17-000657 Gratus Housing Advocates, Inc. vs. Brookhaven Development Land Ltd. Status: Closed Recommended Order on Wednesday, March 22, 2017.

Summary: Petitioner failed to demonstrate that it has a claim over which the Florida Commission on Human Relations has jurisdiction.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

GRATUS HOUSING ADVOCATES, INC. ,

Petitioner ,

vs. Case No. 17 - 0 657

BROOKHAVEN DEVELOPMENT LAND

LTD . ,

Respondent .

/

RECOMMENDED ORDER OF DISMISSAL

T his cause came on for consideration without an evidentiary

hearing for the reasons set forth below.

STATEMENT OF THE ISSUE

Whether the Florida Commission on Human Relations (Ðthe

CommissionÑ) has jurisdiction over PetitionerÓs claim against

Respondent.

P RELIMINARY STATEMENT

On May 2 3 , 2016, Gratus Housing Advocates, Inc. (ÐG HA Ñ) ,

filed a h ousing d iscrimination c omplaint with the Department of

Housing and Urban Development alleg ing the following:

Complainant Gratus Housing Advocates, Inc.

(GHA) is a non - pr ofit organization

established to eradicate discrimination in

housing for all protected class members.

Complainant GHA operates in all 50 states to

protect, maintain, and establish fair

housing opportunities for all and to

affirmatively further fair housin g rights.

In April of 2016, as part of its mission,

Complainant GHA provided fair housing

counseling and advocacy to its client,

Aggrieved Party Kelly Duff, who described

herself as a person with visible physical

disabilities and also mental disabilities.

She is a tenant at Reserv e at Brookhaven

Apartments.

* * *

Because of her disabilities, Aggrieved Party

Duff requires the use of her service dog, a

Husky named Rakki. Since at least February

of 2016, Aggrieved Party Duff made a

reasonable accommodatio n request for the

respondents to waive the pet deposit, pet

rent, and size restrictions for her service

dog. She informed the respondent management

company about the nature of her disabilities

and explained how the service dog alleviated

those symptoms. Aggrieved Party Duff

disclosed that she is employed by a service

dog training company, K9s for Warriors, and

she offered to provide healthcare

documentation to verify her disabilities and

need for the service animal. [RespondentÓs

property manager] report edly declined

Aggrieved Party DuffÓs offer and instead

required her to authorize the respondents to

contact and interact with Aggrieved Party

DuffÓs doctor and employer to verify the

disability and need for the service dog. On

April 8, 2016, the responden ts issued a

written denial of the reasonable

accommodation request. [RespondentÓs

property manager] allegedly reiterated her

demand to speak to Aggrieved Party DuffÓs

doctor to confirm the disability and also

required the doctor to complete the

management companyÓs proprietary

accommodations request forms. Aggrieved

Party Duff contacted Complainant GHA for

assistance, and with complainantÓs help, the

respondents granted the reasonable

accommodation request, which had been duly

delayed. On May 5, 2016, Ag grieved Party

Duff contacted Respondent Sharpe to make

another reasonable accommodation request,

asking permission to take her service dog

into the swimming pool area so that the dog

could wait there if she used the pool. On

the same day, the respondents issued a

written denial of the reasonable

accommodation request, thereby denying

Aggrieved Party Duff the full use and

enjoyment of the property due to her

disability.

As a res ult of the respondentsÓ collective

actions, on approximately May 12, 2016,

Co mplainant GHA filed a housing

discrimination complaint on Aggrieved Party

DuffÓs behalf. The complainant alleged that

due to the respondentÓs alleged

discriminatory acts, the complainant has

suffered a diversion of resources and

frustration of its mission . The

complainantÓs daily education and outreach

efforts were put aside to assist Aggrieved

Party Duff, and the complainant had to

divert resources to conduct investigatory

efforts to uncover and fight the alleged

discrimination.

GHA concluded its compl aint by alleging that RespondentÓs

actions violated various provisions within Title VIII of the

Civil Rights Act of 1968 , as amended by the Fair Housing Act of

1988.

FINDINGS OF FACT

1. T he Commission conducted an investigation of GHAÓs

allegations. Th at investigation determined that GHA had not

been acting as Ms. DuffÓs attorney and that the assista nce

provided to Ms. Duff was mostly clerical in nature. The

investigation also determined that GHA suffered no harm related

to housing. As a result, the C ommission determined that it had

no jurisdiction over GHAÓs claim.

2. On November 18, 2016, the Commission issued a ÐNotice

of Determination of No Jurisdiction.Ñ In addition to notifying

GHA of its decision, the Commission advised GHA that it could

cha llenge its determination by requesting an administrative

hearing.

3. GHA filed a Petition for Relief with the Commission on

January 30, 2017 , and took issue with the CommissionÓs

determination that it lacked jurisdiction over this matter .

4. With regar d to the CommissionÓs determination that GHA

was not Ms. DuffÓs attorney, GHA stated the following:

Patrick Coleman did admit that he was not an

attorney, however Patrick Coleman confirmed

on several occasions that he and GHA have in

fact been Ms. Kelly Du ffÓs representative by

means of a Power of Attorney since May 11,

2016. Please see the attached P ower of

Attorney signed by Ms. Duff.

Patrick Coleman of GHA admitted to not

performing traditional phone testing or in

pe rson testing at the respondent[ Ò s]

p roperty Î that is correct. However, GHA

has stated that their Testing Investigation

process included an investigation of the

respondentÓs housing process, including:

the Concord Rental Agreement, the Service

Animal Addendum, an in depth review of the

Con cord Rents website and their published

documents, and a review of the Reserve at

Brookhaven website followed by a review of

their published materials.

It was GHA Ós investigation, recovery,

and scrutiny of the Service Animal

Responsibility Addendum that un covered the

potentially discriminatory language which

prompted an inquiry regarding the

RespondentÓs policy addressing assistance

animals in the pool area.

5. As for the CommissionÓs determination that GHAÓs

assistance to Ms. Duff was mostly clerical in nature, GHA stated

that it assisted Ms. Duff with protecting her ÐFair Housing

RightsÑ in the following ways: (1) interviewed Ms. Duff in

order to verify that she was a bona fide victim of

discrimination; (2) provided Ms. Duff with fair housing

education via a webinar; (3) wrote two reasonable accommodation

requests for Ms. Duff; (4) worked with Ms. DuffÓs physician in

order to draft a letter describin g Ms. DuffÓs disability and

her need for an assistance animal; ( 5) wrote, reviewed, and

approved all writt en communications from Ms. Duff to R espondent;

(6) interviewed Ms. DuffÓs employer; (7) wrote and filed

Ms. DuffÓs fair housing complaint; and (8) represented Ms. Duff

during every phone interview conducted by the Commission.

6. T he Commission referred the instant case to the

Division of Administrative Hearings (ÐDOAHÑ) on January 30,

2017.

7. On February 14, 2017, the undersigned sua sponte issued

an ÐOrder to Show CauseÑ requiring GHA to Ðshow cause on or

before March 1, 2017, why the instant case s hould not be

dismissed based on a lack of standing.Ñ

8. GHA did not file any respon se to the Order to Show

Cause.

CONCLUSIONS OF LAW

9 . The undersigned agrees with the CommissionÓs

determination that it lacks jurisdiction over GHAÓs complaint .

As expl ained below, GHA is attempting to recover costs without

the presence of an underlying discrimination case.

10 . GHA admitted that Respondent granted Ms. DuffÓs

initial request for a reasonable accommodation (i.e., use of a

service dog on RespondentÓs pro perty) prior to the filing of a

complaint under the Fair Housing Act . GHA also allege d that

Respondent denied Ms. DuffÓs second re quest for a reasonable

accommodation by refusing to allow her to take her service dog

into RespondentÓs swimming pool area. However, the relief

sought by GHA is not an order re quiring Respondent to allow

Ms. Duff to take her dog to RespondentÓs pool area. Instead,

the relief sought is solely limited to GHAÓs right to recover

damages. If these allegations are accepted as true, then there

is no underlying fair housing discrimination claim currently

before the Commission. See § 760.23(9)(b), Fla. Stat.

(2016)(providing that housing discrimination includes Ð[a]

refusal to make reasonable accommodations in rules, policies,

practic es, or services, when such accommodations may be

necessary to afford such person equal opportunity to use and

enjoy a dwelling.Ñ). In other words, relief under the Fair

Housing Act is predicated on : ( 1 ) a fair housing complaint

filed by Ms. Duff; and ( 2 ) a determination by the Commission

that Ms. Duff had been the victim of a discriminatory housing

practice for which relief to Ms. Duff could be granted .

See generally § 760.35(3) (b) , Fla. Stat. (2016)( providing that

Ð[i]f the administrative law judge find s 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 da mages and

reasonable attorneyÓs fees and costs.Ñ). Because GHAÓs

allegations indicate that neither of those conditions exist s ,

the Commission lacks jurisdiction over GHAÓs complaint.

11. Furthermore, GHAÓs allegations demonstrate that it

lacks standin g to maintain this proceeding. In order to have

standing to challenge agency action, an individual or entity

must be a ÐpartyÑ as that term is defined in section 120.52(13),

Florida Statutes (2016). The agency action at issue is the

CommissionÓ s determin ation that it lacks jurisdiction. Section

120.52(13)(b) is relevant to the instant case and provides in

pertinent part that a ÐpartyÑ is any person Ðwhose substantial

interests will be affected by proposed agency action.Ñ In order

to demonstrate that one Ós Ðsubstantial interestsÑ are at stake,

a would - be party must demonstrate: (1) that the party will

suffer an injury in fact which is of sufficient immediacy to

entitle it to a section 120.57 hearing; and (2) that the partyÓs

substantial injury is of a ty pe or nature which the proceeding

is designed to protect. See Prescription Partners, LLC v. DepÓt

of Fin. Servs. , 109 So. 3d 1218, 1222 (Fla. 1 st DCA 2013).

12. GHAÓs allegations do not demonstrate that it has

suffered an injury in fact. Ms. Duff i s t he only person or

entity that has suffered an injury in fact (i.e., denial of her

request to take her service dog into RespondentÓs pool area).

However and as explained above, Ms. Duff has not filed a

complaint with the Commission. See generally Equity R esources

v. C ou n ty of Leon , 643 So. 2d 1112, 1117 (Fla. 1 st DCA

1994)(noting that Ð[s]tanding is predicated on a partyÓs

legitimate or sufficient interest at stake in the controversy

that will be affected by the outcome of the litigation.Ñ).

13. The rel ief sought by GHA pertains to an alleged

Ðdiversion of resources and frustration of its mission.Ñ

However, that relief is not related to whether Respondent should

be required to allow Ms. Duff to bring her dog into RespondentÓs

pool area. There is nothin g in c hapter 760, p art II, F lorida

Statutes (2016), indicating that GHAÓs injury is the type of

injury that the aforementioned legislation was intended to

protect. See Agrico Chem. Co. v. DepÓt of Envtl. Reg. , 406 So.

2d 478, 482 (Fla. 2d DCA 1981)( holdin g that Ð[w]hile petitioners

in the instant case were able to show a high degree of potential

economic injury, they were wholly unable to show that the nature

of the injury was one under the protection of chapter 403.Ñ).

RECOMMENDATION

Based on the foregoi ng, it is RECOMMENDED that a final

order be entered by the Florida Commission on Human Relations

dismissing Gratus Housing AdvocatesÓ Petition for Relief due to

a lack of jurisdiction.

DONE AND ENTERED this 2 2nd day of March, 2017 , in

Tallahassee, Leon C ounty, Florida.

S

G. W. CHISENHALL

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 2 2nd day of March , 2017 .

COPIES FURNISHED:

Tammy S. Barton, Agency Clerk

Florida Commission on Human Relations

Room 110

4075 Esplanade Way

Tallahassee, Florida 32399

(eServed)

Cheyanne Costilla, Gen eral Co unsel

Florida Commission on Human Relations

4075 Esplanade Way, Room 110

Tallahassee, Florida 32399

(eServed)

Patrick Coleman

Gratus Housing Advocates, Inc.

3513 Provine Road

Mckinney, Texas 75070

Brookhaven Deve lopment Land LTD

Suite 101

700 West Morse Boulevard

Winter Park, Florida 32789

Andrew Kemp - Gerstel, Partner

44 We s t Flagler Street

Miami, Florida 33130

(eServed)

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

All parties have the right to submit written excep tions 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.