13-002438F Bayhead Landings Property Owners Association, Inc., A Florida Not-For-Profit Corporation; Kimball Lee; William Barthle; And Tony Kolka vs. Florida Commission On Human Relations Status: Closed DOAH Final Order on Friday, January 17, 2014.

Summary: FCHR was substantially justified in initiating the administrative action against Petitioner; no attorney's fees or costs are awarded.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

BAYHEAD LANDINGS PROPERTY OWNERS

ASSOCIATION, INC., A FLORIDA

NOT - FOR - PROFIT CORPORATION;

KIMBALL LEE; WILLIAM BARTHLE;

AND TONY KOLKA ,

Petitioners ,

vs. Case No. 13 - 2438F

FLORIDA COMMISSION ON HUMAN

RELATIONS,

Re spondent .

/

FINAL ORDER

Pursuant to notice to all parties, a final hearing was

conducted in this case on December 5, 2013, by video

teleconference in St. Petersburg and Tallahassee, Florida, bef ore

Administrative Law Judge Lynne A. Quimby - Pennock of the Division

of Administrative Hearings (DOAH), pursuant to the authority set

forth in sections 120.569 and 120.57(1), Florida Statutes. The

parties were represented as set forth below.

APPEARANCES

F or Petitioner s : Gary M. Schaaf, Esquire

Stuart Jessup Barks, Esquire

Becker and Poliakoff, P.A.

Suite 250

311 Park Place Boulevard

Clearwater, Fl orida 33759

For Respondent: David A. Organes, Esquire

Belicha Desgraves, Esquire

Florida Commission on Human Relations

Suite 200

2009 Apalachee Parkway

Tallahassee, Florida 32301

STATEMENT OF THE ISSUE

The issue is whether Respondent, Florida Commission on Human

Relations (FCHR), should pay Petitioners ' attorney ' s fees and

costs under section 57.111, Florida Statutes (2013), 1/ the Florida

Equ al Access to Justice Act, for initiating DOAH Case

No. 12 - 2074.

PRELIMINARY STATEMENT

On May 2, 2013, FCHR entered a Final Order adopting the

Findings of Fact and Conclusions of Law contained in the

Recommended Order entered by the undersigned in DOAH Ca se

No. 12 - 2074 (the underlying proceeding). In that Recommended

Order, the undersigned found that Petitioner, FCHR on behalf of

John and Kimberly Whitt, failed to prove their claim of

discrimination.

On July 1, 2013, Bayhead Landings Property Owners

Asso ciation , Inc., a Florida not - for - profit corporation ; Kimball

Lee; William Barthle ; and Tony Kolka (Association) filed a

Petition to Award the Association Attorneys ' Fees as the

Prevailing Party ( Fees Petition) against FCHR, seeking an award

of attorney ' s f ees and costs as a prevailing small business

party, pursuant to section 57.111(4)(a).

On July 1, 2013, the case was referred to DOAH, and assigned

DOAH Case No. 13 - 2438F. Following the granting of an FCHR

A mended M otion for E xtension of T ime to R espond to the Petition,

the case was scheduled for hearing on December 5, 2013, and heard

on that date.

At hearing, as a preliminary matter, FCHR made an or e tenus

motion to change the style of the case to reflect that John and

Kimberly Whitt were not parties to th is proceeding. The

Association did not object to this motion and it was granted.

FCHR asked that judicial notice be taken of DOAH Case

No. 12 - 2074, c hapter 760 of the Florida Statutes, and FCHR Case

No. 2012H0038 (the underlying FCHR case matter). The Association

did not object to this request and it was granted. The parties

filed a pre - hearing stipulation which contained several " Admitted

Facts. " To the extent any of those a dmitted f acts are relevant ,

they are included in this Order.

Petitioners pre sented the testimony of Graeme Woodbrook.

Petitioners ' Exhibits 1 and 2 were offered and admitted into

evidence. Respondent presented the testimony of Cheyanne

Costilla. 2/ Respondent ' s Exhibits 1 through 3 were offered and

admitted into evidence.

The Tra nscript of the proceeding was filed on December 19,

2013. Petitioner s asked to file the proposed order 15 days after

the filing of the Transcript. Respondent did not object. Prior

to the filing date, the parties filed a Joint Motion for

Extension of Tim e to File Proposed Recommended Orders. 3/ The

extension was granted and the parties timely filed their P roposed

F inal O rders.

On January 10, 2014, Petitioners ' Notice of Filing

Additional Documentation in Support of Their Proposed Final Order

on Petition t o Award the Association Attorneys ' Fees as

Prevailing Party (additional notice) was filed. Petitioners

averred that the documents contained in the additional notice

(the Complaint and Final Judgment in the Sixth Circuit Court Case

No. 51 - 2010 - CA - 5795) wer e discussed during the hearing. A review

of the Transcript reflects that other " litigation " with the

Whitts was discussed, but not a specific court case or a specific

court case number. Official court records may be reviewed.

However, the documents were not produced or noticed during the

hearing, and have not been reviewed in the preparation of this

Final Order.

FINDING S OF FACT

1. On August 15, 2011, John and Kimberly Whitt (Whitts)

filed a complaint of housing discrimination with the United

States Depa rtment of Housing and Urban Development alleging

disability discrimination.

2. FCHR conducted an investigation of the complaint.

During the investigation, the investigator obtained statements

and documents from both parties. The investigator ' s final

inv estigative report (Determination, found within Respondent ' s

Exhibit 1) detailed the investigation.

3. The Determination dated December 21, 2011, concluded

that " there [was] reasonable cause to believe that a

discriminatory housing practice occurred in vio lation of

804(f)(3)(A) of the Fair Housing Act, as amended. "

4. On March 2, 2012, FCHR issued a Legal Concurrence:

Cause . The Legal Concurrence, drafted by FCHR ' s senior attorney,

concluded that " there [was] reasonable cause to believe that

Respondents [ Association] discriminated against Complainants [the

Whitts] in violation of 42 U.S.C. §§ 3604(b) and (f)(2)(A) and

section 760.23(2) and (8)(a) , Florida Statutes. "

5. On March 5, 2012, FCHR ' s executive director executed the

Notice of Determination (Cause ), charging that there was

reasonable cause to believe that the Association had engaged in a

discriminatory housing practice.

6. The Whitts elected to have FCHR represent them to seek

relief in an administrative proceeding against the Association .

On Jun e 14, 2012, FCHR filed a Petition for Relief ( Relief

Petition) with DOAH seeking an order prohibiting the Association

from engaging in any unlawful housing practices, and granting

damages.

7. The final hearing in the underlying case was held before

the un dersigned on December 12, 2012. The undersigned entered a

Recommended Order on February 15, 2013, recommending the

dismissal of the Relief Petition filed on behalf of the Whitts.

On May 2, 2013, FCHR entered a Final Order dismissing the

petition for reli ef filed on behalf of the Whitts.

8. The Association was the prevailing party in the

underlying case . The Association is a not - for - profit corporation

that does not have any employees. The Association relies solely

on volunteers to run its operations. I t has never had a net

worth of two million dollars or more.

9. The Association was represented by counsel and co -

counsel in both proceedings . In the Fees Petition, the

Association alleged it had incurred $75,657.00 in legal fees. At

hearing, t he Associa tion provided a document which reflected that

$5,945.00 in fees should not have been attributed to the instant

case, thus setting the amount the Association was seeking at

$69,712.00. However, the Association acknowledged that section

57.111(4)(d) 2. , Fl o rida Stat utes, limited the recovery of

attorney ' s fees and costs to $50,000.

10. FCHR is a " state agency " for the purposes of this

proceeding . See § § 120.57(1) and 57.111(3)(f) , Fla. Stat.

CONCLUSIONS OF LAW

11. The Division of Administrative Hearings h as

jurisdiction in this proceeding pursuant to sections 57.111,

120.569 and 120.57, Florida Statutes.

12. Section 57.111 provides in pertinent part:

(2) The Legislature finds that certain

persons may be deterred from seeking review

of, or defending again st, unreasonable

governmental action because of the expense of

civil actions and administrative proceedings.

Because of the greater resources of the

state, the standard for an award of

attorney ' s fees and costs against the state

should be different from th e standard for an

award against a private litigant. The

purpose of this section is to diminish the

deterrent effect of seeking review of, or

defending against, governmental action by

providing in certain situations an award of

attorney ' s fees and costs ag ainst the state.

(3) As used in this section:

(a) The term " attorney ' s fees and costs "

means the reasonable and necessary attorney ' s

fees and costs incurred for all preparations,

motions, hearings, trials, and appeals in a

proceeding.

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

means that the state agency:

* * *

2. Filed a request for an administrative hearing

pursuant to chapter 120; or

* * *

(c) A small business party is a " prevailing small

business party " when:

1. A final judgment o r order has been entered in favor

of the small business party and such judgment or order

has not been reversed on appeal or the time for seeking

judicial review of the judgment or order has expired;

* * *

(d) The term " small business party " means:

* * *

1.b. A partnership or corporation, including

a professional practice, which has its

principal office in this state and has at the

time the action is initiated by a state

agency not more than 25 full - time employees

or a net worth of not more than $2 million;

or

* * *

(e) 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.

(f) The term " state agency " has the meaning

described in s. 120.52(1).

(4)(a) Unless otherwise provided by law, an

award of attorney ' s fees and costs shall be

made to a prevailing small business party in

any adjudicatory proceeding or administrative

proceeding pursuant to chapter 120 initiated

by a state agency, unless the actions of the

agency were substantially justified or

special circumstances exist which would make

the award unjust.

* * *

(d) The court, or the administrative law

judge in the case of a proceeding under

chapter 120, shall promptly conduct an

evidentiary hearing o n the application for an

award of attorney ' s fees and shall issue a

judgment, or a final order in the case of an

administrative law judge. The final order of

an administrative law judge is reviewable in

accordance with the provisions of s. 120.68.

If the court affirms the award of attorney ' s

fees and costs in whole or in part, it may,

in its discretion, award additional

attorney ' s fees and costs for the appeal.

* * *

2. No award of attorney ' s fees and costs

for an action initiated by a state agency

shall exceed $50,000.

13. Petitioner s established that the Association is a small

business . The Association was the prevailing party in the

underlying action. Therefore, the only issue remaining is

whether Respondent , on behalf of the Whitts , had a re asonable

basis for filing the petition for relief against the Association .

14. FCHR initiated the original matter by filing it s

Petition for Relief o n June 14, 2012 . § 57.111(3)(b) , Fla. Stat.

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

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

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

16. In order to authorize an administrative compla i nt, the

basis must be solid, but not necessarily correct.

The evidence, however, need not be as

compelling as that which must be presented at

the formal administrative hearing on the

charges to support a finding of guilt and the

imposition of sanctions. See Dep ' t of Prof ' l

Reg . , Div. of Real Estate v. Toledo Realty,

Inc. , 549 So. 2d 715 (Fla. 1st DC A 1989).

Fish v. Dep ' t of Health , 825 So. 2d 421, 423 (Fla. 4th DCA 2002) .

See also , Ag. f or Health Care Admin . v MVP Health , 74 So. 3d

1141, 1143 - 44 (1st DCA 2011). In Fish , the Florida B oard of

D entistry filed an administrative complaint after its prob able

cause panel examined the complete investigative file and found

probable cause to believe a violation had occurred.

17. FCHR does not use a probable cause panel process as

found in the Fish case. However, the underlying case went

through FCHR ' s inve stigatory and review processes. FCHR

investigated and evaluated the evidence to determine whether the

information provided reasonable cause to believe a violation ha d

occurred.

18. In the underlying case, FCHR ' s Legal Concurrence:

Cause , detailed a reaso nable basis in law and in fact to issue

the Notice of Determination (Cause). FCHR considered evidence

such as the final investigation report, its statutory authority,

and relevant case law , which indicated that a discriminatory act

had occurred. Hence, F CHR had " some evidence [it] considered . .

. that would reasonably indicate that the violation had indeed

occurred. " Fish , 825 So. 2d 423.

19. The Association argues that the evidence presented to

FCHR was unreasonable. Such is not the case. FCHR only

considers whether some evidence exists to proceed, while the

burden at hearing is determining whether the evidence supports

the alleged violation. Ferris v. Turlington , 510 So. 2d 292

(Fla. 1987). The two standards are not equal.

20. In the underlying case, the evidence presented at

hearing was not sufficient to sustain the allegation. That does

not mean it was insufficient to initiate the proceeding. The

fact that the charges were ultimately dismissed does not form a

basis for fees and costs to be aw arded in the instant case

pursuant to section 57.111.

DISPOSITION

Based on the foregoing Findings of Fact and Conclusions of

Law, the petition for attorney ' s fees and costs in this case is

denied.

DONE AND ORDERED this 1 7 th day of January , 2014 , in

Tallaha ssee, Leon County, Florida.

S

LYNNE A. QUIMBY - PENNOCK

Administrative Law Judge

Division of Administrative Hearings

The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399 - 3060

(850) 488 - 9675

Fax Filing (85 0) 921 - 6847

www.doah.state.fl.us

Filed with the Clerk of the

Division of Administrative Hearings

this 1 7 th day of January , 2014 .

ENDNOTE S

1/ All references to Florida Statutes are to the 2013 version,

unless otherwise indicated.

2/ As both parties listed Ms. Costilla as a witness, the

undersigned allowed wide latitude in the examinations conducted

by each counsel.

3/ Proposed f inal o rders were to be submitted, not p roposed

r ecommended o rders as listed in the motion.

COPIES FURNISHED:

Gary M. Sc haaf, Esquire

Stuart Jessup Barks, Esquire

Becker and Poliakoff, P.A.

Suite 250

311 Park Place Boulevard

Clearwater, Florida 33759

David A. Organes, Esquire

Belicha Desgraves, Esquire

Florida Commission on Human Relations

Suite 200

2009 Apalachee Parkway

Tallahassee, Florida 32301

Denise Crawford, Agency Clerk

Florida Commission on Human Relations

Suite 100

2009 Apalachee Parkway

Tallahassee, Florida 32301

Cheyanne Costilla, General Counsel

Florida Commission on Human Relations

Suite 100

2009 Apalache e 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 R ules 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 agency maintains its headquarters or where a party resides or

as otherwise provided by law.