15-006002 Dominick Davis vs. Jacksonville Housing Authority Status: Closed Recommended Order on Friday, January 29, 2016.

Summary: Petition for Relief was filed with FCHR six days late, and therefore dismissal is required. Neither equitable tolling or mailbox rule apply to overcome untimely filing.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DOMINICK DAVIS ,

Petitioner,

vs. Case No. 15 - 6002

JACKSONVILLE HOUSING AUTHORITY ,

Respondent.

/

RECOMMENDED ORDER OF DISMISSAL

This cause comes befo re W. David Watkins , an Administrative

Law Judge of the Division of Administrative Hearings, without an

evidentiary hearing, for resolution upon the pleadings and

papers filed in a housing discrimination case referred by the

Florida Commission on Human Rel ations (FCHR or Commission).

STATEMENT OF THE ISSUE

Does the Division of Administrative Hearings have

jurisdiction of this housing discrimination petition?

PRELIMINARY STATEMENT

This cause was referred to the Division of Administrative

Hearings (DOAH or D ivision) by FCHR on or about October 22,

2015 . By Order dated November 12, 2015 , the final hearing was

scheduled for February 9 and 10, 2016, in Jacksonville, Florida.

On January 2 1 , 20 16 , Respondent filed a Motion to Dismiss

the Petition for Relief (Peti tion) as untimely. The following

day Petitioner filed a response in opposition to the Motion as

permitted by Florida Administrative Code Rule 28 - 106.204.

PetitionerÓs sole defense to the allegation that his Petition

was untimely was that on January 15, 2 016, the undersigned had

entered an Order Granting in Part, and Denying in Part ,

Jacksonville Housing AuthorityÓs Motion to Strike . Contained

within that Order was the statement, not germane to the

substance of the Order, that ÐO n October 9, 2015, Petitio ner

timely filed a Petition for Relief from Discriminatory Housing

Practices . . . .Ñ (Emphasis added) . It is notable that the

January 15, 2016 , Order was entered before the issue of the

timeliness of the Petition was raised by Respondent on

January 21, 2016.

So as to be fully advised in the premises, the undersigned

next entered an Order to Show Cause on January 25, 2016,

acknowledging the erroneous sta tement contained in the

January 15, 2016 , Order, and informing the pro se Petitioner

that he would cons ider the doctrine of equitable tolling in his

ruling on the motion to dismiss should the facts warrant it.

The January 25, 2016 , Order stated, inter alia :

Given PetitionerÓs sole reliance on the

erroneous statement contained in the

Janua ry 15, 2016 Order, in all fairness

Petitioner should be given an opportunity to

assert any other defenses he may have under

the doctrine of equitable tolling, as set

forth above.

On January 26, 2016, Petitioner filed a response to the

Order to Show Cause. In his response, Petitioner raise d the

defense that his former attorney delayed sending the Notice of

Determination of No Cause to him, and that the Ðmailbox ruleÑ

should apply such that the Petition should be considered ÐfiledÑ

as of the date it was delivered to the local post office .

This Recommended Order of Dismissal is entered upon these

representations and filed documents.

FINDING OF FACTS

1 . Petitioner filed a Housing Discrimination Complaint

with FCHR on or about April 27, 2015 . It was assigned Inquiry

Number 401 204.

2 . FCHR filed and mailed to the parties its document

entitled , Notice of Determination of No Cause (Notice) , in FCHR

Case No. 2015H0271 , on September 3, 2015. This document was

included in FCHR's referral packet forwarded to DOAH on or about

October 22 , 20 15 . Petitioner was served with the Notice via

certified mail by care of his attorney, Gloria Einstein,

Esquire, of the Jacksonville Area Legal Aid office .

3 . In his response to the January 25, 2016 , Order to Show

Cause, Petitioner stated that he received a copy of the Notice

from his former attorney on September 29, 2015.

4 . The September 3 , 20 15 , Notice stated in pertinent part:

The parties are further advised that the

Complainant may request that a formal

administrative proceeding be conducte d. The

request (i.e. Petition for Relief) must be

filed with the FCHR within 30 days of the

date of service of this Notice and should be

in compliance with the provisions of rule

60Y - 8.001 and Chapter 60Y - 4, Florida

Administrative Code, entitled General

P rocedures. A Petition for Relief form is

enclosed. If you elect to file a Petition

for Relief, it may be beneficial to seek

legal counsel prior to filing the Petition.

This action will not become final until time

has expired for Complainant to file a

Pe tition for Relief. Failure of Complainant

to timely file a Petition will result in

dismissal of the complaint within the

purview of Rule 60Y - 2.004(2)(g), Florida

Administrative Code. (Emphasis Added ) .

5 . The Certificate of Filing and Service contained in the

Notice, and certified by Tammy Barton, Clerk of the Commission,

reflect a date of service of September 3, 2015. October 3 , 20 15

was the 30th day after September 3, 2015 . October 3, 2015 , was

a Satur day.

6 . Petitioner has submitted proof that he m ailed h is

Petition for Relief in Jacksonville, via United States Postal

Service (USPS) Certified Mail, on October 5 , 20 15 . The receipt

provided to Petitioner reflected an Ðexpected delivery dayÑ of

Wednesday, October 7, 2015.

7 . F CHR's date stamp show s t hat the Petition for Relief

was received by FCHR on October 9 , 20 15 .

8 . The Petition clearly has on it a check in the box

marked "Discriminat ory Housing Practice," and it was signed by

Petitioner on October 5 , 20 15 .

9 . On October 9 , 20 15 , FCHR's Clerk si gned the Transmittal

of Petition, forwarding the case to DOAH for proceedings

pursuant to s ection 120.57, Florida Statutes, and Florida

Administrative Code R ule 60Y - 4. 01 6(1).

CONCLUSIONS OF LAW

10 . The Division of Administrative Hearings has the

author ity and the obligation to determine jurisdiction in this

matter.

11 . T he relevant FCHR Rule governing Fair Housing

Discrimination Proceedings reads, in pertinent part, as follows:

60Y - 8.001 Petition for Relief from a

Discriminatory Housing Practice.

(1) Petition. A complainant may file a

Petition for Relief from a Discriminatory

Housing Practice within 30 days of service

of a Notice of Determination (No Cause) or

Notice of Determination (Cause). . . .

(2) For good cause shown, the Chairperson

may gran t an extension of time to the

complainant to file the Petition for Relief,

provided the motion for extension of time is

filed within the 30 - day period.

(3) Procedures. Petitions for Relief, and

proceedings thereupon, are governed by the

provisions of Ch apters 28 - 106 and 60Y - 4,

F.A.C., except as otherwise provided by this

section. (Parenthetical material in

original)

12 . FCHR has adopted chapters 28 - 101 through 28 - 106 of the

Uniform Rules of Procedure. Fla. Admin. Code R. 60Y - 2.006 .

Rule 28 - 106.103 pr ovides in relevant part:

In computing any period of time allowed by

this chapter, by order of a presiding

officer, or by any applicable statute, the

day of the act from which the period of time

begins to run shall not be included. The

last day of the peri od shall be included

unless it is a Saturday, Sunday, or legal

holiday, in which event the period shall run

until the end of the next day which is not a

Saturday, Sunday, or legal holiday.

13 . Inasmuch as the 30 th day following service of the

Notice was Saturday, October 3, 2015, pursuant to rule 28 -

106.103 , the Petition was due not later than the following

Monday, October 5, 2015 .

14 . By FCHR's r ule, Petitioner had until Monday,

October 5, 2015 , to file his Petition with FCHR. Petitioner

signed and ma iled h is Petition on October 5 , 20 15 , t he last day

it could be timely filed with FCHR in Tallahassee . At the time

Petitioner placed his Petition in the custody of the USPS in

Jacksonville , he was advised that he could not expect the item

to be delivered i n Tallahassee before October 7, 2015. In fact,

the Petition was not received by FCHR until Friday, October 9,

2015.

15 . R ule 28 - 106. 1 04 states, in relevant part, that "filing

shall mean received by the office of the agency clerk during

normal business h ours or by the presiding officer during the

course of a hearing." Petitioner's Petition for Relief was

date - stamped received by FCHR on October 9 , 20 15 , and under

rule 28 - 106.104, the Petition was deemed "filed" with FCHR on

that date, which is 36 days af ter FCHR mailed its Notice to h im .

16 . Section 120.569(2)(c ), Florida Statutes, provides in

relevant part, that "[a] petition shall be dismissed if it is

not in substantial compliance with these requirements or it has

been untimely filed." The Petition in the instant case was not

timely filed.

17 . Based on the foregoing, the Petition for Relief herein

is time - barred and should be dismissed. Appellate courts have

upheld dismissals for tardiness as minimal as one day past the

filing deadline. See Whiti ng v. Fla. Dep Ó t of Law Enf . , 849 So.

2d 1149 (Fla. 5th DCA 2003)(dismissal of employee's

administrative appeal from notice of final agency action upheld

where appeal was filed one day late.); Cann v. DepÓt of Child .

and Fam . Servs . , 813 So. 2d 237 (Fla. 2 d DCA 2002)(request for

administrative hearing untimely filed where request filed one

day late with the Department). Likewise, the administrative

forum has not hesitated to dismiss time - barred Petitions in

employment discrimination cases. See Clardy v. D epÓt of Corr . ,

Case No. 04 - 1020 ( Fla. DOAH May 6, 2004) (Petition for Relief

dismissed where petition untimely filed with FCHR three days

late); Perdraza v. Int'l Brotherhood Local 2008 , Case No. 02 -

0238 (Fla. DOAH June 21, 2002) (Petition for Relief time - ba rred

where petition filed four days late with FCHR); Perry v.

Speedway Superamerica, LLC, d/b/a Starvin' Marvin , Case No. 02 -

1624 (Fla. DOAH June 18, 2002)(Petition for Relief time - barred

where petition filed with FCHR two days late); Oliveras v. Aero

Deca l , Case No. 01 - 3928 ( Fla. DOAH November 28, 2001)(Petition

for Relief time - barred where petition filed with FCHR one day

late).

18 . In some instances, courts have examined whether the

doctrine of equitable tolling could be applied to extend an

administrat ive time limit. In Machules v. Dep ar t ment of

Administration , 523 So. 2d 1132 (Fla. 1988), the Florida Supreme

Court stated:

Generally, the tolling doctrine had been

applied when the plaintiff has been misled

or lulled into inaction, has in some

extraordin ary way been prevented from

asserting his rights, or has timely asserted

his rights mistakenly in the wrong forum.

523 So. at 1134. In Cann v. Depar t ment of Children and Family

Services , 813 So. 2d 237 (Fla. 2d DCA 2002), the Department of

Family Service s issued the Appellants, the Canns, a notice of

intent to dismiss their request for an administrative hearing

because it was filed untimely, as it was filed with the

Department one day late. The facts indicated that the Canns'

attorney had prepared and de livered their request to the post

office two days before it was due, but the Department did not

receive the request until one day past the deadline. The Second

District Court of Appeal applied the Supreme Court's requirement

for equitable tolling as espou sed in Machules and concluded that

the requirements for equitable tolling were not met in the Cann

case. The Court upheld the Department's dismissal of the Canns'

untimely request for administrative hearing. See also Whiting

v. Fla . Dep Ó t of Law Enf . , S u pra, (notice of appeal from final

agency action filed one day late was insufficient to support

claim of equitable tolling and agency's dismissal of untimely

notice upheld).

19 . In the instant case, Petitioner has filed a Petition

for Relief with FCHR six days after the October 3 , 20 15 ,

deadline. FCHR's Notice was proper and Petitioner knew the

proper forum. Under Machules and Cann , Pet itioner's assertions

as to why he failed to timely file h is Petition for Relief are

insufficient to support equitable to lling.

20 . Petitioner has represent ed that he did not physically

receive the Notice from his former attorney until September 29,

2015 . Even a ssuming that to be true, Petitioner still would

have had six days to make arrangements for his Petition to be

t imely filed with FCHR by October 5, 2015. Alternatively,

Petitioner could have requested an extension of time from FCHR

for filing his Petition, predicated upon the delay in his

receipt of the Notice. However, Petitioner did not request such

an extension .

21 . Finally, PetitionerÓs contention that the Ðmailbox

ruleÑ applies in this instance is non - persuasive . Such a

defense has specifically been rejected in proceeding s pursuant

to chapter 120, Florida Statutes. McKenna v. DepÓt of Corr . ,

Case No. 91 - 376 7RP (DOAH March 2, 1992).

22 . The Petition for Relief must be dismissed.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of

Law, it is

RECOMMENDED that the Florida Commission on Human Relations

enter a final order dismissing the P etition herein.

DONE AND ENTERED this 29th day of January , 2016 , in

Tallahassee, Leon County, Florida.

S

W. DAVID WATKINS

Administrative Law Judge

Division of Administrative Hearings

The DeSoto Building

1230 Apalachee Pa rkway

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 29th day of January , 2016 .

COPIES FURNISHED:

Tammy S. Barton, Agency Clerk

Flori da Commission on Human Relations

Room 110

4075 Esplanade Way

Tallahassee, Florida 32399

(eServed)

Dominick Davis

Apartment 46

1605 North Myrtle Avenue

Jacksonville, Florida 32209

(eServed)

Larry Gonzalez

Jacksonville Housing Authority

1300 North Broad Street

Jacksonville, Florida 32202

Wendy Leigh Mummaw, Esquire

Office of General Counsel

City of Jacksonville

Suite 480

117 West Duval Street

Jacksonville, Florida 32202

(eServed)

Wendy Byndloss, Esquire

Office of General Counsel

City of Jacksonville

S uite 480

117 West Duval Street

Jacksonville, Florida 32202

(eServed)

AlliedBarton Security Service Inc.

9428 Bay Meadows Road, No. 170

Jacksonville, Florida 32256

The Oaks at Durkeeville

1605 North Myrtle Avenue, Suite 10

Jacksonville, Florida 32209

Ina F. Crawford, Esquire

Ogletree Deakins

100 North Tampa Street, Suite 3600

Tampa, Florida 33602

(eServed)

Phillip B. Russell, Esquire

Ogletree, Deakins, Nash,

Smoak & Stewart

Suite 3600

100 North Tampa Street

Tampa, Florida 33602 - 5867

(eServed)

A sa B. Groves, Esquire

Groves & Verona, P.A.

7385 Southwest 87th Avenue

Miami, Florida 33173

(eServed)

Cheyanne Costilla, General Counsel

Florida Commission on Human Relations

Room 110

4075 Esplanade Way

Tallahassee, Florida 32399

(eServed)

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 ca se.