12-003491 Mcarthur And Myrna Edwards vs. Hamilton Group Funding, Inc. Status: Closed Recommended Order on Wednesday, March 6, 2013.

Summary: Petitioners, who did not appear at scheduled telephonic final hearing, failed to prove Respondents discriminated against them in the sale of housing, or in the terms, conditions, or privileges of sale, based on Petitioners' race.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

MCARTHUR AND MYRNA EDWARDS, )

)

Petitioners, )

)

vs. ) Case Nos. 12 - 3491

) 12 - 3492

HAMILTON GROUP FUNDING, INC.; )

NICHOLAS HAMIC VENTURES, LLC; )

BRISTOL GLOBAL MOBILITY; AND )

RICHARD J. AND MICHELLE COFFEY, )

PROPERTY OWNERS, )

)

Res pondents. )

)

RECOMMENDED ORDER

Pursuant to notice, a final hearing was convened in this

case on February 28, 2013, via telephone, before Suzanne Van

Wyk , duly - designated Administrative Law Judge of the Division of

Administrative Hearings.

APPEARANCES

For Petitioner s : No appearance

For Respondent Hamilton Group Funding, Inc. :

No appearance 1/

For Respondent Nicholas Hamic Ventures , LLC :

Jake n E. Roane, Esquire

Guilday, Schwartz, Simpson,

West, Hatch and Lowe, P.A.

1983 Centre Pointe Boulevard , Suite 200

Tallahassee, Florida 32308

For Respondent Bristol Global Mobility :

Robert Beasley, Esquire

Litvak , Beasley and Wilson, LLP

226 East Government Street

Pensacola, Florida 32502

For Respondents Richard J. and Michelle Coffey :

No appearance

STATEMENT OF THE ISSUE

Whether this case should b e dismissed based on Petitioner s Ó

failure to appear at the scheduled telephonic final he aring.

PRELIMINARY STATEMENT

On July 25, 2012, Petitio ners McArthur and Myrna Edwards

filed a Housing Discrimination Complaint with the Florida

Commission on Human Relations (ÐCommissionÑ), alleging that

Respondent, Hamilton Group Funding (ÐHamiltonÑ), had

discriminated against Petitioners by denying financing for the

purchase of a home, as well as steering and redlining on the

basis o f Petitioner s Ó race (ÐCase IÑ).

On July 26, 2012, Petitioners filed a second Housing

Discrimination Complaint with the Commi ssion, alleging that

Respondents, Nicholas Hamic Ventures, LLC (real estate agency,

hereinafter ÐHamicÑ), Bristol Global Mobility (property owner,

hereinafter ÐBristolÑ), and Richard J. and Michelle Coffey

(property owners, hereinafter ÐCoffeyÑ), discrimin ated against

Petitioners by refusing to sell a home; discriminating in the

financing of a home; discriminating in the terms, conditions,

and privileges of sale of a dwelling; steering; and redlining,

based on PetitionersÓ race (ÐCase IIÑ).

After investigat ion, the Commission issued its

Determination of No Cause in both cases on October 11, 2012,

finding no reasonable cause to believe that a discriminatory

housing practice occurred. Petitioners timely filed a separate

Petition for Relief in each case seekin g an administrative

hearing to contest the Commissi onÓs determination. On

October 23, 2012, both cases were forwarded to the Division of

Administrative Hearings ( Division) for assignment of an

administrative law j udge to conduct the hearing s requested.

Up on receipt of the Petitions, Case II was initially

assigned to Judge James H. Peterson, III, then transferred to

Judge William F. Quattlebaum. Case I was assigned to the

undersigned. By Order entered December 17, 2012, the cases were

consolidated by the Division and assigned to the undersigned.

Due to the procedural nature of this decision, the

remaining facts usually provided in a Preliminary Statement are

set forth in the Findings of F act.

FINDING S OF FACT

1. Upo n receipt of the Petitions for R elief at the

Division, Initial O rders were issued on October 24, 2012,

requiring Petitioners to coordinate a joint response to provide

certain information within seven days or to file a unilateral

response if a joint response was not possible. Neither

Petitioners nor Respondents responded to th e Initial O rder in

either case.

2. Case I was initially se t for final hearing on

December 17, 2012, by video teleconference at sites in Pensacola

and Tallahassee, Florida. Case II was initially set for final

hearing on Dec ember 27, 2012, in Tallahassee, Florida.

3 . Prior to consolidation of the cases, Respondent

Hamilton requested a continuance of the final hearing scheduled

in Case I. HamiltonÓs correspondence, which was taken as a

m otion , represented that Hamilton had a ttempted to contact

Petitioners to determine whether they would agree to a

continuance, that Hamilton had left a voice message with

Petitioners, and that Petitioners had not responded.

4 . At the direction of the undersigned, the Division also

attempted to contact Petitioners to determine their position on

the requested continuance. Division personnel also left voice

messages with Petitioners.

5 . On December 10, 2012, Michael Edwards contacted

Division staff, identified himself as PetitionersÓ son, stated

he had received the messages, and represented that Petitioners

had no objection to a continuance. Further, Mr. Edwards

explained that a continuation would be needed because Myrna

Edwards was recovering from major surgery and McArthur Edwards

was sufferin g with complications from Post Traumatic Stress

Disorder .

6 . Having received confirmation that Petitioners did not

oppose continuance, and would likely have been unable to attend

the final hearing as scheduled, the undersigned entered an Order

Canceling H earing and Placi ng Case in Abeyance on December 10,

2012. The Order required Petitioners to confer with

RespondentsÓ counsel and advise as to the status of t he matter

no later than January 30, 2013. Further, Petitioners were

required to include in the st at us report mutually - agreeable

dates for scheduling the final hearing if Petitioners intended

to pursue the matter. The case s were consolidated on

December 17, 2012, thus the Order was binding in both cases.

7 . Neither the original Notice of Hearing nor the Order

Canceling Heari ng and Placing Case in Abeyance mailed to

Petitioners w as returned as Ðundeliverable.Ñ

8 . On January 30, 2013, Respondent Bristol filed a status

report representing that Bristol had not been contacted by the

Petitioners to coordin ate the status report as directed in the

Order. Further, Bristol represented that it had attempted to

reach Petitioners by phone the previous day and had left a voice

message, but had received no return call from Petitioners.

9 . Despite the fact that Pet itioners did not comply with

the Order, the undersigned requested Division personnel to

contact Petitioners to determine whether Petitioners intended to

pursue the matter. Division staff called PetitionersÓ residence

and left messages for Petitioners to c ontact the Division

regarding this case. The Division received no return call.

10 . In an abundance of caution, the undersigned scheduled

the case for telep honic final hearing on February 28, 2013.

Telephonic hearing was chosen to afford Petitioners, now

residing out of state, every opportunity to be heard on their

complaints.

11 . The undersigned also issued an Order of Pre - hearing

Instructions (Order) requiring the p arties to confer no later

than seven days prior to the final hearing to determine whethe r

the matter could be resolved amicably and to exchange witness

lists and copies of proposed exhibits.

12 . Neither the Notice of Telephonic Hearing nor the Order

mailed to Petitioners was returned Ðundeliverable.Ñ

13 . O n February 20, 2013, Respondent Ham ic filed its

witness list and served proposed exhibits on all other parties.

On February 21, 2013, the same Respondents provided copies of

proposed exhibits to the undersigned.

14 . On February 21, 2013, Respondent Bristol filed its

witness and exhibit li sts and provided copies of proposed

exhibits to the undersigned.

15 . Petitioners filed neither a witness list nor an

exhibit list and did not provide the undersigned with any

proposed exhibits.

16 . O n February 21, 2013, Respondent Hamic filed a Notice

of Attempt to Comply in response to the undersignedÓs Order.

The Notice documents RespondentsÓ unsuccessful attempts to reach

Petitioners to confer and exchange witne ss lists and proposed

exhibits.

17 . O n February 22, 2013, Respondent Hamic filed a Motion

to Dismiss, or, Alternatively, to Close the Case. The Motion

represented that Petitioners had not contacted Respondents as

required by the Order to confer and exchange witness lists and

exhibits. The Motion was denied.

18 . The final hearing commenced as scheduled, via

telephone , on February 28, 2013. Respondents Hamic and Bristol

entered appearances. Petitioners did not appear.

19 . The undersigned allowed 20 minutes from the noticed

hearing time, 9:30 a.m., for Petitioners to make an appearance.

None was made.

20 . Respondent Hamic offered Exhibits 1 through 41 into

evidence, which were received without objection.

21 . Respondent Bristol offered Exhibits B - 1 through B - 8

into evidence, which were received without objection.

22 . No witnesses were calle d.

23 . The proceedings closed at approximately 10:00 a.m.

24 . No transcript of the proceedings was made.

CONCLUSIONS OF LAW

25 . The Division of Administrative Hearings has

jurisdiction over the parties and the subject matter of this

proceeding. §§ 120. 569, 120.57(1), and 760.35, Fla. Stat. 2 /

26 . Petitioners have the burden of proof in this

proceeding. They must prove by a preponderance of the evidence

their allegations that Respondents engaged in discriminatory

housing practices based upon Petitioners Ó race.

27 . Petitioners failed to appear at the time noticed for

telephonic final hearing. In addition, Petitioners failed to

provide notice , prior to or at the time the final hearing was

scheduled to commence , that Petitioners would be unable to

attend the scheduled hearing . Petitioners were required to

appear at the scheduled hearing, with witnesses and evidence

necessary to meet their burden of proof. As stated in the

Notices of Hearing, Petitioners Ó failure to do so constitutes

grounds for dismissal .

28 . In Patterson v. Panama City Hous. Auth . , Case

No. 10 - 8861 ( Fla. DOAH Oct. 21, 2010; Fla. FCHR Jan. 13, 2011) ,

the a dministrative law j udge recommended, and FCHR agreed, Ðwhen

a Petitioner fails to appear at the scheduled administrative

hearing in their case, they fail to meet their burden of proof

and the Petition for Relief should be dismissed.Ñ Patterson ,

Case No. 2011H0034, FO at 2. The FCHR Final Order provides a

long list of citations to cases applying this principle. Id .

RECOMMENDATION

Ba sed on the foregoing Findings of Fac t and Conclusions of

Law, it is

RECOMMENDED that the Florida Commission on Human Relations

enter a fina l order dismissing Petitioners McArthur and Myrna

EdwardsÓ Petition for Relief.

DONE AND ENTERED this 6th day of Marc h , 2013 , in

Tallahassee, Leon County, Florida.

S

SUZANNE VAN WYK

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 Hearings

this 6th day of March , 2013 .

ENDNOTE S

1/ Daniel R. Lucas, CPA, represented at the telephonic final

hearing that he was appearing on behalf of Hamilton Group

Funding, Inc. However, Mr. Lucas was not authorized by the

undersigned to appear as a Qualified Representative of Hamilton

Group Funding, Inc., pursuant to Florida Administrati ve Code

Rule 28 - 106.106.

2/ Unless otherwise indicated, all references to the Florida

Statutes are to the 2012 version.

COPIES FURNISHED:

Denise Crawford, Agency Clerk

Florida Commission

on Human Relations

Suite 100

2009 Apalachee Parkway

Tallahass ee, Florida 32301

Cheyanne Costilla,

Interim General Co unsel

Florida Commission

on Human Relations

Suite 100

2009 Apalachee Parkway

Tallahassee, Florida 32301

McArthur Edwards

Myrna Edwards

2416 Woodhill Lane

East Point, Georgia 30344

Dee Chandl er - McDonough

Nicholas Hamic Ventures, LLC

1715 South Florida Avenue

Lakeland, Florida 33803

Robert O. Beasley, Esquire

Litvak, Beasley and Wilson, LLP

226 East Government Street

Pensacola, Florida 32502

Daniel R. Lucas, CPA

Hamilton Group Funding, In c.

4503 Woodbine Road

Pace, Florida 32571

Jaken E. Roane, Esquire

Guilday, Schwartz, Simpson,

West, Hatch and Lowe, P.A.

Suite 200

1983 Centre Pointe Boulevard

Tallahassee, Florida 32308

Richard J. and Michelle Coffey

6719 Hillis Drive

Lakeland, Flor ida 33813

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.