administrative hearing pursuant

to chapter 120 with its Petition for Relief. Hence, the plain

meaning of section 57.111( 3)(b) is met in that , by filing the

request , the Commission initiated this matter.

19. A proceeding is "substantially justified" if it had a

reasonable basis in law and fact at the time it was initiated by

a state agency. § 57.111(3)(e), Fla. Stat.

20. It is Respondent's burden to show that its initiation

of an administrative action was substantially justified as

envisioned by section 57.111(4)(e). "It is the agency which must

affirmatively raise and prove the exception."

21. When dealing with license disciplinary actions, in

order to determine whether there was substanti al justification

for filing an administrative c omplaint against a licensee, the

focus is upon the information before the probable cause panel at

the time it found probable cause an d di rected the filing of an

administrative c omplaint. Fish v. Dep't of Health , 825 So. 2d

421, 423 (Fla. 4th DCA 2002); Dep't of Bus. & Prof'l Reg. v.

Toledo Realty , 549 So. 2d 715, 716 (Fla. 1st DCA 1989); Kibler v.

Dep't of Prof'l Reg. , 418 So. 2d 1081 (Fla . 4th DCA 1982).

22. The basis for proceeding at the time the Administrative

Complaint was authorized must be solid but not necessarily

correct.

To sustain a probable cause determination

there must be some evidence considered by the

panel that would reas onably indicate that the

violation had indeed occurred. The evidence,

however, need not be as compelling as that

which must be presented at formal

administrative hearing on the charges to

support a finding of guilt and the imposition

of sanctions.

Fish , 825 So. 2d 423 (citations omitted); Toledo Realty .

23. Even though the Commission does not utilize probable

cause panels, its process of investigating and evaluati ng

evidence to determin e whether the information provides reasonable

cause to believe a viol ation has occurred is parallel to license

disciplinary actions . Hence, applying the Fish test in this

matter is appropriate.

24. In this case, the Commission's Legal Concurrence:

Cause, which was based on the Determination , detailed both a

reasonable ba sis in law and fact to direct the charges in the

Notice of Determination (Cause). The Commission considered

evidence such as the final investigative report, statutory

authority , and case law indicating that a discriminatory action

had occurred. Therefore , the Commission had "some evidence [ it ]

considered . . . that would reasonably indicate that the

violation had indeed occurred." Fish , 825 So. 2d at 423.

25. Petitioner points to the letters Amadiz provided to

Sunbeach, which the Commission used as part of its foundation of

the Commission's factual determination that the discriminatory

practice of failing to provide a reasonable accommodation had

occurred as the same letters the undersigned used in the

underlying case to establish that a prima facie case had not been

met. Further, Petitioner argues that the evidence presented to

the Commission was virtually the same as that presented at formal

hearing, after which the undersigned recommended dismissal of the

charges. The deficiencies cited by Petitioner go to weight and

credibility.

26. While the Commission only considers whether some

evidence exists to proceed, the burden at hearing is determining

whether the evidence support s an alleged violation. Ferris v.

Turlington , 510 So. 2d 292 (Fla. 1987). Th e two cannot be

equated. That the evidence presented at hearing was not

sufficient to ultimately sustain the charges does not mean that

it was insufficient to initiate the proceedings.

27. Moreover, it cannot be said that the Commission had all

of the sa me information presented at formal hearing. The

undersigned had the benefit of testimony of Petitioner's expert.

Moreover, all witnesses who testified at the underlying

proceeding were subjected to cross - examination. The Commission

does not have the opp ortunity or the responsibility to weigh the

strengths and weaknesses of each party's position, but rather

simply to determine if some evidence exists to support the

conclusion that a violation has occurred. Ag. for Health Care

Admin. v. Gonzalez , 657 So. 2d 56 (Fla. 1st DCA 1995); Gentele v.

Dep't of Prof'l Reg . , B d . of Optometry , 513 So. 2d 672

(Fla. 1st DCA 1987). Here, the Commission performed that

function. The fact that the charges in the action were

ultimately dismissed does not form a basis for f ees and costs

pursuant to section 57.111.

ORDER

Based on the foregoing Findings of Fact and Conclusions of

Law, it is ORDERED that Pe titioner's Motion for AttorneysÓ Fees

and Costs is denied, and Sunbeach shall recover nothing in the

action. The file of t he Division of Administrative Hearings is

closed.

DONE AND ORDERED this 2nd day of July , 2013 , in Tallahassee,

Leon County, Florida.

S

JUNE C. McKINNEY

Administrative Law Judge

Division of Administrative Hearings

The De Soto 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 Hearings

this 2nd day of July , 2013 .

ENDNOTE

/1 References to Fl orida Statutes are to the 2011 version, unless

otherwise indicated.

COPIES FURNISHED:

Violet Denise Crawford, Agency Clerk

Florida Commission on

Human Relations

Suite 100

2009 Apalachee Parkway

Tallahassee, Florida 32301

Juan Carlos Zorrilla, Esqu ire

Zorrilla and Associates, P.L.

Penthouse 10

2600 Douglas Road

Coral Gables, Florida 33134

David A. Organes, Esquire

Florida Commission on

Human Relations

Suite 200

2009 Apalachee Parkway

Tallahassee, Florida 32301

[e-mail].c om

Cheyanne Costilla, Interim Gen eral Counsel

F lorida C ommission on

H uman R elations

Suite 100

2009 Apalachee Parkway,

Tallahassee, Florida 32301

NOTICE OF RIGHT TO JUDICIAL REVIEW

A party who is adversely 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 administrative appeal with the agency clerk of the

Division of Administrative Hearings within 30 days of rendition

of the order to be reviewed, and a copy of the notice,

accompanied by any filing fees prescribed by law, with the clerk

of the District Court of Appeal in the appellate district where

the age ncy maintains its headquarters or where a party resides or

as otherwise provided by law.