16-000342 Kenneth And Lisa Anduze vs. Fund Waterford Lakes, Llc Status: Closed Recommended Order on Thursday, November 30, 2017.

Summary: Petitioners provided evidence substantiating that they are entitled to an award of $2,221.80 in damages and costs as a result of Respondent's unlawful retaliation in violation of section 760.37.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

KENNETH AND LISA ANDUZE ,

Petitioner s ,

vs. Case No. 1 6 - 0342

FUND WATERFORD LAKES, LLC ,

Respondent.

_______________________________/

RECOMMENDED ORDER AFTER REMAND

This Recommended Order a fter Remand is entered following

a hearing conducted in this case pursuant to sections 120.569

and 120.57(1), Florida Statutes (201 6 ), before Cathy M. Sellers,

an Administrative Law Judge ( " ALJ " ) of the Division of

Administrative H earings ( " DOAH " ) , by video teleconference on

February 23, 201 7 , at sites in West Palm Beach and Tallahassee,

Florida.

APPEARANCES

For Petitioner s: David Stuart Cronin, Esquire

Alicia K. Magazu, Esquire

Community Legal Services of Mid Florid a

128 Orange Avenue, Suite 300

Daytona Beach, Florida 32114

For Respondent: Leslie L. Tucker , Esquire

6292 Vinings Vintage Drive

Mableton, Georgia 30126

STATEMENT OF THE ISSUE

The amount of quantifiable damages and costs , if any, to

which Petitioners are entitled as a result of Respondent's

discriminatory housing practice, pursuant to the Interlocutory

Order Awarding Affirmative Relief f rom a Discriminatory Housing

Practice and Remanding Cas e to Administrative Law Judge f or

Issuance o f Recommended Order Regarding Amounts of Quantifiable

Damages a nd Costs ( " Interlocutory Order " ) issued by the Florida

Commission on Human Relations ( " FCHR " ) in this proceeding on

November 17, 2016.

PRELIMINARY ST ATEMENT

O n May 25 , 2016, a final hearing was held on the Petition

for Relief from a Discriminatory Housing Practice filed by

Petitioners on or about January 19, 2016, which alleg ed that

Respondent had engaged in discriminatory housing practices

against them in violation of the Florida Fair Housing Act,

chapter 760, Part II, Florida Statutes (2014). 1/

On August 31, 2016, the ALJ issued a Recommended Order

finding and concluding th at Respondent had engaged in a

discriminatory housing practice on the basis of retaliation , in

violation of section 760.37. In th e Recommended Order, the ALJ

determined that because Petitioners had not presented evidence

regarding potentially quantifiable damages , no factual basis

existed for awarding such damages .

On November 17, 2016 , FCHR entered the Interlocutory Order

adopting the ALJ's findings of fact, as clarified, and adopting

the ALJ's conclusions of law except as to the conclusion

regarding entitlement of Petitioners to quantifiable damages for

the discriminatory housing practice found to have occurred.

Relying on previous orders remanding proceedings to DOAH to

conduct proceedings to determine the amount of quantifiable

damages, costs, or o ther appropriate relief, the Interlocutory

Order remanded this p roceeding back to DOAH " for further

proceedings to determine the amount of 'quantifiable damages'

and 'costs' owed Petitioners and the issuance of a Recommended

Order as to those amounts."

T h e final hearing on remand was held on February 23, 2017.

Lisa Anduze testified on behalf of Petitioners . Pe titioners'

Exhibits 1 through 6 , 8, 9, 12 , 14, and 15 were admitted into

evidence without objection , and Petitioners' Exhibit 13 was

admitted over objection. The undersigned took official

recognition of Petitioners' Exhibit s 7, 10, and 11. 2 / Respondent

presented the testimony of Kenneth Anduze . Respondent's

Exhibit 1 was admitted into evidence without objection , and

Respondent's Exhibit 3 3 / was admitted into evidence over

objection.

The one - volume Transcript was filed with DOAH on May 12,

2017, and the parties were given until May 22, 2017, in which to

file proposed recommended orders. However, p ursuant to a joint

motion, the deadline for filing proposed recommended orders was

extended to June 9, 2017. Respondent timely filed its proposed

recommended o rder on June 9, 2017, and Petitioners ' p roposed

r ecommended o rder was filed on June 12, 2017. Both proposed

recommended orders were duly considered in preparing this

Recommended Order a fter Remand.

FINDINGS OF FACT

I. Background

1. On August 31, 201 6 , the ALJ entered a Recommended Order

determining that Respondent engaged in a discriminatory housing

practice by retaliating against them, in violation of

section 760.37.

2. On November 17, 2016, FCHR entered an Interlocutory

Order . The Interlocutory Order determined that Petitioners wer e

legally entitled to recover quantifiable damages and costs

incurred as a result of Respondent's unlawful housing practice,

and remand ed this proceeding to DOAH to afford Petitioners an

opportunity to present evidence regarding those quantifiable

damages and costs .

II. Evidence Regarding Damages and Costs

3. In this proceeding, Petitioners are seeking to recover

$4,905.58 in damages and costs . They presented testimony and

documents at the final hearing in an effort to substantiate this

amount. Each co mponent of the claimed damages and costs is

addressed below.

Rent Differential and Related Costs for Rental of Unit 11 - 205

4. As previously found in this proceeding, Petitioners

leased Unit 4 - 207 in the Camden Waterford Lakes apartment

community in Orlando, Flori da.

5. Per its express terms, the lease for Unit 4 - 207 began

on December 31, 2013, and ended on January 4, 2015.

6 . Unit 4 - 207 was a three - bedroom/two - bath unit . At the

time pertinent to this p roceeding, Camden Waterford Lakes was a

ne w apartment community located near ample shopping areas.

7 . As previously found in this proceeding, on or about

October 20, 2014, Respondent gave Petitioners notice that i t was

not renewing their lease for Unit 4 - 207. The notice stated that

" the Lease will terminate effective 1/04/2015 ." This notice

further stated in pertinent part: " You are expected to vacate

your Apartment on or before the termination date and comply with

all terms of your Lease through your termination date."

8 . The undisputed ev idence shows that Petitioners paid a

base monthly rent of $1,434 .00 for the term of their lease of

Unit 4 - 207.

9 . The credible, persuasive evidence establishes that

Petitioners did not wish to move out of Unit 4 - 207 and would

have renewed their lease for that unit had they been given the

opportunity to do so.

10 . As a direct result of Respondent's non - renewal of

their lease, Petitioners were forced to find alternative

housing.

11 . The credible evidence shows that Petitioners made

reasonable effo rts 4 / to secure comparable housing, in terms of

quality and price, in the Orlando area , but were unable to do

so.

1 2 . As the end of the lease term for Unit 4 - 207

approached, Petitioners decided to move to the West Palm Beach

area . Lisa Anduze was famili ar with the West Palm Beach area,

and Petitioners were not employed at that time .

1 3 . The credible evidence establishes that Petitioners

made reasonable efforts 5 / to find housing in the West Palm Beach

area that was of comparable quality and price to Unit 4 - 207 .

A fter some searching, they were able to secure a two - bedroom/

t wo - bath apartment , Unit 11 - 205, at the Barcelona apartment

community in Jupiter, Florida .

14 . The base monthly rent for Unit 11 - 205 is $1 , 540 .00.

Petitioners rented Unit 11 - 205 for a year starting on

December 31, 201 4 , and ending on December 3 0 , 201 5 .

1 5 . The rent differential between Unit 4 - 207 and

Unit 11 - 205 is $106 .00 per month . Thus, f or the calendar

year of 2015 - 2016, Petitioners paid $1 , 272.00 more per month to

rent Unit 11 - 205 than they would have paid had they been able to

remain in Unit 4 - 207 .

16. The credible evidence also establishes that

Petitioners were required to pay, and paid, a charge of $51.00

to occupy Unit 11 - 205 on December 31, 2014.

1 7 . The evidence establish es that they were charged an

application fee of $40.00 each for each occupant 6/ of Unit

11 - 205, for a total of $120.00 .

1 8 . The e vidence also establishes that Petitioners

incurred a $150.00 administrative fee when they moved into

Unit 11 - 205.

Reimbursement of Rent Charged for Unit 4 - 207

1 9 . Petitioners vacated Unit 4 - 207 on December 30, 2014.

However, Respondent charged them $199.87 in rent for the days of

December 31 , 2014, through January 4, 2015.

20 . Kenneth Anduze testified that the lease for Unit 4 - 207

had been modified through a written lease addendum to terminate

on December 30, 2014, so that Petitioners were not obligated to

pay rent for the dates of Decemb er 31, 2014, through January 4,

2015.

2 1 . However, no lease adden dum document substantiating

Mr. Anduze's testimony was tendered or admitted into the record

in this proceeding , either at the hearing conducted on May 25,

2016, or at the hearing after remand conducted on February 23,

201 7 .

2 2 . The credible evidence establishes that the lease term

for Unit 4 - 207 ended on January 4, 2015 .

Expenses Incurred in Moving from Unit 4 - 207 to Unit 11 - 205

2 3 . In moving from Unit 4 - 207 to Unit 11 - 205 , Petitioners

pack ed and moved their belongings r ather than hiring

professional movers .

24 . Mrs. Anduze estimated that the cost of purchasing

boxes was approximately $75.00 , and the cost of purchasing

packing tape, bubble wrap, labels, and markers was approximately

$ 2 0.00 , for a total of $95.00 of expenses for moving supplies.

Petitioners did not provide receipts to support their estimate

of these expenses . 7 /

2 5 . Mrs. Anduze estimated that Petitioners and their

daughter collec tively spent approximately 85 hours packing and

moving their belongings. This labor consisted of removing their

belongings from cabinets, closets, and drawers; wrapping them to

help prevent damage in the move; placing them in labelled boxes;

and moving them out of Unit 4 - 207 and into Unit 11 - 205. Because

Petitioners move d their belongings rather than hiring

pr ofessional movers, they were unable to produce a receipt

precisely quantifying the number of hours spent in moving out of

Unit 4 - 207 and into Unit 11 - 205. However, given that three

people were involved, and given the scope of the task of moving

out of a three - bedroom/ two - bath apartment and i nto another

apartment, the undersigned determines that 85 hours ÏÏ which would

break down to three people worki ng eight hours per day, for

approximately three - and - one - half days ÏÏ is a reasonable estimate

of the number of hours of labor Petitioners expended .

2 6 . Mrs. Anduze estimated that the value of Petitioners'

labor expended for the move from Unit 4 - 207 to Unit 11 - 205 was

$678.00 . She derived this amount by multiplying the estimated

85 hours of labor by the minimum wage in Florida in 2014, which

was $7.93 per hour.

27 . At the time Petitioners moved out of Uni t 4 - 207,

neither of them were employed. They have not alleged or

demonstrated that they suffered lost wages as a result of mov ing

out of Unit 4 - 207. They also did not allege or provide any

evidence that Monique Anduze incurred lost wages in assisting

Pet itioners in their move.

2 8 . Petitioners rented a U - Haul van in Orlando to

transport their belongings from Unit 4 - 207 to a local storage

unit . They provided a receipt showing that they incurred a

$25.00 rental fee for the van .

2 9 . Petitioners also p rovided a receipt showing that they

had incurred a $24.50 rental fee for th e storage unit.

30 . Petitioners also ren ted a moving van in West Palm

Beach to move some of their belongings from Unit 4 - 207 to

Unit 11 - 205. The rental fee for this van was $44.44.

Petitioners estimated that they spent $60.00 on gas for the

van for driving a t otal of 39 0 miles between Unit 4 - 207 and

Unit 11 - 205. T he total expenses associated with rental and use

of t h e van were $ 104.44 .

3 1 . Mrs. Anduze testified that i n the course of moving, a

television and a glass - top table were damaged. Petitioners

estimated the replacement cost of these items at $344.00 . They

did not provide receipts or other documentation , such as

photographs of the damaged items, to support this claim.

Mileage

3 2 . Petitioners provided information, consisting of Google

Maps mileage calculations, showing that the one - way travel

distance between Unit 4 - 207 and Unit 11 - 205 is 166 miles.

Accordingly, one round - trip between Unit 4 - 207 and Unit 1 1 - 205

total ed 332 miles.

3 3 . The credible evidence establishes that Petitioners

traveled by car between Unit 4 - 207 and Unit 11 - 205 a total of

three round - trips and an additional one - way trip, for a total of

1,162 miles of car t ravel necessitated by their move from Unit

4 - 207 to Unit 11 - 205 .

3 4 . The Internal Revenue Service ( " IRS " ) Standard Mileage

Rates used to calculate the deductible costs of operating an

automobile for moving purposes established a milea ge rate of

$0.235 per mile for moving pu rposes for the year 2014 .

3 5 . Petitioners seek reimbursement of calculated mile age

cost s in the amount of $273.07 , which is derived by multiplying

the 1,162 miles of travel by the IRS deductible rate of $0.235

per mile.

Meal and Hotel Expenses

3 6 . Petitioners estimated that they incurred $300 .00 in

meal expenses ( consisting of ten meals comprised of breakfast,

lunch, and dinner , plus water and snacks , for three people )

while traveling associated with their relocation from Orlando to

West Palm Bea ch . They did not provide receipts or other

documentation supporting these claimed expenses.

3 7 . As discussed above, Petitioners vacated Unit 4 - 207 on

December 30, 2014, a few days before their lease of that unit

terminated. Because the term of their lease for Unit 11 - 205

commenced on December 31, 2014, they could not occupy that unit

on December 30, 2014. T hey stayed in a hotel on the night of

December 30, 2014, and began moving into Unit 11 - 205 the

following day.

3 8 . Petitioners provided a statement from the hotel

showing that they stayed the night of December 30, 2014, and

showing a $0.00 balance . 8 / Although Petitioners did not provide

the receipt showing the amount of the room charge, Mrs. Anduze

credibly testified that she contacted the hotel and was told

that the room rate was between $130.00 and $149.00 per night .

Petitioners are seeking to recover $130.00 for the hotel room

expense for the night of December 30, 2014.

Air line Ticket

3 9 . Mrs. Anduze testified that when Petitioners' daughter ,

Monique, was informed that Petitioners' lease of Unit 4 - 207 had

not been renewed, " she was very upset " so wanted to fly to

Orlando to " find out what's going on." According to

Mrs. Anduze, Monique " could not get a straight flight to

Orlando, it was too high , so she decided to fly into Miami, and

then she took the bus from Miami to Orlando."

40 . Petitioners presented an eTicket Itinerary and Receipt

Confirmation for a ticket issued on October 1, 2014, for a

flight from Kingston Manley (Jamaica) to Miami, Florida,

costing $323.20 .

4 1 . A t time the airline ticket was issued , Petitioners had

not yet been notified by Respondent that the lease for Unit 4 -

207 was not being renewed. As discussed above, the credible

evidence establishes that Petitioners were not notified that

their lease was not being renewed until on or after October 20,

2014 , when Respondent poste d the notice on their unit door .

This was almost three weeks after the airline ticket was issued.

Postage and Related Costs to Pr osecut e Discrimination Claim s

4 2 . Petitioners incurred postage, overnight courier,

photocopying, telefax, and related costs in filing and

prosecuting their discrimination claim s against Respondent .

Petitioners are seeking $11 6 .00 in costs they claim were

incurred as a result of prosecuting these claims.

4 3 . Petitioners produced receipts for post age and other

expenses totaling $9 7. 0 7 . However, some of these receipts do

not provide any indication , on their face, showing that the

expenses incurred were related to Petitioners' prosecution of

t heir discrimination claims.

44. Specifically, the receipts from Office Depot/Office

Max dated January 26 and February 10, 2016, in the respective

amounts of $ 6.58 and $ 6.24 , do not contain any infor mation

indicating that the se amounts were spent by Petitioners in

prosecuti ng their discrimination claims. It is noted , however,

that on January 26, 2016, Petitioners telefax - filed a one - page

document at DOAH . P rorating the charges shown on th e Office

Depot/Office Max receipt dated January 26, 2016, the evidence

indicates that Petitioners incurred $ 0 .21 in telefax costs

connected to prosecuti on of their discrimination claims . 9 /

4 5 . Petitioners also provided what appears to be a receipt

for U. S. Postal Service First Class Mail postage in the amount

of $8.23 . This receipt is almost completely illegible , and

there is no visible information indicating that this amount was

spent on Petitioners' prosecution of their discrimination

claims.

46. The FedEx courier receipts dated December 30, 2016 , in

the amounts of $1.99 and $2.40 are similarly deficient.

4 7 . Petitioners provided receipts for U.S. Postal Service

Certified Mail that document costs totaling $71.58 for sending

documents to Responde nt's counsel, DOAH, FCHR, and the United

States Department of Housing and Urban Development in connection

with Petitioners' prosecuti on of their discrimination claims.

48. Collectively, Petitioners documented that they

incurred $71.79 in postage - related expenses in prosecuting their

discrimination claims.

Medicine s

4 9 . Mrs. Anduze testified that Petitioners experienced

significant stress due to Respondent's unlawful retaliation .

She testified that as a result, Petitioners suffered a range of

health - related issues , requiring them to spend $300.00 for

medications .

50 . Petitioners did not provide any substantial evidence,

such as a physician's testimony or report, specifically linking

these claimed health - related issues to being required to m ove

out of Unit 4 - 207 , nor did they provide receipts or any other

documentation substantiating the claimed costs of these

medications.

Miscellaneous Expenses

5 1 . Petitioners also seek to recover $400.00 in

m iscellaneous expenses they claim to have incurred as a result

of Respondent's unlawful retaliation and their move from

Unit 4 - 207 to Unit 11 - 205 .

5 2 . Mrs. Anduze testified that such expenses included the

value of personal items, such as clothing , they gave away in the

move; gas expenses; a bus ticket for a trip by Monique Anduze

from Miami to Orlando; Florida Turnpike tolls; and other

expenses . She testified : "I'm just basing, basing it on what I

remember." Petitioners did not provide receipts or ot her

documentation to substantiate that these expenses were incurred

or the amounts thereof .

III. Findings of Ultimate Fact

5 3 . As discussed in greater detail below, Petitioners are

entitled to recover quantifiable damages and costs that are

demonstrated by the evidence in the record to be reasonably

related to Respondent's unlawful retaliatory conduct . An award

of d amages and costs must be based on substantial evidence and

cannot be based on conjecture or speculation.

5 4 . Based on the co mpetent, substantial, and credible

evidence presented at the hearing , the undersigned determines

that Petitioners are entitled to an award of $2, 221 . 80 in

quantifiable damages and costs in this proceeding. This

determination is explained below.

Rent Diffe rential and Related Costs for Rental of Unit 11 - 205

5 5 . The credible evidence establishes that Petitioners

would not have moved out of Unit 4 - 207 , had Respondent not

retaliated against them by terminating their lease. Thus,

Petitioners were forced to find alternative housing as a direct

result of Respondent's retaliatory conduct .

5 6 . The evidence establishes that Petitioners made

reasonable efforts to find a lternative housing in the Orlando

area but were unable to do so . Thus, they move d to West Palm

Beach, a city with which Mrs. Anduze was familiar. There, they

made reasonable efforts to find an apartment comparable to the

one t hey had rented in Orlando , and ultimately found Unit 11 - 205

at the Barcelona apartment community . The Barcelona is a n ew

community, as was Camden Waterford Lakes at the time Petitioners

moved there . Petitioners provided substantial evidence that the

monthly rental rate for Unit 11 - 205 is $106.00 more than for

Unit 4 - 207. Units 4 - 207 and 11 - 205 are of comparable quality ,

and the monthly rent al rates , while not identical, are very

similar. Under these circumstances, it is determined

Petitioners are entitled to recover the total rent differential

of $1,272.00 between Unit s 4 - 207 and 11 - 205 for the lease term

for Unit 11 - 205 that commenc ed on December 31, 2014, and end ed

on December 3 0 , 2015. 1 0 /

5 7 . The substantial evidence also establishes Petitioners

also incurred a $51.00 rental charge for occupying Unit 11 - 207

on December 31, 2014; an applicati on fee of $120.00 ; and an

administrative fee of $150.00 . T hese expenses were incurred as

a direct result of Petitioners being forced by Respondent to

move out of Unit 4 - 207. Accordingly, Petitioners are en titled

to recover these expenses .

Reimbursement o f Rent Charged for Unit 4 - 207

5 8 . As discussed above, the greater weight of the

competent substantial evidence establishes that the term of

Petitioners' lease ended on January 4, 2015.

5 9 . E ven though Petitioners vacated Unit 4 - 207 on

December 30, 2014, they were legally entitled to occupy that

unit through January 4, 2015, and also were legally obligated

for the rent on the unit until that date. As such, Respondent

correctly charged Petitioners rent for January 1 through 4,

2015.

6 0 . Accordingly, Petitioners are not entitled to recover

the $199.87 they were charged in rent by Respondent for

December 31, 2014, through January 4, 2015.

Expenses Incurred in Moving from Unit 4 - 207 to Unit 11 - 205

6 1 . Petitioners incurred expenses dir ectly associated with

moving from Unit 4 - 207 to Unit 11 - 205 . These included $25.00

for rental of a U - Haul van , $24.50 for rental of a storage unit ,

and $104. 44 for rental and use of a moving van. As noted above,

Petitioners provided receipts quantifying these expenses. As

such, an award of damages to compensate Petitioners for these

expenses is not speculative. Petitioners are entitled to

reimbursement for these expenses.

6 2 . Petitioners also seek reimburseme nt for approximately

$95.00 in expenses for boxes and packing supplies directly

related to their move from Unit 4 - 207 to Unit 11 - 205. Although

Petitioners are legally entitled to recover, as damages , their

expenses that are reasonably related to Responden t's unlawful

retaliation, they still must present evidence to substantiat e

these expenses in order to be able to recover them as damages .

As further discussed below, expense estimates that are supported

only by conjecture or guess es are s peculative , so are not

recoverable . Here, Petitioners did not provide receipts or any

other evidence objectively quantifying the expenses they

incurred in purchasing packing supplies . T hus, there is no

substantial evidence in the record from which to determine the

a mount of damages that should be awarded for purchase of these

supplies , and an award of damages based on conjecture would be

speculative. Petitioners are not entitled to recover damages to

cover expenses incurred in purchasing packing materials.

6 3 . Petitioners also seek to recover what they have

referred to as "labor costs" for their time spent packing and

moving out of Unit 4 - 207, in the amount of $678.00 . They

derived this amount by multiplying their estimated hours spent

(85 hours total by Petiti oners and their daughter) by the

minimum wage in 2014. However, the evidence establishes that

Petitioners were not employed at the time of their move.

B ecause Petitioners were not employed, they were not being paid .

Accordingly, Petitioners are not enti tled to recover what

effectively would constitute "lost wages." 11/ Additionally, they

did not provide any evidence that their daughter incurred lost

wages, or the amount of any such wages, as a result of helping

Petitioners pack and move out of Unit 4 - 207. Petitioners are

not entitled to recover damages for their labor in moving from

Unit 4 - 207 to Unit 11 - 205.

6 4 . Petitioners also seek to recover $344.00 in

replacement expenses for a damaged glass top table and damaged

television. As noted above, Petitioners did not provide

substantial evidence , such as photographs, showing that these

items were damaged in the move, nor did they provide substantial

evidence regarding the replacement costs for these items. As

such, any award of damages for these it ems would be speculative.

Petitioners are not entitled to recover damages for these items.

Mileage

6 5 . As discussed above, Petitioners presented information,

consisting of Google Maps mileage calculations, establishing

that the distance between Unit 4 - 207 and Unit 11 - 205 was

166 miles one way, or 332 miles round trip. Mrs. Anduze

credibly testified that it took Petitioners three round trips

and one one - way trip to move from Unit 4 - 207 to Unit 11 - 205, for

a total of 1,162 miles traveled to complete Pe titioners' move

between Unit 4 - 207 and Unit 11 - 205. As discussed above,

Petitioners presented information showing that in 2014, the IRS

Standard Mileage Rate was $ 0 .235 cents per mile . 12/ Accordingly,

Petitioners are entitled to recover $273.03 f or mileage expenses

for the ir trips taken in connection with moving from Unit 4 - 207

to Unit 11 - 205.

Meal and Hotel Expenses

6 6 . Mrs. Anduze estimated that Petitioners spent

approximately $300.00 on food for three people during their

travel between Orlan do and Jupiter. Petitioners did not provide

receipts or any other objective means to substantiate these meal

expenses . A bsent substantial evidence quantifying these

expenses , any award of damages would be speculative .

Petitioners are not entitled to rec over these meal expenses in

this proceeding.

6 7 . As part of their move from Unit 4 - 207 to Unit 11 - 205,

Petitioners stayed in a hotel located at 4431 PGA Boulevard,

Palm Beach Gardens, the night of December 30, 2014 , as verified

by a document provided by the hotel that was admitted into

evidence . This document did not show the amount of the hotel

room for that night; Mrs. Anduze estimated that Petitioners

spent $130.00 on the hotel room. Although Petitioners were

unable to demonstrate precisely the am ount they spent on the

hotel room, they provide d documentary evidence substantiating

that they stayed in the room the night of December 30, 2014. A

room rate of $130.00 per night in the South Florida hotel

market, particularly given the time of year durin g which

Petitioners stayed in the room, is reasonable. Accordingly, the

undersigned determines that Petitioners are entitled to recover

$130.00 spent for a hotel room the night of December 30, 2014.

Air line Ticket

6 8 . As discussed above, the airline t icket for Monique

Anduze's trip from M anley Airport in Kingston, Jamaica, to

Miami, Florida, was purchased almost three weeks before

Petitioners were given notice by Respondent , on October 20,

2014, that their lease for Unit 4 - 207 was not being renewed.

M rs. Anduze's testimony on cross - examination that Petitioners

received notice on October 1, 2014, that their lease was not

being renewed i s contradicted by the non - renewal notice dated

October 20, 2014. 1 3 / Her testimony was not credible.

69 . T he credible evidence establishes that the airline

ticket issued on October 1, 2014, was not purchased in

connection with Petitioners' move out of Unit 4 - 207.

A ccordingly, Petitioners are not entitled to recover the amount

spent for this ticket.

Postage and Related Costs to Prosecut e Discrimination Claim s

7 0 . As discussed above, Petitioners seek to recover

$116 .00 in costs associated with the prosecution of their

discrimination claims against Respondent.

7 1 . As discussed above, Petitioners provided documentation

substantiating that they incurred $71.58 in costs related to the

prosecution of their discrimination claims against Respondent.

Petitioners are entitled to recover these claimed costs.

7 2 . The remaining $44.42 in claimed costs either hav e not

been documented by any receipts , or have not been shown to be

linked to Petitioners' prosecution of their discrimination

claims. As such, t hese claimed costs a re not based on

substanti al evidence in the record , and any damage award would

be speculat ive. Therefore, Petitioners are not entitled to

recover these claimed costs.

Medicine s

7 3 . Petitioners seek to recover $300.00 in expenses for

medicines. As discussed above, Petitioners did not provide any

substantial evidence, such as a physician's testimony or report,

specifically linking t heir claimed health - related issues to

Respondent's unlawful retaliation ; thus, there is no evidentiary

basis for determining that Petitioners' claimed health issues

are rationally related to Respondent 's conduct. Further,

Petitioners did not provide any substantial evidence

establishing the amounts of these claimed expenses ; a s such, any

award of damages for medication expenses would be speculative.

Petitioners are not entitled to recover these claime d expenses

for medications.

Miscellaneous Expenses

7 4 . As discussed above, Petitioners also seek to recover

$400.00 in miscellaneous expenses they claim to have incurred as

a result of Respondent's unlawful retaliation and their move

from Unit 4 - 207 to Unit 11 - 205. Mrs. Anduze generally described

some of the items that Petitioners have claimed as miscellaneous

expenses. However, Petitioners did not provide any substantial

evidence quantif y ing these claimed expenses , 1 4 / so any damages

awa rd for these claimed expenses would be speculative , and,

thus, not recoverable. Additionally, the purchase of the bus

ticket for Petitioners' daughter was not related to Respondent's

retaliat ory conduct , 1 5 / so the cost of this ticket is not

recoverable.

Total Damages and Costs to Which Petitioners are Entitled

7 5 . Based on the foregoing , it is determined that

Petitioners are entitled to recover $ 2,221.80 in damages and

costs in this proceeding.

Attorney's Fees and Costs

76. As reflected in the record, Petitioners represented

themselves in the final hearing held on May 25, 2016, which

resulted in a determination that Respondent engaged in

r etaliation in violation of section 760.37 .

77. On January 9, 2017 ÏÏ a fter this procee ding was remanded

for the undersigned to conduct a final hearing on the amount of

damages and costs to which Petitioners are entitled ÏÏ Petitioners

retained attorneys to represent them in the proceeding on

remand .

78. The final hearing on remand was held on February 23,

2017. Petitioners did not move for an award of attorney's fees

before this hearing , and the issue of attorney's fees was first

raised immediately before close of this hearing. As such, the

parties did not present evidence regarding the amount of

attorney's fees and costs to which Petitioners may be entitled

for attorney representation in the proceeding on remand.

79. Prior to entry of this Recommended Order, Petitioners

filed a Motion for Attorney's Fees and Costs, seeking to reco ver

the attorney's fees and costs incurred in connection with th is

proceeding on remand. Th e motion does not provide any

information on the legal services provided or costs incurred,

and does not specify the amount of attorney's fees and costs

sought.

CONCLUSIONS OF LAW

80 . DOAH has jurisdiction over the parties to, and subject

matter of, this proceeding.

81 . As discussed above, FCHR remanded this proceeding to

DOAH with instructions to conduct an evidentiary hearing for the

purposes of determining the amount, if any, of quantifiable

damages and costs to which Petitioners are entitled as a result

of Respondent's unlawful retaliation against them.

8 2 . Section 760.35(3)(b), governing the remedy in cases

brought under the Florida Fair Housing Act, s ections 760.20

through 760.37, states in pertinent part:

If the administrative law judge finds that a

discriminatory housing practice has occurred

or is about to occur, he or she shall issue

a recommended order to the commission

prohibiting the practice and recommending

affirmative relief from the effects of the

practice, including quantifiable damages and

reasonable attorneyÓs fees and costs.

83 . The Florida Fair Housing Act is modeled after

Title VII of the Civil Rights Act of 1964 , as amended by the

Fair Housing Act of 1988. Accordingly, case law interpreting

the federal statute is applicable to cases brought under the

Florida Fair Housing Act. Savanna Club Worship Serv. V. Savanna

Club Homeowners' Ass'n , 456 F. Supp. 1223, 1224 n.1 (S.D. Fla.

2005); Brand v. Fla . Power Corp. , 633 So. 2d 504, 509 (Fla. 1st

DCA 1994).

8 4 . Petitioners bear the burden in this proceeding , by a

preponderance of the evidence, to prove their entitlement to the

damages and cost s they seek to recover. See Casas v. First Am.

Bank, N.A. , 1983 U.S. Dist. LEXIS 16623 , at *12 (D. D. C. 1983 ).

8 5 . In determining the appropriate amount of damages to be

awarded to a victim of housing discrimination, courts begin with

the proposition that the goal of an award of damages is to " put

the [ aggrieved party ] in the same po sition, so far as money can

do it, as he [ or she ] would have been had there been no injury "

ÏÏ that is, to compensate him or her for the injury actually

sustained. Lee v. S . Home Sites Corp. , 429 F.2d 290 , 293 (5th

Cir. 1970).

8 6 . S ection 760.35(3)(b) specifically limits the

compensatory damages, as well as costs, that may be awarded in

administrative proceedings to those that are quantifiable . 1 6 /

8 7 . Claims for damages under fair housing statutes, such

as the Florida Fair Housing Act, " basic ally sound in tort."

Curtis v. Loether , 415 U.S. 189, 195 (1974).

8 8 . B ecause compensatory damages are intended to redress

the concrete loss that the aggrieved party has suffered due to

the wrongful conduct, damages cannot be awarded when the causal

connection between the claimed injury and the unlawfully

discriminatory conduct is speculative. See Anza v. Ideal Steel

Supply Corp. , 547 U.S. 451, 466 - 67 (2006). Stated another way,

the record evid ence must establish a reasonable connection

between the claimed injury and the unlawful conduct. See United

States Dep't of Hous. & Urban Dev. v. Blackwell , 908 F.2d 864,

872 (11th Cir. 1990).

8 9 . Further , a substantial evidentiary basis must be

established to support the amount of damages awarded . That is ,

the amount of a damage award must be based on substantial

evidence , rather than on conjecture or speculation. Keener v.

Sizzler Family Steak Houses , 597 F.2d 453, 457 (5th Cir. 1979);

Falin v. Condo. Ass'n of La Mer Estate s , 2012 U.S. Dist. LEXIS

1818 47 , at *4 (S.D. Fla. 2012); Je ffrey O. v. City of Boca

Raton , 2007 U.S. Dist. LEXIS 12983 , at *59 (S.D. Fla. 2007).

90 . Although d amage award amounts need not be established

with mathematical certainty, they must be based on reasonable

proof. Fitzger ald v. Mountain States Tel. & Tel. Co. , 68 F.3d

1257 (10th Cir. 1995). Amounts that are speculative, remote,

imaginary, or impossible of ascertainment are not recoverable.

Id. at 1264.

91 . In order to recover damages, a claimant must present

evidence that provides the finder of fact with a reasonable

basis on which to determine the amount of damages. Sir Speedy,

Inc. v. L & P Graphics, Inc. , 957 F.2d 1033, 1038 (2d Cir.

1992). The finder o f fact is not allowed to base an award of

damages on speculation or guesswork. Id. A claimant for an

award of damages has the burden to present a non - speculative

basis for determining the quantifiable damages ; t hat burden is

not met where the sole eviden ce of the amount of damages sought

consists of that person's uncorroborated or unsubstantiated

testimony . Wang v. Yum! Brands, Inc. , 2007 U.S. Dist. LEXIS

37348 , at *18 - *20 (E.D.N.Y. 2007).

92 . Pursuant to these legal principles as applied to the

fore going findings of fact , it is concluded that Petitioners

established, by credible, competent, and substantial evidence,

that they are entitled to an award of $2,2 21.80 in damages and

costs as a result of Respondent 's retaliation.

93 . P ursuant to these legal principles as applied to the

foregoing findings of fact, it is concluded that Petitioners are

not entitled to recover the remaining balance (i.e., $2,683.78)

of the damages and costs sought in this proceeding .

Attorney's Fees and Costs

9 4 . S ection 760.35(3)(b) contemplates an award of

reasonable attorney's fees and costs in proceedings in which the

ALJ finds that a discriminatory housing practice has occurred.

95. As discussed above, Petitioners retained attorneys to

represent them in th is proceeding after it was remanded to

conduct an additional evidentiary hearing for the purpose of

determining quantifiable damages and costs.

96. Under section 760.35(3)(b), Petitioners are entitled

to an award of reasonable attorney's fees and costs they have

incurred in this proceeding after it was remand ed to DOAH for

the evidentiary hearing to determine the quantifiable damages

and costs to which they are entitled. Because no evidence has

yet been presented on this issue, if the parties are unable to

agree between themselves on the amount of reasonable attorney's

fees and costs to which Petitioners are entitled, this

proceeding should be remanded for an evidentiary h earing limited

to determining the amount of reasonable attorney's fees and

costs to which Petitioners are entitled in this proceeding on

remand.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of

Law, it is RECOMMENDED that the FCHR enter a fina l order finding

and concluding that Petitioners are entitled to an award of

$2, 221.80 in damages and costs .

Jurisdiction over this proceeding is retained only with

respect to conduct ing any further proceedings pursuant to

section s 120.5 69 and 120.57 (1), as necessary, to determine the

amount of reasonable attorney's fees and costs to which

Petitioners are entitled under section 760.35 in connection with

the final hearing on remand in this proceeding .

DONE AND ENTERED this 18 th day of July, 2017, in

Tallahassee, Leon County, Florida.

S

CATHY M. SELLERS

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.doa h.state.fl.us

Filed with the Clerk of the

Division of Administrative Hearings

this 1 8 th day of July , 201 7 .

ENDNOTES

1/ All references to chapter 760, Florida Statutes, are to the

2014 version, which is the version in effect at the time

Respondent engaged in unlawful retaliation against Petitioners.

2/ Official recognition of these exhibits was taken pursuant to

sections 120.57(1)(f)5 . and 90.202(5), Florida Statutes.

3/ On March 6, 2017, Respondent filed a late - filed exhibit, as

permitted by the undersigned at the final hearing. This

exhibit, labeled "Resp. 2," consisted of a document dated

October 20, 2014, formally notifying Petitioners that Respondent

was exercising its right to terminate their Apartment Rental

Contract ("Lease"). This document was formally marked and

admitted into evidence as "Respondent's Exhibit 3" at the final

hearing held on February 23, 2017. For clarity purposes, the

exhibit's number has been ch anged in the record to con form to

that referenced in the T ranscript of the final hearing.

4/ Lisa Anduze credibly described her efforts in searching for

comparable housing in the Orlando area as entailing looking "at

a good seven communities," looking " at a couple of places," and

going to "several complexes." Although she did not precisely

recall the number of places she investigated or the names of

those complexes, it is noted that she searched for alternative

housing over three years ago, under the te nsion of trying to

find housing on relatively short notice during the holiday

season, when vacant comparable units were in short supply. The

undersigned finds her testimony credible and substantial for

purposes of establishing that Petitioners made reason able

efforts to secure comparable housing in the Orlando area but

were unable to do so.

5/ Mrs. Anduze credibly testified that in attempting to find

housing in the West Palm Beach area, she called "several

communities, at least five," before finding a c omparable unit at

the Barcelona.

6/ Petitioners' daughter also was going to be an occupant of

Unit 11 - 205.

7/ Mrs. Anduze testified that the ink on this receipt, as with

several others, had faded, so it was illegible.

8/ Given the existence of the s tatement and that it shows a

$0.00 balance for a stay on the night of December 31, 2014, it

is reasonable to infer that Petitioners paid to stay in the

hotel room that night.

9/ This amount was calculated using the per - page cost of $.14

shown on the rec eipt and adding prorated "FAXSENDL&TF," sales

tax, and state and local telecom taxes shown on the receipt.

10/ Respondent argues that Petitioners are not entitled to the

rent differential between Units 4 - 20 7 and 11 - 205 because

Petitioners did not "mitigate their damages" suffered as a

result of Respondent's unlawful retaliation. This argument is

rejected. In Toucan Partners, LLC v. Hernando County , 2014 U.S.

Dist. LEXIS 12979 (11th Cir. 2014), the court observed that even

assu ming the duty to mitigate were an available defense against

Fair Housing Act claims, it only "requires plaintiffs to do no

more than is reasonable under the circumstances to mitigate or

avoid further harm." Id. at *14 - *15 (emphasis added). See also

Silve r Sage Partners v. City of Desert Hot Springs , 251 F.3d

814, 825 (9th Cir. 2001)(if the duty to mitigate applies in

housing discrimination cases, it requires a plaintiff to do no

more than is reasonable under the circumstances to avoid

damages). Here, Pet itioners undertook significant efforts to

find comparable housing in Orlando but they were unable to do

so. They moved to West Palm Beach, where they moved into a

smaller apartment unit at only a slightly higher (7.4%) rate

than they were paying for Unit 4 - 207. Petitioners' efforts to

mitigate the damages they suffered due to Respondent's unlawful

retaliation were patently reasonable under the circumstances.

11/ Damages awards in civil rights cases should make the

claimant whole, not confer a windfall. EEOC v. Joe's Stone

Crab, Inc. , 15 F. Supp. 2d 1364, 1378 (S.D. Fla. 1978). Here,

paying Petitioners for moving themselves out of their apartment

would effectively constitute "wages" that they would not

otherwise have earned because they were not employ ed at the

time. This would constitute a windfall. See Evans v. Weiser

Servs. , 2012 U.S. Dist. LEXIS 124750, at *11 (S.D. Ala.

2012)(anything above a payment of damages in an amount that

would make the claimant whole constitutes a windfall that is not

con templated by law).

12/ Cases interpreting federal remedial statutes have authorized

reimbursement at the IRS Standard Mileage Rates for mileage

incurred as a result of violations of those statutes.

See, e.g. , Ruby v. Jefferson Cnty. Bd. of Educ. , 122 F. Supp. 3d

1288, 1308 (N.D. Ala. 2015)(plaintiff entitled, under the

Individuals with Disabilities in Education Act, to reimbursement

at IRS mileage rate for mileage incurred in transporting her

disabled child to an appropriate school).

13/ The O ctober 20, 2014, non - renewal notice for Petitioners'

lease of Unit 4 - 207 was admitted into the record as Petitioners '

Exhibit 17 in the hearing conducted on May 25, 2016, and as

Respondent's Exhibit 2 at the February 23, 2017, hearing after

remand.

14/ As part of these miscellaneous expenses, Petitioners seek to

recover the costs of tolls incurred while traveling on the

Florida Turnpike, a toll road, between Unit 4 - 207 and Unit 11 -

205. As discussed above, the evidence establishes that

Petitioners made t his trip three - and - one - half times. However,

they did not provide receipts for these toll costs, and they did

not request the undersigned to take official recognition of

Florida Turnpike toll rates at the final hearing. Thus, there

is no evidence in the r ecord regarding the amount of costs

Petitioners incurred in tolls in moving from Unit 4 - 207 to

Unit 11 - 205. According to the State of Florida Department of

Transportation's Toll Calculator, a one - way trip on the Florida

Turnpike starting at Florida State Road 417 and ending at

Florida State Road 706 is $12.00. This would total $84.00 in

toll costs incurred in Petitioners' move from Unit 4 - 207 to

Unit 11 - 205. However, Petitioners did not request the

undersigned to take official recognition of this infor mation,

and the procedures established in sections 90.202 through

90.204, Florida Statutes, have not been met, so it would be an

abuse of discretion for the undersigned to take official

recognition of this information.

15/ T he credible evidence does not establish that Monique

Anduze's trip from Kingston, Jamaica, to Orlando ÏÏ including the

bus trip from Miami to Orlando ÏÏ resulted from Respondent's

unlawful retaliation. Accordingly, Petitioners are not entitled

to recover expenses associated with this trip , including the bus

trip from Miami to Orlando.

16 / Although courts in civil rights cases are authorized to

award damages for non - quantifiable injuries such as mental

distress as part of "compensatory damages," those types of

injuries are not compensabl e in the administrative context.

Metro. Dade Cnty. Fair Hous. & Emp't Appeals Bd. v. Sunrise

Vill. Mobile Home Park , 511 So. 2d 962, 965 - 66 (Fla. 1987)

(administrative entity not constitutionally empowered to award

non - quantifiable damages for mental dist ress); Broward Cnty. v.

LaRosa , 505 So. 2d 422, 424 (Fla. 1987)(awarding damages for

non - quantifiable injuries is strictly a judicial function that

cannot constitutionally be performed by an administrative body).

COPIES FURNISHED:

Tammy S. Barton, Age ncy Clerk

Florida Commission on Human Relations

4075 Esplanade Way , Room 110

Tallahassee, Florida 32399

(eServed)

Leslie L. Tucker , Esquire

6292 Vinings Vintage Drive

Mableton, Georgia 30126

(eServed)

David Stuart Cronin, Esquire

Alicia K. Magazu , Esquire

Community Legal Services of Mid Florida

128 Orange Avenue , Suite 300

Daytona Beach, Florida 32114

(eServed)

Cheyanne Costilla, Gen eral Co unsel

Florida Commission on Human Relations

4075 Esplanade Way, Room 110

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 case.